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HomeMy WebLinkAbout1972-12-21 MinutesMINUTES OF A BOARD OF ADJUSTMENT MEETING The Fayetteville Board of Adjustment met at 3:45 P.M., Thursday, December 21, 1972, in the Directors Room, City Administration 40 Building, Fayetteville. Arkansas, Members Present: Connie Clack, James White, Carl Yates, Albert Witte.. Members Absent: Suzanne Lighton, Others Present: L. C. Snow, David Malone, Jack Burge, Bob Stout, De=y Tune, David Faught, Bob McBride, Pat Tobin, Russell Purdy, Wilbur Watson, Mr. Bass. Chairman Carl Yates called the meeting to order, Chairman Yates read from the Code of Ordinances the responsibility of the applicant to show need for a variance and the powers and duties of the Board of Adjustment. Chairman Yates opened the public hearing on Appeal No. 72-41, Donrey APPEAL 72�41 Outdoor Advertising Company for property located at 1204 South School DONREY OUTDOOR Avenue, on an application to vary setback of sign, ADVERTISING Co. City Attorney David Malone was present and said that all had probably 1204 S. School noticed that the Board of Directors has passed a new sign ordinance. The ordinance does not contain an emergency clause and will not, become effective until after it is on file with the City Clerk and has been published in the newspaper. The new sign ordinance will not be effective until sometime next week and; therefore, this application should be considered under the existing ordinance, Ordinance No. 1747, L. C. Snow was present to represent the application. He requested a variance from the existing right�of�way of unopened Eleventh Street of 25 ft. rather than the 50 ft. required by ordinance, He said when he got the lease,"he was not aware there was a street in there, Harold Lieberenz had made him aware when he had applied for a sign permit. He said there was no telling how long the street may be closed, if it will ever be opened, The City has not acquired right�of�way on this particular side of Eleventh Street, Albert Witte asked Mr. Snow why he did not want to comply with the require- ments of the ordinance, Mr. Snow said that if he were to set back 50 ft. he would be back in Mr.'Witt's driveway., With the variance2 they7could both operate, City Attorney David Malone said that on the West side of the Highway �1, there is a dedication for a 50 ft. right-of�way with 21 ft,, of it on the South side, On the East side of Highway 71, there is only the North 29 ft. dedicated for Eleventh Street. There have been offers to dedicate the additional right�of�way needed on the East side of the Highway when the City gets ready to open the street but this has not been consumated, Mr. Snow said if the right-of�way is ever dedicated and the street is ever opened, he would still be 5'or 6 ft. from the right�of�way, Connie Clack asked Mr. Snow what would happen if the variance were denied, He said he would not be able to put up his sign. Chairman Yates asked whether he was tied to a lease if he could not put up the sign. He was not. Albert Witte asked what the term of the lease is. Mr. Snow said it is a 10 year lease with a 60�day clause. He asked the Board to consider terms and conditions under which it would grant this variance. City Attorney David Malone asked Mr. Snow if he was saying that he would accept a variance for a sign until the street is opened, Mr. Snow said,,,"Yes, and give us a 60�day notice or 30 -day notice until it would have to be removed." 12�21-&72 o,2,, Chairman Yates asked Mr. Snow if he was correct in assuming that if the variance is not granted, the owner would not get the rental from Mr. Snow's company and Mr. Snow would not be able to sell the advertising space. Mr. Snow said that if the dedication were not there, he could place the sign within 10 ft. of the North property line, David Malone said there is a problem with the necessity for a bridge before the street can be opened. He did not know when it might be opened. He said the City might get some funds from Washington sometime to open it. Mr. Snow presented the Board with pictures of the property in question and said the proposed sign would be 50 to 60 ft. from the right-ofaway of Highway 71. Chairman Yates asked if this would be an advertising sign or if it would pertain to the business located on the property, When told it would be an advertising sign, he said they do have one one, site sign on the property. There were no furtikwr questions and no opposition present* The public hearing was closed'. Chairman Yates opened the public hearing on Appeal No. 72�a,, Jack APPEAL 72,,42 Burge Construction Company for Stout Petroleum Company and Robert JACK BURGE CONST* TO Stout for property located at 750 Beechwood Avenue on aim application for STOUT to vary setbacks. Jack Burge and Robert Stout were present to represent PETROLEUM CO. the application. Mr. Burge said the request for a variance would bring & Robert Stoui the building no closer to the property Line than what his existing buildings ?50 Beschwo are. He requested a variance to permit a setback of 1 ft. 6 inches from the side property line rather than 25 ft. as required by ordinance. He said Mr. Stout just doesn't have enough room to operate his office. The proposed building site is presently being used to store some drums, There were no questions and no opposition was present. The public hearing was closed, Chairman Yates opened the public hearing on Appeal No. 72�1+3,, McBride APPEAL 72w*43 Distributing Company and Bob McBride for property located at 515 West MCBRIDE DISTe COO Spring Street, on an application to vary setbacks. Bob McBride and 515 W. SprinA Denny,Tune were present to represent the application. Thev requested a variince for a setback of 40 ft. from Spring Street and 0910 ft, from West Avenue instead of 50 ft. from Spring and 55 ft, from West Avenue. Mr. Tune said that they had tried to lay out the building to take % advantage of the railroad siding and that with the curvature and odd shape of the lot where they had arrived at putting the building results in these variance requests. He said that is the only place on the lot where the railroad track is straight. Chairman Yates asked if he meant that the Southwest corner of the proposed building is where the tracks start to curve. Mr. Tune said it actually starts to curive about 10 fto farther South, but that they were also influenced by the fact that he received goods by truck and would be difficult to maneuver semi trucks in there and get them in to be unloaded, He said they wanted their business entrance off Spring Street and that all employee and truck entrances would be off Meadow Street. He said the 20 ft. setback they are asking for on West Avenue is as far back or farther back than any other building on that side of West Avenue. They do have plans to landscape the site. AnheuserowBusch, the manufacturer, requires a building of that particular size. The manufacturer determined the size of the building for the distributor. Connie Clack asked if there had been an alternate size building with the same size, but arranged a little bit different in shape. There had not been. Chairman Yates asked if the width of the dock could be 12-21�72 ~3� narrowed. Mr. Tune did not feel it could be. He said they could move the building to the South enough to meet the 50 ft. setback from Spring Street, but that would be about all they could move it. Chairman Yates asked if it would be possible to cut the Northeast corner of the building with the office off and make an odd shaped, corner giving more setback from West Avenue. Mr. Tune said they needed to keep the building square to have a clear span type building. He said they planned a garden or landscaped,area at that corner. Chairman Yates read a letter from David Faught with�the Housing Authority which recommended approval of the variance request and further recommended closing Spring Street West of West Avenue. Chairman Yates asked that this letter be made a part of the minutes and a copy follows these minutes in the Minutelb-Book, Chairman Yates said he noticed a covered concrete drainage channel starting at the intereection of Spring Street and West Avenue and crossing this property, He asked David Faught if this would fit in with Urban Renewal's plans for drainage to the East. Mr. Faught said they propose to split drainage as it approaches. They will be bringing it down Spring Street but just before they reach West Avenue, they propose to split that. One channel will shoot straight along Spring Street on the North side of the street, the other angles back under the railroad tracks. This is to insure that they will not be overloaded* Chairman Yates asked Bob McBride if there is an easement to cover this drainage structure. There is not, There were no further questions and there was no opposition present. The public bearing was closed. Chairman Yates opened the public hearing on Appeal No. 72�44, P. J. APPEAL 72�44 Tobin, for property located at 46 East Township Road, on an application Po Jo TOBIN to var7 setbacks. Mr. Tobin was present. He said that due to the lay 46 E. Township of the creek and the involvement of the creek the variances were needed in order to have the 40 ft. section for rental at this time. He said he would like to try to avoid the creek. There is a problem with the Arkansas Highway Department running some additional water down through there. The creek does get up above its banks, He said he planned to raise his foundation 1 foot to try to avoid problems. He said the bank on the South side of the creek has deteriorated throughout the years, but did not think the City Atlas shows that* In order to have a safe distance - from the creek, he asked for a side setback of 10 fto and a front setback of 35 ft. from the now street right-of-way line, He said the building would be used for office machine repair and sales, Chairman Yates said his office had recently been contacted by the former owner of this property to prepare a plat to subdivide what property he has left. He understood there is a provision in the ordinances which allowed the property owner to obtain a waiver and sell some tracts prior to platting and the previous owner had taken advantage of this priviledge. In working on the plat, he had found evidence that Mr. Tobin's West property line was probably about 14 ft. West of where Mr. Tobin thought it was, Mr. Tobin said he wanted to look at what a prudent distance from the bank of the creek would be. He said he had measured over from Luther Flora's points and came up with this location. He said he might still ask for a 15 ft. setback on the West side in view of the foregoing information. Chairman Yates s,aid he thought it would be in order if the Board did not take any action on the request for a variance in side setback at this time, He noted that a variance had been granted to Luther Flora for a setback of 40 ft* from where the new right-of�way would be, Connie Clack asked Mr. Tobin if he was aware that a variance would be needed 12-21�72 -4- when he purchased the land. He said he was not. Chairman Yates asked when he had purchased the land. He said in May. He said he was giving the State or the City right-of-way to widen Township Road and said there is one building on the property. If he did not have to give the right,, of -way, it would make the land more suitablee When he bought the property he did not know the City would ask for right�ofaeway, nor did he know he would be approached to build the building. Mrs. Clack asked if this would be the only use made of the property. Mr. Tobin said there is a miniature golf course on it and he plans to continue that, but that is just about all that can be done with the property unless someone has a lot of money to spend on a bridge. Russell Purdy asked whether Mr. Tobin had said he could live with the same 40 ft. setback Luther Flora had been granted. Both Chairman Yates and Mr. Tobin said, "Yes." There were no further questions. There was no opposition present. The public hearing was closed. Chairman Yates opened the public hearing on Appeal No. 72459 Wilbur Watson, for property located at 565 FaUin Avenue, on an application to vary APPEAL 72-45 minimum lot width and minimum lot area. WILBUR WATSON Chairman Yates told the audience and the other Board members that the 565 Fallin Ave Board of Directors has recently changed the ordinance to not permit duplexes in the R-1 District except on approval of the Planning Commission, Therefore, he thought the Board of Adjustmentte approval, if' given, would have to be contingent upon Planning Commission approval, Wilbur Watson was present to represent the application, He requested a variance to permit a duplex on a lot 50 ft. wide and containing 6,500 sq. ft. rather than 80 ft. wide and containing 12,000 sq* ft. Mrs Watson said thatvto be frank, there will be no change in the construction of the building at allo The building is already there exactly as he wants to use it. He bought the property li years ago and added a room on the back to boused as an efficiency apartment containing one room and a bath, It has been used this way sincei in addition to the 2�bedroom dwelling in the house. He said actually he was already at error with the zoning ordinance and wanted to got in compliance. He said he owned the property to the South and had talked to the other adjoining property owners and they did not object. There is an apartment across the street and a duplex a few houses down the street according to Mr. Watson, He said he planned no modification of the building as it now is. Chairman Yates asked why Mrs Watson was coming in for a variance request now. Mrs Watson said he had the property up for sale and then found the use was not in conformity. The buyer will not buy the property unless he can get it approved for this use. The efficiency apartment has been there since last March. Mrs Watson had gotten a permit to add a bedroom and bath on the house and while he was building this, he found there was a combination refrigerator, stove, and sink he could set in and had put them in without realizing he was in error, A Mr. Bass who lives across the street asked if this is a duplex in addition to the efficiency apartment or if it is the efficiency apartment which makes it a duplex. When told it was the latter he had no objections to this particular use, Mrs Watson said he had been told by the City to either get the efficiency apartment approved by the Board of Adjustment and Planning Commission or to tear it out. Chairman Yates and Albert Witte discussed whether it was illegal for Mr. Watson to sell nonaconforming property. Mr. Witte did not feel it was. Chairmian Yates asked City Attorney David Malone if the City had the right 12-21�72 .5 - to require Mr. Watson to remove this efficiency apartment. He felt they did, Albert Witte told Mr. Watson he had mistakenly changed this to a 40 duplex and now he could sell this for a higher price and stood to make a profit from his mistake, He said most people suffer for their mistakes, David Malone said he did not see how the variance could be granted wheoh� they'must shoir that the variance does not result from the actions of the applicant. They do result from the actions of the applicant. He caused the problems and is in violation of the ordinance, The public hearing was closed, 1-0 Chairman Yates said the Agenda indicated some consideration on a sign for Duane Nelson at 2202 North College; however, he had contacted the Planning Office and requested that this be withdrawn, The Board discussed again the appeal of Wilbur Watson, Appeal 7245* James White said he could not see any basis for granting the variance, since it is going to be rental property, to perpetuate this, Mr. Witte said he would hate to set a precedent on this. Chairman Yates asked Bobbie Jones what would happen if the Board of Adjustment should deny the appeal. She said he could, if he chooses, go on to the Planning Commission and then appeal the Board of Adjustment's decision to a court of law. David Malone said that if both the Planning Commission and the Board of Adjustment turn him down, then he must either remove it or the Inspector's Office must enforce the ordinance. The Board discussed whether it would be best to defer action until the Planning Commission takes action, Albert Witte moved to dery the variance request of Wilbur Watsoni, but that if the Planning Commission approves the conditional use request, to allow Mr. Watson to come back before the Board for reconsideration without the necessity for re -advertising. James White seconded the motion, which was approved unanimously, DUANE NELSON 2202 N.College APPEAL 72�45 1 The Board discussed again the appeal of Donrey Outdoor Advertising Company, Appeal 72�41. Chairman Yates said that although�t,the City APPEAL 72�41 Attorney had told the Board that they are still working under Ordinance 1747, and must consider this application on that basis, he could not dismiss from his mind the fact that the City Board of Directors has passed a new ordinance which is not in effect yet but win be soon. Connie Clack said she was not disposed to grant the variance, Chairman Yates said they should try not to let their feelings on whether they approve or disapprove of outdoor advertising enter into it, but he did feel a need to remember the actions of the Board of Directors even though it is not yet in effect. Albert Witte said he was troubled by the fact that the City has adopted a now ordinance and has worked a long time on the ordinance and it bothered him to start in varying from it, In answer to a question from Mr. White, David Malone said the sign is proposed to be located 25 ft. from the existing 29 ft. right�of�way. Another 21 ft. of right-of-way has been promised and the sign would be 4 ft. outside the 21 ft. promised. Chairman Yates said Mr. Snow had offered to accept the variance on condition that he would take the sign down if the street is ever opened. He asked Mr. Snow if he would consider a variance with a condition on time, say for one or two years. Mr. Snow said it actually takes at least 3 years to recover the expense of construction* David Malone said if he puts up a conforming sign, he would have 3 years or until the end of the lease 12�21-72 -6- to remove the sign. Chairman Yates said that if it wasn't for the new ordinance limiting the off-site signs to 75 sq. ft. he would have to say the Board ought to grant the variance. Albert Witte said there is lots Go of talk that Donrey is going to try to challenge that provision. He did not think the Board should encourage that. He did not dispute their right to challenge the provision. He did not think they should say 3 years is fine one day and then the next day to challenge that provision, David Malone said 3 years is the figure that is supposed to reflect a reasonable time to recover their investment. James White said an alternative would be to grant the setback requested subject to the size Limitation of the new ordinance. Russell Purdy asked David Malone whether, if the Board grants the variance on the basis of it going 3 years based on the ordinance which is coming and Donrey has said they are definitely going to challenge this ordinance, this puts it on the City's back to defend it if Donrey does bring a suit in 3 years, He thought the Board of Adjustment might be granting something that would bring another law suit. David Malone said he assumed that if a variance is granted, it would permit that sign for a specific period of time* Connie Clack asked what the hardship is in this case. David Malone said the argument had been that Eleventh Street is not opened and there is no indication it will be opened, He did not know if this is a valid argument, Chairman Yates said the hardship is a little nebulous. Mrs. Clack said Mr. Snow does not own the property and can get out of the lease without any sacrifice, She could not see any compelling need for a variance. Mr. Snow isn't going to loose on an investment. Chairman Yates said he tended to look at it on the basis that if the street were not planned he could build this sign within 10 ft. of the property line. Albert Witte agreed with Mr. Clack that the hardship is nebulous. Connie Clack moved that the application for a variance by Donrey Outdoor Advertising be denied. Albert Witte seconded the motion which was approved unanimously, The Board considered again the request of Jack Burge for Stout Petroleum APPEAL 72-42 Company and Robert T. Stoutp Appeal 72�42p for a variance. Both Mr. White and Chairman Yates said they were familiar with the property and Mr. White said he thought no damage would be done by granting this variance; it is out of the way and in line with the existing uses in that area. Mr. White moved the variance be approved* Albert Witte seconded the motion. There was further discussion before the vote was taken. Chairman Yates said that he would encourage the owner that the Southwest corner where the tanks and old pumps are located either be fenced or the materials there be disposed of. Mr. White amended him� motion to read that the Board of Adjustment, in granting the variance, expressed as a matter of extreme concern the wish that the property owner would either fence the area containing the old pumps and tanks or dispose of the materials there. Albert Witte also amended his sed6nd-. The amended motion was approved unanimously, The Board considered again the request of McBride Distributing Company APPEAL 72-43 and Bob McBride, Appeal 72-43. Chairman Yates said that Denny Tune had said they could move the building 10 ft. to the South. James White said he approved of that as it would minimize the variance requested on West Avenue and would eliminate the need for a variance on Spring Street. James White moved to derW the request for a variance in setback from Spring Street. Connie Clack seconded the motion which was approved unanimously, 12-21�72 �7� James White then moved that subject to the denial of the variance on Spring Street to grant the minimum variance needed to conx;truct the building as planned and in any event for the building to be no closer to West Avenue than 20 fte Albert Witte seconded the motion which was approved �unanimously, I .The Board considered again the variance request of P. Jo Tobin, Appeal AP11EAL 72�44 72-44. Chairman Yates said he had talked to Mr. Tobin and that Mro Tobin had measured his lot himselfs however, Mr. Yates had sent his crew out that day to check it and Mro Tobin's measurements were wrong. He suggested the Board take no action on the request for a variance on the West side and thought Mr. Tobin could live with a setback of 40 ft. on the front. Albert Witte moved to deny the request for a variance in Setback from the West property line. He then withdrew this motion. Mr., Witte moved to table the request for a variance from the West property line. James White seconded the motion which was approved unanimously, Albert Witte moved that the 35 ft. setback request be refused and that a 40 ft. setback from the Major Street Plan requirement be granted. James White seconded the motion which was approved unanimously, Regarding matters which require approval of both the Planning Commission POLICY ON and the Board of Adjustment, James White said that really the Planning P.C. & B.of A. Commission is a legislative body setting up requirements to be met and JOINT APPROVAL the Board of Adjustment is an authority to grant variances from these requirements; therefore it seemed to him that matters should go to the Planning Commission before they go to the Board of Adjustmento Albert Witte asked if it wouldn't be fiir to call the Planning Ccumission more of a policy making body. It was the general concensus of the Board members present that a plan requiring both approval of the Planning Commission and a Board of Adjustment variance should be first approved.by the Planning Commission then if a variance is needed go to the Board of Adjustment. Should the Board of Adjustment deny the variance then they would have to go back to the Planning Commission with a revised plan, Chairman Yates suggested the City obtain a t4pe recorder to tape the TAPE MEETIMS proceedings of Board of Adjustment and Planning Commission meetings,, in view of appeals from decisions of these bodies* David Malone said this could work against us as well as for us in some cases, The minutes of the November 27, 1972 Board of Adjubtment meeting were MINUTES approved as mailed. The meeting was adjourned at 5*45 P*M0