HomeMy WebLinkAbout2006-05-01 MinutesBoard of Adjustment
May 1, 2006
Page 1
MINUTES OF A MEETING OF THE
BOARD OF ADJUSTMENT
A regular meeting of the Fayetteville Board of Adjustment was held on May 1, 2006 at
3:45 p.m. in Room 326 of the City Administration Building, 113 W. Mountain,
Fayetteville, Arkansas.
ITEMS CONSIDERED ACTION TAKEN
BOA 06-2074 (HOOVER, 523) Approved
Page 4
BOA 06-2066 (THE SPIRITS SHOP, 405/444) Approved
Page 13
BOA 06-2073 (ROUSE -WALKER PROPERTIES, 284) Approved
Page 15
BOA 06-2072 (SUNBRIDGE PROPERTIES/DIXIE, 290) Tabled
Page 19
BOA 06-2075 (LAESSIG, 562) Approved
Page 28
BOA 06-2076 (HILL, 444) Approved
Page 32
Board of Adjustment
May 1, 2006
Page 2
MEMBERS PRESENT MEMBERS ABSENT
Eric Johnson
Karen McSpadden
Bob Nickle
Robert Kohler
James Zant
William Cheeser
STAFF PRESENT
Suzanne Morgan
Andrew Garner
CITY ATTORNEY
David Whitaker
Sherri Alt
STAFF ABSENT
Jesse Fulcher
Board of Adjustment
May 1, 2006
Page 3
MOTION:
Nickle: Before we go to the first item, I would like to make a motion, since I will
be sustaining on the number 2 item. I would like to make a motion to
move that number 2 item to the bottom of the roster and make it number 6
and move everything back up accordingly.
Chesser: I will second that motion.
Nickle: The reason is a matter of convenience so I won't be shuffling back and
forth for an explanation to you all once I get through the fifth item on the
agenda then I will exit.
Roll Call: Upon the completion of roll call the motion to move item 2 on the agenda
to the bottom of the roster and make it number 6 was approved by a vote
of 6-0-0. McSpadden, Kohler, Nickle, Johnson, Zant, and Chesser voting
yes, Motion carries.
Board of Adjustment
May 1, 2006
Page 4
New Business:
BOA 06-2074 (Hoover, 523): Submitted by SHARON HOOVER for property located at
50 S SCHOOL. The property is zoned C-3, Central Commercial and R -O, Residential
Office and contains approximately 0.07 acres. The request is for reduced building
setbacks to bring the existing nonconforming structure into compliance.
Fulcher: The subject property is located at 50 S. School Ave., just north of the
library and zoned C-3, Central Commercial and R -O, Residential Office.
Contains approximately 0.07 acres. The request is to bring the existing
home into compliance with setback requirements, allow for a small
addition to the rear, and replacement of some stairs on the south side of
the building. The home was constructed in 1908, prior to current zoning
ordinances and as a result is located in close proximity to, or within the
building setbacks. The applicant is wishing to bring this to compliance so
that they can rehabilitate it. Improve it so people can live there. If you
have seen the property recently or the pictures in the staff report its in
pretty bad shape right now. Hopefully, with an approved variance, it will
allow that structure to be rehabilitated. It is zoned C-3 and R -O, if you
look on pages 6, 7, and 8 of 20. It has the R -O's zoning regulations and
C-3 zoning regulations. Obviously, the setback requirements for both of
the zoning districts are quite different. Rather than try to explain all the
different variances required based on this district or that. We will just
switch it and go from a different route that the house needs to be brought
into compliance with both of these zoning districts. Also allow for the
expansion of approximately 50 sq. ft. to the rear of the structure and the
replacement of the existing stairs on the south side of the structure. That
will cover everything that is needed to allow this historic property to be
brought into compliance and allow to be rehabilitated. There is a scaled
survey on page 17 of 20 that will give you a better idea of how the home
sits on the property. Its relation to the property lines and it shows the
small addition to the rear and the wood steps that are to be replaced on the
south side of the building.
Nickle: Ok, it's a little unusually that we don't have specific. Like we're variance
this rear setback three feet or something like that. Jesse has explained
because of the two zoning involved, he is just going to, assuming we
approve that, he will just make those variances work according to each
zone that particular part of property is in. Any questions for staff? Is the
applicant present?
Hoover: My name is Sharon Hoover.
Nickle: Do you have anything to add to the staffs report?
Board of Adjustment
May 1, 2006
Page 5
Hoover: I'll just answer any question.
Nickle: Questions for the applicant? Well, none. We will open it for public
comment. Anyone in the audience like to speak to this request? Seeing
none, Oh I see two.
Hiram:
My name is Hiram Brandon and this is Lilis Urban, we are together. We
are the particular neighbors on either side. At this point, we are going to
approve expanding the footprint to include another bathroom. Because I
had thought we were just talking about the foot print as it was.
Fulcher: The request is bringing the existing structure into compliance and adjoined
with that also allow the expansion of that addition and the replacement of
the stairs. It's together and really because of the two zoning districts. Its
just to bring that structure into compliance and allow that expansion on the
rear. It could be voted on or reviewed as a separate item. But ultimately
that's the full request by the applicant. It is to bring that whole house into
compliance, which then will allow the expansion on the rear.
Nickle: Do you all have a copy of the survey showing where the addition would
be. Would you like to see that?
Hiram: Sure.
McSpadden: It looks like once the setbacks, if that's approved, then the addition falls
with in that, right?
Fulcher: Then again, that goes back to the zoning. If you looked at this as a C-3
property, they wouldn't even need, as you can see on page 2 of 20 it
outlines the R -O zoning district. What variances it would be required if
this was R -O and if it was C-3 what variances would be required. You can
see in the R -O district, they would need 4 variances, but in C-3 they would
only need 1. Referring back to that addition on the rear, if this was
considered all C-3, they wouldn't even need a variance for the rear. They
would need the variance to bring the structure into compliance so they can
actually the addition. But the addition would not meet the setbacks.
Under the R -O zoning district, they would need a variance to allow the
addition because it is within the R -O setbacks.
Chesser: Which side of the split is the addition on?
Fulcher: The addition, it's outlined on page 11 of 20 and it's not very clear because
of the print. The zoning runs thru in an "L" section. The zoning cuts thru
Board of Adjustment
May 1, 2006
Page 6
the house and the lot. You really can't discern how much of the house is
in either zoning district.
Chesser: So, there is no way to tell if the addition would fall in C-3 or R -O?
Fulcher: Exactly, and be precise. It could fall 3 feet either way; we're looking at
zoning atlas pages there on a scale of 1-200. You can't be that precise. In
the conditions of approval, I think to cover maybe what you are looking at
for this; this variance is for the structure and the additions. Any additions
beyond that would require a Board of Adjustment approval again.
Kohler: Well, this is really no different than cases we get on regular bases. Which
is bringing in the existing nonconforming into compliance and then often
times they have additions on them that do not exceed the existing
parameterss. The further most perimeters of the structure. This is no
different than that.
Fulcher: Its not.
Kohler: Its two different zonings classifications.
Fulcher: It kind of clouds it, but you are right. This is a typical request for someone
who wants to do addition to a nonconforming structure and they need the
variances to allow that to be conforming structure. This then allows the
addition. We modified this to where if this is approved, the structure is
approved as is and is now conforming. Thus they can make the addition
but this limits those additions. Which is the 50 sq ft on the rear.
Nickle: You all had further questions?
Hiram: The only issue that we have is whether or not if it's going to be two or
three units. It is currently two units and depending on which zoning you
decided on. It will make one or the other a prerequisite. If you go C-3, it
says you have to be three units. Where its only 2 units now. If it's R -O, it
will remain two units, and it can't be three units.
Nickle: Exactly.
Kohler: That's not within our jurisdiction is it?
Whitaker: This board won't decide on the zoning. That would be considered outside
authority to change the zoning.
Board of Adjustment
May 1, 2006
Page 7
Hiram: It's just that part of the addition is part of that third unit.
Fulcher: Is that another restroom?
Hoover: It ended up we where doing the third (inaudible) then we probably
wouldn't use, do this addition. Is it ok to speak right now?
Nickel: Yes.
Hoover: I don't know all the formalities here. If we pass the Downtown code
today, this would all be in compliance. This is no different than what we
are talking about the downtown code. I'm correct Jesse, aren't I with that.
Fulcher: Depending on if it's passed and what zoning district it would get. The rear
setbacks would be significantly different than what it is now. Besides,
maybe in question (inaubdible) setbacks is only 1 foot right now and that
may not, could possibly be a zero. But looking at the rear that could
change significantly.
Hoover: Possibly is a zero.
Urban:
I had a question about the second handout of my printout for the proposal.
The renovation includes an expansion of approximately 50 sq. ft. and the
replacement of the existing stairs on the south side of the building. I'm
unclear about the drawling. Is the stairs going to the second story?
Hoover: They are going to be pulled outside about four feet then go in the building.
Urban: Into the first floor or the second floor.
Hoover: Well, they will be going to the second floor but there will be a landing
kind of mid way and then you will go into the house. Right now, the stairs
are really pushed into the house and this is why we are pulling them out. I
think about 6 risers will be pulled out. And we will have them along the
house. Instead going straight to the south, it will have a landing there and
then turn and go out to the west.
Urban:
I guess my two concerns are that there aren't stairs there that way then. I
mean, the stairs that do exist are three little riders and they go into the first
floor. So now this is saying it will replace the existing stairs when the
stairs that existing only goes to the first floor right now. So, that would be
a new stairwell going to the second floor. I own the property just next to
the house that we are talking about and so that is the side that I share with
them, where they are proposing to build the stairs. And right now, I have
Board of Adjustment
May 1, 2006
Page 8
7 feet between my property line; have a little backyard and then 7 feet
between my property line and their house. My concern is how close is the
stairs are going to be. How wide are they going to be in relation to how
they got it now? It's not clear not me, I think the language in this might
not be correct. Saying replacement of the existing stairs on the south side.
Zant: There's a dimension on the drawling.
Cheeser: Yeah, there will be 3 feet from the property.
Urban: Well, there is certainly more than 3 feet now between my property line
and the existing stairs that go to the first floor. If the zoning is R -O or C-
3, what are the regulations for side setbacks? I know we will be dealing
with the zoning as it is now. However, if we are going to speculate and
talk about the Master Plan, I don't know what the zoning would be for
side setbacks.
Nickle: Well, we are not going to be voting based on something that might happen
at the City Council level as far the new downtown anything. We just have
to go under the current regulations. That is what we are looking at. The
applicant would have the alternative to actually go to the Planning
Commission and ask to rezone the property for either C-3 or R -O, which
ever one the applicant chose to apply for and that perhaps clarify those
issues. I would assume that in doing this, she trying to avoid the process
of actually going thru rezoning which is much more complicated affair
usually. Then the action by our board on setbacks variances.
Hiram: I apologize for all this, because we haven't seen any of this until just at
this point. The zoning line, did you say it was not able to be determined?
Fulcher: When you look at our official zoning pages or atlas pages that are signed
by the Mayor, approved by the City Council, the scales at 1 inch = 200 ft.
So, to determine where that line is on a property in relation to building
wall or stair or property line is very difficult. I couldn't say that it's at the
back of the house or in the middle of the house. You can't make that
determination at a scale of 1 inch = 200 ft.
Hiram: Where is it, I don't see it on this page. Does it run north or south, or east
and west?
Fulcher: Both. It splits the property into an "L".
Whitaker: Is there no boundary in on that property? It turns a corner?
Board of Adjustment
May 1, 2006
Page 9
Fulcher:
Johnson:
Fulcher:
Johnson:
Chesser:
Hoover:
Nickle:
Chesser:
Hoover:
Johnson:
Chesser:
Hoover:
Chesser:
Hoover:
Johnson:
Yes, but if you have the rectangle property, the zoning line runs east to
west and then goes down to the south. So it creates an "L" of R -O and
square or rectangular of C-3. With the majority of the house probably in
the C-3 based on rough area photograph.
Jesse, there are existing woods that the dimension is three feet from the
property line. Is that an existing wood stair?
I think those are the proposed. I not sure but if you look at page 13 of 20,
the bottom left picture. It shows those stairs. I think that maybe what the
neighbor is talking about they extend to the south from the house and I
believe the proposal would be stairs running east and west along the house
wall.
I guess they would line up.
(Inaudible) basically where the overhang is now, correct?
The landing would be where the stairs are right now.
What she's saying is you are going into sideways instead.
So they will only give you access to the first floor than.
No, it will be to the second floor.
Theirs an interior staircase started from here coming up.
But you will enter the house on the first floor.
You will enter the house at mid-range. You won't be the on the first floor,
you will be up.
I understand that, Ok so you'll still sort of enter in the middle of the house
and then go up. The interior stairs will have to move in someway also to
match.
Yes, that's right.
But what I was getting at, are the existing stairs the extension of them
looks like 3 to 5 feet. To where the existing wouldn't, you wouldn't have
to extend any further south than the existing.
Board of Adjustment
May 1, 2006
Page 10
Hoover: Here is the existing right now. Which all I was doing was taking the same
width or just about and coming the other direction.
Johnson: So you would be building slightly higher?
Hoover: Yes, it would be higher.
Chesser: You would be turning it though?
Hoover: Yes, so the landing will be up about four or five feet.
Johnson: From where it is now?
Hoover: From where it is now.
Chesser: But you are not coming any further south?
Hoover: No, not any further south.
Nickle: To answer your question it appears like the stairs will not go any further
towards your property then they are right now. If we understand the
property.
Hiram: Right, it will just be more of them.
Nickle: There will be more of them, but they'll be no closer to the property line
then they are now.
Hiram: Will they have a new door up at the top to enter.
Hoover: Yes, it will have too.
Hiram: OK
Nickle: Did you understand that, apparently what she is proposing will not get any
closer to your property line than it does right now.
Hiram: But it will be more of it?
Johnson: Yeah, it will be more stairs.
Urban: It feels to me that there is a lot on the table. That there are so many things
that are being pushed into one document here. We have an issue of the
house being approved as is, and then we also have an issue of rather or not
Board of Adjustment
May 1, 2006
Page 11
are we going to allow expansion on to the building. It seems like the
additions that are being proposed for the structure have much to do with
the ultimate zoning of the structure. It sounds like; I think there maybe a
lot has been put onto one plate that should have been three plates or maybe
two.
Nickle: Well, Mr. Kohler commented that this is not an unusual for us to see these
items together because usually what brings it about is the sale of the
property or small addition to the property. For that reason, they talk about
the setbacks. This is kind of an unusually case in that we have apparently
multiple zonings to deal with, which is not the fault of the owner. This
house was placed on the lot, long before we had zoning and setback
regulations in the city. First and foremost, and it very typical for this
board to approve a structure, nonconforming structure, that predates
regulations. Addition to that, she is asking to have setbacks varied so she
can make these two changes in the existing structure. But that is not an
uncommon thing for us to consider in conjunction.
Urban: I just thought that the two changes to this structure were being done for
purpose of having the house be for multi -family use.
Johnson: We can't decide based on zoning. What every zoning is decided upon this
will determine the number of units they can get. They might want to have
this expansion and have less units or what ever is allowable under
whatever it turns out to be. If we just look at it from our prospective,
should we allow them to expand this building in this back corner here?
Should we allow them replace the wood stairs with slightly longer tread
length? That's really the only changes to the footprint that we'll review
right now. We are not reviewing the units.
Kohler: That addition could be a storage shed for all we care. The use of the space
or its zoning, we are just looking at the footprint perimeter and setbacks
and to me it looks like its no more encroaching on any of the setbacks then
the house already is. Because it's not extending past any of the further
most points of the footprint of the house. I can't see any reason not to
approve it.
Nickle: Any other comments or questions from the audience? Seeing none, we
will close the public section and bring it back to the board.
Zant:
I would just make a comment that this is a very common occurrence and
this is an old structure that was built long before zoning regulations. God
Bless them for wanting to rehabilitate a 98 year old building. There are a
lot of places where people would just destroy it and here we are, we're
Board of Adjustment
May 1, 2006
Page 12
having a final structure. I certain feel it's worth while. Am I premature or
may I make a motion?
Nickle: No, make a motion.
MOTION:
Zant: I make a motion to approve BOA 06-2074 including the three conditions
as listed by staff.
Fulcher: That condition number one does refer to the condition of the structure and
time frame to pull building permits to make that a safe structure for the
neighbors and others.
Kohler: Second
Nickle: Further discussion? Call roll please.
Roll Call: Upon the completion of roll call the motion to approve BOA 06-2074
including the three conditions as listed by staff was approved by a vote of
6-0-0. McSpadden, Kohler, Nickle, Johnson, Zant, and Chesser voting
yes, Motion carries.
Board of Adjustment
May 1, 2006
Page 13
BOA 06-2066 (Spirit's Shop Liquor, 405): Submitted by BLEW BATES AND
ASSOCIATES for property located at 1242 NORTH GARLAND AVENUE. The
property is zoned C-2, THOROUGHFARE COMMERCIAL and contains approximately
0.35 acres. The requirement is for a 25 -foot front building setback from the North
Garland Avenue right-of-way. The request is for a 14 -foot variance from the front
building setback requirement to allow an existing 11 -foot building setback.
Garner: This property is located on North Garland Avenue, south of Holly Street
and west of Lindell Street. It is in the C-2 zoning district. Currently, there
is an existing Spirits Shop Liquor Store that is nonconforming. It is 11
feet from the Master Street Plan right-of-way from north Garland Avenue.
This is principle arterial requiring 55 feet from center line. There is a 25
foot front building setback required. Therefore, the variance is a 14 foot
variance to bring the structure to conformity and the survey showing on
page 9 shows the existing structure and existing setbacks, right-of-ways,
and depicting the variance request for a 14 foot variance. If this is
approved, the applicant proposes to add a 1, 400 square foot addition on
the rear of the building, improve the parking lot, and they would like to
rehabilitate the whole site, as far as making traffic flow better in and out of
the site. Staff does find in favor to this request. This building was
constructed prior to the Master Street Plan Right -of -Way being adopted.
Therefore, the structure is now nonconforming and does not allow this
improvement to the rear of the structure. It requires a variance and staff
finds that these conditions were not created by the applicant to need this
variance. We don't find that it will concur special privileges on the
applicant. We are recommending approval, we have four standard
conditions. Just wanted to call your attention to condition number 4.
They are allowed a 25 foot building setback in the C-2 zoning district.
Typically, a 50 foot front building setback is required. Since they don't
have parking in front of the building, they are allowed reduce it to 25 foot.
Condition 4 is just referencing our standard requirement for additional
landscape planting in that space between the right-of-way and building.
Nickle: Questions for Andrew on this. Is the applicant present? Will you identify
yourself?
Johnston: I'm Don Johnston, representing the Spirit Shop; I'm one of the
stockholders.
Nickle: Any comments?
Johnston: No, not really. I think Andrew pretty well summed it up.
Board of Adjustment
May 1, 2006
Page 14
Zant:
Andrew:
Zant:
Chesser:
Johnston:
Chesser:
Johnston:
Chesser:
Nickle:
MOTION:
Chesser:
McSpadden:
Nickle:
Andrew, this is yet another technical type issue here. We wouldn't be
here if the road and right-of-way hadn't expanded after the building of the
structure, is that right.
That is correct.
Ok, well I have no problem with it.
Can I ask how you plan to improve traffic?
Presently, we have the drive-in window on the south side.
I'm very aware of the structure and traffic problems.
Anyway, the drive-in window is on the south side, the traffic backs up into
Garland Avenue quite frequently. We're planning on moving it to the
north side, so that traffic more cars can backup. I'm not usually there very
often, but I understand that on the weekends it does back out onto
Garland.
Have a longer loop for traffic.
Anyone from the public would like to comment or ask a question on this?
See none, will bring it back to the board for consideration.
I would motion to pass BOA 06-2066 with recommended conditions by
staff.
Second.
Have a motion to second, further discussion? Andrew, would you please
call the roll.
Roll Call: Upon the completion of roll call the motion to approve BOA 06-2066 with
recommended conditions by staff was approved by a vote of 6-0-0.
McSpadden, Kohler, Nickle, Johnson, Zant, and Chesser voting yes,
Motion carries.
Board of Adjustment
May 1, 2006
Page 15
BOA 06-2073 (ROUSE -WALKER PROPERTIES, 284): Submitted by ROUSE -
WALKER PROPERTIES for property located at 3675 DONNINGTON DRIVE. The
property is zoned RSF-4, SINGLE FAMILY — 4 UNITS PER ACRE and contains 0.36
acres. The request is for a 6' side setback (a 2' variance).
Garner: This property is located at Lot 17 in the Salem Heights Subdivision. This
house was permitted in December 2005 with an 8' side setback off of the
eastern property line. A framing inspection by our Building Safety
Division during construction revealed that 2' of the overhang of the
building is in the building setback. Talking with the applicant, I'm not
sure what happened as far as locating the pins. The survey on page 11
shows the existing survey and the next page also shows the building
permit. You can see where the change occurred. Staff, does not
appreciate buildings being built where they are not permitted. However,
we do not find that 2' of overhang would be detrimental to the overall
character this neighborhood. We are recommending approval of this. We
have some standard conditions of approval. We would be happy to
answer any questions you might have.
Nickle: Doesn't appear to affect any easements?
Garner: No sir.
Nickle: We're talking about maybe 6 to 8 sq ft total? Or less than that?
Garner: I think they said 3 sq ft approximately of total overhang.
Nickle: Is the applicant present?
Wirth: I'm Aaron Wirth, I just want to point out, it's not the entire length of the
property. You asked how we got mis-located; we had several pins that
were torn out during construction. (Didn't understand him thru part of
this) What happens, they were torn out going down the line. Since then,
replace all the pins, and made every effort too.
Zant:
Wirth:
I have a simple question for you, and that is. I'm sure that you will get
this approved but I'm not one to be anguish to approve situations in new
construction. You wrote a letter here on April 10th referencing property
pins. If you couldn't find them or they were uncertain, would the normal
thing be to call surveyor back in and absolutely determine.
Yes sir. The lot shows that it widens and what they did was to over
compensate to one side. But you are absolutely correct. Pins should have
been. We talked with the superintendent and in the future, before we
Board of Adjustment
May 1, 2006
Page 16
Zant:
Wirth:
Zant:
Wirth:
Zant:
Garner:
processed. Actually the side that we were worried about, we moved it
over to the other side and got that corner.
Is there anything else during the course of construction that you could've
done with building of that roof and it's overhang that would have avoided
your having to be here?
After we realized that, we talked about cutting the corner off but it's the
front corner.
There is nothing that would keep a normal kind of appearance and make
the house marketable.
We talked about some options but nothing that, not without cutting off
some of the overhang. The part we would have to cut off would be the
front corner. No, we did not feel like there was anything that we could do.
Does staff feel that way too?
Yes sir, we did feel that was appropriate to allow for the overhang and felt
that we didn't come up with any ideas as far as conditions that we felt
would be appropriate.
Johnson: In the past the board has been pretty strict on new construction that was
built and the setbacks. This incident right here, I mean it looks like just a
plain slight over site. For whatever reason, lost pins, surveyors messed up,
whatever. Having three feet total, we've seen stuff in front of us that was
like ten or fifteen feet off.
Wirth: I saw one of them in March.
Johnson: Right.
Chesser: Probably doesn't make it any better, but the property on the other side is
actually a little off further off so the actually total distance between the
properties still. But the look, that's what you are trying to accomplish.
Accomplish a look with the house to close together.
Wirth: Right.
Johnson: It doesn't seem out of the realm of my opinion that we should allow them
not cut that comer off. I understand that he can do something to bring this
into compliance but it would be more injurious to the appearance and into
Board of Adjustment
May 1, 2006
Page 17
the neighbors and stuff. I believe having a three foot overhang should be
approved.
Nickle: Any more questions for the applicant. Any comments or questions from
the public for this request?
Kohler: I would like to throw in one thing. I would warn you against relaying on
the building safety divisions to discover things like this. If you are a home
builder, you will be building more I assume. Even though, they are
starting to look at more things likes this. We have had some violations of
the setback in new construction. That's not necessarily their
responsibility. I would just caution you to not let things be thrown
together and hope the building safety division would discover it. That's
not their job. We really don't want to see you back here again.
Wirth: I don't want to be here no more...
Kohler: We've told that to people before and you know two months later they
show up again.
Wirth:
Yes sir. What we got lots of houses we are going to build. I don't want to
be in here, and the house is actually sold. I met with the customers this
morning and it's been a heck of a week for me.
Kohler: I would urge you; I think it's worth it to pay a good surveyor to do his job
properly. It will keep you from coming back to us.
Wirth: When this was brought to my attention, my next call was to the survey
company. They should have been ahead of this.
Nickle: I didn't see anyone from the public to speak on this. Seeing none, bring it
back to the board for consideration.
MOTION:
Chesser: I agree with Bob, we just don't want to see you back again. Does anyone
else have any comments? (Overlay again, can't understand what he's
saying). I move that we just go ahead, we don't want to see you again and
I move that we pass BOA 06-2073 with recommendations by staff.
Zant: I'll second it.
Nickle: The motion to second, further discussion? Andrew, would you call roll.
Board of Adjustment
May 1, 2006
Page 18
Roll Call: Upon the completion of roll call the motion to approve BOA 06-2073 with
staff recommendations was approved by a vote of 6-0-0. McSpadden,
Kohler, Nickle, Johnson, Zant, and Chesser voting yes, Motion carries.
Board of Adjustment
May 1, 2006
Page 19
BOA 06-2072 (SUNBRIDGE PROPERTIES/DIXIE, 290): Submitted by BLEW,
BATES & ASSOCIATES for property located at 125 W. SUNBRIDGE DRIVE. The
property is zoned R -O, RESIDENTIAL OFFICE and contains approximately 1.06 acres.
The applicant requests to subdivide the developed property which will create
encroachments into side and rear building setbacks.
Morgan: This is Lot 16 of Sunbridge Center. It's a property that was subdivided for
office use. This particular property is zoned R -O, Residential Office on
which three structures have been constructed. The applicant requests to
subdivide the property in order to sell the western -most structure with
surrounding property and parking. All structures were constructed in
compliance with the building setback requirements. However, creation of
a new property line will establish new building setbacks for these
properties. The result is the existing buildings on either side of the
property would encroach into the setbacks. If you look on page 8 of 14
you can see that the western most building would encroach on the side
setback to the east as well as the southern rear setback. Then the adjacent
building would encroach into the new side setback. As for the variance
request, it would be 5 feet for the proposed Lot 16A to the east, 9 feet to
south of the rear setback and then 4 feet for Lot 16B. With regard to this,
it is somewhat of an unusually circumstance. Looking at the findings as
for special conditions, we do not find that there are special conditions for
this lot or building. We allowed development of multiple buildings on R-
0, Residential Office commercial lots. The don't have to meet any
setbacks except for those on existing property line. They need to be set far
enough away from each other to meet building code requirements. To
allow the subdivision of these lots after the structures are built is some
what unusually. You would be creating several nonconforming situations.
As for deprivation of rights, staff does not find that not allowing the lot
split you would be depriving property owner of any rights to this. The
building is currently in use at this time. It is complaint, too, with all
regulations. The resulting action, or the request, is the result of the
applicant's need to subdivide the property. Staff has proposed solutions or
other alternatives. One of which is horizontal property regime. The
actually building footprint could be sold. However, the land which the
property or building would remain under common ownership. Overall,
staff does not find that the request would be injuries otherwise detrimental
to public welfare. However, we do not support actions that create these
nonconforming situations and certainly find that this is unique. It could
become a common occurrence on other properties if other people wanted
to subdivide their properties in such a manner. We are recommending
denial of this requested variance.
Board of Adjustment
May 1, 2006
Page 20
Zant: Would you classify this basically as a classic example self imposed
hardship?
Morgan: I don't know if I ever classified anything as self imposed hardship, but
yes, perhaps. Certainly the owner I don't believe is trying to get away
with anything in those terms. This was built many years ago. I think we
do see several instances where an applicant desires to add on to a building
or subdivide a piece of property and those requests result in these
hardships.
Nickle: Jim, to give you an example why...Apparently, the rear setback is in
violation. I just realized that this is a corner lot. Under our regulations,
where you have two front setbacks then the other two setbacks become
side setbacks. The creation of this will affectively take away the corner lot
aspect from that portion of it. That is the reason the rear setback will no
longer be in compliance.
Morgan: That's correct.
Nickle: It took me a while to figure that out. That's what happen there I believe.
This was set up originally as a corner lot.
Whitaker: The new lot would have a true rear setback.
Nickle: Yes, regular and standard rear setback. That would be the reason for that.
Further questions of staff before we go to the applicant.
Chesser: I have one. The applicant has several other avenues to pursue other than
this?
Morgan: We suggested at least one. We suggested that applicant might be able to
speak on their whether or not they feel that's a feasible option.
Nickle: Is the applicant present?
Thomas: I'm Derek Thomas with Blew, Bates and Associates Surveyors. I'm
Richard McKeyon Armak Engineering part of Dixie Development.
Nickle: Do you have comments or further comments on the staff report?
McKeyon: I think, like Suzanne said, we are not trying to pull something over. They
just want to sell that building to the person that has been leasing it for the
past 8 or so years. If I had the opportunity to buy a piece of property
verses leasing, I think that's the best interest of the renters as well as the
Board of Adjustment
May 1, 2006
Page 21
Thomas:
Nickle:
Garner:
Thomas:
McKenyon:
Gardner:
McKenyon:
seller. We are trying to help them out, that was our only plan. Suzanne
mentioned the horizontal property regime and that could be another
option.
I had not heard about the horizontal property regime (cough cough) but
selling building whole within a few inches of the outside perimeter of the
building. Is that the possibility and then retaining ownership of the
remainder of the lot, within in which is the property with the parking lot
areas and perimeter?
Basically, like a condo, you buy a space like this. In this case, it's a little
bit more because you would own the ground under the building as well.
Under the footprint of the building. I understand the process. The rest of
it is common area or stays under one ownership or several ownerships. If
that case may be, they can have an undivided interest in it or something
like that I would suspect. You all want to expand on that horizontal
property regime method?
It would be like the same as a condo situation, where you would only own
the structure, not the property. Not the land underneath it, just the
structure.
Ok.
It would be a land lease or long term lease. Ownership of the building
only would be transferred for the improvements for the structure?
That's correct.
I had not heard of that possibility in this case. What I'm finding is that
yes, if we had known, we would like to divide the properties. Then move
the buildings far enough apart to be able to create lot lines for the future,
we would have built it that way with future set backs in mind. Not
knowing that what so ever, the work was done and the buildings put on the
property originally. The open space would not change from today
compared what it is last week. As we create a property line here, the open
space would be the same. Rear area would be the same, area for fire
safety, whatever, would be the same. All those items would continue to be
the same whether or not we have property line within this area or not. The
creation of the property line does not change the physical aspects of the
situations. Whether it was last year or next week or next year. So, I see
the creation of a property line and whether you put the property line up
against the building footprint. Or, the ownership changes for the building
Board of Adjustment
May 1, 2006
Page 22
or for the building, plus a few extra feet? The situation for physical
aspects between buildings is going to be the same.
Chesser: I think we understand in this situation it's not going to change. Staff has
said it; I would call it a bait and switch - the term you may have been
looking for. You're saying you don't think it's a bait and switch but you
have to understand that we all have to consider future bait and switches.
So that, it's difficult to approve something like this because of precedent, I
suppose, is the best way to put it. Would it have been possible to been
built over this entire lot? Say I drew lines connecting these buildings,
could you have built over that entire footprint, no problem?
Nickles: They didn't actually build these.
Thomas: I understand that.
Chesser: But when this was developed, instead of several small buildings, one large
building could have been created.
Morgan: That's correct. Within that original setback with two fronts and two sides,
a building could have been situated anywhere within that footprint.
Certainly we try to look at this in any others on their own merit. In this
case though, we did evaluate this and if you look at residential single
family property, we require somebody owns a 1/2 -acre tract. Then, they
want to put 2 single family homes on that tract. They have to meet
setback requirements, lot width requirements, lot area requirements, as if
they were to subdivide. They could comeback and request a lot split and
meet all setback requirements. In this case, for Residential Office or any
commercial zoning district, they don't have to meet those setbacks
between the buildings. In answering you questions, yes they could build
that.
Thomas: I understand that. They could have been connected, they were not. I just
would not like to see this type of situation becoming common place.
Kohler: Each project is judged on its own merit.
Thomas: I understand that, I also understand the setbacks are sort of unfairly
changing because we're changing lots on a subdividision, correct, which is
what you were saying.
McKenyon: To move to other situations that might make this workable, would be to
rezone. We would rather not put that on to the neighborhood and ask for
Board of Adjustment
May 1, 2006
Page 23
rezoning to create property rights to be able to put the buildings closer
together. That's something that rather not see happen in this area.
Chesser The sewer line currently crosses the property line?
McKenyon: Richard has submitted plans to the city to relocate the sewer, so that has
already been designed.
Thomas: It's been through the City, to the State now.
McKenyon: That issue has already been handled. That was not one of the original
comments on the lots and widths.
Morgan: With regard to the rezoning comment, if the applicant were to pursue a
rezoning of say C-1, the side setbacks adjacent to a residential zoning
district would be 10 feet and the rear would be 20 feet.
McKenyon: It's not contiguous to residential is it?
Nickle: Well, the lot right behind it is also zoned R -O, that's what that is.
Morgan: It's zoned R -O. We would have to take a look, a side setback, zero foot
side setback is typical if adjacent to an R -O residential district its 10 feet.
We would need to take a look and based on the uses, we might be able to
enforce the zero foot. Staff really hasn't evaluated this as a rezoning
request. I couldn't say whether or not we would be in favor of that.
Nickle: Any comments for them.
Thomas: I understand you quandary, I've sat on boards like this before. Like I said,
the physical aspect of the situation is not going to change. I understand
that.
Chesser: I want you to understand that I wasn't implying a bait and switch here. I
didn't mean to say that at all.
Nickle: Ok, comments from the audience on this request?
May: Hello, my name is Ellen May and my husband and I (John), own the
property at 2503 Karam Davis. Our build is directly to the south of line
you are discussing. I might not understand exactly how this is working
but my concern is if there is a change or variance in the setback, if that
would permit the next property owner to actually build closer to the
existing building we have. The building that we have, this is our largest
Board of Adjustment
May 1, 2006
Page 24
investment personally, is the buildings fairly much to the front within the
setback ordinances of course. Since it diagonals, if they build or have the
option to expanding that building closer to our property it will actually
start impairing the so-called street appeal (or the front of our building
starts to become blocked by the back of their building). I hope the
ordinances are designed to try and allow for that sort of thing not to
happen. Yet, I don't if this particular request opens up that possibility
down the line. But if it would allow anybody to build any closer to that
property line, it would start to negatively impact our property.
Nickle: Ok, to answer your question. If this should get approve, it would just
approve the current structure. It would not allow them to expand it
beyond what it already is.
May: It doesn't give them the right to build up to that line, or something like
that?
Nickle: No it doesn't.
Kohler: That would take another variance if someone were to try and do that.
May: Sometimes one step, but I'm not saying this individual case. The next
property owner would, if they really wanted, then they go and say that
there is already a variance on the setback. I just worry that it could
become encroachment on our property.
Nickle: Other comments from the audience? Seen none, we'll bring it back to the
board for consideration.
Kohler: Do you think that horizontal property regime is a viable option? Do you
want us to not vote on this, at risk it being turned down? Or if you think
it's a risk, and come back with another solution to this? I am just asking.
Nickle: What he is suggesting, I'm thinking, is would you want us to consider
tabling this request at this time so you can explore some of these other
options that have been broached to day? Potential for horizontal property
regime or perhaps rezoning?
Kohler: Rezone.
McKenyon: Like Derek had said, the present tenant wants to go ahead and own the
property and that's why. Dixie is not in the business of taking properties
and then developing them, then selling them off. They like to own and
then lease and improve the properties. This is a bit unusually even for
Board of Adjustment
May 1, 2006
Page 25
them. I would say that it looks like we need to pursue some other type of
avenue and look at maybe even the property regime of a condo type
situation. Where we go ahead and sell them the building itself or
whatever. Because I find that it's very unusual and we might get a split
vote even today.
Thomas: It's up to you, do what you want.
McSpadden: If they do that, they won't need the variance anyway. So, they wouldn't
need to table it.
Nickle: They can table it and either come back or not come back.
Kohler: If they wanted to consider that option and found that option not
satisfactory, then they can come back before us.
Johnson: We can leave them on the agenda and they wouldn't have to start the
whole process over again or and they won't run the risk of having a denial
on the books.
Nickle: If you would like us to table it, I'm sure the board would agree to that.
McKenyon: I'm not on this side of this issue but I can see that we probably need to talk
it over an think it thru a little bit more and delay even a lot split and then
the closing there of afterwards. I'd request that we go ahead and table it at
this time, until the next meeting at least. Which is in one month from
now.
Chesser: Does this throw him off on the Lot Split?
Morgan: What would occur... We recommend that this be processed prior to the lot
split being heard. Just because this decision hinges so much on the lot
split. However, if this Board felt like it was appropriate, they could go
through the lot split and have it voted on. With this as a condition that
they get the variance. So right now, it would be pulled from the agendas,
it hasn't officially been put on an agenda, but it would be pulled in the
process. It could be go forward with this as a condition of approval. This
would have to be approved to get that lot split.
Kohler: Do we have any idea if a lot split is liable to pass on some merits? Staff
do you have any recommendation on that part, or are we allowed to even
know that?
Board of Adjustment
May 1, 2006
Page 26
Morgan:
McKeyon:
Morgan:
McKeyon:
Nickle:
Kohler:
Nickle:
Morgan:
Whitaker:
Thomas:
Whitaker:
I advised the applicant go through the variance process first, because, at
that time, I didn't feel like we could recommend approval, which we
didn't. I didn't want to go forward with the lot split with the
recommendation of denial because we were not in agreement with the
variances. That's why it's preceded this way.
Let me ask one more question. If we go ahead and proceeded with the
vote and we're denied. Is there any reason why we couldn't come back
with the property regime that creates the ownership of just the building
only? Then bring that to the Subdivision Committee for approval. Is that
correct, does it have to go to Subdivision Committee?
That's actually a private agreement and the City does not have any hand in
those.
Oh, Really.
Yes, that's just a document that an attorney drawls up and is filed in
record.
This wouldn't require a lot split?
No, no lot split.
That's correct.
The horizontal property regime is governed by entire section of the
Arkansas code. Yes, then vernacularly it's a condominium scheme. It's
the whole concept that units are owned but the footprint is actually a
common ownership. So there wouldn't need to be a lot split. Yet, this
person could purchase that building.
Does it have to be limited just to the building? Could you say a certain
amount of green spaced can be purchased or parking?
You can, certainly can. As long as your attorney follows the provision if
the code and there is a whole ACT called the Horizontal Property Regime
Act. It dictates exactly the step-by-step procedure and what has to be
filed. As long as the attorneys follows those step, I believe those types of
things are negotiable - which portions of the property would be owned -
but the overall footprint would be held in common. Because that would be
the horizontal regime, with individual members or owners of different
units and chucks of it.
Board of Adjustment
May 1, 2006
Page 27
Chesser: We are assuming you want to sell the entire property for just landscaping
reason?
Thomas: Maintenance.
Chesser: Maintenance and things like that.
McKeyon: Sure, I believe negotiable among the two private parties.
Chesser: I like the idea if you are doing what Bob suggested. I would be happy
with a tabling. Sounds like you didn't know about this possibility. I
certainly feel better about it, if you explore it. Exploring it and checking it
out, then coming back. I would like to see that you checked out all the
other options before making a variance. If you come to a decision before
then, there's no requirement that they have to come back and see us, right?
Whitaker: That's correct. You can propose the item at your next meeting upon staff
recommendations that this party no longer needs to see you.
Chesser: That would make me happy just exploring that option.
MOTION:
Zant: Under the circumstances Mr. Chairman, I would like to move that we table
BOA 06-2072 to our regular meeting of June 5, 2006.
Chesser: Second that motion.
Nickle: Motion to second, any further discussion?
Zant: Quick question, if this actually going to be coming before you on an
agenda on the 5th of June would there be... (couldn't hear anything,
someone coughing in the mic)
Morgan: It will be re -advertised in the paper. We will put a new sign out and try to
get notification out.
Zant: I'll call just to double check...
Nickle: Andrew, please call role.
Roll Call: Upon the completion of roll call the motion to Table BOA 06-2072 to next
meeting on June 5, 2006 was approved by a vote of 6-0-0. McSpadden,
Kohler, Nickle, Johnson, Zant, and Chesser voting yes, Motion carries.
Board of Adjustment
May 1, 2006
Page 28
BOA 06-2075 (LAESSIG, 562): Submitted by MARILYNN & JIM LAESSIG for
property located at 724 S CHURCH. The property is zoned RMF -24, MULTI FAMILY -
24 UNITS/ACRE and contains approximately 0.37 acres. The request is for a 1' side
setback (a 7' variance) for an existing nonconforming structure to allow construction of
an addition that would be within required setbacks.
Morgan: This property is located on Church Avenue, it actually dead -ends just
south of this property. It's zoned RMF -24 and developed for single family
residential unit. It was developed in the mid 1900's. In 1960, the owner
at that time, got approval to add on a carport. At that time, we did not
have current zoning regulations. Based on our current regulations, this
carport encroaches within the set back approximately 7 feet. Because of
its nonconforming, the applicant is restricted on what additions can be
done to the home. The current property owner purchased the property in
the 90's, and is currently looking to add on to the rear of the home more
than 25 percent of the overall area. The applicant is requesting a variance
of the setback to allow the existing carport to become compliant. Also, in
the future, the applicant would like to enclose that carport and use it as
part of the structure living area. I've talked to the adjacent property owner
to the north, which is most effected by this encroachment, and he replied
that he does not have any objections to such a request. Staff is
recommending approval of this variance request. Finding that the
structure was built prior to ordinance requirements. It is not as a result of
the actions of the applicant, other than they wish to add on to their home.
The addition would be compliant with zoning regulations. We have
proposed several conditions of approval.
Nikle: Questions for staff?
Kohler: Quick question, I know that if a carport is open on all sides or most sides,
what is the code on that? And you can encroach into a setback if it is?
Morgan: The code allows for extension of a carport that encroaches on a setback. It
does not address the fact that if that carport is what is nonconforming that
the home itself.
Kohler: So, if it's attached to a home, it has to abide by the setbacks that home
structure would have, is that right?
Morgan: Correct, if all they requested to extend is the carport, there are allowances
for that. Because the applicant wants to increase the home, the
Board of Adjustment
May 1, 2006
Page 29
nonconformity of the carport affects the whole entire home, because it is
attached. If that is exactly what you're requesting.
Kohler: I guess I'm trying to figure out at what point is a carport not, at what
configurations is a carport not going to affect setbacks.
Nickle: You might be referencing one that we looked at on Willow, several
weeks' meetings back. Where they extended the carport towards the
street. They didn't extend it towards the side setbacks, but towards the
street. I think the code allowed for up to 10 feet.
Kohler: Into the front setbacks.
Nickle: Assuming it's a 25 foot set back, they can go forward into that setback.
Morgan: Right, it states that carports in residential zoning maybe extended into
required setbacks if the carport is setback at least 10 feet from the street
right-of-way. The carport is setback at least 5 feet from any interior side
property line. At least 10 feet from rear property line. The area below the
roof is open on the sides. The carport does not materially obstruct vision.
I believe some of this carport, if you look on picture on page 13, a
majority of that carport is open. However, there is an enclosed structure
kind of under that same roof line. That may encroach some what into that
8 foot setback. It's difficult to say exactly where the property line is in
relationship to the fence.
Kohler: So my question doesn't even apply to this, because it's about extensions?
Morgan: Right.
Kohler: I apologize.
Nickle: Is the applicant present? Please identify yourself.
Laessig: I'm Mary Laessig.
Nickle: Do you have any additions to these comments that staff have made?
Laessig: We would just really like to add on to our home.
Nickle: Anyone in the audience would like to speak or have comments to this
issue? Seen none, will bring it back to the board for consideration.
Board of Adjustment
May 1, 2006
Page 30
Zant:
This renovation is an obvious improvement. It's certainly not going to
worsen the situation that exists. I think it's a positive step.
Chesser: Let's make sure I understand something, the carport will not be enclosed?
Zant: At this step.
Laessig: Not at this step.
Chesser: You just want to add on to the back, and the new additions will not
encroach on the side setbacks.
Morgan: That is correct. The new addition will not encroach, but the variance is
required because the carport encroaches. To allow a variance for an
existing structure, we state that if any modifications are done that it needs
to come back. We thought we would take care that request at the same
time.
Chesser: I agree with Jim, I think the improvement is not going to worsen the
situation.
Kohler: So, if this variance is granted, it would allow a full enclosing of the carport
in the future?
Morgan: That is what staff is proposed. If you want to word it separately or vote on
it separately if you disagree with that recommendation for approval...
Chesser: Stopping this from occurring because of pre-existing carport seems to be
unfair to the applicant. Bob, are you agreeing with the carport?
Kohler: You will have to bring an existing nonconforming structure into
compliance. In order for an improvement on that structure to be allowed.
Chesser: Right, I understand that. Bob, I think your disagreement is with the
carport itself maybe, if there is one?
Kohler: No, I don't have a disagreement.
Chesser: You don't have a disagreement? You were just asking a question?
MOTION:
Kohler: I was just asking a question. It was a little foggy on what carport. I didn't
realize it was strictly for extensions. I don't have a problem with this. We
Board of Adjustment
May 1, 2006
Page 31
are dealing again with existing nonconforming structures. We get several
of these every meeting. I move that we approve BOA 06-2075 with staff's
three recommendations.
Chesser: Second it.
Nickle: We have a motion to second it, is there any further discussion? Andrew,
call role.
Roll Call: Upon the completion of roll call the motion to approve BOA 06-2075 with
staff's three conditions of approval was approved by a vote of 5-0-0.
Kohler, Nickle, Johnson, Zant, and Chesser voting yes, Motion carries.
Nickle: Now, beg your indulgence, I will accuse myself.
Board of Adjustment
May 1, 2006
Page 32
BOA 06-2076 (HILL, 444): Submitted by MANDY BUNCH for property located at 711
OAKLAND. The property is zoned RMF -40, MULTI FAMILY — 40 UNITS/ACRE and
contains approximately 0.32 acres. The request is for a 17' rear setback (a 3' variance).
Fulcher: The subject property is located at 711 N. Oakland Ave., just north of the
University Campus. It's zoned RMF -40, multi -family, 40 units per acre.
There is an existing home on the property that's from the mid -1900s
located on the property line. The applicant proposes to remove the
existing structure and construct a three-story building consisting of 10, 1 -
bedroom units, with 10 parking spaces. The applicant has handed out the
colored drawings here. I Believe we have those drawing on pages 8 and 9.
On page 8, we drew a vertical line thru the back of the structure showing
where the variance request is. It is approximately 3 feet to allow for the
balconies within the rear setback and portion of the building overhand
within the setback. Looking at this item, I should mention also, the rear of
the structure on the west side. You can see on page 7 the surveyor site
plan for the property is a 20 foot public alley. The property is separated
from the adjoining properties to the west. While we look at the small
nature of these extensions, I think we address it fairly well in one of our
last findings. Whether this would be injurious to the neighborhood or a
detriment to the public welfare. That is really the only finding we could
make. We don't feel that this balcony extension or the overhang extension
would do either of those things. It's approximately 60 feet when you
include that alley to the nearest property to the west. However, that is the
only one that staff could find to make. The other findings relating to
special conditions or circumstances, resulting actions, those main items we
were not able to find the findings on. Giving that this is for new
construction on a fairly sizable lot. We felt that the design could meet all
the required setbacks. I know the applicant has worked quite a bit on this
design to get this to fit in here. It is just a small portion, but again, looking
at what staff has to look at, and that's the findings. We were just not able
to make all the findings. Our recommendation is for denial for the 3 foot
rear setback on this item.
Zant:
I have a question, this incursion into that setback isn't severe but, none the
less, its still brand new construction. We are in one of those zones or
districts that penalizes for height, right? So the higher you go, the wider
the side setbacks that are required. Yet, if I read it right, there's still
plenty of room for little more width on that structure, isn't there?
Board of Adjustment
May 1, 2006
Page 33
Fulcher: It's right on. On page 9 of 16, I've drawn in on one side of the required
setbacks. I believe that this structure is approximately 29 feet from grade.
It's a 20 foot height limit you are referring too. Any foot above that
requires additional side setback of 1 foot. We started with an 8 foot side
set back. Add the 9 foot height, ends up with a 17 foot required set back
on either side. There are 17 on the south side and 17 feet 1 inch on the
other side. Their right on, that's what I was referring too.
Kohler: So I haven't really read it right. In other words, they have no side width
abilities. I was trying to keep your 784 feet for you for square foot per
unit. The last thing I want to see happen, is giving up that pedestrian walk
way between the building and parking area. I look at that as a safety and
security necessarily. I would want to keep that.
Johnson:
Bunch:
I would like to hear from the applicant as to why they need the extra 3
feet.
My name is Mandy Bunch, I'm with EB Landworks and here to represent
Bob Hill. Bob is not able to be with us today. He is in a much more
beautiful place, I believe. I want to give you a little bit of the history. I've
had a few questions come up along the way. This is two small lots, 50 feet
by 140, very narrow. The existing home is on the far north property line.
There is an existing residence to northwest. The owner of that property is
here to speak today. The one thing we have been trying to do is balance
the site with the neighbor and use of the alley. When we looked at the
alley, there was actually a property that was permitted and extremely high
and has caused some erosion on the eastside of the alley, on the backside
of this. Let me just throw that out there for background. But our original
intent was to construct two different units with a one-way drive off of
Oakland. One on north property line and we were able at that point to
save a large oak tree that's on this site. Bob's been working on this
project for over a year now. The city did a project on Cleveland Ave. that
created a driveway that is almost at a 45 degree angle that would be our
entrance to the alley on the south side. Pretty much includes most vehicles
that are almost 4 wheel drive going up there without scraping it. The alley
that goes to the east to the north is very narrow. There's a lot of tree
canopy overhang. With discusses earlier with the neighbors, they did not
prefer to have traffic on that back alley. Actually, we explored this to the
point when I walked the alley with the engineering department and they
under not circumstance want us, to see us, improve that alley. Due to the
width that is required, we're bound on that side for sure and also on the
tree. We have come up with another site plan that had the building on.
The side setback line, a 8 foot side setbacks on the south side, but due to
the height regulations there is no way we can meet that. What we've
Board of Adjustment
May 1, 2006
Page 34
done, is the resulting site plan is the centering of the building to allow the
most green space around the back of the building. It will maintain the
entire tree canopy along the alley, because we won't have to go up into
that area except to get the water line. It will not necessitate the trees along
the fringes. The reason the balcony is back there, we were trying to
provide a green buffer to maintain the sidewalk and provide a green buffer
at the front of the building. Realizing all that, we don't have to have this
variance to go, but we do have the variance to have the green space
between the sidewalk and the building. We want to keep the sidewalks.
Majority of the foot traffic from University, since walking up that, and
taking that path. These are condo units, they will be for sale that is why
there are 10 parking spaces. One parking space per unit. If you will
reference the elevations. There is a breeze way that proposed to be
working on these west lines so that most of the activity will go in here to
building rather than on exterior. We wanted to open up the balconies to
open up the buildings. Have them more for the breeze way in the street
rather then the side properties. Try to keep a buffer in the rear of the
property.
Johnson: So you have pushed it back towards the alley to save some green space in
the front?
Bunch: Right.
Johnson: But you could move it to the front if.
Bunch: Right, if you say that's what we need to do, we will.
Johnson: Right.
Kohler: Mandy, I have a question. I'm sure you've looked at shifting the entire
parking lot to the east. It doesn't look like anything would change. Looks
like your driveway approaches are long enough.
Bunch: That would require a landscape variance setback.
Kohler: Why is that?
Bunch: They require 15 feet between the right-of-way and edge of pavement.
Kohler: Ok
Bunch: I think we are at the edge on every side here.
Board of Adjustment
May 1, 2006
Page 35
Kohler: Considered everything here?
Bunch: Yes sir. There's been an extreme amount of energy put into this.
Kohler: What we're talking about is there is only one place to give. What is your
distance between the building and the back curb on the parking?
Bunch: We have gone to the 17 foot curve there, with the parking space with
overhang, and we have 5 foot walk. Then 9 feet between the edge of the
pavement and the face of the building. Which would go down to 7, I
think.
Kohler: So you have overhangs as part of that, so really it's 2 feet from the
building to the edge of pavement.
Bunch: That's correct.
Kohler: Those 2 feet was worth enough to you to pursue a variance?
Bunch: It was, and I'll tell you why. We come from needing four to five
variances down to one for him to produce a product that he would like to
produce on this piece of property. That's why we have requested it. Plus,
we have come to everybody before he's done anything. We just need
some more guidance. I think we have worn Planning Department out to
the point that they're recommending denial.
Kohler: Is there any more questions for applicant? None, any public input?
Owen:
My name is Kathryn Owen. I own the adjacent property to the north of
this property. I have two major concerns. My first concern is the 200 year
old oak tree is being cut down with no regard to the environment, to the air
quality, or to the fact that tree has been there longer than any structure on
the block. I think that they tried to build around the tree, but I feel like
that this structure, not only will it eliminate this tree, my family and I have
been breathing oxygen from it for over 20 years. I have been on this
property for over 20 years. I have built a new house and put myself into
debt for 60 thousands dollars to have a little privacy. I set my house back
purposely, to have a little privacy. Now, it turns out that I won't be
breathing any oxygen and ten more cars. Ten more carbon dioxide
poising air to come into my yard. But, I'm going to have windows over
looking my house. Looking possibly into my teenage daughter, my other
daughter, and my room. I'm very concerned; I don't think this is a very
good idea.
Board of Adjustment
May 1, 2006
Page 36
Kohler:
Owen:
Johnson:
Bunch:
Johnson:
Owen:
Kohler:
Owen:
Kohler:
Owen:
Kohler:
Owen:
Johnson:
Owen:
Johnson:
Owen:
Fortunately, or unfortunately this board can't vote on development rights.
This variance that you asking for is 3 more feet that is going to encroach
into alley that I use quite a bit as part of my privacy. The structure is
going to be aligned with my house. Therefore, my when I walk out my
backdoor, they will be right there.
So, if this structure was built as shown, 3 feet into the east. Within their
property, which they have a right to do, that would be more desirable to
you than to have it three feet back, so they can preserve the oak tree.
No, not that oak tree.
Ok, they are going to screen off the eastside with green space.
East side is facing the street, is that not correct?
That's correct.
I have no concerns at all with the east side.
The only thing this board is voting on is whether this building gets shifted
three feet to the east.
I don't think it should be put back. I don't think this variance should go
through. I don't think this few feet of green space you are talking about in
the front is going to make a difference to anyone.
That's the only thing that we have to vote on.
I know, and that's just something somebody has to mow. Its not going to
effect anybody privacy in the front of the house. Although, this 3 feet
behind the house, may very well effect my privacy.
How will it affect your privacy?
Because my house is right on the, what ever the variance is, my house is
right there. By back door is right there, my car is right there, my garden is
right there.
To the north?
I'm right there.
Board of Adjustment
May 1, 2006
Page 37
Johnson:
Owen:
Bunch:
Johnson:
Chesser:
Bunch:
Chesser:
Owen:
Johnson:
Kohler:
Owen:
Kohler:
Owen:
Kohler:
If we move it three feet to east, it seems to me like it would actually put
the rear balconies, your house more in the view shade of the rear
balconies. If I'm looking at the right thing here.
You think so?
I think her building, we were talking earlier, and the back of her house is
on the setback. The balconies would actually extend. Our main building
is at the top of the set back. The balconies are the only things that
overhang.
I understand that.
Is this built to the north; this little box here at the top is?
This is her house right here.
If I understand, if we move the building three feet that direction. Right
now, as it is, this corner is sort of blocking the view from the balcony of
the house.
I really think you will be better off with the balcony three feet.
I just don't understand how it effects.
Let's simplify this a bit, if we were to turn down this variance, I'm not
sure that the issues you are describing would go away.
I'm not sure they would either.
If we approve this variance, I'm not sure the issues you are describing
would go away. Really the issues you are describing are not part of our
consideration. You will have to take that up with City Council or
Planning Commission or some other bodies other then the Board of
Adjustments. No matter how we vote, I don't think your issues are going
to be addressed in the way you want them to be addressed.
I realize that after hearing all this. I'm just concerned that the balconies
are going to be so close to the alley that it's going to cause a problem.
Again, you will need to take that up with somebody else. Are there any
more questions of the applicant?
Board of Adjustment
May 1, 2006
Page 38
Chesser:
Bunch:
Chesser:
Bunch:
Chesser:
Bunch:
Chesser:
Bunch:
Chesser:
Bunch:
Chesser:
Bunch:
Kohler:
Fulcher:
Bunch:
Can you tell me again what you are trying to preserve? I heard something
about 3 feet and that's the oak tree that can't be saved? That's what you
are saying? No matter what that's going?
Right. It's right in the middle and on a slope too.
If we deny you on this, you are just going to build these 3 feet closer to the
street?
That's correct. There will be no green buffer between the building and
sidewalk.
Are we talking about 2 feet of grass?
Short shrubs and stuff in that nature.
Sure.
It will allow for some shrubs to be planted at the front of the building.
At this north elevation, is this sidewalk that's also encroaching into the
setback.
No, it's just the base under.
We are not just talking about overhangs then.
The base of the balcony. The entireties of the balconies in here.
Anymore questions or comments for the applicant?
I can mention one more thing. I don't think I mentioned this to Mandy,
but it does have somewhat of a bearing. The 17 feet parking stalls
proposed as stated in the ordinance, are allowed with a 2 foot overhang
over required green space. I think that is how it's been interpreted. You
just don't provide green space and still have a 17 foot spot. It is on the
exterior, you are required green space. Meaning if you are parking stall
goes over the five feet required on the side or the 15 feet required in the
front. You can have 17 feet parking stall. In this configuration this is not
required green space. Therefore, the stalls can not be 17 feet. They would
have to be 19 feet as how it's been interpreted, from what I've been told.
I've never had it interpreted like that before. I have always been willing to
do 2 feet green. It's not over sidewalk, it's over green space.
Board of Adjustment
May 1, 2006
Page 39
Morgan: But that is not required green space.
Bunch: Regardless of that, all it does is make it worse. We pave all the way up to
the sidewalk and then we got 2 foot green space.
Fulcher: It may require these stall to be 19 feet regardless.
Bunch: If at that point, we will have cars right on the building.
Kohler: Then I would have the problem of the 15 foot landscaping in the front or
on the street.
Fulcher: No, it just requires if you go towards the building. This would almost go
to the walkway now. You would lose the green space between the parking
lot.
Chesser: The green space may have to go, regardless.
Fulcher: The green space may have to go, regardless.
Bunch: No, that's a different green space. There was actually a 2 foot green space
proposed between the edge of the parking and in the walk. The additional
2 foot 6 is between the walk and the building. What we were hoping to
do, to do ground cover and the end of the parking to eliminate that 2 foot
pavement as a sidewalk. Has a main entrance at the breeze way and then
be able to have some shrubs with some height between the sidewalk to
break up the building site.
Kohler: Is there anymore questions or comments to the applicant? Ok, we will
bring it back to the board. Any more questions or comments in staff? I'll
entertain a motion.
Zant:
MOTION:
I will just make a comment before and that is, I'm reluctant to approve
variances in new construction. This to me, when I look at what's there,
what would be there. This is a very positive and substantial improvement
to that lot. I'm sure it fulfills some market needs for additional small
housing typically for students. I'll be very much in favor of supporting the
proj ect.
Johnson: I move that we approve BOA 06-2076 with standard recommendations; do
we have standard recommendations on this?
Board of Adjustment
May 1, 2006
Page 40
Morgan: Page 4, I think I wrote in my report, if moved to approve. I think so
Fulcher: Just state that the variance applied to the balconies and overhang only, all
other structures proposed now or in the future have to meet the building
setback.
Chesser: How much is the overhang? Are we talking about 6 inches or something?
Bunch: Yes.
Chesser: Really, we are talking about the balconies?
Bunch: Right, the balconies.
Johnson: Anyway, I move we approve BOA 06-2076 with these standard conditions
of approval.
Zant: I'll second it.
Kohler: I'm not sure on the standard conditions of approval.
Chesser: You mean the ones that are in this document?
Kohler: Yes.
Johnson: How do you want the conditions termed?
Chesser: Is there not in this document?
Fulcher: Yes, since we recommended denial, we didn't put any conditions.
Kohler: Suzanne had another denial recommendation, she said if this were to be
approved than those would be the conditions.
Morgan: We will try and do that from now on.
Chesser: That's ok; can we add that condition in the motion?
Kohler: No, let's go back and look at Suzanne's.
Whitaker: That is what I'm doing. It was the Sunbridge Properties. It says, if you
should recommend it, the variance should apply only to the existing
structure.
Board of Adjustment
May 1, 2006
Page 41
Kohler: There are not existing structures in this case.
Fulcher: This variance is applying to the building, overhangs, and balconies
allowed with in the rear set back. Shown on the site plan, all other
structures or additions would have to meet building setbacks.
Kohler: We can refer to Jesse's conditions that he just stated since its going onto
the record.
Johnson: I move we approve with the conditions Jesse just stated.
Zant: Second.
Kohler: We have a motion and second. Please call roll.
Roll Call: Upon the completion of roll call the motion to approve BOA 06-2076 with
conditions stated by Jesse Fulcher was approved by a vote of 4-0-0.
Kohler, Johnson, Zant, and Chesser voting yes, Motion carries.