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.