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HomeMy WebLinkAbout1989-04-03 MinutesA meeting of the Fayetteville Board of Adjustment was held on Monday, April 3, 1989 at 3:45 P.N. in Room 111 of the City Administration Building, 113 West Mountain Street, Fayetteville, Arkansas. MEMBERS PRESENT: Don Hills, Dennis Becker, Larry Tompkins, Dee Wright, Robert t Waldren, Gerald Boyd and Robert Davis OTHERS PRESENT: John Merrell, Freeman Wood, Wade Bishop, Lamar Pettus and Elaine Cattaneo MINUTES The minutes of the regular meeting of February 20, 1989 were approved as distributed. :QUEST FOR A REHEARING BISHOP 1537 THORNHILL - VARY SETBACKS The only item on the agenda was a request for a rehearing of an appeal for a variance on the building setbacks submitted by Wade Bishop for 1537 Thornhill which is zoned R-1, Low Density Residential. Request was for a variance on the yard setback requirement. Chairman Mills stated that with a rehearing, the Board of Adjustment will discuss this among themselves and then vote as to whether or not they want to rehear this. Mr. Becker suggested that they might entertain any new information that Mr. Bishop or Mr. Pettus have that would help them ascertain if they should vote to rehear this. John Merrell advised that the zoning ordinance doesn't really address a request for a rehearing of a zoning variance. There is a proviso in the zoning ordinance relating to rezoning petitions that says once a rezoning is denied by the City, the applicant has to wait twelve months to reapply for a rezoning unless there are some very compelling reasons for the applicant to bring that rezoning back to the City. That language is not present in the chapter in the zoning ordinance on the Board of Adjustment and zoning variances. Therefore, what the staff did when Mr. Bishop originally contacted the staff as to what he might do to request a rehearing, they ultimately checked with the "Rules of Procedure" of this Board and there is a section in the "Rules of Procedure" that simply says an individual • can apply to have his request reheard and gives the Board wide discretion to vote on that. After discussion with Mr. Bishop and Chairman Mills, it was agreed to put the request for a rehearing on the agenda today and if the Board votes to • Board of Adjustment April 3, 1989 Page 2 rehear it, the appeal will be scheduled to be reheard at the Board's discretion. If the Board votes not to rehear this appeal, Mr. Bishop's appeal is with the Circuit Court. Chairman Mills clarified that today they will determine whether or not they will rehear the appeal. In answer to a question from Chairman Mills, Mr. Merrell stated that if they vote to rehear this, the staff will re -advertise this appeal. Mr. Davis suggested that it might be good to have an investigation done of all of the houses in Yorktowne Square to see how many are not in compliance and not be thinking about an exception for one which could carry back and give a free ride for the rest of them. Chairman Mills stated that there haven't' been any others brought to this Board's attention. Mr. Merrell stated that it is his understanding that the individual who originally submitted a complaint to the staff for the 1537 Thornhill house has further alleged that there are several other residences in the neighborhood that aren't in compliance. In answer to a question from Mr. Merrell, Freeman Wood, Inspection Superintendent, stated that he thinks they have pretty well worked out the others that weren't in compliance. He added that Mr. Bishop had cut one house off to bring it.into compliance (across the street from this appeal) and Mr. Bishop had • determined that the others where in compliance. Mr. Bishop stated they had remeasured the house at the other end of the street and determined that it was in compliance. Mr. Wood stated that as far as he knows they don't have any problems in this area at the moment unless there are some others that they aren't aware of. Mr. Waldren stated that each one of these should stand on its own merit rather than try to lump them all together if there are any other residences that are not in compliance. He added that the decision made on this one should not set a precedence for either granting or denying a variance on any other property. Mr. Tompkins agreed. Mr. Tompkins stated that he feels it is important for the neighbors to be aware if there is going to be a rehearing so that they can have input as they did originally. Mr. Merrell assured them that the Planning staff will re -advertise. Chairman Mills advised that at this point, the City has been involved but this Board has not been involved with any other problem in this area. Lamar Pettus, Attorney for Mr. Bishop, stated that the additional information they are presenting to the Board is the economic hardship of having to tear down or redesign part of the house so that it would fit within the City setback requirements. Also, they would like to present some statements from neighbors who live in the neighborhood concerning the way the house would be modified to meet the setbacks. They feel that these modifications would make it a residence that will have an adverse impact on the neighborhood as a whole. In this case • they will virtually end up with a house without a garage on it and all the other houses in the neighborhood have garages. Also, some of the corners and angles • Board of Adjustment April 3, 1989 Page 3 could be chopped off to make it comply but it is not going to end up looking like the type of house that people would like to have in the neighborhood. He explained that there has been a longstanding case log where people have built across someone's property line and the courts have said in those cases that you have to take into consideration the economic hardship as well. The fact that there isn't any place to appeal is a problem for a person coming before the Board of Adjustment. He advised that they have had to go ahead and file a lawsuit in Circuit Court and sue the City which means that the City is having to incur expenses and legal fees over and above the standard legal expenses that are paid over an issue like this. He noted that there really needs to be some type of administrative appeal to go to the Planning Commission or the City Board before they get involved in lawsuits. He stated that they ask that the Board reconsider this appeal and that they be able to bring in some of the people who own property in the area and at least let them have a chance to state there comments and concerns. Mr. Bishop stated that some of the neighbors are present and would like to make a statement. Chairman Mills stated that she would like any information to be geared toward why they should rehear this rather than whether or not to grant the variance. Mr. Becker stated that he would object to hearing from the neighbors today because Mr. Bishop and Mr. Pettus can adequately tell their reasons for the rehearing. The neighbors should be heard if they decide to go into a rehearing. • He noted that he thinks it would be an unfair situation to have more than the adequate representation to give their argument. Mr. Becker moved that the Board do not hear the neighbors at this time, seconded by Tompkins. The motion passed 7-0-0. Mr. Bishop stated that his concern is that to bring this house into conformity will leave it with a "clobbered up" appearance. If the waiver isn't granted, the house will not have a garage and will alter the physical appearance of the house. The person who lives in the house will have to park on the driveway or in the street which the neighbors will object to. He noted that he has been made an example of and he has learned his lesson and he is fully aware now that the regardless of who is at fault on staking out this house he will be responsible for making sure it meets the setbacks. Therefore, he will very carefully stake out houses in the future. Mr. Becker stated that he has no problems with a rehearing. The point is well taken that the only recourse from this Board is directly in the Court and maybe some should exist in between as an appeal situation. He added that he would like to see everything again and have the engineer recognize the ordinance as it is written by the City which states that measurements should be to the overhang and not necessarily arbitrarily just to the wall. He noted that they never did get the correct encroachments, so they had to make measurements themselves. • Mr. Waldren stated that he agreed with Mr. Becker and he has no problem with a rehearing. 0 • Board of Adjustment April 3, 1989 Page 4 Ms. Wright commented that the aesthetic value is important in a neighborhood like that and she feels that it would be fair to hear what it could do to the neighborhood so she is in favor of a rehearing. Mr. Boyd stated that if a suit has been filed, it is possible in a settlement of a suit to do things that they can't do. For example, in this case maybe let them leave this house as it is but add to the local park or something like that to make up for it. Since the Board of Adjustment would not have the authority to make a decision like this, possibly they might discuss this with the City Attorney. Mr. Pettus advised that the reason the suit was filed is that you have 30 days in which to do something so he talked to Jim McCord and filed the lawsuit but he will discuss this idea with him. Chairman Mills stated that a few years ago they were having so many problems with setbacks on new buildings that they went through a series of meetings with the builders present. At that time the City came up with the policy of having the builder file with the Planning Office a site plan showing where the building was to set and that it would meet setbacks and it was determined that the responsibility would be the builders to be sure that all the setbacks were met as • filed. She added that this is not directed to any one person but they need to keep in mind the background on this. There have been -problems with setbacks and the builders are aware of what they must do. Mr. Tompkins stated that he has no problem with a rehearing, but he does have a problem with the introduction of new evidence. He commented that he thought about economic hardship and the neighborhood when he made the first decision. As far as the appeal process, it would require State Enabling Legislation change. He noted that they aren't picking Mr. Bishop to make an example of, others in the City have had to make adjustments as well. NOTION Mr. Waldren moved to grant the rehearing, seconded by Boyd. The motion passed 5- 1-0 with Mr. Davis voting "no". John Merrell suggested to Mr. Bishop and Mr. Pettus that if they have any additional new information that they would like to submit, to submit it to the Planning Office. Mr. Becker requested that the Engineer address the overhang. Ms. Wright stated that they could show what the house would look like if it was modified. Mr. Merrell stated that they feel like the burden is on the applicant to furnish • this information to the Board and the staff can review the information and submit it to the Board with any comments they may have. �15 • Board of Adjustment April 3, 1989 Page 5 A member of the audience who is one of the property owners near this asked if there is something that the neighbors could submit such as a petition to show that they don't want this house "clobbered up". Chairman Mills stated that in the past they have had petitions and letters from the individuals which should be submitted to the City Planning Office. Mr. Merrell advised that the Planning Office tries to send out the agenda packet on the Wednesday before the meeting so any information or whatever should be submitted by Tuesday of next week for the April 17th meeting. He advised that from his experience as a planner for many years, it is very common for an appeal from a Board such as this to go directly to the Court. That is not at all unusual because this Board is a judicial body where as the Board of Directors is a legislative body. Mr. Pettus stated that there really isn't anything the City can do about changing this avenue of appeal, but if Mr. Bishop's appeal to the Court is put on a normal docket, it would be for 1990 or 1991. Chairman Mills advised that Robert Davis has finished his term with the Planning • Commission meetings and Larry Tompkins has volunteered to attend those meetings for the next term. There being no further business the meeting was adjourned.