HomeMy WebLinkAbout2002-09-03 Minutes (2)MINUTES OF A MEETING OF
THE BOARD OF ADJUSTMENT
A regular meeting of the Board of Adjustment was held on Tuesday, September 3, 2002 at 3:45 p.m.
in Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas.
ITEMS CONSIDERED ACTION TAKEN
VAR 02-23.00: Variance (Blackwell, pp 445) Approved
Page 2
VAR 02-24.00: Variance (Nickle, pp 440) Approved
Page 5
ADM 02-31.00: Administrative Item
(Appeal of City Planner's Interpretation)
Page 8
Denied
MEMBERS PRESENT MEMBERS ABSENT
Michael Andrews
Joanne Olszewski
James Kunzelmann
Michael Green
Bob Nickle
Marion Orton
Sheree Alt
STAFF PRESENT
Shelli Rushing
Renee Thomas
Tim Conklin
David Whitaker
STAFF ABSENT
Dawn Warrick
Board of Adjustment
September 3, 2002
Page 2
VAR 02-23.00: Variance (Blackwell, pp 445) was submitted by Ati & Marlon Blackwell for
property located at 857 N. Woolsey Avenue. The property is zoned R-1, Low Density Residential
and contains approximately 0.20 acres. The requirement is for a 20' rear setback. The request is for
a 10' rear setback (a 10' variance).
Green:
We will call this meeting to order. I want to welcome all of you to the Board of
Adjustment meeting for September. You will have to excuse my voice, it is a little
clogged up today. Hopefully I won't lose it completely before we get through this
meeting. The first item on the agenda is the approval of the minutes of the meeting
of August 5th. Are there any corrections or additions to be made?
Olszewski: We aren't Commissioners are we?
Green: That is fine, we will elevate you as much as we can. Are there any other changes or
corrections?
Orton: I move the minutes be approved.
Andrews: Second.
Green: There is a motion and a second to approve the minutes of the meeting. All in favor
say ay, any opposed say no. The minutes are approved. The first new business on
our agenda is VAR 02-23.00 submitted by Ati & Marlon Blackwell for property
located at 857 N. Woolsey Avenue. The property is zoned R-1, Low Density
Residential and contains approximately 0.20 acres. The requirement is for a 20' rear
setback. The request is for a 10' rear setback (a 10' variance). Shelli, can you give
us the background on this?
Rushing: Yes. The applicant is requesting to construct an 1,800 sq.ft. home. The lot is located
just north of Wilson Park on Woolsey Avenue. It is approximately .20 acres. There
are a couple of unique things about this property. First of all is the shape. It is a
little bit of an odd shape. It is not your typical square lot size. It is also on a very
heavily wooded lot with many mature trees on it including white oaks, red buds,
persimmon, hickory and maple and then the other unique feature to this property is a
creek that is running through it. The creek is dry but it cuts diagonally through the
property, which does cause some challenges for trying to develop. As I mentioned,
he is wanting to building the 1,800 sq.ft. residence and there is a site plan in your
packet that shows you the proposed layout, it is on page 1.9. They are proposing sort
of an "L" shaped structure that would go over the dry creek and where they are
proposing to locate it, they are trying to push it back a little bit to save as many trees
as possible and in order to do that they would be encroaching into the required rear
20' setback so they are requesting a 10' variance in order to place that structure at the
Board of Adjustment
September 3, 2002
Page 3
proposed location. Because of these three unique features on the property, we are
recommending approval of the 10' rear setback on the condition that the Engineering
Division take a look at the site plan before building permit is issued. I have just a
brief comment from our Landscape Administrator in regard to the trees. She did go
out to the site and she found that most of the trees on there are of good health and of
good structure. There is quite a good mix and there is one significant 24" diameter
oak, she says it does have a sparse canopy but it is in pretty good structural
condition. I think that overall she felt that anything that the applicant could do to try
to preserve these trees would be beneficial to that site.
Green: Would the applicant have any comments or like to say anything in addition to what
we have heard?
Blackwell: No, except that we are both architects and we have looked at the site backwards and
forwards and upside down and we feel like the scheme that we are proposing is the
most sensitive to all of the different issues. I hope that you will see it our way. We
have looked at it quite extensively. We have looked at going two floors all the way
and it hits the tree canopy so we found the place that is going to work best I think for
the trees, for the creek and everything and we only came up in the letter we sent, but
of all the trees that are there, we are only going to be eliminating one tree in
constructing the house and we will be putting in a pier foundation to save the roots,
to be sensitive to the root structure of all the trees that are on there as well. We are
trying. We will be stoning the creek with natural stone. One of the problems right
now with the creek is there is a lot of standing water after it rains because it doesn't
drain very well and that of course creates mosquitoes, every neighbor I've went to
has a problem with that, we are going to be addressing that as well.
Green: Your name for the record?
Blackwell: Marlon Blackwell.
Green: Would anyone else like to address us on this issue?
Ricketts: My name is Tom Ricketts. Yes, I live on Cleburn and border here and the
mosquitoes are horrible. Most of my land is going to that creek.
Blackwell: He borders the rear of our site.
Ricketts: I am all for it, anybody that is going to build a new house over in that district and
take care of that mosquito problem, it is really bad, it is really bad. If anybody
doesn't believe me go over there 15 minutes before dark and sit 15 minutes on my
patio. It would be crazy not to and he showed me his whole plan and we are going to
Board of Adjustment
September 3, 2002
Page 4
go in on a privacy fence between us. I understand the problem involves me and I am
all for it.
Frankenberger: I am Steve Frankenberger, I am Vice Chairman of the Wilson Park Neighborhood
Association. Mr. Blackwell made a thorough presentation to us at our last committee
meeting and we are unanimously in favor of it. We think it is a good use for that lot.
Anytime people are building single-family dwellings in our neighborhood we think
that is a good thing.
Green: Would anybody else like to address the committee?
Olszewski: Some of the trees are marked with tags, what is that?
Blackwell: Dave Jorgensen surveyed our site so that we could make an informed decision about
how we are going to do it. Those are not trees to be removed, those are just trees that
we wanted located on our topo plan. We have been asked that before and fear not.
Green:
Kunzelmann:
Olszewski:
Green:
Roll Call:
Green:
Does anyone else have any questions or comments?
I move for approval of VAR 02-23.00 with staff recommendations.
I will second.
I have a motion and a second to approve the variance request based on staff
recommendations, is there any further discussion? Call the roll please.
Upon completion of roll call the motion to approve VAR 02-23.00 was approved by
a vote of 7-0-0.
The motion passes.
Board of Adjustment
September 3, 2002
Page 5
VAR 02-24.00: Variance (Nickle, pp 440) was submitted by Charles Nickle and Robert Nickle for
property located between Marvin Avenue and Betty Jo Drive south of Wellington Drive and
contains approximately 0.37 acres. The requirement is for 50' front setbacks on three sides. The
request is for a 45' front building setback on the east and west sides (a 5' variance) and a 7'
landscape setback on the east side (an 8' variance).
Green:
The next item on the agenda is VAR 02-24.00 submitted by Charles Nickle and
Robert Nickle for property located between Marvin Avenue and Betty Jo Drive. The
requirement is for a 50' front setbacks on three sides. The request is for 45' setback
on the east and west sides, which is a 5' variance and a 7' landscape setback on the
east side, which is an 8' variance. Shelli, can you bring us up to speed on this?
Rushing: Sure. This property is located along Wedington Drive. It is just west of I540 in the
Maple Terrace Subdivision. The property is approximately 16, 000 sq.ft. and as you
mentioned it is bounded by Betty Jo Drive on the west, Marvin Avenue on the east
and the property is zoned C-1, Neighborhood Commercial and the city's General
Plan does designate it as Community Commercial. The northeast and west adjacent
properties are currently being used as commercial and also are zoned that way. The
property to the south is multi -family residential apaitments. The applicant is
proposing to construct a 2,300 sq.ft. Laundromat on the site. They are proposing two
24' access drives, one on Betty Jo Drive and one on Marvin and the applicant is
requesting a reduction in the front setback requirements for Betty Jo Drive and
Marvin Avenue in order to get all the parking that they need as well as the size of the
structure that they are proposing. They are also requesting a reduction in the
landscape setback in order to implement their site plan. They do meet the parking
ratios. We have a requirement of one per three machines and they are proposing 42
machines so they have all the parking that is required. The other issue that has been
brought to our attention is that the proposed street right of way lines for Wedington
Drive and Betty Jo Drive are less than what our requirements are. For Wedington
Drive, which is a principal arterial, we require a 55' dedication from street centerline
and the applicant is proposing 40' and on Betty Jo, which is a collector street, has a
70' right of way dedication, 35' to centerline and they are proposing a 23' right of
way dedication. In order to have those rights of ways reduced they need to go to the
City Council in order to get that approved. Because of the uniqueness of the site
with it having frontage on three roads it really creates a unique situation when you
have got a 50' setback requirement. We are recommending approval of the setback
variances as well as the landscape variance. I wanted to pass this around to you, it is
another finding from Kim Hesse, our Landscape Administrator. She has taken a look
at the site and feels that the reduction of the 15' landscaping along the Marvin side
would be appropriate because of the characteristics of the site. We are
recommending this approval with a couple of conditions. First of all that they
provide 24' drives between the parking spaces and the structure to allow for two way
Board of Adjustment
September 3, 2002
Page 6
traffic flow. That was one of our original conditions. I was made aware of that after
the reports were already drafted, the site plan has been provided to you on page 2.13
that on the east side of the structure they are proposing a drive thru drop-off area and
I do want all of this to be one way around the parking lot. They would not
necessarily need a 24' drive in there but the access drives need to be the 24', which
they are. That condition can be removed and second of all they need to receive
Planning Commission and City Council approval of the right of way setback
reductions.
Green: Ok, are there any comments of the applicant?
Nickle: I will abstain Mr. Chairman.
Nickle: My name is Charles Nickle and I would like to make a couple of comments. Since
we have owned this property the city has changed the collector street designation for
Betty Jo. It didn't used to be a collector street because apartments have been built
back there and Wedington used to be a two lane road when we bought the property.
The highway has come and taken property from us, most recently for the widening to
four or five lanes now. At one point we had an access onto Wedington from the
front. When they came back and took the additional right of way we talked with
Alett Little in looking at developing the property and she said that the city wouldn't
approve any kind of entrance off Wedington and I understand that. We had to look
at what do we do with this property, it just seems to be getting smaller and smaller
through no fault of our own and this is about the second or third commercial use we
have looked at for the property. The proposed owner of the Laundromat is here and
we looked at trying to increase areas of landscaping, since we are asking for a
variance, trying to add landscaping where we can outside of the 15' strip around the
front. As you see, we have added some areas over there by the handicapped parking
and then over to the west side next to space 13, between 13 and 14 we have brought
that out a little bit and then we put the 5' landscaping all around the back adjacent to
the multi -family. One of the comments that we heard from the staff was that they
were a little concerned about the 20' width on the east side that we are proposing
since the proposed owner of the Laundromat would want to have a drive thru and
drop off there. We could actually shift that building 4' to the west and get a variance
of 9' on the west side and only 1' on the east side as an option. We are flexible
within whatever we can work with as far as maintaining that use on the building. I
guess those are the only points that I would like to make at this time.
Green:
Smith:
Ok. Does anyone else have any comments?
My name is Dallas Smith and I am the proposed owner of the Laundromat. They
have worked with me very closely to try to come up with a right plan that will utilize
Board of Adjustment
September 3, 2002
Page 7
the right size building for my Laundromat and still meet as many of the
requirements, setbacks, etc. that are needed for the city. We are trying to get the best
of both worlds and still use the property to a good advantage I think the work they
have put in on it has been very extensive as far as trying to make sure we are meeting
as many requirements as we can and still try to get the Laundromat building at the
size that we are talking about and the proposed size there, that includes all
overhangs, etc. so there won't be anything outside those perimeters.
Nickel: In other words, the building is actually smaller than 2,300 sq.ft., even though it says
2,300. That is just the perimeter that you can't extend past.
Green: Ok, the drip line. Does anyone else have any comments, anyone on the committee?
Orton: I just noticed there was another Laundromat just next door.
Smith: I am the owner of that Laundromat. I am actually planning to move the existing
location across the street. I am not going into competition with the one next door, I
am the one next door. We are wanting to relocate.
Motion:
Andrews: I move for approval of VAR 02-24.00 with staff recommendations.
Olszewski: Second.
Green: There is a motion and a second to approve the variance request with staff
recommendation of Planning Commission and City Council approval of right of way
setback reductions. Is there any other discussion? Call the roll please.
Roll Call: Upon the completion of roll call the motion to approve VAR 02-24.00 was approved
by a vote of 6-0-1 with Mr. Nickle abstaining.
Green: The variance passed.
Board of Adjustment
September 3, 2002
Page 8
ADM 02-31.00: Administrative Item (Appeal of City Planner's Interpretation) was submitted
by Bob Hill on behalf of J.C. & Alma Nickell. The UDO does allow Use Unit 18 (Gasoline Service
Station and Drive -In Restaurants) in C-1, Neighborhood Commercial zoning. The City Planner has
determined that the proposed use is automotive repair and service which is not included in Use Unit
18. The request is for a different interpretation of Use Unit 18 to allow automotive repair and
service.
Green:
The next item on our agenda is an administrative item, which is an appeal of the City
Planner's interpretation. This was submitted by Bob Hill on behalf of J.C. & Alma
Nickell. The UDO does allow Use Unit 18 (Gasoline Service Station and Drive -In
Restaurants) in C-1, Neighborhood Commercial zoning. The City Planner has
determined that the proposed use is automotive repair and service which is not
included in Use Unit 18. The request is for a different interpretation of Use Unit 18
to allow automotive repair and service. Tim, can you give us the background on
this?
Conklin: Thank you. I am Tim Conklin, the City Planner. I think most of you I have met, I
haven't been up here in a while, I have my staff present the Board of Adjustment
items. This appeal is being brought to you under § 155.06 of our Unified
Development Ordinance Title 15, Appeals From Staff Interpretations and Actions.
Under that § 155.06(B)(1) Appeals from Staff Interpretations and Actions states that
any person aggrieved by an interpretation or decision of the City Planner regarding
zoning matters may appeal. That is to the Board of Adjustments. That is why this
appeal has been brought to you and not the Planning Commission or the City Council
because it is set out in our city ordinances for appeals of any interpretations that I
make to the Board of Adjustment. From there they would go to court. They would
not be appealed to the Planning Commission or the City Council. What I have put
together this afternoon in the staff report is the interpretation that I have made and I
have also included findings and I will go through those findings with you at this
time. Our office was approached by Mr. Hill with regard to what use unit is needed
in order to establish an automotive lube and tune type business. We looked at our
Unified Development Ordinance under our zoning classification and made a
determination that it was Use Unit 17, Trades and Services and was not allowed
under Use Unit 18, Gasoline Service Stations and Drive -In Restaurants. On page 3.1
of the staff report, the first page, I do have in writing the interpretation that I have
made as the City Planner. That is an automotive lube and tune service and repair
business is a use that is classified under Use Unit 17, Trades and Services,
Automotive Service and Repair. That is our interpretation. We have been consistent
with that interpretation. You may hear today about the rezoning application that has
gone forward and what has happened in the past back in 1970 and throughout the
early 70's and other actions within this neighborhood. However, it is my
interpretation looking at this code, the issue today is does the Unified Development
Board of Adjustment
September 3, 2002
Page 9
Ordinance allow an automotive service type business and a lube and tune under Use
Unit 17, which is specifically listed or is it close enough to a gasoline service station
that you can overrule my interpretation and say that it is the same as a gasoline
service station and therefore, they can have the use allowed in C-1. Those are the
two actions or decisions that you will have to make, whether or not to uphold my
interpretation or overrule my interpretation and reclassify that use into Use Unit 18.
On page 3.2 I set out in the staff report once again how I made this interpretation
with regard to findings. Finding number one states under §162.01Q, Unit 17, Trades
and Services Title 15 of the Unified Development Ordinance provides the following
description. This is verbatim from our code. "Unit 17 consists of establishments
engaged primarily in providing household and automotive maintenance and similar
services which fulfill recurrent needs of residents of nearby areas that are generally
incompatible with the primary retail districts because they break the continuity of
retail frontage." The finding that I made under that Use Unit 17 which is the use unit
that we believe it falls into, is a lube and tune business provides automotive
maintenance which fulfills the recurrent needs of residents as clearly stated in Use
Unit 17. That is the first finding that I made. Finding two, § 162.01 establishment of
listing title 15 of the Unified Development Ordinance states the following: "The
various use units referred to in the zoning district provisions are herein listed in
numerical order within the use units. The permitted uses are ordinarily listed in
alphabetical order and these use units where there is a preliminary descriptive
statement which may mention specific uses in addition to the detailed list of uses, the
detailed list shall govern." The finding that I made is that automotive service and
repair is specifically listed in the detailed list under Use Unit 17. What we did, once
again, we checked use units to try to determine if that use was specifically listed in a
detailed list and it was listed under that use unit. Finding three, §162.02(B)
Interpretation of Title 15 of the Unified Development Ordinance states the following:
B. In any case where there is a question as to whether or not a particular use is
included in a particular Use Unit the City Planner shall decide. A use shall not be
interpreted as being in any use unit if it is specifically listed in another use unit in
this chapter. Once again, a lube and tune is an automotive service and repair, which
is specifically listed in Use Unit 17 which is not allowed in a C-1 zoning. Going to
page 3.3 finding four, § 163.18, I have included the section on gasoline service
stations of Title 15 of the Unified Development Ordinance which describes a
gasoline service station as the following; I am not going to read through this whole
descriptive bulk and area regulations but I did include it because it does list
individual items that you would find at a gasoline service station and I put those in
bold. A pump island for your gasoline pumps, a canopy covering a pump island. It
kind of gives you the idea that a gasoline service station typically has pumps and
canopies covering gasoline pumps. That is the purpose of finding four. Since it was
in our Unified Development Ordinance I thought it might be helpful to the Board of
Adjustment to kind of look at that and understand what is a gasoline service station
Board of Adjustment
September 3, 2002
Page 10
within those standards. Finding five, Chapter 151 Definitions, Title 15 of the
Unified Development Ordinance defines filling station as the following. It talks
about buildings and premises where gasoline, oil, grease, batteries, tires, and
automotive accessories may be supplied and dispensed at retail, and I've underlined
this next part, where in addition the following services may be rendered and sales
made and no other. I think it is important when it says in addition. It is not talking
about the primary use being automotive repair and service, it is talking about in
addition to a gasoline service station these uses are allowed. Number six does
mention greasing and lubrications, which is similar to what is being proposed by the
applicant. Finding six, the applicant has stated that the proposed use is for an All
Tune and Lube. I have gone to the website and did print out their home page for All
Tune and Lube. The finding that I made with regard to that web page, the
information from the tune and lube franchise website states nothing about sales of
gasoline and clearly states that this use is an automotive maintenance and repair
business. Based on those six findings, that is how the interpretation was made that
Use Unit 17 is the use unit that would allow for an automotive lube and tune
business. We did include in your packet on page 3.6 the C-1 district, Neighborhood
Commercial, which lists the use units allowed in that zoning district. On 3.7 is Use
Unit 17 Trades and Services. If you look under number two up in the right hand top
it says included uses and then it has a descriptive statement, retail trade
establishments general. At the very top it states automotive sales, services, and
repair including body shop. That is the part in that use unit that I am classifying a
lube and tune service type business. On 3.8 in the middle of the page, left hand side,
Use Unit 18 Gasoline Service Station and Drive In Restaurants provides a
description. Gasoline service stations and drive in restaurants can be significantly
objectionable to nearby uses so therefore have only been allowed in districts where
necessary to provide this use and it lists gasoline service stations. That is the use unit
that the individual, Mr. Hill, who is appealing my interpretation would like lube and
tune type use to be classified under Use Unit 18, Gasoline Service Station. I did
include the information provided by the applicant on page 3.9, their site plan which
they submitted to the Planning Commission. There is also a letter dated August 18`h
from the applicant, from Mr. Hill. I will let Mr. Hill, who is appealing my
interpretation, go through his arguments. On page 3.14 is the All Tune and Lube
web page. I did underline a couple of sentences or words within that document.
Basically high quality maintenance and repair services under All Tune and Lube, a
franchise providing the finest service available in the automotive maintenance and
repair industry. Once again, we are trying to make sure I understand what uses fall
within what zoning districts using our Unified Development as the actual ordinance
to help make my interpretations. When it states that I don't have the ability to move
uses that are listed within individual use units into other use units it pretty much ties
the City Planner's hands with regard to if it is listed in a use unit then that is the
zoning district that they must have in order to establish that use. That is how I have
Board of Adjustment
September 3, 2002
Page 11
Green:
interpreted the code since I have been City Planner and I will continue to interpret
the code in that manner. If you have any questions of me I would be more than
happy to answer them at this time. Thank you.
Just one question Tim before we open it up for further discussion. As I understand it,
this committee needs to make a ruling on whether your interpretation should stand or
not. Should we vote to go with the applicant's scenario then the choices for the
applicant would be to go back and request a rezoning to C-2 with those other
stipulations about only serving as an automotive repair and service or appeal directly
to the Circuit Court.
Conklin: If you uphold my interpretation and the property is rezoned to C-1 they will not be
allowed to establish that use. The recourse isn't to court. If you overrule my
interpretation I would just ask that you provide enough information to staff with
regard to how much automotive service and repair are we allowed under Use Unit 18
and does that include transmission service or carburetor service. This will not only
impact this one site but will impact all C-1 zoning districts in the City of Fayetteville.
I just need it to be clear if we think it is a gasoline service station, it is close enough,
what does that actually mean when they don't have gasoline. If you, as the Board of
Adjustment, overrule me I would just ask that so at least I have some clarification so
I don't have every automotive repair service type use coming in my office and
requesting a permit under C-1.
Green: Ok, would the applicant like to do a presentation?
Hill: Yes. I am Bob Hill, I am with the Nickle Hill Group. I represent the owners of this
property and I would like to start off with saying that we are appealing to the Board
of Adjustment to overrule Mr. Conklin's interpretation, we are not challenging his
interpretation. He has got a very difficult job, as he just pointed out, to interpret
what I think is a dated ordinance. That is something that I think everybody would
agree with. You all are on the Board of Adjustment and you see this all the time I'm
sure. It is an ordinance that needs to be updated to bring it up to our current times.
Use Unit 18 allows for gasoline service stations and that basically is a dinosaur. I
think we have two of them in the City of Fayetteville and I don't know if they are
full service anymore or not. To the best of my knowledge there are only two of them
left in Fayetteville. I am sure you all remember the old days, I know I'm old enough
to remember when we could drive into a gas station and get a tank full of gas and
clean your windshield, check your oil, give you air in your tires if you needed that.
That was great but that is a thing of the past. That gasoline service station has
evolved into two separate things really. The gasoline service station doesn't exist,
instead we have convenience stores for the most part that are providing the sell of
gas. They also have a bunch of other things in there, including oil if you want to buy
Board of Adjustment
September 3, 2002
Page 12
it, but you have to put it in yourself. That is one branch of that evolving business
that for the most part no longer exists. Then the other branch of what is left of the
old gasoline service stations are the service industries, all those people that provide
oil changes, transmission service, brake service, muffler service, or a combination of
those things. Those have evolved into service but they still locate in neighborhoods
so that it is convenient for the people in those neighborhoods to use them to get their
car serviced. It is our contention that Use Unit 18 is part of an outdated ordinance.
Another example of how things evolved, it wasn't that long ago that my office was
before the city, we had a tenant that wanted to rent a space to put in a silk screen
shop. At that time Alett Little was the City Planner and she looked and it was not in
there. It didn't address what a silk screen shop was. We had an interpretation of
what it should be and we had our interpretation and she had her interpretation of
where a silk screen shop should lie, within what ordinance. That is an example of
how things change and as business evolves the ordinance has to be changed and if it
isn't changed you have to have a different interpretation. Tim has got a difficult job
going back and piecing together all the different pieces of the puzzle and trying to
find out where things lie. It is our interpretation that if a gasoline service station was
allowed within C-1 then certainly a building that was built and designed to be a
gasoline service station should continue to be able to operate as a service station and
not sale gas. That is where we disagree.
Frankenberger: Steve Frankenberger once again, Vice Chair of Wilson Park Neighborhood
Association, which his property is technically within our borders. First I want to
establish that my neighborhood association has ever come to this board or the
Planning Commission or the City Council opposing anyone's proposed use of their
property. We are not a bunch of nimby's that say "Yeah, that is fine but not in our
backyard." We have embraced several zoning changes, several conditional uses. I
just wanted to kind of make that point first off. The second point I would like to
make is that this property is currently zoned R -O and that they have gone to the
Planning Commission and the Planning Commission approved a C-1 ordinance. I
want to state for the record that we are opposed to that zoning being changed to C-1.
What you are being asked to do is to move part of a C-2 use into the C-1 zoning.
My neighborhood is faced with a zoning going from R -O to C-2 in one swoop in one
lot. I think this is counter to our 2020 plan where we say we want to have transition
zones. Here is a difficult one. We have got College Avenue on one border and a
residence on the other border of this lot. We have got one lot to get a transition zone
in there. I think going to technically a C-2 usage in one swoop right next to a
residential lot is not good planning, it is inconsistent with the 2020 Plan and it is
certainly not good for our neighborhood and we oppose it Thank you very much.
Green: l don't think it is within the scope of this committee to consider the rezoning portions
of it but merely the interpretation.
Board of Adjustment
September 3, 2002
Page 13
Reddig: My name is William Reddig, this is my wife Dorothy. We live kitty corner across
from this property over on the corner of Pollard and Cleburn at 44 E. Cleburn and I
wanted to say that we support City Planner Conklin's position on this that the lube
and tune service and repair business is really not allowed within Use Unit 18. That is
very clear under the Unified Development Ordinance. Just to give you a little bit of
context here, the All Tune and Lube is not just a regular flow through change your
oil kind of place. There is no parking lot for place like this. The emphasis is on the
All Tune working on your engine and brake jobs. Also, I went to the interne but the
All Tune and Lube are looking for franchisees have what they call a motor mate
module where it is easy to expand to do engine changes and also all tune
transmissions as you can see over here. This is a normal expansion that they are
pushing for to not have just a gasoline station type changing your oil, doing a little
bit of work, but it is a big heavy duty work with changing engines or transmissions in
there. The other point that was kind of expressed by Steve Frankenberger, we are
really not just neighbors that are close and that are objecting to this. It is really an
overall change that will affect the neighborhood there. The Wilson Park
Neighborhood Association did vote at it's annual meeting unanimously against a
change like this. One of the things of course is while this is a zoning in an R -O,
Residential Office anyway that flows for several blocks there and you may have it in
some of your files, but it goes back to the 1970 zoning changes in which these
several blocks that were narrow on the lots and also it rises quickly and then abuts to
a neighborhood so closely there that it was in a way, a special case. Certainly the
businesses that are there by and large reflect that with a chiropractor and doctors and
dentists. You have a wallpaper place and a flower shop and quite a variety of really
residential neighborhood type businesses. This particular property is very narrow
with a very little setback and it caused great traffic problems when it was operating
there and we think this will just increase it. My wife has maybe a little more
perspective on the traffic situation. It is bad.
Reddig: I am Dorothy Reddig and I just harking back to 1970 mentally. The property there is
quaint and it sits on College and Pollard and Cleburn, where we live at 44 Cleburn.
It certainly did what it was supposed to do in that time. Now when SUVs and trucks
park there on either side, because there is a wallpaper store, they will often overhang
onto Pollard. Pollard is not defined completely. There is gravel and some street
conditions there. When you travel through both the Pollard intersection, which is a
stop, and the College intersection you may have to zigzag some of the overhang. Of
course right now Nicks is not in operation. When it is, when they haul in cars they
have no way really between College and Pollard on Cleburn to make their turns
adequately and park their vehicles to be worked on. I just foresee the largeness of
vehicles. I am sure in past times small cars could operate in that corner and that is all
I have to say. Traffic is a situation there.
Board of Adjustment
September 3, 2002
Page 14
Green: Ok, does anyone else have any comments in the audience?
Singleton: My name is Steve Singleton. I have lived on Highland Street on the opposite corner
so to speak, from Nick's for some years. My concern is that there has been in the
past a speed shop there. My understanding is that if this is allowed to be a service
station repair facility that there is nothing to prevent a speed shop from locating there
again or engine rebuilding, or transmissions. That just doesn't seem to be an
appropriate use for the neighborhood, for the parking. I would urge that we don't go
in that direction.
Green:
Just one other question to clarify something. The Planning Commission in their
recommendation to seek the C-1 designation. Were they leaning toward rezoning
this to C-1 or has it gotten that far?
Conklin: The request was for C-2. They amended the applicant's request and recommended to
the City Council the C-1 zoning. That is on tonight's agenda. At the same time, we
had a discussion with regard to the City Planner's interpretation and who can make
that change. At the Planning Commission we had this discussion, if you want to
overrule the City Planner it goes to the Board of Adjustment so at that time they
directed Mr. Hill to file an appeal to the Board of Adjustment. I have also explained
this to the City Council because I don't want the City Council meeting tonight to be a
discussion of whether or not it is allowed in Use Unit 18 or Use Unit 17 and they
need to focus on whether or not it is appropriate for C-1 zoning. I am trying to keep
the issues completely separate.
Green: If we ratify your decision, the C-1 zoning is not going to be really appropriate for the
application that they are trying to use, is that correct?
Hill: When we first started this process we met with Mr. Conklin and Ms. Warrick and
talked about what we would have to do. It was our interpretation back then that we
should be able to do this. We thought that the property was zoned C-1 at that time by
the way. On the zoning map it shows it as C-1. There was another mistake on the
zoning map but it is really R -O. We were in his office to confirm that we could
operate an automotive repair and service station in C-1 as we interpreted it. He said
"No, that takes C-2." That is when we got into this discussion. We had originally
applied to the Planning Commission for C-2 zoning but limited, we were going to
give the City a Bill of Assurance saying we will only allow those uses allowed in C-1
plus automotive repair and service. That is how we ended up here. Somebody made
a motion that we be approved for C-1 and get a different interpretation. If we get
turned down here we will still go forward and try to get C-1 and do the best with
what we have got but we would still prefer to have the different interpretation.
Board of Adjustment
September 3, 2002
Page 15
Green:
Orton:
Conklin:
Ok.
Right now the zoning is R -O? Are there other R -Os along there? This is on College
and it is up a slight hill, is that right?
It is sloped. I am not sure that it is a hill. The neighborhood is pretty flat. As you
are driving down College the next lot to the south then jumps up the hill. Some of
the history of the zoning, in 1970 they changed this entire block to R -O zoning.
There has been at least one C-1 zoning across the street, which is back to the north.
The rest remains R -O.
Orton: I am familiar with this. I used to take my cars there. Now evidently there has been a
change in the business, is that it? Was it non -conforming then?
Whitaker: It was abandoned.
Orton: I see, so now it is a matter of getting something conforming or changing the zoning,
and now it is the definition of it?
Conklin- Yes. If Nick's never went out of business or kept an automotive repair business
there and they didn't discontinue it more than six months, then they could go back in
and reestablish that business. Since it has been out of business longer than that now
we are having the R -O zoning. Only those uses allowed in an R -O can be established
in that location.
Olszewski: Tim, if itis true that this code is outdated, whose job is it to update it?
Conklin: I am not sure. When you say it is outdated, that is his opinion.
Olszewski: If his opinion is true and it is outdated.
Conklin- The City Council amends all ordinances. It would be their policy decision. I have
told the City Council that and the Planning Commission. If they want to amend the
use units and list particular uses within other use units they can do that. When the
ordinance specifically lists a use unit then we shouldn't just be moving around these
uses. There is a way to go about it and it is a policy decision that the City Council
has to make.
Whitaker: Just for the record, a couple of points. On your question, there is a presumption in
the law that says we would prefer that such changes be made by a legislative body.
If there is a problem that is the proper venue to address that. If your consideration
Board of Adjustment
September 3, 2002
Page 16
today is having to take it as it reads now. Not what it should read or what anybody's
opinion is that it might be. Those are certainly proper arguments to the Council.
That is why it should be changed, because it is no longer current I think there is a
preference for that to happen there rather than any administrative boards. Second
point is Tim had quoted to you from our ordinance that governs this particular
proceeding for Boards of Adjustment. It actually comes from the state statute,
§14.56.416, one of your two duties other than hearing requests for bulk and area
variances, is very specifically "The board shall have the following functions: A)
Hear appeals from the decision of the Administrative Officers in respect to the
enforcement and application of the ordinance and may affirm or reverse in whole or
in part, the decision of the Administrative Officer." What I have underlined there is
enforcement and application of the ordinance. We use the term in our appeals
ordinance questioning the interpretation, and that is certainly another way of looking
at it. I don't think what that is talking about is what the ordinance should be but
rather what is in front of you, your judgment call as to what that means. Other than
that I can't give you any legal advice because it really is going to be a judgment call.
You have to decide which side made the best case.
Conklin: I have to make decisions or interpretations everyday. Mr. Hill did give an example
of a new use that came up and was not listed. I have to also make those type of
interpretations. When it is listed in the code it makes my job a lot easier. I believe
that when it states automotive repair and service it is listed. I am not trying to figure
out where a use like a silk screen printing shop is supposed to be listed. You have to
make some type of interpretation for that use whereas, when I have uses listed then I
can look to that code and those use units and follow the law. That is what I am
trying to do in this case. I think it is a little different between having a use that is
brand new, that has never been listed, to a use that is in the code and listed. Thank
you.
Hill: Can I make one more statement? Again, it is our interpretation that a gasoline
service station, if you will recall back when those gasoline service stations were
there, they sold gasoline and it provided service. What you did at those gasoline
service stations if your car needed serviced, whether it is an oil change and a lube job
or whether it's a new muffler, or transmission or whatever, that is typically where
you took it. That business has evolved so that now you have two different branches
of that business. That is where we differ our interpretation of that. We think that
gasoline service station has gone two different ways but it should still be applicable
under the same use unit.
Green:
Wouldn't you think though that the way that the gasoline stations have evolved that
they have been more retail gasoline oriented and less repair and maintenance
oriented. Isn't that just further widening the gap between Use Unit 18 and Use Unit
Board of Adjustment
September 3, 2002
Page 17
17? When the gasoline resale stores are in Use Unit 18 but yet the repair and
maintenance part of that is now more in line with Use Unit 17 it looks like in the way
that has evolved. Am I missing a point there?
Hill: I guess it is whether we use the word service in there and what that word really
means. I don't know, I didn't write the ordinance and I don't know what they
intended when they put the word service in there. That may mean that you get out
and service your car with gas yourself, I don't know. My interpretation of service is
that there is some services that are provided there. It is not just buying gasoline but
also some services. I don't know if that was the intent when that ordinance was
written but if it was, then it appears to me that that service oriented business should
still be allowed under that use. I understand where Mr. Conklin is going with the
Use Unit 17 and automotive repair and service and that is all that it does but my
interpretation of Use Unit 18 encompasses all of that, where you can buy gas but you
also have this place where you can get all this service to your automobile but they
just don't do that anymore. Now you have the people that provide gas and the people
that provide service and it all should fit under the same Use Unit.
Singleton: One of the things to me that distinguishes a service station from a repair facility is
how long the vehicle stays there. If you have got a service station and something
comes in, they make a commercial transaction and they go away. When you have
got a repair facility, and this was the problem at Nick's Conoco, there were cars
stacked up around the property, impeding the views going onto College and it is the
long term duration aspect of the repair facility that really poses the problem.
Green:
Alt:
Are there any other opinions?
We are here today to interpret or to vote on Tim's interpretation on what we have in
front of us right?
Green: Right.
Alt: Ok, so that is our decision, nothing else at this point, is that correct?
Conklin: That is correct.
Alt: Ok, thank you.
Green: Just one other thing, in trying to boil this down in my mind, it looks like one of the
key points might be whether the service is an incidental part of a different use unit.
In other words, the gasoline service station of the older days, the gasoline retail sales
was the primary use of that. The actual maintenance or repair was more of a
Board of Adjustment
September 3, 2002
Page 18
secondary use. Especially now, it is certainly a secondary use if it is even visible
anymore. It sort of seems to me like that is one of the main points there is whether it
is incidental. Incidental use of gasoline service stations or whether the repair and
maintenance should stand alone on its own in Use Unit 17.
Olszewski: I make a motion to uphold the City Planner's interpretation of the U.D.O. zoning Use
Units.
Kunzelmann: Second.
Green: I have a motion and a second to uphold the Planner's decision on this, is there any
further discussion? Call the roll please.
Roll Call: Upon completion of roll call the motion to uphold the City Planner's interpretation
was approved by a vote of 6-0-1 with Mr. Nickle abstaining.
Green: The motion passes. I believe that is the last regular item on our agenda. Is there any
other business that should come forward at this time or any announcements? Ok, we
stand adjourned.