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HomeMy WebLinkAbout1991-06-17 MinutesMINUTES OF THE BOARD OF ADJUSTMENT A meeting of the Fayetteville Board of Adjustment was held on Monday, June 17, 1991, at 3:45 p m in Room 111 of the City Administration Building, 113 West Mountain Street, Fayetteville, Arkansas. MEMBERS PRESENT: MEMBERS ABSENT: OTHERS PRESENT: Dennis Becker, Gerald Boyd, Robert Davis, Larry Tompkins, Lonnie Meadows, and Marion Orton Don Mills Becky Bryant, Merlin Augustine, Bill Greenhauf, Steve Melody, and others Mr. Larry Tompkins called the meeting to order. Board. He explained he was sitting in for the unable to attend this meeting. He explained present. He welcomed Marion Orton to the Chairperson, Don Mills, who was the meeting procedure to those APPEAL NO. BA91-11 - REQUEST FOR A VARIANCE OF BULK AND AREA REQUIREMENTS MERLIN AUGUSTINE - 2336 HATFIELD The first item was Appeal No. BA91-11 for a request for a variance of bulk and area requirements by Merlin Augustine for property located at 2336 Hatfield. The property is zoned R-1, Low Density Residential. Mr. Augustine appeared before the Board and clarified the background information provided by staff. He explained notice had been received from the City upon completion of the digging for the foundation. He further explained that was before he had started actual construction. He stated he had no intention of violating any rules or regulations and had no intentions of disregarding any of the neighboring properties. He stated he believed he had a special condition in that the subdivision was an old one. He explained the surveyor found no pins in the corner. He further explained that previous owners had told him upon purchase of the property that the fence at the rear of his lot was set back 10 feet from the property line because of a city easement. Mr. Bill Greenhauf, attorney for Mr. Augustine, stated the previous owner believed the fence was setback 10 feet from the actual north property line and had so informed Dr. Augustine upon his purchase of the property. He further explained this had been done to keep from encroaching into the easement. Mr. Greenhaw explained the purpose for the proposed addition to the house was because Mr. Augustine now had three children and would either need to sell the house or enlarge it. He further explained the proposed addition was 10.5 feet away from the fence line. He stated there had been no survey at the time Mr. Augustine purchased the property. He explained that the use proposed for the property was in conformity with the zoning and the planning projections for the neighborhood. He stated they felt it would be in the best interest of both the neighborhood and the city to encourage this type of development of residential property and grant a variance. In response to a question from Mr. Meadows, Mr. Augustine explained the north fence had been there when he purchased the property, and he had believed it to be set in 10 feet from the property line. He further explained that, when he first moved into the house, Mr. Greenhauf had been a neighbor and had advised him that he should move the fence in order to get it correct. He stated he had not done that because he had not wanted to move into a new neighborhood and argue about property lines. He stated that all of the neighbors except one were in favor of his request for a variance. Mr. Greenhauf presented an affidavit from an abstract company stating there had been an error made in the platting of the subdivision. • • • Board of Adjustments June 17, 1991 Page 2 Mr. Augustine pointed out there were other residences in the neighborhood which did not meet the backyard setbacks. He stated he did not think he was asking for a privilege others in the area had not exercised. In response to a question from Mr. Davis, Me. Bryant explained the city employed two full-time building inspectors. Ms. Bryant explained the procedure once a complaint of this nature was received. Mr. Augustine, in response to a question from Mr. Tompkins, explained he had contacted Mr. Wayne Parker to make recommendations regarding where an addition to the home could be made. He pointed out the reasons they had determined this was the best location for the addition. He explained they had laid the footing and installed the joists. He stated the city had contacted him twice: the first time after the footings were dug, and after the second time, he suspended construction for seven days waiting for the city to tell him what the problem was. He stated the second time they told him someone had complained, because he was building with used lumber. He explained that, after seven days, he started building again. He further explained the third time the city contacted him they told him someone had complained that he was building too close to the property line. He explained he had invested approximately $1,000 on the new construction. Various neighbors appeared before the Board speaking in favor of granting the variance. Ms. Sue Madison, owner of the duplex immediately to the north of the subject property, appeared before the Board in opposition. She stated she had noted that Dr. Augustine was excavating at the rear of his property and it appeared to her he was within the setback area. She further stated she had called the city and found that he had no building permit. She was told the inspection department would check on it. She further explained that approximately one week later she noted that construction was progressing and once again called the city. She stated Traci of the Planning Department had told her Dr. Augustine did have a permit and had verified he was 20 feet from his rear property line. Ms. Madison then got a copy of her survey from her mortgage company to establish the property line and forwarded it to the City Planning Office. Dr. Augustine was then notified he was in violation. She stated her survey did show the fence to be on the property line. She further stated she maintained the property back to the fence. Ms. Madison expressed dismay that she had to "enforce" the city ordinance in this matter. She stated she thought she could point out the problem to the city and it would be resolved. She further stated she did not enjoy being in an adversarial role with her neighbors. She explained she owned the duplex and also another house down the street, giving her a stake in the area. Mr. Davis asked if it were not true that other people along the same street had encroached on the setbacks. Ms. Madison stated she was not aware of any other dwelling unit in the area extending into the setback areas. She further stated Dr. Augustine's fence was in line with all the other fences along the property lines. Mr. Davis stated he was not talking about a complete house extension, but extensions such as. porches. Ms. Madison stated she did not know of any such extensions. Mr. Davis stated the very next property had such an extension. • • • Board of Adjustments June 17, 1991 Page 3 Ms. Madison stated the property to the west had a side yard and that house had been in existence when she purchased her property. There had been no new intrusions since she purchased her property. She stated there were no other dwelling units in the area that would extend into the rear yard the way the proposed addition would. She stated Dr. Augustine had other options. She asked that the variance be denied. The meeting was then closed to the public. Mr. Tompkins requested comments from the Board members. In response to a question from Mr. Davis regarding procedure on site reviews, Ms. Bryant explained staff does not perform a survey of all the setbacks in the neighborhood. Mr. Davis explained he believed Dr. Augustine had chosen the only reasonable place for the addition. In response to a question from the Board, Dr. Augustine explained that, based upon information from previous owners, he believed his property line was 10 foot beyond the fence, making the entire easement on his property. Ms. Madison explained that in 1970 the original surveyor had taken the measurements from the north side of Highway 16 when platting the subdivision. At a later date (well before Dr. Augustine purchased his property), the error was discovered and the property was re -measured from the centerline of Highway 16, making a 25 foot discrepancy. She further stated she had two surveys of the property, both showing Dr. Augustine's fence to be on his property line. Mr. Davis pointed out that the city had issued a building permit and no violation had been issued. Me. Bryant explained no violation had been issued because Dr. Augustine had voluntarily applied for a variance. She explained the permit had been issued based on incorrect information given by Dr. Augustine. Mr. Becker stated he had a long discussion with Dr. Augustine and he believed there were extenuating circumstances to the understanding of the original location of the property line. He explained he had looked at the original subdivision and saw a 20 -foot easement down the center of the property lines, 10 feet on the north and 10 feet on the south. He stated he believed it was an open and shut case, that the ordinance set out a 20 foot setback. He explained that he did not believe criteria existed in order to grant a variance. Mr. Meadows stated he agreed with Mr. Becker. Mr. Boyd stated he had known both applicants quite some time and did not believe he should participate in the discussion. In response to a question from Mr. Tompkins, Ms. Bryant explained the city had not made a mistake in issuing Dr. Augustine a building permit. She further explained Dr. Augustine had signed a statement, before a notary, stating he was not building within 20 foot of his property line. She stated staff required all persons applying for a building permit to sign an affidavit before a notary stating that all information on the application was correct. After that, a building permit was issued. It was further determined that the survey pins were not placed until May 31, after Dr. Augustine had stopped construction. • • • Board of Adjustments June 17, 1991 Page 4 MOTION Mr. Davis moved to grant the variance. The motion failed for lack of second. MOTION Mr. Becker moved to deny the variance. Mr. Meadows seconded the motion. The motion passed. APPEAL NO. BA91-12 - REQUEST FOR A VARIANCE OF REQUIRED PARKING STEVE MELODY - 414 DICKSON ST. The next item on the agenda was a request for a variance of required parking requested by Steve Melody, represented by Ken Shireman, for property located at 414 Dickson Street. The property is zoned C-3, Central Business Commercial. Mr. Shireman pointed out the instrument date on the original abstract was 1839 and parking requirements were non-existent in 1839. He explained this was a common problem with all of the buildings in the 400 block of Dickson. He explained that, in order for the Melodys to maintain a successful business, they must revitalize and enlarge their business. He stated the available options were: (1) they could do nothing, just leave the building vacant; (2) they could rent the building to someone; (3) they could remodel the building in its current size; (4) they could substitute off-site parking within 300 feet of the property, if there were any such property available within 300 feet, or (5) apply for the variance. Mr. Shireman further explained the net result of any of these actions is that the city parking lot would be built and the customers would park in the city parking lot. He further pointed out the Mr. Melody's lot was only 26 feet wide, making room for approximately 3 cars to park. Mr. Melody stated they had been trying to do their part in revitalizing the 400 block of Dickson and set a standard for other property owners to revitalize their property. He pointed out the majority of the buildings in that block were in a state of disrepair. He explained he desired to enlarge his building in order to continue to maintain his business in Fayetteville. Ms. Orton pointed out the original agreement between the Arts Council and the merchants on Dickson Street was they would share the parking areas. Mr. Melody explained they were asking for the variance before the parking lot was built because they hoped to have the renovations made and be open for the Christmas season. Mr. David Cox, Transportation Manger for the City of Fayetteville, stated he was present to answer any questions the Board might have. In response to a question from Mr. Tompkins, Ms. Bryant stated 13 parking spaces were required by ordinance. Mr. Davis pointed out that, should every merchant along Dickson remodel, their property, the Board would have to hear a variance for each building. Mr. Shireman explained that the entire area along Dickson Street, which was the original town of Fayetteville, was zoned C-3 and was being penalized as far as • • • Board of Adjustments June 17, 1991 Page 5 parking was concerned. He stated he believed the parking requirements should be the same as C-4 zoning, which allowed off-site parking within 1,000 feet. In response to a question from Ms. Orton, Mr. Cox stated he believed they would be setting a precedent should they approve this request for a variance. He further pointed out the city parking lot would be public parking and would satisfy the parking ordinance for the merchants on Dickson Street. There was discussion regarding the number of parking spaces that would be needed after the entire Dickson Street area was renovated. MOTION Mr. Becker moved to grant the variance. Me. Orton seconded the motion. Mr. Davis stated he did not feel they should be voting on this matter. Mr. Tompkins explained that should they deny the variance request, the only alternative for the applicant was to take the case to court. The motion passed. OTHER BUSINESS Item #1: Mr. Becker explained the Board of Adjustment by-laws required they elect a chairperson at the last meeting in June. Don Mills had stated she would not serve as Chairperson again, that she had been chairperson for three or four years. He stated nominations are open. MOTION Mr. Boyd nominated Robert Tompkins to serve as chairperson for the next year. Mr. Becker seconded the motion. The motion passed unanimously. Item #2: In response to a question from Mr. Tompkins, Ms. Bryant stated staff had been working on an historical preservation ordinance. She explained there was a clause whereby the Historical District Commission would have the option of making recommendations to the Board of Adjustment on situations like the one they had just heard. She further explained the Board of Adjustment would not be obliged to take the recommendation but it would give them a perspective. Me. Bryant further stated staff would be reviewing incentive zoning in the Dickson Street area. She explained incentive zoning was a concept where people are encouraged to preserve property by giving them incentives like reducing setbacks, etc. Item #3: Mr. Davis stated he was trying to understand the procedure for site reviews regarding variances. He asked what type of training the building inspectors had • • • Board of Adjustments June 17, 1991 Page 6 in this type of review. He also asked the size of the review area and if that size varied with different zoning. Ms. Bryant explained the inspection people had nothing to do with staff reports. She stated staff asked the inspectors questions -- did they have a permit, did they not have a permit, did you issue a stop work order. She explained the Augustine subdivision was largely in conformance with the 20 -foot rear setback. She further stated anything that was not in conformance with the ordinance was probably an illegal situation. Ms. Bryant suggested the Board look at the neighborhood standard in very old neighborhoods, such as historic districts, where the prevailing standard might be a setback of 5 feet or less. She explain ed it would still be a judgment call. Item #4: Ms. Bryant pointed out to Mr. Tompkins that he did not need to abstain from voting since he was now chairperson. After further discussion it was determined that the bylaws directed the chair to vote. Should there be a tie with the chairperson voting, it would become a policy decision and the board would be forced to make a policy decision. MINUTES Mr. Boyd moved to approve the minutes of the previous meeting. Mr. Davis seconded the motion. The motion passed. Item #5: Mr. Tompkins stated he had noted in one of staff's recommendations the term "staff's policy". He asked if that was the city planning commission policy. Me. Bryant stated it was John Merrell's administrative policy. Mr. Tompkins stated the Board had received a staff report on a church approximately a month earlier regarding the aesthetic aspects of the church. He asked if that had been a policy statement. Ms. Bryant stated staff could use the term "administrative interpretation" instead of "staff policy". Item #6: Mr. Meadows asked if it was normal to have petitioners call the Board members at home. He stated he had received calls from both Dr. Augustine and Ms. Madison regarding Dr. Augustine's request. He asked for direction. Mr. Tompkins suggested the Board think about it and discuss it at the next meeting. Mr. Meadows stated he had not wanted to be accused of being influenced. Ms. Orton pointed out they did have to look at the site. The meeting adjourned at 5:45 p.m.