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HomeMy WebLinkAbout1976-05-28 Minutes• • • MINUTES OF A BOARD OF ADJUSTMENT MEETING The Fayetteville May 28, 1976, in Fayetteville, Ar MEMBERS PRESENT: MEMBERS ABSENT: OTHERS PRESENT: Board of Adjustment the Directors Room, kansas. met at 4:10 P.M., Friday, City Administration Building, Chairman Carl Yates, James White, David Newbern. Connie Clack, (one position on Board is vacant). Dr. J. B. Hays, Gerard Halpern, Attorney Hugh Kincaid, Attorney Tom Burke, Hall Logan, Ralph Downs, Bobbie Jones, and other unidentified persons. Chairman Carl Yates called the meeting to order. A public hearing had been held on Appeal No. 76-14, APPEAL 76-14 Dr. J. B. Hays, for property at 1140 North College, DR. J. B. HAYS on May 17, 1976. Dr. Hays was appealing for a variance in 1140 North College the setback requirement contained in Article 7, Section 14, of the Zoning Ordinance that a "building of a hospital, sanitarium, or convalescent home for alcoholic, mental, nervous, narcotic, or contagious patients" be set back 200 ft. from abutting residentially zoned property. An organization known as Life Styles, Inc. proposes to lease a number of rooms in the "Vet View Motel" to be used as a live-in, group facility for mentally retarded adults. Chairman Yates explained that after the public hearing had been closed on May 17, the Board of Adjustment had decided there were questions which they wanted answered by the City Attorney; therefore, the request had been tabled. Chairman Yates further explained that, at the request of the other Board Members, Board Member David Newbern had written a letter to the City Attorney posing the following questions: 1. Does a motel owner require a variance in order to rent motel facilities, not consisting of the entire motel, to a charitable organization for the purpose of housing mentally retarded persons? 2. Inasmuch as no building permit is being required, and no construction is to take place in regard to this variance request, could this be considered a "use variance" which would not fall within the purview of the Board? (Under which section(s) of the City ordinances is the Board authorized to consider this kind of variance?) 3. If the Board of Adjustment has jurisdiction over this request, may the Board impose conditions upon the use of the property by the owner, e.g., a limitation on the number of retarded persons to be housed on the property? As a corollary to the third question, Mr. Newbern asked the City Attorney if the setback could be waived for one purpose only. Chairman Yates informed the audience that since the public hearing the Board has received a letter from the City Attorney dated May 20, 1976, in answer to Mr. Newbern's letter; a letter dated May 25, 1976, from Carol Hart with Life Styles, Inc.; and a letter dated May 25, 1976, from Attorney Hugh Kincaid representing the property owners in the area of 1140 North College. Copies of the three letters were available to be read by anyone not having already seen them. In view of those three letters, Chairman Yates said that the Board was willing to open the public hearing up again for public discussion if anyone had any additional information they thought the Board should consider. Attorney Tom Burke was present to represent Dr. Hays. He said that the intent was not to establish an insane asylum or a convalescent home or a health care facility for insane persons in this area, but rather it is a scheme to afford living quarters to some retarded adults under some carefully drawn safeguards. He requested the Board to review Planning Administrator Bobbie Jones' decision that a variance is Board of Adjustment -2- May 28, 1976 needed because she feels that the proposed use will constitute a change of use from a motel. He'said that it is equally arguable that the renting of this space to these people for a place of abode is consistent with the operation of a motel, and that other motels do this from time to time and Dr. Hays did not need a variance. He added that even if the Board did determine in reviewing the Planning Administrator's decision that a variance is required, they did not have to approach the matter as if it were a rezoning. Mr Burke pointed out that the Board has the power, under the Arkansas enabling legislation, to impose reasonable conditions on the granting of a variance and said that Dr. Hays is agreeable to conditioning the variance on compliance with the scheme embodied in Mrs. Hart's letter of May 25, 1976. He said they were willing to agree that it would not be expanded to include narcotic addicts, alcoholics, or truly insane persons who would pose a threat to the community. He said he could not see how the operation of Life Styles was going to impose any reasonable burden or harm on the property in the area. He reviewed the physical characteristics of the property: buildings are horseshoe shaped, no exits to the rear, points of access are all to the front, there is a wire fence separating the motel property from the residential property, and he could see no likelihood that any of the Life Style clients would be outside and exposed to the residential areas. He said the clients would be carefully screened and would be emotionally stable and socially developed to the extent that they can associate without disrupting the living situation. He said the occupants and intelligence level of the motel was not pertinent to the value of and the well being of the safety of the people in the neighborhood.- He again said he thought the Board was in a position to exercise its discretion to approve the use with appropriate safeguards. Attorney Hugh Kincaid, representative of the people in the neighborhood in opposition to the granting of the variance, addressed the Board He said he thought the City Attorney's letter answered the question of whether or not a variance was needed and pointed out that Dr. Hays would not be leasing to these people individually but would be leasing to an institution, a non-profit or charitable organization, for the purposes indicated in the appeal. He felt a variance was required, but did not wish to say whether it should be a variance from a setback requirement of 200 ft. or 50 or 100 ft. He said that, reading the requirement in context, it should be assumed to refer to a facility and not to the construction of such a facility. Personally he felt the 200 ft. setback requirement should be required. He said that clearly it is not the proposed occupants who are contracting with Dr. Hays to lease the building, but Life Styles, Inc. which would be a change of occupancy to a non-profit or charitable organization. On the question of whether the Board could limit or impose conditions which would limit the number of occupants to ten and the type of disability to mentally retarded adults aged 18 to 24, he thought the City Attorney made it very clear that the Board did not have the authority to with- draw a right otherwise afforded under the ordinance as a matter of right by imposing conditional limitations. The sole barrier to the occupancy by Life Styles was the 200 ft. separation according to Mr. Kincaid. He said he thought the requirements of the ordinance was a wise decision by the Planning Commission and City Board of Directors because of the need of an adequate buffer. Mr. Kincaid said he thought no hardship had been shown by Dr. Hays. He felt that on the basis of the information submitted to the Board, the Board could not make the necessary findings necessary to warrant a variance. Tom Burke disagreed with the position taken by City Attorney Jim McCord that a condition could not be imposed. He said the Arkansas enabling act specifically provides that this Board may grant a variance on such conditions as required. He said that in addition to that provision that it is also ,25 • • • Board of Adjustment -3- May 28, 1976 implied, and since it is implied, it ought to be even more implied when Dr. Hays was present agreeing to such conditions. He promised that if the variance were to be granted with the conditions attached to it, they would "make it stick." Dr. Hall Logan took exception to the statement that the clients in this case could be controlled and kept on that property. He pointed out that there is no grass on the property and the only places where the people could go to walk would be either to Evelyn Hills Shopping Center or to North Street or Oakwood which is in their particular residential area. He said he did not think it possible, or even right, to restrain the people into such a compact area. He agreed that they would not all be dangerous people, but said they will have the mentality of seventh to ninth graders even though they will have the desires and strengths of adults, and he did not think one or even two persons could control ten people for 24 hours a day. He said he had had experience in this field. He felt there were other locations where this could be done. He asked to whom the neighborhood would complain if the people did wander into their area ---Board of Adjustment? property owner? Police? Ralph Downs with Region I, Arkansas Mental Retardation Developmental Disabilities Service, Arkansas Social and Rehabilitative Services, said they already have five other independent living residences in the State. He said that generally their clients were not marginal employees and that a great number of them are eventually able to move out and maintain residences of their own after a period averaging 9 months within the homes. Chairman Yates referred to a portion of City Attorney McCord's letter which stated that the Planning Commission could reduce these setbacks when reviewing a large scale development or a planned development. He asked Planning Administrator Jones if Dr. Hays could process such a development plan through the Planning Commission. She explained that these are designed for development of parcels of property larger than one acre and are required when certain minimums of development or construction is being done. She said there is no requirement to process such a plan in this case and she questioned whether Dr. Hays could apply to do so. Chairman Yates also asked about referring the question of interpretation of the use to the Planning Commission. Mrs. Jones explained that because of the number of interpretations which were having to be referred to the Planning Commission the Zoning Ordinance had been amended to place the interpretations of uses in her hands; and that as the Ordinance now reads, any appeal from her interpretation would come before the Board of Adjustment. James White asked Mrs. Jones if the Scottish Inn, as an example, could rent a block of rooms to a high school for use of the high school students for one night and the high school pay the rent on the rooms. Could they do it for a week? Mrs. Jones replied that she did not know of any way to prevent them from doing this. Mr. White then stated that, in view of the answer just given to his question, he wished to move that this request be returned to the Planning Administrator on the basis that no variance is required because no construction is involved here; and, to say the least, it is evidenced by all the discussion the Board has had that the language of the Ordinance is ambiguous. He summed up his motion by saying that on the basis of ambiguity, no construction involved, and in view of the other things mentioned, he moved this be returned to the Planning Administrator for approval. David Newbern seconded the motion. Mr. Newbern stated that he agreed with the motion because he thought Hugh Kincaid's memorandum which solicits the Board to interpret this term "building" as being a noun, using the word in a nominal sense, or noun sense, instead of a verb is indicative that the Board probably ought to be concerned about the language in the City Attorney's opinion which says that, "Under Arkansas Law, zoning ordinances, being in derogation of the common law, must be strictly construed in favor of the property owner." Board of Adjustment -4- May 28, 1976 Mr. Newbern said he had given a lot of thought to this and had looked at some of the cases that are cited in the treatises that Mr. McCord recites. Mr. Newbern said he was very confused by the language of the Ordinance and could not even seem to ascertain even the intent of the Ordinance very well. He admitted that he did not really know what this Ordinance means in this context He continued to say that, in view of that, he thought the Board should construe the Ordinance so as to recognize that the property owner has a right to use this property for this use unless he is going to build a hospital, sanitarium, or convalescent home for alcoholics, etc. Otherwise, he said he thought what they were talking about was a "use variance". He said that although City Attorney McCord did not agree, he was not sure he could follow Mr. McCord's reasonings. Mr. Newbern said that in accordance with his interpretation of the Blundell case, he thought the Board's obligation is to interpret this Ordinance in favor of the property owner unless they can clearly see the intent of the Ordinance or clearly interpret the language of the Ordinance and he could not do this. Chairman Yates stated that he was going to have to agree with the interpretation of the Ordinance as raised by the Planning Administrator. He said he disagreed with Mr. Newbern although he also felt the intent of the Ordinance could be clearer. He agreed with the previous discussion about Dr. Hays renting a block of rooms to a high school for a period of time being no problem; but that if Dr. Hays wanted to take that same approach and rent that same block of rooms by the day or week for this use Dr. Hays would be circumventing the Ordinance as he interpreted the ordinance. He referred to Mr. McCord's opinion and to the fact that the Board of Adjustment had requested an opinion as to whether it might place conditions on a variance. He said that since the power to regulate the use of property was not with the Board of Adjustment, but with the Planning Commission, Mr. McCord's opinion is that as far as the use within the limits of the Ordinance the Board of Adjustment cannot grant that and place restrictions or limitations on the use of the property. If the Board granted this variance, it could also be used for the other uses set out in the Ordinance as well. He said he had also asked Mr. McCord over the telephone whether the Board could place a time limit on the variance. Mr. McCord had told him the Board could not. Mr. Yates stated that he would have to agree with the Planning Administrator and he felt she had made the proper interpretation of the Ordinance. Mr. Newbern referred to Mr. McCord's opinion about placing conditions on variances. He said there is one case that is cited by the books that are generally well- known treatises on zoning and planning law for the proposition that Mr. McCord had cited. McQuillin, Municipal Corporations, Sec. 25.271. Mr. McCord cites this for the proposition that the discretion does not permit making restrictions on the use of specific property more severe than those imposed by the Ordinance itself. Mr. Newbern said that there is only one case cited by McQuillin for that proposition and it is the same case cited in Yokin and it is the case of Teglin vs Dodge, a Michigan case of 1946. Mr. Newbern explained that in that case there was no application for a variance at all; that what had happened was that someone wanted to get a building permit to build a multiple dwelling in a particular area where multiple type buildings were permitted. The Planning Administrator suggested they talk to the Board of Appeals (as the adjustment board was known there) because he did not think it was a good idea to build this building. The Board of Appeals agreed with the Planning Administrator and said they did not think this would be conducive to the health and safety of that neighborhood to allow that multiple type dwelling to be put up there. Mr. Newbern said that of course the court overruled the Board of Appeals. Mr. Newbern said that this case cited by McQuillin is the one being used by McCord for the proposition that you can't put restrictions that are more severe than those that are invoked by the Ordinance. 27 • • • • • Board of Adjustment -5- May 28, 1976 Mr. Newbern then read from the text of Anderson, American Law of Zoning, "The right of use which is vested by variance is a right with specific dimensions," and commented that thus a variance to extend a motel into a residential area is not a commercial reclassification which permits any commercial use, but a right to establish a motel; such a variance does not authorize a theatre. He said that if a variance is granted subject to conditions, the conditions further circumscribe the right; such a variance does not actually become effective until the conditions are fullfilled and it may be revoked if the applicant fails to comply. He pointed out a New York case in which a curb cut was permitted on condition that the applicant store no more than five cars on the premises and violation of the condition warranted cancellation of the permit. Mr. Newbern said that not only can the Board impose and limit the use in that way, but that it could enforce it. He said he was not sure how relavent this question was, but that he did disagree with Mr. McCord's proposition that the Board could not impose that kind of condition. He said his main problem was with the language of the Ordinance; he thought it was intended to apply to construction permits; perhaps the City should have an Ordinance that said you cannot change the use of a motel from a motel to renting by a charitable institution for the purpose of housing mentally retarded people; perhaps the City should have an Ordinance that proposes a buffer zone of 200 ft., but he did not think the City has one. Mr. Newbern agreed that if Dr. Hays did not have a building on the property, but wanted to build one, the Ordinance would require the 200 ft. separation. Mr. White agreed that he felt the same way. Chairman Yates stated he did not agree. He thought the Ordinance did intend that someone cannot change the use to another use unless he met the specific setback requirements for that particular use. Mr. Newbern stated that he understood and sympathized with that point of view, but felt that it arose out of the ambiguity of the Ordinance, and this was what bothered him. Mr. Newbern stated that he would like to interpret anything in which he felt there is a serious ambiguity in the Ordinance in favor of the property owner. Chairman Yates said he was influenced by one other thing. The Board is charged with making the best decision they can based on the best information they can get. There is set up, whether it is for an existing facility or the building of a new facility, by the Planning Commission and an Ordinance approved by the Board of Directors, a separation of 200 ft. Chairman Yates said he did not know whether this was a proper distance, but that there must have been some good reason for having the 200 ft. In this case, they would be going from 200 ft. to nine or ten feet. The vote was taken on the motion to return the appeal back to the Planning Administrator on the basis that no variance was needed as stated by Mr. White (Page 3 of these minutes). White and Newbern voted "Aye"; Yates voted "Nay". The motion failed to pass because the Zoning Ordinance specifically requires a concurring vote of three members to effect any action. David Newbern then moved to grant the variance as requested. James White seconded the motion. White voted "Aye"; Yates voted "Nay"; Newbern abstained. The motion failed to pass. The minutes of the May 17, 1976, Board of Adjustment Meeting were approved as mailed. The Board chose to defer approval of the minutes of the April 19 Meeting MINUTES until Mrs. Clack returned from her trip. The meeting was adjourned at 5:00 P.M. 21