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