HomeMy WebLinkAbout1989-08-21 MinutesA meeting of the Fayetteville Board of Adjustment vas held on Monday August 21,
1989, at 3:45 p.m. in Room 111 of the City Administration Building, 113 West
Mountain Street, Fayetteville, Arkansas.
MEMBERS PRESENT: Don Mills, Dennis Becker, Larry Tompkins,
Gerald Boyd, bee Wright, and Robert Davis
BOARD OF DIRECTORS
Fred
Vorsanger,
William Martin, Paul Marinoni,
PRESENT:
Mike
Green, and
Shell Spivey
OTHERS PRESENT: Elaine Cattaneo, Jim Pennington, and Don Bunn
Chairman Mills advised that this all came about when there was the court
settlement with Wade Bishop, Charm Homes, after the Board of Adjustment had
denied his variance request for the second time. It was settled without any
contact with any of the Board of Adjustment members. She noted that non-
conforming structures have been a problem for years ever since title insurance
came into being. Title insurance requires a survey and if there is an error in
existing houses, the Board of Adjustment has felt like it was not the current
owner or buyer's problem and have been very lienient with that. It is more
isprevalent for these mistakes to turn up in new homes. There was a meeting
several years ago in which the Board of Adjustment and several from_the_Planning
Office came up with a suggestion that the builders submit a survey with their
application for the building permit. Builders were upset because they felt like
this was an additional cost. It was determined at this meeting that if builders
submitted a site plan and met the setbacks, the permit was issued. If there was
a problem after that, they would assume responsibility.
Chairman Mills advised that there have been three instances since then where the
builder has said it was not his problem. Input from the Board of Directors is
needed on this.
Mr. Marinoni stated that a plot plan showing the dimensions of the lot and house,
setback lines, and easements is submitted with the building permit. This is
where errors come in. Mr. Davis noted that this is where deliberate errors
come in.
Mr. Tompkins stated that there are 3 problems: 1) the enforcement process which
is very critical, 2) due process, when someone has a problem with the
interpretation of the planning administrator, 3) and there is a misunderstanding
of what the Board of Adjustment does. This will become more difficult when the
powers of the Board of Adjustment are broadened in the new ordinance in terms
of tree ordinance, landscape ordinance, etc. He added that it is important
what is done in terms of developing rapport with citizens and the image of City
government.
isMayor Martin stated that he did not know what Charm Homes was until he got to
the Board Meeting and saw Wade Bishop.
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Board of Adjustment Special Meeting
August 21, 1989
Page 2
IDMr. Vorsanger stated that Fred Hanna called him after Wade Bishop was turned
down and wanted to do something for Mr. Bishop. He added that the appeals from
Board of Adjustment go to Court and not to the Board of Directors. When the
Planning Commission votes on something it comes to the Board for final vote.
This decision made here on the setback never did come to the Board and went to
the District Court. He advised that he looked into it and asked others in the
City how this worked. If there is additional information, you can take it back
to the zoning board. He stated that he talked to John Merrell about the Board
of Adjustment rehearing it. They agreed to rehear it and Bishop was turned down
again. He added that for a decision made here for a citizen, his only recourse
is in Court and it was suggested that the Board of Directors look at it and see
if there is some way to keep it out of Court because it is an additional expense
for the citizen and for the City.
Mr. Davis stated that he did not agree and this was a deliberate act and not a
mistake on the survey. Mr. Bishop was fully aware of what he was doing and the
only reason it caught up with him was because of a squeal. The notes and
explanation show that it was a mistake of the surveyor. Mr. Bishop saved money
by not running another street east and west and having cul-de-sacs; he saved
putting sewage pipes in, etc.
Mayor Martin stated that when the problem, the decision, was brought to his
attention he contacted Jim McCord, City Attorney. Mr. McCord told him that the
procedure is for the man to go to Court and Mr. Bishop was informed of this.
• Mr. Davis noted that Mr. Bishop's opening statement at the second meeting was
that he had already gone to Court and had filed a suit. Mayor.Martin explained
that the citizen ultimately filed a lawsuit pursuant to the instructions of City
staff and the law. He thought this was a monetary penalty for the setback which
was essentially his compensation for his mistake and that was the way the process
worked. Mayor Martin added that they thought the settlement put before them was
reasonable and fair. Therefore, they need to know why that isn't the case and
what they should have done because they thought they were following the correct
procedure. The communication was poor and all they had was a settlement proposal
under "Other Business".
Mayor Martin advised that they need rules, laws, and agreements to allow them
to work together.
Chairman Mills suggested that they not dwell on the mistake, but go on to what
they need to do about it. The Board of Adjustment needs to know what to enforce.
This Board is made up of very knowledgeable people who are working hard for the
betterment of Fayetteville.
Mr. Becker stated there have been several cases where there have been
infractions. He advised that they looked at them with the idea that a mistake
can be made and each side cooperated to keep these out of court. He added that
the Board of Adjustment saw Mr. Bishop a few times.
Mr. Becker advised that when he checked on this appeal, not only did he find
that house in error, but there were four structures in error. He noted that a
• compromise was offered on the situation, but they received no response from the
other side; it was take it or leave it. Mr. Bishop would not come 1/10 of the
way and they were left with no alternative but to go to the next step which is
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Board of Adjustment
August 21, 1989
Page 3
• the Court. He recalled only one other time that it ever went this far.
Mr. Davis stated that this was a special case from the beginning. It went to
2 hearings of the Board of Adjustment. This was not posted as an agenda item
on the Board of Directors agenda, but was unidentified under "Other Business"
and none of the Board of Adjustment members were there to speak.
Mayor Martin stated that there are a lot of items under "Other' Business" and that
until this very moment he never had any indication or communication that there
had been a compromise.
Mr. Vorsanger noted that they were talking about a personality and ought to
think of some other mechanism besides going from the Board of Adjustment to a
Court of Law. It gives the City a negative approach to problems. He suggested
that could set it up so that the first time they could fine the citizen $500 and
the second time it could be $1000. There are probably others who have come in
with the same problem of having made a mistake.
Chairman Mills stated that the State law says that this is the process and that
it is not a Fayetteville decision. She suggested that the way to keep
it out of court is to have these people obey and go by the rules. There are only
a few builders who come to the Board of Adjustment for appeals; the majority
have the setbacks and all the requirements met. Chairman Mills advised that Mr.
Bishop has been building for 20 years and knows how to meet these setbacks and
knows that the cul-de-sacs are a problem.
• Mr. Vorsanger stated that he did not know that Charm Homes was a Wade Bishop
deal.
Mr. Davis stated that is has to be proven in a Court of Law that the ordinance
is unreasonable or the committee's attitude was unreasonable.
Mayor Martin asked if they had said no to the settlement, the lawsuit was tried
and lost would this then go to Chancery Court for permission to cut off part
of the building. He has been told that it is not clear that the Chancery
Court would do that. He suggested an incentive to do it right in the first stage
and a survey done in the second stage as a protection.
Mr. Davis stated that this was not a case of the lawyer referring back to the
two denials and he felt that the two lawyers cut a deal.
Mr. Boyd stated that there would be nothing to be gained by going through a
trial. His complaint is that it was settled without the Board of Adjustment's
consultation. They should have given an estimate of what it would cost to comply
for a settlement because a $500 fine is nothing. He added that as far as
changing the law and coming up with fines, every time a new law is written it
causes more problems than it solves.
Mr. Spivey stated that when this was brought up under "Other Business", he
thought everyone was in harmony on it. He added that this should have been
brought up as an agenda item. He advised that the Board of Directors are not
• in the business of overriding committees. They have a high degree of respect
and confidence in the Board of Adjustment. He stated that he was embarrassed
that this happened; it has alerted everyone to new developments.
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Board of Adjustment Special Meeting
August 21, 1989
Page 4
• Mr. Tompkins stated that the Board of Adjustment's job is to assist in coming
up with health, safety, community accepted morals and general welfare. He added
that he would like to put aside the past and that he is pleased with present
planning and the enabling legislation. The Courts have tested it. He advised
that his problem is with the Board of Sign Appeals. The Board of Adjustment are
now having to wear another hat and maybe they should not because the criteria
is different and more complex for the Board of Sign Appeals. If they say no to
an appeal, it comes back to the Board of Directors who will then be in the same
boat so the Board of Sign Appeals will not have assisted.
Chairman Mills agreed that they don't have many guidelines for the Sign of
Appeals. She noted that John Merrell has helped tremendously in getting more
information for them to go on. He has worked out a format that applicants must
adhere to before their Sign Appeal can be heard and they have told Mr. Merrell
that if all the information is submitted with an appeal, they will not hear it.
The Board of Adjustment has developed the communication that they need with Mr.
Merrell and they need to work out the communication that the Board of Directors
need to have.
Mr. Green asked if John Merrell normally was at the meetings. Chairman Mills
answered, yes. Mr. Green suggested that Mr. Merrell could be a focal point for
communication to make sure that nothing falls between the cracks again. He
advised that it might work if they had a normal procedure that any kind of
settlement offers that came through the Board of Directors must also have to be
• signed off on by the Board of Adjustment/Sign Appeals showing what the vote was
with that information being part of the required information before they act on
it, complete with the meeting Minutes.
Mr. Becker stated that there is a lot of overlap between the Planning
Commission and the Board of Adjustment so there is a three-month tenure for
each board member to sit in on the Planning Commission which has helped a lot.
Chairman Mills stated that the Board of Directors need to determine how to
handle the communication part and let them to know.
Mayor Martin noted that John Merrell'is usually very faithful in communicating
Planning Commission information so they look to him to be the liaison, but in
this case Mr. Merrell did not know either.
Mr. Green suggested that the staff be in tune to the issue in the future and if
they are not a decision will not be made. Chairman Mills agreed that this would
be the communication that is needed.
Mrs. Wright asked who relayed the information to the City Attorney in this case.
Chairman Mills said that she believed that Mr. Bishop's attorney and the City
Attorney met, set a figure, it was put on the agenda and then slipped through.
She added that this is not the first time that the City Attorney has adjusted
one of their decisions. She would like for the new City Attorney to be more
aware of serving the good of Fayetteville as a whole rather than a few people.
He needs to be up-to-date on real estate, planning laws, zoning, etc.
• Mr. Becker stated that this goes back to the fact that 98% of the developers are
never any problem, but it is the 2% that they are trying to catch. He added that
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Board of Adjustment Special Meeting
August 21, 1989
Page 5
isthey are
looking for justice to
be
served
because most everyone
is moving in a
positive
pro -city way and they
don't
like
those few bringing it
down.
Mr. Tompkins stated that they do not want to be counter -productive to the
decisions of Land Use Planning by the City Planning Commission. If there is
a zoning change that someone doesn't like, most Board of Appeals will go back
and set conditions on that zoning change if it is an unreasonable hardship or
practical difficulty. He added that it was like a tug-of-war between them and
City Planning Commission for instance the number of parking spaces. It doesn't
deal with what they are involved with when as far as bulk and area of structures
and buildings. He advised that they stated they did not deal with land use.
The attorney at that time said that they should look at land use. He noted that
they will take on any responsibilities that the Board of Directors gives them
but they are skeptical on the issues that they don't have policies on.
Chairman Mills stated that the Unified Development Ordinance has a lot in there
that they don't want, like flood control. She noted that they lined out what
they wanted on that. She advised that they need to be very careful before they
approve this new ordinance to be sure that this is exactly what you want.
Mr. Green noted that getting input from everybody should be part of the hearing
process before these new ordinances are adopted. He added that the last
ordinances were like a Bible for 20 years and they need something flexible so
they won't have to go to Court every time something comes up.
isChairman Mills noted that she recalled only one other time they had gone to Court
in 15 to 20 years.
Mr. Green stated that the ultimate philosophy of this Board is solving a big
headache for the City Board. As long as there are teeth in the rules and all
the developers have to comply with the regulations and ordinances and not
complying with these would cost them a lot of money or cause them to have to
start over on the building it will work. The 2% will take advantages of any
weaknesses.
Mr. Vorsanger said that the new Unified Development Ordinance is hard to
understand and some of the issues he has no experience with. It is very tricky.
Mr. Pennington stated that Mr. Raby is working with the input.
Mr. Becker said that he wanted to see a rough draft. There was a contract to
do it within a certain time. He added that they should be able to tell what
has been on the books and what is new just like when the building codes come
out. They knew immediately what was new and what was old.
Mr. Boyd stated that the experts should have been required to put in red ink
everything that was changed.
Chairman Mills stated that she liked the part in the new ordinance concerning
"alternate Board of Adjustment members" so that when they did not attend a
meeting, someone would fill in. She advised that she asked Mr. Raby about this
• and he said that this did not apply to them and that it was just pulled out of
a Florida city ordinance. She noted that it seemed that too many things were
pulled out of other cities that don't apply to Fayetteville and they need to
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Board of Adjustment Special Meeting
August 21, 1989
Page 6
check all of this.
Mr. Vorsanger requested that they have all the Boards to sign off on the new
ordinance before it is adopted. Chairman Mills stated that the revision will
come to each of them and they will get together again and go through it like they
did with the other one.
Mayor Martin stated that he will ask that the consultant give them the
comparative as to what the ordinance is now and how it is changed.
Mr. Davis stated that he felt that the consultant pulled from various files
instead of relating to Fayetteville.
Mrs. Wright asked if Mr. Bishop had more appeals coming up, would this settlement
set a precedent. Mayor Martin stated that they will be very careful next time.
There being no further business, the meeting was adjourned.
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