HomeMy WebLinkAbout2001-07-02 MinutesMINUTES OF A MEETING OF
THE BOARD OF ADJUSTMENT
A regular meeting of the Board of Adjustment was held on Monday, July 2, 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 01-13.00:
Page 3
VAR 01-15.00:
Page 12
Variance (Vanneman, pp 447)
Variance (Brock's, pp 286)
MEMBERS PRESENT
Larry Perkins
Michael Andrews
Thad Hanna
Marion Orton
Joanne Olszewski
Michael Green
STAFF PRESENT
Dawn Warrick
Tim Conklin
Sheri Metheney
ACTION TAKEN
Approved
Approved
Approved
MEMBERS ABSENT
James Kunzelmaim
STAFF ABSENT
Board of Adjustment Minutes
• July 2, 2001
Page 2
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Approval of Minutes
Perkins: It's time to start the July 2, 2001, meeting of the Fayetteville Board of Adjustment. The
first item of business will be the approval of the minutes of the June 4, 2001, meeting.
Are there any changes or alterations need to be made to those minutes? No changes
having been voiced, please enter those into the record please.
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Board of Adjustment Minutes
July 2, 2001
Page 3
VAR 01-13.00: Variance (Vanneman, pp 447) was submitted by Donna Vanneman for property
located at 522 FaIlin. 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: That brings us to our first item of business which is VAR 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 update on this
appeal?
Warrick: The report that's in your packet is identical to the one that you received last month.
New information that we have received, included in your packet on page 1.17, is a
letter from Arkansas Western Gas Company basically reiterating their concems from
the previous meeting. At the previous Board of Adjustment meeting we did discuss this
variance request and there were a couple of outstanding issues that the Board wanted
staff and the applicant to follow up on and bring information back to you. Like I said,
this is a reiteration of the Gas Company's concem about any structure being located
within close proximity to the high pressure gas line that is located along the east
property line at this site. The other thing that staff was following up on was the concern
with regard to a sewer pipe, possibly an open sewer line also towards the southeast
corner of the property. We did put a couple of calls into the Water and Sewer
Maintenance Division. They told us that this particular situation was an overflow on a
customer clean-out. It's actually on the service line that feeds into Ms. Vanneman's
property. My understanding is that has been or is in the process of being fixed. It's not
an open line per se, it's a clean-out location that's required to be on the lines so that it
can be serviced and there was an overflow but it's my understanding that has been
taken care of. That's what I know in addition to what we knew last time. If you want
me to review any of that information I'll be glad to.
Perkins:
Warrick.
Vanneman:
Hanna:
The Gas Company refers to an 8 foot variance?
The appeal today has not been changed from the original request. If you'll recall, from
the meeting last time, Ms. Vanneman did revise her request to some degree and I
believe that she still would make that her request.
I changed the letter and I printed that, from a 15 foot variance to a 12 foot variance.
From a 5 foot variance to an 8 foot variance.
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Board of Adjustment Minutes
July 2, 2001
Page 4
Vanneman:
Warrick:
Vanneman:
Perkins:
Vanneman:
Perkins:
Vanneman:
Perkins:
Vanneman:
Yes.
May I have a copy of that for the record?
The City, I did go up to see if it was fixed they have been there two times and Roto
Rooter has been there once just a couple of days ago. I think the sewer line is going to
be fixed. I called Arkansas One Line and I wanted to get where was the measurement
of the high pressure gas line and they couldn't do it because they would have to do it
twelve days after the building was going to start. I told them it's for the planning
committee. They said just to call Arkansas Western Gas, so I did. Terry England was
out so I got a hold of Bobbi Bales and I explained it to her. I said I was tabled at the
last meeting and I just wanted to get this cleared up. She said she would get back to
you or have someone call you. They never called. I just called her today and she's out
on vacation. I left a message for Terry England. It's up in the air as far as I'm
concerned. The reason for my going to all this trouble was that I felt like Arkansas
Western Gas sold a property, I think it's 12 acres or something like that or maybe not
that much, their old weigh station, to Lindsey. I know that the high pressure gas line is
going through their property and I know that one house is sitting on top of it. I thought
to myself, if Lindsey can get away with that, who is to say that I can't have a variance
near that? I wanted to make sure that the high pressure gas line was going through their
buildings but I couldn't find out, so I'm just back to square one.
If my memory serves me correctly we had a rather long meeting last month. The
reason we discussed the southeast side of your property, where the issue has certainly
come up. Is there another spot on the property that this accessory building could be
moved that would make the setbacks a moot point? Where are we with that?
There is the trees.
We were talking about this corner of the yard here and that's what brought up the
issue. We were looking at alternatives for siting of the building.
Because this is where the ravine is and this is where the sewer is. I just want to be
away from the sewer as much as possible.
You would rather sit over a high pressure gas line?
That's a very good question. The high pressure gas line goes parallel to my building. It
• wouldn't be feasible. It would be just as feasible if I moved it over here instead of over
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Board of Adjustment Minutes
July 2, 2001
Page 5
here. It's just the same.
Perkins: There weren't any trees in question over here.
Vanneman: There were some trees. There are three big trees, I just didn't think to mark it down.
Hanna: I went trespassing today and I walked over the whole property. I agree with her, I
think that's the only place to put this thing. You could shove it up against the house or
cut down those trees that provide a lot of shade. The lay of that land, you won't even
be able to see this thing. I looked at it and thought "If she's willing to assume the risk of
putting it close to the high pressure gas line, I don't have a problem with that." I
remember talking to an Arkansas Western Gas about a high pressure gas line and he
said you can knock a hole in it with a ballpin hammer and it would come out at a high
speed but it's not going to catch on fire. The bottom line, if that thing blows up right
there, it's not going to make any difference if she's ten feet from it or thirty feet from it,
she's a memory.
Vanneman: It will blow me up anyway.
Perkins: Well, barring any further discussion, is there a motion?
MOTION:
Hanna: I'll make a motion we accept the variance as requested.
Olszewski: Are we liable in any way?
Perkins: If we grant either the five or eight foot variance, what if any liability does the action of
this Board place the City in, that you know of?
Warrick: I don't know of any The Gas Company, if they had an easement in that location that
they could identify, of course we would not be able to grant the building permit within
that easement In my discussions with the Gas Company, they have not been able to
identify an easement. They have talked about blanket easements that were granted in
the 1950's when the line was established originally In that blanket easement the
language within that simply states that the Gas Company has the right to go across the
property to install the line but there is no distance that anyone can tell me in regard to a
line centered within a certain amount of property for easement purposes. A lot of those
older blanket easements are non-specific like that. I don't know of any liability that this
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Board of Adjustment Minutes
July 2, 2001
Page 6
would incur on the City with regard to having it close to a high pressure gas line.
Hanna: They couldn't even show a blanket easement right? That was just common practice
back then. They have absolutely no record. If she wants to she could say "Show me
the easement or move your gas line."
Warrick: Right.
Hanna: My point is, it's her property. She's got a little flat place, she wants to put a studio
back there that you won't be able to see.
Warrick: It really is a discussion and negotiation that needs to take place. If there is not an
easement there and the Gas Company feels like they need one, they need to negotiate
and purchase an easement from Ms. Vanneman. With regard to the setback, that of
course is your choice and the Board has the authority to grant the setback variance in
this situation. You can place any conditions that you feel are appropriate if you feel like
granting the variance and you can have some type of condition placed on it.
Hanna: Can we say she would hold us harmless?
Perkins: Certainly the condition that you've outlined here is to not become a second dwelling
right?
Warrick: We recommend that condition if you do choose to grant the variance.
AMENDMENT TO MOTION:
Hanna: I amend my motion that the variance be granted as requested with a condition that it not
be converted into a dwelling place.
Olszewski• I'm still bothered by Arkansas Western Gas writing this letter and by them not telling
her who else is affected by this same thing. That bothers me. They are pretty much
putting out something here that basically takes their liability off but they are not being
clear about where else they've done this and what their liability would be there.
Vanneman. I found out from Hank Kaminsky, who is my neighbor up above me, he wanted to put
in a studio too but Arkansas Western Gas said they can't because this is a high
pressure gas line. I wouldn't have known this until I found out from him. I researched
it, and like Dawn said, I couldn't find any easement at all. I came to you. I just wanted
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Board of Adjustment Minutes
July 2, 2001
Page 7
to know if the neighbors that the high pressure gas line runs through their property can
we sue, obviously I'm a memory but can my relatives sue Arkansas Western Gas if it
blows up?
Hanna: You can sue anybody for anything.
Green: Whether it's their fault or not.
Olszewski: I would check with them. I think they should be buying an easement from you.
Vanneman: I wanted to buy the driveway for an easement, I planted pine trees on there and I
thought it was my property but it's Arkansas Western Gas' property.
Olszewski: Where is their property?
Orton: On the south side of your house and it drops down into that big flat parking lot.
Vanneman: Exactly.
Orton:
This drops down. When I walked up there, I thought "Gee, it's too bad you can't have
that property too." I don't know how you are going to get up to your studio. How are
they going to build it?
Olszewski: This is their land here?
Orton: Yes.
Vanneman: That's why, I'm going to have a block grant and they were going to put my french drain
on the south side of my house but because Arkansas Western Gas wouldn't have me
an easement, I tried to buy it, I tried to do it with an easement, I tried everything and
they said "No".
Olszewski: You've been trying to get an easement, you want something from them?
Vanneman: Yes.
Olszewski: They say they have something of yours that you don't think they have?
Vanneman: No, it's theirs.
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Board of Adjustment Minutes
July 2, 2001
Page 8
Olszewski: You are trying to buy an easement? Maybe you could negotiate with them about that.
Orton: They say they already have that easement.
Olszewski They can't prove it.
Warrick: I'm not aware of a platted easement on this plat or survey in this location. The only
mention that Arkansas Western Gas made of this is in written documents was at some
point in time when the line was installed.
Orton: It was in the 50's, it wasn't 70 years ago.
Vanneman: I have cleared this land off to the tune of $1,000, it's kind of like I didn't realize it was
up against this high power gas line until I already spent the money.
Perkins: There is no platted easement. We have a motion. Do you care to restate that, please?
• Hanna: I make the motion that we grant the variance as requested with a condition that it not be
utilized as a living facility.
•
Warrick. Is it the 12 foot setback that's requested with an 8 foot variance?
Hanna: Yes.
Green: I'll second.
Andrews: Since I wasn't here last meeting, I was looking at this side that says 616" from the
overhang to the property line, is that okay?
Warrick: That's an existing non -conforming structure. We are not dealing with an add-on to that
structure, therefore, we are not considering that with this variance request. The
variance request is for a separate structure at the rear of the property. Ms. Vanneman
has a non -conforming lot in an older subdivision in town and there is a provision for
non -conforming lots and non -conforming structures thereon to have 5 foot side
setbacks.
Green:
I too wasn't at the last meeting and I tried to read all the minutes to see what the
discussion and issues were. Let me make sure I understand the premise and the criteria
and some of the constraints that we have here. Number one, we have a high pressure
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Board of Adjustment Minutes
July 2, 2001
Page 9
gas line that is going to be too close to the structure for Arkansas Western Gas to have
no problems with that. We have another issue about a sewer line across the property.
As I understand what you said, that sewer line is basically the building owner's yard
line?
Warrick: Correct. There is a clean-out location on it which apparently had overflowed and
needed to be cleaned.
Orton: On who's property?
Warrick: On Ms. Vanneman's property.
Green: That is not a City owned sewer utility, that is the applicants service line.
Vanneman: No, east of me, it's their service line but it's on my property.
Warrick: There are two sewer lines coming into the clean-out location. I don't know exactly
which portion of it got constricted but there was a problem with it. Water and Sewer
Maintenance has been out and is making sure that is resolved. It's not something that
we need to or could be relocated, it's simply a line, I believe there is a connection for
two sewer services at that point.
Green: It's basically not a thing that we consider a chronic problem?
Warrick. My understanding is that this is not something that overflows frequently. It did have a
problem, once it's fixed it should not be a continual thing.
Orton: For several years until the roots get back in it.
Warrick: That's true, there could be a problem in the future if that happens.
Green: I'm trying to boil this down to where I understand it. I take it from reading the literature
and everything that none of the neighbors have any opposition or problem with this?
Warrick: Staff has not heard opposition from the neighbors with the exception of Arkansas
Western Gas.
Vanneman: I ran into Hank Kaminsky who told me about this. He said he was going to come to
• this meeting except he had to go to Philadelphia. He's on his way there.
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Board of Adjustment Minutes
July 2, 2001
Page 10
Green:
Vanneman:
Perkins:
Vanneman:
Perkins:
Warrick:
Perkins:
Hanna:
Vanneman:
Warrick:
Vanneman:
Perkins:
What I'm about to boil it down to, there seems to be only one draw back or caution as
far as my view and position on this and that has to do with the safety aspect of that line
back there. I'm pretty sure that it's not in the purview of this body to try to determine
the safety aspects of Arkansas Westem's equipment, it's not within our purview to
decide who's liable if future problems may occur, thirdly, it's not our purview to try to
redesign this thing and be designers, architects and engineers for the applicant. Other
than if there is some alternative that somebody sees and we certainly have to some
answers as to why that alternative would be rejected. Having said that, it sounds like
you have covered the aspect of there are some large trees, there is also the issue of a
neighbors sewer line that may be encroaching on this that could create a problem for
their sewer access should you build too close to that. Those are really my concerns
right there. I certainly don't have a problem with granting this particular variance
especially under the conditions of the motion. Other than my concern of possible
safety.
If I get the variance and then I construct my building, can I have a deck?
Right up to the property line on the east side?
No. Just like a four foot deck.
If it's less than 30 inches tall.
If it's ground level or less than 30 inches in height then it's not required to meet the
building setback.
If the terrain makes it over 30 inches tall then it has to represent that.
If you build it between that structure and the house, it's a moot point. Where are you
going to put it?
All around the building.
At ground level?
Yes. I think the building itself is going to have a concrete slab. I could just make it a
deck that is under 30 inches around the building.
As long as it's under 30 inches.
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Board of Adjustment Minutes
July 2, 2001
Page 11
Vanneman: Yes. I will.
Perkins: We have a motion and a second, is there any discussion? Call the roll please.
ROLL CALL:
Upon roll call VAR 01-13.00 is approved by a vote of 5-1-0, with Olszewski voting "no".
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Board of Adjustment Minutes
July 2, 2001
Page 12
VAR 01-15.00: Variance (Brock's, pp 286) was submitted by Greg Brockman of Brock's Inc. for
property located at 2483-2485 Jeremiah. The property is zoned R-1.5, Moderate Density Residential and
contains approximately 0.19 acres. The requirement is for a 25' front setback. The request is for a 15'
front setback (a 10' variance).
Perkins: That brings us to our next item of business which is variance number 01-15.00 for
Brock's, submitted by Greg Brockman of Brock's Inc. for property located at 2483-2485
Jeremiah. The property is zoned R-1.5, Moderate Density Residential and contains
approximately 0.19 acres. The requirement is for a 25' front setback. The request is for
a 15' front setback (a 10' variance).
Warrick: The Coyote Trail Subdivision is located off of Deane Solomon Road. It's a short cul-
de-sac street. It's in an R-1.5 zoning district and it's developed into duplexes. This
particular duplex is relatively new, it was permitted in fall of 2000 and finished in spring
of this year. This particular duplex is located at the start of the turn of the cul-de-sac
which is the north end of the subdivision. After completion, a survey was conducted of
the site. The owner was made aware through that survey that there was an
encroachment into the front setback, which is also in this case a utility easement. It's a
pretty substantial encroachment, it's 10 foot at the widest point. You can see on page
2.11 is probably the best place to see the as -built survey and it shows where the
structure encroaches into that setback/utility easement combination along the front
property line. This being on a cul-de-sac the setback follows the right-of-way which
follows the curve of the street, therefore, it's not uniform across the front as far as a
straight line. The applicant came to the City and wanted to know what they needed to
do and, of course, short of taking the building down and meeting the requirement, they
have come to the Board of Adjustment requesting a variance to allow for the existing
structure in this location. One thing that will have to occur and staff has made it a
condition of approval of this variance, if it is granted, is that the City Council will need
to approve a vacation of a portion of the easement that's encroached by the structure.
If for some reason the City Council does not feel that's appropriate or, for some
reason, cannot grant that then the variance would also be void and the structure would
have to be removed, or at least that portion which is encroaching would have to be
removed. I have heard from a couple of property owner's within the development,
both of which were pretty concerned there was a structure that didn't comply with City
regulations. The property owner to the south called this afternoon and I reviewed the
project with him. He decided not to come to the meeting but said that he would go
along with whatever the City felt was best with regard to this.
Perkins: That's the property owner to the immediate south on the same side of the street?
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Board of Adjustment Minutes
July 2, 2001
Page 13
Warrick: Correct.
Perkins: That one looks closer to the street than this one does.
Warrick: They are very much in line, maybe just a little bit closer.
Perkins: It's no survey but when I lined up with their house, including the gutter, the house in
question right now is that much further to the west.
Warrick: One thing that I did note in the report, after going out on site and looking at it, you can
almost see in a couple of photographs that are in here, the houses do seem relatively
uniform along that west side of the street. They do, of course, change when you get
into the cul-de-sac. This particular cul-de-sac is not a standard uniform cul-de-sac that
has a symmetrical bubble at the end of it, it curves to the east It kind of angles out and
curves to the east to form the turn of the cul-de-sac. I'm sure that they may have made
things a little bit more difficult in this case. The drawings that were submitted for a
building permit, at the time of application, did reflect a structure that was compliant with
setbacks. When staff signed off on the application we believed that the structure they
were building there was in compliance. I think that's all I have at this time, I'll be glad
to answer any questions you might have. The applicant is here to answer any questions.
Perkins: What survey did they use initially when they got started?
Brock: When I bought the lots, I had the comers marked.
Warrick: On page 2.10 is the original site plan, is that right?
Brock: When I purchased that lot, I purchased two others, 1, 7 and 10. The only one that had
a survey on it was lot number 10 because it was difficult and it required a surveyor to
mark exactly where the building corners went. As you can see, this one had ample
space and I wasn't worried about it. I paid a draftsman to draft my site plan off of the
plat and then I provided this to the people that laid the building out and dug the footings.
With this on the front not being easy to measure from and having a site plan, we
measured from the sides and the back. It should work. It does work, unless your
draftsman draws the front property line in the wrong location. As you can see, the site
plan shows approximately 39 feet from the back property line. As you can see, the
survey shows 39 feet. We laid it out from the points we measured as the site plan
would show. The draftsman shows more space here than really exists. I'm not certain
how he made that mistake. He's not certain how he made that mistake. I'm not sure
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Board of Adjustment Minutes
July 2, 2001
Page 14
Perkins:
Brock:
Green:
Brock:
Green:
that's completely relevant right now since it happened. I had someone approach me
about buying the property. We were preparing to close and provided a survey, much
to my surprise when it came back, we had this issue to deal with and I came to the City
and said "Here's a problem, I never dealt with one of these before. What do we need
to do?" That's how it happened.
Do you have anything to add to staff's description?
I think the property does sit in line with the property to the south. It's a very defined
cul-de-sac lot at the end that Mr. Wilkins owns. There is a golf course type property
over here, it's an open pasture and golf course back here. Lot number 10, which as
you can see is quite peculiar, I did pay the very same surveyor, who actually did the
final survey, I paid him to do the corners up front for me over there because I knew it
was difficult. This one, there was no reason for a surveyor because it's not a difficult
lot, had the draftsman got the information correct for me on my site plan.
Are you also the contractor for these houses?
Yes sir.
You actually got the building permits and were actually responsible for the layout and
the engineering for the location of these houses?
Brock: Yes.
Green. Just looking at the complexity of that curve, I was just wondering why that didn't seem
to be a complicated issue that needed a surveyor?
Brock: It was a relatively square building and I had comers to pick from from the back and I
had ample space in the back. It is a complicated lot if you are having to measure
everything from the front but because you have right angles at the back comers of your
lot, on the west side, it actually should have been a very simple lot to build on. Had this
been 29 feet, instead of 39, and it would have been had he had this correct on the front.
Green: Did that show on the official plat, this curve into that lot?
Brock: Yes sir. It's simply a mistake where we relied upon the site plan and the plat was used
to develop the site plan because he has to theoretically have those arcs. The gentlemen
that did this has years and years experience, he works for a local engineering firm. He
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Board of Adjustment Minutes
July 2, 2001
Page 15
has years of engineering and site drafting experience. He's not an engineer but he's a
draftsman. That's what I relied upon simply because it was a simple lot. I have heard
back from most of the utilities. The only utilities that actually rest in that right-of-way is
gas and water, if I'm not mistaken. I believe the water and gas follow along this east
side and that's where the taps were and I believe it continues in a straight line to the lot
over here. We are well away from the water and sewer lines. We are quite a distance
from that. All of the other utilities are located in the rear of the property. Of the utility
companies that have responded to the vacation of their easement, we've had positive
responses so far. I believe we've heard from gas, telephone has to send it to Little
Rock but the gentleman in Springdale has approved.
Warrick: A part of the applicants responsibility in requesting that the portion of the easement be
vacated is contacting each of the utility companies that may have rights to that easement
and requesting that they sign off and make comments based on the applicants vacation
request. There are several city divisions that are asked to sign off and adjoining
property owners as well before it is heard by the Planning Commission or City Council
so that those two boards understand what impact vacating a portion of the easement
would have on the various utilities that have the right to use it. That's what he is in the
process of doing right now.
Olszewski: Did you put him on the list?
Warrick: Yes.
Brock: I've never requested a variance from the City of Fayetteville. I've never requested a
variance, after the fact, on anything.
Olszewski: Your draftsman is aware?
Brock: Yes. I've mentioned it to him.
Green:
Something we have to point out is that the draftsman is not liable for your problem. It's
strictly the building. If you had an architect or engineer that sealed these drawings then
you would have some recourse in getting some help on this but the draftsman is a
service provided for the builder's convenience. Your risk is whether or not you take
that information and you rely on it. I'm certainly not an attorney but I don't think it's
going to be one of the things.
• Olszewski: It would really be Mr. Brockman on the list.
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Board of Adjustment Minutes
July 2, 2001
Page 16
Green:
The thing we are looking at are the builders that have a history of building over the
setback lines and not taking due care of getting it laid out and the care that might be
their responsibility.
Warrick: In the database we don't have a list for draftsman or responsible party, it's the
contractor or builder that we will keep track of for you.
MOTION:
Green. Based on that, I move that the variance be approved.
Orton: Second.
Andrews: According to the conditions set forth?
Green: Yes, it's all subject to the Council approval of the vacation.
Perkins: We have a motion and a second, any further discussion? Call the roll please.
ROLL CALL:
Upon roll call VAR 01-15.00 is approved by a unanimous vote of 6-0-0.
Perkins: Is there any new items to bring up. If not, thank you all for your time and we stand
adjourned.
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7-2-01
BOA Mtg.
Approval of the
minutes of the
June 4, 2001
meeting
VAR 01-13.00
Vanneman, pp 447
VAR 01-15.00
Brock's, pp 286
MOTION
Hanna
Green
SECOND
Green
Orton
L. Perkins
Y
Y
M. Andrews
Y
Y
M. Green
Y
Y
T. Hanna
Y
Y
J.
Kunzelmann
Absent
Absent
J. Olszewski
N
Y
M. Orton
Y
Y
ACTION
Approved
Approved
Approved
VOTE
5-0-1
6-0-0