HomeMy WebLinkAbout2004-08-02 MinutesMINUTES OF A MEETING OF THE
BOARD OF ADJUSTMENT
A regular meeting of the Board of Adjustment was held Tuesday, August 2, 2004 at 3:45
p.m. in Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville,
Arkansas.
Items Discussed Action Taken
BOA 04-1150 (PINNACLE FOODS, 560) Approved
Page 2
BOA 04-1151 (LOT 12 CROFTON MANOR S/D, 323) Approved
Page 4
BOA 04-1152 (ADMINISTRATIVE APPEAL/JOHNSON, 565) Approved
Page 6
BOA 04-1153 (CROSSOVER LIQUOR, 372)
Page 18
Members Present
Michael Green
Joanne Olszewski
Robert Kohler
James Kunzelmann
Bob Nickle
Sherree Alt
Michael Andrews
Staff Present
Dawn Warrick
Jeremy Pate
Suzanne Morgan
David Whitaker
Renee Thomas
Approved
Members Absent
Staff Absent
Board of Adjustment
August 2, 2004
Page 2
BOA 04-1150 (PINNACLE FOODS, 560): Submitted by MICHAEL COFFMAN for
property located at 1100 W 15TH STREET. The property is zoned I-2, GENERAL
INDUSTRIAL and contains approximately 39.49 acres. The request is to approve an
addition to an existing non -conforming structure within the building setback.
Andrews: Welcome to the August 2, 2004 meeting of the Board of Adjustment. Our
first item is the approval of the minutes from the July 6th meeting. Does
anybody have any corrections, changes or additions? Hearing none, we
will approve those and put them into record. The first item of new
business is 04-1150 Pinnacle Foods submitted by Michael Koffman for
property located at 1100 W. 15th Street. The property is zoned I-2,
General Industrial and contains approximately 39.5 acres. The request is
to approve an addition to an existing non -conforming structure within the
building setback. Would staff like to give us some input on this?
Pate: Certainly. This property is the Fayetteville Swanson plant located on
15th Street at the intersection of Razorback Road. Pinnacle Foods
Corporation is the owner of the property and operates the plant. It does
consist of approximately 380,000 sq.ft. in total, most of which is in one
existing structure. This building has operated as a plant for many years
and was in existence prior to 15th Street being designated as a principal
arterial on the Master Street Plan. The subject building also existed prior
to the widening of 15th Street to a four lane road from Razorback Road.
The Variance application that we are reviewing this afternoon is for an
addition of a compressor room as shown on page 1.9 of your staff report.
This is an addition to the existing structure consisting of approximately
4,063 sq.ft. located on the south side of 15`h Street. The side of the
proposed addition is not proposed to encroach within the building setback
more than the existing structure currently does. However, the existing
building does encroach into the required 50' building setback
approximately 15'. That existing building may remain as such. It is an
existing non -conforming structure. However, an addition within that
building setback does require a Variance. The applicant proposes this
4,000 sq.ft. addition to the existing Swanson plan in line with the existing
structure for a front setback variance of 15' for a total 35' setback along
15`h Street to accommodate the proposed the addition. With regard to
staffs findings, on the General Plan this is designated as mixed use. As
you mentioned, the property is zoned I-2, General Industrial and the
proposal does conform to that zoning district. The existing structure was
constructed prior to the existence of 15th Street. Therefore, special
conditions exist which preclude further development along the south
portion of the property. Staff finds that the variances will not be injurious
to the neighborhood or otherwise detrimental to the public's welfare and
recommends approval of this requested front setback variance as
submitted on the attached site plan and described in your staff report with
three conditions. 1) The setback variance shall apply only to the existing
Board of Adjustment
August 2, 2004
Page 3
structure and the addition proposed on the attached site plan as submitted.
Future additions or alterations shall comply with setback requirements for
the zoning district. 2) Encroachment into the building setback shall not
extend beyond the adjacent structure onto which the addition is proposed,
which is approximately 35' from the Master Street Plan right of way. 3)
All applicable building permits shall be obtained prior to construction.
Andrews: Is the applicant or representative in the audience?
Koffman: Yes Sir. My name is Michael Koffman.
Andrews: Mr. Koffman, do you have any other information that might help us make
a decision on this?
Koffman: No, I think Jeremy covered it.
Andrews: Ok. Is there anybody from the public who would like to address this
issue? Seeing none, I will bring it back to the Board. Do we have any
questions?
Green: I have one clarification. It looks like this is in Phase I and Phase II. I'm
assuming that Phase I is permittable or permitted without the Variance and
we are only dealing with Phase II, is that correct?
Pate: That is correct. The spiral freezer there that is shown on page 1.9 of the
proposed structure Phase I is located outside of the building setback area.
Andrews: Are there any other questions? Would someone like to make a motion?
MOTION:
Green: It looks straight forward to me. I move that the request be approved along
with staff's recommendations.
Olszewski: Second.
Andrews: We have a motion and a second. Is there any further discussion? Will you
call the roll please?
Roll Call: Upon the completion of roll call the motion to approve VAR 04-1150 was
approved by a vote of 7-0-0.
Thomas: The motion carries
Board of Adjustment
August 2, 2004
Page 4
BOA 04-1151 (LOT 12 CROFTON MANOR S/D, 323): Submitted by NORTHSTAR
ENGINEERING CONSULTANTS, INC for property located at MT. COMFORT RD, E
OF GOOSEBERRY LANE. The property is zoned RSF-4, SINGLE FAMILY - 4
UNITS/ACRE and contains approximately 0.09 acres. The request is to approve the
creation of Lot 12 with less than 70' of frontage in the Crofton Manor Subdivision.
Andrews: That brings us to VAR 04-1151, Lot 12 Crofton Manor submitted by
Northstar Engineering Consultants, Inc. for property located at Mt.
Comfort Road east of Gooseberry Lane. The property is zoned RSF-4 and
contains approximately .24 acres. The request is to approve the creation
of Lot 12 with less than 70' of frontage in the Crofton Manor subdivision.
Staff, will you give us the input on that?
Pate: If you've been out to the site, it is a new project currently under
construction. There are no homes on the site. A Preliminary Plat was
approved back in August, 2003 by the Planning Commission allowing for
the public infrastructure to go in. They are now coming forward with a
Final Plat pending their final inspection. One of the conditions of approval
with the Preliminary Plat back in August is stated on page 2.2 of your staff
report. Planning Commission determination of a waiver request for
required frontage of 70' required for a RSF-4, residential lot, which is lot
12. This lot is being created without adequate frontage onto an improved
public street. It will have adequate frontage onto a right of way however,
it is not sufficient width. Kinswood Avenue is being stubbed out for
future connection and development to this adjacent property that is
currently agricultural. Once that is developed they will be required to
construct the street in that location. The Planning Commission did find
favorably on this item. Of course, this will require Board of Adjustment
approval as well because you do deal with lot frontage and zoning
requirements as well. The applicant is requesting a 47.98' variance for a
total of approximately 28' of frontage for a single family residential lot
rather than the 70' required by zoning regulations. Staff's findings, we do
find that a street stub out is proposed for future connection and right of
way to be dedicated on this lot. With the future extension however, this
property actually would not need a Variance any longer. This is really a
matter of timing. Staff is finding that there are special circumstances
warranting a recommendation for approval of this request. That
recommendation for removal is subject to four conditions that we have
recommended. 1) This Lot 12 is subject to all of the other zoning and
development ordinances relating to single family dwellings. 2) Only one
single family dwelling unit and accessory building may be erected on this
Lot 12. 3) The Variance request will only become valid with the filing of
the Final Plat for the Crofton Manor subdivision. Lot 12 currently doesn't
exist until the plat is filed with the County. 4) The future street
connection along Lot 12 shall be constructed in compliance with the city.
Board of Adjustment
August 2, 2004
Page 5
Andrews: Is the applicant here for this?
Bender: I'm Mike Bender with Northstar Engineering. I think it was pretty straight
forward. There are some special circumstances out there. We are
dedicating the necessary right of way in front of Lot 12. In addition, as
part of the Final Plat requirements we will also have to submit a fee for
our half of the street for the remainder of the property, an estimated 205'.
That is more guarantee that the street will be constructed. If that street
was constructed we wouldn't need this Variance. I appreciate your
consideration.
Andrews: Is there any member of the public who would like to address this issue?
Hearing none, I will bring it back to the Board.
Olszewski: If we grant this because there is not enough street frontage and then the
street is built what happens?
Nickle: When the street is built it is immaterial at that point.
Whitaker: It is moot, it won't matter. They won't have to come back and get rid of
it. It is no longer needed so it will just die.
Green: I believe you call it a moot point at that point.
MOTION:
Nickle: I move that we approve the Variance with staff conditions one through
four.
Kunzelmann: I second.
Andrews: We have a motion and a second. Is there any further comment? Will you
call the roll please?
Roll Call: Upon the completion of roll call the motion to approve VAR 04-1151 was
approved by a vote of 7-0-0.
Thomas: The motion carries.
Board of Adjustment
August 2, 2004
Page 6
BOA 04-1152 (ADMINISTRATIVE APPEAL/JOHNSON, 565): Submitted by CLEM
JOHNSON for property located at 1798 E. HUNTSVILLE ROAD. The property is
zoned C-2, THOROUGHFARE COMMERCIAL and contains approximately 0.78 acres.
The request is to review and appeal a Planning Administrator's interpretation of zoning
and land use. The applicant/owner states the primary land use is residential, not
commercial.
Andrews: The next item before us is an administrative appeal, 04-1152 submitted by
Clem Johnson for property located at 1798 E. Huntsville Road. The
property is zoned C-2, Thoroughfare Commercial and contains
approximately .78 acres. The request is to review an appeal of the Zoning
and Development Administrator's interpretation based on zoning and land
use. The applicant and the owner state that the primary land use is
residential not commercial. Would staff like to give us an input on this?
Warrick: I would. The request is to appeal a Planning Official's determination of
the land use on the property. That would be me. By the Unified
Development Ordinance I am designated to interpret land use to you.
When there is a disagreement with my interpretation it may be appealed to
this board. That is derived through state law as well as our Unified
Development Code. The applicant who owns property at 1798 E.
Huntsville Road has a development issue that they are working on.
Through the process of requesting approval by the Planning Commission
they have asked that I review my interpretation which is that the use of
their property is commercial. They disagree and that of course, is why we
are here. That is part of the purpose of the Board of Adjustment through
state statute. My interpretation is based on several findings. They are
included in your report and I will go through those briefly. Prior to the
current applicant's use of the site several different commercial activities
have occurred in this location including a gas station, restaurant, office,
and retail. That information was derived through building permit
information at the city. In 1999 the applicant requested approval of zoning
of this property from C-1, Neighborhood Commercial to C-2,
Thoroughfare Commercial. That is the current owner of the property. In
1999 the City Council did approve the zone change to allow Thoroughfare
Commercial. There is a Bill of Assurance that came with that zoning that
restricts the uses of that property to those allowed in the C-1 district and
allowing the restoration and sales of used and vintage automobiles. In
2001 the applicant requested that the City Council modify the Bill of
Assurance that was accepted in 1999 to allow a different type of fencing
or screening materials than a wood board fence. That wood board fence
was identified specifically as one of the conditions in the Bill of Assurance
in 1999. The applicant did approach the Council to modify that Bill of
Assurance, which was approved and a metal fencing was permitted. The
land use did not change. At that time the zoning was not of issue. The
city has no record of a building permit authorizing the change of use from
Board of Adjustment
August 2, 2004
Page 7
commercial to residential. The current zoning district requires that the
principal use of this site is commercial. I've included in your packets the
description of the C-1 and C-2 zoning districts, those are on page 3.12.
Accessory residential uses are permitted and encouraged, however they
must be accessory to the principal use, a use permitted by right within the
district. Accessory residential uses are permitted and encouraged,
however they must be accessory to the principal use, a use permitted by
right within the district. The City of Fayetteville did open an account for
water, sewer and sanitation services established by the applicant in 1999 is
a commercial account. A plumbing and gas permit originally issued to the
applicant as an owner/occupant in 1999 was revoked by the Building
Safety Division and a new permit was required to be issued to a licensed
plumber due to the commercial nature of the property. The addition of a
carport in 2003 was permitted as a commercial miscellaneous structure by
the Building Safety Division and reviewed by all City divisions required
to approve of commercial building projects. On the permit application the
applicant stated that other structures on the property consist of:
shop/studio/home. The business name stated on the permit is Tuba
Graphics. Based on those findings, I do interpret this property is
commercial. As I stated before, the applicant disagrees with this
interpretation and states in the attached letter that the use of this property
is residential. At this point, the board action that is required here under
state law is to either affirm the interpretation of the zoning official or to
reverse in whole or in part that interpretation.
Andrews: Is the applicant in the audience? Would you state your name for the
record please?
Johnson: I'm Clem Johnson. I appreciate the interpretation but it is primarily our
residence. We brought some pictures to show you. I don't know if you
guys are familiar with the property. It is on the corner of Happy Hollow
and Huntsville Road and it was, indeed, a gas station built originally in the
last 1950's. When the gas station went out it has been a tire shop and
several other things. When I first purchased the property in 1999 it was
from Littlefield Oil Company. Their attorney, Rick Osborne, had this
motion going before the City Council to change it to C-2. He instructed
me it would advisable at this point to go along with that change and not
make waves at that time. My intention at that time was to restore old cars
as a hobby. This was just going to be a place where I would do that. I had
another residence. I started doing that and I did get commercial water
surface because that is all you could get since it was zoned C-2. I guess
that is true about the gas. I wasn't aware of that. Then I met Kim, my
wife, and she and I started working on the place, fixing it up. She is a
graphic artist and I am a graphic artist so that has been excellent. You can
see this is the part that we added on to the back of the original space. That
is a living space, it is about 1,500 or 1,600 sq.ft. of living space. This was
Board of Adjustment
August 2, 2004
Page 8
the problem we had. It was on April 12'h our dog, a german shepherd, was
very aggressive towards a Fayetteville police officer and was shot. The
dog was impounded by the prosecutor until the trial, which was a total of
three months. The arrangement we worked out with the prosecutor was if
we would plead guilty to having a vicious dog that he would release the
dog and we would need to build a 6' fence on the front of the property that
would encase all of our doors. He advised us to use chain link because
that was the best type of fence to prevent the dog from hurting other
people because the dog's mouth or teeth can't get through that type of
fence and a child's hand cannot go through that type of fence. There were
several other charges and things that we had to do but the fence is why we
are here today. That shows the property and you an see the red line there
is where e are wanting to build a chain link fence. We talked to Dawn and
she said that we needed to back up the line on the Huntsville side, which is
on the lower left side, to the highway right of way. This again, is the
property. In order to get our dog released early before the trial date we
arranged with the prosecutor to erect a temporary chain link gate in front
of all of our doors. That is very inhibiting to our lifestyle, as you can
imagine. You almost feel like you're caged instead of the dog. This is the
ordinance I believe you guys are looking at. That shows that the fence is
prohibited on C-2 in chain link but if you look down at the very last
sentence in that lower yellow block it says "residential uses are exempt
from this requirement." It doesn't say partial residential, it doesn't say
primary, it just says residential. That seems to be the crutch of the issue.
If we prove this is our residence, and it is. I don't know if anybody saw us
on the HG TV program "Building Character" but that program is
dedicated to people who take structures that are not homes and change
them into their homes. We were on that show, we brought the video tape
and it will be aired again on Wednesday night. Another part of that is the
residential use, the attached residential use is permitted in C-2 so my
interpretation of that is that it is ok within the C-2. If it is ok within the C-
2 than I can't understand why we aren't allowed to have our fence. If this
is ok if it is residential and we are going to prove to you that it is a
residential place. Also, about the permits, it pretty much says there that
we are not really required to permit fences, just to go ahead and build our
fence as long as that fence was not over 6' high. This is a letter from a
friend of ours who is an attorney. He interpreted the ordinances as he read
through them. You can see he says that we do not need a building permit
and that we can go ahead and build this fence and that we should have
rights to build that fence because it is a residential place. There is no
business conducted there other than my wife has a home office, which
many people have in their house, and I have a hobby of restoring old cars.
I don't fix cars for anybody else and I don't sell cars there actively on that
property. Really it is a home. This is a letter from our insurance man
saying that he has us with a homeowner's policy with our insurance. This
is the listing in the Fayetteville phone book. It has my name, Clem
Board of Adjustment
August 2, 2004
Page 9
Johnson, that address, 1798 Huntsville, and it is a residential number.
There is no place in that phonebook that has a business with that phone
number. We wanted to show you some other chain link fences in the
neighborhood. This is across the street from us. It is an 8' fence that turns
to a 6' fence in a residence just down the street from us. This is another
chain link fence on a residential. This is the city shop and that shows the
type of gate that we want to install. This is the Tyson's plant kitty corner
from us. This is one of the reasons that we really prefer chain link because
it has the least amount of visual obstruction. You can see that greenspace
beyond that fence where you couldn't if it was any other type of fence. If
it was a privacy fence it would be totally obscured. Any other type of
fence other than chain link you really can't see through. We are proud of
our home. We have enjoyed fixing it up and working on the place. A lot
of people drive by and look at our place. We don't want to obstruct the
view. We don't want to obstruct our view of seeing out of our house
either. As you can tell, we have put a lot of work into the landscaping, the
way the place looks is important. We have made a considerable effort to
keep the character of the building. We have acquired the signs and all of
the memorabilia and the imagination of gas pumps and all of that to make
this a show place. We think it is a big part of Fayetteville. A lot of people
recognize that place. It was important to us what our neighbors thought so
we went around and had long conversations with them and each one of our
neighbors say they can see our place from their home or business and
everybody who adjoins our property were all in favor, unanimously. You
can see the dotted red line, that is the part where we will put the fence, that
is on the 50' setback from the highway right of way. This is parallel from
Huntsville Road. You can see far in the distance the sidewalk that is
coming up from the next block. We would be willing to, even though this
entire intersection is going to change. I have heard that the City will
purchase the Mexican Original Plant and the main part of Hwy. 16 is
going to swoop off to the left way in front of our property, it will cross in
front of Mexican Ori�inal and across their parking lot and then Hwy. 16
will connect with 15` Street. We are really not going to be part of the
highway anymore. I don't know if that qualifies us to have a lesser street
but it is going to have a lot more limited access than it does now. Also,
one problem we have here, we have a lot of people, if you saw the HG TV
show, it was a humorous part, a lot of people will pull into our home and
ask for service, will we fix their cars, flats, etc. It got to be such a problem
that we put these barrels with chains across them to block the driveways.
That doesn't stop people. A lot of people will try to avoid the intersection
and will cut across our property or they will pull in and ask directions. We
really think that a chain link fence going across the front and down the
side would eliminate the drive through traffic and the fence then would
actually make it appear more residential. I guess we are asking you to
overturn the Planning Department's decision and allow us to have the
fence. Thank you.
Board of Adjustment
August 2, 2004
Page 10
Andrews: Is there any member of the audience who would like to address us on this
issue? Please state your name.
Thompson: My name is Mike Thompson. My parents originally owned the property
when it was a service station. There have been many uses that have been
there since that property was built. I have personally had to go and mow
weeds there. When it was a tire shop they piled old tires up and my
mother and dad called me because they were in a real panic that it was
going to set their house on fire. When Clem and Kim started redoing this
old property it was wonderful. Anything they have done has been an
improvement. I feel like every day that our property value increases
because they work every day to improve it. It definitely is a residence.
For anything to be commercial you've got to make money at it and they
have no income from that property. That statement right there I feel
proves that it is residential.
Andrews: Thank you. Is there anybody else?
Reynolds: Hi, I'm Bob Reynolds, they are in my Ward. What they didn't mention is
the children walking to Happy Hollow School, people cutting across that
driveway and this will cut down on that foot traffic.
Andrews: Is there anybody else? Hearing none, I will bring it back to the board.
Kohler: I just need to get some clarity on what the reasoning is, I've heard Dawn,
the security issues, I've heard children. What is driving this? Is it the
dog?
Johnson: It is two fold. Without this fence I'm not sure the fate of the dog. That
was something we agreed to as part of the plea bargaining with the
prosecuting attorney. We have neutered the dog, we are required a 6'
fence around the property. The dog was declared vicious and it has to
spend it's life wearing a muzzle anytime it is outside the house. It has to
be held by a 300 pound chain. If you could imagine your pet having these
kinds of restrictions you would do anything to make it's life better. If this
fence will satisfy the Prosecuting Attorney and allow our dog a little more
freedom in that front yard then we are all for it. It is two fold, it is also to
alleviate the traffic coming through our property constantly. Three or four
cars a day will cut through there. If you could imagine rush hour people
not wanting to pull up to that stop sign so they just bolt through our place,
like they would any business. If the fence were there it would alleviate
that problem also. It is just a chain link fence and it is in a neighborhood
that really has a lot of chain link fence. It is commercial property, yes, but
it is zoned next to Industrial property and residential on one side of it.
Board of Adjustment
August 2, 2004
Page 11
Kohler: I noticed probably 1/3 of the lot is fully fenced in the back. That may save
the dog as well as having an invisible fence for the dog.
Johnson: We have gone around and around about that and invisible fences aren't
full proof. The chain link fence is to cover the door. The dog came from
my front door when the police officer pulled over the car in our yard. The
dog came from our porch and that is why they want those garage doors
and that front door fenced. That is where the problem came from. We do
have a large fenced in yard and the dog can't get out of there if the gates
are properly attached. The dog was in the yard when my wife and I went
to work that day and one gate was not tightly attached. The dog got out
but he didn't leave. He just went around and sat on the front porch
waiting for us to return. It was bad timing for everybody. The driver had
an outstanding warrant so he radioed for backup. Pretty soon another
police officer showed up and that is the officer that shot the dog. Through
the whole thing we never had any animosity about the police department
or anything. We have been through a pretty tough situation through all of
this. We have always just wanted the dog back. Now this fence will get
all of this correct and we can go back to our quiet little lives. That is what
we want.
Kohler: I guess my second question is in five years if you sale this property and it
goes to someone else and they want to use it as one of the C-2 uses, what
happens to the fence? Does that then become an existing non-
conforming?
Nickle: Unless we state otherwise.
Warrick: Let me just say that the Board of Adjustment is not here to determine the
fence is installed. The Board of Adjustment is not here to overturn a
Planning Commission decision. The Board of Adjustment is being asked
to either uphold my interpretation that the property is commercial or
overturn my interpretation and agree with the applicants that the use of the
property is residential. That is it. That is the question for today. There
are many other issues surrounding what is going on with this property but
that is not an issue that the Board of Adjustment has the authority to
address.
Whitaker: If I may also add, in their presentation the applicant pointed out that it is in
our development code, the sentence "residential uses are exempt from this
requirement." What you have to do is determine whether that is very
clear. If you feel it is then you could rule accordingly to what that means
or if it is ambiguous I will refer you to Mr. Williams' correspondence of
July 91
h regarding and citing to Rolling Time Ltd. v. City of Little Rock. I
could cite a hundred more cases in Arkansas law that cite to the concept
that the zoning laws being the common law, must be strictly construed in
Board of Adjustment
August 2, 2004
Page 12
favor of the property owners. The answer will be if it is clear to you one
way or the other, make whatever decision, either to support the staffs
recommendation or to support the appellant. If you feel like it is very
clear in your mind. If it is ambiguous the law says you need to error on
the side of the property owner. I just wanted to be sure that we were
framed on what we were looking at here today. Also, just a quick
comment, in spite of the County Prosecutor's requirements, the County
Prosecutor has no authority to waive our zoning ordinances. That is why
we are here in front of you today. If you are wondering why that this is
one of the conditions of his plea that we have to act on, that is why. You
still have to obey the ordinances of the city.
Olszewski: I'm seeing sort of a catch 22. When I am looking at this they refer to it as
an attached residential, which attached would comply it is attached to the
commercial. But then they talk about detached residential. There is
nothing in here that talks about a residential only in a C-2.
Warrick: Staff s interpretation would be that if it is within the commercial structure
that a commercial activities as the primary use as well as residential
activities, it would be an attached accessory use.
Olszewski: Which would mean then that the obvious answer would be if it was
detached they would need a Conditional Use to be residential and we
wouldn't be here.
Warrick: Correct.
Johnson: It is neither attached nor detached, it is total. It is completely residential.
Everything that happens there is either a hobby or a home office. This
really is just our house. I would love to show you guys the tape that
shows the interior. You can tell that we sleep there, we eat there, we
prepare our food, we do what everybody else does, we watch TV on the
couch, it is our home. If you were a gear head and you liked fixing up old
cars this would be heaven to you to have an old gas station as your house.
I thought I had found heaven. It is not turning out that way though.
Kohler: I think that the spirit of our new master plan, even though this is outside
the boundaries of downtown, encourages adaptive reuse of structures like
this, it encourages diversity and encourages the longevity of these older
structures. I think it is great what you all have done to that. If anything
like this would deter someone from trying to do the same thing that would
not be good.
Green: It appears to me that the one issue that we have to decide is whether it is
ambiguous or not. Probably the thing that is ambiguous to me is whether
or not we could have an accessory residential, which could become
Board of Adjustment
August 2, 2004
Page 13
completely a residential use, does that mean that we require some
commercial activity in order to have a residential use. To me that is a bit
ambiguous or contradictory in those requirements. Unless we can say we
can have residential but you also have to have as your main use, strictly a
commercial enterprise and you've got to have that activity otherwise, you
can't have the residential. If the answer to that is no you don't then I
would say that it is very ambiguous. As far as erroring on the side of the
property owner I think it would be clear in my mind. That is the issue in
front of us that we can actually address as a Board of Adjustment. It
seems like that is the key issue.
Olszewski: I would go along with that because if there was a third thing that said how
you got to be a residential in a C-2 by Conditional Use or something, that
is not addressed.
Nickle: Can you do a Conditional Use for residential in a C-2?
Warrick: No, it is not a use that is permitted. Mr. Chair, when we are applying the
accessory uses code section, it is staff's charge to ensure that those uses
that are permitted as accessory are accessory to the principal or primary
use of the property. I don't know that staff received an opportunity to do
that in this particular case because permits were not issued to convert this
structure if it is, in fact, wholly residential. That is not something that the
city was ever asked to approve.
Green: How could this be allowed at all?
Warrick: If this is determined by the board to be residential it is a non -conforming
use.
Green: Will it need a separate variance?
Warrick: You can't vary the land use.
Johnson: Are you saying I can't live there?
Warrick: The zoning district allows for residential uses only as an accessory to a
commercial use that is permitted by right.
Johnson: So then I can't live there?
Warrick: So the primary use of the structure is required to be commercial for it to
comply with current zoning.
Kohler: Then we would be creating a non -conforming use?
Board of Adjustment
August 2, 2004
Page 14
Nickle: I have to agree with Mike, the primary use is kind of ambiguous. It is
rather ambiguous to me. I guess maybe at some point the Planning
Commission or the Council will look at an appropriate way to address
these things. What you are talking about is it is going to become more and
more of an issue if it is fallen through. The Ranberry house over here is
zoned C-3 and it is an old laundry and something.
Warrick: I think it went through a Conditional Use process, it is in a different
zoning district with different thresholds of allowances with Conditional
Use approvals. Staff, and the city, we do support having accessory
residential uses in commercial districts. It is a good mix. It keeps
activities on those properties 24 hours per day. It is appropriate. Under
our current constraints they have to be accessory and not principal uses. If
the board determines that the principal use of the property is residential it
is not changing anything in the code. We are talking about this particular
property and what the land use is on this property. It would certainly
change this particular ordinance as it applies to their ability to install chain
link fence. Really what we are trying to get to is whether or not the
property is residential or commercial. If there is any clarification that the
board feels is appropriate with regard to that accessory residential use
section and what criteria should be applied for that I think that is
appropriate but as it is now, like I stated, staff applied that and determined
whether or not the principal use was there and whether or not the
residential use is in fact, accessory to that.
Kohler: What would a future property owner do to get that back from the
residential use? Would they have to go through any process to get it back
to C-2?
Warrick: If someone were to come in and occupy the space and want to utilize it for
commercial purposes they would apply for a Certificate of Zoning
Compliance to change the use of the property. They would need to change
it to a use that is permitted in that zoning district, and in this case, under
the restrictions of a Bill of Assurance that further restricts that zoning.
That is the process that we would go through if they modified the structure
that required a building permit. They would go through the Building
Safety Division to obtain a building permit and list the proposed land use
on it. It would then be reviewed by the City's Planning Office for zoning
approval. As long as it was use as permitted with the underlying zoning
that would be the process of approval.
Thiel: I am Brenda Thiel, Ward 1 resident. What district would allow residential
uses?
Warrick: There are districts listed under that section, Residential Office is one, that
permit residential uses by right.
Board of Adjustment
August 2, 2004
Page IS
Thiel: Shouldn't it be specified a little bit better? It seems like this is their value
that is going to be affected in the future.
Warrick: Council adopted it and we enforce it the way it is.
Johnson: You enforce your interpretation and I have a completely different
interpretation than yours.
Whitaker: Point of order, if everybody could be reminded that all comments in this
hearing should be addressed to the Chair so we don't get into the
everybody shouting back and forth.
Andrews: I see both sides I guess. Because it is a graphic business that is in the
house, that to me could be a residential use of a commercial business. It
could also be a commercial business, it can go both ways. A residence in
a residential neighborhood couldn't just store the automobiles and have
the hobby like his.
Kohler: I think you could if you had a property big enough. It would be
considered a hobby in a residential use if you had enough space to do it.
Would that be allowed as a hobby?
Warrick: Yes, like you said, you would have to have a large enough property that
you could properly screen and store the vehicles so that they weren't
visible.
Green: Another keyword I think that is confusing me a little bit on the way the
ordinance was written it mentioned residential use is exempt. It is not
saying residential zoning or RSF-4 or multi -family or single family. It is
residential use. To me, in order to be consistent throughout with the
residential uses then the residential use as accessory verses residential
zoning which would not carry on this topic, for that, would contradict each
other. We are still getting into an area that I feel needs to be clarified by
ordinance revision or something of that sort. Like Bob stated, this is going
to happen more and more. There are people who are going to want to have
a residential application as single family and multi -family in some of these
places like C-3 where we are trying to get mixed use downtown. We are
going to need to get that clarified I think before we get too many issues
brought up before the Planning Commission and the Board of Adjustment.
I would hope that this would at least create some kind of a plan to start
trying to revise that ordinance making it more clear as to what we really
would be allowing how people can proceed without losing all of their
property and the setbacks in one zoning verses another use in a different
zoning. That is confusing to me.
Board of Adjustment
August 2, 2004
Page 16
Olszewski: I'm thinking about this. This was written in the 70's. If I'm looking
correctly at what Dawn read, § 161 clearly doesn't say anything that you
can live there. The permitted uses don't say anything about a residence
living there. The only thing it talks about a residence is as an accessory,
detached or attached. The way I'm looking at this is what Dawn has gone
through is we have to correct how this was written. It is commercial and
you may or may not have a residence there. The part where we go to chain
link fences and I think that the residential part wouldn't be subject to that.
Then we go to the letter point from the attorney, which is probably out
there to error on the side of the property owner for things that need
changed. These were written 30 some years ago. They probably weren't
thinking of living in a commercial node, now we know people are living in
commercial nodes. Obviously, they do. There is no doubt about that. I
don't know if they are permitted to live there but I don't think the city is
going to kick you out. In that sense, I'm confused. This doesn't even
address the what if people live there. I would feel better if it said if it is a
residence and you live there then you have to get a Conditional Use.
Kohler: I would like to anticipate that the Unified Development Code will be
changed. I think Dover, Kohl and their Master Plan document
recommended ordinance changes. Those are being reviewed and I can't
imagine that these types of things directly will not be addressed because it
is encouraged by most people who buy into the Dover Kohl document. I
would like to not discourage this kind of reuse of a structure by not
allowing things like this because it will happen more. Even though these
ordinances haven't been rewritten yet, I would like to anticipate that they
will. My inclination is to allow this so that we can encourage more, at
least, not discourage these types of development.
Nickle: I'm very reluctant to overturn an administrator's approval. To me there is
some significant ambiguity and looking at the letter from Kit it would
seem that at least the reason to rule in favor of the property owner in this
clarification because the ambiguity. I think you all have seen the
ambiguity. To me I think again, I understand Dawn's reasoning. I think it
is unfortunate that this ambiguity exists in here but it does. We face
ambiguity in life all the time. I guess that's why we are here on this issue.
David, I'm not sure what language to use for a motion.
Whitaker: You would either move to grant or deny the appeal.
MOTION
Nickle: I would move to grant the appeal.
Green: Second.
Board of Adjustment
August 2, 2004
Page 17
Andrews: There is a motion and a second, is there any further discussion? If we do
grant this appeal are there any conditions that we should require one way
or the other?
Whitaker: That is at your discretion. You certainly could ask the Zoning &
Development Administrator for her input.
Nickle: If I understood you correctly a while ago you said if somebody came back
in with a different use and was going to do anything there they would have
to get a Certificate of Zoning Compliance so that would bring it back to
the Planning office at that time, is that correct?
Warrick: I think that it would be appropriate in this case to recommend as a
condition that the applicant apply for a Certificate of Zoning Compliance
for the land use on the property. If this action is approved and the land use
is determined to be residential I will issue a Certificate of Zoning
Compliance with the statement on there that the existing land use is non-
conforming. It will be something that will be on the record for future
reference if necessary and that way we would understand that there was
official action taken. That the land use was interpreted to be residential by
the Board of Adjustment and uphold the applicant's appeal and therefore,
in the future we would be able to have that documentation which is
something that we don't currently have for the use of this property for
future decisions.
Nickle: I would like to amend my motion in that respect.
Green: I will second that.
Andrews: I have a motion and a second. Is there any further discussion? Call the
roll please.
Roll Call: Upon the completion of roll call the motion to grant the appeal was
approved by a vote of 7-0-0.
Thomas: The motion carries.
Board of Adjustment
August 2, 2004
Page 18
BOA 04-1153 (CROSSOVER LIQUOR, 372): Submitted by MANDY BUNCH for
property located at 1890 N CROSSOVER ROAD. The property is zoned C-2,
THOROUGHFARE COMMERCIAL and contains approximately 0.66 acres. The
request is to approve a setback variance for landscaping.
Andrews: The next item before us is BOA 04-1153 Crossover Liquor submitted by
Mandy Bunch for property located at 1890 N. Crossover Road. The
property is zoned C-2, Thoroughfare Commercial and contains
approximately .66 acres. The request is to approve a setback variance for
landscaping.
Pate: This subject property is currently located at the southeast corner of Hwy.
45 and Hwy. 265, both principal arterials on the Master Street Plan. It
does contain the existing Crossover Liquor Store in that location. In the
past few years the Arkansas Highway Department has done considerable
improvements to both widening the road at this intersection and installing
a large concrete drainage channel. There are photographs here provided by
the applicant for what that drainage channel looks like as well as the
overall character of the existing property. Additional property was
required for these improvements and the Highway Department did subject
this property to takings for those improvements. To the south and the east
of the existing store is a large retaining wall, floodplain and a large utility
easement. As part of those takings with the improvements include
approximately 80' from centerline along Mission and 74' from centerline
along Crossover. The Master Street Plan in this area, both are principal
arterials, requires 55' from centerline. Obviously, there is considerable
land that has been taken for these improvements. The variance application
today is specifically to allow for a reduction in the landscape setback
along both Crossover and Mission due to the physical constraints placed
on the property by the right of way taking, the drainage structure, the
existing retaining wall and utility easements on the property. The
applicant is proposing in the near future to construct a new 7,500 sq.ft.
facility on the subject property. We do have some photographs of this.
The applicant can pass those out. This new structure will be required to
meet Commercial Design and development standards as well as all zoning
and applicable development ordinances. Part of those zoning and
development ordinances require 15' landscape buffer exclusive of the
right of way adjacent to rights of way. Portions of the existing parking lot
are actually located outside of the subject property within the state right of
way at that location. Staff could not approve a building permit for
redevelopment of this nature allowing parking within the right of way or
the landscape setback. The applicant is requesting a front landscape
setback variance on both of the frontages for this property. Along
Crossover the ordinance requirement is 15'. The applicant's request is a
13' variance for a 2' landscape buffer along Crossover and 1' along
Mission. As you note in these photographs, there is actually greenspace
Board of Adjustment
August 2, 2004
Page 19
located here that is outside the landscape buffer. This is actually right of
way that would be retained as greenspace that cannot be built in. This
would be exclusive of the existing greenspace that has already been taken
by the Highway Department. With regard to findings, I have mentioned
most of them in the presentation. The subject property has been subject to
takings by the Highway Department of approximately 80' for Mission and
74' from centerline on Crossover. It is greatly exceeding the city's
requirement of 55' from centerline in this area. Staff finds these are
special circumstances. The property could remain in situ however,
redevelopment would be virtually impossible. That has been shown in
some preliminary site development plans. I believe the applicant has some
additional information to show you. Staff is recommending approval of
the requested front landscape setback variances as depicted on the attached
site plan and described in the staff report with two conditions. 1) Within
the existing right of way greenspace between the proposed parking and the
drainage structure additional landscape plantings including trees and
shrubs may be required at the time of redevelopment of the subject
property in order to retain the tree canopy and the parking lot screening
necessary for commercial development at this location. These plantings
shall be coordinated with the Landscape Administrator to ensure
appropriate location and species due to the existence of the drainage
control structure in a nearby vicinity as well as overhead power lines and
are subject to Highway Department approval as well. 2) All applicable
building permits shall be obtained for the construction of this proposed
renovation.
Andrews: Is the applicant or the representative present?
Bunch: Yes Sir. I'm Mandy Bunch with EB Landworks. I'm here representing
the owners of Crossover Liquor. I will pass these photos around. This is
basically the proposed site plan. What we are looking at doing, with the
development of property it is an interesting situation. In this case, what
we've got is a corner of town that is very visible and we are wanting to do
something that will change the look of this intersection remarkably. What
has happened in recent years, Jeremy has mentioned the nuts and bolts
here so I don't want to belabor those. Pretty much we are going to have
40' of greenspace with a concrete ditch between it. I think that this
request is fully in the spirit of what the ordinance was. That is not to have
cars right on top of the main thoroughfare. It was mentioned in the
conditions that we coordinate with the Highway Department to have
plantings within their area. They are generally fairly particular about that.
One thing that we did want to mention expressly though is that we will
actually be removing pavement as we redevelop this from that area. We
will be increasing the existing green area. It is outside, there has been
some dispensation from the Highway Department to leave their existing
parking facility in tact. I believe that this is part of your handout, this little
Board of Adjustment
August 2, 2004
Page 20
exhibit we have done in our office basically shows that there is absolutely
no way to redevelop this site with any parking whatsoever if we don't
proceed with a variance request. The architect is here to answer any
questions. They have got some great renderings of what that intersection
change will be. I'm here to answer any site questions. The owners are
here to answer any owner questions.
Andrews: My first question is is the ATM machine going to be removed?
Bunch: It actually has been removed.
Green: Did the Highway Department put up that chain link fence?
Bunch: Yes Sir.
Green: I can see the purpose of that.
Bunch: If you can see the depth in those pictures it is for safety reasons.
Olszewski: Isn't there a fence along this side too?
Bunch: There are actually two fences there. I'm pretty sure that the hydraulics of
the situation here, this drainage basin is taking over 100 acres. The
hydraulics, the nature of that is that it couldn't be enclosed. It has to have
that overflow opportunity.
Kohler: They could've had the fence on top of the retaining wall or something.
Bunch: There are some leanings to do something different but I don't know that
that is even possible. They are definitely going to improve that corner and
they would love even more than you guys probably, to improve the quality
of that fence.
Nickle: The sidewalk, the fence is a real asset going in there, keeping pedestrians
away from that intersection so I would commend the design of that
sidewalk.
Bunch: That is interesting. We have been trying to track down the history of that.
It is actually the sidewalk that comes up from the highway. It is definitely
pedestrian friendly.
Kohler: What is going on on the east and south where the driveways go beyond the
property line?
Bunch: That is an access easement that was granted as part of the development.
The driveway is fully within that easement. We are battled because it has
Board of Adjustment
August 2, 2004
Page 21
been such a struggle to try to fit everything in here. When the Highway
Department went in and took this corner the utility companies came
marching behind and took the other side. They have architecturally done a
phenomenal job of finding an adequate footprint to fit there.
Warrick: The sidewalk that goes around the back was a condition of approval for
the large development where the branch bank and the various strips are.
Green: There are certainly some site challenges there.
Bunch: You can see the expanse of walls that are from the McDonald's and the
Taco Bell a little bit further down to the south. Those walls actually
extend past the area that we are requiring the variance for. They
maximized their space.
Nickle: All of that was done by a different developer too was it not?
Bunch: Yes Sir it was. If I'm not mistaken, that was pre -15' landscape
requirement.
Nickle: I think this is one of those properties that has had a lot taken from it for
public convenience in terms of necessary right of way for the Highway
Department. This is probably an incredible shrinking piece of property
that over time has been chopped down. Does the applicant agree to staff's
recommendations?
Pate: We do have signed conditions.
Andrews: Is there any member of the audience who would like to address this issue?
Kohler: I move that we approve the request as stated subject to staff's conditions.
Alt: I second.
Andrews: We have a motion and a second. Is there any further discussion? Call the
roll please.
Roll Call: Upon the completion of roll call the motion to approve BOA 04-1153 was
approved by a vote of 7-0-0.
Thomas: The motion carries.
Andrews: Is there any further business to come before the Board of Adjustment?
We will adjourn.
Announcements
Board of Adjustment
August 2, 2004
Page 22