HomeMy WebLinkAbout1991-09-16 Minutes•
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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
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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
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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
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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.
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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
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Board of Adjustments
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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
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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
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personally write those he wanted to attend.
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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.