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HomeMy WebLinkAbout1992-01-06 MinutesMINUTES OF THE BOARD OF ADJUSTMENT A meeting of the Fayetteville Board of Adjustment was held on Monday, January 6, 1992, at 3:45 p.m. in Room 111 of the City Administration Building, 113 West Mountain Street, Fayetteville, Arkansas. MEMBERS PRESENT: Dennis Becker, Gerald Boyd, Don Mills, Robert Davis, Larry Tompkins, Marion Orton, and Lonnie Meadows OTHERS PRESENT: Alett Little, Sharon Langley, W. D. Fine, Zerl Strode, Phil Bronson, Terry Hunt, George Oleson, and others AGENDA Mr. Tompkins called the meeting to order. He requested approval from the Board to reverse the agenda and hear the Board of Sign Appeals items first and then return to the Board of Adjustment. He also requested that they leave all of the business after the Board of Adjustment hearing. MOTION Mr. Becker moved to hear the Board of Sign Appeals request first and to leave all of the normal business until after the Board of Adjustment hearings. Mr. Davis seconded the motion. The motion carried unanimously. The Board of Adjustment meeting reconvened at 4:30 p.m. PROTOCOL Mr. Tompkins explained that Board of Adjustment variances were different than Sign Appeals. He stated the function of the Board of Adjustment was to apply their discretion to the exceptional instances were interpretation and strict enforcement of the literal provisions of the Zoning Ordinance would cause undue physical development hardship to individual property owners and to grant such minimum variances only when it is demonstrated that such action would be in keeping with the spirit and intent of the zoning ordinance. REQUEST TO VARY BULK AND AREA REQUIREMENTS - BA92-1 W. D. FINE - 2040 ERSTAN Ms. Little explained the request was for a variance of 10.2 feet of the front setback. She stated that on November 15, 1991 Mr. Zerl Strode, Z & K Construction, on behalf of Mr. W. D. Fine, applied for and received a. building permit for construction of a one car garage by closing in an existing- carport. She explained the subject property was located in Stanberry Subdivision, a replat of Green Acres Subdivision accomplished in 1965. She further explained the existing carport had been a nonconforming use because it encroached into the setbacks required by 6.2 feet. Ms. Little stated the enclosrue of the caport included an addition of four feet on the front to allow for placement of garage doors. She stated that at compltion of construction, Mr. Fine called for a final building inspection. She explained that on December 11, 1991, the building inspector discovered the garage did not meet the rquired front building setback of 25 feet, having a setback of 22.9 feet, narrowing down to 14.2 feet to the north. She pointed out to the Board that Erstan Avenue was a gently curving dead-end street to the south of Elm Avenue. She noted it had been platted in 1965 with a 50 -foot right-of-way, but only 25 feet had been paved. She explained that, in attempting to measure the required setbacks, both the contractor and Mr. Fine had assumed that the setback would be measured from the curb, not realizing the street occupied only one-half of the platted right-of-way. She stated the setbacks from the curb were 35 feet narrowing to 27 feet to the north. Ms. Little stated Mr. Fine's home was situated on the east side of Erstan Avenue along the curve. She further stated that, at completion, the garage encroached 10.2 feet into the required setback at its northern edge but only 2.1 feet into the required setback at the southern edge. Ms. Little explained that a site review was not out of scale with surrounding properties on either side, did not vary of the area revealed that the addition properties and, when compared to the in alignment. Ms. Little reminded the Board that the criteria for granting a variance were dictated by Section 160.174(b)(1) of the zoning ordinance. She explained that special conditions and circumstances did exist because the Fine home was situated in a neighborhood developed 26 years ago with the neighborhood being fully developed. She also noted the home is located on a lot adjacent to where the street curves. She stated Erstan Avenue had been developed to only one-half of its platted with. She explained the curve and the undeveloped right -of -ay had cuased confusion for the contractor and homeowner in measuring setbacks. She explained the iteral interpretation of the provisions of the ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district. She noted most of the homes in the subdivision were developed 20 years or more in the past. She stated conditions required by the current zoning ordinance were not in effect at the time of development. Ms. Little stated the third criteria was that special conditions and circumstances would not result from the actions of the applicant. She explained the age of the subdivision, lack of street development during a 26 year timeframe, and the situation of a lot on a curve were not the result of the owner's action. She stated the enclosure of the carport and additional to an existing nonconforming use of four feet were the result of owner action. Ms. Little further stated the four criteria were that granting the variance requested would not confer on the applicant any special priviledge that was denied by this ordinance to other lands, structures or buildings in the same district. She reminded the Board that Section 160.136 of the Zoning Ordinance addressed nonconforming lots of record. She read as follows: "In a previously developed subdivision, platted prior to June 29, 1970, and with the approval of the subdivision committee, a new single-family dwelling or an addition or repair to an existing single-family dwelling may be constructed in all residential zones in keeping with the existing standard in the neighborhood so long as the interior side setback is not less than five feet. Variance of yard requirements shall be obtained only through action of the Board of Adjustment." Ms. Little explained the lot was not nonconforming, containing approximately 10,000 square feet. She stated it was unclear whether the passage at 160.136 would have any bearing if the subject lot was a standard lot. She expressed her belief that granting of the variance owuld not confer a special priviledge if the lot were nonconforming. She recommended that consideration should be given to the age of the subdivision, the fact that the subdivision is fully developed, and the fact that the addition did not materially affect the alignment or the overall appearance of the neighborhood. She recommended approval of the requested variance. She stated that while she recognized that some of the standard criteria for granting variances were not met, she felt that enough weight should be given to development of the subdivision prior to passage of the current ordiance to justify the decision. She stated it was important to note that there were no remaining lots to be developed in the subdivision. She also stated that the fact the addition and subsequent encroachment into the front setback did not present a structure that was substntially out of character for the prevailing construction in the neighborhood was of particular merit. • Mr. Fine explained neither he nor the contractor had any knowledge they were doing anything wrong until at the time of final inspection. He presented a petition from his neighbors in favor of granting the variance. In response to a question from Mr. Boyd, Mr. Fine stated the original carport had been 16 feet deep. Mr. Becker stated he did not believe this was a non -conforming use but was a non- conforming structure. He stated there were some specific sections dealing with non -conforming structure enlargement. He stated those sections barred the enlargement of a non -conforming structure. He further stated that it was his observation that this particular building addition was in keeping with the neighborhood and to enforce the letter of the code would cause an unnecessary hardship and would not be in keeping within the spirit and intent of the ordinance. He stated he did not see any problem in approving the variance. Ms. Mills stated the fact that the City had never developed the street had caused confusion. She noted the streets in the subject area would never be widened. She suggested the City might think about reverting the unused right-of-way to the property owners. In response to a question from Mr. Boyd, Ms. Little stated that a site plan was not required for existing construction. Mr. Boyd stated he believed there should always be a site plan included with the application and then staff would be able to determine if there was a problem in meeting setbacks. Ms. Orton stated she believed the addition fit into the neighborhood. She pointed out there were other residences in the neighborhood that appeared to be closer to the street than the subject property. Mr. Tompkins reminded the Board that this was expansion of a non -conforming structure and any variance would run with the land. MOTION Ms. Mills moved to grant the variance to go with the life of the building. Ms. Orton seconded the motion. Mr. Becker wanted to be sure'it was understood that the variance was for 10.2 feet on the north side to a 2.1 on the south side. The motion passed unanimously. REQUEST TO VARY BULK AND AREA REQUIREMENTS - BA92-2 PHIL BRONSON - 1516 HILLCREST The next rquest for a variance was to vary bulk and area requirements by 11.5 feet to the front setback as requested by Phil Bronson for property located at 1516 Hillcrest. Ms. Little stated the house owned by Mr. & Mrs. Bronson was located in a well established R-1 district and currently had no garage. She explained the Bronsons wished to add a garage to the front of the house at the northwest corner. She stated the front of the house was situated 35.5 feet from the street right-of-way for Hillcrest Avenue and the addition of a standard 22 foot garage would encroach into the required 25 foot setback by approximately 11.5 feet. Ms. Little noted that, from site inspection, most of the other homes on the subject street had garages which had been constructed flush witht he front of the house or were constructed at the rear of the homes, utilizing the steep grade in 3 • • • the back. She further noted that the alignment of the homes along the street were uniform. Ms. Little pointed out the criteria for granting a variance were dictated by Section 160.174(b)(1) of the Zoning Ordinance. She stated the staff's analysis of the statutory rquirements were that no special consitions or circumstances existed which were peculiar to the land, structure or building. She explained the Bronson home was situated on terrain very similar to that of neighboring homes. She stated that, while the neighborhood had been developed much earlier, other homes had been constructed within the required setbacks, and better planning by the original owner/developers resulted in garages being included at the time of construction. Ms. Little also stated that literal interpretation of the provisions of the ordinance would not deprive the applicant of rights commonly enjoyed by other properties in the same district. She pointed out the request for a variance was due to the wish of the owners to place the garage in the front of the house. She stated that, while it might be the most cost effective method of including a garage on the subject lot, it did not take into consideration the placement of the garage to the rear. She further noted there was also room on the lot within the required setbacks for a one car garage if it were oriented north/south. She explained that granting the variance requested would confer on the applicant special priviledge that was denied by ordinance to other lands, structures, or buildings in the same district, by allowing construction in the setback. Ms. Little stated that, in using the analysis of the zoning ordinance, staff could not recommend granting of a variance. She did note, however, it would appear reasonable for the Board to consider the existence of a 14.2 foot right- of-way, undeveloped for 37 years, and the fact that, if the garage were constructed, there would still be a 13.5 foot setback from the street right-of- way and a 27.7 foot setback from the street as it currently existed. She stated that placement of a garage would not presently impair line -of -sight for those wishing to enter Hillcrest Avenue and would have minimal impact if Hillcrest were widened to its full 50 foot width in the future. Ms. Little recommended that, should the Board decide to grant the variance to the front setback, they condition the variance to include protective provisions for the tree which stood just to the north of where the drive would enter the garage. Mr. Bronson pointed out the trees on the subject property which he was trying to save. He stated he had attempted to go down the north side of his property but, due to the composition of the dirt, they would have to dig down 2 1/2 to 3 feet for drainage. He explained he had planned a curved driveway in order to save the tree. He presented a copy of a warranty deed from Mr. Abshier to the City of Fayetteville. He explianed it was not a right-of-way but a fee simple deed for 50 feet. He pointed out that at the bottom of the deed it said, "If any part of this land is not used as a street, it will revert back to the landowners." He stated he had a legal opinion by Judge Lineberger that the right of reversion had already gone into effect. He stated he had not built the garage and then come before the Board. He also stated it was not cost effective to go down the side of his property. He further noted there was not enough room to turn around in the back if they went down the side. He also presented a letter from the adjoining property owners in favor of the garage. Mr. Tompkins asked staff's opinion regarding the reversion clause. He asked what the master street plan showed. Ms. Little stated the plan showed the street was to be extended and, according to the city engineer, the city was not able to abandon the right-of-way at this • • • point in time. She further stated the master plan did not show the street was to be widened. She explained the city engineer would not agree to abandonment of the right-of-way. Mr. Bronson stated there was a legal difference between a street and right-of- way.. Mr. Tompkins pointed out the Master Street Plan of the city said the community wanted the street extended. Mr. Bronson stated the land to the north was the further stated they could not put a street through be cost prohibitive. Ms. Little once again noted the city engineer would not agree to the abandonment of the right-of-way. Mr. Bronson stated the city did not have a street easement which they would need to extend the street. city's main sewer line. He that location, that it would Mr. Tompkins pointed out the city could use eminent domain, condemnation or other processes. He explained that, from a long range planning point of view, the street was to be extended. Mr. Bronson agreed they could do it later but stated they could not do it now. He stated they were talking about right now, not five years from now. Mr. Boyd stated he disagreed with Mr. Bronson's argument about the street. He stated that pavement and street were not the same thing. He further stated the street had not been abandoned. Mr. Bronson stated it was not a right-of-way. Mr. Boyd stated it might not be a right-of-way but the property had been given for the purpose of building a street and a street could be interpreted as having property to widen it, putting curbs and sewer on it. He pointed out the deed did not say that as much land would revert back as was not used for pavement. He also pointed out the city did not touch anyone's right-of-way. Mr. Bronson stated he did not have curb and gutter. Mr. Boyd stated he did not believe Mr. Bronson had a clear argument. Mr. Bronson stated Judge Lineberger agreed with his argument. Ms. Orton asked if Mr. Bronson had considered putting the garage on the other side where there was 10 more feet. Mr. Bronson stated he had a bay window on that side and another tree (65 foot oak tree) which he did not want to kill. Ms. Orton stated that often there was an argument from the applicant to save the trees, the variance would be granted, and then the trees would be cut down. She explained she was not saying Mr. Bronson would do that. Mr. Tompkins stated on the south side the concrete drive entered into a grass area, then the sidewalk went on. Mr. Bronson stated the driveway stopped to save the tree. Ms. Little informed the Board Mr. Bronson's original request had been to extend his home six feet to enlarge the bedroom and then put the garage in front of it. She explained after Mr. Bronson had talked to staff he understood that the garage was possibly all he could locate on the site. • • • Mr. Bronson stated the garage would be 28 feet so he could also put in a storage area. Ms. Little stated she had calculated the garage at 22 feet. She stated if Mr. Bronson was planning a 28 foot garage, she had calculated the setback incorrectly. Mr. Bronson stated he would take what he could get. He stated he believed this was a legal question because the right-of-way was his by reversion. Mr. Tompkins noted staff had made a design recommendation of curving the driveway. Ms. Little stated that was only if it was to be a one -car garage. In response to a question from Mr. Tompkins, Mr. Bronson explained the garage had to be 22 feet long and then there would be a 4 1/2 foot drop. In response to a question from Ms. Mills, Mr. Boyd stated they were looking at a 28 foot garage. Ms. Little stated if they built a 22 foot garage the variance request would be 11.8 feet and for a 28 foot garage would be 17.8 feet. Mr. Bronson stated that was incorrect. He stated that from the "so called right- of-way" it was 41.1 feet to the edge of the building. He then noted Ms. Little was correct with her calculations. Mr. Davis stated he agreed with staff recommendations. Ms. Mills asked what would happen when the area to the north opened up. She stated that at sometime it would open up for either housing or commercial uses. Mr. Bronson stated the property was for sale now and zoned R-1. He explained there was a 104 foot drop from the north side of Sycamore. He stated in the middle was where the main water/sewer line went. Ms. Mills stated stated she was thinking of the area called Circle K. She stated this might open up at some point. She suggested they could widen the street or just extend it. Mr. Bronson stated the property Ms. Mills was asking about was the main run off from Lake Lucille and would cost over a million dollars to make the land able to be developed. Mr. Boyd stated he believed the plan could be reworked. He stated he believed the 28 foot request was far too much. He stated they could put a single garage in the front and stay within the setback limits. Mr. Becker stated he believed they should be talking about 22 feet, not 28 feet. MOTION Mr. Davis moved to deny the variance request. Ms. Mills seconded the motion. The motion passed with Ms. Mills, Ms. Orton, Mr. Davis, Mr. Boyd and Mr. Tompkins voting "yes" and Mr. Becker and Mr. Meadows voting "no". Mr. Tompkins informed Mr. Bronson that should he wish to appeal the decision, he could do so through the Chancery Court. b • • • • REQUEST TO VARY BULK AND AREA REQUIREMENTS - RA92-3 TERRY HUNT - 432 N. WASHINGTON The next request for a variance was presented by Terry Hunt for property located at 432 North Washington. The request was for the variance of 20 feet to the rear setback. Ms. Little stated the property was located in an R-1 district which was also designed as the Washington -Willow Historic Distrct. She explained Mr. Hunt began an addition to his garage, which was in nonconformance with setback requirements, without first obtaining a building permit. She further explained the City had issued a stop work order on December 3, 1991. Ms. Little stated the construction initiated by Mr. Hunt was the addition of a storage area to the east of his present garage. She explained the storage area would extend the garage five feet to the east to within inches of his eastern property line and would run the length of the present garage for twenty feet. She also pointed out the construction was of wood frame adjoining the garage which was also wood frame. Ms. Little stated that no special conditions or circumstances existed which were peculiar to the land, structure or building. She explained that while Mr. Hunt had limited options as to areas in which he might place a storage building, there was no special condition which would require the placement of the storage building to the rear of the garage. She further explained that literal interpretation of the provisions of the orinance would not deprive the applicant of rights commonly enjoyed by other properties in the same district. She stated storage units of all types are unacceptable encroacments in setback areas. Ms. Little further pointed out that the granting of the variance requested would confer special priviledge that was denied by the ordinance to other lands, structures or buildings in the same district. She explained that if the variance were granted, it would grant a special priviledge by allowing expansion of a non- conforming use and it would present a hazard to the preservation of ther historic proeprties in the event of fire. Ms. Little stated she did not recommend the granting of the variance. Ms. Hunt stated their fence was constructed out of brick and was six foot high. Mr. Hunt presented pictures showing the structure. He stated there was a structure on the property to the south that sat directly on the property line with approximately 1 - 1 1/2 foot overhang. He explained he was very restricted in terms of space. He further explained he had attempted to use the garage as his shop but it had not been useful up to this point. He stated that to the north of the garage was extensive landscaping. He explained there was a brick courtyard with ortimental trees to the north. He further explained he could not build to the south because he would still be encroaching into the setback. He stated if he constructed to the west he would be cutting off his access to the backyard from the south. Mr. Hunt stated he had talked with his neighbors and they had written letters stating they had no objections to the storage building. He asked if he could put a metal building in his front yard that would met the setback requirements. Ms. Little stated that if the building was not in the setback area, he could place such a building in his front yard. Ms. Hunt stated they did a lot of gardening in their yard and took a lot of care in their landscaping. She explained they had done extensive plantings in the courtyard and it was breathtakingly beautiful. She stated they needed a place to store their gardening tools and the children's bicycles. She pointed out the 7 • adjoining neighbor had no objections. She further pointed out the addition was keeping with the present garage. She stated the only way they could be in conformance with the variance was to put an ugly metal building in their front yard, but they would hesitate to do that after all the work they had done to their home. She pointed out they lived in the historic district and the homes and garages were built prior to the current zoning ordinance. She stated it was a unique area of town. Ms. Little stated there were letters of support from some of the adjoining neighbors. She also stated the city had been notified of the violation by an anonomous letter dated November 30. Mr. Tompkins stated he was quite concerned with the idea of the intensity of development in the back. He pointed out the number of buildings in a close vicinity to each other and expressed doubt that the brick fence would contain a fire. Mr. Hunt stated he did not intend to store any flammable liquids in the area. He further pointed out the original garage did not conform to the current setback regulations. He expressed his belief that a matter of a few feet would not make a lot of difference should there be a fire. Ms. Hunt stated the only other place for a storage building would be the front yard. Mr. Tompkins suggested using the north side of the garage. Mr. Hunt pointed out they would have to tear out the ornimental trees. He stated there was a door and two sash type windows on the north side of the garage which would have to be removed or have a double door situation. • Mr. Tompkins asked if they could go up with the garage. • Mr. Hunt stated they had gone up. He stated the entire interior of the garage was packed. He stated he had been looking for a secure area where things could be out of sight but still accessible. In response to a question from Mr. Meadows, Mr. Hunt stated he had been unaware that he needed a building permit. He stated this was a very small project, comprising approximately 100 square feet. Ms. Orton asked why they could not build to the west of the garage. Mr. Hunt explained the garage went to the west 20 feet and on the north corner there was a wrought iron fence, running from the northwest corner of the garage back to the house, giving access to the back yard. He further explained they would close off the access to the back yard if they built to the west. Ms. Mills stated she liked what the Hunts were doing in that it was a very innovative way to go about providing storage. She also noted however that should the variance be granted, there would be a zero lot line. She stated that would convey special priviledges. She further stated the historic area was a difficult one to work with because everything was constructed before the passage of a zoning ordinance. Ms. Hunt stated the historic district was a special area. In response to a question from Mr. Tompkins, Mr. Hunt stated the Historic Committee had not been apprised of their plans. He stated the extension of the garage had been started prior to his being aware there was a historic committee. Mr. Davie stated they needed to determine whether their priority was storage or landscaping. He explained that, if they needed storage, some of the landscaping would have to go. 0 • • Mr. Hunt explained he was trying to preserve the asethetics. • • Ms. Hunt pointed out their courtyard was like no other in the historic district. She explained it was historic in and of itself. She expressed her belief that to have a storage building visible would ruin the asethetics of the landscaped area. Mr. Hunt stated there were geometric patterns in the back yard including a six foot diameter bed ringed in brick and laid in flat pavers. He stated if he put the storage area there he would run into that bed and also a tree. Mr. Becker stated that they had earlier had an applicant that had built within four feet of the rear property line. He explained the Board saw it as a fire hazard and denied the request. He further explained the applicant took his request to court and a settlement was offered which the Board of Directors accepted. He stated the applicant was able to complete his structure with the provisio that a special fire wall be erected. He expressed his belief that the Historic Commission should get special zoning for the Historic District with special setback consideration, etc. He pointed out Mr. Hunt's garage was a fire hazard and to add on to it only increased the hazard. He also noted the zoning code said a nonconforming structure could not be enlarged. Mr. Boyd explained that the Hunt's were good property owners but that when the Board gave approval of the variance, the variance stayed forever. He further explained that, if the next owner of the residence kept power mowers, dirty rage and gasoline in the storage area, it could catch on fire and burn the house of the adjoining property. Mr. Hunt pointed out there were other situations in the district that were as bad or worse than his garage addition. Mr. Boyd explained the Board did not have to add to bad situations. He further explained that it was not reasonable to go through the district and make people tear down existing structures. He also noted that, if the structure should fall down, the residents were not allowed to rebuild a non -conforming structure. MOTION Mr. Davis moved to deny the request for a variance. Ms. Mills seconded the motion. The motion passed unanimously. The Board took a 10 minute recess. APPEAL OF ADMINISTRATIVE DECISION - BA92-4 GEORGE OLRSON - 1025 N. GARLAND AVENUE The final item to be reviewed by the Board was a request to reverse the interpretation of the Planning Administrator that Section 160.156(E) did not apply to petitioning property owners in the rezoning of the Parson's property. Mr. Tompkins reconvened the meeting and explained that among the Board of Adjustment's powers and duties was to hear variance requests and to do administrative reviews. He explained the next matter was an administrative review and the Board of Adjustment had the primarily responsibility of making an administrative decision. He pointed out they had no power to legislate nor to rezone property nor to violate the ordinance. He explained that they would be reviewing the request which did not apply to the petitioning of the property owners in the rezoning of the Parson's property. He stated they could not get into the effects should the Board reverse the Planning Directors interpretation. He further explained they were interested in the interpretation as it related directly to adjacency. He asked the Planning Director to speak to the question • • • giving the reasons for her interpretation of adjacency. He asked Mr. Oleson, the complaintant, to speak to reasons he was in disagreement with the interpretation. Mr. Boyd questioned the Board's jurisdiction. Mr. Tompkins stated that the ordinance set out they were to hear and decide appeals where it was alledged there was an error or ambiguity in any order, requirement, decision, interpretation or determination made by the Planning Administrator in the enforcement of the zoning ordinance. Mr. Boyd stated his question related to what happened if the interpretation made no difference. He stated if the Planning Administrator made a suggestion or interpretation to the Board of Directors, the Board of Directors did not have to follow that interpretation. He stated it was just a recommendation. Mr. Davis stated it was just a staff function. Mr. Boyd pointed out this was action by the City Board of Directors. Mr. Tompkins stated it was an action by the City Planning Administrator and they were responding to the right to be heard regarding the interpretation made by the Planning Administrator. Mr. Boyd asked what difference it would make if either side won. Mr. Tompkins stated he did not know but that was not the question. He further stated they could do what it was they wanted to do with the decision. He further iterated the Board of Adjustment had to hear the administrative review. Me. Little explained she had discussed the matter of jurisdiction with the City Attorney and felt, in all fairness to the petitioners, this hearing was one way to give them due process. Ms. Little informed the Board there were only two issues that her decision had been made upon -- the existance of the dedicated 20 -foot alleyway which separated tracts 4 and 5 from lots 5, 6 and 7 of Hathcock Addition. She noted the second issue was the wording in the zoning ordinance which said "requires protest petitioners to represent lots which were immediately adjacent." She stated they must assume the zoning ordinance was written with some care. Ms. Little stated she reviewed Black's Law Dictionary for a definition of "immediately - not separated in respect to place; not separated by the intervention of any intermediate object, cause, relation, or right." She maintained the 20 -foot alleyway did separate the two pieces of property. She pointed out that, even though the alley had not been developed by the city, it is a right of the city to develop that property. She stated there had been some question about the 20 - foot alleyway as to whether it was a portion of the lot or whether it belonged to the city. She pointed out she had included in their packet those documents giving the city a quit claim deed 20 feet off of the east of the subject lots to develop as an alleyway. Mr. Oleson stated he had brought two questions to the Board. He stated the first had to do with what appeared to have been an administrative ruling by the Planning Administrator as to the power of the Planning Commission to rehear the zoning request within a one year time period. He further stated that was an apparent violation of the city ordinance. He stated he was not sure to proceed with that. He further stated there had been a question raised by the Planning Administrator whether that would place the Board of Adjustment in the position of reviewing something the Commission did rather than something the Administrator did. Mr. Tompkins stated that, if it was pertinent to the request as background material in light of the reasons they felt the interpretation of adjacency was important, the could discuss it. He explained that otherwise he did not see its 10 • • • relevancy. He further stated he did see the second reason, the way Mr. Oleson had written it. Mr. Oleson explained that it was in order to exhaust any administrative remedies he might have and the fact that the Planning Commission determined to rehear the matter upon the advise and interpretation of the Planning Administrator. He further stated that otherwise it would not have gone to the Board. Ms. Little pointed out the Planning Commission voted against the rezoning. She explained that the matter had gone to the Board of Directors upon appeal from the decision of the Planning Commission. Mr. Oleson stated if the matter had not been heard by the Planning Commission there would have been no appeal. Mr. Tompkins stated it was a hypothetical question and they were looking at the matter with hindsight. Mr. Oleson stated there was an Arkansas case which covered this matter. He explained that it was almost identical to this issue. He further explained that a Planning Commission was presented with a zoning matter less than one year after it had been denied by the City Board. Mr. Boyd pointed out that the request had changed, the number of lots involved had decreased. Mr. Oleson stated that the case he was referring to also had changed the number of lots involved. He explained the Chancery Court had struck the Board's ruling down saying they had to follow their own rules. Mr. Boyd asked if that decision had been appealed from the Chancery Court. Mr. Oleson stated it had and was currently an Arkansas Supreme Court case. He stated that, but for the Planning Administrator's advise and opinion, the Planning Commission would not have heard the zoning petition the second time within one year's period and the matter would not have been appealed to the City Board. Mr. Becker stated the decision by the Planning Administrator in this matter said the Planning Commission acted on its own. He explained they were not empowered to go into an administrative review. He further explained that Mr. Oleson's recourse on part one of his letter was litigation. Mr. Oleson explained he wanted to make sure he had exhausted any possibility he had prior to taking the matter to court. He stated he was going to argue that, based on the Planning Commission minutes, it had been apparent to him they had not decided for themselves but followed the interpretation of the Planning Administrator. He explained that, if the Board of Adjustment decided not to hear the matter, he had covered his bases. Mr. Oleson stated that everyone was familiar with Fayetteville Code 160.156(E). He asked if everyone had a letter of opinion from the former Planning Administrator, John Merrell, regarding that code. He stated the letter was to Daniel Wright, dated February 1, 1991. The Board stated they did not have a copy of that opinion. Mr. Oleson provided them with a copy and explained that was the only existing interpretation of that particular section of the ordinance. He stated the present Planning Administrator overruled an existing written ruling by the former Planning Administrator. He explained that in the law there was a concept called "Law of the Case" that, between two parties in an ongoing litigation, you could not change the rules in the middle of the game. He further explained that once a question had been decided on the law, if it appeared likely to come up again 11 • • • later in the case, the court would follow its earlier ruling. He expressed his opinion that the same rule applied in administrative law. Mr. Oleson stated that, if at some point the city should change its interpretations on ordinance, it should do it prospectively and not change the rules on parties already engaged in a planning dispute. He further stated people had an expectation of regularity. He explained that if the rules changed half way through, also changing the results, people came away feeling they had been treated unfairly. He also expressed his belief that people would feel they could not count on what the city was going to do if there were whimsical changes. Mr. Oleson stated the current Planning Administrator's view might be correct but it was the point of changing the ruling in the middle of the matter. He agreed that "immediate" usually meant not separated by anything else. He stated if they were going to second guess what the drafters of the ordinance had in mind there was a much better word they could have used - "adjoining" instead of "adjacent". He stated Black's Law Dictionary defined "adjacent" as "not widely separated". He further stated "adjoining" had a very specific meaning -- it meant contiguous, sharing a property line. Mr. Oleson stated he believed the authors of the ordinance had been trying to protect the rights of neighbors that might be affected by adverse uses, not to insulate the property with the zoning change from those neighbors. He pointed out there ws a difference between city land and private land. He expressed his belief that all city residents owned a piece of the alleyway since it was city property. Mr. Oleson also expressed concern should Ms. Little's interpretation be upheld as precident. He pointed out that, should someone have neighborhood opposition to a rezoning, all they would have to do was dedicate an alleyway around their property. He also pointed out the alleyway in question was not used, the neighbors mowed it. He stated it had been described in one of the Planning Department memos as a "forested alley". He stated an unused alley was a different matter than a street as far as separation from the subject property. Mr. Oleson informed the Board that should they decide the Planning Administrator had erred in her interpretation of the ordinance, then the effect for the city board's 5 to 2 vote granting the zoning change would be reversed. He stated 5 out of 7 was not a 75% vote. Mr. Pete Estes stated he had appeared before the City Board on behalf of the petition for rezoning. He stated he believed it was quite important that the Board of Adjustment be aware of the question of jurisdiction. He explained the question of jurisdiction determined whether or not the Board of Adjustment could do what the petitioner was asking to be done. He stated that on December 3, 1991 the City Board passed Ordinance No. 3582 which rezoned the subject property. He explained that ordinance amended the city planning map, was published in the newspaper and as a result, any administrative decisions made prior to that time merged into the City Board's actions. He further explained that what the petitioner was unhappy with was the outcome of the City Board's action -- that the property was rezoned. He further stated that if the petitioners were aggreived by the outcome of the City Board's action, they had a course of appeal. He stated that appellant procedure was through the Chancerly Court of Washington County, Arkansas, not the Board of Adjustment. Mr. Estes further stated he disagreed with Mr. Oleson's interpretation of the "Law.of the Case". He stated the matter in February, 1991, had been a different case which had been dealt with by the City Board at that time. He stated Ms. Little had made an interpretation based upon the wording of the ordinance itself. He pointed out that most of the city ordinances make reference to notifying the adjacent landowners. He further pointed out the subject ordinance stated and dealt with those immediately adjacent. He stated he agreed with Ms. Little's interpretation. He stated he did not know why the ordinance 12 • • • had been written the way it was or who was to be protected by it. He expressed his belief that, once the City Board voted either to approve or deny, the administrative recommendations no longer existed. He further stated the petitioners' course of address was through the Chancery Court, not to ask the Board of Adjustment to re -vote, re -decide the issue of zoning. Mr. Estes pointed out the petitioner had not come to the Board of Adjustment from the actions of the Planning Administrator but from the actions of the Board of Directors. Mr. Oleson stated it was creative on his part to find the theory of the "Law of the Case" however it did exist. He explained this was not a new matter coming through the planning process. He further stated it had been heard as a "re- hearing". He expressed his believe that the merger theory could be argued in a court of law should the Board of Adjustment rule adversely to Mr. Estes. He stated that Mr. Estes should not care if the Planning Administrator's interpretation merged into the Board of Director's vote. He stated they could reverse the Planning Administrator and it would have no affect on Mr. Estes' client. He explained that through the merger doctrine they would simply be making a statement as to what they thought the ordinance really meant but it would have no effect on the existing case. He stated he did believe it would relate back and change the meaning of the Board's vote. He stated more important was the precidential effect of the Planning Administrator's ruling. He asked if they wanted, in the future, alleyways to create a buffer that kept citizens from exercising their rights. Mr. Ken Smith stated he was one of the people that had engaged Mr. Oleson and he was present specifically for a ruling on the Planning Administrator's interpretation. Mr. Becker stated that Ms. Little had said that she conferred with the City Attorney, Jerry Rose, and they had agreed that an administrative review was proper on this matter. Ms. Little stated that she and Jerry Rose had thought it was questionable and, in light of the question, believed it would be better for the petitioner to have due process through the Board of Adjustment. Mr. Becker stated it was a mute point as to whether the Board should hear it, it was on the agenda to be heard. Mr. Boyd asked how the majority vote versus the three-quarters vote was decided. He stated the Board of Director minutes did not reflect how the decision was made. Mr. Doug Watson, C. F. England and Pat Green spoke in favor of overruling the Planning Administrator's interpretation. The pointed out they had received notification of previous meetings as adjacent property owners. Ms. Little stated it was very common for a buffer to be prescribed to protect residential areas from other types of developments. She pointed out that, even in the ruling made by John Merrell in 1991, it talked about extending 300 feet from the street frontage of such opposite lot. She stated that meant lots that were not 300 feet in depth, would be included but lots deeper than 300 feet would be presumed to have sufficient buffering from the proposed zoning amendment. She further quoted from Mr. Merrell's opinion: "For all practical purposes lots 5 through 12 of Hathcock Addition are immediately adjacent and if the alley were abandoned the properties would be back to back." She further explained that this had been a two year process and none of the adjacent property owners had petitioned that the alley be vacated. Mr. Becker asked why the Board of Adjustment had not received the John Merrell decision with their agenda package. He stated it was apparently pertinent since Ms. Little was now citing from the decision. 13 t. • • Ms. Little stated it was in the Planning Department's files. She explained her interpretation was not based upon Mr. Merrell's interpretation. Mr. Becker stated that by statute Ms. Little was required under administrative review to provide the Board of Adjustment with everything involved in the history of the case. Me. Audrey Peterson, a resident of the area, stated the neighbors had not known they could vacate the alley. She further stated she had not been notified of the last scheduled meeting. Ms. Orton stated she had two questions but believed the one regarding the definition of adjacent had been answered. She further stated there were buffering requirements when a commercially zoned property was adjacent to a residential area. She asked how the screening would be interpreted if the alley was a barrier. Ms. Little stated that it would be in addition to. Mr. Estes stated during the Board meeting they had discussed the screening and there would be fencing. He further stated the adjacent land owners had been notified at all times for all city meetings. Ms. Orton stated that she would see the other property as being adjacent since the alley would be being used by the property that had been rezoned. She further stated an alley was a service to both sides and therefore immediately adjacent to both sides. Mr. Davis stated he believed there was elasticity in terms of adjacent, nearness, etc. He expressed his belief that the criteria was not whether it touched or not but was there some form of negative effect resulting in complaintants suffering loss, damage or an impairment. He pointed out it was impossible to go back to the original writer of the ordinance and know if he was talking about affecting people. He stated if it had a serious effect on people, that was adjacency. He further stated he did not see a 20 foot barrier having any effect. Ms. Mills stated it was not logical to her to change the definition of adjacency in the middle of a case. She stated the rules were established and they should be carried through to completion. She pointed out that the city had always used notification of people across the city street to be adjacent. She further pointed out the city had notified people across alleys. She expressed her belief the city needed to continue the policy until the zoning ordinance was re -written. Mr. Becker stated they had received approximately four administrative reviews since he had been on the Board but this was the first one that had told him how to vote. He read from Ms. Little's report, "Request that you affirm the interpretation of the Planning Administrator for to do otherwise would affect the amendment of the zoning ordinance..." He stated he did not like that, that it put a red flag in front of him when someone told him how to vote on an issue. He stated he believed the original interpretation from John Merrell should have been included in the Board's agenda package and to get it at the meeting did a disservice or could do a disservice to their ability to render a fair judgment. Mr. Becker stated the original request letter had gone to Jerry Rose who foisted it off on John Merrell. He stated Mr. Merrell then came up with an interpretation defining immediate adjacency, point by point. He stated Mr. Merrell had written the letter on February 1, 1991 to Mr. Wright and sent a copy to Jerry Rose. He further stated by acquienence Jerry Rose agreed with and approved the interpretation and, in so doing the city approved. He explained that for 10 months Jerry Rose, representing the city's legal opinion, approved John Merrell's opinion and interpretation. He further explained that at the December 3, 1991 meeting there was a different opinion by a new Planning Administrator and Jerry Rose agreed with the new opinion. ►Lr • Mr. Becker stated they had settled they could discuss jurisdiction. Mr. Boyd stated he disagreed and believed they had no business hearing the appeal. Mr. Becker agreed with what had been said before on the intent and spirit of the ordinance. He noted the new interpretation concentrated on the secondary, modified word "immediately". He expressed his belief that the primary, operative word•was "adjacent". He stated at best they had an oximoron because adjacent said "not touching". He further stated if they granted it was touching, it was still secondary. He pointed out any basic grammar student would tell them that the difference between secondary and primary words would immediately modify. He explained, therefore, that the operative word was "adjacent". He further stated that Black's Law Dictionary defined "adjacent" as not having to touch. He stated the spirit and intent of the ordinance provided the three-quarter clause for the protection of the property owner and general welfare of the property owner. He expressed his opinion that it was a wrong decision to interpret those property owners as not being involved. Mr. Boyd stated he agreed with Mr. Becker if it made any difference. He further stated he did not believe everything that was said by the Planning Administrator in a Planning Commission meeting or a Board of Directors meeting should come before the Board of Adjustment for appeal just because it might have had some effect upon the decision they made. He expressed his opinion that it was the Board of Director's job to decide how they wanted to vote and they might take the advise of other people. He stated that for the Board of Adjustment to second guess the Board of Directors was wrong. He further stated he agreed with Mr. Becker in principle but only if it came before them logically. He expressed his belief that the only time the Board had to decide if the Planning Director was doing something wrong was when the Planning Director's decision, through herself • or subordinances, had an immediate effect upon the public. He pointed out that in the case they were reviewing, it did not make any difference. He further stated he did not believe they had a review process that came into play in this type of situation. Mr. Tompkins stated the zoning ordinance was all based upon nuisance, based upon deveoping an orderly development within a city, a neighborhood, within a block. He stated the intent of the zoning ordinance was to promote the health, safety and general welfare of community at all levels. He stated the last thing was due process. He explained the whole idea of comprehensive planning and the comprehensive zoning ordinance was for the purpose of avoiding nuisance which contributed to the implementation of something in the future. He stated they were talking about the planning process. He stated this was not a unique case. Mr. Boyd stated he did not believe that everyone who got an adverse decision from the Board of Directors should come to the Board of Adjustment because someone made a remarked alledged to be incorrect. Mr. Tompkins stated that under due process that was their right and it was the intent of the ordinance. Mr. Boyd stated he did not believe that was the intent of the ordinance and he did not believe that had to be done for due process. Ms. Mills reminded the other members that the City Attorney had suggested the Board of Adjustment review this matter. Mr. Davis stated he did not know anywhere it said the Board of Adjustment affirmed or disaffirmed the action or an employee of the city. Mr. Tompkins pointed out the Board of Adjustment was to do two things: administrative review of any error or ambiguity of an aggrieved person, property, group, unit or department. He explained that was one of the Board's functions; • the second function was variances. He pointed out they had enabling legislation in the City Charter. Mr. Becker stated it was in reference only to the Planning Administrator. Mr. Boyd expressed his opinion that, if the Administrator's decision made a difference, then it could be reviewed by the Board of Adjustment. Mr. Becker stated there were two points before them, the first being with the Planning Commission. He stated that matter was not in their agenda packet. Mr. Tompkins reminded Mr. Becker that Mr. Oleson had said whether they acted on the first point or not was immaterial. He stated the second point made by Mr. Oleson was a request to reverse the interpretation by the Planning Administrator that Section 160.156(E) did not apply to petitioning property owners in the rezoning of the Parson's property. MOTION Mr. Boyd moved to deny the request for failure of jurisdiction. Mr. Davis seconded the motion. In response to questions from other Board members, Mr. Boyd explained that it was his belief that their powers and duties to hear and decide appeals when it was alleged there was an error or ambiguity in any order, requirement, decision, interpretation, or determination made by the Planning Administrator in the' enforcement of the subject chapter, did not include giving advise to the Planning Commission or to the Board of Directors. • The motion failed with Ms. Mills, Ms. Orton, Mr. Becker, Mr. Meadows and Mr. Tompkins voting "no" and Mr. Boyd and Mr. Davis voting "yes". • MOTION Mr. Becker moved to reverse the interpretation. Ms. Orton seconded the motion. The motion passed with Ms. Mills, Ms. and Mr. Tompkins voting "yes" and Mr. There was a 5 minute recess. Orton, Mr. Becker, Mr. Meadows, Mr. Boyd Davis voting "no". Mr. Becker informed the Board that during the recess Ms. Little had told him, after he had admonished her for not including the Merrell interpretation in the Board's agenda package, that Jerry Rose told her not to include the Merrell interpretation. He stated that was her decision. He further stated that the idea of not including John Merrell's original interpretation had nothing to do with Alett Little, it was Jerry Rose that had said to forget it and not to put it in the package. The Board then recessed in order to complete Board of Sign Appeals business. The Board reconvenened at 6:35 p.m. MINUTES Mr. Becker stated he still had a problem with the minutes in regard to the September 16 meeting. He further stated he remembered specifically saying that the Board had agreed there was no falsification of the record on Becky Bryant's part. He stated that was the major essence of what the Board had said. He stated including that statement was important to somebody's life right now. He \Co • • • further expressed his belief that it was important to the truth of their minutes as they related to that meeting. Ms. Orton stated Mr. Becker had made that comment. She further stated they had not voted on that matter. She stated the correction to the minutes was that Mr. Becker had made that statement. In explanation she stated they had not voted on the matter and therefore it was not a decision of the entire Board. Mr. Tompkins noted that the minutes stated "Various members of the Board had discussed the minutes ..." He asked if they wanted to clarify "various members". Ms. Orton stated it had been Mr. Becker that had made the comment and Mr. Davis had also made a comment. She noted only those two had commented on it. Mr. Tompkins stated he had also made a remark. He stated it was a general discussion item. Ms. Orton stated the term "various members" could stand, that she had not realized that three members had made comments. Ms. Mills stated that as she remembered the others were making comments she agreed with and she therefore did not say anything. MOTION Ms. Mills moved the minutes be accepted as corrected. Mr. Boyd seconded the motion. The motion passed unanimously. Mr. Boyd stated the Board members wanted to express their concern for Freeman Wood. The meeting adjourned at 7:00 p.m. •.. AHR, ROBERT & VIRGINIA (BA93-18) BABE RUTH BASEBALL LEAGUE (SA92-11) BADER, JOE (BA92-17) BADER, JOE (BA92-17) BENTRAL UNITED METHODIST CHURCH (BA95-9) BLAGG, BRENDA J. (BA94-23) BMP DEVELOPMENT,(BA92-8) BMP DEVELOPMENT (BA92-9) BOYD, GERALD (BA92-18, 19 & 20) BOYD, GERALD (BA92-12) BRANCH, MARGE (BA93-8) BRONSON, PHIL (BA92-2) BRYAN, JIM (BA94-35) BRYAN ,JIM (BA94-35) BRYAN, JIM (BA95-4)r_ CANDIDO, JOSEPH (BA94-24) CANDIDO, JOSEPH (BA94-24) CARLISLE, CLEVE & EARL GILBERT (BA93-7) CASTLE DEVELOPMENT:(BA94-6) CASTON, BEN (BA93-17) CHASAR, ELMER (BA93-13) CLARY DEVELOPMENT (SA93-13) CLARY DEVELOPMENT (SA94-10) CLARY DEVELOPMENT (BA94-4) COPHER, CLIFFORD & VANCE (BA93-11) CROSSOVER ASSOCIATES (BA94-10) CROSSOVER ASSOCIATES (BA94-10) 132 89 82 77 309 276 31 32 79 47 109 3 300 302 305 284 281 106 231 130 127 203 292 219 119 238 246 DANIEL, JUSTIN (SA93-1) 100 DAVIS-KELLY, BARBARA (BA92-24) 93 DEMARIS, KEN (SA93-2) 115 DENHAM, MARY (BA94-14) 256 DILLARD, RITA (BA94-3) 217 DUNAWAY, DUB (BA93-28) 190 DYKES, B. K. (BA93-27) 188 DYKES, B. W. (BA94-9) 245 DYKES, B. W. (BA94-9) 244 DYKES, B. W. (BA94-9) 250 ENGLAND, C.F. & M. ANNE (BA93-9) EOFF, JESS (BA93-25) 112 171 : FAKHIMI, SHAWN (BA93-33) 212 FAYETTEVILLE YOUTH CENTER (BA94-32) 297 FIELDS, BILL (BA94-16) 261 FINK, W. D. (BA92-1) 1 FIRST BAPTIST CHURCH (BA93-5) 103 FOX, JOY (SA93-3) 116 GALBRAITH, MIKE (BA93-32) 208 GAZZOLA, PAT (SA94-8) 279 GIBSON, ANDY (SA92-5) 41 GILBRAITH, MIKE (BA94-12) 253 GILBRAITH, MIKE (BA94-12) 258 GRAY, HARRY (SA92-1) 18 HABITAT FOR HUMANITY (BA94-8) 243 HARRIS, DR. FLOYD (SA93-4) 157 HELMER, BILL (BA93-20) 154 HELMER, BILL (BA93-20) 141 HENRICKSON, JOE (BA94-30) 289 HOLLAND, DALE (BA94-18) 267 HOLLAND HOUSE, INC. (BA94-31) 291 HOLMES, MELVIN (BA94-5) 221 • HOUSE, GREG (BA93-6) 105 HUNT, TERRY (BA92-3) 7 HUNT, TERRY (BA93-29) 191 IBM CORPORATION (SA94-2) 229 JOHNSON, DARAN (BA94-33) 298 JOHNSON, DALE (BA93-1) 96 JORGENSEN, DAVID (BA95-8) 308 KAPLIN, NINA (SA94-4) 252 LANGHAM, FRANCES (BA92-25 & 26) 93 LEWIS, HERBERT (BA93-22) 144 LINDSEY, JIM (BA94-13) 254 LITTLE, GARY (BA95-5) 304 LOWE'S (SA93-10) 179 MALCOLM, BRUCE (SA92-9) 58 MARITEN, DOUG (SA93-7) 159 MARTIN, JACK & HOLLY SMITH (BA93-21) 144 • MCCLINTON - ANCHOR (BA93-3) 98 MCDONALD'S (SA92-2) 21 it MCILROY BANK (SA92-6,7,& 8) 43 MERRY -SHIP, ROB (BA94-22) 275 METCALF'S RV PARTS (SA94-6) 271 MYSHKA, DR. JAMES (SA95-7) 311 NOBLES, HELEN (BA94-25) 285 NOBLES, HELEN (BA94-25) 282 NORTH HILLS MEDICAL PARK (SA93-11) 185 OLESON, GEORGE (BA92-4) 9 OSBURN, ROBERT (BA92-13) 56 OSTNER, ALAN M. (BA95-6) 306 OXFORD, RANDLE & MARY (BA95-26) 310 PEARSON, THOMAS JR. (BA92-15) 62 PENNINGTON, MIKE (BA92-12) 57 PIERCE, COLLIER (BA94-1) 215 POOLE, SUSAN & HAL (BA94-36) 302 RANTIS, DARYL (BA92-10) 34 RED LOBSTER (SA92-12) 89 • REVELLE, DARYL (BA93-4) 104 ROGERS, DAVID & CAROL MEADOWS (BA93-24) 163 ROSE, RICK (BA92-16) 71 ROSE, RICK (BA92-16) 75 RYAN'S STEAKHOUSE (SA94-3) 233 • SCHMITT, ROBERT N. (BA94-34) 299 SHAKLEFORD, DOYLE (BA92-11) 46 SHEWMAKER, RICHARD (BA93-31) 199 SOWDER, GLENN (BA94-17) 265 SOWDER, GLENN (BA93-12) 122 SPRINGER, WILLIAM & BARBARA (BA93-10) 181 SPRINGER, WILLIAM & BARBARA (BA93-10) 114 SPRINGER, WILLIAM & BARBARA (BA93-10) 177 STARKEY'S SPORTS CLUB (SA94-9) 280 STILWELL, BRONSON (BA92-21) 84 STOCKLAND, JAMES R. (SA94-7) 278 TEAGUE, BOB (SA93-8) 173 TERNES, ANN (BA95-7) 307 THE ROLLING PIN RESTAURANT (SA93-8) 165 TOBIN, PAT (SA92-10) 73 URBAN, KEVIN (BA94-7) 242 • • • VILLAGE EPICURREAN (BA93-23) 161 WALKER, KIRBY (BA93-19) 152 WALKER, KIRBY (BA93-19) 139 WALKER CONSTRUCTION (SA94-12) 295 WALKER, DALE (BA94-20 & 21) 269 WALMART STORES, INC. (SA92-4) 41 WALMART STORES, INC. (SA93-9) 168 WALMART (SA92-4) 48 WALTON ARTS CENTER (SA92-3) 25 WARD, DANIEL & KATHY (BA94-28) 287 WEST OAKS ANIMAL HOSPITAL (SA94-1) 225 WRIGHT, DEE (SA94-11) 294 YOUTH BRIDGE, INC. 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G_azzo)a y��7l✓wad y;o� — - at,„_,,,,icr 1S{ c-ar-rJjecI Gr ar-P-a o-•"1 .... _Sept_ 19) 9'1 5H- /- 1 St ke15Spar1SC/v6 X217 N,C6//by•___ Nov 7 19LJ 5R -9t1 -l0 SprigiCreoXe.,f-er G37 f fro gc'e A/.7(/ 7 jet - SA_- 9 y- 1) 'Dee W v.i9 k --- •27 5 Co/%9 C- / Lv 7, 99 :!S4-99-[i_Meactoa/la4o_s_S.uk_(icv_ 16 9s 15A-95-, Spor-s PPvk 3 (CIS id. Wazd1hgfioti • i .. C"-- t \ . --\ \ 1 - J . .0 \\ V 12: T E "."V 1 1 1 1 $ 1 . • i Article I: Article II: Article III: RULES FAYETTEVILLE BOARD OF ADJUSTMENT AUTHORIZATION The Fayetteville Board of Adjustment is established in Fayetteville Ordinance Nos. 1747 and 2252, pursuant to Arkansas State Law. ( A.C.A. 14-56-416) PURPOSE OF BOARD OF ADJUSTMENT A. To hear and decide appeals where it is alleged there is error or ambiguity in any order, requirement, decision, interpretation or determination made by the Planning Administrator. B. To authorize such variances from the zoning bulk and area regulations as will not be contrary to the public interest, where, owing to special conditions, literal enforcement would result in unnecessary hardship. MEMBERS AND TERMS A. The Board of Adjustment shall consist of seven members appointed by the City Board of Directors, each for a staggered term of five years. B. Members of the Board may be removed from office by the City Board of Directors for cause upon written charges and after public hearing. • C. The absence of any member of the Board for: 1) three-or..more consecutive meetings .or 2) more than:;one-quarte'r.of a}1'theetings, over a period..of•.one calendar•year may be deemed jjmt cause.fot removal from office. Vacancies shall be filled by resolution of the Ci,ty..Board'6f Directors for the unexpired 4romr of '"the member affected. • Atticle IV: OFFICERS 1 A. A Chair shall ,be...plected'each year;tor a one (1) year' term .commencing on. the first regularly scheduled meeting of the Board after July 1. At: thelast. called or regularly .scheduled•neeting of the-:Board.in June shall, • • • Board of Adjustments Bylaws Page 3 Article VI: Article VII: the official, public record of the Board's proceedings and actions when approved by a majority of the members of the Board present at a regular meeting. QUORUM AND VOTE A. A quorum for the transaction of business shall be four members. Each Board member, including the chair, is entitled to one vote. An abstention shall not be construed either as a vote for or as a vote against the motion. The granting of any appeal or variance by the Board shall require an affirmative vote of a majority of the members present and voting. Any member of the Board who has an economic interest in any property or decision before the Board shall be disqualified from discussing or voting on such matters. B. These rules may be amended or modified by an affirmative vote of not less than five members of the Board. CONDUCT OF MEETINGS A. All meetings are open to the public unless the Board is in executive session. No official business shall be transacted during executive session, except privileged matters relating to personnel as allowed by law. B. The Board or members may, at any time, confer informally with staff members. No business shall be transacted during such informal meetings. C. Meetings shall be conducted informally. The Chair shall make all rulings and determinations regarding the admissibility of evidence, the scope of the inquiry, the order in which evidence, objections and arguments shall be heard, and other like matters, except that any member shall be privileged to make inquiries personally and to call for a vote on any ruling of the Chair with which she/he does not agree, whereupon the vote shall determine the effectiveness of the ruling. The Chair shall expedite all hearings, confining them to the presentation of only • Board of Adjustments Bylaws Page 4 essential matters in the interest of saving time, but entertain the presentation of sufficient matter to do substantial justice to all concerned. Final or official action shall be taken only in regular or special session of the Board of Adjustment after a hearing. D. Each meeting of the Board at which applications for variances or appeals of decisions of the Planning Administrator are heard shall be divided into (1) a public hearing portion, and (2) a deliberation and decision portion. Any member who intends to abstain when the vote is taken shall make this fact known when the Chair announces the public hearing on a request and shall not participate in any aspect related to that request. During the public hearing portion the applicant or appellant or his or her representative shall be given an opportunity to explain the written application or appeal previously filed and all other persons present at the meeting shall be allowed to comment for a reasonable period of time. Any member of the Board may question any person who has spoken during the public hearing. Applications and appeals shall be called for hearing in the order presented on the Board's agenda published by the Planning Administrator. After the public hearing has been held regarding each application or appeal presented at the meeting the public hearing portion of the meeting will be terminated and the deliberation and decision portion will begin. The Chair may permit variations in the order of presentation, in the event the Chair deems it expedient or otherwise justified. Although the deliberation and decision portion of the meeting shall be open to the public, comments from the applicant, appellant or others, not members of the Board, who may be present will generally not be permitted during the deliberation and decision portion unless specifically invited by the Chair. E. No application for a variance or appeal shall be deliberated or voted upon by the Board unless the property owner is present in person or by a duly authorized agent or attorney and the application or appeal shall automatically be denied without consideration by the Board. Board of Adjustments Bylaws Page 5 F. Roberts Rules of Order will be followed for parliamentary procedures insofar as they are applicable and do not conflict with Arkansas State law, Fayetteville Ordinances, or these rules. Article VIII: COMMITTEES The Board of Adjustment may establish such standing, special, or advisory committees as deemed necessary. Members of such committees may be persons other than members of the Board of Adjustment, but a member of the Board shall be named Chair (either active or ex -officio) of such committee. Article IX: DETERMINATIONS The Board may grant or deny the requested variance or appeal. In granting a variance or appeal, the Board may attach conditions or it may grant a partial or "lesser" variance or appeal than that requested if the Board concludes that such would be more consistent with provisions of the Zoning Appendix and/or having less impact on the surrounding property. Article X: REHEARING A rehearing should be for the sole purpose of calling attention to a factual error, omission or oversight. A request for a rehearing must be submitted to the Planning Administrator in writing and must state the basis for requesting a rehearing. The Board may permit a rehearing upon a majority vote of the members present at the meeting and under such conditions as the Board may require including payment of the cost of re -advertising and renotification of interested parties. Article XI: WITHDRAWALS No application or appeal which has been docketed for public hearing and advertised shall be withdrawn. Article XII: DEFERRAL No application which has been docketed for hearing and advertised shall be tabled or deferred except Board of Adjustments Bylaws Page 6 as follows: 1. In the public hearing, the Board may for cause defer an application on it's own motion. 2. If re -advertising and renotification of property owners is required, the applicant or appellant shall bear the burden of that cost. Article XII: APPEALS Any person or persons, or any board, taxpayer, department or board of the city aggrieved by any decision of the Board of Adjustment may seek review by a court of record of such decision in the manner provided by state law. • These rules adopted by the Fayetteville Board of Adjustment on this ,t4s/1day of +a 2L , 199/ • • Mr Don Mills, Chair • 1 CITY OF FAYETTEVILLE POSITION DESCRIPTION POSITION TITLE Member, Board of Adjustment Member, Board of Sign Appeals BASIC FUNCTION To hear and decide appeals where it is alleged there is error or ambiguity in any order, requirement, decision, interpretation or determination made by the Planning Management Director. To authorize such variances from the zoning bulk and area regulations as will not be contrary to the public interest, where, owing to special conditions, literal enforcement would result in unnecessary hardship. To hear requests from the literal provisions of the sign ordinance where strict enforcement would cause practical difficulties due to circumstances unique to the individual sign under consideration. TIME REQUIREMENTS This position requires your attendance at two meetings a month - the first and third Mondays. These meetings begin at 3:45 p.m. and continue until all business is finished. You will need to allow for additional time to review each agenda packet, do necessary research, and tour each property on the agenda. You will also need to be prepared to sit on standing or temporary committees from time to time. REQUIRED SKILLS The most important skills are: 1) a commitment to become thoroughly educated about the ordinances you will be governing, 2) a basic understanding of planning and zoning concepts; 3) an ability to understand and synthesize compl4x regulations;' 4) an open-minded, impartial approach to decision making; and 5) an ability to deal with sometimes volatile situations' -in a professional, courteous manner. Backgrounds in architecture,urban planning, law' -Mid construction fields are helpful but not necessary. MAJOR CHALLENGES The major challenge is to:deal with requests for variances 1n1w08 that serve the public health, welfare and safety. You1mtijt represent the public interest not the interests of certain segments - Position Description Board of Adjustment/Sign Appeals Page 2 of the public or single individuals. DECISION MAKING AUTHORITY With regard to requests for sign variances, the Board of Sign Appeal's decisions are final, unless appealed to the Board of Directors. With regard to appeals of interpretations of the Planning Management Director or variances from zoning bulk and area requirements, the Board of Adjustment's decisions are final, unless appealed to the appropriate court of law. CONTACTS This position involves a moderate amount of public contact, including media contact once in a great while. HAZARDS You must be conscientious about avoiding all conflicts of interest and conflicts of office.