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HomeMy WebLinkAbout1991-09-16 Minutes• • • • • MINUTES OF THE BOARD OF ADJUSTMENT A meeting of the Fayetteville Board of Adjustment was held on Monday, September 16, 1991, at 4:15 p.m. in Room 111 of the City Administration Building, 113 West Mountain Street, Fayetteville, Arkansas. MEMBERS PRESENT: Dennis Becker, Don Mills, Robert Davis, Larry Tompkins, Lonnie Meadows, and Marion Orton MEMBERS ABSENT: Gerald Boyd OTHERS PRESENT: Becky Bryant, Richard Shewmaker, Mary Hinton, Betty Harrison, Bill Michell, LaGayle McCarty, and others Mr. Larry Tompkins called the meeting to order. He then read a protocol statement, as follows: "The function of this Board of Adjustment is to apply the discretion of citizen experts to exceptional instances where interpretation and strict enforcement of the literal provisions of the zoning ordinance would cause undue physical development hardship to individual property and to grant such minimum variances only when it is demonstrated that such action will be in keeping with the spirit and intent of the provisions of the zoning ordinance of the city." APPEAL NO. BA91-15 - REQUEST FOR A VARIANCE OF BULK AND AREA REQUIREMENTS RICHARD SHEWMAKER - 603 W. DICKSON The first item was Appeal No. BA91-15 for a request for a variance of bulk and area requirements by Richard Shewmaker for property located at 603 W. Dickson. The property is zoned C-3, Central Business Commercial. Ms. Bryant explained the subject property was the old Polk building located at the corner of Dickson Street and Gregg Avenue. She stated Mr. Shewmaker was renovating the property, using the second floor for his residence and renting the first floor for commercial purposes. She explained the structure was historic and some unusual circumstances existed because of its location. She further explained they generally gave residents of this area the benefit of a doubt to encourage the economic revitalization of Dickson Street. She stated Mr. Shewmaker was requesting both a front setback variance and a rear setback variance. The front setback variance was to construct a balcony to extend over the setback and past the property line into the city's right-of-way. She explained it was Mr. Shewmaker's intention to re -enforce the balcony with posts that would extend onto the sidewalk. She stated that should the balcony be redesigned without the posts, staff would recommend granting the variance with the understanding that it applied only to the balcony and not to any other potential encroachments. Ms. Bryant then explained Mr. Shewmaker was removing the dock at the back of his property and landscaping the area between the subject property and the Northwest Arkansas Sign Company building. He further plans to add a stairway extending to the second floor of the subject property. She recommended the rear variance be granted. Mr. Becker explained that, since this property was C-3, John Merrell had made an interpretation saying that a residential mix was possible. Mr. Becker stated in Me. Bryant's written report to the Board she had mentioned a fire break with the rear stairway. He asked if location of the stairway met with fire code. He explained he believed the proposed stairway would be required by the fire department to meet code. Mr. Shewmaker stated he had discussed his plan with various members of the Board of Adjustment when they viewed his property. He explained the supporting posts on the front of the building would need to be addressed by the City Board of Directors. He further explained Perry Franklin, Traffic Director for the City Board of Adjustments September 16, 1991 Page 2 of Fayetteville, had told him parking meters had at one time been in front of the building but had been removed when the building became vacant. He stated he had requested they be reinstalled upon completion of the construction. Mr. Shewmaker further explained the posts used to hold the balcony up beyond the five foot setback would be in line with the parking meters. He suggested the Board talk to the Assistant City Attorney regarding any questions they might have. He explained the letter from the City Attorney's Office did not address the question of the posts. In response to a question from Ms. Orton regarding the necessity of the posts, Mr. Shewmaker stated they probably could have a balcony of a smaller size, but since the building was built in 1933, they would need the support. He explained there were steel cables in the attic of the building which he presumed were there to help hold the face of the building up. He further explained there had been concern about the type of post proposed. He stated the type he was proposing had two aluminum bolts at the top and two on the ground which would provide a breakaway effect. He further stated the posts would not be set in cement and would shear off if they were hit with an automobile. Mr. Davis asked if it would be feasible to do a cantilever I-beam through a steel beam. Mr. Shewmaker explained that it probably was possible but he did not know if it would be feasible. He stated three steel beams went through the building, one of which was 19 feet from the front of the building. He further stated there was a steel beam across the front of the building which they had considered putting poles through and welding. He explained there were actually two steel beams going across at each place, and one going across and touching another one. He further explained that when the two touched there was a steel post that went to the floor and at the basement level below there was a three by three concrete square that the post was resting on. He stated he believed they were bolted. He explained that where the beams interconnected there was no welding nor was there any welding where the beams set. In response to a question from Mr. Davis, Mr. Shewmaker stated they could be uncovered and welded. He explained the sheetrock would have to come off the front of the building in order to weld the posts to the beams. He further explained he believe it would only take four posts to hold up the front but he would want to put in at least a dozen in order to distribute the weight. He further explained the outside beam on the building had a 4 x 4 steel metal chute across it in order to hold up the aluminum facade. He explained they had left those in place in order to provide a site for the post to go through. Mr. Davis stated if a beam arrangement could be done, it would look much better than the poste in the front. Mr. Shewmaker stated he believed the posts would be better looking with a skirt around the outside of the boundary. Ms. LaGayle McCarty, Assistant City Attorney, stated she would be happy to address the legal side of the variance. She stated she believed this came down to the issue of what the definition of an obstruction was. She explained she was referring to an ordinance that was cited in the memo from the City Attorney's Office. She explained the memo had been written to address the balcony but many of the same issues applied in the case cited as to whether the posts were encroached on city property. She stated Arkansas Code set out that sidewalks were to benefit the public welfare and safety and whether construction interfered with the views of the street and sidewalk for the public. She further stated that in doing research she had used among other books, McQuillin Municipal • • • • Board of Adjustments September 16, 1991 Page 3 Corporation. She cited McQuillan in saying that minor encroachments that were not interfering with the right of abutting owners, and not seriously or to any considerable extent interfering with the use of the street and sidewalk by the public for travel were usually permitted. She further explained this was left open to interpretation. She stated there were guidelines in interpreting what an obstruction was and that was applying those definitions to the ordinance which states "It shall be unlawful for any person to obstruct any street, alley or sidewalk". She explained they would need to determine if the posts were obstructions. Mr. Becker stated the staff had claimed there was an obstruction inheritantly illegal under city ordinance which prohibited the obstruction of sidewalks. He further stated that Ms. McCarty had claimed that they needed to determine whether it was an obstruction or not. Ms. McCarty explained all she could do was give them the guidelines from which they could judge whether it was an obstruction. Mr. Tompkins stated the use of the right-of-way would be up to the Board of Directors which was out of their jurisdiction. He further stated they needed to consider the five foot setback. Ms. Mary Hinton, a land owner to the west, and Ms. Betty Harrison stated they were in support of Mr. Shewmaker and the improvements he was making to the property. Mr. Bill Mitchell also appeared before the Board and spoke in favor of the variances. No one was present in opposition to the variances. Mr. Tompkins stated he was quite interested in the coverage of the land by the building. He further stated it appeared it covered approximately 97% of the land. Mr. Shewmaker agreed. He explained there was approximately a foot in the front not covered by the building. Mr. Tompkins asked if he had done any surveys on types of awnings and balconies in the area. He stated he had counted 26 from the post office down to the old theater but he had not seen any posts. He explained this was an urban design question on the character of Dickson Street. He stated he was also interested in the ramifications of loading docks. He asked how Mr. Shewmaker proposed to take care of it. Mr. Shewmaker explained it was an old concrete loading dock that was up off the ground. He stated the roof and interior walls would be removed. He explained it was not being used for trash. In response to a question from Mr. Tompkins, Mr. Shewmaker pointed out the area he used for off-street parking. He stated the area would hold five vehicles. Mr. Tompkins pointed out they had questions on the parking for the residents and also questions on parking for the commercial use. Mr. Shewmaker pointed out that Mr. Tux daytime spaces than what they ever used. had allocated parking to the new tenant. be closed in the evening. and George's Majestic Lounge had more He explained both of those businesses He further explained the tenant would s • • • • Board of Adjustments September 16, 1991 Page 4 Mr. Tompkins stated he was also interested in the right-of-way for the power poles. Mr. Shewmaker stated he would surmise all of the utilities were in the right-of- way. He further stated they were so close to his building he could not do anything to the east side of the building. In soliciting comments from the Board members, Mr. Tompkins suggested they discuss the rear setback variance of 15 feet first. Mr. Davis stated the variance would have to be granted to make room for a stairway for a safety exit for the residents. Ms. Mills stated she agreed. She expressed her belief that, when the area was torn out and the new stair installed plus the fire escape from the window, it would give two exits in case of fire. Mr. Becker pointed out Mr. Shewmaker could use the stairs that currently were there but they would have to be completely gutted in order to conform with fire requirements. He stated he would be in favor of granting the variance on the rear of the property. Mr. Meadows and Ms. Mills agreed. Mr. Tompkins stated his only concern was what would happen in the 15 feet particularly in terms of parking. He further stated he had seen a lot of areas like this develop into trash areas. Mr. Tompkins reminded the Board the variance would run with the land, not Mr. Shewmaker. Ms. Orton asked if there was not a way to state the motion that would tie the variance to Mr. Shewmaker. Mr. Tompkins stated they could put conditions on the granting of the variance. MOTION Mr. Becker moved to accept the variance as submitted for the rear portion of the property. (A variance of 15 feet from the required 15 feet setback line.) Mr. Davis seconded the motion. Me. Orton amended the motion to approve the variance only for the lifetime of the present building. Mr. Davis and Mr. Becker stated they had no objections to the amendment. There was agreement that, should the building be destroyed by 50% or more, the building would be considered totally destroyed and the variance would be null. The motion passed 5-1-0 with Mr. Becker, Mr. Davis, Mr. Meadows, Ms. Mills and Ms. Orton voting "aye" and Mr. Tompkins voting "no". Mr. Tompkins stated the Board would now review the request for a variance of five feet from the five foot required front setback. Ms. Orton stated she believed it was the same condition as the rear setback. MOTION Ms. Orton moved to grant the variance of five feet for the five foot setback in • • • Board of Adjustments September 16, 1991 Page 5 the front with the condition that should the building be destroyed 50% or more, the variance would lapse. Mr. Davis seconded the motion. Ms. Mills explained that, when they got into the perimeters where they granted or disallowed variances, their first criteria had always been hardship. She stated she saw no hardship in this matter. She further stated this would open up for all of the other owners up and down the street to have the same opportunities. Mr. Davis pointed out that Underwood's projected out over the sidewalk. He also pointed out the gas station extension extended out over the sidewalk. Mr. Meadows stated there were not too many buildings on the north side that were two-story and therefore could not use the same function as Mr. Shewmaker was requesting. Ms. Orton stated that she had understood that the building was currently setting in the five foot setback and should they not grant the variance, a portion of the building would have to be removed. Ms. Bryant stated the building was approximately 2 1/2 feet on one side and approximately 2.6 feet on the other side from the right-of-way line, extending 2 1/2 feet into the required five foot required setback. She further stated the marque was also in the setback area. She stated the building was non -conforming. MOTION Ms. Orton amended her motion to grant a 2 1/2 foot variance. Mr. Davis seconded the motion. Ms. Bryant explained that 2 1/2 feet would only make the building conform but would not grant any area for the balcony. Ms. Orton asked if a balcony that projected over the sidewalk needed a variance. • Ms. Bryant explained a permanent structure did not have to be on the ground to be an encroachment into the setback. • The amended motion and the motion were both withdrawn. MOTION Ms. Mills moved to deny the request for the variance on the front of the building. Me. Orton seconded the motion. Mr. Becker stated he believed a point should be made that Mr. Shewmaker's effort to upgrade the structure was good and he was in favor of that effort. He explained he believed the City Board had to look at Dickson Street as an area of upgrading and they could not do it on individual, one project at a time basis, regardless of how worthy the project might be. He explained he believed it went against the four prerequisites for granting variances. He stated there was no hardship that forced the balcony. Mr. Meadows stated most homes had both a front and back door for entrances and egress, especially in this case on a second level in case of a fire. He stated • • • • • Board of Adjustments September 16, 1991 Page 6 he believed there needed to be a front door, even if it was to a balcony, for a means of escape. He stated he was in favor of granting the variance. Mr. Davis stated he was in favor of approving the balcony but the posts to the ground bothered him. The motion passed 5-1-0 with Mr. Davis, Mr. Becker, Mr. Tompkins, Me. Mills, and Ms. Orton voting "aye", and Mt. Meadows voting "no". NEW BUSINESS Board Attendance at the Planning Commission Meetings Ms. Mills stated in the past someone had attended the Planning Commission meetings. She explained it was a hardship for her to attend all of the meetings but the Planning Commission was doing a lot of new and unusual things. She expressed her belief someone from the Board should attend those meetings. Mr. Tompkins stated they had, in the past, assigned attendance of the Planning Commission meetings alphabetically with each member attending the meetings for three months. After discussion it was determined that all of the Board members with the exception of Mr. Meadows and Ms. Orton had attended meetings in the past. Mr. Meadows agreed to take the first three months with the understanding that Ms. Orton would have to attend the first meeting in that time period. Board Attendance at Board of Director Meetings Mr. Tompkins reminded the Board that at the last meeting they had discussed having a representative of the Board of Adjustment at the Board of Director meetings with regard to their denial of various cases. He stated the Board of Directors had tabled the Ryan case and he had believed they had wanted someone from the Board of Adjustment to explain any questions. He stated he would like to see everyone represent the Board of Adjustment. There was discussion regarding getting information to the Board of Directors and discussion regarding procedure for settlement of cases. Mr. Tompkins suggested inviting the city manager, the city attorney and the Board of Directors to one of the Board of Adjustment meetings in order to discuss the operating procedure on lawsuits involving the Board of Adjustment. The Board also discussed the Ryan matter and settlement of the case by the Board of Directors. Ms. Bryant pointed out the Directors had tabled the matter at their September 3 meeting in order to hear from the Board of Adjustment regarding their ruling in the Ryan issue and it would be heard the following evening. Mr. Becker explained he believed the item had been tabled in order for staff to gather all of the minutes and documents relating to the case for the Board to review. Ms. Orton excused herself from the meeting. Mr. Davis asked why the Planning Division did not have some type of penalty when the applicant for a building permit lied about setbacks, as had happened in the Ryan case. He suggested a large fine for flagrant violations. Ms. Mills pointed out that sometimes it was difficult to enforce a fine when the • • • • Board of Adjustments September 16, 1991 Page 7 builder or contractor had no money or was now out-of-state. The Board discussed appearing at the Board meeting the following night in order to provide information to the Board of Directors and then calling a special meeting to discuss these matters with the city manager, the city attorney and the mayor. Minutes Mr. Davis stated the minutes of the last meeting were not entirely accurate. He stated he had made a motion to grant the variance and the vote was denied. Mr. Becker moved that the minutes be approved. Mr. Davis seconded the motion. Mr. Becker explained that the minutes stated the motion passed but there had been no show of the vote. He explained he believed that it was important that there was a show of the vote by name. The motion passed unanimously. Palmer Variance Mr. Tompkins reminded the Board that Mr. Palmer had requested a variance for property located on North College. He stated Ms. Hassel had written him requesting a re -hearing on Mr. Palmer's variance. He explained he had written to Ms. Hassel saying that it was not within the Board's purview and further, the information he had received from the Arkansas Highway Department was that Mr. Palmer's property would not be affected. He showed the Board a drawing he had received from the Highway Department indicating where additional right-of-way would be taken. Agenda Requests Mr. Tompkins stated he wanted a more detailed agenda for both the Board of Adjustment and the Board of Sign Appeals, like Call to Order, Protocol, then the Business, then Minutes of Previous Meeting, Committee Reports, Old Business, Adjournment. He further stated should any of the Board members have any new business, they were to call Traci in the Planning Office by 4:00 p.m. on the Tuesday before the Monday meeting. Miscellaneous Mr. Tompkins thanked Ms. Mills for serving as chairperson of the Board. He suggested a letter be written to Ms. Mills signed by the Board of Directors expressing their appreciation. There was discussion of educational materials the Board had received, particularly an item on self-created hardships, wherein the owner had created their own hardships. Mr. Davis stated there needed to be job descriptions telling the city attorney the scope of his authority. Ma. Bryant agreed a joint meeting would help a lot. She suggested Mr. Tompkins • personally write those he wanted to attend. • • • • • Board of Adjustments September 16, 1991 Page 8 Ms. Mills suggested the entire Board of Directors, the City Manager, and the City Attorney be asked to attend the meeting. Me. Bryant pointed out there was a conflict because the Board Tour occurred while the Board of Adjustment meeting went on. She suggested having the meeting immediately after the Board Tour. The meeting was adjourned.