HomeMy WebLinkAbout1990-06-04 Minutesr
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A meeting of the Fayetteville Board of Adjustment was held on Monday, June 4,
1990, at 3:45 p.m. in Room Ill of the City Administration Building, 113 West
Mountain Street, Fayetteville, Arkansas,
MEMBERS PRESENT: Don Mills, Dennis Becker, Larry Tompkins,
Robert Davis, Robert Waldren, Gerald Boyd and Dee Wright
OTHERS PRESENT: Becky Bryant, Jobn Merrell, Kern & Barbara Jackson, Hugh
Kincaid, Dr. Harris and many members of the public
MINUTES
The minutes of the regular meeting on May 21, 1990 were approved with one
clarification on page 5, Item 3. Mr. Tompkins stated that he was under the
impression that the motion included the idea that the settlement was fine in
order that they bring the violation into conformance. Mr. Becker advised that
Freeman Wood, Inspections Superintendent, made the appraisal, on behalf of the
City, that it would cost $4,000 to bring it into compliance. Mr. Tompkins
advised that he thought he was voting on a $4,000 settlement to bring the house
into compliance. The other Board members informed Mr. Tompkins that that was
not their intent. Mr. Tompkins stated that the misunderstanding had been his
is
error.
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
& 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 there was an issue at the last
meeting regarding the distance from the carport to the property lines (setbacks).
The Jacksons have remeasured and determined that the deficiency of the front
setback is actually approximately 4'. He stated that he doesn't think the
staff's comments about the Jacksons living at this address for so many years
without a carport is relevant, because they could have been saving up the money
to make the improvements that were needed for twenty years. If it does have
relevance, it is fair to consider that the reason for the carport is Mr.
Jackson's deteriorating health. He has had back surgery twice and has undergone
a major heart attack in recent months. It is important to keep in mind that all
of the access doorways are oriented towards the West. There are also terrain
features on the east side, including a large birch tree, which would make it
impossible to blacktop without killing trees. Also, there is a serious drainage
problem, which would be greatly intensified by trying to place this facility on
the east side. He added that the variance requested is appropriate in terms
• of the particular configuration of the property and the improvements that exist
there. The nature of the improvement is intended to provide coverage for the
recreational vehicle.
209
Board of Adjustment
isJune 4, 1990
Page 2
In answer to a question from Mr. Becker, Mr. Kincaid stated that they hadn't been
able to get a response from Midwestern, the contractor, since the last meeting.
Chairman Mills asked if there is anyone else in the audience that would like to
speak to this appeal. There being no one wanting to speak, the public hearing
was closed.
Mr. Tompkins asked
if any other
consideration was given
to the redesign of the
area with retaining
walls, etc.
Mr. Kincaid stated that
there is a substantial
retaining wall on the property
beside the sidewalk at an
angle.
Ms. Wright asked if the retaining wall would have to be removed in order to move
the carport back. Mr. Kincaid answered, no, but the wheelchair access would
probably have to be removed if the carport were moved back.
Mr. Tompkins stated that, given the intent and the purpose of the zoning
ordinance to establish stability within the neighborhood and to predict those
positive things in the neighborhood, he personally doesn't see a real hardship
in terms of being able to use this with some kind of design consideration.
Adherence to the 25' setback is there for a well -designed purpose - light, air
• and safety. Also, the sideyard setback is for safety. He stated that
adjustments could be made in a design which would compensate for any design
problems they might have in terms of the wheelchair access. He stated that he
is opposed to the granting of the variance.
Mr. Becker stated that there is a big difference from the deficiency measurement
at the earlier meeting and the dimensions after it was remeasured. He stated
that the front setback could be met and still allow the access since the
deficiency is only 41. As far as the west setback, it appears that this is
similar to a lot of the older Fayetteville neighborhoods in which the 8' setback
was not the required at the time the houses were constructed. Therefore, it
would be unfair to ask the Jacksons to comply with an 8' side setback when
several of the neighbors have 5'. The option of moving the carport to the
other side of the property to comply with City ordinances would be an expensive
undertaking. He stated that the contractor is the culprit, because they made
the statement that no permit was necessary. He stated that he feels the
responsibility lies with Midwestern to correct the problem even if the correction
of that problem is to introduce new work. He advised that he would be in favor
of a 5' west setback and full compliance on the front setback with a notation
that the contractor be held in full compliance with meeting both setbacks
requirements, since he stated that the City had no setback requirements.
Ms. Wright stated that she feels moving it back the 4' would look better because
it stands out farther than any other carport on the street. Making it comply
with the front setback requirement would make it more attractive for the
• neighborhood. She agreed with Mr. Becker on the 5' side setback.
Mr. Kincaid stated that he is concerned about the retaining wall and the trees
Vol
• Board of Adjustment
June 4, 1990
Page 3
if the carport had to be moved.
NOTION
Mr. Becker moved to require the 25' front building setback and grant a variance
for a 5' west sideyard building setback in lieu of the 8' required with a special
emphasis on the contractor's responsibility in this matter, seconded by Wright.
The motion passed 6-1-0 with Mills, Becker, Wright, Davis, Waldren & Boyd voting
"yes" and Tompkins voting "no".
Mr. Kincaid stated that the Jacksons will be out of town until August, so they
would like to have until then to bring it into compliance. John Merrell,
Planning Management Director, stated that the staff would be willing to work with
them on that.
APPEAL NO. BA90-10 - APPEAL OF AN ADMINISTRATIVE DECISION
FLOYD HARRIS - S OF HT COMFORT RD, E OF RUPPLE RD
The second item on the agenda was an appeal(No. BA90-10) of an administrative
• decision of the Planning Administrator submitted by Andy Adams on behalf of Dr.
Floyd Harris. The property is located south of Mt. Comfort Road, east of Rupple
Road and is zoned R-1, Low Density Residential.
Chairman Mills stated that this appeal is different from the public appeal that
was just heard. She noted that Dr. Floyd Harris has filed for an appeal of
an administrative decision by the Planning Director relative to his proposed Mt.
Comfort Air Park subdivision near the intersection of Mt. Comfort Road and Rupple
Road. She read from the staff report which stated the following: "Article 10,
Section 4(A) (Administrative Review) of the City of Fayetteville Zoning Ordinance
provides the following as one of the powers and the duties of the Board of
Adjustment. Administrative Review: To hear and decide appeals where it is
alleged there is error or ambiguity in any order, requirement, decision,
interpretation or determination made by the Planning Administrator (Planning
Management Director) in the enforcement of this ordinance. The Zoning Ordinance
further provides that the Board has the power to reverse decisions by the
Planning Administrator so long as any action is in conformity with the terms of
this ordinance. The Board may reverse or affirm, wholly or partly, or may
modify the order, requirement, decision, or determination appealed from and may
make such order, requirement, decision or determination as ought to be made, and
to that end shall have the powers of the Planing Administrator from whom the
appeal is taken."
Chairman Mills advised that one section of the land is outside the City Limits,
and the Board of Adjustment has no authority to rule on any land outside the City
Limits. She further advised that the only question that they will hear
isarguments for or against at this meeting is whether or not the Planning
Administrator is correct in his interpretation of the enforcement of the
ordinance. The ordinance states that Use Units 1 & 26 are permitted in the R-
• Board of Adjustment
June 4, 1990
Page 4
1 zoning district. Units 2, 3, 4 & 8 are permissible on appeal to the Planning
Commission. She asked that the people who will be addressing the Board at this
meeting confine their remarks to this one question. They are not here to
discuss pro or con airport, subdivision or any actions that have taken place in
the past. Should anyone deviate from this, they will be out of order.
B.J. Ball, speaking on behalf of Dr. Harris, asked for clarification. He noted
that he understood this was an issue involving an airstrip and the Planning
Commission's request that Dr. Harris obtain a conditional use. He noted that
it will be quite difficult to speak at this meeting without referring to the
airstrip and its history. Chairman Mills reiterated that they will only be
discussing whether or not the Planning Administrator's ruling on this was
correct, according to the ordinance. The Board of Adjustment has no
jurisdiction over any of the Planning Commission's decisions.
Chairman
Mills
asked the applicant
if he wanted to withdraw his appeal. He
answered,
no.
Alan Cochran, representing the neighbors who are opposed to this, requested that
the Board continue along the lines that the Planning Commission has earlier
decided. He stated that they feel that the City Administrator and the
• adjoining members have properly and accurately interpreted the City ordinances
as they were set out in June 29, 1970,
Chairman Mills asked for a show of hands of those in favor and those opposed to
this. The public hearing was closed and discussion took place among the Board
members.
In answer to a question from Mr. Boyd, Mr. Merrell stated that the staff believes
this was zoned R-1 in 1970. As best that they can determine, the property was
annexed into the City in 1967 as A-1 and was rezoned to R-1 in 1970 in
conjunction with the adoption of the new zoning ordinance and new zoning maps.
He added that the staff believes it was not being used as an airstrip when it
was rezoned to R-1.
Mr. Boyd stated that it appeared that this would not be a non -conforming use in
an R-1 district, if it wasn't used until 1977.
Chairman Mills stated that this is termed an illegal use, because there has not
been a conditional use granted from the Planning Commission.
Mr. Boyd stated that there are two ways they can look at this: 1) that it wasn't
a non -conforming use, because the use started too late to be nonconforming at
the time of the zoning change or 2) the theory that was put forth by the
Planning Director about increasing a non -conforming use.
Mr. Tompkins stated that it seems that the idea of the interpretation is whether
isa conditional use is required regardless of what the zoning is. He added that
Use Unit 2, which is city wide uses by conditional use, does allow for airports.
Therefore, a conditional use is required and he feels comfortable with the
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• Board of Adjustment
June 4, 1990
Page 5
interpretation of the staff. If it is being used, they still need a conditional
use. He advised that, if it had been used as an airstrip prior to 1970, it could
continue as a non -conforming use. However, a conditional use would still be
required. He stated that he supports the staff position that a conditional
use is required. As far as any conditions, he has no concern with.
Mr. Becker stated that it seems to him it is very clear that a conditional use
is required. Without any counter provisions to the zoning regulations, he
doesn't see how they could find otherwise.
Mr. Tompkins moved to uphold the staff 's decision of requiring a conditional use,
seconded by Davis. The motion passed unanimously.
There being no further business, the meeting was adjourned.
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