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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 40 • 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. Ib • 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. �p