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HomeMy WebLinkAboutZ-7900 Application 1EAI PROPOSED ELECTRIC SUBSTATION 14250 COLONEL GLENN ROAD "TO BE BUILT IN A FLOOD PLAIN" M Charles T. Steuart Arkansas Registered Professional Geologist #110 And Ashley Hendricks Environmental Engineer February 2007 EAI PROPOSED SUBSTATION 14250 COLONEL GLENN ROAR Entergy adamantly denies flooding would be a problem at the proposed site. " `We wouldn't build a substation in an area that's endangered by flooding.' Daugherty said." This statement made by the manager of communications for Entergy was reported in the Arkansas Democrat - Gazette, Saturday, December 23, 2006. Is the proposed Entergy Substation site within a floodplain area? YES! HISTORY I was approached by Howard and Sue Ann Stephens on December 13, 2006 and asked if I could supply any information that could be beneficial in helping to persuade Entergy to not build this Substation on this site. "There are several other proposed sites that would be better," said Mrs. Stephens. I had met the Stephens about a year ago at the Arkansas Geology Commission and was drawn into a conversation with them and a Commission geologist. All that I remember about the conversation was the Stephens didn't want a substation in their settled residential neighborhood. After all it had been a year since I had talked with them. After being contacted, I sent them a list of my normal charges and costs. They accepted and I said that I would look the situation over, but I had in the back of my mind I would tell them that I could see no problem with the site and I couldn't help them. I would collect my three hour minimum charge and be on my way. When I arrived at the Stephens home and saw the situation, I started asking questions. Mrs. Stephens showed me some pictures of the proposed substation site and vicinity taken by Dr. Roy Jolley after a heavy rain earlier this year. "Why would anyone want to build ANYTHING in a flood plain, especially an electrical substation?" That is when I started looking into the aspects of the proposed construction site as opposed to the other proposed sites. 1 The following are my observations, thoughts and calculations along with Ashley Hendricks, Environmental Engineer. I met with Mr. Howard Stephens and Mrs. Sue Ann Stephens at 9:00 AM on Monday December 18th at their house at 14075 Colonel Glenn Road, just west of I-430. They showed me flood maps of the area. They also showed me and conveyed to me information received from the U.S. Army Corps of Engineers, Entergy, Sierra Club and various Pulaski County officials. It appears that the Stephens have researched this problem very thoroughly. The problem's being that Entergy Arkansas, Inc. (EAI) wants to construct a substation adjacent to the Stephens and their neighbor's properties. Among other objections are that the area EAI wants to construct the Substation in a flood plain, adjacent to several houses plus the constant noise that the substation emits will disturb the area neighbors. This is known as "site B", one of five (5) proposed sites by EAI. Are these objections warranted? On September 13,1978 a heavy amount of rain fell on the area and caused devastating floods in parts of Little Rock and Pulaski County. The Stephens property, as well as the neighbors property to the west, now know as "site B" by EAI, was totally flooded. The following was written by Mr. and Mrs. Stephens; "Our home sits on an incline overlooking a tributary of McHenry Creek and we are next door to Entergy's so-called `site B' where they propose to build a new obtrusive electric substation. The tributary is adjacent to `site B' & conjoins nearby with McHenry Creek and that fateful morning deluged homes on the east, west, north and south of Colonel Glenn Road and Lawson Road. Our farm animals were washed away in the flood waters and our bee hives were later found on South University Avenue at an auto sales company." This water that flooded the Stephens property first flowed across the area that is considered for the proposed substation by EAI. The `Site B' is adjacent to and up -stream of the Stephens property. 2 UNANSWERED QUESTIONS The first question that needs to be addressed is the ability to turn off of Colonel Glenn Road onto the future constructed road, down to the tributary of McHenry Creek. As written in File # S-1518 Section B, EXISTING CONDITIONS' The roadway in this area is somewhat hilly with limited site distance on the roadway in several localities.' There are two curves, one to the east and one to the west of the proposed turn -in. These are relatively blind curves. Large haul trucks will have to be able to turn in, safely, off of Colonel Glenn Road. Will a turn lane be added on Colonel Glenn Road? Will the 25 foot easement be wide enough to turn off of Colonel Glenn Road with haul trucks and turn them around to head back out during and after construction? How much area will be disturbed? What type of road and sub -base material will it have? What type of surface will the road have, rock, asphalt or concrete? As stated in File No.Z-7980 dated May 11, 2006, #3 ON SITE DRIVES AND PARKING, 'The road will consist of packed gravel. It will be paved from Colonel Glenn Road to the first entrance gate. A parking pad will be located on the north end of the substation, at the entry road and gates. 'Will this road be built up above existing property grade (elevation) or will it be constructed to natural ground level? A bridge is to be constructed over the tributary of McHenry Creek. How deep will the footers be and how will the integrity of the creek be protected during construction? What is the largest weight that the bridge will be designed to support? A water line will have to be laid in accordance with existing fire regulations, Arkansas State Fire Code and in accordance with The Central Arkansas Water codes. Will this water line be laid under the creek and if so, how will the integrity of the creek be protected during the placing of the pipe during construction? How will the pad for the substation be constructed and of what material? How deep below the substation does the grounding grid need to be? How close to the existing twelve inch (12'9 high pressure natural gas line will the substation be constructed? Plans indicate a case flood elevation of 355 feet Mean Sea Level (MSL). All supporting mechanical and electrical equipment must be 3 constructed to the base flood elevation or higher. All of the construction (road, bridge, substation) will add to the runoff during a rain event. What will the base flood base elevation be then? All of the area parameters will be changed after all of the construction. All of these unanswered questions can be answered only when the construction plans are drawn and submitted. The costs cannot be calculated until the construction plans are drawn. SLTMMATION We do know that the EAI substation is in the flood plain of the tributary to and including McHenry Creek, as shown on Figure 4 after Ashley flendricks following report. The proposed property that EAI wants to buy is to be divided into 3 tracts of land as shown on Entergy Services, Inc. Site "A" PROPOSED COLONEL GLENN PROPERTY DRAWINGS DATED 7/7/05. This drawing is listed as Z-7980, 14250 Colonel Glenn Road, Conditional Use Permit. Tract 3 is the proposed substation with tracts 1 and 2 are individual lots in the Minton Subdivision. (Figure 3) Can these areas be called subdivision lots if there are no houses to be built? According to the drawings presented by ENTERGY SERVICES, INC., Figure 3, Z-7980, Conditional Use Permit, the 14250 Colonel Glenn Road is referred to as SITE "A". These drawings dated 7/7/05 were apparently of the only site considered for the construction of the proposed substation at that time. Were the other proposed sites added after the local neighbors opposed this Colonel Glenn site? There are several alternative sites which Entergy claims to have been evaluated and I strongly recommend that they reevaluate these sites for their possible use as a substation site which will have the least amount of adverse effects on the environment and on personal issues, such have been raised at the Colonel Glenn Road site. 4 ENVIRONMENTAL EVALUATION OF PROPOSER COLONEL GLENN ROAR ELECTRICAL SUBSTATION Entergy Arkansas, Inc. (EAI) has adequately demonstrated the need for an additional electrical substation in the west Little Rock area in the Petition (Docket No. 06-162-i) filed before the Arkansas Public Service Commission (PSC) on December 5, 2006. Several alternatives were said to be evaluated based on seven factors including cost, health and safety, engineering and technical concerns, ecological and environmental disruptions, and aesthetic displeasure. However, it is unclear if a formal Environmental Assessment (EA) was performed as required by the National Environmental Policy Act (NEPA) for projects using federal monies. The proposed substation site, shown in Figure 1 and Figure 2, is located approximately 1.7 miles west of Lawson Cutoff at 14250 Colonel Glenn Road. The site is situated in a low valley at the base of Ellis Mountain, which surrounds the site except on the east side. Elevations to the east of the project are quite a bit higher than the site elevation. Thus, there is considerable drainage to the site and to McHenry Creek which flows south of the site as shown in Figure 1. Lake Nixon is located directly upstream of the proposed substation site and Lake Patricia is located further upstream. Every year around October the water is drained from Lake Nixon. It takes approximately one month to lower the Lake. All of the water drains adjacent to the proposed EAI substation site. Figure 4 shows the southern portion of the 3.28 acre site that is located in a Federal Emergency Management Agency (FEMA) flood hazard areas, specifically the X-500 and A zones. Zone X-500 are areas of moderate flood hazard from the principal source of flood in the area and determined to be between the limits of the 500 -year and 1,000 -year annual chance floodplain. Zone A are areas subject to a one percent or greater annual chance of flooding in any give year. The Entergy diagram, Figure 3, submitted with their petition to the PSC shows the substation will sit in flood zones A2 and B. Zone B is equivalent to Zone X-500 described previously. Zone A2 is equivalent to Zone A previously described. The diagram submitted by Entergy also shows the base flood elevation (BFE) is 355 feet. The BFE refers to the elevation associated with the 100 -year flood. The entire proposed substation site sits at the BFE or within a few feet below or above the BFE. Furthermore, the site �1 is located in an area that has a well-known potential for flooding after even moderate rain events, such as a 2 -year 24-hour storm which is equivalent to 4.0 inches of rain. The photo summary attached shows flooding during a recent two inch rain.. FEMA's National Flood Insurance Program (NFfp) requires that critical facilities, such as hospitals and utilities, should not be located in floodplains. However, critical facilities that must be located in a floodplain are required, under Executive Order 11988, to avoid the 500 - year flood or protect against the 500 -year flood. The Petition states that the substation facility will include flood control measures. However, it has not been demonstrated satisfactorily in the Petition that these measures would comply with the 500 -year flood protection requirement. An additional concern with locating a substation facility in a flood prone area is floating debris during high water. Herbicides and pesticides are generally applied to prevent the ground from becoming vegetated at substations to protect buried wires beneath the substation. Herbicides and pesticides must be used with special care near water bodies, such as a tributary of McHenry Creek which flows through the site. The site is currently well vegetated and the loss of vegetation will increase the potential for flooding. Paving an ingress/egress from Colonel Glenn Road to the site will also increase the �- potential for flooding. The paving of an ingress/egress detrimental at this site due to the length of road, around 650 feet especially required to reach the site from Colonel Glenn Road. The increased run-off and loss of vegetation at the proposed substation site could increase the danger of flooding to other neighboring properties. There are several homes that border the site and a sizable residential development planned downstream of the site. The proposed site will require a stream `--- 9 m crossing. The strea crossing will require significant short m -term disruption of the tributary to McHenry Creek. Additionally, a water utility line must be brought from the main line at Colonel Glenn Road to the substation site to provide a fire hydrant(s) as well as provide water to the subdivision lot. This will require the water line to cross the tributary and it will have to be diverted so that a trench can be excavated and the utility line laid beneath the creek. The diversion will cause serious impacts to the tributary and McHenry Creek. 6 Oil spills are another concern at substations. Typically, a large quantity of oil is contained in a single transformer. A major oil release would be a significant environmental incident of special concern due to the nearby water body and potential for flooding at the site. The noise produced by operation of the proposed substation should be below the state requirements at the property line. Aesthetic displeasure can be abated by the use of a vegetative screen such as an evergreen belt. However, the surrounding properties are much higher in elevation than the substation and have a clear view downward toward the site. Therefore, it is unclear bow the screen would adequately abate both noise and aesthetic displeasure. EAI proposes in the Petition to the PSC that the potential for adverse environmental impacts will be relatively minor in nature and the impacts at the proposed site are less than any other identified alternative. The potential impacts to the area due solely to the fact that the site is located in a flood hazard area are significant. The temporary and permanent impacts listed by EAI in the petition do not fully demonstrate the potential detriments to the area. Entergy claims the selected "site B" by EAI is the least -cost alternative, however; the costs associated with the concerns raised could likely increase the cost of the proposed site considerably. The site proposed by EAI is not the most appropriate ro riate selection based on the information available at this time. Ashley Hendricks B.S. Environmental Engineering, New Mexico Institute of Mining and Technology M.S. Environmental Engineering, Vanderbilt University 7 4z IL ■ r,lv�\ V i i i E)ds tW I Stri�Cii1�CS � i i Tract 1 2.41 Aaes� ...d 25' V-\ Ingress 1 Egress Ears mend b a� T ftopow cadOf Now En%W substa m 3.29 Am 181.27 ti a N Tract 2 r 2.10 Aeras Y CR Ui 175.00' Tract 3 Mg Line 355.6& ENTERGY SERVICES, INC. SITE "A" PROPOSED COLONEL GLENN PROPERTY APPROVED BY, I DATE: 7%7/95 CHECKED BY, ISCALEt V=30' DRAWN BY, LMRI CEA NQ, BVeW No. PLOT SH. 1 ❑F 1 b ao CD r 1w See Page 4, Paragraph 5 for explanation of SITE "A". OINORTH Z-1989 • 14,250 Colonel Glenn Road • Conditional Use Permit Proposed Substation Site Figure 3: Site Map By Entergy ENTERGY ARKANSAS, INC. PROPOSED AND ALTERNATIVE SUBSTATION SITES �.��"`i•'m' - "P- r.`. i!Ll•..4�r�t.._ �. } . ,. •- ... - •, • t.: ••.�$� --,_v3....�� Y x_i i.", _- �. �E . .- T'.1r�.+3�'�-q' + i--�a -��•• ����� a -- . � r --.. ,tip -".-tea-- � Existing 115 kV Transmission Line Kanis to Mabelvale - Substations) t .' 8r • I Alternative E - Located 12 Miles North of Col Glenn Road at Existing 115 kVTransmission Line � t Alternative A -Located 1.7 Miles East of Existing 115 kV L y •7 -_ _ Y ;y`- Transmission Line Near 1-430 and 4 . ��s. ` -. • . • • Col Glenn Road _ - r, is =t•�. Lu1rr: '�{ . T � _ l :" :� �' :t' - 1 G �"` r - _ ' 4 ._ ` 'y'y" _y _: `. r•r - b" _ = i �r "lam-'i..'G. •�. �=3: • _ '• r' - -.�. --., . �� _"�' .. •"-�`^'..' A."'.. ...• �� �a���_ ":���__.. X11. _ ''1- •ti.� asr r„ =,fes- iE-- :y 1 s 1-, e. _ � r _ � ' � 'F ter. .� �� • J'A T`sir � r•f �� f , ,'may i t _ . a` n" • : i ! ` Kit - Proposed Substation Site Located Between Col •,N = Glenn Road and Lawson f Alternative C - Located 0.7 Miles West of Existing 115 WRoad at Existing 115 kV ;•� o I • �. _ [ - Transnirssion Line on Lawson ;-� Transmission Line •� :, gpgrrQ • _ �= _ ur Road (Rack Quarry) �'1 , 28 14 • �� A!!kY . ,q } ° pwa '' i r Alternative D -Located 1.5 Miles ~ r s:a • I n , South of Lawson Road at Existing 115 kV Transmission Line 3 Existing 1kV 15 • .�{p�'r�, Transmission Line. mel. $� i u . i "� �• `{ 1 (KanistoMabelvale • \ may' Substations) _ 'j•• Y ••ice• 'r _ r �c . }j 's 1•• 1 `• •rte- L..-.'�ti valtey Cb Lr IP clue Tf � •_ sag Nx i ��J. •• ':r ' �'� -•��i Pf (Red Lined Areas Denote Potentially Impacted Landowners and/or Residents) Figure 5: Photograph # 01 Location: Tributary to McHenry Creek View: Looking east toward proposed substation site Date: April 30, 2006 Notes: None. Photograph # 02 View: Looking southeast toward spring -fed pond south of proposed substation site. Date: Notes: None. Photograph # 03 View: Looking south from proposed substation site. Date: April 30, 2006 Notes: 12-14 inches of standing water present. Photograph # 04 View: Looking west toward proposed substation site. Date: April 30, 2006 Notes: 12-14 inches of standing water present. DIVISION 2. RESIDENTIAL DISTRICTS DIVISION 2. RESIDENTIAL DISTRICTS Sec. 36-251. General purpose. Page 1 of 18 The residential districts established by this chapter are designated to promote and protect the health, safety, morals, convenience, order, prosperity and other aspects of the general welfare. These general goals include, among others, the following more specific purposes: (1) To provide sufficient space at appropriate locations for residential developments to adequately meet the housing needs of the present and expected future population of the metropolitan area, with due consideration to the need for a variety of choices in site selection. (2) To permit improved movement on the public street system and efficiently utilize existing public streets, and, as far as possible, to mitigate the effects of heavy traffic and more particularly all though traffic, in residential areas. (3) To protect residential areas against undue congestion, as far as possible, by regulating the density of population, intensity of activity, and the bulk of buildings in relation to the surrounding land and to each other. (4) To provide for access of light and air to windows and for privacy, as far as possible, by controls of the height of buildings and other structures. (5) To promote the most desirable use of land and building development, to protect the character of each district and its suitability for particular uses and to conserve the value of land and buildings. (Code 1961, Ch. 43, § 7-101) Sec. 36-252. Accessory buildings in certain districts. (a) [Area requirements.] Accessory dwellings within the R-2, R-3, R-4 and R -7A districts shall conform to the following area requirements: (1) No accessory dwelling shall exceed the permitted height of the district. (2) In no instance shall the floor area of the accessory dwelling exceed that of the principal dwelling. (3) In the R-2 and R-3 districts, one (1) of the dwelling units must be occupied by the landowner. (4) In the R-4 district, an accessory dwelling is expressly prohibited when a duplex exists on the lot. (5) In R-2, R-3, R-4 and R -7A districts, a single-family dwelling or manufactured home must be on the site prior to approval of location of an accessory dwelling. (6) The two-story type of construction may be allowed for accessory dwellings when the ground floor is occupied as an automobile garage or accessory storage for the dwelling units on the lot. (b) Accessory buildings. An accessory building shall be a constructed edifice designed to stand alone, more or less permanently. Only those buildings specifically designed and constructed for the purpose of serving as an accessory building shall meet the definition of an http://Iibrary I.municode.com/mcc/DocView/1 1170/1/291/301/303 2/19/2007 DIVISION 2. RESIDENTIAL DISTRICTS Page 2 of 18 accessory building. The use of items such as cargo containers, truck boxes and trailers, train cars and cabooses, mobile homes, manufactured homes and recreational vehicles or trailers shall not be deemed appropriate to serve as an accessory building in a residentially -zoned district. Such items shall not be deemed to be nonconforming structures under article III of this chapter. Any such item not deemed by the planning director to be appropriate that was being used prior to the effective date of this ordinance as an accessory structure in a residentially - zoned district shall be removed within six (6) months from notification by the city of the property owner. (Code 1961, Ch. 43, § 5-102(f); Ord. No. 15,247, § 1, 2-17-87; Ord. No. 15,438, § 1, 2-16-88; 18,682, § 1(d), 5-21-02; Ord. No. 18,902, § 1(s), 7-15-03; Ord. No. 19,052, § 2, 2-3-04) Sec. 36-253. R-1 Single-family district. (a) Purpose and intent. The R-1 single-family district is established in order to provide areas in the city for development of single-family residences on lots not less than fifteen thousand (15,000) square feet in area. This section applies to such district. This district shall be located so as to facilitate the economical provision of appropriate urban services and to provide for the orderly expansion and maintenance of urban residential development throughout the metropolitan area. The R-1 district shall also be applied to areas where, because of topography or other physical constraints, lots larger than permitted in the R-2 and R-3 districts would be appropriate. The R-1 district is not intended to be subject to major alteration by future amendment except at the fringe of such district, where minor adjustment may become appropriate to permit the reasonable development of vacant tracts for gradual transition from other districts. Within the R-1 district, all buildings, structures or uses having commercial characteristics shall be excluded whether operated for profit or otherwise. Conditional uses and home occupations expressly provided for in this chapter, however, shall be allowed, provided they do not have objectionable characteristics and provided further that they otherwise conform to the provisions of this chapter. (b) Use regulations. (1) Permitted uses. Permitted uses are one (1) single-family dwelling on any lot or parcel. (2) Accessory uses. The following accessory structures and land uses shall be permitted only where clearly incidental to the permitted primary use, except as otherwise permitted herein: a. Servants' quarters, provided said quarters are used only by persons employed on the premises and not for commercial purposes. b. Accessory buildings, including private garages, storage facilities and children's playhouses. c. Private greenhouses and horticultural collections. d. Flower and vegetable gardens. e. The keeping of animals for private, noncommercial use in accordance with chapter 6. f. Home occupations in compliance with this chapter. g. Signs in compliance with chapter 36, article X. h. Swimming pools, tennis courts and similar recreational facilities. (3) Temporary uses. The following temporary buildings, structures and uses shall be permitted where such building, structure or use conforms to the height and yard http://Iibraryl.municode.com/mcc/DocView/I 1170/1/291/301/303 2/19/2007 DIVISION 2. RESIDENTIAL DISTRICTS requirements of this zone: Page 3 of 18 a. Facilities and storage incidental to a construction project and located on the project site. When such facilities or storage are used for construction on lots other than the lots used for such facilities or storage, such use shall maintain the setbacks required in this zone. b. Model home or subdivision sales offices when located in model homes subject to the approval of the planning director, and subject to the following provisions: 1. Such model homes or subdivision sales offices shall be located in a subdivision which is owned by or held in trust with the subdivision developer proposing to erect a model home or proposing to operate the sales office. 2. Subdivision sales offices or model homes shall be permitted not to exceed thirty-six (36) months from the granting of such temporary use by the planning director. 3. The board of adjustment may grant not more than one (1) use permit to extend the time limit allowed in item 2, above, not to exceed an additional thirty-six (36) months. 4. The subdivision sales office shall be removed and the model homes shall be discontinued as a model home on or before the termination date set forth in item 2, above or upon expiration of the extension granted by the board of adjustment pursuant to item 3, above, or after six (6) months following sale or occupancy of all lots in the subdivision other than the model homes, whichever occurs first. 5. For the purpose of items 1, and 4, above, "subdivision" means all land included within a plat submitted to the city. c. Garage sales (not to exceed two (2) a year and two (2) days for each event). (4) Conditional uses. The following uses may be permitted in this zone subject to the approval of a condition use permit and all required showings and conditions thereof: a. Churches and other religious institutions and their accessory buildings and uses. b. Educational institutions, including but not limited to colleges, universities, public and private elementary, junior or senior high schools and their accessory buildings and uses. C . Public utility buildings and facilities when necessary for serving the surrounding area, provided that no public business office and no repair or torage facility are maintained therein. d. Municipal or governmental recreation use, including public parks, playgrounds, tennis courts, golf courses, community centers, fire stations, museums, libraries and other similar uses. e. Country club, golf course, swimming pool or other private recreational uses usually associated with or incidental to a social country club or subdivision association operated for mutual recreation for the members, and not as a business for profit. f. Group care facilities. g. Fire station. http://Iibraryl.municode.com/mcc/DocView/i 1170/1/291/301/303 2/19/2007 a. W? I 11 4:06 Pm aj r4i 1i 4.00 PA January 10, 2006 To: Members of the Little Rock Planning Commission My wife and I purchased 9 acres out Colonel Glenn Road in 1975. At that time only University Avenue was open as 1-430 was not yet complete. We both worked in town but desired to live in a rural area to have a large garden and take care of the pets we adopted from the Humane Society of Pulaski County where I was president at that time. We built our home about 100 yards off Colonel Glenn Road in order to have privacy and security. For 30 years we have maintained, improved and beautified our home and land At our request in 1975, 2 acres of our land along McHenry Credo bank was designated by the US Dept, of Agriculture as a wildlife habitat management refuge. We have honored that designation since that time and are host to all kinds of song birds, blue herons, hawks and land animals. We are very troubled knowing that the industrialization of the adjoining property will disturb the wildlife with noise, lights, traffic, muddying the creek and destroying the lovely spring. The proposed site is only about 100 & from the refuge area of our yard. We are also in danger of floodwaters created by the electric sub- station being just upstream moving and modifying the land and creek. Over the past 30 years my wife and I have invested all of our extra fiords in our house, yard and garden, a small barn and tractor, and a lovely vineyard of muscardirnes. I am active in the Master Gardner program with the University of Arkansas Cooperative Ex- tension Service and benefit heahhwise from my outside work in the yard and garden. Never in our wildest dreams did we consider that anyone or anytiting could threaten to lower our standard of living and devalue our property. It has always been a great comfort in our life to know we could sell our property in our later years for enough to live in a retirement center or retirement home without having to ask for financial assist- ance. Now I'm 78 years old and my wife is 72 and we stand the chance of having much of the value of our property wiped out by the censbuction of a huge unsightly electric substation plant at our side yard view. Who would want this? Our home was designed to take advantage of the south view overcooking McHenry Creek which has for 30 years been a great source of pride to us. If this proposal by Entergy comes to pass it will make us ashamed and sad for anyone to see. Entergy has the option of locations which are in already developed areas along main roads with easy access. Building on the proposed site will destroy an environmentally beautifiil area. Approximately 8 families live in the neighborhood within 200 yards or less of the site and they will all be harmed in various ways mainly being financially. Our research seems to in&caute this would be an unpnxedented site for such a gigantic obtrusive undesirable plant which, while being squeezed onto a 3.28 acre site in the 100 year floodplain, could destroy the entire 7 acres of land adjoining our property. We appreciate your sincere camideration of this matter. Thank you. 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'• r �f.: � 'Y• vti;�i G *rte :�f _ e-•, it ~• "� � - _ � ter ' * '} :e %�'�r_�rJ ...: :�;:W�• y e � s�;' +:. �� - _ � -< - �:�r �� i�•.�y fir:_ �':a:-` .i.yY` ".�Cr �. . _ ..: � _ =�j-.fin.. •-r �""'P� y .M1 i . �� � �. ry i,..� '. . _ -,. - _.. a �rfr.,�� ti� _ e�aii._tir�L'3Q����•t:ty►s?LF�r:•a i 4R, 1 27 ViT .4 al pi or, I o ACO vuumlywi uxamcll d% fertility Hospital. �► in Karim Df Daughtef, 3 Charge Reduced; Harris, Son Get Life Sentences By PROW WAT8W Cower Nwd— Aub— All.— JASPER - Religious cal —bar MrA Goydle a" we teavteted 111neiey No a raiuw 'targe of seedwddepws mArdr s the Waywt of ber dasahlwr tephania Alaaa Ball, S. Thm tuid's body Now found barred In a full grave in a wildorhabl are& near Jaywr April 95. Tbr }uiy of RFs mlix and ate worries dellberafad Ilse- hoop 48 Immuts before reterdag the ver_ dlrt sed I+erexevr>oy11g a step Seiler of live years in prislai (]rcutt Ju6�e Ksanstk 9N1W of I•Oan lk. who coubi nagolne, Al rom three to xo years, postponed [ormal smtrocJag will Tbarasay at the request o! hi ra !bau)k at- torney. Buford Gar#atr of Mud. �Soo 'Jyrosrs "d Judge Snuth polled the r4r'We -mdlvidually aTt>Er the verdlet was furan sand they sgrrred rerdtct, but ane female the }odsl but f pI On LIft Y bad Tettered staff I1011111 rs and told. Jedge Lb" and difficulty AP- B vardiet. wtlb rbc lit - hey had be" glywa: rl■ton bas to be made sry;' Jadp.Willi sold the jury to del$eratoi le j%L Y rlt+awrd with ps rcrdi t leap thae Tits Jury was out P m until 4 par p.m Il wits Ch■M.A wttb murder, wkkk mores me was premeditated. ee murder Is ad pre- 64axirnum 11 dwtlbwnW, Judge load Royal "lints, it, !orris, IR to life is maklmwm sentence we MWdAr Van Harris. is, ty 90 =4= Bra 4= rge afieor Nee tr1a1 sday Harris' slop. al, sed leu seep• n ftarris, n, kad stem plelus The Same kms was aseheseod I yaarx for tie 682 for Illegal ao of Sar sherry. Doug wT� Mille, fold at Cart Harris wised at s ..-mace webs Royal Hants did Lai w lta�411"*Pry killlG m members of the f anrrrk d find in ('heist Tlwwrp W Hay splrlt Inc s nllgkraa e e f rete Mir. sad M ,be law "It eh (������ I rrw.D Harris oral! d Reyd Nar- Ire awd lir nlnfhfr of WlSalew ! !rearm The pnvp wait list d b 1.4wiaane and later "mad to RIM Arkaaawste�M Owe Ataft-ttles ue4 Inlet wise "Y r Bair atwarw Hirth t+M M• •hrlds bel N fie allatMw won 46- for fosse diet dlsrifra t■*aato, e60* Itwtas soon had affaved ue'M'w" hair os. bee A/rt korai Orb Tllerwfwy' ra.we Twt haa_7 fr•rw, a(nl that 9f •w•1 Tambo" - i wtewsrw hw saUraM Me dwahe rawwryt Will lf'P/ s.+••i San •a. lMpr are, low 1k awe Alfalfa lr■e Sas. ram /irrMae 149 .* pews* s.ow remoras f s Inew . aba�esw C#ate K st� torts (Jai UM taw Imp od srwh awe/ wo•r of aAhsdwal� Saw+ a bad 04 w Pse "rMRMN lief nlvkll •esy -nits sal 04 WA'~ 1 Wf dr I the Plano on ih. wadl.w..r M s AN lou+lbw : ria air lb rte w rola/ 0" ::.:�a vcarn --f-On Kises To 8 in Pulaski re%"nf IT Wefflt-darr"*d goods piled outside Kmart store Structures in $11 Minion In Damages IsElimated By MARK OSWALD Of the Gamite Staff The body of a 5•yaar•old toy was found Thursday mgrn,nR near Ronk Creek in smitt,j,"'t Little Rock. bringing the number of confirmed Pulaski County deaths from WedneadayL$ timid, Co eight, and only offirlals later set 311 im Ijon as a "very prelmi inary'• effiIetalr of the property damage fruni the disaster The afftriAk said Thr damages could easily rise to S72 million err more before olferral eVAttAirnal are romplrlf Two persons drowned m Salmi County. pulttoR the record thunder%tormy death tall at to !§tiler and FTre rkpartroehf crews were,Iq conttaue searching Thursday night and today for note pessoaa sl[ll reported minung Po . lice Chlef Walter Id. ISonoyl Slmpson said clill4ren were in, [luded in the number of those who haven't teen located, but he said he was certain Thal marry of the missing would '•luTn up " Sift Remains In Thr worst hit area, vh(re Ruck (:reek rampaged across Kant% Arad. Through Boyle I'ark and 4cra5s Asher Awe,,,, .pmp• erty owners 11fled Ihrnugh the re. Stdf Ph , era t - 1-0- I'll ra, m ,,mes of I#rSar damaged and ifuJrsday affafrtoort. d<#syed st and officio ra wart zo- auk Ruck Flo dplain it semi ng; as the swot len creeks. That Inundated 1be wextirn fart of TM city ifedoes- `i atuie *$s Oe day pawed cmtward en reulr to vc a the ArkSaton Rover a tatro .'� � as°'�ment. which BYBDBI1110M fthrough lr,w-lying devetf OI lk Gritti &&If i areas downstream Hata* was the main nalprii It was only four years agn WodeMday when 1eavy Faro- 1t'�uU�--& !leaded bundreds of hones aM, the-iafry atter Ri bgfarSaw at Utile R=.-=111111101 rk. but two p}_;Sri. wAep rRies across tb%r etwlnolkd by man =11111b rauelry wire furred to ac flbad � tie d^'asu� fk'wdplain rralrrMtans In V!w !Jere of thiwe 1, the dive! for federally su5erdrr:d hood a u is tarsier ' I'Mor. to that ardlna T;a otbwir was ilx ry-no7T Pari= people could build us the Ili parii% left and balloluo an the plain if they wanted to d "W 11" I'D of weeks that btu therr. Roy Beard. Chief of Creek's Ravages Pose Giant Cleanup Task as ►ria fry la crews In only about 4 %.boors TA y and did c:Iy'a pruteciirr reales divcllon, nor rnetude much a the iotrol said "There were a lot of rkarwvsj damage to isatin Little Hxk takenI was a preliminary step Inward Also- drvclopmrnRorfl Ip t had o!P nbumila frdcrrl'illsasfrr aid for cuffed in southwest L11l1e _ A11tuY RLaM.tial dldn - Z a Floud Re Malt-oS flood pruttenw. hemail fprfe 'fir preblrpts have now bran err• 0"f age aA. PA. 11A _IM -Rid i7ir f;um Sprinpsi Mfadowrbfl subdivupns are amply of plates that now k flrxiding problems where n used to exist. he said Total Exceeded the ■trickes ores, Governor Pryor. w1M firs Raked Pmtdm Carter to dexlsre it dlaarter No, copal of the poethnit. was to meet a( f a.m tealsir with A Lean, led by Joe WIniLler ul D011as; Yeyr�rsa) director of tie rrdrrar Durtte'r ASahtaare AdminWrattoo Aid Sas bring amw not only ftw NI"Iti County. bat alb for !tended parts of isllne Aral team Cownike # the lifw'y FntThat Alilniran lswranry Ano- By STFAM HAYS Of fir Gillette Staff FIFU [JN Hfwrdrrrfa of Thr Shannon ifilf. mtemp dryparn�jrg rialhat e■tlrnatfa Irswrrd tAsssa �J"� 'rrf'TFlI7" !e the !sale li m k arra of 05 mit +—rsiJIDtoCl, ..- .kk tnrfwa niiala lens mw ire ludieyt knr taaa*t ,,.s. atihdiv M ref Montero which war hArd hit for finding Wedriealfay. Sar n ■ ny. buer ryp�}�rt►slts a iced by federal flmd insurance .. jkMd.Jhal 'W iia arerar _ I orad to tapir him m thiol niritning in sal itv �t may. �r,ll Ilappra nilly oma• San rvv.tr I meld Identified Wild srld tee fk11A the 4iwn1 task of r leaning up TAe aro! F` n■i; 7har IN 041Tldal orae} The child who was lmurd flans State 1'ollr. an4 !lxrlyl4l tm urdamwn kad r•w4,00l rift the !m 01—at a, a ere river Sap Mrt only rlrt Writ" N■y hal wn{• day w+a trlrwlHied w 1'arle I,,& ;Ili 4 in ­"Fe­"Fep• e ehn .wof IMT,Aw,tl S of ,lie rnae .... -- M In prml .ghtwr. and '^•. wI'"� .^M rntf avoir•_ I'•,1„r Lf Y. J 44" Irani Ialerfarrna r.ra fN ! k^.4•wla a�M Saha rrwwb lewd A iln.rl•�p•r • an !!fm lnedi My. a••af ,Mee la Iwai Para we'. it.neA i., ..,rµ N. 4#e bstwe .n Yi riitl'�oH , a rn lana m wldrffwei� �Irwd •n r• oke n d�alttodoo" ss teleidserle r. IMI o:., IF—$ trf W the son .ani. 41141h d Ash" ow for ;Brrd.m lot nwld a 7 logosInd erY !Offer t'reek rhrrh awns{aaa.awN.rhnafa .. 14 ion sf�f 4t trft Ilk our B'lyliff"•� It..k+iriw wiwalloutiaislh Pomp Me aallafl. NO IM sLa �• 11a, -6 w.nt Ihrw� the h•.1, rat fn1rM ■ 1 •-� +brier �� H11ef� • wfrell wr.sW ,., •n.r.'Sar•. err. Y. reseal ra rim. a.m. A— e.--- — Jam.._ . _.� .. -- MMIw word iMrfinpeu.sr ,n land ait.�a+ Afl .A int dra4 Sar.. Irw,rrt Page 1 of 2 From: Jem, Fos-n,--e— Dae.- 11/2-5/05 08:37:31 1� J To: Sue Ann X Ho\Nard Stephen; Saajeck Sue Ann and Howard 11/25/05 Sue Ann and Howard, It was good to hear from you the other day. As I mentioned, I am happy to provide you any information that I can ahoq the flooding in the area where I lived with Uncle Louie and Aunt Beede (Louis and Velera Fleschner). As you may remember, I came to live with them on Lawson Road in the summer of 1964. The address was 1100 Lawson Road at that time. However, I believe that the address was changed later. The 1100 part meant that the home was 11 miles from the State Capitol. I lived with them until I graduated from high school in 67 and went off to college. However, I still called this home until I was marred in 73. I continued to visit them and call them family until each passed away. They were my family and I was very appreciative of the fact that they took me in after my mother's death. I know of three major floods in the area. I am certain that there were many over the years, but these are the only ones that I have recollection of directly, either through my uncle's "story telling," for he was a great historian, or through my personal experience. I can also recall my uncle's worry and constant vigilance during my years with them - during the fall and spring rains. He was constantly on alert during these times because of his past experiences with McHqnr y Creek and the small creek behind the house. As I recall, this creek was called Coleman or Colburn Creek. It was mostly a dry water stream — only flowing after a rain. The first flood that I am aware of was through Uncle Louie's experience. The flood took place in the late 40's or early 50's. He told of hearing a thunderous roar in the middle of the night only to get out of their home in time to see a wall of water travel down Creek like a steam roller. He told of going down to the Mowery's after the warmer pass o c ec —on—ffi—em—.-When he arrived at their place he found that the area had been flooded even to the point that the chickens in the Chicken House had drowned. He told of he and Aunt Beede helping the Mowery's until early morning light cleaning and processing all of these chickens to keep them from going to waste. The second flood that I am aware of happened to me pmmWI . I do not recall the year, but I was in high school by this time. I recall a heavy rain for several days it seems. When the school bus pulled up to let me off at the house the creeks were completely out of their banks. At this time the water from McHenry Creek was just under the bridge touching the steel support beams. I waded through water in the driveway that was approx. 4 feet deep. The water was flowing fast *ough the field beside the and 11/25/2005 Page 2 of 2 into McHenry Creek which was also swollen out of its banks. The water was up to our home, but not in it. I remember seeing water all over the fields and coverin that whole area. The third time that I remember flooding I was married and living away from the area. When we talked you advised that it was in 78. This is very likely. Anyway, I was informed about the impact of the flood on Uncle Louie after the fact. Actually, I had called to find out how he was fairing because of the rains and flooding in other areas around the city. This was on the news. I discovered that he had been taken from his home in boat due to the high flood waters which were fast moving and very dangerous. It was at this time that the water got into the home which was about 4 feet off of the ground at the closest point to McHenry Creek. The water also completely flooded his car rendering it unusable. Even after considerable work on the vehicle it never ran properly again after that. One added note. The levy that is on the property, also at the tree line was built there by Uncle Louis. It was there to help detour the water now that comes out of the field during a flood in that area. I hope this info helps. It is what I recall to the best of my ability. Take care and good to hear from you. 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GeorgeP123%aol.com To: naltiple recipients of list cemf-l�il.11ion.orq> Stony Point, MY (717/97) She continued_ Planning Board Public Hearing for the proposed Orange a Rockland Electrical substation which iras bp -d t the Farley Biddle School on Monday night and was attended by approximately 50 Stony Point residents who overubel-In gly denouced the oompanies proposal to pinsce their electrical substation near hoes in the residential area of West )lain Street and Crickettown Road. The Public Hearing was kept open because sufficient questions ware raised and have not been answered regarding safety (increased eaf exposure, danger of fire and explosion), noise (increased noise emitting from transformrers, cooling fans, etc.), potential of expansion plans and loss of property value. NYC firefighter and batallian commander, and Stony Point resident, Kevin /o'r,aefe raised several important questions to both the Planning Hoard on 1/ Monday and the Zoning Board last Tuesday aiot regarding the absence of .& firefighting plan and whether the Stony Point fire department has the 1__ �cnrer 2. Equipment 3. Katerials to fight an electrical substation fire. TV and newspaper reports were shorn -hs examples froms zecent subatatiii7fixV in Yonkers. MY and Elisabeth, NJ to demonstrate the tremendous difficulty - that substation fires present. The Yonkers Fire Department, a full time professional fire department, needed notal aid manpower, equipment and foam _ from New York City in order to battle the blazes that raged for alwast 4 hours before the fire was bzought under cont;QI. Both the Yonkers, MY and Elizabeth, NJ were only two of the tmost recent fires that originated froze electrical substations that were located in an industrial, not at resident&:!�k area. Oi_R'_s Garnerville electical substation exploded in 1993 causing lard pieces of the substation to pierce nearby hams and land in nearby swinminq. _pools. Luckily no one rats injured because the explosion Occurred at San when_ no one was outside. until these and other safety and environmental questions were raised by members of the Stony Point Action cosmi.tteee for the Environment (SPLICE)j, OtR did not even consider preparing a fire protection plan for the proposed substation_ As a result of the questions that were raised, OKR and tha Point Planning, Board has non asked the Stony Point lire Departsrent to develop a plan or determine if such a plan is even workable. Stony Residents from neoby Old Tappan, Nj also testified and presented evidence that A wi O&A builT I'Evr sub!''ZBtiao near their ha&m i. they lied out the amount of noise and disruption it would create in their lives, The steady hum sound steeps them &%Wke at night, has had effects an their health and has devalued their homes, making it very difficult to enjoy their home of _pgll their pzcpertZ, While SPACC recognize the need for far o&R to provide electxical service to Stony point, we have strongly oppcyaed the placement of AD electri+s�— substation in a residential area fox the past five years because rya R&- c�paitri�i . th 9LlX- Paint Zoninll and hist has stated that they cannot quarentee the safety of itss—operatfau or prOtectiae of nearby residents. . The Public Heating was kept open pending the receipt of the proposed firefighting plan from oaR and the Stony Point Fire Department - For more information, contact: M*p //woww.'w avmonde-CgVwcM vwicmf-U1u11997/0&R F1ecoicgi-swam-Pu ic4Fka... IMAM OFFICE OF THE CITY ATTORNEY 500 West Markham, Ste. 310 Little Rock, Arkansas 72201 Amy Beckman Fields Deputy City Attorney September 23, 2009 VIA HAND DELIVERY Honorable Ellen Br ey Pulaski Conn ircuit Court, 16th Division 401 W. am, Suite 310 Littl ock, AR 72201 Telephone (501) 371.4527 T-elecopier-(501)3 1467-5---- -- Re: Tammy McLain v: City of Little Rock Planning Commission Pulaski County Circuit Court No. CV -2008-6428 Dear Judge Brantley: Please find enclosed a file -marked copy of the City's motion for judgment notwithstanding the verdict and brief in support, which have been filed this date. After the time to respond has expired, the City would request a brief hearing on its motion. Thank you for your consideration. Sincerely, Amy Bee ields Deputy City Attorney FIX=Rai Enclosure cc/enc: Randy Satterfield (via email and U.S. mail) Web Darling (via e i and U.S. mail) Tony Bozynski IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS 16TH DIVISION TAMMY MCLAIN, FAITHANN GLIDDEN, MICHAEL L. GLIDDEN, GARY W. BROWN, DIANE DAVIS, TRUDY CAMPBELL, MARILYNN M. BAEYENS, ROY R. JOLLEY, CAROLYN S. JOLLEY, SUE ANN STEPHENS and HOWARD STEPHENS Individually and as Trustees of THE HOWARD GRANTLAND STEPHENS AND SUE ANN STEPHENS JOINT REVOCABLE TRUST DECLARATION DATED THE 28TH DAY OF JULY, 1997 VS. CASE NO. CV -2008-6428 CITY OF LITTLE ROCK PLANNING COMMISSION ENTERGY ARKANSAS, INC. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT FLECi 09.123/ 2009 110'. 17.34 ,Pat 078rien Pula_•ni 'ircuit 'lark APPELLANTS APPELLEE INTERVENOR Comes Appellee, City of Little Rock ("City"), by and through its attorneys, Thomas M. Carpenter, City Attorney, and Amy Beckman Fields, Deputy City Attorney, and for its Motion for Judgment Notwithstanding the Verdict, states: 1. Appellants appealed the City's approval of a preliminary plat and subdivision application and the City's approval of a revised conditional use permit allowing Intervenor Entergy Arkansas, Inc. ("Entergy") to construct an electrical substation on property located at 14250 Colonel Glenn, Little Rock, Arkansas. 2. On August 18 to August 20, 2009, this case was tried to a jury. At the conclusion of the Appellants' case, the City moved for a directed verdict on the issue of the approval of the preliminary plat and subdivision. The City renewed its motion at the conclusion of the City's case, as well as at the close of all the evidence. The Court denied the City's motion for directed verdict. 3. After due deliberation, the jury returned two verdicts. With respect to the approval of the revised conditional use permit, the jury found in favor of the City and Entergy. With respect to the appeal of the approval of the preliminary plat and subdivision, the jury found in favor of Appellants. 2009. 4. A judgment was entered in accordance with the jury's verdict on September 22, 5. This motion addresses only the verdict in favor of the Appellants on the appeal of the approval of the preliminary plat and subdivision application and that portion of the judgment in favor of Appellants on the appeal of the approval the preliminary plat and subdivision. 6. Pursuant to Ark. R. Civ. P. 50(b), the City moves that the verdict and judgment in favor of Appellants on the appeal of the approval of the preliminary plat and subdivision be set aside and that judgment be entered in accordance with the City's motion for directed verdict. 7. There is no substantial evidence to support the jury's verdict in favor of Appellants on their appeal of the City's approval of the preliminary plat and subdivision application and the City and Entergy are entitled to judgment as a matter of law on the appeal of the approval of the preliminary plat and subdivision application. 8. The City's memorandum brief accompanies this motion. WHEREFORE, Appellee, City of Little Rock, prays that its Motion for Judgment Notwithstanding the Verdict be granted; that judgment be entered in favor of Appellee and Intervenor on the Appellants' appeal of the City's approval of the preliminary plat and subdivision application; and for all other just and proper relief to which the City may be entitled. -2- Respectfully Submitted: Thomas M. Carpenter City Attorney By: &myvec fields (89058) Deputy City Attorney City Hall — Suite 310 500 West Markham Little Rock, AR 72201 (501) 371-4527 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading has been served upon G. Randolph "Randy" Satterfield, Satterfield Law Firm, PLC, P.O. Box 1010, Little Rock, Arkansas, 72203, and Webster Darling, Entergy Services, Inc., P.O. Box 551, Little Rock, Arkansas, 72203-0551, by placing the same in the U.S. Mail, postage prepaid, this �� of September, 2009. Amy Beckmak3elds -3- IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS 16TH DIVISION TAMMY McLAIN, FAITHANN GLIDDEN, MICHAEL L. GLIDDEN, GARY W. BROWN, DIANE DAVIS, TRUDY CAMPBELL, MARILYNN M. BAEYENS, ROY R. JOLLEY, CAROLYN S. JOLLEY, SUE ANN STEPHENS and HOWARD STEPHENS Individually and as Trustees of THE HOWARD GRANTLAND STEPHENS AND SUE ANN STEPHENS JOINT REVOCABLE TRUST DECLARATION DATED THE 28TH DAY OF JULY, 1997 VS. CASE NO. CV -2008-6428 CITY OF LITTLE ROCK PLANNING COMMISSION ENTERGY ARKANSAS, INC. BRIEF IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT Introduction and Factual Background APPELLANTS APPELLEE INTERVENOR This case involves an appeal pursuant to Ark. Code Ann. § 14-56-425 of two separate but related administrative actions taken by the City of Little Rock ("City"). - Members of the Minton family own property located at 14250 Colonel Glenn Road. The property is outside the City limits, but is within the City's extraterritorial planning jurisdiction. The Mintons authorized Entergy Arkansas, Inc. ("Entergy") to make two applications to the City of Little Rock Planning. Commission on their behalf. The ultimate purpose of the applications was to permit Entergy to construct and operate an electrical substation on part of the property at issue in this case. Entergy, on behalf of the owners, applied for approval of a preliminary plat, which would permit subdivision of the subject property into three lots. In connection with the application for approval of the preliminary plat, Entergy sought two variances of the City's ordinances: (1) the requirement of a certain depth to width ratio for lots within a subdivision, and (2) the requirement that all lots within a subdivision have public street frontage. Entergy also sought a deferral for construction of street improvements required by the City's boundary street ordinance. The second application was for a revised conditional use permit to allow Entergy to construct and operate an electrical substation on Lot 3 of the subdivision. Both applications were approved by the City. Neighboring property owners opposed both the application for approval of the preliminary plat and subdivision and the application for a revised conditional use permit. The neighboring property owners, who are the Appellants in this case, brought this action appealing the approval of the preliminary plat and subdivision and the approval of the revised conditional use permit. This case was tried to a jury from August 18 to August 20, 2009. At the conclusion of the Appellants' case, the City moved for a directed verdict as to the issue of the preliminary plat and subdivision on the basis that there was no evidence from which the jury could find that the City failed to substantially comply with its own ordinances in approving the preliminary plat and subdivision. The City again moved for directed verdict on the same basis after the City rested and at the close of all the evidence. The Court denied the City's motion for directed verdict. At the conclusion of the trial, Appellants' appeals of the two approvals were submitted to the jury. There were two instructions given to the jury that related to the preliminary plat and subdivision. The jury was instructed that "the plaintiffs [appellants] have the burden of proving, by the proponderance (sic) of the evidence the following matters: 1. That the City of Little Rock failed to substantially comply with its ordinances in approving the preliminary plat for the subdivision..." The other instruction that related to the preliminary plat and subdivision stated, "The City of Little Rock has granted a subdivision application and preliminary plat submitted by -2- 7 Intervenor, Entergy Arkansas, Inc. The Plaintiffs have appealed the approval of the subdivision application and preliminary plat. It is your duty to determine hwether (sic) the subdivision application and preliminary plat should have been approved. If you find from the evidence in this case that Plaintiffs have proved by a preponderance of the evidence their claim that the preliminary plat and subdivision application should not have been approved, then your verdict should be for the Plaintiffs on that issue; but if, on the other hand, you find from the evidence that this proposition has not been proved, then your verdit (sic) should be for the City of Little Rock and Entergy Arkansas, Inc. on that issue." The jury was given two separate verdict forms, one with respect to the preliminary plat and subdivision, and one with respect to the revised conditional use permit. After deliberating, the jury returned a verdict in favor of the City and Entergy on the appeal of the revised conditional use permit. The jury returned a verdict in favor of the Appellants on the appeal of the preliminary plat and subdivision approval. There is no substantial evidence to support the jury's verdict in favor of Appellants on their appeal of the City's approval of the preliminary plat and subdivision application. The City and Entergy are entitled to judgment on the appeal of the approval of the preliminary plat and subdivision application as a matter of law. Armament "A motion for judgment notwithstanding the verdict is technically only a renewal of the motion for directed verdict made at the close of the evidence..." Advanced Environmental Recycling Technologies, Inc. v. Advanced Control Solutions, Inc., 372 Ark. 286, 295, 275 S.W.3d 162, 170 (2008). A trial court may enter a judgment notwithstanding the verdict (JNOV) "if there is no substantial evidence to support the jury verdict, and the moving party is -3- entitled to judgment as a matter of law." Aon Risk Services v. Mickles, 96 Ark. App. 369, 375, 242 S.W.3d 286, 291 (2006). "Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other." Advanced Environmental Recycling Technologies, 372 Ark. at 297, 275 S.W.3d at 171. A city's actions are not invalid when the city has substantially complied with the procedures set forth in its own ordinances. Mings v. City of Fort Smith, 288 Ark. 42, 46, 701 S.W.2d 7051 707 (1986). The Arkansas Supreme Court has addressed a city's obligation to substantially comply with its own ordinances, holding that "[a] city is required to comply with the mandatory procedural rules of its own municipal ordinances." Taggart & Taggart Seed Co., Inc. v. City of Augusta, 278 Ark. 570, 573, 647 S.W.2d 458, 459 (1983). The Court went on to state that "those things which are of the essence of the thing to be done are mandatory, while those not of the essence of the thing to be done are directory only." Id., 378 Ark. at 574, 647 S.W.2d at 460. The jury in this case was instructed with respect to the preliminary plat and subdivision that the Appellants had the burden of proving that the City of Little Rock failed to substantially comply with its ordinances in approving the preliminary plat for the subdivision. During the course of the trial in this case, Appellants attempted to show that the City failed to substantially comply with its ordinances in approving the preliminary plat and subdivision. There was no substantial evidence presented to the jury from which the jury could find that Appellants met their burden of proving that the City failed to substantially comply with its own ordinances in approving the preliminary plat and subdivision and the City and Entergy are entitled to judgment as a matter of law. There was evidence presented at trial that an application for approval of a preliminary plat or subdivision must be made by the property owners or the owners' authorized agent. During the trial, the Court granted the motion for partial summary judgment filed by the City prior to the trial, finding that the property owners (the Mintons) had authorized Entergy to act as their authorized agent for the purpose of the application for approval of the preliminary plat and subdivision. The Court additionally granted the City's motion for partial summary judgment with respect to the boundary lines of the property, finding that the property depicted on the preliminary plat conforms to the boundaries of the subject property as established in a previous quiet title action involving the property. Appellants presented evidence that the City's ordinances require submission of a draft bill of assurance with the preliminary plat and subdivision application. A draft bill of assurance, submitted by Entergy, was admitted into evidence in this case. Appellants introduced and the Court admitted into evidence a certified copy of the proceedings before the City related to the preliminary plat and subdivision. The draft bill of assurance submitted by Entergy is contained within that exhibit. Later, during jury deliberations, the jury asked to see a copy of Little Rock Code § 31-93. A copy of that code section was provided to the jury. Little Rock Code § 31-93 is entitled "Bill of assurance" and provides: "The draft submitted shall use the format provided within the sample draft provided by staff. This format will ensure that the proposed bill of assurance separates those provisions required in the plat by ordinance and those provisions desired by the developer." No reasonable juror could conclude that the draft bill of assurance submitted by Entergy was not the same as the sample draft provided by staff and referred to in Little Rock Code § 31- 93. It is clear from the formatting that Entergy used the sample format provided by staff — the -5- header on the document is the same as all other City documents contained within the subdivision file. Each and every substantive provision regarding the covenants and restrictions to be contained in an eventual final Bill of Assurance are contained within the draft bill of assurance submitted with the application. Tony Bozynski, Director of Planning and Development for the City of Little Rock, testified that bills of assurance are not finalized until approval of the final plat. The draft bill of assurance submitted by Entergy accomplished the purpose of the ordinance: it included the provisions required by the City, as set forth in the draft form prepared by City staff and submitted by Entergy, and established that there were no other provisions that the developer wished to include in the bill of assurance that would ultimately be filed upon approval of the final plat. There is no substantial evidence by which the jury could find that the City failed to substantially comply with its ordinance requirements with respect to the bill of assurance. As an initial matter, the requirement of submitting a draft bill of assurance is not "of the essence of the thing to be done" in connection with applying for approval of a preliminary plat and is therefore not mandatory. Even if the Court determines that submitting a draft bill of assurance is mandatory, the draft bill of assurance that is required to be submitted with the preliminary plat was in fact submitted by Entergy. The City substantially complied with its own ordinances in accepting the draft bill of assurance and there is no substantial evidence from which the jury could reasonably conclude that the City did not. Appellants introduced evidence that, pursuant to the City's ordinances, an applicant may only request two deferrals of consideration by the Planning Commission of an application for approval of preliminary plat and subdivision. It was established through Mr. Bozynski's testimony and undisputed that there were no deferrals requested with respect to the preliminary plat and subdivision application at issue in this case. Appellants introduced evidence that the City generally requires lots within subdivisions to have public street frontage. However, Mr. Bozynski testified that, while this is the general rule, the City's ordinances also provide that an applicant may request a variance from this requirement. Mr. Bozynski testified that Entergy requested a variance of the public street frontage requirement and that the Planning Commission approved the variance, as allowed by ordinance. Mr. Bozynski additionally testified that the Planning Commission approved a variance of lot width to depth ratio and that this variance was allowed and approved in compliance with the City's ordinances. There was absolutely no evidence with regard to the variances from which the jury could find that the City failed to substantially comply with its own ordinances in approving the requested variances. Evidence was introduced during the trial that the City's boundary street ordinance generally requires a developer - who subdivides property to construct street improvements. However, Mr. Bozynski testified that the City's ordinances provide a mechanism by which an applicant can request a deferral. Such a deferral was requested in this case. The Planning Commission recommended approval of the deferral, and the Board of Directors passed an ordinance amending the City's Master Street Plan to defer construction of the street improvements for five years, or until development of adjacent property, whichever comes first. Again, Mr. Bozynski testified that this deferral was accomplished in compliance with the procedures set out in the City's ordinances and Appellants introduced no evidence to the contrary. -7- i There was testimony during the trial that the approval of the preliminary plat and subdivision approval was never submitted to the Board of Directors. Mr. Bozynski testified that, pursuant to the City's ordinances, a preliminary plat and subdivision approval are final at the Planning Commission level and are appealable directly to Circuit Court. Mr. Bozynski also testified that variances that are granted as part of the preliminary plat and subdivision approval process are final at the Planning Commission level unless they are appealed to the Board of Directors. However, he testified that the Appellants in this case did not appeal the variances to the Board of Directors. The preliminary plat and subdivision were not presented to the Board of Directors because the ordinances governing the procedures for approval of preliminary plats and subdivisions do not provide for submitting these approvals to the Board. There was no evidence before the Court from which the jury could find that failure to present the preliminary plat and subdivision to the Board constitutes noncompliance with the City's ordinances. Pursuant to the instructions given to the jury, in order to prevail on their appeal of the approval of the preliminary plat and subdivision, Appellants were required to prove by a preponderance of the evidence that the City failed to substantially comply with its own ordinances. There not only was an absence of substantial evidence from which the jury could have concluded that the City failed to substantially comply with its own ordinances in approving the preliminary plat and subdivision, there was a complete absence of any evidence from which the jury could have reached such a finding. There is nothing in the record that supports a finding that the City failed in any way to comply with its own ordinances. Appellants had the burden of proof on this issue. Appellants failed to meet their burden and the City is accordingly entitled to judgment as a matter of law on the appeal of the approval of the preliminary plat and subdivision. Conclusion The City is entitled to judgment as a matter of law. The City respectfully requests that the Court enter judgment notwithstanding the verdict on Appellants' appeal of the City's approval of the preliminary plat and subdivision application at issue in this case. Respectfully Submitted: Thomas M. Carpenter City Attorney By: y Beckrn ields (89058) Deputy City Attorney City Hall — Suite 310 500 West Markham Little Rock, AR 72201 (501) 371-4527 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading has been served upon G. Randolph "Randy" Satterfield, Satterfield Law Firm, PLC, P.O. Box'1010, Little Rock, Arkansas, 72203, and Webster Darling, Entergy Services, Inc., P.O. Box 551, Little Rock, Arkansas, 7220 -OSS I, via e-mail and by placing the same in the U.S. Mail, postage pre aid, this 5!Z�--4- day of September, 2009. Amy Bec ields a - OFFICE OF THE CITY ATTORNEY 500 West Markham, Ste. 310 Little Rock, Arkansas 72201 Amy Beckman Fields Deputy City Attorney September 22, 2009 W/Law bDarling ALaw Ersrices, c. P51 L 72203-0551 Gh "Randy" Satterfield SLaw Firm, PLCP.010 Little Rock, AR 72203 Telephone (501) 371.4527 Telecopier (501) 371.44675 Re: Tammy McLain v. City of Little Rock Planning Commission Pulaski County Circuit Court No. CV -2008-6428 Dear Web and Randy: Please find enclosed file -marked copies of the judgment and order granting motion for partial summary judgment in the above -referenced matter. If you have any questions, please let me know. ABF:dab Enclosure cc/enc: Tony Bozynski Sincerely, I Amy Beckman Fields Deputy City Attorney IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS 16TH DIVISION TAMMY McLAIN, FAITHANN GLIDDEN, MICHAEL L. GLIDDEN, GARY W. BROWN, DIANE DAVIS, TRUDY CAMPBELL, MARILYNN M. BAEYENS, ROY R. JOLLEY, CAROLYN S. JOLLEY, SUE ANN STEPHENS and HOWARD STEPHENS Individually and as Trustees of THE HOWARD GRANTLAND STEPHENS AND SUE ANN STEPHENS JOINT REVOCABLE TRUST DECLARATION DATED THE 28TH DAY OF JULY, 1997 VS. CASE NO. CV -2008-6428 CITY OF LITTLE ROCK PLANNING COMMISSION ENTERGY ARKANSAS, INC. FILED 09/22/2009 11:15:31 Fat O'Brien Pulaski Circuit Clerk ORI B9 APPELLANTS APPELLEE. INTERVENOR On the 6"' day of August, 2009, came to be heard Appellee's Motion for Partial Summary Judgment and the Court having heard arguments of counsel, reviewed the pleadings filed herein, and otherwise being well and sufficiently advised in the law and the facts finds as follows: 1. That this Court has jurisdiction over the parties and subject matter in this case. Venue is proper in this Court. 2. That the record title owners of the property located at 14250 Colonel Glenn Road, Little Rock, Arkansas comprising the Minton Dairy Subdivision authorized Intervenor, Entergy Arkansas, Inc., to act as their agent for approval of the subdivision and preliminary plat of the subject property. 3. That the property described and depicted on the preliminary plat of the Minton Dairy Subdivision which was approved by the City of Little Rock on May 8, 2008, conforms to the boundaries of the subject property established by decree entered September 22, 2007, in connection with the quiet title action styled Quinea Daniel Minton, et al. v. Howard Stephens, et al., No. CV 06-13229. 4. The Court, therefore, grants Appellee's Motion for Partial Summary Judgment which was filed in this case on July 2, 2009. IT IS SO ORDERED the day of .9zgw;-!� 2009. Prepared by: Amy Beckmanrlds (89058) Deputy City Attorney 500 W. Markham, Ste. 310 Little Rock, AR 72201 (501) 371-4527 -2- The Honorable Ellen B. Brantley Pulaski County Circuit Judge IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS 16TH DIVISION TAMMY McLAIN, FAITHANN GLIDDEN, MICHAEL L. GLIDDEN, GARY W. BROWN, DIANE DAVIS, TRUDY CAMPBELL, MARILYNN M. BAEYENS, ROY R. JOLLEY, CAROLYN S. JOLLEY, SUE ANN STEPHENS and HOWARD STEPHENS Individually and as Trustees of THE HOWARD GRANTLAND STEPHENS AND SUE ANN STEPHENS JOINT REVOCABLE TRUST DECLARATION DATED THE 28TH DAY OF JULY, 1997 VS. CASE NO. CV -2008-6428 CITY OF LITTLE ROCK PLANNING COMMISSION ENTERGY ARKANSAS, INC. JUDGMENT FILED 09/22: 2009 11:15:05 P•3t O'Briff', Pul- �4i Circ t Clerk CRI 8i• � APPELLANTS APPELLEE INTERVENOR On August 18 through August 20, 2009, this cause came on to be heard. Appellants appearing in person and by their attorney, G. Randolph "Randy" Satterfield, Appellee appearing by its attorney, Amy Beckman Fields, and Intervenor appearing by its attorney, Win. Webster Darling. All parties announcing ready for trial, a jury was duly selected, empaneled and sworn to try the issues of fact arising herein. After hearing the statements of counsel, the testimony and evidence on behalf of all parties, the instructions of the Court and the arguments of counsel, the jury retired, and after due deliberation, returned in open Court the following verdicts: "On Plaintiffs' appeal of the City's approval of the Intervenor Entergy Arkansas, Inc.'s application for a Revised Conditional Use Permit, we find in favor of City of Little Rock and Entergy Arkansas, Inc. /s/ Thomas J. Hart, Foreman /s/ Brenda J. Hodges /s/ Jacqueline B. Hall /s/ Charlotte Johnson /s/ Rita Clark /s/ Bill Harrell /s/ Dorothy Junkin /s/ Keith Danforth /s/ Lynda G. Anderson" "On Plaintiffs' appeal of the City's approval of the Intervenor Entergy Arkansas, Inc.'s subdivision application and preliminary plat, we find in favor of Plaintiffs. /s/ Debra Latture /s/ Jacqueline B. Hall /s/ Rita Clark /s/ James T. Harrison /s/ Charlotte Johnson /s/ Linda Duelmer /s/ Brenda J. Hodges /s/ Bill Harrell /s/ Dorothy Junkin" Based upon the verdicts of the jury, it is: ORDERED, ADJUDGED, AND DECREED that judgment is hereby entered in favor of the City of Little Rock and Entergy Arkansas, Inc. on Appellants' appeal of the approval of Entergy Arkansas, Inc.'s application for a Revised Conditional Use Permit to construct and -2- operate an electrical substation on property located at 14250 Colonel Glenn Road, Little Rock, Arkansas. It is further ORDERED, ADJUDGED, AND DECREED that judgment is hereby entered in favor of Appellants on Appellants' appeal of the approval of Entergy Arkansas, Inc.'s application for approval of a preliminary plat and subdivision located at 14250 Colonel Glenn Road, Little Rock, Arkansas. Prepared By: Amy Beckman -adds Deputy City Attorney 500 West Markham, Suite 310 Little Rock, AR 72201 (501) 371-4527 p CA -3- U �A�A ELLEN B. BRANTLEY CIRCUIT JUDGE DATE iSEP 212009 R2 PROPOSED LOCATION OF NEW ENTERGY R2 SUBSTATION w Ari i Vicinity Map �m PCD _a R2 AF 0 R2 R2 ,----------- -s�--- R2 �i R ! , gyp. • � / �': ' R ' 1 ' 1 � � 1 r Zoning Case: Z-7980 N Location: 14,250 Colonel Glenn Road Ward: 7 PD: 18 CT: 42.07 0 100200 400 Feet TRS: T1NR13W19 � r j CI01p 1 o ` N � o Existing Structures I I I c, Tract 1 j Tract 2 2.41 Acres y 2.10 Acres co LO -[ 25' L-�_ Ingress / Egress Easement 30.0' 0 v Proposed Location Of New Entergy Substation 3.28 Acres EO IT LO d- 181.27' 175.00' Tract 3 CE Existing Wood Line 355.66' NORTH Z-7980 40 14,250 Colonel Glenn Road •Conditional Use Permit City of Little Rock Department of Planning and Development Planning 723 West Markham Street Zoning and Little Rock, Arkansas 72201-1334 Phone: (501) 371-4790 Fax: (501) 399-3435 or 371-6863 Subdivision May 17, 2006 Bill Stephens # 7 Wingfield Circle Little Rock, AR 72205 Re: Entergy Substation Conditional Use Permit Dear Mr. Stephens: On May 11, 2006, the Little Rock Planning Commission approved your application for a Conditional Use Permit to allow an Entergy Substation to be built at 14250 Col. Glenn Road. That approval was granted subject to compliance with conditions which are outlined in the Planning Commission minutes. This is an approval for the use only and was the first step in the process. Prior to construction, plans must be submitted and approved for compliance with the approved conditional use permit. All permits required for implementation of the conditional use permit must be obtained within three (3) years of the date of the Commission's approval or the conditional use permit shall be revoked. Please be advised that there is a thirty (30) day appeal period and any permits obtained or work performed during this thirty (30) day period is at the applicant's own risk and may be voided by the appeal process. If you have any questions, please contact me at 371-6817. Sincerely: Dana Carney, Zoning and Subdivision Manager Legal Description TRACT 3 A part of the Northeast Quarter of Section 19, T -1-N, R -13 -West, Pulaski County, Arkansas, and being more fully described as follows: Commencing at the Southeast Corner of said Northeast Quarter of Section 19 and run thence North 88 deg. 19 min. 03 sec. West along the South line of said Northeast Quarter of Section 19 for a distance of 393.00 feet to the Point of Beginning of the land herein described: thence continuing North 88 deg. 19 min. 03 sec. West along the South line of said Northeast Quarter of Section 19 for a distance of 355.66 feet; thence North 01 deg. 54 min. 41 sec. East for a distance of 401.80 feet; thence South 88 deg. 19 min. 01 sec. East for a distance of 356.27 feet; thence South 01 deg. 59 min. 55 sec. 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