HomeMy WebLinkAbout1999-10-04 Minutes•
MINUTES OF A MEETING OF THE
BOARD OF ADJUSTMENT
A regular meeting of the Board of Adjustment was held on Monday, October 4, 1999 at 3:45
p.m. in Room 111 of the City Administration Building, 113 W. Mountain, Fayetteville,
Arkansas.
ITEMS CONSIDERED
Approval of 09/07/99 Minutes
BA99-21: Keating, pp289
BA99-22: Rye, pp448
BA99-23: McDonald, pp446
MEMBERS PRESENT
Michael Andrews
Gerald Boyd
Thad Hanna
Bob Nickle
• Larry Perkins
Michael Green
•
STAFF PRESENT
Tim Conklin
Janet Johns
Jerry Rose
Dawn Warrick
ACTION TAKEN
Approved
Approved
Approved
Approved
MEMBERS ABSENT
Marion Orton
STAFF ABSENT
None
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Board of Adjustment Minutes
October 4, 1999
Page 2
APPROVAL OF SEPTEMBER 7,1999 MINUTES
Perkins: Good afternoon everybody. Thank you for coming. The first item of business is
acceptance of the minutes of the September 7th meeting. Are there any changes or deletions to
note?
MOTION
Green: I move to approve the minutes.
Nickle: I second.
Roll Call
Upon roll the motion passed with a unanimous vote of 5-0-1. Mr. Hanna abstained.
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Board of Adjustment Minutes
October 4, 1999
Page 3
BA99-21: VARIANCE
KEATING, PP289
This item was submitted by Bill Keating for property located at 135 West Sunbridge. The
property is zoned R -O, Residential Office and contains approximately 29 acres. The
requirement is for a 10 foot side setback. The request is for a 3 foot setback which is a 7 foot
variance.
Bill Keating was present on behalf of the request.
Staff recommended approval of the request.
Board Discussion
Conklin: Staff recommends approval of this variance based on staff findings and the site
plan. There is one correction to the report and that is that the property line adjustment has
already been approved on this property. The applicant has requested a 3 foot side setback or a 7
foot variance. Refer to page 2.6 of your agenda This development is part of the Sunbridge
Business Center Development. There is an existing building under construction to the west with
28 feet of separation between the 2 buildings.
Nickle: Have any of the adjoining property owners called to object?
Conklin: I have not heard from anyone.
Public Comment
None
MOTION
Nickle: I'll make a motion to approve the request.
Hanna: I'll second.
Roll Call
Upon roll call, the motion passed with a vote of 6-0-0.
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Board of Adjustment Minutes
October 4, 1999
Page 4
BA99-22: VARIANCE
RYE, PP488
This item was submitted by Linda and John Rye for property located at 1657 Anson Street. The
property is zoned R-1, Low Density Residential and contains approximately .49 acre. The
requirement is for a 20 foot rear setback. The request is for a 16 foot setback which is a 4 foot
variance.
Linda and John Rye were present on behalf of the request.
Staff recommend approval.
Board Discussion
Conklin: This is a request to extend a deck 4 feet into the required 20 foot rear setback.
Staff is recommending approval. The amount of deck that will be within the setback area is
approximately 44.5 square feet. Please refer to page 3.13. This is the survey that shows the
proposed deck. It is the south portion of the deck that will encroach the setback.
Perkins: Just the southeast corner, right?
Conklin: The southeast corner is the only part that would be within the 20 foot building
setback. Staff does recommend approval. This is located in a heavily wooded area behind the
house. If you went up there you would not be able to see it from the street. It's fully wooded.
Staff feels that allowing this corner of the deck to extend into the setback would not be a
problem.
Perkins: Mr. and Mrs. Rye are present. Do you have anything to add to this?
Rye: We like our outdoor living and we want to put the deck back in the same size that
was already there.
Nickle: Does this allow any fudge factor?
Conklin: I guess the question is does the variance of 4 feet allow enough room for the deck
to be built?
Nickle: Sometimes the builder gets out there and even a slight mistake results in your
having to come back.
Rye: The deck will be exactly 10 feet.
Board of Adjustment Minutes
October 4, 1999
Page 5
Boyd: I'm in favor of this provided that we only grant the variance for the corner section
of the proposed deck which will encroach into the setback. I don't see that it is necessary to
decrease the entire setback line 4 feet.
Conklin: Our recommendation is for the approval to be based on the site plan submitted
with this application.
Public Comment
None.
MOTION
Boyd: I'Il move to grant the variance.
Andrews: Second.
Roll Call
Upon roll call the motion passed with a unanimous vote of 6-0-0.
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Board of Adjustment Minutes
October 4, 1999
Page 6
BA99-23: VARIANCE
MCDONALD, PP446
This item was submitted by Warren and Karen McDonald for property located at 435 N.
Washington Avenue. The property is zoned R-1, Low Density Residential and contains
approximately .44 acre. The requirement is for a 35 foot street right of way from street centerline
and a 25 foot front setback on Maple Street. The request is for a 13 foot front setback which is a
12 foot variance.
Warren and Karen McDonald were present on behalf of the request.
Staff recommends approval subject to the following conditions:
1. The new garage must match the architectural character and integrity of the existing
residence and carriage house.
The new garage must be constructed within one year or the variance will become void.
Board Discussion
Conklin: Staff does recommend approval of this variance request based on the staff
findings and the site plan subject to the conditions in the staff report. The variance that has been
requested is needed in part due to the master street plan which designates Maple Street as a
collector street. That is shown on page 4.11. Currently, Maple Street has a 40 foot right of way
which is 20 feet from the centerline. The Master Street Plan requires 35 feet from the centerline
or 70 feet total. Our setbacks are taken from the Master Street Plan right of way. We have
granted variances in the past from the Master Street Plan right of way requirements. Most
recently, you approved a variance from the Master Street Plan right of way requirements on Mt.
Nord for Don Marr. Staff does recommend approval.
Green: The only question I had was the staff report says they are requesting a 12 foot
variance but the other documentation reflects a 10 foot variance. Is this for 12 feet or 10 feet?
Conklin: The request is for a 12 foot variance.
Hanna: We're just addressing the new garage, right?
Conklin: That is correct.
Hanna: The right of way is projected, but we don't know if that street will be
widened.will be reality.
Board of Adjustment Minutes
October 4, 1999
Page 7
Conklin: A collector street is a 36 foot wide street from back of curb to back of curb. This
is a historic district. I do not foresee the City actually acquiring that additional right of way in
the future and building that to current Master Street Plan standards on Maple Street from College
to Highway 45. They may, in the future, widen it to allow parking on one side. That might be a
possibility The actual 36 foot wide street would accommodate 6 foot sidewalks setback 6 feet
from the back of the curb. I don't see that occurring. That Master Street Plan right of way does
encroach into the existing structure.
Perkins: There is room on the lot to position the garage at the proper setback. Right?
Conklin: That is a good point. Staff did visit the site. There are some existing, mature
trees to the south of the proposed garage and they want to preserve those trees. That is one of the
reasons why they are requesting this variance.
Nickle: Does this drawing, as submitted, meet your recommendation as far as character of
the neighborhood?
Conklin: The elevation as shown on page 4.8 is satisfactory to staff.
Nickle: That is what you are planning to build?
McDonald: Yes.
Hanna: What about the existing garage?
Boyd: That bothers me.
Hanna: Why aren't we getting a variance for that?
Conklin: We've had conversations with the McDonalds about whether or not we wanted to
go for the existing house and garage. They requested the variance for the new garage. If the
Board of Adjustment would like to entertain granting variances on existing house and garage, we
could do that.
Hanna: This is an historic house. This is an historic neighborhood. It's a beautiful house.
If they try to sell it, whoever buys it is going to be back here asking for a variance. It's been
there for 100 years. We couldn't deny the request because they couldn't sell their house and
they'd have to tear it down. My point is, why don't we clean it up now?
• McDonald: We contemplated that if lightening struck the bay window on the house, would we
have to get a variance in order to get a building permit to repair the bay window. If we could
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Board of Adjustment Minutes
October 4, 1999
Page 8
have variances on the all the existing structures, both the house and carriage house, that would
prevent us from having to come back. We don't currently have plans to modify either one. If
there was ever any damage, we would like to be able to make repairs.
Conklin: I'm not opposed to that. The existing house is fine with me. The carriage house
or garage would have to go if they ever widened that street. Granting the variance would allow
them to rebuild if it was ever destroyed. I'm not sure the carriage house or garage would be able
to remain in that location.
Hanna: If they wanted to sell the house tomorrow, they would have to process a variance
request for the carriage house. Is that correct?
Conklin: People buy nonconforming property all the time. If they want to protect what
they are buying they should get a variance.
Nickle: I don't have a problem granting a variance for the portion of the house that's in
the future right of way. I'd rather leave that other one alone. If you grant the variance now and
somebody crashes into the garage, maybe it shouldn't be rebuilt right there
Boyd: I agree with that as long as the carriage house is excluded from the variance. It
could very well have to be torn down. There is no reason to put an extra burden on the city
having to condemn something that we've given a variance for.
Green: If the street was widened to 36 feet that would be 18 feet on that side for right of
way which at this time, the curb would be right at the front edge of the carriage house. The street
proper would miss the carriage house but there wouldn't be any room for a sidewalk.
MOTION
Green: I move that we approve the variance based on staff recommendations and also
grant a variance for the existing house that is encroaching into the right of way and setback.
Boyd: This is excluding the carriage house?
Green: Yes.
Hanna: Second.
Roll Call
• Upon roll call, the motion passed with a vote of 6-0-0.
Board of Adjustment Minutes
October 4, 1999
Page 9
OTHER BUSINESS
Perkins: We have a guest with us today.
Rose: I'm here mainly because I had talked to Warren McDonald and he asked me to be
here. I didn't have to say anything which is even better. I haven't had a chance to sit with you as
a Board. I think you do a fine job and I appreciate you keeping us out of court. Thank you very
much.
Hanna: I thought we'd done something wrong.
Rose: Tim and I have talked about trying to enforce what the street plans are. There are
2 situations which come up. There is the title insurance problem and condemnation problems if
you ever try to construct the street. The plan is there and who knows what will happen in the
future.
Conklin: I would like to introduce Dawn Warrick. She is the new Associate Planner. Brent
Vinson has resigned and she taking over his duties. Formerly, she was the Development
Coordinator.
Nickle: Where are we on our sign ordinance changes?
Conklin: Bert Rakes has dropped off a draft of that and I will try and get to that as soon as
possible.
Andrews: A couple of meetings ago, we asked Mike McKimmey about enforcement of the
sign ordinance with regard to the Exxon station.
Boyd: Exxon has a pole sign on 6th Street. Apparently, they applied for a sign appeal
and a condition of that approval was for them to remove the pole sign. That has not been done
and we asked for enforcement.
Rose: It's like hitting a gnat with a sledge hammer. There's not very much you can
do except to ask that they comply. If they don't, there's nothing intermediary that you can do. I
would have to take them to court, get an injunction, and make them take it down.
Andrews: Can the City not take it down and bill them?
Rose: It doesn't work that way. They could counter sue me because I have diminished
the value of their land and call it a taking under the constitution and all of the sudden I'm in
federal court with 700 attorneys on the other side. What starts out as a very simple issue of
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Board of Adjustment Minutes
October 4, 1999
Page 10
taking down a sign all of the sudden is out of hand. I'm not sure we can create any way to write
them a ticket or fine them. The enforcement question has been asked a lot in the 10 years I've
been City Attorney. You are dealing with state and federal law that prevents you from writing a
ticket. You have to have due process. There is a difference between criminal violations and civil
violations. The failure to remove the sign is not a criminal violation. It's more of a civil
violation and due process requires you to take it through the courts The only other alternative is
that if they are in violation of one of our ordinances, you can choose to prosecute criminal or
civil. Civil prosecution is the injunction which I've already talked about. Criminal prosecution
would be through Municipal Court. Violation of our ordinance is not up there with burglary and
murder. They aren't going to do hard time. Municipal court's basic function is to try to get
people to conform to the law and not punish them. Other than that, I don't have anything. I
don't have a magic rabbit to pull out of the hat. Let me check with Bert about the Exxon matter.
Meeting adjourned at 4:30 p.m.
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