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HomeMy WebLinkAbout1981-08-10 MinutesMINUTES OF A PLANNING COMMISSION MEETING A meeting of the Planning Commission was held at 5:00, P.M. Monday, August 10, 1981, in the Directors Room, City Administration Building, Fayetteville, Arkansas. MEMBERS PRESENT: MEMBERS ABSENT: OTHERS PRESENT: Chairman Ernest Jacks, Beth Crocker, Windell Cullers, Newton Hailey, David Williams, Martin Redfern, Don Hunnicutt. Joe Wilson, Morton Gitelman. Jim McCord,.Joseph William Segers, Wayne Ball, R. Berry Broyles, Ervan Wimberly, Al Harris, Frank Parrish, Sally Stone, Al Miller, Steve Simpson, Larry Wood, Cynthia Stewart, Bobbie Jones and other members of the press and audience. The minutes of the July 27, 1981 Planning Commission Meeting were approved as mailed. The next item of business was a request submitted by Joseph William Segers, Jr., Attorney, on behalf of Mission Boulevard Baptist Church for a determination on the Planning Administrator's interpretation given to the Church concerning the construction of buildings for other facilities and what constitutes "traditional church related activities". Conditional Use approval for a church granted by the Planning Commission for R-1, Low Density Residential District,on May 12, 1980. Joseph William Segers, Jr., was present to represent. Chairman Ernest Jacks stated this item had been tabled at the last meeting in order for the City Attorney to be present. He cited some correspondence between the Church and the Planning Administrator, and, also, a similar case that had been submitted by Morton Gitelman. The Chairman asked for an opinion from the City Attorney. Jim McCord, City Attorney, addressed the Commission and the audience. He stated that as he understands it, the issue is whether the Conditional Use permit approved by the Planning Commission for the Church last May authorizes the Church to operate a parochial school at the site. McCord stated that there are decisions from other Jurisdictions and cited a case in New Hampshire where the ordinance specifically stated that parochial schools are related to church activities. Fayetteville's ordinance does not include these related activities. He said that in the case distributed by Morton Gitelman from the State of Oregon, the Court held that a parochial school is not authorized under a Conditional Use Permit which authorizes a Church. McCord felt that the Oregon case was more closely related to this particular situation. McCord said the minutes reflect that the Commission approved a church. In his opinion, this would not authorize a parochial school at this site. This does not mean that the Church cannot apply for a conditional use -:permit for a school. All buildings authorized under the Large Scale Development Plan are entirely legal. He said it is entirely legal for the Church to go ahead with construction of another building. However, a parochial school cannot be conducted in the building MINUTES MISSION BOULEVARD BAPTIST CHURCH CLARIFICATION OF TRADITIONAL CHURCH ACTIVITIES RI/ Planning Commission Meeting August 10, 1981 Page 2 when it is finished. Sunday School is permitted. If the Church does commence the operation of a parochial school, the statutes provide that the neighbors, or the City may enjoin to stop the school activities. Williams and McCord discussed the ramifications of the City Attorney's opinion. The City Attorney submitted his opinion in writing, it is as follows: "The Planning Commission has requested an opinion from this office on the question of whether the Conditional Use permit approved by the Planning Commission for Mission Boulevard Baptist Church on May 12, 1980, authorizes the church to operate a parochial school at the approved site. The property at 2006 Mission Boulevard was approved for use as a "Church". The zoning ordinance lists "church" as an included use in Use Unit IV, Cultural and Recreational Facilities. Use Unit IV also lists "school" as a separate included use. Use Unit IV is a conditional use in an R-1 District. The property in question is zoned R-1. "In the process of deciding what constitutes a "church" within the meaning of a zoning ordinance, the courts have stated various general principles or rules of construction, such as the presumption that such nontechnical terms should be interpreted according to their common and ordinary usage, and the requirement that such provisions be construed in the light of the entire zoning ordinance and its purposes. 62 A.L.R. 3d 197 (1975) Of the jurisdictions in which the courts have attempted to define a "church" for zoning purposes, most have adopted definitions substantially equivalent to a building used for public worship. Id. As to whether particular uses are included within the concept of a "church" so as to be permitted in a residential district under a zoning ordinance, more often than not the use has been held to be a "church". Id. "Whether a proposed use is permitted under a zoning ordinance is a question of law, rather than one of fact, since it involves an interpretation of the zoning ordinance. Community Synagogue v. Bates, 136 NE 2d 488 (N.Y. 1956). It must be presumed that the word "church" in a zoning ordinance was intended to be used according to its usual and ordinary meaning. Re Appeal of Upper Saint Claire Township Grange 152 A. 2d 768 (1959). "There are decisions from other jurisdictions holding that terms such as "church" and "religious use" in zoning ordinances implicitly include uses -- in addition to worship and activities directly related to worship-- which are ancillary or related to the religious purpose of the entity conducting the "church:' or religious use". Anderson, American Law or Zoning 2d § 12.25 (1975); 62 A.L.R. 3rd 197 (1975) The cases most closely in point on the issue addressed herein are City of Concord v. New Testament Baptist Church, 382 A. 2d 377 (1978) and Damascus Community Church v. Clackamas County,610 P. 2d 273 (1980). In City of Concord, the New Hampshire Supreme Court concluded that a parochial school was a facility "usually connected with a church", and was therefore a permitted use under a city ordinance authorizing the operation of churches and "facilities usually connected with a church" in the area in question. Unlike the ordinance considered by the New Hampshire Court, the Fayetteville Zoning Ordinance does not refer to "facilities usually connected with a church". The Fayetteville ordinance merely lists "church" as an included use in Use Unit IV which is a conditional use in the R-1, Zoning District "In Damascus Community Church v. Clackamas County, supra, the Oregon Court of Appeals held that under a county zoning ordinance, a conditional use /42 A Planning Commission Meeting August 10, 1981 Page 3 permit for a church did not automatically authorize the operation of a full time parochial school. Additionally, the court held that the zoning ordinance did not interfere with the church's right to the free exercise of religion. The court reasoned as follows: ". . . it is clear that full time parochial schools are not among the uses which could be regarded as implicit in a conditional use permit for a church under this ordinance. The section of the ordinance governing conditional uses treats churches under one subsection and parochial and private schools under other subsections. The minimum conditions for the church use and for the school use differ. Thus, the ordinance clearly manifests the county's legislative decision to make the granting of the criteria for conditional use permits for churches and for parochial schools different and independent. . ." 610 P. 2d at 276. "Likewise, the Fayetteville Zoning Ordinance treats churches and schools differently and prescribes different minimum conditions for church use and school use Under Art. 6, Sec. IV, a church is required to have one parking space per forty square feet of auditorium; elementary and junior high schools are required to have one parking space per 1,200 square feet of floor area; and senior high schools are required to have one parking space per 800 square feet of floor area. In the Oregon case, the church argued that it was authorized to operate a parochial school because the conditional use permit application included a notation describing the proposed structures as "frame church and educational units". The court rejected this argument noting that the words "educational units" do not necessarily imply a parochial school use as distinguished from Sunday school class use The court also rejected the church's argument that the zoning ordinance interfered with its right to the free exercise of religion noting the distinction between the infringement upon religious beliefs which is absolutely prohibited, and the permissible imposition of reasonable limitations, designed: to protect the public health and welfare, upon religious practices. The court noted that the county zoning ordinance was clearly intended as a land use regulation, stating: . . a,full time school is a more intensive use than a church, and there is no constitutional prohibition against the county's adopting different requirements for the two uses . . ." 610 P. 2d at 277. Because the Planning Commission only approved a "church", and because I believe the Oregon case to be more closely in point than the New Hampshire case, it is my opinion that the Conditional Use permit issued Mission Boulevard Baptist Church does not authorize the operation of a parochial school. Under Ark. Stat. 19-2829 (h), a violation of a planning ordinance is considered a misdemeanor with each day's violation considered a separate offense. This statute further provides that the legislative body or any individual aggrieved by a violation of a planning ordinance may enjoin any individual or property owner who is in violation of a planning ordinance to prevent or correct such violation. A question has been raised as to whether approval of the Mission Boulevard //1.3_A • • • Planning Commission Meeting August 10, 1981 Page 4 Baptist Church Large Scale Development authorized construction of more than one building. Because the application reflected more than one building, it is my opinion that the Planning Commission approved construction of all buildings shown on the application." The Chairman stated that at this time, a building permit is being held up for the Mission Boulevard Baptist Church. Jacks asked what the Planning Administrator should do in issuing the permit. McCord stated that it should be noted on the building permit that this does not authorize the building permit for a parochial school. Windell Cullers moved that the opinion of the City Attorney be accepted by the Planning Commission that the building permit be issued, and that it be noted on the building permit that it does not permit the construction of a parochial school. Beth Crocker seconded, the motion passed (7-0). The next item of business was a request for a variance from the lot size requirement applicable to a lot split submitted by Wayne Ball for property located in the City Planning Area, lying West of Fat Gully Road (State Highway 156) This is a second split and the requirement Wayne Ball was present to represent. last meeting. Mr. Ball stated that the minutes from the July 27, 1981 meeting reflect that there was some concern about access to the tract being split off. He stated that the photo copy of the legal description submitted with his request did not pick up the described 30 ft. access. This access begins at the Southwest corner of the tract and proceeds 730 ft. to Highway 156. Beth Crocker asked if the existing house is on a septic tank. Ball stated that is correct, it is served by City water. Crocker stated that the parcel being split off is served by a septic tank, but does not meet the minimum 1-1/2 acre for a lot served by a septic tank. She stated that a waiver will have to be sought from the Board of Directors if this tract does not meet that minimum. Ball stated he was not aware of that, but that he would adjust the property line to make the tract being split off 1-1/2 acres. Windell Cullers moved to approve the requested variance provided that the tract is increased from 1.45 acres to 1.5 acres, to meet the minimum lot area requirement for a lot served by a septic tank. Martin Redfern seconded. Newton Hailey asked if this 30 ft. easement is intended to be a public street. Wayne Ball said he did not think it would ever be a public street. The motion to grant the variance passed (7-0). VARIANCE MINIMUM LOT SIZE REQUIREMENT FOR A LOT SPLIT WAYNE BALL FAT GULLY ROAD and East of Oakland and Zion Road. is 5 acres per parcel. Ball apologized for not attending the The next item for consideration was a request for a variance from the lot size requirement applicable to a lot split submitted by R. Berry Broyles for property North of Old Farmington Road between REQUEST FOR VARIANCE MINIMUM LOT SIZE FOR LOT SPLIT - R. BERRY BROYLES /4/9 4 • • Planning Commission Meeting August 10, 1981 Page 5 One Mile road and Highway 71 Bypass Property is zoned A-1, Agricultural District. R. Berry Broyles was present to represent. He stated he purchased this property from Dr. J. B. Hays. The property involved is noted as Tract B and Tract C on the drawing. At this time they are one tract of land. He stated he wishes to divide them at this time into two tracts as noted. Tract B contains 5 acres and Tract C contains 3 acres. The properties are already physically split by a 60 ft. road. Bobbie Jones pointed out that is not a public road. Windell Cullers moved to approve the request. Beth Crocker seconded. The motion passed (7-0). The next item of business was PRELIMINARY PLAT the approval of the preliminary NORTHVIEW HEIGHTS plat of Northview Heights located J. B. HAYS South of Rolling Hills Drive and East of North College Avenue; J. B. Hays, Owner and Developer. This phase of development is zoned C-2, Thoroughfare Commercial District. Ervan Wimberly was present to represent. The Chairman asked for a report from the Subdivision Committee. Don Hunnicutt, Chairman of the Subdivision Committee stated that this development had been recommended for approval with the following conditions: 1. Include proposed detention pond and drainage system.in the first phase development. (Presently not shown on Phase I plan). 2. Comply with Plat Review Committee comments and requests. of 3. Waive the 100 ft. requirement for 4% grade in hilly terrain at the intersection of Highway 71 and the proposed access street. Grades mustmeet with the approval of Clayton Powell. 4. Property owners must be properly notified of the Planning Commission meeting. Jacks stated he had received a phone call from Bill Storey, who represents L. D. Parks, an adjacent property owner. Mr. Storey requests that item 1.of the conditions for approval be amended by adding the following: "in accordance with plans furnished by Mr. Parks' hydrologist, Evert L. Ackslan Van Vriesland." Hunnicutt stated he would make his recommendation a motion with the amendment as requested by Mr. Storey being made a part of Item 1. Beth Crocker seconded. Bobbie Jones stated there are currently some amendments to the subdivision ordinance being formulated to accomodate a Commercial PUD. She stated this development will be submitted at the final phase under those amendments. Bobbie said the mentioned amendment will allow the Planning Commission to waive the requirement that all separately owned buildings have frontage on a public street. Wimberly submitted notification of adjoining property owners. The motion to approve the preliminary plat of Northview Heights was approved (7-0). iy5 Planning Commission Meeting August 10, 1981 Page 6 The next item of business was a request submitted by Northwest Engineers, Inc. on behalf of Frank Farrish for a waiver of the 250 ft. perimeter setback required for multi -family units within a PUD within an R-1 zoning district where it abuts R-1 zoned property outside the PUD. The applicant requests that said perimeter setback be reduced to 50 ft. Property covered under this appeal lies on the West side of Crossover Road (State Highway 265) between Whippoorwill Lane and Lovers Lane and is South of State Highway 45 (Mission Boulevard). Frank Farrish and Ervan Wimberly were present to represent. Farrish stated he is requesting the variance of the 250 ft. setback and that if there are any quesions he would be happy to answer them. The Chairman asked if there was anyone present in favor of the request. There being no response, the Chairman asked for comments in opposition. Sally Stone, 2939 Inwood Lane, addressed the Commission. She wondered what the setback would be from Highway 265. She stated it is a busy highway, and would probably be a four lane highway sometime in the future. She wondered if this variance would be applied to the setback from the highway. Farrish stated that Highway 265 is presently an 80 ft. right of way. He stated that the perimeter of the PUD if the variance is granted would be 50 ft. from the highway right of way. As planned, the PUD will be setback 130 ft. from the right of way. Ernest Jacks asked if the Planning Commission is to make a recommendation to the Board on this requested waiver. Bobbie Jones stated that all that is required, is that notice be given and that the Planning Commission make a finding. Anyone in opposition to the Planning Commission determination has the right to appeal to the Board of Directors within 10 days. Crocker stated that the 250 ft. setback should not be taken lightly, and she did not feel that this waver was being taken lightly. She felt it should be taken into consideration that the property to the North is affected, and those property owners did not object. Crocker stated she has no trouble with the requested waiver and moved that it be granted. David Williams seconded. The motion passed (7-0). VARIANCE - 250 FT. SETBACK FROM R-1 FOR STRUCTURES OTHER THAN SINGLE FAMILY IN A PUD The seventh item of business was a Conditional Use Request submitted by Gary Bailey for Circus Vargas to have a European Family 3 Ring Circus on the Northwest Arkansas Mall Parking Lot, zoned C-2,Thoroughfare Commercial District. Al Miller was present to represent. There was some discussion over the different scales for the Beth Crocker stated that in a conditional use of this type, shall be located nearer than 500 ft. from an occupied dwelling. that this will be closer than 500 ft. to Superior Federal. Cullers asked if this Circus was being produced with the sponsorship of the Mall. Mr. Miller stated that is correct. Jacks asked if the"dwelling"that Ms. Crocker referred to is a residential dwelling. Bobbie Jones said she would interpret it as being residential. Cullers moved to grant the conditional use for the circus. Don Hunnicutt seconded. The motion to approve passed (6-1) with Beth Crocker casting the "Nay" vote. Crocker did not like the idea of the circus taking up all the parking. Also she felt this would increase existing traffic problems in the area. CONDITIONAL USE FOR CIRCUS VARGAS N.W. ARKANSAS MALL drawings submitted. that no facilities She stated • Planning Commission Meeting August 10, 1981 Page 7 The next item of business CONDITIONAL USE REQUEST was a Conditional Use Request submitted STEVE SIMPSON FOR LINDSEY by Steve Simpson of Lindsey and Associates, 1540 HUNTSVILLE ROAD Inc. for change of non -conforming use from retail sales and repair of restaurant equipment to design and creation of computer discs and related software at 1540 Huntsville Road, zoned R-1, Low Density Residential District. Steve Simpson was present to represent. He stated that he came before the Commission last August. He stated he was applying for the same thing except rather than a carpet store, for,which the building was never occupied, it will be the computer and software use described in the application. Hailey stated this use seems less intense than the carpet store. Windell Cullers moved to approve the requested conditional use and Martin Redfern seconded. The motion passed (7-0). There being no further business, the meeting adjourned at 5:50, P.M. /y7 A