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HomeMy WebLinkAbout2004-04-05 MinutesMINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT A regular meeting of the Board of Adjustment was held on Monday, April 5, 2004 at 3:45 p.m. in Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ACTION TAKEN VAR 04-07.00: Variance (Harps, pp 401) Approved Page 2 VAR 04-08.00: Variance (Sohraby, pp 295) Approved Page 6 MEMBERS ABSENT James Kunzelmann Michael Andrews Sheree Alt Joanne Olszewski Michael Green Bob Kohler Bob Nickle STAFF PRESENT STAFF ABSENT Dawn Warrick Renee Thomas Suzanne Morgan Kit Williams Board of Adjustment April 5, 2004 Page 2 Green: I will call the April meeting of the Board of Adjustment to order. Will you call the roll please? Roll Call: Upon the completion of roll call there were seven members present. VAR 04-07.00: Variance (Harps, pp 401) was submitted by Engineering Services, Inc. on behalf of Clary Development for property located at Lot 8 of Wedington Place Addition. The requirement is for a 20' rear setback. The request is for a 0' rear setback (a 20' variance.) Green: Our first order of business is consideration of the minutes of our March Board of Adjustment meeting. Has everyone got those and are there any corrections or additions that should be made to those? Hearing none, we will consider those minutes approved. Under new business the first item is a Variance request submitted by Engineering Services for Clary Development. It concerns the proposed Harps store just off of Wedington Place. This request is for a rear setback variance. Morgan: The applicant received Planning Commission approval for a 31,118 sq.ft. Harps grocery store. This is located on Lot 8 of the Wedington Place subdivision Phase II, which is located north of Wedington Drive and east of Colorado Drive. This property is zoned C-2 and requires a 20' rear building setback. This rear setback is located on the east property line. The Planning Commission approved this Large Scale Development with the condition that a variance for a zero foot rear building setback be granted. The applicant proposes this zero foot setback which requires a 20' variance. In 1999 the Planning Commission approved a Large Scale Development for this property and the two properties immediately to the east. That Large Scale proposal was for development of a strip mall configuration along these three lots and with a grocery store located where Harps is being proposed. This Large Scale Development did expire and at that time no variance was needed for these commercial developments to develop adjacent to one another due to the Large Scale covering all of these three tracts. Currently the applicant and the adjacent owners intend to develop a similar configuration of commercial structures. However, developed individually on each lot. Should the variance not be granted the property to the east could develop with a zero foot side setback and this would create a 20' strip of vacant property with the enforcement of the rear setback on lot 8. Staff finds that granting this request will not confer special privileges due to adjoining structures on several lots being common in the City of Fayetteville. All other bulk and area regulations will be accommodated for with this proposed development. In addition, the requested rear setback variance is the minimum variance to accommodate the attached retail structure and granting this variance will be in harmony with the general purpose and intent of the zoning regulations. Therefore, staff does recommend approval of the requested Board of Adjustment April 5, 2004 Page 3 20' setback variance as shown on attached materials with the following conditions: 1) The proposed development shall comply with all conditions approved by the Planning Commission for LSD 04-05.00 and staff would request that condition two be stricken due to receipt of a signed application by the owner. Green: Is the applicant here? Would you state your name please? Appel: I am Jason Appel from Engineering Services. Green: Do you have anything further to add to that? Appel: I don't think so. If there are any questions I will try to answer them. Nickle: This is a rear setback? Appel: That is because of the way the lot is setup. Warrick: It fronts Colorado Drive. The north and south are sides, west is front because it has front on Colorado Drive. The previous development combined two or three lots and they collectively had a front setback on Colorado, side setbacks on the north and south and rear on the east but it was at the perimeter on those combined lots instead of this one individually, which is why it becomes a rear instead of part of an interior. Nickle: So we are talking about this? Warrick: Yes. Kohler: So the owner of this lot currently also owns the other lots? Warrick: Yes, but it is being sold to Harps. Clary development currently owns all of the undeveloped project sites within the subdivision but this lot is proposed to be sold to Harps. The Large Scale has been approved but it is contingent upon the Board of Adjustment action. After this approval Harps will finalize the transaction. Kohler: Does the Large Scale bind them to build as planned contiguous to the Harps building? Warrick: They could build contiguous to it anyway because the lot to the east of the Harps lot is a side. Their front is south on Wedington. They have a zero side setback there. Nickle: They are saying that the west side is the store front. That is the front? Board of Adjustment April 5, 2004 Page 4 Warrick: Actually, it's a side. The building is configured that it faces, it is a lot front but not the store front. The store fronts to the south. The way that the lot configured because it has frontage on a public street that has to be treated as a front setback. It is oriented toward that street. The structure that is being built on it is oriented to the south so it is facing the main thoroughfare, Wedington Drive. Green: Are there any other questions? Williams: I know the Planning Commission was very concerned with their Commercial Design Standards and I think they wanted this zero setback because they figured the other buildings were going to block the unarticulated wall that would be on this zero setback. Otherwise, I don't think they would've approved it. Warrick: There is a condition on the Large Scale, we've included the staff report in your packet, that should the development adjoining this Harps building not be in the development review process at the time that Harps chooses to go through their building permit there is an alternative building elevation that they will have to construct that has more articulation through it. They propose and the developer, Clary Development, expect that they will have an adjoining structure. Since they don't have that project in process right now we tried to put some safeguards in the approval so that we wouldn't end up with just a cinder block wall should that adjoining development not be in process. We expect that it will happen that within a year we will see something that is adjoining and then we will have that condition to worry about. Kohler: What if lacking strikes and something keeps Clary Development from building their development contiguous with this building and this building ends up being approved for having a zero setback. How does that impact the future property owner for that site when they have the building right on the property line? Warrick: Because you can have a zero lot line on commercial buildings anyway the real issue is that this is a rear instead of a side. You can have a zero side setback on a commercial lot. Because this one fronts on Colorado that makes this the rear. I think that that condition could happen today but it would basically drive the adjoining development to have to comply with building codes depending on the separation requirement and the types of structures that are on there. The zoning would allow it. Green: Are there any further comments or questions? Nickle: I move that we approve the Variance with staff conditions as listed. Board of Adjustment April 5, 2004 Page 5 Alt: I second. Green: There has been a motion and a second to approve the Variance request as stated along with staff recommendations. Are there any further comments? Shall the Variance request pass? Roll Call: Upon the completion of roll call the motion to approve VAR 04-07.00 was approved by a vote of 7-0-0. Board of Adjustment April 5, 2004 Page 6 VAR 04-08.00: Variance (Sohraby, pp 295) was submitted by Bassett Mix & Assoc. on behalf of Kazem Sohraby for property located at 2474 Fennchurch Way. The property is zoned RSF-4, Residential Single-family, 4 units per acre. The requirement is for an 8' side set back. The request is for a 7.89' side setback, (a 0.11' variance), to accommodate an existing eave. Green: The next item is a Variance request submitted by Bassett Mix. It doesn't appear that we have a representative from the group. Morgan: I did call about 20 minutes till the hour and was told that a representative was on the way. I don't know if she is in the wrong room. Warrick: I will call the office to see if they are down there by chance. Williams: This gives me an opportunity to speak to the Board of Adjustment a little bit. This Variance is about an inch that is caused by an overhang of an eave. We talked about that a little bit as staff that that seems to be an awfully small variance. I was wondering what your feelings would be if it was legal to propose that the Zoning & Development Administrator, Dawn, would have the right to grant a variance of not more than 10% of whatever they were asking without coming to the Board of Adjustment. It seems kind of funny to come to the Board of Adjustment to ask for an inch variance. I know this time there is not very much on your plate but it seems like a lot. They would still have to file the Variance request but often times, for example, the number of parking spaces the Zoning & Development Administrator has 30% variance plus or minus before they have to go to the Planning Commission. I don't want to tread on your power but I don't know what you all would think about that, and I haven't researched the law to see whether or not you can or not but I'm interested in getting some of your input. Nickle: On that kind of thing here would there be a mechanism, I don't have any problem in theory with that at all, I think it makes a lot of sense. Certainly our Planning staff is very capable and can look at something like that and say is this reasonable or not. My question would be would the adjacent property owners receive the same notice that they get now? Williams: I would say everything would be the same. They would have to file the variance request just like it was coming here but if, this would be a figure that I'd like your guidance on, I was thinking 10% of whatever the line would be. Here in an 8' setback it would be less than a foot that you would be allowed to give a variance for. That's just a number that I pulled down. When it is 1" I figured you all shouldn't have to discuss F. Nickle: If somebody, the notification would say specifically if this is a concern of yours that it is going to be handled administratively unless we hear from Board of Adjustment April 5, 2004 Page 7 you and then if the adjacent property owner should have some concern they would have a right. Williams: I think they should have the right to appeal her decision. The way I would write it is that someone who is aggrieved could appeal her decision to this Board. Nickle: There would still be a mechanism for an adjacent property owner to appeal in some form or fashion. Williams: Like I said, I haven't really researched the law. Sometimes the statutes don't give you any leeway. They say it's got to be Board of Adjustment so this could be academic but before I start doing the research on that I wanted to get your feelings on it. Olszewski: Would we still keep a list of builders who are continuing to go outside of the setbacks? Warrick: Yes, our lists are going to be better. We just updated and went live today with the city's new comprehensive permitting process system. It is a municipal management system. We use Hansen software. After about three years of research and implementation of trying to get things right in the system. Within the next couple of weeks we are going to start entering in new applications into that tracking system and there is a better recording mechanism out of this database software and we will be able to pull those reports that you guys are interested in seeing in how many times we interact with certain contractors for violations. Olszewski: It seems like it is a waste of time dealing with one inch but it is a waste of time continually if we are dealing with the same people who are abusing. Williams: The Zoning Administrator does not have to approve it either. I would think that if she received an objection she might choose not to make a decision but just to refer it on here if it was going to be controversial. Kohler: A lot of the objections tend to be public. It seems like they use this, rightly or wrongly I guess, as a public forum to voice their a grievance. I don't know if that is the role of this board or not to allow that. Williams: You should hear from people that feel like they are affected certainly. Green: I've always felt like we were almost swatting a fly with a shotgun when we try to include the accuracy so great on some of these things. There are tolerances in laying out property and buildings and even surveying property lines in this hilly area. I don't know how we can get to the kind Board of Adjustment April 5, 2004 Page 8 of accuracy that we sort of expect for an inch. That is sort of unreasonable I think. Warrick: This kind of thing rarely shows up. The site plan for their building of course shows that they are meeting their setbacks. The only reason we see something like this is that the property owner or the prospective buyer requests a survey so when they purchase the home they know what they are getting and that survey will often be the incident that reveals an encroachment. In this case it is small. In this particular case, the encroachment was large enough into the 10' easement that we would have to take this to the City Council to vacate a portion of the utility easement. That 10' utility easement is not our setback, our setback is 8'. While we vacated an 8 sq.ft. area of the utility easement we still have to vary the portion that encroaches the 8' building setback. This one is a little complicated because of the dual actions that we had to take on it. We wouldn't have known either of those conditions had there not been a survey conducted after construction in order to sell it. It is usually not the first home owner that gets the survey, it is usually the second because someone moving into a brand new home that is in a platted subdivision typically doesn't require a survey. The lenders typically don't require surveys for these type of transactions. It is just the next sell. Green: I fully support you pursuing trying to simplify this process a little bit, especially on these incidental distances I would call them. Williams: Is everybody happy with the 10% variance condition? Green: Yes. Warrick: I called the office and nobody has been down there requesting information about the location of the meeting. I will leave it to the board to determine whether or not to move forward with this. Most of you know that this is very minor and it is less than an inch of property. Staff is comfortable since we obviously don't have any adjoining property owners or objectors in the audience if you choose to go ahead and pursue this we would be glad to take your actions back to the applicant. Green: I would recommend that we go ahead and pursue this unless someone has an objection. For one thing, for this 1" of setback variance I would hate to make them wait for another month before they can be heard again. Alt: I think there is an extenuating circumstance of why someone from Bassett Mix was not here today on time. I know there was a death in the Bassett Mix family and the funeral is today. I think that is the reason behind it that they had to ask someone else to come. I have no problem with it. Board of Adjustment April 5, 2004 Page 9 Green: We have read this background and have heard an extended background from the City Attorney. Does anyone want any further information on this before we consider it? MOTION: Andrews: I move that we pass the Variance as submitted with the conditions listed by staff. Kunzelmann: Second. Green: There is a motion and a second to approve the Variance request as submitted along with staff's recommendation. Is there any further discussion? Shall the Variance request pass? Roll Call: Upon the completion of roll call the motion to approve VAR 04-08.00 was approved by a vote of 7-0-0. Green: That is all of our new business. Is there any other business to come before this board? We are adjourned. Announcements