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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. l S1 • 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. FiN1 /' 7/im :11 p' '1'G' 1: 11: / _1 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. • n LA \q3