HomeMy WebLinkAbout1991-12-16 Minutes•
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MINUTES OF THE BOARD OF ADJUSTMENT
A meeting of the Fayetteville Board of Adjustment was held on Monday, December
16, 1991, at 3:45 p.m. in Room 326 of the City Administration Building, 113 West
Mountain Street, Fayetteville, Arkansas.
MEMBERS PRESENT: Dennis Becker, Don Mills, Robert Davis, Larry Tompkins, and
Marion Orton
MEMBERS ABSENT: Gerald Boyd and Lonnie Meadows
OTHERS PRESENT: Alett Little, Sharon Langley, Greg House, Beverly Block, and
others
PROTOCOL
Mr. Larry Tompkins called the meeting to order and noted they had a quorum. Mr.
Tompkins explained it was the function of the Board to apply the discretion of
its members to requests where interpretation and strict enforcement of the zoning
ordinance would cause undue physical development hardship to the individual
property owner and to grant only minimum variances when it was demonstrated that
such action would be in keeping with the spirit and intent of the zoning
ordinance. He further explained that first the planning staff would present the
request, secondly the applicant would have an opportunity to discuss in detail
any important pertinent items, then interested citizens had an opportunity to
speak either in favor or against the granting of a variance, the Board would then
adjourn from public hearing to discuss the matter and then take action. He
explained that during Board consideration the applicant needed to be available
to answer any questions the members might have.
APPEAL NO. BA91-22 - REQUEST FOR A VARIANCE OF AREA AND BULK REQUIRffiNTS
GREG HOUSE - 72 OKLAHOMA WAY
The request presented by Greg House was for property located at 72 Oklahoma Way.
The property is zoned R-1, Low Density Residential.
Ms. Little explained the appeal was for a variance of the front setback of 6.5
feet, of the rear setback of 16.5 feet and of the side setback of 3 feet. She
informed the Board that on the subject property there existed two abandoned
concrete water tanks. She stated the northern tank encroached into the back
setback area approximately 6 feet. She further stated the southern tank
encroached into the rear setback approximately 11.5 feet. She explained they
were quite bulky and difficult to remove. She informed the Board Mr. House had
consulted with Planning staff prior to construction and determined that he could
build on the tanks as long as he did not further encroach into the setback area
and if he did not allow any of the weight from the house to be supported by the
tanks. Mr. House received a building permit and began construction on August 13,
1991.
Ms. Little further explained that the Building Inspector had determined Mr. House
had encroached into the setback further and issued a stop work order. She
presented the Board with photographs of the house pointing out the further
encroachment. She stated that since writing her report for the Board she had
spoken with Mr. House regarding the area to the rear of the house. She explained
she had believed it to be a room in the house but Mr. House had stated it was to
be a porch. She pointed out the other areas of encroachment.
Ms. Little stated she had reviewed the criteria for granting a variance of
setbacks. She recommended they deny a variance of 6.5 feet for the front of the
property. She explained there were no special conditions present and it was
feasible for construction to take place within the 25 foot setback. She further
explained Mr. House was aware of the setback prior to construction. She stated
the need for the variance had been created by the builder and would result in
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Board of Adjustment
December 12, 1991
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giving special privileges not afforded to others since others were required to
meet the 25 foot setback. She further stated she did find that at the rear of
the property, because of the storage tanks, special conditions did exist. She
explained that due to the size of the tanks and the difficulty of removing them,
she considered them to be land features. She further explained she believed the
tanks created the need for some ease in the interpretation of setback
requirements.
Ms. Little pointed out Mr. House was taking a parcel of land that normally could
not be constructed upon and retrofitting it to allow for construction. She
explained it was the existence of the tanks, not Mr. House's actions, that caused
the problem. She further explained that, due to the tanks, she did not believe
they would be granting a special privilege to Mr. House. She recommended they
ease .the setback requirement by allowing the builder to reduce the encroachment
by reducing the size of the room which topped the southern tank. She stated Mr.
House was currently encroached into the area by three feet; she recommended the
encroachment be no larger than 16 inches. She explained this would be adequate
to allow a roof overhang over the existing southern tank. She also recommended
allowing the squaring of the corners of the room topping the tank. She stated
that would cause some additional variance in the setback requirements. She
expressed her belief the squaring of the corners was necessary in order that the
house be visually appealing.
Me. Little recommended a three foot variance on the side of the property. She
stated that once again the storage tank did create special conditions. She
explained that literal interpretation of the statute would deprive Mr. House of
use of the lot for residential property.
Ms. Little presented the Board with a copy of the site plan that had been
presented to the City at the time the building permit was issued. She explained
there were minor variations from the as -built plan.
In response to a question from Mr. Becker, Ms. Little pointed out the variations,
including the fact that the site plan had not been to scale. She pointed out the
site plan also showed the location of the tanks in relation to the setback lines
but did not show the location of the eaves of the home, the roof line nor the
front porch. She stated that the site plan approved on April 1, 1991 showed no
further encroachment than the tanks.
Ms. Little presented a statement from area residents in favor of the construction
of the home.
Ms. Milts stated she had spoken with an adjoining neighbor who had a survey
showing the fence had been changed.
Mr. House stated he had a copy of that survey. He presented it to the Board.
He explained there were two surveys and the ones the Board had was the revised
copy, dated December 10.
Mr. House explained they had originally attempted to tear the subject tanks down
but had determined it would be a very expensive process to completely clear the
lot. He further explained he had approached the Planning Department regarding
building on the tanks as they existed and to use them as part of the structure.
He presented a letter he had written to Becky Bryant dated February 26, 1991,
which stated, in part "...The tank to the north would serve as a garage while the
tank to the south would be a family room. The only changes to the structure
would be to provide some facade over that portion of each tank already in the
setback area." He explained this was a simple way to explain it was his
intention to put a roof over the tank in the back and extend past the edge of the
tanks in order to make them aesthetically appealing. He stated it was his
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Board of Adjustment
December 12, 1991
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understanding from Ms. Bryant and Mr. Merrell that the Planning Division was
approving his plans and were in favor of them.
Mr. House explained that was not reflected in the building permit because he did
not know what type of facade would be used on the tanks. He stated their intent
was to make the area over the tank to the south a screened in porch with the
portion going past the tank to be cantilevered and open underneath.
He pointed out the survey dated December 10 and explained that it was a revised
plat of the November 25 survey. He explained the surveyor had made a mistake in
the first survey. He further explained that was the reason there was some
encroachment in the front setback area. He further stated he had believed that
decks no more than 30 inches off the ground could be constructed in a setback
area. He stated he had since learned that was not the case. Mr. House pointed
out other concepts regarding the house which did not encroach into the setback
area but were dictated by the land.
Mr. House stated that three of the homes in the area had setback variances in
order to more aesthetically fit the lots. He further stated he did not believe
that .allowing him a variance would be granting him a special condition not
afforded others in the neighborhood. He also explained it would be a financial
burden to trim the eave back to conform with the setback requirements. He stated
he did not believe the encroachment caused any hardship to the neighbors or
utility companies or emergency services.
Mr. House also pointed out he had constructed a number of houses in the City of
Fayetteville but this was his first experience with the Board of Adjustment. He
stated he was concerned about the regulations and the necessity for them. He
expressed his belief that this case was a special circumstance.
In response to a comment from Mr. Davis, Mr. House explained he had continued
work after receiving notice from the city of the violation with the permission
of both the Planning Department and Inspection Department in order to protect the
roof from the weather. He further explained he had entered into an agreement
with the City to hold the City harmless for any further expense from the time of
notification.
Mr. House stated he did want to make it clear to the Board that he had not
understood from the City that there could be no further encroachment from the
tanks. He further stated Freeman Wood had agreed to take a certified engineer's
plan showing how the tanks could allow for weight bearing. He stated he had
provided such certified engineer plans to Mr. Wood and he was happy with the
plans.
Ms. Little stated the building permit, issued August 8, 1991, had the notation
"Tank is not to support any loads". She further pointed out Mr. House had agreed
to the minimum setbacks of 8 feet on each side, 25 feet in the front and 20 feet
in the back.
In response to a question from Mr. Becker, Mr. House explained the neighbors had
approved the plan dated November 25 which was the plan displayed by the Planning
Management Director.
Mr. Tompkins noted that Mr. House had agreed to meet the setback requirements and
that the tanks would not support any loads when he signed the building permit.
He asked the reasons for the changes.
Mr. House stated he had not changed the building permit subject to Me. Bryant's
letter. He explained he had communicated with her months prior to obtaining a
building permit.
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Board of Adjustment
December 12, 1991
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Mr. Tompkins pointed out the letter Me. Bryant had sent on April 1 stating "No
such nonconforming structure may be enlarged or altered in any way that increases
its nonconformity." He stated Mr. House had been advised twice of the
nonconformity.
Mr. House stated he had discussed with both the Planning Department and the
Building Department that he would be building on the tanks and that they were
going to be nonconforming. He agreed the building permit should have reflected
his agreement with Ms. Bryant. He stated everyone in the Planning Department was
aware that he would be using the tanks.
Mr. Becker pointed out the site plan filed with the building permit was in
conformance with city ordinance and did not show encroachment into the setbacks.
He further stated the city had not received a revised site plan until after Mr.
House had received a stop work order.
Mr. House stated he had certain understandings with both the building department
and planning department that he took for granted rather than seeing that it was
in writing. He further stated Ms. Bryant had been aware that the tanks would be
covered in order to use them. He explained he did not know he was going to
square off the corners when the site plan had been submitted. He further
explained he had believed correspondence between himself and Ms. Bryant would be
part of the record showing that the tank structure would be used.
In response to a question from Mr. Tompkins, Mr. House explained he was aware the
tanks were nonconforming and had discussed that at length with Ms. Bryant.
Mr. Becker stated he had viewed the site and believed Mr. House had made a good
effort with the use of the lot, bringing the lot back into the public good. He
further stated he did not have a problem with the front encroachment. He
explained he too had believed that as long as the structure was not over 30
inches in height it did not have to meet the setback requirements. He further
explained that John Merrell had changed that requirement. He pointed out,
however, that Mr. House's site plan did not indicate use of the tanks even though
Mr. House had shown evidence that he planned to use the tanks.
Ms. Mills asked if staff had evidence of Mr. Wood's acceptance of the engineering
report allowing the tanks to be weight bearing.
Ms. Little stated she did not. She further stated the stop work order was issued
on November 22, 1991. On November 25, 1991, Mr. House met with city officials
and received permission to continue work on only those areas which were in
conformity with the setback requirements and to waive any claims for damages
against the City of Fayetteville that might arise by continuing to protect the
structure. Ms. Little read a letter from Mr. House agreeing to those terms.
Mr. Tompkins stated he would like to break the variance request into three
sections: part one being the variance request for the front setback of 6.5 feet,
part two being the variance request for the rear setback of 16.5 feet, and the
third part being the variance of the side setback of 3 feet.
MOTION
Ms. Mills moved to deny the request for a variance of a front setback.
Ms. Orton seconded the motion.
There was discussion regarding exempting the overhang. Ms. Mills expressed her
belief that there had been a total disregard of the permit and did not wish to
exempt the overhang.
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Board of Adjustment
December 12, 1991
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The motion passed unanimously.
MOTION
Ms. Mills moved to deny the request for a variance of a rear setback.
Mr. Davis seconded the motion.
Mr. Becker expressed his opinion that the record showed intent to use the tanks.
He further stated the record showed the permit did not show intent to use the
tanks. He explained he did not believe it was blatant disregard to want to use
the tank. He further stated there had been an effort and agreement citing the
nonconforming structure to use the tank. He explained that some of the
information had to bear on the application even though the Board might not like
the way it ensued. He expressed his belief that the record was clear that there
was intent to use both tanks and all parties, including the city, knew that the
nonconforming structure encroached.
The motion failed with Mr. Tompkins and Ms. Mills voting "yes" and Mr. Becker,
Mr. Davis and Ms. Orton voting "no".
MOTION
Ms. Mills moved to deny the request for a variance of the side setback.
Mr. Davis seconded the motion.
The motion passed unanimously.
Mr. Tompkins explained to Mr. House that, should he desire to appeal the decision
of the Board of Adjustment, he would need to go to the Chancery Court.
Mr. House asked if they could rehear a submission should the request be changed
to a lesser variance.
Mr. Tompkins stated that would be considered a new submittal.
Mr. Tompkins explained that, since they were sitting both as the Board of
Adjustment and the Board of Sign Appeals, he would like to move into the Board
of Sign Appeals meeting and then return to the Board of Adjustment. The Board
of Adjustment meeting was temporarily recessed.
The meeting reconvened at 6:00 p.m.
MINUTES
Mr. Becker stated he had some corrections to the December 2, 1991 minutes. He
stated that the secretary had incorrectly identified Bob Kelley as Bill Mitchell.
He further stated he wanted it conveyed that the variance was not the only way
to satisfy the codes. He explained the codes could have been satisfied without
getting a variance. He further stated the minutes reflected he had reviewed.. the
Fire Code. He explained he had reviewed only that portion dealing with classroom
exits. He further explained his statement was that he could see the applicant
had made efforts to stay within the budget and he could see their efforts to meet
the code.
Mr. Becker also informed the Board that, prior to John Merrell's tenure, the City
had apparently stated structures 30 inches or lees could be in the setback area
but Mr. Merrell had changed that. He explained now there was an interesting
dilemma as to what was slab and what was structure.
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Board of Adjustment
December 12, 1991
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He. Little explained that acknowledging the 30 inches had been standard practice
for many years even though it was not written in the code.
MOTION
Ms. Mills moved the minutes be accepted as corrected.
Mr. Davis seconded the motion.
The motion carried unanimously.
NEW BUSINESS
Mr. Tompkins thanked the staff for forwarding Planning Commission minutes to the
Board of Adjustment members.
Mr. Tompkins then explained that under Article 5 of the Board of Adjustment rules
they had to keep adequate records of all of their proceedings. He stated staff
had been doing a good job of keeping that record. He suggested to improve the
record keeping he wanted to discuss the style and content of the minutes. He
asked what happened to the tapes of the meetings.
Ms. Langley explained that tapes of the meeting were reused unless a lawsuit had
been filed from one of the Board's decisions.
Mr. Tompkins explained
minutes were such that
Various members of the
meeting with regard to
Board directed staff to
in the minutes.
he wanted to make sure the style and content of the
they could use it in case they had to.
Board then discussed the minutes of the September 16
a remark made by Ms. Bryant being out of context. The
be extremely careful in including all pertinent comments
The Board also expressed appreciation for zoning materials and assistance given
to them by Ms. Bryant when she was Associate Planner.
Education
Mr. Tompkins asked if there were funds in the 1992 budget to allow some of the
members an opportunity to attend zoning meetings in other cities.
Ms. Little explained she had not prepared the budget however there were training
funds for staff. She further explained a member of the Planning Commission had
approached her with a similar request. She stated she believed it would be an
excellent idea and her suggested solution was that they could share
transportation. She assured the Board she would do further investigation.
Mr. Tompkins suggested that, anytime staff attended any such meetings, brochures
and meeting materials be presented to the Board for their information.
Agenda Packets
Mr. Becker requested that a copy of the application be included with their agenda
showing why the applicant believed there was a hardship.
Ms. Mills requested that all pertinent information be included in the agenda
packet.
The meeting'<adjourned at 6:30 p.m.
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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 poste 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 posts 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