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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