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HomeMy WebLinkAbout2001-02-05 Minutes• • MINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT A regular meeting of the Board of Adjustment was held on Monday, February 5, 2001, at 3:45 p.m. in Room 111 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS CONSIDERED Approval of the Minutes Page BA 01-1.00: Variance (Sutherland, pp 598) Page BA 01-2.00: Variance (Andrews, pp 442) Page BA 01-3.00: Variance (Frohnheiser, pp 399) Page Discussion of Raley v. City of Fayetteville - Washington County CIV.98-1097: BA 98-26.00 MEMBERS PRESENT Larry Perkins Michael Andrews Michael Green Thad Hanna James Kunzelmann Joanne Olszewski Marion Orton STAFF PRESENT Tim Conklin Dawn Warrick Sheri Metheney ACTION TAKEN Approved Approved Approved Approved No Action Taken MEMBERS ABSENT STAFF ABSENT Board of Adjustment Minutes • February 5, 2001 Page 2 • • Approval of Minutes Perkins: Good afternoon everybody. I would like to open the February 5, 2001, Board of Adjustment meeting. The first item on the agenda will be to approve the minutes from the January 2, 2001, meeting. Does anyone have any corrections or changes to make in those minutes. None having been heard, would you please enter those into the record? • Board of Adjustment Minutes February 5, 2001 Page 3 BA 01-1.00 Variance (Sutherland, pp 598) was submitted by Mike Henry on behalf of Teresa Sutherland for property located 1935 Arrowhead. The property is zoned R-2, Medium Density Residential and contains approximately 0.28 acres. The requirement is for a 25' front setback. The requirement is for a 25' front setback. The request is for a 20.3' front setback (a 4.7' variance) for the house and a 15.2 front setback (a 9.8' variance) for the deck. Perkins: . That brings us to our first appeal BA 01-1.00 submitted by Mike Henry on behalf of Teresa Sutherland for property located 1935 Arrowhead. The property is zoned R-2, Medium Density Residential and contains approximately 0.28 acres. The requirement is for a 25' front setback. The requirement is for a 25' front setback. The request is for a 20.3' front setback (a 4.7' variance) for the house and a 15.2 front setback (a 9.8' variance) for the deck portion. Does staff have background on this please? Warrick: This structure was built in 1964. Just for location information, this is in an R-2 subdivision that is along 1-540, south of 18`" Street, near Cato Springs Road You can kind of get your bearings on page 1.8 and 1.9. Like I said, the structure was built in about 1964 which is prior to the city zoning code which was adopted in 1970. The structure itself, the house, the front of it, as you can see on the survey which is on page 1.7, sits approximately 20.3 feet which is the overhang dimension from the front setback line. In addition, beyond that closer to the front setback, is a deck which leads to the front door. It's basically impossible to get to the front door without having some sort of deck or landing on this structure because of the slope of the front yard, it's pretty steep. I didn't feel like it would be appropriate to grant a 15.2 foot front setback for a new structure if it where to go in the same location. So, I recommended that a separate setback or variance be granted for the structure itself and the deck so that the deck can remain and be conforming. If the structure were ever to be destroyed, the structure itself could be replaced on the existing foundation but not coming closer than the existing structure is, that extra 5 feet or so that the deck currently occupies. Basically, because of the slope of the yard, the circumstances as far as the date of the structure being erected and it really still is basically in keeping with the surrounding properties as far as the placement of the structure on the lot, staff did recommend in favor of this request. Mr. Henry is here on behalf of the applicant if you have questions. Perkins: Mr. Henry, do you have any input on this sir? Henry: Everything I have, you have. We just want to get it right. It's been wrong for a long a time. Green: I don't have any problem with it one way or another. Board of Adjustment Minutes • February 5, 2001 Page 4 • • Perkins: But you do want any action taken today to specifically mention the front of the house and limit it? Warrick: I felt that was appropriate, yes. That's why I listed the two setback variances separately on the little chart on the front sheet. Perkins: Any further discussion from anyone present today. Do we have a motion one way or the other on this appeal? MOTION: Orton: I move that we grant this variance for the deck only and this would be as long as this deck remains but, for future setback would be the one that is in the house. We need a variance for the house, that would be important. Perkins: Do you want to make this as two separate actions all together? Warrick: That might be easier. Orton: We'll grant the variance for the deck only and it would be temporary as long as the deck remains. Hanna: Couldn't we just say, "as requested"? No offense but, she has it pretty much spelled out for the house and for the deck. l think to just make it simple you could just say, "grant the variance as requested on page 1.1" because I think it specifically says 4.7 for the house and 9.8 for the deck. Perkins: Is that okay with you? Warrick: I think that would be clearer. Orton: Okay. That's fine. Green: I second. Perkins: We have motion and a second to approve the variance as shown on page 1.1, do we have any further discussion? Will you call the roll please? ROLL CALL: • Board of Adjustment Minutes February 5, 2001 Page 6 BA 01-2.00: Variance (Andrews, pp 442) was submitted by David Andrews for property located at 2025 Wedington Drive. The property is zoned R-1, Low Density Residential and contains approximately 0.45 acres. The requirement is for a 8' side set back and 20' rear setback. The request is for a 3' side setback (a 5' variance) and a 11' rear setback (a 9' variance). Perkins: That brings us to our second appeal, BA 01-2.00 submitted by David Andrews for property located at 2025 Wedington Drive. The property is zoned R-1, Low Density Residential and contains approximately 0.45 acres. The requirement is for a 8' side set back and 20' rear setback. The request is for a 3' side setback (a 5' variance) and a 11' rear setback (a 9' variance). Staff, do you have information on this? Warrick: This is another combined request. This structure is located on the south side of Wedington Drive, just east of Sang. There is one lot between the corner and this property. It's a relatively long and narrow lot which you can see on the drawing on page 2.9. Currently the applicant parks an RV on the east side of the structure and they've provided color photographs, as part of your packet, that show where the RV is situated right now in relation to the house and neighboring property. The request, with regard to the RV cover is to put a overhead shelter over the RV and attach it to the east side of the structure. It would be like a carport only raised higher. It would not be an enclosed structure. In order to do that, the side of the RV shelter would end up 3 feet from the east property line. The request with regard to the cover is for a 3 foot side setback. Staff is recommending in favor of that. It's not going to change anything occurs on the site, as it is. It's going to shelter the RV that is currently parked in that location on a concrete pad The neighbors, as far as the neighboring property to the east, their garage is on that side of the structure so that does help to mitigate the impact to property to the east as far as where this cover is going to be. The second part of the request is for the same 3 foot side setback to apply to a small storage shed that's located in the southeast corner in the rear of the property and in addition to the 3 foot side setback for the storage shed, it's too close to the rear property line, it's 11 feet to the rear property line which would necessitate a 9 foot variance to make that shed conforming with regard to the side and rear setbacks. That storage shed has been there since 1970. It's not encroaching any easements as far as we can tell. On this particular request staff would recommend in favor of the two variance requests only with the condition that they apply to the proposed RV cover and existing storage shed only, that they not be blanket variances for the entire side setback and rear setback. I did check with the Building Inspections Division with regard to placing a structure that close to the side setback and if anything that is enclosed such as the wall of a structure, if there is an enclosed wall, it would have to be a 1 hour rated fire wall to be within 3 feet of a side setback on a residential property. With this being an open canopy RV cover, it's fine and there is no • • Board of Adjustment Minutes February 5, 2001 Page 7 Orton: Warrick: Green: Warrick: Perkins: Warrick: Andrews: Perkins: Andrews, D.: Perkins: problem there. If that were to ever be enclosed, there would have to be fire wall built at that location. The only other comment I need to make is that, when and if a variance is granted for the RV cover a building permit would be required to construct that. What about the wall of the storage? The wall of the storage building, the Inspector I spoke with was not concerned with it because it was not a habitable structure. It's one of those things, if it were a habitable structure at that point, it would have to have a fire wall. Have we heard from the neighbors? I have not heard from the neighbors. Actually, I did hear from the neighbor on the west and they have no comments or complaints with regard to the request. They came in to see what it was all about and they were fine with the request. Do you know if the people living to the east are the owner's to that property? I don't know. I know they were sent notification and the sign has been on the site more than a week so, I know they have been notified but I don't know if it's owner occupied. I believe the applicant is here if you have any questions. Chairman Perkins, I'll be abstaining from discussion or voting on this. I know the applicant fairly well. Mr. Andrews, do you have anything to say about this appeal? Well, all I want is a cover for my RV there just to protect it. There are some trees there on the east side and that's one thing I would like to protect it from the limbs falling a little bit and it will be open on the east side. It will just be kind of a cover. That's all it will be. Is it going to conform to the eave of the house? Andrews, D.: Yes. It will be extended on out, raised up and extended on out. It should look fairly well. MOTION: Board of Adjustment Minutes February 5, 2001 Page 8 Green: Mr. Chairman, I move that the variance request be approved for the proposed RV structure and also for the existing storage building on it. Hanna: I'll second. Perkins: We have a motion and second, any further discussion? Will you call the roll please? ROLL CALL: Upon roll call BA 01-2.00 is approved by a vote of 6-0-1, with Michael Andrews abstaining. • • Board of Adjustment Minutes February 5, 2001 Page 9 BA 01-3.00: Variance (Frohnheiser, pp 399) was submitted by Harold W. Frohnheiser for property located at 1183 Fieldstone. The property is zoned R-1, Low Density Residential and contains approximately 0.26 acres. The requirement is for a 25' front setback. The request is for a 22.9' front setback (a 2.1' variance). Perkins: That brings us to the third item on the agenda submitted by Harold W. Frohnheiser for property located at 1183 Fieldstone. The property is zoned R-1, Low Density Residential and contains approximately 0.26 acres. The requirement is for a 25' front setback. The request is for a 22.9' front setback (a 2.1' variance). Does staff have input on this please? Warrick: This one is located in the Fieldstone Subdivision which is relatively new, it's a 1990's subdivision. The structure was built in 1995. This encroachment wasn't discovered until the property was surveyed for transfer of title. We are dealing with second owners on the property at this point. What it consists of, you can see on the survey on page 3.7, the front setback is encroached by a small portion of the structure, the garage portion of the home as well as the overhangs in front of the garage. Therefore, in order to be compliant, a 2.1 foot variance is necessary. The request is being made so that the applicant can have clear title to the structure. From what we can tell, this is a contractor error. They pulled from the wrong area and they didn't consider the overhangs when they were building the structure. It's relatively small. In looking down the street, without taking a measuring tape out to really measure from the street to the structure, it's almost impossible to tell that this structure is sitting closer to the street than the other garages north and south of it. Staff is recommending in favor of this variance request and John Carpenter with Remax is here representing the applicant if you have any questions. Perkins: Carpenter: Perkins: Andrews: Sir, do you have any input? I think she hit the nail on the head. Anyone else present have any input? I have a question on who the builder was? Carpenter: The original builder was Houses, Incorporated. Olszewski: Perkins: Is there anything in place to prevent that from being something that reoccurs? Site inspections sometimes sticks get kicked over, the street is not in, especially • on these newer developments so I know most builders do their best to measure • • • Board of Adjustment Minutes February 5, 2001 Page 10 accurately but there have been appeals that have come before us that sticks have disappeared, get relocated as the groundwork is getting done and they get buried. Yes, to answer your question in short form but there are mistakes that are made. Kunzelmann: Is there any system in place to keep track of how many times this happens and to which builders it happens? Perkins: You notice he has the name of the builder so, yes. Hanna: We give them a break the first time, the second time make them saw off the end of the garage. Kunzelmann: This is at least the second, maybe the third one on this street. Warrick: There are actually a few more coming your way. Carpenter: I think that's the only house that House's, Incorporated built here. Perkins: Warrick: Conklin: Orton: Conklin: This may explain why they all line up. It is a straight street. Usually if there is a curve or cul-de-sac then it's much easier to make these. Sometimes if they are setting a structure right on the setback line, unless they are very meticulous in the way that they locate the footing and put everything in, there is a lot of potential there for them to skew it one way or the other. If they skew it back we are in good shape, if they skew if forward they come before you. We've also discussed requiring survey's to site your house but that's an additional expense, like $300. So, we never have gone that far. Right now we have them sign a certificate saying that they are going to meet our setbacks, we require a scaled site plan for us to check that before they start building and, on the building permit it talks about it's their responsibility to determine where the property lines are and to make sure that they site their foundation, when they start building the house, correctly. Unfortunately, it does happen. It typically happens on a cul-de- sac or curved street. Typically they learn and they don't do it again. We have given some of them a hard time when it's been a repeated incident. We have denied applications before, at which time they typically file suit against the City of Fayetteville. City Council settles that lawsuit by fining them $500 or something, if they are a repeat offender. • • • Board of Adjustment Minutes February 5, 2001 Page 11 Perkins: Any more discussion? MOTION: Hanna: I'll make a motion to accept the variance as requested. Andrews: Second. Perkins: We have a motion and a second, any discussion? Call the roll please. ROLL CALL: Upon roll call BA 01-3.00 is approved by a unanimous vote of 7-0-0. Andrews: James has a good point, do we keep a log of builders that have requested this type of variance? Conklin: We don't have a log of the names of the builders. Typically, staff is aware of who's violating the setback ordinances. We have to write the reports. Warrick: We don't always know. Like, for instance, this structure that was built in 1964, a lot of times, we ask on the application who the builder was and if it's a newer structure, especially if it's in the last decade, we almost always get that information but if it's something older, we don't. Andrews: Is that something, because the Board changes, you all change, is that something that could be easily kept in a file somewhere? Warrick: It's probably something we could start. It would take some work to back track on previous items. Andrews: I don't think we have to back track but I think it would be a good to keep a record of that. We should have been doing that all along. It would be a good thing to do. Green: Sort of like a score card. Conklin: We shouldn't have any trouble putting something together like that to keep track of the violations. • • Board of Adjustment Minutes February 5, 2001 Page 12 Discussion of Raley v City of Fayetteville, Washington County CIV.98-1097: BA 98-26.00. Perkins: That brings us to the fourth item on the agenda which is the discussion of Raley v. City of Fayetteville. Conklin: Chairman Perkins, I'll turn it over to LaGayle McCarty our Assistant City Attorney and she'll give a presentation of why this is being brought back before this board. McCarty: Thank you for allowing me to be here. Towards the end of October, Judge Zimmerman handed down a decision in the Raley case basically overruling the Board of Adjustment stating that the non -conforming use had been abandoned and that the structure on Sunset Street had to be used as a single family residence. At that time, we brought it to you to determine whether you wanted to appeal or not because the City's position was that Judge Zimmerman was correct in her analysis to a point but, that she failed to look at the definitions in applying this ordinance. You gave us permission to go ahead and appeal and we filed the notice of appeal.. Since that time, John Watkins and Steve Parker who are the attorney's for Ms. Raley asked for a meeting with Mayor Coody. Tim was there, I was there and they presented arguments why they felt like it would be in the City's best interest to not go forward. The result of that meeting was that we agreed to bring it back to you all to reconsider. Mr. Parker is here to tell you what his arguments are. Mr. Ira Schwartzman who is the property owner and his attomey Jim McCord are here to give you their opinion on what they would like you to do. Perkins: Before we go any further, can I ask what the City's legal opinion is on it or should we wait for the discussion? McCarty: I think it would be more appropriate to wait after the discussion. Parker: Ladies and gentlemen, I appreciate the opportunity to bring this before you and we got in touch with the Legal Department first when we decided to talk to the Mayor and, as she said, Tim Conklin was there. First I would like to review just a second what happened. Of course, the then Planning Director, Alett Little made a decision, an interpretation of the planning code as applied to a particular situation and she said that since the structure of the house had not changed, although ten years had passed, and the house was being used as a single family dwelling, that the non -conforming use was never lost. Even though the ordinance says that if you discontinued that use for six continuous months, she said that use meant structure, since the structure wasn't changed. The Judge didn't buy off on that, we didn't buy off on that and the Judge says that the statute refers to use and not • • Board of Adjustment Minutes February 5, 2001 Page 13 structure. So, the Judge decided in our favor. Although Mr. McCord might disagree with the Judge, there is a case exactly on point where the Judge looked at the situation and the Judge even said "I'm really sorry because I know these people bought the home as a multi family dwelling and might not have bought it otherwise. I'm really sorry that they are going to lose money off this because it will rent for Tess. We understand that they never changed the structure of the house but still, use is use and if it's discontinued being used as a multi family dwelling, that fits under the Hot Springs statute." That's exactly on point here the Judge agreed. When you all decided these issues, as I recalled it, the last minute we asked you to get somebody down from the Legal Department and you didn't know that was coming so what you all did basically was say "We really are not familiar with the code as much as the Planning Director. We don't have legal staff here, we are going to just back Alett." That was the basis of your original decision. When we met with the Mayor and LaGayle, we said "Who is it that decides actually to take these appeals to the Arkansas highest courts?" They said "That's not exactly clear." So, that issue of who decides on whether to appeal it beyond a Chancery Judge's decision is still a little bit up in the air. The main thing, it seemed and Tim, correct me if I'm wrong on this but, the main thing is that the Schwartzman's didn't appeal this, the City of Fayetteville appealed this so, you all have to decide not what's on the Schwartzman's interest but what's in the interest of the City of Fayetteville and the Planning Department. Whether it's worth continuing being involved in the appeal to Arkansas' highest courts. Tim, correct me if I'm wrong but the main reason why the Planning Department is was worried about this particular case was how they would have to act in the case of a future case has been a problem for them. What I said to them at the time, Professor Watkins said this also, is "Wait a minute, if you want to deal with future situations, we need to not redefine a simple word like "use" and make it into structure. We need to change the code." Professor Watkins and I both said that we would assist them and that they should figure out exactly what they want the code to do. That we would help re -draft the code and get changes to take before the City Council so that the code would do exactly, in future situations, what the Planning Department wants the code to do. Not to try to take the old code which says clearly one thing and bend it to the point of breaking, in the Judge's opinion, trying to get it to do something that it will never do. Another thing is that a decision, under the Fayetteville zoning code, there is also another provision that the Judge pointed out as well, that even if one word say that this could go either way you have to lean towards a decision that would result in the discontinuance of a non -conforming use. It says, she quoted a section from code that says "It is the intent of this chapter to permit these non -conformities to continue until they are removed but not encourage their survival." So, it's our point that it is not in the interest of the City of Fayetteville or the Board of Adjustment or the Planning • • • Board of Adjustment Minutes February 5, 2001 Page 14 Department to take this up to the Arkansas Supreme Court where they have to find the Chancellor is clearly erroneous in a decision of the law. Here I don't think the facts are at issue so, that's the only thing they could argue is somehow the law is not clear, I believe it is. I believe the Planning Department has a legitimate concern of this and that is that they want to be able to do what they feel is right concerning cases similar to this and the only way that can be done is to change the code. If this is taken up to a higher court and the higher court sees as we do, a particular view on the law that is contained is this order then, you are going to get a decision that is binding upon each and every case that is brought before them. I just hope that in making this decision you keep aware that it's not the interest of the Schwartzman's, it's the interest of the City of Fayetteville. A Judge has said the City of Fayetteville was wrong to say that use... In all the Arkansas cases when they talk about use and there are several, one of which is directly on point and some others, they all refer to use as use. There is use of a garage as a repair shop, there is use of a place as a trailer park, there is a use of a multi -family dwelling as single family dwelling, none of them refers to the structure. We would hope that we don't have to take this before the Council, we would like for you to make a decision to rescind this appeal and allow us to help the Planning Department achieve the objective that they want to achieve but are unlikely to achieve if this goes to appeal. Thank you. McCord: Mr Chairman, members of the Board. I'm not here to argue the law, you are not a judicial body, you are a descriptive body. You've previously authorized this appeal. Ira Schwartzman didn't generate this controversy, Mr. Parker's client did. After going through the administrative process that you upheld your own Planning Director and her interpretation of your own ordinance, the Washington County Circuit Court, Honorable Judge Zimmerman disagreed and your staff, concerned about how that might have future implications on application of the ordinance citywide, brought the possibility of appeal to you and you decided that, to clarify the issue, an appeal should be taken. 1 was City Attorney 16 years and quite frankly I've never seen an appeal this far in the process that was rescinded. I've seen appeals taken and a settlement reached but this is not discussion of a settlement, this is a so-called aggrieved landowner saying "We are afraid we are going to lose so, would you please not appeal.? Ira Schwartzman didn't appeal because the City appealed and we have the same interests. I want to compliment LaGayle McCarty, she has done a tremendous job throughout this process, worked with me in the trial court, I wrote the briefs in the trial court and she recommended, based upon the Planning staff's recommendation that the City appeal, she said "I'll handle the appeal." That's why Ira Schwartzman didn't appeal because the City said "We are going to appeal. We need clarification because even though the trial court ruled against us, we think the trial court is • Board of Adjustment Minutes February 5, 2001 Page 15 wrong. Let's appeal and get the appellate court to tell us what our ordinance says. If the appellate court says that the Planning Director and staff is wrong, so be it, we can amend the ordinance to comply but we think we were right to start with." Why in the world they argue the appeal ought to be dropped, it flabbergasts me. Let's get an appellate decision. The code does not have to be amended. Ira may have lost the battle but he won the war. The City zoning ordinance says "A single family dwelling can be rented to no more than three people unrelated by blood or marriage." He is renting that dwelling to three people, no more than three, unrelated by blood or marriage. There is a U.S. Supreme Court case decided when I was City Attorney, Village of Belle Terre v. Boris that upheld the same definition. Ira doesn't really care. He thinks he's treated wrong, he thinks the City, if they dismiss the appeal, is giving a preference to one property owner over another. He's paid me several thousand dollars to prosecute the case this far. I'm not charging him a dime to be here today. We're mad. We think something wrong has taken place. We think the City ought to prosecute this appeal because the Legal Department and the Planning Department recommended the appeal, this Board authorized the appeal, why would you back off now? Parker: Just to clarify it, I think as far as I understand, he's saying that he's not been paid to be here today and something to his show devotion to his legal cause and obviously from his words you can tell he's a compassionate speaker for his particular causes. I think I got $200 for this case. I took it because I believe in preservation of a neighborhood I'm not getting paid anything for appearing here today, as well. I understand Mr. Schwartzman has a particular interest in this but we are asking you to look at the interest of the City of Fayetteville. Perhaps you might want to ask Mr. Conklin what the City of Fayetteville's Planning Department wants to achieve now. Thank you very much. Conklin: Sure. Back on November 6, 2000, I was asked to bring this forward to the Board of Adjustment and asked to present it to you to find out whether or not we should file an appeal on behalf of the City of Fayetteville. At that time, I was of the understanding that this case would pretty much tie my hands at how I looked at residential properties and the number of units. We had a meeting about three weeks ago and I was told that a Circuit Court case does not mean that it changes the Planning Director's opinion on how you look at residential structures. Another question that came up was, "Who has the authority to file an appeal9" "Is it the Board of Adjustment or does it take City Council action?" I think from that meeting, LaGayle jump in here if I'm wrong, I think the decision was it would take City Council action to file an appeal. • McCarty: I will jump in. That's not correct. I have no doubt that the Board of Adjustment • • Board of Adjustment Minutes February 5, 2001 Page 16 is the proper body to decide on the appeal as set out. Conklin: Whether or not it goes to City Council, I'm not sure. My guess is, if you want to continue the appeal, the City Council will have to hear it and make that decision. McCarty: No. The City Council will not have this in front of them. The Board of Adjustment will make the decision whether to go forward with the appeal. Ms. Raley's attorney has said that they will try to get it before the City Council but I'm not sure on what basis she can do that. Parker: The main directive at the meeting with the Mayor said that the word was it wasn't clear, who has the authority to move it forward? McCord: The Mayor is not a lawyer. Green: I was not a member of this body when this first came before the Board of Adjustment and I'm not real familiar with all the details and issues of law and all that sort of thing at that time, however, it is my understanding that the decision of the Board of Adjustment is final and can only be appealed to the Circuit Court in the form of a lawsuit. Therefore, we are the only parties that should proceed with this. If there is a lawsuit with the City involved, I suppose the City Council will have to settle that lawsuit, as the terms of the lawsuit, I'm not exactly sure what the legal procedure would be. It is true that we are not a judge and jury and we are not supposed to decide matters of whether it's legal or not. However, during our last October meeting, I believe, when this was brought before this body, it was very clear at that time that our City Attorney and staff felt that we had a very good case for appealing. We considered those particular issues and decided to proceed at that time. As far as I'm concerned, we have selected a course of action. Whether there are legal issues or not, I think those should be addressed in the appellate court and not appeal to us. It just doesn't seem proper for us to try to reconsider points of law when this is a pending matter that should be up to the appellate process. Schwartzman: I'm Ira Schwartzman. Similar to what Michael has said here, when it was brought before you, the City's Legal Department, Planning Department, everyone on the side of the City, felt that Judge Zimmerman's decision is wrong. They did not agree with the decision and asked you to appeal it and you decided to appeal it based on that. I would just ask you to not withdraw it, dust let is stay and let a Judge weigh the merits of the case and decide. • Conklin: The only difference from what I'm telling you today, from what I told you last • • • Board of Adjustment Minutes February 5, 2001 Page 17 Olszewski: Conklin: Olszewski: McCord: year was, I was under the impression that the court case would tie my hands to take a look at all apartments or duplexes where you have a vacancy for more than 6 months. LaGayle correct me if I'm wrong, my understanding from that meeting was that, this case only applies to that house on Sunset Avenue, it does not apply citywide. Another issue, which we already discussed was, who has the right to appeal? I do know one thing, you made the decision. It's your decision and they filed the lawsuit based on your decision and it's your decision today to go forward or rescind the appeal. I don't know that we necessarily made a decision to do it. We made a decision to follow what the City Attorney suggested. In fact, it says we didn't vote. There was no vote. In fact, it was said that we don't need to do anything. That's what you told us to do Tim. I don't think we need to do anything. We don't need to vote or anything. None of us voted. We left this entire thing according to what the City Attorney thought we should do. The bottom line is there is a pending appeal and the plaintiff, property owner, is asking you to withdraw the appeal that you are the named appellate. To do that, you have to vote to withdraw the appeal. If you don't take any action, the appeal is going to take it's course. The argument has been made to the Mayor, that I was uninvited to, that this decision only applies to this piece of property. Technically, that's exactly right but it can be used to any other piece of property in the City of Fayetteville. If you have a tri-plex and there is one unit unoccupied, you think a complaining property owner is not going to site this case? You are dam right. What about a four-plex? Get an appellate decision. Olszewski: Are you saying those are all triplexes or non -conforming uses? McCord: Olszewski: Perkins: McCarty: Non -conforming uses. What does the attorney say? Can we ask that of you? I know that the opinion from the City Attorney's office is that Judge Zimmerman's opinion is wrong. We don't feel like she completely followed through on the City's ordinance. She didn't look at the definition. The Duchac case is a very good case and it's similar in a lot of ways but that's applying to the • • • Board of Adjustment Minutes February 5, 2001 Page 18 Hot Springs ordinance, not the Fayetteville ordinance. We did meet with Mayor Coody and we did discuss ways to try to resolve this without going forward and one of the ways we did talk about doing that was to try to work to see if there was some holes in the ordinance that needed to be fixed that would keep this from happening again. The result of that meeting was to bring it back to you and let you determine whether the affects of this case were far reaching or whether it would affect how Tim is able to interpret the code with other pieces of property. McCord: If you lose in the Arkansas Court of Appeals, you can amend the ordinance. That happened to me when I was City Attorney. We took the anti -abortion picketing ordinance all the way to the United States Court of Appeals for the 8ih Circuit and we lost on a 2 to 1 decision, we came back and changed one sentence in the ordinance. If you appeal and lose that doesn't mean you can throw out the zoning ordinance use provision, you can amend it quite easily. That's what we did when we lost that case. I don't think you are going to lose but that's one lawyer's opinion. He has one lawyer's opinion. Parker: For one thing, I think the people who are parties of interest here are actually the City of Fayetteville and the folks that I represent and not the Schwartzman's, with all due respect not Mr. McCord. He has an iron in this thing, he's got a dog in this fight but it's not your dog. You are going to have to change the ordinance anyway. I would think that by now we would be tired of lawyers saying what "use" is and how do you define "and". This talks about use. The Fayetteville ordinance talks about use. The Judge rejected that Just like the Duchac case, throws out the structure argument. They made the structure argument. The high court has already said when we look at this and it says the structure didn't change..", they said "Sorry". When you are talking about future decisions if you have a triplex or four-plex and people have not changed it back to a single family dwelling when they are still trying to rent this. That's not going to be the same sort of case as here. Here we had ten years where she said "1 was sick and tired of renting, I wanted it to be a single family dwelling." Both sides have accepted that, that's a stipulated fact. Schwartzman: That's not true Parker: It doesn't matter because it was accepted by both sides so that's part of the stipulated facts of the case. The thing here is, you need to change the ordinance because you can't twist the present ordinance so far as to cover a situation like this and do what you want to do. We've been willing to help Tim get it exactly where it needs to be. Board of Adjustment Minutes February 5, 2001 Page 19 Hanna: I was on the board when the original appeal was brought forth which is a proper procedure. We had a packed room, we had Alett, we had Tim, we went through the case all the way back to the beginning. We had a very good Board and we approved the appeal. That was what this Board was supposed to do, hear an appeal, take direction from our Planning Director who are educated in planning issues, who are educated in our ordinance, we listened to what they had to say using common sense, which is what we used because we are not lawyers. We said it's appropriate to grant him an appeal and we did. They were sued by an outside party. I think we've already done our job, now let LaGayle's legal people pursue it. We already said it was an appeal. I don't think it's our job now to go back and reverse the Board of Adjustment's opinion two years ago or whenever that was. My opinion has not changed. I say let LaGayle appeal it which is the next process. I don't think we are the next process. I think we just say "Go". Do your job and get the court's opinion, that's the way our legal system works. Andrews: I was also in on the original decision that we made and yes we backed Alett but it was after a long lengthy meeting and I don't feel like I misunderstood any of the sides. It was a confusing issue but I don't think I misunderstood and, for the record, I'll repeat what I said before, the argument is between use and occupancy and it's my understanding that if you remove the kitchen for six months then use is abandoned because you've changed the resident use. Just because it wasn't occupied doesn't mean you change the use. That's the way I understand it. I'm not a lawyer but in simply layman terms, that's the way I understand it. I think we were right in our decision then and I think we are right in our appeal now. So, if we need to vote to make it official then let's vote. Conklin: Do they need to vote LaGayle? McCarty: I think by not voting they mean to go ahead with the appeal. If you want to stop the appeal, I think you vote. Andrews: So, by not voting last time or not voting this time we are still okay? McCarty. Yes. Perkins: Does anyone wish to vote on this to withdraw it? Okay, I guess we leave it right where it is. McCord: Thank you very much. • • Board of Adjustment Minutes February 5, 2001 Page 20 Andrews: Conklin: Perkins: Andrews: Green: Perkins: Olszewski: Conklin: Olszewski: Warrick: Olszewski: Perkins: Warrick: Perkins: Warrick: I have a question. Tim, do you feel like the ordinance needs to be changed? Steve is walking out of the room right now and I'm sure he's not pleased that I didn't have a chance to respond to that question but if we are going to say what you just said, use and occupancy, we do need to clarify it and the ordinance does need to be changed and that's what we talked about. We have one real similar west of the stadium at that time one that didn't have sinks but it looked like a four-plex to me. If you could only see what's done of it since then, it's worse. If it looks like a four-plex and smells like a four-plex then it must be a four-plex. That was Gerald's argument on this duplex, he said for dozens and dozens of years it's acted like a duplex. Now, we do have two items of new business, two of our new members don't have a parking pass and Ms. Olszewski doesn't have a new ordinance. I have an ordinance book with a little note on it saying that it was an old one and you didn't have a new one yet. It's like what she just said, we have to know the ordinance and we don't have that. I can't remember what UDO I gave you. Was it a bound plastic binder? It's a bound thing and it had a little sticky on it saying "This is being updated, I'll get you a new one." We delivered everybody's new UDO's but I thought you had a new one. I didn't get one. Was it this week? I did get it. Everybody just got them Wednesday except 1 thought yours was a new one. Come with me to the office and I'll get you a new one. These two guys are out a quarter a month. We'll take care of that. We'II deliver you a parking tag with your next agenda. • • • Board of Adjustment Minutes February 5, 2001 Page 21 Conklin: If you have tickets, give them to me. Perkins: Do we have any old business? Nothing being heard, we stand adjourned. Thank you all very much.