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HomeMy WebLinkAbout1987-04-20 Minutes• n LJ A meeting of the Fayetteville Board of Adjustment was held on April 20, 1987 at 3:45 p.m. in Room 111 of the City Administration Building, 113 West Mountain Street, Fayetteville, Arkansas. MEMBERS PRESENT: Don Mills, Robert Waldren, Gerald Boyd, Larry Tompkins, Dennis Becker and Jerry Allred MEMBERS ABSENT: Dennis Moore The meeting was called to order and the minutes of the April 6, 1987 meeting were approved as distributed. APPEAL 87-6 - APPEAL TO ADMINISTRATORS INTERPRETATION GREG HOUSE - LOTS 1 & 2. BLOCK 8, MOUNTAIN VIEW ADDITION The only item of consideration was a request submitted by Greg House for a literal interpretation from the Planning Administrators interpretation regarding property in the Mountain View Addition, lots 1 & 2 of Block 8. Property zoned R-1, Low Density Residential District. Mills announced a letter had been received from Mr. Robinson, asking that the meeting be tabled. MOTION Waldren moved to table Appeal 87-6 as requested, seconded by Becker. The motion failed to pass 3-2-0, Waldren & Becker voting "yes", and Tompkins, Allred and Boyd voting "nay". Mills stated the Board of Adjustment would continue on with Appeal 87-6 as requested by the petitioner. Mills advised to the Board that she had received several calls from Board members asking if this appeal was within their jurisdiction. She said her thought was because this appeal delt with streets and so forth that it was not within this Boards jurisdiction. Mills said she spoke with the City Attorney and he said this was a Board of Adjustment for zoning, and to hear appeals from the City Planning Office. Lamar Pettus, Attorney representing the petitioner said he felt the same way, and felt this Board did have jurisdiction, but questioned the jurisdiction. k'� • Board of Adjustment April 20, 1987 Page 2 Tompkins said he felt this appeal was not a zoning question, and thought this Board only dealt with bulk and area regulations of the zoning ordinance, and not a land use plan of which this appeal was getting into. Carlisle read under the power and duties of the Board of Adjustment in the zoning ordinance "to hear and decide appeals where it is alleged there is error or ambiguity in any order, requirement, decision, interpretation or determination made by the Planning Administrator in the enforcement of this ordinance". Tompkins noted building permits do not have anything to do with the zoning ordinance, and this Board only dealt with height, bulk and use of land. Boyd said what bothered him was this involved rights of other people in addition. He said this Board was acting like a court as to legal rights. Becker noted this Board was to look at whether or not the Administrator made the proper decision. • Mills said that was why the building permit did not get into this, and all they were doing was to say whether or not the right decision had been made. Mills said this Board was to determine at this meeting either to uphold or overrule the Planning Administrators decision. Tompkins asked Sandra Carlisle if the Planning Commission had the authority to waive this requirement (major street plan) and why did this appeal not go to them. Sandra Carlisle said she was advised by the City Attorney to bring this appeal through the Board of Adjustment. Allred said his opinion was this appeal should have gone to the Board of Directors. Lemar Pettus said what they were really concerned about was on July 1986 this matter had been cleared up when Mrs. Carlisle said in essence there was nothing that would indicate that Maple Street had ever been vacated. He said Mrs. Carlisle also indicated in a letter to Mr. House that if he developed the lots as single family residences they would be excluded from the requirement of off -site improvements to the street. He said the • issue of being allowed to use Maple Street as a private driveway did not come up until Mr. McCord got into the picture, and actually said a private driveway was not allowed on public ROW. 11 • Board of Adjustment April 20, 1987 Page 3 Mr. Pettus said part of this came about when other problems occured in the area with some boundry line disputes with the University of Arkansas. He said everyone became aware that they were going to attempt to come in on Maple Street as the access for that particular property. Mr. Pettus said it was not a situation were the original concept was they wanted to use Maple Street as a private driveway. He said it was simply that the ROW existed and the general public could use that ROW, and they wanted to use it as an access to the property without having to go in and do street improvements. Mr. Pettus said the City of Fayetteville had never accepted Maple Street as extended and as shown on the plat that was filed in 1909. He said there were probably a lot of streets in the City of Fayetteville that had not been accepted by the City, and were not being utilized, but were actually platted. He thought Mr. McCord was incorrect because the City of Fayetteville had allowed utilities to be placed in that ROW as dedicated. Also he felt the argument that maybe they could go from the lots to Vinson and towards Sequoyah was an argument that the City wanted them to go one way, but not the other. He said if the ROW was there and • dedicated they should be able to go either way. Mr. Pettus added that Mr. House attempted to make sure everything was in order before he purchased the property, and that was one reason why Mr. House went to the Planning Administrator to get the opinion that he did. Mr. Pettus said it was their position that they should be allowed to go ahead and build on the lot with access over the public ROW. Mr. Pettus asked that this Board reverse the decision that had been made by the Planning Administrator. Boyd asked if Reed Street and the alley had formerly been closed, and Mr. Pettus replied "yes". Mr. Pettus said at one point part of Company Street had been closed, and part of Reed Street was closed. Allred asked if the correspondence from July had any bearing on the purchase contracts. Greg House replied "yes", and knowing there were no evidence of access to the property, and Maple Street was apparently an undedicated, and unimproved ROW went ahead with the purchase because he was told he could have access. Boyd asked what utilities were in there, and Mr. Pettus replied, • electric and gas, which ran east/west up the hill to Sequoyah. In answer to a question from Boyd, Mr. Pettus said the letter \1\ . Board of Adjustment April 20, 1987 Page 4 dated July 28, 1987 was saying that Mrs. Carlisle had found nothing to indicate that the street had ever been vacated from Vinson to Sequoyah. He said in the letter she did say that Company Street was also a dedicated street with a 40' ROW. Boyd asked what was their response to the Ginger Crisp position. Mr. Pettus said he felt she might be right if in fact it was abandoned, but it had not been abandoned and was used by public utilities. Ginger Crisp stated the University owned all of the property in block 8, and it goes to the far end of Maple Street as platted. She said that was were the Mountain View Subdivision ended, and Mr. Robinson's property fronted up to the south edge of the platted Maple Street. In answer to a question from Mr. Pettus, Ginger Crisp said according to the plat map, all of where Maple street was platted was in Mountain View Subdivision. She said Mr. Robinsons land was not in the Mountain View Subdivision. • Mr. Pettus said it appeared that Mr. Robinson had built a stone wall that encroached some into that public ROW. He then said the gas and eletric lines go down it as well. Allred asked Ginger Crisp if she was saying the University ownes all that land subject to an easement. Allred then said his question was could utilities be ran without an easement through private land. Ginger Crisp said there was a difference between utility easements and a street easement. Waldren said if for some reason this was declared a non dedicated street, and the University claimed they owned the property, then the utility companies would come in and say the utilities had been there over a period of time and had a right to be there by prescription. Jim McCord, City Attorney said it was important for this Board to realize what the issue was before them. He said the issue was not whether the City of Fayetteville was estopped from denying a building permit because of comments made by employees of the Planning Office, and by the July letter everyone kept referring to. He said this was an appeal for a decision made by the Planning Administrator denying the issuance of a building permit • because the zoning ordinance requirement had not been met. Mr. McCord said even if Maple Street was public ROW it clearly was not an improved public street. He said the issue was the .bo • Board of Adjustment April 20, 1987 Page 5 Planning Administrators decision erroneous in denying the building permit for failure to have frontage on an improved public street, and that was the sole issue for this Board. McCord said the Planning Commission had the jurisdiction to waive that requirement if the property owner providers other access sufficient for safety vehicles. Mr. Pettus said to McCord that was great, but it was a bunch of bologny because on July 28 Mrs. Carlisle had already given them that opinion. Mr. Pettus said it was only after McCord got involved that it was wrong. Mills asked for background from Sandra Carlisle for her decision on the denial of the building permit. Sandra Carlisle said there were 4 questions that she recalled and they were verbal communication. 1. Had Maple Street been abandoned? 2. Was Company Street 31' from the radius of Sequoyah • dedicated? 3. Would street improvements be imposed .if he built single family residence? 4. Check with Jim McCord regarding the use of the University Presidents yard for adverse possession. Sandra Carlisle said those were the only 4 questions that she intended to answer in her July letter. Allred asked Jim McCord if someone such as Mr. House rights and offer and acceptance contingent, comes to the City talks with the Planning Director, received a rendering on that decision, and then comes back after purchase and cannot receive a building permit. He said if the general public could not depend upon the Planning Administrators decision, who could they go to. Jim McCord replied no one was infalible, and Allred said he was aware of that, but the thing was this decision had caused a financial burden so to speak upon Mr. House. Allred said if the denial had been stated up front originally this Board would not be here discussing this appeal because Mr. House would not of purchased the land. Allred said Mr. House made his decision based upon the City's decision and opinion. Allred felt it was not a good position for either party to be in, and it looked like Sandra Carlisle made her decision and Jim McCord had overruled it • and sent it to this Board. Jim McCord said he did not send the appeal to this Board, Mr. • Board of Adjustment April 20, 1987 Page 6 House filed the appeal. McCord said it was not entirely impossible if the building permit was ultimately denied, that Mr. House could have the contract resended and get his money back. Boyd asked what would happen if this Board overruled the Planning Administrators decision. McCord said Mr. House would receive a building permit, and probably wind up in litigation with the University. Allred said so this appeal was a no win situation for Mr. House, and this situation was a direct result of the City's error, justified or unjustified, with no disrespect to Sandra. Boyd asked the City Attorney what Mr. Robinsons position was. Jim McCord said Mr. Robinson said he was against the petition, and wanted to confirm his original survey or have a new one done. Mills asked if there was anyone present to speak in opposition of this appeal. Ginger Crisp speaking in opposition said first of all she had • found a deed to the property. She said that deed conveyed to the University Block 1 in Mountain View Addition to the City of Fayetteville designated upon recorded plat. Allred said then that deed did not include the ROW, but it did not exclude it either. Ginger Crisp said the Bill of Assurances state "The streets and alleys of said Mountain View Addition to the City of Fayetteville, Arkansas, are of the width as shown by said plat and the owners of the several lots in said Mountain View Addition shall own the fee to the center line of said streets and the owners of the several lots in said Addition, abutting on the alleys shown on the plat thereof shall own the fee to the center of the alleys subject to the public easement and rights reserved". Ms. Crisp said the University owned the fee, and not the City. She also said there was a difference in the City dedicating a street, and a City accepting it as a public street. She said there was no question that the street was dedicated, it was on the plat map and the plat map had been filed. However the statute that Mr. McCord cited to them required that Cities accept streets which had been dedicated to the City, so that Cities do not have to maintain streets that they don't want. Ginger Crisp said the City of Fayetteville had not made a • decsion, and Mr. McCords research indicated there had never been an ordinance accepting Maple street. She said the Statutory requirement was passed in 1875, and was well of record by the I • Board of Adjustment April 20, 1987 Page 7 time this plat was dedicated. She said there was more than one way that a dedicated street could be accepted. She said the other way was by public use, by prescription, but: it had never been used either. Her position was that street had never been accepted by the City as a public street even though it was dedicated, and that the public had abandoned any rights that it may of had, if it ever had any. She said it had never been used for 80 years, and yes there may be an easement down there, and certainly that could be worked out. Lamar Pettus said in rebuttle to that the most obvious fact that the public had excercised there use because of the gas and electric lines without easements. He said the reason those lines were down there was because there on public street ROW, and the public had used that. Allred asked if all the streets in Fayetteville were dedicated and accepted. Carlisle stated after a final plat was filed, the plat itself said the City would accept, with all the appropriate City Officials signatures. Carlisle said that statement was in the ordinances. • In answer to a question from Tompkins, Carlisle,,,sa.id the maximum grade for a street was 15%. Boyd said if the developer straighten out all of the problems there would still be a problem with safety because the fire trucks could not get into there. Mills stated this Board needed to come back to the Planning Administrators decision for denying the building permit. Does this Board uphold her decision or do they overrule it. Mills asked Sandra Carlisle her reason for denying the building permit. Sandra Carlisle explain Mr. McCord was in the Office and asked her not to issue a building permit on those two lots until Mr. House could prove that Maple Street had been accepted by the City. She was never asked for a building permit, nor had Mr. House applied for a building permit. Sandra Carlisle said Mr. McCords decision was based on the zoning ordinance where no building shall be errected after this ordinance on a lot which does not have frontage on a public street. Tompkins wanted the exact interpretation that this Board was • addressing. Sandra Carlisle stated "she did not believe it was a public 7-3 • Board of Adjustment April 20, 1987 Page 8 street" Mills stated one more time that this Boards concern was purely and simply and very basic, was the Planning Administrators decision right or wrong. She said past that it would go somewhere else. Allred said the Board had two opinions from the Planning Administrator. 1) They could; and the other 2) they could not. Allred said the first letter indicated Maple was a City owned platted dedicated street, and no other street improvements would be imposed. He then said another later decision was to resending that. Becker said the first letter did not affect this Board, and they were interested in the last decision that was made. MOTION Becker moved to uphold the Planning Administrators decision, • seconded by Waldren. The motion passed 4-1-0, Tompkins, Becker, Boyd and Waldren voting to uphold, and Allred voting "nay". There being no further business the meeting adjourned at 4:50 P.M. • 0