HomeMy WebLinkAbout1991-05-06 Minutes•
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MINUTES OF THE BOARD OF ADJUSTMENT
A meeting of the Fayetteville Board of Adjustment was held on Monday, May 6,
1991, at 3:45 p.m. in Room 111 of the City Administration Building, 113 West
Mountain Street, Fayetteville, Arkansas.
MEMBERS PRESENT: Don Mills, Dennis Becker, Gerald Boyd, Robert Davis, Larry
Tompkins and Lonnie Meadows
OTHERS PRESENT: Becky Bryant, Sharon Langley, Richard Doyle, Todd Gun,
and others
Ms. Don Mills called the meeting to order and stated the representative for the
first item on the agenda, a parking variance for Phi Mu Sorority, had requested
the item be tabled.
Me. Becky Bryant, Planning Associate, explained the applicant had requested the
item be left indefinitely on the table. She stated they were trying to obtain
off-site parking. She explained that should the applicant obtain off-site
parking, it would be presented before the Planning Commission rather than the
Board of Adjustment.
APPEAL NO. BA91-7 - REQUEST FOR A VARIANCE OF THREE FEET ON SETBACK
MAY CHO GUN - 416 MISSION BLVD.
The second item was Appeal No. BA91-7 for a request for a variance of three feet
(from 8 feet to 5 feet) on the side yard setback by May Cho Gun for property
located at 416 Mission Boulevard. The property is zoned R-2, Medium Density
Residential.
Me. Mills asked, since the side yard would have a five foot setback, if this item
should not go to the Planning Commission rather than the Board of Adjustment.
Ms. Bryant explained this section of the zoning ordinance was very confusing.
Section 160.136(A): Nonconforming Lots of Record states: "In a previously
developed subdivision, platted prior to June 29, 1970, and with the approval of
the subdivision committee, a new single family dwelling on an addition or repair
to an existing single-family dwelling may be constructed in all residential zones
in keeping with the existing standard of the neighborhood so long as the interior
side setback is not less than five feet. Variance of yard requirements shall be
obtained only through action of the Board of Adjustment."
Mr. Tompkins pointed out the section said "platted prior to June, 1970, and with
approval of the subdivision committee". He asked if that meant approval of the
subdivision committee prior to 1970 or if the plat was approved before 1970 and
the approval of the subdivision committee today.
Ms. Bryant stated that it was a confusing clause. The first part indicates that
approval must be obtained from the subdivision committee. The second part says
variance may only be obtained from the Board of Adjustment. She explained that,
to her knowledge, no one had come to the subdivision committee for a variance and
the subdivision committee was not set up to handle one.
Ms. Mills asked if they were asking for a variance or if this was not a building
permit violation.
Ms. Bryant stated they were two different issues. She explained staff was asking
the Board to make a decision on whether they felt the request conformed to the
existing standards of the neighborhood, and if so, to grant the variance; if not,
then deny the request for a variance.
Mr. Tompkins stated the variance was not for the side yard but the front yard.
He stated there was a setback on the side yard of 5.5 feet, which since it was
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Board of Adjustments
May 6, 1991
Page 2
platted before 1970, would meet the requirements. He explained, it appeared to
him, the front yard setback was only 23 feet.
Ms. Bryant stated it was her understanding that the front yard setback was fine.
She pointed out there were several clauses in the ordinance that stated the
nonconforming structure could not be altered, enlarged, or changed without coming
into conformance. She stated she had relied on the applicant for the measurement
on the front setback.
Mr. Becker agreed with Mr. Tompkins
received, if it was drawn to scale,
Mr. Richard Doyle, the contractor for
that the measurements were wrong.
Bryant, he had measured the area and
that it appeared from the drawing they had
the front yard setback was only 23 feet.
the project, stated there was a possibility
He explained that upon request of Becky
found some of the measurements were wrong.
Mr. Todd Gun appeared before the Board, representing his family, and explained
that the total project was approximately half completed when they were stopped
approximately a month ago. He stated, because they presently had plastic over
the window areas, they were unable to use the furnace or air conditioner.
In response to a question from Mr. Tompkins, Mr. Gun agreed his family had relied
solely on Mr. Doyle for the permits, etc.
Mr. Richard Doyle appeared before the Board and explained that he had performed
other construction projects in Fayetteville and was familiar with the city's
rules and ordinances. Mr. Doyle stated Jay, a Building Inspector, had stopped
at the site and questioned him about a building permit. Mr. Doyle had explained
one of the family members was in the process of attempting to get the building
permit on that day. He stated someone else from the city drove by the project
the next day, noted there was no building permit, and put a stop work order on
the job. Mr. Doyle explained there was an existing porch on which the roof was
leaking, the paint was peeling, etc. He further explained this house was the
only one on the entire block that was an eyesore. He stated that by tearing off
the roof and fixing the porch, the appearance was much better and more in
conformity with the remainder of the neighborhood. He stated the 5'5"
measurement was incorrect, it should be 5'1". He further stated the measurement
in the front was 29 feet from the street. He explained the lot measured 51 feet,
6 inches from fence to fence. He requested the variance be granted so the job
could be completed.
Mr. Boyd asked if he had run the tape from the back of the lot forward 100 feet
and then measured back the 29 feet.
Mr. Doyle stated he had. He explained the house was not situated on the lot the
way the abstract stated.
The next door neighbor stated the fence was sitting on his property by 6 inches.
In response to a question from Mr. Tompkins, Mr. Doyle stated the owner of the
house did not have a survey. Mr. Doyle explained they had purchased the house
on contract and a survey does not have to be provided.
The neighbor stated the house was looking much better, and he was in favor of the
Board granting the variance.
Ms. Mills asked how much work had been done on the house.
Mr. Doyle stated the entire job could be completed in three or four days.
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Board of Adjustments
May 6, 1991
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The neighbor stated the house to the north of his property was closer to the
street than the subject property.
Mr. Tompkins stated he believe there were two questions on this matter: 1) who
establishes the existing standard in the neighborhood; and 2) if the existing
standard in the neighborhood was established, what was the Board's role in
applying the standard. He stated he did not believe it was within the realm of
their role to establish the standard of the neighborhood.
Ms. Bryant stated the question was the existing standard of the neighborhood in
terms of setbacks. She stated staff was asking the Board if this property
conformed with the existing standard of setbacks in the neighborhood.
Mr. Tompkins stated the ordinance said, if the property was platted prior to
1970, the setback would be five feet. He further stated this property was
platted prior to 1970 and the setback was more than five feet.
Ms. Bryant explained the variance needed to be decided on because the structure
had been altered. She stated she interpreted the ordinance to say the applicant
could do what they were attempting to do so long as it was in keeping with the
existing standard of the neighborhood. She explained she had reviewed the
property and felt it was a borderline situation in keeping with the existing
standard of the neighborhood.
Mr. Tompkins stated he did not know why the standard question was coming up.
He further stated they would be approving a variance which would increase the
longevity of the structure.
Ms. Bryant pointed out the intent of the ordinance was not to perpetuate any kind
of nonconforming situation.
Mr. Tompkins stated that, if the property was platted prior to 1970, then adding
or repairs can be made to an existing single family structure in keeping with the
existing standard of the neighborhood. He further stated the existing standard
is five feet.
Mr. Davis asked how Ms. Bryant knew the property was borderline without
measuring.
Ms. Bryant stated she had looked at it. She stated she could not measure each
piece of property in the neighborhood but a decision had to be made. She stated
they needed to make an intuitive, qualitative decision.
Ms. Mills stated she did not believe the Board of Adjustment was empowered to
make a decision on whether or not something was a standard of a neighborhood.
She believed it was an administrative function.
Mr. Boyd stated he agreed with Ms. Mills. He further stated that, if an
administrative decision was made that the property owner did not agree with, he
could then come before the Board of Adjustment.
Mr. Becker stated they already had established a policy that, as long as the
owner did not violate the setback at the time the house was built, the Board
could not impose an 8 foot setback on a house that was platted with a five foot
setback unless there was a safety consideration. He explained that would not
increase the safety, it wouldn't do anything; it was bureaucratic nit-picking.
He reminded the Board they had received information regarding a church which had
added to a nonconforming structure but had not increased the front yard setback.
The courts found that adding to a nonconforming structure was not a problem as
long as they did not increase their setback encroachment.
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Board of Adjustments
May 6, 1991
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Ms. Bryant stated the applicant in this case had increased the setback. She
explained an eave had been added. She added she believed it was an insignificant
factor. She further stated that, if the Board had in the past granted variances
in this type of situation, they should continue to do so.
Mr. Becker stated they had heard this was bettering the neighborhood and there
was neighbor support. He further stated they had to give credence to what was
happening in the neighborhood.
MOTION
Mr. Becker moved to accept the variance as presented.
Mr. Davis seconded the motion.
Ms. Mills stated there was a motion and second to grant the variance of three
feet as submitted.
The motion passed 5-1-0 with Mr. Tompkins voting "no".
It was agreed that they had granted a variance of three feet for the side yard.
MINUTES
Upon motion of Mr. Tompkins and second of Mr. Becker, the minutes of the last
meeting were approved as distributed.
OTHER BUSINESS:
item #1:
Ms. Mills asked who determined the enforcement of getting building permits.
Me. Bryant stated it was Freeman Wood's department - inspections.
Ms. Mills suggested there be a stiff penalty for the first infraction of failing
to obtain a building permit and/or not complying with the building code and that
this penalty be increased accordingly throughout.
Ms. Bryant stated she thought that was a good idea.
The Board expressed concern that there were no real penalties when contractors
failed to obtain a building permit. It was suggested there be a fine of $750 for
the first infraction and an increase of $750.00 for each infraction thereafter.
It was the consensus of the Board that Ms. Bryant relay the Board's concern and
suggestions to John Merrell, Director of Planning.
Item #2:
Ms. Mills informed the Board that
because their requested variance
There was also discussion that
negotiations with city staff.
Item #3:
the Ryan's were suing the
was not approved.
David Randle had also
City of Fayetteville
filed suit pending
In response to a question from Mr. Tompkins, Ms. Bryant explained the purpose of
the Fayetteville Vision was to develop a new master plan. She stated staff was
trying to promote the Fayetteville Vision. She explained neighborhood meetings
Board of Adjustments
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would start in the next week and run for two weeks.
Ms. Bryant explained the staff felt the comprehensive plan was flawed in two
areas: 1) there was no citizen involvement in the plan, and 2) it was not a goal
oriented plan. She stated staff felt they should go back to the goal stage and
see what people really wanted. She further explained that, instead of most of
the budgeting and resource allocations coming from the staff, to the city
manager, and being approved by the Board, the goals and priorities of the city
would be set by the citizens through a goal setting project and then filter down.
She stated they were in the process of setting up a structure and system for
making this happen regularly.
Me. Bryant stated one of the things that had already come out from the Goal
Summit (step one of the Vision project) was that master planning and
comprehensive planning should be a priority. Staff plans to start implementing
some of the priorities and go into phases two and three of the land use plan -
updating the profile, using that as background, and completing the land use plan.
Ms. Mills stated she had been to several meetings and explained the procedure.
She reported it appeared to her that most of the people wanted more responsive
control coming out of city hall, the master plan to be developed and put into
effect. She stated many good ideas had come out of the meetings.
The meeting adjourned at 5:00 p.m.