HomeMy WebLinkAbout1979-05-21 Minutes•
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MINUTES OF A BOARD OF ADJUSTMENT MEETING
A meeting of the Fayetteville Board of Adjustment was held on Monday,
May 21, 1979, at 3:45 o'clock P.M. in the Board of Directors Room, City Admini-
stration Building, Fayetteville, Arkansas.
MEMBERS PRESENT: David Newbern, Chester House, Steve Nickles and Larry Smith.
MEMBERS ABSENT: Chairman Carl Yates, Vice -Chairman White, Mrs. Don Mills.
OTHERS PRESENT: Bobbie Jones, Gail Biswell, Demaris Hart, Sam Mathias,
Becky Mathias and Alaric Haney.
In the absence of Chairman Carl Yates and Vice -Chairman James White, Board
Member David Newbern called the meeting to order and presided thereover.
PUBLIC HEARINGS:
The first appeal for public hearing was
Appeal No. 79-15, Mathias Morningside Apart-
ments, 741 S. Morningside Drive, application
to vary setbacks; property zoned R-2, Medium
Density Residential District. Owners Sam and
Becky Mathias and Attorney Demaris Hart were
present to represent.
Mr. Newbern briefed
PUBLIC HEARING
APPEAL NO. 79-15
MATHIAS MORNINGSIDE APTS.
741 S. Morningside Drive
everyone present on the facts of the appeal. He stated
that one corner of the already constructed apartments lies 21.5 feet from the
street right-of-way when the required distance is at least 25 feet from the
right-of-way.
Attorney Demaris Hart presented copies of the originally proposed and ap-
proved plan for the apartments. She also presented copies of the as -built plan
thereof. She stated that Mel Milholland had remeasured the as -built plan earlier
in the day and had discovered that the building corner was 19.3 feet from the
right-of-way (measuring from the over -hang as required by ordinance) rather than
the 21.5 feet stated in the appeal application.
Ms. Hart stated that the apartments had been built in phases and before
each phase was constructed building permits were issued therefor. She offered
a copy of the original building permit to the Board for its inspection. Ms. Hart
stated that Gary Combs, the constractor building the apartments, was provided
with the proposed plot plan and asked to build the Phase A apartment accordingly.
Ms. Hart stated that Mr. Milholland had included a note on the plans which stated
that all setbacks should be measured from the overhang, the typical overhang
allowance being 30 inches. She stated that Mr. Combs was to construct the
apartments with a 25 ft. setback from the overhang. "Only after these were built
and the final as -built plot plan was submitted to Mrs. Jones' office was the
error discovered," she stated.
Ms. Hart stated three reasons for requesting the variance:
1. "The Mathias' hired Mr. Milholland to provide this plan. Sam Mathias
personally gave it to Mr. Combs and asked him to construct the build-
ing accordingly. At that point they had done everything a person
could reasonably be expected to do in order to insure that the build-
ing was constructed to the City ordinances."
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Board of Adjustment
May 21, 1979
Page 2
2. "The corner of this building provides two supporting walls. If it
were required that they tear off the corner of the building, it
would be structurally expensive and the alteration would prove
economically unfeasible."
3. "As I understand the purpose of the City ordinances, they are to
protect the people of the City of Fayetteville and the way that
the City buildings are constructed. A variance here would not cre-
ate a hazardous or unsafe condition or one which would hamper the
health, welfare and safety of the people and residents of this area
This is not a thoroughfare, it is a residential area."
Mr. Newbern stated that the applicants were now, in effect, requesting a
5.7 ft. variance rather than a 4.5 ft. variance. "The only problem I see with
that aspect," he stated, "is that it (the petition) was advertised with the
21.5 ft. request." "I assume we won't worry about that," he added, "unless
there was someone who had called in to check on it." Mr. Newbern questioned
Mrs. Jones whether there had been any calls on the item and she responded that
she had been questioned by a neighboring family (a call from the woman and a
visit from the man) who had indicated that they preferred to not have the apart-
ments at the location, but that neither could see that it would accomplish any-
thing to not grant the variance.
Mrs. Jones noted that the newspaper advertisement had only stated that a
variance from the setback regulations was being requested and that it had not
stated the exact amount of the variance requested.
Becky Mathias stated that the street had not had any curbs and was only a
big ditch at the time the apartments were built. She stated that it could have
been very easy for Mr. Combs to have not measured from the property right-of-way
line for that reason.
A discussion ensued concerning drainage problems of the lot. Board member
Chester House noted that he had been a part-owner of the lot in the past and
that he and his partners had tried to get an apartment complex on the lot and
had not been able to do so since the lot had drainage problems and since they
were unable to obtain a variance. Mrs. Jones noted that she had a plan in her
files which showed a 24" drainage tile on the lot. Sam Mathias concurred that
the drainage problem had been solved.
After further discussion, there being no further comments or questions re-
garding the request, Mr. Newbern declared the public hearing closed.
The last appeal for public hearing was
Appeal No. 79-16, Alaric W. $ Judith A. Haney,
2706 Denver Avenue, application to vary set-
backs; property zoned R -I, Low Density Resi-
dential District.
Mr. Newbern stated that the Agenda had noted that the applicants were re-
questing a 20 ft. rear setback when the required rear setback was also 20 feet.
Mr. Haney stated that the agenda was erroneous and that he actually was request-
ing a 15.5 ft. rear setback. Mr. Haney added that the lot is pie -shaped and as
a result thereof he would be 4.5 ft. short on the North side of the lot if he
were able to build a 26' x 30' garage onto the house
PUBLIC HEARING
APPEAL NO. 79-16
Alaric F, Judith Haney
2706 Denver Avenue
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Board of Adjustment
May 21, 1979
Page 3
He stated that he was also requesting the variance because of the nature
of the land behind the house (very rough and unbuildable with a drainage ditch
running between his lot and the property owned by Grandview Apts.).
Mr. Haney presented snapshots of his lot and the property behind him. After
a short discussion, there being no further comments or questions by anyone
present, Mr. Newbern declared the public hearing closed.
CONSIDERATION:
Chester House stated that the working plans
for the apartment buildings had reflected a 25
ft. setback. He stated that the plans also
showed a 6 ft. allowance between buildings. The
as -built plan, he noted, showed 18.6 ft. between
buildings. Mr. House stated that if the build-
ings had been built to conform to the plans, there
would not be any problems and no need for a
variance.
Sam Mathias stated that the buildings had been separated farther apart
than the 6 ft. proposed in order to allow clearance from a drainage ditch.
Mr. Newbern stated that he felt it was clear that "what we have here is a
contractor's mistake." He added: "I was more prepared to call it a diminimous
or minor variation and go along with it when it was a 3.5 ft. variance. Now
that it is 5.7 ft. I am.a little more concerned. I can't think of anyway we
can justify a variance here, other than to say that it's the kind of thing that
because it's such a small one we shouldn't be too concerned about it."
Mr. Newbern stated that maybe the Board should look at the request as if
the building had not yetbeen constructed and then try to decide if a variance
could be justified under the circumstances. "The only thing I can think of
other than the size of the variance to justify it is that the street right-of-
way does make a deviation there, which was of course, the cause of the mistake."
Larry Smith questioned how the mistake had gone this far before it was
discovered. Mrs. Jones commented that the Inspection Department does not al-
ways go out and actually measure every poured foundation to see if it meets the
exact setback from the right-of-way. She noted that most of the time the right-
of-way is hard to determine. She noted that "measuring" is sometimes done by
eyesighting rather than tape measuring. She noted that Mr. Milholland had dis-
covered the error when he went out to tape -measure the plot in order to draw up
the as -built plot plan. Mr. Mathias stated that at the time the apartment was
built there were no curbs or gutters on the street. He stated that Mr. Combs
must have measured from the street grading that was present rather than taking
the time to actually pinpoint the street right-of-way.
Mr. Smith reiterated several times his concern that there is not some bet-
ter way to catch this kind of problem before it gets so far along. He said
that the apartments have been occupied for over a year and he felt it was pretty
unfair that the mistake had gone unnoticed for so long. He stated that it
could possibly be someone else's fault that the mistake was not caught sooner.
"If this Board denies this variance, it's going to cost somebody some money, a
lot of money," he added "I don't feel good about saying 'no variance, tear
CONSIDERATION OF
APPEAL NO. 79-15
MATHIAS MORNINGSIDE APTS.
741 S. Morningside Drive
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Board of Adjustment
May 21, 1979
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it down'." "There's got to be some way during the course of construction that
these setbacks can be verified before a project gets so far along," he stated.
Mr. Newbern again noted that the original plot planshowed the street as
running in a straight line and not deviating as it actually does.
Steve Nickles stated that he felt Mr. Newbern had a good point. He continued:
"I have to concur with the Chairman's analysis that, first, there have
been no grounds alleged under the ordinance to grant a variance. The
only other thing we can look at is the diminimous argument. I remember
a petition several weeks ago where a 5 ft. variance was requested and
we didn't consider it to be diminimous. Here we are talking about more
than 5 ft. and the structure was already in place on the other one,
too, although it was partly adaptable. Setting aside the diminimous
argument by precedent, the only other thing I can see is to rely on some
street pattern that was there and it appears to me, I may be reading this
wrong as I'm not an architect like Mr. Smith is, that if the street had
been straight and not curved the building would have been much CLOSER.
The fact that the street has been curved doesn't seem to help your case
at all."
David Newbern stated that he wondered whether the Board would have been in-
clined to grant a variance (assuming the building had not yet been built) be-
cause of the shape of the lot. Discussion ensued.
Larry Smith stated that he was inclined to grant the variance due to the
situation, but he didn't like the idea of doing so. He explained that other
people could take a perfectly good plan, go out and build it however they wanted
and then come in and say 'well, it's built that way --now what are you going to
do.' "It's kind of like opening a can of worms," he added.
Demaris Hart referred the Board to the definition of a variance as defined
by City Ordinances. She also stated that a variance could be granted as long
as it was not contrary to the public interest, health and welfare of the public,
and where, owing to special conditions, a literal enforcement of the provisions
of the ordinance would result in unnecessary hardship. She stated that she
felt the denial of a variance to her clients would result in a severe hardship
to them when taking into consideration the extreme costs in removing the corner
of the building.
After considerable discussion, Larry Smith moved to grant the variance re-
quest as amended. Mr. Smith's motion died for lack of a second.
Chester House moved to table the request until the next meeting of the Board
in order to bring the problem up with the full membership. Mr. House stated
that he would have to abstain on any voting, however. He added, "There is no
since in mistakes like this in a housing unit of this size."
Larry Smith seconded the motion to table. Said motion passed 3-0-1 with
the abstention of Mr. House.
David Newbern stated that it appeared to
him that Mr. Haney had a very good request be-
cause of the shape of the lot and the special
circumstances of the rough, unbuildable land
lying behind his lot. He stated that a reduc-
tion in setbacks in the rear of the lot would
not infringe upon anyone.
CONSIDERATION OF
APPEAL NO. 79-16
Alaric 4 Judith Haney
2706 Denver Avenue
R6
Board of Adjustment
May 21, 1979
Page 5
Bobbie Jones noted that Mr. Haney has future plans to add a second story
onto his addition. She stated that there are no heighth restrictions in R-1
zones and therefore no additional setbacks would be needed for the extra story,
however, she stated that she wanted the Board to be aware of the plan before
voting to approve the reduced setbacks.
Steve Nickles moved to grant the variance, stating his reasons as being
the special and peculiar circumstances involved. Chester House seconded the
motion, which passed unanimously (4-0).
The minutes of the previous meeting of May 7, 1979, were approved as mailed.
'There being no further business to come before the meeting, said meeting
adjourned at 4:45 o'clock P.M.
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