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.
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