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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 �31 • 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 0 • 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, l( • 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 Ido • 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 ial • 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 1Z • 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 1d3 • 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. •