HomeMy WebLinkAbout1987-06-01 MinutesA meeting of the Fayetteville Board of Adjustment was held,on
Monday, June 1, 1987 at 3:45 P.M. in Room 111 of the City
Administration Building, 113 West Mountain Street, Fayetteville,
Arkansas,
MEMBERS PRESENT: Don Mills, Larry Tompkins, Jerry Allred,
Gerald Boyd and Robert Waldren
MEMBERS ABSENT: Dennis Moore and Dennis Becker
The meeting was called to order and the minutes of the May 18,
1987 were considered.
The minutes of the May 18, 1987 meeting were approved as
distributed.
APPEAL 87-7 - SETBACK VARIANCE
DANIEL KOOPMAN - 2140 JONQUIL ROAD
IsThe first item of consideration was a request submitted by Daniel
Koopman for a variance from the setback- --.requirements. Mr.
Koopman is requesting an 18' variance from the required 20' on
the rear property line. The property is zoned R-1, Low Density
Residential District.
Mills advised this item had been tabled at the May 4, 1987
meeting until more information could be secured.
MOTION
Tompkins moved to remove this item from the table, seconded by
Waldren. The motion to remove pass unanimously.
Mr. Koopman said he was successful in obtaining a waiver from all
the utilities with the exception of the City Engineer (Don Bunn).
Mr. Koopman said the first time he spoke with Mr. Bunn he
indicated he would have no problem with the pool remaining at its
present location, but did not want to vacate the easement. Mr.
Koopman said when he brought the form letter back for the City
Engineer to sign he indicated he had spoke with some other people
and was reluctant to sign the letter. Mr. Koopman said on the
third visit Mr. Bunn did not want to sign the letter because he
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• Board of Adjustment
June 1, 1987
Page 2
thought it would set precedent. Mr. Koopman said it was his
contention that precedent had already been set. He said the code
was specific (refers to structures) and that fences were
permanent structures, and the City allowed people to erect fences
and allowed them to remain.
Mr. Koopman
said it
was indicated to him at the
last Board of
Adjustment
meeting
that the Board of Adjustment
had granted a
gentlemen to
have a
portable storage building in a
prior case.
He said in
further
investigation on his part he
came across a
couple of
Arkansas
Supreme Court decisions.
He said there
definition
becomes "what
is a structure" and "what
is a fixture".
Mr. Koopman
read what
the Supreme Court stated;
A fixture has been defined by our Supreme Court as property
originally personal which being affixed to the soil or to a
structure is clearly part of the soil and being affixed or
attached to the land has become a part thereof.
Mr. Koopman said his swimming pool was not a structure by the
definition of the Supreme Court, it is not a part of the soil,
• no part of has become part of the soil. He said another case
they basically came up with the 3 parts, of.what�they considered
"what is a structure" or "what is a fixture". The first being
real or constructive annexation to the realty in question;
appropriation or adaptation to the use or purpose of that part of
the realty with which is connected; and the intention of the
party making the annexation to make it a permanent annexation to
the realty. Mr. Koopman said from those rulings he contends the
swimming pool is not a structure, but merely a fixture, and being
a fixture does not come under the City Code. He said the law was
specific, the Code was specific and is not addressed.
Mr. Koopman made a recommendation or suggestion to the Board that
they either approve the appeal for the variance as requested,
dismiss the appeal on his application for a variance without
prejudice or they can deny it and let the Courts settle the
matter.
Allred said his position was this Board did not have the
authority to do any sort of adjustment as far as the easement was
concerned. Allred said the easement could only be waived by the
Board of Directors.
Allred clarified that half of the swimming pool was in the
setback and the other half was in a sewer easement. He said this
• Board could only deal with the part in the setback.
Mr. Koopman said it was his contention that he was not in
• Board of Adjustment
June 1, 1987
Page 3
violation of any of the convenants.
Allred said he could not speak
for the
covenants because
the City
did not enforce covenants.
Allred
said this Board had no
jurisdiction over what is
or what
is not in the
utility
easements. Allred said that
was
another problem
he would
apparently have to take to the
Board of
Directors.
Mr. Koopman said he was not entitled to appeal the Board of
Directors. He said the appeal process from this Boardlwas
directly to Circuit Court.
Carlisle explained the only thing the Board of Adjustment could
rule on was his encroachment of the rear setback. She said in
order to totally resolve the easement question he would have to
take that to the Board of Directors.
Mr. Koopman said his uderstanding at the first meeting was that
the easement was the only problem the Board saw. He said as far
as the setback was concerned the Board indicated they would have
• granted the variance, but then the easement problem came into
view.
Mill said she was not sure the Board ever said what would be
done, and thought what the Board had pointed out first of all was
he had a problem with the easement.
Allred said Mr. Koopman had two problems, setback and easement,
waldren said a vote had never been taken as to what the Board
would do and possibly one or two individuals might of suggested
what could be done.
Mr. Koopman said they may of been what the dicussion was about.
Mills said the Board recieved handouts which specifically
prohibits stuctures of any kind to be constructed over a utility
easement. She read on saying the Board of Directors were the
only body of City Government that could waive this ordinance.
Mr. Koopman said it was his legal contention that his swimming
pool was not a structure, but merely a fixture.
Boyd said if this Board granted him a variance he would still
have no right to be in that easement.
Tompkins
wanted clarification
on the request.
Mr. Koopman
said
• the pool
was 2' from the
lot line and
did not meet the
20'
setback.
Tompkins then said
Mr. Koopman was requesting an
18'
4)
• Board of Adjustment
June 1, 1987
Page 4
variance from the required 201
.
Allred said the best this Board could give Mr. Koopman was 7-1/2,
because the remaining setback was a utility easement.
Waldren said he did sign off on the petition for SWEPCO, but
merely because SWEPCO was on the other side. He said if SWEPCO
was in that easement he would not of signed off on the letter.
Mr. Koopman said he was not asking for a vacation of the
easement, just merely to allow the pool to remain. He said'in
the letter he gave the Board he stated he new what the easement
was there for and had no objections to that and was willing to
work with all the concerned utilities. He said all he was asking
was to allow that pool to be allowed to remain in its present
location until a time so arises that it would need to be moved or
was in the way.
Mr. Koopman said he could understand why Mr. Bunn did not want to
make policy for the City as a Department Head.
• Mills said it was not a question of Mr. Bunn wanting to, but
rather was stated in black and white he .had no choice, he was
specifically prohibited by ordinance.
Mr. Koopman said in black and white why were fences allowed. He
said the Code did not address any adjustment for release for
fences, the code was specific.
Mills assumed each individual case had met whatever requirements
they must meet for whatever they have here.
Tompkins asked Mr. Koopman if he new the purpose of a setback
requirement.
Mr. Koopman replied "no" and he really could not see the rational
behind them except for having one building adjacent to another
right on down the line. He said if the Board did not have the
authority to grant a variance being how the easement was in
question his suggestion was to dismiss the application for
variance without prejudice.
Mills asked Mr. Koopman if he would like to go before the Board
of Directors and receive their opinion on the easement. Mr.
Koopman had no comment.
• Mills said if there were no other questions she would go into
session with the members of the Board of Adjustment.
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• Board of Adjustment
June 1, 1987
Page 5
At this point Mills closed the public hearing and returned
discussion to the members of the Board.
Boyd said he was not sure he could buy the fixture argument.
Boyd said he would personally be ready to grant the variance from
the setback, but with no affect on the easement.
Mills said her question was should they get the cart before the
horse as to should the Board of Directors vote to vacate the
easement first.
Carlisle advised if the Board was so inclined to grant the
variance then they could do it contingent upon the Boards
approval of vacating the easement.
Mr. Koopman requested to apply for the variance as if the
easement was not a question. Then he would handle the easement
situation as a separate item.
Allred said that was his only option and Mr. Koopman said he had
several options.
• Boyd said it would be of record if the Board granted the variance
as requested that it would be to the setback line only and
subject to Mr. Koopman resolving the easement problem.
Mills said ordinance 3073 prohibits structures of any kind to be
constructed over a utility easement.
Tompkins said the intent of the ordinance was to provide open
space around single family structures as well as light and air.
He felt there was adequate buildable area existing and in
conformance with the 20' setback. He did not feel there were any
conditions peculiar to the property particular the degree of
slope. Tompkins said since the pool was a temporary fixture or
temporary structure or an accessory structure he saw no problem
moving the pool, although Mr. Koopman said that it would be
difficult to, but at the same time he said he could if it was
warranted. Tompkins said he would disagree with the request.
Waldren agreed with Tompkins, and said there was no real hardship
involved other than the expense of relocating what Mr. Koopman
claims to be a temporary structure. Waldren said the pool looked
pretty permanent to him. He said the variance was extremely
large and that this was an excessive request and would tend to
vote against the request.
• Allred said if the Board denied the vacation of the easement the
structure would have to be moved anyway and at that point it may
J�
•
•
Board of Adjustment
June 1, 1987
Page 6
as well be conforming. He said
against granting the variance.
MOTION
for that reason he would be
Tompkins moved to deny the request as presented, seconded by
Waldren. The motion to deny passed 3-1-0, Waldren, Tompkins and
Allred voting "no" and Boyd voting "yes".
Mr. Koopman
stated
the Board
of Adjustment
was
given notice of
appeal with
written
notice to
follow within a
so
specified time.
APPEAL 87-9 - SETBACK VARIANCE
JIM LINDSEY - 1828 CAMBRIDGE
The second item on the agenda was dismissed because the 55'
setback was not enforceable by the City. The City Attorney
stated in a letter that the Board of Adjustment did not have
jurisdiction to grant a variance from a platted setback
requirement or from protective covenants. The Board can only
grant variances from the literal provisions of the zoning
ordinance. Therefore Mr. Lindsey would need to go to the
property owners association because he.is..in:.fact meeting the
City setback requirements.
There being no further business the meeting adjourned at 5:00
p.m.
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