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HomeMy WebLinkAbout2005-07-05 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 Tuesday, July 5, 2005 in Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville Arkansas. Item Considered Action Taken BOA 05-1585 Page 2 BOA 05-1586 Page 6 BOA 05-1587 Page 11 BOA 05-1589 Page 20 BOA 05-1592 Page 23 Members Present Robert Kohler Robert Nickle Karen McSpadden Michael Green Staff Present Andrew Garner Jeremy Pate Jesse Fulcher David Whitaker Approved Approved Approved Tabled Approved Members Absent Michael Andrews Sherree Alt Staff Absent Board of Adjustment July 5, 2005 Page 2 Green: I will call the meeting to order. I am Michael Green sitting in for Chairman Mike Andrews, who is not here today. I would like to welcome our newest member to the Board of Adjustment, Karen McSpadden. For your information, items number one, which is the Massey Waters, LLC and item three, which is the Milsap Center parking lot has been pulled from the agenda. If you are here to participate in those items we will not be bringing those up today. The first item of business was submitted by Brett Park for property located on Rebecca Street. It is a request for a Variance of the front setback. Fulcher: The property is located at 1004 E. Rebecca Street. The property is zoned RSF-4, Residential Single Family, four units per acre and contains approximately 0.40 acres. The requirement is for a 25' front building setback. The requests are for a 24'8" setback, a 4" variance to bring the existing non -conforming structure into conformity and a second proposal for a 18' front setback, a 7' variance to allow for the construction of a front porch. The subject property is located south of Rockwood Trail and west of Sequoyah Street and is located within the RSF-4 zoning district. Currently there is an existing 2,351 sq.ft. single family home that was constructed in 1965. The existing home on the lot does not meet the required 25' front setback from the right of way. The home was permitted with a 25' setback in 1965 although the overhang is encroaching into the required setback by 4". The applicant is requesting a 4" variance to bring the existing non -conforming structure into compliance and additionally, a 7' variance for a total of 18' front setback for an addition of a front porch. A few of the findings, the home was permitted in 1965 with a 25' front setback. Either the home was constructed closer to the right of way than permitted or the overhang was not addressed with the application process at that time. Therefore, special conditions do exist with regard to the requested 4" variance. For the second proposal, the subject and surrounding properties require a 25' setback by the zoning ordinance. No special conditions or circumstances exist which are peculiar to the land, structure or building involved which are not applicable to surrounding properties or buildings in the same district. Other findings, literal interpretation of the zoning regulations would deprive the applicant of rights that are commonly enjoyed by other properties in the same zoning district. As a non -conforming structure the owner is restricted to the amount of alterations, expansions and repairs that would be allowed under Chapter 164.12 of the Unified Development Code. Regarding proposal number two, the zoning regulations would not deprive the applicant of rights commonly enjoyed by surrounding properties. All structures in this zoning district are required to meet a 25' front setback. Finding three, the request for the 4" variance is not a result of the current owners, but rather, a result of the original builders or applicant in 1965. The request for the 7' variance is a result of the applicant's proposal to add a porch to the front of the existing structure. Based on those findings, staff is recommending Board of Adjustment July 5, 2005 Page 3 approval of the 4" variance to bring the non -conforming structure into compliance, but is recommending denial of the 7' setback for the addition of the front porch. Green: Does anyone have any questions of Jesse? Is the applicant present? Park: I'm Brett Park. Green: Would you have anything to add to staff's recommendation? Park: In the neighborhood, part of our basis for feeling confident in asking for this variance is houses on Rebecca which represent a greater non- conformity than we are asking for. Rebecca is a dead end street and there is no possibility that Rebecca could be continued all the way down to Mission. The house immediately to the east, we measured from the centerline of Rebecca, and got a measurement of 38' from the centerline to the house. Directly to the east we measured from a garage that I think was granted a Variance in 1999 or 2000 and that was 40' from the centerline of the road to the face of the new garage that's there. With our addition we would be to the existing house is 55' from the setback and so our requested Variance of 7' would put that at 48' from the centerline of the road so we are not asking for anything more, in fact, we are asking for considerably less than what adjacent properties have been granted or what conditions exist peripheral to this project. I would like for that to be part of the Board's consideration in your deliberations on this. The other thing that I would like to add is this is a non -conditioned structure, we are just adding a front porch. It is just a covered area over the front porch. It is a very important design request of our clients and it was sort of central to the request that they made, I am not going to try to speak to the deprivation of rights because I don't know ultimately what right any of us have to a front porch. I would just like to say that it is very important to them and that it is something that they feel, and their neighbors seem to support, they have told me that their neighbors are very happy about this happening. I don't know if there are any neighbors here to support that. Thank you. Green: Does anyone have any questions of Mr. Park? Nickle: Is it Stacy Zimmerman that lives next door? Park: Yes. Kohler: I drove by there today and it is extremely wooded. If there was a porch built you could barely see it from the street. There is a lot of vegetation in the front. That garage to the east did seem to be closer than what this Board of Adjustment July 5, 2005 Page 4 would be. There is also an existing front porch there now, it is not covered. Park: It is just a raised concrete front patio. Kohler: I couldn't see any problem. It didn't seem to me that it would change the character of that street by putting a front porch on there. Mostly because it was so hidden behind the vegetation. Green: Is there anyone in the audience who would like to address this issue? Are there any comments from the Board? Nickle: I do remember when we granted that Variance for Stacy Zimmerman's house and so this would not seem to be as much of a Variance even as we granted for the next door neighbor of this house and then more recently, we granted a request for Variance on Highland Street for a covered front porch. Park: MOTION: I would like to add on page 2.16 that the garage to the east is not represented in that graphic, just for clarification purposes. It is on the same side of the street, if you look immediately to the east to the existing footprint of the house, there should be a garage indicated there as a part of that structure and it is just not on this map. Kohler: I move that we approve both requests for Variances with the one condition that staff put on the first request, we would be negating that condition by approving the second request. I would move that we approve both requests for the 4" front setback Variance and the 7' front setback Variance for the proposed addition. McSpadden: Second. Green: We have a motion and a second to approve both the 4" front setback Variance and a 7' front setback Variance for the installation of a front porch. Is there any other discussion? Nickle: Just for clarification, that 7' variance is just for construction of the front porch as indicated on the rendering on page 2.15? Kohler: Yes, that particular addition as described in the documents for a front porch. Green: Shall the request pass? Board of Adjustment July 5, 2005 Page 5 Roll Call: Upon the completion of roll call the motion was approved by a vote of 4- 0-0. Green: The motion passes. Board of Adjustment July 5, 2005 Page 6 Green: The next item of new business is BOA 05-1585 submitted by Paul Brickman. This is a request for a front setback Variance and a rear setback Variance. Jesse? Fulcher: This one was a unique one to look at. If you will look at page 4.11, on the site plan that was submitted, looking at the south property line I marked out where it said 50' for the length of that property line to 45'. There were some inconsistencies in the research that we did in what was shown on the site plan. I believe we worked through this for us to hopefully explain it to everyone and again, broke this into two separate requests to cover it as a non -conforming structure and also to cover additions to it. The property is located south of Spring Street at the intersection of Washington Street and Meadow Street. The property lies within the RMF -24 zoning district. Currently there is an existing 472 sq.ft. single family home that was constructed in 1916. The applicant was asked to provide a survey of the property, but we only received a scaled site plan. Based on the site plan and the information gathered by staff, the existing home on the lot does not meet the required 25' front or rear setback nor does the lot meet required lot area and width requirements. If you look at proposal one, it should read that the applicant is requesting an 18' front setback, a 7' variance from the right of way and a 4' rear setback, which would be a 21' variance to allow for the reconstruction of the northeast corner of the structure. If you look at the site plan on 4.11 you will see the closed in porch area, that was removed with plans to construct into more living area. At that time, staff received a site plan and determined that it is a non- conforming structure. The applicant is also requesting an 11' front setback, a 14' variance from the right of way and a 0' rear setback, a 25' variance. Both of these are to allow for construction of a front and rear deck onto the existing home. Finding two, literal interpretation of the zoning regulations would deprive the applicant of rights that are commonly enjoyed by other properties in the same district. As a non- conforming structure the owner is restricted to the amount of alterations, expansion and repairs that would be allowed under Chapter 164.12 of the Unified Development Code. A Variance is required for the applicant to complete the repairs to the existing home. Finding four, both the remodeling of the northeast corner and the request for the front and rear decks are actions of the applicant. However, the work on the northeast portion of the home is within the original footprint of the structure whereas, the addition of the decks would further encroach into the required building setbacks and increase the non -conformity of the structure. Granting the requested Variance to allow for the repair of the structure within the existing building footprint will not confer any special privileges to the applicant. However, allowing the applicant to further enlarge a non -conforming structure would confer on the applicant a special privilege that is denied by Chapters 160 through 165. Staff is recommending approval of the existing footprint and those Variances that Board of Adjustment July 5, 2005 Page 7 would be required to complete the alterations to the area within that existing footprint. Staff is recommending denial of the two additions of the front and rear porch. We feel that the rear porch, and again, on the site plan, I don't feel that the rear setback line is accurately reflected on here. If the porch were constructed it would be almost on the property line. Staff is recommending denial of the addition of the front and rear porches. Nickle: Jesse, should we have included something to make the lot legal in terms of size and frontage? I don't know what those requirements are but it looks like it might not. Fulcher: The lot is 50'x45' so it is quite a bit short. Really it is a setback encroachment for the non -conforming structure as opposed to the non- conforming lot that is prohibiting the enclosure of this porch area. Pate: You will see several times that we do go ahead and clean up the property while we are here. That is something that we could do here as well. We have worked with this applicant for quite a while. Building Safety has worked with them. There were some issues with the property potentially being condemned because it has been in a serious state of disrepair for quite some time. If you will note the setbacks, there is zero buildable area with a 25' front and 25' rear and it is just a 50' lot. We felt that it was important if this property owner was going to be spending money and put it back in the property that they at least have that footprint. However, extending it beyond, getting on the property line next to someone else, we didn't feel like that was appropriate in this case. It is not a situation that is benevolent at all in this neighborhood. It would be appropriate for you to bring the non -conforming lot into conformance. Kohler: This site plan is way out of scale? Pate: Yes, with the information we could determine it is. ??: I have been working on the place trying to repair it and am representing the applicant who is in Washington, D.C. Basically, the request for a front and back porch, being able to fix the front of the house and putting the deck on it would match up with all of the rest of the buildings on the block which do have porches, which is seven out of eight buildings. It is a L street with very little traffic and there doesn't seem to be any problem with any of the neighbors. We have talked to several of them and they didn't have any objection. There is a house directly behind it that the back porch would be facing. We could downsize the porch to your specifications. Green: Jesse, if I understand you right, the front setback request is not as big of an issue as the rear, is that correct? Board of Adjustment July 5, 2005 Page 8 Fulcher: Kohler: Pate: Kohler: Fulcher: Kohler: Nickle: ??: Nickle: I guess as far as adjoining properties it would be less of an issue. The back porch as shown, if it was constructed as shown it would be close, if not on, the rear property line. The front porch is quite a ways from a less traveled street so it may not be as much of an issue but again, both of them would be a good size addition to a non -conforming structure. If I am doing the math right, if we have a 50' deep lot and we have 18' from the front property line and then you have got 20' for the house that would leave 12' between the house and the rear property line and you have got a 4 ''/2' deep porch that is on the property line or close to the property line? Again, that has been part of the difficulty in getting this to you without a survey. A survey obviously makes it a lot easier to determine exactly where our variances are. The best research that we have without a survey is going back and looking at both the county records and what they show and what we have on our plat maps. That means that there is 12' from the rear of the house to the back property line. I believe that what is not shown on here is where the right of way line is. It carries straight across. That is not representative of where the actual property line is. The 50' actually goes into the right of way as shown with the old county records. Even still, if it is a 7' variance that means that you have got 18' from the property line to the house, no matter what this drawing shows. If the request is for a 7' variance that means that there is 18' from the property line to the house. If this is correct it is a 20' deep house then you have got 12' to the rear. They are requesting a 6' porch on the back. I would say that we should table the request for the porches until we get some accurate information and then I would also be in favor of the request to enclose the area since it does not add to the footprint of the house. I don't think we have enough information on the deck yet. I would hate to turn it down and have it be something else. I am inclined to turn it down because this is inaccurate. Is there some reason that you didn't get a survey? I haven't talked with the owner to find out exactly why. I think it is very difficult for staff to make reasonable recommendations without an accurate survey of the property because that just makes their job terribly difficult and we rely on them and the information provided by them. I don't feel like we have enough information to grant any variances Board of Adjustment July 5, 2005 Page 9 other than the enclosure of the old porch and bringing the lot and house into conformity. Green: Is there anybody in the audience who wishes to address this issue? Is there further discussion or a motion? Nickle: Without denying the variances, can we get rid of the non -conformity and give them the existing footprint, or would it be best to table this? Whitaker: You can, if you wish, pull out those things and make a motion to approve the enclosure and the overall area variances. If I were in your shoes I would try to get a sense from the applicant of whether that would be acceptable and they would go from here or whether they would want the porch variance requests to also be heard and if that is the case it is probably best to table. Nickle: I would think unless there is some urgent reason, assuming the owner is willing to provide us a survey at another meeting, that there would be no reason not to table it at this point. Do you have any input on that? ??: If we could go ahead and enclose this section up in here where the original porch was and then schedule another meeting once we get the survey and everything else done for a back porch. Nickle: If you would withdraw the request for Variances of additions, is that the way to go? Whitaker: It may cost another $25 to have a separate item put on. Nickle: If we vote to give you what you want right now we would have to turn down part of the request which means that you can't come back for a year to make that additional request. If you want to, representing the applicant, if you want to withdraw that portion of the request for the front porch and the back porch additions then we could pull forward on the rest of it. ??: Ok, that's what I will do. Nickle: Jeremy, does that work ok with you? Pate: Yes, we have been working with very limited information and that would be very helpful. Green: The applicant has offered to withdraw proposal number two for the front and rear deck. Board of Adjustment July 5, 2005 Page 10 Whitaker: Green: Pate: MOTION: Nickle: Kohler: Green: Nickle: Kohler: Green: Roll Call: Green: He is withdrawing those and preserving the option to represent them at another time as a separate item. Essentially what we are considering now is Variance request number one, where we are looking at a front setback Variance of 7', a rear setback Variance of 21', and then there is a lot size requirement. This lot is 2,250 sq.ft., it is required to have 6,000 sq.ft., it is also required to have 60' of frontage and this is 50' so that would be a 10' variance for frontage and then a 3,750 sq.ft. lot area variance. I would make a motion that we grant proposal number one listed by staff, in addition, to grant a 3,750 sq.ft. Variance for lot size and a 10' Variance for street frontage. Second. There is a motion and a second to grant the front and rear setback request for Variance request number one and in addition, grant a Variance on minimum lot width and minimum area requirement to make this a conforming structure. The front and rear setback variances are to allow for the reconstruction of that northeast part of the structure. The second goes along with that. Is there any further discussion? Shall the request pass? Upon the completion of roll call the motion to approve part one of the request was approved by a vote of 4-0-0. The second part will have to be reapplied as a separate item. Board of Adjustment July 5, 2005 Page 11 Green: The next item is BOA 05-1586 White/Winkleman property submitted by Brett Park. This is a request for a front setback Variance of 12'. Garner: This property is located at 216 South Street. The existing single family home was built in 1915 and has 660 sq.ft. of heated area with a 91 sq.ft. porch. The property is located within the Downtown Master Plan and many of the homes and structures in this neighborhood contain minimal front building setbacks from the South Street right of way as typical development in this area that was prior to zoning regulations. The proposal is to add 164 sq.ft. of heated floor area for a total of 824 sq.ft. of heated area. As shown on page 5.10 the addition would not increase the existing encroachment into the front building setback. The request is for a 12' front setback variance for a total of 18' setback to accommodate the existing non -conforming home. As a background, the area is surrounded mainly by residences single family and multi -family. The east is zoned R- 0, Residential Office. Staff finds that there are special conditions or circumstances that exist peculiar to this land or structure that are not applicable to surrounding properties. This lot was originally platted and developed prior to zoning regulations and the adjacent lot and several others along this stretch of South Street are built closer to the front property line. Additionally, this lot falls within the proposed Downtown Master Plan. The proposed Downtown Master Plan Code the property would be zoned Neighborhood Conservation and in this district there are no bulk and area requirements. The front building setback would actually be a build to line that would require the structure to be located between 5' and 20' from the front property line. Staff finds that granting the Variance will be in harmony with the general purpose and intent of the zoning regulations and that the location of this structure would be similar in nature to other structures in the area. Staff is recommending approval of the requested 12' front setback Variance as shown on the attached drawing with one condition of approval. That is "No future alterations or additions shall be permitted on the southern portion of the property without Board of Adjustment approval." Nickle: Do you have an anticipated date, or a target date for the passage of that? Pate: Hopefully sometime this summer. We have a policy in place but there are a number of steps to get where we want to go. We are working on the actual zoning ordinances right now. We are in the field walking those boundaries. Dover Kohl established some boundary lines and we are going out into the field and verifying those. That is one of the big steps to determine where those existing lines are. Nickle: Should we clean up a non -conforming lot while we are here? Board of Adjustment July 5, 2005 Page 12 Pate: Yes, we have a 55' lot, it is required to have 60' for a single family residence. The lot area minimum is 6,000 sq.ft. and so they would be fine with that. It is just the 5' lot width variance. A lot of these non - conformities you won't see anymore once that Master Plan is adopted. Just so you are aware too, staff is working on another zoning district proposal that would be a historic district proposal that would recognize a lot of our 50' lots in these older districts. That would hopefully cut down on a lot of the Variance requests that you see. Green: Is the applicant present? Park: Green: Park: I am Brett Park representing Jamie White and Bob Hinselmann I appreciate the clarification on the southern boundary. This is going to be a professional or medical office, not a single family residence. I don't know how that discrepancy came into play but this is going to be Jamie's massage therapy office. I wanted to make certain that our use is in conformance with our application. It is an R -O zoning so there wouldn't have to be any further approvals for that. These are tiny things that we were thinking to ask since we had the opportunity. Page 5.4 under findings, item number four says no additional development shall occur within required setbacks, so we wanted to make sure that landscaping and drives are ok. I believe that's all, just the use, the southern issue and then the clarification on what other development, to define driveways or landscaping and that type of thing. Green: Does anyone in the audience wish to speak? Kautzer: I'm an adjacent property owner and I received notification in the mail of this proposal. I also remodeled a building on Locust Street, my property adjoins it. At the time that I was in the process of remodeling I had to approach the board for consideration of what I wanted to do to my structure. My lot is 168' by 58' and because of the inconvenience of the scheduling I just went ahead and left the structure as it presently existed and didn't make any alterations or changes that would require a variance from the Board. I was interested to learn what it was that was being sought in terms of the Variance because I have considered doing something with that property in the future. The 25' minimum requirement was the problem that was represented to me as being out of compliance. That surprised me since most of the residences adjoining me with one exception, have all been out of compliance for the lifetime of the structures. The imposition of that setback requirement surprised me due to the fact that it was newly invented and not something that the city was showing a concern for up until whenever it was enacted, which I don't Board of Adjustment July 5, 2005 Page 13 Green: Pate: know. I never was notified that it was intended to be a massage parlor. I don't know, at the time when I remodeled the structure that I own, there was a lot of interest in what I was doing with the structure just by the neighbors who were owner residents. I was not. I don't occupy the residences now. I don't know that they were aware of it's use if it was going to be used as a massage parlor. The only notification I received was about a setback change, not that there would be a different use for it than a single family residence as it has been up to this time. It seems to me that it would be advisable more particularly for the neighbors who live there rather than myself as a property owner to be apprised of what the property's intended use is before it would be determined as to whether it should be approved or not. I was also hoping to learn for my own information how stringent do you intent do apply that 25' setback for somebody else, like myself, who might wish to ask for a Variance. At the time because I knew there wasn't anything that I could do to alter that I thought that I might run into a problem obtaining a Variance because it seemed like it was a pretty rigid rule and I couldn't change the position of the structure on my lot even though I had a lot that was quite a bit larger than some of the others insofar as it was so deep. At this point, being a property owner that is adjacent to it, that would've been interesting information for me that it was going to be used as a massage parlor, more interesting if I lived there. If you could help me to understand how easy it would be for me to get a Variance to add another structure or if you would advise me that it would be difficult to obtain. I considered putting an additional structure to the rear of the one that I now own and am renting. Is that something that you would frown upon or something that would be encouraged? I am hoping to learn that so that I won't make the effort of drawing scaled maps and building design plans and anything else that would be necessary if it would be something that would be likely to be approved. I am trying to understand what is preferred or recommended or sought by the city. My name is Tim Kautzer and my property is at 214 S. Locust. To partially answer your question, this Board has a history of granting Variance requests on non -conforming structures that were existing prior to the establishment of the zoning ordinance which made them non- conforming at that time. Jeremy, maybe you could further expand on that and answer his questions on what our process is and what the procedure normally would be for that kind of thing. By our ordinances, each request is individual and unique. We cannot look at other non -conformities. It is something that is pretty consistent however, that staff recommends approval of non -conforming structures and/or lots that were in existence prior to 1970 which is when our current zoning ordinances were enacted. This is a similar situation. Just to clarify, the use here is not in question. They could use the structure as a Board of Adjustment July 5, 2005 Page 14 massage parlor today without going for a Variance because of the zoning of the property. Therefore, this Board is not looking at the particular uses for that property. It is allowed as a Use Unit 12 in the R -O, Residential Office zoning district. We provided copies of the zoning maps, you have R -O, which is also your block on Locust, to the south is South Street, which is also R -O, Residential Office. To the east is Church Avenue with some C-2 and C-3 Commercial properties. There are a number of different uses including single family, two family, office and massage therapy. Kautzer: I knew it was R -O. The adjacent property owners, the people who live there, some of them had an interest in understanding whether the properties would be converted to a commercial enterprise or remain residential. I know when I was in contemplation with doing something with my property, I was approached by a number of neighbors who made a strong emphasis to me that it was their wishes, since at the time I was remodeling the structure that I owned. I wasn't against or for whatever it was that they were expressing to me as their wishes. They made a strong emphasis to me that they wanted the property to remain residential and be a residential neighborhood and not to be expanded into commercial property. If their feelings are the same, I don't know whether they have any influence or any voice on using the property as commercial. That may be something for me to learn. This comes as a surprise to me, the first knowledge that I had that it was being applied for was in a recent mailing. I don't know how many other neighbors would have even showed up here at the meeting if they are as busy as I am if there is nothing that they could do about it. Green: White: It is really an approved and acceptable use for that zoning district which means that they don't have to get any further permission from this Board or from the Planning Commission. If it is a non -conforming use then the Planning Commission would have to consider that but that still is outside the jurisdiction of this Board. The only thing that we can really consider from the standpoint of this Board is on the setback Variance request and the non -conforming structures within those setbacks right now. I am Jamie White, I also sent a letter to the neighbors. I would like to clarify that it is massage therapy, not a massage parlor. I have been a licensed massage therapist for 13 years and have talked to all of my neighbors on South Street. They are very excited to have me be there. I was aware that I am in the proper zoning because I have been trying to find a property for a number of years. I personally sent letters to everyone that you sent letters to and asked them to call me with any comments or questions that they had. Board of Adjustment July 5, 2005 Page 15 Kautzer: Green: Nickle: Pate: MOTION: Kohler: Green: Kohler: Nickle: Green: My understanding was at the time that I was investigating my property that the minimum width was more of a consideration and a concern than was the setback from the street and that most of the properties there are short of 60'. Mine is 2' short of 60', even if it is deeper. That was spoken to me as being a problem for obtaining a permit to make my property into a duplex or use it in a commercial fashion. That was just a conversational discouragement that I heard because the fact that the width Variance was going to be a problem in addition to the front setback. If that is not a concern and if it is going to be used in a commercial fashion now and that is information that I am learning, I hope that I am clear. The best way for you to do this is take your particular project and your questions to the Planning Staff and see if there are any potential problems and get their advice as to how you should proceed. Right now I think we need to focus on what this Board's jurisdiction is and what the issue is before us on this particular project. If you want to submit a project for your construction later on that is going to be another stand alone issue which staff can give you some advice on. Are there any other comments from the audience? Just as a clarification, the 60' frontage minimum is ok for R -O? That is correct. It would also allow for the lot to be utilized again as a single family home. This one to me seems like a no brainer as far as a non -conforming structure. They are not making the front setback any worse than it already is. They simply have to get the building into conformance so they can add the rear, which is well within all of the setbacks. I would be inclined to support the request. I move that we approve the request as written with the condition that staff added. Do you also want to include the 5' lot width variance? Yes, to bring the lot into conformance and include the 5' width Variance. Second. We have a motion and a second to approve the 12' front setback Variance as requested along with staff's one recommendation and to also approve a minimum lot width Variance of 5'. Is there any further discussion? Shall the request pass? Board of Adjustment July 5, 2005 Page 16 Roll Call: Upon the completion of roll call the motion to approve the Variances was approved by a vote of 4-0-0. Board of Adjustment July 5, 2005 Page 17 Green: The next item is BOA 05-1587 submitted by Tom Johnson for property located on S. Gregg Avenue. This request is for a front setback Variance of 13'. Garner: This property is located at 303 S. Gregg Avenue. An approximately 816 sq.ft. single family home is in the process of being finished at this time. The existing older home that was on this site was in disrepair and was removed prior to construction of the existing home. For setting purposes, the property is located immediately east of the Arkansas Missouri Railroad Corridor and is within the Downtown Master Plan. In this portion of the city Gregg Avenue is very narrow with approximately 19' of pavement and has a lot of old mature trees and a mix of older homes associated with Downtown Fayetteville built prior to zoning regulations. In January, 2005 the Board of Adjustment approved a Variance to allow for a 10' front building setback on an existing non -conforming home adjacent to the subject property also under the same ownership. At that time the subject property was also under construction and it was apparent that the structure would also encroach into the front setback. However, at the Board of Adjustment meeting the Board decided not to grant a variance for the subject property at that time but to wait until an application for a Variance was filed. The applicant has filed a Variance for this project and the request is for a 13' front setback Variance for a total of 17' setback to accommodate the home and front porch. You can see the diagram on page 6.10 sketches out the various requests. Land uses, multi -family to the north and single family to the south and east. The railroad corridor is to the west. Staff finds similar to the previous request, that there are special circumstances and conditions that exist peculiar to this property as it was platted and developed prior to zoning regulations. Several other structures along Gregg Avenue are built close to the front property line. The Downtown Master Plan would actually not require a front setback requirement and would require a build to line between 5' and 20' and the proposed 17' front setback would not require a Variance for the property. Staff finds that the requested Variance will not confer special privileges on the property and also finds that granting the Variance would be in harmony with the general purpose of zoning regulations and will not be injurious to the neighborhood as the location of this structure is similar in nature to other structures within the area. With that, staff is recommending approval with one condition, that no future alterations or additions shall be permitted on the eastern portion of the property without Board of Adjustment approval. Green: Is the applicant present? ??. The only question I have is how we ended up with a house over the line. We took three lots and made them into two and redid the survey. At that time the property was 15' from centerline with a 5' utility easement and Board of Adjustment July 5, 2005 Page 18 another 30' for a total of 50' and that is where the house currently sits. I am not sure how I got 55' and you are now telling me that the house is 5' over. I was working with you all through this whole thing. Garner: When I pulled the building permit for this it appears that for some reason they had listed the front building setback at 25' and for this area it should've been 30'. That is kind of correcting that item. At this point it is realizing that it should've been a 30' setback as opposed to 25'. I'm not sure if there is some history involved. ??. It was my understanding that it was 15' from centerline of Gregg and a 5' utility easement and then we set the house back another 30'. Unless Gregg Street is wider, I thought we had it. Garner: Looking at your building permit, your building does meet what your permit requires. I looked through the building permit and talked to Jeremy about it as well and we couldn't understand why the front building setback showed 25' from the edge of the right of way. ??: I brought in a couple, the first one was 25' and then 30', but that is irrelevant. Pate: I think the misunderstanding is the fact for most single family residential neighborhoods you have a 25' front building setback. In R -O you do have a 30'. Anderson Surveying is indicating a 50' right of way for Gregg so that is what we are going off of. Green: Would anyone else like to address this issue? Are there any other comments or questions for the board? Kohler: Had it been built on the 30' setback the request would only be a 8' variance. ??: It was my understanding that we were beyond the setback. Kohler: I assume that staff would have recommended approval for a 8' variance in that case as opposed to 13'? Pate: Yes, that was one point that we looked at but again, we have to look at the overall neighborhood character with other structures and other variances that have been approved. Specifically, the one to the south of this. It was called out 25' but in reality, this is correcting that as well. The variances approved with your motion allowed that to become conforming much in the same way as it would in this one. We did look at the minutes and that was part of that discussion. Board of Adjustment July 5, 2005 Page 19 MOTION: Nickle: I move that we approve the request BOA 05-1587 with staff's recommendations. McSpadden: Second. Green: There is a motion and a second to approve the requested setback variance along with staff's recommendation. Is there any further discussion? Shall the request pass? Roll Call: Upon the completion of roll call the motion to approve the Variance was approved by a vote of 4-0-0. Green: The request passes. Board of Adjustment July 5, 2005 Page 20 Green: The next item is BOA 05-1589 submitted by Ashley Mattingly for property on Stardust Lane. This request is for a side setback Variance on both the northwest side and on the south side. Andrew, are you going to fill us in on this one too? Garner: This property is located at 1667 N. Stardust Lane, Lot 12 of the Crossover Heights Subdivision Phase II. This lot was platted in January, 1993 and is zoned RMF -24. Since that time, the structure was built on the property and is subject to required building setbacks, also subject to a utility easement that extends 7 ''A' into the property along the northwest property line and contains an active city sewer line. It is also subject to a 25' easement and building setback along the Stardust Lane frontage. The applicant received a building permit to construct a deck around an above ground pool in the Fall of 2002. The permit, as approved, specified a minimum 8' setback along the side lot lines. When the deck and pool were completed, in the process of construction, were constructed 2' from the northwest property line and within 4' of the south property line in violation of the building permit and the existing utility easement on the property. Page 7.11 shows photos of the deck and pool and page 7.12 shows a copy of the signed building permit. The Building and Safety Division issued a violation notice to the applicant in December, 2004. The issue wasn't resolved and the city's Prosecuting Attorney issued a follow up letter to the applicant in Spring, 2005 requiring the violation to be corrected within 30 days. The proposal is for a side setback of 2' on the northwest side and a 4' setback on the south side. Staff finds that there are no special conditions or circumstances which are peculiar to the property or structure involved with this request. The lot was platted in 1993 in accordance with current zoning regulations and has ample space on the property for reasonable uses. Staff finds that literal interpretation of the zoning regulations would not deprive the applicant of any rights enjoyed by surrounding properties. Staff also finds that the building setback variance is a direct result of the actions of the applicant. A permit was issued for construction of the deck which met all applicable ordinances. Planning Staff cannot approve the Variance for a deck and above ground pool in the existing location due to an existing setback and utility easement. We discussed the utility easement and a sewer pipe line with the Engineering Division and they do confirm that there is an active sewer pipe line that is being used there at this time. Even if a Variance were approved, the applicant would still have to remove those structures from the utility easement because of the sewer facilities in this area. With those findings, staff is recommending denial of this project and recommends that the existing structure be removed or relocated outside of the required building setbacks and the existing utility easement adjacent to the northwest side of the property line. Green: Would the applicant like to address this issue? Board of Adjustment July 5, 2005 Page 21 ??. I wanted to know if I could request a continuance. The information that I received from Mr. Garner was sent to me on July 1s` before the holiday weekend and I have not had a chance, his findings are very new to me and this is the first time that I've been able to read this. I originally applied for the Variance on May 25`h. I wasn't contacted until June 13th or 14th with some questions and did not receive an email until Friday which I then spoke to Brent O'Neal with the Engineering Division, he said that he would have someone come out and mark that utility line. He took a vacation day on Friday and I called this morning and have not heard back from him. I am asking if there is a way that I can get in touch with him and look at this matter where I can better understand this. Obviously, I understand what is going on but is it possible to reapply or give me 30 days and meet at the next meeting so I can seek assistance on this or at least get in contact with Brent O'Neal in the Engineering Division to come out and mark those lines? Green: Do you have any comments about that request or a time line? Pate: If you would like to grant the request of the applicant and table for 30 days that is fine. We will get this on the next agenda that it will be ready for hearing unless you are ready to make a decision now one way or the other. Kohler: By doing that, would that relieve the citations that they have been getting? Pate: What we typically do, we try to work with the Prosecutor's office, if it is in process, right now the reason that it is here is that a building permit was rendered and they have to meet the city ordinances and those have been violated. Therefore, a notice was sent to the home owner and forwarded to the Prosecutor's office. They came to us looking for a Variance request. Even if a Variance request were granted today that would start the time clock again because the easement issue is a big issue because there are utilities within that easement. Kohler: She wouldn't continue to get violations because it is in the process. Pate: That is correct. Obviously, that is within reason if it is continued forever that is something that they would take control of. ??: I understand that. I am just asking that I have some more time to go over this 28 page email that I receive. With the holiday weekend I was prepared for this meeting but I wasn't checking emails. To have this come across my desk this morning is a little too much to swallow. I called Brent O'Neal to set up a meeting but haven't been able to get in touch with him. I called him twice last week before I heard back. Board of Adjustment July 5, 2005 Page 22 MOTION: Kohler: I will move that we table the item until a future date. Nickle: Second. Green: Shall the item be tabled? Roll Call: Upon the completion of roll call the motion to table the request was approved by a vote of 4-0-0. ??: Can you tell me what I need to do to continue through the process? Pate: Just get in touch with staff and let us know if you want to be on the next agenda. Board of Adjustment July 5, 2005 Page 23 Green: The next item on our agenda is BOA 05-1592 submitted by Richard David Hart for property on Prospect Street. This request is for a side building setback Variance of 3.5'. Garner: This property contains approximately Yz acre located at 510 Prospect. It is zoned RSF-4 and currently has a 3,500 sq.ft. single family house, a 378 sq.ft. detached carport and a 159 sq.ft. shed located on the lot. The house, carport and shed were built with the 4.5' building setback prior to city's zoning regulations. Subsequent adoption of the city's zoning regulations in 1970 required an 8' building setback. As a result, the current carport and shed in the southeast corner of the site are non -conforming structures. The applicant proposes to enclose the carport to make a 552 sq.ft. garage and enlarge the existing storage shed from 159 sq.ft. to 230 sq.ft. The proposal would expand the footprint of the garage and shed to the north but would not expand the footprint further into the existing side setback to the east as shown on page 8.10. The request is for the existing carport and shed be allowed to have a 4.5' setback, a 3.5' variance. Staff finds that special conditions do exist for this property peculiar to the existing buildings. They are non -conforming structures that were built prior to zoning regulations. With that, staff recommends approval of the requested setback Variance with three conditions. Condition one, the requested Variance shall apply to the existing structures as shown on the attached site plan. Condition two, any development or expansion of the existing structure shall not encroach any further than existing into the required building setbacks. Condition three, building separation is required between the home and accessory structures in conformance with building safety requirements unless the home has sufficient up to code fire walls. Green: Would the applicant like to add anything to this? Hart: That is the first I heard about the distance between the home and accessory structure separation. What are the requirements? Pate: It is to comply with the Fire Code and Building Code requirements so when you submit your building permit they will review that. Kohler: Is that true for enclosed as well as open carport? Pate: It is not true for open. Kohler: The fact that he is enclosing it makes that an issue. Green: He may have to have a one hour fire wall or something of that sort. Pate: I just wanted to leave it open. There are certain times that you can add a one hour fire wall or two hour fire wall or no openings or more enclosures Board of Adjustment July 5, 2005 Page 24 and those things are all building code and not necessarily zoning so I would rather keep that out of this. Green: Are there any other questions or comments? McSpadden: Are you adding height as well? Hart: We will add a little bit of height to the peak, it will move over 1' so whatever that is. McSpadden: But you are not putting an apartment or something of that nature? Hart: No. Kohler: Did you receive any comments from adjacent property owners? Hart: No Sir. Green: Since there is nobody in the audience I suppose we aren't going to have any public comment. MOTION: McSpadden: I move that we approve this recommendation from staff for a Setback Variance of BOA 05-1592 along with the three conditions. Nickle: Second. Green: There is a motion and a second to approve the request as submitted along with staff's three recommendations. Is there any further discussion? Shall the request pass? Roll Call: Upon the completion of roll call the motion to approve the Variance was approved by a vote of 4-0-0. Green: I believe that concludes the items on our agenda. Is there anything else that we should consider at this time? We are adjourned. Thank you.