HomeMy WebLinkAbout1973-11-12 Minutes•
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The Fayetteville
in the Directors
Members Present:
Members Absent:
Others' Present:
MINUTES OF A BOARD OF ADJUSTMENT MEETING
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Board of Adjustment met at 3:45 P.M., Monday, November 12, 1973,
Room, City Administration Building, Fayetteville, Arkansas.
Chairman Carl Yates, James H. White, Albert Witte, Connie Clack.
Suzanne Lighton.
Harold Lieberenz, Bobbie Jones, Iris Dees, David McWethy, Truman
Yancey, Hugh Kincaid, Mr. McNair, City Attornery, Jim McCord,
and others.
Chairman Carl Yates called the meeting to order and opened
public hearing on Appeal No. 73-35, Mr. Robert Kelly,
Mrs. Margaret D. Wooten, and Mrs. J.A. Robinson, for
property located at 340 North Highland Street, on an
application for appeal from the decision of the City
Inspector and the Planning Administrator.
the APPEAL NO. 73-35
Mr. Robert Kelly,
Mrs. Margaret Wooten,
Mrs. J.A. Robinson,
340 North Highland
Mr. Truman Yancey, attorney for the appellants, said the basis for the City
Inspector's decision as he and his clients understood it turned on rather a tech-
nicality in the zoning regulations in that in zone R-0, Residential Office, it is
permitted to build parking garages and it is also permitted in that same zone to have
accessory parking. By combining these two ideas. he felt the interpretation was made
that if you could put a parking garage, therefore you could put accessory parking.
He said their contentions were that what you are in fact saying is that because
you can build a garage you can put in an accessory parking lot; but this is without
regarding the definition of accessory parking, which in the zoning regulations it is
quite clear that accessory buildings and uses must be incidental and subordinate to
activity on the premises. He said what's being erected or placed in this back yard
has nothing to do with the residence there; it is by definition ... accessory parking,
but accessory to the adjoining commercial activity. He said they were saying that
rather than actually interpreting a use strictly within the Residential Office Zone
here the Public Administration has in effect knocked out a section of a zoned boundary
and incorporated without the benefit of rezoning additional territory into a commercial
activity; and at the same time the zoning regulations are bent a bit with what's left
of that lot. He said when you've cut off the back end of the lot you've left the
house with less than the bulk and area requirements of the 25 -foot space if the
parking lot is constructed and that if he and his clients understand the regulations
and procedtires:this requires a hearing and cannot be done by an interpretation on the
part of the Planning Administrator.
Mr. White asked if there was an alley between this property and Goff -McNair and
Mr. Yancey said there was not. Mr. White also asked if the property abuts against the
C-2 zone and Mr. Yancey said it does.
Chairman Yates asked Bobbie Jones if the division line might be over on the lot in
question. Bobbie said the lot scales out the full width from Highland and College to
290 feet and the actual line as it's drawn takes up almost a 100 feet in width ...
with another 100 feet on either side of it. She said it seems the zoning line splits
slightly to the west of the middle of the lot and C-2 seems to be slightly wider than
R-0. Mr. Witte asked how many feet back from College towards Highland would she
estimate. Bobbie Jones said if they draw to the center of the zoning line it would
be about 150 feet. Connie Clack asked if she was saying that the eastern part of
this property is already in C-2. Bobbie Jones said if the depth of the lot is 1572
feet she would say that some of it is in the C-2, and it may be within 10 feet of it.
Chairman Yates asked if this was the depth of the lot and Bobbie Jones said it was
the legal description written in ... (1572 feet is the east -west dimension).
City Attorney, Jim McCord asked Bobbie if this was one platted lot or two platted
lots from Highland to College and she replied that it was one. Connie Clack asked
if she meant that the property that is 340 on Highland goes all the way through to
College. Bobbie Jones said as it was platted, Lot 2 not only went all the way
through from Highland to College, but included buildings north and south of this
building on the platted lot.
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Board of Adjustment
November 12, 1973
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Connie Clack asked where the back boundary of the adjacent property was north or
south of this lot. Mr. Yancey said the residence north and the residence south of
the property have their back boundary an equal depth from Highland Street.
Chairman Yates asked if he was in fact telling him that part of this line is in C-2.
Mr. Yancey said he was telling him that this is what's being done with it.
Chairman Yates said if he followed Mr. Yancey correctly that Mr. Yancey conceded that
Goff -McNair could in fact build a parking garage on the back side of this lot
assuming that the space and setback requirements were met and since this is the
case, they could do this in R-0 according to the R-0 zoning and asked if he would
prefer that to open parking. Mr. Yancey said, in fact, this is being incorporated
into this used car lot here whether you call this accessory parking for employees
or an extension to business it is an accessory to this activity. Chairman Yates
asked if Mr. Yancey and his clients would prefer Goff -McNair construct a parking
garage or utilize the lot as open parking. Mr. Yancey said his clients are
inclined to say "use it according to the terms of the zoning and then we can
understand the consequences"; when you start to bend the situation they don't know
where they stand.
Mr. Hugh Kincaid, as well as Mr. McNair, was present to represent Goff -McNair.
Mr. Kincaid said it might be helpful to clarify one thing, that actually the
Certificate of Occupancy granted and the request for the Certificate of Occupancy
was made by G & M Investment Inc., which is a separate corporation, rather than
Goff -McNair, but it is the same principles involved and it was of course, limited in
its use to a parking lot for employee parking and specifically may not be used for
sale or storage of automobile inventory because that would be a violation of the
ordinance. He said Mr. McNair realizes that limitation and is prepared to observe
these limitations on the use of the lot ... it was just a way to get the parking
off the street and into a lot. He said he thought the City's policy in that
regard is long standing and we've even built parking lots to get people off the street
because our increasing traffic problems had to be solved by getting on -street
parking off the street. In regard to the legal questions, he said he thought that
the primary problem here is that Use Unit 12 as Mr. Yancey pointed out, specifically
permits as an authorized primary use an auto parking garage. Mr. Kincaid read this
part and said that unless he had missed it, this is the only reference in the zoning
ordinance (that is the use units) to a parking facility. He said he construed the
legislative intent as one as expressing the activity to be conducted there rather
than to describe a structure or whether it would be open parking, unless we so
construe, then he thought that what we must also assume is that you may not have
parking lots unless they are accessory, anywhere in the City. He said he did not
think the Board intended that as the result -- it appears in Article VII of the
zoning ordinance where they go on to make some additional requirements2or certain
types of facilities and specifically mention automobile parking lots, so I think
they were thinking they had authorized it by this language. He added that Use Unit
12 pops up again in C-2, C-3 and others so they relate back, and he had no doubt
in his mind that they interpret it and he thought it is reasonable to interpret...
the auto parking language there as permitting a lot. He said you need them in R-0
districts. He said he didn't think there's any way we can say it's wrong to contest
the Inspection Department with it,it's an authorized use there; and that it doesn't
mean that because its adjacent to C-2, as many parking lots will be, that someone
from C-2 can't come over and park there as opposed to someone in the R-0 if it happens
to be located in the R-0. He said he thought what they were saying and a reasonable
interpretation of that language is that a parking garage or lot is permitted as a
primary use in the R-0. He added that Mr. Yancey suggests that they are trying to
extend the commercial, that they are not attempting to make this C-2, C-3 or any other
commercial zone it is merely a parking lot and Mr. McNair wants to be a good
neighbor. He assured the Board that it will not be used for inventory or storage.
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Board of Adjustment
November 12, 1973
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Mr. Kincaid said if you go backto the accessory problem, he thought there is some really
difficult language to understand inthe zoning ordinance, there is some language in the
Use Unit discussion, "where so specified as a use unit listing a use shall be operated only
within a fully enclosed structure", — where it talks about enclosed structure. He
said there is no specification, except colaterally in some of these cases, of whether or
not it's supposed to be enclosed or not and that it does go on to say that where
enclosure of use is required, accessory off-street parking and loading shall be exempted.
He said that with the language here, the only reasonable intent that can be given to it
is that parking activity is what is contemplated as primary use.
Mr. White asked if Goff -McNair owned the whole property. Mr. Kincaid said the whole
tract is owned by G & M Company and the plan is to leave the rental house facing
Highland and that it will continue to look just as it is today; the only access to the
parking lot would be from the abutting C-2. Mr. White asked Bobbie Jones how far into the
lot do you think C-2 might go. She said the lot scales to be about 290 feet east and west
from College to Highland and there is slightly more in C-2 than in R-0 but the zoning line
is drawn with such a broad pen it looks as if the center of the zoning line splits the lot
somewhere around 150 in C-2 and 140 in R-0. Mr. Kincaid said perhaps 17 feet then in C-2?
Chairman Yates asked Bobbie as far as our zoning districts there are no metes and bounds
descriptions in the various zones or do we have to depend on the zoning map? Bobbie Jones
said there were no metes and bounds descriptions and you have to scale the zoning map.
Mr. White asked if this was a single rental unit and Mr. Kincaid said it is. Chairman
Yates asked about the property that's left. As far as single family residence area and
bulk requirements in the R-0 district, does it meet all the requirements of the zoning
ordinance if we take what they propose to take out for the parking lot? Bobbie Jones
said the requirements would be those for the R-3 zoning district (the R-0 refers you back
to the R-3 for residential uses). The R-3 requires 60 feet of lot width and 6,000 square
feet for a single family dwelling. Chairman Yates said the 50 feet width is all they
have. He said according to the map then it's 80 feet back to where the parking lot
would start and asked about the rear yard setback. Mr. Kincaid said that was a building
setback and the building is at least 88 feet from the back property line. Mr Lieberenz
said he thought the normal rear setback is 25 feet. Connie Clack asked if the size of the
enclosed parking lot would be 50 feet by 70 feet? Mr. Kincaid said this was correct and
of course we have side setbacks, he said he understood they were setting back 5 feet from
the boundary for a fence. Connie Clack asked if the dotted line represents the fence.
Chairman Yates said it is still the 6,000 square feet lot area.
Mr. Kincaid said his interpretation or a reasonable interpretation of the authorized uses
in Use Unit 12 is that you can permit a parking lot. If it doesn't say that then I don't
believe you can do it anywhere in the city because there is no other use unit that spec-
ifically provides for a parking facility and later in the ordinance where it's talking
about some extra requirements in Article VII they do talk about certain types of facilities
and requiring some extra requirements and among them mentioned some auto parking lots;
but that's the only reference in the ordinance to auto parking facilities apart from this
reference is Use Unit 12 that I can find. I don't mean to say that off-street parking is
not mentioned but in terms of a parking lot or parking garage that's the only reference I
find. I believe in my own mind if someone wanted to establish a commercial lot or
commercial -parking lot or.garage.you would have to do it under this section. I think
it authorizes this as a primary use - that is a parking facility whether it be garage or
lot.
Harold Lieberenz said for the benefit of this meeting, Mr. Kincaid is acting on behalf of
the people who sent a letter to me requesting an interpretation of the ordinance on this
and they stated this was to be used for employee parking of the motor company and used
car lot and the lot was not to be used to store or show new or used cars and asked for a
zoning interpretation on this use on this property rear of the property on Highland and
after checking it over I felt like I could make the interpretation rather than forward
it on to the Planning Commission. If a use like a structure is permitted in the R-0 then
a parking for that is accessory use to that principle use that's permitted in R-0. Connie
Clack asked if this parking would not be accessory to the use that's in there now.
Mr. Lieberenz said in making this determination he took two assumptions which may be
right or may be wrong in this Use Unit 12 which permits "parking garages" in the R-0,
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Board of Adjustment
November 12, 1973
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this would mean that someone who has cleaned a lot off and came in to get a building
• permit for a parking garage there that would meet the setbacks and the height requirement,
that I could go ahead and clear a building permit for that use. The other assumption
was that even though this used part of the residential lot facing on Highland, residential
lots can be entirely paved and if a person wants to they can use the biggest part of the
lot for off-street parking. As I understand it the zoning is regulations which set up
use, light, and ventilation and in my interpretation my assumption was a person could
pave their yard and have parking out there and that the ordinance did permit in this
zone an off-street parking structure. The parking lot would not be as offensive maybe as
a structure and it would not curtail the light and ventilation any more than residential
parking on the back part of that. On that assumption, this is the reason I issued the
Certificate of Occupancy to use this as an off-street parking lot instead of parking
garage. In one way this might be considered encroachment of the business area use over on
to this property here. Chairman Yates asked him if at the time he issued the Certificate
of Occupancy he didn't feel the fact that they might not meet the bulk and area require-
ments with the residence still there, that a variance would be required. He asked, "do
you still feel that way or if this Board should uphold your interpretation and let them
park there do you feel at this time that a variance would be needed for those bulk and
area. It appears that they don't meet the requirements of the zoning ordinance, if we
deduct that part of the lot where the parking is supposed to take place. Mr. Lieberenz
said he was not sure the Board could do that without publicly advertising as such, I still
stay with my assumption that basically I can't see any difference in light and ventilation
whether an employee from another business or location parks there or whether
somebody from the residence ( the back yard is all completely open) had they wanted to
divide this property up then I think there is definitely a question they would have
needed some kind of variance granted because then there would be no question that you
would be reducing the residential yard requirement. Chairman Yates asked Mr. McNair or
• Hugh Kincaid how many cars they would anticipate that would normally be in the parking lot.
Mr. McNair said they have 22 or 21 employees and some of them will park on that. He said
possibly ten, not to exceed 15 cars and he doubted if there would be that many. Mr. Witte
asked Mr. Lieberenz if his position then was that he granted this solely because auto
parking garage use is allowed in R-0. Mr Lieberenz said yes, plus the fact that the
off-street parking lot use was similar to a garage. Mr. White asked if it had definitely
been established that this type of parking is permitted in R-0. Mr Lieberenz said yes,
off-street garages.
Jim McCord asked if there had ever been a request for an interpretation from the Planning
Commission as to where parking lots, not parking garages, are included. He said Harold
based his decision on the interpretation that parking lots were including garages. The
proper procedure may be to get an interpretation from the Planning Commission as to whether
parking lots fall under Use Unit 12. Mr. Kincaid said at this point he thought it was
proper for the Board to make a judgement on it. There are two routes you could go:
(1) petition the Planning Commission for an interpretation but'once the decision is
made and appeal machinery is set in motion then (2) let it become this body's judgement
to decide whether or not he has ruled correctly. Mr. White said if you interpret auto
garage parking as an enclosure and an enclosure was put on the back of this lot meeting
the requirements would the appellants have any objections to this. Mr. Yancey said they
might not be delighted but they would accept this as being the rules established and they
would know where they and their property stand in relationship to the City rules --
they would know the future. The gist of our complaint is that we thought we understood the
rules to be fairly straight forward, but to allow this sort of a use to spread into the
area doesn't seem to follow with at least straight forward interpretation of the zoning.
Mr. White asked if you built a structure there that was permitted in R-0 then what you
• are saying is that you would object to who used the structure? Mr. Yancey said no, if
you build a structure there according to the R-0 rules there can be no objection. Mr. White
said that being the case then there would be no limitation on who could use it. Mr. Yancey
said that was not the situation they had, my clients do not complain because the rules
have been followed, we are proposing to you that his is a different situation - this
is not a parking garage, it is not a parking lot operated as a parking lot, it is an
accessory to the adjoining commercial activity, the fact that cars are parked there is
incidental. Mr. White said he was trying to rationalize and say well lets generate thq,o
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Board of Adjustment
November 12, 1973
Page 5
the structure first and if we can generate some reason to have a structure in here then
you can generate some reason to have a structure in here then you can say well, we are
going to have to put limits on the use of this structure whether it be a parking lot or
parking garage. Chairman Yates said he thought this was the decision they had asked them
to make. Mr. Kincaid said he thought Mr. Yancey and his clients were suggesting that
Mr. McNair is going to act in bad faith, i.e.; or use it to show a new car and that is:'.
an unfair presumption, because we do have a presumption of innocence. I think my client is
only going to use it for parking by employees. Mr. McNair said as far as a facility to
show new cars or used cars it would be absolutely worthless to us. Employee parking is the
only thing it could be used for.
The Public hearing was concluded.
Mr. Yates said personally he thought he would have to have some study on this. Jim McCord
said he would like to point some things out that he and Bobbie had discovered jointly.
He said if we have a single platted lot under single ownership which is divided by a
zoning district as I understand the facts - when a district boundary line divides a lot
which was in single ownership at the time of passage of this ordinance, the Planning
Administrator may permit the extension of regulations for either portion of the lot not to
exceed 50 feet beyond the district line into the remaining portion of the lot. Chairman
Yates asked Mr. McNair when he purchased this lot and he said he had the lot at the time of
the ordinance - June 29, 1970. Jim McCord said one question he had was do you go more than
50 feet because you could permit an accessory parking lot which would be permissible if it
didn't go more than 50 feet. As far as the use unit, which as I understand was the basis for
Harold's decision, if this is contested Mr. Kincaid is right in that the Board has inter-
pretation over the decision of the Planning Administrator, but I don't think you have
jurisdiction as far as interpreting use unit. I think you could reverse Harold and say
you should not have done this and it needs to go to the Planning Commission because it is
•being contested. I question your ,jurisdiction to interpret use unit because the ordinance
says in any case where there is a question as to whether or not a particular use is included
in.a particular unit the Planning Commission shall decide. He read this from Article VII.
Chairman Yates asked Mr. McNair if he could get by with 50 feet rather than 70 feet parking
east and west. It appears that the boundary in;the plat book shows the total depth of the
lot from ROW to ROW betweenCollege and Highland to be 285 and you are describing this
property as 1572 less 15 feet.: In Highland there is 1422 feet and that's just exactly
half way. I figure that is probably where the boundary line would be. Mr. Kincaid said
they could get by with it but it would be better if they could get 60 feet out of it.
In any case, they would be governed by the Board's thinking. Chairman Yates said there
would be no restrictions on it except for normal setback requirements. Mr. Kincaid said
they also have parking bumpers they have to put in.and Chairman Yates estimated 10 cars
could be parked in there. Chairman Yates said it would appear not for the reasons granted
by Harold, but as we understand the Planning Administrator can permit them to utilize this
property for this purpose - 50 feet past the zoning boundary. It would be my judgement that
the zoning boundary would be no farther east than this property line. I think the question
we have now is --- is this something we ought to have to expect them to live with or do we
want them to consider the 70 feet deep on the basis that Harold interpreted it. If we do
then I am going to have to study just a little more to satisfy myself. Mr. Witte said that
he would like to study it more if they were going to get beyond what they can do from the
50 -foot extension and he is prepared, unless others disagree, to go along with giving the
50.feet which is in the Board's discretion for the purpose they specified, without further
action on their part or our part other than getting Harold's okay as you pointed out. As
far as going beyond to 60 or 70 feet, I would want Goff -McNair to come up with an alternative
reason to justify more feet and also, sufficient notice to us to do any studying. Chairman
Yates read Article II, Paragraph.7 on interpretation of the zoning boundaries. He said it
would appear that you could give Goff -McNair 50 feet without getting into the other basis
you used at all.
At this point, Chairman Yates asked what the proper action was for them to take, assuming
that this is the way the Board wants to go ... or could Goff -McNair request going with
50 instead of 70 feet. Mr. Kincaid said if he understands correctly, they would be
entitled to 50 feet even on the C-2 basis and what the Board's saying is that for them to
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Board of Adjustment
November 12, 1973
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go ahead and consider the question of the other 20 feet the Board would probably need
more study and would result in another session. Mr. Lieberenz said in his opinion this
paragraph or condition was put in in case you had a large lot at the time of the passing
of this ordinance (6-29-70) if the district line splits this lot of one ownership then
the Planning Administrator could move the zoning line either way 50 feet. He said if
all this property, the property on College and the property on Highland was all in one
deed or one ownership whether 1 or 2 pieces of property at the passage of this ordinance,
then possibly this could be moved 50 feet. Chairman Yates said assuming Mr. McNair
has had this property for some 4 or 5 years, it appears that he does have a parcel of
record extending all the way from College to Highland and it would seem that this would
definitely fall within that category even though he didn't have all of Lot 2.
Mr Lieberenz said it would if it was all one lot of record and one ownership and the
zoning line split that lot record then this provision would allow it to be moved either
way.
Mr. Witte made a motion at this time that the appeal be resolved by finding that there
is a serious question which has not yet been considered by the Planning Administrator
regarding his authority under Article II, Paragraph 8 and as to any further extension
into the 70 feet that the proponents determine from the Planning Commission the meaning
of the term in issue "auto parking garage". Chairman Yates asked if they would also
want to go to the establishment of the exact boundary location at that point and Mr.
Witte said yes. Mrs. Clack seconded the motion. Chairman Yates went on to say that if
the motion passed that where Goff -McNair stands then they would make application to the
Building Inspector or the Planning Administrator to do this for 50 feet going into the
lot rather than 70 feet. If this is what Goff -McNair wants to do and if this is done,
then as far as I am concerned there is no further action required. However, if they say
no, I think we are well within our rights under the ordinance. We want to go on the
basis that if they take that approach then what you are saying is ask the Planning
Administrator to take this to the Planning Commission on our behalf for those two
determinations and then we would consider it further after they have made their
determinations? Mr. Witte agreed. Mr. Kincaid asked if they were saying go back and
apply again even though they have a certificate for 70 feet? Mr. Witte said that the
alternative would be for the Board to either grant the appeal or table it indefinitely
until these other matters are resolved. Mr. Kincaid asked if they could sustain 50 feet
of it subject to verification of the lot ownership problem. Mr. Witte said he didn't
object to doing that except as he read that paragraph the Planning Administrator is
supposed to make that determination. Chairman Yates said he thought they could sustain
it on the basis of that paragraph without getting into the other question.,Connie Clack
said if the Board didn't do something they could go ahead with the 70 feet because of
the way things are set in the motion. Mr. Witte and Mrs. Clack requested permission to
withdraw the motion and second. Mr. Witte said the intention of his motion was to
settle for 50 feet and to leave it up in the air as to 20 feet and as he understood it,
now that would be questionable. Mr. Yancey said a stop work order has been issued.
Chairman Yates asked Mr Lieberenz if there was any reason why they couldn't sustain
the 50 feet on the basis of Paragraph 8, Article II. Mr. Lieberenz said if we have
satisfactory proof that the lot met this requirement criteria of ownership. Chairman
Yates asked where the boundary line was of this zoning boundary between the R-0 and C-2.
He said he was reasonably satisfied that it was not any farther east than this line they
were talking about, but if it was farther west he didn't know. Mr. Lieberenz said he
believed the Planning Commission was the one to resolve it. Bobbie Jones said Article II
said it would be determined by scaling. Chairman Yates read that the Planning Administra-
tor shall interpret the boundaries and asked where she interpreted it. Bobbie Jones
said that using the scale it seems that C-2 is slightly larger than the R-0 which would
place it slightly west of the center of the lot. It could be anywhere from 125 to
150 foot depth. Mr. Lieberenz told Chairman Yates he believed this R-0 district was an
area under study since the ordinance was passed and this R-0 district may be set out in
an ordinance by exact footage.
Mr. Witte made a motion that they table this matter until further study was made and
suggested they meet at the earliest convenience of the Chairman and the officials and
parties. Mr. White seconded the motion and added that they meet subject to the
information gathered. 6R
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Board of Adjustment
November 12, 1973
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The minutes of meeting held October 29, 1973 were unanimously approved. MINUTES
The meeting was adjourned at 5:15 P.M.