HomeMy WebLinkAbout1974-04-22 Minutes•
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MINUTES OF A BOARD OF ADJUSTMENT MEETING
A meeting of the Fayetteville Board of Adjustment was held Monday, April 22, 1974 at
3:00 P.M. in the Directors Room, City Administration Building, Fayetteville, Arkansas.
MEMBERS PRESENT:
MEMBERS ABSENT:
OTHERS PRESENT:
Chairman Carl Yates, David Newbern, Suzanne Lighton, James White,
Connie Clack.
None.
Mr. and Mrs. Ralph Guthary, Jr., Bobbie Jones, Iris Dees,
City Attorney, Jim McCord, Planning Chairman;Morton Gitelman,
Mayor Russell Purdy, Planning Commission Member, Al Hughes
Chairman Yates called the meeting to order.
The Board held an open discussion with the City Attorney Jim McCord, Mayor Russell Purdy,
Planning Commission Chairman Morton Gitelman and Planning Commissioner C.A. "Al" Hughes, Jr.,
concerning the intent of the zoning ordinance and the powers and duties of the Board of
Adjustment.
City Attorney McCord passed out a prepared memorandum which hereafter follows in its entirity
MEMORANDUM
Zoning Variances
Variances can:be granted'by zoning - boards only as they are authorized by and in con-
formity with'thezoning' statures and ordinances. Not only the command, but the spirit of
zoning ordinances and statutes as well, must be observed. Any variance from a zoning
ordinance, administratively authorized by a zoning board, must be in harmony with the
general purpose and intent of the zoning laws. In other words, variances must be granted
or denied with due regard for the main purpose of a zoning ordinance and in substance to
to carry out that purpose. McQuillin, Municipal Corporations Section 25.171 (1965).
The pertinent Arkansas statute provides that Boards. of Adjustment shall hear requests
for variances from the literal provisions of the zoning ordinance in instances where strict
enforcement of the zoning ordinance would cause undue hardship due to circumstances unique
to the individual property under consideration and grant such variances only when it is
demonstrated that such action will be in keeping with the spirit and intent of the pro-
visions of the zoning ordinance. Ark. Stat.. Ann. Sec. 19-2829 (2). This statute further
provides that the Board of Adjustment shall not permit, as a variance, any use in a zone
that is not permitted under the ordinance. In Arkansas, therefore, Zoning Boards of
Adjustment may only grant "area variances" and do not have authority to grant "use variances:
A Use variance authorizes a use of land which otherwise is proscribed by the zoning reg-
ulations. An area variance authorizes deviation from restrictions upon the construction
and placement of buildings in structures which are employed to house or otherwise serve
remitted uses More specifically, area variances include those relating to setback, yard,
lot -area, lot -coverage, floor -area, frontage, height, and similar restrictions Anderson,
American Law of Zoning, Sec. 14.45 (1968).
Area variances are customarily concerned with "practical difficulty," rather than
"unnecessary hardship." In this regard, the term "practical difficulty" means that the
property or a structure thereon cannot as a practical matter be used for a permitted use
without coming into conflict with certain other restrictions of the ordinance such as
setback or area restrictions. The overlapping of the concepts of practical difficulty and
undue hardship in so many factual situations and the lack of real reason for treating the
two situations differently, has caused courts to treat the two terms as if they were
synonymous and, in many instances, the enabling acts or ordinances so treat them.
Rathkoph, The Law of Zoning and Planning, Sec. 4, (1972).
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Board of Adjustment
April 22, 1974
Page Two
] In Arkansas, however, the enabling statute does not authorize Boards of Adjustment
to grant use variances. The same statute, on the other hand, adopts the "hardships" test,
rather than the "practical difficulties" test which is normally used for area variances.
The Arkansas Supreme Court has upheld the granting of a variance by finding that
there was substantial evidence in the record to support the trial court's finding that the
variance granted would be in keeping with the spirit and intent of the provisions of the
zoning ordinance and would not alter the character of the neighborhood. City of Little
Rock v. Leawood Property Owners Association, 242 Ark 290, 413 S.W. 2nd 877 (1967).
Apparently, however, the court has not specifically defined the term "undue hardship" as
used in the enabling statute. Rathkoph states that the questions properly before the
Board of Adjustment on an application for an "area variance" are:
1) Whether compliance with the strict letter of the restrictions governing
area, setbacks, frontage, height, bulk or density would unreasonably prevent
the owner from using the property for a permitted purpose or would render
conformity with such restrictions unnecessarily burdensome.
2) Whether a grant of the variance applied for would do substantial justice to
the applicant as well as to other property owners in the district, or whether
a lessor relaxation than that applied for would give substantial relief to
the owner of the property involved and be more consistant with justice to
other property owners.
3) Where the relief can be granted in such fashion that the spirit of the ordi-
nance will be observed and public safety and welfare secured.
Rathkoph further states that in considering these basic questions, the
Board should take in consideration the nature of the zone in which the
property lies, the character of the immediate vicinity and the uses con-
tained therein, whether, if the restrictions upon the applicant's property
were removed, such removal would seriously affect the neighboring property
and uses; whether, if the restrictions is not removed, the restriction
would have a tendency to create hardship to the owner in relation to his
efforts to make normal improvements in the character of that use of the
property which is a permitted use under the use provisions of the ordinance.
Rathkoph, Supra, Sec. 4.
The Fayetteville Code of Ordinances, Appendix A, Article 10, Sec. 4, Subsection B
specifies the requirements an applicant for a vairance must meet. These requirements are
consistant with the enabling statute and must be followed by the Board of Adjustment.
Hopefully, this memorandum will assist the Board in its interpretation of the ordinance.
Respectfully submitted,
CITY ATTORNEY/ Jim McCord
Mort Gitelman indicated he agreed with the tone of Mr. McCord's memorandum. He said,
"You have to have a more flexible definition of hardship. Where a person wants to improve
his property for a use permitted in the zone, but because of the dimensions of his lots...
you ought to consider the affect it is going to have on surrounding property and how
extensive his hardship is." Mayor Purdy agreed that the Board of Adjustment has to have
some reasonable range of discretion to apply; otherwise they could find something wrong
with most everything.
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Board of Adjustment
April 22, 1974
Page Three
MR. & MRS.
Chairman Yates opened the public hearing portion of the meeting RALPH GUTHARY, JR.
with the hearing on Appeal No. 74-9, Mr. and Mrs. Ralph R. 159 & 161 S. Hill Ave.
Guthary, Jr., 159 and 161 South Hill AVenue, on an application Appeal No. 74-9
to vary minimum lot width and lot area requirements.
Mr. and Mrs. Guthary were present.
Chairman Yates read the letter to the Board on the variance request. The Board was
requested to grant a variance in the bulk and area requirements.
Mrs. Guthary said they live at 161 South Hill and own 159 South Hill and they would like
to put a ceramic shop in there. She said in this R-3 zone they would need 1 -acre and
_I the 2 lots together are only a half acre. She said she taught ladies to paint and
make general ceramic products and would be selling paint supplies and brushes. She said
she had never had over three ladies at one time in her business now. Suzanne Lighton
asked if she would sell the finished products there. James White asked if they would
have a bona fide retail outlet for the ceramics. Mrs. Guthary said they would be
selling supplies. She said she might sell some ceramic products but the ladies who
made ceramics would have to sell their own somewhere else. Mr. Guthary said they were
thinking of using the alley on the West side for access. The house to the North in
which they wish to put the ceramic shop is condemned. She said they were going to
repair, paint, etc., but no change the structure or make additions to the building.
Connie Clack asked about off-street parking. Mr. Guthary said there would be plenty of
parking in the back of the house Suzanne Lighton asked if there was room between the
North property line and the building to put a driveway through there. Chairman Yates
asked if they had discussed this with the neighbors. They said they had talked to
some of their neighbors and had encountered no opposition. Bobbie Jones said she
received no calls opposing this. Chairman Yates asked Bobbie Jones about the 100'
requirement for professional offices and the 60' for residences Bobbie Jones said
she considered it to be 100' for the shop plus 60' for the residence and the area
requirement to be 1 acre for the shop plus 6,000 square feet for the residence.
Chairman Yates said the residence has nothing to do with the shop. Mrs. Guthary said she
wanted to be close to home because of her children. Bobbie Jones pointed out that the
Youth Attention Home was granted a conditional use by the Planning Commission and it
is not far from this. Mr. Guthary said the house would be left like a house that could
later be rented or someone could live in.
There was no one present to oppose the application. The public hearing was concluded.
Connie Clack moved to grant the variance as requested conditioned on the fact that it
would apply only to the present owner of this house and for this use only.
James White seconded the motion which carried unanimously.
The next item discussed was the application of Arnold McCraw to ARNOLD McCRAW
vary minimum lot width for a duplex in the R-0, Residential Office 351 N. Highland
zone for property at 351 N. Highland Avenue. The public hearing Appeal No. 74-8
on this request was held April 8, 1974 but action was delayed until more
information could be obtained from the City Attorney in regard to the Board's power
and the definition of undue hardship.
Suzanne Lighton moved that in view of the information given by the Planning Commission
and City Attorney the Board grant the variance as requested by Mr. McCraw and James
White seconded the motion. There was some discussion about requiring the right-of-way
for the alley between McCraw's property and Mrs. Robinson to be closed and abandoned
by the City but the Board felt the alley was used quite a bit and would be used even
more when the house was converted to a duplex. David Newbern said he thought the house
was very small for a duplex. He said there will be more people on that property because
it is a duplex. He said he felt a little put out with the applicant because he made his
plans and then came to the Board of Adjustment for a variance.
The vote was taken and the motion passed with Clack, Yates, White and Lighton voting
"aye and Newbern voting "nay".
The minutes of the April 8, 1974 meeting were approved as mailed. MINUTES
The meeting adjourned at 4:30 P.M.
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P.O. BOX 1004
OFFICE OF CITY ATTORNEY
72701 (5011 521-5323
April 23, 1974
Mr. Carl Yates
Chairman
• Fayetteville Board of Adjustment
1400 Eastwood
Fayetteville, Arkansas 72701
Re: Variance request by Dandy Oil Company
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Dear Mr. Yates:
There is a possibility that Dandy Oil Company may petition
the Board of Adjustment for a rehearing on its requested variance
or may file a new application for a variance, based on a change
in the architect's plaits for the proposed addition to Dandy Cil
Company which change would reduce the necessary variance from -
existing setback requirements. The Fayetteville Zoning Ordinance
and the Arkansas Statutes make no provisions in this regard, but
the Arkansas Supreme Court has ruled that, "a zoning board may
entertain successive applications for the same relief, especially
when there is a showing of changed conditions. McQuillen,
Municipal Corporations, Sec. 25.275 (1965)." halthour v. Alexander,
243`Ark. 621, 421 S.W. 2nd. 613 (1963).
The section of McQuillen cited by the court reads in
part as follows:
"A zoning board may ordinarily entertain new or
successive applications for the same relief, based
upon changed conditions or new circumstances, al-
• though it is a general rule that after an applic-
ation or petition has been decisively acted upon
by a zoning board no new application or petition
touching the same subject matter may be presented
to the board within a designated time, or within
a reasonable time. Where a new application is
made, however, it is essential that changed
conditions or circumstances be shown. A board
is not required to hear a second application
which is precisely the same as a prior one,which _
has been disposed of by the Board.
In Anderson, American Law of Zoning, Sec. 16.50
(1968) it is stated:
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Even without srecific authority derived from a
statute or ordinance, a Board of Adjustment can
reopen and rehear a natter where circumstances
have changed since the first decision was
rendered. A rehearing under these conditions
is viewed more as a new application for relief
than as a notion for reconsideration of the
initial decision. While it is well established
that the doctrine res judicata applies to
administrative decisions such as those relating
to special permits and variances, it is said
that
the rule of res judicata does
not bar the malting of a new application
for a variance, or .for modification
or enlargement of one already granted,
or for lifting conditions previously
imposed in connection with. the grant
of a variance upon a proper showing
of changed circumstances or other
good cause warranting a reconsideration
by the local authorities. 1
In Section 16.53 of the same work, the author states that
a :'eduction in the extent of the relief requested has been held
sufficient, and a change in plans for the proposed use has been -
held to constitute a change which was sufficient to support
a different decision on a second application.
Sincerely,
CITY ATTORNEY
f /7.0'
msN. McCord
JNMc/dah
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cc: Ms. Bobbie Jones
Mr_ Don Grimes
Mr. James M. 'Roy,.
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