After a lengthy discussion, Conway City Council moved to deny a review of development concerns at their regular meeting Tuesday night.
Residents in the Scherman Heights PUD — led by neighbor Kent Holder — brought concerns about the building at 575 Club Lane.
A PUD — or Planned Unit Development — is a district intended to accommodate developments that might be impractical or impossible to implement through traditional zoning. The city currently has about 20 to 25 PUDs.
The Scherman Heights PUD was developed because the area is a unique mixed development with residential, commercial and offices, said Planning Director Bryan Patrick. Rezoning areas to typical zoning classifications — such as C-3 Intensive Commercial — does not offer additional protections or restrictions. The PUD final development plan has conditions spelled out such as buffer space, green spaces, additional signage controls and hours of operations.
“As a PUD, these conditions go above and beyond the restrictions that would have been in place with any other type of zoning,” Patrick said in an email. “These conditions help make the development compatible with surrounding uses.”
City council unanimously moved that the PUD was developed appropriately and denied further review.
City Attorney Mike Murphy cited Arkansas Supreme Court cases including Summit Mall Company LLC v. Lemond, in which it took 10 years before landowners filed suit against the mall development. Murphy said the Arkansas Supreme Court noted in the case that cities should guard against “an infinite and timeless right to challenge zoning ordinances.”
According to the staff report for the Scherman Heights PUD, the building at 575 Club Lane was constructed in late 2007 and the Planning and Development Department first heard concerns about the playground on the property in November 2012.
Councilman Theodore Jones asked why it had taken so long for a complaint to come up after the building had been there for years. Holder said he addressed the issue in September 2007 in a conversation with builder Gene Salter and Conway Building Inspector Ben Wiedower. He said at that point he assumed it would be taken care of.
The building at 575 Club Lane sits on Lot 7D of the Scherman Heights PUD. It is currently occupied by Pediatrics Plus, a childcare therapy business with a daycare facility that provides services for children with special needs and developmental delays.
According to state law, all daycare facilities are required to have an outdoor playground. Pediatrics Plus’ playground sits behind the building.
Holder brought forth several possible infractions concerning 575 Club Lane during the meeting, but he said his investigation started when Pediatrics Plus built their playground, which goes back to a promise about green space made by the builders.
According to the PUD, each lot must contain at least 20 percent green space exclusive of paved area. Additionally, in an amendment in July 2005 specifically related to Lot 7D when Walgreens was entertaining the idea of moving to the lot, council approved seven amendments for the Walgreens store. After the council action was complete, developer Jim Rankin volunteered two additional amendments including the promise to leave a 35 foot border of green space between the western property line of Windcrest subdivision and any parking, streets or buildings to the east.
According to the staff review compiled by Patrick for the Aug. 27 council meeting, “the voluntary statements offered by Mr. Rankin were outside of Council action, and are therefore, not enforceable by the city. The 35 foot border does exist and is free of parking, streets, and buildings. A playground covered with rubber mats could arguably not be green space, but as a ‘promise’ by Mr. Rankin cannot be enforced by the City.”
Other concerns about the property include the number of stories in the building and the siding.
The PUD states only one-story buildings no more than 28 feet are allowed on Lot 7. There was some debate about if the building is one, one and half or two stories.
Rankin said the second floor acts more as a mezzanine, is better described as attic space and is not heated or cooled. David Tapp, co-owner of Pediatrics Plus, said the upstairs portion of the building is heated and cooled.
A call to the Faulkner County Tax Assessor’s office showed the building has a 1,200 square foot portion on the second floor. There was a note on the records that said the assessor called Salter and he OK’d the second floor.
Concerning siding, the PUD requires buildings have no more than 10 percent of the building exterior covered by siding material or painted wood.
According to the staff report presented to council, the siding material used at 575 Club Lane is an architectural metal covering 32 percent on the east, 19 percent on the north and south and 14 percent on the west.
Several councilmembers said they have been to the property and to the neighborhood. Councilwoman Mary Smith said she sat in the backyard directly behind the building and — despite the fence that is in place — children from Pediatrics Plus were looking into the backyard, yelling at the neighbors.
“I just think we’ve got to take some responsibility for what we’re putting there and try to come to some kind of agreement for what we can live with,” Smith said. “I’m just thinking, why can’t the groups come together.”
Councilwoman Shelia Whitmore said she had also been out to the neighbors’ property, and she said the playground was not too big to be shielded.
“This has gone on. This building’s been here. The use is permitted in regards to the daycare and the playground,” she said. “Yes, there has to be compromise but it has to be reasonable on both ends.”
(Staff writer Angela Spencer can be reached by email at email@example.com or by phone at 505-1212. To comment on this and other stories in the Log Cabin, log on to www.thecabin.net. Send us your news at www.thecabin.net/submit)