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HomeMy WebLinkAbout2005-03-07 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, March 7, 2005 in Room 111 of the City Administration Building, 113 W. Mountain, Fayetteville Arkansas. ITEM CONSIDERED ACTION TAKEN BOA 05-1405 (Warren, pp 360) Approved Page 2 BOA 05-1406 (Shake's Bldg, pp 559) Approved Page 6 MEMBERS PRESENT MEMBERS ABSENT Robert Kohler Michael Andrews Sherree Alt Robert Nickle Michael Green Joanne Olszewski James Kunzelmann STAFF PRESENT STAFF ABSENT Suzanne Morgan Leif Olson Tim Conklin Board of Adjustment March 7, 2005 Page 2 BOA 05-1405: Warren, pp 360 was submitted by Kimberly & Bruce Warren for property located at 2078 N. Freedom Place. The property is zoned RSF-4, Residential Single Family, four units per acre, and contains approximately 0.33 acres. The requirement is for a 25' front setback on each frontage. There are two frontages on the subject property. The request is for a 25' setback (a 1' variance) and a 23' setback (a 2' variance). Andrews: I will call the meeting to order for Monday, March 7th Board of Adjustment. Suzanne, will you call the roll please? Roll Call: Upon the completion of roll call there were seven members present. Andrews: The first item on our agenda is the approval of the minutes from the Monday, January 3rd meeting. Does anyone have any changes or corrections to those minutes? Hearing none, we will put those into the record. The second item on the agenda is the approval of the minutes from the February 7m meeting. Are there any corrections or changes to those? Hearing none, we will enter those into the record. Next is new business, BOA 05-1405 submitted by Kimberly and Bruce Warren for property located at 2078 N. Freedom Place. The property is zoned RSF-4, single family and contains approximately 1/3 acre. The requirement is for a 25' front setback, there are two frontages on the property, the request is for a 24' setback on one frontage and a 23' setback on the other frontage, which is a 1' and 2' variance. Would staff like to give us a comment please? Olson: Sure. The subject property is located at 2078 N. Freedom Place. Currently a two story brick home exists on the lot. This lot was platted in 1999 and complies with all of the city's bulk and area requirements. This home was built in 2000 and I have attached the building permit application. The builder was aware of the setback requirement, however, somehow in measuring the setbacks they located the home a little too close to the front setbacks on both sides. The encroachment into the front setbacks is minimal with approximately 96 sq.ft. on the north side of the home and approximately 10 sq.ft. of the front porch encroaching into the setback. The applicant requests a variance from both of the building setbacks. This will result in a variance of 2' or 23' setback along the north property line, and a variance of 1' resulting in a 24' setback along the west property line. Staff does recommend approval of the requested variances for the structure as it currently exists. All of the surrounding land use in this area is zoned RSF-4. In terms of the findings, staff finds that special conditions do exist for this property. Literal interpretation of the zoning regulations would deprive the applicant of rights commonly enjoyed by properties in the same district and that special conditions or circumstances are not the result or actions of this applicant. Staff does recommend approval of VAR 05-1405 with the condition that the variance shall apply Board of Adjustment March 7, 2005 Page 3 only to the existing structure. Further additions or alterations shall comply with building setback requirements for the zoning district. Andrews: Thank you. Is the applicant present? Is there anything that you would like to add? Warren: I think he just said everything. If you would like to ask me any questions I would be happy to answer them. Slackwood: My name is Joel Slackwood, my wife Shelly and I are the new owners of the property. I have to admit that I don't really understand what setbacks and variances and all of that apply I think I have picked it up over the last month or so. My question really is at some point down the road five years or ten years, if we decide to sell the house, are we going to have to go through this process all over again? Andrews: No, this will take care of the existing structure for as long as that existing structure is existing. If you have destruction of more than 50% of the structure and it has to be rebuilt more than half then yes, you would have to go through the process again. Other than that, no. Nickle: David, what is the mechanism for a title company to pick this up? Is this filed at the court house? That's how this goes with the survey, etc. I'm trying to prevent in the future. We know that it is done or assuming that it is done, how does a title company pick this up? Whitaker: I don't know as a general rule that these are actually filed are they? Morgan: No they are not. Whitaker: In most cases what I understand from reading the staff report, that the title company in this case was one of the prime members who asked that this be accomplished. I never understood that they were actually filed in the Circuit Court. Nickle: Obviously, if some future buyer doesn't use the same title company this is going to be flagged again, I'm just trying to think through. Olson: It would come back to us in Planning and we have a point of reference in our GIS mapping system so it would come up and cue us in that a variance had been granted and we can go back and find this file. Whitaker: That is probably the proper way to pursue it since these are our requirements. The County doesn't really care about our setbacks, which is why everybody has to come here to get a variance. Board of Adjustment March 7, 2005 Page 4 Kohler: I would like to ask a quick question since Tim Conklin is here. Why are surveys not a requirement of a new home construction to avoid things like this? This could have been an honest mistake by the builder because he wasn't required to work off of a survey. Conklin- I think cost is the biggest issue. We've made a lot of progress over time. When I first arrived we used to take 8 yz x11 paper out and draw the site plan for the home owner or contractor, staff would. Now we get scaled site plan drawings. I think the biggest issue has been the cost. If you did get a survey up front they could still make a mistake on building the structure and if you did an as built afterwards you wouldn't catch the mistake until it was done anyway. Nickle: To answer your question more specifically, a lot of lenders now, if it is a specific platted lot and block number, often don't require surveys. If you go get an FHA loan or something like that, I don't think they require those. Kohler: I know in other cities they do require them and here they don't. Nickle: It is not necessarily a city requirement, but the lender is the one who usually wants it. Kohler: Lenders in other cities that I've seen have that requirement. In Dallas I've had to do that several times. I'm just curious is the cost issue that you don't want to make a builder incur the cost of a survey? Conklin: Yes, requiring a survey for every home being built is just the cost involved in that. I'm aware and most of you that buy and sell property, when you get your title insurance if you don't have a survey they can't ensure that the easements and setbacks are correct. Nickle: It is an exception in the title cost. Conklin: I've been aware of that. My personal friends and family I always recommend that they get surveys. For you guys at the Board of Adjustment, for years I did the Board of Adjustment and there are many issues out there and my guess is that there will be many more variances before you because you won't find out about what has happened until five or ten years from now when there are additional problems out there. Alt: My suggestion is to keep your survey together with your paperwork from closing so when you go to sell your home you will have that as well as a hard copy of the variance approval. That would probably work. Board of Adjustment March 7, 2005 Page 5 Warren: This particular situation was a strange one because it was a house that foreclosed because the builder passed away while he was building it so I think there were probably a few things that went on. The reason why we didn't get a survey done is that our realtor actually told us that we didn't need one because the subdivision was platted. To answer your question, it may be to go to the source of the people selling the real estate, when someone tells me that I don't need something then I'm not going to pay for it. Nickle: Andrews: MOTION: Kunzelmann: Olszewski: Andrews: It is not, in many cases, a lender requirement. Some lenders do require it but often they don't. I personally would never tell anybody don't get it if you don't want to just because you don't need it. Are there any further questions? l will entertain a motion. I move that we approve the variance as requested with staff's recommendations. I will second. There is a motion and a second. Is there any further discussion? Suzanne, would you call the roll please? Roll Call: Upon the completion of roll call the motion to approve BOA 05-1405 was approved by a vote of 7-0-0. Board of Adjustment March 7, 2005 Page 6 BOA 05-1406 (Sang/Hollywood Shake's Building, pp 559) was submitted by the City of Fayetteville for property located at the northwest corner of Sang Avenue and 6th Street. The property is zoned C-2, Thoroughfare Commercial and contains approximately 0.39 acres. The requirement is for a 50' front setback. There are four front setbacks on the subject property. The request is for a 21.22' setback on Old Sang (a 28.78' variance; a 14.12' setback on 6th Street (a 35.88' variance); and a 37.32' setback on Old Farmington (a12.68' Variance) to accommodate the existing building footprint on the site. Andrews: The second item on the agenda is BOA 05-1406 submitted by the City of Fayetteville for property located on the northwest corner of Sang Avenue and 6th Street. The property is zoned C-2, Thoroughfare Commercial and contains approximately .39 acres. The requirement is for a 50' front setback. There are four front setbacks on the property. The request is for a 21.22' setback on old Sang (a 28.78' variance); a 14.12' setback on 6th Street (a 35.88' variance); and a 37.32' setback on Old Farmington (a 12.68' variance) to accommodate the existing building. Morgan: Just a little background, in 2003 the City of Fayetteville actually purchased this property in order to construct improvements in that intersection of Hollywood Avenue and 6`h Street. As a result, some rights of way were vacated and improvements were done. The result is this property is zoned C-2 and is surrounded by four rights of way and requires a 50' building setback adjacent to each of those. The existing structure is non -conforming in that it encroaches on most all of those setbacks with the exception of the setback on Hollywood Avenue. At this time the applicant, being the city, is requesting this variance to create a situation where the structure is conforming, to grant variances so that the structure is a conforming structure. Staff is recommending approval of this Variance. We feel that there are special conditions which do exist for this property that are not applicable to other lands in the same zoning district. If all of these setbacks were to be applied there would be no buildable area on this property. Staff finds that granting this variance will allow the owner to use this property for the use which it is intended, commercial use. Staff is recommending approval with four conditions. Those are the setback variance shall apply only to the footprint of the existing structure shown on the site plan submitted for this request. No expansion or reconstruction of the existing structure without Board of Adjustment approval shall occur within the required setbacks as established by zoning with the exception of those noted herein. Condition three, a building permit shall be obtained prior to commencement of any construction. All existing structures, easements and utilities shall be located on the site plan submitted for building permit consideration. Finally, condition four, a Certificate of Zoning Compliance shall be issued prior to occupancy on the structure. If you have any questions I'll be happy to answer them. Mr. Conklin is also here representing the city. Board of Adjustment March 7, 2005 Page 7 Conklin: We also have Mr. Steve Davis. The property is under contract and has been approved by the City Council. The potential new owner is here also. Kohler: On your second condition, I'm just curious what the city defines as reconstruction. No expansion or reconstruction of the existing structure, that doesn't mean remodeling it does it? Morgan: No. It could be remodeled. If there are substantial improvements that would encroach on those setbacks. I suppose just expansions. Kohler: Just take out reconstruction or change of the footprint. Morgan: Again, if this structure were to be demolished at any point in time, if you do want this variance to apply to any future construction within that footprint if they did want to demolish that building that could be discussed later. Conklin- I think we are trying to guarantee that he could rebuild if a tornado tears the building off the site, that he does have a building footprint envelope that he can rebuild in. After you stated that condition, I wanted to make sure that it is clear that the intent is to allow for a building footprint envelope with all of the setbacks to allow him to rebuild. Morgan: We can strike the wording reconstruction. Kohler: I just wanted to make it more clear or just to say that remodeling doesn't constitute reconstruction. Nickle: I think the intent from Tim's standpoint or view is to allow reconstruction. You have that 50% rule, in this case because it is a commercial business as opposed to a residence, I think it might be appropriate for us to delete the "or reconstruction" phase in that staff recommendation in order to ensure that he could rebuild in that same footprint. Conklin: That is the intent. I don't want to speak for the potential new owner but the site is very constrained and not being able to rebuild within that footprint is going to make a parking lot. Green: This is kind of looking ahead to a total different entity outside of our jurisdiction but what is going to happen when the parking issues and the greenspace, is this lot physically large enough to accommodate all of the other rules or are we just the first step in a process that it is going to have to go through? Conklin: After we acquired the property I had our surveyor create a new legal description dedicating 55' of right of way from centerline. We had the Board of Adjustment March 7, 2005 Page 8 Davis: contractor out there when they were reconstructing the intersection to tear out the asphalt in front for landscaping, 15' of landscaping, the intent is to make it comply with our city ordinances. That is why there is grass out in front and we even talked about the curb cut as part of the contract with access onto Old Sang and onto Old Farmington. We are trying to plan for the future and we do have a right of way shown and greenspace out on the road. I am sure the applicant would love to have more area for parking but when we marketed the property it was clearly stated what bounds they had to develop in. I had a question about that. I thought we may have to ask for a variance on the 15' of greenspace because the corner of the building doesn't allow enough area to back up cars comfortably and pull out. I have shown this to two or three people in the Planning Department. Conklin: It is still showing 15' of greenspace. Davis: That would be something that we would have to ask for a variance on? Conklin: Under our current ordinance, yes. Green: That is from the Planning Commission, not us. Andrews: Are there any other questions? MOTION: Kohler: I move that we approve the Variance as stated along with the four conditions by staff with the exception of condition number two to strike the words "or reconstruction". Green: Second. Andrews: We have a motion and a second. Is there any further discussion? Would you call the roll please? Roll Call: Upon the completion of roll call the motion to approve BOA 05-1406 was approved by a vote of 7-0-0. Andrews: Thank you for your years of service. Announcements