HomeMy WebLinkAbout1978-12-04 Minutes•
•
•
MINUTES OF A BOARD OF ADJUSTMENT MEETING
A meeting of the Board of Adjustment was held on Monday, December 4,
1978, at 3:45 o'clock P.M. in the Board of Directors Room, City Administra-
tion Building, Fayetteville, Arkansas.
MEMBERS PRESENT:
MEMBERS ABSENT:
OTHERS PRESENT:
Vice -Chairman David Newbern, Chester House, Mrs. Don Mills,
Larry Smith and Richard Osborne.
Chairman Carl Yates and Dr. James White.
Bobbie Jones, Gail Biswell, Mr. and Mrs. Howard Prichard,
Cotton Presley, Mr. and Mrs. Bob Sweetser, Leo Wright,
Gary Carnahan, Carlon Bassett, Mrs. Maxine Vaught, Wallace
Taylor, and other unidentified members of the audience.
In the absence of Chairman Carl Yates, Vice -Chairman David Newbern
called the meeting to order.
PUBLIC HEARINGS:
The first appeal for public hearing
was Appeal No. 78-25, Howard Prichard, appli-
cant, 1194 S. Washington Avenue; property
zoned R-2, Medium Density Residential District;
Application to vary setbacks. Mr. and Mrs.
Howard Prichard were present to represent.
Vice -Chairman David Newbern explained that the applicant was request-
ing a variance to allow a 12 feet setback from the street right-of-way instead
of the required 25 feet, the street right-of-way in question being an opened
portion of 12th Street.
Mr. Prichard presented the appeal, stating that he and his family had
just returned to Fayetteville recently and were in need of additional room
in their home. He stated that they would like to build two rooms and a garage
onto the East side of their existing home. He stated that the two rooms would
not be any closer to the street than the existinghouse.
Mr. Newbern inquired whether Mr. Prichard owned the other lots behind
his house (Lots 6 and 7) and Mr. Prichard replied that he did. Mr. Newbern
questioned whether Mr. Prichad had investigated the possibility of adding on
to the house to the North (the addition would then be on part of Lot 4) and
Mr. Prichard replied that he had, but that he had decided this would not be a
good idea since this would mean the house would have to be split-level, it
would close off windows in the existing structure, and the roofline of the
addition would be higher than the present building. He stated that because
he and Mrs. Prichard were elderly, they did not like the idea of a split-level
home.
PUBLIC HEARING
APPEAL NO. 78-25
Howard Prichard
S. Washington Avenue
Mrs. Mills questioned whether the garage referred to is existing or
one of the proposed additions. Mr. Prichard replied that it was proposed.
Vice- Chairman Newbern then asked if there were any further comments or
questions by anyone present, and there being none, the public hearing was
declared closed on this appeal.
53
•
•
•
Board of Adjustment Meeting
December 4, 1978
The next appeal for public hearing was
Appeal No. 78-29, Modern Fence Co., Inc., appli-
cant, 3010 W. Sixth Street (Hwy. 62 West);
property zoned C-2, Thoroughfare Commercial
District, Application to vary
Presley was present to repres
Vice -Chairman Newbern
ing a setback from the street
of the required setback and Major Street Plan requirement.
Cotton Presley stated that his company simply wanted to construct a
canopy on the front of their existing building in order to dress up its front.
Mr. Newbern inquired how much closer this would be to One Mile Road
than the present building is and Mr. Presley replied that it would be 8 feet
closer.
Mrs. Mills inquired as to whether they had considered constructing the
canopy without the side wings and Mr. Presley stated that they had, but they
had decided the canopy would not look nearly as well without the wings. He
said that they would also be using the space beneath the canopy for display
purposes. He referred the board to the letter he had written to them (a copy
of same being included in the agenda hereof) wherein he stated that he felt the
canopy proposed (to be of cedar shake construction) would add to the "companies'
appearance tremendously "
Vice -Chairman Newbern then asked if there were any further comments or
questions by anyone present, and there being none, the public hearing was
declared closed on this appeal.
PUBLIC HEARING
APPEAL NO. 78-29
Modern Fence Co., Inc.
3010 W. Sixth St. (Hwy. 62 W.)
setbacks. Cotton
ent.
explained that Modern Fence Co., Inc. was request -
right -of -way of One Mile Road of 53 feet instead
The next appeal for public hearing was
Appeal No. 78-30, Shirley Sweetser, applicant,
101 E. 13th Street (southeast corner of S. Col-
lege Ave. $ E. 13th St. intersection); property
zoned R-2, Medium Density Residential District;
Application to vary setbacks and to waive Art. 4,
Sec. 2 of Zoning Ordinance regarding non -conforming
lots of record. Mr. and Mrs. Bob Sweetser were
present to represent.
Vice -Chairman Newbern explained that the applicant was requesting a
22 feet setback from 13th Street Right-of-way on Lots 1 $ 2, Block 5, which
were under single ownership on June 29, 1970, but have since been sold sepa-
rately. The requirement is that 25 feet is the setback from 13th Street for
a single family or duplex dwelling and with the Major St. Plan widening re-
quirement, 30 feet is required for a duplex. Art. 4, Sec. 2 regulates the
selling of contiguous non -conforming lots of record under one ownership as of
June 29, 1970.
Vice -Chairman Newbern asked Bobbie Jones to explain Art. 4, Sec. 2 as
it regulates this request. Mrs. Jones read said article and section of the
Zoning Ordinance, which reads in pertinent part as follows:
PUBLIC HEARING
APPEAL NO. 78-30
Shirley Sweetser
101 E. 13th Street
•
If two or more lots or combinations of lots and portions of
lots with continuous frontage in single ownership are of
Board of Adjustment Meeting
• December 4, 1978
•
•
record at the time of passage or amendment of this ordinance,
and if all parts of the lots do not meet the requirements
established for lot width and area, the lands involved shall
be considered to be an undivided parcel for the purposes of
this ordinance, and no portion of said parcel shall be used
or sold in a manner which diminishes compliance with lot
width and area requirements established by this ordinance,
nor shall any division of any parcel be made which creates
a lot with width or area below the requirements stated in
this ordinance.
Mrs. Jones stated that the minimum lot width in an R-2 zone is 60 feet and
that the two lots in question are 58 feet in width.
Mr. Newbern inquired whether lots 1 and 2 were owned by different
people and Mrs. Jones replied that they were, although on the date of the ordi-
nance, both lots were owned by the same person.
Mr. Newbern inquired of Mrs. Jones whether, according to her interpre-
tation, the Board does or does not have authority to grant a variance on this
matter. She replied that the Board has "previously gone both ways." She went
on to say that the Section she had just read provides that if both lots were
owned separately at the time and both met the required setbacks, she would not
have had to bring this question to the Board.
Mr. Newbern asked Mrs. Jones whether, if Mrs. Sweetser had been plan-
ning to build a single-family home instead of a duplex on this property, would
she have issued a building permit therefor. Mrs. Jones replied that she would
not "since at one time they were both owned by the same person."
Mr. Bob Sweetser stated that his wife, Shirley, had not been aware of
any restrictions on the lot when she purchased it. He said that he did not
agree that the lot only had 58 feet of frontage since he deemed the lot to
actually front on 13th street, since its house number is 101 E. 13th Street,
and that the lot has 140 feet of frontage on 13th Street. He stated that he
assumed a house is numbered according to the street it fronts on. Mr. Sweetser
stated that his wife wanted to build a duplex on the lot, and to do so they
would need an 8' variance. He said that if they used College Ave. as the
frontage of the lot, the only building he could build on the lot and use the
lot to its best advantage would be a long, rectangular "chicken house" type
strucutre approximately 20' x 90'. He said that there was plenty of room to
build a nice looking duplex on the lot without causing any difficulties.
Mr. Newbern questioned whether, in reality, this appeal was to decide
whether the frontage of the lot was on 13th Street or College Avenue. Mrs.
Jones replied that, regardless of which street the lot fronted on, they still
had to consider whether they would require the application of Art. 4, Sec. 2
to the lots.
Mr. Sweetser passed around pictures of the lot as it presently looks
and stated that the lot is "awfully scroungy now" and needs to be improved.
Mr. Newbern stated that the Planning Office had received two letters
that day, both dated December 4, which were opposed to the granting of any
variance other than allowing the owners to build according to existing codes.
Mr. Sweetser commented that the other buildings in the area were much
closer to the streets than they building they proposed to build would be.
55
•
•
•
Board of Adjustment Meeting
December 4, 1978
Mr. Newbern inquired whether Mr. $ Mrs. Sweetser had been aware of
the problem about selling a lot that doesn't conform when they purchased the
lot and Mr. Sweetser replied that they had not been, however, they had looked
at the lot as being a lot on 13th Street, not Colleve Anue, since it was num-
bered on 13th Street.
Mr. Newbern inquired of Mrs. Jones how the decision to number a house.
was made, and Mrs. Jones replied that a house is usually numbered on the street
it faces. However, she said, the Lot 2. (the lot adjacent to Lot 1, the Sweetser
lot) is only 58' wide and it definitely faces on College Avenue. She said she
really didn't think that the two lots could be separated, according to Art. 4,
Sec. 2. Mrs. Jones stated that an appeal had been made in 1973 to this Board
when Dr. Ottwell had sold the lot to F. J. Hughes, Inc. She stated that the
Board decided to uphold her findings regarding Art. 4, Sec. 2 and the variance
was denied.
Richard Osborne stated that, since the variance had been denied once
before, this appeal had already been decided by precedent.
Mr. Newbern stated that he felt the main problem was whether or not the
Board had the authority to waive the requirement of the ordinance pertaining to
Art. 4, Sec. 2.
Mr. Leo Wright, present in opposition, stated that he felt the Board
should "go by the ordinance" and deny the request. He said that other people
had to "conform to the code" and he felt it "only fair that they (the Sweetsers)
should have to, too."
Mr. Newbern stated he would like the record to show that two letters
had been received by the Planning Office previous to the meeting and that at
the meeting a third had been presented regarding this appeal. He said that
in one of the letters, a Mrs. Rosa May Maxwell had stated she did not have any
objection to the Sweetsers building on the lot as long as they built according
to the code, but then, in the other letter, she stated that she had no objec-
tions to the Board granting the variance. He said the third letter was from
an R. L. Curtis, and the record should show that he was opposed to any build-
ing being constructed which did not conform to the code.
Mr. Leo Wright explained that Mrs. Maxwell had written the two letters
only 10 minutes apart. The last letter was written, he said, because Mrs.
Maxwell had not understood what the Sweetsers intended to do when they asked
her to write a letter stating she had no objections.
Vice -Chairman Newbern then asked if there were any further comments or
questions by anyone present, and there being none, the public hearing was de-
clared closed on this appeal.
The next appeal for public hearing was
Appeal No. 78-31, Johnie Bassett, location 4075
N. College (between Nelson's Funeral Home $ Sambo's);
property zoned C-2, Thoroughfare Commercial District;
Application to waive requirement that a lot have
frontage on a public street. Gary Carnahan was pres-
ent to represent.
Vice -Chairman Newbern explained that the applicant was requesting
that his property be divisible in order that one of the new lots created by
a lot split could have access by way of a private street instead of the
PUBLIC HEARING
APPEAL NO. 78-31
Johnie Bassett
4075 North College
Board of Adjustment Meeting
December 4, 1978
required frontage on and access to a public street.
Gary Carnahan presented the appeal to the Board stating that the let-
ter from Mr. Bassett to the Board (a copy of which was included in the Agenda
for this meeting) stated Mr. Bassett's position very well.
Mr. Carnahan stated that General Growth Properties (developers of the
N.W. Arkansas Plaza) had constructed the new street to provide better access
to the J. C. Penney's store and that Mr. Bassett had traded the property on
which the road was built to -General Growth with the idea that he could use it
as access to other property he owned alongside thereof. He stated that, at
the time the property was traded in order that the street could be built,
there was no question in Mr. Bassett's mind whether the City would accept dedi-
cation of the street. He said that Mr. Bassett's petition to dedicate the
street had gone through all the subcommittees (Plat Review, Subdivision, Plan-
ning Commission) and each of those committees had recommended acceptance of
the street dedication. Finally, he said, the City Board of Directors denied
acceptance of the street and now Mr. Bassett is left with a long strip of
land which he cannot develop since it does not have public street frontage.
He stated that Mr. Bassett would like to sell the front part of his property
(which has public street frontage on Frontage Road) but a lot split has been
denied him since the split would leave his property behind the Frontage Road
lot landlocked without public street access.
Mr. Carnahan stated that the pertinent part of the governing ordinance
requiring public street frontage (definition of a "Lot" in Article 17, Zoning
Ordinance No. 1747) states that a lot shall have "frontage on an improved
public street." However, he stated, Article 8 of the Zoning Ordinance enti-
tled "Supplementary District Regulations" at subsection 8.7 states that "Every
builidng hereafter erected or moved shall be on a lot adjacent to a public
street, and all structures shall be so located on lots so as to provide safe
and convenient access for servicing, fire protection and required off-street
parking." (Emphasis supplied.) Mr. Carnahan stated that he felt the intent
of this governing part of the ordinance was to provide "safe and convenient
access" and not simply to require that all lots have public street frontage.
He stated there were several instances in commercial zones in this City where
buildings are located behind other buildings through parking lots, etc. and
that they have been allowed since safe and convenient access to them is avail-
able He stated that Mr. Bassett's property would have safe and convenient
access and that he felt this to be the very basis of the appeal to this Board.
Mr. Newbern inquired as to the owner of the street and Mr. Carnahan
replied that the developers of the mall own it (General Growth Properties).
Mr. Newbern stated that, according to the rules of this Board, no
application for a variance would be voted on unless the person who owns the
property to which the request pertains is present, or unless the Board is sat-
isfied that a representative of the owner, having the authority to commit the
owner to compliance with any conditions which might be imposed concurrent with
granting a variance, is present.
Mr. Carnahan stated that he had hoped, in order to expedite the appeal,
a variance could be approved contingent upon receipt of a letter or other
document from General Growth ;agreeing to any condition the Board might impose
with the granting of the variance.
Bobbie Jones stated that in June of this year she had been contacted
by Jerry Fowler of General Growth Properties about the possible dedication to
57_.A
•
•
•
Board of Adjustment Meeting
December 4, 1978 - 6 -
the City of the street. She stated that the Plat Review Committee had recom-
mended acceptance of the street to the Subdivision Committee and the Subdivi-
sion Committee had recommended acceptance to the Planning Commission. At its
June 26, 1978, meeting, the Planning Commission voted to recommend to the City
Board of Directors that the street by approved with the contingencies that a
60' right-of-way be granted, no parking be allowed along the street, and that
sidewalks be built before the dedication was made. Then, at its meeting on
July 5, 1978, the Board of Directors by a 5-0-1 vote voted to deny acceptance
of the street. She stated that Mr. Bassett had not even been aware that the
Board was scheduled to consider acceptance of the street, and that if he had
been notified, he would have been present at the meeting. She stated that she
received a letter from Clayton Powell, Street Supreintendent, on July 7, 1978,
stating that he had inspected the street, that it met all specifications, and
he recommended the street dedication be accepted.
Mr. Newbern inquired of Mrs. Jones whether, in her opinion, this Board
could waive the requirement that the lot have public street frontage. Mrs.
Jones replied that she thought it could. She also stated that, if the Plan-
ning Commission decided to allow unrestricted easements in lieu of fee simple
title ownership, this could cause Mr. Bassett's request to be allowed, also.
Mrs. Jones noted that she felt the reason the dedication of the street
had been refused was that the City Board feels strongly that a 4 -way intersec-
tion should be obtained at Stears Road and they feared that if they accepted
this street, it could cause a delay in getting the road they really wanted.
Mr. Osborne commented that if Clayton Powell felt the street was built
to "specs", the street was "o.k." with him.
Larry Smith questioned the difference in this request and others they
had recently heard. Mr. Newbern replied that there was really not much dif-
ference, except this applicant did not have an easement and some of the others
did However, Mr. Osborne stated that he felt that this request for a waiver
of the public street frontage requirement was "the most practical one" he had
seen. He stated that this lot would at least have a good, safe street frontage
even though the street had not been accepted as a public street for reasons
other than because it did not meet city standards.
Mr. Newbern commented that, although the street itself was fine, the
City was not committed to maintaining it. Mr. Carnahan responded that he was
sure that General Growth had committed to J. C. Penneys to maintain it.
Vice -Chairman Newbern then asked if there were any further comments or
questions by anyone present, and there being none, the public hearing was
declared closed on this appeal.
The last appeal for public hearing was
Appeal No. 78-32, Maxine and W. C. Vaught, 716
N. Walnut, application to vary setbacks.
Maxine Vaught and Wallace Taylor, builder,
were present to represent.
Vice -Chairman Newbern stated that this appeal was brought to request
the allowance of a 91/2 feet setback from the right-of-way of Rebeeca Street
instead of the required 25 feet.
PUBLIC HEARING
APPEAL NO. 78-32
Maxine Vaught
716 N. Walnut
58
•
•
•
Board of Adjustment Meeting
December 4, 1978 7 -
Mrs. Vaught presented the appeal by stating that her daugher and
son-in-law lived in this house and needed the extra room in the house since
they were expecting a baby soon. She said they wanted to enlarge the one
bedroom to allow more closet and storage space and they wanted to add a
family room. She noted that the proposed addition illustration included in
the Agenda for the meeting showed the proposed lay -out was the only practical
way to enlarge the house She said that any other lay -out would not serve
the purpose intended. Mrs. Vaught passed around pictures of the house as it
presently exists.
Mr. Newbern questioned how much space to the East was left and
Mr. Wallace Taylor replied that there was approximately 60 feet.
Vice -Chairman Newbern then asked if there were any further comments or
questions by anyone present, and there being none, the public hearing was
declared closed on this appeal.
CONSIDERATIONS:
Richard Osborne stated that Mr. Prichard
had mentioned a hill to the North of his property
and that he defined a hill as a "hardship."
Chester House commented that "when the
rules and regulations were made, they were un-
doubtedly made by individuals who didn't know the
town and might not have known about construction.
So many people have homes, vacant lots, etc. that
can't be utilized, and I think that many of the
regulations need changing. When an individual is trying to improve the area,
I can't help but be in sympathy with him. I think it is a 'hardship' when you
own something you can't do anything with."
Larry Smith stated that he also did not think the "code
existing structures very well." He said that "most people have
they have and to me that is the most important thing."
Richard Osborne moved to grant Mr. Prichard's appeal for
of the setback requirements. Chester House seconded the motion,
4-1 with•David Newbern casting the "nay" vote.
CONSIDERATION OF
APPEAL NO. 78-25
Howard Prichard
S. Washington Avenue
addresses
improved what
a variance
which passed
Chester House posed a hypothetical ques- CONSIDERATION OF
tion, i.e., "suppose we approve the variance, the APPEAL NO. 78-29
canopy is added on, fenced in and permanent dis- Modern Fence Co.., Inc.
plays are put under the roof. Isn't that a no -no? 3010 W. Sixth St.'
At least more so than free-flowing traffic?"
Bobbie Jones replied that the Board could address that problem if it
decided to grant the variance by adding a contingency to the grant stating
that the canopy area could not be enclosed. She said the Board would need to
stipulate this, however, if that was their intention.
Mrs. Don Mills stated that she really didn't see any hardship to this
appeal, although she appreciated the fact that the applicant wanted to improve
its property. Mrs. Mills moved to deny the variance request.
5R.
•
•
•
Board of Adjustment Meeting
December 4, 1978
Larry Smith commented that, although this is also an existing building,
it had been built after the ordinance was adopted, and he felt the applicant
could achieve his means in a different way. He seconded Mrs. Mills motion to
deny the request.
Richard Osborne called the question, and after a vote having been taken,
the motion to deny the variance request passed unanimously.
Chester House noted that the applicants
could not use the lot to build anything other.
than a long, narrow shed. He stated he was
"in sympathy with the situation" and he felt the
lot needed "to be put in use." He said he would
like to see a building like this one built in
the neighborhood since it would upgrade the area.
He said the other houses in the area "no where near
are in compliance" and although that troubled him,
it did not trouble him nearly as much as the fact
that a variance for this property had been heard
once before and had been denied.
Mr. Newbern stated that it was apparent the governing ordinance had
been violated several times since the lots had been sold off several times in
the past. This one lot was now under separate ownership, having been success-
fully split regardless of Art. 4, Sec. 2. He said that it would be hard to do
anything effective about putting the lots back together again. He stated that
the Board really had two questions to answer, i.e., (1) could they waive the
application of Article 4, Section 2 to this property, and (2) would they grant
a variance from the 13th Street right-of-way. Mr. Newbern stated he really
did not know whether the Board had the authority to grant the waiver and Mr.
Osborne moved to table the request until the City Attorney could be approached
to give an opinion on that question. Mrs. Mills seconded the motion, which
passed unanimously.
CONSIDERATION OF
APPEAL NO. 78-30
Shirley Sweetser
101 E. 13th Street
Mrs. Don Mills questioned whether the CONSIDERATION OF
Board could actually grant a variance to a pri- APPEAL NO. 78-31
vate road. Richard Osborne replied that this Johnie Bassett
question was presently before the Planning 4075 North College
Commission and that it might be sometime before
they had an answer. Mr. Osborne questioned
Mrs. Jones if she knew whether the City had
informally agreed to accept the dedication of
the street in advance of Mr. Bassett's agreement
to trade the property to General Growth in order
that the street could be built thereon.
Mrs. Jones replied that the City had not so agreed, but that Mr. Bassett
hadn't even considered the possibility that the City would not accept it.
Mr. House asked if an easement would be sufficient and Mr. Osborne
replied that it would depend on what the Planning Commission decided. Mr.
Osborne commented that he was inclined to grant the variance, if possible.
•
•
•
Board of Adjustment Meeting
December 4, 1978 - 9 -
Mr. Newbern agreed that this frontage was clearly better than most
city streets, but that he still was not sure whether an easement that attaches
would be sufficient.
Richard Osborne moved to grant the variance contingent upon Johnie
Bassett's obtaining from General Growth Properties an unrestricted easement
for the full width of the road and for the full depth of his property, and
that this variance be restricted to only this piece of land along the street.
Chester House seconded the motion, which passed unanimously.
Mr. Newbern stated that he felt the
property owners' extra land was not being
utilized and that they wanted to build in
the easiest and most convenient way possible.
He said he agreed with Larry Smith's position
on existing buildings, but in the past this
Board has required property owners to use
other property they had instead of extending
a non -conforming structure.
Wallace Taylor noted that if the owners went further back on their lot
with the addition, they would be required to built at least a 4' to 5' retain-
ing wall and would not have any back yard left.
Richard Osborne asked Mr. Taylor what the incline of the back yard was,
i.e., 30 degrees or more. Mr. Taylor replied that it was at least 30 degrees.
Mr. Osborne stated that he didn't really see any difference in this request
and the Prichard request. He also said that since there was another "hill"
here, it meant another "hardship." Mr. Osborne moved to grant the variance.
Chester House seconded the motion, which passed 4-1 with David Newbern casting
the "nay" vote.
CONSIDERATION OF
APPEAL NO. 78-32
Maxine Vaught
716 N. Walnut
The minutes of the previous meeting of November 20, 1978, were approved
as mailed.
The meeting adjourned at 5:50 o'clock P.M.
61