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HomeMy WebLinkAbout1987-03-02 Minutes0 MINUTES OF THE BOARD OF ADJUSTMENT MEETING A meeting of the Fayetteville Board of Adjustment was held on Monday, March 2, 1987 at 3:45 p.m. in Room III of the City Administration Building, 113 West Mountain Street, Fayetteville, Arkansas, MEMBERS PRESENT: Don Mills, Larry Tompkins, Gerald Boyd, Dennis Becker, Jerry Allred and Dennis Moore MEMBERS ABSENT: Robert Waldren OTHERS PRESENT: Ernie Jacks, Freeman Wood, Jim McCord and Deryl Burch The meeting was called to order and the minutes of the February 2, 1987 meeting were approved as distributed. APPEAL 87-3 SETBACK VARIANCE STEPHEN L. DAVIS - 756 N. WASHINGTON The only item of consideration was a request submitted by Stephen L. Davis to vary the rear setback from the required 8' to the requested 6'9". Property located at 756 N. Washington, and zoned R-1, Low Density Residential District. • Mr. Davis stated his desire was to add to his 28 year old home in which he had lived in for the past 9 years. His desire was to add an addition to the rear of his home and continue with the overhang that was already into the required setback. Mr. Davis said he felt his hardship would be in order because if the existing overhang was not continued the new addition would not have the protective overhang. He also said it would cut down on the floor space and the home itselt would not be attractive. Tompkins said the home presently had approximately 1,881 square feet in the total structure. He said the proposed plan was for an additional 1,841 square feet, and under the present code in an R-1 the area could not exceed 40% of lot coverage. Tompkins said as he figured the total square footage it was approximately 41.4% of coverage. Mr. Davis said he could leave the back strip off the rear overhang which would take care of the 40% requirement. Allred stated if the house was sold in the future the non-con- formance would have to be adjusted now because the house did not presently meet all the required setbacks. is isBoard of Adjustment March 2, 1987 Page 2 Mills added the house was non -complying to start with and if this Board granted the variance it would be adding to the non -conformity. The public hearing was closed and discussion returned to Board members. Allred stated if the lot coverage was adjusted to the required 40% he would not have a problem granting the variance. Boyd said this was not the kind of hardship this Board ordinarily gave waivers to. He said in his opinion Mr. Davis was just continuing a non -conformity and could not go along with it. He said he would go along with a variance for the existing non -conformity. Becker stated he did not feel that the Boards normal harship situation should apply in this case. He felt for the integrity of the wall line encroachment that already existed he would not have a problem waiving the entire request as presented. Moore stated he would not have a problem with waiving the entire request as presented, and agreed with Becker. • Tompkins said he would like to adhere to the intent of the ordinance to the 8' on the side yard for the protection of health, safety, and welfare. He personally did not see a reduction being that critical in terms of the square footage. MOTION Becker moved to grant the variance as requested, seconded by Moore. The motion to approve passed 3-2-0. Becker, Allred and Tompkins voting "yes", and Tompkins and Boyd voting "nay". Mills stated she was present at the public hearing for the builders and surveyors for the requirement of a survey before a building permit could be issued. She said most of the people at that meeting agreed there were problems and something needed to be done. She said it seemed no one was sure exactly what needed to be done, and some felt the survey would not be the answer. Mills said she asked the builders if they signed a certificate of ownership, how long would that be good for. For instance if the builder built a home, sold it, and carried it, there would be no survey, no closing cost other than between the private parties. She said if that person sold the home, and by chance had a cash buyer, there would • have been 2 sales without a survey. She said the next sale would be with a couple who had to go for a loan, a survey would be required with the new mortgage loan requirements. She said most of them seemed • Board of Adjustment March 2, 1987 Page 3 to think they would be responsible for certificate of responsibility for one ownership, and could not be held if it went down several owners. Jim McCord explained on the survey problem the staff had been asked how to address that situation and attempt future violations from ocurring, and to put the burden on the property owners. He said he had drafted a proposed certificate for execution by the property owner and possibly by also the builder. He said that should have been distributed to the Board of Adjustment. He said that document would clearly put the burden on the property owner to determine the property lines with a survey if necessary. He said it would also put them on notice that the inspection by the City was only to determine construction code compliance, and not to ensure proper location of the structure. McCord said in the past he had been concerned with a former Supreme Court decision which held where the City made repeated inspections and allowed the violation to continue, the City was estopped from enforcing the ordinance. He said the certificate would oliviate that possibility. He said the staff was comfortable that having that certifi- • cate executed would enable enforcement to proceed if a violation took place. Tompkins asked if that was for all old and new property. McCord said for old construction the certificate would not have been executed, and each case would have to be decided on the facts. McCord said it would be hard to require a property owner to relocate part of his structure, and felt the court would be very reluctant to do that. McCord said once the certificate was executed the staff anticipated a substantial reduction if not total elimination of this problem on new construction. Mills asked if a owner came in, and gave the Planning Office his building plan as to how the structure would be placed on the lot. She said at that time it met all the requirements. Then after the framing was up and inspection went out and found changes made that did not exist on original building plan. She said after the building was completed, sold the building to someone and the builder was willing to carry the papers himself, which would not require a survey or secondary requirements for mortgage. She said that person lived there 3-4 years and decided to sell, found a cash buyer. There would be no survey, no secondary qualifications. The third owner has to go for a loan, • and asked at that point who would be responsible. McCord said an application to this Board would be made to try and Iv • Board of Adjustment March 2, 1987 Page 4 obtain compliance. He said the Board could make a determination of whether that was a self granted hardship and not grant a variance. He said it was the property owners problem not this Boards problem. He said if this Board denied the variance the property owner could appeal to the circuit court and try to obtain relief to clear the title. Mill said her problem was that she did not want that case to go to court, and then followed by suit. She said she would like the situation caught and remedied before it got to far out of hand. Mills wanted to know who went out and checked the setback requirements. She said she felt the City should go out and check for quality of construction. She also said it seemed someone should check on the required setbacks. McCord said that would be the purpose of the proposed certificates. Allred said all the builders who they have trouble with have been aware of this problem for years. He said the proposed certificate was not going to change their way of doing things. • Becker said what bother him about the Tankersley case was that the City was trapped with the supervision, and by being an accomplice. He said there would be no power to do anything if it went to the court system. McCord said the only way to totally oliviate the problem in the future was to require a survey in every case, and put the burden on inspection to assure compliance of setbacks. He said he was not sure as a matter of policy if the City was willing to do that. Jacks asked if the Inspection Department normally checked the setbacks. Wood said they try to, but normally there was nothing to work from. Boyd said the Board had a problem with restrictive covenants, and said the City plat showed the restrictive covenants as setbacks rather than the zoning setbacks. Carlisle stated if the restrictive covenants were platted on the City plats the City must enforce them. Tompkins said his main concern was simply that this Board was constantly asked to violate the zoning ordinance. • Jacks said the Planning Commission had ran into the same problem on Large Scale Developments. He said the Planning Commission would approve the development one way, and the developer would build it another �s • Board of Adjustment March 2, 1987 Page 5 way. Mills stated a request for a setback variance had come through for Jake Kitchens. She said he did not meet the front setback or the side setback. She noticed he had pulled the porch on the front, but did not know what he did about the side part. Carlisle said in view of McCords opinion, and after inspection approved the footings. The City allowed him to tear off the front porch and "forgave the 6" on the side". McCord said the certificate would have to be approved by the City Board of Director before it could be enforced. Allred said when Jake Kitchens sells that house he would still need a variance for title insurance. Allred said the Board of Adjustment had denied the entire request, and did not understand how they could hear it again after denying the variance. McCord said on the Certificate of Occupancy for Jake Kitchens he did not see how the Planning Office could sign off on it if the Board • of Adjustment denied the variance. McCord said he would probably need a courts decision on that. Boyd said if the proposed certificated cleared them for the future asked what about the past. McCord said each case would have to be decided on its own merits to the extent of the City inspection involvement. Tompkins said he had one comment about the certificate. He said the sentence that read "I understand all inspections by the City Inspector were made to determine compliance with construction codes, and not assist in the owner in locating the structure". He said that defeats the forwarding purpose, and did not understand why that was in there. McCord said this was a working draft, and comments about the draft were appreciated. There being no further business the meeting adjourned at 4:45p.m. • �Lk