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HomeMy WebLinkAbout2002-10-07 MinutesMINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT A regular meeting of the Board of Adjustment was held on Monday, October 7, 2002 at 3:45 p.m. in Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS CONSIDERED ACTION TAKEN VAR 02-25.00: Variance (Hartsfield, pp 610) Partial Approval Page 2 MEMBERS PRESENT MEMBERS ABSENT Michael Andrews Joanne Olszewski James Kunzelmann Michael Green Bob Nickle Marion Orton Sheree Alt STAFF PRESENT STAFF ABSENT Shelli Rushing Renee Thomas David Whitaker Dawn Warrick Board of Adjustment October 7, 2002 Page 2 VAR 02-25.00: Variance (Hartsfield, pp 610) was submitted by Carey Hartsfield for property located at 1905 Ed Edwards Road. The property is zoned R-1, Low Density Residential and contains approximately 0.33 acres. The requirement is for a 8' side setback and a 20' rear setback. The request is for a 5' side setback (a 3' variance) and a 10' rear setback (a 10' variance). Green: We have a quorum so I am going to go ahead and call the meeting to order. It is 3:45. This is the October 7th regular meeting of the Fayetteville Board of Adjustments. The first item on our agenda is the approval or consideration of the minutes of the September 314 meeting. Are there any changes, corrections, or additions to those minutes? Nickle: On page 5, in the paragraph where Shelli said the property is located along Wedington Drive just west of I-540 and the Nickle Terrace, that should be Maple Terrace. I am not big enough to have anything named after me. Green: Andrews: Kunzelmann: Green: Rushing: Ok. We have got that one changed from Nickle to Maple, are there any other corrections? I move that we accept the minutes. Second. There is a motion and a second with the correction, all in favor say ay. Any opposed say no. The minutes are approved. The next item is under new business, it is a variance submitted by Carey Hartsfield for property located at 1905 Ed Edwards Road. The property is zoned R-1, Low Density Residential and contains approximately 1/3 acre. The requirement is for a 8' side setback and a 20' rear setback. The request is for a 5' side setback (a 3' variance) and a 10' rear setback (a 10' variance). Shelli, can you give us the background on this? Sure. The property is approximately .33 acres and it is lot 71 of Sequoyah Meadows Phase II subdivision. The property has one hundred feet of frontage along Ed Edwards Road. There are three utility easements, there is a 15' easement along the north side, a 10' easement along the west, which is the rear of the property, and 25' along the east side, which is the front of the property. The surrounding area is predominantly single-family residential. The applicant is proposing to construct a 6x12 storage building at the southwest corner of the rear yard. The proposed location is sitting in the required yard setbacks so they are requesting variances from two setbacks, the 20' rear yard setback and the 8' side yard setback requirements. They are requesting to locate the storage building at a location that is 10' from the rear property line, which is a 10' variance and 5' from the south property line, which is a Board of Adjustment October 7, 2002 Page 3 Green: Hartsfield: Green: Hartsfield: Rushing: • Hartsfield: Rushing: Hartsfield: 3' variance. I just want to let you know that the applicant did contact the neighborhood association and there is a letter in your packet stating their support of this request. We did want to point out that the covenants do not have setback .requirements. The building itself, the appearance was approved by the Property Owner's Association. Staff is recommending denial of this particular request. Let me give you some of the reasons for that. Two of the easements, the 25' utility easement on the front yard and the 10' utility easement along the rear of the property are equal to or less than yard requirements that apply to all R-1 districts. Therefore, they are not special to this particular lot. They do apply in all properties within the R-1 district. The one that does apply is a 15' easement along the north side of the property, and it is 7' larger than what would be the required yard setback of 8'. This is just the only easement that really applies. However, we have found that this easement does not create a hardship for this particular property. There are other places where that proposed out building could be located and still meet the setback requirements. We also find that if we were to grant this variance we would be granting a special privilege to this property owner that would not be allowed to other property owners in the district. However, if the board does choose to approve the variance, we do have a few conditions that we suggest. 1) That the storage building be compatible with the existing residential structure and the Board of Adjustments will need to be specific on what material, roof type, windows, etc. will be required to show that that is compatible with the existing structure. 2) That eaves and overhangs of the structure not exceed the approved variance. 3) That the height of the structure shall not exceed 10'. That is all I have. Is the applicant here? Yes Sir, I am Would you like to give us any additional information? If I may ask Shelli a question. You said that the 10' setback is not unique to me, it is for everybody. Are you referring to the easement or the setback? Your requirements, the city's requirements. Ok, it is 20' in the rear. Is it 20' for everyone? Board of Adjustment October 7, 2002 Page 4 Rushing: Yes, in the R-1 District. Hartsfield: Ok. I brought this request to the board and let me clear up one thing. The size building that I am building is 10x16, where a 6x12 came from I'm not sure. It is on my request. I have a copy of it that I put to the board, so the building is a little bit larger. This is a storage building, it is going to be for lawnmowers, an ATV vehicle, wheel barrow, yard tools, and so forth, what a storage building is supposed to be for. I have met with my neighborhood association. I have to have this building inspected. It will match my house, I have added windows, it will have vinyl siding. I don't think I'm asking for special treatment. I am just trying to get the best use out of my backyard. Are there any questions I can try to answer for you all? Green: What is the proposed wall material going to be? Hartsfield: It is going to be vinyl siding. It is going to have a wafer board underneath, and once it is on site I am going to have it sided. Nickle: Is this drawing an accurate proposal? Hartsfield: Yes Sir. Nickle: Have you considered flipping the building this way? If you did that it would still preserve a lot of this part of your yard here, especially if we were able to grant you a variance on this west side. Hartsfield: Yes Sir, I had In talking with my architectural review committee in my neighborhood, they were concerned about what the neighbors were going to be seeing. In this direction with the long side facing my house that would be the side I would put the door and the windows facing toward so what they would be seeing would be a smooth facade on the back of it and on the sides. I am just trying to be as friendly of a neighbor as possible. Nickle: I guess part of my concern is too, the proximity of this house right behind you. If you get a 10' variance here that is going to put it pretty close to his backyard too. Hartsfield: It didn't show on the survey that I gave you, but there is a 6' privacy fence around the yard and on the backside of that neighbor that you were pointing to on the west side of me, that fence has actually been shadowboxed on the opposite side so it is a solid privacy fence on one side and then shadow boxed on the other side to keep the view down. Board of Adjustment October 7, 2002 Page 5 Green: Hartsfield: Rushing: Hartsfield: Green: Since this aerial photograph there have been. several new housing additions out there. That picture, if you went to Mapquest.com, is that where you got the photo? No, that is from our imagery, our data base, that is a 2000. It looks like the one that I got from Mapquest. It was all cow pasture at the time that that photo was taken. The neighbor to the west of me or behind me is in the city limits and the one to the south is. The neighbors to the north of me and to the east of me are actually county residents. I don't know if you are aware, but my architectural review committee also went to all the neighbors, asked their thoughts and opinions before they granted me my letter and no one spoke up or had a problem with it. Especially once the designs that they requested were implemented. There are several auxiliary out buildings I guess you call them on your neighbors to the north of you, which I guess is just an older and more established rural neighborhood out there, but I didn't see very many of the separate out buildings in your immediate neighborhood there. Is that going to be a concern of some of your other neighbors too? Hartsfield: Actually, the neighbors who just moved to the south of us, they moved in about one month ago. They are aware that we are doing this and they are kind of waiting to see what happens with ours on how they are going to approach building one. A gentleman just down the road from us recently went through this process and has put a storage building in his backyard. The architectural review committee has had to sue one gentleman who didn't go through the proper channels and built basically a motor home building and it has actually been removed but there are other storage buildings throughout the neighborhood. There is actually one gentleman that has one of the aluminum portable carports that has been erected in his backyard. There are quite a few throughout the neighborhood, just not many in my immediate vicinity. Nickle: Hartsfield: Olszewski: Hartsfield: Olszewski: You bought this house after it was built, is that correct? Yes Sir. Is this correct that this is 148' deep and 100' wide? Yes, that is correct. I think what is problematic for me is that if someone were to come in here for a variance on an R-1, if they had a 70' wide lot with 8,000 sq.ft. we would be asking • • • Board of Adjustment October 7, 2002 Page 6 Green: Hartsfield: Nickle: Olszewski: Hartsfield: Green: them to have these setbacks. Here we are looking at 100' wide with almost 15,000 sq.ft. This is the problem we always run into because I am like you, I would just as soon set everything back along that line so I would have that expanse but the setbacks require that we don't. That is the part that I am looking at It would be very difficult to come up with a reason to do it. If we would ask someone who had a much smaller lot to adhere to it. Are there any other questions? This gentleman asked me if I bought the house after it was built, granted, I probably would've done a few things differently to be able to adhere to the rules. Again, I am not trying to encroach on my neighbors. I am just trying to get the best use out of my yard as I can and still not interfere with them. That is why we didn't get near utility easements or anything like that. It is going to be a nice building, the expense is going to be about twice what I planned to spend on a storage building just so I can adhere to the neighborhood rules. I would be much more inclined to grant some kind of variance on that south side and the reason I would have there is because he does have a large, that 15' utility easement on the other side does take away some potential building space because normally that would be just an 8' setback. I wouldn't be in favor of granting a variance on the rear setback I don't think. I could see the possibility, especially if he wanted to turn that building the other way and maybe put the door on this end instead of the side, I don't know how practical that is. I could see granting a little relief over there because of the 15' utility easement on the other side, which I think is the north side of the lot. I think I would be more inclined to agree with you if we were in a 70' wide area because that would be more of a hardship but I am having a real hard time not agreeing with staff for future problems, although, I totally understand why a person would want to do it. Just speaking with my wife, and listening to this gentleman's suggestion, I think we can both live with turning the building on the side to run parallel with the south fence if you can help us out with the. distance there a little bit. Maybe 5' away from that south property line. Which would only be maybe a 3' variance on the side? Hartsfield: Yes. • • Board of Adjustment October 7, 2002 Page 7 Green: What would staff respond to that? Rushing: I think our recommendation still stands because we don't find that there are any really unique characteristics of the property that create a hardship. It would be different if there was a tree in the way there or a slope but the applicant hasn't indicated that that is the situation and we can't at this time justify recommending that. Whitaker: From the legal department I can tell you that the compromise proposed, we wouldn't have a problem with that. That is not to say that we would endorse it. That is an area when you get down to a minor setback like that on only one side, and we are not talking easements here like we have been in the past, in situations where we also had things on top of easements and we have very, very strong opinions about that. I think from a legal standpoint, this is where your discretion comes in. Our view is a little different than the Planning staff, they have a little different of a mission than we do. Although I don't want to detract from their recommendation, I dust wanted to let you know that we are making no recommendation. Green: Right. In trying to extend Bob's comment a little bit more there, that 15' wide utility easement along the north there is sort of unique to this property that may not be unique to the other ones that we would consider and trading 3' for the restrictions for that side utility easement that is that wide. Generally, you wouldn't have utility easements on three sides like that. Personally, I could justify giving them a little side relief there a few feet as a reason instead of just arbitrarily setting a precedent of granting this with no unusual condition. Nickle: I certainly see Joanne's point there, it is one of those things because he is limited. He can't really put anything on the north side that wouldn't be almost right in the middle of his lot, so that pretty much means he has to go to this south side and if he agrees to turn his building that way I think it would be less offensive potentially to the neighbors. I am kind of either way but I will make a motion that we would approve a 3' variance on the south side provided the other staff comments are in there; and provided he puts that building, flips it over running east and west, with those provisions I would make the motion. Andrews: And the three conditions? Nickle: Yes, the other staff conditions, I mentioned that. Green: Is there a second? Hearing no second, do we need to try to clarify that motion further or is there another motion? • • Board of Adjustment October 7, 2002 Page 8 Nickle: Whitaker: Motion: Olszewski: Kunzelmann Green: Orton: I will let somebody else make a motion. If you have completed discussion then you have to continue crafting motions until one of them gets seconded is basically where you are now. I will make a motion that we go with staff's recommendation and deny it. : Second. There is a motion and a second to deny the variance in accordance with staff's recommendation. Is there any further discussion? Kunzelmann. Green: Hartsfield: Andrews: I don't see what is so wrong with it except that I realize it doesn't go with all this criteria but yet I don't see the harm to anyone involved. I am having difficulty supporting this because I am trying to be fair and consistent with other situations that we have seen in the past. Although I understand, I just can't get there in the interest of being fair and consistent. Are there any other comments? Are there any other comments from the applicant? I was hoping a compromise would work out in our situation here because I do feel that I am dealing with some situations that most aren't. Again, I wish I had the time and your patience enough to explain the hoops I have already jumped through to get to this point. I have spent six months working on this just to get it to this stage. It is something that all my neighbors have agreed with. Again, they were notified of this meeting and two of my neighbors said that if you need me to come up there and say it is ok, I'll be more than willing to come. If 1 would've realized we were headed down the trail we are now I probably would've asked them to take a little bit of their time to come up here. If there is anything else I can try to answer for you I would be more than willing to at this time. I think my problem is just the precedent that it sets and we have to think of in the next five to twenty years who is going to come asking for something and they say, well, you have it to them and we want it. Maybe they want instead of 3' they want 5' and then we have to grant that because we granted to you and the next person wants 7'. I think that is what the board is worried about, at least I am unfortunately. • Board of Adjustment October 7, 2002 Page 9 Nickle: Hartsfield: Green: Orton: Whitaker: Nickle: Green: Orton: Green: Roll Call: Green: Nickle: Green: Orton: Nickle: Orton: Nickle: What you need is a big oak tree right there. I would've planted a few if I would've known. It's not too late. Is there further discussion? Now, if we went back to the motion that was not seconded. You can't. We have got a motion and a second, we will have to vote on that. We will vote on that motion and then if doesn't carry then we will look for another motion until we get one that carries. Ok, you're right. The motion is to deny the applicant's request for a variance. Can you call the roll please? Upon completion of roll call the motion to deny VAR 02-25.00 was denied by a vote of 3-3-0 with Ms. Orton, Mr. Nickle, and Mr. Green voting no. We are split down the middle. Where is Sheree when we need her? The motion to denied failed. We are going to have to craft something that we can agree on as a majority vote with a quorum that we have. It is going to take four votes the way.I read it to go either way. Does anyone have further motion, comment or suggestion that we can make? To make this according to the ordinance, this would have to come up 10' and it would have to be over 8' so that would put it right here into the yard. Yes, so 1 am saying to do it like this. I think turning it like this would be advantageous to leave the open space and this is the setback, 20'. So the variance would only be on the side, that is what you were suggesting? Yes. • • Board of Adjustment October 7, 2002 Page 10 Green: I, of course the reason I voted against the denial of it was for the reason I gave of this side utility easement greatly limits the use of their entire yard as a standard lot. That is the only reason that I saw fit to try to grant some sort of side variance relief there just because of the utility easement on the right. If that utility easement wasn't so wide there by 15', that means instead of an 8' side setback they are going to have to have a 15' side setback to the north. That is the only reason that I saw to try to grant some special relief on that. Nickle: Correct me if I am wrong, I think the primary reason that we have side setbacks in a typical R-1 is for safety purposes. Whitaker: Open visual and free flow of air and light. Really it is in consideration of adjoining property owners. If everybody built up to the property line it would be a pretty nightmare type neighborhood. Nickle: Had this home been built closer to the building setback line, which it could have been, giving the logic of giving somebody a larger back yard as opposed to sitting it back 37 '/I feet then they would have more backyard to start with. I guess in a way I could look at that as a special consideration because he didn't build it to the front setback line, thus, limiting the backyard a little bit if you will. Had he done that then we would've had a much deeper back yard and more spacious backyard. I guess, in a way, that is part of my justification for some special consideration because he didn't build to the front setback line. That, along with the utility easement on the north side. I will see if I have convinced anybody. Whitaker: If I could clarify one thing, I just want to assure you that since you are a fact finding body and not a law or rule making body you don't have to worry that your decisions have any legal precedent. In zoning matters in particular, when you are dealing with administrative determinations like this, a fact finding body like yourselves, there is no precedent. You may feel in your own character and morals that if I vote this way one time I am going to be bound the rest of the time but don't think of it as a legal precedent. You are not bound by any of your previous ones. As a matter of fact, the courts will encourage you not to do things that way because remember, the uniqueness of each situation is what brings people here, not any precedent six blocks over eight months back. That being said, I just wanted to clarify that it is not a legal precedent you have to worry about. You are not bound in one decision by a decision you made before. It is not like you are making a legal precedent here. Nickle: So if someone came in six months from now and said you just did it for this guy right • here. • Board of Adjustment October 7, 2002 Page 11 Whitaker: Orton: Andrews: MOTION: Nickle: Orton: Nickle: Olszewski: Green: Nickle: Orton: Green: Nickle: Green: The facts are different. It is a different piece of property and the law recognizes that each piece of property is inheritently unique. There are no two of these properties on this planet and the law recognizes that. That is why Boards of Adjustment exist. This is unique because of the 15' utility easement on one side. You want to call your motion again? I will make a motion that we allow a 3' variance on the south side provided that he build the building with the long side facing to the north or south and the short side facing east and west and all the other staff comments. What about the rear setback? No variance, no variance. Does it even matter which way you build it then? That is really a preference for him. Yeah, he probably would want to build it that way but not necessarily have to. Since they didn't have an objection to it I guess that is why I did that. To me from a visual standpoint, I think it might look better doing that but that is just an arbitrary opinion. I will second your motion. Ok, we have a motion and a second to approve only a 3' side variance which will allow a 5' setback and alsoto comply with the other three items of staff's recommendation and the long axis of the building going east and west. I am assuming that his 10x16 is what we are talking about building. Is there any further discussion on this motion? Kunzelmann: Staff's recommendation number one says that the Board of Adjustment will need to be specific on what materials, roof type, windows, etc. will be required, is there any discussion about that? Board of Adjustment October 7, 2002 Page 12 Whitaker. This probably should be addressed depending on the success or failure of this motion. If you adopt this then you can move onto that determination, if you don't, it is rather moot. Green: What we are saying now is that staff recommendation number one is that the storage building shall be compatible with the existing residential structure period. If this passes then we can address those. Whitaker: It sounds like, from the bit that Mr. Hartsfield has told us, it sounds like the architectural review board has done a lot of this work for you already and it may be that by complying with them he complies with you and that can be a decision for you to make after the success or failure of this vote. Hartsfield: Just to reiterate what he just said, the architectural review committee meeting, I spent about two hours with them. My house is red brick with white siding with black architectural shingles. They realized that a brick storage building would be a bit of an over kill and agreed to a white vinyl siding. It is going to have a white metal rollup garage door similar to the one on my house, it is going to have black architectural shingles. The one thing that the architectural committee did not make me do is the house has white vinyl clad windows. Again, they thought it was a bit of an overkill to do the same for a storage building. Hence, one of the agreements was making sure that the building faced toward me. I believe that they will be ok with this also because the windows will still be in the general direction of my house and I do have the privacy fence around it that restricts the neighbor's view into the backyard. Green: Is everyone clear on the motion? Will you call the roll please? Roll Call: Upon completion of roll call the motion to approve VAR 02-25.00 was approved by a vote of 5-1-0 with Ms. Olszewski voting no. Green: The motion passes. Is there any further discussion on building materials other than what Mr. Hartsfield has discussed? Nickle: No. Green: Rushing: Ok, very good, thank you. Is there any business that should come before this committee? Yes, I have a few announcements. The first one is the notice that Renee put together. We are having an audio conference on November 6th here in this room. The title is • • Board of Adjustment October 7, 2002 Page 13 Getting To Density. We ask that you RSVP by October 21St. The second item is the four state American Planning Association conference. That is what this Blast The Beast brochure is. That is Wednesday, October 23rd through the 25th and if you would like to attend that or attend a few sessions, I think the contact person is on there. Gary Cathcart, and his phone number is on there. If you would like to attend that. Nickle: Where is that? Rushing: Fort Smith, I also have some additional information so if anyone is interested just let me know. Dawn will be back at your next meeting. We are expecting her back next week. Whitaker: Just very briefly, in the matter of Scarbrough v. Board of Adjustment and the City of Fayetteville, we are waiting on Judge Smith's ruling on the motion to dismiss the second count in the complaint. I anticipate that sometime in the next couple of weeks probably through letter of opinion rather than through a formal order. Then remains the straight up and down issue of whether a variance should've been issued. We think on that we should prevail as well. We are currently set for trial on November 13th in that matter. Although, some of our preliminary motions may make that unnecessary to go forward to trial, we certainly hope so. Andrews: If it does go to trial do you represent the board or does the board need to be present for any of that? Whitaker: No, as far as I know, I have seen no witness list from the opponent calling any of you or the members at that time. Legally and technically, that was a different board at the time. The only people on the witness list that I've seen so far are Mr. Scarbrough and some other city staff members. Really the only thing would be fact finding. I don't want to go too deep in this, I know I am always guilty of it. It is called a de nova review. Basically, they are not reviewing whether you were arbitrary and precocious, that would be a different standard. What happens on these is that it goes to the judge and if he hears it as a bench trial, he becomes a Board of Adjustment of one and has to look at the same fact finding and same criteria you do. If there is a jury, it is simply a 12 person Board of Adjustment that makes these decisions. Really they are not going to get into what did you mean when you say such and such. They call it an appeal but it is not a true appeal. It is a brand new proceeding, just in a different venue and jurisdiction. I will let you know. Green: Ok, interesting. Are there any other announcements or business? Seeing none, we • are adjourned.