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HomeMy WebLinkAbout1974-05-06 Minutes• MINUTES OF A BOARD OF ADJUSTMENT MEETING arezee/G. Tri A meeting of the Fayetteville Board of Adjustment was held Monday, May 6, 1974, at 4:00 P.M. in the Directors Room, City Administration Building, Fayetteville, Arkansas. MEMBERS PRESENT: Connie Clack, Suzanne Lighton, Carl Yates, David Newbern. MEMBERS ABSENT: James White. OTHERS PRESENT: James Roy, Jr., Attorney; George Dandy; Gary Dandy; Jim Lierly; Aften Brannon; C. A. Hughes, Jr. Chairman Carl Yates called the meeting to order. Chairman Yates opened the public hearing on Appeal 74-10, David Lierly, APPEAL 74-10 1363 Hendrix Street on an application to vary setbacks. Mr. Lierly DAVID LIERLY requested a side setback of•5 ft. rather than the required 8 ft. setback. 1363 Hendrix Jim Lierly was present to represent the application for his brother. He stated that Mr. Lierly was unable to attend as he was hospitalized with a back injury. Mr. Lierly explained that his brother wanted to build a garage with an upstairs portion over the garage and attach it to his house. He wished to make it 14 ft. wide. Mr. Lierly said their father owned the property to the West. Chairman Yates asked Mr. Lierly if the construction was not in fact already underway. Mr. Lierly said his brother had told him that he had thought the original building permit issued sometime in 1972 had included the garage and top story. He said he had not given him any reason for getting the structure too close to the property line. Connie Clack asked what type of adjustment would have to be made in the structure • if the variance was denied. Mt. Lierly said the framing is all up. He would have to remove the top story and set the West wall in 3 ft. He has a concrete slab already poured. Suzanne Lighton asked if there was any regulation to prevent them having a 3 ft. slab extending out past the building wall. Planning Administrator Bobbie Jones said it is permissible to have a concrete slab within the required setback. She added that they would probably have to break the concrete slab and put in a new footing for the relocated wall to rest upon. Mr. Lierly stated that he felt 'sure that whatever the outcome of the Board's action his brother would not tear the addition down. He said his father owns the property to the West and his brother would probably just buy 3 ft. from his father. There were no further questions. There was no one present to oppose the variance request. The public hearing was concluded. Chairman Yates opened the public hearing on Appeal No. 74-11, Dandy APPEAL 74-11 Oil Company, Inc., 1421 South School Avenue on an application to vary DANDY OIL CO. setbacks. The applicant requested a front -setback of 50 ft. from the 1421 S. School right-of-way of School Avenue rather than the total setback of 55 feet required by the Zoning Ordinance and the Major Street Plan and a setback of 50 feet from the right-of-way of 15th Street rather than the total setback of 60 feet required by the Zoning Ordinance and the Major Street Plan. Attorney Jim Roy, Jr., George Dandy and Gary Dandy were present to represent the application. Mr. Roy pointed out the changes in setbacks requested on the plan submitted with this application and an earlier plan submitted on Appeal 74-1. He stated that • Mr. Dandy wanted to construct two 28 -ft. bays opening toward 15th Street and two 28 -ft. bays facing onto School Avenue. He said that if the bays facing onto 15th ' Street were moved any farther to the North they would overlap the bays facing onto Board of Adjustment -2- 5-6-74 School Avenue. Mr. George Dandy told the Board that he was considering putting three bays on the West side of the present building with the West line of the building coming within 5 ft. of the existing car wash. The Board discussed with Mr. Roy and Mr. Dandy possible alternatives in the arrange- ment of the building. Miss Lighton stated that as a general principle she was against granting variances on busy Highway 71. Gary Dandy reported that he had checked into the right-of-way for Highway 71 and that it is set up for 40 feet West of the centerline and 30 feet East of the centerline across the front of their property for a total of 70 ft. right-of-way. The property lying North of them he said only has 60 ft. of right-of-way in front of it with 30 feet each side of the centerline. He said that South of 15th Street, there is 100 feet of right-of-way on School Avenue with 50 ft. on each side of the centerline. He felt that the additional 10 feet of right-of-way to meet the Major Street Plan should all come off the East side. George Dandy said that at the time the existing building was built in 1964 he was set back as far as was necessary, and thought they had allowed for widening. Mr. Dandy said the Arkansas Highway Department had approved the setbacks and location of sign at that time. Miss Lighton asked if the highway line had changed since then. Mr. Dandy said he was not aware of any action in which it had changed. Mr. Dandy said he had given the Highway Department 5 feet of right-of-way when Highway 16 By-pass was built Mr. Roy said that the applicant has gone back to the architect to try to get the building back as far as they can. Miss Lighton asked if they were certain as to where the actual highway right-of-way really is. Mr. Roy said the plot plan presented reveals where the County Court records say the right-of-way is and it also reveals where the City Major Street Plan sets the • future right-of-way line. Miss Lighton asked if they had ever talked to the Arkansas Highway Department to see if there is any disagreement about what the old records indicate where the right-of-way would be. Mr. Gary Dandy said he had talked to the Arkansas Highway Department. He had made a trip to Little Rock. He said it took them 3 or 4 days to come up with the information that in 1929 when the County made Highway 71 a U. S. Highway they had to give the State so much property. He said the Highway Department had told him that the amount of right-of-way varies up and down the highway. He added that Mr. Bronson at Bronson Abstract had told him that the Judge had burned the records when this was done, so there is no record in Washington County as to the 1929 transaction on the highway. Mr. Dandy said that the highway officials had told him that in 1929 there was designated 40 ft. of right-of-way on one side and 30 ft. of right-of-way on the other side. Miss Lighton asked if, as a practical matter, Mr. Dandy and the Highway Department agreed as to where the highway right-of-way is. Mr. George Dandy said that when he built the station in 1964 he had to get a permit from the (Arkansas) Highway Department and had to put an 18 inch tile in for a drain and had to comply with the Highway Department on his driveways. He said he put up a deposit, made his driveways, put in an island on highway right-of-way with his property line just inside the island, had the Highway Department come down and inspect these and obtained his deposit back fram the Highway Department. Mr. Roy said that the map shows the right-of-way line which the Highway Department claims but that there is some question as to whether or not it is the correct right-of- way line. David Newbern asked if Mr. Dandy planned to continue to sell gasoline. Mr. Dandy said he did. Mr. Newbern asked other questions about entrances and pump locations. They told him the pumps will remain where they are; they planned to have doors on the West side of the addition so traffic entering from School Avenue could go on through; and that traffic entering the bays off Fifteenth Street would have to back out of the building. c{0 • • Board of Adjustment -3- 5-6-74 There were no further questions. There was no one present to oppose the request. Chairman Yates called the.attention of the other Board members to a letter which he had received from City Attorney Jim McCord relative to the Board's right to grant a rehearing on variance requests. Each of the Board members had received a copy of that letter. Chairman Yates said it is his personal opinion that the Board was looking at a re-application and not a rehearing particularly since they are requesting a different setback from Highway 71. Chairman Yates requested that the letter from the City Attorney be entered into the minutes of this meeting. The letter follows in its entirety and is hereby made a part of these minutes: "April 23, 1974 "Mr. Carl Yates Chairman Fayetteville Board of Adjustment 1400 Eastwood Fayetteville, Arkansas 72701 "Re: Variance request by Dandy Oil Company "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 plans for the proposed addition to Dandy Oil 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:" Walthour v. Alexander, 243 Ark. 621, 421 S.W. 2nd 613 (1968). "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, although it is a general rule that after an application or petition has been decisively acted upon by a zoning boardhno-new application_or:tpeiition_touching the ammo 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 circum- stances 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: "Even without specific authority derived from a statute or ordinance, a Board of Adjustment can reopen and rehear a matter where circum- stances 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 motion 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 9, • • Board of Adjustment 5-6-74 -4- '. . . . the rule of res judicata does not bar the making 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."" "In Section 16.53 of the same work, the author states that a reduction 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 s/ James N. McCord James N. McCord MNMc/dah cc: Ms. Bobbie Jones Mr. Don Grimes Mr. James M. Roy, Jr." Planning Administrator Bobbie Jones told the Board that a new advertisement (Notice) had been published on this application. The public hearing was concluded. Chairman Yates opened the public hearing on Appeal 74-12, Aften Brannon, APPEAL 74-12 27 East Sixth Street on an application to vary setbacks. AFTEN BRANNON Mr. Brannon was present to represent the application. He requested a 27 East Sixth variance to build a two -car garage that would be within 2 ft. of his side property line rather than 8 ft. required by ordinance. He said the church adjacent to him had told him they did not object to him building within 2 ft. of his property line if ,hr' would permit them to go across his property to get to their parking lot in back of him. Mr. Brannon said he has a 10 ft. by 38 ft. patio on the East side of his house, but that the footing of the garage would have to be poured 2 or 3 feet higher than the patio. He said his lot is 75 ft. wide and he wants a 20 ft. by 30 ft. garage and storage building. He said he does not want to attach the garage to the house because he has windows in that side of the house and because the house is too low and would make the garage roof too low. Mrs. Clack asked if he had considered moving the garage or patio one elsewhere. He did not feel this could be done. He said he does have two cars and does need a double garage. There were no further questions. There was no one present to oppose the application. The public hearing was concluded. Chairman Yates opened the public hearing on Appeal 74-13, L. L. Stanton APPEAL 74-13 and C. A. Hughes, Jr., for property at 1857 Wedington Drive on an STANTON & HUGHES application to vary minimum lot width and also to appeal from Article 4, 1857 Wedington Item 2, Paragraph 2, Ordinance 1747. Mr. Hughes was present to represent the application. He said the property in • question was part of a subdivision plat accepted by the City in 1956. After the subdivider died, he and Mr. Skelton had bought all the lots. Lot 1 was platted only 60 ft. wide. Mr. Hughes said when they sold Lot 2, they retained 5 ft. of it • Board of Adjustment -5- 5-6-74 in order to make Lot 1 wider. The new property line comes within 2 ft. of the driveway for the house on Lot 2 according to Mr. Hughes. Chairman Yates asked how much setback they had from the house on Lot 2. Mr. Hughes said the roof overhang of the garage is 27 ft. from the new property line. He said a big row of trees and a big ditch on the West side of the Lot 1 about 7 ft. past the lot line. He said they have been trying to purchase that 7 ft., but have been unable to do so. David Newbern asked if they plan to construct a single family dwelling and also whether they expected to have any setback problems. Mr. Hughes said they did plan to construct a single family dwelling, and did not think there would be and problems meeting the setbacks. He said if the variance is denied, there would be nothing_they could do with the lot. Chairman Yates asked why they did not obtain more than 5 ft. off Lot 2 and just build the owner of Lot 2 a new driveway. Mr. Hughes said they have a driveway with a turn around in back and it would have been hard to do. There were no further questions. There was no one present to oppose the application. The public hearing was. concluded. Suzanne Lighton moved to grant the requests for variances on Appeal 74-13, L. L. Stanton and C. A. Hughes, Jr. as presented. David Newbern seconded APPEAL 74-13 the motion. Mrs Clack remarked that this is a reasonable request. Miss Lighton stated that this is just one of those cases where the applicant got caught with a lot size which- is not in compliance with the ordinance. Mr. Newbern stated that it seemed to him that this is a hardship type case where somebody has a lot that cannot be used for much of anything under the current zoning, but to change the zoning to allow anything • other than a single family dwelling would not be desirable. He said he thought it would be a good idea to grant the variance. Chairman Yates said that in his opinion it would be particularly true because of the setbacks of the house on Lot 2. The vote was taken on the motion to approve the variances as requested. The motion was approved unanimously. • The Board discussed further Appeal 74-12, Aften Brannon. Mrs. Clack said APPEAL 74-12 she wondered if something else could not be worked out that would be satisfactory; if perhaps some adjustment might be made in the location or the size of the garage so that he could, if not actually meet the setback requirement, at least come closer to it. David Newbern said he was troubled by the request mostly because of what might happen to this property in the future. He said Mr. Brannon would be getting right up to the property line and the church might not always want to use it for a parking lot or even continue to own the adjacent lot. Chairman Yates and Mrs. Clack discussed whether the garage could be moved closer to the house, farther to the back of the lot, or decreased in size. Chairman Yates noted that the garage could not be placed behind the house without requiring a variance in that location. Bobbie Jones reminded them of the requirement for 10 ft. separation between structures unless the structures are joined together. Mrs. Clack suggested the Board defer action to enable Mr. Brannon to investigate some alternate plan. Mr. Brannon said he could look at it again but he did not think he would change his mind. David Newbern said the problem the Board is faced with is that the house and size of the property was never intended for a 2 car garage. He said he was somewhat swayed by the church's acquiescence, but felt the Board should look at it from the long range. He added that if Mr. Brannon wants to build a 2 -car garage, he would have to work out something different from what he has proposed. Mr. Newbern said he could not see any particular hardship. He said Mr. Brannon simply has a lot too small to accomplish q3 r. Board of Adjustment -6- 5-6-74 • • • the purpose he wants to use it for. Miss Lighton agreed. Mr. Newbern suggested Mr. Brannon either move the garage to.the West enough to meet the side setback, and attach it to the house by covering the patio, or move it to the South enough to be able to retain 10 ft. between the house and garage and get more room between the garage and the property line. Connie Clack moved that the Board deny the variance request as presented, but allow Mr. Brannon the right to come back before the Board with a revision without having to re -advertise if a"revision was submitted to the Planning Office within 30 days time. Suzanne Lighton seconded the motion which was approved unanimously. Suzanne Lighton moved that the Board deny the request of Dandy Oil APPEAL 74-11 Company, Appeal 74-11, for a 5 ft. variance in setbacks required from the right- of-way of School Avenue and that the Board grant the request for a 10 ft. variance in setbacks from the right-of-way of 15th Street up to and including the right to construct 3 bays on 15th Street. It was noted that this would allow for an addition that would front 48 ft. on 15th Street. David Newbern asked Miss Lighton to explain her reasoning on this. Miss Lighton explained that she thought the variance on 15th Street was not as crucial as one on Highway 71. Mr. Newbern stated he had the opposite feeling; that it seemed to him that there would be less traffic entering the business establishment on the Highway 71 side and that there would be a through access for the service bays on the Highway 71 side and there would not be through access for the service bays on the 15th Street side. Mr. Newbern questioned the motion to deny the variance on the Highway 71 (South School) side because he felt the problem was not as acute on that side with the service bays having a rear exit. Miss Lighton's motion to deny the variance requested on School Avenue and to approve the variance requested on 15th Street died for lack of a second. David Newbern moved that the Board grant the variances as requested by Dandy Oil Company, Appeal 74-11, in the public hearing on this date to construct 3 bays facing toward 15th Street and to condition approval upon the assurance that there will be flow-through traffic on the two north bays of the contemplated structure. Suzanne Lighton seconded the motion which was approved unanimously. Connie Clack moved to dere* the variance request of David Lierly, Appeal 74-10, and commented that she thought the problem would be solved if he purchased APPEAL 74-10 an additional 3 ft. of property from his father as Mr. Jim Lierly had discussed David Newbern seconded the motion which was approved unanimously. The minutes of the April 22, 1974 Board of Adjustment meeting were approved MINUTES as mailed. The Board discussed the meeting time of the Board. Those present agreed by MEETING TIME general concensus to change future meeting times to 3:30 P.M. on Mondays. The meeting was adjourned at 6:00 P.M.