HomeMy WebLinkAbout2006-01-09 MinutesMINUTES OF A MEETING OF THE
BOARD OF ADJUSTMENT
A regular meeting of the Fayetteville Board of Adjustment was held on January 9, 2006
at 3:45 p.m. in Room 326 of the City Administration Building, 113 W. Mountain,
Fayetteville, Arkansas.
ITEMS CONSIDERED ACTION TAKEN
BOA 06-1900 (NEWELL, 322) Denied
Page 3
BOA 06-1901 (BENNETT, 291) Approved
Page 8
BOA 06-1902 (HABITAT FOR HUMANITY, 521) Approved
Page 11
BOA 06-1903 (SMITH, 640) Approved
Page 17
BOA 06-1904 (BRISIEL, 526) Approved
Page 19
BOA 06-1905 (BLAIR, 448) Approved
Page 23
BOA 06-1906 (HOGGATT, 638/639) Approved
Page 26
Board of Adjustment
January 9, 2006
Page 2
MEMBERS PRESENT
Eric Johnson
Michael Green
Karen McSpadden
Michael Andrews
Sheree Alt
STAFF PRESENT
Suzanne Morgan
Andrew Garner
Jesse Fulcher
CITY ATTORNEY
David Whitaker
MEMBERS ABSENT
Robert Nickle
Bob Kohler
STAFF ABSENT
Board of Adjustment
January 9, 2006
Page 3
Andrews:
Board of Adjustment meeting for January 9, 2006 is called to
order. We don't have minutes this time, but I was told we will
have them next month. We will get those for the last meeting and
this meeting, hopefully. Hopefully the new person is caught up.
Morgan: I believe we actually have the December minutes, but I think they
were just not put in this packet.
BOA 06-1900 (NEWALL, 322): Submitted by JACK, NEWELL for property located at
4185 MOSSY ROCK IN CLABBER CREEK SUBDIVISION. The property is zoned
RSF-4 SINGLE FAMILY 4-UNITS/ACRE and contains approximately 0.25 acres. The
request is for a variance from the required 25' front setback for a 15.1' setback (a 9.9'
variance).
Garner: This project as you mentioned is located in the Clabber Creek Subdivision
Lot 11, zoned RSF-4. The applicant was in the process of constructing his
house and the survey conducted revealed that they had built the house in a
setback and over four feet into the utility easement. These are really hard
for Staff to make findings on; however, due the house being almost totally
completed and due to our precedent of recommending approval in these
incidences, we are recommending approval for the requested variance with
conditions. As I mentioned, it is difficult to make findings on these, but
that is our direction on that. That is our recommendation. The conditions
of approval are on the front of page three: future alterations or additions
to the existing structure shall meet required building setback regulations.
All required permits shall be granted prior to any construction or repair of
the existing structure. Supplemental information is in your packet and
includes the survey, shown on page 9 of 14; actual building permit that
shows the setbacks that were agreed upon; on page 11 of 14 shows the site
plan that was included with the building permit. I'd be happy to answer
any questions that you have.
McSpadden:
Garner:
Newell:
Is this the same subdivision as the last one we approved?
I believe that is correct.
My name is Jake Newell and I am representing the owners, PM, LLC out
of Harrison, AR. The person that did the survey, surveyed off the curve
instead of the actual property line. So there is a difference there. We
didn't realize this until a recent inspection brought it to our attention. I
talked to several of the neighbors and they just want to see it finished.
Andrews: Are there any questions for Staff or Mr. Newell?
Board of Adjustment
January 9, 2006
Page 4
Basber: My name is Kent Basber. We own the property adjacent to this
development. We just bought our home in May. We have a couple of
issues we'd like to bring forward. One, this probably started about seven
or eight months ago — I don't understand why, when we have an
architectural committee as part of the development, why this was missed.
The other thing I'd like to bring up is the fact the house is under built for
the phase. It is supposed to be at least 2200 square feet. It is a two-story
dwelling, I believe it is under 2200 square feet. We paid full retail for our
house at $112 per square foot. We are concerned that this development is
going to impair our property values, in fact it sat four months with nothing
being done on it, so we are very concerned and disappointed that this got
missed. I think nine feet is excessive to be granted a variance. A few feet,
I can understand, but nine feet? It is quite an oversight.
Andrews: To answer your first question: The Architectural Review Committee — is
that the City of Fayetteville he is talking about or is that for your
development?
Basber: For the subdivision.
Andrews: You understand that the City has no control over that. And again, on the
under 2200 SF, the City can't enforce property owner bylaws and
covenants. That is something that the POA has to address, unfortunately.
I can understand your concerns on both of those. I live in a subdivision
and we have bylaws and have been through the same thing.
R. Basber: I'm Rebecca Basber, I live in the property next door also. I am
wondering, is the variance (this is a corner lot) setback from Berkleigh or
set back from Mossy Rock or both.
Andrews: Mossy Rock.
R. Basber: The other houses on our street are lined up, the trees are lined up. If you
don't like that, don't buy in the subdivision. This house is noticeably
farther out and impedes our view; it is noticeably different from the other
houses and is right on the corner. What I wonder, if it would be denied,
what would be the remedy?
Andrews: The property owner would have to bring the structure into conformity.
Whatever it takes to do that...
R. Basber: It is bricked in, but the interior walls aren't built yet.
Board of Adjustment
January 9, 2006
Page 5
Andrews: If it is that far along, it would be demolition and reconstruction. Is there
anyone else who would like to address this issue? Hearing none, we will
bring it back to the Board.
Green:
This is one of those tough things to call just because it is one of these
typical things we run across where they are asking for forgiveness instead
of permission, and it really puts this Board in a tough position. Hopefully,
this ordinance that we have recommended through the City Council is
going to have some kind of remedy for that. At this point, our only
decision on this is to either approve it or to turn it down. If it is rejected,
then the owner must either move the structure or somehow make it
conform to the setback. I can always see and empathize with those who
make an honest mistake. I do believe this builder has been before us in
recent months with a very similar type of forgiveness if I'm not mistaken.
I'm just wondering how far we have to go or how many times do we let
somebody make a gross error like this without putting the breaks on it. I
don't know the answer to that. This is getting very frustrating, especially
when we get repeat requests on something like this.
Alt: Do you remember that Andrew? Do you remember the builder that came
forth.
Garner: I believe the builder was Clay Morton. It was in October.
Alt:
In the minutes of the October meeting, wasn't there an issue brought forth
with Mr. Morton at that time? I know we don't have any jurisdiction on
that but I think that we reprimanded him a little bit harsh on that at that
meeting, about hindsight and foresight. This being a nine foot mistake is a
little bit over the line.
Newell: What it was, I represent the owner of the property and it was really the
survey company's mistake and obviously the company is taking steps to
check into those things. I know it would really be a hardship. There have
been steps taken in our process. I know Clay and I don't think this will
happen again. I know that there
McSpadden: What steps have you taken?
Newell: I know there is a different surveyor doing his work. I talked to him about
the last meeting — I worked for the investors in Harrison, the Company
was taking steps at that point in construction to check into this issue and
make sure we don't have to deal with this again.
Alt: This survey dated 12/01/05 by Mr. Reid — was it the first survey done?
Board of Adjustment
January 9, 2006
Page 6
Newell: No, this is the one we had done by the new surveyor.
Green:
Do we know, Staff, if the front of the house long Mossy Rock Drive, does
it line up with the other existing houses there or are there any benchmarks
you can look at?
Garner: I believe from hearing from the neighbors that the front facade doesn't line
up. I didn't get a chance to drive out there and look or take pictures of
that.
McSpadden: My guess is that it is 9.9 feet.
Green:
It really just seems that it would be an obvious misalignment I can
understand some of these odd shaped lots that are very difficult to get
proper references from, but this is almost a square lot.
Andrews: I really don't understand even on both sides and maybe Jake, you can shed
some light on this, but on Berkleigh we are up on the property line, yet we
have twenty feet on the one side and the rear there is fifty feet that they
could have moved this house to and didn't. I just don't understand why
you would cram the house in the corner and take the risk of it being six
inches, a foot, nine feet off, when you have plenty of room. Do you have
any reason why the house was placed where it was?
Newell: Basically, it was the combination of the survey guy and the concrete guys.
Andrews: They pushed the limits and screwed up.
Newell: They are not working for us any more. I'll be honest — there were
mistakes made.
Basber:
R. Basber:
I'm going to state the obvious. We can blame subcontractors all the time.
I'm a subcontractor myself in the construction business for twenty years.
Ultimately the builder is responsible. And if it is a $250,000 business
transaction, you have to take it seriously and check your stuff, and you
have to take responsibility. You have to watch over your subs. We can
blame the subs all we want, but ultimately the building and investors are
responsible. It is going to affect everybody on the street.
What I can tell, I'm not a builder, but if we are looking at what possibly
can be done, based about how much room and play there is on the lot. It is
the garage that sticks out far in front of the rest of the house. If the garage
were taken out and moved out to the back with a side entrance. Or
something like that might be possible. Being the neighbors most affected,
Board of Adjustment
January 9, 2006
Page 7
1 would be willing to endure a reconstruction of that house if it meant
getting it back in line with the rest of the neighborhood.
McSpadden: Did you not ever notice it — wouldn't it have been a lot cheaper to fix it
when it was only the foundation than now?
Newell: It was never brought to anyone's attention. From our view, I had driven
up to the house several times and I'm not the builder. I wish I would have
taken a picture and brought it in. I don't believe it to be so off.
Andrews: Well, I'm ready to make a statement that we are not going to allow this to
happen any more, especially the second around for a builder. We told him
last time what we would do and I'm not going to go back on my word.
Alt: I agree with that.
Andrews: My vote is going to be no, but someone else has to make a motion.
McSpadden: I make a motion that we deny BOA 06-1900.
Alt: I second.
Andrews: There has been a motion and a second. Is there any further discussion?
Will you call the roll.
Roll Call Upon roll call, BOA 06-1900 is denied by a vote of 5-0-0.
Andrews: What do they need to do from here?
Whitaker: They are going to need to find someway to come into compliance with
those setbacks. They can choose any option that works best for them as
long as they get the appending/encroaching piece out of there. I also note
from the Staff report, that there is an attempt to get utility easements
vacated and who knows how that will go. It's almost moot at this point
because now they cannot have the building in the setbacks. They have the
right under State law to file an appeal with the Circuit Court. Other than
coming into compliance, that would be their only option at this point.
Andrews: Thank you.
Board of Adjustment
January 9, 2006
Page 8
BOA 06-1901 (BENNETT, 291): Submitted by JO BENNETT for property located at
2473 N. JIMMIE AVENUE. The property is zoned RSF-4, SINGLE FAMILY — 4
UNITS/ACRE and contains approximately 0.33 acres. The request is for a variance from
the required 25' front setback for a 15' setback (a 10' variance)
Fulcher: This is property located on Jimmie Avenue north of Township. It is
currently a vacant lot in a developed subdivision. The applicant plans to
build an approximate 2300 square foot home on the lot. The request is for
two variances to preserve four large trees which would have to be
removed if the home was located at 25' setback. The literal interpretation
of the zoning regulations would not deprive the applicant of rights
commonly enjoyed by other properties in the same district. As you can
see on the survey, it is about a third of an acre lot and there is obviously
plenty of room to locate a home. What Staff looked at is the impact to
what we consider hillside — looking at our maps in the office — there are
many areas that have fifteen percent or greater slope on here, especially
the front portion and all the way down the hillside. It is fairly wooded as
you can see from the photos on pages 6, 7, and 8. By allowing this
reduced front setback, it would allow the home closer to the street which
would preserve additional canopy. Looking at our hillside ordinances and
other documents that we are looking to implement, the purpose of this is to
preserve the integrity of the hillside, reduce potential impact from water
erosion, soil or storm water erosion, plus preserving the visual quality of
the hillside. We take all of these factors on hillsides into account when
trying to locate a home. We realize there is opportunity to locate this home
in different areas on the lot, but as you can see from pictures, the
applicant is doing her best to keep as many of the large species of trees on
the lot, to preserve the integrity of the hillside. With that in mind, the
Staff is recommending approval of this requested setback variance from
the front with full conditions of approval. On item number two, based on
the slope it appears that this would average greater than fifteen percent
slope which would require a grading permit with the building permit.
Condition number four, the purpose of this variance is to preserve the trees
on this site — appropriate measures should be taken during development of
the property including, but not limited to, tree preservation fencing around
the trees to ensure their preservation. I would be happy to answer any
questions that you have.
Andrews: Thank you. There is no chance this street would be widened as far as the
City is concerned.
Fulcher: There are no plans that I know of to widen the street. It is a fairly wide
street.
Board of Adjustment
January 9, 2006
Page 9
Green: If this plat map is accurate to scale, there are some houses along Jimmie
Avenue that look closer to the street.
Fulcher: I did some rough measurements and as you can see, looking at the plat
right to left or east to west, the houses on the east side are generally
pushed up the hillside and the houses on the left side are pushed closer to
the street. There is an average of fifteen to twenty-five feet of setback;
some of them are setback all in there. I think you can get a pretty good
idea from that copy there.
Andrews: Is the applicant present? Is there anything you would like to add?
Bennett: I came down to ask the City Planning what the variance was, I wasn't sure
what the variance was. He said twenty-five feet from the curb. I took that
to mean that's where the garage and the building would start. Well, it is
actually fifty feet from the center of the street which we would work from
the plats and building permits. And we have all the plans. I had promised
to keep every tree I could on that property and those four are absolutely
crucial for western sun. I had built another house, my husband and I had
on that same street and made a mistake of cutting down trees on the
western side of the view, and the sun is important.
Andrews: Thank you. Is there anyone else in the audience would like to address this
issue. If not, I will bring it back to the Board. Are there any questions for
Staff or the applicant? I think your point that most of those houses on that
side being pushed up and closer has great significance in my view of
justifying this. It is not going to affect any of the neighbors. And as Staff
says it will preserve the integrity of the lot and the hillside.
Johnson: It seems like a reasonable request to me. I for one like to see responsible
development on hillsides, so preserving trees is definitely one of the stated
goals on hillside development. It seems like a reasonable request.
Alt: I concur.
Johnson: I move that we approve BOA 06-1901 with Staff's recommendations as
shown.
McSpadden: Second.
Andrews: We have a motion and second. Do we have any further discussion?
Green: Just this one point I would like to make. We keep referring to the fifteen
percent slope in the hillside ordinances as if it were passed. We just have
to remember that it has not passed City Council yet. It is something we
Board of Adjustment
January 9, 2006
Page 10
use for planning and recommendations, we have to keep reminding
ourselves that it is not the law at this point.
Roll Call Upon roll call, BOA 06-1901 is approved by a vote of 5-0-0.
Board of Adjustment
January 9, 2006
Page 11
BOA 06-1902 (HABITAT FOR HUMANITY, 521): Submitted by HABITAT FOR
HUMANITY OF WASHINGTON COUNTY for property located at 1101 INDIAN
TRAIL. The property is zoned RMF -24, RESIDENTIAL MULTI -FAMILY — 24
UNITS/ACRE and contains approximately 0.13 acres. The request is for a variance from
the requirement of 6,000 square feet lot area minimum and 25' front setback on Paris
Avenue to allow for an existing 5625 square foot lot (a 375 square foot variance) and a
19' setback (a 6' variance)
Morgan: This property is somewhat of a combination of two lots of a platted
subdivision, platted prior to our current codes. It is approximately 75' by
75' which would allow for 1,764 buildable area within the setback. There
was previously a two-story single family dwelling built around the turn of
the century. There are several single family dwelling units to the west of
this on Indian Trail, and there are multi -family dwellings up on the hill
south of this property. Recently this past summer, the home that was
existing on this property was demolished and Habitat for Humanity is
interested in purchasing this property to construct a one-story dwelling
unit. They have requested a variance for the lot area so that they can
actually build on this property as well as the setback so that they can build
closer to Paris Avenue than allowed. I would like to address our findings
to these separately. With regard to the variance request on the lot area
requirement, Staff does find that granting that variance would be in
harmony with our current regulations. To not allow that would basically
be to deny any development rights on this property. It is just shy of 400
square feet from meeting that requirement and the development of a
single-family dwelling on this property. As for the request for various
setbacks, Staff finds that the lot has buildable area, approximately 1700
square feet on the property. The building setbacks to the lot itself are not
peculiar; any corner lot is subject to two 25' building setbacks off of each
street and then a 8' building setback on the other two property lines. We
do recognize that there is considerable slope on the southern end of this
lot; the previous home was built into that slope and there is currently a
retaining wall there. The applicant recognizes this and proposes to further
excavate into the slope for the proposed home, but not any further
excavation to alleviate encroachment into the building setback. Staff
suggests that modifications of the footprint of the proposed dwelling and
additional excavation into this slope would allow conformity with the
setback requirements. For that reason, Staff has recommended the
approval of the lot area variance request with two conditions of approval,
and denial of the requested of the requested variance for the front setback.
Andrews: Any questions for Suzanne.
Board of Adjustment
January 9, 2006
Page 12
Johnson: I have driven that road Paris Avenue and Indian Trail quite a bit, and from
memory, Paris Avenue does not actually end in the center of the right -a-
way, but may be located closer to this building.
Morgan: They are in the right-of-way but the center line of the existing street does
not conform with the center line of the plat driveway. Paris, when you
look at the street itself, is constructed a little bit closer to the property line
than you see otherwise.
Andrew: Is the applicant present?
Brewer: I am Patsy Brewer, Executive Director of Habitat for Humanity. Over the
past few years we have been fine tuning our footprint so that we can go in
and work for a three or four bedroom home, so we can work for multiple
dwellings at one time. So we have a footprint that we use and that is what
we use on every lot, so to do that we need the variance. It would make no
difference if we turned the house the other way, because the lot is square.
And if we turned the lot the other way, we would be digging further into
the hillside which we don't want to do. We will have to move into it a
little bit just to be able to set the house on the property.
Andrews: What would be the effect of taking off the front six feet so the house
would be in compliance?
Brewer: Having bedrooms eight by eight would be the result of that. The rooms are
not huge by any means, but that would really cut down on the living space
of the home tremendously.
Johnson: Where on here are you going to provide for parking?
Brewer: It would be on the upper part, the south side of the property.
Andrews: Is there anyone from audience that would like to address this issue?
Venable?: I am Cleo Venable? and we own the properties on two sides of this land.
One side is really steep and we were told some time ago that we couldn't
do anything with that, couldn't build on it. And we have let it set. The
other side has apartments built on it. We were told that we could on it and
they could not build on the place that they are here for now. There is a
kink in that street, Paris Street. It is a very narrow street, both streets are
very narrow. The house was built when there was a railroad out there.
We don't feel that a building on that lot would enhance the neighborhood
at all. All the buildings are setback from Paris and Indian Trails streets.
Board of Adjustment
January 9, 2006
Page 13
Ms. Gilo Venable: If they want to make this house, there is a house in the back. This
house they would make in the middle of the street, just middle of the
street. All high school children going to restaurant go this way. More
need sidewalk, we don't need another house. I like all of you to walk over
there and look at the property and after that you decide. This would make
house very ugly just middle of the street. Two sides have a street. If they
make house, they would like my parking lot. We have problems with this
land for nine years. That owner — that is old building 50-60 or 90 years -
that owner abandoned. He had this place and all druggies come over
there. I complain about that to the City. Why do they want to make the
street ugly? (very hard to understand)
Andrews: According to our papers, it is 19' from the street. Is there anybody else.
Hearing none, we will bring it back before the Board.
Johnson: There is one other concern that I would like to bring up because I have
driven that street quite a bit. I think, going along with part of what she
was saying, there is a bend in this road and it doesn't actually follow the
line of the easement. The way the house was before, it was in the setback.
It was still very much obscuring the view of the street because of the way
it bends. Encroaching into the front setback on that side, would make the
visibility of the street almost negligible. So anybody coming down would
be obscured by the front of the house.
McSpadden: So anyone traveling on Paris you couldn't see traffic?
Johnson: On the rest of Paris, it is deceptive. It is hard to explain. I support Habitat
for Humanity's cause and I would really like to see something better.
There couldn't be much worse built on the lot than what was there before,
but this would be the absolutely worst side to encroach. I would rather see
them encroach in the Indian Trail side.
Green:
This is a unique situation for a lot, being below our minimum size slightly
and it is also a corner lot which gets 25' setback on two sides instead of
just one. I think that further restricts the building and the usability of what
is left there. The main situation though is the fact that I totally understand
that fine tuning their floor plans to get those in a very efficient buildable
way where they can get the most bang for their buck, when they are trying
to build an affordable house. I don't think having them lop six feet off of
it and redesign the whole foot print is something that is very feasible
either. Just looking at the unique situation of the corner lot, the fact that
what they are going to put there is going to be a great improvement to the
neighborhood, over the dilapidated structure that was there, I think it is
reasonable to allow the setback variance on that. Also, that is only adding
160 square feet in the encroachment and we are pretty much in agreement,
Board of Adjustment
January 9, 2006
Page 14
McFadden:
Johnson:
McFadden:
Johnson:
Morgan:
Johnson:
Green:
I think that 375 feet of reduction in the minimal block size width should be
acceptable for this particular lot. What that is saying is, if we give them
375 square foot reduction, that this is only 160 some square feet of that. I
don't think that it is a significant encroachment into the easement,
especially considering the improvement that is going to be for the
neighborhood. It is a unique, a small completely square lot; and that being
two 25' setbacks on a corner lot, makes this a unique situation.
I appreciate what you are saying. On page 11, it looks to me like there is
an extra 14' on the south side — there is a dotted line there. The house is
being built 22' from the southern property line, with an 8' setback. So you
have another 14' to work with. Am I understanding correctly that the only
reason why you wouldn't use that space instead is because of the canned
nature of the building design?
They would have to excavate out. There is a hillside here.
So that's the side that already excavated in.
So the only way for them to site their pre -designed house is to site it the
way it is, unless we granted them a variance towards Indian Trail. It
would have to be a much greater variance, it looks like. My only concern
is that I think that the road here is actually probably built on the property
line if not over the property line. It is really close to the existing house
and if they are going to get closer to the street, it is going to be really bad.
To further elaborate on that, I would agree that going out there on the site.
Looking at the map on page 18, you can see Paris Avenue, there are two
different line types that kind of cross each other, one is curved and one is
straight. The straight represents what was originally platted and the street
wasn't built like that. It was difficult too, to really determine setbacks and
such because the site plan that was submitted by the applicant doesn't
reference any specific point in space, such as center line, etc. I would
highly recommend that they will need to show that for any kind of
building permit application, but I would recommend a survey of the
property so we can really identify where the property lines are and where
the street is.
If the property is constructed based on the property lines, I think you are
going to be really, really close to the street, more so than maybe 19'. But
that is going by my drive by knowledge, not any survey information.
So if the street is really built outside the right-of-way, then that is probably
a different issue. We might need to look at other remedies for fixing that.
Board of Adjustment
January 9, 2006
Page 15
Johnson: I certainly wouldn't mind granting them — I guess if we need it — I guess
the only grants we would need would be the square footage. My only
concern is the actual setback. I hate to make the situation worse than
better.
McFadden: I support Habitat for Humanity as well and their mission, but it seems, like
Mr. Green was saying, that we have a unique lot and it requires a unique
design. I know that means extra money, but we have architectural
schools, that as a community we have the capacity to come up with a
design that would fit the site a little better than this one.
Johnson: You can kind of see what I'm talking about on page 17 where the public
hearing sign is posted. It is the corner of where the existing house was
built. I don't know if it was built on the property lines or not.
Andrews: I don't feel I have enough information to make a call on that, because it is
where the street is.
Brewer: You have to realize that that we have built two two-story homes. We will
probably never build another one. Volunteers do not like to get up on
scaffolding to put on siding on the second story. They certainly don't like
to get up to do a roof. So you have to realize the man power we are using.
There are people who don't even like to get up on six foot high scaffolding
to do peaks on a single story. We have to take all those things into
consideration when we are looking to build a home.
Johnson: Have you had a land surveyor of any sort look at this lot.
Brewer: When you go down to the Courthouse, the plats that you have are from
1927 when the whole thing was platted out. There is nothing new on
record. Until we get ready to move forward..... we always get a survey
ultimately for each property we own to pass on to the family. We have not
ordered one on this property.
Green:
I feel that if the lot is going to be usable for Habitat, we are probably
going to have to grant both of these variance issues, just to make it
buildable for their particular constraints. I know it is getting harder and
harder to find single family lots in Fayetteville that even qualify for
something that Habitat can use. So with that, I would move that we follow
Staff recommendations to approve the lot area variance — 375 square feet
with those two conditions of approval. Also, I move that we recommend
approval of the six foot setback variance with an additional requirement
that a survey be required to identify exactly where all these elements are
prior to getting their building permit.
Board of Adjustment
January 9, 2006
Page 16
Andrews: Is that all one motion?
Green: I intended for it to be all one motion.
Alt: I have a question on your motion. You are saying that with the
recommendation that they have a survey. What if that survey comes up
that it is more than a six foot variance.
Green Then they would have to come back here for further relief or do something
else. The six feet is all the motion includes.
Alt: I second that.
Roll Call Upon roll call, BOA 06-1902 is approved by a vote of 3-2-0. The motion
carries.
Board of Adjustment
January 9, 2006
Page 17
BOA 06-1903 (SMITH, 640): Submitted by BRETT PARK for property located at 49
E. 27TH CIRCLE. The property is zoned RSF-4, SINGLE FAMILY — 4
UNITS/ACRE and contains approximately 0.32 acres. The request is for a
variance from the requirement of an 8' side setback for a 4.3' setback. (a
3.7" variance)
Morgan: This property is located in a subdivision that was plated in 1975 with a lot
area and lot width compliant with the requirements of a RSF-4 zoning
district. This house, approximately 1700 square feet in size, was
constructed in the early 1980s and is compliant with all required building
setbacks. The request is for a side building setback less than 8' for a new,
approximately 400 square foot, addition to the existing single-family
home. A total 19.3 square feet of this proposed addition will encroach
within the building setback. Staff finds that special conditions do not exist
for this property related to the side building setback. As a whole, Staff
finds that the lot is of sufficient width and area to allow the construction of
single-family dwelling which has already occurred, that the property is
located on a cul-de-sac and has a lot width of less than 70 feet at the right-
of-way is not a special condition which affects this property alone, as all
surrounding lots on this cul-de-sac as well as our zoning district
requirements for a cul-de-sac in an RSF-4 zoning district are held to the
same lot width requirements. Additionally, there is a minimum 70' lot
width at the 25' front building setback which is a standard requirement.
This property has been utilized for a single-family use for more than
twenty years and can continue to be enjoyed in its current condition,
therefore Staff recommends that current owner modify the location and/or
size of the addition to comply with the RSF-4 zoning district regulation.
We do not feel that enforcement of this setback would create a deprivation
of right. As acknowledged by the applicant, this request is a result of the
applicant's desire to construct the addition. Staff does not find that the
shape or size of the lot creates special circumstance, however. Therefore,
Staff recommends denial of the requested the side setback variance.
Andrews: Is the applicant present?
Park: I appreciate Staff's comments, recommendations and requirements for
considering a request for a variance. This is something that falls outside
of the issue of deprivation rights and that sort of thing. The Board's
consideration would help with that. The Smiths came to me to design a
garage addition to their house, they had anticipated it just being a
widening of the existing garage which would result in a much greater
encroachment into the side setback. The design that you see is the result
of our consideration in trying to minimize the encroachment on the
setback in pushing it back as far as we can on the lot. That location is as
far back as we can push it and still have connection to the existing garage
Board of Adjustment
January 9, 2006
Page 18
into the addition, which is very important to them. Another issue to
consider is a construction issue. The ridge of the roof runs along —
basically the center line of the new proposed garage addition is the center
line of the existing roof so there are significant construction advantages in
just continuing the ridge line. As a result of that and as a result of the
angled property line, our encroachment is a small triangle rather than a
uniform encroachment over the entire length of the setback line. What I'd
like for the Board to consider is that we put particular effort in being
sensitive to the setback requirements, and we have also put particular
effort into designing a functional solution that helps to meet our client's
request on this project. I have a late piece of information. The Smiths got
a letter of support from a neighbor. They also interviewed all of their
neighbors and I would blame it partly of the holidays, they got one written
response. But they have had universal outpouring of support from all the
neighbors. Whether it is appropriate to submit this....(handed letter to Mr.
Andrews.)
Andrews: Is there anyone in the audience that would like to address this issue?
Smith: I am Roger Smith. We own this property. We thought this would be just
a minor deal. I appreciate your work. I am not ever going to volunteer for
one of these jobs.
Andrews: Well actually we have a couple positions opening up.... It looks like they
have done everything they can to minimize the encroachment. It is just a
small corner. They have come to us before the fact to ask permission
instead of forgiveness. We don't have any neighbors that are in
opposition to this, so I don't have any reason to deny this.
Green:
The fact that these cul-de-sac lots are a real problem, for most of the
setbacks. There are a lot of problems with these unusually shaped lots. It
is difficult to pin down the property line in some cases, unless there is a
fence along that property line. I don't have any problem granting this
variance especially in light that there is no opposition to this. I would
move that we approve this requested side setback for 4.3' just in that
triangle that they are proposing and not for the entire side setback.
Johnson: I'll second.
Roll Call Upon roll call, BOA 06-1903 is approved by a vote of 5-0-0. The motion
carries.
Board of Adjustment
January 9, 2006
Page 19
BOA 06-1904 (BRISIEL, 526): Submitted by BLEW, BATES & ASSOCIATES for
property located at 639 HAPPY HOLLOW ROAD. The property is zoned RSF-4,
SINGLE FAMILY — 4 UNITS/ACRE and contains approximately 0.58 acres. The
request is for a variance from the requirement of 70' lot width to a 61.63' lot width (an
8.37' variance)
Garner: The property is located at 639 Happy Hollow Road, approximately 300'
north of Huntsville Road. The applicant proposes to split the lot. It is
approximately 0.40 acres. They want to split it evenly down the middle
into lots of 0.2 acres. In doing so, the proposed lots would not have the
required lot width of 70'. As shown on Table 1 of your report, page two,
they are requesting an 8.37' variance for each of the lots that would be
created with the lot split. Regarding the findings, Staff does find that this
lot is relatively large for this neighborhood and you can see on some of the
exhibits in the back — on page eight is shown a parcel with a variety of
sizes of lots. Some across the street are 70', the ones adjacent are larger
than 70', but then just north of the property, there are lots that are 55'-60'
in width, so we don't find that this lot would be out a character or create
an adverse impact to the neighborhood. We are recommending approval
of this variance with conditions as noted: 1) one additional single family
home may be permitted on the new undeveloped lot; 2) a building permit
shall be obtained prior to commencement of construction; 3) all existing
structures, easements and utilities shall be located on the site plan
submitted for building permit consideration; 4) existing accessory
structures on the new lot shall be removed prior to lot split for the new lot;
and 5) is referencing the approval of the lot split.
Andrews: Is the applicant present?
Brisiel: My name is Tim Brisiel and I am the owner of the proposed lot split
property. We do several projects like this a year, where we go in and
improve and update an existing house. This one is a little different; it is a
very unique home. It was the original home on this property, and was part
of a large parcel of property. It is a rock house. We have gone in and
completed updated it, upgraded the inside of it. We are very pleased with
the way it turned out. When we got done, we realized there was a lot of
land there where possibly we could go and build another house, that would
be 1200-1300 square feet, be an affordable house that we would sell. It
wouldn't be a rental. It would be sold to someone in the community. We
thought it would be a great possibility to provide affordable housing to
someone in the community. Like the Staff recommended on one of the
contingencies of approval, is that we would go in and remove the
accessory structures. The shed will be relocated. The rock garage will be
have to be demolished — it is a more permanent structure than the other
temporary sheds. It is also interesting to note that there is an abandoned
Board of Adjustment
January 9, 2006
Page 20
easement on the backside of the property. We are in the process of
researching that and doing a quitclaim to that property so that would be a
part of this property when the additional home is constructed. This would
allow for a privacy fence. A lot split conforms with all of the square
footage requirements. It will create a large, deep lot. It is about 81/2 ` short
as far as the width requirement goes. We appreciate your consideration.
Andrews: Is there anyone else that would like to address this?
Justin:
Karen Justin: I have a question for the owner. With the removal of the
garage, the current driveway will be done away with. Where would a new
driveway go in the new plans — trying to see how large each side of the
house is compared to where the new yard would be, where the yard of the
current neighbor is.
Brisiet: With the existing driveway there, that driveway would be enlarged
towards the south, on the original property. The new structure would have
a new driveway. I will have to research the exact driveway requirements,
and whatever we do we will maximize the front yard of both those
properties. If we can do a shared driveway to minimize the impact of the
front, we might do something like that.
Andrews: Anyone else? I will bring it back to the Board.
Green:
I have technical question for the City Attorney. On an RSF-4 — 4
units/acre, which comes out to 0.25 a quarter of an acre per unit, it if this
is reduced to 0.2 per acre, does that make it an RSF-5?
Johnson: I think the assumption is that is goes to right-of-way.
Green: Or is that RSF-4 an average over a certain area?
Whittaker: That is not something I am going to comment on because number one, I
don't know what the practical effects are. The folks in planning deal with
this every day. Do you all want to field that?
Green:
Since this did come down to 0.2 acres per lot, I just wanted to know what
the interpretation of the RSF-4 is in regards to specific per units - is that an
average of the entire acre.
Garner: If it was split as proposed, it would not automatically change the zoning,
unless there was a rezone. The proposed lots have the amount of square
footage as required in RSF-4, which is 8,000 square feet per lot for a
single-family dwelling unit.
Board of Adjustment
January 9, 2006
Page 21
Morgan:
Green:
Andrews:
Morgan:
Brisiel:
McSpadden:
Brisiel:
Alt:
Brisiel:
I think typically when we are looking at rezoning a subdivision — a whole
entire piece, it is an average. You can't have more than four units per acre
average and that's including all the rights -of -ways, dedicated park land
that will be dedicated. In the previous issue with regards to Habitat for
Humanity, that was a 24 unit per acre, but we didn't really calculate all the
surrounding property to make sure each of those was an average. Because
it is an individual lot we looked at it — that 6,000 square feet per lot. I
think we would do the same thing here. If we were looking, for instance,
for a lot split in a recently developed subdivision, and they wanted to
create a lot that was a little smaller than 8,000 square feet, we would check
the overall subdivision and make sure that that one new lot did not
increase the density to more than four units per acre.
That is probably a good answer — to look at an overall subdivision and you
want to average out to no more that four per acre.
Where did we get the 0.4, because at the beginning it says it contains
approximately 0.58 acres. In your background, you say 0.4.
It says 0.4 on the drawings on page six.
It was kind of a learning experience for me, too. When I went and had the
surveyors do it. Basically, the original piece was larger. Once we go to
do the lot split, we dedicate, as we always do as being good citizens, land
to the City for additional right-of-way. And so that's where it was lost
along Happy Hollow Road. If you are looking at the survey, you see the
"found pin not used detail" and that is a little bit further to the east where
the actual property line. I believe that was the original north -south
property line along Happy Hollow Road.
How is parking now on that existing house? Other than the garage? Are
you planning on constructing another garage or how is that going to work?
It will be concrete. I don't plan on constructing another garage, simply
because of the width constraints. But that driveway will be improved. I
don't know the driveway regulations. We will comply with all of that.
That will be improved. If I can do a shared driveway to minimize the
impact of both of those lots and reduce the amount of square footage we
use, we'll do that.
Not that you will need a side setback variance later for this new lot to
construct a garage?
No, I actually have some floor plans for a 1200-1300 square feet. It will
be similar to the house that is there, except a little more square, like a 38 x
Board of Adjustment
January 9, 2006
Page 22
40 square. They will conform with all of those setbacks as well as include
a two -car garage.
Johnson: I move that we approve BOA 06-1904 with Staff's recommendations as
shown.
McSpadden: I second.
Roll Call Upon roll call, BOA 06-1904 is approved by a vote of 5-0-0. The motion
carries.
Board of Adjustment
January 9, 2006
Page 23
BOA 06-1905 (BLAIR, 448): Submitted by CHRIS BARIBEAU for property located at
1011 TANGLEBRIAR LANE. The property is zoned RSF-4 RESIDENTIAL SINGLE
FAMILY and contains approximately 2.51 acres. The request is for a variance from the
required 25' front setback for 0' setback (a 25' variance).
Fulcher: Before I get started on the report, did everyone get a copy? The second
page is the best view which shows the 25' setback in yellow along
Tanglebriar Lane. As you can see, the proposed home, where the yellow
crosses the white, this pedestrian bridge is what we will be discussing. I
didn't realize that just south of that walkway, you can see a white line
which is a retaining wall within that 25' setback. I spoke with the
applicant this morning. It varies from about 18" to 6 to 8'. I think they
will be able to answer more questions on that. I did not mention that in
the Staff report or make findings for that. I ask you now to let me cover
that in the Staff report and to make that a part of the variance request also.
Andrews: Sure.
Fulcher: The property is located adjacent to 1011 Tanglebriar Lane and is all under
one ownership. It includes lots 11, 12, and 13 of Rockwood Addition.
The existing home is located on Lot 11 and there is an existing tennis
court located on Lots 12 and 13. The surrounding properties consist of
single family residential development and is zoned RSF-4. The applicant
plans to build an approximately 5,100 square foot home on Lot 12.
However, if you look on the third page of the colored survey and
diagrams, you will see that only a small portion, approximately 1900
square feet, will be built on the ground level. This design is based on
topographical challenges, existing drainage ways and vegetation on the
site. The applicant has tried to design a home that will minimize
disturbance to the land. Since the applicant has chosen not to significantly
grade the property, the home will sit well below the street grade level. To
access the home from the street, the applicant has proposed a pedestrian
bridge, which you can see on page two, shown within the 25' building
setback. The bridge and retaining wall will both be over 30" in height,
therefore are required to meet building setbacks. Therefore, the applicant
has requested a variance to permit construction of the pedestrian bridge
and the retaining wall within the front building setback. The literal
interpretation of our zoning ordinances would not prohibit a house being
built on this lot. There is adequate room to build a home on this lot. What
we are looking at here is how to construct a home without severe grading,
without removing a large amount of the existing canopy and vegetation on
site, that will not create a large amount of disturbance to the natural
environment. That is what they have shown here, that is what they are
intending to do. I think the applicant can explain a little more, especially
on page three. You can see that the home is built on three levels and these
Board of Adjustment
January 9, 2006
Page 24
retaining walls all are part of this design to limit the amount of disturbance
on this property. Because of the grade changes, not going in there and
grading the site out, it is going to create the elevation difference between
the street level and the home. Therefore the pedestrian bridge and
retaining wall to hold back those elevation differences to soil there, are
required to be put on the property to fall within the front building setback.
Based on the site limitations and environmental design on this lot, Staff
finds that the requested setback should be granted with three conditions of
approval. Number one is that the front setback variance will only apply to
the pedestrian bridge and retaining walls. All other structures, including
the proposed home, (page three) shall meet all required building setbacks.
Items two and three are basic conditions of approval.
Andrews: Is the applicant present?
Baribeau: I don't have anything to add. I will respond if there are any questions.
Andrews: Any questions.
Johnson: They are basically here because retaining walls and bridges are considered
structures.
Fulcher: They are all over the 30" height limit.
Johnson: But the actual livable structures are located of outside of it...
Baribeau: And the footprint of the building to get the 1900 square feet — basically
that's the garage that is set below and to enforce the entire house. The rest
of the house doesn't touch the earth.
Andrews: Would anyone from the audience like to address this issue? Seeing none, I
will bring it back before the Board.
Green: It seems very sensitive to the site. I commend them for that.
Johnson: I think building on hillsides is something that there is a significant
advantage to because you definitely don't want to impact it too much. It
seems like a very good way to minimize the impact but still create
something that has all the advantages of being on the hillside. I motion
that we approve BOA 06-1905 with recommendations as shown and with
Staff request to include the retaining walls as part of the variance request.
McSpadden: Second.
Board of Adjustment
January 9, 2006
Page 25
Roll Call Upon roll call, BOA 06-1905 is approved by a vote of 5-0-0. The motion
carries.
Whitaker and McSpadden: Had to leave the meeting.
Board of Adjustment
January 9, 2006
Page 26
BOA 06-1906 (HOGGATT, 638/639): Submitted by HALLEY H. JR. & CANDACE
HOGGATT for property located at 1068 CATO SPRINGS ROAD. The property is
zoned I-1, HEAVY COMMERCIAL AND LIGHT INDUSTRIAL and contains
approximately 0.20 acres. The request is for a variance to allow a 0' front building
setback off of Cato Springs Road and a 10' front building setback off of South Garland
Avenue. This is a variance of the front building setback.
Garner: This property is located at 1068 Cato Springs Road and Garland and
contains 0.3 acres. This structure has served as a residence since 1960,
prior to current zoning regulations. Recently, the two-family structure
suffered substantial damage due to a grease fire. They want to repair the
structure on the property, however, it is currently zoned I-1 which is
industrial, so in order to do that, they need to have the property rezoned to
RMF -24. As well they want to rebuild the structure within the same
footprint as the existing structure and that would require variances even if
the rezoning is approved. The rezoning is before the Planning
Commission tonight and then going to City Council at the next meeting,
kind of fast tracked so hopefully they can get their building permits going.
As discussed in the description, they are requesting front building setbacks
on Cato Springs Road and Garland Avenue. As shown on the survey,
Cato Springs Road, a portion of the old building footprint encroaches into
the Master Street Plan right-of-way approximately two feet, so the Board
of Adjustment would not be able to approve a variance to construct in the
Master Street Plan right-of-way. That would also require a City Council
approval. The variance request before you is for a 0' setback on Cato
Springs Road and a 10' setback off of Garland. Staff finds that special
conditions and circumstances exist for this structure that was built prior to
zoning regulations in 1960 and served as a residential structure. Any
repair of the structure would require variances to the regulation. We find
that these variances would not be injurious to the neighborhood, as it is
surrounded by residential development in a similar type configuration. As
we noted, any construction within the Master Street Plan right-of-way
would require City Council approval. We are recommending approval
and the conditions as noted on page one. Condition one — the setback
variance would apply to the existing structure with the site plan submitted
for this request; condition two — that the building footprint would not be
extended any further into the building setbacks; condition three is related
to the building permit that would be required; and condition four — the
rezoning would be approved with the setbacks that are proposed for this
variance.
Andrews: What is the City's plan for widening either of these roads?
Garner: Cato Springs Road is designated as a minor arterial, that is why the right-
of-way encroaches so far into this lot. It is 45' from center line on the
Board of Adjustment
January 9, 2006
Page 27
Master Street Plan. I don't have any specifics on the timeframe for
construction on that.
Johnson: Is the 45' right-of-way setback here, is that from the center line? I
assume the lines drawn on page nine are center lines of the road?
Garner: That is my understanding. This isn't done from a survey, but I scaled it out
and checked with aerial photos, and it appears to be from center line.
Andrew: Is the applicant present?
Hoggatt: I am Haley Hoggatt. To answer the question, it is from center line of the
road. The only thing I have to add is that the structure has been there
since 1960. We just finished putting $35,000 worth of renovations into
this three months ago. The structure is not getting rebuilt. There was
never any damage done to the structure; we had interior damage, primarily
dry wall, cabinets, trim, everything within the existing of one side. There
is melted vinyl that will be replaced. The renovations we did recently
didn't require any permits, so we weren't aware of these zoning issues and
the setbacks. We don't set back any different than any other home on the
street. We have actually owned the property for 13 or 14 years. We own
quite a few properties and this was the last one we renovated, because
Cato Springs Road had not had any money put into. It was pretty
dilapidated area and in the last five years, we have seen quite a bit of
improvements to structures that are the same distance off of that road.
After that, we did our part to bring our house up to standards, as more of a
neighborhood area. I don't know how it ended up industrial in the first
place, but it is pretty apparent to me that it is not going to continue
industrial. There is nothing industrial being built down there.
Johnson: And it is going to before rezoning tonight?
Garner: Correct.
Green: It looks pretty cut and dried to me. I am going to move that we approve
the variance request as requested along with the five items of Staff
recommendations.
Alt: Second.
Roll Call Upon roll call, BOA 06-1906 is approved by a vote of 4-0-0. The motion
carries.
Board of Adjustment
January 9, 2006
Page 28
Andrews: Any further discussion? I'll see if I can get the Bobs' signature on this
and get a cover letter and get it before the Ordinance Review Committee.
The meeting is adjourned at 5:15 p.m.