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HomeMy WebLinkAbout1977-08-29 Minutes• MINUTES OF A BOARD OF ADJUSTMENT MEETING A meeting of the Fayetteville Board of Adjustment was held at 3:45 P.M., Monday, August 29, 1977, in the Board of Directors Room, City Administration Building, Fayetteville, Arkansas. MEMBERS PRESENT: Chairman Carl Yates, Dr. James White, Mrs. Don Mills, Rick Osborne, Chester House, Larry Smith, David Newbern. MEMBERS ABSENT: OTHERS PRESENT: Chairman Carl Yates None. Bobbie Jones, Angie Medlock, Rick Beye, Leo Peel, Thomas Jones, and other unidentified persons. called the meeting to order. The first item for consideration was APPEAL NO. 77-20 the public hearing on the Appeal No. 77-20, Thomas W. Jones Thomas W. Jones, 2557 Stanton Avenue, on an 2557 Stanton Avenue application to vary setbacks, or more specifically, he is asking for a 6 foot high view obscuring fence on his North property line and the required is 25 feet from the street right-of-way. He is also asking for a 4 foot high view obscuring fence on the front yard (East) from Stanton Avenue 12 feet from the property line and the required is 25 feet from the street right-of-way. This item was tabled at the August 15, 1977 meeting. Thomas W. Jones was present to represent. Thomas Jones said David Newbern had objected to the view obscuring fence at the previous hearing because Mr. Jones could still erect a chain link fence. Mr. Jones said the chain link fence would not provide them with the privacy they want, and.. part of the area on the north side of the house is going to be used as a garden area. Mr. Jones said there is a house whose driveway faces the north side of the house, a view obscuring fence will not obscure the garden from them. Mr. Jones stated that it was his understanding that the view -obscuring part of the;ordinance was for vehicular traffic. Mr. Yates questioned if the 36 -foot setback shown from Stanton on the North side of the house is to the property line or to the curb and Mr. Jones said it is to the drawing are from the curb. Mrs. Mills noted high fence south of the house and alongside right-of-way line rather than 12 feet from curb all measurements on the that this would also place the 4 foot the driveway within a few feet of the the right-of-way line. Chairman Yates acknowledged the following letter from Donald L. Grimes, a property owner in the area: (copy of this letter follows on last page of these minutes) The public hearing was concluded. The second item for consideration was APPEAL NO. 77-21 the public hearing on Appeal No. 77-21, Leo Leo Peel Peel, on an application to vary the requirement N. College Avenue for frontage on and access to a public or more specifically, he is asking for and Cliff Mills, on a piece of property requires frontage on and access to a public street. Leo Peel and Attorney Rick Beye were present to represent. Rick Beye said Mr. Peel was solicited by a real estate agent to purchase this property. Mr. Beye said Mr. Peel bought this and recorded the deed but when he came in for a building permit he found out Mr. Hudson had violated the frontage require- ments of the Zoning Ordinance. Mr. Beye said he will have to have a variance to receive a building permit for the. front portion which fronts on Highway 71. He said this had come to the Board of Adjustment before but was tabled so Mr. Hudson street, use of a private road built by Dick Hudson which is land locked and the ordinance 12� J Board of Adjustment Meeting August 29, 1977 -2- could try to find a way to meet the requirements. He said Mr. Peel had tried to purchase the balance of the property from Mr. Hudson, but Mr. Hudson had recently passed away. Rick Beye said they have verbal promises from the property to the south for an easement for a roadway. He said Mr. Hudson had helped pave the road (easement) in 1971. They are asking for a variance so they can build on the property owned by Mr. Peel, which will not use this easement. Mr. Beye said in his opinion the self-created hardship rule applies if someone purposely creates a hardship in the self-created hardship rule. Mr. Beye contended that Mr. Hudson is the one who created the hardship; Mr. Hudson was the one who listed the property for sale and had his broker record the deed. He said the ordinance says it is " improper to subdivide for sale or offer for sale" such property. He pointed out that it does not say it is improper for someone to purchase an improperly divided piece of ground. He said if that is what the Ordinance means, it should expressly say so. Mr. Beye said they can achieve the purposes of the City and the purposes of this commercial property with this deed of easement for the access road on the south side of Mr. Hudson's property. Mr. Yates asked if the deed of easement has been executed yet and Mr. Beye said it has not been pending action of the Board of Adjustment. Chairman Yates questioned what legal resource Mr. Peel had if he is not able to work out some type of variance from the Board of Adjustment. Rick Beye said they could make an effort to force a court reconveyance back to Mr. Hudson for his violation of the Zoning Ordinance. Dr. White asked how they are planning to use the property. Rick Beye said Leo Peel is wanting to put a real estate office on the property which will front on Highway 71 and have access on Highway 71. Leo Peel said he could not see any reason why the Board of Adjustment could not approve this variance. Chairman Yates asked who owns the property where the trailer park is located. Rick Beye said it is in the process of being changed from Cliff Mills to Charles Mills. Rick Beye said the majority of the roadway is located on Mr. Mills' property. Chairman Yates asked how wide of an easement this would be and Mr. Beye said it is not limited according to width but it is written to cover what is there. He felt it would be 25-30 feet but had not had it surveyed yet. Chairman Yates asked if they had considered designating this a public street and Rick Beye said he did not feel Mr. Mills would be willing to dedicate it. He also noted that the terrain of the street is such that they would not be able to widen it to city standards. Chairman Yates stated that it seems the Board of Adjustment is being asked to legalize Mr. Hudson's illegal sale on the basis that they should not penalize Mr. Peel for Mr. Hudson's action. Mr. Yates said it seems since Mr. Peel is in the real estate business he should have been aware of the consequences of this when he pur- chased the property. David Newbern said it seems that everytime the clerk makes a mistake and records a lot split which has not been approved, came to the Board of Adjustment for a variance, (the owner or either party of the lot split) Rick Beye said he does not feel they are here just because of the county recorder's error. He said the purpose behind the street frontage requirement has been served if a street easement with 25-30 feet paved already exists back into the property. Mr. Peel said when he purchased the property he was furnished a statement from the City that water and sewer and all utilities were available to him. He said they had expected a permit from the City and did not expect any problems. He stated that all information furnished to him was that this was legitimate. David Newbern asked Mr. Peel if he had consulted an attorney when purchasing the property and Rick Beye said Mr. Peel did not consult an attorney prior to the offer ,and acceptance agreement but before accepting the deed, he did have an attorney give an opinion and the opinion stated that "you should be aware of what are the requirements of the city". Rick Beye said this is a very common phrase used by many 1,51A • • • • • • August 29, 1977 Board of Adjustment Meeting -3- of the attorneys in town and is a kind of "cop-out" by the attorneys in that it does not use the legal expertise which they allegedly have and are selling, to read the laws of the City and be able to tell the buyer what he should know. David Newbern asked if anything was said about a lot split when he purchased the property and Rick Beye said nothing was said. Richard Osborne pointed out that the circuit clerk who records the deeds is merely a clerical employee and does not have the authority to decline to record something which on its face has been properly executed. He felt it was not her responsibility to check if it appears on its face to be properly execited. He did not feel the county recorder's area of duty includes trying to figure out what a lot split is. David Newbern said the statute says "it shall not be recorded". He said there is a question of "what is proper on its face", he asked if a lot split not approved by the Planning Commission would be proper on its face. The public hearing was concluded Bobbie Jones said if the property in the rear APPEAL NO. 77-21 had retained a 25 foot strip, he could have Leo Peel asked the Planning Commission to approve a tandem lot. Dr. White asked Bobbie Jones if this would have to be dedicated and Bobbie Jones said it would just have to be retained ownership by Mr. Hudson. Bobbie Jones said the subdivision regulations read that "no building permit shall be issued for construction of any building,no person, firm or corporation shall sell or offer for.sale any lot, no water, sewer, gas or electric service shall be extended to serve any structure on any lot, nor shall any land be accepted for dedication by the county recorder unless: 1) The lot, building or structure was established before the adoption of this ordinance: 2) The lot is part of a subdivision approved by the planning commission: 3) A waiver or variance has been granted under the provisions of Article IV, Section A of this ordinance. (Ord. No. 1847, 2,1-17-72)" She said Article IV, Section A of the Subdivisions Regu- lations allows the Planning Administrator to waive subdivision of property up to three times but it must conform to the Zoning Ordinance. David Newbern said this does not conform to the Zoning Ordinance because the second lot has no access. Several board members expressed concern that the variance sought would benefit a property owner who had not attended the hearing and who had expressed no desire for the variance. Richard Osborne made a motion to table this and request an opinion from City Attorney Jim McCord as to whether the Board of Adjustment has the authority to approve this. Dr. White seconded the motion. Chairman Yates asked that Richard Osborne and David Newbern meet with City Attorney McCord anddiscuss this. The motion, made by Richard Osborne and seconded by Dr. White passed unanimously. David Newbern noted that part of the proposed APPEAL NO. 77-20 fence on the east side next to Stanton Avenue Thomas W. Jones (north side of the house) is quite a ways back from the street; also the part running east and west would be the real view - obscuring part of the fence. David Newbern said they had permitted Maurice Jennings a fence on Lafayette. He felt there would not be view -obstruction there and also acknowledged the contour of the land. Mr. Newbern said this was a cosmetic request also. Mrs. Mills said the 4 foot fence next to the driveway is the part that bothers her. She felt you could do as much for privacy with a chain link fence and shrubbery. • • • August 29, 1977 Board of Adjustment Meeting She also said this is not truly a hardship case. Bobbie Jones said the Planning Commission does have an ordinance before them which they will consider September 12 in which they may reconsider the view -obscuring fence regulations. She said under .the proposed ordinance if the Planning Office felt there was no vehicular or pedestrian traffic interference then they could approve the fence. Chester House made a motion to deny the request. David Newbern seconded the motion: Mrs. Mills asked if they vote to deny the request, would Mr. Jones still be able to come back to. the Planning Office if the Ordinance passes on fences, and Bobbie Jones said "yes". The motion to deny the variance passed 6-0--1, with Yates, White, Newbern, Smith, Mills, and House voting "Aye", and Osborne abstaining. The meeting was adjourned at 5:00 P.M. •