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HomeMy WebLinkAbout2001-09-04 Minutes• MINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT A regular meeting of the Board of Adjustment was held on Tuesday, September 4, 2001, at 3:45 p.m. in Room 111 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS CONSIDERED ACTION TAKEN Approval of minutes from the meeting of August 6, 2001. VAR 01-8.00: Discussion item requested by Board of Adjustment chairman Tabled Page 2 VAR 01-16.00: Variance (Collins, pp 445) Approved Page 25 VAR 01-18.00: Variance (Roberts, pp 435) Approved Page 27 VAR 01-19.00: Variance (Bilker, pp 446) Approved Page 30 • VAR 01-20.00: Variance (Stokenbury, pp 445) Approved Page 32 VAR 01-21.00: Variance (Rice, pp 443) Approved Page 35 MEMBERS PRESENT MEMBERS ABSENT Larry Perkins James Kunzelmann Michael Andrews Thad Hanna Marion Orton Michael Green Joanne Olszewski STAFF PRESENT STAFF ABSENT Dawn Warrick Tim Conklin • Kit Williams Renee Thomas Board of Adjustment Minutes • September 4, 2001 Page 2 • • Approval of Minutes Perkins: Good afternoon everybody and welcome to the September 4`" meeting of the Fayetteville Board of Adjustments. I believe we have an introduction to make right now. Warrick: I just wanted to take a minute real quick and introduce Renee Thomas, Renee is the new senior secretary for the Planning Division so this is her first meeting for taking minutes so be nice please. Perkins: We'll speak slowly. Warrick: Be sure and keep names out there so she knows who you are. Conklin: Yeah, state your name for the record since she has no idea who anyone is in this room. Perkins: First item of business today is to approve the minutes for the August 6th meeting. All ofus were mailed copies of that. Are there any changes to be made? If not, please enter those into the record as written. 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 our first item on the agenda which is to open a discussion about an appeal that was presented to this panel on June the 4th. While the bylaws prohibit any action to be taken on appeals that have already been acted upon, for my own information I did want to pose a couple of questions to the staff and to the City Attorney for possible courses of action. The reason I ask that is this was a project that was described in some detail to the panel and the completion of that project differed entirely from the way it was described, I have received complaints from residents in that neighborhood and I thought just for future suggestions on how we would handle motions like that, to pose these questions to the staff and to the City Attorney. Williams: Yes, I've prepared a very, very short handout basically about your powers and what you can do in enforcing the ordinance and the statute that you were created under. As you can see, if you look at the bottom of the page there the statute clearly gives you right to impose conditions in the granting of a variance to ensure compliance and to protect adjacent property and I think that normally the planning staff will help you doing these sorts of things. I think that this case maybe points up to you the fact that in granting variances if you are relying upon anything that is being presented to you and that's a condition of your approval, and you want to make sure it's going to go downjust as it is described to you, Board of Adjustment Minutes September 4, 2001 • Page 3 • then you need to expressly make that as a condition of your approval in the minutes with the motion. The motion would be that you are granting the variance on condition that the property or the facility or project will be built, constructed, whatever you're going to say as shown in the drawing or as explained by the petitioner or whatever, but you do need to make that, I think, an express condition. You don't really need to make findings of fact or anything like that because if someone appeals from your decision and either side can appeal your decision within thirty days, there will actually be a tnal, it' s called a trial de noble, it's like you all didn't even make a decision. I would then represent your interest. Probably the decision you made and go up and then we would present evidence to the Judge and then the Judge would take your place and the Judge would make the decision. So the findings of fact, you don't have to worry about that, but, if you do want to have conditions, upon your approval ofa variance, then they need to be expressed. and stated in the record. Your motion needs to be on condition that the variance is granted only on those conditions that it is clear to everyone involved exactly what you're holding. Perkins: Can we go just a little bit further in that sense. Structuring the wording can leave a lot to be desired at times. Can it be possible that at least a reasonably complete graphic representation be part of the appeal or it not be considered by this panel? Williams: You certainly can do that, I think that the Board of Adjustment in a lot of ways is free to control their rules of procedure. You can't do anything, you know, you can't just totally make up everything, but something like that that is reasonably directed toward fulfilling your mission, you possibly could do. However, in not every case when someone is asking for a setback change do you need to see what the structure is going to be. Sometimes it's going to be a house or something and maybe they didn't have everything set up just right or utilities weren't right or there's just some tiny change that needs to be done and actually what's going to be constructed there is not the issue. It' s whether or not you're going to give them that variance ofa setback. I think it would be better to handle it on a case by case basis rather than making every petitioner come in with something that a lot of times you're not going to need to see. It might be costly for them. Perkins: Yeah, I wouldn't expect an architectural model. There was even a question on this last one about the footprint being 8 feet or 10 feet. There was some doubt right there but it was explained rather in detail. Williams: Well, I mean planning staffmight have some comments on that, sometimes we do require, I knowthe Planning Commission often requires drawings of the buildings and things like that, but that is mainly commercial design standards I think, is it not? • Conklin: With regard to this Board of Adjustments case, staffmade the recommendation for denial, therefore we didn't place any conditions for approval with regard to like architectural style. Board of Adjustment Minutes • September 4 2001 Page 4 • • During the minutes when you review those, clearly the discussion was how this was going to look. You even asked the question regarding restrictive covenants with regard to the outbuildings if you look on page 22. Mr. Harden responded back stating that they must be like construction to the primary residence. So, there is a lot of discussion there. I think in the future to avoid situations like that if you're basing your decision on how it is going to look, we need to make sure that is a condition of approval because I think there was no doubt in my mind you as a board thought that you were approving something that was architecturally compatible with the neighborhood even though there wasn't a condition on that. Based on all of the discussion throughout the events typically stafftries to put those conditions in as safeguards in those appeals if they recommend it I think it is a good discussion. We all can learn from this and move on when we look at other variances that we grant based on aesthetics. Williams: Mr. Perkins, I would also like to point out that we do have the parties and their attomeys here that might like to address the Board of Adjustments sometime on this. Dust wanted to point that out in case you wanted to give them an opportunity to address this issue. Perkins: It's a public hearing, and your name for the record please? Estes: Yes, my name is Pete Estes, and if you don't mind I'll sit up here so I can get closer, sometimes I have a tendency to talk softly but I represent, I'm an attorney here in Fayetteville. I represent the Architectural Control Committee for Sequoyah Additions. In listening to Kit this afternoon the statute which he gave to you or the sheet of paper, talks about placing or imposing conditions upon the variance so that this board has some sort of control as to the final product. In other words, if it meets what was requested in the variance after it's completed then that's fine. If it does not, it gives this board the ability to rescind, revoke or otherwise take action on its own. Now ladies and gentlemen I frankly feel and I think, let me go through this and I'll try to make it as fast as possible, the conditions are built, into this record as we'll go through it and the reason I say that is the very last page and the very motion, and let me do this. If you all don't have minutes of the previous meetings...do you all have any? Orton: We have them. Estes: The very last page or next to last page which is the motion, it says this. Mr. Hanna said I'll make a motion that we grant the variance requested. Alright, now I'm going to harp on that word just for a few minutes because 1 think it is critical to what happened to you all and the neighbors out there in the addition. The requested matter took place in connection with a letter which Mr. Harden sent into the board along with on the second page the description of request. Now the description of request described the structure that was going on. This was a variance ofa 20 foot setback to a 10 based upon the description of the structure that Board of Adjustment Minutes September 4 2001 Page 5 was going to be put there. It talked about on the second page of this document wood frame walls and roofed structured with bandex sheathing (plyboard) and white vinyl four inch shiplap siding which is horizontal (shiplap siding), and the roof would be materials consistent matched architectural shingles to the residence. Ok, let's start with that, that is what was requested and that's what came in to the staff. Now, basically it was a wood framed structure, bandex sheeting, plywood, matched architectural shingles on the house. On the hearing now on June 4'h that was heard here and the minutes before you. Let's take a look here at the variance requested was in the motion. On page 3 at the bottom Mr. Harden explained that in the request, this is his last statement, he was talking about vinyl siding, architectural shingled roof, slab construction, fixtures on the outside, and look at the very last sentence. From the exterior minus electrical services it will be absolutely identical to the type of construction that the house is within the subdivision ok. Now ladies and gentlemen, that's what he requested and he goes further on the next page on page 4, to explain what he was doing. Down at the bottom the very last sentence, 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 ok, again, he is talking about the requested structure. Now 1 know the structure is very important to this board so what's going to end up there because that's the reason for the variance and 1 notice from 90% of the discussions that were had were concerning the structure that was going to go in there and its location and its necessity. Lets take a look now on page 7. If you'll go on over and you'll have to count, page 7 starts at the top, it's page 21. Mr. Harden at the top says this, "I don't want to have a big monstrosity of a structure back there, I want to keep it as low profile as 1 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. I also want it to look like the house." Ok, again, requested structure and ladies and gentlemen, as far as I'm concerned, there is absolutely no way you could've known that he was going to put up a metal building, and we'll get to that in a minute, from the representations that were made at the hearing and the requests made in his letter and the requests made in his letter and the request that he was making at the hearing on this. I have got pictures and I want to pass these out, this is the structure that was constructed. It's a 20 by 30 1 suppose, 1 haven't measured it, roughly 20 feet high metal building. It doesn't have, and here is another picture. You can see it doesn't have shingles, it is a metal roof, a metal building, and that's what was put out there on this property. Now, an interesting point was made at the hearing, I can't remember who brought it up, but in any case, the comment was made well no objections have been made to this. I take it that if built as represented and as requested, that's the situation because the neighbors didn't understand what was going up except what was in the request. Now there was a Richard Hicks who is a neighbor and adjoins Mr. Harden's property that did call. Is Mr. Hicks here? Hicks: Yeah. Estes: Ok, and he wanted to find out what was going up and the description was read to him. Wood frame, matched the house, shingles, that type of thing. Frankly, that's the situation that the protective covenants called for, and if it is that, fine. You know, people are entitled to do that and that is why it was done that way. But ladies and gentlemen 1 respectfully submit that that is not what was out there. I respectfully submit that if you look at the motion that Board of Adjustment Minutes September 4, 2001 • Page 6 • • was given, that was done by Mr. Hanna, he said he made a motion that we grant the variance requested. Mr. Perkins said we have a motion to grant as requested and second it. Now ladies and gentlemen, I think that based upon the statute that Mr. Williams was talking about and whether it was by accident, design or otherwise, you placed restrictions upon this particular variance to be as requested. I don't think the record can be any more complete and clear as to what it requested and I don't think the pictures can show more vividly as to the monstrosity and the metal building that's out there. It is terribly unfair to you all to put you in this position of having this represented to you because you have got to face the neighbors when the come along and say what in the world happened, you know, how did you let me down? It is terribly unfair to the neighbors to rely on what has been here. They're not going to appeal it. This thing was not completed until in August. 1 mean there is no, l mean, why appeal something ifas requested it is going to meet everything and it was fully discussed here. So not only was it unfair ladies and gentlemen but I believe and I truly believe this, that you have the vehicle based upon the motion, the second and the passage of the motion to base the approval ofthis variance upon what was requested and that is the only way that I see that 1 know of that this board can protect itself in the future. If somebody comes along and requests it and doesn't follow through, and lulls the board to sleep, lulls the neighbors to sleep, lets appeal times run then your hands are tied unless you rely on the statute and what Mr. Williams said from the standpoint of the conditions that the motion places on him. It can be revisited by this board to see if in fact that is what was accomplished, and once again, I will quit kicking this horse, the condition was that the variance would be granted as requested, and that's the way it passed. 1 submit to you that it was not, 1 submit that based on the statute and the law that Kit gave to you that you have the ability to revoke, rescind, go back and look at it again and make requirements that will meet that which is requested or remove it. Without that power, then you're just sort of at the mercy at whatever wants to be said at a hearing or applied for in here and that's all I've got to say. If you all have any questions about this, I would be glad to talk to you. It was represented at the hearing that this would meet the protective covenants which it does not, it requires outbuildings to be of the same structure, texture, materials as the residential dwelling. I think this is a good discussion for future things, but I say to you based upon the statute as it is written and the motion the way it was made and seconded that you have the vehicle today to handle this particular case which was represented as it was to you and to correct the situation that was done out there. Perkins: If you have anything, 1711 be glad to hear it or you can holler at me later as we go along. Green: 1 have one question Mr. Estes, the covenants that are in the subdivision there, would those covenants restrict the property owner from building metal buildings such as this? If it hadn't been in the setback area? Estes: No, I think that what the protective covenants discuss is that the structure must first of all be approved by the Architecture Committee which it wasn't. Second, the quality of workmanship materials harmony externally designed with existing structures and residents in the community. It did not deal with whether you build in a setback or you don't, these are just separate buildings that are built out of. Board of Adjustment Minutes September 4 2001 Page 7 Green: Estes: Olszewski: Estes: Olszewski: Estes: Do you have any recourse now to go back and enforce the covenants? We're trying. The problem with this is that the covenants were written so that action must be taken before the completion of the structure and these things go up like that. That's what happened to the residents out there. Not that it is too late, an action has been filed to try and to correct it. Whether it will be corrected or not is for the Judge to decide, but, these things go up so quickly that it was close to being completed before the neighbors and everybody found out what was happening and the lawsuit was taken on this one then before it was completed. So, there is an avenue that some of the neighbors are taking in the Architecture Committee trying to correct the situation. At the same time Mr. Green, this committee, this board has got to make its voice clear as to what it intends to do should things be represented one way and then built another. Whether the neighbors are successful or not to me, and based upon the statute, does not correct the situation for this board because the only way for you to control the situation or an appeal to take place within a thirty day period is for the board following the statute with the conditions as prescribed such as requested to make it known that we're not going to put up with it. You come to us, you tell us, you build it and it's fine. There is no guarantee that anything is going to correct this situation except this board relying upon the statute and the motion as it was outlined but yes, there is an action pending, when that will happen I don't know. You mentioned there was a committee that people are supposed to go to? There's an Architectural Committee. The protective covenants in this one, like a lot of subdivisions, when they're created there are committees that are set up and as you buy property these protective covenants are placed of record and each owner has constructive notice and knowledge of what is contained in it. It controls what goes on out there from the standpoint ofthe design and covers a lot ofthings from even making setbacks more difficult or more stringent. But, they also talk about out buildings, separate buildings and what can and can not be built, or generally, what can't be built. And it's a requirement that before you build anything you go to the Architectural Committee? Yes. Here is what will happen, and the way these particular, I guess protective covenants are written differently, I've seen so many different ones. If it is not caught in time in this one, and that is before completion of construction, there is not a thing that the Architectural Committee can do. That's not in my mind a very good way to write them because most protective covenants are not that way. You know, you have even after they're constructed, ifyou've learned that it violates the covenant, the committee has the right to take an action to file for an injunction or whatever. This one is done differently, so in this instance, the committee must and in the past, did and did not, catch it. There are outbuildings out there. I think probably you all have driven the neighborhood and know what is out there. In order to act, the committee must act pretty darn quick under these. Like 1 said, a lot of protective covenants don't have that requirement. It requires approval ofthe Architectural Committee before construction commences. Board of Adjustment Minutes September 4 2001 Page 8 Olszewski: Estes: Olszewski: Estes: Orton: Williams: Orton: Williams: It's almost a flaw in what they've done. Well this one required that too, but they didn't come to the Architectural Committee. Mr. Harden and his wife never carne to the Architectural Committee and said here is what we're doing, here is what we would like to put up. But you're telling me that that committee wasn't set up...those covenants aren't set up that because they didn't come there you don't have the recourse that most places would have had they not come there? Ok, let me back up, maybe 1 didn't make myself clear and I apologize. The committee is formed to review the plans of somebody who is going to do something. They're required in this one as in all of them to come before the Architectural Committee and get approval. Then they start. Ifthey don't come to the Architectural Committee then the committee has the right and probably the duty for the subdivision to file for an injunction to stop it. This one is more restrictive than a lot in that it requires action before completion of the structure. In this instance, what was represented, what Mr. Hicks called about and what appears to this board is one thing I submit as opposed to what was put up out there. Although the committee is trying to do something about it, I'm saying to the board that this is not going to help you especially if we lose, and is not going to put any teeth in this statute when you say what you tell us you're going to build, you better build. I'm saying that the teeth can be put in there on this one. We're here today to discuss it and as Kit said, you need to put the conditions in there, but 1 believe the conditions were as I said, either accidentally, intentionally or whatever, placed on this when it said that I move that the variance, for it pass the variance requested. Without that, l don't know what you're going to do and I don't know what to do about this situation either. Mr. Chairman, as I remember, the City doesn't enforce covenants. That is not our concern, our concern I imagine is what do we do about somebody who doesn't fulfill their adjustment as we've granted it. So what do we have? What? Do we have him tear it down or what do we do? I'm asking the City Attorney. If you had put the specific condition that it has to be built as described, then and they went ahead and built it as it was, at that point then your variance would no longer be applicable. You would have no longer granted variance. The variance would be revoked therefore they would be in violation of the setback and they would have to move the building to the proper setback and since there is a 4 inch concrete slab, part of that would be hard to move. They could possibly do that, pour another slab behind it and build it back ten feet at which point we're out of the running. Well, it's not built though according to code. Right, see one of the problems is that they have got a building there that is way out of context with the rest of the neighborhood there that violates their architectural agreements and everything else that they have. The only thing that the Board of Adjustments did is let them Board of Adjustment Minutes • September 4 2001 Page 9 • • build it 10 feet closer to the setback where he could have built it anyway. So he moved it back 10 feet closer to his own back yard away from the property line, it would have never even come to the Board of Adjustments, he would have just built it and it would have been up to the neighbors at that point to go forward and enforce their restrictive covenants. The issue that is facing the Board of Adjustments is whether or not you believe that the as requested language when the motion was made by Mr. Hanna that "I'll make a motion we grant the variance as requested" when you look right before that Mr. Perkins at what you said. You said "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 ask for a 10 foot variance on his rear setback, do we have any further discussion, questions or input? Do we hear a motion?" We began the meeting by saying on the very first page, you said "the request is a 10 foot rear setback, a 10 foot variance." If you look on the staff report the variance 01-8.00 was submitted by Roderick W. Harden for property located at 5169 Cattail Court, the requirement is for a 20 foot rear setback, request is a 10 foot rear setback and a 10 foot variance. Staff recommends denial of the requested 10 foot rear setback variance as shown on the attached site plan. So, the variance we're looking at was the 10 foot variance. I am going to have a lot of trouble trying to convince the Judge that when you said "the variance as requested" that does not mean what you said it means Mr. Perkins when you said we have a 10 foot variance and you talked about a 10 foot variance right before the motion was made. Instead, try to convince the Judge no, that in fact it means all these other building code restrictions, the way it is supposed to look, the way it was described by the applicant several times to you during the hearing Why that got changed I don't know. Somewhere between here and there, that's not what was built there. If you put any sort of real condition on it that it must be built as described, we wouldn't be having any discussion here because I would be saying yes that variance is no longer valid and he is in violation of the setbacks and we will take legal action against him. 1 think Mr. Estes made several good points in his arguments on that but I don't really think they're strong enough for us to go forward with this. Orton: The applicant even says he is not going to build this type of building. Perkins: But we looked at it very narrowly and looked at strictly a ten foot setback regardless of the description, or I did anyway. Estes: I don't mean to butt in. It's difficult to say that the variance would have been granted for any structure because part of the thing is harmony with the general purpose and the structure is important as to what is going to be put in there or we don't even need to talk about what is going in there. In other words, ask for a ten foot variance to put something in there. But the bottom line, the real thing that is concerning to the City, or I think to the board, is what is going in there. And if you're going to say something is going in there and describe it and stand here and look at you all and do it, and then build that, then yes, what's going in there is more than just a ten foot setback because the yes or no to this board depends greatly 1 believe and rightfully so, as to what is going to be constructed there. Without it, like I said, don't say what's going to be constructed, we' II just put something there, but we want to do it ten feet further back. It is patently unfair to have you all listen to what you listened to and Board of Adjustment Minutes • September 4 2001 Page 10 expect you to do the job that you're asked to do by the City and then get that. I don't agree with Kit from the standpoint that I don't think that there's anybody that is going to look at this record and see what was said and fault this board for revisiting this when what was built was not what was represented. 1 submit to you that the only way this board is ever going to be able to truly control the situation is that the citizens out there understand when they come to you and they say something and they talk about what they are and aren't going to put out there that it better be the bottom line or don't do it because it could be taken down. I realize that some could argue that this is a financial problem for Mr. Harden but ladies and gentlemen, he could have told you and he could have represented what he was going to put out there. The fact that this board says the variance requested fits the description he was talking about, what was going in there, why he wanted the setback, what we got there now and it is not. There is no way for this board to protect the citizens, to complete the duties and review that this board does unless it has some teeth in it and we're sitting here right now lulled to sleep with we could appeal this, why appeal it? What was represented fit the protective covenants. It wasn't appealed. Mr. Hicks called to check. The problem is that puts this board without any control whatsoever to anybody that wants to come in and represent or misrepresent. 1 disagree, of course Kit and I, that's why we try cases and all, I think that it would be hard-pressed for a Judge in a Chancery Court to say "no, this is ok, what's happened, you don't have any rights to come back" because as described, requested. I think this is a blatant instance that this board should address or it is going to have problems. I don't know if this has ever come up before? Perkins: In the ten years I've been on the panel it is sort of a first. Estes: Well, I'll leave it alone, that's all I've got to say but 1 believe that this would sincerely as they say in the legal profession, shock the conscious of the court, to see this kind of conduct and you all relying on I'll take you for your word, you know that's about all you can do. But if it ain't your word then the board needs to have some sort of teeth that it can do and I say that this is the kind of case. Perkins: If I understand the City Attorney's counsel on that, we can impose conditions on it, and that's the way I read this final sentence here is certain conditions were not imposed, it was looked at very narrowly on the way it was requested on the agenda that said a ten foot setback. Estes: See, that's where 1 differ a little bit because I say that's where the conditions are imposed. When this "1 move that the variance be passed" no conditions, "I move that a variance be passed as requested" that encompasses what has taken place, what has been requested. That's why 1 say Mr. Perkins that 1 thought that even in this case it complies with the statute whether as described was intentionally put in there or by accident. I think that builds in the conditions that this board can now look at and revisit this and see that what was requested was not constructed. Olszewski: I have one problem 1 certainly take your opinion and argue it and take Kit's opinion and argue it. What is bothering me about this is that when this request came we were told that • • • Board of Adjustment Minutes September 4 2001 Page 11 Davis: Perkins: Davis: Olszewski: Davis: there were covenants that were going to mandate what was going to be built there and it wasn't, we didn't know what those covenants were but what happens there I would really think that whoever assigned those covenants and all those neighbors that signed those covenants would want to see that those covenants would have corrected the situation before it even came here. The fact that it went up and they have no teeth, that's a major sign out there that something is wrong. That should've been associated with the covenants. Could I say something? Your name Sir. My name is Charles Davis, I'm on the Architectural Review Committee of Sequoyah Meadows subdivision. I reviewed your minutes ofthat June 4'h meeting and I know you all took great care in quizzing Mr. Harden as to the type of structure, the reasoning behind his request for a variance. I mean great detail as to why he needed this building to put his boat in it and what type of structure, how it was going to be designed and built, I mean painstaking questions. You quizzed him quite well as to what he was doing. He also acknowledged in these minutes that he was aware of the covenants, he apparently has a copy of the covenants and the covenants state that any building, any construction needs to be brought before the committee. It is plainly written in those covenants and I think if Mr. Harden were to have used due diligence he surely could've contacted somebody on the Architectural Review Committee and we could've reviewed his plans. We were not given that opportunity, that's why we weren't aware of this. Otherwise, this could have been avoided. The building just went up, I mean there may have been some site preparation work going on in the back yard, it's a fenced backyard, nobody had any knowledge ofthat. One neighbor did contact in regards to your notice of the variance, the request for the variance, he was told what was going to be constructed out there. We were relying on that information. I mean the sanction is in place and I just don't think due diligence was used in trying to contact the Architectural Review Committee. My name is on file, it should be in court record, it's on record somewhere. It was filed when my position was assigned by the past chairman of the committee. Other members names have been out there for years now, all of us are in the phonebook, you just need to find one name, look it up in the phonebook, there's address and telephone numbers. If we don't do something are you going to change how you're doing it? We're going to have to make some changes apparently. We fully intend to make some changes, I mean we've come to a point where enough is enough we've got to take control. There has got to be some safety checks at this level as well. Again, we did what we had to do and that is that the covenants state that unless the building is complete we don't have any recourse, well the building was not complete when we took action and we did ask Mr. Harden to cease and desist and try to sit down and of course at that point, Mr. Harden's attitude was that hey look, the building is done, it's almost finished, I don't know what to do at this point, you guys are going to have to do what you need to do. I have got an investment I need to protect. Board of Adjustment Minutes • September 4, 2001 Page 12 Estes: Let me say too, the protective covenants say this, that before anything is built a person has got to come and get approval. You can lead the horse to water but we don't know what is going on out there, and we know that if they don't come and get our approval, we have a right to file a suit and to adjoin them. That is separate and apart from this board having the right by statute to place a condition as requested as it did and if it's not then to have the right to require the removal or whatever. There are two separate functions. I don't know whether these really need to be changed, it is always a problem when somebody, had they come to you and said metal building and when Mr. Hicks called and it was read they were going to throw up a 20x30 twenty foot tall metal building with a great big door to house a boat I imagine the screaming would have commenced, but that is not what was represented to him or to you, the two actions are totally independent. The board has its right pursuant to statute and then the committee has got to rely on people coming to them to get approval. Williams: You might want to hear from Shawn Daniels who is representing the applicant. Estes: Thank you very much. Daniels: I appreciate you all letting me have a minute or two. 1 think Ms. Orton summed it up best when she said you all are not in the business of enforcing covenants and that is what we've come down to. I mean, 99% of what has been said is what a lawsuit has already been filed and that is the form for this file. Did it comply with the covenants or did it not? What they're trying to get you all into is in a covenant fight and that's never going to be you all's job and it shouldn't be. The entire reason Mr. Harden came before you all was for a 10 foot variance, that was it. He didn't come in for approval ofa structural building, that variance was the only thing there. The building permit that was issued on June 24th has no conditions at all. In fact, a sample was submitted on June 20 that shows it is going to be of metal construction and just for you all's information, there are metal buildings out there anyway. But the whole point is there is a lawsuit filed and that is where this fight belongs and that is the question. Did it comply with the covenants or not? He came in, got a variance from you all as to ten foot, that was the only reason he came here. As Mr. Williams said, if he would've set it 20 feet off, he never even comes in here. He didn't come in here and say please approve this building and here is exactly how it is going to be constructed, now there was some language in there in some ofthe minutes, some ofthe discussion about what it was going to be made and obviously, it is different from that. That's where this lawsuit on the covenants comes in. The entire purpose was for the variance and that's what was in front of you all and I submit that is what has always been in front of you all and still is. That issue has been granted with no conditions, the building is up. To fight over an existing building now belongs in Circuit Court where Mr. Estes has filed suit. I agree with Mr. Williams, if in the future the board wanted to ensure some type of specific construction, then that would be the thing to put in there. Specific conditions on there. If you read those minutes, and I don't want to rehash what Kit said, but that is what the meeting was opened up for. Are we going to give him the ten foot or not? The very last thing when it was stated that motion to approve it was the variance requested which was ten foot. It wasn't "I make a motion that we approve the building as specifically stated by Mr. Harden." No, it was the variance that he requested which was ten foot. That was the whole reason that he was here, that's the Board of Adjustment Minutes • September 4, 2001 Page 13 • Green: whole reason, that's what you all ruled on and that's obviously what you all should rule on. Ifthe board wants to get into approving or disapproving aesthetics on buildings then it needs to be clearer than the strained meaning that Mr. Estes is trying to give in the minutes, because, like 1 say, the building permit doesn't have a condition one on it. It says garage, shop, storage building. It is not going to be surprising that a garage, shop, storage building might be made out of metal and in fact there are metal buildings out there. That's our two cents for what it is worth. Why would the applicant make misrepresenting statements though about what his intentions were in order to get a variance to this committee or this board and then do something that is totally contrary to what he had led this board to believe. Daniels: Mr. Harden if he wants to elaborate on it he can. My understanding was he had a contractor who, my understanding is that he is recently indicted out of Fort Smith, that was going to build a wooden building for a set price which was within his budget. That contractor, obviously for reasons that we'll probably find out more about down the road, was not able to build that building. When Mr. Harden shopped around with other contractors the price was simply more than he could afford. That was his intention when he appeared here before you all. The only reason he was here before you was for a ten foot variance. It wasn't for approval of the construction. He did add that in and that was his absolute intention at the time. When he couldn't find a contractor that would put up a wood one that he could afford it was either not build it or build it and he had a boat he needed to store and so he went ahead and had a metal...the fact that there are other metal buildings out there already...and like I say, the metal building was submitted and approved and the final inspection was made on August 15' of the metal building that is out there. I don't know if that answered your question Mr. Green? Perkins: Do you have anything else Sir? Daniels: No Sir. Perkins: Your name Sir? Schultz: My name is Dale Schultz. I live out in Sequoyah Meadows and I am a real estate developer. 1 think from my perspective the issue here is how the residents in the subdivision were mislead. Mr. Hicks called about the sign out he requested a ten foot variance. When he called in and asked what the variance was, what the request was, they read to him the description of the request which was the building. Obviously, we've already gone over this. That is not a problem. I've gone through large scale, I go through large scales often. If I was to come to the City and say this is what I want to put up, now we all know that adjacent property owners get notice of what is to be requested. Ifwhat you're requesting works with the adjacent property owners you do not have a problem. If what was requested by Mr. Harden was a metal building and that what was represented, you wouldn't have seven residents now, you would've had seven residents here the first meeting and in that case you probably wouldn't have given the variance because it was misleading. I'll base it on my Board of Adjustment Minutes • September 4 2001 Page 14 • • property. If 1 go out and say that I'm going to do 4 eight plex buildings over on Lewis Street and 1 tell the adjacent property owners that that's what I'm going to do but it costs too much so I change it and it looks like something different, the City is going to raise cane. 1'!! bet ya. I not only misrepresented myself to the City but to the adjacent property owners. For me, that's what is at store here. 1 don't know, there are other metal buildings in there that got put in on a weekend. Yes, they were prior to the fact, but the fact that this was going through a variance and when it was called in by Mr. Hicks they said this is what they're building, the discussion was that, that's what was represented not only to you, but what was represented to us. Had it been represented to us as a metal structure that is 20 feet high, 30x20, we would've all been there for that meeting. That's why there was no opposition. Now, if this situation doesn't make things different to the Board of Adjustments or to Technical Plat Committee or the City Planning Commission then obviously, the rest of us can go out there and do what we want to do in the City of Fayetteville and the heck with the adjacent property owners. I'm not adjacent but when you look out my front door that's all you see is that metal building. I'm two lots away across, that's all you see out my front door is that metal building in between two houses and I had a real estate agent come out and say "your property values have gone down." Now, had I known there was going to be a metal building, I follow the rules set up by the City. Now, if it costs too much money then you're going to say to me, "Dale, I'm sorry, you're going to have to do something different, we're sorry it's costing you too much money, we're sorry it's going to cost you 1.2 million instead of$800,000" That's life. 1 think not only were you misled but as property owners out there in the subdivision, we were misled. Key: Could I make a comment? Perkins: Your name Sir? Key: My name is James Key, I'm an architect here in Fayetteville. I wanted to say something partially for the purpose of expediting this meeting, I'm among the others here waiting for variances to be heard. I think that something that may be being overlooked, it's something that I had thought about early on here in this discussion. In any variance application there is a requirement that the project be described in detail as one of the conditions of the submittal. In addition to a written statement addressing four particular criteria. In that written description which we have always submitted and which 1 understand is a part of the requirement for an application for a waiver of some portion of the ordinance. You are required to describe that project in detail. That description that I have seen as part of this project as being discussed did state it would be a wood frame structure in capatability with the adjacent structure, etc., etc., etc. That was where the description was given to the people who called in specifically from that statement. I think that being a part of this application together with the applicant or representatives on certain occasion commit perjury with the knowledge that any false statement or incorrect information would be grounds for invalidation of this application or its approval. 1 think you've got the means to look back at what was done, what was said, what was represented and what was misrepresented and make a reversal on the approval that was previously given. Board of Adjustment Minutes • September 4 2001 Page 15 • • Williams: I have just been provided that information from our planner that in fact there is an applicant signature requirement with the application and it is signed by Roderick W. Harden on May 15, 2001. It states that "I certify under penalty of perjury that the foregoing statements and answers herein made all data, information and evidence herewith submitted are in all respects to the best of my knowledge and belieftrue and correct. I understand that submittal of incorrect or false information is grounds for invalidation of applicant completeness, determination or approval. I understand the City may not approve what I'm applying for if my subdivisions on approval." You heard the applicant's explanation to his attorney of why what he said would not necessarily have been a misstatement when it was said. That's their argument. However, 1 think this puts this case in a new light now that I'm aware of this, I wasn't aware that they had signed this and I am going to talk to the planner and this description of requests was one of the things that was submitted with the application. The description of the request did talk about a wood building. Now the variance was for a 10 foot setback but I think that this puts this issue in a new light, I'm not talking about necessary criminal charges because the presumption of innocence and proof beyond a reasonable doubt is very difficult in a case like that especially if there is an explanation as presented by Mr. Daniels here on behalf of his client. It is not up to him to tell you whether or not his client was telling the truth, it would be more up to you all to make that decision and whether or not you feel like you were presented false and incorrect information. It would've had to been false or incorrect at the time of submission. If in fact Mr. Daniels was correct in his assertion, then it wasn't false and misleding information, it was what the applicant believed was true when he made the application and when he came and spoke before you. If it was true and he thought it was true then, and then all these things happened with this other contractor dying or not being able to fulfill the contract and then it not being able to be done, then we're still back on the same problem with not a very good motion for a variance. The variance was intended to be. As I said before, it wouldn't solve Dale's problem because if they pulled the building 10 foot more onto the lot it is going to be closer to your house. Schultz: Yeah, it's going to be right in. My question is, if that is the case, and we all have subcontractors that for one reason or another can not take ajob, they get sick, they die, does that allow me to go out and do whatever I please? Williams: Obviously it does not, if there are conditions and you have a building permit that has been granted to build a building a certain way then it is going to be express in what it is going to be. Schultz: But you also ask fora building in a certain way when you apply for a building permit or you apply for a large scale development and you apply for a board of variance, you are asking for a specific thing on every one of your documents. You tell them the type of building, you tell them the setbacks, you tell them how many parking places, you tell them how many trees, I mean I have got the first tree preservation easement in Fayetteville, Arkansas. Heaven forbid I should have to go down and build inside that. Estes: If I might, and real brief, 1 agree with what Kit said except for one thing. With that statement in connection with his signature, I believe that once you sign that and present that Board of Adjustment Minutes • September 4 2001 Page 16 • • to the board that if a change comes along, you have a duty to change it. You can't sit back and say well you know, things have changed from what I wanted to do, now I'm going to do this and not have the obligation to come before you and say 1 can't afford what's proposed. Let me tell you about it. 1 don't think we can idly sit back and allow this to take place. It is as much a misstatement to remain mute when you know better than it is the same thing to say I'm going to do something different. The problem is that the misrepresentation takes place not only at the time that you signed it and you have the duty if you know it has been changed to come forward and not be mute, to make it clear. You're going to run into everybody in this entire town coming to you saying "well at the time that happened, when I was building those apartments, 1 wanted to build them this way, but you know, things change" So that's why in the eyes of the law that someone that has a duty undertaken by a signature has a duty not to remain mute when he knows that that is not the plan, to come forward and correct the mistake. Daniels: Can 1 add on? That was done, as soon as Mr. Harden became aware that he was not going to be able to forward the wood building he submitted on June 20 documents showing it was going to be a metal building and that metal building was what was approved. Perkins: To a building inspector? Andrews: To get a building permit. Is that true, that was what was submitted to get a permit? Harden: That's correct, that is what was submitted to get the permit. I made no bones about it when 1 went back to get the permit and spoke with the person at the desk, told them the original plan was to do this, although that's changed at this juncture and I intend to build another building, issued the building permit, you know, 1 came in front of the board for a variance, not for the type of construction, because I could've built a metal building without the variance had I built at 20 feet. So, the whole purpose of coming in front of this board was for the ten foot setback. It had nothing to do with the type of construction. Perkins: Excuse me just for a second, 1 know who you are, but for the record, what was your name? Harden: Rod Harden. A company in Fort Smith by the name of Working Man Construction, a gentleman by the name of Jamie Martine who I understand has now been indicted for embezzlement of people's money, is who gave me the original bid. There's no hiding that, that's public record that it has indeed occurred and 1 still have a copy of the bid that was provided to me in December of 2000 when 1 started the process of doing this project. You know, going back to the I0 foot variance. 1 didn't try to hide anything. I completely told them what I was building, it says so on the site plan for the building inspection. 1 told the lady at the front desk when she issued the building permit that that was what I was going to build. The inspector came out and gave it a final approval from the City, so it has been finally inspected from the Planning Commission, or whatever the board is that does that. The point being, you know, to me it is a covenant issue. If it is a covenant issue then that's where it needs to be, there is already another metal building out there that the Architectural Committee took no action on when it was built, l don't understand you know, where they're Board of Adjustment Minutes September 4 2001 Page 17 Perkins: Williams: Olszewski: Williams: Olszewski: Williams: Andrews: Williams: going with this one if they didn't take action on the first one. 1 certainly did not try to misled anyone from the board or this committee. 1 had every intention of building that building but I know now why I was given an estimate that fell within my budget, because the guy was simply going to take my money and was never going to complete the job. That is basically how it went down. Mr. Williams you said that there was a different light on this? Dust wanted to touch back on that again for a minute. That's what 1 was talking about, I had not seen the certification that the applicant has to sign which would potentially give you the right to invalidate an approval. That is something that has been just placed in the application process by the City planning staff, I've not had a chance to review what kind of effect legally it would have. Normally, it doesn't really follow with the other ways that we overturn decisions. Usually they do require conditions being placed specifically upon a project and then those conditions not being met or also appealing to a higher authority and at that point the people look at it. This is a no win situation for you all. I'm sorry that you're in it, and right now we're trying to get the horse back in the barn and it's way gone and we're trying to close the door. I don't know if this helps anything. As 1 recall, Mr. Conklin suggested that we not do it. Your original suggestion is that we not do it and from this letter that Mr. Harden wrote, when he was here as I recall, he continually expressed to us that by doing it the way he was going to do it, it would be so sensitive and pleasing. So this is something that is like a no win situation where in fact in his letter when we talked about the locations that our City Planner suggested he put it in he says "these latter locations will not suffice due to the landscape and are unattractive to the neighboring properties. Granting this variance will not place me in any other condition not enjoyed by others in my subdivision" so we're in a little bit ofa problem here. What I'm hearing you saying is that we should've been clear reiterating to him what we were hearing but the slant of it definitely was that he was going to build an aesthetically pleasing building and could only do so with that setback, I do recall him saying that. You could've easily have just said it would be built as described. If you would've said 1 move we approve the variance with the building being built as described. And we definitely will do that. It's going to be in a bit ofa fix here because... What's the difference between as described and as requested? The variance as requested or the building built as described or as requested. In the motion you would talk the building and all. You wouldjust make any mention of it whatsoever then 1 think we would be in very good shape. Estes: The letter that was submitted by Mr. Harden requesting this had attached to it a description Board of Adjustment Minutes • September 4 2001 Page 18 • • of request. That's what was requested, a wood structure designed like he said, that was what was requested, that was the variance. I know we're playing with words ok. Perkins: There's three attorneys putting them out so I'm at a bit of a loss. Estes: 1 understand that. 1 know what Kit is saying but I'm saying what Mr. Andrews is. Whether you say as requested or described. I think everybody knows what they're talking about and I don't think that there is, I think we request something along the designs and information which you provided. The board has the ability. Williams: The only variance that can be requested is a ten foot variance. You all do not really approve buildings. Conklin: Thank you Kit, I was going to bring that up. We do not have residential architectural standards. We do not review how someone's house is going to look. Perkins: That's why I asked to have this brought up today is what latitude do we have? 1 know, 1 can't speak for the board, but speaking for myself, the decisions that I've made for the last few years are based upon the description. I was reminiscing not putting it in motions or requiring it to be worded specifically and that is why I'm asking. Will that suffice in the future and do we have the latitude here as this panel to say yes, specifically we're talking about a ten foot setback contingent upon it looking as you described it or illustrated it. Can we say that? Conklin: You can place any conditions you want on the application. Perkins: Then this is what this deal says here, if we say it we can do it, but we didn't say it this time. Conklin: You do need to look at what findings you have to make by City ordinance and aesthetics is not one of the criteria you use in deciding a variance. Andrews: It sounds like it is going to have to be. Perkins: It is, and we have over the years. Williams: You can do it because the statute says you can take it in. The state statute jumps anything, any ordinance we might have. Conklin: You need to make those findings. Hanna: Mr. Chairman, 1 would just like to say from everything we hear from the board, we look at the whole packet. From my point of view, I historically said the motion as requested, it takes into account 14 pages that we get for every request. I don't go through there and beat this thing to death but 1 believe the request included the structure. We take into account the rights of the property owner and the neighborhood, egress ingress by the fire department, Board of Adjustment Minutes September 4, 2001 Page 19 safety and we take all those facts and then throw in some common sense and hopefully make a decision. I think that's how we made a decision on this. I think we have to go with the City Attorney on what we do, but my uneducated legal opinion is we grant the variance as requested does include whatever was included in these fourteen pages, not a fraction of. So that's just my position. Schultz: And that's what the citizens of the city are talking about, whatever is requested, whatever is in the packet, no matter what the project. Daniels: Out of fairness to the property owners, if you're going to put a condition in there, it ought to at least be clear, what if he said "I'm gonna use oak" and instead he uses maple, I mean we could get into a horrible slippery slope ifwe started trying to use vague words as requested. Out of faimess and due process, if you're going to have a condition, it needs to be in there clearly. Trying to say as requested in this stack of materials including twenty-two pages of board minutes, that somehow is a condition, you're going to be up here all the time on this. Estes: 1 submit that was what represented and requested again is not vague, what you were told he was going to do does not amount to a building 20x30 by 20 feet tall. It is terribly unfair to you to say this was so vague you didn't know what was going on. 1 believe this board fully believed that what was requested and what was going to go there, and then you get this. 1 don't think it is vague. 1 don't think you have to be exact, l think common, ordinary sense that people have that sit on these things is about all they can rely on and rightfully rely on. Schultz: Any builder can take that description and go out and build that specifically. That six to twelve pitch as was requested. Because a six to twelve pitch under Mr. Harden's thing was needed to take care of the warranty for the architectural shingles. Perkins: Let me move on here. Other than... Green: Mr. Chairman, can I say a few words about this? I was absent at this meeting that you held. I was on vacation and I'm sorry that I missed it. I did read these minutes very thoroughly. 1 went and visited the site and to me it was absolutely clear what this committee intended and what was represented to this committee. I'm trying to boil this down to something that we can either face or move on or whatever. The number one issue that really bothers me is that if we rely on input from applicants, and these applicants turn out to misrepresent the information that we base our decision on, we may as well not have a Board of Adjustments. We have no teeth. 1 mean, we are going to have to rely on some information. The other issue that bothers me is that ifwe have to dot every I and find every little legal loophole to clear it as we make a motion then we may as well not have a Board of Adjustments either. There is going to have to be some intent based on their representation, their sworn affidavit that this is what we're going to build and this is what we're representing to this committee and that is why this committee is going to grant the variance. If we don't use that information, then we're going to have to have a legal opinion to close every loophole every time and I don't think that we're going to be able to do that. Now, as far as I'm concerned, this particular matter, I mean we've probably extended ourselves way beyond our Board of Adjustment Minutes • September 4 2001 Page 20 capabilities. We've already shown and the City Attorney has told us that we don't have anything we can do to this matter. He has already said that we don't even have a case now as far as being able to fight this because we didn't specifically state our motion. I mean, to me that is a matter for a Judge to determine. As far as I'm concerned, and from what I've read here, this committee is going to have any validation at all, we've got to be able to rely on information, stick to it, and make sure that it is enforced that way. If it is not enforced that way, it shouldn't have been granted to start with. So, there are a couple of issues there that I kind of intermingled there but, you know to me, that's the crest of it. Number one we ought to be clear in what we can do in our motions to verify that we've got something that we can stick to and then number two, we need to be able to enforce that. If the City can't enforce it, we can't enforce it to our legal department or planning department, there's no need for this board. Hanna: Mr. Chairman l have a question for Kit. Kit, would you just mind reading that sentence you read just a second ago since we don't have it in front of us, about the sworn statement? Here s another thing, is the description of the request which we have on page 1.16 is that was what was signed. Williams: That was not specifically signed but that according to Mr. Conklin was part of the packet that was submitted to the Planning Department and therefore, would be part that would be controlled by this particular statement that has been signed by the applicant. Hanna: What 1 would like to have read into the minutes is a description of the request and then that statement that is on the permit request. Like I say, I'm not an attorney but this is the description of the request and that said if 1 remember correctly, that you could lose your approval of the variance if what you stated is not correct. Williams: Well, it says that "I understand that the submittal of incorrect or false information is grounds for invalidation of application completeness, determination or approval." The part there that is the most important of course, is the invalidation ofapproval. Normally, you're only going to do that through some sort of appeal or something. The question would be, well the primary question if went to Court would be whether this was actually submitting incorrect and false information or was it when it was submitted, true and correct, but then when it was built, did that then render it incorrect for purposes that we can then go back and say we should revoke this for. That's a stretch. I would like and I will establish saying the description of the request was 180 out from this metal building that was built. It was certainly not close. The best argument 1 would have in Court is this particular statement because I would argue to the Judge that even though it might have been correct when originally submitted, it was no longer correct prior to him building the building because that is not what he was going to build at that point in time and therefore, his information became incorrect. 1 don't know, and 1 would doubt that that is going to be enough to win the day in Court. Also, even though you said, and you made the motion Mr. Hanna, you said "that 1 make a motion to grant the variance as requested" that you meant the full 22 pages. Well, there is nothing to indicate that that's what your motion meant. I sit also with the Planning Commission, and they are very careful when they go through variances and other things that Board of Adjustment Minutes September 4 2001 Page 21 Olszewski: Williams: Olszewski: Orton: Perkins: Williams: they consider, they go through the conditions of approval and they say "we make a motion to approve this request based on the conditions of approval..." that have been read into the record at that point in time. In order to make your decisions enforceable, you don't need a legal decision every time or a legal opinion. All you need to say if you have a condition you want to place it on like it should be built as it has been represented that it will be built, then that's all you need to put in there, it's not a long and complicated thing to do. It's just that unfortunately, maybe fortunately, you've never been faced with something like this before to my knowledge where it was represented to you that something was going to be built and so you granted the variance and then something very different is built. You just said when you go to Court, that's about all you would be able to use. Will you be able to go through here and cite things? For instance, Mr. Harden said something to the effect here of"I want to keep it as low profile as I can in the back for my benefit, so when I look in the front of my house I don't see a huge shop building in the back and for everyone else's benefit, I also want it to look like the house and currently it is staked out and you will get a visual representation of where it is at." Then Mr. Perkins said to him directly "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." Does that go into play when you go into Court? The reason I say that that is mainly what I would argue is because of the way that Mr. Hanna did his motion "as requested" and then there is that form that he gave in his requests. So I would say this was his request not just a variance, but here's the description of the request, so that would be our strongest argument. Certainly anything he said in the minutes, I would try to use to show exactly what you all believed because of representations of what was said. The strongest one would be the description of the request because of the way that Mr. Hanna did his motion. We will certainly do that I'm sure. What are we to do today? Right now so we can get moving? Should we take a vote on this situation? To rescind? If you did, you would need to, ok, I guess any decision that you would make I would want you to tie it to his signed application here. Depending on the decision you're going to make, and that's the problem. That's why the planning staff wasn't ready for your approval and haven't had all the conditions there because they recommended denial. It is kind of hard to always anticipate what you're going to say. If you intend to attempt to invalidate your approval then you would have to make a finding that the submittal of the information and his statements to you were incorrect and false. Therefore, you're justified to invalidate your approval and you would want to say that Mr. Hanna's motion which said "approve the variance as requested" referred back to the description of the request and the statements that have been given to you. Board of Adjustment Minutes September 4, 2001 Page 22 Perkins: Since this is obviously getting complicated but does bear more study apparently, can we table this issue until that study can be done and then revisit it? Are we going to go beyond some window of opportunity here to act on it? Williams: To some extent we're already beyond the window. I don't know if any delay would cause any further problems. Most things are supposed to be done within thirty days, appeal wise, or they're not done. When was the building built do we know? Perkins: August 15th or something, that's the date 1 heard. Daniels: 1 think that's right, August 15th. Williams: I don't know of any other window we'd be going past. If you all are seriously considering attempting to invalidate your approval then 1 would like to probably have enough time to prepare the motions that you should make in order to do that so that we can cover every ground possible. Andrews: When you said just a moment ago what we should make that motion for, I believe there are two separate issues, one is whether or not the statement was made falsely when he made it, when he signed it, what his intent was. The second thing is what we intended, what we understood the intention to be at the time. Williams: For as requested, what that meant. Andrews: My feeling is 1 believe that Mr. Harden came to this board fully intending to build a wooden structure. Williams: I should tell you I would not submit to the Court, I do not believe I would submit to the Court, that it was intentionally false information because here it doesn't require it to be intentional. It says submittal of incorrect or false information so you can misstate yourself without lying. Just you made a mistake, false information. 1 certainly would not, I don't think, try to go beyond that if I was presenting something to the Court. Andrews: So 1 think when he came to this board, he gave us the information at that time that he intended it to be, and that's what we approved and what was built was not what we approved and that's where I think we would want to consider rescinding what we approved because it wasn't built as requested. The other thing that I want to ask you, because Mr. Green was out of town and I was out of town on business, if we did take a vote next month, whether or not we vote on those issues also. Williams: Yes, you would still be allowed to vote on that anybody that is in the board here can vote. Orton: Do we need a motion right now? Williams: Why don't you move to table this? That would be what I recommend until your next meeting • • Board of Adjustment Minutes September 4, 2001 Page 23 or any other called meeting incase you want to meet earlier. MOTION Orton: 1 make a motion to table this issue until the next meeting. Olszewski: I'll second it. Perkins: Motion and second at the table, call the roll please. Conklin: Since we're discussing this, and I'm not sure of the status of the permit, this may be a question for Kit here, should that state any final action on any standing approvals or permits? Williams. I would think that anything directly related to the variance it would, nothing that is not related to the variance. Conklin: Referring to the building permit, I'm not sure where that's at. I just raised that point, I would hate to be issuing additional approvals and permits for a structure if your action is going to reverse your variance approval. Hanna: I mean to call a special meeting, not to drag this on for a month, but I think my thing is that we need an opinion from Kit. I don't think that any of us think that you tried to deceive us, it just happened that way. What do we need to do as a board? You're the one that is going to be carrying the sword, not us. Williams: Well, I want to be able to study it. Hanna: I think that you need to come to us and say this is as your City Attorney, because that is who we listen to, that's who we have to listen to, this is what you need to do as a board and whether we agree with him or not, I think we at least have to listen to him. Williams: I'll certainly do that, I would like a little time to look at the ramification of the applicant's signature and what we could get going on that because I had not seen that before. Orton: This means that anybody that comes in and makes a request and whatever they tell us, then later on, their circumstances may change and then they not carry it out. We often put stipulations down that are recommended by the planning office. I can see that this can happen. • Williams: The reason I thought you might have a special meeting is because we wouldn't want to Board of Adjustment Minutes • September 4, 2001 Page 24 delay one of your other meetings there with everybody else waiting for us. Orton: We do have a number of other cases here. Perkins: We do have a motion and a second? Call the roll please. ROLL CALL: Upon roll call the motion to table VAR 01-8.00 is approved 7-0-0. • • Board of Adjustment Minutes • September 4 2001 Page 25 • VAR 01-16.00: Variance (Collins, pp 445) was submitted by Jeffery Collins for property located at 725 N. Vandeventer. The property is zoned R-1, Low Density Residential and contains approximately 0.29 acres. The requirement is for a 8' side setback. The request is for a 5' side setback (a 3' variance). Perkins: Ok, that brings us to the first item on the new business, variance 01-16.00 submitted by Jeffery Collins for property located at 725 N. Vandeventer and this is a requirement for a 3' variance on a side setback. Warrick: The applicant has requested a 3' variance for an existing structure on Vandeventer Street. The applicant originally came to the planning office requesting an addition to this existing single family home. The addition was greater than 25% of the existing square foot ofthe home and therefore we were not able to issue a building permit because the city has an ordinance that addresses nonconforming structures whereas it is an owner occupied nonconforming residence an addition up to 25% of the structure can be permitted without a variance. The size of the addition that the applicant was looking at was in excess of 25%. I did slip that section of the code in your packet and it is on page 2.7 dust for reference. What the applicant decided at the time was to take his plans and revise them to basically modify the proposed addition and reduce the size of it. He got a building permit for that addition and decided that, in the interest of protecting his existing property and existing structure, he did want to pursue the variance request because the part ofthe building that is encroaching the setback is an existing part of the structure and was originally a garage that was later enclosed for living space and this building, including the portion that encroaches the setback was existing prior to zoning going into place in this area. This project is in the Wilson Park area, an older, established subdivision and building permit records that I could find dated back to 1965 and that building permit that I found at that point was an addition, so the structure was existing well before the city's current zoning went into place in 1970. Because of those conditions and the findings that we've made, staff has recommended approval ofthis variance with the condition that variance only apply to the existing original structure and that it not be conferred to new construction or additions made to the structure in the future. Perkins: Just that little slice right there? Warrick: Yes Sir. Perkins: Mr. Collins? Is Mr. Collins present? Warrick: I believe he knew it was coming to this meeting. I haven't seen him today so I don't think • that the delay earlier led him away but it is up to the board as to whether or not you choose Board of Adjustment Minutes • September 4, 2001 Page 26 • • to go forward with making a decision. Perkins: Does anyone else present wish to speak about this appeal? Olszewski: Just to be really clear, your condition that you put there Dawn, would not include additions made in the structure's future, but that also includes the addition that is going up right now? Warrick: The addition that is under structure right now complies with current regulations. Perkins: And that is well within setbacks, so it is just this slice of the den or whatever that room has become now. Hanna: If that current nonconforming structure is damaged, can it be replaced? Warrick: Without the variance if it were damaged beyond 50% of its current value it could not be replaced. With the variance it makes the entire existing structure conforming. It brings in that 3' strip along the old garage and it makes it conforming so that in the future it could be repaired and if necessary rebuilt on the same foundation. MOTION Hanna: Mr. Chairman, I move that the variance be accepted based on the variance granted shall only apply to the existing original structure and shall not be conferred on new construction or additions made to the structure in the future. Kunzelmann: Second. Perkins: Alright, we have a very specific motion and a second, do we have any further discussion? Call the roll please. ROLL CALL: Upon roll call the motion to grant VAR 01-16.00 is approved as recommended by Mr. Hanna 7-0-0. Board of Adjustment Minutes • September 4 2001 Page 27 • • VAR 01-18.00: Variance (Roberts, pp 435) was submitted by Cory Roberts for property located at 6321 El Paso. The property is zoned R-1, Low Density Residential and contains approximately 0.20 acres. The requirement is for a 25' front setback. The request is for a 23.7' front setback (a 1.3' variance). Perkins: Moving right along to the next variance request, 01-18.00 submitted by Cory Roberts for property located at 6321 El Paso. This is a request for a 1.3' variance on a setback. Staff, do you have input on this please? Warrick: This is a relatively new single family home in the Owl Creek subdivision which is west off of Hwy 16 off Double Springs Road. The structure was completed in 1996 built by Pennington Development Company out of Springdale and was built too close to the front setback. The wall of the front of the structure, as shown on the survey included in your packet, sits 24.7 feet from the front property line, a requirement is 25'. That's the wall of the structure. When I got the survey 1 did call the surveyor to verify whether or not these dimensions were from walls or from overhangs. He told me that his field notes state that there is a one foot overhang on the structure, therefore, the variance request accommodates that overhang and is for 1.3' as opposed to the 0.3 where the building itself encroaches. The error in this particular case happened during construction and it was sited incorrectly. Perkins: Warrick: Olszewski: Warrick: That deals primarily with just this northeast corner of the house right? That's correct, the northeast comer of the garage I believe encroaches the front setback. Staff recommends approval of this request based on the findings in your packet and with the condition that the variance only apply to the existing structure and shall not be conferred to future additions or modifications. Do we have very many of these from Pennington? I looked back through and we haven't had many. I have in the past seen one from this developer or contractor. We haven't been keeping records long enough. They're on list now though. Olszewski: Do we do anything to let them know that they've made this error so they can be more careful in the future? Warrick: Perkins: We do not individually contact the contractors. We rely on the applicants. Sometimes the applicant is the contractor, it really varies. In this particular case, there was a property transaction in motion and the survey was requested as a part of the sale and that is what brought about the discovery of the variance, the encroachment. It is on a curve? • Board of Adjustment Minutes • September 4, 2001 Page 28 • • Warrick: Yes it is. Hanna: I don't remember seeing one for Pennington, that doesn't mean there wasn't one. We're cutting it close, 1'3" and then if their tape measure was made somewhere besides the United States, it might be off an inch or two, I would feel more comfortable giving them a foot nine inches or something like that. They're Just doing this so they can get title insurance right? Warrick: They want a free and clear title. Hanna: My suggestion would be to raise that by 6 inches or so. Just because if the next time this goes through if they are an inch off and somebody else pulls it, because we've seen that happen with surveys, they can be off fractionally. That would be my suggestion. Perkins: Lift that to 1.75 please. Hanna: Or 1'9". Is this 1'3"? Warrick: No, it's 1.3', 1'4" is what is requested. Hanna: When we get ready to make a motion, I'll make the motion with an amended request. MOTION Hanna: I make a motion that we grant a 1.75 foot variance for the portion of the building that is within the setback and then add on to my sentence whatever you need to make sure it is legal. Perkins: We're getting careful here aren't we? Warrick: What the Planning Commission will typically do is make amotion to approve with the staff conditions as recommended or something like that. Now, I realize that you made a modification in this case, but that is the way we can deal with that. If you like the conditions as they're stated then you can include them in your motion by stating as proposed or recommended. Hanna: As proposed or recommended by the staff except we've increased it to 1.75 feet from 1.3 feet. Board of Adjustment Minutes • September 4 2001 Page 29 • • Andrews: Second Perkins: We have a second. Any further discussion? Call the roll please. ROLL CALL: Upon roll call the motion to grant VAR 01-18.00 is approved as recommended by staffwith the variance being 1.75 feet 7-0-0. Board of Adjustment Minutes September 4, 2001 Page 30 VAR 01-19.00: Variance (Hilker, pp 446) was submitted by Ronnie and Christine Hilker for property located at 311 E. Prospect. The property is zoned R-1, Low Density Residential and contains approximately 0.344 acres. The requirement is 25' front setback. The request is for a 22'11" front setback (a 2'1" variance). Perkins: That brings us to the next variance 01-19.00 submitted by Ronnie and Christine Hilker for property located at 311 E. Prospect. The request is for a 2'1" variance. Staff, background on this please. Warrick: In 1957 this house was moved from College Avenue and placed at the southeast comer of Willow and Prospect Streets, where it sits now. At that time there was a carport erected in the structure and it was built facing Prospect Street in front of the house. The property is on a relatively large corner lot. It was originally titled as two lots in the subdivision. A lot of the neighboring structures are also on a combination of lots. Over the years the applicants made some alterations to the home, made a large kitchen, did some rewiring. In 1994 a building permit was issued for a free standing garage which was constructed at the southwest corner of the property and accesses Willow Avenue. With that garage there still is the carport that is functional and being utilized along the front of the property facing Prospect Street. At this time the applicant would like to remove the carport and build a garage on the Prospect side of the structure in order to fit a full size vehicle into the proposed garage, the applicant has requested this variance for 2'1". The applicant did provide a site plan as well as elevation drawings of the proposed addition. They're located in your packet starting on page 4.10. Staff is recommending approval of the requested variance with two conditions. The first being that any variance granted shall only apply to the proposed garage structure and shall not be conferred to any other construction or additions made to the structure in the future and second that construction of the proposed garage shall be completed within one calendar year from the date of the variance approval. If the garage has not been constructed at that point in time the variance shall be deemed null and void. Hilker: 1 am Ron Hilker making the request and we are prepared to sign a blood oath that it will look exactly as illustrated. Perkins: I'm sure a motion will address that since you did offer a drawing, you're bound to this now. Is there any other discussion? Andrews: What is the depth of most garages for a full size vehicle? Hanna: 19'6", a lot of garages have been made 22' deep so they have plenty of room, but 20' is in terms. Perkins: So 19'6" on this one and of course it does extend back 27' on that east side? Is that going to be a parking side also, that deeper portion? Hilker: Yeah. • Board of Adjustment Minutes September 4 2001 Page 31 Andrews: Warrick: MOTION Hanna: Green: Perkins: Hanna: Perkins: Is Prospect scheduled for any widening anytime in the foreseeable future? 1t is not at this location indicated so on the master street plan. It has I believe 40' of right-of- way existing which complies with the residential street right-of-way. It is not indicated for widening in this location. Mr. Chairman, I move that the variance be granted based on the staff recommendations, items numbers one and two. Second. Did you want to mention the description? No, I'm not going to get into the aesthetics. Based upon the conditions of staff we have a motion and a second, any further discussion? Call the roll please. • ROLL CALL: Upon roll call the motion to grant VAR 01-19.00 with staff recommendations is approved 7-0-0. • Board of Adjustment Minutes • September 4 2001 Page 32 • • VAR 01-20.00: Variance (Stokenbury, pp 445) was submitted by James Key on behalf of Scott Stokenbury for property located at 7 Prospect Avenue. The property is zoned R-2, Medium Density Residential and contains approximately 0.22 acres The requirement is for a 25' front setback and an 8' side setback. The request is for a 13' front setback (a 12' variance) and a 6' side setback (a 2' variance). Perkins: That brings us to variance 01-20.00 submitted by James Key on behalfof Scott Stokenbury for property located at 7 Prospect Avenue. This is a request for a 12' variance on the front setback and a 2' variance on a side setback. Staff, do you have input on this please? Warrick: I just handed out some revised descriptions. They are minor modifications of what is included in your packet. When the applicant originally made the request they didn't specifically make a request for the side setback that encroaches two feet into the side setback requirement. So I asked the applicant's representative to make a more detailed description that better includes that into the variance request and that is what you have in front of you. The structure that is located here at 7 Prospect Street is an existing nonconforming structure. It was erected prior to 1964. In researching the project 1 did find a building permit for some heating and air work that was done in 1964. There were no other permits on file in our inspections division. As with some of the others that we ve discussed today, this structure was existing prior to the 1970 enactment of the city's current zoning regulations and staff in this case is recommending approval of these variance requests with three recommended conditions. First, that the variances shall apply only to the proposed new porch addition and the existing portion of the structure which encroaches the required building setbacks, no further encroachments are permitted with this approval. Second, the construction of the proposed porch shall be completed within one calendar year from the date of variance approval, if the porch has not been constructed at that time the variance shall be deemed null and void. Third, if the construction shall reflect the drawings submitted by the applicant's architect as a part of this application. The applicant and his architect are present to answer any questions which you might have. Perkins: Any comments? Stokenbury: I can assure you that no metal buildings will be on the place. Key: One comment, earlier in the week we were talking to staff about the twelve month requirement. The owner did not sign the conditions of approval and in fact, the variance request. Particularly because of condition of approval number two, we would like to request consideration for a slightly longer period of time. Specifically, we would like to ask that that be extended to 18 months that it would take for this construction to be completed. We felt we would be done with the infrastructure by this time next year. But due to the lateness of the season, we didn't anticipate getting started on it this season and we were wanting to do the new porch in conjunction with the addition proposed on the rear of the house. We were just a little concerned about our time table may push into next fall. 1 was told by staff that shouldn't be a problem if we were under construction at that time we could come back Board of Adjustment Minutes • September 4 2001 Page 33 Perkins: Warrick: Olszewski: Stokenbury: Olszewski: Stokenbury: • Key: before the city and ask for an extension of the variance. I would simply like to request that consideration at this time as condition for approval if that is possible. Do you have any comments staff? No, the reason that staff recommended the time frame is just so that we can better track these projects. If someone comes before the board and believes that they need a variance for a project that is pending that they do intend on working on we want to see it actually happen. I believe that this is a plan that they're going to bring about and I don't have a problem with extending that if the board feels it is appropriate. Where does all this fit next to that huge tree in the back? Huge tree on the west side? Yes. Ok, it goes right out of the south side of the building. You're talking about the actual variances on the north side of the building on the porch and the other corner is on the east side so on a different side of the lot. Jim's got the lot plan. I was looking for some additional photographs, I realize those aren't the best. I've got some photos here that we shot of the front and the side if you care to look at them. We are proposing an addition there to the rear of the existing house which will basically enlarge the main living space, provide an additional bedroom. Currently the house has two small bedrooms. Olszewski: I was Just trying to see when I went out there, how does it fit in back here? That huge tree is really over here isn't it? Key: It's way back in the very far back corner. Olszewski: So you would still be within setbacks back here. Key: The deck would not encroach on those. Olszewski: You're talking about this one right here? Key: • We've got a 2' encroachment here, we're about 6' off the setback and then here we've got about 20' to the house. Twelve to the porch I believe or 13 to the porch. I don't know if you all can see this, you've got a partial map there. This is in one of the historic Board of Adjustment Minutes • September 4 2001 Page 34 • • districts. You can see this lot here, it is very odd we were just discussing this, for some reason these houses were altered or positioned to correspond with the curve at Prospect. Contrary to ones across the street that were all positioned square to the lots and that is one of the reasons we're tied on two corners and the front is very close. We were just hoping to enlarge the porch and give enough room for a covered porch swing out there. I believe Mr. Stokenbury's mother was hoping to move back from out of state to this area. That's one of the reasons as well for the time frame. The coordination with his brother who also is out of state, his mother who lives in Oklahoma City. We want to make sure everybody's happy and we anticipated taking a little time. Perkins: Any further discussion? MOTION Hanna: I make a motion that we accept the variance as requested including all the staff stipulations except for that we would allow 18 months to complete the project verses the 12 as specified. Green: Second. Perkins: Ok, we have a motion and a second with the conditions and then the extension of the completion time. Any further discussion? Call the roll please. ROLL CALL: Upon roll call the motion to grant VAR 01-20.00 is approved with staff stipulations extending the second stipulation to eighteen months rather than twelve months 7-0-0. Board of Adjustment Minutes • September 4 2001 Page 35 • • VAR 01-21.00: Variance (Rice, pp 443) was submitted by Robert Sharp, Architect on behalf of Brooks Rice for property located at 639 N. Oliver Avenue. The property is zoned R-1, Low Density Residential and contains approximately 0.42 acres The requirement is for a 8' side setback. The request is for a 2' side setback (a 6' variance). Perkins: That brings us to Variance 01-21.00 submitted by Robert Sharp on behalf of Brooks Rice for property located at 639 N. Oliver Avenue. This is a request for a 6' side setback variance. Staff do you have the background on that please? Warrick: The subject property as in the description is located at 639 N. Oliver. It is part of an older, established neighborhood west of the University in the Markham Hill area. The majority of the structures in this area are single family residences and this home like most of the others in that neighborhood was built prior to the institution of the current zoning regulations. Right now this structure does meet the required setbacks for the R-1 zoning district. The applicant has worked with Mr. Sharp, his architect, to propose and to design some additions and changes to the property and part of that is to build a covered carport to provide sheltered access to the home and the proposal for that as far as where they're proposing to locate it would require the requested 6' variance to the side setback which requires 8'. Some of the conditions that make this variance necessary as stated in the applicant's request as well as what we've seen in doing research on the project, the house was sited in a specific location when it was originally placed on the site. Through the years different owners have made different additions and modifications to the structure. This applicant in fact has made a substantial addition to the project a few years ago. He added a second story to a portion of the home. That is just to the side to the east of where we're looking at doing the carport. After doing the research and reading through the applicant's request, staffhas recommended approval of the variance request with three proposed conditions. First, that the addition of the proposed carport shall reflect the drawings and descriptions included by the applicant's architect in the application for this request. Second, the variance only apply to the proposed carport structure any future construction or additions to the house shall comply with current zoning regulations including minimum setbacks. Third, that construction of the proposed carport be completed within one calendar year from the date of approval and if the carport has not been constructed at that time the variance be deemed null and void. The applicant's architect is here if you have any questions. Perkins: Mr. Sharp, do you have any additions? Sharp: 1 don't have anything to add to that except when we were working this project, we've been working on it about six months and we've looked at every possible location for the garage, they're adamant that they don't want it on the front of the house. As 1 mentioned in my letter, they've got lots of property to the north but the garage doesn't work in that location. They've got lots of property to the west. You can see all the setbacks except for that one and just if you go out there and walk around you can see the reason they want it there. The neighbor has built a garage with just a blank wall on that property line so it is really the best Board of Adjustment Minutes • September 4 2001 Page 36 • • place to put it when you're actually on the site working with the clients. I want you to know we have looked at every other possible solution before we came to you. Perkins: Has staff heard any complaints from the neighbors? Since it does come pretty close to the property line. Warrick: It does, I have not heard from any of the neighbors personally. You do have in your application packet and in the materials in your agenda there are letters from two property owners that would be most affected by this variance request and they have met with the applicant and his representatives and discussed the project with them, reviewed the plans and they have indicated that they are comfortable with the proposal. Perkins: Sir, do you have any input? Neighbor: I live behind Mr. Rice and my wife and I have no objections to it. Of course, it wouldn't have any impact on us but we still do not object if that means anything. Perkins: It does, hearing the neighbors certainly does. Neighbor: We approve of it. Hanna: I talked to another neighbor today just by chance. I told them about this, they said they have no problem with it. Perkins: Any further discussion, questions, anything? MOTION Andrews: I move we accept the variance as submitted and with staff recommendations 1, 2 and 3 as submitted. Hanna: Second. Perkins: We have a motion and a second, any further discussion? ROLL CALL: Upon roll call the motion to grant VAR 01-21.00 with staff recommendations 1, 2 and 3 is approved 7-0-0. Perkins: Thank you very much for your time, if we have no further business we stand adjourned. Meeting adjourned: 5:41 p.m. • • • 4s, 9* V\ \)K b\-%,00 , MOTION L1e C SECOND QtiVAr\S ,Aec L. Perkins M. Andrews 'CS \-A6 M. Green T. Hanna , 1 "11 2 J. Kunzelmann ` V�C; J. Olszewski ALu q tS M. Orton ACTION ---\--PA `(> VOTE \croevm o\ 0 vAilol -Ico to t..<4 rJs / too - 0k IgbO -or iS OL- 0.\1 K e( j .00 MOTION SECOND L. Perkins v S v 1 M. Andrews °1 P s M. Green Q S q1 pr\ove5 T. Hanna �PS `j \;1S coo4Vctr,tviw Sc"nd v 1 J. Kunzelmann \ t5 J. Olszewski `1 e5 q M. Orton \-) RS q ACTION P1 (LOV-0 p0(20\18 I_ cpr APP(.oufj(D VOTE �\ 0��� VAS-0\-aomo �\Okenbur VA` D,,ai.00 6 MOTION SECOND L. Perkins `(eS M. Andrews ; Pcp owes ACteref M. Green ononA ; e5 T. Hannai\AIWton aC(e " ; ZRdS J. Kunzelmann e5 k. J. Olszewski 1CS M. Orton ?CS ACTION APgNed( W\ Wskmo, MO V 69 VOTE