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HomeMy WebLinkAbout2002-06-03 Minutes (2)MINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT A regular meeting of the Board of Adjustment was held on Monday, May 6, 2002 at 3:45 p.m. in Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS CONSIDERED ACTION TAKEN VAR 02-11.00: Variance (Crider, pp 485) Page 4 VAR 02-2.00: Variance (LaGrone, pp 99) Page 8 MEMBERS PRESENT Marion Orton James Kunzelmann Joanne Olszewski Michael Green Bob Nickle Approved Approved MEMBERS ABSENT Michael Andrews STAFF PRESENT STAFF ABSENT Dawn Warrick David Whitaker Renee Thomas Mike McKimmey Board of Adjustment May 6, 2002 Page 2 ROLL CALL• Upon the completion of roll call, five members were present with Mr. Andrews being absent. Approval of Minutes Orton: Olszewski: Orton: Kunzelmann: Orton: Roll Call: Green: Orton: Green: Nickle: Green: Warrick: Will the meeting please come to order? The first item on our agenda is the election of a Chairperson. Do I hear a nomination? I nominate Mr. Green. There is a nomination for Michael Green. I will second that. Alright, are there any other nominations? All in favor? Upon completion of call, Mr. Green was elected as Chairperson by a unanimous decision. I would have liked to have seen Marion get it but she said she was not going to be here for more than a year. That is right. You are experienced though. I appreciate that. I guess the next part of old business should come to order at this time. I want to welcome all of you, especially our newest member of the Board of Adjustments, Mr. Bob Nickle. Thank you Mr. Chair. We'll try to get your name plate next time. We are still short one member to have full membership on the Board of Adjustment. Yes Sir. I expect within the next few months, I don't know exactly when. I know that the position has been advertised. The City Clerk's office advertises quarterly for vacancies on our boards and commissions and I did see it in the newspaper recently so I know that the advertisement is out. If anybody knows of someone living within the City who may be interested in serving on this board, certainly encourage them to make their application to the City Clerk's office. We would like to get back to a full seven member board and as soon as applications are submitted to the City Clerk's office, those will be forwarded to the City Council's nominating committee and work through that process of appointment. Board of Adjustment May 6, 2002 Page 3 Orton: We meet once a month on the first Monday of the month at 3:45. Warrick: That is a good point, thank you. Whittaker: The application deadline is the close of business this coming Friday the 10`" Green: The next item on the agenda is the approval of minutes from the meeting of April 1, 2002. That is a meeting of which I was absent. Is there any correction to be made to these minutes? There was one administrative item, even though I didn't attend, I saw something that I think is an error on the first item. The vote was listed as 5-0-0 and there were only four members present. Warrick: That needs to be corrected. We can take care of that. Green: Are there any other comments or corrections to the minutes? We will consider them approved at this point. Board of Adjustment May 6, 2002 Page 4 VAR 02-11.00: Variance (Crider, pp 485) was submitted by Lane Crider for property located at 312 E. Lafayette. The property is zoned R-1, Low Density Residential and contains approximately 0.20 acres. The minimum frontage requirement is 70', the applicant requests a variance for the existing 58.25' wide lot (a 11.75' variance). The requirement is for an 8' side setback and a 20' rear setback. The request is to allow a 1' side setback (a 7' variance) and a 4' rear setback (a 16' variance). Green: The first item under new business is VAR 02-11.00. The variance was submitted by Mr. Lane Crider for property located at 312 E. Lafayette. The property is zoned R-1, Low Density Residential and contains approximately 0.20 acres. The minimum frontage requirement is 70', the applicant requests a variance for the existing 58.25' wide lot (a 11.75' variance). The requirement is for an 8' side setback and a 20' rear setback. The request is to allow a 1' side setback (a 7' variance) and a 4' rear setback (a 16' variance). Dawn, can you bring us up on this one? Warrick: This project is located at 312 E. Lafayette. It is in the Washington Willow historic district and is situated basically across the street, on the north side of the street across from St. Joseph's school and church. The project is a single family home. It is currently under construction and the applicant is in the process of renovating this single family home and adding to it the original structure that was placed in this location in the 1930s. The subdivision, as well as the original structure predates the City's zoning ordinances. One unique situation to this particular lot is that both the building, as well as the addition that is currently under construction comply with the setback requirements for the district. Many situations in this area don't or can't because of them preexisting current zoning. In this case, we are dealing with a compliant existing structure. The applicant, in the process of his renovation project, did remove a previously existing stand alone garage. With this application he would like to do a couple of things. The first under the variance as requested is to accommodate the inadequate width of the existing lot. The existing lot has sufficient land area to meet the requirements of a lot in the R-1 zoning district, however, it does not have the frontage requirements to meet the 70' requirement for a legal lot within the R-1 zoning district. Therefore, in order to meet that requirement and make the lot itself conforming an 11.75' variance is necessary. Then to the project at hand, the applicant is proposing to replace the stand alone garage that has been removed with a stand alone carport structure and is requesting variances to locate that structure at the far northeast corner of the lot. Two variances will be necessary in order to place the project where the applicant proposes and that is a side setback of 1', which is a 7' variance and a rear setback of 4' which is a 16' variance. Staff is recommending in favor of this request with a couple of conditions. The first is that the proposed carport structure be built in accordance with the site plan, elevations and materials specified and provided by the applicant. The second is that setback variance shall only apply to the proposed carport and would not apply to any future additions or alterations to the principle structure or any other accessory building. At this point in Board of Adjustment May 6, 2002 Page 5 Green: Warrick: time staff would like to add a proposed third condition and that is that any building code requirements for the structure be met. My concern in that, and the reason that I've added that as a condition is that the proximity of this proposed structure to the property line may have issue with regard to structures being built in certain proximity of property lines with regard to the southern standard of building code, not necessarily the zoning code, you have jurisdiction over whether or not you feel it is appropriate for the building to be located closer. Many times building codes will restrict the type of construction or the number of openings or different types of materials, depending on how close they are to adjacent property lines. I would just ask that a condition be included that it go through the building safety division for review to make sure that no building code issues are present with this particular request. Ok. There are in your packet, drawings on page 1.10 of the proposed carport structure and on page 1.11 of the site plan that shows the existing structure, the addition that is currently under construction and the proposed carport, which is hatched in that area in the darker hatching at the northeast corner. I will note that I did receive a call and a visit from the adjoining property owner to the north who is very concerned about the accuracy of the survey that has been submitted. She believes that the existing garage is actually quite a bit closer to the rear property line than what is represented. With that in mind, what I have is a stamped survey from a professional surveyor and I would say that probably some discussion with the applicant is appropriate just to verify what information is here. I basically need to hope that I can rely on a stamped survey in order to determine the accuracy here, but there is concern from the property owner to the north. Green: Ok. Would Mr. Crider like to add anything to this? Crider: I have no issue with the third condition. I understand where she is coming from and we will meet any safety requirements as necessary with the southern building code. In regards to the issue raised by the neighbor to the north, I have tried to make contact with her on a couple of different occasions. She is out of town at this time but I had a surveyor survey that property when I purchased it and not only did he survey that property, but he replatted that entire division, that whole block for accuracy so I feel very comfortable that the property pins that have been set are accurate and comply with what has been done in the past and that they are accurate. I have had no contact with the neighbor to the north so this is the first I've heard of it. Green: Have we gotten any feedback from the neighbor to the east, which is only 1'. Board of Adjustment May 6, 2002 Page 6 Gessler: I am here and my name is Susan Gessler. I live at the property at 318 E. Lafayette. I am all for the Criders having a garage. It is something that is needed in the historical district and I am sure that they will have everyone's interest at heart when they build this and I think it is something that is needed and they will do a wonderful job and it will add to the property instead of take away from the property of the neighborhood. I am absolutely for it. Warrick: I have one question. I was going to ask because you are proposing a 1' setback on that east side, do you have a way to maintain the property, that 1' strip or is it going to be grass, is it going to be maintained? How is it going to work? Crider: I have thought about that very same thing because I like to try to think that I can keep an immaculate yard, I am planning on probably putting down some screening material when we pour the pad all the way up the property line there in order to limit any grass. If I do that, and then when we treat the pad, just like we would a normal structure, I think that if we treat that 1' strip. The 4' strip in the back is wide enough for me to maintain and mow and everything else. If we treat that section right there with some chemicals to take care of any root structure that is there. As close as that is without any sunlight reaching that area, I think that it shouldn't be an issue. I plan on going in and putting down some of the screening material below the surface and eliminate any growth of any sort in that area. When we put the pad down I can also put down, I can also extend the material below the base all the way over in that 1' section and possibly inhibit any other type of growth in there. That is what I am planning on doing. Warrick: I think that would affect the property owner to the east a little bit more than anything else so I was concerned with how it would be treated. Gessler: I am comfortable with whatever he does. I think it will be done right and I think it will enhance the property of the whole neighborhood with whatever the Criders decide to do. Green: Are there any other questions? Is there a motion or a comment? Motion: Nickle: 1 will make a motion to approve the variance with the three requirements that staff has recommended. Orton: I will second it. Green: There has been a motion and a second to approve the application as submitted with the three requirements, is there any further discussion? Call the roll. Board of Adjustment May 6, 2002 Page 7 Roll Call: Upon the completion of roll call the motion to approve VAR 02-11.00 was approved by a vote of 5-0-0. Green: The motion passes. Board of Adjustment May 6, 2002 Page 8 VAR 02-12.00: Variance (LaGrone, pp 99) was submitted by Dean LaGrone for property located at 3102 E. Ladelle Place. The property is zoned R-1, Low Density Residential and contains approximately 0.29 acres. The requirement is for a 8' side setback. The request is for a 7' side setback (a 1' variance). Green: The next item on the agenda is VAR 02-12.00 submitted by Dean LaGrone for property located at 3102 E. Ladelle Place. The property is zoned R-1, Low Density Residential and contains approximately 0.29 acres. The requirement is for a 8' side setback. The request is for a 7' side setback (a 1' variance). Dawn, can you give us the background on this one? Warrick: Yes Sir. This property is located within the Stonewood subdivision, which is a new subdivision that is building out. It is located at the far northeast part of the City off of Crossover Drive, Highway 265. The subdivision was filed of record and made official August 15, 2001 so it is very new and the lots are just beginning to build out. The lot in question is currently vacant and it is a legal lot in the R-1 zoning district, it has sufficient frontage, approximately 90'. It is on the start of a turn on a cul-de- sac so that is an approximate dimension and it does have more than the necessary 8,000 sq.ft. It contains approximately 14,800 sq.ft. of land area. There is a utility easement along the western boundary that requires that easement setback to be increased to provide for the easement. In this particular situation, because we are dealing with a lot that is more than sufficient size wise, there is not a significant topographical issue as far as a reason that it cannot be reasonably developed. Staff is not able to recommend in favor of this request for a variance. While the request is very minor, you don't often just see a 1' variance request, it is a situation that we are dealing with a vacant lot and the ability to develop the lot is not made necessary by a variance. There are many ways that the lot could certainly be developed with or without the variance that is being requested. One thing that is very important to consider is the state law that you as a Board of Adjustment are required to operate under. I have included that section in your packet on page 2.7 where it states "that instances where strict enforcement of the ordinance would cause an undue hardship due to circumstances unique to the individual property" under consideration is when you are able to make consideration of a variance. I know that it is difficult to determine what an undue hardship is but the phrase or the section of this state statute that is very important is that the "circumstances must be unique to the property," to this particular piece of ground. Staff was unable to make the findings necessary to prove this so we were unable to make a recommendation in favor of this particular request. Green: Even though there is a utility easement that takes up a considerable amount of the property? Should that be a consideration in looking at the setback requirements? Board of Adjustment May 6, 2002 Page 9 Warrick: It is if you think that a utility easement on a piece of property is significantly unique. There are other properties, many properties in this particular subdivision even, that also have utility easements that increase their setback requirements so I had a hard time making the finding that that was particularly unique to this piece of property. Green: Ok. Mr. LaGrone, would you care to comment or give us some additional information on your request? LaGrone: We just purchased the lot thinking that it had 8' setback requirements. We have done many additions to the house plans to get well within that so we thought we would have 7', 8', or maybe even 10' to spare. We found out about this at the time we went for a building permit, approximately six weeks ago. The permit was issued my builder contacted me and said me that the house only fits with a foot to spare. We have a 60' depth of our house, 65' of buildable width remaining on the lot after you take into consideration this easement, which just didn't allow sufficient room for roof overhang. All we are proposing the variance for is for a roof overhang. The walls will meet the setback. I talked to our surrounding property owners. I submitted information, I think you guys probably have that in your packet, they are certainly not opposed to this. They would be the primary people affected by this. Also, the adjacent property owner on this side ofthe house, the east side ofthe house has 10' of space from his lot line to his house so there is still more than the minimum 8' and 8', 16' space between the houses. There will still be 17' between the houses so I don't know what the reasoning behind setting setbacks at 8' or 10' or what is but there is still the same space that goes with whatever is required. This subdivision has a minimum of 2,400 sq.ft. houses. Our desire to live in this neighborhood was partly because we have two teenage children that are both going to be driving. We need a three car garage. I feel like it would be very difficult to design a house that would fit on a lot with 60' of space and have a three car garage even if we went another floor. That was one of the prerequisites of when we picked this lot in the subdivision was to be able to build a three bedroom, three bath house with a three car garage so we thought we were being very careful in what we were developing and the setback and we thought the easements fell within the setback, it turned out not to be the case. Certain people told us just build it, nothing is going to happen but I don't do things that way. I want to do things the right way, that is how I was raised, that is how I am. If it doesn't work it doesn't work but it seems minor and like I've said, I have contacted the adjacent property owners, there are only three except the developer who owns the majority of the lots. No one is opposed to that. I don't see what the harm is. We didn't pick a plan that purposely didn't fit on the buildable portion of this lot. We weren't aware of the easement until we got the permit, that is just kind of where we are. I am not going to try to make something up that is not there. There is a lot of time and money involved in developing a plan, picking a lot. We have gone through a second builder, the subdivision was six or eight months late in getting final plat approval. We are way behind, we thought we would be in a house a Board of Adjustment May 6, 2002 Page 10 long time ago and we're not doing that. To start over either with a new plan or possibly selling this lot would not be something that we would look forward to. Green: Did they have an accurate survey on that lot when you bought it that indicated that easement there? LaGrone: When we contracted to buy the lot it was prior to final plat and what we had was a reduced subdivision plat and a copy of the covenants of the subdivision. What I was verbally informed, and having a written copy of the covenants, refers to the setbacks only. I was never told anything about any easement. I had no reason to think that there would be one. There is storm sewer in the subdivision, I am not an expert on subdivision development, but my knowledge of real estate is that utilities are normally within the setback, that is part of what they are there for. I had no reason to suspect and I didn't receive a full scale drawing of the plat until the time of permit. It was an honest mistake on my part. I think I am responsible for that to some degree but on the other hand, this is a 1' roof overhang with the approval of the adjacent property owners and I think those would the people that would be harmed if any, particularly for property to the east and he has no problem with it. Green: Have you talked to the adjacent property owner, is there a possibility of a lot line adjustment of 1'? LaGrone: I don't know anything about that. Green: Would that be an appropriate solution? Warrick: Depending on where the existing structure on the adjoining lot is located, it sounds like there may be sufficient room for this applicant to purchase that strip and work with the property owner to adjust their common lot line. Orton: Can it be just where the house is, the property line adjustment? Warrick: It would probably be more reasonable for it to be a straight line configuring the entire lot but that is something that staff could look at. It is easier for the two property owners to determine where their lot is, where their property starts and finishes if the line is continuous from the rear of the lot to the front of the lot, which is what we try to encourage. Orton: Is there a utility already in there? Warrick: On the east property I don't believe there is, there is no easement on the east is there? LaGrone: The easement is across the front. On my lot the drainage easement is crossing that Board of Adjustment May 6, 2002 Page 11 side, it would make more sense to get the variance than go into the easement but I understand that process can be somewhat complicated and it was recommended that this is a much better process. Warrick: The west side of the property where the easement is located, it is combined. It is not just a utility easement, it is also a drainage easement which makes it a little bit wider than what the setbacks are between the two adjoining lots. It may be possible to adjust that lot line a foot to the east and eliminate the need for a variance. That would affect another property owner and it would certainly be another project application. Green: That is not something that we could do here today. Warrick: Right, that is not something that you have approval of. Nickle: He would have to basically negotiate to purchase that one foot strip from the property owner and then go through the lot line adjustment application process, etc. That is assuming the guy would do that. Warrick: Right, that is assuming that they would be amiable to that solution, yes. Nickle: Otherwise, his alternative would be to apply to vacate a foot of this utility easement, which would involve City Council approval and utilities. Warrick: Yes, City Council and all of the utilities and all of the City divisions that provide services. Whittaker: I can tell you that is not an easy process and the likelihood of success is not much. Warrick: In a brand new subdivision where the utility easements are just being laid out that is probably not a real possibility. Nickle: So more realistically, if he is to utilize this plan on this particular lot, the alternative would be to purchase a foot or get this variance, I mean the reasonable alternative would be one of those two things? Warrick: Yes Sir. Nickle: Ok. Orton: The fact that this is a roof and not the foundation makes me wonder about the importance of that foot. How high is that above the ground? Board of Adjustment May 6, 2002 Page 12 LaGrone: It is a one story house, I would guess it would be about 10'. Green: Basically, I think you could make an argument for meeting the hardship case in that you've already purchased the plans and have gotten those adjusted for your particular needs. There would be a certain financial hardship. Warrick: Although, that is not an option for you to consider. I understand that it is absolutely a hardship for the applicant because they have gone through that process but state law does not allow you to consider economics as a hardship. Whittaker: Alone, and then you also have to look at self induced hardship. In this case, that doesn't necessarily mean that you planned it with an intent to be over any bearings but I am curious, and Mr. Chair, if I may ask Mr. LaGrone one question. When you purchased the property, did your warranty deed not contain any reference to this easement? LaGrone: I have a copy of the deed, I don't know. Warrick: It is probably just an as platted lot. Whittaker: Of course you entered into your agreement before the plat was finalized LaGrone: Correct. I don't remember it saying anything in reference to that. Whittaker: It probably just had a stock phrase "As Platted", which leads to things like this. LaGrone: It was about a year ago, in April, May or March, something like that. He just called one day and said you're approved, bring us the money. So that is when we bought the lot and we started the house planning process with the builder at that point. Then we got to the time that we thought we were ready to build. Green: There is a nice large tree out in the front too. LaGrone: Yes, it is a nice lot. Green: Is there any other comment or discussion? Orton: Does it look as though talking with the neighbor might be the simplest solution to this about getting a one foot adjustment? LaGrone: I assume that would require his agreement with that, would it require a survey? I don't know. Board of Adjustment May 6, 2002 Page 13 Warrick: Green: It would require a survey because each of your lots will be changed in that you will gain a foot and they will lose a foot. It is an administrative application. The application fee is $200 and then of course, you would have surveying fees that you would be incurring if you choose to go through that application process. I don't foresee any real reason that we couldn't do an adjustment, but that would be your choice as well as working with your neighbor if it is something that they want to work with you on. It sort of looks like we are getting tied up in administrative red tape here because basically, either way we do this the house could get built at the same place, the adjacent neighbor is still agreeable to that, whether it is in the form of a 1' variance to their overhang or whether he negotiates 1' of the property line. It is still going to be just an administrative type thing. Warrick: Our biggest concern as staff is equitable enforcement of the zoning ordinance. That is the reason that we have a Board of Adjustment, to make consideration in unique circumstances. In my opinion as staff, it truly has to be a unique circumstance. When we are dealing with a piece of property that is raw, vacant, there is a lot of opportunity for being able to develop it under the R-1 zoning district. A single- family home can go on this property. I realize that there are covenants in this subdivision. The City can not enforce covenants, those are private agreements between property owners. It is just something that I wouldn't encourage someone to come for a variance if it is not something that we would not be wiling to grant to every single property within that subdivision that is in the same situation. Green: What is the general procedure in these plats. At what point are the new property owners actually apprised of all restrictions, utility easements, and things of that sort? Warrick: They can't be property owners until that plat is finalized, signed off by the City and filed of record by the Circuit Clerk's office. At that point you can transfer title to the property. Before that it is solely preliminary. The lot lines don't exist, they are merely lines on paper until that document is filed of record and the Circuit Clerk stamps it as officially approved. I know that a lot of developers, as this developer did, will speculate and work on sales contingent upon closing or sales contingent upon final. Until it is a final document the lots don't exist, it is all just one big piece of property. The easements are required to be shown throughout the process, whether they are shown on whatever document the developer is showing the potential buyers or not, we will probably never know. We always tell people who are requesting information on a preliminary plat, it is not final, it is not done until it is done and things can change. Easements are some things that do change on occasion because between the time that a preliminary plat goes through the review process and the time that a final plat does, the actual construction takes place and the installation of utilities takes place and sometimes there are things out on the site that Board of Adjustment May 6, 2002 Page 14 cause those utility easements to be relocated for some reason or another and it shows up at the time of the final plat being processed. Unless there is significant change in the way that lots are configured or the number of lots, typically that is not seen as a big issue. That is just something that happens in the course of development of a subdivision. Like I said, until the final plat is filed of record, everybody has signed off on it and it is official, those lots are not allowed to transfer title and they are not official until that happens. Whittaker: The biggest difficulty for you as a board, is the requirement that you make a specific finding of fact in order to grant a variance. Staff has determined, and the City Attorney's office concurred, that you can not make those findings in this case. It is just simply not the facts of the case to support a variance and that is why our recommendation is the way it is. We are not saying it is necessarily fair in the grand scheme of things, but it comports with the law and the law has very strict requirements for granting variances and that is why the recommendation is what it is. Green: On the other extreme though, if it is that cut and dry about whether or not there is sufficient fact, then it should be just automatic as an administrative thing and there is no need for a Board of Adjustment, right? Warrick: Our administrative action was to deny the completion of the project because it didn't meet the setbacks. Whittaker: And they are requesting a variance. It is our recommendation that the facts that need to be found, the uniqueness of the property, not of the building plan, is what you would have to look at and find. Nickle: I'm kind of reading between the lines but it almost sounded to me that you were telling us that we could not approve it. Whittaker: I'm not saying that. You certainly by your vote can vote anyway you want to. I can just say that our recommendation is based on the facts in the application and the law as it is written. The recommendation is also based, as Mrs. Warrick said, on the fear that once you've done this, you are saying that if it is an overhang the rules don't apply or if it is because of the way your plans were done, we are not going to enforce the setbacks. Obviously, in these things there is not a precedent value but it certainly looks a little inequitable if you grant one and then the next month you don't because you find that the facts don't support it and then the month after that you grant another one. People could begin to believe that the law is who you are and not what the law is when you come before these boards. That is staff's greatest worry is that there would be a sense that there wasn't equitable handling of these matters. That is why the law has set the standard for variances so high. Board of Adjustment May 6, 2002 Page 15 Orton: Now because this is also a utility easement, how much land will there be? Warrick: 15' as opposed to an 8' setback for the west property line. Olszewski: Exactly how big is this house? You mentioned that could be a unique thing. Green: 64' wide. Olszewski: I was wondering if the numbers given include the garage. Warrick: I will have to defer to the applicant for that information. LaGrone: The house with the three car garage is 64'. Olszewski: What is your square footage of the actual house? LaGrone: The house is just under 2,100 sq.ft. which is typical of what has been built so far in that neighborhood. Olszewski: So it is comparable to the one next door? LaGrone: It is almost exactly the same size. It is a two story house. Both of our parents are in their seventies and we want them to be able to get around in it. The house next door is a story and a half or two story, I can't remember but there are stairs. My understanding is, Dawn correct me if I'm wrong, if we take away the 65' width and the 64' wall width of the house, there are 6" on each side to play with, it is not enough to allow for roof overhang for both sides. Warrick: I think that is what I've reviewed. LaGrone: Rather than going through the easement situation, which seems fairly complicated I feel like this is the only option in my view. We missed the past deadline, we knew it was going to cost us time to find out, but this seems like the only thing for us. Orton: From this drawing, is there a utility easement on both sides of the house then? Warrick: No Ma'am, I think that drawing indicates a utility easement on the west and then just a setback on the east, an 8' setback on the east with a 15' setback and utility easement on the west is what is indicated there. Olszewski: Who is the developer? Board of Adjustment May 6, 2002 Page 16 LaGrone: Mark Foster. Olszewski: My concern, and I hear what you're saying, it seems reasonable to give it. My concern is other people coming in because there are a lot of empty lots over there, and that staff says no. That bothers me. Kunzelmann: I am also struggling with the slippery slope. As a school teacher I see what seem to be easy choices every day that turn out not to be so easy and it is not just the lots in this development, but lots throughout the City. Green: Are there any other questions or comments or motions? Orton: Should we give the applicant a chance to talk to his neighbor and put this off? Warrick: I don't know that that should affect your decision on a variance. If for some reason you choose not to approve, then they do still have that as an option. Orton: LaGrone, B: LaGrone: Orton: Whittaker: Ok, I see. I have one last comment. I think the uniqueness in our case is that we were going by the measurements which were given to us when we purchased the property. We didn't realize that they would come back and there would be a change until we went to get the building permit. We sized our house according to the original lot that we were given not having any idea that it was changed. The day that we went down to get our building permit was when we found out that this change came about. Therefore, it has just made it very difficult for us to swallow since it is such a major setback. If it was a couple of feet, we are talking inches, we are not asking for any special favors but it is just not a major thing and I don't think it would be right if somebody came along and the easement and setback was already set that they would ask for some kind of special allowance to build. We are just at the mercy of you guys obviously. It seems to me that it is kind of a common sense response, obviously I understand where they are coming from, they are doing their job by reflecting what they feel they read into the statutes and I have no issues with that. We would've never done this on purpose. We are just at the point now that it is a significant hardship on us obviously. It just seems like a common sense approach, it is a one foot overhang. When a developer sells the lots, I suppose there are no particular requirements of what he should tell the people he is selling the lots to or is that the marketplace? That is the marketplace and that would probably end up being arguments over contract obligations and responsibilities between the two parties that were Board of Adjustment May 6, 2002 Page 17 Green: Olszewski: contracting. We don't attempt to control the internal contents of people's real estate contracts. Is there a motion? I would just like to know if there is anything that is available in the City that people know about, like a piece of information that might say "Things You Should Know About Before You Buy and Build" because the developer is not required, his name is in the record, but there should be some accountability there. If we were to vote for it then nothing ever happens. Yet, I wouldn't want to vote against it just so the developer is just sort of out there with his reputation. Whittaker: That certainly should not motivate your vote. Olszewski: No, it wouldn't do that at all. But that would be going back to a proactive approach. Is there anything out there that is issued by the City? Could we do something about that for things you should know? Warrick: We answer questions everyday in the Planning Division, people calling in asking what they should know before they build on a piece of property or what their setbacks are. When they call we look up that particular piece of property and tell them if there are easements and what the setback requirements or what the zoning standards are. Olszewski: You do a really good job of that but a lot of people don't call. Whittaker: What probably stings the unaware the most is the presumption of the law that once these are recorded in the courthouse is a tricky legal concept called constructed notice. That means once published, once recorded at the courthouse, the law looks at it as presumption that everybody then has notice so that you can't come in and say "I didn't know." That is a hard thing in the ordinary world to understand but that is the way that the Courts look at it. They feel that once things are recorded, once things are published, depending on what the nature of the document is, people are thought to be, it is taken and presumed that they are, on notice that this is fact. Are they really? Obviously not. There are plenty of folks that go around everyday that don't know what got posted in the Court Clerk's office last week. I have a law degree and I am never very often tempted to sit and read the legal ads in the Sunday paper but they are in there for a reason because once they run like that, everybody is supposedly on constructed notice that their contents, either a hearing or the change of the zoning or whatever, once you get to court you can't say "I didn't know." Like I said, that is a hard thing and it sounds cruel, but that is 2000 years of Anglo American juris prudence. Board of Adjustment May 6, 2002 Page 18 Motion: Nickle: The Chairman is apparently looking for a motion so we ought to give him one so we can go home sometime. I am going to construe this a little bit on my judgment on what circumstances unique to the individual property might fall under. That is my guise at least I think there are a number of lots out there that wouldn't have a 15' utility easement and so while this may not be unique in the whole world, I think it is relatively unique for a number of lots in that subdivision, which wouldn't have a 15' utility easement on one side. With that round the world reasoning, I am going to recommend that we grant the one foot variance as requested. Warrick: I would recommend a condition if the Board chooses to approve this. Nickle: What was it? Warrick: If the Board chooses to approve this, the variance shall only apply to the portion of the overhang shown. Nickle: Yes, with that condition. Green: I have a motion, is there a second? Orton: I will second it. Green: We have a motion and a second to grant the variance with staff's recommendation of the number one item there, that it only apply to the portion of overhang shown, etc., that full paragraph there. Is there any further discussion? Call the roll. Roll Call: Upon the completion of roll call the motion to approve VAR 02-12.00 was approved by a vote of 4-1-0 with Mr. Kunzelmann voting no. Green: The motion passes by a vote of four to one. Congratulations. That concludes the Board of Adjustment meeting.