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HomeMy WebLinkAbout1991-05-06 Minutes• • • 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 • • • 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. • • • Board of Adjustments May 6, 1991 Page 3 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. • • • Board of Adjustments May 6, 1991 Page 4 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 • May 6, 1991 Page 5 • • 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.