HomeMy WebLinkAbout1989-04-17 MinutesA meeting of the Fayetteville Board of Adjustment was held on Monday, April 17,
1989 at 3:45 P.N. in Room Ill of the City Administration Building, 113 West
Mountain Street, Fayetteville, Arkansas.
MEMBERS PRESENT: Don Hills, Dennis Becker, Larry Tompkins, Robert
Waldren, Gerald Boyd and Robert Davis
OTHERS PRESENT: John Merrell, Wade Bishop, Lamar Pettus and
Elaine Cattaneo
The minutes of the regular meeting of April 3, 1989 were approved as distributed.
u:r. D' BISHOP
THORNHILL - VARY SETBACKS
The only item on the agenda was 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 advised that they heard the appeal and voted to deny the variance
and then there was a request for a rehearing. It has been asked that instead of
having a rehash of things that have been discussed at the previous meeting, they
hear new evidence or information that would justify the rehearing.
Lamar Pettus, Mr. Bishop's Attorney, stated that he wasn't at the first hearing
but he will try not to rehash. He noted that the Board members had been provided
a copy of a floor plan which shows the modification that would occur to the house
in order to make it conform. They would have to take off part of the garage and
move it back about 6.5' and then cut off part of the front of the bedroom and
closet area. They have also submitted a survey dated January 6, 1989 which
should clear up the questions concerning the distance of the setback from the
roofline as opposed to the actual wall. The encroachment is 18.46' when measured
from the roofline as opposed to the wall which was measured as 19.79'. A
petition signed by the neighbors of this property has also been submitted.
Mr. Pettus stated that he thinks it comes down to an issue of what is equitable
Is showing
far as the neighborhood is concerned. He submitted some photos to the Board
showing this house in violation and explained that because of the cul-de-sac it
actually lines up farther back if you are looking straight down the street.It
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• Board of Adjustment
April 17, 1989
Page 2
is actually standing farther back from the regular street right-of-way brought
about partially by the cul-de-sac. He added that they and the neighbors feel
that by requiring part of the structure to be torn down they will end up with a
structure that is not going to look very good and will not fit into the
neighborhood. Also, the cost to do that is high because they would be tearing
down and rebuilding. He added that they think it is the type of situation where
the Board of Adjustment would be justified in granting a waiver. There is no
evidence of intentional locating of the house at the wrong location and there
also is no evidence that Mr. Bishop has done this in the past or has been here
asking for waiver after waiver. Basically what they have is just an equitable
argument.
Mr. Bishop stated that the neighbors that he has talked with are quite concerned
about the appearance of the house after such a correction was made to it which
would detract from the values of their property and from the area as a whole.
The vehicles would have to be parked on the driveway and on the street which
would detract from the values of their property also.
Chairman Mills asked if anyone else would like to speak in favor of this
variance.
Fred Crossett of 1586 Thornhill stated that he is one of the neighbors who signed
• the petition and they all are very much interested in seeing the variance
granted. He advised that it looks like they would have to almost cut off that
one bedroom and then there would be a vertical wall if it had to be modified to
conform. He noted that the closest neighbors had all signed the petition and
they were all in favor of granting this variance.
Mrs. Sunderman of 1587 Thornhill stated that the house in question just sits in
line with all of the other houses and if they change it, it will be more of a
distraction to the neighborhood. He added that it is a nice house and they are
very happy with it.
Chairman Mills asked
if there
was anyone who would like to
speak in
opposition of
this. There being no
reponse,
discussion took place among
the Board
members.
Mr. Waldren stated that he understands that Mr. Pettus has filed in the Court to
appeal the original verdict of this Board. He asked if he is correct in assuming
that it will be about a year until this case is heard. Mr. Pettus answered that
if it went by the normal routine, it would definitely be that long from now
before it will be heard. He added that they would ask for an earlier hearing but
realistically if the judge wanted to put it in order with everything else, it
will be set in 1990 or 1991. Mr. Waldren asked what would be the deposition of
this pending that trial. Would the house remain empty with no modifications to
it? Mr. Pettus stated that Mr. Bishop would have to make up his mind about what
to do with it. It is obvious that they could not sell it and convey good title
to it as it is so he would either have to elect to let it sit or have some type
• of arrangements for renting it if the City would allow him or tear it apart and
redo it. Mr. Pettus stated that they have made some overtones with settlement
negotiations with the City based on this Board's recommendations. He advised
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• Board of Adjustment
April 17, 1989
Page 3
that he was told by Mr. McCord to go ahead and put that in writing. It is the
type of thing that is based upon existing case law unless the judge can find a
pattern of violations on the builders part. A judge will be hard put to require
the house to be torn down or modified just from the economic hardship. That case
file comes mainly from situations where people have built across the neighboring
property lines because of a misunderstanding of where the property line is
located or a wrong survey. This is a different situation because there is a
platted subdivision with established lot lines. Of course, the judge may tell
them to tear it down and start all over.
Mr. Bishop stated that when this error was first brought to his attention, he
stopped all work to the house. It is about 97% complete. 11
Mr. Tompkins stated that the application states that they are applying to vary
"yard requirements" plural. Mr. Pettus stated that there is a side violation
also on the east side. Mr. Tompkins stated that the petition submitted by the
neighbors using the phrase "alleged right-of-way clearance violation"; what does
that phrase mean? Mr. Crossett stated that he wrote it and he didn't know what
setback was required. Mr. Tompkins explained that it isn't an "alleged"
violation, it is in violation. Mr. Crossett stated that as far as the fireplace
on the east side encroaching, Mr. Hopper owns the property next door and he
doesn't want any changes made to the house.
• In answer to a question from Mr. Boyd, Mr. Pettus stated that the subdivision
covenants adopts the plat so there are setback requirements in the covenants.
Mr. Boyd stated then that they are in violation of that also.
Mr. Tompkins stated that they have no power to enforce private covenants.
Chairman Mills stated that the enforcement of the covenants is up to the Property
Owners Association.
Mr. Tompkins stated that there are other design alternatives to the correction of
the particular problem. The idea of it being "clobbered up" is certainly an
aesthetic idea and the property value might decline. There are other 'design
alternatives than cutting it off at an angle.
Mr. Boyd stated that the Statue that they operate under states on part of the
application that "A variance from the terms of this ordinance shall not be
granted by the Board of Adjustment unless and untill:", then it list four
sections to be filled in and on Mr. Bishop's application they all say "See
Attached letter". He asked Mr. Pettus if they can answer the four questions.
Mr. Pettus asked him to read them off and he will answer them. Mr. Boyd read
(a) through (b) as follows: (a) " That special conditions and circumstances
exist which are peculiar to the land, structure or building involved and which
are not applicable to other lands, structures or buildings in the same district":
Mr. Pettus stated that the only way they can apply that to this is that there is
nothing unusual about the subdivision out there except that the house has already
• been built on the lot and is improperly located. Therefore, they would have to
cut out approximately 200 to 300 square feet and would come up with a square
front as far as angles are concerned. Mr. Pettus commented that in his opinion,
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• Board of Adjustment
April 17, 1989
Page 4
this would definitely fit into that category because they would be significantly
reducing the size of the house and it would not at that stage fit in with the
neighborhood.
(b) "That literal interpretation of the provisions of this ordinance would
degrive the applicatn of rights commonly enjoyed by other properties in the same
district under the terms of this ordinance".
Mr. Pettus stated that what he said when he was presenting the information is
that this is really an equity argument. Is it right to require at this stage for
the house to be reconstructed to fit the ordinance; can it be done and can it fit
into the neighborhood? He added not only would that be affecting Mr. Bishop, but
they would be affecting the neighborhood. Mr. Boyd stated that if the house were
removed and a new one built, it wouldn't affect the neighborhood. He noted that
this argument would be applicable to every situation that would come before them
so everyone could say that they did wrong but it would cost them money to change
it. Mr. Pettus stated that if they had had Mr. Bishop coming to them 3 or 4
times and saying he did wrong, then they might make him tear down the house and
rebuild it. Mr. Boyd asked if Mr. Bishop had ever been before this Board before.
Mr. Pettus stated that to his knowledge he has never been before them with a
setback variance. Mr. Bishop advised that he has been building for twenty-five
years and he has been before this Board one time with a roofoverhanging by about
(c) "That the special conditions and circumstances do not result from the actions
of the applicant": Mr. Pettus stated that for their argument purposes, Wade
Bishop is the applicant and he or his employees did have to go out and stake
out where the house was to be put.
(d) "That granting the variance requested will not confer on the applicant any
special privilege that is denied by this ordinance to other lands,
structures, or buildings in the same district": Mr. Pettus stated that every
citizen in Fayetteville has a right to come into this Board and ask for a
variance of a setback and this Board can grant those. He added that it is an
equity type situation as opposed to a black letter law interpretation.
Therefore, granting this variance would not confer on him any other right
than any other citizens have.
Mr. Boyd stated that they normally think of these special conditions or hardships
as being a situation such as on Mount Sequoyah where you have a 300' lot but only
the first 30' to 40' are flat and then there is a cliff. That is a circumstance
that does require looking into and everybody else doesn't have this problem. As
far as just putting a house in the wrong place, every builder in town can do it
and come to them for a variance.
Mr.
Pettus stated
that he and
Mr. Bishop understand the purpose of the ordinance
but
what they are
asking them
to consider is the entire circumstances and look at
the
problems one
at a time. Do your circumstances justify the Board waiving in
• this particular
situation or
has it been a blatant violation of the ordinance.
The
neighbors are
saying they
like the house where it is and they would all just
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• Board of Adjustment
April 17, 1989
Page 5
like the City to allow it to remain. He commented that it comes down to whether
or not they are going to have a strict instruction and not have any leeway which
means that except for those very unusual circumstances, they should never grant a
variance.
Mr. Becker asked if there were not two other houses in this subdivision in
trouble so Mr. Bishop would have been back to this Board a couple more times if
those had not been resolved. Freeman Wood stated that he would have had to come
before them but those had been resolved.
Mr. Pettus stated that Mr. Bishop's position is that some of the problems that
were caused were as a result of stuff that has already been discussed before the
Board concerning his situation with the breakup of the relationship with his
stepson. He noted that as soon as Mr. Bishop learned of this violation on
Thornhill Drive which was reported by the stepson, the other one under
construction was checked and could be corrected fairly easily since the house had
not gone above the floor. He didn't come in and ask for a variance on it, he
made that correction.
Mr. Tompkins asked if they had looked at any other alternatives in terms of the
design itself. Mr. Bishop stated that anything they have looked at would result
in having to cut deeper into the house which would add to the "clobbered up"
• appearance to the house so they want to keep it to a minimum.
Mr. Becker stated that the first survey that came to them showed that the setback
on the front was 19.79' which was wrong and there was a greater encroachment than
the surveyor had indicated. He noted that they had been provided with a correct
one and the greatest encroachment on the garage is about 6.5'. There is also a
little bit of an encroachment on the east chimney and on the front porch. Then
there is this impressive drawing to indicate the "clobbered up" front end angle.
If you check the overhang of the existing and where it is redrawn, it comes to 8'
but they are only 6.5' so he tends to believe that they have a little bit of an
exaggeration there.
Mr. Bishop stated that at the time that he had this drawn up, they didn't have
the benefit of the engineer's plan so they went over approximately what they
thought it would be. Mr. Becker stated that the more angle they indicate on that
drawing the worst the situation looks and the more one might believe that the
only answer would be to leave it alone and go away. He added that he has drawn a
layout to scale and it looks to him like if they cut off about 5' of the garage
which would make the encroachment only a few feet. He added that they have given
variances for encroachments of only a few feet and said that they aren't trying
to interpret the code to the inch. He commented that his concern would be the
amount of the encroachment on the front and the garage could be squared off and
still be big enough although they may have to take that closet area out. In this
case there would be no angle and it wouldn't change the appearance to the front
although it would cost some money, but he does not consider this an economic
•
hardship.
In answer
to a question from Mr.
Becker, Mr. Merrell stated that the staff stands
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• Board of Adjustment
April 17, 1989
Page 6
on their earlier recommendation which is based on the four points established in
the zoning ordinance for this Board to grant a variance.
Mr. Pettus stated that he thought they would have to take off about 7' of the
garage.
Chairman Mills asked if the plan that was submitted for the building permit on
this lot conformed to all of the setbacks and requirements. Mr. Wood stated that
that it did but he would qualify that statement with the fact that he is not the
one that checks the setbacks. The Planning Office is responsible for checking
that but they wouldn't have issued a permit if it didn't comply with the setbacks
or requirements.
The public hearing was closed and discussion took place among the Board.
Mr. Tompkins stated that the building line setback of 25' is established for the
health, safety and welfare including prosperity, etc. and adherance to that is
rather critical. He added that he understands that it would take a redesign and
probably some extra money to make this conform but the good to the neighborhood
and the community and the requirements should be adherred to It can be
modified and developed to come into conformance.
• Mr. Waldren stated that he sympathizes with the neighbors if they don't grant
this variance because this house can be rearranged anyway Mr. Bishop wants to
which might not fit into the neighborhood. He added that the front setback
variance is the most important because the others don't amount to anything.
Also, Mr. Bishop could possibly be tied up with a fairly expensive house and
piece of property for a year without being able to do much with it. He,stated
that from that aspect, he can see an economic hardship in two respects if they
don't grant some sort of variance: a) one would be that his property will be
tied up while he appeals it to circuit court and b) two he would have some
economic hardship if he goes ahead and modifies this. He commented that Mr.
Bishop is responsible even if someone that was working for him did it. From that
aspect, he noted that he feels like Mr. Bishop should have been more on,top of
what was going on out there. Therefore, he tends to lean towards a waiver as Mr.
Becker had described it and perhaps grant them a 2' variance on the garage itself
and grant the variance on the sideyard and the bedroom.
Mr. Davis stated that they had had a decision from the Planning Board, made their
own decision and in the meantime Mr. Bishop and his attorney have filed suit
anyway, so they should stand by their original decision and let the suit take its
course.
Mr. Becker stated that he thinks they make a valid point when they say that the
structure is on a cul-de-sac so it sets back. They aren't talking about the
standard street with all the houses lining up so that one that encroached and was
out of line could present safety sight problems. However, he still think that
• there are tolerances that they have to live by or otherwise they just let
everything go sailing through because everyone has an economic hardship. He
added that there are solutions to modify this and he thinks they could still
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• Board of Adjustment
April 17, 1989
Page 7
salvage the garage.
He added
that
it should have been
caught because he made one
trip out there and
saw that
the one
across the street
and the one down the block
were both in trouble
without
doing
any measurements.
Chairman Mills stated that she feels like if this had not been discussed several
years ago when they went through the problems they went through with the builders
and their setbacks, she would be a little bit more receptive to it. However, a
couple of years ago they went through this with the builders at any number of
meetings in which they talked about the violations that were doing done. The
builders own idea was the submiting of the building plans to the Planning Office
and they would be responsible for their actions thereafter. The builders have
been alerted.
Mr. Becker moved to allow the encroachments as they exist on all parts of the
house except the garage which they would allow to encroach three feet into the
setback, seconded by Waldren.
Chairman Mills asked who would monitor this to be sure that these setbacks are
followed. Mr. Merrell stated that if this motion were to carry, the City would
work with the contractor to ensure that they comply.
• The motion failed 3-2-0 with Boyd, Becker & Waldren:voting "yes" and Davis &
Tompkins voting "no".
Mr. Waldren stated that this is still not resolved. Mr. Boyd stated that Mr.
Bishop may not even want a motion of partial waiver and or a variance of that
amount might not be acceeptable to them. He asked Mr. Bishop if they would like
to table this until the next meeting to decide if they do want it. Mr. Pettus
stated that he thought that motion was already defeated.
MOTION
Mr. Davis moved to deny the variance, seconded by Tompkins. The motion failed 2-
3-0 with Davis & Tompkins voting "yes" and Boyd, Becker & Waldren voting "no".
Mr. Waldren advised that they are back to where they were before. They have had
the rehearing and no decision was reached so they are back to the original
decision which was to deny the variance.
Mr. Pettus stated that they have a request that hasn't been denied, it just
hasn't been granted. The motion to deny did not carry. Chairman Mills advised
that Mr. Waldren, parlimentary, says that if both of these fail, then they go
back to their first meeting and that decision. Mr. Pettus advised that the
second motion to deny failed also because they didn't have the majority of the
members here.
• Mr. Merrell stated what will probably happen assuming that this may end up in
Court at some point is Jim McCord, in his statement to the Court, willlsimply
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• Board of Adjustment
April 17, 1989
Page 8
say that at the original meeting the motion to deny a variance carried forward
and at the rehearing a motion to grant some form of a variance effectively was
denied because it was a tie vote. Then a motion to deny the variance again has
ended up in a tie vote.
Chairman Mills stated that she votes only in case of a tie. Mr. Waldren stated
that the Chairman has the option to vote. Chairman Mills stated that she had no
objection to voting; she advised that she would have voted against the variance.
OTHER BUSINBSS
John Merrell stated that the Planning Consultants are getting pretty well into
the drafting of the new zoning ordinance which they think is going to be
significantly different from what we have now. He advised that at some point in
another couple of months they would like to have a joint workshop meeting of the
Planning Commission and this Board and the staff to really get into this thing if
necessary page by page to get input from everyone.
There being no further business, the meeting was adjourned around 4:40 p.m.
•