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REGULAR MEETING
<br />December 12, 2016
<br />project is going to work, and that's how the PUD statute and the ordinance actually is created. I
<br />don't think it at all violates the intent clause of the PUD ordinance because I don't think the
<br />intent behind applying for it as a PUD was to circumvent any of their zoning regulations. Does
<br />that answer the question?
<br />Councilmember Broden responded, Sure. So, let's distinguish the Eddy Street Commons, if we
<br />would. That is a mix of all kinds of different uses and a large swath of land, and it preceded the
<br />2015 amendment, if I'm correct.
<br />Mr. Dvorak stated, Right.
<br />Councilmember Broden continued, stating, And then with regard to the Renaissance District —
<br />sorry, I can't remember my notes on that. So really, again, it's trying to get to whether this is
<br />appropriate post the 2015 amendments that this Council passed 9 -0. Everybody is excited about
<br />the development. The big question here is the height, and it continues to be morphed in all kinds
<br />of different proposals. I guess I'm just wondering why it did not go the route of the ABZA,
<br />because to me that should have been the route for this particular project.
<br />Mr. Dvorak responded, The question is whether or not this is prohibited under the City ordinance
<br />on Planned Unit Developments based on the intent clause of the ordinance?
<br />Councilmember Broden responded, The criteria —yeah, yeah, the intent.
<br />Mr. Dvorak continued, stating, This is sort of an exercise in statutory construction, I guess, so we
<br />can sort of look at this. Subsection A of Article 5 of the Planned Unit Development District —it
<br />has three (3) parts. The first one talks about what the district is intended to do. It talks about
<br />establishing compatible and efficient mix of land uses and open space; compatibility with the
<br />Comprehensive Plan; establishing a creative approach in building design through architectural
<br />compatibility; flexibility and incentives for development; and any individual land or combination
<br />of land uses otherwise not specified elsewhere in the Ordinance. So, that's the intent, and then it
<br />has two (2) conditions on that. One (1), it's not intended for residential subdivisions; and then
<br />permitted uses, special exception uses; and then the third one is, "The PUD District is not
<br />intended for developments seeking relief from development standards within a district in which
<br />the use is permitted." So, that's the intent of the statute. That describes what the intent of it is,
<br />but it actually doesn't carry any force of the law, because what the statute actually does is
<br />described in the next section, B, Permitted Uses and Development Standards. Then it talks about
<br />what the actual permitted uses are under a PUD application, none of which prohibit this
<br />application from going through. I guess my response is, number one (1), I don't think the
<br />ordinance prohibits this application in any way— before this meeting, I went through all the
<br />meeting minutes. At every step of the process, no one ever said this isn't a legal application
<br />under the PUD's ordinance. That's a new and novel argument that I don't think makes sense
<br />because, number one (1), the intent section of the ordinance doesn't apply or carry any sort of
<br />force of law, and it's not prohibited under the permitted uses. So, I guess that's my argument.
<br />Councilmember Broden responded, Okay.
<br />Mr. Dvorak asked, Does that make sense?
<br />Councilmember Broden responded, Sure, thank you.
<br />Councilmember Dr. Varner stated, Just for the sake of clarification, while it says that it may not
<br />be intended, it doesn't say it's forbidden to use this.
<br />Mr. Dvorak responded, Right. It actually doesn't say it may not be intended, it just says, "This is
<br />the intent of the ordinance." The rest of the ordinance actually spells out how it's applied, and
<br />there's nothing in the actual meat of the ordinance that says this would be prohibited at all.
<br />Councilmember Davis stated, You —and especially Dave Matthews, your client, has shared that
<br />he liked the PUD because of the fact that it allows the Council to have more authority. Is that not
<br />correct?
<br />Mr. Dvorak responded, Correct.
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