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HomeMy WebLinkAbout1996-11-18 MinutesMINUTES OF A MEETING OF THE • BOARD OF ADJUSTMENTS AND SIGN APPEALS • A meeting of the Board of Adjustments and Board of Sign Appeals was held November 18, 1996 at 3:45 p.m., Room 324 of the City Administration Building, 113 W. Mountain St., Fayetteville, Arkansas. MEMBERS PRESENT: Thad Hanna, Michael Andrews, Paul Wilhelms, Marion Orton, Larry Perkins, and Bob Nickle. STAFF PRESENT: Alett Little, Bert Rakes, Rich Lane, Heather Woodruff, and LaGayle McCarty APPROVAL OF MINUTES The minutes were approved as distributed. NEW BUSINESS APPEAL NO. BA96-28.00 JOHN LA TOUR- 400 N. OLIVER ST. The first item on the agenda was submitted by John LaTour for property located at 400 N. Oliver Street. The property is zoned R-1 and contains approximately 0.5 acres. The appeal is for a review of the decision of the planning administrator as to what constitutes a dwelling unit. Mr. Perkins began the meeting by explaining the procedure that the meeting would follow. Mr. Boyd stated that most of the material that would be presented would be oral conversations and they would have to rely on people's testimony rather than written documents. He added it was allowed by the ordinance for the chairman to require an oath from the people testifying. He requested that the people who would be testifying do so under oath. The board agreed and Mr. Boyd swore in the group. Mr. Perkins stated that everyone was under oath. Ms. Little stated the reason they were here today was to talk about an addition to a single family home at 400 N. Oliver Street. It was in an R-1 district. The primary issue today was what constitutes a "single family" and what could occur that would cause the residents of the building to not be a single family. The purpose of an R-1 district as stated in the City Code of Ordinances (§I60.031, pg 114) claims "The Low Density Residential District of four families per acre or less in the case of single-family homes and seven families per acre or less in the case of two family dwellings is designed to permit and encourage the development of low density detached dwellings in suitable environments, as well as to protect existing development of these types." She thought there were two key issues: what is permitted, and why it is designed to be that way. What was at issue, and what they had been trying to decide, was whether within the large addition to the existing house, there were any separate, independent dwelling units which violate the zoning code, because only one dwelling unit was permitted on the lot. The determination of whether there were separate dwelling units had come down to areas on the third floor of the addition which appeared to her to have sufficient facilities to constitute two additional separate independent dwelling units. The best way she could describe it to the board was to refer to page 1.73 in the agenda packet. It was a diagram submitted by Mr. LaTour as an addendum to the building permit. After talking with Mr. LaTour, she had requested a set of plumbing plans because he had said there would be several sinks external to bathrooms. She had asked for a complete set of plumbing plans and this was what she was given. It was not really what she considered to be a complete set of /r9 • • Board of Adjustments November 18, 1996 Page 2 plumbing plans, but it was enough for her to get a general idea of what Mr. LaTour was trying to accomplish. When she looked at the plans, it became clear to her that they were separate independent facilities. The code definition which was set out in the handout and in the code book stated the definition of a dwelling unit: they must be physically separated and there must be independent cooking and sleeping facilities. The presence of the sink on the third floor in each of the living areas was enough to make it an independent cooking area. There was a pantry shown and a refrigerator and several other things. Couldn't a pantry be used for storage or a refrigerator be moved? She knew there were several instances where refrigerators were allowed in University dorm rooms, but it did not constitute an independent dwelling unit. She explained why they would require the sink to be removed at this point. As Planning Administrator, it was her job to oversee the zoning code, correct violations that occur, and prevent violations if possible. In this case, it seemed to her that there was a potential for violation becauseit sets up a situation for there to be multiple dwelling units. She read §160.190 of the City Code: "He shall order discontinuance of any illegal work being done or shall take any other action authorized by this chair to insure compliance or prevent violation of this provision." She believed that the code was saying someone might tell her they were not violating the code and build two or three dwelling units or a commercial unit in a residential area The code recognized that once that investment is made, there is a problem in getting it corrected. Therefore, the code is giving the Planning Administrator the power to prevent violations from occurring. It was her opinion that if the sinks were allowed to remain in this location, she would not have done her duty under the code because she would not have prevented a violation from occurring. Mr. Wilhelms questioned if the building was roughed in for the plumbing and the sinks. Ms. Little stated it was her understanding that it was. Mr. Boyd asked if there was a complete set of construction plans. Ms. Little stated there was not. Mr. LaTour stated there was not. Mr. Boyd asked if all the plans had been done on the back of an envelope. Mr. LaTour stated he had drawn a rough set of plans, four pages- four storeys. He was not an architect, but he drew them to scale and they did exist. They were not what he described as a complete set of plans. It had been built from those. Mr. Boyd asked if there had been any detailed layout of rooms. Mr. La Tour stated there were floor plans and that was what they had. Mr. Boyd asked how he built the structure without plans. Mr La Tour stated that his carpenter encouraged him that he did not need an architect because it was a simple structure. As he discovered, architects and builders did not get along that well. Architects tended to draw things that could not be built. He had been encouraged that together, the builder and he could build the structure without a complete set of architectural plans. He did have a friend and former neighbor that was an architect, and hehad used him as a consultant. Mr. Boyd asked if these plans existed at the time they built the addition. • Mr. La Tour stated basically they had, but there had been some changes. • • • Board of Adjustments November 18, 1996 Page 3 Mr. Boyd stated the plans that had been submitted did not show anything. Mr. Hanna asked if the structure would be legal if the sinks were not an issue. Ms. Little stated it would, as far as she knew. Mr. Hanna commented that the only thing they were to decide was whether or not the sinks were allowable. Ms. Little stated when she looked at the plumbing plans and saw the layout and the location of the sink in the living area it constituted a kitchen in her eyes. They normally did use that word when they counseled people. To her, it looked like a kitchen, and the presence of that area made it a separate dwelling unit. That was the item they would key on. They looked at sinks all the time, but they were in bathrooms. When they saw other kinds of sinks,they had to question its purpose in order to determine whether it could constitute a violation. Mr. Boyd asked if the kitchen cabinets were as extensive as they were shown on the diagram. Mr. LaTour stated there were no cabinets installed at this time, but they were ordered and they were extensive. Mr. Boyd asked if, in her opinion, the addition and the rent housecould be sold without any further action by the Planning Commission. Could it be sold independently of the main house? Ms. Little stated it could be sold independently of the main house. It was on a separate lot, and everything that was in the existing structure, including the addition, constituted one single family dwelling unit. Mr. Perkins commented there were tenants living in the existing rental property , and the new structure was intended to be a dormitory for domestic help. Ms. Little stated that was correct and it was also to be guest quarters. Mr. Perkins questioned whether the established cooking facilities were in the existing rent house. Ms. Little stated the allowed cooking facility for a single family dwelling was in the rental house. Mr. Boyd asked where they got past the requirement that dwelling single family, detached residential dwelling unit other than a mobile home designed and occupied by one family only. He asked who the "one family" would be. Ms. Little stated it would be the people in the rental house. Mr. Boyd asked if they were going to occupy the entire structure. Ms. Little stated they were going to occupy what they were currently occupying. Mr. Boyd stated if the addition was to the rent house, it became one structure and one single family residence. If it was one structure, it was to be occupied by only one family, according to the definition of family. The definition of family included "domestic servants employed on the premises." He stated that it was not on the premises because they would be employed next door. Ms. Little stated that he did own both properties and when a person owned both properties, they would consider them one property. From that standpoint, they had told him that the domestic employees could live in the house. Mr. Boyd asked if Mr. LaTour could rent the space if he sold the addition. /20 • • Board of Adjustments November 18, 1996 Page 4 Ms. Little answered only so far as it met the definition of family. There could be three unrelated persons living in the entire structure and that would fall under the definition of single family dwelling unit. She had been definite in saying that if he moved from his primary residence at 410 Oliver, he would lose the privilege of using 400 Oliver to house servants and employees. Mr. Perkins tried to clarify that they had a family in the existing house, and it appeared there was room for three people in the addition, so by definition, there would be two families living there. Ms. Little stated they had to accept the provision " that domestic servants employed on the premises may be housed on the premises without being counted as a family or families." The only part of that interpretation that was debatable was whether the house at 400 N. Oliver was'on the premises of the house at 410 N. Oliver. Mr. Boyd asked if there was a copy of the decision concerning the easement. Ms. Little stated there was a dotted line showing a forty foot right-of-way in the east -west direction and there was also a dotted line showing a fifteen foot easement that ran a hundred feet. When Mr. LaTour had spoken with her, he had told her that the forty foot right-of-way had been vacated and she had then written on the plat page "vacated in the 80's ?" but that was as far as she had gotten on researching the vacation. At the time, they were discussing if he had enough frontage and if he could build a separate unit. Mr. Boyd asked if it existed or not. Ms. Orton remembered it had been a right-of-way for Halsell Road to go from the end of Halsell to Razorback Road. The University had built parking lots across the bottom of the hill, cutting off the right-of-way. It had been a usual path for students and staff who lived on the hill. When the LaTours moved into the home, Mr. LaTour asked for the right-of-way to be vacated. At the request of the neighbors, he had only vacated part of it. Ms. Little clarified that the entire right-of-way was not vacated. A portion of the right-of-way had been maintained. Mr. Boyd stated that the definition of a lot included "it shall have frontage on an improved public street." He asked where the improved public street was. Ms. Little stated there was no improved public street, but there was an existing dwelling unit. Mr. Boyd stated it would possibly be a nonconforming use, but in his opinion, the two lots should actually be considered one lot, with the 400 lot not being a real lot, but part of the 410 property even though they were described separately. He thought it was a nonconforming lot and what they had was an expansion of a non -conforming lot. Ms. Little stated the exception that, if it was one lot, as she interpreted it, §160.112 provided that "in any district, more than one structure housing a permitted principal use may be erected on a single lot, provided that the yard and the other requirements of this chapter shall be met for each structure as if they were on an individual lot." Mr. LaTour was meeting the setback. Mr. Boyd stated the lot did not have a front yard. Ms. Little stated it did have a front to it and it did meet the required 25' setback from the right-of-way. It did have approved frontage because the house at 400 N. Oliver had frontage. Mr. Boyd stated it was possible to split it off and sell it in the future, creating a tandem lot. When they started • looking at it, the problem was not as simple as two sinks in a room. /21 12Z Board of Adjustments November 18, 1996 Page 5 Ms. Little stated the project had evolved and changed. With each change, there were new things to be considered. Ms. Orton stated the house at 410 Oliver, where the LaTours were currently living, had been added to, and later the adjacent property had been purchased. Access to the house had been through their driveway. These had been two separate lots at one time. Mr. LaTour stated they were two lots, and he had purchased them separately. Mr. Boyd stated someone could own two separately -purchased 40' lots that adjoined each other and they would become one lot, because you could not build on a 40' lot. Ms. Little stated they were required to consider them that way. If a person owned two non -conforming lots, they were required to consider them one piece of property. Ms. Orton clarified that the lot that was non -conforming was the one on which the rental house was sitting. Ms. Little stated the only thing that would make it nonconforming would be the inadequate frontage. Adequate frontage for a single-family residence had to be 70' of frontage on a public street. The house at 410 Oliver was a corner lot and it had frontage on two streest. Since it had the double frontage, it met the frontage requirements. The division process might be strange, but speaking pragmatically, the house was there, it was a separate lot, and if Mr. LaTour decided to sell the property tomorrow, they would be hard pressed to tell him he could not sell it. On the other hand, if he did not come to Planning, but went to the Court house to file it, it was already a separate lot and could be done. Mr. Wilhelms commented that the lot that the addition was built on was wide enough to be two lots anyway in an R-1 zone. Ms. Little stated she might have been misleading, or not spoken clearly enough, but the lot that the addition was on was an addition to a rent house. Her comments about having two structures on one principal lot were to qualify whether or not 410 Oliver and 400 Oliver should be considered one lot. If they were, then there could be more than one principal structure on the lot, so long as they were meeting the requirements of the overlaying zone. Mr. Andrews had a question in reference to page 3 of the packet. "At the onset of the project, she and Mr. LaTour discussed that Mr. LaTour could not place a stove in the new structure because it would constitute a duplex. He agreed that he would not install a stove or oven. He had asked about sinks and she had replied they would be no problem." He asked her to clarify why she was contradicting herself now. Ms. Little stated that Mr. LaTour was saying she did not use the word kitchen. When they typically interpret code for people, they do not directly reference the code all the time because they remember the code. The word they use to tell and explain the code is the word "kitchen". She had told him he could not have a kitchen and absolutely could not have a stove. He had asked her about a sink. She had responded that generally they were no problem. There were people that had wet bars and there were times when they were permitted. She did not know if she said they would be no problem, and certainly did mean to convey that. She did not know if she used those words or not, but even so, at that time, she had no idea that Mr. LaTour was talking about 10 sinks in addition to 4 bathrooms. Mr. Andrews asked if she had any plans at the time of the conversation. Ms. Little stated there were no drawings; it had been conversation only. She added she did not believe Mr. LaTour knew that he would have that many sinks. Mr. Andrews did not believe the number of sinks mattered; the problem was the separated kitchen facilities. • • • Board of Adjustments November 18, 1996 Page 6 Mr. Hanna asked, in reference to the letters, if she or Mr. LaTour had come up with the idea of the connecting walkway. Ms. Little stated they had talked about it. At first, he had wanted to build a separate structure. They could not find a way for him to do that. She remembered him saying he had spoken with an architect friend, and his friend had said they had used covered walkways all over town. She disagreed with Mr. LaTour at that point, because they had only done that in one other case, and it was for Daryl Rantis in a case where they were constructing a duplex. She did remember discussing it, but who came up with the plan she did not know. She would have to say they came to this plan because they did not want to attach the addition directly to the existing building. Her job was to help people do what they wanted to do with their property, if they could find a way to do it within the codes. At that time, they were trying to find a way to help Mr. LaTour build what she thought would be a bus garage with a room for a domestic servant. She remembered it as being one domestic servant at that time. Mr. Boyd stated that the purpose of the connection was so they could not split the property. Mr. Hanna commented if Mr. LaTour had wanted to, he could have gone in and cut the land away and built the addition onto the existing building. Ms. Little stated he could have, but with much greater expense and erosion. Mr. Perkins asked if there were any other questions for staff. Mr. LaTour stated the meeting they were discussing had been on April 19, 1996, when he first approached Ms. Little with his idea of building a garage with living quarters above it. He had several points he wished to make about the conversation. Some of what Ms. Little had said he agreed with. She had handled all their disagreements very professionally. His house was not a typical single family house. They had designed the structure so it could accommodate several functions that they did not have in their existing single-family house next door. He was not familiar with the definition of lots or the intricacy of the zoning code. He depended on the city staff to guide him and tell him what the law was. The main purpose of the building was a bus garage. He had a motor coach and they traveled. Their motor coach was now parked at the bottom of their driveway. The hill that they lived on moved a lot. He had a representative present from Sentinel Foundation, the company that poured the foundation for the structure. They had done a lot of foundation work on the hill and had gone to a lot of expense to build the foundation. They decided that they would spread the cost of the foundation over more than one function. Why just have a garage? Why not add some living quarters above it? He and his wife had three small children, ages three and under. They often needed help, and they currently employed 10 young ladies to babysit. They had planned to hire a student with a set schedule to live on the premises without charging her rent and have her work for them in exchange for the housing. They thought it would be a great accommodation for the student as well as their growing family. Thus, they entered into the plan of having living quarters above the garage. They also traveled, usually a couple of months a year. They had other property in other states, and both of them were from out of state. Thus, he wanted a separate living quarters for a male student to oversee the property when they were gone. That was the reason for the separate living units on the third floor. The first two floors of the structure were made up of the bus garage, which was approximately 12' tall. They also had on the first floor a work shop facility for himself and some storage area. There was also a sink room for their shaved ice business. They mixed flavors and the State Department of Health required them to have certain sinks. That was a later addition, an afterthought that was added after they had begun the building process. They wanted to get the facility on the premises so his family could mix the flavors. There would not be any traffic generated by that activity so it was not illegal in a residential neighborhood. He questioned the process. He did not know all the rules, but he did know what he had been told and that was what he had been relying on throughout this process. He questioned whether or not Planning had the right to approve plumbing in a house. He had not applied for the plumbing permit. His plumber, Delbert Raymer, had applied for the permit from the Inspection Department. To his knowledge, Planning did not review or critique a permit or application in any way. The Inspection Department was issuing the permit. He hired a plumber who roughed in the plumbing for the X23 • • Board of Adjustments November 18, 1996 Page 7 fixtures, and then Planning came in after the fact and said the fixtures did not belong there and they would have to be removed. He asked what a citizen was to do. It seemed to him that if Planning was to be involved in the process, then the rules needed to change to involve Planning in the process and he needed to get a signature from the Planning Department before it was issued. If they did not do that, they would have more situations like the one he was caught in where he had relied on the permit and acted on it and another city department would come back and say it did not belong. He asked what a citizen should do when caught in that situation. What is a dwelling unit? He had looked at this part of the code § 160.02. He commented they had read it before and called notice to the "three -pronged" definition Ms. Little had pointed out. The qualifiers were joined by "and." It was anoint connection, and each one of those components had to be proved in order for a structure to qualify for the definition. If only one of the elements was present, the structure was not a dwelling unit. In their April 19 meeting, Ms. Little had told him he could not place a stove or an oven in the new addition because there was already a stove and oven in the existing rent house. They were calling the new structures one unit because they were joining them with the walkway, and to have separate cooking facilities would constitute a duplex in R-1 zoning. He understood it and he was familiar with this definition. He agreed and he would not put in a stove or oven. They had built a 5,300 square foot addition, and they did not plumb or wire or place a stove anywhere in the building. They did, however, rough in the plumbing for the sinks on the third floor. He reminded the board to keep in mind the purpose of the third floor. It was for the domestic employees who were going to live on the premises and work for him and his wife. They were living quarters and he did not envision the students cooking meals or needing a stove or an oven, but he did believe they would have snacks, that they would have pizza ordered in or make sandwiches and cut apples. Clearly they needed a sink to clean their snack dishes. It was for their convenience, comfort, and hygiene. He addressed the employee issue: they were not tenants. He had committed to the Planning Deparment to submit financial disclosure for a fixed period of time for everyone he called a domestic employee and that would work there on the place. They were lining up people now in anticipation of finishing the building. Mr. Nickle asked if he would issue them a W-2 or a 1099 or the appropriate tax item. Mr. LaTour stated the tax codes exempted employees' income or the fair market value of housing provided by the employer, so long as the housing is provided for the employer's convenience and was made part of the contract. The only value his yard man and security man would have to him is if he lives with him on the premises. He was requiring anyone who would work for him in this capacity to live on the premises. The nanny did not have to live there, but it was for their convenience that she would live there so if Mrs. LaTour had to leave the house during the day, there would be someone there to come take her place with the small children. Mr. Boyd asked him how he expected them to eat if they could not cook. Mr. LaTour asked how college students usually ate. Mr. Boyd stated they usually had dorms and cafeterias. Mr. LaTour stated they were next door to campus so they could have meal tickets on campus. He expected them to have sandwiches and snacks or eat out He did not believe they would be cooking. Mr. Boyd asked if there would be a microwave. Mr. LaTour stated there might be. He would say that a microwave would facilitate cooking food. His lawyer would say that the term "facility" had a different connotation. He would question the City's ability to regulate a coffee pot, toaster oven, or a microwave or any appliance that would sit on a kitchen counter. He told him "facility" means installed, permanent, and not sitting on a counter. • Mr. Boyd asked if a hot plate would be a facility. 21 • Board of Adjustments • November 18, 1996 Page 8 Mr. LaTour did not believe that in his attorney's estimation that a hot plate or any of the appliances that sat on the counter would be a cooking facility. Mr. Boyd commented that when you put together a room with a lot of cabinets, a refrigerator and a sink, pantry, hot plate and a microwave, it sounded like a kitchen to him. Mr. LaTour stated the code did not say kitchen facility. It was pivotal, he had been told. The staff had made general use of the term "kitchen facility." In his conversation with the staff, "kitchen facility" was not used, it was "cooking facility" that was used. This was the correct term and the one which was used in the code. Mr. Boyd stated cooking was more than just heating. Mr. LaTour stated cooking was heating. A sink was a cleaning facility. He had cooked in places without sinks when they went camping. If you say a sink is an integral part of the cooking process, you would not be able to cook without it because the cooking process was dependent on that item being in existence. He did not think a sink had that relationship to a cooking facility. A lot of times sinks were used in the cooking process, but it did not make a sink a cooking facility. It was a fine definition and a subtle difference. He did not know if he would be able to convince them that the code said cooking facility, but it was there in black and white. He had not put in a cooking facility. He had obeyed what he had been told. He had obeyed the law. He obeyed the directions of the Planning Deparmentt. What had happened was that he had applied for a plumbing permit, or his plumber had. He received the permit, they acted on the permit and installed the plumbing for the two sinks. That was what the appeal was about: the two sinks. • Mr. Boyd asked what he had to turn in to receive a plumbing permit and did he have to submit plans. • Mr. Rakes stated he did not have to submit plans on a single family residence because they were exempt from plans. The plumber would come in and tell them how many fixtures they would have, or they would mail in a permit application. If his license and insurance was in order, then he would be issued a permit. Mr. Boyd questioned if he would check to see if they were built according to the southern building code. Mr. Rakes stated for plumbing it was the State Plumbing code. Mr. Boyd asked if the use of the fixtures was one of their concerns and if it mattered whether it was going to be used for a kitchen or bath. Mr. Rakes stated it was not in a single family. Mr. Nickle clarified they applied for an X number of units and as long as those unit numbers were not exceeded then they were in compliance with the permit. Mr. Rakes stated they charged per unit for the fee. Mr. Nickle clarified if there were more fixtures installed than applied for, then that would be a violation. He asked if all the fixtures had been applied for. Mr. Rakes stated that was correct, and the permit had been revised to include the added fixtures. Mr. LaTour stated the project had grown. They had not always planned to have a fourth story; they were going to have an attic instead. When they planned the third floor, he had climbed up with a friend and they realized what a beautiful view they would have. He and his wife then decided not to waste the best view in the house as storage. 2S Board of Adjustments • November 18, 1996 Page 9 • • They decided to use the bottom level as storage and use the upper portion for a study and a recreation area for the children. The building would incorporate the functions that they lacked in their home next door. Mr. Boyd asked how big his motor home was. Mr. LaTour stated it was 31' long. Mr. Boyd asked why it would need a 60' garage. Mr. LaTour stated they did not know if they would always own this motor coach. They had upgraded before. Mr. Boyd stated they could not get around the turn. Mr. L Tour stated they had engineered it so they could get it around and down the hill. If not, he would be disappointed after spending this much money on a garage. Mr. Boyd asked if he depreciated his rent house. He asked what he intended to do about the addition. Mr. LaTour stated he had not come to a firm conclusion, but he did not believe he would be depreciating it because he would have a hard time showing a business use or an income for the units, since the people that would be living there would be domestic employees. Expenses they incurred in the hire of domestic employees was not a deductible expense. Mr. Boyd asked how the utilities would be billed. Was he using the rental house's gas, electricity and water? Mr. LaTour explained what they had done to facilitate his family occupying the addition, which by definition included his domestic employees, his study and the children's recreation room, the store room, and their guest quarters in the new addition. The utilities were set up now so that the old rent house and the new addition would share the water and sewer. They were wiring it so the electricity and gas would be separate. The tenants that lived in the rent house would pay their bills and he would pay the bills for the addition. Mr. Perkins asked what the access would be from floor to floor. How was that constructed? Mr. LaTour stated they were stairways. Mr. Perkins asked if they were open to each of these areas. Mr. LaTour stated they could go from the basement to the fourth floor. Mr. Perkins asked if there was a corridor that contained a stairwell that would segregate it from each floor's dwelling space. Mr. LaTour stated they had intended the employees would have access to the third floor; the fourth floor was his study. There would be a lock on that door. There was some open space on the fourth floor. Mr. Perkins asked if he could climb stairs and get off on any floor without going through doors. Mr. La Tour stated it was not just one stairwell. There was one stairwell that went to the first and second floor, then you would have to go through the guest room to get to the next stairwell that would go to the second and third floor and then it continued on to the fourth floor. i2" • • • Board of Adjustments November 18, 1996 Page 10 Mr. Boyd noticed that he had been using the term domestic employee rather than servant as used in the code. He asked if he distinguished between the two. Mr. La Tour stated he did not, he found the term "servant" not current and demeaning. Mr. Boyd asked how much a domestic employee would have to work in order to qualify as a domestic employee. Mr. La Tour stated the code did not define that. They were intending on their domestic employees working 15-20 hours per week. Mr. Boyd commented a student working 15 hours a week was going to be living there and getting free rent and they would also be paid a salary. Mr. La Tour stated they were not anticipating paying a salary, they were anticipating the compensation being a house next to campus. Mr. Wilhelms asked if he would be residing at the 400 structure or the 410. Mr. La Tour stated they would be living the 410. Mr. Wilhelms commented he would not be living in the addition to the building. Mr. La Tour stated it would depend on his definition of living. His study was there, his work shop was there and the children's recreation was there, the only access they had to a porch swing was there. They would be in the facility every day. If they defined living as sleeping and eating, they would not be doing that there; but, they would be in and about the property all the time. Mr. Perkins stated he had used a word earlier; what did he mean that he would have "disclosure" for a fixed period of time. Mr. La Tour stated he had committed to tell the city for one year the financial relationship between him and his employees. This was an attempt to satisfy his neighbor's concerns that they were using this as rental property. Although it was attached to a rental house. He had many times offered the City both written and verbal assurance that he would operate the property according to the code. He realized it was subject to some interpretation. One of the city council members wanted to intrepret the family definition as being either three unrelated individuals or one family. He contended if the codewas interpreted that way, then the foreign exchange program would be illegal, because there would be an unrelated individual living in a home with a family. He advised he did not believe that was what the code meant. Mr. Boyd stated a single family dwelling was a home designed for and occupied by one family only. Mr. La Tour stated the family was himself, his wife, their children and their domestic employees. Mr. Boyd stated the property in question was the rent house and the addition. He stated Mr. La Tour was dwelling on one phrase in another section; but R-1 allowed a single family dwelling to be occupied one family only. He asked who the family was that was going to be living there. Mr. La Tour stated the addition would be occupied by his family and domestic employees under the code of the definition of a family. Mr. Boyd advised he did not say "the addition"; the property was the house and the addition. • • Board of Adjustments November 18, 1996 Page 11 Mr. La Tour stated with his interpretation of the term "family", they could have one family with up to three unrelated people also residing theret. Ms. Little had told him he could continue to rent out the old rent house to the people who were living there currently and other tenants after they moved out, but he could not rent the new addition. He was not trying to rent out the new addition, it was for his own family use. Mr. Nickle asked if his interpretation was correct. If he occupied 410 and, because the addition to 400 would house domestic employees, were they interpreting the addition part of 400. Ms. Little stated the key to it was "on premises". The definition of family was that it could be one group of related people or three unrelated people "on premises". She pointed out the code stated it was "or" not "and"; together with the addition that"domestic servants could reside on premises. She advised that, in order to get domestic servants serving in 410 Oliver to reside at 400 N. Oliver, they had to regard both 410 and 400 as one premises. Mr. Boyd asked what constituted a domestic servant, could they work one hour a week. He thought it should be full time. Mr. La Tour stated it would be hard for his family to justify the expense of a full time employee. Mr. Boyd asked why there were two bedrooms on both sides (a total of four bedrooms) for servants. Mr. La Tour stated they anticipated college students living in the living quarters as their domestic servants. He added that, from time to time, they would have guests. He stated he did not anticipate the guest staying more than a weekend. He added the old rent house was one bed room and he knew how impractical it was. His tenant parents just came to stay with them and they had to stay at the Clarion Inn because there was no room in the house. Now that he was building an addition, he did not want to duplicate the situation. If he had a student living there, and their parents come up for a foot ball game, he would want them to have a place to stay. Mr. Boyd stated there could be four students working part time at domestic service and each of them would have their own room. Mr. La Tour stated there was economic incentive. He had quite an investment in the building project. He was not liable to tell someone they could live rent free and do anything around the place. He had a strong economic reasons to make sure they were working their work schedule. The purpose of the living quarter was to provide his wife some relief from babysitting chores. Mr. Nickle stated they were looking at the number of sinks, regardless of the number of people that might or might not be visiting at one time. Mr. Wilhelms stated they were getting to a point where they need to decide if they were separate dwelling units. Mr. Nickle commented students could go ahead and live there without the sinks. Mr. La Tour stated they could and that was an option; there were other sinks in the building, but they weren't as convenient. Mr. Nickle stated he was asking for a ruling on whether or not the sinks could be allowed. Mr. Boyd stated if Mr. LaTour's request was upheld, at some later date, new owners would come in and asked why they could not rent the rooms since they were obviously apartments. Mr. Nickle thought they could make the same case if the sinks were or were not there. �2$ • • • Board of Adjustments November 18, 1996 Page 12 Mr. Boyd contended that, iIf Mr. LaTour had had a complete set of building plans from the beginning and had showed them to Ms. Little, she would have know exactly what he had been talking about. Mr. La Tour stated he had a copy of the building plans he had submitted on April 19 to Ms. Little with a rough drawing of the third floor. He advised there were two living areas and two bedroom areas which had been divided into two areas with two baths and closets. Mr. Boyd pointed out there were two more bedrooms below them. Mr. La Tour stated the two rooms below were guest bedrooms. He explained in his current househe had two spare bedrooms. They had three small children that lived downstairs in the nursery and a small child bedroom down stairs and, as those children grow older, they would occupy the two spare bedrooms. At the present time, their guest stayed in the two bedrooms when they came to visit and, as the children grew older, he was trying to plan the new building for a place for the guest to stay without displacing the children from their rooms. Mr. Boyd asked if they had a bath. Mr. La Tour stated the second Floor did not have a bath, the only plumbing was a mop sink for cleaning. Mr. Boyd commented his guest would not have a bathroom. Mr. La Tour stated they would have one on the first floor. They would have to go downstairs to the bathroom. Mr. Wilhelm commented the two stairs were not contiguous. Mr. La Tour stated they were not; the purpose of that was to segregate the employees from the guest quarters. Mr. Perkins asked if Mr. LaTour would be willing to compromise to continue the project, minus the two sinks. Mr. La Tour stated he was not willing to say that. His problem was that he had spent $1500 to $2000 for the plumber to rough in the plumbing for the two sinks. They were not on the wall yet, but all the plumbing was there for them. They did that under a legal plumbing permit. They had been told by the city "here is your permit, go put it in". No one questioned them and no one said anything. He had relied on that and he had incurred cost, his lawyer found a a case, Tankersley Brothers Industries verses City of Fayetteville which ruled once the permit was granted, and the permittee acted on the permit, then the City could not come back after the fact and say they had changed their mind. It was still current law today. Mr. Boyd asked if the case implied one had to tell the city in advance what he was going to do. Mr. LaTour stated they built the building according to permit they had. Mr. Boyd stated the plumbing permit was for a number of fixtures, they did not know what he was going to do. Mr. La Tour stated they never asked him. Mr. Boyd stated the planning department needed to know what he was going to do with the fixtures. Mr. La Tour stated, if that was the case, then they needed to change the application process to require Planning approval of plumbing permits. They did not require that now. Mr. Wilhelm stated his first application for a building permit indicated he was building an attached garage with two • Board of Adjustments November 18, 1996 Page 13 bedrooms and three baths. In essence, it appeared there were three possible living quarters within the structure. He pointed out it said "separate distinct dwelling units". There were three portions to that discussion and he was choosing to look at one portion of it: "one room or rooms connected together:. They had that in three cases. "Physically separated from any other rooms or dwelling units that meet that criteria, containing independent cooking and sleeping facilities." In essence it met the criteria, because he had food preparation capabilities in the units as well as sleeping facilities. Mr. La Tour stated there were food preparation capabilities in any unit. Any building that was built in Fayetteville, could be misused. He could operate a business out of any building. He contended he did not believe the code envisioned police power for the Planning Department. He advised that, in their April 19 meeting, Ms. Little told him he could not put a stove in the addition. She didn't tell him about the sinks. He did not remember that as clearly as he remembered the stove and oven part. He advised he was not trying to deceive anyone. He had done what she told him to do and, after he had gotten the plumbing in, the City was coming back with different requirements. Jerry Rose, City Attorney, said there were two remedies if someone was misusing property: seek inconjunctive relief or they could fine him. He affirmed to them again, the rooms were for his domestic employees and he had put the sinks in for their convenience. They were not cooking facilities. Mr. Nickle stated they had microwaves in dorms and they were not by definition cooking facilities. He questioned Ms. Little, regardless of the out come of the sinks, in her interpretation could he do everything else that he was trying to accomplish, as far as his domestic help living there, etc. Ms. Little responded, as far as she could tell, he could do that. The problem she had was whether it was a separate dwelling unit or not. She added it was not a plumbing permit issue, it was a single family or dwelling unit issue. She explained she had requested plumbing plans in order to tell where the sinks were going to be located. She added that, by looking at the plumbing plans, she could tell more about what their function would be. She did not want to do anything to keep Mr La Tour from doing what he was entitled to do but the third floor looked like separate dwelling units and limiting the number of sinks was the remedy she prescribed to make it not separate dwelling units. She pointed out Mr. LaTour had revised the original plumbing permit to 15 fixtures, on September 18 he had revised it again, and after October 15 he revised it again to more correctly reflect the number of connections. She noted she had tried to be clear in her letters, encouraging Mr. LaTour to talk to the Inspection Department because it looked like he was in violation of the permit. She had asked for a complete set of plumbing plans to see if there were any problems with him meeting the zoning code. Mr. Andrews asked when she had asked for the plans.. Ms. Little stated it had been the first letter on September 6. Mr. Andrews asked Mr. LaTour if he had any building done by September 6 or if he had the plumbing done by September 6. Mr. La Tour stated the plumbing had been roughed in to the third floor level. Mr. Andrews questioned if it was to the point it was now. Mr. La Tour replied it was not because Ms. Little had to ask him to stop all plumbing activity. He explained he had wanted to continue with the project and found Ms. Little was out of town so he spoke with Mr. Crosson. After that conversation, he continued, with Mr. Crosson's permission, to do some more plumbing. Ms. Little then got back into town and decided to stop the plumbing again even though the plumbing was basically done. He advised the plumbing permit was revised the first time because they decided to finish out the attic (including a bathroom). He noted both the plumbing permit and building permit were revised. He explained the last revision tto the plumbing application was for refrigeration and floor drains. �3' • • • Board of Adjustments November 18, 1996 Page 14 Mr. Nickle said he was still trying to get an understanding as to the usage of the facility. If he was understanding it correctly Ms Little was saying that, with the sinks in place as he was wanting to do, she was likely to say there was more than one dwelling. Without the sinks, was she satisfied that all of the addition qualified as he would like to use it. Ms. Little stated she believed the structure did meet the code and she had Mr. LaTour's assurance that he would do nothing that would violate the single family nature of the structure. She addded, that with Mr. La Tour's personal assurance and the removal of the two sinks, she believed it would pass. Mr. Nickle commented Ms. Little was basing her interpretation on the number of sinks as to whether a structure met the definition of a single family dwelling unit. Ms. Little stated it was not only the sinks she was concerned with but also the plumbing leading to them. There was plumbing from somewhere to the third floor and she was concerned about that because she felt the presence of the plumbing left it open to being converted into the units they were trying to avoid. Mr. La Tour did not think it would be fair for his employees to have to go down to the first floor from the third floor in order to wash their dishes. He asked the Board who had designed their house and who had told them where they could place their sinks; they had the freedom to chose where they placed their sinks based on their comfort and convenience. Mr. La Tour introduced Kerry Shoalt, a real estate appraiser. Mr. Shoalt stated he had been a real estate appraiser in Fayetteville for twenty-four years and averaged looking a one house per day. He explained most of the houses he had appraised were more than 2500 square feet in size and would have a wet bar. He advised he had seen sinks in laundry rooms and closets; he had appraised homes that had kitchenettes on the lower levels. He did not see how the interpretation of where a sink was placed could make a dwelling unit. Mr. Boyd asked if a wet bar usually had 12'-15' of kitchen cabinets. Mr. Shoalt replied yes. Mr. Boyd asked if they usually had full sets of kitchen cabinets for a wet bar. Mr. Sholts responded he did not know. Mr. Andrews asked how many of the homes had a wet bar for their domestic servants. Mr. Shoalt stated he did not know anyone that had a domestic servant. Mr. Andrews stated his point was that it was a unique case. He agreed that he had seen sinks all over the place, but for a domestic servant he thought it was a different situation. Ms. Little asked how many homes he had seen that had ten sinks all outside a bathroom. Mr. Sholts did not know. He contended he did not believe whether or not a structure had a sink made it a dwelling unit. He pointed out some houses had microwaves in bedrooms but that did not make the bedroom a kitchen. Mr. Jim Beays stated he completed the foundation work for Mr. LaTour. He added he knew Mr. La Tour well and, at the time he started the house, he never once heard that the addition would be a rental. X31 137- Board 32 Board of Adjustments November 18, 1996 Page 15 Ms. Lisa Moorstat, a neighbor, expressed concern about what Mr. La Tour was building, not only what he might use it for, but if he sold the property. It was difficult for the neighbors to be assured that the property would not be used for something else in the future since they had other properties in the area that had turned into rental units. They had a terrible problem with traffic and other things. She explained her family had bought a house in an R -I zoning hoping they would have a nice residential neighborhood. They were hoping to live in the house for the rest of their life in that neighborhood. She wanted it to remain a nice quite neighborhood like it was now. She did not think that a one year assurance was enough. She was concerned about the value of her property and the nature of the neighborhood. She commented that having the assurance that the next owner would not be able to turn the building into rental units meant a lot to her. Mr. Gene Jones, an area resident, in response to Ms. Moorstat's comment regarding a quite neighborhood, stated he did not think a neighborhood behind a University stadium and fraternity house was his idea of a quite neighborhood. Paul Moorstat, a neighbor, stated the fraternity house was relatively quiet. Patrick Cameron commented Mr. La Tour needed more room for his children and he did not believe the two sinks would hinder the use of the room. Mr. Kevin Canfield stated 95% of the house was done and they were down to the two sinks. He advised he had worked with Mr. La Tour for several year and he was an honest person, so when he says he got the direction he could put sinks into the rooms, the Board should take his word. Mr. Moorstat commented they were giving character witnesses for Mr La Tour and the issue did not have any thing to do with his character, it was about the code of the City and the technical issues. Ms. Moorstat stated they represented 84 other people in the neighborhood that were concerned about the use of the building. Mr. Gene Jones asked if Mr. La Tour was to sell the property to someone elseif the City could stop someone from renting the property. He asked if the Board had looked at the property, commenting that it was not very suitable for rental property. Mr. Perkins commented they were going to have a number of people living on the site and would be increasing the traffic in the neighborhood, whether it was an apartment or a single dwelling. What he was trying to bring them back to was the authority of the Planning Director, to prevent or to allow a violation to be facilitated. Mr. Jones commented the traffic on any game day would be 50 times higher than it would ever be any other time. Mr. Boyd asked Ms. Little if a site plan had been submitted with the application. Ms. Little stated there had been a site plan turned in. Mr. Boyd asked if it resembled the plat of survey. Ms. Little stated that had come later; they did not have that detailed information at the time of the issuance of the building permit. Mr. Boyd commented if it was accurate it showed the property to be within 8' of the east sideline without taking into account the front portico of the addition. Mr. Davis stated they did the layout before they did the foundation and it was set back to accommodate the porch. • • • Board of Adjustments November 18, 1996 Page 16 Mr. Boyd commented the survey by Doug Hemingway must be wrong. Ms. Little replied it must be, the building on the plat did not match the shape of the building. Mr. Perkins asked if there was any one else that would like to speak for or against the appeal. Ms. Little stated it was a single family issue and not a plumbing issue or a plumbing permit issue. It had to be revised several times to point out how the project evolved and how they got more information than that. Someone had raised an issue about the house being 95% complete, and that was true; it was basically complete at this point. She just wanted to say they had tried to cooperate with Mr. LaTour throughout the process and when they first became aware of the apartment on September 6, they could have issued a stop work order on all portions of the construction However, they did not feel that there was a need to do that. Some people seemed to have the idea that they were being ridiculous in talking about two sinks. They were not talking about two sinks; they were talking about the third floor and about the presence of two dwelling units there and what makes them dwelling units. Mr. Nickle questioned what would happen if Mr. LaTour chose, in the future, to sell this off and did the lot line adjustment or whatever else was necessary.. He had a house with an attached addition. Did it become one dwelling unit itself? Ms. Little responded it is one dwelling unit. Mr. Nickle concluded it would fall under the same rules concerning family not related, etc. He thought a lot of the concerns seemed to be about some possible future event. He thought people in general did not like it but accepted that it could be an legitimate situation. If he wanted to, could Mr. La Tour provide a restrictive clause stated on the deed so that any prospective buyer would receive official notice that theliving quarters could not be rental units? He had seen such clauses on deeds before. Mr. LaTour stated he would be glad to do that. Mr. Nickle asked if that type of situation would make Ms. Little feel more comfortable about a protective situation. Ms. Little thought that would be helpful. She did not know if it would completely allay her fears about the present plumbing. Mr. Nickle commented it would make it more enforceable as to the occupancy of future owners and tenant situations. Ms. Little said that it would, but she had not known of a case when the City had required that. However, if Mr. LaTour chose to restrict his property that way, he could. Mr. Nickle commented he could do that and give that measure of additional assurance to the surrounding neighbors and adjoining property owners. Ms. Little stated what she found more important in a restrictive covenant or deed restriction is that any one who bought the property would also be put on notice. Frequently, they did have people who bought property who didn't have knowledge about prior action and it does cause problems. Mr. Nickle commented in that event, a future prospective owner could not come down to the Board or to the City and say "they did not know about this deal". If the clause was there, he would not have that defense. Mr. Boyd commented that the restriction would be to the benefit of 410 Oliver, not the people surrounding him . If it was a restrictive covenant, it would be between the two pieces of property and would have nothing to do with the 133 • • • Board of Adjustments November 18, 1996 Page 17 neighbors. Mr. Nickle replied if they filed it on the legal description. Mr. Boyd stated if they placed it on a legal description, then they could take it off again. Mr. Nickle stated they could not if it is filed at the court house as a covenant. Mr. Boyd asked who would be putting it on the legal description. Ms. LaGayle McCarty, assistant city attorney, stated that generally restrictive covenants were filed with a subdivision and were enforceable between all of the property owners. Here, they had two property owners and if they decided they did not want to enforce it any longer, they could get rid of it. It becomes a contract between those two people. It did not have anything to do with the surrounding property owners and they had no right to try and enforce it. Mr. Nickle commented someone who granted a deed to a piece of property could say "part of this deed and part of the consideration the future owner agrees to..." He had seen this type of deed before. They would agree, and they would see the clause. That was what he had in mind. He asked if it was enforceable. Ms. McCarty did not believe it was enforceable as he wanted it to be. Mr. Nickle asked how it would be. Ms. McCarty stated it would be enforceable between the person who sold the property and the person who bought the property, but at some point it could be an unreasonable restriction and it could be lifted. If he was talking about a restriction of a use of a piece of property in a subdivision, there was 50 plus people agreeing not to do something and all the others could enforce it against one. Here there were only two people. She added there were some old deeds that had clauses in them like that, but she did not believe they were enforceable. Mr. Nickle commented it would depend on someone to enforce it. Ms. Moorstat stated that system had not worked in her neighborhood because they had other people who were in violation. Mr. Rose had said in the previous meeting that they had two options and also let them know that the neighbors were to police that. She would rather it stay strictly an R-1 neighborhood and not have to police anyone or worry about it. If they were to put that in now, the burden would be shifted to the neighbors. Mr. Hanna commented that the way the property was now, if Mr. LaTour decided to sell the property with the house and the attached bedrooms with the covered walkway, the buyer could go in without any permission from anyone and start renting the bedrooms to four or five different people. There was nothing in place now to stop that from happening. The way the building is now, if there were not any sinks in the two rooms, someone could go in and make it a rooming house anyway. He asked how they would enforce that. He felt that as long as Mr. LaTour was living there they would not have to worry about that. Was there a remedy to put the buyer on notice that they were buying a piece of property that was and could not be used as a multifamily apartment house? Mr. Nickle was not saying it was binding, but it would give them notice. They could not come in later claiming that it looked like an apartment set-up to them and that was the reason they had bought it, so the City should let them rent out the rooms.. What he was saying was that if there was a clause that went with the property that would show up in the title work, they could not use that as a defense. He agreed that they would not be able to enforce it, but it would put the buyer on notice. Mr. Hanna added that if Mr. LaTour were to sell 410 N. Oliver, someone could buy it and start renting out the four i3L1 • Board of Adjustments November 18, 1996 Page 18 bedrooms and then there would be a rooming house. There could be college kids, putting in coffee makers and refrigerators and microwaves. An area resident asked what would stop a future owner from putting in sinks. Mr. Hanna responded that was a good point. Mr. Nickle commented they could do that in any facility in town illegally. Ms. Little stated if there was not plumbing already there, they would have to come in and get a plumbing permit and the city would not allow that. Mr LaTour pointed out that the plumbing that was feeding the two sinks on the third floor also went up through the wall to the next floor and fed the sink on the fourth floor. He could not pull out the plumbing for these two sinks without killing the plumbing on the fourth floor or without rerouting plumbing. He did not think that was a practical solution. He could give them a key to the place, and they could come and inspect them every other week and make sure he did not put them in. He would be happy to submit to that. Practically, he did not think they could take all the plumbing out because it fed the fourth floor. Mr. Andrews asked Ms. Little what she was asking the board to do. Was she asking for all the plumbing to be ripped out or just an assurance that there would be no sinks there? Ms. Little replied she did not know that the plumbing on the fourth floor was connected to the plumbing on the third • floor. She added it was not evident looking at the plans. • Mr. Wilhelm commented that Ms. Moorstat had mentioned there was a petition in the neighborhood. He asked the nature of the petition. Ms. Moorstat replied it expressed the concern of the neighbors that the facility was not being built in compliance with the R-1 zoning code. They did not want the house to be turned into rental units because the integrity of the neighborhood could be destroyed. It was one of the few places around campus that was an R-1 zone. She added 84 of the neighbors had signed the petition. Mr. LaTour pointed out that he had never seen some of the people that had signed the petition. They lived a long way away from where he lived. Ms. Moorstat responded she had walked from Markham to Cleveland, all of which was part of that neighborhood. Mr. LaTour commented they needed to point out that he had also bought property in an R-1 zone and he wanted to live in an R-1 zone. The building was in his backyard. Was he likely to misuse the building, or to have a college student there throwing wild parties? Mr. Andrew interrupted he had not received an answer from Ms. Little. Ms. Little showed a plan in which she had taken the second floor plan and placed the fourth floor plan under it. She traced where the sinks and the commode would be, illustrating that the commode and sink where falling within the stairwell that would be on the second floor. She added plumbing normally ran straight up. All she was saying was that there were stairs on the second floor which would prevent the plumbing from running straight up because they would have to have that area open for the stairwell. On the third floor the sinks were located more or less central to the building, but more on the west side. On the fourth floor they were located completely against the west wall with the exception of the storage area X36 • • • Board of Adjustments November 18, 1996 Page 19 Mr. LaTour responded he did not know for sure, but he was pretty sure that the plumbing on the third floor fed the plumbing on the fourth floor. Mr. Perkins asked if there was anyone else who wanted to add to this appeal. Mr. Buddy Babcock stated he had known Mr. LaTour for a number of years. He had done his tax returns every year and had found him to be a very honest and upright citizen. He added he did not know anything about the codes, but the logic for the discussion did not flow for him. They were trying to say they did not want to put a stop sign up for convenience at an intersection, because someone might run it later on. If Mr. LaTour had received the permit and if he was obeying the code, they needed to let him do it. Mr. Perkins commented everyone from the public sector had an opportunity to speak so they would close the public portion and turn it over to the panel to discuss and ask questions. Ms. Orton asked if there was a legal representative present. In the Tankersley case, the question was raised as to whether, after the permit was given and the money was spent to carry it out, the city could or should retract on that permission. What was the legal ramification of such an act? Ms. McCarty responded that the Tankersley case looked similar on the surface but was very easily distinguished. In the Tankersley case, they had received the permit, they were allowed to build it and they obtained their certificate of occupancy. They were allowed to function for four months prior to the permit being challenged. They were asked to come back and tear the building down. This was a different situation. On the last page, "As a general rule, a building permit has none of the elements of a contract and may be changed or entirely revoked, even though based on a valuable consideration, if it becomes necessary so to change or revolt it in the exercise of the police power." Therefore, the Tankersley case, while on the surface looks very similar, is easily distinguished because it is not the same situation. Mr. Boyd added they applied for a specific building and built that building for that specific use that they applied for. Ms. McCarty added it was also challenged on the fact that it was a public nuisance and they wanted an injunction to remove the business. It also argued the issue's use and what they were here to do today was not to argue use or character or anything else. It was to determine if the interpretation of the Planning Administrator conformed to the code. They had gotten off on a lot of other issues that had no bearing in this decision as to whether or not Ms. Little's interpretation is accurate and consistent with the terms of the code. Ms. Orton added it seemed as though the question is "How much difference is it going to make if the two sinks are put in and if they were not put in." Is the fear that it will be rented out really going to make that much difference? Mr. Wilhelms believed in essence what they were being asked to say, "What is a rational interpretation of what a dwelling unit is?" That was the question asked. What constitutes a dwelling unit? The way he looked at the sink issue is that Ms. Little was trying to moderate an unfortunate situation and remedy it. This is a dwelling unit. Almost any one could look at this and say there were three contiguous dwelling units here. In his mind, some of the mental gymnastics that had gone into the thinking of this building was some of the most remarkable he had ever seen. To think that this was an addition for a family that was 50' away! He looked at plans every day, and if he had no input from anyone and he looked at this plan, he would say there were three dwelling units here. They largely meet the intent of what that act says. To him, the sink issue, whether they agreed with Ms. Little or not, is her method of seeking a remedy for a problem which, through a series of consequences, had become a very strange project by anyone's account. Mr. Hanna stated he would have agreed with Mr. Wilhelms if Mr. LaTour had applied for a building permit and then three months later, while inspecting for a certificate of occupancy, they had found 200% more than he had asked for �3', • • • Board of Adjustments November 18, 1996 Page 20 on the building permit. It appeared to him that Mr. LaTour had come and told them what they wanted to do and asked them to help him do it. It seemed to him that Ms. Little had looked at the plan, house and the lots. She gave him some direction and he went with that direction. Things change during the building process. You see some opportunities as the building is going up that you do not see in the beginning. From what he had read and heard, it was an honest mistake that had happened. Some opportunities had appeared and the owner wanted to take advantage of them. The whole purpose for why the building was there was honest from the beginning. He had a Targe family and it would get larger. He did not think Mr. LaTour tried to deceive the city or the neighborhood. The building is legal as far as Ms. Little could tell. He had every right to have the building there. It appeared to him that Mr. LaTour had come back to the City every time there had been a change. He had complied with every request. Mr. Wilhelms tried to simplify. He did not want to deal with the circumstances of the issue. He wanted to deal with the question they were asked. What constituted a dwelling unit? Given the intensely complex nature of this situation, they needed to answer the question that had been asked of them. He did not care if he was to use it for ice hockey. "What constitutes a dwelling unit'?" Was his interpretation correct? Was that the question being put forth to them? Mr. Hanna did not believe it did, because it was fufilling his request from the beginning, to have a place for his nanny to sleep and have a place extra bedrooms for his guest to sleep. Mr. Wilhelms replied "What constitutes a dwelling unit?" Is it inclusive of all those components stated in the code or does the elimination of one of them exclude all the rest? He was trying to make this as easy as possible, because he felt that if they as a panel got embroiled in this thing, it could take months to work out. He felt they were being presented with a clear cut question. Mr. Perkins stated the question was the authority of the Planning Director to interpret a code. They are asked about a dwelling unit. The three statements in the code were general even though there was the conjunction "and" between them. He thought Mr. Wilhelms was correct and they needed to restrict what they did there tonight, focusing on the way the appeal was worded. Mr. Wilhelms added the question did not read, "Shall we deny Mr. LaTour two sinks on the second floor?" The question was "What constitutes a dwelling unit?" He thought the zoning code clearly assigns the responsibility to the Planning Director to review and make those discriminations. Mr. Perkins added that although there were compromises made throughout the process, the point of all the background material was that this addition has now blossomed into what Ms. Little would term a dwelling unit. He commented this thing had truly evolved and at some point, there had to be a determination made. Ms. Little had made a determination and now the board needed to make a decision to uphold or overturn her determination. Ms. Orton commented the original request was to build this garage and some guest rooms. As long as those other rooms were added to the garage, it would then make the structure a dwelling unit. Mr. Boyd did not think the bedrooms on the second floor were a dwelling unit. From the original application, that would have been what he understood Mr. LaTour had in mind, with perhaps the addition of a bathroom. Speaking as a landlord, however, he could foresee that two families could move into there very easily and live on either side. Presumably, if one them were to work as a servant, they would have families living there and it would be legal. He added that the units were big enough for families. The units were bigger than the rent house. Mr. Andrew questioned whose responsibility it would be if it came down to Mr. LaTour having to remove the sinks and incur that cost. Was it his responsibility to incur the cost or was it the city's? Mr. Wilhelms responded they were not to ascertain that. It was a very complex case and he did not think they could 132 • • • Board of Adjustments November 18, 1996 Page 21 decide that in two hours. He would not know how to ascertain that. Ms. McCarty stated that was not the issue here. Mr. Nickle commented that from a economic point of view, the structure would be a money loser if they were to sell it off unless it was a rental project or could be used as that. He came back to the intent of the owner. He asked if there was any additional notice that they could ask Mr. LaTour to provide in the event that he sold it. From a realtor's standpoint, if he were to look at the plan, he would think that it was a bunch of apartments. He agreed with Ms. Little and understood her concerns, but they needed to look at what was practical. They had to make some common sense ruling on what was presented to them. This was one of those no-win situations. Unless they sold the project as a multi -unit, and most investors were going to be cautious of that, he did not believe it was a good economic project and would be a money loser, unless they could find another buyer with the same situation. He would like some clause to put a future buyer on notice as to what the legal aspects were on the use of the property. Ms. McCarty thought that should be between the LaTours, their attorney and the future purchaser. Mr. Nickle replied he was concerned about future owners coming to the Board of Adjustments and claiming they had no knowledge the property history.. Whether the notice was enforceable or not, at least they could not claim ignorance. Mr. Wilhelms commented that to his mind, that was a remedy to the situation. They were not asked to judge what the remedy was or to suggest new ones. They were only here to affirm or give guidance as to what constitutes a dwelling unit. He would personally like to make a motion that they affirm the definition of a dwelling unit as it is stated in the code as being inclusive. Any rational person would look at that criteria and see that all the criteria are necessary to evaluate whether it is a dwelling unit or not. Any one of the items is not mutually exclusively of the other. Mr. Hanna asked if he was saying they had to have all three. Mr. Wilhelm responded he was not saying that. If they were to look at it holistically, the intent of this was to help define what a dwelling was. For all purposes and intents, he was saying it was completely divorced from this issue. If he were to see the plan somewhere else, he would say that it was a dwelling unit. He was trying to react to the question of how to affirm what a dwelling unit was. They had to look at the definition holistically and in its entirety. You could not use one portion of it to exclude it as a dwelling unit. Ms. McCarty explained if they focused on what they were asked to do here, they could use his argument, but they needed to apply it to the decision Ms. Little had made. They needed to either affirm it, reverse it, or modify it in whole or part of it, based on what was on appeal. Mr. Nickle clarified they had to either give him permission, deny him permission, or work out some other modified agreement. Ms. McCarty explained they had to either agree with Ms. Little, modify what she said, etc. Mr. Wilhelms asked if it was reasonable to take the sinks out. They could define them as dwelling units, and a reasonable remedy was to remove the sinks, or they could say it was a dwelling unit, but they did not feel he had to remove the sinks. He questioned Ms. McCarty if that was correct. Ms. McCarty replied that was not the decision that was their task tonight. It was to determine if the Planning Administrator's interpretation is correct or incorrect. If they say it is a dwelling unit, then the Planning Department would proceed with what they needed to do. If they said it was not a dwelling unit, then the LaTours could continue t3$ Board of Adjustments November 18, 1996 Page 22 with what they were doing. They were trying to broaden the scope, but it was a very specific question: was the interpretation of the Planning Administrator correct or incorrect? Mr. Wilhelms commented it met 90% of the criteria for a separate dwelling whether a sink was there or not. Mr. Nickle clarified they needed to affirm Ms. Little's decision or modify her decision or disagree with her decision as a Planning Administrator. Ms. McCarty stated that was basically it, but the remedy after they made the decision fell back to Planning. Ms. Orton commented they could say that they agree with the definition of a dwelling unit, but they had still not reached any conclusion. The planning department still has the problem of what constitutes a cooking facility. There must be another criteria because people used sinks every where. Mr. Boyd commented they had been brought into this thing late in the game and they had to deal with what they had. He believed the elimination of the sinks would make it less suitable as an independent dwelling unit. At this time, he believed this would be the least hardship to the applicant and came the nearest to adhering to the code. MOTION Mr. Boyd moved to affirm the Planning Administrator's interpretation. Mr. Wilhelms seconded the motion. Mr. Boyd stated that in order to affirm, the motion should be worded to deny the applicant's appeal. Mr. Perkins stated the appeal was for a review of the Planning Administrator's decision. Mr. Boyd explained she had already made the decision. This was a review of the decision and to overturn it the applicant had to receive a majority of the vote. It would take four votes to overturn her decision. Mr. Perkins clarified that he was moving to support Ms. Little's decision so the vote would be yea to support and nay to deny. Mr. Boyd moved to deny the appeal. Mr. Wilhelms seconded. The roll was called. The appeal was denied by a vote of 4-3-0. Orton, Hanna, and Nickle voting nay.