Jun 29, 2022 Zoning Board of Adjustment on 2022-06-29 5:30 PM (Special Called Meeting - 1 of 2)

Good evening, everyone, my name is Amber Brighill, I'm the Chair of the Zoning Board of Adjustments. Today is June 29th, it's 5.35 p.m. We do have a quorum present, so I'd like to call this meeting to order. First I'll go through the game plan after we do the first item of business, which is the Pledge to the U.S. and the Texas Flag, rise as you're able, please. I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all. Honor the Texas flag, I pledge allegiance to the Texas one state under God, one and indivisible. Thank you. The next item of business is considering the minutes from our last meeting of May 16th, if we have any additions or corrections to that before we make a motion? No? I'd entertain a motion then. See a motion. The first from Jennifer, and a second. Do we have any conversation, discussion about the minutes from the last meeting? No? All right, all those in favor of approving the minutes from May 16th, raise your hand. Any opposed? Any abstained? Motion passes unanimously. Oh, that was the first one. The second one. Let's do the second one, because there were two. We had two meetings technically. I'll make a motion for the second. Thank you. Is there a second? Second? All right. And any discussion? All those in favor? Any opposed? And any abstained? That passes unanimously. Perfect. Easy breezy. Moving along. Okay, so this next part is the more complicated part. It is a public hearing. That means that anyone in attendance can speak on this item. People can also phone in to the meeting if they'd like to make a comment. We do request that you fill out a card, though if you'd like to, as the spirit moves, you get up and speak and fill out a card later. That's okay, too. Let me talk about how it's going to go. So it takes six votes to reverse or modify any determination of an administrative official on appeal, and that's what we're looking at tonight. What we're going to do is we're going to hear first from city staff. Then each party will get up to 20 minutes to present their case. Now if you want to divvy that up, if there's multiple people in your party and one person speaks for five minutes, another person speaks for 15, that's fine, whatever it is. But each party will get 20 minutes total for each party. After all the parties have done their presentation, then each party will get an opportunity for a rebuttal, which will be two minutes per speaker with a total of 10 minutes per party. When that's all done, then we will invite comments from the public, which can be three minutes in length. Is that clear as mud? Cool. Okay. Did I miss anything? We're good. Okay. So I'm going to call the public hearing to order. It's 539, because we are a quasi-judicial board, we are required to swear people in, and in the interest of time, I would like to just swear you all in. At the same time, that includes people who would maybe like to speak in the public comment period later. If you could go stand please and raise your right hand. Thank you. Under penalty of perjury do you swear or affirm that any testimony or information you provide or any statement you make before this board is complete, true, and correct to the best of your knowledge and ability? If please, if so, please answer I do. I do. Great. Thank you. You can be seated. So, excuse me, I have, there's like 66 pages here, so just give me a second. Okay. So in this public hearing, we are going to consider an appeal of an administrative decision regarding the interpretation of the definition, nope, just kidding. That is from the minutes. There's 66 pages here. Please, excuse me. Yeah. Where am I at? Here we go. This one? That is the one. Three, yes. Okay. Thank you. Thanks, everyone. Hold a public hearing and consider an appeal for an administrative decision regarding the approval of a zoning compliance plan for a multifamily development and who is our presenter on this one? Staff. Staff is presenting. First. Sorry. Okay. I'd like to open the Florida city staff. Madam Chair, Tina Fargan, Deputy Director of Development Services. Actually, Mr. McDonald's going to start, so I think he was taking care of a housekeeping ... Come on, Scott, you had one job, man. My apologies. Our front doors are locked. Julie, if you can assist with that, please. Thank you. I heard someone knocking, so we just wanted to make sure everybody could get into the building. Great. Thank you. Good evening, Madam Chair, Board. My name is Scott McDonald, Director of Development Services. I'm here to discuss this item with you. I, first and foremost, would like to acknowledge Haley Zagurski, our Assistant Planning Director. She is one that provided the staff analysis largely and put together this presentation. Unfortunately, she's not able to be here this evening, and it will take two, maybe three of us to put this together. I will begin this presentation. Tina Fargan, our Planning Director, will follow me with some of the details, but I'll get a little bit more into that as we go. First of all, I'd like to provide a little bit of background and overview of what this site is. As you may be aware, this is a seven-acre site on the south side of I-35. What we have is the zoning compliance plan, zoning compliance plan for a multifamily development. This is a by-right proposition, and what that means is that the existing zoning use is allowed in this district, and that it can be built, and the use and associated development requirements can be met. That's what this review is. It's important to note that the requirements that are provided in the DDC, as well as in our criteria manuals adopted by the city, are in compliance, and this is where we're going to start. Another component of this is that we had a previously heard SUP, which was for a 60-foot and height multifamily project. This was denied by council in October 19 of 2021. This SUP is no longer relevant, so the application that was received for the zoning compliance plan is a completely different application, and was viewed with a different set of lenses. There has been some references to some of the previous items, so I just want to clarify that on the front side that this is separate, and that we clearly want to make sure that anything that ended with that project began anew, and that's what we're discussing. A little bit of background about a zoning compliance plan. Zoning compliance plan is really the first step in a multi-step development review process. It's a comprehensive view of what someone's proposing to do. It is a bird's eye view of what it is and what rights somebody has to develop under a piece of property. The second piece in that is it's submitted, typically it's a site plan, a landscape plan, re-preservation, and grading plan sheets. We'll look at some of that detail a little further as we get into this, but again it's just an overview to provide, and this is a staff approval. As you see to the right side of the image that's on the screen, we outline really the typical development process for any project here in the city of Denton, and where that falls in. Again, administratively staff reviews a zoning compliance plan to look to see if everything that they're looking at to do meets our DDC. When I say meets the DDC, it's the intent of the DDC and those elements within the DDC, and then we get into greater detail when we follow those following steps. As you see outlined here, you have the zoning compliance plan, preliminary PLAT, civil engineering plans, final PLAT, really before any construction can begin. It provides the developer with an assurance that the property can be developed. It presumes that they are able to obtain all of the offsite permits as needed and are necessary, and they have the engineering plans approved, submitted, and PLATing then approved, and we can move forward. Again, the DDC recognizes this as a phased approach, so again this is one piece, that first piece in the puzzle as we get further into the process. Each step in the process builds upon the previous. There's no construction that's able to commence until the completion of the civil engineering plans and the PLAT. A quick overview of the specifics of the site. What you have here is one building, which is three stories in height, maximum height of 40 feet, 245 units. You'll see that you have structured parking and some surface parking, and the primary access that's highlighted is via I-35. Tina will get into some of the specifics that relate to some of the other access points and how it is that we work through this. As you see to the south of Southridge Estates, we recognize that some of the neighboring properties may not want the property to develop as it is important to note this property is eligible for development. This is a by-write development. Again, I remind you the SUP was denied. The developer indicated that they would be coming back with a by-write product, and that's what it is that we reviewed to with this ZCP application. This is our typical landscape plan. What you will see is the dark trees, the dark circles are trees and shrubs that will be the new plantings. The lighter trees are that of what's going to be preserved. The tree preservation plan, and I'm just going to bounce back just so you can see the contrast between the two, you will notice that some of the trees that are, again, the lighter trees, those preserved trees, here they're going to be darker trees. We have darker trees. Those are the preserved trees that we were showing on the landscape plan. The lighter trees with the access are the trees that are to be removed, and then you'll see just in a very light silhouette that of the parking and building structures below. As a side note, this plan is a great example of why it is that we require multiple development plans sheets to be able to separate out the context for review and to be able to legibly see what it is that is on the plans to ensure that this is a proper application and that it will be susceptible for development. This evening, the appeal claims that the zoning compliance plan failed to meet several of the general criteria for approval in the DDC. Staff will address each of these bases for the appeal in turn. The full deal is provided in your exhibit too. Hopefully you all understood all of that. We're looking for this to provide that criteria for approval in the DDC that was outlined in the DDC and that staff follow the procedures in the DDC, and again, I think the important piece to this is the intent of the applicable standards from the DDC compared to the written decision that's being appealed. Tina will provide greater detail on the city's response and the administrative appeal to staff's decision. Additionally, Julie Wyatt is available for any code questions as necessary. Thank you and Tina will take over from this point. Good afternoon, Chair, Zoning Board of Adjustment. Tina Fergens, I'm the Deputy Director of Development Services. Thank you, Scott, for providing that initial context as it relates to the proposed request for your consideration this evening. What I'm going to be doing is presenting the basis of appeal that was submitted by the applicant and then also being able to address the city's response to each of those. Given the amount of content that has to be covered, my apologies, I've got a quick delivery. My goal is to provide you with more of a high-level summary overview. My intention is not to read all of the words that are on the slides that are before you. The content that is included on the slides is consistent with all of the staff analysis in the agenda information summary sheet that was included in your packet, so hopefully what I'm adding is just in addition to or explaining some of the content that was provided in the written materials. We're going to start with the first consideration, appeal basis number one. This actually has two components really associated with it. The first one addresses the two points of access requirement and then the second component addresses the trees and the landscaping. As it relates to the access, the appellant claims that the zoning compliance plan failed to demonstrate the existence of a secondary emergency fire access, either through the Brookdale property or the Buckees development that is to the Southwest. As Scott explained, we have different steps within our development sequencing phase. The zoning compliance plan is the first step. The next step is the platting. All new subdivisions and subdivisions of land is tied to platting. All new subdivisions have two points of access where feasible. That's a requirement of the DDC. The international fire code requires two points of access for multifamily development that have greater than 200 units. The zoning compliance plan demonstrated that it has one primary point of access, which if you look at the graphic that's shown here where the star is, that's the primary point of access. The second point of access that the applicant was proposing as part of the zoning compliance plan is a second point of emergency access. As noted in your staff analysis, that second point of access was noted as a 24-foot access easement by separate instrument. The zoning compliance plan is recognizing that if our plan is approved, we have to be able to go and secure that offsite easement. The pavement actually exists there today. The applicant will have to make a connection to that pavement and obtain the actual easement itself as part of the platting process and would do so by separate instrument. Separate instrument is a separate document, if you will, that's filed of record for dedicating the easement. Next the offsite easement is related to the subdivision of the property. As mentioned, the DDC allows for the phased sequencing of the planned submittals, as Scott had explained earlier, and that second point of access for the offsite easement dedication will occur at the time of platting. The timing of the easement dedication is supported by the DDC, section 7, 8, 10, which is related to easements with subdivision applications. And the other citation that provides the support is section 8.3.2c.1c, which addresses the two points of access for subdivision at the time of platting. Also I think what is important to note is that if the applicant is not able to obtain the necessary offsite access easement, then the city will not issue a building permit. We're not going to issue a permit to allow somebody to go build a development project if they don't have all of the criteria satisfied, and one of those criteria being the easement dedication itself. So the second component associated with appeal basis, number one, was that the zoning compliance plan failed to demonstrate compliance with the tree preservation and landscaping plan requirements. So Scott shared with you the landscaping plan previously, as well as the tree preservation plan. So before you is a copy of the landscape plan. It shows all of the existing trees that were to be preserved, as well as proposed additional trees that are being added to the site. The proposed trees are the ones that are shown in the darker circles. But this table that I have provided here, and again, thank you to Haley Zagurski for pulling this information together, but this table succinctly demonstrates how the applicant has met and has actually exceeded the minimum requirements that are provided for in the development code. The column on the left specifies the minimum requirements that have to be adhered to, and the column on the right clearly shows with the numbers that they're equal to or exceed. In this case, actually they exceed all of the minimum requirements that are provided for in the development code. Additionally, as it relates to tree preservation, it is important to understand that the DDC encourages preservation of 30% of the DBH or that's the diameter at breast height of heritage and quality trees on the property. The DDC section 7.7.4G.1.B.II authorizes any development to decrease the preservation of those trees to 20% of the DBH. With that reduction of the preservation of 20% of the DBH, if a higher mitigation ratio is applied to the amount of inches being decreased below the 30%, so for whatever amount that's lowered below the 30%, that difference has to be mitigated in one way or two ways that can be mitigated is through the planting of additional trees on the property also or in the form of pay in lieu of. The plan that is before you and that was included in your packet, the landscape plan does comply with the mitigation requirements that are provided for in the DDC. The DDC authorizes staff to be able to administratively approve that reduction. The second basis of appeal has two components associated with it. The first is with respect to the two points of access, and then the second is with respect to vehicle access outside the fire lanes. The appellant claims that the zoning compliance plan failed to demonstrate compliance with section 106.2 of the fire code. As I just explained previously, the international fire code requires two points of access for multifamily developments that have greater than 200 units. What's important to note is the IFC does not specify a timeframe for when that access or easement has to be acquired. But again, the fire department is not going to allow for the construction of any improvements until that easement is acquired. As I mentioned earlier, we're not going to issue a building permit until that easement requirement has been satisfied. The approved access means that the fire marshal has approved the access. In this case, it's through the Brookdale property. Again, that's where the red circle is located on this. The fire code essentially allows for the cities to determine when the easement needs to be satisfied and indent and that is at the time of platting, as I just previously explained. Also, I should point out that the property was reviewed under the 2012 IFC, which was the code that was in effect at the time. Today, we have a requirement and we've updated a more recent version of the IFC. Today, we have a requirement now for remoteness and remoteness provides an additional means of access. While this zoning compliance plan did not have to satisfy the requirement, it actually does. If all is built in the world today that surrounds this development, it will actually have three points of access, which is the blue circle that provides the connection to the buckies development and the remaining lots that are to develop through that area. Nugget way has not been extended to the property line, but if at such point in time when nugget way is extended, it would connect to this development. The applicant is proposing to extend their pavement to the property line so that they can make that connection. Essentially, we would have three points of access associated with this development. With respect to the second component of this provision, the appellant claims that the zoning compliance plan failed to accommodate for vehicular access outside of the fire lane, as well as that the fire lanes are only the minimum width provided and that the developer wasn't providing anything above and beyond. The definition of a fire apparatus access road is a general term that's inclusive of fire lanes, public streets, private streets, parking lot lanes, and access roadways. While the fire lane definition indicates that they are not necessarily intended for vehicular traffic, the fire apparatus access road definition and standards acknowledge that the fire access will be shared with other vehicles on the streets in the parking lots. Nothing in the IFC requires fire access roads, including fire lanes, to be separate from other vehicular access. I've been a planner for 27 years. I've worked in six cities, which Denton is one of them, I can assure you, throughout the North Texas area, and even if you travel throughout the United States, access is provided in the form of a fire lane throughout development projects. If the fire department were to interpret that we had to have two sets of pavement, one solely specifically for the fire department to access and one for everybody else, with all development projects happening, I don't care if it's commercial, multi-family, or single-family residential, we would have then double the amount of pavement being constructed associated with these projects. Also, the other thing is that the applicant makes claim that the developer is only providing 24-foot wide fire lanes. At the time the zoning compliance plan was reviewed, our requirement was 20-foot fire lanes. So they're providing 24 feet of fire lanes on three sides, a 26-foot wide fire lane on the fourth side, so that clearly exceeds the minimum 20-foot width. Also what I would submit to you is that single-family residential streets are typically 33 feet and wide. We allow for on-street parking on either side. So as a result, by doing the math, that leaves about 15 to 17 feet of clear unobstructed pathway for vehicles to be able to verse along. Fire lanes, on the other hand, we don't allow parking within them. So if you have a fire lane in your development, you're actually getting a better deal because you have 24 feet or 26 if it's provided for aerial access, but you have a better access arrangement associated with the fire lanes because you're getting that 24 feet of width of unobstructive travel, typical single-family residential street. So the next item is for the applicant's basis of appeal, is that the zoning compliance plan failed to minimize adverse visual impacts in site several items that were previously shown on the specific use permit plan. So as Mr. McDonald just explained, this item is not pertained or this basis of the appeal does not pertain to this zoning compliance plan. Any considerations associated with the plan provided with the specific use permit application are no longer applicable to this. Furthermore, any testimony, any discussions, anything that the developer offered up during that discussion on the specific use plan are not allowed to be considered as part of the zoning compliance plan. Table 2.2.A within the debt and development code specifically demonstrates that zoning compliance plans are not subject to public input or public comment. So therefore the plan that is submitted today does comply with all of the requirements that are associated with the zoning compliance plan. Anything offered up through that discretionary specific use permit approval process is no longer valid or applicable to this project. The other thing that I would propose is that the debt and development code has prescribed the minimum standards associated with development for by-right in this particular case. Those minimum standards are the standards in which the city has deemed to be the most appropriate to accommodate by-right development, including by-right development adjacent to single family residential neighborhoods, and that zoning compliance plan meets or exceeds those requirements. So appeal based... Yes? So I've been told that your 10 minutes are up. Oh, they are? Okay. All right. Thank you for that information. Thank you. You're welcome. Is there... So Scott spoke and Tina spoke. Is there still time left if there's someone else from the city who wants to speak to give the 20 minutes? Was there any time left? Okay. All right. Okay. All right. Pardon? Would you say 30 seconds? Your last slide. Okay. So I'll go to the last slide. And some of this is also repetitive. Appeal basis number four, again, ties back to the access requirements. The ESEL language, I'll be honest with you, the explanation that's provided for in the staff analysis adequately demonstrates why there are no ESAs that are on this property. But lastly, what we have is... So again, there was the three criteria in which the board were to consider as it relates to this particular request. And so as Scott laid out, the items are listed there in the check mark items here. We've clearly demonstrated that the zoning compliance plan that was reviewed by the city does meet all of the requirements within the development code and happy to answer any questions. So thank you. Thank you. Are there any questions for staff at this time? No? Okay. Thank you very much. You're welcome. Yes. Can I take a moment to get our time together? Yes. Are you getting visible signals? He is. Okay. Wonderful. Yeah. Okay. So this is a public hearing, and I'd like to hear from one of the parties next. Was there a particular order that you all had agreed to go in, or who would like to go first? The app, yeah? The appellant? Okay. Sir, if you could step forward, state your name and address for the record and also kind of your stake in this case, please. And then you'll get... Each individual will get up to 10 minutes, and each party will get up to 20 minutes. I'll try my best to take 10 whole minutes. My name is James Perry. I go by Jim. I appreciate your time. I thank you for letting me come and discuss this with you. I want to start off what I'm saying is I'm not here to try to keep these people from building apartments. That's not my job. What I'm here to do is ask that everybody play on a fair playing field, and to get right into it, according to the requirements of the Denton Development Code, Section 2.4.5.E shall be satisfied in order to obtain staff approval. Now, you can approve staff approval whenever you want. It happened to be in the first. But they have not satisfied these things that they were just discussing prior to staff approval. So all I'm asking is rather than just us allowing someone to come in and say, "Whoa, I've got staff approval." So all of these things were met. No, they're not. It shall be satisfied in order to obtain the staff approval, had been satisfied, satisfied, and I'm satisfied. The builder will be satisfied. But to give the builder an opportunity to come in at a later date and say, "Oh, but we already had an approval. So we need to be able to mitigate this. We need to be able to change that, and we need to be able to do this or that or the other before final plaque." That's neither here nor there. You didn't have the approval according to the development code. And that's all I'm asking for you to do. Yes, I've pointed out several things in my appeal because there are several things that meet in that needs to shall be met. And so what I'm asking is that these things be met or you have something in writing that says prior to you getting any final approval, this is going to be met. Rather than say, "Oh, we already give you approval, so we'll let it go." I was in the building industry. I've seen many a neighborhood and I've seen trees taken down. Yes, they're saying that they're going to leave 30% or 23% of the trees. That's fine. No problem. That's not going to happen. There's going to be a reason. They will waste that property. It will not have any trees other than maybe two or three and the reason that those will be left is because there will be a danger of the construction people accidentally falling it on one of my neighbor's homes or mine. So since that's the case, there is a renumeration that is going to have to be made to the city of Denton for their tree fund. I would like it to be noted that if they don't do what they're saying they're going to do with this percentage, that they will pay the money prior to any approval to build. That isn't anything that I'm asking. I'm not a tree hugger. I like trees. I got plenty of trees in my yard. That's not the point. The point is Mother Nature built these trees. It took her 50 to 75 years to build these trees. Just because a developer wants to come in and knock them down so he can build this thing is another thing. Now on that fire code thing, it's great. No problem. There is going to be access. But you better have the fire next to the buildings that it's facing because that's where the 26 foot access is and it will take every inch of that to be able to put out the stabilizers for the fire truck to be able to get that ladder up on the thing. If you have it on the backside, too bad. There are people's lives that are in danger. Now what I would like you to do is to give some serious consideration to the fact that I'm not trying to prevent these people from building. I'm just asking that there be some qualifications before we're going to allow this to go through. You have to have this done. Not for my rule, but for yours. Your rule says shall be satisfied in order to obtain staff approval. I don't see how clear that could get. Shall be satisfied before staff approval. Now as far as my neighborhood is concerned, I'm all for having a builder come in behind me. But they're not going to build a quality of building that you're thinking that they're going to build. The streetscape, the view of this property that you're going to see that you see up there in those drawings is facing a 40-year-old mall, the back of it. The back of it has dumpsters. It has places where trucks are going in and out and putting things. They're saying it's going to be an upper end for the medical profession to be able to live. My granddaughter is going to be a doctor. She wouldn't live there. Now I'm not saying that that's wrong, but I'm saying that let's look at this thing from realism that is going to be a hard to lease area. Very hard to lease. I've leased places before. I've sold places before. Many of them for lots of very reputable builders. That place would be a nightmare to me, but that is not my problem. That's theirs. I'm all for them having it as long as they do the shall be met. If you hadn't put that in there, my case wouldn't be quite as strong, but since you did, do what you said you would hold them to. That's all I'm asking. I thank you for your time. Are there any questions for Mr. Perry before he ... Yep. Mr. Perry, would you mind coming back briefly, please? We've got a question. Go ahead. Hi, Mr. Perry. I just want to make sure I'm understanding your case, so I just have a question or two if that's all right. First of all, I just want to clarify. What you're saying is, all of the criteria that is presented in the development code, there are some things that have not yet been satisfied, and so you feel that because they've not yet been satisfied, that even the site plan should not have been approved. Is that what I'm understanding? Well, what I'm saying is, according to what your rule says, 2.4.5.E of the Denton Development Code shall be satisfied prior to staff approval. Now, the staff has approved it. The first part, right? It has had staff approval. Yes, sir. Now, I'm not a city engineer, and I'm not a city attorney, and I don't know what your definition of staff approval means, but my definition of staff approval is when it's approved by the staff, which for some reason, they're defending that recommendation and that approval. Sure. Okay. Okay. I appreciate that clarification. So along those lines, I heard, I'm also not a developer, an engineer, anything like that. So I heard the International Fire Code, for example, has specific standards for the width that they need to have a fire lane, and what I also heard just from a factual basis is that the site plans exceed those recommendations, but you were describing how if there's a fire, it should be on the front of the apartment complex, not the back, and so I just wonder, what are your thoughts about the International Fire Code specifying a particular standard if you're feeling like that standard is wrong or if you can just clarify? No, no. The standard is right. Okay. However, there are two types of fire trucks that come. They're average in width of 10 feet, but when you stick 16 feet of stay insurance out beside the fire truck, it just became 26 feet that can only be done on the front of that building. The back of the building only has 24. Okay. That's my concern. Okay. Thank you. Thank you. Yeah. I'm just understanding. I appreciate it. Are there any questions for Mr. Perry? I have a question. Can I ask a question of staff at this moment because he was talking about trees? Am I out of order for that? There's a general question period after- All right. I'll save my questions. I'll probably have more questions by the time you get up there anyway, so okay. Mr. Perry, were there other people in your party? Yes. Okay. Thank you. Please take the stand. If you wouldn't mind stating your name and your address, please, for the record, and how much time- Let me get just a moment to set up, if I may. Sure. All right. You have 10 minutes. Is this where you want your material passed up? Pardon me? Is this where you want your material passed up? Yes. Please. Please. Please. If we could do that ahead of time, that'd be really nice. By the way, thank you for your time. I appreciate it. Thank you. Whenever you're ready, sir, you'll have 10 minutes. Thank you. My name is Jerry Drake. I live at 2504 Shiloh Road. I am Mr. Perry's neighbor. Some of you may know me from 31 years with the city attorney's office. My house is not within the 200 feet, so I could not be an appellant in this case, but I would have been if I could, and I can be a witness. Let me just go through what the meat of this is. The staff has prepared, well, Mr. Perry prepared an appeal. That's exhibit number five that the city's already given you. The staff has done a reply at exhibit two, and we've done a reply to the staff reply. That's exhibit 18, and that's in that packet that has just been given out to you. So where the staff has gone through and replied to certain parts of the appeal, we've replied to certain parts of the staff reply, and I know that you haven't had a chance to read exhibit 18, and I just want to tell you that my biggest concern here is the unqualified approval of the zoning compliance plan, and Mr. Perry alluded to that already. Now, why is that a problem? If you have exhibit 18 handy, I invite you to turn to the last page of it. Elements of staff approval are mandatory. It says shall. Maybe they get reviewed later also, as in at the time of planning, but they shall be reviewed now as a condition of approval. That's the plain English mandate of counsel to staff, and a lot of people talk about legal ease and about how attorneys get too complicated. This is plain English here that I'm talking about, and if these are reviewed later at the time of planning, that's fine, but 245E says they get reviewed now also, and that's the mandate of the counsel. I know the staff in their exhibit number two says that the review will be at the required level of detail for submittal. That doesn't mean they get to delay it. That means that if they require a certain level of detail, that has to be satisfied. What level is required by 245E4? It says shall comply unless the standard is to be lawfully modified. Submit number four is the submittal. Where in the application to lawfully modify the standard, and where is the status of that? Where does it say in there, where is the application to modify the fire access or all these other things? If they're going to rely upon the language there at 245E4B, then that application should be already here. 245F I think is important because it allows the imposition of conditions qualifying this approval. Perhaps staff could have gotten where they wanted to get it if they had put some conditions on here. If they had said, we're approving this conditioned upon you demonstrating that you have this secondary fire access, and maybe conditioning it at a certain point in time, but they didn't. They gave an unqualified approval. If you look at the approval that they gave, there's nothing on there that in any way qualifies this approval. Let me turn to that real quick. That's exhibit number three. There's not one single condition or qualification stated on this. It just says it is approved. There's nothing that says that, oh, well, we're going to wait until planning to look at this other issue. It just says it is approved. What does it mean in plain English to get unqualified approval of an application? It means that all necessary elements have been satisfied. Otherwise it'd be a denial, or at least a qualified approval. Exhibit three is neither. Under Texas law, developers are allowed to rely upon prior permit approvals. Let me say that again. Under Texas law, developers are entitled to rely upon prior permit approvals. If this is approved and not challenged, there is a very distinct possibility that the developer will assert that they've already met these standards, they've already met these requirements. How do we know this? Because your permit was granted without any kind of qualification. At Platting, the only issues comply with the code. There's no public hearing. Our neighborhood doesn't matter at the time of Platting. What's going to happen if the plan is later denied on one of the grounds that's required for this approval? That's a rhetorical question. If we don't speak up now, our opportunity is gone. This plan is dangerous. I'm really not going to talk about trees or things like that. I'm talking about fire access and people who could lose their lives. Why is Denton splitting hairs in the fire code to reach the barest minimum of fire safety issues? Don't we deserve better than that? Why is it that we picked the minimum for aerial access of 26 feet and then said, "You've got to share that with all the other traffic." 408 cars trying to flee a burning building at the same time, is that unimpeded access as the fire code requires? I don't think it is. Now, the other thing we mentioned is that the plan does not minimize adverse impacts upon our neighborhood. How do we know this? This is one area where I strongly disagree with something that the city representative said. That the SUP is relevant. It's relevant to show that what was offered up before was feasible. If there is a feasible step that could be made to reduce the impacts upon our neighborhood, then anything less than that is not minimizing the adverse impact. That's what minimize means. It means there is nothing that more strongly reduces the impact than what was provided. Obviously, that's not the case because the SUP says there is. So what do we do now? We could reverse the approval. Both PNZ and council paved that path already with the SUP. They saw the fire access was inadequate. They saw these other issues, and bear in mind, staff recommended that SUP before it was rejected by council and PNZ. So the staff recommendation doesn't mean anything here. We've got prior applications on this very same site that were turned down for that very same reason, for inadequate access, people not having a second way out. Where is that easement? Where is that permission from Brookhaven? Why don't we have it now? Why wasn't that required before this approval was given? This is awkward. Staff, our friends and colleagues, I've known Haley throughout. She's been transparent with me, and I hope she recognized I've been transparent with her. I think if she were here tonight, she would say so. We have to challenge this. It's our only opportunity to do so, because if we don't, then the developer will be entitled to rely upon this prior approval. What got approved? Everything that wasn't conditioned in Exhibit 3, and there's no conditions in Exhibit 3. This might just be a situation where 245 should be amended, and maybe what the staff wants 245 to say isn't what it actually does say. This may be something that they need to take a look at. Thanks so much. Thank you, Mr. Drake. Are there any questions for Mr. Drake at this time? Thank you for your time. Who would like to go next? There's a whole order, like a batting order. Thank you. Where is that page? This one. Thank you. Two more. It's a whole lot of pages. Thanks for your time. Got it. Okay. Thank you. All right. So you must be the property owner. Yes. And your name and address for the record, please? That's Vanzant 512 West Hickory in Denton, Texas, and I do represent the owner of Pinnacle Development, represented by Ms. Angel Liu, who is here tonight, and our engineering team, McAdams Engineering, Josh Barton and Randy Rivera. They've done most of the hard work on this, many applications that have come before the city on this. And thank you again, Madam Chairman and Board, for being here tonight and for Haley's hard work in preparing the material and the staff's work in presenting it. We appreciate getting this meeting called together as quickly as they can. Of course, time is of the essence to us. We came to the city going on two years now, November of 2020, with our first pre-development meeting. And again, I've been a friend and colleague of Jerry's for many years, so I have a lot of respect for him. And I'd say I'll only bring up the SUP insofar as Mr. Drake did, that you'll indicate and I'll just, rather than try to remember what occurred at the meeting back in October, I'll just read quickly what was in your agenda material, where Haley summarized that said, with the SUP request, an approximately 60-foot building height was proposed to allow for more compact building footprint and a greater preservation of the existing trees on site. I wish Mr. Drake had supported it that night. He didn't, along with a good portion of that neighborhood, but as far as attempted mitigation, we did attempt that back in October of last year and failed. That's why we're here tonight with the zoning rights that we had on the property previously. So that was the reason for, that's the only context in which I'll bring up the SUP, and as Mr. McDonald said, it's not relevant. Also the appellant mentioned, quoted the staff approval standard. Staff approval is given at different phases of any development. And I think it's inaccurate to say that there are no conditions on the zoning compliance letter that we received because it clearly states that we will have to go through preliminary plotting process, civil engineering plans, and final plan process. And those are all going to by virtue of the documents that were submitted as part of the zoning compliance plan, that is going to require two points of access. We're going to build the fire lanes just like everybody else in the city is required to build. We haven't asked for any variances on this as far as I know, throughout the entire process. We're certainly not asking for any tonight. We're asking that we be allowed to build the use that we have for that property under the city standards that are in place at the time we applied. That's simply all we're asking. I think the city did a very exhaustive job of going through while all those standards were met. But I did want to be here just to, Juan, thank you, and to let you know that obviously there's an, though we're not strictly a party to this, there's an affected landowner who's, you know, in this volatile market, delays are critical, timing is critical, and, you know, we're affected by delays, and we appreciate your consideration tonight. So that's all I, we're available for any questions, but I don't have any additional speakers for our side. Madam Chairman, unless you have questions. Thank you. Are there any questions? Okay. Thank you. Oh, sorry. Did you have a question? Oh, no. Sorry. Okay. Okay. Got it. Thank you. Appreciate it. Thank you. Okay. We are now entering the rebuttal phase. And so, Mr. Perry, that would be your party. If you'd like to speak for another two minutes to clear up anything, or Mr. Drake, since you're part of that party as well, you'll each have two minutes. Madam Chair, can we have the privilege of last rebuttal? This is where the embeller... Sorry. Come up to the speakers so we can save it for the record. Sorry. How does that... Okay. So my understanding, Mr. Drake, is that this game plan was presented to all parties prior to the meeting with approval from all parties. So we're gonna stay in order. No, ma'am. It was not approved by all parties. And I specifically addressed this question to Ms. Zagurski by email. And typically in an appeal, if you... We need six votes here out of six to overturn a staff decision. That's a big burden. And it's only fair that we follow the traditional standard in an appeal that the party with that burden of proof have the final rebuttal. Okay, all right. So staff has indicated they'd be open to this if... Yes, ma'am. Absolutely. We're meatable. And the... Yes. Property owner, are you okay with that too? Yeah? Okay. So I'm not sure who goes next then. So we've got our rebuttal. Okay. That's fine. Okay. Scott. All right. Sorry, Chair. Thank you. Go ahead. Okay. I have just a couple of points and I guess primarily I want to start out with the shall as Mr. Drake had outlined that shall means that we shall. And I will specify that no zoning compliance plan or very few zoning compliance plans if any could be approved in the city of Denton ever if we lend ourselves to strict adherence of shall. This zoning compliance plan could never be built because there would never be two points of access. There wouldn't be fire department access. So the second bullet, there's point A and point B, excuse me, A speaks to that they shall be in compliance with the DDC. The second point, and I want to read that clearly, compliance with these standards is applied at the level of detail required for the subject submittal. So it's important to note, as I illustrated in the beginning, the outline for the typical development review process is that we take these in order and someone cannot proceed to the next step without going through the process. No one would ever be able to build, even if they are vested in something with an approval, the approval won't get them anywhere if they can't get through the preliminary plat, the civil engineering plants or anything else. So the shall would prevent any zoning compliance plan on any green field development from being built because there may not be access at that point in time. There would not be a roadway for fire department access to be provided with. So they're proposing to build that. We agree to that. That's what's shown on the plans. That's what we expect on a preliminary plat. That's what we expect on civil engineering plans. So we say in context, it meets the intent of the code. We agree with that. That is the purpose and that overview, that 30,000 foot view, and as we get into the details and greater portions of that. I also want to add to keep in mind that we have professional staff that have been doing their profession and those reviews go through our engineering, our fire, our planning, our building a variety. Thank you. Thank you. Time is up. This is so messy. Let's finish the bottles and then do the rest. Yeah. That's what I was thinking too. Right. Go ahead. Okay. Again, Tina Fergans, Deputy Director of Development and Services. So Mr. Drake makes an interesting point and I can't disagree with him more with respect to Texas law and regarding under Texas law, developers are entitled to rely upon prior approvals. He's absolutely correct because the zoning compliance plan allows the developer rely upon approval and that zoning compliance plan vests the development rights. So if the developer cannot meet all of the conditions and all of the notations contained on the plan, then he's not going to be able to approve his project. So there's no disagreement on our part there because of the fact that we know that that zoning compliance plan vests development rights. The other thing that I would like to point out is Mr. Perry was speaking to the fire lanes and there was some question. He made a statement regarding the placement with respect to the placement of the fire lanes and so I just wanted to make sure that the Zoning Board of Adjustment understands that here is the building footprint that is all shown here. The fire lane is adjacent to the building for majority of the building. The one exception would be there's a row of parking that's right here near the leasing center. But otherwise, this entire building is encapsulated by the fire lane system. The fire lane system, they're 24 feet in width. We actually increased our standards subsequent to this plan being approved. Again, our standard of the time was 20 minutes. This plan has 24 foot fire lanes on three sides, 26 foot width on the fourth side. So it exceeded. The reason why we have the wider fire lane widths is to be able to accommodate fire apparatus being able to park within the fire lane, place their outriggers out, and then still allow for an ambulance to pass by. If an ambulance can pass by the fire engine or the fire truck with their ladder extended, then I can show you a typical vehicle can do so as well. So thank you. We're going to hold our questions until after the rebuttal phase. Mr. Van Zandt, did you want to take the stand one more time? No. Okay. Thank you. All right. Then it's back to the appellant party. You'll each have two minutes. No problem. I appreciate what you're saying. I just think that it's not feasible to do things sometimes in an order when you've got written things of what you have to do. When you have it in writing, you have to follow the writing. But let's just leave that for a moment and let me just say one other thing because there's something that's far more important, and that's people's lives. You've got 400 cars, a fire breaks out, people are scrambling. The target people are young, they're frightened, they're trying to get out. They're not worried about anybody but themselves. Then you've got a neighboring senior citizen home that those people are curious, and they're going to walk out there to see what's going on. Now with all that happening, that is dangerous, extremely dangerous, and those people's lives are up to this group. That's what I've got to say. Let's see, is the overhead document cam working by chance? There's a modification of a slide that I put up for the SUP. It's modified to show the current plan. It has a number of quotes from the fire code, "A fire lane is not necessarily intended for vehicular traffic other than fire apparatus." I think that's particularly true when you're at the bare minimum, and I think that I can illustrate that here with this D105.2. Aerial fire apparatus row shall have a minimum unobstructed width of 26 feet. How can it be unobstructed if it's shared with vehicles that are fleeing a fire? It can't. That's why you need to have a separate access for the people going in and out from what the fire department has, or you need to have it wider than the bare minimum of 26 feet. Why does it need to be 26 feet? Because of the outriggers that come out from the fire engine, because of the ladder that comes out perpendicular to the fire truck. Again, please take a look at Exhibit 18 as you deliberate, because it has more of a point by point rebuttal to what Mrs. Fergens had talked about, and I was not able to go into that here. Thanks so much. Thank you. I'd like to open up to the public hearing next. We'll ask a few questions for the parties and then hear from the public. I saw a couple of hands up earlier. Are there questions thus far? I think this will be either for Scott or Tina, I'm not totally sure. I've got two separate questions. One is related to Mr. Perry's comments earlier about the landscaping plan, which were about the concern that at the stage with which the trees would be removed, that would have been after construction would have commenced, which means things would have been improved, platted, all the good things, right? He mentioned that basically he feels that most of the trees will be removed and they will have to be replaced and things won't happen according to the plan, that there's a renumeration plan or fee that has to be paid when that happens. I'm assuming they would have to replace the trees that were removed that weren't part of the plan and then they would have to pay the city, is that accurate? Yes. I'm going to probably just provide a very simple answer. There is one tool in our toolbox that we use when necessary, and that's called a certificate of occupancy. No one can occupy or use a building until they comply with all the laws, rules, ordinances, and then if we have any outstanding fees. We do have the mechanism they could build a multimillion dollar project and not occupy that project if they owe us money for let's say a tree that was cut down that they needed to mitigate. Got it. There is a scenario in which all those trees could accidentally be knocked down, they would all have to be replaced, and fees would have to be paid based on that meeting, the initial aspect of the approved plan, but either way, according to our understanding, they would still have to be there, they wouldn't be able to occupy, and they would have to pay the city essentially. Even a step further to that, that if that occurred during construction, we ultimately would likely have a stop work that would be issued, so they wouldn't even get to the point where they'd be ready for a certificate of occupancy. We would recognize what that is and ultimately stop the project, and that happens on a regular basis for us. Got it. I have a second part to that, but that's resolved in my mind. The second piece is related to the fire code. I know we've gone in depth as far as the minimum requirement being 20 feet, and in three areas it's 24, one is 26. I know this is not your exhibit, this is the appellant's exhibit, but in the code that we just saw, which is the 2012 international fire code with reference to the 26 feet, is that the correct code that we're talking about today, the exhibit that was just provided, or is that a separate code? I know it's not your exhibit. They're really the same, the 2021, the 2012, as it relates to the fire code defining what a fire lane is and what a fire apparatus road is, which includes all types and vehicular traffic. Okay. The with scenario is that the older version of the code was at 20 feet. We have now advanced that to 24 feet, and that's what the applicant had proposed on their plans in advance of. Understood. Thank you. Okay. Thank you. Any other questions? Jennifer, go ahead. Yes, I'm not sure who to address this to, perhaps the appellant, because- The mic. Oh, yes. It's on, but I'm just not facing it. There's mention on the adapted slide from your slide, but with appellant's adaptations of a locked gate and it not being appropriate access in an emergency, and I'm not sure who was addressing that. It hadn't come up as yet, what that means and why that's there. So was this in relation to the specific use permit plan or the zoning compliance plan with the exhibit being- This is actually in perhaps better addressed to the appellant to explain. Okay. Okay. Or- We'll put that back on the overhead, please. What is this in reference to? So it is, so as it relates to, so I see on the exhibit that the appellant has made a reference to a locked gate is not appropriate access in emergency. So here in Denton, we do allow for a second point of ingress egress for emergency purposes only to be gated. They typically have a NOC system that's located on it. So if the fire apparatus does have to enter the property from that particular location, and with the NOC system, there are a variety of tools that can be used. One has an Opticom component, which is a little bit more advanced. Others are a NOC SPOC that has a key within it that allows the fire department to be able to access it. But that is a common practice, not only in Denton, but in many cities throughout the region. Okay. Thank you. Go ahead. Another question. This is for staff, so you walked through the six stages, are we in the first stage, right? Yes, sir. And so I think, Mr. McDonnell, you mentioned that the, you know, the city has the right to withhold occupancy rights. Are there other remedies, you know, if they don't get, if they don't get anything from the assisted living facility for that second easement? Are there? Absolutely. So, so approving this one piece of it says, on the basis of what you've provided us, that you're going to provide this access, you can move to the next phase. So as you see on the screen, you have number two, which is the preliminary plat, and so on and so forth. So at whatever point that does not occur, this project will cease because they can't get the next level of approvals. It's not far beyond from the certificate of occupancy. Right. So I mean, ultimately, building permit, like nothing starts until we've gone through these five stages. Correct. We have to have a final plat, which would then in turn have all of those easements reserved. And I would add on the final plat, it typically makes reference to, if there are any easements that are dedicated offsite by separate instrument, then it provides the volume and page recordation information associated with it. So if anybody wanted to be able to verify whether or not that easement existed, and again, this is whether it's access, it's sewer drainage, water, we would have the volume and page recordation information so that they could go find that easement that was recorded or the separately recorded document. Any other questions? Thank you. Sir you've already had an opportunity to speak. I do apologize, but this is a public hearing. So I'd like to open the floor for anyone who hasn't had an opportunity to speak yet, if you'd like to address the board with any questions, comments, concerns, you will have three minutes. And sir, I don't think you were here when I saw everyone in. You used to go ahead and step up, but I do need to swear you in because of our- I got here late. Yeah, no, no worries. Well, I heard the door was locked, so no worries. So if you wouldn't mind raising your hand. Under penalty of perjury, do you swear or affirm that any testimony or information you provide or any statement you make before this board is complete, true, and correct, to the best of your knowledge and ability? If so, please answer, I do. I do. Thank you. And your name and address for the record, and you'll have three minutes. My name is Ken Gold. I live at 2512 Natchez Trace, a backup against this property here. I just got a couple of things I wanted to stress. First off, this is a very special piece of property to begin with. If you look at the overhead, this used to be part of a cross-tumbler upland habitat associated with the Bucky's ESA. It's very fragile. It contains a lot of wildlife, a lot of big post oaks, blackjack oaks. It's a very special piece of property that ought not to be treated this poorly in the way it's doing. If you look at the drawings, there's a road that comes out of Bucky's that stops at that pond for a reason, and yet it lines up strangely perfectly with the one coming out of this project. There's a plan there. They're going to go over that. They're going to require some scrambling to do some new ESA work on that piece of property. The other thing, and I'll be very brief and be done, that access to the West, the emergency access, they've been working on this for two years, and they haven't got it yet. There's some kind of a problem. You would think a big project, this much money, all this time, they'd have got that right off. That's a critical, and it'll kill it if they don't get it. You'd think they'd put some effort in that and actually deliver something. You could see in writing that there is an agreement. Believe there is. They've never showed it to us. I don't believe there is one, and that's all I got. Thank you. Please deny this, but approve the appeal. Thank you, sir. Do you want to speak? Come on up. I've got to swear you in too, Christine. All right, ready? Under penalty of perjury, do you swear or affirm that any testimony or information you provide or any statement you make before this board is complete, true, and correct to the best of your knowledge and ability? If so, please answer, "I do." I do. Thank you. Your name and address for the record, please. My name is Christine Bray, and I live at 1204 Cordell. I guess I just have some confusion that I would maybe like one of you all to address. I live on Cordell Street. I've measured the width of the street myself. It's 34 feet, and then there's side parking on each side, taking up about seven feet. The street that I live on is 20 feet, which to me, you can't have more than 20 feet of filing in that, I guess, so I guess I just was hoping for clarification on why, say, 20 feet is not enough in general. Thank you, and staff had mentioned that, but you came in late, which is totally fine, so if you wouldn't mind- My tire got a flat on my bike. No, no, it's good. I'm glad you're here. If you could answer that question for Christine, please. I don't think this is part of this conversation this evening. It's just another question, so staff can answer that off the record. Am I correct in that? Sounds good to me. That's fair enough. It has nothing to do with this project. Sure. That's fair enough. Yeah. Okay. Thank you. Thank you. Is there anyone else from the public who'd like to speak before I close the public hearing? Okay. Hearing none, I'm gonna close the public hearing at 6.49 PM. Yes. Oh, I apologize, are there e-comment cards? There are, Madam Chair, there are e-comment cards. There are a total of- I apologize. I wasn't aware. Sorry. No, that is my fault. Okay. All eight are in, oppose the zoning compliance plan. Okay. Were there actual comments that could be read? Yes, there are. Great. How long are they? Great. Okay, I do, I mean, y'all, we work for you. So I do wanna read these. They are fairly brief. So the first one, Jennifer Danley Scott wrote, "The single entrance exit is a problem. The emergency exit is into an assisted living parking lot. In the event of a true emergency, the assisted living would evacuate. A hundred cars unfamiliar with the route would likely hit a resident or staff member evacuating." Robert Harris also opposes. They write, "This proposal appears to have several drawbacks, including problematic access for emergency vehicles, as well as for the residents of this proposed development. Impacts on the Southridge Estates development, where I live, of a multi-story building at higher elevation, from which residents would look down on the one- and two-story houses without much screening via fences, trees or buffers. Also it's questionable how attractive the living space behind stores of a strip mall would be to residents." Michelle Emick also opposes, "The developer is not a victim. The property was landlocked in 1995. City staff are not victims. They sidestepped the checks and balances system developed to protect residents enacted in bad faith. Most of us have lived in multifamily housing at one time. Did it ever occur to you that an apartment complex in which you were living was allowed to be built without meeting fire safety codes? It didn't occur to me and I can't believe that's what's being proposed now. Residents deserve better than this." Ken Gold also opposes, "Still no emergency easement after many months. The tree mitigation plan is wholly inadequate for this upland habitat directly related to the Buckees ESA. They failed to minimize impacts to the surrounding property and abandoned many site design features previously proposed. A six-foot wooden fence is laughably inadequate between private homes and a three-story apartment building so close to the property line." Marilyn Newland opposes, "This project would be right next door to an assisted living facility where senior citizens would be disturbed by the additional noise and problems that apartments bring. It has only one entrance and exit safety issue. It would look directly into backyards of homes on Natchez Trace infringing on their privacy. The value of the homes would be greatly affected by the apartments basically in their backyard. Developers trying to squeeze this into a much too small parcel to maintain good margins." Was that all of them? Madam Chair, I have three additional e-comments that came in by email. Please, yeah. Are they? Like, I can read it for you. I mean, I do. I mean, they want, and I, 'cause they're, y'all don't need to hear this to make our decisions, so. So I'll start with the first one. It is from Billy Casper. "The Planning Department ignored numerous mandatory requirements documented in the City Ordinance when they approved the site plan. The Planning Department ignored the deficiency noted by the Planning Zoning Commission and City Council that caused them to deny previous proposals by the developer that have the same deficiencies. The Planning Department ignored the 2012 International Fire Code, which the City has adopted and approved the proposed development despite known safety issues." Second one is from Ann Berry. "The proposed plan do not meet the fire code. There is only one confirmed egress to the property. The speculated second egress proposes a great risk to the elderly residents of Brookdale. The one available public entrance and exit is through an already overcrowded access road that, with very fast moving merging traffic exiting the highway, the plans do not allow adequate information regarding detention ponds that will be back to property owners. There is no plan in place to relocate existing wildlife." And then the last e-comment that we received is from Kristen Roman. "We are in opposition of the Millennium Crest project moving forward. We feel that there have been numerous codes being violated and neglected in the development of this project and our concern for the overall safety of our community, neighbors, and outcome of the project. Furthermore, we stand with Jerry Perry and are in full support of his comments that you will hear today." Those are all the e-comments we received. Great, thank you. Was there anyone that called in? No? We can ask DTV if there are any callers waiting to speak? It does not sound like there is. No? No. Okay. So I'm really going to close the public hearing now at 6.54. Thank you. I think that's important, right, because I didn't see this. You all didn't see this or hear this, so that's important for them to be heard, so you can have that back. Yes, Jennifer. [inaudible] That's true. [inaudible] That's true. So we're not going to deliberate. That comes in the second meeting, but I'm just wondering if there are any other questions for the appellant, for any of the speakers, for staff before we close this public hearing. We can maybe take a brief recess, and then we could reopen for deliberation, yes. Sorry, I have one more question for staff related to the comments coming from Ken Gold about the work that's been going on for months related to the emergency easement. I'm just a little bit confused about that, because I know we talked about there is already a paved area for where one of the emergency easements is going to go. Is it under construction for this project already for the past eight months, or what is happening with that delay? So the offsite or the second point of access into the development, so the pavement already exists today, but in order for folks to be able to drive across the neighbor's property, you have to have an easement that grants that access, right? So that is what the developer is still needing to obtain in order to be able to satisfy the notation that is on the zoning compliance plan. So the zoning compliance plan acknowledges that the access easement will be by a separate instrument, so they have to finish that process of acquiring the easement to give them the legal right to have the access across the neighbor's property. So the acquisition of the easement is actual construction that has been underway up to this point? The actual acquisition of the easement is basically a paper document, so there might be funds that are transferred, but no construction is occurring associated with the subject property nor any additional construction on the neighboring property either. So the key thing is that they have to be able to secure the easement, right, which is done, it's crafted on paper and then it's filed with record at the county to make it a legal valid document. And so they still have to work through obtaining that easement right and finishing that process in order then to be able to eventually get a building permit to get under construction. We would not allow them to get under construction without that easement. Okay. I guess this may be a question for Mr. Golden because the reference to a project that's been underway for like eight months that's delayed, there might be a problem in constructing that easement because I'm confused. So it might be helpful to note that there is actual access, like physically can I drive a car from here to there, and then there's a legal right of access, which is is the property owner going to permit me to use this piece of road in the case of a private road. So it's my understanding that in the instance of the secondary fire access, what we're looking at is confirming legal right of access and so that's negotiating between two private parties. Go ahead. Yes. And so for this long, this length of time, the developer has not been able to secure that legal right. Is that correct? We don't know that. We made that a requirement of what they have to do. They submitted, said that's what they're going to do. We don't know the answer to that question. So as yet, it has not been secured. To my knowledge that easement has not been secured at that time, that might be an appropriate question for the developer. Yes, exactly. The only other thing I would add is that projects, some projects take quicker or take a shorter amount of time to get under construction than others. So for a variety of different reasons, in my opinion, that's not necessarily would be something that is germane to me, the issue is whether or not the condition has been satisfied, which is designated on the zoning compliance plan that that easement would be granted by separate instrument. Again, there's no timing requirement associated with it other than they have to have it accomplished before a building permit is issued. And the owner does not have to grant it as would be the case in eminent domain, correct? The current owner does not. The current, the offsite owner, no, they don't have to grant it. And if they do not grant it, then the plan would have to be amended to be able to illustrate where they're going to obtain their offsite emergency access from for that second point. And related to this, I'll also note that the zoning compliance letter does, does expire in two years if we don't, if we don't make progress on the, finish the project. We, we have been working diligently. We obviously were dealing with a, with an owner out of state corporation who has a lender who also has to approve any, any easement transfer. I think I can say with confidence that by the end of next week, we'll have that. So it's certainly not something we've been sitting around doing nothing for two years. That's, that's unfair and inaccurate. We've been working diligently and should have it to the city for review very soon. Thank you. I've got, I've got a question about the, the, the, the fire easements, yeah? So I just, that seems to be the biggest concern. Right now it looks like there's one entrance, but there's another one that will be locked. And I just want to kind of clarify, what is the, the, the minimum that this property owner must meet for fire access? That seems to be like the, the biggest sticking point, biggest concern of, of these parties. What is the minimum and, and does the site plan meet that? The minimum is two. So we ask for two, fire is asking for two, they're required to provide two, whether there will or will not be two or three, whether there will be a locked gate or not is, is in question. However, that will have to be approved by the fire department. The width, I think you referenced the width and the access around the building is very similar to any other apartment structure that we have. And so all of these things must comply with our fire code and is reviewed by fire personnel in order to grant approvals in X of the, in each of the next phases as well as this phase. Got it. So, so if, if they build all of these units and they just look beautiful and granite countertops and everything's gorgeous, but they don't have the two access points, they won't get final approval to actually move people in. They have to have. And they wouldn't get that far. Yeah. They would not get that far. Okay. So they wouldn't be under construction. We will, we will have all of this ironed out prior to issuing the building permit. So we're not going to put 400 people in this project with only one access point. It will have two. Two. Thank you. I just wanted to clarify that. Thank you. Yes, go ahead. I have a question, the, the fire access situation has been discussed a great deal. What came up that hasn't been discussed as much as the ESA and the connection to the Bucky's ESA? And I would love to hear something about that. So I can, so I don't know if this is considered additional testimony or not. So I would defer to the attorneys on that. But it is in our staff analysis that it's addressed and was on the slide. So I feel like it's appropriate for me to address it. So the appellant claimed that there was ESA on the site in the staff written material and on the slide we presented, the ESA did not exist when the original map was done and it's included in your attachments and explains it. So when the original ESA, official ESA map of the city was adopted in like 1999, 2000, it had originally designated this area. What we found over time is that there were many areas that were incorrectly designated as ESA. And so upon further analysis, this ESA in the crossland, or excuse me, this ESA did not exist in the crossland habitat or crossland upland habitat, excuse me, did not exist on the property. And so therefore the property is not subject to our ESA requirements. It does not meet the minimum definition requirement for the contiguous 10 acres and with respect to the trees that are located on the property. So there's that ESA component and then there's also an alternate ESA consideration that would have to be taken place off site if the Buckees development, their remaining undeveloped land, if they extend Nugget Way eventually to the subject property, there's an alternate ESA that would have to be done to allow for that pavement to go over that riparian buffer. And that is approved by council. Yeah. Actually, I remember being on planning and zoning at that time when the ESA was being seen at Buckees and I recall that case very well. Mr. Jake, no one has called on you. Can you please take us... I have a point of order because questions have been addressed to city staff and answered and we disagree with those answers. And we should be allowed an opportunity to give our position as well in response to these answers. Otherwise, the only answer that this board is getting is the answer from the city representatives. Also in fairness, I will say that at least one of my questions has been brought up, both of them in fact, have been brought up by either exhibits or statements made by the appellant. So I wonder what they have to say about it. Would you... Because I feel like we've had the opportunity for a rebuttal. If there is someone from CBA who would like to ask a direct question, because the questions we've been asking have been staff questions, is there someone who would like to ask a question of Mr. Drake? Sure. I would like to ask Mr. Drake to elaborate on the exhibit that you provided here. Yep, I will. This one. Yes, ma'am. The question was to you. And then I would also like you to address the ESA question. Yes. I don't know that I'm able to address the ESA question myself, but I can address the issue with this exhibit here. And what was the question again? No one had discussed the item of the locked gate and the danger proposed by that. But staff did address that, but it's your exhibit. Well, when someone calls in the fire alarm and people start trying to escape, they're all going to be queued up on that same road trying to get out to save their lives. They'll be trying to exit onto a one-way access road on I-35 that could be backed up for a light or what have you. Meanwhile, somebody from the fire department has to get to that locked gate. How are they going to get there? They're going to swim upstream past all of the 408 cars that are trying desperately to leave. And they can't get to that locked gate unless and until they can get past those cars and get back there, get out the key to the Knox box, unlock the Knox box, pull the key out of the Knox box, and then unlock the gate. That's the danger here, and as far as the fire code is concerned, yes, the width for aerial access, this is more than a 30-foot tall building that has to be 26 feet. And then this code section, D106, there have to be two separate access roads for this. And I guess the main point here is with regard to this letter here, the city said that this letter does have the qualifications in there to allow them to apply these other standards at a later date. I don't read it there, but this board has the opportunity to impose conditions upon this order. Clarify it. Make it clear. Make it undeniably clear that they have to do that. They have to show that these standards are approved. Yeah. Mr. Drake. Reversing. Tell staff to do it. In the interest of time, I believe you've answered the question. Yeah. Thank you. And perhaps my question about the ESA was directed to the gentleman who brought it up, Mr. Gould. Okay. I'm sorry. Your question? Can you elaborate on the ESA, the condition that you described, it would have to meet? Yeah. Based on what was put out for the first go-around with the SUP, this area used to be sort of an ESA. It was considered to be appropriate eventually. It was not really an ESA yet. When the Buckees thing came in, that brought the focus in. The neighborhood that I live in to the south ate up a big piece of it. But if you look, that Buckees ESA and this piece of property, the 7.6 acres, that's more than the 10 acres for an ESA or for the Upland Habitat. It doesn't have to be locked in by property lines. That's clear. It can go across. It can be more than one piece of property to make this 10 acres. So the 7.6 is not technically 10, but you add Buckees end in there and the retirement home piece of it, you got 10 acres. It could be an ESA or an Upland Habitat. It's just simply was never protected and it didn't get there, but it's one habitat. And those animals, when you bulldoze that and run them into my neighborhood or across 35, there's nothing like that anywhere on that side of the freeway to get to South Lake. That's a special piece of property. That's all I really know. Thank you. I'm sorry. So you've had an opportunity to speak unless if anyone has a question for Mr. Perry. Yeah. Was there a question down here? Go ahead. I did have a question and it's actually the letter that is currently on there and I don't know who best to answer it and whether it's an appropriate question. It's dated April 21st, 2022, second paragraph says a ZCP is valid for 24 months expiring on April 21st, 2021. Is that a typo? That is a typo. Okay. Because it's two years from the date of the letter. So that would be 2024. Thank you. That was all my question was. Thank you. Another question. Go ahead. I do. I do have a question for Mr. Perry, questions for Mr. Perry and hopefully they're pretty simple. I just, I'm trying to understand this as a citizen of Denton and so I'm wondering what your understanding is as we've sat through listening to everyone's presentations. So just a couple of hopefully quick response questions, but I was wondering if you, please understand I do not mean to be condescending. I don't, I don't think so. I didn't get that from you. But based on, so I understand one of the concerns was about having two point of entries, but my understanding is that all of that will come before or come during the platting phase that they'll have to demonstrate that they're able to get that. So before they have a permit to build, there will be in fact two point of entry. Do you agree with that? Absolutely. Okay. So that's what I have been trying to say. And all we've been doing here, I can make it very simple. All that they've said, just put it in writing. Okay. So that's your, that's your issue is that it is not, you don't think that the developer has received these conditions in writing? No, I don't think the developer has got the conditions available to him yet. I don't mind when he gets them, but what I'm saying is since the people all agree is there anything wrong with putting a contention on this so that we all can be on the same page? I will sleep better at night if I know that the staff and the zoning commission and the city council is willing to require it to be in writing instead of hearsay. Okay. So for the fire code, that has obviously been a huge issue based on my current understanding after listening to everyone that the fire code standards, which are set by experts, not me, that they will be met at the time of building. Do you agree with that? I agree with it. Okay. And then the last question is about tree preservation. And according to everything I've heard tonight, when it's all said and done, there should be some percentage of trees preserved or there are remedies to hold them accountable. If not, do you agree with that? Yes, I do. Okay. So I think you and I have the same understanding. I just wanted to be on the same page. So thank you for answering those. Thank you very much. Yes, sir. Are there any other questions? Okay. Yes, ma'am. Yeah. I just want to note that at the second meeting, our ability to ask questions will be curtailed. So smoke 'em if you got 'em. I just want to make sure that we've cleared the deck so that the answer is taken. Well, in that case, can I ask a question of staff? Yeah. Yeah. Please. Okay. Because what will happen in the second meeting is like, it's just us up here. Deliberation. Right. So if you have questions, we have to ask them now. Okay. So again, based off of my conversation just now with Mr. Perry, we're on the same page about we know that there are conditions that need to be met. So now the question is, does the developer know that and do they know that in writing? So I'm just curious about your process and are they provided with all of these things in writing? So in my opinion, yes, the developer is aware of the condition that has to be addressed with respect to the access. And the reason for that, and as noted in the staff analysis, is that on the plan, it acknowledges, particularly as it relates to the emergency access, it says our 24-foot access easement by separate instrument. So that alone, the developer knows that they have to acquire that offsite legal right, as Ms. Degren had spoken to previously, has to be satisfied. So in my opinion, yes, they are fully aware of that. Okay. Go ahead. Another question. I have a question. Because this is, although an undeclared ESA, nonetheless quite an active habitat still even after Buckies was built, what are the plans to deal with that because these creatures will be in the neighborhood yards? So the subject property, as explained in the staff analysis, and the exhibit provided, was removed from the, I'm drawing a blank, was removed as an ESA, and no longer designated as an upland habitat because it did not meet minimum acreage requirements and with respect to the trees being located there. So anything that is remaining with any of the trees on the property is purely speculation as to what the habitats or what the, I'm trying to find the word, the animals, birds, bees, whatever may reside within those, and I can't be able to address that. So what I do know is that the plan, as it's submitted, does comply with our requirements as provided for in our ESA regulations and our tree preservation with respect to the roadway connection of Nugget Way. If that ever occurs over that riparian buffer, then they would have to submit the alteasa plan at that point in time they're requesting to be able to extend the pavement. So the, but as it relates to the subject property, it complies with our current requirements on the ordinance. So I can't speculate as to what nature will do within the remaining trees. It's a difficult situation because as it was only very recently, it did comply with the size and there are, Engage Denton is receiving concerns regularly already about coyotes appearing where they would not have eight years ago. So although this remaining piece of property isn't 10 acres, it was part of something that was more than 10 acres and was, I gather, if that's correct, what we just heard on the way towards being declared as an ESA when it was scooped up by the Buckeyes project. So there's a bit of history there that can't be addressed necessarily, but nonetheless will become something that the city will have to deal with and I was wondering, more than one person asked about what exactly is going to be the plan for the neighborhood around. Is that, I'm not sure that's relevant to this particular case though, Jennifer, I hear you. My heart's right there with you, but that's talking about the plan for an environmentally sensitive area that's outside of this particular property is not something that we are able to discuss this evening. I see. Yeah. And the only thing I would offer is that the exhibit that is included in the staff analysis helps explain the history or the exhibit combined with the text helps explain the history associated with the area. As a result of the Southridge development, I believe it was in also the Oak Ridge Oak Village development that occurred that started the whittling away, the whittling away if you will, at the ESA, but it was also determined that ESA was also incorrectly identified and so our official map has those ESA areas designated as removed, including for the subject property, not meeting the minimum acreage requirement. Thank you. I hope we understood that. I do have one last question, which is I wanted to make sure that... Sorry. Hold on. Jennifer, you turned your mic off. Just lean real it. Thank you very much. I wanted to make sure everyone in the ZBA panel understands how the tree mitigation process actually works. For example, if 75 old growth trees are removed, what is planted in its place? Is it more of those or is it baby plants or whatever? As addressed in the staff analysis, the DDC speaks to how trees can be mitigated. Again, they're required to mitigate 30% of the heritage quality trees. They're allowed to drop that down to 20%. There's a higher mitigation ratio that is provided for the delta of the reduction and addresses how that can be accomplished. State law specifies that when it comes to mitigation, mitigation can occur in two forms. We have to offer both, which our code does. One is with the replacement of planting of trees. The other is payment in lieu of. The state law does not prescribe the type of trees that have to be utilized. We have to provide that option for replanting. With the plan that was included within the packet, the plan complies with our tree mitigation requirements to allow for the tree preservation to be reduced to 20%, or in this case, I believe it was 21.6% is what they had on their plan. Thank you. Yes. Another question. Sorry. That's a question for staff, and I'm just kind of repeating to make sure I understand. So sorry. You're definitely repeating your answer here, but just kind of in reference to the fire entrances and the fire lanes and the fire access roads, the current plan exceeds the code as required in the sense that there are two entries, could be three at a later date, and that we have three sides with 24 foot fire lanes, whereas the code was 20 at the time, and one side with 26 foot, which is two code. In the respect to this plan, if something, I know that the appellant is very interested in conditions, they have to meet the requirements of their plan, not the code. So if anything changes in the future, the plan is not going to be approved. They're going to meet their plan, not the requirements, the number of requirements in the fire code. Correct. They have to meet the requirements of their plan. What I would offer is that if they're not able to satisfy the requirements of their plan, then they would be submitting a new zoning compliance plan to the city for review, and that plan would be reviewed in accordance with the requirements that are in effect at that time. Okay. Thank you. Thank you. I'm going to give you all one more minute to think, if you have any other burning questions. We're good. Okay. All right, it's 7.19. I'm going to close this first meeting. I would like to take maybe a 15-minute sandwich break, because it'll help me think better. So let's come back at 7.35, and I want to be mindful of everyone's time, because we've got staff with families that I want to make sure they can get home to. So be in your seat at 7.35 for the next meeting. Yeah? Cool. Thanks. And Chair, if I may, I encourage the board to remember the Open Meeting Act and not discuss any business while we're on break.