HomeMy WebLinkAbout1990-05-21 MinutesA meeting of the Fayetteville Board of Adjustment vas held on Monday, May 21,
1990, at 3:45 p.m. in Room 111 of the City Administration Building, 113 West
Mountain Street, Fayetteville, Arkansas.
?0MBERS PRESENT: Don Hills, Dennis Becker, Larry Tompkins,
Robert Davis and Dee Wright
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OTHERS PRESENT: Becky Bryant, Elaine Cattaneo, John Merrell, Freeman Wood,
Jerry Rose and Hugh Kincaid
The minutes of the regular meeting on May 7, 1990 were approved as distributed.
APPEAL NO. BA90-7 - VARIANCE OF THE BUILDING SETBACKS
KERN & BARBARA JACKSON - 235 BAXTER LANE
• The first item on the agenda was appeal No. BA90-7 for a variance from the
building setbacks submitted by Hugh Kincaid, Attorney at Law, on behalf of Kern
fi Barbara Jackson for property located at 235 Baxter Lane. The -property is zoned
R-1, Low Density Residential, and the request was for a variance from the front
and west side building setbacks.
Hugh Kincaid, Attorney at Law, advised that Mr. & Mrs. Jackson had dealt with
Midwestern Window Company for some improvements to their home previously.
Therefore, when they decided to build a carport, they called Midwestern again.
At this time, they were assured by this representative that they would not need
a building permit. The Jacksons were not surprised by this because they had
been told when they built a greenhouse in 1981 that they did not need a building
permit since no electrical or water connections were made. With this assurance
from their builder that no building permit was needed, the carport has already
been built at a cost of about $3,000. The Jacksons didn't realize they were
in violation of the zoning ordinance until they received word from the City.
He stated that he feels there are compelling reasons to grant this variance.
Mr. Kincaid advised that the staff's measurements seem to show the building to
be within 9' of the street. He noted that it has always been hard to determine
whether the ordinance requires the measurement to be from the right-of-way or
from the street itself, so the Jacksons' measurements are different from the
staffs. As far as special conditions, the vast majority of the construction
in this neighborhood predated the ordinance and the setback requirements. He
noted that if they hold strictly to the ordinance without granting variances,
there is no chance for improvements in these old neighborhoods. He added that
isthere are serious problems on the east side of the property including a river
birch tree that is approximately 35 years old which would be killed if blacktop
was laid to accommodate the parking. Also, other trees and bushes would have
to be taken out and that would destroy the beauty and the practical value of the
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May 21, 1990
Page 2
lot. In addition to that, the location of the access for vehicular entrance
to the property on the east side would be completely opposite to the way the
house is accessed on the west side. The paving is designed in such a way to
accommodate a disabled entry (Mr. Jackson recently had a heart attack and is in
poor health.) for the lower level and the upper level of the house. Also,
there is a water problem on the east side of the property and placing blacktop
and other improvements there would aggravate the drainage.
Mr. Kincaid stated that, in the ordinance, it states that no privilege shall be
granted by a variance that other property owners couldn't similarly enjoy.
However, any time a person obtains a variance, they are given a special
privilege, in relative terms. He stated that he disagrees with the staff that
this would be a special privilege for the applicants. It is not a privelege that
others, who have a similar set of difficult problems, couldn't qualify to
achieve. Another interesting aspect of the ordinance is the statement that
the literal interpretation provision of this ordinance would deprive the
applicant of rights commonly enjoyed by other properties in the same district
under the terms of this ordinance. He noted that almost all the other
properties on this street enjoy amenities such as a carport. He added that the
staff could say that the neighborhing properties enjoy a carport because they
are non -conforming. That may be true, but for whatever reason, it is enjoyed.
• There is another provision which says you shall not use existing non -conforming
uses within the district or in other districts as a grounds for granting this
relief. He noted that he doesn't suggest they use that as a grounds for
granting relieve, but it doesn't prevent this Board from taking it into
consideration. He added that he doesn't think this variance request is offensive
to the spirit or the letter of the ordinance. He asked the Board of Adjustment
to realize that this violation of the building setbacks happened in good faith.
Mr. Tompkins stated that he is concerned about the spirit and intent of the
ordinance. He asked if the client contacted Midwestern Window Company to find
out their reasons for telling the applicants that a building permit wasn't
necessary. Mr. Kincaid stated that he has tried to contact them, but hasn't
been able to get any answers.
Mr. Tompkins stated that he would be interested in knowing if Midwestern Window
Company would stand behind their employee in a suit. Mr. Kincaid stated that
it would probably be litigation they could ill afford, and to move the carport
would do damage to the property aesthetically.
Mr. Tompkins advised that he is concerned with the spirit and intent of the
ordinance and the fire and safety aspect which makes it critical to maintain
the 25' front setback.
Mr. Kincaid apologized that they didn't have a more professional drawing. He
advised that this is not in disharmony with the rest of the neighborhood.
• Mr. Becker stated that there is a difference in the staff's measurements and the
measurements of the applicant. He added that he isn't sure that this is the
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May 21, 1990
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best location on the lot for this carport.
Mr. Kincaid stated that they sited the carport at the best location for the
access to the house.
Mr. Davis stated that they could cut down the legs and squeeze it in on the other
side of the house, but there is a drainage problem.
Mrs. Jackson advised that there is a drainage problem on their lot and a worse
problem on the lot behind them.
Chairman Mills stated that from the drawing, it looks like the back of the house
is closer to the side property line than the front of the house. Mr. Jackson
stated that they made the measurements at night so they may not be exact.
Ms. Wright asked if the consideration of the disability and access to the house
was taken into account by the staff in making their decision. Ms. Bryant
answered, no. Ms. Wright noted that this would be an important criteria.
Ms. Bryant stated that they need to keep in mind that the applicants parked there
before without a carport. She added that she is not sure a carport is commonly
• enjoyed in this neighborhood district in general. She noted that she doesn't
think the staff's measurements and the applicant's measurements are that much
different, when you take the right-of-way into consideration.
Jeff Edwards, who lives in the first house west of the Jacksons, stated that
there is a water drainage problem on his property as well as the Jacksons'.
He noted that he had to completely re -terrace his back yard in three separate
levels. Also, he had to put in approximately eight tons of chat to handle the
water flow coming down his driveway into his backyard. He added that all
entrances to the Jacksons' house are accessed on the west side of the property.
Therefore, if the driveway was moved to the other side of the house, they would
have to walk around the entire house to enter. He noted that, as far as the
carport being that close to his side property line, it doesn't bother him at all.
The Public Hearing was closed and discussion took place among the Board members.
Mr. Davis stated that he feels that a special condition exists. The drainage
situation wasn't taken into consideration. A driveway on the other side of the
property would complicate the drainage problem.
Mr. Tompkins reiterated that he is concerned with the spirit and intent of the
ordinance and the health, safety and welfare aspect.
Mr. Becker stated that he isn't comfortable with the consent that this is the
best location for the carport on the property. He added that there seems to be
a tremendous discrepancy between the staff's measurements and the Jacksons'
. measurements. He noted that he would be in favor of tabling this until they
could look closer at the drainage problem, etc.
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NOTION
Mr. Davis moved to grant the variance as requested. He then withdrew his motion.
Ms. Wright asked if the staff had taken into consideration the water problem.
Mr. Merrell answered, no, but that wouldn't be a factor in their recommendation.
MOTION
Mr. Becker moved to table this request until their next meeting so that they can
take a closer look at the property and so that the measurements can be checked,
seconded by Davis. The motion passed 3-2-0 with Becker, Wright & Davis voting
"yes" and Hills & Tompkins voting "no".
Chairman Mills requested that the staff measure this to determine the distance
from the roof overhang of the house at the closest point to the side property
line and from the roof overhang in the front to the street right-of-way.
Mr. Tompkins noted that he would like to know what the distance is of the tree
from the side yard and where the gardens are, etc.
ITEM #1: Chairman Mills noted that a building has been put up at the Lafayette
address where a setback variance was recently denied. She requested that the
staff check it out. Freeman Wood, Inspections Superintendent, stated that they
have put up an 8' x 10' portable building, but the roof overhangs were not taken
into account. The building is larger than 8' x 10' when the overhangs are
included so it is in violation.
ITEK 42: Chairman Mills noted that the Board of Adjustment/Sign Appeals had
requested information from the City Attorney on two issues: 1) what can be done
about signs which do not conform to the ordinance that are approved by the staff
in error, and 2) if there are any cases in which the Board of Adjustment had
declined a variance which then went to Court and, if so, what was the outcome.
Jerry Rose, City Attorney stated that he hadn't been able to do any in-depth
research regarding what can be done about signs that are approved in error. He
noted that the ordinance doesn't speak to this. He would assume that if the
cause of the signs in error are the City's fault, they may be able to take them
down but would have to compensate for the damages. However, they would then
get in to the problem of who determines how the damages are measured. He stated
that he would like to have more time to research this before giving them a
definite answer.
As far as cases that have gone to Court, he stated that there was only one case
• that went to Court involving setbacks which took place in 1947 with an attempt
to declare the setback ordinance as unconstitutional.
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May 21, 1990
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ITIDi #3: Jerry Rose stated that the Board of Directors had recently denied an
offer of a $3,500 settlement from ERC Properties who were recently denied a
setback variance from the Board of Adjustment. He advised that the Board of
Directors is incredibly sensitive in wanting to support the Board of Adjustment.
On the other hand, they want to settle this thing and have asked that the Board
of Adjustment explore the possibility of a settlement. The settlement figure
that was mentioned was $4,000.
John Merrell, Planning Management Director, explained that he had asked Freeman
Wood, Inspections Superintendent, to determine an approximate cost for bringing
this house back into conformance and Mr. Wood came up with a $4,000 figure.
MOTION
Ms. Wright moved to support the City Board of Directors in whatever decision or
recommendation they make regarding a settlement with ERC Properties, and to state
that the Board of Adjustment commends them for the way they have handled this
situation, seconded by Tompkins. The motion passed 4-1-0 with Wright, Tompkins,
Mills & Becker voting "yes" and Davis voting "no".
• There being no further business, the meeting was adjourned.
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