HomeMy WebLinkAbout1988-12-05 MinutesCI
A meeting of the Fayetteville Board of Adjustment was held on Monday, December 5,
1988 at 3:45 P.M. in Room 111 of the City Administration Building, 113 West
Mountain Street, Fayetteville, Arkansas.
MEMBERS PRESENT: Don Mills, Gerald Boyd, Dennis Becker, Larry Tompkins and
Robert Davis
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OTHERS PRESENT: Don Dees, John Merrell, Freeman Wood and Elaine Cattaneo'
The minutes of October 17, 1988 were approved as distributed.
APPEAL 88-10 - VARIANCE OF BULK A AREA REQUIREMENTS
1609 CAROLYN DRIVE - RITA J. DILLARD
isThe only item of consideration on the agenda was a request -submitted by Rita J.
Dillard of 1609 Carolyn Drive and represented by Don Dees to vary the bulk and
area requirement from the required minimum lot area of 8,000 square feet in an R-
1, Low Density Residential zone to 7,200 square feet. 11
Larry Tompkins asked the staff why the Board of Adjustment is involved in a Lot
Split. John Merrell stated that he noted in his report that the Board of
Adjustment can not grant a Lot Split; that must be done by the Planning
Commission. The approach that the applicant and her representative are taking on
this is to see if they can receive a variance from the Board of Adjustment first.
If they can not, there is no point in putting them on the agenda next Monday for
the Planning Commission for a Lot Split. He noted that they could have
recommended that they first go to the Planning Commission and try for the Lot
Split. However, the Planning Commission would have sent it back to the Board of
Adjustment for a lot area variance.
Mr. Tompkins stated that he was a little concerned because they have been through
that for many years and pretty soon the Land Use begins to creep in and a lot of
activities are given to the Board of Adjustment such as this. He noted that he
was interested in Mr. Merrell's concept as a Planner. Mr. Merrell statedlthat
next year at some point, the City will have a brand new zoning ordinance and'this
Board will be involved in a review of that ordinance as well as the Planning
Commission and ultimately the Board of Directors. The elected officials will be
responsible for making the final approval of the new zoning ordinance. They have
1 1z
• Board of Adjustment
December 5, 1988
Page 2
hired consultants and expect them
to get under way in January or
February with a
totally
new zoning ordinance. There are a lot of little things
that need to be
cleared
up in that new ordinance
which they will attempt to do.
This is one
example
of something they need to
address in the new ordinance.
Don Dees, representative, stated that he has a preliminary plat of what they are
trying to do for the Board's review. He noted that he will try to explain that
they do meet some of the requirements such as setback and frontage requirements
for the lots. By splitting the lot into equal shares, there would be two lots
with 7,200 square feet each with the existing house on the lot to the east. He
stated that in the vicinity and the adjoining property, on the average, most lots
are 10,000 square feet or better. In this particular situation, they feel that
there is a special condition and a hardship for the applicant which is the fact
that on the back side (south side) of the property there is a 10' utility
easement for the utility company. The owners of Lots 29 & 28 just south of this
property own that easement and there is no one actually doing any maintaining on
the utility easement. He noted that they could try to purchase the additional
10' which would give them the required 8,000 square feet per lot and then make
application of the Planning Commission and would meet all of the requirements.
The special condition is that the easement does exist for the utility company and
the hardship part of it is having to actually purchase the 10' which would still
isbe designated as a utility easement. He added that there is a manhole and a
sewer line in the easement so there would never be anything --built on it. If they
did obtain that 10' and split the lot, nothing is theoretically going to change
other than the fact that they would be changing the names of who owns the 10' on
the south side of the property. The utility easement will stall exist.
Mr. Dees
stated
that
the special condition is
that utility easement and the
hardship
is putting
her
in the position of buying
something that already exists
and will
continue
to
exist for the City and
the Utility Companies. In his
opinion,
he doesn't
feel
that it is incumbent or causing
any :Landscape changes or
any undue
hardship
on any
of the existing neighbors
in the area.
Mr. Dees noted that this is a family affair with two family members wanting to
live close together. One is only about 40 years old but she :is becoming disabled
and has a child who is receiving special teaching at Root School and she is in
the position where she can no longer stay where she is at. He noted again that
they do meet all of the other requirements such as the setbacks and the frontages
required.
Gerald Boyd asked if there were any restrictive covenants on these lots. Mr.
Dees stated that the best he could find out was that homes in that area are
ranging from 12,000 square feet to 16,000 square feet lot area. Mr. Boyd stated
that there could be restrictions that they can't do this. Mr. Dees stated that
he is new at this and there is probably some more research that he needs to do on
this but he had not been able to find out where to go to find out what covenants
• there are there.
Robert Davis stated that he has an easement on the back of his property and you
113
• Board of Adjustment
December 5, 1988
Page 3
can't buy
it because it is a dedicated
easement for the utilities. Mr. Dees
stated that
they are
not actually trying to
buy the easement; what they might end
up having
to do is
actually obtaining the
property from the owners of Lots 28 &
29, but the
easement
would still exist for
the City. What he is saying
is why
force them
to buy
the extra 10' when it
is still going to be designated as a
easement.
Mr. Merrell stated that easement was platted into the development when this
subdivision was designed. He noted that he doesn't know who the original;^owner
of this house was but they most surely bought that house knowing that easement
was there. He added that he doesn't know if Ms. Dillard was aware of the
easement when she purchased the property but she probably was aware of the power,
telephone, and gas meter back there. There is no hope that any of the utility
companies are going to give up any control of the easement. He advised that the
presence of an easement in a subdivision simply is not a hardship in terms of
granting a zoning variance. It is there as far as the subdivision and will be
there probably as long as the subdivision is there.
Mr. Davis stated that he was under the impression that the easement has no
relevance to this discussion at all. Mr. Merrell stated that is the staff's
position exactly, but that is not to say that Ms. Dillard & Mr. Dees can't raise
it as an issue. However, it simply has no relevance to the granting, of a
• variance at all. Mr. Dees stated that if they approach the two property owners
to buy this 10', the easement will still exist. He added,11•that he is saying why
make her buy something when all they will be doing is changing the ownership of
the 10' x 160' strip.
Chairman Mills stated that she thinks they have a problem here with whether or
not they actually can do that.
Dennis Becker stated that the ordinance's definition of a "hardship" is something
within that neighborhood that is peculiar to the property :in question that is
different than any piece of property. He added that when Mr. Dees talks about
hardship, he is speaking about economic hardship that the owner foresees right
now. Two different items completely.
Mr. Dees stated this would be
an unusual situation
because
it is one of the
largest lots in that area at this time (14,400 square
feet).
He noted that he
doesn't believe any other lot
specifically in that
block is
that large,! Mr.
Becker stated that the abutting
properties to the south
look to
be 20,000 square
feet lots.
Mr. Tompkins stated that he had the same question so he did some research and
looked at 21 lots surrounding this area and he found that the lot sizes ranged
from 9,256 to 34,390 square feet within the neighborhood with the median size lot
being 13,940 and the mean size lot being 15,067 square feet. Therefore, with two
lots of 7,200 square feet they would be very unique; a lot smaller than the mean.
• This lot at its present size is smaller than the mean size.
Mr. Becker stated that after seeing the plat which shows the proposed driveway
I Id I
• Board of Adjustment
December 5, 1988
Page 4
would come off of Lunsford, he is concerned about the steepness of the drive.
Mr. Dees stated that the proposed house would be a sub -level house, a splitlevel
home and they intend to grade and pull out and actually embed the house about 5'
underground and level that off and use retainer walls. Mr. Dees noted that they
are taking in consideration the drainage problems and the landscaping appearance
of the lot. Also, on Carolyn corner there is a fire hydrant and they did not
want to interfere with it and the possibility of having traffic blocking that
hydrant.
Mr. Tompkins asked Mr. Dees if the owners of Lots 28 & 29 were approached about
this. Mr. Dees stated that they had talked to them one time prior to this
variance request and the exact statement was that they didn't own that 10' of
property, the City does and they were concerned because the City doesn't maintain
it. He noted that he was unable to make them understand that the City does not
own the property but the utility companies just have an easement with access to
the property.
Chairman Mills asked if anyone in the audience would like to speak in favor of
this request or in opposition to it.
George McLaughlin, owner of Lot 28, stated that until the variance sign was
posted there, they had never even heard of this so nobody has approached him.
• He noted that he is not in favor of this.
Helen Rice, owner of Lot 29, stated that she had not been approached either.
She advised that as far as maintaining that easement, she is the one that keeps
that clean. She stated that she is not in favor of this variance. She noted
that the only thing she had to say about the easement is about two years ago
their sewer line was backing up and the City had been out there three or four
times to clear the sewer line. Finally, they had to dig a hole and the hole is
still there and she did say one time that she thought the City needed to take
care of that because she was thinking about eventually putting gravel on there or
fixing that so the water running down the hill wouldn't make a gully.She
advised that was the only comment she had made about the idea of the City
maintaining it.
Webster Darling who lives in the Jackson Addition across the street stated that
in their addition, their requirements are 25' from any lot line and what he
proposes doesn't meet these requirements according to the plat. Mr. Dees stated
that there was a mistake made, it should be 25' there.
Mr. Darling stated that also there is a path coming from Root School that comes
up to Lunsford and a lot of children go up that path. It is a hazard the way it
is without putting another house and a driveway coming right down on to that
path.
Diane Motizet stated that she thinks the people in this neighborhood have made a
• sincere effort to take care of there homes. She added that she wants to know
what this house is going to look like in the future. Lunsford Street has become
a disgrace with a rundown neighborhood and cars parked along the street. It is
115
• Board of Adjustment
December 5, 1988
Page 5
also
hazardous as
far as the
driveway coming
into Lundsford.
She advised that
she
does not want
something
put in there that
is not taken care
of.
Neil Danner who lives just east of this property stated that he is concerned
about congestion on those streets. Gerald Boyd asked him if he knew of any
restrictive covenants in the subdivision. Mr. Danner stated that there are some
restrictive covenants which include restrictive setbacks and lot size which he
believes is 7,000 square feet. Mr. Boyd stated that frequently there are
prohibitions of further lot splits which would mean that a lot split could only
be done with universal consent of all the property owners in the subdivision or
with proof that the covenants had been abandoned.
Mr. Tompkins asked what the Master Street Plan indicates for Lunsford. Mr.
Merrell stated that he is not sure but he would guess that it is a "local
residential street" with probably a 50' right-of-way.
Mr. Dees stated that he would like to response to some of the comments that have
been made. Chairman Mills stated that only if the Board has questions, they will
call on him.
Mr. Becker stated that he didn't think they need to worry about what the`'house
will look like right now.
• The public hearing was closed and discussion took place among the Board.
Mr. Tompkins asked if seven days notice had been given of this public hearing.
Mr. Merrell stated that adequate notice was given in the newspaper and the sign
was posted on the property. Mr. Merrell stated that, as far as the
notifications, one of the projects next year is to improve our efforts at
notifying adjacent property owners and meeting deadlines. He added that
presently they are meeting the minimum requirements but they could do better.
Mr. Boyd stated
that on
the notices
if they could have, along with the lot number
and block number
of the
subdivision,
some kind of common reference it would help
them locate the
subject
property.
Mr. Merrell stated that he had talked with the City Attorney about whether they
are required to publish the legal ads with the long legal description and there
is no provision in either the State Law or the City Code which requires the long
legal description. He noted that beginning in January they will use the common
reference and address. In that way, it will be easier for the public to
understand where the property is located as well as the Board.
Mr. Tompkins stated that he feels that the applicant has done a good job of
maximizing the use of the house on the lot with there proposed plan except the
square footage is short of what is required. He added that he feels that the
character of the neighborhood is such that the intensity of development should be
• maintained. This deviance of 7,200 square feet is totally out of character with
the neighborhood and it doesn't really create that much of a hardship because
they could negotiate to acquire the additional square footage if they wanted to.
• Board of Adjustment
December 5, 1988
Page 6
He would vote to deny.
Mr. Becker stated that he would like to reemphasize the importance of following
the format of the variance procedures. The application has "see attached letter"
in four places and he feels that Mr. Dees did himself a disservice when he,swung
away from the format that they look at. He noted that the staff analysis is
that no special conditions exist and there is no demonstrable hardship.
Therefore, if the applicant is going to deviate from the format, then the
applicant needs to provide information on these points because that is what they
are looking for. He advised Mr. Dees that when he brings something in like this,
he has to show really special conditions to deviate from an established plane. He
noted that he feels that it is an open and shut case to deny the request.
MOTION
Gerald Boyd moved to deny the variance, seconded by Davis. The motion passed 4-
0-0.
w w u;a:ULY I; C�99
ITEK U1
• John Merrell stated that he would like to discuss the.. sign.appeal considered by
the Board about a month and a half ago on the IBM building on North College. At
that meeting one thing that was discussed was the driveway that goes off of North
College which was to be an "entrance only" from North College and not an exit out
onto North College for traffic safety reasons. He noted that he has done some
research on this. He talked to Perry Franklin, Traffic Superintendent, and was
told that the Arkansas Highway Department has approved that entrance as an
ingress and egress and they have the final word. The only thing that theliCity
could do would be to take the Highway Department to court. He noted that in his
opinion that should be an "ingress only".
Mr. Boyd asked if they have a regional representative on the Highway Commission.
Freeman Wood stated that he thought Bobby Hopper is on it. Mr. Boyd stated that
they might send a letter pointing this out to him, perhaps a letter to the
Highway Commission with a copy to Mr. Hopper. Mr. Merrell advised that he will
talk to Mr. Franklin about that and get some information and take it from there.
Chairman
Mills stated
that a letter should be sent to
let Mr. Hopper know the
Board of
Adjustment's
concern.
p
Mr.
Davis stated
that
road
was never designed
for
a
right-hand
turn coming out of
the
parking lot,
only
for a
left-hand turn to
get
in
to it.
P
Mr. Becker stated that he understands from J.E. Springborn that it went with the
isfrom
and was approved by the Planning Commission some time back to have Iexit
from but not to it. He stated that you can't sit in that lane and make a right-
hand turn without stopping everybody coming in the other way.
117
• Board of Adjustment
December 5, 1988
Page 7
Mr. Merrell stated that on this one aspect of that development plan the Highway
Department overrules the City and does have final word. Mr. Hopper might
possibly be able to cause a review by the district engineer of that situation.
Mr. Tomkins stated that as the transportation of the area grows, they should send
a message to the Highway Department somehow about situations like this.
Mr. Merrell advised that he will talk to the Traffic Superintendent and see if
Bobby Hopper is still on the Highway Commission. Perhaps they could draft a
resolution for your consideration and include it with your agenda packet next
time expressing the concern of the Board of Sign Appeals over this issue and send
it to the Board of Directors. 11
Mr. Davis asked if anyone has talked to the landlord that the representative of
the IBM Corporation spoke of at that earlier meeting. Mr. Merrell stated, no,
that hasn't been done. It would be a little bit presumptuous for the City staff
to go out there and do that when the Highway Department itself has approved'it.
He added that he is dead set against the way it is now. He advised that the
City in conjunction with the Highway Department in 1989 is hoping to make, some
big changes to the intersection of Joyce and North College. His understanding is
that those changes are going to have to be done by the Highway Department with
• that City as a joint project and they will have to be coordinated with some
changes where Zion comes into North College a little farther down the road.
Mr. Boyd asked if there is any chance of there being a road from Joyce up to
Zion, a frontage road. Mr. Merrell stated that he will ask Mr. Franklin ifl that
has ever been looked into.
Chairman Mills stated that if he thinks there is a possibility that all of these
intersections are going to be reworked, lets get the resolution in and get that
started so perhaps this could be corrected when that is done.
ITffii #2
Mr. Merrell stated that the Board of Sign Appeals heard a Sign Appeal request
earlier this year from McIlroy Bank ATM building at the corner of Mission and
Crossover (Lindsey Mercantile). This is a situation where they went ahead and
installed an Automatic Teller Machine on this property and the Bank really didn't
have a definite proposal. He noted that when it came to his attention, he
discussed it with Freeman Wood , Inspection Superintendent, and Richard Wilson,
Sign Inspector and they have been looking into a way as to whether or not they
could administratively interpret the ordinance such that they could allow them to
put up some sort of signage on that building. He stated that they have even
looked into the possibility of amending the Sign Ordinance itself because those
ordinances date back to 1970 when ATM's were not around.
• Freeman Wood stated that when he went out and looked at it, he noticed that it is
built out of brick concrete structure. They have always used the criteria that
if a building has firewalls it is considered a separate building and a sign can
118
• Board of Adjustment
December 5, 1988
Page 8
be issued for that separate building if it had the firewall. He advised that it
would at least have a 2-hour rating going all the way around it so it could be
looked at as a separate building. He added that they had looked into the
possibility of amending the exemption section of the ordinance to allow for ATM
buildings to have a 10 square foot sign for identification. Then, if an ATM
building was out somewhere where it wasn't in conjunction with the lending
institutions buildings and property, it would be allowed a sign of maybe 40
square feet of identification or advertising signage with all of it on one wall
or divide it up with the other walls with the maximum being 40 square feet. He
stated that they felt they should classify a "24 hour bank teller" or "deposit
here" as informational signs which would be exempted and not be included in the
40 square footage maximum.
Mr. Wood further stated that the unique thing about the ATM building at Crossover
and Mission is that it is underneath that canopy and normally they classify a
canopy as part of the main building (all one structure). However, since they
have determined that it has a fire rating, he thinks that they can make a good
argument for calling it a separate structure.
Mr. Tompkins stated that he thinks this interpretation is a good one because he
likes the fire safety concept. The interpretation of the public safety principal
is very valid.
• Chairman Mills advised that she thinks it is a sensible solution.
Mr. Wood stated that the situation that he is in with trying to administer this
is that they can make minor judgment calls, but he needs to know what the Board
of Sign Appeals consensus is so that he can base that minor judgment on it.
Chairman Mills stated that there seems to be some confusion on measuring signs
and she would like something to tell them how the signs are measured. Mr.
Merrell stated that he thought they had already been given that information. He
noted that he would make sure they got that information because Richard Wilson
has prepared sketches for their information. Mr. Wood stated that he would like
to discuss that with Mr. Merrell first and make sure they agree on it all.
Chairman Mills stated that there are many changing coming about right now and she
advised the Board members to jot down the things that they are concerned about
that need correction or redoing.
There being no further business the meeting was adjourned.
L_J