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HomeMy WebLinkAbout1991-12-16 Minutes• • • 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 • • • Board of Adjustment December 12, 1991 Page 2 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 • • • Board of Adjustment December 12, 1991 Page 3 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. • • Board of Adjustment December 12, 1991 Page 4 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. • • Board of Adjustment December 12, 1991 Page 5 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. • • Board of Adjustment December 12, 1991 Page 6 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. • • • • • 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