HomeMy WebLinkAbout1990-03-05 MinuteskTYY:. 1' Y;I: :.1_:.I 1' 411TJSrVvTYqP rI VI I♦
A meeting of the Fayetteville Board of Adjustment was held on Monday, March 5,
1990, at 3:45 p.m. in Room 111 of the City Administration Building, 113 West
Mountain Street, Fayetteville, Arkansas,
MEMBERS PRESENT: Don Hills, Dennis Becker, Larry Tompkins, Gerald Boyd
Robert Waldren and Dee Wright
r.0 n :l u 1 .
OTHERS PRESENT: Becky Bryant, John Merrell, Fred Vorsanger and Elaine
Cattaneo
The minutes of
the regular
meeting on February 19,
1990 were approved as
distributed.
I: 1
The second item on the agenda was Appeal No. BA90-4 for a variance from the
• Building Setbacks submitted by Clyde Iglinsky for property located at 931
Shrewsbury and zoned R-1, Low Density Residential.. .,Application is to vary
building setback from the front property line from the required 25' to 18' for
a deficiency of 7'.
Clyde Iglinsky stated that his driveway is very steep and he is trying to solve
three problems: 1) drop the driveway seven feet, 2) enclose the carport and
3) widen the carport so that there will be more room to open the car door.
In answer to a question from Mr. Iglinsky, Mr. Merrell advised that the building
setback is measured from the street right-of-way line and not the center of the
right-of-way. Mr. Iglinsky stated that he was under the impression that the
setback was 50' from the center of the right-of-way. Chairman Mills advised
that the building setback requirement in this zoning district is 25' from the
street right-of-way to the overhang of the house.
Mr. Iglinsky stated that if that is the case, he may not need a variance. Mr.
Becker noted that, according to Mr. Iglinsky's figures, he still needs a variance
of approximately 8' to 8 1/2', including the overhang for a setback of about 17'.
Mr. Iglinsky stated that some of the houses on Pembroke and on Shewsbury are much
closer to the street than what he is proposing.
Mr. Iglinsky stated that there are covenants on this lot which state that the
setback has to be 50' from the center of the street. Chairman Mills stated that
he should probably go back and check his covenants first and, also, take some
• measurements from the right-of-way to the overhang, so they are clear on how much
of a variance is needed, if at all before they discuss this. She noted that
his covenants may not allow this to begin with.
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• Board of Adjustment
March 5, 1990
Page 2
Mr. Boyd advised that there should have been a survey of the lot when he bought
the house. Also, he should measure from the back of the lot, because it would
probably be easier to locate the property line there.
Chairman Mills advised that the staff's recommendation was not to allow the
variance, because it did not meet the criteria. Part of the decision was based
on the fact that the measurements presented are erroneous. Mr. Tompkins advised
that this Board isn't bound by the staff's recommendation, however.
MOTION
Mr. Waldren moved to table this request to allow Mr. Iglinsky time to check the
covenants and do more measurements. The motion passed 5-0-0.
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The second item on the agenda was a determination of how to proceed with ERC
Properties setback violation. They submitted a request for a variance recently
• on a house that was encroaching into the setback, and the variance was denied.
John Merrell, Planning Management Director, stated that he and Becky Bryant have
met with the City Attorney, Jerry Rose, and have attempted to review what they
see as some of the City's options - whether it is going to have to be a situation
where the house has to be brought into conformance with the zoning regulations
by removing a part of the house or the City indicating that some other action
can take place. He added that Mr. Rose was called out of town, so he was
unable to attend this meeting. He noted that he would like to raise the
question to the Board as to whether or not they have an observation or a
preference. He advised that there is a thirty day appeal period for ERC to
appeal to Circuit Court.
Mr. Merrell noted that one thing Mr. Rose was going to do at this meeting was
to review the variance options in a legal sense.
In answer to a question from Mr. Boyd, Mr. Merrell stated that Mr. Rose didn't
really speculate on whether there would be any merit to an appeal to the Court
on this particular situation.
In answer to a question from Chairman Mills, Mr. Merrell stated that some cities
hardline a situation like this and simply say that the house has to be brought
into conformance whatever it takes; others impose some sort of a fine. Some
cities basically look the other way.
• Mr. Tompkins
stated that
he can't understand why
this
is being brought back to
them, because
he thought
they
made their decision
in
denying it.
• Board of Adjustment
March 5, 1990
Page 3
Mr. Boyd stated that this Board did disagree with the way the last one was
handled which involved a $500 settlement. Mr. Becker stated that, if they had
imposed a fine that was close to the amount of the estimate to bring the house
into conformance, it would be noticed.
Mr. Tompkins stated his concern with discussing this today is, if ERC decides
to go to district court, they will have a public hearing. But if all of this
Board and the staff's discussions are closed door, they could have a problem.
He advised that he would like to go on the evidence that they have documented
right now. He stated that he feels the applicant would need to be present when
they discuss it in order for it to be a public hearing, and public notice, should
be given, etc.
Ms. Wright asked if this Board would have any input on the amount, if there is
going to be a fine again.
Mr. Becker stated that, in that case, they would prejudge the next condition by
indicating what they would be willing to settle for.
Ms. Bryant asked whether the problem they had with the case before was that a
• fine was paid or that it went to the Board of Directors. Mr. Tompkins advised
that their only recourse, after a variance is denied -by this Board, is to the
District Court, and no one intervenes in between.
Mr. Merrell stated that, if the consensus of this Board is that they would rather
act on these applications as they come up and not really address what the City
does beyond this Board's vote, then that is fine. That is all they need to
know.
Chairman
Mills stated
that
she doesn't
think there
is anything that says this
Board has
a choice.
They
either grant
or deny the
variance.
Mr. Becker advised that one of the problems they had with the other case was that
the settlement was way less than anything that was realistic in terms of a
compromise discussed during the meeting. Also, that same applicant had violated
the setbacks on numerous occasions, so it wasn't the first time he had been
before this Board. Also, there was no cooperation on his part at all, they
felt that it was slipped through the Board.
Mr. Tompkins stated that what bothered him was the fact that this Board has been
trying to establish, through their process, a way to adhere to the intent of the
zoning ordinance - health, safety and welfare. Then, after about five years
of trying to establish this, it was undermined.
Chairman Mills noted that she feels it puts the staff at a disadvantage also
when they don't adhere to the ordinance.
• Ms. Wright stated that whatever does take place needs to be a stiff enough
penalty so that it won't happen again.
a
• Board of Adjustment
March 5, 1990
Page 4
Chairman Mills noted that, once the owners have signed the agreement with the
building permit that the owner is responsible, it would seem to her that they
must take responsibility. If this is dealt with in a wishy-washy way, the
developers will take advantage.
Mr. Merrell stated that his personal preference out of all the options, until
they get some sort of language in the new development regulations, is to say that
they must bring the house into conformance with the regulations that are now on
the books. He admitted that is a pretty drastic stand, but if they don't do
that, the builders and developers will feel like they can come to this Board and
get what they want.
Mr. Waldren stated that he feels that the developer, Wade Bishop, who brought
through the variance and took it to the Board of Directors, after this Board
denied it, got off lightly with the $500 fine. But it isn't this Board's
determination once they grant or deny a variance. That is up to the City Board
of Directors who would maybe rather come to some kind of a compromise rather than
defend it in court.
• Mr. Boyd stated that they could note that, if requested by the City Board of
Directors, the Board of Adjustment would suggest perimeters.
Mr. Merrell stated that the staff will be meeting with the City Attorney again
and review the options.
Chairman Mills advised that the Board of Directors were taken unawares with the
Bishop situation, and they will be much more knowledgeable the next time.
John Merrell, Planning Management Director, stated that they have appointed a
committee of certain staff people, including himself, Becky Bryant (Associate
Planner), Don Bunn (City Engineer), Freeman Wood (Building Inspections
Superintendent) and Jerry Rose (City Attorney). He stated that they will be
adding other people as they begin reviewing the proposed ordinances. He
advised that they have all reviewed this individually, and they are now going
to go through it as a group.
Mr. Merrell noted that a lot of this document has not been tailored to
Fayetteville very well and he envisions that this project is going to be, more
or less, taken over and completed in-house. He added that this committee will
keep them posted on the changes the staff committee wants to recommend and let
this Board react to those changes. He stated that there will be many different
entities and groups looking at this, including the City Horticulturist, who will
isbe reviewing the landscaping section, and the City Engineer, who will be
reviewing some of the subdivision regulations. He noted that all the comments
will be incorporated to produce a document that this city can work with.
N11
• Board of Adjustment
March 5, 1990
Page 5
Mr. Merrell stated that he has a serious problem with the definition section of
this new ordinance. There are some terms that were omitted and some that need
to be eliminated.
Mr. Becker stated that to avoid duplication they should only discuss the sections
on "Signs" (Article VI, Page 205) and "Board of Adjustment" (Article IX). He
noted that "Signs" should not be under the "Tree Protection" heading.
Mr. Tompkins commented that there should be a preamble stating the intent of the
sign ordinance.
Chairman Mills stated that they need a guideline for what constitutes a sign
appeal. The procedures throughout the whole ordinance seem to hopscotch along.
In each section, there needs to be specific procedures.
In answer to a question from Ms. Bryant, Mr. Becker stated there needs to be a
separate section for sign definitions. He added that the chart is good. But
it conflicts when it states that a "roof sign" is only permissible on appeal,
then in every zoning district, shows a "roof sign" as permissible. Also, "wall
signs" are shown as permissible in all districts and that isn't the case in all
residential districts. •
Mr. Tompkins stated that since the ordinance addresses signs for advertising,
etc., they should consider signs for streets. City government should be the
first to adhere to the City's appearance.
Ms. Wright stated that they need something to address temporary signs such as
"Going out of Business" signs. Some people would take advantage of this because
the ordinance doesn't give a time limitation on a temporary sign.
Ms. Wright noted that (2)(b) should be changed to indicate that they don't want
a "temporary sign" up all year round. Chairman Mills noted that they should
maybe do a temporary sign section separately.
Chairman Mills noted that, on page 212, Article VI, Section 6-4(A)(3), states
that "...no other signs shall be permitted on the property unless, due to
practical difficulties, the Board of Sign Appeals grants a variance" which
needs to be clarified. Also, under "wall signs", there needs to be something
addressing canopy signs. For example, the Westgate Shopping Center has so many
canopies with signs on them.
Mr. Becker stated that Section 6-5(B)(2) where it states "whichever is greater"
should be "whichever is less".
Chairman Mills
noted that
on page 216, Section
6-8(D)(1), it
states
"provided
that when a lot
is listed
simultaneously with
two real estate
firms,
one such
• sign per firm shall be
permitted."
She asked
if they want to allow two real
estate signs per house
or stay with one. She
added that in the past, when
there is a co -listing,
the real estate
companies
work out between themselves as
`q\
• Board of Adjustment
March 5, 1990
Page 6
to what period of time their sign will be on the property.
Mr. Tompkins stated that he has trouble with the concept of "Exemptions" and
whether it should be in a separate section. He was concerned that there are so
many "exceptions" to the ordinance. Chairman Mills stated that this could be
incorporated within the sign ordinance and not be a separate section.
Mr. Boyd stated that he doesn't understand about off -site, free-standing signs
such as the "Hardees" sign down by the Bypass. Mr. Becker stated that they
could make the off -site signs allowed on appeal only, so they would have to come
to the Board of Sign Appeals for a variance. Mr. Boyd added that they could
prohibit them in all districts except certain districts in which they may be
allowed on an appeal.
Mr. Merrell agreed that it would be a good idea to prohibit them outright and
determine what districts they could be appealed in.
Chairman Mills noted that Bob Davis had wanted to have the first sentence in
Article IX changed because this Board is already established and in action.
The consensus was to replace this with the "purpose and intent" of the Board of
Adjustment.
is Chairman Mills stated that, under the "Jurisdiction" section, (D), it states that
the "Board of Adjustment should hear and decide all matters- referred to it...".
She questioned by whom the matters would be referred. This is very vague.
Mr. Tompkins stated that under Section 9-3, (B) it states that the "Board of
Adjustment may determine and vary application of zoning regulations in harmony
with their general purpose and intent..." He asked if that was referring to
the intent of the 2010 Plan or what. Also, he stated that (D) states that they
shall decide appeals from the "bulk and area." He asked if this should state
"building and structure." Mr. Merrell stated that most ordinances would state
that this Board will hear variance applications and appeals from "a literal
interpretation of this ordinance."
Mr. Tompkins stated that they should perhaps address water and air rights also.
Mr. Tompkins stated that in Section 9-4(B), page 237, it states that the minutes
should show the vote of each member. Chairman Mills noted that is not reflected
in the minutes now, but maybe they should call the roll for the vote at the
meetings.
Mr. Tompkins stated on page 238, Section 9-5(A) it says that "All questions of
interpretation and enforcement shall first be presented to the Planning
Administrator..." Mr. Merrell stated that there are references to the title
"Planning Administrator" throughout the ordinance, but there is really no such
person. He, as the "Planning Management Director," is that person by default.
• Mr. Tompkins stated that in Article 9-5(B) it says that "Appeals to the Board
of Adjustment concerning interpretation or administration of this Ordinance may
• Board of Adjustment
March 5, 1990
Page 7
be taken by any person aggrieved or any officer or department of the City
affected by any decision of the Planning Administrator." He noted that this
could mean that the Parks Director, Traffic Engineer or anyone can bypass the
Planning Management Director.
Chairman
Mills
stated
that they will pick
up at Section 9-5 (Appeals to the
Board) on
page
238 at
the next meeting.
There being no further business, the meeting was adjourned at 5:15 p.m.
•
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