Loading...
HomeMy WebLinkAbout2005-10-04 MinutesMINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT A regular meeting of the Fayetteville Board of Adjustment was held on October 4, 2005 at 3:45 p.m. in Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS DISCUSSED BOA 05-1730: (SOUTH FAYETTEVILLE DEVELOPMENT, 563) Page 4 BOA 05-1757: (CONOCO STATION, 405) Page 6 BOA 05-1758: (BENEFIELDS, 485) Page 13 BOA 05-1759: (BRASEL, 283) Page 24 ACTION TAKEN Approved Approved Approved Approved Board of Adjustment October 4, 2005 Page 2 MEMBERS PRESENT MEMBERS ABSENT Sherrie Alt Robert Kohler Bob Nickle Karen McSpadden ? Green ? Andrews STAFF PRESENT STAFF ABSENT Jeremy Pate Andrew Garner Suzanne Morgan Jesse Fulcher David Whitaker Board of Adjustment October 4, 2005 Page 3 ?. The first item on our agenda would be approval of some minutes for August 1st meeting. Everybody has got a chance to review those, are there any corrections or changes? Bob? Nickle: On Page 13, second paragraph, second sentence, "The traffic in that area has just gone" and it should be actually "grown." That's all I have. ?: I was absent, so I have no opinion. If there are no other changes, we'll enter those minutes into the record. Board of Adjustment October 4, 2005 Page 4 BOA 05-1730: (SOUTH FAYETTEVILLE DEVELOPMENT, 563): Submitted by MANUEL L. JONES for property located at 1049 S. WASHINGTON AVENUE. The property is and contains approximately 0.172 acres. The request is for a reduced lot width to accommodate an existing nonconforming lot. The requirement for a single family home to be constructed in this zoning district is a 60' lot width. The request is for a 50' lot width (a 10' variance.) ?: The first item of business today is BOA 05-1730, submitted by Manuel Jones for property located at 1049 South Washington Avenue. The property is zoned RMF -24. The requirement is for a 60 -foot lot width and the request is for a 50 -foot lot width, which is a 10 -foot variance. Morgan: Just want to let you know that the applicant wanted to make it, but (inaudible) If you have any questions, hopefully we will be able to answer those. Apologize (inaudible)... the request is for a lot width variance and the property ... historic ... area ... platted ... long ago...lot width variance. This property was ... The applicant ... constructed a new home on the adjacent property and would like ... staff finds that granting this lot width to allow ... on condition two, I'd like to modify just slightly, to state that all necessary permits required will ... I don't ... it may be possible that they don't have... (the rest is inaudible). ?: Thank you, Suzanne. Are there any questions for staff? Nickle: This plan they submitted here, that doesn't exceed 20 feet, does it? Morgan: I don't believe we have a height on here, but if you look on Page 9 of 12, it looks like on that front elevation, the left side of that front elevation, we will have to measure front that ... eave down to the ground (inaudible) ... no greater in height than -- or excuse me, (inaudible) if it is, then we'll have to adjust the setback ... ?: Is there anybody from the audience that would like to address this issue? Hearing none, we'll bring it before the Board. Motion: ?: This seems very similar to other requests we've had on these older lots in the past pretty much, unless there was some reason not to gone ahead with it, so I would move that we approve the request with the staff's recommendations including modified Number 2 that Suzanne had spoke of. ?: Second. Board of Adjustment October 4, 2005 Page 5 ?: Okay. We have a motion and a second. Any further discussion? Will you call the roll? Roll Call: The motion to approve BOA 05-1730 carries with a vote of 5-0-0. Board of Adjustment October 4, 2005 Page 6 BOA 05-1757 (CONOCO STATION, 405): Submitted by ENGINEERING SERVICES, INC., for property located at 1130 NORTH GARLAND AVENUE. The property is zoned C-1, NEIGHBORHOOD COMMERCIAL and contains approximately 0.12 acres. The request is for reduced building setbacks to bring an existing nonconforming gasoline service station/convenience store into compliance. 9. Our second item is BOA 05-1757, submitted by Engineering Services Incorporated for property located at 1130 North Garland Avenue. The property is zoned C-1, Neighborhood Commercial and contains approximately .12 acres. The request is for a reduced building setback to bring an existing nonconforming gasoline service station/convenience store into compliance. Andrew. Garner: Yes, sir. There's several setback issues for this structure, so in the description we just kind of left it general, because there is six variances required for this property. And just the background for the property as mentioned, it's located on 1130 Garland Avenue and it has three street frontages. Mount Comfort Road is on the north, Garland Avenue on the west, and North Street to the south. The structure on the property are currently used as a Conoco Gas Station and convenience store. The property was developed in 1962 prior to zoning regulations, therefore, the gas station, convenience store, gas pumps, and pump canopies, the air and vacuum, they're all within the building setbacks. The applicant proposes to basically -- you can see on, I guess, Page 9 of 12, and also this is the one that has the attached plat in your packet. They've proposed to square off the building, basically, to extend the structure to the south and to the east, and in order to allow that they're requesting a variance as described on Table 2 in your packet, Page 3 of 12, and I will go over these. The front setback for a gasoline service building is 50 feet from the edge of the right-of-way, and on the north they have an existing setback of approximately 47 feet, so there is approximately a 3 -foot variance, and they would also require a variance from the actual gasoline service building to the west. They have an existing setback of about 38 feet and require a variance of about 12 feet, and for a gasoline pump island the setback is 25 feet from the right-of-way, and currently you're set back 11 feet and require a variance of approximately 9 feet. And the actual canopy of the gas pump islands has a required setback of 20 feet and their existing setback on the west is just under 5 feet, so they require a variance of just over 15 feet, and on the north, the pump island canopy is about 18 and a half feet, so they require a variance for approximately one and a half feet. And there is also a compressed air station and vacuum station, and the required setback for that is 20 feet, they're existing 4 feet from the right- of-way, so they need a variance of 16 feet for that. You'll see on your plat Board of Adjustment October 4, 2005 Page 7 there also, they also show on this plat a covered shelter for a bus station located in the Garland Avenue right-of-way -- or this is a state highway, so it's within the state highway right-of-way, and also within the Master Street Plan right-of-way, so in order for them to put that there they would have to go through Arkansas Highway Department for approval, as well as City Council for a Master Street Plan amendment to put a structure in a right-of-way. So that's not, you know, under purview of this Board at this time, but that is shown on the map line. Staff finds that there are special conditions and circumstances that exist for this property, mainly that it was developed in the '60s prior to zoning regulations, and the existing structures as mentioned don't meet the setbacks from the right-of-way that weren't platted within the zoning regulations. And staff is in support of this variance, and one of the reasons we are in support of it is because they are not going to be extending their structure any further towards the west or the north in to that setback, the south, the east, and we are recommending approval with four conditions. Condition Number 1, is that future alterations or additions shall meet required building setbacks for Master Street Plan, state highway right-of-way, unless otherwise approved by the Board of Adjustment. Condition Number 2, is that future alterations or additions to the existing structure shall meet regulations for improvements of nonconforming parking lot, that's referring to required landscaping requirements that will have to be (inaudible) when they improve this property. Condition 3, is the existing building footprint shall not be extended west or north, or any further into the building setbacks. Number 4, is that all required permits shall be granted prior to construction or repair of the structure. ?: Any questions for this submittal? Nickle: Any additions they are proposing on the property are not within setbacks; is that correct? Garner: Yes, sir, that's correct. ?: The one I have a question with is the (inaudible) to the north side of that. It says there's a shed there and it looks like the building comes over set a couple of feet into that. Is that correct or am I not reading this -- Garner: (inaudible) the existing shed. ?: (inaudible) ?: And the shed is coming down, but the building is going right in that little corner, so really that variance is -- because of the new building. Board of Adjustment October 4, 2005 Page 8 Garner: Right -- correct. Oh, right, that is correct. ?: But it's only a 3 -- little over 3 feet (inaudible). Garner: Right. ?: Just to square off that building. Garner: Right. ?: It's because Mount Comfort comes at that angle. Garner: Uh-huh. Nickle: I mean, I'm not sure I understood. When you say "square off the building," will any of it -- the new construction will be built within the current setbacks, in other words, if no new variance were granted would any of the new structure fit in -- ?: Evidently, Mr. Andrews pointed out the very -- it looks like the very north east corner of the new structure would have maybe -- Nickle: Right there? ?: Yeah -- ?: 3.14 feet. Right. ?: (inaudible) Nickle: Isn't there a chunk down to the -- what would be the south -- ?: And there's a continuation of that. It's really -- they're not asking for anymore, they're just asking for a continuation of the front of that building, I believe. ?: It would be close to (inaudible) but, yes, it would encroach (inaudible). ?: So we're not granting just a variance on the existing structure, we're also granting a variance on -- if we do this as requested on the new construction, too. Board of Adjustment October 4, 2005 Page 9 ?: (inaudible). ?: Okay. ?: How's it determined that going to the east and the south was any lesser of a concern than going to the north and the west? ?: I think because of just the fact that the street frontages and the visibility from those street frontages, and I think part of it as well was that the existing structure is -- you know, we feel like, you know, talking to the applicant it seems what they're planning to do -- basically planning to clean up that -- the old building, and we feel like it would look better (inaudible) the back of the building out (inaudible) photos or anything, but we seen photos and it was kind of just an odd configuration, and that was how we came to that determination. ?: I mean, obviously, you've got gas pumps on the north and the west, but -- ?: Right. ?. But that alone wouldn't necessarily -- I'm just wondering how you came up with valuing it that way. But I guess it does center the building in the site more (inaudible) the south and the east, the building becomes centered in the site, even though it does -- the continuation of it does encroach. Nickle: I know -- I think, at least, that the Highway Department and maybe the city, has plans to widen that road. Do we know what those plans are? What width it will be? Garner: They've included on here, I believe, the surveyor concluded that the state highway right-of-way, which is wider than the Master Street Plan right-of- way, and the applicant may be able to correct me on that, but, you know, I'm not aware of any exact plans (inaudible) and how wide -- ?: It appeared that Garland was supposed to be-- was planned to be a principal arterial, but I (audible) aware of any expansion being -- going forward at this point. But any expansion would (inaudible). So it looks like the building would be 37 -- the proposed addition would be 37 feet from that right-of-way. Nickle: Do you know whether the right-of-way shown here is the city's or the state right-of-way? Board of Adjustment October 4, 2005 Page 10 ?: (inaudible) information (inaudible) state highway department (inaudible) shown 55 feet from centerline in the Master Street Plan (inaudible). ?: I think there's a high likely hood that that road will be widened. ?: Right there I like it already has been widened, if I'm not mistaken, it's already five lanes wide right there. ?: (inaudible) ?: Yeah, so it would be widened on down -- on north -- ?: (inaudible) farther to the north -- ?: Right there it is five lanes up until you get about -- right about Harp's entryway, I think. ?: (inaudible). ?: Yeah -- I think were (inaudible) ?: (inaudible) around there (inaudible) station (inaudible). ?: And the covered shelter -- I know that's being considered here because it has other authorities looking at it, but what's the order in which that needs to be -- does the Highway Department approve it and then it comes to us or the other way around? ?: That's the way we prefer it (inaudible) otherwise we just end up spinning our wheels (inaudible) the Highway Department said no after everybody has gone through (inaudible) ?: Would the applicant like to address this with (inaudible) ?: Yes, I'm (inaudible) with Engineering Services. The idea of the covered shelter is just an offer by the applicant to, you know, help the community, naturally it would be coordinated through the university and (inaudible) and then whatever procedure they have with the Highway Department (inaudible). Overall the applicant is (inaudible) the back of that building. I know if you've been out there doesn't look real good right now, and this would certainly do that, take care of that. There's a huge open ditch down through there that would be filled in and (inaudible) put it, which would allow landscaping and shrubs. I think it would become an asset right Board of Adjustment October 4, 2005 Page 11 there, I believe it would better than just about anything (inaudible) So I think it's a real positive thing to have (inaudible) this variance (inaudible). ?: (inaudible) ?: I've got a question on the drawing. What are the lines going north -- or -- it's not edge of canopy line, it looks like an old building line or what it is ?: That's the pavement line. ?: That's the pavement line ?: (inaudible) darker than the canopy line. ?: Right. ?: (inaudible) really could have done there -- ?: Well, the pavement is larger than that. I mean, because there is driveway. ?: Right. The dark line indicated concrete and everything outside that is (inaudible). ?: Is there anybody from the audience that would like to address this request? Hearing none, I'll bring it before the Board. ?: Mr. Chair. ?: I'm sorry, go ahead. Motion: ?: I was just going to make a motion. I move that we approve the applicant's request, along with staff's recommendations. Alt: Second. ?: We have a motion and a second. Is there any further discussion? Bob? ?: Well, I just had a question. I didn't know whether -- you mentioned something about the air and vacuum station. You said you weren't going to leave that there, is that correct? ?: (Inaudible). Board of Adjustment October 4, 2005 Page 12 ?: So you don't need that? ?: (Inaudible). ?: (Inaudible) the removal of the southwest variance of 16 feet ?: Yeah I will include that in my motion. ?: Any further discussion? Will you call the roll? Roll Call: The motion to approve BOA 1757 carries with a vote of 6-0-0. ?: Good luck on your project. I look forward to that. Board of Adjustment October 4, 2005 Page 13 BOA 05-1758 (BENEFIELD, 485): Submitted by MATT CHAMPAGNE for property located at 217 E. SUTTON STREET. The property is zoned RSF-4, SINGLE FAMILY - 4 UNITS/ACRE and contains approximately 0.29 acres. The request is for reduced side and rear setbacks to allow a proposed covered patio to be constructed. ?. The next item is BOA 05-1758. Submitted by Matt Champagne for property located at 217 East Sutton Street. The property is zoned RSF-4, Single Family, and contains approximately .29 acres. The request is for a reduced side and rear setback to allow a proposed covered patio to be constructed. Would staff like to give us (inaudible). Morgan: Certainly. This property is (inaudible). The property was developed quite a while ago. It is in the downtown area. Access is provided to this property through an alleyway. The site plan has been submitted by the applicant on Page 9 of your staff report showing the location of the building and the driveway on the property. The applicant would request a setback variance on the rear and side setbacks on the property line for a 4 foot side setback and a 4 foot rear building setback. This is to allow the construction of a 250 square foot covered patio situated on the southwest corner of the lot. It is proposed to be used for recreational use along with the family residential dwelling. Staff is recommending denial of this request. We find that there are no special circumstances peculiar to this property which would necessitate replacement of a structure in this location. While staff does encourage development and not prohibit development of covered structures for a play area, they do need to meet our setback requirement and to allow -- we find that to allow a variance for this residence would be beneficial to this, while others (inaudible) same right. We find that the requested variance results from the desire of applicant to erect a structure within the building setbacks and that there is ample space on the property to erect a structure, perhaps, in a different configuration or size on the property. This property has been utilized for single-family use for many decades without a structure(inaudible) feel a deprivation of this applicant's right to require the whole structure to meet building setbacks, and therefore we are recommending denial (inaudible). ?: I've got a question. Why would this not be considered a 20 -foot rear setback as -- ?: That was my error. That (inaudible). ?: I know, but, I guess my question is on Page 5, under this RSF-4, the rear is 20 feet and then you're asking for a 4 -foot variance. Board of Adjustment October 4, 2005 Page 14 ?: (Inaudible). Morgan: It's a 15 -foot variance for a (inaudible) foot setback. Sorry if I didn't make that clear. So the variances requested are 4 feet on the side from an 8 -foot setback, that will be 4 feet. ?: Right up here it says recommendation. So you're denying not a 4 -foot rear building setback, but a 16 -foot rear -- I'm sorry. Variance -- okay. Morgan: Sony on the way that was worded. ?: Okay. Sony. So it's a variance of 16 feet and 4 feet. Morgan: Correct. The applicant maintains that Lot 5 is actually a separate lot, that's why -- ?: Well, on the survey -- yeah, it's a separate -- (inaudible), but they're separate, you know, in a sense of use -- that the main house is located on the large lot with a driveway behind it and to the side of it, and then (inaudible) play area for the children. The driveway and parking area, the (inaudible) for the children, it makes that other partial lot behind it, they're not very close to put any kind of patio. Our contention was that it was special in that there's only driveway behind it and to the side of it, and parking behind it, and that to locate a 20 -foot setback on a lot that's only 33 feet foot deep would seem sort of -- be prejudicial and (inaudible) and eliminates some some of the usefulness of that portion of the lot. Morgan: If I could just explain a little bit. The applicant is right. This little lot of 30 -- partial at 32 by 63, does have a separate parcel number, however, because it doesn't have any street frontage, it doesn't meet the requirements for a single-family lot within this zoning district, it is therefore tied to the nonconforming parcel and it's tied to the adjoining Lot 6 part -- part Lot 6 within the same home and ownership, and it has been since from 1985, when one parcel was sold the other was sold to the adjoining owner, and per our requirement if we were to look at a building permit for this property, we would be looking at both parcels together, because they are considered one (inaudible) tied to the other one. So when we look at the overall building setbacks for this entire piece of property, there is a rear building setback of 20 feet along that south property line, but it (inaudible) south property line, there aren't two setbacks, one for one parcel and one the other. I hope that (inaudible). Board of Adjustment October 4, 2005 Page 15 ?. ?. 7• 9. ?. I don't see why the covered patio couldn't be moved -- what is that -- to the north? Yeah, moved to north and also to the east, to be within the setbacks. It looks like there's still plenty of room there to make that covered patio conform to the setbacks on that property. I think it could be moved to a certain degree, especially to the east (inaudible) 20 -foot setback (inaudible) by 16 feet and could get some variance to that. It's just that being an additional lot behind the house is just -- if you were to visit the site you would see that the driveway and the play area for the children and (inaudible) that it makes it kind of impractical to set that back 20 feet. It kind of puts that in the middle section of the yard in the area that would make that 20 feet behind it just useless at that point, because you're not play behind and you're not going to go behind a covered patio, you're going to (inaudible) in front of it and to the side of it, and that's why we tried to maximize it and look at the detail on the site plan on the right on the page -- looking on the page and see how it opens up towards that whole area so that whole area can be used for recreation. If we move it over to the right, if you look at the page -- toward the top of the property, that's just going to eliminate the way the rest of the property is used in addition to the patio. And again, I would just add that, you know, we don't necessarily have to these setbacks, but we would request that there would be some consideration of some setback, especially, as regard to 20 foot, that would eliminate the use of the property (inaudible). Well, I've been always very critical of our very restrictive code on accessory structures. I'm looking at this as an accessory structure and yeah, if this were a two -car garage and we would require a 20 -foot setback off a rear property on a 20 -foot -- on a two -car garage, that in my opinion, is not a good use of the land, so I'm going to apply the same principle to this and look at this as an accessory structure, and side with applicant, because pushing accessory structures up in the middle of a lot and to adhere to all the required setbacks, is usually not the best solutions. So I'm going to vote with the applicant on this one. Is there anybody else in the audience that would like to address this? Well, speaking as the homeowner -- Would you state your name for the record? Bryan Benefield. We don't really want special privileges from anybody else in our neighborhood, (inaudible) but we get up everyday and look at our surrounding neighbors and they've all got buildings that are right up Board of Adjustment October 4, 2005 Page 16 contiguous with the property lines that are around there, so, you know, we don't feel like it would be a special privilege, because it seems like it's that way every way in the neighborhood. Nickle: Well, I'm not sure I can go along with the applicant's current request. I will say, you know, a good chunk of the, if you will, the back yard is taken up by driveway and parking, but by the same token, Sutton is one of those older, very narrow streets that doesn't afford much in the way of on street parking for guests, etcetera, so I can understand that they wouldn't necessarily want to give up some of that additional parking/driveway area for guest parking if nothing else. It is kind of an older unique area. I have a hard time going along with the side setback, I could see, maybe, some modification of, you know -- the side setback is driven as much by the shape of the conceived patio area, and I guess the other thing I don't necessarily disagree with your philosophy on the accessory structures, by the same token you have to wonder at such a point, you know, if that gets enclosed later on and etcetera, etcetera, I guess, you can tie that to just as a covered patio area not enclosed (inaudible), I don't want to see that developing into some little apartment or something like that, it could happen. But I can't go along with the side setback, I can see some relief for the rear setback -- see the accommodation, something like that. ?: How does this piece of property interact with the backyards of the other neighbors? Are there fences? Are there common areas? What does it look like back there? It's hard to describe, probably. ?: That exact lot or the partial lot that we're talking about -- as far as where it's located, if you look at the page -- if you look to the west, that's an alleyway, if you look to the east, there's a fence on part of that -- and a yard, and right behind it to the south is a driveway area -- parking area, just gravel. But, you know, to my mind it is unique because it is added on to the other property and is nonconforming, as you said, it makes that whole area back there unique. If you think of -- if you think, like, a lake house and if you ever drive down the alleyway near lake houses, there's areas that driveway congregate, you know, that's kind of that behind, and so to the east -- or to the west of that lot is like that, which is a lot of gravel parking areas, basically it's an alleyway. So it's not -- except for on the east, where if you park right on this the proposed structure, it's not located near other areas where people will be likely to congregate (inaudible) entertain themselves. Benefield: And we're building a fence, we're enclosing the backyard with a fence. So it's going to be part of the fence with a little fireplace in the corner. So we wanted to maximize the use of our yard for our young children to play and have an area for their friends to come over and play around. Board of Adjustment October 4, 2005 Page 17 ?: You had mentioned, Suzanne, I think, that, you know, this been under the ownership since '85 and they lived there, but apparently we've got a new prospective owner; is that right or someone who is just -- Morgan: You know, from my recollection the ownership has changed hands, maybe, four times since 1985, and I was just saying that since then -- the larger parcel is the (inaudible) home (inaudible) that smaller parcel has always changed hands. ?: (Inaudible) ?: Transfer of title just for the whole thing each time. ?: Oh, yeah -- (Inaudible) small (inaudible) alienated separately anytime during that time. ?: Right. ?: (Inaudible) sell individually if you wanted to? Morgan: I'm sure somebody probably could, but they couldn't do anything with it. I mean, really, you would (inaudible). ?: (Inaudible) ?: (Inaudible) into apartments (inaudible) Morgan: No. ?: (Inaudible) Morgan: They would be (inaudible) ?: 32 feet wide -- ?: Yeah, access easement -- whatever. ?: That's (inaudible) the attached lot. Nickle: They haven't had any comments from any neighbors? Morgan: No, sir. Board of Adjustment October 4, 2005 Page 18 ?: What would it take to combine those two -- would it be a property line adjustment? Morgan: A property line adjustment would legally combine those two parcels, but as far as planning concerns, those are as one, just because one is nonconforming and (inaudible). But a property line adjustment would completely (inaudible) ?. Motion: Well, we've got one of two options, either somebody can make a motion and see if there is a second, and we can vote on as is, or we can ask the applicant if he is willing to do with less and try to get a motion that way. I make a motion that we approve the applicant request, but deny the denial, I guess. I don't know how to phrase that. How do I phrase that David? Whitaker: If you should want to approve the requested variance, that's the way to do the -- ?: So I should not word it in response to the denial. Whitaker: That's simply planning staff recommendation. You're the master of your own motion. ?: Okay. I move that we approve the variance of the requested -- I trying to - Whitaker: Did Mr. Nickle have a condition of approval that you wanted, as far as not seeing it converted into any other kind of structure? ?: He may not agree with the motion, so -- Nickle: Well, you know, I don't think I could vote motion, you know, for the request, as it is. I could certainly consider some modification of it, but I'm hesitate to allow a structure 4 feet, you know, realizing there is gravel parking behind. It still puts it awfully close to the back line and, you know, maybe the neighbor wants to -- or a future neighbor might want to do something else back there -- entertainment and something, too, and you had this structure pretty much up against their back boundary, I'm a little concerned about that, but apparently -- Board of Adjustment October 4, 2005 Page 19 ?: It looks like to me somebody has their current structure up against his property line as well -- on 1012, am in incorrect in that statement? ?: (inaudible) ?: Right up against it. ?: Is that a garage? What is that? ?: Is that on the -- we have a structure that's right up against the back line. Nickle: There's an alleyway right there behind that -- ?: I was talking about -- this, the one on the east. ?. Yeah, your garage that you have on your setback. ?: (Inaudible) technically (inaudible) variance -- ?: Part of it is on this property right here. ?: The little one? ?: No, this one right here. ?: Isn't that a shared garage -- is that a common? ?: Well, we kind of share, but it's not -- it's on our property. ?. Okay. ?: We have a shared common driveway with our next-door neighbor. ?: This on 10 of 12, on Page 10 it shows what might be a shared garage. It shows a larger structure on that than you drew on your site plan. Nickle: On the east side? ?: Yeah. Morgan: And if you see on Page 8 it appears on the survey as though those two garages are not connected, but they may be somewhat. ?: There used to be another garage there, that's why it looks bigger on 10, then that was torn down. Board of Adjustment October 4, 2005 Page 20 ?: Then that's where it was a shared -- looked like it was a shared garage. ?: Right. ?: But on 10 of 12, you can kind of see the alleyway there, that building is right up next to the alleyway on the very back line of the property there. I don't know what that building is, but it's -- ?: Well, why would it not be necessary to bring that garage into compliance? Morgan: I had mentioned in the application that both the house and the garage are noncompliant, so that the request is only for the patio (inaudible). Nickle: Is that alley actively used? ?: That's partly why we want to build a fence. ?: Does anybody want to make a motion and we'll see where it goes from there? Motion: ?: Okay. I'll try again. I make a motion that we approve the variance as requested by the applicant with no conditions. ?: Second. ?: Okay. We have a motion and a second. Any discussion? Will you call the roll? Roll Call: The motion to approve BOA 05-1758 is denied with a vote of 3-3-0, with Alt, Nickle, and Andrews voting no. ?: For me, it would take a condition of -- what -- (inaudible) you were thinking about. The (inaudible). ?: (Inaudible). ?: Well, number one, it would have to be a covered patio and it would have to be a condition that that's all it could be, so that's in the record. What would you be -- how far could you move it and still be comfortable, and which way are we talking about? Board of Adjustment October 4, 2005 Page 21 ?: Maybe (inaudible) rear setbacks. We want to go quite as far as the full 16 for a (inaudible). ?: How about this for another stab at a motion -- as a compromise? ?: Okay. Motion: ?: I move that we approve the applicant's request for rear setback only, with a condition that the structure not be enclosed without further -- without an additional variance. ?: So that would mean that he would have to keep the 8 -foot side. ?. If you keep the 8 -foot side and would agree not to enclose the covered patio, but it would go back to the 4 -foot setback in the rear? If it's 20 feet wide and the lot is -- if the structure is 20 feet wide and the lot is 32 feet wide, he's only got 12 feet to play with. So he could either split that 6 and 6, or if he goes 8, he would need 4 on the other if he doesn't take 4 feet off of it -- ?: It's 63 -- ?: Am I right with that? Morgan: I think it's 63 wide and (inaudible) deep. (Inaudible) change his building design. ?: Oh, we're talking about -- not the -- okay. I was looking at the wrong -- the wrong side. I'm sorry. Okay. ?: But what's your rationale for that -- about thinking that that alleyway is more important to protect the setback than the rear property line? ?: Well, my only purpose there was to find a reasonable compromise so that we could all tend to agree on it. The only other logical, I guess, argument for it it that it's not going to be as visible setting over from Sutton Street, in other words, it's going to be more closely aligned with the main house. ?: Maybe we can limit it in height. Board of Adjustment October 4, 2005 Page 22 ?: How -- let's just build it for him. (Laughter) ?: Yeah. ?: (Inaudible) approximately 8 feet, the peak would be about 13 feet. ?: Because that might accomplish what you're trying to do. If it's too high it would be more imposing on whoever else might be there without, you know -- Nickle: My reason -- and I like that motion, is the alleyway is a public alleyway, and you're protecting both the public's rights there as opposed to the rear setback -- the only one affected by that is the adjoining property who is, at this point at least, raised no objection to the request, so -- ?: I'm just wondering if they're building a fence anyway and this is on the other side of the fence, and you're driving down the alley, does anybody really mind -- does it hurt anybody? Nickle: (Inaudible). ?: Right. Nickle: Again, the concept being that's a public alleyway -- if something -- ?: (Inaudible). ?: And plus, the width of the lot there is just (inaudible) and the other reason I like it as well, is because there -- as you pointed out, it would be less visible from Sutton in terms of line of sight there, and it wouldn't interfere with his current property line -- (inaudible). ?: Can you still do your project with 8 feet from the side, instead of 4? ?: Yeah, if we can do that. You can't really because of trees. The line of sight from Sutton is not really an issue and make sure that you understand that, but, yeah, we can do it that way. Obviously we prefer to have it in the corner, that's the way we designed it, but -- ?: But moving it over 4 feet, could you live with that? ?: (Inaudible) could. Board of Adjustment October 4, 2005 Page 23 ?: Is that a motion? ?: Well, (inaudible) look at (inaudible). How would we (inaudible)? ?: Well, that motion that I attempted was to approve the applicant's request for a rear setback variance only -- a 16 foot variance, and one of the provisions would be that it -- that the structure not be enclosed. ?: I second that. ?: Any further discussion? Will you call the roll? Roll Call: The motion to approve BOA 05-1758 carries with a vote of 6-0-0. ?: Thank you. ?: Good luck on your project. ?: I appreciate it (inaudible). ?: You bet. Board of Adjustment October 4, 2005 Page 24 BOA 05-1759 (BRASEL, 283): Submitted by CLAY MORTON for property located at 2415 WATER OAK DRIVE. The property is zoned RSF-4, SINGLE FAMILY- 4 UNITS PER ACRE and contains 0.29 acres. The request is for a 15.5' front setback (a 9.5' variance). ?. Our next item is BOA 05-1759, submitted by Clay Morton for property located at 2415 Water Oak Drive. The property is zoned RSF- 4, Single Family, and contains .29 acres. The request is for a 15.5 front setback, which is a 9 -foot 5 -inch variance. Andrew, do you have that information? Garner: Yes, sir. This house was built just a couple of months ago and after it was built the applicant conducted a survey, and realized that it was in the building setback. And just kind of more background as to how this happened, they did get a building permit issued which specified a 25 -foot setback. They poured their foundations. The building safety division went out there and approved the inspection for the foundation. They went ahead and constructed the house, and, you know, they found out that a survey was conducted that it's in the setback. And staff, you know, we definitely don't support building in building setbacks that are, you know, that are signed and approved to be to, however, you know, the city did inspect this and when the foundations were inspected, you know, we felt that it should have been caught at that time on the city's side of it, and the applicant should have also, you know, constructed, you know, outside of the setbacks, so that's kind of how this ended up being what it is. I guess, staff's -- staff is recommending approval of this variance and based on the fact that the applicant is not totally at fault for this, and also that we have precedence that, you know, in these sorts of cases we have typically been recommending approval for them. If the variance is not granted the northwest corner of the house would need to be constructed out of the 25 - foot setback, and so we are recommending approval of it, and we have two conditions, that future alterations or additions to the existing structure, if any would meet required building setback regulations and that any construction or repair to the structure would require building permits. ?: I have a question. I didn't go out to this lot, but this house was constructed 9 feet to the south, and to move it out of the -- is that right, to the south? Garner: Yes. ?: To move it out of the building setback, is there anything there that would have -- is there large trees that would have come down, is there -- what? Board of Adjustment October 4, 2005 Page 25 Garner: I'm not -- ?: I'm looking for a reason that they did this on purpose, to be honest with you. Garner: Yeah. I'll let the applicant -- I didn't visit the site. ?: (inaudible) out there. Garner: No, sir. ?: Okay. Morton: My name is Clay Morton and it was basically just a mistake, just laid it out wrong, and we didn't catch it until the buyer came along and got a survey on it, and realized (inaudible) and so it was just a mistake as far as that goes. ?: Okay. ?: So this was a new house that you guys built (inaudible). ?: I think I'm going to take exception to both staff's recommendation and what the applicant wrote in this letter. I think it's a stretch to say that the building safety division should go out with their tape measure and find the nearest stake, and try to assume where a property line is in order to make sure that a professional -- excuse me, it's called a professional concrete company should know -- should, you know, where to place the building. That's the up to the applicant and the applicant alone. I think the applicant should always -- or the homeowners or whoever is responsible for building it should be responsible for it. I think if the city got in the business of doing that during foundation inspections, it could turn into something much bigger than they would want it to be. I'm going to go to - - my Ward -- my City Council members and request that -- not necessarily on this, but in general, that a fine be assessed in cases like this to go into either the general fund or a fund for the public good. Because if we just continue to pass or approve this kind of egregious oversight by sloppy construction companies and just let it go by without any penalty, if you will, you know, I think it goes against the intent of the code. So I'm going to -- I feel pretty strongly about it, obviously. This is an egregious disregard of code and I don't think it's the building department -- the building safety department's fault, and I think there should be some kind of mechanism to discourage sloppy placement of buildings, and with all the new construction we have we're probably going to see this more and Board of Adjustment October 4, 2005 Page 26 more. So anyway, I'm going to approve it, because, you know, it's fair to make them tear down part of their house. But I think we also should have a mechanism in place to discourage this. ?: I mean, if they do do it on purpose, that's why they do because we don't want to make them tear down their house. ?: Right. But there should be a -- ?: You know what I mean? ?: Right. ?: There ought to be a fine, you're right. ?. Something to discourage -- I mean, 9 feet, come on. ?: Right. I mean, we had one in here the other day that was 2 feet, or whatever. ?: I don't disagree with that. ?: You know, that's (inaudible). ?: And if we leave it up to the building department, you know, it's 6 -inches, you know, they were going to blame 6 -inches on the building depaitinent, you know, it's the same -- or 9 feet or 10 feet. I mean, we need to get away from the city's responsibility in this. Whitaker: And it's important to point out that it's the building safety division, not the building location division, that they go out there and make sure that that foundation was safe -- ?: Absolutely. Whitaker: -- and the property built to code, not where it's located. ?: Right, that's not their job, and it's also not planning's job to go out and make sure that they staked it properly, so -- Whitaker: (Inaudible) an affirmative duty to place it where they said they would on the site plan, they submit it because we're taking them at faith that it will be built as approved. Board of Adjustment October 4, 2005 Page 27 ?. And it's unfair to the people who do follow the rules, because, you know, these -- you know, these cases are getting off scot-free and it's unfair to the people that happen to take it seriously, so we need to do something that pays back the community on cases like this. Garner: Mr. Chair. Something to mention as well, that there is a utility easement that this building encroaches into approximately -- I have in here -- I think it's 4 and a half feet, so that's an issue the applicant would have to get vacation of that 4 and a half feet as well. So I just wanted to disclose that as well. ?: Where's that's? Oh, on the -- Garner: There's a 20 -foot utility easement along the -- All right. So the same little section of the house. Garner: Yes, ma'am. ?: Can we (inaudible) until they gotten that vacation? ?: It's the chicken or the egg. ?: Yeah, they're waiting on that. ?: They're going to have to get -- Nickle: And it doesn't really get into the utility setback as much as it does the building setback, it's just a little bit in the utility easement there. Whitaker: If it's not (inaudible) existing utility, they may not have too much trouble getting a partial vacation to that part. ?: I've already got some letters from the utility companies already saying there are no lines over. It's on the corner and most of the utilities stop on the south in that corner, because it is on the corner. Nickle: Well, I would agree with Bob, you know, I think there ought to be some kind of fine, but I don't know how to go about doing an ordinance, that would be up to the Council to that in the first place. But I think when the vacation request goes to the Council, that might be an appropriate time for planning to be up our reluctance to continue to face these kinds of issues without some kind of penalty clause, if that's, quote, legal. Board of Adjustment October 4, 2005 Page 28 ?: And I'm going to talk to my representatives on the Council and see if they could introduce a -- I guess it should come from them, right? ?: (Inaudible). ?: This is one of those ask forgiveness, instead of -- ?: Permission. ?: -- permission, and, you know, to ask somebody to destroy the house and move it 9 feet, is a very, very, bad penalty, obviously, that would be a very severe penalty. ?: (Inaudible). Yeah, and if that -- ?: (Inaudible) (Laughter) ?: Well, even if we did grant it in cases. If there a -- not huge penalty, but significant penalty, it still doesn't mean we have to grant it and accept that penalty. Like, if the same builder comes back again and again, we see evidence of that, then -- ?: We could assess the penalty on a case by case basis, in other words? ?: I don't know that we would -- ?: Well, we used to see -- ?: I don't want to do that. ?: If the ordinance says that -- ?: The city, the city -- ?: -- you know, that "x" penalty would be paid, then that's that. Whitaker: I think if you were in -- if it were amended to have such a penalty, you could have to have a section in there that spoke of if "x" amount of these violations came to the attention of the Board of Adjustment, you could refer to so and so for enforcement. Board of Adjustment October 4, 2005 Page 29 ?: Right. ?: Well, let me ask -- Whitaker: But because your mandate is rather strictly confined by state law, I don't know that we would be asking to (inaudible) penalty, but perhaps if you had a second or third from the same (inaudible) you could then refer it to the body that has the authority to make (inaudible). ?: ?: I believe, in my opinion, that this was the second, third, time, this builder came before us, and we used to keep a record of those, and would be informed that this was the second or third time. We would probably, say, "Sony, we gave you chance one, strike two, and this is strike three, and you're going to have to do it." That was my question. Is there anyway that we would know that? Would it be in this background (inaudible). Would we -- is that something that you guys could do? Morgan: I think that we could keep track. I mean, we don't have too many of these requests every month. ?: Is there a record of those, because we used to have a record? Morgan: If there was one before, we may still have it. I've never seen it (inaudible). ?: Is there a database that searchable by -- ?: We could -- ?: There was pixel and table back then, I think, but yes, we did attempt to do that, because it seemed like every month we had somebody coming in. ?: We sure did. ?: Wanting to ask forgiveness and so, I think at that point -- it was several years when that happened. ?: Could we request that of the staff that we -- Morgan: Uh-huh. Board of Adjustment October 4, 2005 Page 30 ?. Set up something that's -- not just somebody on -- a record -- a handwritten record on somebody's desk, but it's in the permanent records -- and ten years from now they can look back and make sure that -- ?: Okay. Does anybody want to make a motion on this? Motion: Nickle: I'll make a motion we approve their request with staff's comments. ?: Second. Nickle: I'll let you go talk to your councilman. ?: With the condition that the applicant make a donation to the Katrina fund. (Laughter) ?: How about the Fayetteville general fund or something. ?: There you go. ?: We have a motion and a second. Any further discussion? Will you call the roll? Roll Call: The motion to approve BOA 05-1759 carries with a vote of 5-1-0, with McSpadden voting no. ?: You have your variance. ?: (Inaudible). ?: Be careful. ?: Yeah. ?: Nothing else? Anything else? Meeting adjourned.