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HomeMy WebLinkAbout1990-12-03 MinutesMINUTES OF THE BOARD OF ADJUSTMENT • A meeting of the Fayetteville Board of Adjustment was held on Monday, December 31 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, Gerald Boyd, Robert Davie, Dee Wright and Robert Waldren MEMBERS ABSENT: Larry Tompkins OTHERS PRESENT: Becky Bryant and Don Wilson MINUTES The minutes of the meeting of the November 19, 1990 Board of Adjustment/Sign Appeals were approved as distributed with two corrections in the Board of Adjustment minutes. On page 3, the second paragraph from the bottom should read "Mr. Becker asked,. ........... carport in the front." instead of garage. Also, on the first page, the last paragraph should read "In her block,..........the street is level with the street;..." instead of straight. NO. BA90-25 - REQUEST FOR AN APPEAL OF AN ADMINISTRATIVE DECISION xAPPEAL DAVE & JUDY STEVENS - S OF CATO SPS, W OF 71 BYPASS The second item on the agenda was Appeal No. BA90-25 for a request of an appeal of an administrative decision for property located south of Cato Springs Road and west of the 71 Bypass. The property is zoned I-1, Light Industrial & Heavy Commercial. Chairman Mills stated that this meeting is only concerning whether the administrative decision is correct. There will be no discussion of a variance • at this time. Don Wilson, Attorney, stated that he is representing the Stevens. He reiterated that the issue is whether or not the Board of Adjustment has the authority to grant a variance. He advised that his copy of the Zoning Code(page 155) provides the powers and duties of the Board of Adjustment. He read the following from the ordinance: "(A) 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 in the enforcement of this chapter. (B) Variances; .......(1) To authorize upon appeal in specific cases such variances from the bulk or area regulations of this chapter as will not be contrary to public interest, where, owing to special conditions, a literal enforcement of the provisions of this chapter would result in unnecessary hardship." He referred to Section 160.033(page 115) of the Zoning Code which refers to the R-2, Medium Density Residential, zoning district. He noted that Unit 11, Mobile Home Parks, is listed as a use that is permissible on appeal to the Planning Commission. Unit 11 consists of a separate use of mobile home parks in order that they may be located in appropriate residential areas. The included uses in this unit are mobile home parks subject to Condition 12. Mr. Wilson stated that the basis of his argument is that they have an incorporation by reference to a mobile home park. He stated that the power of the duties of the Board provide for variances for bulk and area regulations of this chapter owing to special conditions. They feel that their special conditions are that they only want to put five travel trailers on the property, and the staff has determined that the closest category that this would fit into is the mobile home park ordinance. There is no regulation for travel trailers in the ordinance, so they agreed to try to comply with the mobile home ordinance. • Part of that ordinance is that at least three acres is required for a mobile home park. He advised that they took their rezoning request of three acres to R-2 and a conditional use request for a mobile home park before the Planning a 33 • Board of Sign Appeals Decembei :3 1990 Page 2 Commission, which voted unanimously to approve both. The rezoning request then went on to the Board of Directors, who denied it. The Board of Directors expressed concerns about: 1) the number of travel trailers on the property eventually exceeding the number (5) that was agreed to in the bill of assurance offered, and 2) the requirement of the mobile home ordinance for three acres which isn't needed for five travel trailers. Mr. Wilson stated that in his opinion the Board of Adjustment does have the authority to hear this because Section 160.033 is a part of this "chapter" from which this Board can provide variances. The R-2 zoning district section specifically refers to Unit 11, Mobile Home Parks, which is subject to the Mobile Home Park ordinance. He noted that this is a catch 22 situation, - the Board denied it, because they felt the three acres (as required by the Mobile Home Ordinance) was excessive. He stated that they are asking this Board to use their authority to allow them to ask fora variance. Becky Bryant, Associate Planner, advised that Mr. Wilson has given a good background on what has taken place. She referred to the section in the ordinance that speaks to the powers and duties of the Board of Adjustment. In the staff's opinion, "chapter" refers to the Zoning Ordinance. The Zoning Ordinance is one chapter of the Land Use Regulations. There are other chapters such as the sign ordinance, the subdivision regulations, and the mobile home ordinance. In answer to a question from Ms. Wright, Ms. Bryant stated that her interpretation of "chapter" in this instance is referring only to the Zoning Ordinance itself which is a stand-alone type of ordinance. It was enacted at one time by the Board of Directors. The sign ordinance and the mobile home ordinance were enacted separately also. She noted that she believes that this has been the • interpretation of the Board of Adjustment and the 'Planning staff in the past as well. Mr. Wilson's argument is that, because the phrase "mobile home park" is used in the Zoning Ordinance, the Board of Adjustment has authority over that ordinance too. The staff is arguing that there are references made to other ordinances as well, such as the subdivision ordinance, but the Board of Adjustment doesn't have the authority to grant variances over the subdivision ordinance. Therefore, the staff doesn't find the argument by implication or by reference to be a satisfactory one. The staff's recommendation is that the Board of Adjustment does not have the authority and that they deny the administrative appeal. Chairman Mills clarified that the mobile home park ordinance is like the large scale development or subdivision ordinance over which they have no power. Ms. Bryant stated that the mobile home ordinance governs a mobile home park and the procedure for a mobile home park is to submit a plat for approval through Plat Review, Subdivision Committee and Planning Commission to make sure that the plat itself meets the technical requirements. Ms. Wright stated that she sees a lot of ambiguity in the way the ordinance is written. Anything could be implied from the term "chapter". This needs to be cleared up because anything could be placed under the Board of Adjustment's jurisdiction. Chairman Mills stated that they need to determine whether or not this mobile home park is going to be somewhat like a large scale development. And whether or not they have the power to do anything with that will have to be determined by this Board. Mr. Waldren stated that they have never heard any appeals of a Planning Commission decision. He noted that he doesn't understand what is going on. It looks like the City Board could have granted him what he wanted. isIn answer to a question from Mr. Davis, Mr. Wilson stated that this would be a � 3Y Board of Sign Appeals DAcember 3, 1990 Page 3 year round place, but the travel trailers won't be there all year. They own a carnival and will travel around the country. This is basically a family operation except for two unrelated employees. They will park their equipment on the part of the property which is zoned I-1, and would like to be able to park these travel trailers on the R-2 portion about six months out of the year through the winter months. Mr. Davis stated that in his opinion it would be an amusement recreation industry headquarters and not a mobile home park. Mr. Wilson stated that the City Planning staff suggested that mobile home park was the closest thing they could fit it into. In answer to a question from Mr. Boyd, Mr. Wilson stated that they plan to comply with everything else in the mobile home ordinance including sewer, etc. However, they might be asking for further variances from the mobile home park ordinance at the Plat Review meeting. For example, a public telephone is required in a mobile home park by ordinance. But, with five trailers with personal telephones, they would certainly not need a public telephone. They may also be asking for a variance on the size of the road. In answer to a questions from Mr. Davis, Mr. Wilson stated that the equipment has been stored in various places including a location in Oklahoma. However, finding a place for it is becoming a problem. Mr. Wilson stated that there would be some minor repair work on equipment stored on the 23 acres at this location. It is zoned I-1 so there wouldn't be a problem with that. Ms. Bryant stated that the Stevens had applied for a rezoning to R-2 on three acres of this property as required for a mobile home park. The rezoning was denied by the Board of Directors. Mr. Wilson is hypothesizing that if he goes back before the Board of Directors with a smaller acreage requirement for a mobile home park, they might consider it more favorably. The staff's opinion is that this isn't very likely and that the opposition was more focused on different issues. Mr. Waldren stated that he thought this should be a decision of the Planning Commission. Ms. Wright stated that she agreed that this should go back to the Planning Commission. In answer to a question from Mr. Davis, Mr. Wilson stated that the occupants of the travel trailers will not be renting or leasing the spaces. It would be strictly for private use. Mr. Davis stated that, in that case, it wouldn't be a mobile home park. Chairman Mills advised that the mobile home ordinance was written at a time when recreational vehicles weren't so common. Therefore, it is unclear where to place them in the ordinance. Ms. Bryant advised that a travel trailer is treated like a mobile home in the City. A travel trailer can't be set up in someone's yard to be lived in. She advised that it falls under the definition of a mobile home. Mr. Becker stated that Jerry Rose, City Attorney, has stated that it is his opinion that the Board of Adjustment has no jurisdiction over the mobile home ordinance. In answer to a question from Mr. Becker, Ms. Bryant stated that there is no appeal process of the mobile home park ordinance as with a great deal of other ordinances. Ms. Wright stated that in this particular situation, the rules are too ambiguous. The staff is lumping it into the Mobile Home section. But, is it really a mobile home issue? • Board of Sign Appeals December 3, 1990 Page 4 In answer to a question from Chairman Mills, Mr. Wilson stated that the ordinance states that no one will live in a mobile home unless it complies with the mobile home ordinance which states that a mobile home must be located in a mobile home park or in an agricultural situation where one mobile home can be placed on three acres of land. According to the Code, these are the only situations where a mobile home can be lived in. Mr. Davis stated that it doesn't directly state that a person can't live in an RV. Ms. Bryant stated that the definitions speak to it. Mr. Becker stated that this discussion has no bearing right now. They need to consider the fact that there is a decision by the City Attorney that they don't have any jurisdiction and make a decision as to whether they have the jurisdiction to give this appeal. He noted that questions about the mobile home situation are irrelevant until they decide the question of whether it falls under the purpose of the Board of Adjustment. He stated that this should have been squared away at the beginning. It looks nebulous to him. It appears that the Board of Adjustment should hear all appeals of the Planning Administrator's decisions. Now, it suddenly comes up that are all these exceptions. The ordinance needs to spell out the exceptions so that they know the narrow scope under which they operate. ' Ms. Bryant stated that they are hearing an appeal of the administrative decision. Any time there is a disagreement with a decision made by John Merrell, it may be appealed. It just happens that the nature of this appeal has to do with the mobile home ordinance. • Chairman Mills stated that first of all they are hearing his appeal for relief of an administrative decision, and they must decide whether or not they have the power to grant relief. Ms. Wright asked for a legal opinion from Mr. Boyd. Mr. Boyd stated that, unless they can prove the City Attorney is wrong, they should go along with his opinion. He added that he doesn't think Mr. Wilson's argument is that clear. Chairman Mills advised that the question is whether or not the staff is right or wrong. Mr. Wilson pointed out there is ambiguity, so they have to look at the spirit and the intent of the rules. He stated that when there is ambiguity and the literal language of the ordinance implies that this Board should look at the spirit and intention of these rules. Mr. Boyd stated that he watched the Board meeting on television and that isn't the way he interpreted the Board's attitude. There were a lot of objections from the neighbors on this and it seemed that the Board didn't want to make an exception while being under fire. He stated that he doesn't feel the intent of the ordinance was that everyone who wanted to put a trailer in their yard could come to the Board of Adjustment for a variance. There are a lot of other problems that have to be taken into consideration that the Board of Adjustment doesn't have any expertise on. They basically deal with the building setbacks. The public hearing was closed and discussion took place among the Board members. Mr. Waldren stated that he doesn't think this is in the purview of this Board. He noted that he agrees with the staff and doesn't feel that they have the jurisdiction. It seems to him that, if Mr. Wilson is convinced that the reason the City Board • denied this is because of the size of the property, then he should go back to the Planning Commission and ask for less than three acres. This a3G • Board of Sign Appeals December 3, 1990 Page 5 Board would be opening a can of worms if they overturn John Merrell's decision on this. Me. Wright stated that she agrees that it would cause a lot of problems if they start getting into a new area. But the problem is the interpretation of the rule. They don't have a defined area to work in. From the standpoint of argument, she doesn't want to have to hear their variance. But she does want to see a change in the Code to reflect that they don't do these type of variances. Mr. Waldren advised that he has been on the Board of Adjustment for over 15 years and they have never had anything like this. This to him is the same thing as someone coming in to them with a subdivision saying they want a variance on the frontage. Mr. Boyd moved to support the staffs decision, seconded by Waldren. The motion passed 5-0-0. re/Ydc : c .F Becky Bryant stated that regarding Mr. Waldren's comments about the Board of Adjustment not having jurisdiction over the frontage requirement, she thought she had seen old minutes where these things had been brought before the Board of Adjustment. Mr. Boyd stated that he thought what Mr. Waldren was referring to was a subdivision plat being brought before them. But, if there is an existing lot with 60' frontage, he thinks they do have the authority to consider a . variance. Mr. Waldren stated that he doesn't think that they have authority there. Ms. Bryant stated that the question she has is whether it is in the Board of Adjustment's jurisdiction to consider a variance on a proposed property line adjustment with substandard frontage, . Her reaction is that it is because it is clearly a bulk or area issue. How the Board of Adjustment would rule on it would be up to them, but she is asking if they believe this type of request should be brought before them. There was considerable discussion on this topic. There being no further business, the meeting was adjourned at 4:45 p.m. Ll a3?