Loading...
HomeMy WebLinkAbout2006-02-06 MinutesMINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT A regular meeting of the Fayetteville Board of Adjustment was held on February 6, 2006 at 3:45 p.m. in Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS CONSIDERED ACTION TAKEN BOA 06-1917 (IFWORLD, 135) Page 3 BOA 06-1918 (PENGUIN ED'S, 523) Page 9 BOA 06-1919 (WRMC, 211/212) Page 13 BOA 06-1923 (PEACE AT HOME, 21/60) Page 14 BOA 06-1938 (DAVIS, 559) Page 18 RECONSIDER BOA 06-1900 Page 20 Approved Approved Tabled Approved Approved Approved Board of Adjustment February 6, 2006 Page 2 MEMBERS PRESENT Eric Johnson Michael Green Karen McSpadden Bob Nickle STAFF PRESENT Suzanne Morgan Andrew Garner Jesse Fulcher CITY ATTORNEY David Whitaker MEMBERS ABSENT Sherrie Alt Bob Kohler Michael Andrews STAFF ABSENT Board of Adjustment February 6, 2006 Page 3 Green: Since Chairman Michael Andrews is not here today, I will be serving as your interim chairman for the Board of Adjustments for the February meeting. I call the meeting to order. Welcome everyone. It looks like the first item on the agenda is the approval of the minutes from the December and January meeting. The January minutes were all that I received. Did you all get those? I guess those are still out-of-pocket. Did anyone have any additions or corrections to the January meeting minutes? If not, we will considered those approved without any objection. BOA 06-1917 (IFWORLD, 135): Submitted by JEREMY WEBB and IFWORLD for property located at 4058 N. COLLEGE AVENUE. The property is zoned C-2, THOROUGHFARE COMMERICIAL and contains approximately 1.56 acres. The requirement is for a 50' setback. The request is for a 40' setback (a 10' variance) to accommodate a generator. Fulcher: On the agenda, it does say a 40' setback, a 10' variance. Actually, it is a 30' setback, a 20' variance from the front setback off of the frontage road. The property is located at 4058 N. College Avenue. It has frontage on North College on the west and Frontage Road on the east. The property currently contains a multi -story office building and associated parking. The building was constructed in conformance with all applicable setbacks in 1989; however, the existing structure currently encroaches into the front setback on Frontage Road. It is most definitely due to adoption of the Master Street Plan which designated Frontage Road as a 70' right-of-way so it ended up pushing that setback line just to inside the building footprint. The applicant is planning to install a generator on the property for a backup power supply for their server room. The applicant has requested a variance because there is an existing cement pad located of the east side of the building with existing cement walls on either side, that you would typically see for utility placement. However, it was probably built there when the building was built there, prior to the adoption of the Master Street Plan. This request would cause encroachment to the front building setback; therefore, the applicant has requested this 20' variance. While we understand the applicant's desire to place it there based on the cement pad already being located there, if you look at the site, it is a large site. We found that there are other locations probably on the north side of the building outside of an existing utility easement that is near this location, but would meet all the building setback requirements. It would not require a variance to be granted. Based on that, that the special conditions would not prohibit the erection of this generator, it could be placed outside the building setbacks, Staff has recommended denial of this request and has requested that the generator be located meeting all required building setbacks. Board of Adjustment February 6, 2006 Page 4 Green: Anyone have questions for Jesse? Nickle: Jesse, do you know what the right-of-way was before the adoption of this Master Street Plan? Fulcher: I do not. I pulled the old building permits from this, although it gave a distance from the street, it didn't give the distance of the right-of-way, and so I don't know what it was previously designated at. Nickle: Wasn't this 20' back then from Frontage? Fulcher: I think we are talking about the actual right-of-way, the amount of right -of way that was required at the time. I don't believe the setback has changed from the right-of-way, it is the distance of the right-of-way that has changed over time. I don't believe that was indicated on those back in the eighties. I don't believe it was indicated as much as it is now. Nickle: I'm not sure when this building was actually built, whether the frontage went all the way through. It almost seems to me like that section from approximately where this building is north almost came into being when the shopping center to the north went in. Fulcher: That may have been the case. Unfortunately with those building permits then, as opposed to a lot of the things we see now, we can really create for a site plan - that information really wasn't available on those older documents. And that may have been the case — Frontage may have not continued all the way through. Nickle: I'm pretty sure if you look back in the records, it dead ends to the north of this about where Ms. Stouts was — do you remember the Stouts house up there? Which was on the property where this shopping center was built. Fulcher: Do you have any questions? Green: Would anyone like to speak — the applicant? Webb: Jeremy Webb with IFWORLD. I want to preface this by saying that I am a computer engineer and I don't really understand all the stuff we have going on here, so if I ask any stupid questions, I apologize now. I have two or three questions or dots I wanted to bring up. The first one is that this generator is a temporary structure; it is not a permanent structure by any means. If we were to leave, we would clearly be taking the generator with us and I don't know if that makes a difference or not with this. The second point that I have is that I was reading this deal that I got e-mailed last Friday and it says that the request is for a 30' front setback and a 20' Board of Adjustment February 6, 2006 Page 5 Green: Webb: variance to accommodate the generator. I was reading through here and I have a question about this. On this page here it talks about the C-2, the uses of the property and talks about the setback regulations. It talks about a front setback of 50' and a rear setback of 20' and I would consider this as being at the rear of the building, which would be a 20' setback, not a 50' and that is the way I am reading this. I don't know if that makes a difference or not, either. Where I am wanting to put the generator is the back, the rear of the building, there is no need for me to be here because it is not within that setback, if it is in fact 20'. The place that we have it, we checked with the owner of the building and that is clearly the best place to put it. To address one of your points. Since there streets on both sides of the property, those are considered front setback requirements, just because a street is on both sides of it. We see a lot of this on corner lots, too, where instead of a side setback, there are two front setbacks. Same thing. Does it make a difference that it is temporary structure versus a permanent structure. We rent this space and are on a three-year lease. At one time, you guys might recall, we were the company that looked into moving into the technology park. There is a very good chance we could be moving closer to Genesis over time. We would want to take this with us. And if the City ever needed it to be moved for any reason, we could move it at any time as well. The only other spot that he was mentioning it could be I guess, would be on the north side of the building and it gets awfully close to the utility easement on that north side. If it were to go there, he has an issue that it would cause a lot of noise for the tenants down there on the bottom floor. You would have to be it against the glass part of the building in order to have it set so we are not in the utility easement. Really all the way around the building — the place we found, if you walked the property, you would agree it is probably the most logical place for a temporary generator to set. Green: Part of your lease space is not on the north? That is a different tenant? Robertson: Joseph Robertson speaking — that is us. That is part of the Division Department. Nickle: Is that DHS in there. Robertson: Well, they may be a portion of DHS. From the way I understand it, from what they are requesting, it would have to be right against their office space and this generator starts periodically on its own. Where we are proposing to put it has a concrete wall that has a four -feet high on two sides of it and has a cement slab there already just outside of the back Board of Adjustment February 6, 2006 Page 6 McSpadden: Robertson: Green: Nickle: Webb: Nickle: Johnson: Fulcher: Johnson: Fulcher: Green: door. It will be fenced in and it can start up and not bother anybody. In the comer where it is going to be located, there is a fire riser that doesn't have any office space — it is an empty space where the back door is. What was the pad there for originally? It was just concreted in because there was no reason to leave a grass area or anything. The building back door where it came out and where the fire riser comes into the facility, it is just a pad they concreted in and where they spew out the water just ahead of where this is being proposed, just drains off on the sidewalk instead of a curb there. It isn't a space where anybody walks or anything. I have a City dumpster just to, if you are facing the north towards Appleby's, it is just to the right of the concrete slab and I have a dumpster sitting there. It is not used for parking or anything. Any other questions for the applicant? Would you be agreeable at the call of the City, if they asked you to have that moved for some purpose, would you be agreeable to that if that were a condition of the variance. Any time. If they needed us to move it, I would ask for a couple weeks notice probably, but we could definitely do that. I am sort of empathetic about the noise issue, because those can be quite noisy, even one as small as this, 25 kW, which would be somewhat noisier outside of that concrete barrier. The barrier would act as a good noise barrier for those directions. I can see why it would be an advantage to have it there as long as it would stay very portable and you could move it quickly if you needed to. I have a question for you Jesse. So the concrete barrier is already constructed? Yes, the walls that they are referring to are already there. So the generator itself is being considered a structure? That is what the request is for today is for this generator to be placed there. So actually the wall itself is nonconforming, since it is over 30" high? Board of Adjustment February 6, 2006 Page 7 Fulcher: I'm not sure at the date of construction if it was with the original building or near that timeframe, prior to the adoption of the Master Street Plan in 1996. I'm not sure when that was constructed. Robertson: It was built sometime between 1985-89, if I recall. Fulcher: I think the building went in in 1989 but I don't know if the wall went in in '89 with this or a few years following. Robertson: The wall has always been there from day one. Green: Any other comments from the audience? Hearing none, any questions from the Board? Nickle: Well, because it is a very moveable structure and because the adoption of the Master Street Plan basically set this up with that kind of right-of-way, well after the building was constructed and the noise issue, David, is it possible to grant a variance with a condition that at the call of the City, that the generator would be moved? Whittaker: You can place conditions on any variance you grant, by State law and the zoning ordinance that created this Board, grants you the authority to put conditions on any variance. McSpadden: Why would the City need to move it? Nickles: I don't know, it makes the variance less permanent, if you will. And I'm sure the City would have a good reason if they did. Right now, you have a good portion of the building in the setback, so I can't see the City going out and telling them to tear off that side of the building. Obviously I don't think they could legally do that, could they David? Whittaker: Not without paying them for it. The idea of course behind the Master Street Plan is were these streets at some date need to be widened, we already have setback, future construction would at least stay out of the way. And obviously there would be more than a couple of week's notice if we had to widen the road and require any movement. Nickles: To answer your question, that is why I would want to have that condition in there, so the City would not be forced to pay compensation for asking them to move that generator. McSpadden: I think the concrete wall would be more of a problem than the generator. Board of Adjustment February 6, 2006 Page 8 Nickles: I don't know if we are being asked to grant a variance for the concrete wall at this time; it probably predates the passage of the Master Street Plan. Johnson: They don't really require a variance for the wall at this time, because they are not asking for any alterations of the building or the wall. Nickle: That said, I would move to approve the request with the condition that at the call of the City, that the property owner be agreeable to move the generator without compensation from the City. Johnson: I second that. Green: There has been a motion and a second to approve BOA 06-1917, the variance request to accommodate the proposed generator. Is there any more discussion? Fulcher: One comment — with our development standards for any utility equipment that is located, this should be screened from the right-of-way. I ask that this condition be applied and it be screened from right-of-way. Nickle: I will make that part of the conditions of the variance. Johnson: I will second the amended motion. Green: Motion and second to approve the request for variance with those two conditions of removing the generator at the call of the City at no additional cost to the City, and also that screening be provided from the right-of-way. Any other discussion? Shall the motion pass. Roll Call: BOA 06-1917 carries by a vote of 4-0-0. Board of Adjustment February 6, 2006 Page 9 BOA 06-1918 (PENGUIN ED'S, 523): Submitted by ED KNIGHT for property located at 230 EAST AVENUE. The property is zoned R -O, RESIDENTIAL OFFICE and contains approximately 0.56 acres. The request is for variance of required setbacks to allow for changes to the existing non -conforming structure. Garner: This property is located at 230 East Avenue with frontage and entrance on Archibald Yell Boulevard. The property contains the existing Penguin Ed's BBQ Restaurant which consists of a 3,033 square foot building, a smoke house and a freezer, and a 34 space parking lot. The property has been used continuously for a restaurant since prior to the establishment of zoning regulations and the Master Street Plan right-of-way. Therefore, the structure is located well within the building setbacks off of Archibald Yell Boulevard and with the Master Street Plan right-of-way. The site is within the R -O zoning district and is entirely surrounded by residential office R - O zoning with residential uses to the east, west and south and a variety of uses to the north and mixed uses as you travel down Archibald Yell Boulevard. The applicant has applied for a conditional use permit to be heard by the Fayetteville Planning Commission on February 13 to allow for improvement to this restaurant in the R -O zoning district. To also be heard at the meeting is the Master Street Plan right-of-way variance to allow for the existing footprint of the structure to be able to remain in the right-of-way of Archibald Yell Boulevard. That gives you some background. The proposal is to grant variances to the front building setbacks to allow for renovation of the structure. They propose to add an approximate 550 s.f. addition to the restaurant to the east and the south. The setback variances would be to the north and the west where the existing restaurant and for the associated smoke house and freezer to allow for the existing building footprint to remain within the right-of-way. It is noted in your Staff report on page 3, the variance request is for a full 30' variance from the front setback requirement in R -O zoning district and the full 10' side setback on the west off of the side there. Staff finds that special conditions and circumstances do exist that are particular to this structure and properties mainly that is was built and used as a restaurant since prior to zoning regulations and the Master Street Plan. If the variance was not granted, it would not permit renovations to this restaurant. We also find that these variances would not hurt the neighborhood. It would be compatible with the existing uses there and would be able to improve the appearance of that lot and the street frontage and we are recommending approval of the setback variances with five conditions noted on page 1 there. Condition #1 — future alterations or additions to the existing structure shall meet require setback regulations from the Master Street Plan right-of-way; condition #2 — prior to issuance of a building permit, a MSP amendment for a variance of the right-of-way would be required to be approved by City Council; condition #3 — that all future alterations or additions to the existing structures shall meet required Board of Adjustment February 6, 2006 Page 10 regulations for improvements for nonconforming parking lots — requirements depending on the size of the improvements, they would have to landscape and make the parking lot up to code; condition #4 — the existing building footprint shall not be extended west or north any further into the building setback or right-of-way; and condition #5 — all required permits shall be granted prior to any construction or additions to the existing structures. Green: Any questions? McSpadden: I have a question on condition #3. Why is that for future alteration. Why do those regulations not apply to this? Garner: That condition is referring to that this variance is allowed only for the improvements shown in this Staff report. If they choose to have additional alternations into the setbacks, they would have to come back to the Board of Adjustment again. So it doesn't negate all the setbacks for any future renovations. McSpadden: That is what I understood #1 to say, but as far as the nonconforming parking lot goes, but #3, what is it about a future alteration that would require the regulations to be complied with but not these particular alternations? Garner: It does, it is just a matter of language, how you would want to see that. Any alteration to the nonconforming structure would kick in the need for us to evaluate the parking lot improvements, so maybe you could say any alternations. McSpadden: Because to me that read that it didn't apply to this one, but it applies to the next one. Garner: We can change that to say any alterations or revisions. Green: If this variance is granted, they are still going to have to go before the City Council to get approval before this building permit would be issued, at any rate. Garner: Correct. City Council would be looking at the Master Street Plan issue. Nickle: Were you trying to pass the buck to the City Council. Green: I think by definition we are in series here.... Is the applicant present? Would you have anything to add? Board of Adjustment February 6, 2006 Page 11 Knight: Green: Knight: Green: McSpadden: Knight: McSpadden: Johnson: Knight: Nickle: Knight: Nickle: Knight: Nickle: Green: No, this almost doesn't count, right? No, it is one of the two steps that has to be taken. Your name for the record? Ed Knight, owner of the property under discussion. Does anyone have any questions for Mr. Knight? Any further discussion or motions? I move we approve BOA 06-1918 with clarification and corrections of the Staff recommendations #2 and #3. Clarify it to what now? As Andrew was reading through, he said that in Staff recommendation #2, it says the Master Street Plan amendment, but that is not really an amendment, but an actual variance or some other language, so I just wanted to clarify the language to the right term in there. And #3, that future alterations or additions would require parking regulations to be met and it should read any, it would mean that this variance here would require you to conform with the parking regulations as currently on the books. I liked the way it read first. 1 think the Planning Staff's statement is intended to be for this as well as future alterations. The way he original way he wrote it, it was for future. It seemed to me he was excluding this one, in as much as this place has been there for 45 years in operation outside and before any Master Plan and any of the other things existed — a grandfather clause I guess is what it is. The nonconforming parking lot is something this Board has nothing to do with. We can't make that go away. It was just an issue, just a wording. It will come up at the City Council meeting. Second. We have a motion and a second to approve the variance request with those slight corrections to the wording on conditions #2 and #3, but do include Board of Adjustment February 6, 2006 Page 12 the five conditions that Staff has recommended. Is there any further discussion. Roll Call The motion BOA 06-1918 passes by a vote of 4-0-0. Board of Adjustment February 6, 2006 Page 13 BOA 06-1919 (WRMC, 211/212): Submitted by USI -ARKANSAS, INC. for property located at 3215 N. NORTH HILLS BLVD. The property is zoned R -O, RESIDENTIAL OFFICE and contains approximately 52.03 acres. The request is for a reduced setback from 57'7" to 30' (a 27'7" variance) in an R -O zoning district. Morgan: The applicant has actually requested that this item be tabled to the March meeting; however, if you have any questions or there is anyone from the public here, we can address anything. We could make a motion to table this. Green: Is there anyone in the audience who would oppose tabling this until the next meeting? Any discussion from the Board? Nickle: I move that we table it. McSpadden: Second. Green: If there is no further discussion on a motion to table.... Whitaker: To a date certain, you can have more discussion; if you table it indefinitely, it cuts off debate. Green: I think we would prefer to debate it in the March meeting when we have more information. Shall the motion to table pass? Roll Call: The motion to table BOA 06-1919 until the March meeting passes by a vote of 4-0-0. Board of Adjustment February 6, 2006 Page 14 BOA 06-1923 (PEACE AT HOME, 21/60): Submitted by CITY OF FAYETTEVILLE for property located SOUTH OF IVEY ROAD, EAST AND WEST OF CROSSOVER ROAD. The property is zoned R -A, RESIDENTIAL -AGRICULTURE and contains approximately 77.50 acres. The requirement is for a two -acre lot area minimum and 200' width. The request is for a 1.5 acre lot width (0.5 acre variance) and a 20' lot width (a 180' variance) Garner: This site is located east and west of Crossover Road in northeast Fayetteville and south of Ivey Road. The site is zoned R -A, Residential Agriculture. The entire site contains just under 70 acres and a lot split to subdivide the property into three tracts was approved by the Fayetteville Subdivision Committee on November 3, 2005 with the condition that variances be granted prior to recording the lot split. The request for variances is for Tract A which is noted there on page two, creating a lot with 1.50 acres and in R -A zoning district a minimum of 2 acres is required — a half acre variance to create that lot. In addition, the lot width of that lot, Tract A would only be 180' which would also require a 20' variance. Its background is the lot split and compliance configured the way it is. We have Tim Conklin with the City and he can give more details about it, but it is noted in your Staff report. It is our understanding that as shown on your site plan in the back of your report, that a one and a half buffer area (on page 7), around Tract A, upon sale of that property in a short amount of time, that would be deeded to the owner of Tract A who is purchasing this, for a total Tract size of three acres and that would remove the nonconforming of the lot in a relatively short amount of time. McSpadden: So what is the buffer for? Conkin: Tim Conklin, Planning Development Management for the City of Fayetteville. I also have representatives from the non-profit organization here, too. My understanding with regard to the buffer that the nature of this non-profit organization is that they are trying to find a location where they are not right out on the street and they would like to be tucked away back behind a vegetative area, or a buffer where people may not necessary find them when driving up and down the road. That is the purpose of the buffer. It did pose an issue January 4, 2005, the City Council approved an ordinance agreeing to sell them one and half acres. So that has been approved; however, as Andrew mentioned, lot area is not being met — the two acre minimum. It is only one and a half acres and lot width of 200' — we are looking at 20' of lot width to access Ivey Lane. Working with the administration it is my understanding that our goal here is to look at that if the City Council does decide to sell the remaining land east of Highway 265, that there would be an opportunity for that one and a half acres to be donated or deeded to this organization, some sort of tax write-off or donation. In trying to accomplish the goals of the non-profit with trying to Board of Adjustment February 6, 2006 Page 15 be off the street, the potential goals of the ability philanthropy to be donated or deeded to a non-profit from a potential developer, the City Council decided to sell the land. Green: Will that kind of language be a condition of the City selling to some other developer, that they donate that one and a half acre buffer. Conklin- That is what we have discussed that we go out with City Council agreed to go ahead and see the remainder of the land. Now City of Fayetteville did pass an ordinance several years ago that there is a fairly involved process with advertising, posting of signs and I believe certified mailing to adjacent property owners. That did go to City Council for consideration and City Council decided at that time, back in the fall of 2005 not to go forward with any additional sale of the property. That may come up again this year in regard to selling that property. It is in the water fund so it will have to go toward water projects. However, at this time there is no authorization to sell any additional property, but condition #2 does reflect that language, that if we do go out and sell it, how we approach this sale in regards to the original agenda item last year, that this one and a half acres would somehow be donated or deeded to this non-profit. McSpadden: I apologize, but I just don't understand this at all. I read through this several times and I don't understand what is going on. Especially the part of #1 that these variances are not going to be necessary within a short amount of time, which makes it sound like you are going to sell the property, but now you say you are not really selling the property. Conklin: City Council passed an ordinance that does not allow the administration to just go out and sell City property without a very involved notification process. That process would have to be undertaken again to consider selling additional property. That has been discussed about there is interest in this property by other groups and that is something administration would go forward with and bring it to City Council, but that process will take at least about six months to get two appraisals, get notification, signs, ads in the newspapers, to bring it back up for City Council consideration on order to have the policy discussion and have that decision made. But it is the intent of the administration that the buffer area — it is a buffer area that has been described around this piece of property that no development occurs around this non-profit organization. Once again they have asked not to be on the road, which makes is challenging having the one and a half acres up against Ivey Lane and they would really like to have the acreage, but not the frontage. That is where we are at. Judy Selley from the non-profit is here and she can explain it better. Board of Adjustment February 6, 2006 Page 16 Selley: I am Judy Selley, director at Peace At Home. Maybe it would help to understand the nature of our project. That is when renting a facility from the City of Fayetteville since 1980 as an emergency shelter for women and children, we have long outgrown that and have been working with the Reynolds Foundation and succeeded in getting a grant to build an expanded facility for women and children. That is why we need that buffer around for safety sake. We can't have a gas station up against our building and someone could climb up into our facility. It is a safety issue. I do have my architect here, but this is kind of the idea. This is Ivey — what Tim is referring to is there is a beautiful tree line here which we really like because you can't really see onto the property. Our intention is that this building will look much like the other large houses out there with a security fence around it. There was a whole issue about ingress and egress (inaudible). Architect: Basically the way the property was set up is that Peace at Home needed an acre and a half, they actually need three acres. In working this buffer, that Peace at Home would buy a minimal amount of property — that is all they could afford to buy. The City has worked it out so there is a buffer zone. What has come out of it is that there was a lease agreement that has been established with City Council in which they are buying an acre and a half, they are going to lease the other acre and a half. What has come out of this is if the City ever sells this property, they will encourage that that property will be given to Peace at Home. So in the end they are still going to be on three acres. It is here but not here. They have lease agreement tied to three acres that has been worked out with the City. McSpadden: And what are the other two tracts for. Architect: The other two tracts are for access for future development for that piece of property and for a septic field. The problem is that there is no sewer available out here. So there are two tracts, one gets us into our property, one is for sewer. If this property is developed, there are clauses in there that those pieces of property revert back to whoever buys that property if they hook Peace at Home up to sewer and give them access. If they don't, the property is still locked and tied. Green: Any other questions of the Board? Anyone in the audience would like to comment? We will bring it back to the Board. Nickle: I move that we approve BOA 01-1923 with Staff recommended conditions. Johnson: I'll second. Board of Adjustment February 6, 2006 Page 17 Green: We have a motion and second to approve the variance along with Staff's three items of conditions. Any further discussion. Roll Call: The motion to pass BOA 06-1923 passes by a vote of 4-0-0. Board of Adjustment February 6, 2006 Page 18 BOA 06-1938: (DAVIS, 559): Submitted by STEPHEN LEWIS DAVIS for property located at 2050 WEST SIXTH STREET (the former Shake's building) The property is zoned C-2 THOROUGHFARE COMMERCIAL and contains approximately 0.27 acres. The request is for a 21' front building setback (a 29' variance) adjacent to Old Sang Avenue for the addition of approximately 30 square feet to the southwest corner of the structure for a drive-thru window with awning, and for a 47' setback off of the Sang Avenue frontage along the eastern property line to bring the nonconforming structure into compliance. Morgan: This property is developed and currently the building is vacant. The property came before you in March of last year. The applicant requested a variances from the setback regulations in order to bring the existing into conformity so that it could be utilized and redeveloped. This property is quite unique in that it is bounded on all four sides by rights-of-way with Old Sang Avenue to the west being a right-of-way which has been restricted from access onto Sixth Street. That is the setback which the applicant requests in this current variance. This proposal has shown on page 11 of your Staff report is to add an additional drive-thru window adjacent to the existing drive-thru window to allow two drive-thru windows if this property is redeveloped for a drive-thru restaurant. It would increase the stacking space from Old Farmington through that drive-thru for additional vehicles to utilize that space. Staff found that in granting this variance, we would not be allowing the building to extend further into the setback. Also the right-of-way for Old Sang Avenue is currently is not utilized and would not create a negative impact on vehicular traffic and therefore we are recommending approval of that. The conditions #2-5 are duplicates from the conditions of approval from the former variance brought before the Board. Johnson: Is that little driveway going to go all the way through to Old Farmington, because it is not shown on here as going through. Morgan: I believe that the intent is that cars will pull into the site off of Old Farmington and then drive through the west side of the structure. Johnson: And then tum back around? Morgan: Right. And turn off onto what is Old Sang Avenue and then get back on Old Farmington. Green: Would the applicant like to state any additional information? Davis: McKinney David. Only that by moving that pick up window to the front, whatever the stacking is, it will move it away from Old Farmington Road. Board of Adjustment February 6, 2006 Page 19 It should help as a safety factor by doing that at times when business is good. Green: Any one from the audience wish to make any comments about this? I will bring it back to the Board for consideration. Johnson: It seems like a pretty straight forward request. It is not much of an additional and it will improve the flow through their building when they do have customers, so if anyone else has a comment, I will leave it open, but I would be happy to move that we approve BOA 06-1938 as stated with the recommendations that Staff has attached. McSpadden: Second. Green: We have a motion and a second to approve the variance as requested along with Staff's five conditions. Is there any further discussion? Roll Call: The motion to approve BOA 06-1938 passes by a vote of 4-0-0. Board of Adjustment February 6, 2006 Page 20 Green: Whitaker: Nickle: Whitaker: Green: Morton: McKinney: McSpadden: McKinney: That is all the new business on our agenda, is there any old business that should come before the Board, or any additional business. Mr. Chair, the Staff is aware of an applicant from last month's meeting who has been in contact with Staff about the possibility of obtaining a motion to reconsider on the denial of a variance request. Per parliamentary procedure, the Board may by motion and majority vote reconsider an item previously denied. You don't have to, if you choose not to, your decision of the previous meeting remains the final action. It requires a second and also a majority vote. If that motion to reconsider passes by a majority vote, then the item is back on your agenda and you may reconsider, which means you may completely review the facts and findings and indeed come up with a completely different result. If it is reconsidered, it is taken as a live agenda item. If the Board were to reconsider it, would it be appropriate to place it on the next meeting agenda so that it could be advertised, etc. appropriately, so those in the neighborhood would again be apprised of this consideration. That could very well be done and it is probably not a bad idea. It is the vote or motion to reconsider has to be entertained either at the same meeting where the item was considered or the very next one, so if you were to do it, the motion to vote would have to come today, but then you then could set it for your March agenda, it being an open item. Are there any further comments from the audience on this issue. My name is Clay Morton and I was unable to be here last meeting when it was turned downed. There was some additional information that was not shared that I would like to share with the Board. I e-mailed a letter to the Board members and will state some of that information, why I feel it should be reconsidered. I will share some of those if someone did not receive it. I am Steve McKinney and am the building safety director and I am in charge of the building inspections of new and remodeled construction and I am here to answer any questions. I do have a question. Is there anywhere in your protocol in your responsibility to make sure that the building is sited properly. Given the information we have which is the site plan that is submitted by the applicant and approved by the planning office, our inspectors go out and verify that location of that foundation on the plat. Board of Adjustment February 6, 2006 Page 21 McSpadden: McKinney: McSpadden: McKinney: McSpadden: Garner: Johnson: McKinney: They do. Yes, and in this case we did and with the information we had at the time, it was in compliance. His foundation matched the drawing that we had. So how is it that the drawing didn't match the plan that was submitted in order to get the building permit? Because it has to be within the setbacks to get a building permit. Yes, it does. I am making some assumptions here because I wasn't at the meeting when it was discussed. I am assuming that you saw the site plan that Clay had submitted for the application and also what the final results of the survey were, which in fact if you look at the numbers, they are good. And maybe someone from the Planning Office might be in a better position to answer some of those questions about the site plan that was submitted. Is that what he is talking about? That is correct. In the Staff report last month, we included copies of the site plans by the applicant and a hand drawn scale drawing on page three there, it does show a 25' setback off the front, off of Mossview Drive and 25' setback off of Berkley Drive. And that was the site plan that Planning approved the building permit. That was what we looked at to approve. It was scaled. One of the things that is a challenge when we review building permits, is actually including the exact right-of-way on here and where the right-of-way is measured from. That is one of the things that we need to improve on and one of the things we are working on. On this site plan, we probably should have had the dimensions of the centerline and the dimension of the right-of-way from the centerline shown more clearly, because when they go out to measure, they may measure from a point, they use their best guess in the field when they measure it. So that kind of explains what happened. We did look at this site plan and it was permitted with 25' building setback but when it was actually built, obviously the survey shows that it was 10'. In other words you approved a building plan without knowing what points were setback from in the field and when it was measured in the field, the setback points were actually different than what were shown on the plan submitted by the applicant. Actually, I have first hand knowledge of this one, but didn't realize it until today when I pulled the file out, but I actually went out and did the inspection on this property, and not only that, I had one of my new inspectors with me, too. The submitted site plan that was in the box, we Board of Adjustment February 6, 2006 Page 22 went out to do the inspection and it showed the measurement off the curb to the front part of the house, I suppose that is the garage, 26' and on Berkley Drive, it shows a setback of 28', and is in fact what we checked and unfortunately it was not exactly as accurate it should have been. Since this time, we brought Planning and Safety in come up with a new policy to make sure things like this don't happen again. Looking at the survey done by Mr. Reid, it shows that in fact 16.7' from the sidewalk to the front of the building and 10' from the sidewalk and green space, 26.7' and then it shows 36' off the curb line ??? There were errors made on this all the way around. Johnson: If we do choose to review this, we should delay it to the next meeting so that the public will have notification as they did at the previous meeting, because obviously they wouldn't be here knowing that this might come up again. I would move that we reconsider BOA 06-1900 and place it on the agenda for the March meeting. Nickle: Second. Green: There is a motion and a second to reconsider this variance request previously heard by the Board, reconsider it at the March meeting. Is there any further discussion? McSpadden: Would you be willing to come back next month to answer questions if there are other Board members here? Yes. Roll Call: The motion to reconsider BOA 06-1900 at the next meeting passes by a vote of 4-0-0 Board of Adjustment February 6, 2006 Page 23 Green: Is there any further business to be brought before the Board? Any announcements. McSpadden: We are taking applications for the Board of Adjustments members. Whitaker: In the normal course of business you would expect to rotate off after two consecutive terms. Obviously, Council has always left some wiggle room in case they have a vacancy they can't fill, and obviously someone can stay on if they choose too. The idea is to keep fresh faces so that all citizens who want to participate in their government can have the opportunity. Green: I would encourage anyone in the public who might be interested in sitting on this Board of Adjustments to be sure to pick up an application at City Hall and apply. Contact Amber in the City Clerk's Office. We are adjourned.