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HomeMy WebLinkAbout2003-06-02 MinutesMINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT A regular meeting of the Board of Adjustment was held on Monday, June 2, 2003 at 3:45 p.m. in Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS CONSIDERED ACTION TAKEN VAR 03-11.00: Variance (Don Ginger, pp251) Not Heard VAR 03-16.00: Variance (Duncan Avenue Apartments, pp 561) Approved Page 2 VAR 03-17.00: Variance (Benton Place Apartments, pp 366) Approved Page 6 VAR 03-18.00: Variance (Beard, pp 254) Approved Page 9 MEMBERS PRESENT MEMBERS ABSENT Sheree Alt Michael Andrews Joanne Olszewski James Kunzelmann Bob Kohler Michael Green Bob Nickle STAFF PRESENT STAFF ABSENT Dawn Warrick Renee Thomas Jeremy Pate David Whitaker Board of Adjustment June 2, 2003 Page 2 VAR 03-16.00: Variance (Duncan Avenue Apartments, pp 561) was submitted by Mandy Bunch on behalf of James Mathias of Mathias Rentals for property located west of Duncan Avenue and north of 12th Street. The property is zoned R-2, Medium Density Residential and contains approximately 1.534 acres with 36 units (60 bedrooms) and 66 parking spaces. The requirement is for 90 linear feet of frontage. The request is for a 46 linear foot frontage (a 44' variance) to accommodate dedicated parkland associated with the project. Green: Kunzelmann: Olszewski: Green: Olszewski: Green: Warrick: It is now 3:45 and it is time to call our meeting of the Board of Adjustment to order for the month of June already. The first item on the agenda is going to be consideration of the minutes of the May 5, 2003 meeting. Are there any corrections or additions to be made to those minutes? I have one correction on page 14 see where I say under my quote there fudge should be budge with a `B" I have one I think it is just members present it wasn't Marion Orton that was here was it? No, you are right. That needs to get changed. Those corrections are noted. One more, on page 4 four paragraphs down should be who developed it not how developed it. Those are dually noted. Are there any other corrections or changes? Hearing none, we will consider the minutes as corrected approved. The first item of old business as I understand is still on the table and will probably remain on the table per the request of the applicant until our July meeting or until someone takes it off the table at the July meeting. The first item of new business is a variance submitted by Mandy Bunch for Mathias Rentals on Duncan and 12th Street. The request is for a variance on the requirement for 90 linear feet of frontage. Dawn, can you give us a report? Yes Sir. The subject property is currently vacant 2.466 acre tract is located within an R2 zoning district just south and west of the intersection of Duncan Avenue and 1 Street The applicant has recently processed a Large Scale Development in order to build an apailment development on this site. It was approved by the Planning Commission a week ago tomorrow at their May 27th Planning Commission meeting. A part of the development plan does include the dedication of .466 acres of park land to the City to meet the parkland dedication requirements for the project. Due to the location of the area being dedicated the frontage remaining on the project site has been reduced to approximately 46'. You can see in the Board of Adjustment June 2, 2003 Page 3 maps that were provided by the applicant on pages 2.9 and 2.10 that this is an L shaped lot. The three structures housing the apartment units are on the larger portion of the lot which is to the west at the back and then the park land dedication is kind of at the neck of the L facing Duncan Avenue. As I mentioned, the applicant is proposing an apartment development. It is three structures containing 36 units and 60 bedrooms. The request is a variance on the required 90 of lot width for more than three dwelling units in an R-2 zoning district. That specifically is a request for a 44' variance. With regard to findings on this project, the L shape lot started with 143' of frontage on Duncan Avenue. As a result of the conditions placed on the Large Scale Development and the park land dedication located where it is the resulting frontage is less than the required 90'. There are also site constraints with regard to delineated wetlands which have been integrated into the overall project design and have been preserved in part and mitigated in part to meet the needs of the project. Also with regard to resulting actions, while the development proposal itself was initiated by the applicant, the parkland dedication itself was determined after the project was submitted and started through the review process. At the beginning the project was approved by the Parks Board for money in lieu of a land dedication. Then it started going through the development review process and it got to the first public hearing stage at the Subdivision Committee meeting and there were several neighbors from the area that were there and discussed the project and stated their desire to have some park land dedicated with the project. The developer decided to go back to the Parks Board and met with them and together they agreed upon a location to dedicate some park land, almost 'A an acre for the project and they chose the area adjacent to Duncan Street to provide pedestrian access and visibility for the park land. Staff and the Parks Board support park land dedication and the location was determined based upon the site configuration and getting access to the park land. This area of park land was approved by the Planning Commission. As part of the Planning Commission approval there was a condition placed on the project and that was for the Board of Adjustment to approve a variance should you choose to do so, for this project for the lot width requirement. Therefore, staff is recommending in favor of this variance request with one condition. That is compliance with all of the requirements that the Planning Commission placed on approval of the Large Scale. Green: Would the applicant like to address us on this issue? Bunch: I would if there was anything else for us to say. I think Dawn has covered all of the issues. If you have any questions I am here. This has definitely been a progression that has got us to this point. We would appreciate you granting this variance. Board of Adjustment June 2, 2003 Page 4 Green: Ok, and you are Mandy Bunch for the record? Bunch: Yes, I am Mandy Bunch, sorry. Kohler: I have a quick question. Was the site configuration, the layout of the buildings in response to the best placement of the park land? Bunch: Actually there was a fourth building in that location. That is how this has kind of gone through a balancing negotiation process. We took that building off to assist the neighbors. One thing that that did is allow the buildings to be over 350' away from the street. It got the new buildings further away from the existing residences, which is what their goal is. That really is the best spot because they don't have a park anywhere where they don't have to cross a main thoroughfare, whether it be 6th Street or 15th and the Parks Department was very much in favor of it being on the street for access. There are several things that dictated that. There is a private drive, I don't know if you can see it, it is to the north on the right hand side, that is actually a part of the mobile home park that is a private street. There is no other place to gain access because quite frankly, it would've been more cost effective for the development to go that way. Kohler: That park could've been buried back here somewhere but that is clearly not to the benefit of the public because obviously access is important. Warrick: It was desirable for the Parks Board and the Planning Commission as well to get the park in a visible location. It will help with security issues also to have the park be on the street. Bunch: There are wetlands directly into the site from that and the Parks Department didn't really want that. Warrick: The three remaining structures are oriented basically around the wetland area. You can see the delineation on the site plan on 2.9. Bunch: There were quite a few buffers along adjacent property lines to be maintained as well. That is kind of an odd configuration. I don't believe there is anything exactly linear about that. Green: Bunch: Does that wetlands boundary go all the way up into the new asphalt parking lot? Yes Sir. Part of the wetlands will be preserved in the detention area. We are actually creating that so that the lands within are not disturbed and then we are mitigating with a wet swale to the west as well. I believe it is around 63% we have either mitigated or preserved on the site. Board of Adjustment June 2, 2003 Page 5 Green: Wetlands can actually be a part of the asphalt on your parking lot then? Bunch: No Sir. Actually they won't be wetlands anymore. We submitted to the Corp. of Engineers for a permit to fill that portion of the wetlands. There was actually no way to develop the site with those wetlands in that location. We worked around to preserve the largest part of the wetlands. Green: Warrick: Green: It is going to be sort of an addition or a complement I guess for the park land also. Are there any questions from anyone? I didn't mention before but I do have signed conditions on file for the project. Is there any motion? MOTION: Nickle: I move that we approve the request with the staff conditions in tact. Andrews: Second. Green: There is a motion and a second to approve the variance request along with staff's recommendations. Is there any discussion from the public or any further discussion? Hearing none, call the roll please. Roll Call: Upon the completion of roll call the motion to approve VAR 03-?? Was approved by a vote of 7-0-0. Green: The variance is approved. Thank you. Board of Adjustment June 2, 2003 Page 6 VAR 03-17.00: Variance (Benton Place Apartments, pp 366) was submitted by David A. Gilbert, P.E. of Jorgensen and Associates on behalf of William B. Benton for property located east of Leverett Avenue and north of Poplar Street. The property is zoned R-2, Medium Density Residential and contains approximately 0.8270 acres. The requirement is for a 5' setback between a parking lot and side or rear property lines. The request is for a 1.4' setback, (a 3.6' variance). Green: The next order of business is a variance request submitted by Jorgensen & Associates for property located near Leverett Avenue and Poplar Street. The request is for a variance from the setback requirement. Can you give us some background on this? Warrick: Yes Sir. The subject property is located on the east side of Leverett Avenue south of the Leverett Gardens apartment complex. The surrounding properties are zoned for medium and high density residential uses and contain primarily duplexes and multi -family dwellings. On the subject property there is a riparian buffer that runs along the south boundary which is heavily treed. The landscape administrator has identified all of the trees in this area as high priority trees due to their location within this buffer. The density and the use are both permitted within the zoning district. The request is based upon the Landscape Administrator's recommendation that those trees along the south are high priority trees due to their location within this buffer. The applicant in this case is proposing an apaitment development 16 multi -family dwellings, two bedrooms each with 32 parking spaces on the project site. The density and the use are both permitted within the zoning district. This request is to reduce the parking lot setback requirements on the north property line. The request is based upon the Landscape Administrator's designation of the trees on the south as high priority trees and the need to shift the development to the north enough to protect those trees. This action is basically resulting in a 1'5" greenspace along the north property line. The requirement for a parking lot setback from a side property line is 5' in order to provide a minimum 10' between parking areas if you do have adjoining parking lots. In this case the 5' is being reduced to 1'S" therefore, a request for a 3'7" variance is before you. With regard to special conditions the riparian buffer along the south boundary is a special condition that is very unique to this particular property. With regard to deprivation of rights, literal interpretation of provision of zoning regulations would require that the applicant remove desirable environment from the property. It is not an ordinance requirement hard and fast that they preserve all of this area. There is an opportunity within our tree preservation protection ordinance for them to mitigate or to otherwise deal with this area without actually preserving and protecting the whole thing. It is desirable though under our regulations and in general to preserve this riparian buffer. Therefore, if we were to literally interpret the zoning Board of Adjustment June 2, 2003 Page 7 regulations and comply with the 5' setback on the north it could push the project into this area and they wouldn't necessarily, they would still be able to make the development work. They would of course be looking mitigation or some other means of preserving trees on the site. Staff feels that their proposal is the most desirable way of maintaining this environmental resource and still allowing for the development of the project. Staff is recommending in favor of this variance request with two conditions. 1) Administrative approval of a setback reduction for the proposed retaining wall. This will happen through the Engineering Division. The City's grading and drainage criteria manual requires a 5' setback between a retaining wall and a property line. Because this property owner is related to and basically part of the ownership to the property to the north, typically that is the biggest impact with regard to sitting your retaining wall that close to a lot line. We don't feel that that is an issue with this particular case because of the common ownership and I have discussed that with the staff engineer and they are comfortable with variance for the retaining wall. 2) Shrubs and other appropriate landscaping shall be installed in the remaining greenspace between adjoining parking areas along the north property line in accordance with recommendations from the Landscape Administrator. A more detailed landscape plan shall be provided prior to the issuance of a building permit for the project. Included with your materials on page 3.7 and then also on page 3.8 there are letters from our current Landscape Administrator and our interim Landscape Administrator, who preceded him that address the riparian buffer and this is our way to save those trees along the south boundary line. I do have signed conditions for this project and the applicant's representative is here. Green: Ok, would the applicant like to address us? Jorgensen: Yes. My name is Dave Jorgensen and on behalf of the applicant I am here to answer questions to see if I can help move this through the process. Kohler: I've got a quick question. My experience in other jurisdictions is that on a 90 degree two way parking lot is 60' minimum with two 18' parking spaces and a 24' and you have 19'. You could pick up 2' by making it 18', in the development code is there something? Warrick: The city's requirement is 19' stall. We would allow a 2' overhang with a 17' stall. With the retaining wall where it is that really won't work on the north. On the south he may be able to pick up a foot or two to provide for a little bit although there is a sidewalk in there adjacent to the building. We may be able to shift things just slightly to pick up a little greenspace. I don't think we will be able to quite get the full 5' but we may be able to shift things just slightly. Board of Adjustment June 2, 2003 Page 8 Green: This seems like another issue where conflicting requirements from different departments within the city is kind of getting us into this situation where some of our other regulations or requirements are creating a condition of needing a variance. I can see how this happened. Nickle: Did I understand there is a commonality of ownership? Jorgensen: They are brother in laws. There is no problem there. Green: Are there any other questions or discussion? I would entertain a motion. MOTION: Kohler: I move that we approve the request with the conditions stated by staff. Alt: I second that. Green: We have a motion and a second to approve the variance request along with the recommendations by staff. Kohler: Actually, I would like to put an additional condition that is if possible to get those two feet by using wheel stops with allowed overhangs if possible to try to do that. Green: Do you want that included in your motion? Kohler: Yes. Green: Does the second agree with that? Alt: I agree with that. Green: There is a motion and a second to approve the variance with the requirement that we attempt to get 2' off of the required variance if possible. Is there any discussion from the audience? Any further discussion from the board? Call the roll please. Roll Call: Upon the completion of roll call the motion to approve VAR 03-?? Was approved by a vote of 7-0-0. Green: The variance is approved. Thank you. Jorgensen: Ok, thanks. Board of Adjustment June 2, 2003 Page 9 VAR 03-18.00: Variance (Beard, pp 254) was submitted by Amber Parrish of McNaughton Inc. GMAC Real Estate on behalf of John Beard for property located at 2539 Warwick Drive. The property is zoned R-1, Low Density Residential and contains approximately 0.335 acres. The requirement is for an 8' side setback. The request is for a 4.7' setback (a 3.3'variance) for an existing carport. Green: The last item on our agenda is a variance request submitted by Amber Parrish of McNaughton Inc. for property located on Warwick Drive. The request is for a setback variance of approximately 3.3 feet for an existing carport. Dawn, can you give us some background? Warrick: Yes. The subject property is located at 2539 Warwick Drive. The lot has access from an easement extension of Warwick. It is southwest of Huntington Subdivision. Surrounding properties are larger lots with single-family dwellings. It is in an R-1 zoning district. The subject property includes one single family home and a carport. The carport was installed at the time that the home was constructed however, it was not included in the original building permit for the home. The applicant at this time is not proposing any new development however they are working on selling the property and would like to resolve any encroachments prior to finalizing the sale. The request is for the existing carport. It is for a 3.3' side setback, excuse me, a variance of 3.3'. The carport sits 4.7' from the property line which is reflected on the survey on page 4.6 in your packet. This is somewhat of a unique condition because we are looking at a structure that wasn't approved for construction. I have spoke with the applicant and I understand that when they were building the house that they ended up with some extra funds at the end and decided that they were going to go ahead and erect a carport and it didn't really occur to them that they needed to go back and tack that onto the original permit or get a new permit for the stand alone carport structure. They understand now that they should've done that. In this case we are somewhat looking at this as a violation after the fact. It is a stand alone carport. I believe I stated in the staff report that it is free standing with no enclosure. That is somewhat inaccurate, there is a narrow storage area at the south end of the carport that provides some enclosure, I believe it is about 6' width of the carport. In this particular case the location of the carport makes sense with regard to where the building is located and the driveway which was installed with the building. The carport likely could be built on this site without needing a variance. However, we are dealing with a structure that is already existing. It is not an enclosed livable space, which I think is a mitigating issue with regard to this request. Staff is recommending approval of the 3.3' setback variance with three conditions. 1) Any variance apply only to the existing stand alone carport in its current location on the subject property. The second would need to be modified but the second states that the structure remain open on all sides and shall not be enclosed or Board of Adjustment June 2, 2003 Page 10 converted for other uses. I think that shall remain open on all sides with provision for the existing storage area needs to be probably included in that statement. 3) A building permit for the carport shall be issued retroactively through the Building Safety Division with all penalties and fees to be paid by the applicant. Just a note, should the board choose to deny the variance the encroaching structure must be removed within 30 days in order for the property to comply with current zoning regulations. Green: Ok, would the applicant like to address us? Beard: I'm John Beard. When I built this house I asked the builder to build this carport. It was at the end of the building of the house. He said he didn't have time nor did he want to take a crew for this small of project. I just took it upon myself, got a couple of friends, and built the thing. I did not knowingly do anything wrong. When I decided to sell the house, McNaughton Realty people are here, I brought this to their attention that there was a possibility that this may be too close. I wanted it to be known from the start, I wasn't trying to sneak anything through and then Dawn nailed me. We have talked. It is not, with an addition, we have a two car garage, my son started driving, I had a little fishing boat, I wanted a place to keep me out of the weather and I built it. When she done her research she found that there never was a building permit. I agreed to back up, pay the building permit, pay the fines and all and that is where we stand. Next to the property to the east is probably 300' to the next house, which is the back of the house. The gentleman who owns that property has had no problems. I talked to him. I think she mailed out a letter to everybody in the area and we haven't had any problem. If need to be, I can get a letter. He is vacationing now, I couldn't find him or I was going to bring a letter. If need to be I can prove from them that he has no problems adjoining it. The property owner has no problem with it. I use that property up there more than he does actually. That is where we are at. Thank you. Andrews: How much are those penalties and fees going to be? Warrick: I have estimated based on information from Mr. Beard and the fee schedule from Building Safety that they will probably run around $50 Olszewski: Dawn, if we were to approve this how does the next property owner know that they can't close it? Beard: That is passed through to them by the realtor, is that correct? Parrish: That would be our question I guess. If they wanted to get a variance they would have to come in right? Board of Adjustment June 2, 2003 Page 11 Warrick: Olszewski: Warrick: Kohler: Warrick: Kohler: Warrick: Beard: Kohler: Beard: Kohler: Beard: Kohler: Beard: A building permit would be required to enclose the structure. Staff keeps these actions on record and the Planning Division would have the responsibility of not signing off on a building permit to enclose this particular structure based on any action that you take. If the carport were within the setback would they still need a building permit to enclose it? Yes. Anytime you are looking at enclosing a structure you would be required to permit for that type of activity. Dawn, this may be a matter of rhetoric. In your verbiage you say surrounding properties are larger lots with single family dwellings, is that relative to this lot or is that just a sort of rhetorical larger? That is just a rhetorical larger, that is a good question. I intended that to mean larger than the minimum standard in the R-1 district, larger than the 8,000 sq.ft. minimum. The lots immediately adjacent to this probably are larger. So the size of the lot has nothing to do with it? No, that was just more of a context statement. It joins about 3' /z acres. What is the structure made of, the materials of the carport? It has got 4x4 posts and then boxed in with lx6s and then the trussed, shingled roof. The bottom of the carport is boxed in and then the little utility room at the end has got a door that opens in the center of it that is boxed in like a utility room at the end. Do the 4x4 columns actually sit in the setback or is it the overhang that is in the setback? The overhang itself. The overhangs but not the columns? No, the columns are in fine shape. The overhang is a normal whatever an overhang is, 3' soffit or whatever. It is actually the end to the shingles to the property line is what is encroaching. Board of Adjustment June 2, 2003 Page 12 Nickle: Warrick: Whitaker: Nickle: Whitaker: MOTION: Nickle: Whitaker: Dawn, is there any way we can, I know a future owner could come down and ask for a building permit to enclose it and then you would research it and ay no you can't do that but I am just imagining somebody that bought that if for some reason they weren't informed that you could never enclose it. They might've said well I bought that, I just assumed I could enclose it. I think the way that could happen is through a deed restriction that this property owner could put on the property and that would carry with the title. Correct me if I'm wrong but I think that would be the way to do it. That would be the way to do it. That would be the affective thing. That way they would know that we have placed this non -imposing requirement on the property and certainly they would see that there and thus, be informed. I think a plain statement would be that a variance has been granted on such and such date restricting any future enclosure of this structure. That was my only concern that some future might not be aware of it and come down thinking or they bought it thinking they could. I would make a motion to approve the variance as requested with the additional requirement that a deed restriction be placed so that a future owner down the line can know ahead of time before he purchases the property. It is more of a nature of disclosure but if you want it to carry with the title it needs to be on the deed. Kunzelmann: That is also the change on number two? Nickle: Warrick: Kohler: Green: Yes, that part is already in there. I amended number two to accept the existing enclosure. I second. There has been a motion and a second, let me see if I can repeat it now, to approve the variance as requested along with a stipulation that a restriction be placed on the deed or a disclosure that this can not be enclosed in the future and also item number two would allow the existing utility or storage structure as part of the carport. Board of Adjustment June 2, 2003 Page 13 Olszewski: Do we need to say anything that this is a disclosure based on not only enclosing it but that it applies just to that carport setback? Warrick: That is item number one. Whitaker: That can be one of the conditions of the variance, I don't believe that needs to go anywhere else. Green: Ok, is there any discussion or comments from the audience? Parrish: I am Amber Parrish with McNaughton's. The property, they could never come back to get a building permit if we put that restriction on there is that correct? If they want a different storage building they will just need a building permit is that correct? Warrick: Correct. If they were going to be adding onto the existing structure or putting a new accessory building on the rear of the property, this is not restricting that activity. Parrish: They could add on if they went through the proper steps and got a building permit, they just can't enclose that. Warrick: Right, are you talking about adding onto the carport or adding onto the house? Parrish: Adding onto the carport. Beard: On the south side of it if they wanted to add on and stay in the proper setbacks they could. Andrews: No because we are just approving the existing structure. Warrick: Right, we are just approving the existing structure as is so an addition to the carport itself would be something that the Board would need to see again. Parrish: Right, that is my question though. It is not denied totally. It is something that they can still come back. The restriction will say they never can enclose that but they would have to come back and get a building permit or whatever if they wanted to. Olszewski: Actually, they could enclose it if they came to the Board of Adjustment and got a variance for it. Warrick: The deed restriction precludes that. Board of Adjustment June 2, 2003 Page 14 Olszewski: Didn't you say it wasn't a deed restriction, it was just a disclosure on the deed that says this is what we have done at this meeting? Whitaker: Beard: Olszewski: Beard: Olszewski: Nickle: Whitaker: Parrish: Whitaker: Nickle: Beard: Green: Whitaker: It is going to depend on how you phrase that restriction. If you say that it cannot be enclosed then it cannot be enclosed. If you say that it cannot be enclosed without further variance from the Board of Adjustment. What we would like to say is they can do it if you all ok them to do it. I am more in mind of a disclosure on the deed so that someone doesn't make an error in the future. If they wanted to come back for some reason and the Board thought it was a good thing if they wanted to enclose it, we don't know what is going to happen 40 or 50 years down the line but they could do it. For me it was a disclosure thing. It wasn't about saying that they can't do it. They will have to go through the process. To go through the proper process. I would say that that would be my intent and to maybe before you do a deed have David review it, is that appropriate? If you could fax a copy over to the City Attorney's office. We will have the title department prepare I guess with the variance. Consistent with the language we discussed and then send it over and if it needs tweaking we will let you know, otherwise, we will probably sign off on it and say ok. It is not my intent to preclude action in the future but I just wanted to be sure of the method of disclosure that that future buyer is going to be aware this is what the situation is now. That is exactly what we want. I didn't want them to have surprises a year from now and that is why we are here. Ok, do we need to restate the motion or is everyone clear on it? For the record it probably wouldn't hurt to restate it. Board of Adjustment June 2, 2003 Page 15 Green: Let me see if I can restate the motion. We are voting to approve the variance as requested however, we are asking for a disclosure statement to be included on the deed so that any enclosing of this structure in the future must be approved by the Board of Adjustment at that time along with other staff comments with modification to item number two to include the existing utility structure or storage structure. Is everyone clear on that one? Olszewski: I am not sure that I like that it says enclosed. I think I would like something that just says that there was a variance granted for the existing carport on such a date, a disclosure saying that there has been a variance granted. I don't want to encourage someone to go out there and enclose it in the future. Nickle: The reason I want that language in there is just so that a buyer recognizes that he doesn't have the right to enclose that. Olszewski: Ok, I will go with it then. Whitaker: Or buying it thinking that they can make it a mother-in-law cottage or something when they cannot. Olszewski: Ok, I will go with it then. You have been in that business. Green: Ok, is there any further discussion? Call the roll please Renee. Roll Call: Upon the completion of roll call the motion to approve VAR 03-?? Was approved by a vote of 7-0-0. Green: The variance passes. That is all the items on our regular meeting of the Board of Adjustment. Is there any further business of the Board of Adjustment? We stand adjourned. Meeting adjourned: 4:25 p.m.