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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. )6�3 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 \6 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. 1e�6 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 ISID 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 1G I 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. LJ • t 6,b