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HomeMy WebLinkAbout2005-02-07 MinutesMINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT A regular meeting of the Board of Adjustment was held at 3:45 p.m. on Monday, February 7, 2005 in Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville Arkansas. Item Considered Action Taken BOA 05-1381 (Thoma) Page 2 BOA 05-1380 (Day) Page 6 BOA 05-1379 (Copher) Page 11 Approved Approved Approved Members Present Members Absent Robert Kohler Sherree Alt Robert Nickle Michael Green Joanne Olszewski James Kunzelmann Michael Andrews Staff Present Staff Absent Suzanne Morgan Leif Olson Renee Thomas Board of Adjustment February 7, 2005 Page 2 Green: Welcome to the February 7, 2005 meeting of the Fayetteville Board of Adjustment. I am Michael Green sitting in for Michael Andrews today who is absent. Renee, can you call the roll please? Roll Call: Upon the completion of roll call there were six members present with Mr. Andrews being absent. BOA 05-1381 (Thoma, 445): Submitted by Greg Thoma for property located at 224 W. Clebum Street. The property is zoned RSF-4, Residential Single Family, four units per acre, and contains approximately .20 acres. The requirement is for an 8' side setback. The request is for a 5' side setback (a 3' variance). Green: We do have a quorum. Seeing no minutes, I presume that we will wait until next time on minutes. The first item under new business is a Variance request submitted by Greg Palma for property located on Cleveland Street. This is a request for a side setback variance. Leif, can you give us the background on this? Olson: This property is owned by Greg Thoma. It is located at 224 W. Clebum Street. Currently a one story brick home exists on the lot. This lot area is approximately 8,800 sq.ft., which does comply with the minimum lot area. However, the frontage for this lot is only 54', which is less than the 70' required. A little background, this subdivision was platted and the existing home was built prior to the adoption of the city's current zoning regulations. Therefore, the lot is considered a non -conforming lot of record. The applicant requests a variance from the side setback requirement of 8' for the purpose of replacing the existing flat roof on the home with a pitched roof. The footprint of the existing structure will not change. However, the roof will increase the overhang and encroach into the side setback. The request is for a side setback variance of 3', which would result in a 5' setback along the eastern property line. Surrounding land use is all single family residential zoned RSF-4. In terms of the findings, staff finds that the existing home was built prior to the adoption of the current zoning regs. and special conditions do apply to this structure which are not applicable to other structures located in the district in terms of many of the surrounding homes with pitched roofs were located directly on the side property lines. This neighborhood is comprised of relatively small lots with comparatively large homes located on them. Finding number two, literal interpretation of the zoning regs. would deprive the applicant of rights that are commonly enjoyed by other properties in the same district. Again, many of the homes were built directly or adjacent to the side property lines. Special conditions do not result from the actions of the applicant. Granting the requested side setback would not confer special privileges on the applicant. No other non -conformities were considered as a basis for findings stated in this staff report. This is the minimum variance that would allow the property owner to construct a Board of Adjustment February 7, 2005 Page 3 pitched roof on the home. Granting the variance would be in harmony with the general purpose and the intent of the zoning regulations and the reasons set forth in the application do justify granting the requested variance. Therefore, staff does recommend approval of the requested side setback variance as described in the staff report with the condition that this shall only apply to the addition or alteration of the structure as currently proposed and shall not be construed to allow further setback encroachments in the future. Green: Is the applicant here? Would you like to say anything? Thoma: I would be glad to answer any questions if you have any but I don't know that there is anything else that I would like to add. Green: Are there any comments from anyone else in the audience? Are there any questions or comments from the Board? Olszewski: I'm wondering if maybe they should go ahead and get a variance for the 54' since this is a non -conforming lot. Olson: It seems like in the past you all have done that and that is perfectly acceptable with staff to bring the lot into conformance. Olszewski: Does the applicant understand that? Thoma: No. Olszewski: Your lot doesn't conform, it is platted at 54' and it really should be 70' with a single family house on it so as long as you are doing a variance I am suggesting that we add that and bring that into conformity too. Thoma: 54' is one of the dimensions of the lot? Olson: Yeah, that is the width of your lot at the street. The current zoning regulations would require 70' and you only have 54'. However, the Board has the authority to grant a variance for that lot width so that would clear up that situation also at the same time. Olszewski: If anything were to happen to your house, knock on wood, technically you couldn't rebuild that footprint without asking for another variance. Kohler: The lot area is ok right? Olson: The lot area is ok, it is just one of those strangely configured lots. Board of Adjustment February 7, 2005 Page 4 Olszewski: Hopefully at some time in the future the city will go back and deal with all of these older platted lots. Are you going to do that at some point in time? Olson: I don't anticipate that we will other than on a case by case basis. We would be granting variances to half of the city probably in terms of these older platted lots. Thoma: Is there action on our part for the narrow lot? Whitaker: That can be granted now. Green: Just another related question, through the review process from the Planning Department, do things like this normally get pointed out to the applicant that there is also a non -conforming lot width? Morgan: We try to look for those. We are usually just reviewing the request that is before us but we will try to keep our eye out for any other variance that would be required. Green: Technically I don't think they could make these alterations, even with the side setback variance, because it is non -conforming. They can't add to the structure without complying with the lot width also, is that correct? Olson: I would say that that is probably accurate. A lot of it is when somebody comes in they speak with a Planning Technician up front and the Planning Technician sees that they are going to have a problem with the setback but they may not look at the lot width or the lot area or the other issues until it comes to a Planner that actually processes the application and then we find it. Whitaker: Is it your recommendation from this Board that Planning implement a policy that these things should be reviewed when projects are submitted? Green: It just seems kind of obvious that part of this was in the text here that it was non -conforming on the width also. If it is one of those things that is pretty obvious it looks like it is another thing that you could add to. Olson: You are just saying that the report added the condition that we bring it into compliance? Green: Yes. I don't expect everything to be caught but if it is kind of obvious and someone could save that extra loop it would probably save everybody a little time and trouble. Does anybody else have a question or comment? Kohler: This is just an overhang issue really. Since that east line is continuous in there any sort of interruption in the overhang would be a detriment to the Board of Adjustment February 7, 2005 Page 5 project it seems like. For the sake of a continuous roofline I think it is a very reasonable request. I have no problem with it. Green: Would you like to put that in the form of a motion? MOTION: Kohler: Yes I would. I move that we grant the variance with the attached condition that staff has recommended, in addition to the additional variance provision that grants the variance for the frontage, the 54', which would be a 16' variance for lot frontage. Olszewski: I will second it. Green: There is a motion and a second to approve the Variance as requested along with staff's conditional recommendation and in addition, to grant the Variance for the minimum lot width required. Is there any further discussion? Shall the request pass? Roll Call: Upon the completion of roll call the motion to approve BOA 05-1381 was approved by a vote of 6-0-0. Thomas: The motion carries. Board of Adjustment February 7, 2005 Page 6 BOA 05-1380 (Day, 445) was submitted by Brett Park for property located at 802 Park Avenue. The property is zoned RSF-4, Residential Single Family, four units per acre and contains approximately .20 acres. The requirement is for an 8' side setback and a 25' front setback. The request is for a 1' side setback (a 7' variance) and a 14' front setback (an 11' variance). Green: The next item on the agenda is a request submitted by Brett Park for a residential, single family dwelling on Park Avenue. This is a request for a Variance in the front setback and side setback request. Leif? Olson: This is kind of in the same neighborhood. This submittal was brought forward by Brett Park for property located at 802 Park Avenue zoned RSF-4, Residential Single Family, four units per acre and containing approximately .20 acres. Currently a 2,676 sq.ft. home exists on the lot. This lot area does comply with the lot area requirement and the frontage requirement, so we don't have any issues with that. The background on this is that the subdivision was platted and the existing home was built prior to adoption of the City's current zoning regs. The home was originally constructed on a portion of two lots with the remainder transferred to another owner. The applicant is requesting a Variance from the side setback requirement of 8' and the front setback requirement of 20' for the purpose of constructing some additions to the home. When they started looking at this they found that a 10" sanitary sewer line bisected the property and kind of goes diagonally across there to the southeast and it seriously alters their ability to put additions on that side of the home. They are requesting a side setback variance of 6'10", which would result in a side setback of 1'2" along the northern property line and a front setback variance of 10'8" which would result in a front setback of 14'4" along Park Avenue, the front property line on the west. Findings, staff finds that there are special conditions that apply to this property. The home was built in 1953. The footprint of the existing home as it is now already encroaches into the front setback by 4'8". Again, the property has a 10" sanitary sewer line that runs diagonally. Across the property, this sewer line is undocumented and does not carry a utility easement per the records that we can find. This was done such a long time ago, those records may exist and we just couldn't locate them. Originally the right of way for Park Avenue was platted at 60' in this location. The street is designated as a local street on the city's Master Street Plan and if it were required today it would only require a right of way distance of 40'. The probability of Park Avenue being substantially widened in the future is unlikely so there is probably more right of way there than what is necessary. Literal interpretations of the zoning regulations would deprive the applicant of rights that are commonly enjoyed by other properties in the same district. Due to the topography and the era in which this was originally developed many of the homes were constructed across multiple lots. Some were very close to the right of way, some right on the side Board of Adjustment February 7, 2005 Page 7 property lines. The alley to the rear of this property was never constructed and other adjoining properties have developed immediately adjacent to this right of way. Special conditions or circumstances do not result from the actions of the applicant. Granting the requested side setback variance would not infer special privileges on the property owner. No other non - conformities were considered as a basis of the findings. The setbacks requested are the minimum setbacks, the minimum variances that will allow the property owner to enjoy the same rights as other property owners in the area. Granting the variance would be in harmony with the general purpose and intent of the zoning regulations. Staff does recommend granting the variance for both the front and the side setbacks with two conditions of approval. The Variance shall apply only to the proposed addition to the structure and shall not be construed to allow further development within the building setbacks. No portion of any structure shall be constructed over existing utility lines or easements. Green: Would the applicant like to add anything to this? Park: At the last minute we caught a small inconsistency in our application. The distance on the graphic on the site plan and the written request that we submitted. We would like to amend that to a variance request of 7' instead of 6' 10", there is a difference there. We apologize for that lack of clarity. Also, the front setback of 14' instead of 14'4", which is a difference of 4" there. That covers it. Green: Your name for the record? Park: I'm Brett Park. Olson: I would like to add one issue. I've been working trying to get an answer from our Sanitary Sewer Department. Typically you have to remain 10' away from a sanitary sewer line and this addition as you propose it where the stairs come down to the east, you are going to be closer than that. That is nothing to do with what the Board does here today but you may have to alter your plan. Park: For the record, I appreciate your comment and appreciate you contacting us. We had a prior conversation about this issue. We can easily address the stair to make it land further from the sewer line. Also, the rear of the house, what is the entry level or the main living level of the house in the rear to the east is cantilevered by 3' so actually where our foundation meets the ground is 7'8" away at the closest point from the sewer line. We would love to be 10' away, we would love not to have the sewer line going through the backyard. At the same time, we are trying to be as far from that as we can and that cantilever allows us to have a little more clearance from that sewer line. Board of Adjustment February 7, 2005 Page 8 Olson: In speaking with our Sewer Department, the only problem with that is it is cantilevered out and you are 7'8" off the ground. However, typically they have to have room to get a back hoe in so the fact that you are 7'8" up and 3' over probably doesn't make that big of a difference to them. Park: Olson: Green: With the line going diagonally, I don't want to put too fine of a point on it, the sewer line goes diagonally across and that is at our closest corner so knowing some pretty hand backhoe drivers I would say that they could arguably get to it from one side and then turn around and get to it from the other side if they had to. We are trying to work with the city on that. That is an issue that you can work out with them. The Board doesn't really have anything to do with that. Just another minor point, if the city doesn't have an easement across there, there is probably going to be a little different interpretation with cooperation there too. Whitaker: As far as the required distance, that is a technical requirement to allow access to a sewer line if it were ever needed. Obviously, one wonders why if there was not an easement why there wasn't. If there were why we can't find a record of it. The requirement certainly for practical concerns of the Water and Sewer Department should there be a need to work on that line remain the same regardless of whether there is an easement or not. From what I've heard described here, it sounds like they are working with you. Park: At the time the property was purchased there was no legal indication. There is nothing in the property owner's records or the deed or anything like that. To the best of his knowledge he bought it not knowing that that was there. It was only through the survey and luckily, our surveyor was thorough enough to discover this. Were it not for him there may be footings dug all over that sewer line. Whitaker: That has happened before too. Green: Is there anyone in the audience that wishes to address this issue? Are there any comments or questions from the Board? Kohler: I can understand the side setback as it aligns with the house but I would like to know what staff's reasoning behind recommending the front setback is. Olson: If you look at your map on page 2.11, like I said in the staff report, this is a local street. However, it was platted with 60' of right of way. If it were platted today we would only require 40' of right of way. I think there is a Board of Adjustment February 7, 2005 Page 9 lot more right of way there than what is probably necessary and the chance of Park Avenue being widened is relatively slim. Kohler: You are just saying that if it was done today that an additional 10' would be virtually in the front yard? Olson: Yes. Kohler: It doesn't change the location of the property line. Olson: It changes the location of that right of way line. This is kind of strange because the way these lots were originally platted. The home was placed on one lot and then they came back and split it the other way and created this. The house that is to the south and the east actually has that whole corner there as it's property. It has been reconfigured over time. It is originally how it was built but maybe not how it was situated on that lot. Kohler: This is the old design issue. I'm just struggling that for the sake of design they are making a current encroachment worse, I'm not saying that's the end of the world, I'm just saying. If they had another 10' affectively then we would be at almost 25' on the addition. Olson: Really if you look at where the street is on the site plan on Page 2.9, their property line is this semi -dashed line but the street is all the way out here. It gives the illusion already that it is setback much further than what it is according to the legal description. Green: It seems like we just recently addressed this next door neighbor. Nickle: If you look at Page 2.11 most of those houses are probably encroaching on the east side of the street there. They were built well before we had a 25' front building setback. Olson: When you drive down that street they are all in a line so visually it is appealing. It is just the modern regulations on these old lots don't necessarily fit with the harmony of how this neighborhood developed in the past. Nickle: I understand that they want to change the request to 7' instead of 6' 10" and a front setback of 14' instead of 14'4", is that correct? Park: That is correct. Board of Adjustment February 7, 2005 Page 10 MOTION: Nickle: I move that we approve BOA 05-1380 noting those two changes that the request is for a 7' variance and a front setback of 14' with the conditions of staff's approval. Kunzelmann: I will second. Green: There has been a motion and a second to approve the Variance as requested except to call for a Variance request of 7' for the side setback and a front setback of 14' along with staff's recommendations. Is there any further discussion? Call the roll please. Roll Call: Upon the completion of roll call the motion to approve BOA 051380 was approved by a vote of 6-0-0. Thomas: The motion carries. Board of Adjustment February 7, 2005 Page 11 BOA 05-1379: (Copher, pp 529) was submitted by Vance Copher for property located at 3504 E. Huntsville Road. The property is zoned RSF-4, Residential Single Family, four units per acre and RMF -24, Residential Multi -Family, 24 units per acre and contains approximately 0.17 acres. The requirement is for a 70' lot width. The request is to allow a 50' lot width (a 10' variance) and 7,476 sq.ft. lot area (a 524 sq.ft. variance) to accommodate an existing non -conforming lot. Green: The third item on our agenda is a request to allow a 50' lot width. This is submitted by Copher's Quality Homes on Huntsville Road, which is a 20' variance in the required 70' lot width and also minimum area requirement is added to the Variance also. Suzanne? Morgan: This property is located north of Huntsville Road. It is also east of an existing manufactured home park. The northern portion of this lot is located within the RMF -24 zoning district with the majority of the property located within the RSF-4 zoning district. A single family home has been removed from this property. It was existing in the past and has since been removed for the future redevelopment of this property. This lot, as was said, does not have the required lot width of 70' nor the required lot area of 8,000 sq.ft. Just as a note, one mobile home does encroach within the northern portion of this property from the mobile home park. This encroachment, however, should not prevent the owner from obtaining a building permit for a single family home if the requested variances are granted. Just a little bit more information on the variance requests. One is for lot width, they are requesting a 20' variance for a 50' lot width. The second is for lot area. There is currently 7,476 sq.ft. of lot area, which would require a variance of 524 sq.ft. The applicant's intent is to construct a two story single family dwelling on the property as shown on the proposed site plan located on page 3.8. Just to note, the site plan provided does not guarantee a building permit. There is quite a bit of information that is lacking on this proposed plan that would be required for building permit review. As for staff's findings, we do find that the subject property, as it is currently owned as an individual lot and not with any adjoining property in common ownership, was created and developed, and previously used for single family purposes. The literal interpretation of the zoning regulations would not allow for construction of a single family home on this property as it has been used in the past. The proposal for the creation of one single family home will not increase the density nor the intensity of the lot's previous use. The proposed structure will conform to all required setbacks within the RSF-4 and RMF -24 zoning district, where appropriate. The lot size and the lot width of this lot is not a result of the applicant's actions. Granting the requested variances will not confer special privileges on this applicant. These are the minimum variances that will needed in order to develop this property and staff finds that granting the variance will be in harmony with the general purposes of the zoning and development ordinance. Staff, therefore, is recommending Board of Adjustment February 7, 2005 Page 12 approval of the requested 20' lot width variance and the 524 sq.ft. lot area variance as shown on the attached site plans. We do recommend three conditions of approval and they are condition one, one single family home may be permitted on the subject property. Any development shall comply with all zoning and development regulations. Condition two, a building permit shall be obtained prior to commencement of any construction. Condition three, all existing structures, easements and utilities shall be located on the site plan submitted for building permit construction consideration. Green: Is the applicant here? Copher: Yes Sir. I'm Vance Copher, CEO of Copher Quality Homes. I will be happy to answer any questions that you have. Green: Would anyone else care to address this issue? Hinkle: I'm Wayne Hinkle, I own the mobile home park. That encroachment on my property is not settled yet. That lot may be 43' less if it goes from the center of the highway instead of on the north side of the highway. It should come from the center of the highway. The legal description calls for it on the north side 150'. Copher: You should have a copy of the survey with a stamp by the county that shows 50'x150'. Kohler: What was your point that you wanted to make again/ Hinkle: I think the legal description got changed somehow. The old man that owned that place, all of the land that came off was from the center of the highway, and that lot was included. They have got it from the north side of the highway which was 43' difference. Kohler: Are you for or against this request? Hinkle: I wanted to get the legal straightened out. Copher: It won't have anything to do with the Variance that we are requesting. There is actually an existing fence you can see. We are still going to comply with all of the setbacks. As far as a legal standpoint, I just obtained the lot the way it was, purchased the way it was, and I'm not asking him to do anything with the mobile home. I don't have a discrepancy with him over the mobile home. I never even discussed it with him so I'm selling the property as is. I'm building a home on it and selling it as a 50'x150' lot just like it stated in the legal description and we Board of Adjustment February 7, 2005 Page 13 still comply with all of the setbacks and it doesn't have anything to do with a Variance. Green: Would that have anything to do with the depth area that is left of the lot? Morgan: If the owners find out that the legal description was basing the southern property line off of the center line of the highway instead of 40' north of the centerline of the highway, it will in essence, change the dimensions of what is buildable. However, based on the information that we found from the county the lot area and the lot width that you are reviewing today, as far as we can tell, was legal. Green: This is probably another separate issue that would be for future consideration if it was found that there is not enough area then if it further reduces the area and we have approved this particular requested area then they would have to come back to this Board or some other authority. Copher: Can I request a lot alteration from what we had requested to reduce it to a lot line alteration to a reduced area which would remove that 42' that he is saying and we could still comply with all of the building setbacks? Morgan: If the applicant did want to pursue a Property Line Adjustment staff would review it however, it would require a Board of Adjustment approval for us to approve a lot that is considerably less than 8,000 sq.ft. Yes, if they wanted to modify, if they found that the legal description was incorrect or wanted to modify this northern property line it would require additional action. Nickle: If you agree to give that 40' up then your bulk area falls below the minimum requirements. Copher: That is what we are asking to amend what we have asked for. Kohler: I don't understand what the difference is. Olszewski: It is 2000 sq.ft., right now it is 524, if you take another 42' times 50' wide it is another 2100 sq.ft. It is a big difference between what is supposed to be 8,000 sq.ft. 7,400 or 7,500 sq.ft. isn't that big of a difference but suddenly 5,400 is a considerable difference. Whitaker: My advice to you is it sounds as though there is a property line dispute pending. Copher: There is not a property line dispute pending. Nobody has said anything to me about a legal action. Board of Adjustment February 7, 2005 Page 14 Whitaker: So what is the issue about where the 40' should be measured from? Copher: I don't have an issue. Hinkle: There is a mobile home on this property. Morgan: According to the survey that was filed for record at the County a mobile home shows that it is located on this property. Hinkle: This is my land. I want to get it straightened out before they put a house on it. Kohler: Do you own the mobile home? Hinkle: I don't own the mobile home. I own the mobile home park. I own the land there. Green: I don't think it is within the jurisdiction of this board to get into a property line boundary dispute, if anything. The only thing that we can do at this point is to consider the request based on the information that is documented by staff at this point and if it proves different then it is going to be another matter. Whitaker: That is my advice to you if there is or might be a dispute over the legal description and/or where the property line is then if that were to ever get to a point that it was in a court and a decision that was made materially altered Mr. Copher's situation, it should wait until that time to come back and then knowing what the changes were, if any, he come back then. I think it is speculative to say what if. Particularly now that I know that there is not any sort of property dispute pending in the courts. It is simply your opinion verses his at this point. Hinkle: There are two attorneys working on it. Copher: 1 don't have an attorney. Hinkle: John Mahaffey split that out and they went to the center of the right of way. I don't know how you can take that 50' and start on the north end. It has changed hands about 18 times in the last 30 years so maybe someone got it wrong. Maybe they went from the north side of the centerline of the highway instead of the north section line of the right of way. Whitaker: That is possible. That is not for this Board's consideration today. If you were at some point to proceed legally against Mr. Copher's interest in the land and it materially changed his situation he would then need to come back here. At this point it is premature for this Board to consider anything Board of Adjustment February 7, 2005 Page 15 about a possible controversy. Whether it is correct or incorrect, you have a filed property description that describes that property. You are being asked for a variance for a potential structure. The property disputes, if at all, is not for you to consider. Kohler: If we grant a variance is there any, what would a possible future change do to that variance? How much of a change would there need to be for that variance to not apply? Whitaker: I think you start getting into what would be a decision you would make when that happens. Kohler: I'm just saying if we grant a variance how far does it run until his condition changes? Whitaker: Strictly speaking, any change at all would at least prompt a review. I would trust that staff would then make a decision based on the facts as they would know them should anything like that occur on whether it can be handled administratively or needs to come back here. Obviously, if in the realm of possibility the property was so reduced in size that it became the variance that you had granted, if you do, would no longer make any sense or allow for the building of the building would have to come back here. That is speculative beyond belief at this point. Copher: It would still comply with all of the setbacks at that point. Whitaker: It would simply change the area of the lot. Green: The 524 sq.ft. variance would not allow him to build on that should the property line be adjusted. It would require another trip before this Board. Whitaker: At this point, you are requesting a variance in the lot area and the frontage. Copher: Correct. Whitaker: If it were granted today I don't see how that would be affected in the sense that what you've already done is said that this bulk, this area and this frontage is ok. The area itself, if it were materially changed, would probably require reconsideration. Again, that would be something we would have to look at when and if anything happened. Olszewski: It would be prudent on the applicant's part if there was a possibility of a lawsuit or a change to not assume that you would have a variance for a smaller lot than 7,500. Whitaker: That would be prudent. Board of Adjustment February 7, 2005 Page 16 Olszewski: That would be prudent because there is no guarantee. Whitaker: At least be aware that it might be an issue down the road. Depending on if anything ever comes up with the property line dispute. Again, I can't see the future and the law doesn't expect this Board to see the future in matters like that. You basically have to base your decision on what the truth is as you know it now. Unless and until a Judge finds otherwise, we are assuming that this property description and this survey is what is true and you need to base your decision on that. If down the road something comes of the dispute, a board may need to reconsider it at some point in time. That is the best answer I can give you on that. Green: Are there any other questions or comments from the Board? Is there a motion? MOTION: Kohler: I move that we approve the Variance along with staff's recommendations. Alt: I second. Green: We have a motion and a second to approve the Variance request as requested along with staff's recommendations. Is there any further discussion? Shall the request pass? Roll Call: Upon the completion of roll call the motion to approve BOA 05-?? Was approved by a vote of 6-0-0. Thomas: The motion carries. Green: Is there any further business to come before the Board? Announcements Green: We stand adjourned.