Loading...
HomeMy WebLinkAbout1990-06-04 Minutesr L 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 SI • 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. I ZP