HomeMy WebLinkAbout2001-12-03 Minutes•
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MINUTES OF A MEETING OF
THE BOARD OF ADJUSTMENT
A regular meeting of the Board of Adjustment was held on Monday, December 3, 2001 at 3:45 p.m. in
Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas.
ITEMS CONSIDERED ACTION TAKEN
Approval of minutes from the November 5, 2001 meeting Approved
Page 2
VAR 01-29.00: Variance (Smith, pp 640) Approved
Page 5
VAR 01-30.00 Variance (Myers, pp 484) Approved
Page 3
VAR 01-31.00: Variance (Scarbrough, pp 245) Denied
Page 8
MEMBERS PRESENT MEMBERS ABSENT
Larry Perkins
Marion Orton
James Kunzelmann
Michael Andrews
Thad Hanna
Michael Green
Joanne Olszewski
STAFF PRESENT STAFF ABSENT
Dawn Warrick
David Whitaker
Renee Thomas
Bert Rakes
Preston Hammons
Tim Conklin
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Board of Adjustment Minutes
December 3, 2001
Page 2
ROLL CALL: Upon the completion of roll call, all seven board members were present.
Approval of Minutes
Perkins: Good afternoon everybody. I apologize for being late. I would like to open the December
3rd meeting for the Fayetteville Board of Adjustments. The first item on the agenda is to
approve the minutes for the last meeting of November 5th. Are there any changes or
deletions to be made to those minutes? Would you please enter those into the record
then? That brings us to our first item of business which is VAR 01-29 submitted by Lois
Smith for property located at 160 E 26th Street. The property is zoned R-1 and the
request is for a 17 front setback which is an 8' variance. Does the staff have any input on
this request?
Warrick: I actually do. I don't see the applicant in the audience but I know that she was downstairs
at the Inspections Division just a few minutes ago.
Perkins: Ok, we'll go ahead and move onto the second item and then we'll come back to this one
if that is ok with everybody.
Warrick: Sure.
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Board of Adjustment Minutes
December 3, 2001
Page 3
VAR 01-30.00: Variance (Myers, pp 483) was submitted by Carl Myers for property located at 26 N.
Duncan Street. The property is zoned R-3, High Density Residential and contains approximately 0.29
acres. The requirement is for a 25' front setback on the north. The request is for a 9' front setback (a 16'
variance)
Perkins: This brings us to the second variance which is VAR 01-30.00 submitted by Carl Myers
for property located at 26 N. Duncan Street. This is R-3, High Density Residential and
the request is for a 9' front setback which is a 16' variance. Does staff have background
on this please?
Warrick. Yes Sir. This property is a duplex in the R-3 zoning district. The property is located just
south of the University on Duncan Street. It is about a block and a half south of Bell
Engineering which is on Dickson at Duncan Street where they intersect. The structure
existed prior to the zoning going into place. There is a unique situation on the north side
of this property in that there is an existing undeveloped city right ofway for Williams Street.
It looks basically like the driveway that runs between this structure and the one to the north
ofit,just immediately to the north of this property, is vacant. It doesn't look like anything
other than part of the properties that this project contains as well as the one to the north.
To the east Williams Street runs to the back side of some university parking lots and one
of the fraternity houses. This property is on a relatively steep site. The east end of the
property basically goes up a hill towards the Evergreen Cemetery. It is not predicted that
Williams Street will be constructed in this particular location. The right ofway, however,
is there. That means that the setback must be treated as a front because there is a public
right ofway. In the event that a street were built in this location, that would be a corner
lot and it would have front setback requirements on the north and the west. The applicant
is in the process of doing some interior renovations and wishes to do a renovation to the
exterior of the building as well and to extend the second floor out approximately 8" all the
way around the structure. Staff is recommending in favor of the variance request in light
of the unique circumstances to the topography of the property as well as the undeveloped
city right ofway on the north side. The applicant is here if you have any questions for him.
Perkins: You don't have any information about that right of way being vacated?
Warrick: It has not been vacated to our knowledge, the city has no record of it being vacated.
Perkins: There aren't any plans to do that?
Warrick: No Sir.
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Board of Adjustment Minutes
December 3, 2001
Page 4
Perkins: Is Mr. Myers present?
Myers: Yes Sir.
Perkins: Sir, do you have any input on this?
Myers: I'm improving the property. I don't believe that that right of way will ever be used. When
I'm finished the property is going to look a lot better than what it does now.
Perkins: Is there anyone else present that wishes to comment on this appeal? Does anyone have
any questions or comments or motions?
Motion:
Hanna: I'll make a motion that we accept the variance as requested.
Kunzelmann: I'll second.
Perkins: We have a motion and a second, is there any further discussion? Renee, would you call
the roll please?
Roll Call: Upon the completion of roll call the motion to approve VAR 01-30.00 was approved by
a unanimous vote.
Perkins: Mr. Myers, good luck with your project and thank you for your time.
Myers: Thank you.
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Board of Adjustment Minutes
December 3, 2001
Page 5
VAR 01-29.00: Variance (Smith, pp 640) was submitted by Lois Smith for property located at 160 E
26th Street. The property is zoned R-1, Low Density Residential and contains approximately 0.41 acres.
The requirement is for a 25' front setback. The request is for a 17' front setback (an 8' variance).
Perkins: Is Ms. Lois Smith present now? Ok, we'll return then to VAR 01-29.00. Again, this was
submitted by Lois Smith for property located at 160 E. 26th Street. The request is for a
17' front setback which would be an 8' variance. Does staff have background on this
please?
Warrick: Yes Sir. This property is located at the northeast corner of Country Club Drive and East
26th Circle. It is up in the Country Club Estates area. There is a single family home on the
property. Ms. Smith has recently purchased it and wishes to do some modifications to it
including a complete exterior change as well as enclosing the carport to create a two car
garage on the west end of the property. That is the area that faces Country Club Drive
and the area of the requested variance. In this particular location I did some research
because it looked very strange as far as the distance back from the curb that the actual
right of way and front property lines were located. For some reason, Country Club Drive
meanders in this location, it has a very wide right of way. In fact, in front of Ms. Smith's
home, facing Country Club Drive, there is approximately 35' before you get to a retaining
wall and then an additional 15' before you actually get to the curb line of the street.
Therefore, from appearance sake it really looks as though there is a great distance of front
yard before you reach the structure. In fact, in looking at the survey and on the city plat
maps, most of that area, 15' on the west side of the retaining wall and 18' on the east side
of it is actually property contained within the city right of way which makes Ms. Smith's
home closer to the actual right of way line than it appears. Country Club Drive is not
designated as a higher level street on the city's Master Street Plan. There is more than
enough right of way for the type of street that is constructed there which is a residential
street, it is either 28' or 31' in width from curb to curb. Even if sidewalks were to be
installed in the city right of way in the future, there would be more than enough room for
that type of improvement to the street with regard to granting a variance in this situation.
For those reasons, staff has recommended in favor of the variance as requested. We have
recommended one condition and that is that the setback variance apply to the proposed
carport conversion to garage and that any future projects or additions to the property
comply with current setback requirements.
Perkins: Ms. Smith, do you have any input on this?
Smith: Not really. I'm just trying to make an old ugly looking house into a better looking house
to look better for the neighborhood and to give us some space because of the way the
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Board of Adjustment Minutes
December 3, 2001
Page 6
kitchen is arranged we have to come out steps down into the carport now and so that
forces us, because we have to come down steps, to do that to be able to go further to the
west to have a double garage. We just can't hardly have it if we don't have a double
garage. I think we asked for 5' but I think 4 is all we'll actually have to have.
Perkins: Now you said 5'?
Smith: That is what they drew on this little thing.
Perkins: The way it is written it needs an 8' variance?
Warrick: That is because the structure already encroaches the required setback.
Perkins: Ok, so you don't want to reduce that 8' to 5', you want to leave it as what is submitted
here, correct?
Smith: Yes.
Warrick: We tried to accommodate any possible overhangs within that dimension. We don't expect
the overhangs to encroach the variance if the variance is granted beyond what we
recommended in the staff report.
Perkins: Is there anyone else present that wishes to comment on this appeal? Yes Sir, please state
your name.
Hogle: John Hogle, I live at 108 E. 26th Street. She has made significant improvements in the
appearance of that house. As long as the variance is on the west side I have no objection.
If it were to the south side, as this notice I received states, it's wrong I commend her on
the appearance, it's a great improvement.
Warrick: The only variance that we're recommending is on the west adjacent to Country Club
Drive.
Perkins: Anybody else? Any questions or discussion from the panel? Can we hear a motion?
Motion:
Orton: I move that we grant the variance with the stipulation that the staff has recommended that
• it shall apply to the existing structure with the proposed exterior alterations only and shall
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Board of Adjustment Minutes
December 3, 2001
Page 7
not be extended to cover any future additions on the west.
Kunzelmann: I'll second.
Perkins: We have a motion and a second, is there any further discussion? Renee, call the roll
please.
Roll Call: Upon the completion of roll call the motion to approve VAR 01-29.00 was approved by
a unanimous vote.
Perkins: Ms. Smith, good luck with your project. Thank you for your time.
Smith: Is that all that we need? Do I need a piece of paper that I can take out and do anything?
Warrick: We will send you a letter verifying the approval. You can get your building permit
tomorrow. Submit your application and it will be routed to my office in the moming.
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Board of Adjustment Minutes
December 3, 2001
Page 8
VAR 01-31.00: Variance (Scarbrough, pp 245) was submitted by Daniel Scarbrough for property
located at 3009 Rutile Drive. The property is zoned R-1, Low Density Residential and contains
approximately 0.26 acres. The requirement is for a 25' front setback adjacent to Salem Drive and an 8'
side setback. The request is for a 3.7' front setback (a 21.3' variance) and a 3.5' side setback (a 4.5'
variance).
Perkins: That brings us to our final item on the agenda, VAR 01-31.00 submitted by Daniel
Scarbrough for property located at 3009 Rutile Drive. This is a request for a 21.3'
variance and a 4.5' variance. Does staff have background on this please?
Warrick: Yes Sir. This project originally came to staff in the form of a complaint. Staff was made
aware of a project being constructed without a building permit. At the request of the
Planning Division, our Inspectors did go out and look at the site and notify the property
owner that there was a requirement for a building permit for the project that they were
working on, which was an accessory building. The applicant did come in and request a
building permit. On the building permit application there is a site plan requirement. The
applicant, on that site plan, showed an accessory building which met the required setbacks
for the project Planning staff did approve the building permit based on that site plan that
was submitted. It was then approved by the Inspections Division and issued. Double fees
were paid on the permit as required when it is an after the fact permit. After that
transpired, the Planning Division was notified again from a property owner in the
neighborhood that the structure was still located very close to property lines. Our
Inspectors went out again, took some photographs and documented the fact that the
structure did appear to be very close to the rear and the south property lines. With that
information and after making a site visit, the Planning Division issued aviolation notice to
the applicant that the building did not comply with the required R-1 setbacks and
requested, that within 30 days, the violation be remedied. The applicant was made aware
of their right to file an appeal through the Board of Adjustment to request variances for the
structure, which was done. The applicant applied and that is why it is before you this
afternoon. In reviewing the project, after the submittal of the requested variances, staff did
realize that the rear setback in this case is adjacent to Salem Drive and therefore is a front
setback with regard to dimension it is a 25' setback. It is also a general utility easement.
To the best of my knowledge, there are utilities located in that easement. Staff nor the
Board of Adjustments has authority to grant a variance to put a structure within a utility
easement. Those easements are designated specifically for the purpose oflaying lines and
providing maintenance to those lines for the city as well as the franchise utilities within the
city that use those easements. If a structure is to be located within the easement that
easement must be vacated, that takes City Council action. The City Council will most
likely not vacate a utility easement that has active lines within it. Therefore, staff has
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Board of Adjustment Minutes
December 3, 2001
Page 9
Perkins:
Warrick:
Perkins:
Scarbrough:
Perkins:
Scarbrough:
Perkins:
Feldman:
Perkins:
Feldman:
recommended denial of the variances requested with this application. I have included in
the staff report recommended conditions if the Board of Adjustment feels that there is
evidence of an undue hardship which is required by state law for the board to grant a
variance. I have made recommendations of conditions that staff believes to be appropriate
if the variance is granted in this case. It would require City Council approval of the
vacation of that easement or a portion of the easement where the structure lies.
If I understand you correctly, this panel can not grant the variance
It would have to be contingent upon City Council action. The way that I've worded one
of those, the first recommended condition, is that Planning Commission consideration and
City Council approval of a vacation of the utility easement must come before the variance
is finalized and that is all I have
Is Mr. Scarbrough present?
Yes Sir.
Sir, do you have any input on this?
Yes. I spoke with my alderman, Lionel Jordan, and he stated that he would approve it.
It is basically a portable storage shed and he has said that he would approve the shed
where it is located. Other than that, this whole process has been somewhat frustrating
being that it is a portable storage shed and I know that throughout the city there are
portable utility sheds located within the utility easements and in the yard setbacks so I
don't, it is just frustrating, this whole process. I have spoken with the property owners
located next to me and up and down the street and they don't see a problem with the
storage shed where it is located. Other than that, if the utilities were to need to get into the
utility easement, it could be moved and I spoke with the utility companies and they said that
they didn't see the problem. with it either. Other than that, I don't have anything to add.
Is the neighbor that did lodge the complaint present? Sir, your name please?
Larry Feldman.
For the record, today what is the nature of your complaint?
The complaint is not the storage shed itself.
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Board of Adjustment Minutes
December 3, 2001
Page 10
Perkins: Is it the storage shed height, width, length?
Feldman: Height, yes. I have some pictures if you would like to see them.
Warrick: There are some in your packet as well.
Perkins: Are they similar to this taken from Salem?
Feldman: Similar, yes. It looks more like a barn than a storage shed. At one of the board meetings
I spoke to Mr. Scarbrough and I said to him "Why did you build it so high?" His answer
was that the man that was building it had asked him how high he wanted it and he said he
didn't care for him just to build it as he wanted to build it. I asked him to lower it and he
said "No, it would cost too much money to lower it." It really stands out like a sore thumb
on Salem. Since that time, I know personally of one more up in the subdivision which
seems to be legal and can't be seen from the main drag. I heard that there is another one
that went up which I haven't seen but it looks like these are springing up all over the place
and we're in the city, not the county. This is not the county, this is right next to Holcomb
School and in my opinion it is ruining the looks of the whole subdivision. It just looks bad:
I can show you a long shot of it which I have going north on Salem if you would like to see
it.
Perkins: Sure. We'll look at anything you've got. Your Homeowner's Association, if it weren't
for where it was located, if I understand the letter from Anita Henson here correctly, there
is nothing about that structure other than where it is sitting right now that goes against
anything that is spelled out by your Homeowner's Association.
Feldman: Possibly not. The Homeowner's Association says no metal. Now the siding that is on that
house, it is really well built.
Perkins: It is wooden isn't it? From what I can see it looks like wood siding.
Feldman: No, it's not wood.
Perkins: From what I can see it looks like vinyl siding.
Feldman: It is well built, there's no question about that. It doesn't look like junk. It is just where it
sits. I have another picture here of going south on Salem. Had I known that this would
be allowed when I moved in I would've put one in myself because it is a good workshop
I still don't know if I would build it two stories high. I just can't comprehend that, two
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Board of Adjustment Minutes
December 3, 2001
Page 11
Perkins:
Orton:
Warrick:
Perkins:
Warrick:
Perkins:
Scarbrough:
Orton:
Scarbrough:
Orton:
Scarbrough:
stories.
Ok.
When the building permit was given, the setbacks and so forth, weren't they designated
on the building permit and the size of it and so forth?
Page 3.15 shows the applicant's site plan that was submitted with his building permit
application.
Which, if that met the requirements, we would not be here today looking at it.
Correct. If the building were located as it was proposed by the applicant on this plan it
would comply with city requirements.
Mr. Scarbrough, why is it not located there?
That was after the fact, after it was built in order to get the permit. I was told to go ahead
and show it that way and then if the inspectors came out and inspected it, it was to be
moved to that location. I had intended on filing a request for a variance on this. I didn't
know that it would come to this point. My opinion was that you know, it is a portable
storage shed and as far as I knew, it should or could be allowed. In speaking with Lionel
Jordan, he said that he would approve it being on the property where it is Anyway, I
went ahead and drew it the way that I was told it was supposed to be.
Why doesn't the applicant put it then, where it is supposed to be and then you're not on •
the utility lines and so forth.
It would be too close to my home. It would be basically nearly to the center of my yard.
I would just want to move it back to the corner of my lot. That is the reason.
It is possible though to put it there?
Yes, it would be an inconvenience, but it is possible. I believe it would also be somewhat
of a hazard to myself and to my family being that if my children were out in the yard I
couldn't see them from some locations in the house or some locations near the house.
Olszewski: I just want to clarify the question here. You submitted a building permit showing a site that
• had already been built and someone told you to do that, who told you to do that?
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Board of Adjustment Minutes
December 3, 2001
Page 12
Scarbrough: Um, well I spoke with Mr. McKinney and the head.
Olszewski: Head of?
Scarbrough: The head of the Inspections Division. I was told to go ahead and draw it where it would
be when the inspector came through.
Olszewski: So in other words, where you drew it was where it was supposed to be when they
inspected it?
Scarbrough: Correct.
Olszewski: ° Then you were lead to believe or you assumed that you could then move it?
Scarbrough: Well, I, yes.
Olszewski: The inspection would be within the setbacks, I'm confused.
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Wan -ick: There has been no final inspection on this. I put a hold on all permits with the stay for the
variance.
Olszewski Ok, I have another question. How tall is it?
Scarbrough: It is approximately 15 %I feet.
Olszewski: Does it have a loft in it?
Scarbrough: It does not have a loft in it although, yes, it could.
Olszewski• Does it have electric?
Scarbrough: No.
Olszewski: I have one more. You mentioned that it is portable but it doesn't appear to be portable
for you?
Scarbrough: I could move it and then I could move it back. That is what I was planning on doing. If
you don't see a problem with that then I can do that.
Board of Adjustment Minutes
• December 3, 2001
Page 13
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Perkins:
Move it to the acceptable location and then move it back to where it is now?
Scarbrough: Right.
Hanna:
If they needed into the right of way is what I think he is saying, is that correct?
Scarbrough: Yes.
Warrick:
Hanna:
Warrick:
Scarbrough:
Warrick:
Whitaker:
Orton:
I think that if that were the case there would still need to be some Council action or
ordinance change. We have Code §163.04 on page 3.5 of your application that states
"With regard to accessory structures and uses accessory buildings...", number 3, "Where
erected, no accessory buildings shall be erected in any required yard..." On page 3.6
Code §166.12, "No portion of any structure shall be built over any public utility
easements."
We have hundreds of those all over the city.
When they are brought to the attention of the Planning Division, we pursue them in this
manner.
Also, in one of the sections in the ordinance it specifically states that there are to be no
permitted objects within the yard or within the utility easements. It does not specifically
state that there are to be no portable structures or objects. There was no specific wording
about portable structures. Also, the fences, according to the yard definitions, fences are
also supposed to meet the height requirements which is 30" tall.
That is correct with the exception of under code § 164.02, as you can see on page 3.6, the
City Planner may approve a fence within the required front yard setback as long as it does
not impede visibility for pedestrians or for traffic and that approval was granted for the
Crystal Springs Subdivision at the time of final plat.
IfI may point out very briefly, the section that is really applicable here as I see it, §166.12
makes no distinction between permanent or portable structures. It says "No portion of any
structure..."
What is involved in moving this portable structure?
Scarbrough: I would basically hire a professional to move it. They would j ack it up and put it on a
• trailer and move it to wherever it needs to be moved and set it.
Board of Adjustment Minutes
December 3, 2001
Page 14
Green:
Warrick:
Green.
Scarbrough:
Green:
Scarbrough:
Green:
Hanna:
Scarbrough:
Olszewski:
Hanna:
I have a couple of questions. The first question I guess is for staff. Did I understand you
that there are no existing utilities in that easement right now?
No Sir. I don't believe that is true I believe that there are utilities in there. I don't know
exactly which ones. The rear setback to these homes, which is adjacent to Salem Drive,
was designated throughout the Crystal Springs Subdivision along this property line as a
utility easement. There are no other utility easements for these homes on the other side
along Rutile Drive. Therefore, for them to be served those utilities must run along Salem
Drive.
Then, a couple of other questions for the applicant. is there electricity to the building now?
There is not. -
There is no electricity, is there any concrete foundation or concrete slab under the building?
There is not.
Since it is strictly sitting on skids on the earth.
I believe it is sitting on concrete blocks.
It is not on concrete blocks, it is on some wood blocks. Those are not permanent, there
is no permanent foundation under that building.
I have a thought. The thing that I'm thinking about is the timing ofthis. It would be one
thing to be looking at this prior to building or prior to submitting a site plan. I am
somewhat troubled by the fact that this is a done deal and now we're looking for a
variance on all of these conditions for other groups to look at this. Also, the fact that staff
is recommending denial, I think that carries some weight I think it is more than what you
mentioned as to whether it is permanent or not. I think that would be incredibly important
when we're looking at this. I am bothered by that. I would understand it ifa home owner
didn't understand all of the rules and regulations because there are a lot. I am still quite
confused that the site plan says something different than what his actual intention was That
bothers me.
I have a question for you Dawn on this page 3.5, what does that mean on accessory
buildings where erected, "No accessory building shall be erected in any required yard."
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Board of Adjustment Minutes
December 3, 2001
Page 15
Warrick: Required yard is the setback area, front, side and rear. That is defined in the definitions
and I've included a section of the definitions in your staff report also on pages 3.8 and 3.9
and yard is defined in there.
Hanna: I have another question. Mr. Feldman, I drove around the subdivision and on the east side
of the subdivision, it looks like somebody built a big structure, portable I guess, but they
built it right by the rear of the house. I don't know if you guys saw it but it is big and some
people might think it is ugly and some people might think it is functional.
Feldman: Where is this at now?
Hanna: It is on the east side of your subdivision and I'm not sure the name of the street, two
blocks to the east. Here is my point, my point is your complaint is that it is high and it's a
barn in his backyard but he can move it 12' to the east and put it in the center of his yard
and it becomes a legal structure, a legal accessory building but it is still ugly to you.
Feldman: Right, but I don't think he is going to do that because of the kids you know, he can't see
the kids from his side of the house so they will probably move it out.
Hanna: I'll ask Mr. Scarbrough. Lets just say that we rejected your variance and you had to move
that, are you going to tear the building down or are you going to move it over into the legal
area?
Scarbrough: I will move it to a legal area
Hanna: I guess my point is that it is still going to be a tall barn like structure in the back of his yard
legal. The only difference is that now it is going to be in the middle of his yard instead of
in the corner.
Feldman: So why have the code at all?
Hanna: No, that is not my point.
Feldman: That is my point.
Hanna: My point is that it is still going to be unattractive to you.
Feldman: Well, it might stop other people from doing this.
Board of Adjustment Minutes
December 3, 2001
Page 16
Hanna: I guess my point is on the house on the east side, when I drove by I personally thought it
was unattractive up against the back of the house but I'm sure it was within the setbacks.
It would look better pushed further away from the house but unfortunately, this one, his
rear is a front because it is a utility easement and you can see it from Salem, Holcomb and
you probably can see it from your house.
Feldman: I wish I knew which one you were speaking of. On Courts, oh, that is a two story house,
and I call it a house because it is a house as far as I'm concerned. It has an upstairs, it
meets our requirements and that really chums my stomach because it is legal according to
code. I hate to see these going up all over the place. They are actually homes. This
person who brought this home in, this particular home was bought at Lowe's. Home
Depot, I went down to Home Depot, they had one there. This person is from what I
understand, running a business there. It has some electricity in there and probably some
air circulation there and I spoke to Mike McKinney and he said that is legal and there is
nothing that I can do about that. This one is way out of line on the main drag. May I bring
up another point? Mr. Scarbrough mentioned Lionel Jordan and Mike McKinney and his
boss, this is all hearsay, they are not here. I could say anything too. They are just not
here. What he is saying that Mike McKinney told him to do something that is not legal, I
would like to hear that from Mike McKinney.
Scarbrough: No, he didn't tell me to do something that is not legal. He told me to draw the site plan as
it would be when the Inspector came out. However, the Inspectors were called out before
I ever had a chance to move it because of a second complaint that was filed.
Perkins: Mr. Jordan, do you have any input on this?
Jordan: That has been a while back, I have a few telephone calls every evening.
Feldman: Oh, hi Lionel. I didn't know you were here.
Jordan: From what I understood from what I gathered is that he was told to do one thing and he
thought he was doing what he was told but it ended wrong and then someone came out
and pulled a tape measure and said he was off and wanted him to move it. I know that we
have these buildings all over town and I understand that there is an ordinance but I thought
that basically he was confused about what he really did need to do and I thought it would
be difficult for him to move that building after it was already in place. It is Just difficult for
me to say "Well, we're going to have to bring a trailer in there and put it in the backyard
and pull that thing in the middle of the yard and sit it down." After I thought that he had
done what he had been told to do. As far as one thing being brought up and somebody
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Board of Adjustment Minutes
December 3, 2001
Page 17
else saying something else, I don't know anything about that. My assumption was that he
was told to put it in this certain distance and he did and somehow it didn't work out. I've
heard that other people have called and complained about the same thing. They've been
told by somebody that they could sit it on a certain place and then come to find out it is
against city ordinance so we seem to have some sort of confusion there. I just assumed
that is what happened. I didn't really see it as a problem.
Hanna: I would just like to say for the record that we've been doing this for ten years and I don't
think that anybody has ever called the Planning Commission about putting a storage
building on a specific place and then had to come before us because someone told them
the wrong place to put it. I guess it depends on the Planning Department. That has not
been a problem. Our problem has been exactly what has happened, people put it there
and then they find out that they're in a setback and we look at each case and see if by state
law we can grant a variance. We are Just fact fording right now. We like to hear facts, not
opinions or hearsay, we like to hear facts. What Mr. Scarbrough said is "Lionel thinks he
can swing it to get it approved." I don't know if you were here Lionel.
Jordan: Yes, I don't really recall that statement exactly like that.
Hanna: My point is that one alderman can't swing anything. An alderman could get it on the
agenda and then bring it before the Council and argue on your behalf because he is your
Councilman but he couldn't swing it to get it changed.
Jordan: If you know anything about the City Council, you're not going to swing anybody anyway.
You'll have your opinions and they'll have theirs and when the day is over everybody will
vote and go home.
Perkins: We do have other people present, does anyone else have input on this appeal
Scarbrough: My name is Dale Scarbrough. I just have a question. Of course, this is my son Daniel.
My next door neighbor's outbuilding basically flew apart because it was old and the wind.
He had another one built which was 8x10 and it was in the right of way or in the easement,
and I'm wondering how the board or whoever determines or if as a resident we're
supposed to come to you whenever we build a building like that and ask for a variance or
ask if we can build it there. How does this work? I don'tunderstand all of this because
nearly all of my neighbors have outbuildings, and they are usually 8x 10, within those utility
easements and I was wondering, am I in violation, are my neighbors in violation? Can we
be fined for this because my neighbor has a brand new one within the 25' setback.
Board of Adjustment Minutes
• December 3, 2001
Page 18
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Wamck: I'll be glad to address that. City code does require that any structure that is over 2'/: feet
and 30" in height meets the required yard setbacks for that zoning district. It is specified
in several different areas of the code There are accessory buildings within the city that do
not meet that requirement. Many are less than 80 sq. ft., no building permit is required for
that.
Perkins: None is required?
Warrick: That is correct. If a structure is 80 sq. ft. or larger a building permit is required. The
Inspection Division as well as the Planning Division must review that permit application and
sign off to compliance. If it is less than that, sometimes people don't call. Many times
people don't know that there is a requirement for setting back from property lines. Most
of our cases, as I'm sure that you've noticed from the time that you have served on the
board, are brought forward by complaints because many times people don't know. If we
do receive a complaint we will pursue it.
Olszewski: You said something about it being over 30", so if it is under 80 sq. ft. you still have to get
a variance?
Warrick: You're still required to meet the setbacks you're just not required to get a building permit.
Mr. Rakes is here from the Inspection Division. He can verify that information.
Olszewski: This one is close to 21/2 times that size.
Dale Scarbrough: What kind of responsibility do Lowe's and these other lumber yards have when
they sale all of these buildings that are 80sq. ft.? Do they have the responsibility
to tell the home owner that these have to be setback? Is there anything saying
that? I could just buy one and buy it whole and have it set in my backyard with
no problem then?
Warrick: I know that in this case our Inspections Division did notify Lowe's and they may have
notified others with regard to the requirement for a structure that is 80 sq. ft. or larger to
obtain a building permit. Mr. Whitaker may be able to answer more as to the
responsibility issue.
Whitaker. As our code is currently written, there is no obligation on a private merchant to provide
that information to a home owner. The property owner is the one who is supposedly on
open notice of what the city's laws are. Copies of all of this stuff, particularly building
codes, are available in Planning and the entire code of ordinance at the City Clerk's office
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Board of Adjustment Minutes
December 3, 2001
Page 19
As far as it goes, as it currently stands, private merchants are not under any obligation to
tell you that the building materials and the buildings that they are selling you have to have
building permits.
Scarbrough: So basically we're filtering the ones that have to have permits out, making them put them
in the correct location but the ones that don't have to have permits, under 80 sq. ft., they
don't have to talk to you about that. They can just set it anywhere they want.
Warrick: Many times people will call our office. We do make them aware of the requirements. If
it is less than that size, we do not have the ability to require a building permit.
Perkins: Is there anyone else?
Malisso: It seems like Larry is upset about the looks of this building. You're aware of Salem Drive,
all those houses, their backs are facing Salem Drive. They are all backyards. The building
isn't atrocious. It is not an eyesore to us I have to make that turn everyday to go up to
my house and it doesn't bother me one bit. It is going to be a hardship to him to either
move it or to tear it down. I feel that it is going to open up a can of worms in the
neighborhood. Other people have these sheds up and they're not in compliance with the
building regulations, what is going to happen is one person is going to say "Well, he did this
and I'm going to get him for his." We don't need that. We came from Long Island. We
went through the same thing. I bought an 8x10 metal toolshed and when I went to sell my
house I found out that I needed a building permit for that thing. I said the exact same thing.
"Why didn't Home Depot notify the home owner that they needed a building permit for
over zoning?" Well it is ok not to tell the person buying it that he needs a building permit
but when he goes to sell he has got to pay the town for a building permit which costs three
times as much as the shed did. The shed isn't bad. It doesn't bother me one bit. I'm
more concemed about the lights that aren't replaced in that area. I'm right down the block
from the other house that you want to call it that is over there. It is in his back yard. I look
out my window at everbody's roofs with their dishes on them. What am I going to say?
Get the dishes off the roof because that's not supposed to be up on the roof according to
our covenant. It's up there, it's going to open up a big can of worms. He is asking for a
variance, otherwise it is going to cost him over $1,000 to do anything with it. I don't know
him personally, just from the neighborhood
Perkins: I'm not speaking for the whole panel but from my standpoint it is not going to be an issue
of aesthetics, it is going to be does it comply or not comply and is there any compelling
reason due to topography or anything else that would make it difficult for this building to
be put in the proper place. That is as broad of a scope as this panel can have today.
Board of Adjustment Minutes
December 3, 2001
Page 20
Scarbrough: I would have to remove a corner of my fence to get a trailer in there to move it. Also,
whenever I sat it down it would be directly next to my deck which would be inconvenient.
Cook:
Green:
Carrie Cook, I live directly across the street from the Scarbroughs. The neighborhood that
we live in is mostly young families. They are small yards. If you have driven out there
you've seen them, they are not large yards. I know my husband and 1 have a storage shed
simply because our home with two kids and two adults is not big enough to put all the stuff
that we need in there. In order for Amy and Daniel to meet the covenants and the city
requirements, it would actually have to be in the middle of their backyard. I understand
that there are utility easements and the companies need to get to those but Daniel stated
that if something ever happened that they would need to get to the utilities, he would be
willing at his expense, to move the storage shed so they could do that. I would say at least
70% of the storage sheds in our neighborhood are probably sitting on utility easements.
Simply because, in order to have it in the backyard at all, it has to be in the comer
somewhere or it would be right in the middle of the backyard. I'm like Mr. Malisso, the
storage shed doesn't bother me at all. I understand that aesthetics is not in the city code.
I think that the whole reason it got turned in is because it was perceived as an eye sorer.
It is probably the nicest storage shed in the whole neighborhood. It has vinyl siding and
windows and it is very nice.
What I'm trying to sift down is to look at exactly what the charge of this committee is and
what our extent of responsibility to be. I don't think we can, as a Committee, from my
understanding of our legal responsibilities, grant a variance for something in a utility
easement because that directly violates our city ordinance. I don't think we can legally do
that. On the other hand, I don't have a problem with the setbacks per say, especially if the
neighbors don't mind the setbacks, that is strictly a neighborhood type issue. I don't see
how we can grant a variance to sit in the active utility easement. If there is some procedure
or some process that we can go through to get permission from the utilities due to the
portability of the structure to perhaps say that they would be satisfied if there was some
sixteen hour notice or whatever to vacate that easement in case they had a problem with
a utility that they had to dig up. Short of that, I don't think this Committee can really grant
this without some relief on this utility easement. Probably the only way we can do that is
say, "Ok, we will grant this easement based on the stipulation that staffhas put in here that
the Planning Commission and City Council would have to approve a vacation of this utility
easement or some other means." I don't know if that is the only remedy that we have. I
don't see what lee way this Committee has other than the setback variances. We could
certainly grant the setback variances and I don't have a problem with that. My only
concem is the active utility easement and what our lee way is as far as officially granting
someone permission to locate a structure in a utility easement. I don't think we can do
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Board of Adjustment Minutes
December 3, 2001
Page 21
that.
Whitaker: You're correct. Under state law, only the City Council has the authority to vacate an
easement and that authority is limited to vacating the city's interest in the easement. The
city can not vacate SWEPCO or Ozarks or whoever else is in there, those would have to
be separate legal negotiations between the property owner and the easement holder and
that would have to result in some kind of reformed filed easement that specifically accepted
that area from the normal requirements of the easements which is basically what we call
ingress/egress, over, above and around 24/7. Particularly, and the utilities are urgent about
this because nobody ever needs to get into their easement 16 hours later. You have gas
line breaks, you have water line breaks, you have sewer line breaks, those are not the
kinds of things where an appointment can be made. The crews have to be out there that
night or whenever it occurs and they have to have instant access. That is why they go
through the trouble of getting these easements is so they can have instant access to their
property.
Scarbrough: My father asked me that same question whenever I spoke to him about this and I called
the utility companies. They had said that their requirements for the over, under and above
thing was I believe they said it was 5' around the pedestal or whatever they called it which
my building does meet. Whenever I called and spoke with them that is what they told me.
Again, you can take that as hearsay or whatnot but I'm sure if you called them they would
tell you the same thing.
Warrick: I would just like to add Mr. Chair that state law grants you authority to grant variances.
Specifically, it grants you the authority to hear requests for variances from the literal
provisions of the zoning ordinance in instances where the strict enforcement of the
ordinance would cause undue hardship due to circumstances unique to the individual
property under consideration and grant such variances only when it is demonstrated that
such action will be in keeping with the spirit and intent of the provisions of the ordinance.
I read that because there are statements that there are these outbuildings all over town.
You are hearing one right now with this particular property. You are charged with
determining whether or not there is an undue hardship that is specific to this particular
property and that is what state law grants you the authority to grant the variance based on.
Olszewski: Dawn, isn't there something in there too where it says something about that the hardship
didn't come about because of the applicant.
Warrick: That is a finding by your bylaws that you are required to make, yes.
Board of Adjustment Minutes
December 3, 2001
Page 22
Wooley: My name is Charles Wooley and I'm also a resident of Crystal Springs. I think that what
we're addressing here is several facades. Number one, you drive around any subdivision,
look at the fences, chances are that they are on the property line including utility easement.
I think it is an understood fact that if the utility company needs to get in there they have the
right to enter your property using whatever means they see necessary to make those
repairs at no expense to them. It is up to you to replace that fence. We have this
encroachment all over the city. That subdivision out there, I guarantee, every fence is on
it with the exception of the utility easement area. I see no problem with Mr. Scarbrough's
building. As I said before, it is one of the best looking buildings in the subdivision and I
know that we're not talking about aesthetics. There is a piece of property across the street
that was put on the market recently and it sold within one week. I am sure that those
buyers looked the neighborhood over and they didn't see an eyesore looking back out
from his building there. That is the case in point there. I see no reason why you shouldn't
grant the variance, there is a hardship involved here. As a resident out there, I think it
should be granted.
Perkins:
Wooley:
Cook:
Thank you. Anyone else?
Those utility easements out there are 25' and that is ridiculous Whoever granted them 25'
easement, they may use 5'-10' as they come across there. I think that needs to be taken
into consideration as well, what is adequate? Is 10' adequate, why give them 25' and why
make us suffer from the use of our property that we paid for because somebody didn't see
fit to make them stay in the 10'.
I also have a question, do you know which utilities are located where the storage shed is?
They may be between the storage shed and the fence and they may be just right
underneath where they could get to them in an emergency incase that happened. They may
not have gas line right there or electric. When we built our fence, we had to have the
companies come out and mark where they were so we would know not to put our fence
there. Has anyone looked at that to see if it is actually on top of these utilities?
Perkins: It is really immaterial because they are allowed that land whether it be excessive or not.
Cook: I understand that but she said that there is some lee way on a hardship and there is
definitely going to be a financial hardship. I understand that this has come about kind of
backwards but I know that they are going to have to move it and it will cost quite a bit of
money to do that.
Perkins: It is unusual that a lot is hit on the thoroughfares front and back where it gets hit with a 25'
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Board of Adjustment Minutes
December 3, 2001
Page 23
Feldman:
Perkins:
Wooley:
Whitaker:
Wooley:
Hanna:
setback on both sides. That having been said, there are possible other locations on that
lot that we wouldn't be here meeting today and in particular the way it was submitted on
the building plan.
I would have a very difficult time in my yard if I was going to put a shed up. I had the
company come out and mark where the utilities were and they run diagonally across my
yard so I could never put anything up in my yard because of that.
Well, splitting hairs here a little bit, but now you have got a situation that was beyond your
control that made your particular lot a little more particular because of the diagonal
positioning Again, you have to look at each lot and it may lay dormant for years until
somebody complains and then it gets down to slicing and dicing, is it within the setback or
not and why.
Do utility companies have the right to come across your property and out of the right of
way?
Broadly speaking, no. They should stay within their easements. You may, depending on
the circumstances in your situation, have a claim against them for exceeding or abusing the
easement.
Can we swap out here? There is a give and take situation here. They are diagonal across
my lot too.
I'Il give you a perfect example. My wife called me, this is a true story and it is a little off
the subject. She called me on Friday telling me that Cox Cable was going to go from the
box diagonal across my vacant lot where I'm getting ready to build a house over to an
apartment building. I talked to the guy on the phone and asked ifhe was going in my
building area. He said "How far does it have to be?" I said "20' back from the old alley"
and he said "Oh, no." I said wait a minute and I went home and told him to show me
where he was going to do this and he showed me and I told him I already marked it and
he was going into my buildable area. He said "I can go anywhere I want to within 20' of
that line." I asked him ifhe was sure of that and he said he was pretty sure so I told him
to get his boss down there. They already had their machine set up and they had torn up
my yard and were getting ready to go underground and they were going to go underneath
my lot that they had absolutely no right to go underneath. They had already cut a 2x2 hole
in my concrete slab and jack hammered it out. I asked him ifhe got permission to do that
and he said "Well, didn't anybody contact you?" My point is that they didn't have the right
to go on my land, they didn't have the right to go underneath my land but they would've
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Board of Adjustment Minutes
December 3, 2001
Page 24
Olszewski:
Scarbrough.
Perkins:
Scarbrough:
Perkins:
Scarbrough:
gone undemeath my land if my wife wouldn't have said something. That utility that is going
across your yard they probably don't have an easement on so I think you could probably
sue them if you wanted to. I know that is kind ofoffthe subject but we're enforcing this
stuff by complaint and most people put the storage shed in the far corner of their yard.
We've approved some here and that is why I asked. I think why we have setbacks is to
provide emergency vehicles access between buildings for fire and for utility crews to get
to. I agree, I think if there was a waterline that was busted underneath his shed in the
middle of the night they might just come with a bulldozer and move your shed for you.
That is a risk of being where you are. I don't think they are going to ask, I think they will
move it for you if they have to get to it. I think when we look at the homeowners here the
hardship is the financial part. If we had homeowners here saying that is an eyesore, a
violation and we're picking on this guy because it is the tallest, I would probably be in
favor of it, but the neighborhood has come out saying it is a property rights issue and they
don't have a problem with it and let it stand so that is the way I look at it.
It is our responsibility to look at the setbacks and grant a variance based on that. I'm
troubled that we're somehow becoming responsible for your financial hardship If this
would've been done in the proper sequence then I would tend to agree with you more.
We would do a little popularity thing and that would be different but this is happening after
the fact and so what happens is that if we vote against it then suddenly you have a financial
hardship which you think is our responsibility and it is not. It was your decision to build
it there prior to getting the proper variance.
I would like to know what you guys propose to do or what we could do about the lack
of knowledge about these requirements because I hired a professional or someone I
thought was a professional. I went to Lowe's and said "I want a shed." Lowe's said
"Here's a guy that will build it for you." He told me where he was going to put it and it
was about 4' offofthe property line on each side and I said that sounded fine. Other than
that, he didn't know. He told me it would be fine, it's a portable building, it will be fine.
It was pointed out when the building permit was applied for right?
Right.
So somebody knew that it had to be 8' from one boundary and 25' from the other?
Right, yes, after it was built. I don't, and after the complaint. I don't understand, I would
like to know what we could do to curb this situation. I don't know It is frustrating that
I hired who I thought was a professional and he didn't know what he was doing.
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Board of Adjustment Minutes
December 3, 2001
Page 25
Olszewski • I would certainly complain to Lowe's if I were you. They sent someone out that didn't
understand the building permit requirements.
Wooley:
Olszewski:
Olszewski:
Perkins:
Green:
I don't think that corrects the problem though.
Right, but that is a good question.
I don't see the good faith in moving it around the site plan. That doesn't show good faith
to me.
We're veering off here a little bit. We've got a fairly straight forward appeal to the panel
here on the setback side and do we have any other points to be made on that?
Just one other point. I don't want to repeat myself about the utility easement but I would
certainlybe for granting this variance and allowing the City Council an opportunity to
reconcile this utility easement as far as being able to find a way to vacate a portion of the
utility easement if the structure is not sitting directly on the line or if that is not the case then
some other agreement with the City Council. Granting the easement with that stipulation
has got to be done if we're going to grant it at all.
Olszewski: Isn't that condition one?
Green:
Perkins:
Warrick:
Yes.
By doing so we expect two to three things to fall into place here and as Mr. Jordan
correctly put that is betting on the gun.
Mr. Chair, one option that the board does have if you feel it is appropriate would be to
table the variance request pending some resolution with regard to the easements. One
thing I would add though, regardless as to whether or not you want to approve with
conditions if that is the way you're leaning or if you want to wait and hear it later and
possibly approve if there is an outcome that you believe is appropriate with regard to the
easement. There are findings in your bylaws that you are required to make. I believe it
is important for you to be able to make them in whatever fashion you choose to grant any
variance. Those findings are listed in your staff report starting on page 3.3. Staff was
unable to make some of those findings, that is why we recommended denial on this
request. I think we have seen a situation not too terribly long ago where if a project is
approved it is important that it be approved with justification through those findings.
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Board of Adjustment Minutes
December 3, 2001
Page 26
Orton:
This is, as Joanne mentioned, this is not something that deals with topography, rocks or
whatever that we should have to consider. This is of the applicant's own doing and that
is one of the conditions that it should not be.
Hanna: I have a question for Dawn. Is there a 25' right of way utility easement behind every set
of houses in that subdivision going to the east?
Warrick: Everyone that backs up to Salem Drive.
Hanna: What about the utilities between the houses one street over?
Warrick: I believe they're in the rear.
Hanna: Right, so you have houses back to back. Here is my question. Does every other home
owner in that subdivision have 25',12% on each side of the utility easement so there is
electric and whatnot running behind the house?
Warrick: I don't know but their setback is 20' regardless from the rear of the property line.
Perkins: That would include outbuildings.
Warrick. Yes Sir, anything over 2 % feet in height.
Motion:
Orton: I am going to move that we deny the variance.
Kunzelmann: I will second.
Perkins: We have a motion to deny and a second, any further discussions? Call the roll please.
Hanna: Wait. Before we do that, let me direct this to Lionel. Lionel, would you be willing to take
this to City Council to see if they would allow this in the utility easement?
Jordan: We'd hear it at the City Council.
Hanna: That is my point. If we deny it now as a dead issue, there are a couple of questions.
Number one is who can he appeal to if we deny?
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Board of Adjustment Minutes
December 3, 2001
Page 27
Warrick: The Circuit Court.
Whitaker: On these variances you are the final administrative authority and then it goes to the courts.
Hanna: Really the only question that I had was Mr Scarbrough said Mr. McKinney told him to
draw that. My question is I would like to hear who told him to draw it where it was
because it is perpendicular to where it is now if the numbers are right 12x16 and it has
been moved like that. I would like to see that because I don't know if he was given good
information or not, we don't know that. My personal preference would be to table it, let
Lionel take it to City Council and then if they say no it is a moot point. If they say yes then
we can get some more facts and make a good determination because I don't think we
have all the facts. I think that some may be missing.
Perkins: Bert, have you never had the experience where someone has been told to draw something
different than where it is sitting?
Rakes: I've really got a problem if we have Inspectors going out there telling them to build
something with the wrong setback and turning in the right setback. I don't know the
conversation that they had and I'm afraid that there is a misunderstanding. I am afraid that
the setback problem turned into what you have and let Planning carry it on for the records
because that is their responsibility. If they are turning it in right and putting it up wrong then
we have really got a problem. Of course, this was already built and I'm just afraid that
there was a misunderstanding of how it was translated. It should've been tum in what you
have and see what Planning wants to do with it.
Jordan: I feel like there wasjust a lot of confusion that went on with this whole thing to begin with
and the property owner here is sort of bearing the grunt of it. He probably made some
mistakes, I'll give you that one To have to bring in a truck and pull that thing around and
sit it in the middle of his yard, Ijust think there has to be an answer. Somebody had to tell
him something.
Perkins: Ms. Orton, you have a motion?
Orton: And a second.
Perkins: Do you have any problem with the potential direction that this thing has taken if Mr. Jordan
did take it the Council? That would kind of take it back to what Mr. Green said that we
need to look at this whole issue of easements.
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Board of Adjustment Minutes
December 3, 2001
Page 28
Orton: I'm not so sure that it hasn't been.
Perkins: The city is narrowing what it can vacate because you have the property of private
companies that there is limited action that the city board can take.
Jordan: We can't stop Lowe's from selling the wrong size buildings. What happens is, and I don't
mean to take up all your time here, you go to Lowe's and they sell you a 10x12 or a
12x14 and they will say they will deliver that and they just bring it out there and kind of
drop it down in the backyard. Half the time folks don't really know what the setbacks are
or what they need to do. All at once somebody comes along and says "We've got a
problem." The homeowner doesn't even know what the problem is. They are totally
confused. I just think there needs to be more front end communication to start with. I
think that is something that needs to be addressed.
Andrews: We see it all the time.
Jordan: I'm glad I came to the meeting. I didn't really realize that you had to deal with all this kind
of stuff here.
Perkins: It sounds real straight forward, you're talking 3' here and 3' there and pretty soon you've
got a complicated matter. We had another one not too long ago that is more curious every
day. Something as simple sounding as an outbuilding or a storage building can be quite
complicated. We do take your requests seriously and the complaints seriously and the
reports seriously and then it comes down to a pretty fine line that says when you read the
letter of the ordinance, we can't grant this variance.
Warrick: Mr. Chair, I do have a couple of pieces of information that may assist. The map on page
3.15 is a document that we provided to the applicant to draw on it where he proposed to
set the structure. We provided from the Planning Division, a site plan for him and the
required setback information. That was done when the building permit was applied for.
Perkins: Nothing had been built at that point?
Warrick: No, it was after the fact.
Perkins: Ok.
Warrick: My staff and myself worked on this creating a site plan. Many times applicants come into
• our office and do not have the dimensions of their site or the location of their building on
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Board of Adjustment Minutes
December 3, 2001
Page 29
the sites. We do our best to provide them with any information that we have through our
computer system to give them a base map to show any additions or proposals that they
have that they are going through the permitting process for. I know, based on the way that
this map looks, that we created it. It was computer generated out of our system. When
we do that we show on them what the required setbacks are and they are noted on the site
plan. The second thing that I was going to mention, I will be more than happy to call
Lowe's to call Home Depot, tomorrow moming and let them know that they have issues.
I will do that. I have no problem whatsoever making the necessary phone calls. There
may need to be some follow-up. I will work with the Inspection Division to make sure that
the information gets to them. Thirdly, with regard to the vacation process. That is not an
item that an alderman independently brings before the City Council. That is an item that
an applicant applies for through the Planning Division. They pay. the $200 application fee,
they contact every utility that may have rights to that easement and get a sign off from each
ofthem. They contact all property owners who have adjoining properties to the easement.
They have to get a sign off from each ofthem. After that is done, that material is submitted
to the Planning Division with a petition to vacate aportion of the utility easement. A legal
description does have to be created to do that. Many times that would require a survey,
those costs have to be incurred by the applicant. Once that application material is
submitted to the Planning Division we schedule it for a hearing before the Planning
Commission. The City Engineering Division writes a staffreport making a recommendation
based on the comments from adjoining property owners as well as the utility companies.
The Planning Commission hears the request and forwards it to the City Council regardless
of whether they deem it appropriate or not. The City Council, in the form of an ordinance,
has to read that three times at a meeting and approve it in order for the easement or a
portion of the easement to be vacated.
Jordan: That is correct. Any of these that I have seen that has been brought before the City
Council has went through the Planning Commission and usually the applicant has went
before the Planning Commission and they've done the research and brought it to them and
they have sent it on to us I don't think I've ever seen a Councilman actually take it from
point A to the City Council. It usually goes through a set of steps. What I meant is that
we would be willing to listen to that but I realize that there are steps that we have to go
through.
•
Warrick: I will say that in any of the vacation requests that I've seen in six years of workmg on these
items, we as staff through the Engineering Division, will typically not make a
recommendation in favor of requests if there are active lines within that easement. We do
not encourage applicants to process that application and go through that very long process
if there are active lines.
Board of Adjustment Minutes
• December 3, 2001
Page 30
Perkins:
Orton:
Perkins:
Ok, we have a motion and a second. Do you want to proceed with that?
Yes.
Ok, we have a motion and a second, any further discussions? We have amotion to deny
the request and no further discussion being heard, please call the roll.
Roll Call: Upon the completion of roll call the motion to deny VAR 01-31.00 was approved by a
vote of 5-2-0.
Perkins: Mr. Scarbrough, your appeal has been denied. I want to thank each and everyone of you
for your time today. Do we have any new business? Do we have any old business? We'll
stand adjourned.
Meeting adjourned: 5:10 p.m.
•
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M. Andrews
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M. Orton
ACTION
VOTE