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HomeMy WebLinkAbout2006-03-06 MinutesMINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT A regular meeting of the Fayetteville Board of Adjustment was held on March 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 06-1919 (WRMC, 211/212) Approved Page 3 BOA 06-1900 (NEWELL, 322) Approved Page11 BOA 06-1967 (GYSIN, 563) Approved Page 20 BOA 06-1965 (HILLCEST VILLAGE, LLC, 291) Approved Page 22 BOA 06-1966 (ALLEN, 445) Approved Page 30 BOA 06-1969 (MCCLUNG, 446) Approved Page 33 BOA 06-1968 (HANDCRAFT Approved CONSTRUCTION, 607) Page 35 BOA 06-1970 (STEGER/KISER, 293) Page 37 BOA 06-1991: BOARD OF ADJUSTMENT BYLAWS Page 40 Approved Approved Board of Adjustment March 6, 2006 Page 2 MEMBERS PRESENT MEMBERS ABSENT Eric Johnson Michael Green Sherrie Alt Bob Nickle Robert Kohler Michael Andrews Karen McSpadden STAFF PRESENT STAFF ABSENT Suzanne Morgan Andrew Garner Jesse Fulcher CITY ATTORNEY David Whitaker Board of Adjustment March 6, 2006 Page 3 Andrews: The first thing on the agenda is the approval of the minutes from last month's meeting. Are there any corrections or changes? Seeing none, I will enter those into the record. Green: I do have a question about minutes, though. Are we still missing the December minutes? Morgan: I believe those were handed out, but I think there might have been some miscommunication on those or they were misplaced or something. I will make sure we get new December minutes printed out whether they were or were not. Green: Last month I think it was supposed to be December and January minutes to approve and we only had January in our packets. Morgan: We will get those to you. Andrews: At the meeting today our process will be - we will talk about the issue, we will have Staff input and we will ask for input from the applicant and then we will take any public input after that. Then after the public input, we will discuss it among the Board members and move from there. When we do ask for public input, please state your name and address for the record. 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: As stated the subject property contains 52 acres. It is currently developed for Washington Regional Medical Center. The applicant is anticipating several Large Scale Development approvals to add on to this structure and add several new structures and parking deck, etc. to the property. We currently have in process two Large Scale Developments for the development of this property which includes the Administration Services Building which is the subject matter of the Board of Variance request. The applicant received a Conditional Use approval to add on to this facility by the Planning Commission. They were granted a Conditional Use approval. One of the buildings, the ASB building is located adjacent to Appleby Road and in the R -O zoning district when an R -O zoning district is adjacent to an RSF or RMF zoning district, there are height restrictions — those being that any building in excess of 20' shall be set back an additional foot from the setback line for each additional foot in height over 20'. At the tallest point and nearest to the setback, the building is 47'7", therefore the front building setback is required to 57'7". Board of Adjustment March 6, 2006 Page 4 The applicant requests to construct this structure right at a 30' building setback and therefore the variance request is a 27'7" setback variance. Staff has considered the findings and there are not any special conditions that relate to the front building setback finding that there is ample area. We understand that the applicant has been looking at the entire property for a lot of development for the two Large Scale Developments that are currently in process. However, we feel that consideration of building on this property, the height restriction should have been considered with that. We feel like literal interpretation of the zoning regulations would not deprive the applicant of rights enjoyed by other residential office zoning district properties within the area, additionally finding that the applicant may be able to relocate structures, move things, lower the height in some places on that building in order to meet the height requirements adjacent to that RSF zoning of which this building is only adjacent a portion of RSF zoning. Appleby Road is a collector street and requires 70' of right-of- way. There is existing right-of-way on this street. The applicant, though, is dedicating just slightly more. The point at which this building is the tallest is adjacent to right-of-way of where it ? slightly to 35' from centerline, but we have that situation on the opposite side of the road as well. You can see that on your site plans. Overall, Staff is recommending denial of the requested height variance and requests that the applicant review other alternatives in order to meet those requirements. I believe the applicant has a Power Point presentation to share. Applicants: I am Bill Bradley, Chief Executive Officer of Washington Regional Medical System. I wanted to go into why we are expanding and tell you a little bit about the entire project and then Danny Babin of HKS will do the specifics on our request. Simply put we are expanding to meet need. Demand is growing. Our inpatient capacity, we certainly feel the limits that we have now. It is not unusual for us to be full on any given day over 2005. You can see that we have had 15,000 admits during 2005 — a little more than that. This project will add 72 beds by adding a fifth floor to the hospital. Those 72 beds would be phased in over a period of time. We would open 24 of those beds right away. Our emergency room was designed for much less volume than we are running right now. Obviously the hospital is not that old. Certainly the volume has grown rapidly. It is the busiest emergency room in the State of Arkansas. We have over 50,000 visits a year. We need to double the size of our Emergency room. This is one area, if you happen to not come at the right time, where there is truly a lot of emergencies, true medical emergencies going on, we just don't feel that we are able to serve our patients the way we want to as far as timely caring. During 2005, eight percent of the time we were on diversion status. We are seeing it more steady, more year around. One month of the year we are closed, not in real terms, but our ER is on diversion and we are full. If an ambulance picks you up in Fayetteville, Board of Adjustment March 6, 2006 Page 5 you will go to Springdale. It is a significant issue. Future volumes — we don't see a whole lot of relief. Just pure population growth is one factor obviously in our area, age of the baby boomers — they as a group moving through, the older we get, the more healthcare services we consume. So that is going to compound the population growth. More people desiring our services — we have had growth, as an example, our patient demand from every zip code in Springdale which increased noticeably in 2005. And then just technology. It starts in the hospital, it may migrate to outpatient, but technology brings in more. Another part of this project is a senior health center. Increasingly community physicians are choosing not to take new Medicare patients; some none at all. Our current senior health center which is in the medical office building immediately adjacent to the hospital is at capacity. If you call today for an appointment, you are probably into the June timeframe. This is going to allow us to expand and recruit additional fellowship and geriatricians. I think this is a real issue for our Medicare population in the Fayetteville area. And this just gives these people a lot better access. The Administrative Services building which we are here to talk about today will centralize support functions onto the North Hills Campus. Included in that is our warehouse. Our main warehouse is at the old hospital campus. Eighty percent of our supplies are consumed at the new hospital — very inefficient. Our kitchen is at the old campus. You can joke about hospital food, transported hospital food is even worse. So we want to get the kitchen out and think we can serve the patients better there. Gaining efficiencies will save us about $750,000 a year, in just improved efficiencies from not having to go back and forth to the other campus. It will help us serve our patients better with our ancillary services and it is located in a place that will allow us for future patient care expansion. We have looked at options of how we can attach more beds to the hospital. The fifth floor will be the end; we can't go up any further. Our foundation is not stressed to go up further. We will have to go out for future expansion. That's why the ASB, in our opinion, needs to be where it is. I will turn it over to Danny. Babin: My name is Danny Babin and I'm with HKS Architects. HKS has worked for Washington Regional since the development of this entire campus several years ago. Just to get you oriented with the campus, the main highway out front, North Hills Blvd., on the east side and the main entry comes into the front door of the hospital, which is here facing north. The existing hospital contains a Women's Center area here, the main entry is here, the patient beds occur on the second through the fourth floors. The main diagnostic and treatment block of the hospital is located here. And then the logistics and support area of the campus is located in this vicinity here. From an expansion scheme, each of those areas has a master plan of expansion when these different services need to expand. It is anticipated, as Bill mentioned, that additional patient beds would expand to the south Board of Adjustment March 6, 2006 Page 6 of the existing hospital. The existing diagnostic and treatment area would expand over to the southeast of the existing facility. The Women's Center would expand to the northwest and the logistics area would expand to southwest. The main reason for this is to preserve in essence the front area of the campus for public parking and orientation of the public to the items they are going to be approaching: The Women's Center, patient care beds and diagnostic and treatment. The senior center, not shown on this plan, is actually being proposed for this corner over here on North Hills and Appleby. The concept of the campus with the logistics and support areas concentrated on this area of the campus. Part of this project, the fifth floor expansion which will give 72 additional beds to the hospital, the Emergency Department expansion which expands the hospital here, we are also relocating the pharmacy and new central sterile services for surgery. Central sterile is being relocated from the old campus to increase the efficiency in that department. We are also taking what is materials management area, the small piece of it that is in here, as well as the piece that is off campus, and relocating it into the proposed ASB, which would be out along Appleby Road here. The existing service dock is in this area and this small tan block in the existing central plant which services the entire campus. We also plan a parking deck in this area here, approximately four stories tall, that would be set up to serve the Administrative Services Building, so this is a staff garage, not a public garage. As we found with working with hospitals across the country, the general public wants to pull up to the front door and park in a parking lot and walk in the front door and not be forced to go into a parking garage. So that is the concept here is using the parking deck for staff parking only. What led us to the development of this location was the fact that this logistics area needed to grow, when the logistics area is located on the ground level of the hospital in this area adjacent to the dock, the prime area for this expansion had to be in this part of the campus in order for it to work with the existing layout of the campus. So what we have in the lower floor of this building is materials management and supply shops — things that are located currently in the ground floor of the hospital here that are going to move out into this building. And we are going to move pharmacy from here over into this building in order to free up the area to greatly expand the kitchen on the ground floor of the hospital. As Bill said, we want to get the food preparation to the servery and as close to the patients as we can. The services that are going to be in the ASB can be slightly more remote from the hospital. We anticipate there will be a covered walkway connecting the two so that materials can be moved from this area directly in the hospital. We did look at putting this addition immediately adjacent to the hospital in this area, but what that would mean is that we would have to pay to demolish and rebuild the entire truck dock area as well as the service access to the existing central plant and this little square right here is actually the medical gas service area. So that Board of Adjustment March 6, 2006 Page 7 area would probably have to be relocated in order to get access to it, if we were to have to place this much of the building immediately adjacent to the hospital. One of the other things that caused us to want to put it over here, is the fact that we can build the building here that houses this stuff a whole lot cheaper if it is a free standing building, rather than to attach to the hospital. Right now our estimates from our contractor, the cost per square foot of this building are running about $135 per square foot. The addition to the hospital is running a little over $260 per square foot. Granted there are a few things in here that we don't have in here — we don't have medical gases or things in this building, but there is a major change in the cost per square foot, if we have to add this space onto the hospital instead of building it as a free standing building. Then coupled with that is the need for — based upon what the hospital needs for services, if this building were a one-story building in this location, we wouldn't be here today because we could build it within a 20' height requirement. There would not be any issue with that. But what we want to combine with this is some administrative services which basically is office space for backhouse, administrative staff. The general public does not have contact with, so it is not something the general public will be coming to, so it makes this a prime spot on the campus for this type of location. It doesn't require the general public to actually come into this building. Then what we did is we took the piece of this building, the Administrative Services Building and divided it into two floors and placed it on top of the footprint of the service floor of the building. So what this shows is quite a blow up of the area to give you an orientation of what we are trying to propose here. The red line is what is now being considered the property line now that we have the LSD for the fifth floor of the hospital, which this triangle of land is actually being changed from private ownership to public street right-of-way to create the 70' right-of-way here. This line here that follows this odd shape — what we can tell is a very old property line designation from a long time ago, before the street was developed. So what we are showing here is we have one corner of the building that is actually the 47'7" dimension that was discussed earlier. It actually sits on the 30' building setback line. Depending on how you want to look at that setback, whether you want to look at it from a line that runs parallel with the street or look at it from the actual property line off set that is in place today. We placed the building as far north as we could in order to maintain the service access into the truck dock area and make this building an efficient building. We were very limited on the width of the building that we could propose because of the location of this service drive and again, that medical gas service area that is existing today. So obviously we are trying to avoid costs if we can by not having to relocate some of these items to do this. Also, what we want to bring to your attention is we believe that the face of having this building in this position actually presents us a being a very good neighbor for the residential property Board of Adjustment March 6, 2006 Page 8 across the street. The reason we believe that is that this in essence is forming an edge of a campus and because we are within 30' of the property line, your existing zoning says that we cannot put any parking in this area. I believe it says that if you are less than 50', we can't have any parking in the front yard of the building. So we believe that by putting it in this location actually creates a much better screen for the loading dock, the whole service area of the hospital from the street and the neighbors across the street. If we were to set this further back, at some point there may be a need for additional parking that could potentially creep along to the front of this building plan now, it certainly would be compliant with your zoning if we were more than 50' back from the street. The last thing I want to say is if you look at the way this is being interpreted, if this property were adjacent to a residential zoning, either as a front yard or a side yard to an existing residential zoning, the distances between our proposed building and the proposed residential structures could be considerably less than what we are actually proposing with what we are going today. If these two properties were adjacent to one another with a side yard, the buildings could be approximately 50'7" apart; if they were adjacent to one another on a back yard, they could be 77' apart. What we are proposing today, even with the variance we are requesting, the tip of the corner of this building is still a minimum of 125' away from a residential facility across the street. So we would like you to consider that in your discussion of this request. I believe that is what I have. Andrews: Does the Board have any questions of the applicant? Morgan: I would like to add one thing that I forgot to mention in the proposal. At Technical Plat review for the LSD, I let the applicant know that there was a regulation that required a 200' separation between the hospital and any residential zoning district. That can be waived by the Planning Commission. If it is, we still have to look at the height regulations. So I just wanted to let you be aware of that. Andrews: I have a question about the property line that you are talking about. I'm not quite sure what you meant by it. Is there a proposed property line adjustment? Applicant: Yes, the little triangle that you mention there, right here. This is actually, I think, City property and there is drainage there. This little triangle right here, the hospital is actually going to give that to the City for right-of- way. Kohler (?): Do any emergency vehicles use that driveway, I guess not if that is a service.... Board of Adjustment March 6, 2006 Page 9 Applicant: Actually the Fire Department uses that. The main Fire Department connection right there is on that central plant building that uses the service area. We do need to keep that open for the fires trucks to come and service the building in case of an emergency. Applicant: And the Fire Department requires 26' for its truck to get in. Babin: I might add that in the discussion with the City Fire Department on the fifth floor — adding the fifth floor to the hospital actually changes the requirements for the building to what is considered a high rise construction. So as part of the additions to the hospital we are actually creating a fire command room inside that dock entrance there into the hospital. That drive is for the fireman to be able to serve that building. Kohler: I want to make a general comment. It seems to me that this is the exact reason we have variance requests. Basically you have the interior of the building that is being affected by setbacks where the other two parts of the building aren't. It makes for a sort of a unique situation that there is no — you have a space limitation on the north and you have a strange property line and they have adhered to the property. It doesn't seem to negatively affect Appleby Road. I would support the request just because it affects the interior of their building, which is odd for a setback requirement. Green: I would also like to add that they way I understand the purpose of this setback adjustment for building height is to sort of ease visually from the residential neighborhoods so that there is not something that is so out of scale. Of course this medical campus out there, as far as I am concerned is one of the jewels of Fayetteville and I certainly want to support it in any way we can, to make sure that their plans are carried out. This is not an off the cuff thing that they want to do. It is a very well thought out plan that they used a building program and just the scale of the Washington Regional main building itself, it certainly makes it own statement. It is a large structure. It just happens to be next to a residential area. To me that separation, that use is not going against what I would consider the whole purpose of having those terrible setbacks for the building height. I fully support what they are trying to do, because this is going to be a real benefit. If fact Fayetteville has a very unique situation. There is nothing else in Fayetteville that could be compared to it; it sort of stands on it own. I am very supportive of what they are trying to do out there and would like to encourage them. Andrews: Is there anyone from the audience that would like to address this issue? Seeing none, any one else from the Board? Board of Adjustment March 6, 2006 Page 10 Nickle: I think two paramount things — one, the safety issue with the fire truck access is, to me, is absolutely paramount. They have to reserve that driveway, they can't expand in that area right there. And the other thing is the very last slide points out that because we have a street between, the actual distance between this building as proposed and the residential is significantly more than it would be in other circumstances. With that I think it will keep the scale that the concept of setbacks, it will preserve that scale that was intended when they made those setbacks. But again, to me, that Fire Department access means they really have to preserve that — they can't effectively build more and close that fire lane. Johnson: I agree with Mr. Green. I think they did a very good job of (audible). I don't see any other location. (inaudible). I can support their request. Green: Hearing that, I move that this variance request from Washington Regional BOA 06-1919 be approved as submitted. Kohler?: I'll second. Roll Call: The motion to forward BOA 06-1919 carries by a vote of 6-0-0. Board of Adjustment March 6, 2006 Page 11 BOA 06-1900 (NEWELL, 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 was an item we heard last month. I believe the applicant sent a letter to all of you expressing what he wanted to discuss. Andrews: Is the applicant here? Applicant: Clay Morton. I really don't have much to add. Part of the reason it was turned down is that the Board thought that I did it once and did it again, but I wanted to make it clear that the mistake happened on two homes, but we didn't catch the one until later. That is clear in the letter. The plan that was submitted to the City, that was discussed last time. The plan that was submitted was passed by the Planning Commission and that was the way we built the house and there were a lot of errors made. I wanted to make that known. Andrews: Is there anyone from the audience that would like to address this issue? Vesper: Rebecca Vesper. I am a homeowner next door to the property. I spoke the last time this came up for variance. We have spoken with the contractor. I still have not heard in any way what the alternatives are, what the plans would be one way or the other, how it could be remedied. What I do know is that the property is sitting unfinished. I haven't had a chance to, because I don't have any financial reason right now. I'm not trying to appraise my house, but I do wonder what having that property next door to ours might be doing to our property value. I do know that there is a house directly across the street from it that has not sold, but it would be speculation to wonder, but I do wonder if people would be looking at this across the street and wondering what is going to happen. I know there is a great deal of talk among the neighbors. We had our first property owners association and it is a big point of concern for a lot of the neighbors as to what will happen. We are concerned that it is outside of the setbacks as we have discussed, but there is also concern as to what would be the remedy, how long it would take, would they be allowed to let it languish. Where does it go from here, that is the biggest concern, so that we can get it taken care of so it doesn't affect the property values and the look of our neighborhood. Kohler: I have a question, I wasn't here when you all discussed this before. Why did Staff approve this request? Board of Adjustment March 6, 2006 Page 12 Garner: Staff has typically recommended approval in these instances where buildings are built in the building setbacks. We don't recommend in favor, we don't encourage it obviously. The direction from my boss and my boss's boss has been in general, when a building is almost completely constructed and it has gotten to this stage, I guess the cost of having to tear down the structure and tear that portion out, we typically recommend approval in those instances, and that is what we recommended last time and are recommending this time as well. Kohler: I have underlined on page three — it says, Staff does not support building new structures in building setbacks and violating a signed building permit, as occurred with this project. Nickle: We also had in at the time, Mr. McKinney, building inspector, Mr. Katino. He explained some of the things to us, that made us look at it more. Kohler: The Planning is the one that recommends approval of projects. I didn't know if that is an automatic thing, if someone encroaches on a setback, you all recommend approval and leave it up to us. Fulcher: In the past I've heard of one other circumstance similar to this where a builder had built a home in a setback and it was nearly completed, a variance was requested and Staff recommended approval, and it got to a point, to a third house and at that point Staff realized that this is an ongoing problem that the builders are not wanting to address. I think that is what we looked at in this situation, is that a mistake was made, we are not going to recommend that they tear the house down, unless we see maybe a third request here, we may see a different recommendation from Staff. But at this time, how we treated it in the past, is how we are going to treat it this time. Kohler: I have one more question. Is it the garage portion of the house that is in dispute or also the porch? It's both? It's mostly the garage because that goes into the easement. Have you considered just putting a carport on the part that sticks into the setback, open on all sides which is allowed. I know half of your garage would be behind a garage door. Can you get out of it that way? Morton: I think the covenants have a lot to do with that. I'm pretty sure the covenants require a closed garage. I have a good feeling that that is the case. I would think as far as the value of homes — in talking with some appraisers and real estate people, that house will not affect the value of homes around it. When you talk to an appraiser about it, and I have talked with several of them, there is no instance. They can't look back to compare it. Board of Adjustment March 6, 2006 Page 13 Hague: My name is Andy Hague. I own property in there, 2131 Waterway. I am a real estate agent and sold a number of homes in that subdivision. From the standpoint of value, the opinion of some people who have looked in the subdivision that I have represented, the house that is sitting with no construction going on, that is sitting there collecting dust — however you want to do it, because of these different things lowers the value of the property right then. When the house is done, the sod is in the yard, you have everything there. You can drive by and say that looks about ten feet off. The general public is probably not going to drive by and if you didn't know about it, would you drive by it think it doesn't look right, probably not. If it is sitting vacant with a giant orange sign in there, that in turn draws a little more attention to it, compared to a home that is completed. Kohler: I guess there is an issue beyond that and that is it is a matter of bringing an existing building into compliance. We are not concerned about property values, we are concerned how it relates to the development code. Guy?: My name is David Guy and I live at 4147 Mossy Rock, two houses down from it. I think I'm along the same lines about what goes from here. Is this something that is going to be corrected or going to be allowed to be stagnate for a period of time. Andrew: If we were to deny this and you would have to comply with the setback, what sort of enforcement issues do we have for that? Garner: If it was denied, that portion of the structure would have to be removed from the setback. As far as the timing of that, I'm not really sure. I would think a reasonable time. Katino: Of course he has a valid permit. The building permit is good for at least six months and if he continues to work on it, it could go on — the code is not clear on how long it could take to finish a home once you start it. As long as you are continually working on it. Sony I don't have a better answer. Worst case scenario, if he completely refused and backed off the job and it sat there, at the time it would go into some type of condemnation proceedings. Whitaker: We have had similar things on the table, nothing quite like this. But several things where a project has been started and for whatever reason the owner just stopped building and it was partially built. And at a certain point it is referred to code enforcement. The City would go through the process of — the City Council for a raze and remove order. We are talking about a very extreme situation. (inaudible) Board of Adjustment March 6, 2006 Page 14 Kohler: Would it just be the part that is in violation or would the whole building be considered that way? Whitaker: It is my understanding that after a certain point if you just abandon a building and don't finish, obviously you can't get the Certificate of Occupancy if you don't have a variance or you haven't moved out of the ?, at some point it is a vacant building. They could either make the adjustments so they could get the Certificate of Occupancy and complete the project or they don't. At some point you just have to move against it under the State authority that gives the City to go after unsafe and unsightly buildings. And that would be the whole building. Green: Chances are it could sit in its present condition over years with litigation or proceedings that would have to happen. Whitaker: Obviously if you go to litigation (inaudible) Alt: And actually, if — we are talking if all of this comes true — I would imagine the neighbors' property values would probably be somewhat stagnant. Nickle: I personally think the neighbors would be better off if this project was completed pretty much as is. I'm sure the covenants probably do require a two car garage and you can't say it is a two car garage if all you can get in there is a golf cart. I think the neighborhood deserves consideration on this also. I think the neighborhood would be better off if the project gets completed as shown here in a timely fashion. Then it can be marketed, etc. I don't think it will affect negatively the surrounding properties. Alt: If it were built out as is. Nickle: And even though your suggestion on the carport issue, again, number one it probably wouldn't meet the covenants and number two, I think you wind up more unsightly than this completed as currently is. Kohler: It could potentially keep it from tearing something down. It wouldn't keep it out of the easement either. That is a whole other issue. Green: The easement still has to be addressed, right? Morton: As far as vacation goes with the utility companies, we haven't had any problem with that. I have signatures from all the utility companies that we are not on any lines. The City signed off that there aren't water lines. As far as that goes. Board of Adjustment March 6, 2006 Page 15 Vesper: I have one more comment or question. There is the setback but there is also the utility setback which I think is at four feet. I wonder what that affects. I know that there seems to be plenty of room between their home and our home — they are not too close to our home, but if an emergency vehicle needed to get back there, I can see where that is not a problem because they are way to the other side. I didn't know what that utility setback is for or what it might hinder on the front end? It sounds like he has checked into that. I don't know exactly what that means. It sounds like they checked into where to place the house before they built it and that was wrong. I wonder if anyone knows more information on the utility easement. Johnson: Before the utilities would sign off on it, I'm sure they would look into whether they could access their utilities wherever they are placed. Kohler: Either underground or overhead. Vesper: The other thing — it does sound like maybe it would be better off to finish it out, but what I wonder as a point of comparison, maybe just on principal, the previous presentation we just had where plenty of research was done ahead of time, there was a great deal of planning, there was a lot of effort made to try to plan within the existing codes and setbacks and a lot of good reasoning why they were asking for a variance on that. What I keep hearing over and over here is either there was poor planning or misinformation on the front end and I don't know it that is the fault of whoever approved where they could place the house. Also, I hear over and over, basically in so many words — we messed up. I've heard blaming on subcontractors, surveyor, other people and maybe that is because we depend on these people to give us good information, but the fact remains that this particular organization has done this twice that we know of in the same subdivision or close to it. If the variance is approved and the house is finished, are there no more consequences? If I break a speeding law, I have to pay a fine. Are there consequences? Andrews: Unfortunately there is not. There is a proposal to be forwarded to the Ordinance Review Committee to take a look at that and review possible fines and penalties other than — an all or nothing situation. But as of right now, there is not. Locke: My name is Stan Locke; I am Clay's father-in-law, and I've been working with him about a year and he has built about four other houses in that neighborhood and we never have had a problem with that. These two were built about the same time. We didn't know about it until they both were done, so like Clay said, we didn't do it and turn around and do it again. I just want to assure you that it will never happen again. If Clay Board of Adjustment March 6, 2006 Page 16 doesn't measure them, I will measure them. We are talking about a $240,000 home, and we are about 80% through. We did pay a concrete service to cut a turn -key deal, to pour the footings, to contact the City inspectors to come inspect the footings, so we missed it, our concrete services company missed it and the inspector missed it. He was there to inspect the footings and to me, that should be the time you should check the easement, not after you are 80% done. The financial issue can and will be detrimental. Yes, there were several mistakes. We certainly didn't do it on purpose and it won't happen again. I don't think that the distance one house is from the street — my neighbor's house is about 30' further from the street than my house and I don't think it is worth any more or less. I don't think the distance from the street has anything to do with the property values. I would like to say we would appreciate the approval of the variance and we promise you we won't be back in here again for that. It is just nothing we have to think about — we always did it right. And all of a sudden this happened and it seems like it got by everybody Thank you. Andrews: Does any one else from the public have any comments? Hearing none, I will bring it back to the Board. I guess my initial response, especially two months ago when we chose not to approve this variance, at what point do we — we have talked about this for a long time. At some point, we have to draw the line. And I think the line, at least for me, was drawn several months ago, that if something like this came before us, we would deny it. The circumstances of this issue, they could make them change that. I agree that if this set for a long period of time, it would be an eye sore. I have one across the street from me that has been in construction for about a year and a half now and I'm tired of looking at trash and bricks all over the yard. So I understand that and we wouldn't want to have to continue this construction indefinitely. Another issue is that there has been in the past several years several corner lots that we have setback adjustments for — because this has a 25' setback, it has two front ones, it doesn't have a side. If this were a front and one side, this wouldn't be an issue and we could allow the setbacks closer to the street because of that. That is probably (inaudible). I agree that both of these houses occurred at the same time. It probably would have been better for him to have brought them both before us at the same time. I think he has learned his lesson. I think I have been persuaded to (inaudible). Nickle: Michael, I agree with your points. Even though I wasn't here for that meeting when it was voted on, in fact this lot is a little more unique because it effectively has three fronts. The back of the house fronts on Mt. Comfort. I agree with your points. Board of Adjustment March 6, 2006 Page 17 Kohler: Has anything new come up today that was not discussed when they first proposed this? Factually? Johnson: There were things shared in an e-mail to all of us. The item was heard and we delayed it. It wasn't that we were asking for more information today, we had requested shortly after the first meeting, he contacted us and gave us that information. We put it off so that we could get public comment for today. Whitaker: I was present at both and my recollection that before today I had not heard that this was a contemporaneous problem. (inaudible) I think the Board had the impression that they violated in October, came back in January with a second violation and you didn't learn your lesson. I think that has changed. This is the first time I heard that the mistakes happened at the same time, and came to the Board a couple months apart. I think that is a significant factor that was not stated the first appearance here. Alt: I agree — it is the first time I had heard that. It does change my opinion on the situation too. Kohler: Here is my sticking point on this. This is my thing. It is a principle. There is a cost associated with following the development code. To put a house in the correct position, there is a cost associated with that. You can make more money by making that house bigger than its setbacks represent so there is a cost associated with doing it right. I want to advocate for the people who want to do it right — who sacrifice the program in order to do it right. We are basically rewarding you for not having to have that cost if we approve it. Andrews: There is room to the south for this house to have been placed. If they had put a measuring tape on it, they would have moved that sucker ten feet. Kohler: But principally, the people who do it right have to be spoken for. There are plenty of people who would like to build over the setback line, but choose not to follow the code. To just let this go and say.... It is a tough situation. Locke: We chose to do it right, we didn't have anything to gain by doing it wrong. It has been sitting there, it is costing us $1200-$1500 a month in interest to just sit there and it has been sitting there for four months. Kohler: The responsibility is yours, we all know that. It is just a little hump I can't get over. Board of Adjustment March 6, 2006 Page 18 Nickle: I think one of things that our suggested ordinance can somewhat regulate what you are talking about to — a penalty situation. In the future, assuming the Ordinance Review Committee passes that suggestion onto the Council, that will be one way to address it. I don't disagree with you on that, but I don't think we have the tools to address it in the fashion we would like to. Johnson: If I saw that this was a malicious error, an error to benefit himself, to create more square footage I think this was a series of errors that didn't get caught until the eleventh hour. When I look at what the project is today and what it would be if we turned it down, I think we would be better off, the neighbors would be better off having this building built. I sincerely hope the lesson is learned. Hague: Were both these houses poured at the same time, the same week, month apart? That is something that was brought up. Morton: It was within a couple of weeks, it wasn't the same day. Locke: One of the houses was totally complete and this one was about 80%, so they were poured five or six months before. At the time the variance was noted, one house was 100% and we actually lost a sale on it. It wasn't discovered until they did the survey. And this house was 80% complete before anyone ever noticed it. Kohler: Can I ask one question before we vote. I would like to clear up something for the public. A lot of people think it is up to the building department, the building safety department, to determine if staking and locations of houses on property are correctly located. To my knowledge it is not. Can Steve address that? I don't think it is part of your depaitment's job to run a tape measure to the closest property line pin to determine if someone's concrete pad is poured in the right place. Katino: It is ultimately the responsibility of the contractor to follow City codes whatever the situation is. We do go out and check to the best of our ability given what site plans we have to check and see. I know the guys have a full docket today, but sometime if you like I would come back and give you a discussion on some of the changes we have made on the planning side and the inspection side to help us make sure that things like this don't happen again. Alt: Was that recently that you make some changes? Katino: This was sort of the catalyst .... Green: I feel pretty good about going ahead with it. Board of Adjustment March 6, 2006 Page 19 Nickle: I make the motion that we approve BOA 06-1900 along with Staff's recommendations. Alt: I second that. Roll Call: The motion to approve BOA 06-1900 carries by a vote of 5-1-0. Board of Adjustment March 6, 2006 Page 20 BOA 06-1967 (Gysin, 563): Submitted by United Built Homes in behalf of Mr. And Mrs. William Gysin for property located at 799 S. WASHINGTON AVENUE. The property is zoned RMF -24, Residential Multi -Family — 24 units per acre and contains approximately 0.15 acres. The request is for a variance from the lot width requirement of 60' to 50' (a 10' variance) in order to accommodate a proposed single family dwelling. Morgan: As you can see on page 11, this property was plated in 1912 and each lot consisted of 25' width. Throughout the years, these lots have been combined into two or three lots each and sold to various people. This property owner owns two of the lots resulting in a 50' lot width. There is currently a single-family home on the property which actually encroaches onto the front building setback. The applicant would like to remove that home and build a new home which is compliant with the setback regulations of the RMF -24 zoning district. Staff is recommending approval of the requested lot width variance finding that the circumstances which these requested variance from are not as a result of the applicant — the lot size will be compliant and compatible with the adjacent surrounding lots. The development of a single-family home on this property is compatible. We are recommending three conditions of approval one of which is that only one single-family home may be permitted on the new lot with accessory structures. I have spoken with the applicant with United Built Homes with regard to the site plan, that all accessory structures and the single-family home will meet the setback requirements. Applicant: Nickle: Morgan: McGrislick: Nickle: McGrislick: Morgan: Al McGrislick (?) with United Built Homes. The customer wants to remove the old house and build a new house in its place. Referencing that accessory building B looking on page 10, you have two Bs there, does there happen to be two Bs? The dashed -in B is where they are proposing to locate the building. They are portable buildings and they move back. It is within, at least it is shown within the setback. Yes. And actually there is 25' building setback on that rear. I modified the survey, the proposal and I forgot to put the modified in there. There is a 25' rear setback and front building setback in the RMF -24 zoning district and it looked as those the structure was right on the building setback line, so they will have to make sure they meet it. Board of Adjustment March 6, 2006 Page 21 Green: That is 25'? Morgan: Yes. Andrews: Is there anyone from the public who would like to address this issue? Hearing none, I will bring it back to the Board. Johnson: Pretty standard request. Old lots — keep i ind, the only way to build a house is to allow a variance of this type. Alt: I agree with that. Johnson: I move that we approve BOA 06-1967 with the conditions. Alt: I second that. Andrews: Any further discussion? Roll Call: The motion to approve BOA 01-1967 carries by a vote of 6-0-0. n m Board of Adjustment March 6, 2006 Page 22 BOA 06-1965 (Hillcrest Village, LLC, 291): Submitted by HILLCREST VILLAGE, LLC for property located at LOT 1A EMERALD SUBDIVISION, AT THE NORTHERN END OF THE EMERALD DRIVE CUL-DE-SAC. The property is zoned R -O, RESIDENTIAL -OFFICE and contains approximately 0.33 acres. The request is for a reduced side setback to allow a proposed town home to be constructed and for a reduced front setback to allow for a bridged driveway entrance to the new structure. Garner: As mentioned, this site is at the northern end of the Emerald Drive cul-de- sac. That area is very steep and undeveloped. It is in the Hillside Overlay District. Direct access is off Emerald Drive which eventually connects to Township Street and this is located east of the College Avenue commercial corridor. The property is zoned Residential -Office and in a Residential Office district there is a height restriction that requires any structure over 20' in height be set back from adjacent residential single- family zoning districts one foot for every foot of height a structure is over 20'. The applicant proposes approximately 6,000 sq. ft. two-family residence and would encompass the majority of the buildable area on the site. The applicant proposes to build on a series of concrete and steel piers for an appropriate foundation stability as opposed to regular slab foundation for the hillside. They also have the driveway which would be bridged to reduce grading as well on the hillside. Those cross sections of the building and the proposed variance are shown on around page 15 in your packet. As noted there, the applicant proposes a maximum height of approximately 65 1/2 ` on the rear of the structure and a height of 51' on the side south property line. That 51' in height, there is a gable over a window would actually be the worst point for this variance request which is a variance of 24' for the structure. The front setback for the driveway would be a zero foot setback proposed. Staff does find in favor of the setback variance for the driveway finding that it is appropriate given the hillside development to have a bridged driveway to reduce grading. Staff does not find in favor of the side setback variance, the height regulation. We look at the site plan — it a .33 -acre site, it is undeveloped and we find that there is appropriate room on this site to building a residential dwelling without having to have a variance or at least this much of a variance. We just find in general that it is too large of a structure, too high, it doesn't take into account any of our height regulations. That is why we are recommending denial of the requested variance for that one. We have some standard conditions of approval for the bridge driveway that we have included in here. We would be happy to answer any questions you may have. Green: I have one question. You refer to the Hillside Overlay District. I didn't think we had that yet. We don't have the Hillside Ordinance approved so as far as I am concerned, we can't even consider that as being a factor. Is that way you consider that? Board of Adjustment March 6, 2006 Page 23 Whittaker: I think it should not be a factor. Garner: These ordinances are not in the Hillside Ordinances. Whittaker: Any ordinances that are currently on the books. Garner: I think I was just referring that the map for the hillsides has been approved, I believe, however the ordinances have not been approved. Green: We don't have that quite yet. Kohler: None the less, the timing is very good for this because it is going to happen pretty soon. Nickle: Are the height restrictions different on RSF-4 as opposed to R -O. Garner: Yes, sir. There is no height regulation in the RSF-4 zoning district, however, this proposed duplex, it would not be allowed by use by right in RSF-4 zoning district. Nickle: You would have to get a conditional use if it were that. Garner: Right. Andrews: Is the applicant present? Edwards: My name is Trey Edwards with Hillcrest Village. Just to give you a little history on the site. You are familiar with those lots. When we first approached it, the primary feature amenity of those lots is the view. One of our primary design considerations was how do we build a structure that utilizes those views, but is also a very attractive structure and innovative. Standing on the street level, essentially your feet are about tree level once you get to the end of the site. The point is, unless you have a floor on the street level, you essentially don't have a view. You probably have a window about six or seven feet there where you can drop below street level and still if you are standing up, you can still see above the trees. So I am just trying to let you know where we were coming from in designing this and why we are maximizing the lot and going ahead and utilizing the duplex. I don't like that word, but I guess that's what it is by use unit, but our ultimate goal is to divide these into single family town homes. They are only attached at the garage level. We are trying to build really nice, luxury town homes. To make those marketable, we feel like we had to keep that view at street level. We don't want that four-story structure, but the site drops off so much, that in order to keep any sort of living area on the top floor or a view on the top floor.... From the street level we are Board of Adjustment March 6, 2006 Page 24 Andrews?: Edwards: Kohler: Edwards: Kohler: Edwards: Kohler: Edwards: looking at 15' is as high as the building goes on street level. We just have to go down the hillside and unfortunately it is incredibly steep at the very back corner. From street level, the highest point is 15'? Yes, we roughly have about — the driveway is coming in on street level, 30' back and right away the drop is about 25', in that 30' you sent back. It we have about 8' eave heights and about 15' peak heights of the structure. And these are duplexes so we are designing them so the front looks like one unit even though it is two, so nothing repeats itself. I think there should be a front view there which matches what is in that neighborhood. It doesn't seem to me that you have attempted to help us out any. You have 12' floor -to -floor height which is very generous and you have very steep pitches. It doesn't seem like that you are trying very hard to get this under the height or to help us out. That right there shows zero grading, the site is very unstable, and the best way to accomplish a stable structure is to do the pier and steel foundation rather than doing any backfilling. We could technically backfill and take out that basement floor essentially and if we could do it that way. But that would create a situation out on site, you run the risk of it sliding down the hill when you have any backfill. It sits about 10' down is the crumbly shale. This site remained undeveloped for the last ten years for this reason. So the 1449 finished floor height is where the bridge is, that is street level. Is that right? Yes and that is essentially off the master bedroom. The main floor of the house is below that. So you have taken an existing grade and you have split up the floor -to - floor heights to hit that grade in an optimal way? Our primary design consideration was street level top floor, don't want anything more, we lowered the eave height as much as we could on that side to still stand up on the edges of the room. Like the two lots to the south of this are undeveloped as well and the third house to the south is from my understanding is a condemned structure because they built on a slab and they didn't utilize the expensive foundation that we are using. We could do just one unit and scoot it over, but the foundation alone is about $80,000 and to make that work financially, we have to do two units. We are definitely trying to build something that will be one of a kind and Board of Adjustment March 6, 2006 Page 25 unique to Fayetteville, definitely a signature trademark for what we are trying to accomplish here. We own the two lots to the north and northeast which this is number one of six, and the other ones are not a problem because we are backed up to — for some reason when they subdivided this area, the three lots on the cul-de-sac were R -O, the rest were RSF-4. This one situation where we are butted up against RSF-4 and that is why we are here. Johnson: Andrew, I have a question for you — on the RSF-4 zoned lot, is there a structure permit on the RSF-4 zoned lot — the 22' or whatever... Garner: There is not. The lot immediately to the south of them which is the only abutting RSF-4 zoning district, that is currently undeveloped, and as Trey mentioned, the next lot after that I believe is undeveloped and the third one has a single-family house on it. Edwards: It is condemned. It is a nice house, but what they did is they took the garage about 10-12' below street level so it is really hard to get in and out of your driveway and on top of that, it is still a tall structure, but they did a slab and it is my understanding that it has cracked off and it is or will be condemned. I don't have the details. Green: Have we heard from any of the neighbors around the area — any comments? Garner: I received a call this afternoon from a lady, not an adjacent neighbor, but on one of the streets over and she had concerns with it. She and her husband walk the street a lot and saw that there was a structure and I told her the height and volume of it and she had concerns with the size of it. I'm sorry I don't have any more specifics. It was Montez Fara — her name. Johnson: The height you are measuring from an average of the street? Garner: If you can look at page 17 of 22, and actually page 16 of 22, there are different building heights in that cross section there and you can see the gable right in the middle. The top of that is 51' in height and if you flip back over to the site plan on page 14 of 22, I have marked in where that 51' in height lies on the site plan and calculate the setback distance required from that. Really, the whole side of the structure would be in violation — the 51' is the very worst point at which it would occur. Kohler: And what does the 35 represent? Board of Adjustment March 6, 2006 Page 26 Garner: The 35' as you can see on page 15 of 22 — I have called out the 35'8" in height. It is the second gable. That would be in violation as well. Edwards: I would like to address the gable. That is a light well for the stairway which can be lost very easily and that would drop the request about 8' from what it originally was. So instead of 24', it would drop it down to 16'. There is some design considerations that we are perfectly willing to look at. This was the way the stairway runs up and down the middle of the unit. Ideally we would have the southern sun that would light that. Kohler: It sounds like, to me, that this might be one for reviewing later once they...I don't know who it is up to tabling something like this. Edwards: If there was a number we knew that we could work within, if this were a flat lot, we would be in compliance, but it is not. So by the time you get down, all of a sudden we are way in excess. Johnson: I understand your problem — when you are building on a sloped lot like this, you have to find out the height issues on the size because of the way it is sloped, and if you are building with the grade, if you were to come back and fill in all of this, even build at street grade, instead of a view of the building on the side, you would have a view of berm and then building — or retaining wall. Kohler: There sounds like there are some design issues and flux.... Edwards: We could knock that gable out. Because that does raise it 8'. Kohler: Is that one of the determining factors? Edward: It is nearly impossible to reach the 20' from the lowest point just in virtue of it dropping so much. We could mitigate what we are dealing with here. Sixteen feet sounds a lot better than 24' and I think we can reach that. This just shows you how we had it existing. Andrews: That actually to me is more aesthetic — Inaudible. Kohler: So the 51' is the determining? Garner: That is the very worst case scenario that is on here. If you got rid of that gable, then - I should have drawn a line through the whole side of that building to make it more clear where the setback would go. It basically a one-to-one slope would be cutting across the side of that. Every one foot, this building has to be set back an additional one foot. Board of Adjustment March 6, 2006 Page 27 Green: Edwards: Andrews: Green: Andrews: Edwards: Green: Johnson: Garner: Even if you do away with the gable there, I think just the eave of the house at the lowest point of the lot is going to be your limiting factor then and it may be worse than the gable. If you notice the one little piece with the stone that actually butts out a little bit, the main house, the main eave sits back an additional 6', so we get credit for that 6' from the 20', so that would be 26' — so the difference between 26' and where that eave is is what we are asking for. The only part of that unit that is on the setback line is that 10' kitchen area. Is there anyone from the audience who would like to address this issue? Seeing none, I will bring it before the Board. I would have a lot of problems with it if it were obstructing the view from the people up the hill. I have a couple of examples of that even in my neighborhood where someone built so tall that they obstructed the view of the people behind them. Obviously all the view on this is toward the west. Go across the street, the house is way up above it. You say this is a hill they are building on — it is a cliff. You can't walk down it. They have graded it to do the soil samples - that's the only reason we can access it. I can't see that it would damage anyone, even to the RSF-4 adjacent to it. That still is not going to obstruct their view in the future, even if they set it back further, just the top ridge of the roof in relation to the street is still going to still be the same obstruction. I really can't see that anything would be damaged on this. I for one really support (inaudible) hillside development. When it is done in a manner such as this, it is a benefit to the area instead of grading it and filling it in and building your cookie cutter house on there and having all of these retaining walls every where. It is kind of the nature of the beast, you are going to have a pretty massive structure on the side when you have that much of a drop if you are building with the slope. I would have a problem giving them the side setback, because whoever builds south in the RMF -4 zoned lot is going to have the same issue. They are either going to have to build up high with the grade or regrade the lot. They would have a massive structure as well. (inaudible) Mr. Chair, if the Board does vote to approve this variance I think Staff would recommend some sort of condition related to planting some sort of screening or buffering to help mitigate it a little — the impacts between the single-family residential to the south. That would probably be some sort Board of Adjustment March 6, 2006 Page 28 of evergreen or pines or shrubs. Something to break up that facade a little bit. Edwards: I think within that 15' setback that we are not building in at all, there are some trees. I'm sorry, the 22' setback. Johnson: There are still 22' on the side. Edwards: Their lot is relatively wooded; it is not dense, but it is wooded. Ours hardly has any trees, however, on that line there are some trees on both sides. I can't say with certainty exactly how many are on our side, but between their setbacks and ours there will be a row of six trees all the way down — big trees — existing. There will be a tree line all the way down to the west lot. Johnson: Would the existing trees meet your .... Garner: I'm not sure — I'm looking at page 11 of 22 there and it does look like there are some on that portion. I see the stand we are talking about. I would probably recommend continuing there along the west there. But I think existing trees would work and maybe a few more planted along there. Edwards: This particular unit is our owner's building, so he wants it to look nice. I'm sure that side — it is going to be stone. He doesn't want an ugly south side of his house. So if we need to plant some evergreens, ideally not pine trees with needles. I'm sure we can come up with something good. Johnson: Should we add a screening requirement and allow for the existing trees to mitigate whatever you decide? Garner: Yes, and also a species of additional plant here. If you think additional planting would be appropriate, species to be determined, worked out with the Urban Forester as far as appropriate type. Green: I move that we approve the variance request for the zero front setback as approved by Staff along with three conditions that Staff has listed plus to approve the request for the 22' building side setback under condition that some vegetative screening be done on that side of the house as approved by the City Forester. Johnson: And the other standard conditions.... Green: And the three that they have there. Board of Adjustment March 6, 2006 Page 29 Johnson: I will second. Roll Call: The motion to approve BOA 06-1965 as stated carries by a vote of 6-0- 0. Board of Adjustment March 6, 2006 Page 30 BOA 06-1966 (Allen, 445): Submitted by Sandra Allen for property located at 9 W. DAVIDSON. The property is zoned RSF-4, Residential Single -Family — 4 units per acre and contains approximately 0.16 acres. The applicant is requesting a 0' side and rear setback (an 8' variance and 20' variance respectively) to permit the replacement of an existing non -conforming single car garage. In addition to the request, the applicants require a 14' rear setback for an existing dwelling (a 6' variance) and a lot area of 6,755 sq. ft. (a variance of 1,245 sq. ft.) Fulcher: This is located at W. Davidson Street of the Oak Grove addition. It is zoned RSF-4. There is currently an approximately 1200 square foot single-family home and a 216 square foot single car garage located on the lot. The surrounding properties consist of a combination of old platted lots — 50' wide platted in the early 1900s. The garage was built, there are some pictures of the garage in your packet — page 11 —12 of 14. It was built there on the side and rear property line pretty much sitting right in side of that. There is a survey attached. Subsequent adoption of the City zoning regulations in the 1970s required an 8' side building setback and a 20' rear building setback in this zoning district. As a result, the garage and home are now nonconforming structures. When we reviewed the survey — the original request was exclusively for the garage, once we reviewed the survey we realized the house itself was in the rear setback also. The lot area does not meet the required 8,000 sq. ft. and so we continued the request and have added that in the report. The applicant is proposing to remove the 216' garage and replace it with a 384' single -car garage. It would expand the footprint to the north and west but the southern and eastern footprint would remain the same. - the request for the lot area minimums and the rear setback variance of the existing home. Staff is ultimately recommending approval for this request. The difference is that they replace the single -car garage with pretty much the same size, as you tell, the existing garage was probably constructed to fit an older type car. I don't know if you can even get out of the garage. They are asking for a larger garage to fit a modern-day vehicle, putting it back exactly where the existing garage is located. With that Staff is recommending approval of the side setback, rear setback variance for the garage for the replacement and the rear setback variance for the existing home so we can clear up that matter at this time and also the lot area minimum — to square up that. There are five conditions of approval with that. Nickle: Number 5 Jesse, the proposed garage footprint may need to be adjusted to meet the building codes and the minimum building separation required by all applicable building codes. In relationship to the property to the east or building to the east..... Board of Adjustment March 6, 2006 Page 31 Fulcher: Andrews: Allen: Andrews: Fulcher: Andrews: Allen: Kohler: Allen: Kohler: Applicant: Kohler: The building to the east, we put that condition in, it is not a standard condition of approval, but looking at how close it is to the adjacent structure, we wanted that to be put in there when they apply for their building permit, that is something building safety would review and if it says building codes, that is fine. If it doesn't, it needs to be adjusted into the property further to the west. Is the applicant present? Would you like to address this issue? 1 don't think so. Is there anyone from the public that would like to address this issue? Seeing none, I will bring it back to the Board. Have we heard from the property owner to the east? I have not received any comment. Have you talked to your neighbor? Yes, and they are fine with it. Actually they live out of town, that is a rental property for them. They are aware of this. I think it is always dangerous to put something on a property line. You could get in trouble doing that if you don't account for an overhang of a building or if, in this case, your neighbor to the east has another building close to or on that property line. That is their home. So, if this is granted, if there is a way to recommend something, I would try to push it a couple of feet to allow for an overhang at least for the wall, to not put something on a property line. You don't know exactly where the property line in the dirt and your builder may or may not get that correct. And if they don't, you are going to have another problem with an adjacent property owner. Either the people to the east or the people to the south. The property line actually runs slightly off, if you look at your photograph, there is a retaining wall. The property line actually runs down in front of the retaining wall. So their garage is closer to their property line than ours. Moving the house over would actually put the garage in the same situation as the existing structure. That is just a recommendation — stay off the property line. Board of Adjustment March 6, 2006 Page 32 Green: Probably when the plat the building permit, the separation is going to adjust it somewhat any way and that will take in account the overhang too. Allen: The overhang will meet the setback requirements. Fulcher: I got an e-mail late this morning from Sharon Duber, which should be one of the neighbors who was in support of the BOA request. Johnson: What is the address? Allen: She is east, on the corner of Davidson and Island. Kohler: You are right. Green: It is pretty common in this area of town we have had to look at several variances just like this, from the way the used to build houses in that situation. So I don't have a problem with it. Johnson: I think I know where he is coming from though. I think his suggestion is that if you get a foot, they might make an error and you would be back in the situation like the reverse guy. I don't have a problem with the request. But I would be very careful about where you locate it. Nickle I move we approve BOA 06-1966 with the five attached Staff recommendations. Green: I second. Roll Call: The motion to approve BOA 10-1966 carries by a vote of 6-0-0. Board of Adjustment March 6, 2006 Page 33 BOA 06-1969 (McClung, 446): Submitted by Jason and Anna McClung for property located at 830 N. WILLOW. The property is zoned RSF-4, Residential Single -Family — 4 units per acre and contains approximately 0.24 acres. The request if for a 5'2" side setback (a 2'10" variance) to allow for an expansion to the existing non -conforming structure and a variance from the requirement of a 70' lot width to a 66' lot width (a 4' variance) Fulcher: This is similar in the age of the City on the other side of College, in the Washington -Willow area. It is approximately a 66' x 158' lot, approximately 10,000 square feet., zoned RSF-4. It currently has a 1450 square foot single-family home with an attached carport. The lot and surrounding .... Johnson: Excuse me, we didn't address bringing the current house into compliance with the previous item. Do want to try to catch them? Green: It is in the — we didn't.... Johnson: We didn't discuss it or vote on it. It was lumped in together. Kohler: There is a sentence there that says therefore a variance should be requested and reviewed with this variance proposal for existing home and lot width. Morgan: If you would like to make a separate motion. Whittaker: Let me take a look here. Nickle: Mr. Chair, I am going to have to leave in about 15. Whittaker: I think you are okay because the motion was with Staff's recommendations and Staff recommended approval of the rear setback variance and side setback variance and lot area variance as shown on the attached site plan with the following conditions. So I think you are okay. Fulcher: The home was built in 1952 and located approximately 5'2" from the south property line as it exists today. The applicant has continued to improve the existing structure as shown on a couple of drawings here — 9 of 16 shows the southern elevation, shows the addition, the two-level portion. Then on page 10 of 16, there is a patched in area. The addition would be 288 square feet to the rear of the building. It would be in line with the existing wall of the structure. It would not encroach further to the south. It would stay within the same line 5'2" from the south property line. The applicants have requested a setback variance for a carport on page 10 Board of Adjustment March 6, 2006 Page 34 of 16, you can see the existing carport. That is part of the expansion to the structure they are going to take those walls out and enclose it in and make it a portion of the house and build a new carport which is shown on page 16 coming out from the structure. We thought it may require a variance, but after looking at the code, looking through the paragraph of the proposal, the carport is setback 10' from street right-of-way and is 5' from the side property line, 10' from the rear property line and is open on all sides. It doesn't materially obstruct vision. So we more or less eliminated that from the request and are looking at the existing structure and the proposed addition. So the request is for allowed 5'2" setback for the existing structure which is a 2'10" variance and also would allow for a 288 square feet addition to the existing structure and to address the lot width which was a lot in the 1950s prior to current zoning regulations. It is currently a 66' lot width which would require a 4' variance. Staff is recommending approval of this requested variances with four conditions of approval. Andrews: Is the applicant present? McClung: Jason McClung — Jesse pretty much covered everything as far as the setback on the south side, the building won't encroach. We thought we would need the setback for the carport, but he said we didn't. We are just expanding our home for future family use. Pretty straight forward. Andrews: Any one from the public that wishes to address this issue? Seeing none. Kohler: I move that we approve the request as stated in the document here along with Staff's recommendations of conditions. Green: Second. Andrews: Just one question. There were no comments from the neighbor to the north? McClung: He is okay, we talked with him yesterday. Roll call: The motion to approve BOA 06-1969 carries by a vote of 6-0-0. Board of Adjustment March 6, 2006 Page 35 BOA 06-1698 (HANDCRAFT CONSTRUCTION, 608): Submitted by HANDCRAFT CONSTRUCTION, INC. for property located at 2031 CHERRY HILLS DRIVE. The property is zoned RSF-4, RESIDENTIAL SINGLE-FAMILY — 4 units per acre. The request is to allow a reduced front setback for new home that was constructed approximately one foot within the required setback. Garner: This property was built in 2005 and as mentioned is located in Stonebridge Subdivision, Lot 58, zoned RSF-4, single family four units per acre. The residence was permitted with a 25' front setback and utility easement. The applicant requests a variance for less than one foot. A survey was conducted upon selling the home and it was revealed that the house is located a few inches over setback into the utility easement. Similar to some other ones we have seen, this was a very minor error and Staff again doesn't support building structures in setbacks and utility easements, however due to this building almost completely finished and the minimal amount it, we are recommending approval of this variance with standard conditions. Johnson: It looks to me like there is probably very few square feet, just a corner of the garage. Kohler: Is it an overhang or part of the wall. Andrews: It looks like a wall. Maybe the applicant could inform us what the survey is showing. Byrd: Tommy Byrd with Handcraft Construction and it is the overhang that is encroaching. Andrews: Is there anything else you would like to add? Byrd: This is the first time we have ever had this type of issue arise, I think you made some comments earlier about trying to do the right thing. Certainly, that is what we do and it was just a minor mistake and doing the right thing to get this resolved ahead of time and not having it be a problem for someone else down the road. Andrews: Is there anyone from the audience who would like to address this issue? Hearing none, I will bring it back before the Board. Considering it is the first time with the builder and it is an overhang, a small error. Johnson: It does point out your suggestion about building on property lines or setbacks. It makes errors, even the smallest errors can create a big problem. In the future, the Ordinance Review may assess a penalty for building in the setback or easement. I don't have a problem with Board of Adjustment March 6, 2006 Page 36 approving the variance, I would just like to tell the builders to beware that there may be consequences. Nickle: I move to approve BOA 06-1698 with two Staff recommendations. Alt: I second. Roll Call: The motion to approve BOA 06-1698 carries by a vote of 6-0-0. Board of Adjustment March 6, 2006 Page 37 BOA 06-1970 (STEGER/KISER, 293): Submitted by SCOTTIE STEGER for property located at 2320 COUNTRY WAY. The property is zoned RSF-4, RESIDENTIAL SINGLE-FAMILY — 4 UNITS PER ACRE. The requirement is for a 20' rear and 8' side setback. The request is for a 2' side setback (a 6' variance) and a 15' rear setback (a 5' variance) to bring an existing non -conforming accessory structure into compliance. Morgan: This storage shed, accessory structure, was a smaller size on this property and the applicant has expanded it. A little background on this property. It was plated in a subdivision in 1977. The lot was compliant with all the regulations. Since then, in the last couple of years, the property has been expanded 50' — its rear setback/property line has been expanded 50'. There was property owned by the person who platted the subdivision, property in the flood plain and it was donated to the City as parkland and as park of that negotiation the City granted an additional 50' on these lots. The pre-existing accessory structure is not located in the flood way, but it is located in the flood plain. The applicant had received a building permit to add on to the existing house. It was an addition of 1500 square feet. The applicant had building inspectors come out and take a look at the addition and the inspector noticed they added onto the storage unit without a building permit. The applicant submitted a building permit and discovered this structure was encroaching into the rear and side building setbacks, and therefore was denied the building permit. Staff is recommending denial of the requested variances finding that there are no special conditions or circumstances peculiar to this piece of property which would require this shed to be located in this location. The property is very large and there are alternative locations where the building can be located and still meet the requirements. Had the applicant submitted a permit prior to the erection or addition onto the structure which was quadrupled, we could have worked out these issues prior to that time. It was not caught. This is a circumstance which we face and Staff is recommending denial which would require the removal of the shed or placing it in a different location. Johnson: The addition is substantially complete? Andrews: Yes, the walls are in, the roof is on, there are some floor boards on the porch that are not installed and some finish work on the inside. Applicant: I am Joanne Kiser — I am the applicant for my mother and this is my nephew, Lee Steger. Andrews: Is there anything you would like to add to the comments? Kiser: I think it is easy and set forth. Board of Adjustment March 6, 2006 Page 38 Johnson: The rear of this is the Gulley Park walkway, so there is not another neighbor to the rear, to the side is a next door neighbor, you say is your mother that lives next door. Kiser: There is no development in the back of the property. Green: Does this addition to the storage unit have a concrete floor slab or is it on. Like a skid? Steger: It is on 4x4 posts. Kiser: Those are the only things that are in concrete. Johnson: What is it going to take to move it? Have you looked into that? Steger: A lot of lifts and like a skid of some sort. It is loaded with all of our storage stuff, so we would have to unload it and lift it in both directions. I don't know how that would happen right now. Kiser: We would have to do some more to it. Kohler: These are not making the north or the east sides — they are not encroaching any more than they already have or the existing shed was, and we have made a lot of exceptions for accessory structures. In fact, we have a request in to the Ordinance Review Committee right now to look at our accessory structures ordinances to allow them to be closer to rear and side property lines. This to me no different than that. The reason for that if you follow the actual setbacks, it puts it into somebody's back yard. If you follow the rear property line and the side. That tends to disrupt the space right outside of the main house. I don't see that this is any different than that. I don't know now if it can be moved or not, since it is not encroaching any worse than the shed that was already there. In fact, did you leave that shed there and build around it or did you tear it down. Kiser: It was added onto it. Kohler: So it has sort of been swallowed up by the other one around it. Kiser: The white portion was the original. We added on the other. Kohler: I would understand why Staff would recommend denial, because it is technically against the development code, but me personally, I don't see a problem with it. Board of Adjustment March 6, 2006 Page 39 Morgan: I would just like to let you know that it if the Board would like to recommend approval, I have suggested three conditions. Kohler: There are some conditions in case we disagree with you. Andrews: Have you spoken with the neighbor about the issue with the shed? Have you spoken at all with the rent house. Steger: I talked with them and they didn't have a problem. Kiser: And that would be the one most affected. Johnson: I move we approve BOA 06-1970 with Staffs recommendations on page five. Alt: I will second. Roll Call: The motion to approve BOA 06-1970 carries by a vote of 5-0-0. Board of Adjustment March 6, 2006 Page 40 BOA 06-1991: BOARD OF ADJUSTMENT BYLAWS: Submitted by Staff for the adoption of updated bylaws governing the Board of Adjustment. Whittaker: Green: Whittaker: Green: Whittaker: Kohler: Whittaker: Kohler: Whittaker: Two weeks ago, Jeremy, Administrator, e-mailed me and said we have a new year coming up and do we have bylaws? And I looked through everything and have not seen anything in the five years I have been here. Why don't I call archives. Well, low and behold, back in 1976 there were some drafted. They were amended in 1982. I looked at them and a whole lot of what was in there no longer conformed to the practice that this Board has followed since I've been here. So what we did, is Jeremy and I worked together and amended them to the point where they actually reflect the reality of what this Board does now in another century. What we would like to do is ask you to approve these tonight so we can then have modern rules so in five years from now, when did we elect a chair and how long did they serve... You will note that on #8, because the question has come up time and again since I have been with you and we have never had an answer. Well, this is almost verbatim from the 1976 rules. But paragraph #8 since you mentioned that, does the applicant have to be present to give to request something to be tabled? (inaudible). No, because it says you have can't vote on it if they were to accomplish that. (inaudible). They can ask you to table without having actually physically... So a vote to table would not be considered in what you are saying. It is not a vote to grant. You wouldn't be voting to grant the variance. Is there anything on the State level that mandates that Board of Adjustment — I remember when I went to a conference with Don Warrick, there was a lot of stuff from the State. The State code under the heading of zoning ordinance, the second section of the zoning ordinance statute says that there shall be a Board of Zoning Adjustments. It is an enabling thing so it doesn't go into a lot of specifics, but it does limit your authority of hearing appeals of the administrator's interpretation of the zoning ordinance and granting bulk and area. It didn't have this type of detail. No, it authorized you to adopt such rules, procedures and bylaws. Maybe that suits your needs. Board of Adjustment March 6, 2006 Page 41 Kohler: Maybe I was reading an example. Green: It also says for only the four criteria that we considering in granting a variance. Whittaker: I guess your copy does say any, but as far as the bylaws go and the conduct of the meeting itself, you have wide discretion as long as you meet regularly. Kohler: Was there also anything....I've been absent a few times here, and for medical reasons, people might — does it address the number of absences allowed? Johnson: The rules — the one that I remember that if you miss three in a row... Whittaker: That is a Council policy, that you can't have excessive absences. (inaudible) They can actually move a board member for a reason. Kohler: So is there another layer that the Council has applied? Whittaker: There are ordinances that talk about maybe some provisions by the City and one of the things they had made clear is that you have to be a City resident, a registered voter. You can't serve if you don't get nominated. When it comes down to things like that, there is another layer for local ordinance. Council policy can determine how people get on the board, how the board functions, but as far as specifics, the State code is not where to look. Alt: I had one question on number 4 which is a minor detail. It basically says that all of the other Board's minutes may be taken and filed by a member of the staff. Is that something that is the responsibility of the Board to make sure that minutes are done. Whittaker: That is exactly what it is saying. In the end, no matter who actually does the minute taking, it is the Board's responsibility to make sure it is done. Ultimately it is the Board's responsibility that that happens. I don't think that is going to be an issue any more. The minutes thing. Green: Except for December.... I had one other question on #12 that the Rules of Procedure may be amended by 2/3 majority vote of Board members. Is that a 2/3 majority of a quorum present at a meeting or is that 2/3 of members. Board of Adjustment March 6, 2006 Page 42 Whittaker: In the past our interpretation, unless it says members present, all members of the Board, we have read it to be members present. If you have a quorum, 2/3 of your quorum is necessary. Green: With that I move to approve the Bylaws. Alt: I second that. Roll Call: The motion to approve BOA 06-1991 carries by a vote of 5-0-0. Board of Adjustment March 6, 2006 Page 43 Andrews: When is the nomination for the.... Garner: We are ready to do that tonight. Andrews: I meant for the Board(inaudible) Morgan: The deadline for submitting your applications was the third of March, they will re -advertise if they don't have two applicants that are approved. Anyone interested needs to contact the City Clerk for an application and submit it there, when they find out. Andrews: Do you know if they found enough applicants? Morgan: I believe we have two applicants I think we should be covered, if we only have one who is appointed, we may ask Mr. Andrews or Mr. Green to come back a couple of times, so we can fill all of the positions. Garner: The process for this is for you guys to nominate somebody for chair and we are passing out vote sheets. Green: Since Mr. Nickle left early, I'll nominate him. Well actually I did ask him. Morgan: Everyone's name is on there, but you can nominate as many as you would like and then those who you nominate, just check and pull them. We will do a tally and announce the chair. Kohler: Aren't a couple of these ineligible because you have to be here for a year. Whittaker: You have to have at least a year remaining. Garner: Everyone is eligible. Morgan: We actually need to nominate those people. Kohler: We will count it and make it official. Morgan: Jeremy Pate couldn't be here, and he regrets not being able to be here. I'd like to present these awards to both of you (Green and Andrews). I was looking at your years of service and you have served a total of 18 years, 216 meetings, many many hours. (inaudible) Bob Nickle was voted the Chair.