HomeMy WebLinkAbout2001-06-04 MinutesMINUTES OF A MEETING OF
THE BOARD OF ADJUSTMENT
A regular meeting of the Board of Adjustment was held on Monday, June 4, 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 2
VAR 0143.00:
Page 3
VAR 01-8.00:
Page 15
VAR 01-10.00:
Page 24
VAR 01-11.00:
Page 26
VAR 01-12.00:
Page 29
VAR 01-7.00:
• Page 31
Raley v. City of Fayetteville
Page 33
Variance (Vanneman, pp 447)
Variance (Harden, pp 610)
Variance (Ostner, pp 523)
Variance (Stiles, pp 523)
Variance (Bundsgaard, pp 254)
Variance (Hatcher, pp 367)
MEMBERS PRESENT
Larry Perkins
James Kunzelmann
Thad Hanna
Marion Orton
Joanne Olszewski
STAFF PRESENT
Dawn Warrick
Tim Conklin
Sheri Metheney
•
ACTION TAKEN
Tabled
Approved
Approved
Approved
Approved
Approved
No action
MEMBERS ABSENT
Michael Green
Michael Andrews
STAFF ABSENT
•
Board of Adjustment Minutes
June 4, 2001
Page 2
Approval of Minutes
Perkins: Good afternoon everybody. I would like to call the June 4th meeting of the Fayetteville
Board of Adjustment to order. The first item on the agenda is to approve the minutes
for the meeting for the meeting of April 2, 2001. Are there any changes to be made to
those? No changes having been voiced, please enter those.
Hanna: I would like to make a comment for public record. After the last meeting I received a
letter from Arkansas Western Gas.
Perkins: 1 was going to read that into the record.
Hanna: That shows there are two sides to every story and I wish they had been present at that
meeting.
Perkins: I would like to read and enter this into record. In response to a decision made of this
Board and a newspaper article that followed the next day, Arkansas Western Gas
General Counsel and Secretary. "In an Apn13`d article appearing in the Northwest
Arkansas Times related to the denial to the variance of the Nextel Cellular ground
facility, some neighborhood residents were quoted as saying they has been misled about
the appearance of Arkansas Western Gas Company's replacement tower on Mount
Sequoyah and the present of ground facilities at the site. In light of these statements, I
wanted to provide a copy of a letter that Arkansas Western Gas sent to the property
owners in the area on December 21, 2000." A copy of that letter will be entered into
the record too. Continuing on, "Two photographs were attached to this letter. One
photograph depicts the tower that is similar to Arkansas Western Gas' replacement
tower, the second photograph depicts the cellular ground facility. These photographs
were provided as an examples of the appearance of Arkansas Western Gas finished
product subject to the more detailed description contained in the letter. With regard to
the cellular ground facilities, the letter states in the next to the last paragraph, it is likely
that at least one such facility will be installed near the base of the replacement tower.
Arkansas Western Gas has had ground facilities at this site for years. Copies of the
letter with attachments were provided to the Fayetteville City Council members and
copies of the photographs were distributed to members of the public in attendance
during at least one and possibly two City Council meetings. I am not asking you to take
any action, I just wanted you to know that Arkansas Western Gas has made a good
faith effort to communicate with the neighbors and to accurately describe the
appearance of the facility that would be located on this site. Please feel free to contact
me if you have any additional questions."
•
•
•
Board of Adjustment Minutes
June 4, 2001
Page 3
VAR 01-13.00: Variance (Vanneman, pp 447) was submitted by Donna Vanneman for property
located at 522 Fallin. The property is zoned R-1, Low Density Residential and contains approximately
0.16 acres. The requirement is 20' rear setback. The request is a 15' rear setback (a 5' variance).
Perkins: The first appeal is variance 01-13.00 submitted by Donna Vanneman for property located
at 522 Fallin. The property is zoned R-1, Low Density Residential and contains
approximately 0.16 acres. The requirement is 20' rear setback. The request is a 15' rear
setback (a 5' variance). Staff, do you have any background on this please?
Warrick: I do. This property is located at 522 Fallin Avenue. It is a non -conforming lot with a
conforming structure on it. The lot is non -conforming with regard to the size of the
property. The property does not have the required frontage or lot area. It's one of those
older lots in an older subdivision, it preexisted zoning. The structure on the site does
comply with setback requirements. With regard to some previous actions, back in
February, the applicant petitioned the Subdivision Committee in order to make additions to
the single family home on the property. Those proposed additions were approved. Those
additions included a new landing at the front door, a new deck over a walk -out basement
area, as well as a rear deck which could later be converted into a sunroom which was the
understanding at the time the applicant was requesting it. At this point in time, the
applicant is requesting a rear setback variance in order to construct an accessory
building. The request is for a 5 foot variance at the rear for a 15 foot setback as opposed
to a 20. Staff was unable to make several of the findings necessary to recommend in
favor of the request. One of the specific code requirements that was pointed out and I
included in the background section of my report that made it very difficult to recommend
in favor of the request is that, in the non -conforming uses and structures section of our
zoning code there is a section that requires that "An owner occupied non -conforming
residence so expanded or any accessory structure so located may be enlarged, extended,
constructed, reconstructed, structurally altered, or located in conformity with the bulk and
area regulations, yard requirements and building area requirements in the R-1, low density
residential district." Which means that, when we are talking about a non -conforming lot
of record and placing an accessory structure, which is permitted, there would be no
problem placing an accessory structure on this lot but the requirement under two sections
of the code, not only the description of the zoning district and the requirements stated in
there for the setbacks, but also in the non -conforming lot of record section which states
that the 20 foot setback has to be complied with. We've got two sections of the code
that require this setback to be enforced and that's why, that in addition to some other
findings that are stated in the report, are the reasons staff is unable to recommend in
favor of the request. If the Board however, does feel that this request is merited and
decides to recommend in favor of it, staff would recommend that a condition be placed on
that approval that the accessory building not be converted to a detached second dwelling
at any point in time, that it serves solely as an accessory to the existing single family
home. The applicant is here and I'm sure she would be willing to answer any questions
and discuss the request with you.
•
•
•
Board of Adjustment Minutes
June 4, 2001
Page 4
Vanneman:
Perkins:
Vanneman:
Perkins:
Vanneman:
Perkins:
Vanneman:
Perkins:
Vanneman:
Perkins:
Vanneman:
Perkins:
Vanneman:
Perkins:
Vanneman:
Perkins:
Vanneman:
Perkins:
Vanneman:
Donna Vanneman. I want to make a change, the 15 foot setback to 12 foot setback.
That would be an 8 foot variance.
Yes.
Why would you want to do that?
First of all, if I go with the 20 foot setback I have to cut down all my trees, two cherry
trees, two oak trees, mulberry tree and a hickory tree.
Are these represented by these circles here?
Yes. I just don't want to cut down those trees at all. I don't know if you see my picture
of this, it's not like an accessory building, it's more like a studio. As far as the setback,
20 foot is level and then it slopes down. I contacted Arkansas Western Gas, they had a
high powered gas line going through my property but he marked it with spray paint and
it's very near the wall. I don't think I would be messing with it at all if I did 12 foot
setback.
Does it run along the east side of your property running north and south?
Yes.
Parallel to the house?
Yes.
Right on the property line?
Yes.
On this drawing right here, about where does that step down in the yard occur?
It starts sloping down before those trees.
To the east of them?
Yes. I'm at the foot of Mount Sequoyah so, I have a property that is sloped.
There is a pretty good step there going through your backyard.
I have to have steps to go up to my studio. I will have that when I go to build.
Board of Adjustment Minutes
June 4, 2001
Page 5
Perkins:
Osborne:
Perkins:
Osborne:
Conklin:
Osborne:
•
Perkins:
Osborne:
Conklin:
Osborne:
Vanneman:
Osborne:
Vanneman:
Olszewski:
Osborne:
Hanna:
Perkins:
•
Is anyone else present?
My name is Crant Osborne, 1 am with Arkansas Western Gas Company. We do have a
6 inch high pressure main that runs along the east property line. We are about 5 foot
west of that east property line to my knowledge. That was installed in the late 1920's,
early 1930's one of the first mains put in Fayetteville when gas came in. It's rated at 515
pounds of pressure. We don't normally carry that much pressure on it but we can go up
to that high. For safety reasons we would oppose the setback variance.
The dirt work that would happen near and around?
Not necessarily that, we Just like to keep a cushion between any high profile line and
residential house or any type of structure for that matter. Normally on that particular
type of line, if we did one today, we would get a 50 foot right-of-way.
Do you have a current easement over that line?
1 just got this Friday, I looked to see back to 1920, 1930's. I found some old easements in
that area but I wasn't for sure they were pinned down to that exact location if we
actually have one. I'm sure there is but I have not been able to locate it as of this day.
How old did you say that pipe was?
It's been in since late 1920's, early 1930's.
How far off of the east property line is it onto this property?
I was told about 5 feet.
I checked today with the guy that sprayed it, it's about 3 feet.
He told me 5.
I had my carpenter measure it so I know it's three feet.
How far would you want the building to be from the gas line?
Normally, if one was put in today we would ask for 25 feet minimum.
Where is that in relation to this?
I think it runs north and south along the east property line.
•
•
Board of Adjustment Minutes
June 4, 2001
Page 6
Hanna:
Vanneman:
Hanna:
Warrick:
Hanna:
Conklin:
Vanneman:
Warrick:
Hanna:
Warrick:
Vanneman:
Hanna:
Osborne:
Hanna:
Osborne:
Olszewski:
Vanneman:
Is the dotted line the property line?
No. It's the setback.
It says here 25 foot setback.
That's incorrect. The requirement is a 20 foot setback in this zoning district.
Was this guide line drawn to scale 20 feet from the property line?
It's not drawn to scale.
Don Hancock drew this sketch.
My understanding, from what Mr. Osborne is saying is that the line would be located
either 3 or 5 feet into the property, that would give you a distance of about 15 to 17 feet
from the required setback if you were using the 20 foot required setback off that property
line.
My question is, if they have an easement and they haven't located it yet... You can't
build on the top of a utility easement at all, is that correct?
If we have it on record. Whichever one is greater takes precedent. If the easement is
larger than the setback, the easement becomes the setback, if the easement is smaller
than it still requires the minimum setback.
Where is the easement?
Back in the 30's did they ask for an easement 2 feet for an 18 inch line?
That's the thing, even if we could find the easement, I don't know what it's going to say.
It might say 10 feet, 20 or 30 feet. I don't know. I did find a couple of old ones in that
general area that wasn't for this particular piece of property and they were dust blanket
easements.
That says we can go across your property.
I don't know what a legal term would be if it went to a court of law, basically you can go
across that piece of property.
Wouldn't your deed have that easement on it?
1 checked very thoroughly and I couldn't find an easement anywhere. As far as I'm
Board of Adjustment Minutes
June 4, 2001
Page 7
Olszewski:
Osborne:
Vanneman:
Osborne:
Vanneman:
Osborne:
Perkins:
Hanna:
Vanneman:
Perkins:
Vanneman:
Perkins:
Vanneman:
•
concerned, there is no easement.
How much longer would it take you to find the easement?
I don't even know that I would be able to find one. It might take a week or so. We are
not opposed to the building or anything, just for public safety is the only reason we would
be opposed to it.
If I build a slab instead of piers, would that be better? Obviously, I don't want to dig in
the ground if the line is there.
We are not as concerned as much about you digging in the ground than we are if
something were to happen to that line, we would need to get in there to repair it. We
have to get in quickly to repair it. A lot of those older houses down there it would be
difficult to get in the conduit. It's been there a long time, nothing major has happened that
I'm aware of but if it developed a leak or something in that regard, for your safety.
13 feet would not be enough for you to get in there?
It would make it very crowded. It's just for safety purposes, is our only concern.
Anyone else have comments? I don t have any questions.
Is this going to have utilities, this studio?
Water and electricity. It's just that I'm doing painting and tiles and I have to have water.
I have to have a work sink and of course I have to have electricity. I have it leveled.
I've never done anything like this before and I guess I had it leveled so I could build and I
would go to you and get a variance to build and then I would go to you and get a variance
to build. I think I leveled it before I came to you.
Without the consideration of the trees, is it possible to build up the site to go to the
southeast corner of your property and stay within the setback requirements?
No.
Why not?
I have the door coming and there is an opening to the Arkansas Western Gas property.
The only thing alarming me was there was a raw sewage pipe that is foul. I called the
Health Department last week and they said they would get on it. I just can't be near that
sewer line.
•
Board of Adjustment Minutes
June 4, 2001
Page 8
Olszewski:
Vanneman:
Hanna:
Vanneman:
Orton:
Vanneman:
Conklin:
Vanneman:
Conklin:
Perkins:
Vanneman:
Perkins:
Vanneman:
Warrick:
Perkins:
Vanneman:
Olszewski:
Vanneman:
There is a sewer line here?
This is my setback on my sewer line. I think it's beyond the boundary of my property.
This is a sewer line here which is going from my house and then this is a sewer line going
from the back of my house. I called the Western Gas Company and they didn't respond,
so I just called the Health Department. Until I had the brush taken out, I didn't realize it
was there.
This is an exposed above -ground sewer line?
Yes.
Is it a City sewer line?
Yes.
Have you contacted anybody at the City?
I just called the Health Department.
I'll contact someone here at the City.
If that was remedied would that be a buildable spot?
I just want it to be leveled with the north side of my house so that I can work outside. I
have trees on the west side so I really can't have a deck. The only space I have with a
deck outside would be on the south side. I can't really go up that far because I couldn't
be outside when it gets hot. I just wanted a deck so I can work outside and put a kiln
outside of my building here.
Are you referring to that 10 by 10 back there at the east end of the house?
Yes but that was already there.
It hasn't been constructed but it was approved.
There is a deck on this building?
I haven't built it yet.
It would be right there?
Yes.
Board of Adjustment Minutes
June 4, 2001
Page 9
Olszewski:
Vanneman:
Olszewski:
Vanneman:
Olszewski:
Vanneman:
Olszewski:
Vanneman:
Olszewski:
Vanneman:
Olszewski:
Vanneman:
Orton:
Perkins:
Vanneman:
Kunzelmann:
•
You want it to be in the shade?
Yes.
There is more setback over here.
I really wanted it to have a 12 foot setback instead of 15.
There is no way it could be over here?
No.
If you don't get the variance, you can't have it there either.
Yes. It's kind of like 1 have such a small parcel of land that 1 guess I'm not going to
have a studio, but I really want a studio.
I understand. This deck hasn't been built?
No.
What if that was changed and it was planned here somehow so you could still have your
deck. You could have your studio and you wouldn't have a worry if there was ever a
problem with that gas line, that they would come in and mess up something of yours, plus
the safety measure.
There is a wall right here, it goes up and then of course I have many trees here too. It
would be difficult. Because I have a one bedroom house, I was thinking about adding
onto it to make it two bedrooms. My studio is going to be separate from my work place
and my living space.
This is the part that hasn't been built yet?
It's already been approved.
This is my property right here. There is nothing but woods and then the wall that
separates my property from their property. Essentially, regardless of counting the gas
companies high powered line, it wouldn't be a large studio. It wouldn't be in anyone's
way. Hank is right there, he said he was dealing with the Western Gas Company to have
a community garden on their lot and I've asked them several times if I could buy that lot.
Is it possible to alter the footprint of the building to make is slightly narrower or longer, the
proposed studio?
•
•
Board of Adjustment Minutes
June 4, 2001
Page 10
Vanneman:
Hanna:
Vanneman:
Hanna:
Vanneman:
Hanna:
Vanneman:
Olszewski:
Vanneman:
Olszewski:
Vanneman:
Orton:
I have no idea. Originally I wanted to do 24 by 18, it's 20 by 16. If I go south with it, I
will add onto it. I would like to have it 24 by 16.
How far is it from the western wall of the proposed building to this wall?
It's about 20 feet down, right with the deck.
I thought the dotted line was the wall.
This would be the setback if I did a 25 foot setback. That would be the building and I
would have to cut down all these trees. I Just don't want to do that.
The question is, do we cut down all these trees and not give the variance or do we give
her the variance?
Also, I'm handicapped and it would be wonderful if I just had some steps to go up from
there to here instead of walking around.
The only other part of that is that gas line, that's a concern. How do they get in there?
I must admit that I had the brush taken out and they couldn't have gotten in there at all
until I took the brush out
That's assuming they would go on your property.
Yes. There is some brush on their property. I had to cut down two trees to get the
bulldozer in there.
Where is this gas line? In between the back of hers and the lot line?
Kunzelmann: Three feet from the lot line.
Vanneman:
Orton:
Vanneman:
Orton:
Vanneman:
Yes. My carpenter measured it and it was 3 feet.
This 8 foot dotted line, this is where it would be if it were up here? Then it would have to
be up here in the yard. You say that this has been approved but it hasn't been built?
Yes.
This 10 by 10 is not any kind of workshop?
No, it's an add-on to my house.
Board of Adjustment Minutes
June 4, 2001
Page 11
Olszewski:
Warrick:
Olszewski:
Vanneman:
Olszewski:
Vanneman:
Olszewski:
Vanneman:
Hanna:
Hanna:
Kunzelmann:
Orton:
Olszewski:
Vanneman:
Hanna:
Vanneman:
Macrae.
Is your front setback close to 50 feet?
She's probably about 45 feet back from the front property line.
You are really pushed back in front. There is no space in front to build it?
I have two big maple trees and an enormous oak. I have pine trees all along there and a
driveway and rock wall.
How far do you think it is from that to the wall?
14 feet is the wall from my house.
From the house to the wall is 14, so this is only 4 feet from the wall to the deck?
No. I think I haven't gotten the wall in this drawing. That's the trees.
That's where the house would be if she adhered to the setback, the wall is in between
those two.
Is there any way you can turn that to where it goes perpendicular to the direction it's
going right now and take out a few of those trees.
Which would give you north Tight through the windows.
Is there any way you could combine the studio and the deck?
That's something you can think about.
I don't think so. I feel closed in as it is.
If this is a deck that could be turned into a sunroom in the future, then if you could walk
directly from your deck into your studio, it seems to me like that would be easy access for
you. If this is 20 feet between the edge of the deck and the proposed wall and building.
If that's really 20 feet, if you moved this wall right here this way and move your building
more like this, you would have easy access from your deck and you would maybe not
even touch the setback. Have you thought of that?
I've thought of everything. It's not level. This is one of my neighbors. Can you describe
what my parcel of land is like in my back yard?
Suzanne Macrae, 517 Fallin Avenue. What's been done to it now or what it looks like
ordinarily?
Board of Adjustment Minutes
June 4, 2001
Page 12
Vanneman: What's been done to it now.
McBride- Yes, there is a flatness to the very back of the property and then there is a little incline
with some makeshift stairs. There have been some underbrush and small trees and
unfortunately a large tree was removed, which wasn't supposed to be removed and there
has been some smoothing out of a rectangular space for a possible studio.
Orton: The neighbor right behind this where you will be almost up to the property line is not
affected?
Vanneman: 1 sent them the public hearing notice and the only one that showed up was Suzanne.
Hanna: You are asking for a 5 foot variance request and 15 foot setback to 20 and then you said
something about 12, does that mean we need an 8 foot variance?
Vanneman: Yes.
Olszewski: Which would put it 9 feet from that gas line.
Vanneman: I've lived here for going on 18 years and I never knew about this gas line. I didn't know
about that raw sewage. It was a jungle out there. When I graduated from college I
wanted, my art stuff is just all crammed in my basement and I don't have a place to
work. My basement is flooded. It's very difficult for me to work with it running all the
time. The block grant is going to come in and hopefully put in a french drain so that it will
not flood but I don't know if that's possible because I'm pretty much on the downhill
slope of where the water comes in.
Orton:
That sewer, if it's been like that for a while, there are probably a lot of tree roots in it. If
the City could, Tim is going to see. I had a flooded basement and they got the roots out
and it got rid of it.
Vanneman: It's not the sewer. I know exactly where it comes in and it's the northeast corner of my
house.
Orton: There are not any close neighbors, you have the woods around there?
Vanneman: Yes. My house on the north side is very close to me but it's like 16 feet on the north side
of me. I have no other neighbors.
Perkins: What we are trying to design here is with a little different planning and a little bit different
design if you couldn't complete your project within the setbacks and then there wouldn't
be an issue. You don't see any way?
•
•
•
Board of Adjustment Minutes
June 4, 2001
Page 13
Vanneman:
Kunzelmann:
Olszewski:
Osborne:
Kunzelmann:
Vanneman:
Perkins:
Hanna:
Vanneman:
No.
I have an idea for consideration. The sewer line that runs east and west here along the
property line, if indeed the sewer line is clogged with tree roots, which we don't know
yet, when they replace that sewer line, many trees will have to be lost. I was wondering
how much that would open this area to re-site the proposed studio, if when the sewer line
is replaced?
If it does open it up, there might be a difference, the gas company might be able to get in
there a little easier.
It's not necessarily an access issue, that's part of it, it's a multifold thing, we Just like a
buffer zone to keep people away with ignition sources and that type of thing. If you have
500 pounds of pressure, most of our pressure around town is like normally 35 pounds and
this on has up to 515 pounds capability. If we were to have a problem with it, it could
potentially be a very dangerous situation. We want to keep it away from any type of
ignition sources. That's another reason for the buffer zone. It's not just to get access to
it. Of course we would also have to get access to it also. We have a very good track
record as far as ruptures and that type of thing. It's been there for 70 years and to my
knowledge we haven't had any problems with it.
With the proposal of a possible outdoor kiln on the site, that concerns me greatly. The
farther that kiln can be sited from that gas line.
I would put it down far away from the gas line. It would be like 30 feet away from it.
That's in the future. I make tiles, so I don't need a big kiln. I need it to open up and then
put the tiles in there. I don't do pots or anything, I just do tiles. This is the property of
Southwestern Gas and I made a clearing so the backhoe could get in there. It was a big
backhoe. Then the sewer line is just west of this opening here. That's why I was saying
that I would have the door directly so I load stuff out of there so I could sell it.
The original request was for a 5 foot variance and you are requesting today to extend that
to an 8 foot variance.
Why did you move it from 5 to 8?
I had little time to get this in. I thought about it and I got with the carpenter and for the
building to be level with the entranceway through Western Gas' property, that's why I
had it. See now here is the doors and the entranceway was right here. 1 would put
gravel in or something to have a truck get in there. I don't know exactly how I'm going
to get my artwork out of there anyway. I don't know any other way to do it.
• Perkins: I personally hear an issue of safety involving a high pressure gas line. The setback, even
•
•
•
Board of Adjustment Minutes
June 4, 2001
Page 14
if you stay within the ordinance requirements would be something that the gas company is
not particularly comfortable even at that, since they would like a 50 foot setback.
Vanneman: That's pretty much to my house.
Perkins: That's what they would like to have if it was today. Since this thing has been in the
ground for many decades now, you've got the setback requirements and the right to go
within 20 foot of your back property line regardless of where the gas line is. The
question would be if you want to go any closer than that?
Vanneman: I would have it to where a slab like 16 by 20 foot or maybe north and south a little bit
longer. It doesn't have to do with the setback at all. I don't really see that I would be
back there because it's wild back there. It seems like my studio is getting smaller and
smaller. I don't know exactly what to do about it.
MOTION:
Orton:
I would certainly like for her to have her studio, but I wonder if we should see what is
concerned about the sewer and think about this. We should delay this to the next meeting
and we can table it. I'll move to table this because there are some things that I think
need to be worked out.
Kunzelmann: Second.
Perkins: Call the roll please.
ROLL CALL:
Upon roll call the motion to table is approved by a unanimous vote of 5-0-0.
•
•
•
Board of Adjustment Minutes
June 4, 2001
Page 15
VAR 01-8.00: Variance (Harden, pp 610) was submitted by Roderick W. Harden for property
located at 5169 Cattail Court. The property is zoned R-1, Low Density Residential and contains
approximately 0.34 acres. The requirement is a 20' rear setback. The request is a 10' rear setback (a 10'
variance).
Perkins: That brings us to the second appeal on the agenda 01-8.00 submitted by Roderick W.
Harden for property located at 5169 Cattail Court. The property is zoned R-1, Low
Density Residential and contains approximately 0.34 acres. The requirement is a 20' rear
setback. The request is a 10' rear setback (a 10' variance).
Warrick: This property is located in the Sequoyah Meadows Subdivision which is on the south side
of 16 East, headed out towards Elkins. It's an R-1, single family residential subdivision.
The subject property is constructed, the house is existing. It has a privacy fence
surrounding the rear yard. In this particular case, the applicant is requesting the variance
to the rear setback requirement in order to erect a storage and shop building at the 10
foot setback line. In the submittal materials the applicant states his request for the
variance is based on aesthetics and the preferred siting on the property. Staff is
recommending denial of the request. We were unable to make several of the required
findings in order to recommend approval. There are no special conditions unique to this
property such as terrain, vegetation or other features or circumstances which would
require the placement of the structure closer to the rear property line. There is adequate
land available on the lot in order to site the project in an area that complies with setback
requirements. Therefore, staff is making the recommendation that we have. I believe
that the applicant is here and I'll answer any questions you may have.
Perkins: Mr. Harden, do you have any input on this appeal?
Harden: I do. I don't know how well I articulated my request, in writing, when I sent it in I was a
bit hurried getting it prepared to meet the deadline so I could make this particular meeting.
It is true, the way my backyard is structured, I could place the building in a different
location. However, the primary reason that I wanted the building back there was to have
a storage facility for my boat, which under the covenants of our subdivision cannot set
forward of a privacy fenced back area. There are several that do, I don't want to be one
that is not in compliance. The double drive gate sits on the east side of the property. In
order to back a boat and everything into that particular building, it would need to be set on
that side of the property because I don't want to be trying to maneuver a boat backing
through the back yard. If we move the building forward to the 20 feet, that gives me 17
feet from the front entrance of the gate to the northern edge of the proposed structure.
17 feet is not enough room to go through a narrow double drive gate with a full sized
vehicle to gain access to the rest of your yard with a vehicle, if you needed to get back
there to do yard work or bring in trees or whatever. If you move over to what would be
the southwest corner and come out the 20 foot, there is established a planter and tree and
then on this particular area right here there is another established tree right there. The
Board of Adjustment Minutes
June 4, 2001
Page 16
only way that I can see to get a boat into that particular building with any ease without
tearing the boat up, I can't move the double drive gate on this side because I have a
single walk gate on this side but the bulk of my property is on the eastern edge of that
side and I have lots of room here to be able to back through. That was the whole
reasoning behind wanting the building. There is a 7 % foot utility easement to the south
edge of the property, on the back line. I was proposing 10 feet, which is actually 15 feet
and the fence sits right on the property line when it was surveyed, it splits the middle of
that 15 foot easement that goes in the back. There is no gas that runs through there, it's
just electrical lines. That's the whole reasoning behind what I was wanting to do. Yes, I
did site aesthetics because if you look at the property too, that's the only place that it
looks right within the property. If you place it somewhere else of you move it 20 feet out,
you lose all of the ground area behind that which is hidden which you cannot landscape or
anything to that nature. The lots out there are oversized lots for a residential subdivision.
I think mine is listed at .34 acres, 150 deep by 100 wide so it's not exactly a postage
stamp but if you place it anywhere else within that lot, to me, it even further causes a
hindrance to someone who lives behind you if you move over to the other side. I simply
can't move it forward and still be able to get into my back yard.
Perkins: You made mention of a storage building on the property to your immediate east?
Harden: There is.
Perkins: Staff, can you help me here? On this drawing on page 2.9, the subject property is lined
out and to the east there is what looks like that building represented on the print.
Harden: I have a photo that you can see.
Perkins: These three dotted lines to the immediate south of that small building on the print, what do
those represent?
Warrick: The centerline is the property line between the Tots, the north and south lines are the
edges of a utility easement.
Perkins: That does not represent a setback requirement off the back property line?
Warrick: No. The small storage building on the lot adjacent to Mr. Harden's is most likely in
violation, we would not have been able to issue a building permit for that structure.
Harden: The structure that's there, of course I didn't walk into my neighbor's yard and measure it,
it is actually a 20 foot long by 14 to 16 feet wide and it's slab construction, Masonite
siding, 3 tab comp shingle roof, it's a permanent structure and it sits within the utility
easement. It's 51/2 feet from my property line to the edge and from the back area, which
there is a 71/2 foot utility easement which continues to run across that property as well, he
•
•
•
Board of Adjustment Minutes
June 4, 2001
Page 17
is sitting 6/ feet so he is actually 1 foot into the utility easement.
Perkins: You are not wanting to line up on that one?
Harden: No. I'm going to be 10 feet this way and 10 feet from all edges of my property line.
There is an 8 foot setback in the R-1 zoning from the side to that adjacent east property.
I was going to be 10 feet that way and 10 feet back this way, which allows ample room
for utility access. You could get a vehicle backed into a 10 foot area if you needed to
back in to do something, and still make use of the bulk of my yard area.
Conklin: I just want to make sure the Board is aware, the drawing on page 2.8 that shows the
proposed 600 square foot garage is not to scale, it should be larger than that. I just want
to bring that up.
Perkins: Larger in all directions?
Conklin: Yes. If you look at his house, his existing garage looks like 21.8 and 18 feet, you are
talking about a building that is 20 feet by 30 feet, so it's larger than the garage.
Perkins: The existing shed will be removed?
Harden: Yes. It's an 8 by 12, one of those portable storage buildings. I was a bit disappointed, I
too found that nothing on this particular plat, that I paid for when I closed on that house, is
to scale and nothing is listed correctly on several of the drawings. They show the south
side as the north side and the west side as the east side. When I started doing this, I was
wondering what I paid for when they did my survey and everything on my house. That's
correct, I attempted to make it to scale to the best of my ability but was unable to do so.
There is ample space for the building back there but if you move it another 10 feet
forward it does make a difference.
Perkins: Is this the appeal you said you were running power only to the building?
Harden: Eventually yes. In the initial request, it's just going to be a finished shell on the outside of
similar construction to be in compliance with my subdivision covenants. Vinyl siding,
architectural shingle roof, slab construction, fixtures on the outside and I will have
electrical service ran to it but it won't be probably six or so months after I get it built. I'm
trying to build it out-of-pocket rather than do it and have to incur any interest being paid
against the building. I can do that but I can't do that with electrical service without
strapping myself a bit. It will be finished on the inside once the electrical service is done.
From the exterior minus electrical service, it will be absolutely identical to the type of
construction that the house is within the subdivision.
Olszewski: Does the 10 feet include the overhang?
•
•
•
Board of Adjustment Minutes
June 4, 2001
Page 18
Harden: Yes.
Olszewski: The actual foundation...
Harden: Yes or I could move it out. It doesn't matter. It can either be 11 feet out if you want to
include the overhang. On this particular building the contractor and I discussed a one foot
overhang rather than a 2 foot like you would probably find on your dwelling. It would
actually be 11 feet and I don't have a problem with that. You can set out 11 feet, 12 feet
but when you are talking about adding another 8 or 10 feet, it doesn't make it possible for
me to get the vehicle pulled into the back. I didn't even realize that when I wrote the
letter. This last weekend I was in the back yard with my pickup doing some additional
yard work back there. I have it staked where I want it to be minus the setback provision.
As 1 pulled in, I had plenty of room but if it was much tighter I might not be able to do
that. I measured back out and drove stakes again and when I drove in the second time,
there was no way to make the tum with a full size pickup and be able to clear the gate. I
actually have to fold the mirrors in on the side to go through that thing. When they build
that fence, they make those gates about as narrow as they possibly can. I realize that the
building to the east of me does not constitute approval by the Board but that building was
there when we moved there three years ago. They obviously did not get a permit to build
that particular structure. No one has complained, it's not been a hindrance, it looks right,
it's in the right place. If you moved it 20 feet forward it would sit right in the middle of
the back yard which would be completely out of place when you looked at it. That's the
only thing I can comment on that particular building. That's pretty much all I have to
bring to the Board in the interest of being brief.
PUBLIC COMMENT:
Perkins: Anyone else present have a comment on this appeal?
BOARD DISCUSSION:
Perkins: Does the Board have any questions?
Harden: Not that this is a concern of the Board but I'm tired of paying $75 a month to have my
boat stored when I can have something of my own and on my property that 1 have equity
in, value to my property. I am not going to set my boat in my front yard like several of
my neighbors do because I take pride in where I live and I want it to look right. That was
the whole reasoning behind wanting the structure. If I can't place it where I want to
place it, I won't build the building because it will not fit my needs. I want it to look good
in the neighborhood, I want it to be accessible for use. That's the reason I'm not putting
up a metal structure or something like that, I want it to look right in the neighborhood.
Orton: In looking at why staff turned it down...
•
•
Board of Adjustment Minutes
June 4, 2001
Page 19
Harden: It was most likely a poor narrative on my part.
Perkins: There were no special conditions.
Harden: I understand that.
Conklin: The applicant can't cause the need for the variance. There is obviously adequate room
on the property to build it. You are basically building a garage, it's not a storage shed.
It's larger than your existing garage. Staff, everyday it seems like, we have people that
want to put sheds in the setbacks. I've had to have people move them out of the
setbacks. It's difficult for us to support a variance of this type when it's not even a shed,
it is a permanent foundation garage that you are building.
Harden: Indeed and I can only say that if my boat would fit in my garage, that's where it would
be. It won't fit in the garage and I've tried every way imaginable to put it there and still
have room to park at least one vehicle within the garage. I understand why they
recommended denial but I simply wanted to express my concern to the Board. To me, I
guess this is the underlying factor in my mind, the person who has the structure to the
east of my property, none of the neighbors within that particular subdivision have filed a
grievance or complained about that building being there. If they had, some action would
have taken against that particular building. Either it would have to have been moved, torn
down or relocated. At least they would have had to come in front of you for a variance
after the fact. With that in mind, they are able to enjoy the use of their property and the
full use of their back yard as a result. By my trying to do the right thing and getting a
building permit and coming to the Board and requesting that, that was my only concern is
that when I saw the letter recommending denial, because of that I can't enjoy the same
right that they are with their property because they didn't follow the law. Granted, I
know that is not reason to grant but I had to get that off my chest. That being said...
Olszewski: Did anything happen out of that?
Conklin: No. We haven't received any complaints. Typically on outbuildings like that, it's a
complaint basis. A few years ago we had to have a jungle gym thing moved out of
somebody's backyard. Once again, my point was this is not a typical storage shed, it's a
fairly substantial building.
Harden: It's not, by square footage or size, that building is 20 feet long or 16 or 18 feet wide and
I'm proposing a 20 by 30. There is a little bit difference in the size of the structure but in
the grand scheme of things when you are sitting within the utility easement already...
Hanna: I'm just curious, you said the boat will fit in your garage, you can't get a car in there. If
the garage is 18 feet deep how come this is going to be 30 feet?
•
•
Board of Adjustment Minutes
June 4, 2001
Page 20
Harden: My garage is oversized, it's 21 foot deep if I'm correct.
Conklin: It says 18 but it may go further into the house.
Harden: It does. It's actually 20 or 21 feet. My boat is 19 feet with the motor hanging off the
back of it plus the tongue sticking out, which is not one of the collapsible fold -away types.
It takes about 26 feet to get the boat under cover straight. I can stick it in the garage but
I have to unhook it and run it sideways. It sets Just like this in my garage and it goes from
tip to tip. I can barely fit it in there.
Olszewski: You want to go 10 feet in, 2/ feet past the utility easement?
Harden: That's correct.
Olszewski: If you were on the utility easement...
Harden: If that whole drawing is to scale which we are not certain.
Olszewski: There is a 30 foot building.
Harden: Let me just ask you this. On that, just to see if we are to scale with that particular
drawing the appraiser did, exactly from the fence here, if we moved it out to be within the
zoning requirement, there is 17 feet from here to the front edge of the building.
Olszewski: From your house?
Harden: From the fence. That's the double drive gate. From this fence, if we had it sitting within
what we proposed which is the 20 foot setback from the rear, there is only 17 feet from
here. I don't know that this whole lot is to scale. 1 wish you would have been able to
have looked over because you would have seen the stakes as they were set on the lot
itself.
Olszewski: If you did it that big and you moved it over here...
Hanna: Getting back on the size, is there any way you can make that 25 foot deep? That's all
you are going to be putting in there right?
Harden: I measured my boat from the top of cowling even with the motor down, from the top of
the cowling to the very tip of the tongue and it's 26 feet. You've got to have a little
fiidge factor when you are backing that into a building so you don't stick the prop through
the back of the wall. That's even letting the motor down, that's not having it kicked up
on the motor toter which you would normally travel. In the interest of trying to keep it as
small as I could but still not punch a hole through what will be finished sheet rock on the
•
•
•
Board of Adjustment Minutes
June 4, 2001
Page 21
Olszewski:
Harden:
Perkins:
Harden:
Perkins:
Harden:
Perkins:
Harden:
Perkins:
Harden:
Hanna:
inside and still have a little room getting the door shut without having to grad a hold of the
tongue and drag it sideways, which defeats the whole purpose of building the building.
How tall is it?
It's going to be 16 feet, it's going to have a 6/12 pitch on it. It has to be at least 6/12 for
the shingle manufacturer to warranty the shingle for runoff. I don't want to have a big
monstrosity of a structure back there. I want to keep it as low profile as I can in the
back, for my benefit, so that when I look at the front of my house I don't see a huge shop
building in the back and for everyone else's benefit. 1 also want it to look like the house.
I currently have it staked in my backyard where 1 propose putting it. You can get a
visual representation of where it's at.
Certainly if the appeal is granted it would be restricted to just that building, it would not
run the whole east west direction of that property line.
I don't intend to build any other. 1 guess one more difficult things for me to understand,
this is to the layperson, why there is 20 feet to the rear of the property yet only 8 feet to
the sides? 1 can build that building 8 feet from my neighbor on either side but I have to be
20 feet from the rear of my property which there is more space to the rear of my
property than there is to the adjoining sides. To the layperson, when I stand in my
backyard and 1 walk around with a tape measure and measure all the proposed places
that this building could be and still have use of it, I look at the 8 foot to the sides and 20
foot to the rear and I just scratch my head and say "Why?". There is probably a reason
that I'm not privy to.
In a lot of cases it does have to do with the utility easements. Their vehicles and fire
trucks need at least 16 feet, so it would be 16 feet from your neighbors overhand to your
overhang and they can get through there.
I'm looking at it in my subdivision, from that perspective. Between the two houses from
back to back there is probably 150 feet between the two.
It seems like the fence makes a funny jog.
I actually own that jog.
1 couldn't figure out who's yard that was.
I'm glad that they made the little jog there because they covered up the utility pedestals
that belong in the other person's yard back here. In my plat, that's actually mine.
Are you going to pour a concrete drive?
Board of Adjustment Minutes
June 4, 2001
Page 22
Harden:
Hanna:
Harden:
Hanna:
Harden:
Perkins:
Harden:
Perkins:
MOTION:
Hanna:
Orton:
Perkins:
•
No. The frequency with which I use my boat these days is probably 10 or so times a
year. Last year 1 had it out three times. I don't use it a great deal, but I also want to
keep it because it's paid for. It's not eating anything so when I do get the chance to use
it, I want to use it. It's not going to require a daily trip back and forth. The occasional
trip over your grass is not going to cause a problem.
When you were talking about locating it back farther, are you talking about backing it to
the existing gate, right? How that was a problem with the angle?
Yes sir. There is no other place to put the gate and have access to the front of the
property.
That boat, from wheel well to wheel well has to be wider than your truck.
Actually, it's about the same width as full size pickup but the opening to that is 7 or 8 feet
wide and I think the beam of my boat is about 84 inches, then you've got the fenders that
sit under it. It's going to be about 7/ foot wide. The fenders actually sit under it. I've
backed it through the back of my gate but I'll tell you I've got 3 or 4 inches on either side.
When I first bought the boat I parked it back there for a few weeks until 1 found a place
to store it and get it out of my back yard. The covenants say it can't set in the grass, it
has to be set on a concrete foundation.
There are plenty of covenants on the parking of sport and recreational vehicles, what
covenants do you have in your neighborhood regarding outbuildings?
All it says is, they cannot be used at any time for a principal residence and they must be
of like construction to the primary residence. 1 have that if you would like to see it.
I take your word for it. We've heard his reasoning for wanting to position the building
there, which is to enjoy the maximum of his back yard and asks for a 10 foot variance on
his rear setback. Do we have any further discussion, questions or input? Do we hear a
motion?
I'll make a motion that we grant the variance requested.
I'll second.
We have a motion to grant as requested and a second, any further discussion? Call the
roll please.
Board of Adjustment Minutes
• June 4, 2001
Page 23
ROLL CALL:
Upon roll call VAR 01-8.00 is approved by a unanimous vote of 5-0-0.
•
•
•
•
•
Board of Adjustment Minutes
June 4, 2001
Page 24
VAR 01-10.00: Variance (Ostner, pp 523) was submitted by Alan Ostner for property located at 312
S. Block. The property is zoned R-2, Medium Density Residential and contains approximately 0 09 acres.
The requirement is 7,000 square feet per lot, 25' front set back, 8' side setback and 25' rear setback. The
request is a 4,087 square feet lot (a 2,913 square feet variance), a 13' front setback (a 12' variance), a 1'
side setback (a 7' variance), and 15' rear setback (a 10' variance).
Perkins: That brings us to appeal number 01-10.00 submitted by Alan Ostner for property located
at 312 S. Block. The property is zoned R-2, Medium Density Residential and contains
approximately 0.09 acres. The requirement is 7,000 square feet per lot, 25' front set
back, 8' side setback and 25' rear setback. The request is a 4,087 square feet lot (a 2,913
square feet variance), a 13' front setback (a 12' variance), a 1' side setback (a 7'
variance), and 15' rear setback (a 10' variance).
Warrick: This particular property is an existing non -conforming structure on an existing non-
conforming lot. It is located at 312 South Block and it is a duplex. Currently there is
4,087 square feet of land area on this particular piece of property, where the requirement
for an R-2 lot containing a duplex is 7,000 square feet. Therefore, a minimum lot area
variance is requested. Also, due to the location of the building on the lot, front, side and
rear setback variances have been requested on the west, south and east respectively.
The applicant in this particular situation is proposing to improve the existing duplex. No
expansion to the existing footprint of the building is proposed. However, based on the
amount of improvement and the investment that would go into the property, the applicant
would want the property to be considered conforming in order to make those
improvements, therefore, the variance has been requested. The duplex was built in 1910,
prior to our current zoning code. It looks as though the piece of property was originally
part of a larger tract which was then later split to create the small piece of property that
remains with this duplex located on it. There is also a provision in the ordinance with
regard to non -conforming structures as well as non -conforming lots. It provides that a
non -conforming structure, as -is, can be improved but not to exceed 10% of the current
replacement cost. With the amount of investment that this applicant is proposing, it would
exceed that 10%, therefore, he needs for this structure to be in conformance in order to
do the improvements that are being proposed. This is a piece of property in south
Fayetteville. We are not proposing a change in the use of the property, it will remain a
duplex. It is somewhat compatible with the adjacent dwellings. Most of the houses in
this area are somewhat small, compact and placed close together on small lots. The
improvements or the proposal is not to change the character of the neighborhood but to
make improvements to the existing structure. The applicant is here to make any
comments or answer questions.
Perkins: Mr. Ostner, do you have any input on this appeal?
Ostner: Basically I'm trying to fix this up. I don't want to expand it and it's violating all these
setbacks and I need your permission to fix it up. I'm not going to expand it, I'm not going
•
•
•
Board of Adjustment Minutes
June 4, 2001
Page 25
to go up. It's already a duplex. No gas lines. I have a survey and there is a surveyor
who says there are no easements.
Perkins: The inside and outside renovation of the property?
Ostner: Basically. It's a piece of work, it's really something. It needs to be gutted. I think the
roof is 12/12. Completely new plumbing, electrical, the exterior is going to get a lot of
work.
Perkins: Renovation in that part of town, some of the projects we've seen in that area have really
helped the neighborhood.
Ostner:
MOTION:
Hanna:
I would like to think that. We are committed to investing in downtown. Bankers and
people have suggested we take our dollars elsewhere, where it's easy but we really like
downtown, we believe in it. With the downtown area comes all these problems that we
are posed with right here.
Anybody that comes before us that's wanting to improve a piece of property on a small
lot, improves the neighborhood. I'll cut to the quick. I make a motion we accept the
variances requested.
Kunzelmann: Second.
PUBLIC COMMENT.
Perkins: Does anyone else have any comment?
BOARD DISCUSSION:
Perkins: We have a motion to accept the appeal as submitted and a second, any further
discussion? Call the roll please.
ROLL CALL:
Upon roll call VAR 01-10.00 is approved with a vote of 4-0-1 with Olszewski abstaining.
•
•
Board of Adjustment Minutes
June 4, 2001
Page 26
VAR 01-11.00: Variance (Stiles, pp 523) was submitted by Bill & Sharon Stiles for property located at
117 W. Rock Avenue. The property is zoned R -O, Residential Office and contains approximately 0.46
acres. The requirement is a 50' front setback (north) and a 30' front setback (west). The request is a 36'
front setback (north)(a 14' variance) and 10' front setback (west) (a 20' variance).
Perkins: That brings us to appeal number 01-11.00 submitted by Bill & Sharon Stiles for property
located at 117 W. Rock Avenue. The property is zoned R -O, Residential Office and
contains approximately 0.46 acres. The requirement is a 50' front setback (north) and a
30' front setback (west). The request is a 36' front setback (north)(a 14' variance) and
10' front setback (west) (a 20' variance).
Warrick: This is a corner lot, located at the southeast corner of Rock and Church. This is the Stay
in Style Bed and Breakfast at 17 West Rock. The R-0 zoning district has unique setback
requirements. The front setback, in this case both setbacks are fronts because we are
dealing with a comer lot, the requirement in an R-0 district where parking is located
between the structure and the street requires a 50 foot setback, where parking is not
located between the structure and the street requires a 30 feet setback. Each of those
conditions is happening in this particular case. On the north, there is parking between the
proposed structure and the street therefore, a 50 foot setback would be required. The
applicant is requesting a 14 foot variance. On the west, where the 30 foot setback will be
required, the applicant is requesting a 10 foot setback. In this particular case, staff is
recommending approval with two recommended conditions. The first being, the new
garage structure shall match the character of the existing building, including materials and
colors. Second, no new curb cuts shall be created to provide access to the new garage
structure. The applicant is proposing this location for the garage in order to be able to still
maintain access to the rear of the property and to have the ability to add onto the rear of
the existing structure in the future, if necessary. There is quite a significant topography
on the lot in that behind the existing building, to the south of the existing building it falls off
of the hillside and goes downhill. There are several large mature trees on the lot, all of
those are factored into the staffs recommendation for approval of their requested
variances.
Perkins: Any questions for staff? Are the appellants present?
Stiles: I'm Sharon Stiles.
Perkins: Do you have input on this appeal?
Stiles: I think Dawn did a really good job for me. We would like you to approve our request.
We definitely do not want another cut for the driveway, we prefer to keep this as private
as possible.
• Perkins: You back into the garage from the east and make a turn there.
•
•
•
Board of Adjustment Minutes
June 4, 2001
Page 27
Stiles:
Right. There are three parking spaces for guests there and we prefer we keep our
parking lot for our guests. Since we are directly across from the City jail we do have a
lot of people who think that's public parking. If I had another driveway that would give
them even more access to it. Our plan is to make it match the existing house. I don't
have any problem with either one of those.
PUBLIC COMMENT'
Perkins:
Any other comment on the appeal?
BOARD DISCUSSION:
Perkins:
Hanna:
Conklin:
Hanna:
Warrick:
Stiles:
Conklin:
Warrick:
Perkins:
Conklin:
Perkins:
Warrick:
Panel, any comments?
The only question I have is Tim, I'm not sure on this, the 45 foot setback if there is
landscaping?
Are you referring to the letter?
The top paragraph on the variance 01-11.00 says the requirement is a 45 front setback
and then down here it says 50 foot.
That's inaccurate, the graph is correct. The description is inaccurate. It is 50 and 30.
In previous discussions, did you not tell me that because of the landscaping we already
were given a 5 foot easement automatically?
You can reduce your setback from 30 feet to 25 feet, so you have a 5 foot reduction if
you don't have parking.
That would be on the west, so we went with the 30 feet in that situation could be reduced
to 25, therefore, the setback variance would really only be 5 feet. The landscaping
mitigates the setback.
Which boundary does that affect?
On the west side.
That would only be a 10 foot variance now?
Where it says "front setback with no parking in front of building" to the west, ordinance
requirement is stated as 30, you can add in there 25 feet with existing landscaping.
Therefore, the applicants request is a 10 foot setback, which is really only a 15 foot
Board of Adjustment Minutes
June 4, 2001
Page 28
variance as opposed to the 20. Some of the work that they've already done mitigates the
variance that they are needing.
Stiles: Do you view the sites?
Perkins: Yes, nicely done.
MOTION:
Hanna: I make a motion that we grant the variance as requested.
Olszewski: I second.
Perkins: We have a motion and second, any further discussion? Call the roll please.
ROLL CALL:
Upon roll call VAR 01-11.00 is approved by a unanimous vote of 5-0-0.
•
•
•
Board of Adjustment Minutes
June 4, 2001
Page 29
VAR 01-12.00: Variance (Bundsgaard, pp 254) was submitted by Richard Bundsgaard for property
located at 3235 Charing Cross. The property is zoned R-1, Low Density Residential and contains
approximately 0.13 acres. The requirement is a 20' rear setback. The request is a 14' setback (a 6'
variance).
Perkins: That brings us to appeal number 01-12.00 submitted by Richard Bundsgaard for property
located at 3235 Charing Cross. The property is zoned R-1, Low Density Residential and
contains approximately 0 13 acres. The requirement is a 20' rear setback. The request is
a 14' setback (a 6' variance).
Warrick: Mr. Bundsgaard would like to add a sunroom to the rear of the home. This property is
located in the Huntingdon Subdivision which is a planned unit development. A planned
unit development requires that a certain amount of greenspace be left open under
common ownership, maintained by the property owner's association. That factors into
this particular request because a portion of the common area, the greenspace is located
behind Mr. Bundsgaard's property. If you look on page 5.9 of the site plan that shows
how the home currently sits on the lot and it is pushed relatively far back. The lot is
narrow and wide. The area that's hatched is the area of the proposed sunroom that
would encroach the 20 foot rear setback. Immediately behind Mr. Bundsgaard's
property, you can see on page 5.10, is common area maintained and owned by the
property owner's association.
Perkins: You did receive a tentative okay?
Warrick: Originally the project did receive an approval from the Architectural Review Committee
for Huntingdon. 1 recommended a condition that the project be represented to the
Architectural Review Committee because the original presentation requested that the
proposed setback from the rear property line as 40 feet. That was a misunderstanding
between Mr. Bundsgaard and his contractor's, they didn't correctly locate the rear
property line. Because that greenspace is owned by the property owner's association is
not fenced, is not designated in any way, it really looks like the rear property of these
adjacent homes continues. Unless you know that it's back there, it's hard to locate
where Mr. Bundsgaard's property ends and where the common area begins. Therefore,
I did request that he present that again to the Architectural Review Committee with the
correct information that he would be requesting a 6 foot variance in the rear. He has
presented to me today, emails and correspondence from the Architectural Committee
members with regard to their understanding of his intentions. He has taken care of that
recommended condition.
Perkins: Any other questions from the panel to the staff? Is the appellant present?
Bundsgaard: Yes.
Board of Adjustment Minutes
• June 4, 2001
Page 30
•
•
Perkins: Mr. Bundsgaard, do you have any input?
Bundsgaard: No. She did a good job.
MOTION:
Orton: I'll move that we grant the variance as requested.
Kunzelmann: Second.
Perkins: We have a motion and second to grant the variance as requested, any further discussion?
Call the roll please.
ROLL CALL:
Upon roll call VAR 01-12.00 is approved by a unanimous vote of 5-0-0.
•
•
Board of Adjustment Minutes
June 4, 2001
Page 31
VAR 01-7.00: Variance (Hatcher, pp 367) was submitted by Rudy Hatcher for property located at
352 W. Sycamore. The property is zoned R-1, Low Density Residential and contains approximately 0.27
acres. The requirement is a 25' front setback from the right-of-way required for Sycamore Street which
is designated a collector (70' total right-of-way) on the City's adopted Master Street Plan . The request is
a 14' front setback from the MSP right-of-way (an 11' variance).
Perkins: That brings us to appeal number 01-7.00 submitted by Rudy Hatcher for property
located at 352 W. Sycamore. The property is zoned R-1, Low Density Residential and
contains approximately 0.27 acres. The requirement is a 25' front setback from the right-
of-way required for Sycamore Street which is designated a collector (70' total right-of-
way) on the City's adopted Master Street Plan . The request is a 14' front setback from
the MSP right-of-way (an 11' variance).
Warrick: This that I'm passing out is a memo that I received from the Inspections Division this
morning. This particular project is a piece of property that has suffered fire damage.
The applicant is proposing to renovate and to enclose a carport and add a garage to the
existing structure. Staff is recommending approval of the requested variance contingent
upon the condition that it apply only to the footprint of the current structure and to the
proposed addition on the site plan that's been proposed The applicant, when they.
applied for this, they originally came in and applied for a building permit. Staff
reviewed the permit information and realized that Sycamore in this location is
designated on the City's Master Street Plan as a collector. Therefore the existing right-
of-way does not match the necessary right-of-way to be built out according to that
Master Street Plan adopted by the City. The Master Street Plan does require 35 feet
from centerline as right-of-way on Sycamore in this location. If the Master Street Plan
were not in place at this location and it were just a standard street, the applicant would
need a 1 foot variance in order for the existing structure to be compliant with the
setback requirement. Because it is a Master Street Plan street designated as a
collector, additional right-of-way is necessary, therefore, we are required to take our
setbacks from that additional right-of-way point, in this case requiring an 11 foot
variance in order for our existing structure to be compliant with setback requirements.
Perkins: From the property line, not talking about the Master Street Plan, what would be the
setback from the front of the house?
Warrick: From the current property line to the current front edge of the building is 24 feet, where
25 is required.
• Perkins: That's the portion, an entry door there and it kind of steps out, the face of the garage is
back 32 feet. We are just talking about that portion of the house right there and then
•
•
Board of Adjustment Minutes
June 4, 2001
Page 32
he's okay on the west end of the property with the proposed two car garage and he's
still got another 13 feet until the property line?
Warrick: Right.
Perkins: From the sound of this letter, if we don't hurry, he's going to be further in violation.
Warrick: We believe that it's imperative that this project move forward and the applicant is ready
to do that. Of course, the Inspections Division is putting the applicant on notice that it's
important that they progress so this project is not subject to condemnation.
Hatcher: I agree with everything she said. Basically, Sycamore street has grown from the time
that the house was built. It had a 40 foot footprint, then at the time, what I understood
it had a 50 foot footprint, as of now it has a 70 foot footprint.
PUBLIC COMMENT:
Perkins: Any other questions or discussion?
BOARD DISCUSSION:
Perkins: Do we hear a motion?
MOTION:
Hanna: I make a motion we accept the variance as requested.
Kunzelmann: Second.
Perkins: We have a motion and a second, any further discussion? Call the roll please.
ROLL CALL:
Upon roll call VAR 01-7.00 is approved by a unanimous vote of 5-0-0.
•
•
•
Board of Adjustment Minutes
June 4, 2001
Page 33
Raley v. City of Fayetteville
Whitaker. My name is David Whitaker. I sent out a memo to you, I believe it's in your packets
today. In it I briefly go over what the outcome of that case was What I would like to
do at this time is to provide you with copies of the actual filing from that case, so you
can actually refer back to the court documents themselves to see what it is I'm speaking
of in the memo. What the nub of the whole difficulty started with the first document
you'll see there "Notice of Appeal and Designation of Record". As you'll see that was
filed November 20th of last year. At that point a 90 day clock began ticking. The next
document you'll see is the "Motion for Extending Time to File Record". This was a
motion that necessitated by the fact that the trial transcript from the Washington County
Circuit Court had not been finished and you must have that in order to send to the
Court of Appeals. It's what we call the record, it contains the transcript plus all the
previous filings in the entire case. You will notice that was filed on February 20`h.
Unfortunately, 90 days from November 20`h is February the 18'. Mr. Williams began
office March 1s`, my first day was March 27th when we received this packet. We
finally got the record in the case on the afternoon of April 16`h. The next document you
will find is a cover letter from Mr. Williams to the Clerk of the Court of Appeals, that
was sent out on April 17`h. Of course, at that point, we were not aware that by filing on
the 20`h of February we were already out of luck. I got a call a day after it was
received there in Little Rock, from Mr. Stein's office, one of his deputy clerk's and said
that because that motion to extend the time to file had not been filed within that 90 day
time period, that it had been filed on the 921th day which was February 20`h, that they
would not docket the case for appeal and as far as they were concemed it was over.
The next document you will see is a rather obscure motion that one hopes to never file
called a "Motion for Rule on Clerk", where one basically goes to the Supreme Court of
Arkansas and says "The clerk won't let us file, please make them." It was highly
unlikely in a civil case that they would grant this in the first place but we felt it our duty
to at least put it before them and hope for the best. The final document you will see is
headed "Law or Chancery Mandate" and in a one sentence opinion, the State Supreme
Court says "Motion for rule on the clerk is denied." That's what prompted my memo
to you. If I can answer any questions, I would be more than happy to.
Perkins:
Whitaker:
It seems that you summed it up rather distinctly.
It's an understandable mistake but it's one of the things when you sit down and
someone says 10 days, 20 days, 30 days or 90 days in the law, you can't just go it's
the 20t of November, December, January, February. You can't do that, you have to
actually count the days in particular.
•
Board of Adjustment Minutes
June 4, 2001
Page 34
Perkins: What day of the week was the 18`h? Saturday?
Whitaker. I would have to look it up. I don't believe it was because after the initial opinion of the
clerk we went back and counted it and found that the clerk, who actually does this all
the time, was correct. There are some peculiarities, you don't count the 20th but you
would count the last day unless it fell on a holiday. It just came out to where it was filed
92 days after the "Record on Appeal" was filed and that basically barred our case.
What I can tell you, I mentioned this in the second paragraph, that it's a procedural
default. The court never got to the merits of that case. I'm telling you that there is no
precedential value, although I must warn you that if a similar case was to come up and
you drew the Third Division of the Washington County Circuit Court, that Judge would
probably find the same way again. As far as the situation now, of course it applies to
the subject property that was the subject of the suit but it doesn't have precedential
value as far as state law. That's all I have. I just wanted to let you know what
happened and make myself available for any questions.
Hanna: Have the Schwartzman's been notified?
• Whitaker. Yes. Mr. McCord was notified as soon as we found out, he's their counselor. He was
notified the day that the clerk refused to docket and we kept them posted. I sent a
courtesy copy of this memo to him as well and I spoke to him by telephone to let him
know what had happened. All the appropriate parties as well, you'll notice on the Law
or Chancery Mandate that the Supreme Court sent, they courtesy copied Mr.
McCord, Mr. Parker, Professor Watkins and the Judge. Everyone is aware of his
position. I thank you for your time. I promise you, we will never have to file another
"Motion for Rule on Clerk".
Perkins: If we have no other business, we are adjourned.
•
•
•
•
BOA Mtg.
6-4-01
VAR 01-11.00
Stiles, pp 523
VAR 01-12.00
Bundsgaard, pp
524
VAR 01-7.00
Hatcher, pp 367
MOTION
Orton
Hanna
Hanna
SECOND
Olszewski
Kunzelmann
Kunzelmann
L. Perkins
Y
Y
Y
M. Andrews
absent
absent
absent
M. Green
absent
absent
absent
T. Hanna
Y
Y
Y
J.
Kunzelmann
Y
Y
Y
J. Olszewski
Y
Y
Y
M. Orton
Y
Y
Y
ACTION
Approved
Approved
Approved
VOTE
5-0-0
5-0-0
5-0-0
BOA Mtg.
6-4-01
VAR 01-13.00
Vanneman, p 447
VAR 01-8.00
Harden, pp 610
VAR 01-10.00
Ostner, pp 523
Table
MOTION
Orton
Hanna
Hanna
SECOND
Kunzelmann
Orton
Kunzelmann
L. Perkins
Y
Y
Y
M. Andrews
absent
absent
absent
M. Green
absent
absent
absent
T. Hanna
Y
Y
Y
J.
Kunzelmann
Y
Y
Y
J. Olszewski
Y
Y
Abstain
M. Orton
Y
Y
Y
ACTION
Tabled
Approved
Approved
VOTE
5-0-0
5-0-0
4-0-1