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HomeMy WebLinkAbout2006-06-05 MinutesMINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT A regular meeting of the Fayetteville Board of Adjustment was held on Monday, June 5, 2006 at 3:45 p.m. in Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS DISCUSSED ACTION TAKEN BOA 06-2094: (CATROPPA, 404) Tabled Page 4 BOA 06-2095: (McDONALD, 520) Approved Page 14 BOA 06-2096: (BALL COFFEE STORE, 268) Approved Page 16 BOA 06-2097: (HABITAT FOR HUMANITY, 524) Approved Page 21 BOA 06-2098: (ASFAHL, 486) Approved Page 24 BOA 06-2099: (CAHOON, 485) Approved Page 33 BOA 06-2100: (ELROD, 409) Approved Page 38 BOA 06-2101: (PROFFITT, 446) Approved Page 41 BOA 06-2102: (BAXTER, 361) Approved Page 43 Board of Adjustment June S, 2006 Page 2 MEMBERS PRESENT Sherrie Alt William Chesser Robert Kohler Bob Nickle James Zant STAFF PRESENT Jeremy Pate Andrew Garner Suzanne Morgan Brent O'Neal Jesse Fulcher Tim Conklin Leif Olson CITY ATTORNEY: David Whitaker MEMBERS ABSENT Eric Johnson Karen McSpadden STAFF ABSENT Board of Adjustment June 5, 2006 Page 3 Nickle: Welcome to the June 5, 2006 Board of Adjustment meeting. We have a lengthy agenda and initially first we are going to consider the minutes of the April 3`a meeting. Have you all had a chance to review those? Noticed a few typos in some places but no serious destruction of what the outcome was. Zant: Mr. Chairman. Nickle: Yes. Zant: I move that the minutes of the April 3 Board of Adjustment meeting be approved. Chesser: Second. Nickle: We have a motion, a second, any discussion? Would you call roll please? Roll Call: The minutes are approved by a vote of 5-0-0. Nickle: And the May 1" Board of Adjustment minutes. Any significant changes, corrections to those? Zant: Mr. Chairman I move that the minutes of the May I" Board of Adjustment meeting be approve. Chesser: Second. Nickle: We have a motion, second, any other discussion? Would you call roll please? Roll Call: The minutes are approved by a vote of 5-0-0. Board of Adjustment June 5, 2006 Page 4 BOA 06-2094: (CATROPPA, 404): Submitted by Tony Catroppa for property located 1305 N. GARLAND AVENUE. The property is zoned C-1, Neighborhood Commercial, and R -O, Residential Office. The request is an appeal of the Zoning and Development Administrator's interpretation that the proposed use is a bar instead of an eating place. Nickle: Our first item today is BOA 06-2094 for property located at 1305 North Garland. Jeremy you have that for us? Pate: I'm Jeremy Pate, Director of the Current Planning Division, also known, as you'll see referenced in here, the Zoning and Development Administrator. It's a title that's currently located within the code, but that is not what I carry on my business card so that's what all the code references are to. This is a particular application that you don't see very often. The last one, the last appeal of this nature from zoning requirements, you saw a little over a year ago. This particular property is located at 1305 North Garland Avenue. It is located on the west side of Garland Avenue across from the existing gas station, shopping center, liquor store. This is three tracts of property on which are located, I believe, three structures. The subject property, which is 1305 Garland, formerly housed a beauty parlor and salon shop. There is also Lucky Luke's barbecue and Tony C's Bar and Grill. Those are two existing structures and uses on that property. This property is currently zoned C-1 Neighborhood Commercial primarily, and there is a small section of R -O Residential Office also located on the property. The appeal is against the Zoning Development Administrator's interpretation pursuant to City Code of what the proposed use of this 1305 North Garland is. The Planning Division and Building Safety received two applications, one for a building permit and one for a Certificate of Zoning Compliance. The City of Fayetteville does not have a business license. What we do have is a called a Certificate of Zoning Compliance. So, if you open a business or want a sign permit, you have to submit an application to us stating what your proposed use is. We review that in accordance with our zoning criteria and if that use is allowed within that zoning district, simply put, you would be allowed, a certificate of zoning compliance would be signed off. Those are issued before any interior finish out permits or any sign permits are permitted so hopefully we catch those types of applications up front. This particular use originally came in as what's quoted in here, I believe it's on page 20, the first form, description of work and use of the building. On the building permit application it stated a building, a bar, and smoking allowed -bar respectively, and just as a side -bar the City of Fayetteville Planning Division has nothing to do with the smoking ordinance so those questions I could not answer for you today. What we are looking at is a C-1 zoning district in which a restaurant is allowed. A restaurant is listed as use unit 13, called an eating establishment. That does allow for drinking and the sale of alcohol as an accessory to the use. An accessory use is defined as 50% or less of the principal use of a structure. It was our interpretation, Board of Adjustment June 5, 2006 Page 5 based on the information that was submitted, that the primary use of this structure would be not an eating establishment but a bar and that's based on the findings that you see there on page 2 of 20, the original description of work and use of the building, and the site plans that were submitted to the City of Fayetteville. Building plans, those were not changed. What did change, the applicant did mark out on that Certificate of Zoning Compliance the proposed use which is an eating establishment. To us that did not indicate any substantial change in the application. The use of work and description of work still indicated a bar. As further information we did contact the police department, and they supplied us with information from the applicant's ABC permit; it does not include any indication of serving food whatsoever. So, that's just more information to substantiate our interpretation, staff feels. We are finding that, again the interpretation is that this property was to be utilized as a tavern or a bar which is not allowed in the C-1 or the R-0 zoning district. To add to that, a couple of issues: I just passed out a couple of letters from adjoining property owners to the north I believe. The two property owners own about 4 or 5 properties I believe. They do not wish to see a bar in this location. Those were received after these reports went out so I did want to pass those out to you. Parking is tight on this property; if you utilize the zone as a C-2 to be utilized as a bar, there still would not be enough parking, even if this use were permitted in this location. Calculating the number of spaces even combining and sharing all the different businesses and all the different parking that is located on site, it would still not accommodate the ratios required by a tavern or bar use. Again, as I mentioned, the principal use of the property cannot be a tavern or a bar in a C-1 zoning district. And that's not up to you, that's not for the Board of Adjustment. Your decision is simply the applicant's appeal of my interpretation that this proposed use is either a restaurant or a bar. And that's simply the finding of fact that you're required to make. There are two actions you can take. Obviously, affirm my interpretation or you can reverse in whole or in part my interpretation on this matter. And with that I believe the applicant has a presentation as well. Zant: I had one question for you Jeremy. Pate: Yes, sir? Zant: I'm sure that you must have discussed in depth that he could pursue this avenue of an appeal. Pate: In depth is a little bit of an embellishment. There are a couple of different - Zant: I'm sure you discussed this avenue with him. Pate: Yes. Board of Adjustment June 5, 2006 Page 6 Zant: Ok. There are other avenues as well for this property. I would think that were it mine that I would be looking at trying to get a map amendment and then work out parking requirements with staff and then pursue that rather then this avenue. Pate: That is certainly one option. To rezone the property, request to rezone the property to C-2 Thoroughfare Commercial. That would allow use unit 14, a bar, as a use by right. As I mentioned, though, that's why I really put it in the staff report that parking would be an issue. So, the development requirements will be an issue even if tomorrow the City Council said C-2 is fine in this area. There would still be some problems to work out essentially with the parking demand that's required by a bar as opposed to a restaurant. The difference in the ratio are two -fold. One, a restaurant is required 1 per 100 square feet of use; a bar requires 1 per 50 square feet of use. So, there is a big distinction between those numbers. But yes, you are correct, there are other avenues to look at. Nickle: Other questions for staff from the board? Ok, will the applicant identify himself. Catroppa: Tony Catroppa. Nickle: You can sit down anywhere over there as long as we can hear you. Catroppa: Ok. Originally, the application as he said was for a bar. We didn't know, I have Tony C's and we're a bar and grill. I didn't realize that that was a situation. We did change it. We are going to a restaurant as you know the need grows; in fact as of July the 15` there is a Smoking Ordinance state wide. Anybody under 21 years of age cannot enter an establishment where there is smoking. That's a state law. So, consequentially being a college town we have a lot of students that are under 21 who really have no place to go. So, we've reversed it, that is going to be a restaurant. I brought a menu. We've a note to ABC, we've adjusted. We have a food preparation area that will be a no smoking food restaurant area. I worked with Andrew, Andrew was my contact person and we went to the parking and we have adequate parking. We own Lucky Luke's Barbecue, we own the entire corner. We own all of it so it will all be shared parking. So, I don't think parking will be an issue under the restaurant, that it is a restaurant, eating establishment. The ordinance says eating establishment that is restaurant interpreted. Here I'm going to pass out to you, I only have six, I miscounted. Nickle: There's just fuve of us. Board of Adjustment June S, 2006 Page 7 Catroppa: There's five. Ok, this is our letter to the ABC, we have changed our application. And in the back if you look up here in the right-hand corner. Right here is our food preparation where we prepare our food and you can see the layout here. This is the application to the ABC and this is the new floor plan so if I can give you one of each here. Nickle: And if you could hand one to staff as well. Catroppa: We also have a full restaurant next door at Tony C's called Lucky Luke's. This particular location we have access to, the menu as you see, also the complete line of Italian food, plus the complete line of barbecue food in the center located on both sides. So, we are an eating establishment. We talked to Andrew. I talked to this gentleman, Marshall called him and he said basically we turned around, we went the other way, we are an eating establishment. And there is a definite need for a place for under 21 to go where there is no smoking. They have no place to go except the movie theater. And that's July 1 when this is going to take effect. And that's why we turned it around. Hopefully, you'll let me continue. If there is any questions, I'll be more then happy to answer. Zant: Andrew, I have a question and that is I thought the issue in front of us was did the zoning officer make an interpretive error or not. And it just boils right down to that. Did Jeremy and his interpretations of the facts make an error or not. I thought that was the issue. Is that not the issue? Garner: The issue Jeremy referred to is just making sure that for the building permit there was enough parking and if it is allowed as a bar there would not be enough parking. The parking on the site is a challenge because there are three restaurants on the site and they would all share the parking. I went out there and counted what looked like where you could put parking spaces. I counted 34 parking spaces I believe. And I think with a 30% allowance to go under the required amount that they would be right on the nose if we permit it as an eating establishment. Pate: If I may for a moment. I think ultimately the issue for you all is to decide has nothing to do with the development or what this is, it's really whether this interpretation is correct or not. So, you are correct in that statement. Is this an eating establishment or is it a bar? Zant: To me, as I read the materials, with all due respect, I'm a retired business man, I'm sure you successful and want continue to be successful and we would encourage you to do so, but these are technical issues and land uses. And when we boil all this down the application reads in several forms here to build a bar and as such he's made his interpretation based on the application. I would think that we would encourage the applicant to reapply for a restaurant. If we're making a technical judgment on whether Board of Adjustment June 5, 2006 Page 8 Mr. Pate as the Zoning Officer made an interpretive error I think the evidence is rather sufficient and self-sufficient in that it's pretty obvious. These misunderstandings happen in terms of land use. Catroppa: I did reapply. I did reapply. Zant: Ok. That's another equation that I don't believe that we will be dealing with today. Won't that pass in front of - Chesser: I think the reapplication was made, at least as Mr. Pate describes it, originally it was applied for as a bar and then as I interpreted it, the name was changed and then it was submitted. I mean this new plan, which isn't substantially different then the old one was not submitted until today correct? The food preparation area was not added until we received this today. Catroppa: That's correct. We changed our eating establishment and we put our food preparation area in. Chesser: So, that looks like 50 square feet of food prep. area. My understanding is that no food will actually be made. Catroppa: Oh, yes, yes it will be made. Chesser: On-site. Kohler: I've got a procedural question. This is not really an appeal is it, if he is requesting an eating establishment? Whitaker: He is appealing Jeremy's interpretation that this constitutes a bar and not an eating establishment that's it nothing more, nothing less. Alt: What I think our question is, is now that this has been brought to our attention at the end of day, do we still make a ruling on what we have or do we go into this, the new information that was received today? Whitaker: The new information that you have today, I would, if I was a board member, would ask the Zoning Administrator whether it changes his interpretation at all. If it does that could change what happens here today. If it does not then you would still be in the position of answer was the interpretation proper. Chesser: Well, I'll ask that question. Jeremy, does this new information change your mind at all? Board of Adjustment June 5, 2006 Page 9 Pate: To qualify my answer, our review and recommendation is based on what is in the packet before you. The only change in application is what's between pages - Chesser: Right, I understand that. I understand that this is new information. Pate: To be honest I really need to understand... something we do, for instance, with other businesses that are questionable as to whether they are allowed or not or whether they fall into a use unit, is we get a listing, much like this, a menu or whatever they are offering and ensure that it is a retail establishment versus something else. This is certainly helpful. I tend to think that the food preparation, the principal use of this structure has to be an eating establishment, if it is an eating establishment and not a drinking establishment. If that is the case, and this becomes, if I interpret it as an eating establishment there is no reason for this board to act upon an appeal. To be honest, I'm not sure if I'm prepared to make that recommendation off the cuff. Nickle: I think, in my opinion, this is new information that was not originally considered in your interpretation of the ordinance and the original application. And I think it might be appropriate for this board to at least table this item until staff has had a chance to review this basically revised application. Because he did mention that 50% primary principal use for eating is free. On the face of it I agree with you Jim. On the face of it, the face of our original packet I would have to support the staffs interpretation. So, I guess, it would be my preference to - Zant: Seeing as how boards all over the country really are forced to work from staff reports, that's the crux of our assimilating the information that's in front of us, I would have no objection except to laying it over, but if I had to vote today I have to make my decision based on the staff report, not the last bit of information that just got here. I have to say I would deny the appeal and encourage the applicant to work with staff, perhaps to pursue a a map change and cultivating his councilmen to effect a map change and working with staff to make certain there is adequate parking for what he wants to get done. That would be my best suggestion. Chesser: I don't think the parking is an issue. I mean, if it is called an eating establishment, parking is not an issue, is my understanding of it. Correct? The question is whether or not it is an eating establishment and in my mind, and Jeremy will make this interpretation on his own, but if it is an eating establishment and not a bar, I'm confused as to why the food preparation area is still one-fifth the area of the bar. I mean in my experience, I've seen the building, I'm familiar with the area, it's a small building. And if this is to scale, it just doesn't seem like enough area on this drawing and agai, this is Mr. Pate's decision not mine, if I were to vote Board of Adjustment June S, 2006 Page 10 even on this it seem principally to be a bar and not an eating establishment. Catroppa: That's not to scale. Chesser: That's not to scale? [inaudible] Nickle: And I think again, we can probably table this because Jeremy, it's not fair to suddenly hit him up with new information and say now what do you think about this if he's going through this process. I don't think it is appropriate for us to try to pin him down. He's got to reconsider and maybe scale drawings can help him make that kind of interpretation. So, that's something I think that we would be willing to wait rather than... whatever the board's favor. If you want to vote on the packet as submitted today and vote either to affirm or to remand to Jeremy that we don't agree with him, you can do that today or we could just table it. Chesser: I would be more comfortable with tabling it. Kohler: With this new information it's kind of a different animal now. I've got one additional question. Are letters of assurances applicable to this type of procedure? Whitaker: I want to say no because this isn't even, you're not even really granting anything other than... this is a strange bird in the whole development, the zoning and development law. And it's just one of the functions of this board and it's rare as you know. What's happening here is just settling interpretation dispute so there wouldn't really be any kind of assurances - Kohler: So, if there were a letter of assurance it would come from planning staff not from us requiring it or requesting it? Nickle: The way this is structured is it is an appeal to an interpretation and we either support or deny support to that interpretation. That's about the only way we can - Williams: Procedurally there are no conditions of approval or anything, it's not like that. [inaudible] Pate: If I may add to that, as part of the Certificate of Zoning Compliance and our ordinances it states that when I do sign off on a Certificate of Zoning Compliance for that particular use unit, that's the only use that's being Board of Adjustment June 5, 2006 Page I1 authorized and 15 days, 6 months, 1 year down the road, if it is determined that the use within the structure is not the principal use that was signed off on that use can then be discontinued and will go through the prosecutor's office to do that. And that is something that has occurred several times. Nickle: Are you all clear on that now? I would like to ask, I hope the audience understands that the board is leaning towards tabling this matter to let staff review new information and then if necessary it can come back to us at the next meeting. But I see a bunch of people down here so I'm going to ask for any public comment about this issue at this time. Baxter: How long would he have to wait until the next meeting to actually address this issue or would there be a special session involved if he had to go ahead and push it through, he's a business man? Nickle: If you would identify yourself. Baxter: Oh, I'm sorry, my name is Jason Baxter. Nickle: Ok, if the planning administration determines that it is an eating establishment then there will be no need to come back here, ok. If he says no, I disagree with that, if his (Pate) interpretation is that it is not an eating establishment and Mr. Catroppa wants to return then it will be publicized on the next legal notice that we send out et cetera. Did that answer your question? Baxter: Yes, sir, it sure did. Nickle: Ok. Any other public comment? Alright, I'll lean back to the board, what's your pleasure? Chesser: Are you comfortable with reinterpreting this in light of the new information that we've received today, to go back and look at it again? Pate: I'd have to go back and look at it again and what I would like to have is a scaled site plan, which is going to certainly enable me to look and see if the use of that structure is principally a restaurant or eating place as opposed to a bar, because I still do have some concerns with that as proposed. I would like to look over the menu, see what's being offered, and things of that nature. I think that this is something that hasn't been presented as of yet. Chesser: Mr. Catroppa are you comfortable with waiting if we were to table this and let Mr. Pate take a look at it again in light of this new information? Board of Adjustment June 5, 2006 Page 12 Catroppa: Yeah. No problem, I think that's my forte, it's food. I don't have any place that doesn't serve food so, I mean, I got 11 restaurants and that's what we do. Originally, we had said bar because we had the no smoking and if we have food we couldn't have smoking and that's not what I want to do. So, we are completely turning it to a place, again, there is no place for 18, 19, 20, to eat, to go, to do anything because on July 1, you must be 21 years old to enter. So, we completely turned it around. Originally, it was going that way I did not know that we weren't zoned C-2. Our area looked like it was and the laws changed. That's when they came out two months ago with no smoking and we are a college town; you guys there has got to be some place for these kids to go and we are food. I guarantee this will be food. And we have food there, we are making. Food, wine, basically we'll be making a type of subway grilled sandwiches and everything. If they want anything else I have accessibility, but I own the property of Luke's, Lucky Luke's and I own Tony C's. There'll be plenty of food in there. What it will be, what the plan is, a place for 18, 19, 20 can come in and they can eat and they can have their atmosphere and there is no smoking. I believe there is a need for that. I think each and every one of you can understand that. How the laws are made, and I got to put my two cents in here, there are kids today dying. They are 18, 19, 20 years old and they don't have the right to go to a place where there is smoking until they are 21 years of age? I don't understand that. There are things that just seem like they aren't right and I'm developing a place that they can come into. Please keep that in mind and I will assure you that this will be a food establishment and you know College Park is right here. These college kids have no place to go. If they are smoking they can't go. This place won't. It'll be a busy place. It'll be a successful place. And for parking I counted 50 parking places. Andrew, you took the aerial photo and I'd like to see how many parking places are there. There's 50 and we counted over and over and I'd be more then happy to go to it. There are 50 parking places and I gave you my spot for each and there is ample. We have ample parking. And I know parking is not an issue here but I discussed it with him. I didn't just come in here, I am a business man, I didn't just come in here like oh, this sounded like a good idea, I'm gonna do it. And this is an eating establishment and I'd be more then happy to prove it. It is an eating establishment and I welcome you all to come, it will be good food. Thank you. Zant: Mr. Chairman, under the circumstances I would move that we table the BOA item 06-2094 until our regular meeting of July 3`a. Chesser: Second that motion. Nickle: A motion, a second, any other discussion? Andrew would you call roll please. Board of Adjustment June S, 2006 Page 13 Garner: Sure. Roll Call: The motion to table BOA 06-2094 carries with a vote of 5-0-0. Board of Adjustment June 5, 2006 Page 14 BOA 06-2095: (McDONALD, 520): Submitted by KEVIN T. & MELANIE J. MCDONALD for property located at 1840, 1880, 1902, AND 1920 KAYWOOD LANE (LOTS 1-4 BLOCK 3 VALLEY VISTA SUBDIVISION). The property is zoned RMF - 24 Residential Multi Family and contains approximately 0.68 acres. The requirement is for 25' front setbacks. The request is for a 24' setback from Kaywood Lane (a 1' variance) and a 23' setback from Gabbard Drive (a 2' variance) on lot 1, 24' setback (a 1 ' variance) on lot 2, a 23' setback (a 2' variance) on lot 3, and a 20' setback (a 5' variance) on lot 4 block 3 of the Valley Vista Subdivision. Nickle: Thank you. Next is BOA 06-2095 for property located at 1840, 1880, 1902, and 1920 at Kaywood and Jesse you have that? Fulcher: You bet. This is actually for 4 separate lots located on the same street under 1 ownership. Each of the lots contains one multi family structure each. The requirement is for 25' front setbacks along Kaywood Lane and also to the west for one of the lots from Gabbard Drive. The applicant is requesting setback variances for all 4 of these structures on the fronts as each of these buildings has a minor encroachment into those front setbacks. Looks like the 4 structures were constructed at separate times between 1969 and 1972. And looking at the original building permits which are included in the report, looks like the right of way was the same. The setbacks are measured 25' from the right-of-way. What I would say is at the time they were just built a little too close. Looks like the overhang clips a couple of them. It's a few inches on two of the buildings. On the eastern most building, looks like an additional cover had been built on the front of the structure and that one is the furthest encroachment of approximately 4'. Ultimately it looks just like a construction back in the late 60s and early 1970s. No fault of the current owners as they just purchased the property in 2004, approximately 30 years after construction. Really this is just fixing a situation that occurred a long time ago. Staff was able to make all the findings with this request and are recommending approval with 2 conditions. Nickle: Ok. Questions from the board to staff? Is the applicant present? McDonald: Yes I am. My name is Kevin McDonald. Nickle: Do you have anything to add? McDonald: No. I just appreciate your consideration. Nickle: Ok. Anyone from the audience like to speak on this application? Seeing none we'll bring it back to board. Chesser: Seems pretty cut and dry to me. I would recommend approval. Board of Adjustment June 5, 2006 Page 15 Nickle: Is that a motion? Chesser: I move that we approve BOA 06-2095 with the staff conditions. Alt: I second. Nickle: A motion, a second, further discussion? Would you call roll please? Roll Call: The motion to approve BOA 06-2095 carries with a vote of 5-0-0. Board of Adjustment June 5, 2006 Page 16 BOA 06-2096: (BALL COFFEE STORE, 368): Submitted by MANDY BUNCH for property located at 1705 N. COLLEGE AVENUE. The property is zoned C-2, THOROUGHFARE COMMERCIAL and contains approximately 0.44 acres. The requirement is for a 25' setback, the request is for a 16' setback (a 9' variance) along Sycamore Street. Nickle: Alright, thank you. Next is BOA 06-2096 for property located at 1705 N. College, and Jesse you had that also? Fulcher: Yes. This one is an interesting site here. I'll try to explain some of it and let the applicant take over after that if they have anything to add. This is the former Long John Silver's building and site there at the northwest corner of Sycamore and College. The existing building as it stands today is currently non -conforming and also has an existing curb cut on College that does not meet our ordinance requirements or distance from the intersection of College and Sycamore. Not only has this created or a dangerous situation been maintained there on that site but also severely limits how you can develop the site. The applicant is proposing an 1,800 square foot building with a drive through and a small outdoor seating area and they are requesting a 9' variance from Sycamore Street right-of-way resulting in a 16' setback. What they've done is utilized the front setback reduction by putting the parking to the side and rear of the building allowing a 25' setback off of Sycamore. If you look through your packet there is a survey of the existing site on page 11, beginning on page 11. Page 12 is the proposal with the 9' variance requested and pages 13 and 14 show 4 other site plans designs that the applicant worked up that staff reviewed. All of them needed a variance request whether it be Planning Commission reviewing landscape requirements, building setbacks, as you can see this is a very difficult site to redevelop. Looking at this, we looked at these ultimately 5 proposals in which item needed least amount of variance requested or waivers from the Planning Commission which is what the proposal is today of this 9' variance request. Right now looking at the site there is a number of non -conformities that will be corrected with a redevelopment of the site. The building itself is non -conforming, the parking is non -conforming, the site coverage is non -conforming, the sign is non -conforming, the curb cuts are non -conforming. With redevelopment we will fix all of those less this 9' variance that is being requested by the applicant. So, staff may develop findings. Looking at the difficulty, one of the main difficulties I should mention is when the site was created probably in the 60s, the right-of-way for College and Sycamore streets was significantly less. Also, the 15' requirement for landscaping was not there. When you include those additional Master Street Plan right-of-way requirements and the 15' landscape requirements on both frontages you lose thousands of feet of build able area and usable area. So, really looking at the proposed site you can see how the setbacks were pushed the building envelope to the rear corner of the site. So, staff is in support of Board of Adjustment June S, 2006 Page 17 this single variance request with 6 conditions of approval. Condition number 1 is curb cuts. We wanted to see that curb cut removed from College approximately 20' from the intersection and at the same time we understand the high intention use of the drive through business and what we've recommended is to permit the curb cuts unto Sycamore but with a restricted access to College. I believe we've done as a right -out only, which will allow for traffic movement out of the site. It will also limit those dangerous traffic movements, as staff feels, trying to head north, crossing 2 lanes of traffic into the turn lane as the southbound traffic is trying to enter the turn lane to turn onto Sycamore. And then also the 3 parallel parking spaces indicated on the west of the drive through should be marked as employee spaces only. Don't feel that patrons of the business could make it to those spaces. It seems like it would be an appropriate place for the employees of the business to park. And with that we're recommending approval. Nickle: Just for clarification, the proposal is on page 12, is that correct? Fulcher: Yes, it is. Nickle: That's the one, that's the variance they are requesting? Fulcher: Yes, that's the variance. The 9', it does show the full access onto the College. That's the access point there shown on the east side of the diagram that we would like to see restricted to right -out only. Nickle: Questions from the board? Chesser: So, what we're seeing on page 12 would remain essentially identical except I can put a little right -turn only? Fulcher: Right -turn only and we would hope that the decrease in that required, I think that is a 24' drive isle with a 1 -way out that could be decreased to 12 and would add possibly 2 more parking spaces which we feel would be important on this site. Chesser: Ok, so this, and that would move the curb cut further away from the intersection at Sycamore? Fulcher: Yes, the southern portion, the southern part of the curb cut would be moved approximately 12' further to the north. Chesser: Ok. Fulcher: So, pretty much cut that drive isle in half and add another curb in there. Board of Adjustment June S, 2006 Page 18 Nickle: Is the applicant present? Bunch: Yes, sir. I am Mandy Bunch I am here representing Randy Ball and his partners. This here, this is Terry Bole. I put together a little quickie board but I think everyone is well aware that we've got an extreme non- conforming use and we're doing everything up to that 9' variance that we are requesting and also huge improvement on the building, huge improvement on the site overall. We're talking about 30' of breathing space between the parking and the highway where as now there is almost none. So, I think we're all in agreement there. I think we've seen each other enough to know that. And we're also in agreement with all the conditions of approval except for number 1. The instant we talked about this I knew there would be some concern about the drive so I went in and went in and did all my research on the actual drive spacing onto Sycamore which we're ok on. The drive onto College we're actually shifting 75' more from its existing location, which is a huge improvement. We only have 115' of frontage on College so what we're proposing is to shift that as far possible to the north as we can within our property constraints. Where we take issue is with the movement constriction and we would request that that condition be modified to allow right -in right -out movement so that cars can actually come from College which is the highest volume street that we have in our area and that is a major draw for this particular development. It's a very high use high traffic item and they're very interested as would be Wallgreens or something like that situation to have the traffic come directly off College. We also have allowed for up to 9 stacking. The cue could be up to 9 cars before that actually would have any interference with the highway at that time the patron could make the decision to come up the light up to Sycamore and sit in the parking lot and wait if they were that sternly set on that cup of coffee. So, that is our request that you consider that access and we understand that the planning staff has also said we have to go through Highway Department, which is going to be standard condition as well. That movement restriction is the only, that is the only request that we are making. We appreciate the recommendation and we are requesting that change. I'm not sure what Terry has to say. Bole: That sums it all up. Again, the developer is very excited about the project and with the tenant coming in it's a good development for the City of Fayetteville just with this issue being the right-hand would help with the tenant's moving forward with the project with the overall flow of the traffic in and out of the project. Chesser: I must have misunderstood then, because I thought you were saying, so you're saying this becomes one-way out only? Board of Adjustment June S, 2006 Page 19 Bole: The way it was proposed, Mr. Fulcher indicated that this would be only a right -out onto College. Chesser: Ok. Bole: What we're asking for is - Nickle: Is it right -in right -out or left -in? Bole: Right now it is two-way traffic. I don't have full access to what was submitted but Mr. Fulcher had requested it be in his report just a right -out and what we're requesting for is a compromise here that we at least have a right -in. Chesser: So, you're saying no one would be able to enter? Bole: Right. Chesser: This would be one-way out, only? Bole: Right. Fulcher: I should say before we get into too much of a discussion on it, at the end of the paragraph since the curb cuts are development related it is not a zoning request. This is just part of our condition. Kohler: It's not part of our approval. Bunch: I was concerned and I brought it to Terry's attention that we'd come discuss this since it was actually listed as a condition of approval. Nickle: Ok. Then we could grant this variance and eliminate number 1 if we so chose and that would be an issue between you all and Highway Department and staff as part of the redevelopment of the property. Kohler: I move that we do just that unless there is any? [Multiple people talking at once] Chesser: There's no chance of getting the Long John Silver's back? I guess I'm the only person in town that ate there so that's probably why I'm wondering. I had to give it a shot. Nickle: Any comments from the public on this particular item? Seeing none I'll give it back to board. Mr. Kohler? Board of Adjustment June S, 2006 Page 20 Kohler: Yes, I move that we approve the requested variance with staff recommended conditions with except of number 1 which we'll leave out. That would be BOA 06-2096. Zant: I'll second. Nickle: We have a motion and a second, further discussion? Chesser: Actually, let me just make sure I'm clear real quick. So, the right -in right - out thing would be determined by someone else later? Nickle: Yeah. Chesser: We're not eliminating that possibility of someone else determining that? Nickle: Right. By deleting number 1 we - Chesser: Leave it open. That's what I would like to do. Nickle: And we're just approving this variance on Sycamore with items, staff conditions 2 through 6. Chesser: That's the only thing I wanted to clarify. Kohler: The state will make that final determination. Nickle: State and staff. Ok. Would you call roll? Roll Call: The motion to approve BOA 06-2096 carries with a vote of 5-0-0. Board of Adjustment June 5, 2006 Page 21 BOA 06-2097: (HABITAT FOR HUMANITY, 524): Submitted by HABITAT FOR HUMANITY OF WASHINGTON COUNTY for property located at 401 E. 6TH STREET. The property is zoned RMF -24, MULTIFAMILY — 24 UNITS/ACRE and contains approximately 0.20 acres. The requirement is for a 60' lot width. The request is for a reduced lot width of 58'. Nickle: Alright, we're moving to item BOA 06-2097 for property located at 401 E. 6`" Street and Suzanne. Morgan: Yes, this property was platted quite some time ago, it is currently vacant. There was a single-family dwelling on this property, but it has been removed several years ago. All of the properties around this site are developed mostly for single-family use though there is some multi -family use to the south of this property. The current owner is requesting a lot width variance 2' for this non-compliant lot. It currently has a lot width of 58' and looking at the lot area requirements it appears to exceed the 6,000 minimum square feet requirements. The applicant would like to develop this. The applicant is Habitat for Humanity and they would like to put a 1,200 square foot home on the property. Staff finds that there are special conditions relating to the lot width, that this property was developed or platted prior to the current zoning regulations. All of the adjacent homes are developed on this street for single-family use and we find that to utilize this lot for that same use is not going to be a detriment to the surrounding neighborhood. With that, staff is recommending approval of this proposed request with some minor conditions of approval just related to the fact that only one single-family home may be permitted on this subject property and that building permit must be obtained. Just a quick comment; this is pretty much just related for your information. The site plan is shown on page 12. It is somewhat inaccurate and shows 156' of lot width, but that is measuring from a northern property line that is in fact in the right-of-way. So, we'll see some revised building permit plans with the building permit. Nickle: Thank you Suzanne. Any questions for staff from the board? Is the applicant present? Melton: I'm Robert Melton [end of tape] .... we would appreciate if you pass this variance for us and on the revised plat from the surveyor who did the survey, he extended the whole length of the lot to the north boundary, perhaps you didn't catch that, so it'd be a 30' difference but it still leaves us 40' in the rear. Thank you. Nickle: Questions for the applicant? Any comments from the public on this particular, yes sir? Board of Adjustment June S, 2006 Page 22 Wilson: My name is Michael Wilson and I own the property to east and I just had a couple of questions and I called Jeremy the other day and, all the setbacks are still going to be required right? Nickle: Yes, sir. I think that block width is the only thing he's asking for here. Wilson: What about the, are they going to, when they build a house are they going to build a fence down through there beside it or do they just leave it like it is? Morgan: No fence is required. Wilson: No fence? Thank you. Do you all have a packet that shows what is required there today? I didn't get it, but they sent a letter in the mail. You know if I could just get it? Chesser: You want to take a look at the site plan? Wilson: Yeah, and also when they build this house and they turn it over to someone, or are they the owner? If you have a question about the property or whatever, who is responsible? Chesser: I think that's a question for Habitat for Humanity, probably. Can you answer that? Melton: When we build a house, Habitat will own it but then they will sell it to one of the applicants who is qualified to get one of the houses. It would be up to them if they wanted to put up a fence we normally, unless it's a problem area, do not build fences. And your setbacks on that piece of land they will be 8'. To the west it's 12' and to the east 21'. Wilson: But whoever buys the house, if I had a problem with it and I had to get in touch with, it wouldn't be Habitat for Humanity. Melton: No, the people buy the houses from Habitat. That's after the house is completed. Wilson: Right, I didn't know how they done all that and that's all I had a question of. Kohler: This board doesn't really get involved with those matters. This board is going to vote on whether it's an existing non -conforming lot width and that's all we're going to discuss. Wilson: That's all I had. Appreciate it. Board of Adjustment June S, 2006 Page 23 Nickle: Any other comments, questions from the public on this item? Seeing none I'll bring it back to the board. Chesser: I move that we approve BOA 06-2097 with staff conditions. Alt: I second. Nickle: A motion, second, any further discussion? And will you call roll? Roll Call: The motion to approve BOA 06-2097 carries with a vote of 5-0-0. Board of Adjustment June 5, 2006 Page 24 BOA 06-2098: (ASFAHL, 486): Submitted by BRET PARK for property located at 121 W. SKYLINE DRIVE. The property is zoned RSF-4, SINGLE FAMILY — 4 UNITS/ACRE and contains approximately 0.22 acres. The requirement is for a 15' front setback. The request is for a 0' setback ( a 15' variance.) Nickle: Alright, next is BOA 06-2098 for property located at 121 W. Skyline Drive and Andrew I believe you have that. Garner: Yes, sir. As mentioned this property is located at 121 Skyline Drive on Mount Sequoia. It's adjacent to the overlook by the cross there on Mt. Sequoia, it's the first house next to that. It's lots 58 and 95 of the Western Methodist Assembly. As you probably know from going to that area there are severe elevation changes in the heights from the front to the rear. A lot of these houses were originally built really close to the street and it is in this property the detached garage is located at the right-of-way and I gave you a photo there, shows the garage. And what the applicant proposes to do is remove that existing garage and construct a new garage with a similar footprint with a 0' setback and proposes to construct a garden wall for privacy with a maximum of 6' in height as measured from the surrounding grade. And page 12 shows a survey of what they are proposing to do. Page 13 shows the existing survey with the existing house. We did find that there are special conditions and special circumstances for this lot and most of the lots on Mt. Sequoia and the request to remove the existing detached garage and replace it with a slightly larger garage we find that it would be justified and would be necessary as part of the development of this site. We do not find that there is circumstances requiring a garden wall that is a special circumstance or condition. In talking to the applicant's representative they would like to construct this wall for privacy and we find that there are other means to provide privacy aside from a solid masonry wall along the front. That is the basic summary of our findings and we have conditions of approval recommended for the variance of the garage listed on page 1 there. The main one to pay attention to, well there is a couple of them really. Condition number 2 is that the development of this site shall meet all regulations of the Hillside Hilltop Overlay District and we would be reviewing that with the building permit. Condition 3 is that no part of the structure may overhang into the right-of-way. Condition 4 is that the detached garage shall be well articulated and compatible with the new house as the variance would put it very close to the street we want to make sure it would match the house and look good. That's all I have. Nickle: Questions from the board for Andrew on this? Is the applicant present? Park: I'm Bret Park. First I would just to say that we've had a very good amicable, productive interaction with Andrew on this. We've had some questions back and forth and I really appreciate that very much. I Board of Adjustment June 5, 2006 Page 25 appreciate the recommendation for the variance request on the garage without any comment. The only thing that I might clarify from Andrew's statement right now is that the existing garage actually extends into the right-of-way. It's an encroachment into the right-of-way of Skyline. And the new garage, the overhang is at 0' but it's a 3' overhang so we're actually, the wall of the garage is 3' beyond where the right-of-way is. I feel it is a significant improvement of 9'. So, thanks for that. On the garden wall issue, well first I guess the detached garage, item number 4, on recommendations under conditions, I'm not uneasy with the phrasing of item 4 other then I kind of wish we could have a little bit more objective goal set out for that other then just a, I don't know, the idea of coming forward and getting a response well this is well articulated enough or why don't you well articulate it a little bit more might be something to address and the same with the compatibility issue. Our intent is that the garage is going to beautiful just like the house is going to beautiful. Similar materials, similar trim, articulation, and better then just plain metal garage doors and if there was a way we could agree on that as our goals for compatibility and articulation or aesthetics I would appreciate that. That may be an awkward request for this venue but to rephrase that condition would make me feel a little bit more comfortable. And the second issue I guess is to address is the garden wall a bit. We would not have to ask any permission at all just to build a wooden privacy fence out in the front, it's our intent to do something nicer then that. There will be stone as part of the vocabulary of the house. The foundation, walls, and the elements around. Part of our intent at this time and certainly more then intent it's definitely our plan is to have really great natural materials. Field stone where we're mitigating the grade by raising the floor level as the site ascends there is going to be stone exposed on that. We'd like for this garden wall element to define the entry core to the house in a manner that is consistent with the architecture around. So, my feeling is that the garage is a permanent structure. It is taller and closer to Skyline then this wall will be and what we're asking for is basically permission to do something that is better, nicer. Probably more of an amenity to the district then just putting up a privacy fence. And I'm not threatening you with the privacy fence I'm just saying that it would be easy to do less, we wouldn't even have to ask to do less. We're asking for your permission I suppose to do more. This is part of the imagery of the house. Chesser: Would you say the garden wall as you propose would be more well articulated with the home then a privacy fence? Park: More well articulated and more compatible I believe. Nickle: I understand you use natural materials as opposed to concrete blocks? Board of Adjustment June 5, 2006 Page 26 Park: Concrete blocks would be absolutely incompatible with this project. The intent is a sort of organic style house. Natural materials, natural stone. We would not anticipate we certainly will not have anything that would be considered, I've just been hard on staff about subjective terms, but there's not going to be anything tacky about this. It's nice. And we'd like for that wall to be a really nice sort of permanent element of the design as well. Chesser: So, you probably wouldn't object, would you object to a condition that say you use, for example, natural stone to build this masonry wall for example? Park: I would not object to that. Chesser: Not that I'm saying we're going to dictate what material you use but not cinder block or something like that. Park: Maybe toward the specific is better if we agree that the material will be natural stone then that would take care of it, that's been our plan all along SO. Kohler: Are we within our realm here? I mean this number 4 is kind of unusual. Like I have not seen this statement in any application before since I've been on the board and I think we're getting a little bit, we're really dealing more with setbacks and lot widths and things like that and to start putting design standards on here, I think, is a little beyond us. I happen to agree with everything the applicant has said. I think that this wall is no more of, or it's much less of an encroachment then the garage is and I'm with him I don't really think we should be making subjective statements in our approval process. Zant: I somewhat concur. We're bordering on, and boy did I get my fill of this in the west, was the magic term, design review. Which was something to be avoided at all costs. Kohler: The Planning Commission does that. Zant: But I do have a problem with a 15' setback requirement when there's been no demonstrated hardship of any kind to erect a permanent edifice in there. The garage has a hardship and a justifiable cause for it. But I have a little problem with putting up a permanent structure in the setback when it is not absolutely a requirement that it be there. Chesser: Wait, can you clarify what you mean by that? So, you're saying you object to the garage being - Board of Adjustment June S, 2006 Page 27 Zant: No, no, no. The garage is an absolute, and in fact it is encroaching currently in the right-of-way. The redesigned garage is a good thing and justifiable with a 0' setback. There's hardly any choice on that property, it's very tight. However, that wall, and when you read your materials, that wall, there are other choices. And I have a problem with a permanent masonry wall because I don't see the hardship involved in creating a variance for that. Chesser: I understand that but it falls — I'm curious about this because I drive past a probably 8' masonry wall which is much closer to the road just over here by the parking garage which is currently being constructed. I guess there's maybe a different setback, and it's for a house. And I'm wondering if that's zoned differently. Garner: I'm not sure which wall you're talking about. Chesser: It's closer then the wall that's indicated on these plans so I was, it probably was in a different zoning area. Zant: I'm used to making judgments to either support or not support our staff and they are professional staff. They are highly trained and I think they've reviewed all the parameters here and they couldn't find justification for a permanent wall. As they said, landscaping or a temporary, more temporary. Temporary is the wrong word. A movable fence is something maybe they could tolerate or landscaping certainly would not offend to the height that a permanent masonry structure would. And I don't see the necessity for, I don't see a necessity or hardship involved in granting a variance here. Chesser: Are there no other masonry walls of similar nature along the Skyline? Garner: In driving in that area, I wasn't really aware of any. I don't know the applicant maybe, they know the neighborhood better then we do probably. Park: There are lots of examples of all kinds of structures, the least of which would be a masonry wall, the greatest of which would be the front wall of many people's living rooms actually extend into that. The district itself is of a nature that when zoning requirements were overlaid up there it had to have been a fore bound conclusion that everything up there would be in violation of setbacks and so, it's just our opinion but we feel like the rules don't really fit the game up there. So, we're in a situation where we don't feel like we're asking for very, I don't want to say this lightly, but we don't think we're asking for anything extravagant with this wall. It's well back from many comparable structures throughout the district. Board of Adjustment June S, 2006 Page 28 Chesser: Let me ask staff, is there a safety issue with the wall? It appears to me, and I've seen this site and I know it's on a curve, but it appears to me that the garage would cause, and I'm definitely, I mean the garage is certainly an improvement over what's existing. Are there, for example, are there traffic pedestrian accidents up there, problems of that manner in that area? Garner: We, it was not really a concern of our. Just give the slow speed of traffic and narrow width of the pavement in that area. There are a lot of pedestrians in that area, but we didn't find this to make the situation any worse. In fact, it would make it better by scooting back the front wall of the garage back further. Chesser: Would the wall cause a problem? Any additional problem than the garage? Garner: I don't think so. Chesser: Because I tend to lean with Bob here on this that I, I'm not convinced that, well, I feel like if we're going to do the garage I don't have a problem with the wall. Nickle: One thing I'll point out, because of its proximity to the cross there is quite a bit of more people in that immediate area that stop, pull -in, stand around, etcetera. So, I can understand a concern for privacy. I'd like to ask for comments from the public on this. Any comments from the public on this particular request? Seeing none we'll bring it back to the board for further consideration. Whitaker: Mr. Chairman if I could? Nickle: Please. Whitaker: Just briefly, I just want to warn you, caution you off the idea of asking about are there any other non -conformities around. By ordinance you are not to consider that. Staff is not to consider, you are not to consider. As a matter of fact, one of the findings you'll find each month in these is that there is no non -conformity use of neighboring land. Chesser: That's true, that's true, my apologies. I still feel like, I would actually move that we approve BOA 06-2098 and I'm not sure how to do this but I'm in favor of removing, and I would approve both the garage and the wall, with the rider that the wall must be as well articulated as the garage I guess. I feel that this is going to be aesthetically more pleasing then a privacy fence and that is a highly visible and public tourist area up there and I'd rather see, and that may not be good enough for finding but I feel like if we are going to approve the garage that the wall encroaches less then the garage. Board of Adjustment June S, 2006 Page 29 Kohler: Can we remove condition number 4? Chesser: I would support that removal of condition 4, and I would, but I would also move that we go ahead and accept the wall also. Nickle: I think the motion was to approve BOA 06-2098 with the deletion of staff condition 4 and the inclusion in our approval of the requested masonry wall at that setback. We have some clarification first. Garner: Yes, I had some clarification. I wasn't clear on whether, so is condition number 4 taken out now and [too many talking at once] Chesser: That's my motion to go ahead and remove that. Nickle: Mr. Kohler's comment earlier was that that may get a little bit beyond where we feel comfortable, I mean in terms of directing well articulated and compatible, we'd rather just deal with more specific things then that. Because we don't want to see someone coming back and disagreeing with some interpretation specifically on what we might pass again. But that was the motion as I understood it. Is that correct? Kohler: I think we should ask staff, why did you include that when their design standards are not included in other cases? Garner: I think that just the visibility of this and allowing a variance so close to the street, we feel like it was appropriate in this case in order for us to recommend approval for it. The concern was the potential for a really just blank 3 car garage vault where all you would see was the garage door and so, just to get some basic articulation to make sure it was compatible with the house. And we were thinking similarly where we approved a detached second dwelling unit there are architectural standards for that detached second dwelling unit to be compatible with the principal structure. We were going along those lines just to make sure it was compatible and wasn't just a big blank garage door. Nickle: I think also, Mr. Park was just uncomfortable with the well articulated section of that specific condition. He didn't have a problem with compatibility etcetera. So, perhaps if you want to consider revising the motion to just delete the words well articulated out of that - Chesser: Well, if I could ask the applicant, we're talking, my impression is that the garage will be similar, I mean if you're that worried about the wall, I'm assuming the garage is going to be similar materials of the house and it's not going to be simply a box? Board of Adjustment June S, 2006 Page 30 Park: That's correct. And if I can add, these words came very directly from my telephone conversation with Andrew and I don't want him to have to suffer undue heat from this so we're trying to kind of work together to make sure that this was right. And I think that in certain casual conversation this is almost a quote of what I said. It would be a well articulated very compatible design so I don't have, I don't object to that in the least, I just, staff members change sometimes and if we get to a point where I'm not talking to Andrew anymore, I might be talking to someone who says well that's not well articulated enough. Chesser: Andrew do you have any doubts as to whether or not this garage is going to be aesthetically pleasing? I mean do you have a problem, are you nervous about number 4 or are you just adding it as a because you're being thorough, which is my impression. Garner: We felt it was necessary, but the applicant seems like they have all intents of designing it compatible with the house. Chesser: Bob, what if we said that, and the applicant too, that the garage must be composed of similar materials as the house? Would you be comfortable? And I understand staffs' reasoning just since we would be allowing - Kohler: You would be fine to just take it out, I think we're just splitting hairs. Chesser: Yeah, I think we are. Actually, I would just leave it, leave the motion as it stands. I want to delete number 4 and approve the stone wall and trust the applicant to be faithful in the building of the garage. Garner: I have a question. So, is the wall required to be made of stone or - Chesser: I would like to require the wall to be made of stone. I mean I don't want to see it - Nickle: I don't think that was specifically a part of your motion. Chesser: It wasn't. I'm confused, I apologize. Nickle: What you said was basically was approve the requested setbacks for both the garage and the garden wall and also to delete condition number 4. That was the motion that I understood and that was the motion that was seconded. Zant: Was it seconded by Bob? Nickle: Yes, he did second. That was the motion and the second. So, further discussion? Board of Adjustment June S, 2006 Page 31 Fulcher: May I split another hair? Nickle: Yes, sir. Fulcher: On page 6 of 18, the second of last finding, there is language in there about should the wall be approved about its height, length, and materials. Could we just address that. Nickle: Ok. [Too many talking at once] Chesser: Well, I like that, I'm sorry I did not, is there a limit on height? I didn't see 1. Limit to as exactly how it is shown on the plan. I mean, I don't want to see it bigger then this. Nickle: Ok, then just for clarification purposes I believe it is the intent of the motioner to include that specific information if we approve that garden wall variance. Chesser: I apologize for not noticing that. Kohler: That second line of that number 4, it's going to be reviewed at the time of the building permit anyway. I'm just wondering, that would be done anyway, should we leave that in or would that be redundant? Alt: If we strike number 4 totally or just amend number 4? And you still have the review process at building permit time. Garner: We wouldn't be allowed to review it for architectural standards normally. So, that's why we added that condition. Nickle: Ok, specifically, Jesse was asking about or maybe it was Kohler, I don't remember, on page 6 of 18 that paragraph it says staff recommends denial. Should Board of Adjustments recommend in favor, they would like to limit the following fashion. Chesser: Yeah, I completely agree with that. Kohler: Yeah. How do you re-inject that into the motion. Chesser: Yeah maybe we should, should we deny this motion and try again? Nickle: No, we can [Too many people talking at once]. You can withdraw your motion and then restate it. Board of Adjustment June 5, 2006 Page 32 Chesser: If I may, I will restate. And actually, before I do, Bob are you comfortable with, would you rather just remove well articulated or would you rather strike number 4 entirely. I'm not uncomfortable with requiring since it's going to be in the right-of-way. A certain amount of aesthetic determination. I'm nervous about - Kohler: Why don't we leave in number 4 and strike well articulated. Chesser: I'd be happy with that. So, let's try this again. Kohler: Ok, now, does that include this verbage on the [Too many people talking at once]. Chesser: The verbage that we're speaking about on page 6? Ok, so I move that we approve BOA 06-2098 with the following conditions: staff conditions 1 through 4 striking the word well articulated from condition number 4 and with a 5`h condition based on paragraph found on page 6 of 18 regarding staffs' recommendations about the length and materials of the wall. Kohler: I second. Nickle: We got a motion, a second. Further discussion? Park: Excuse me? Nickle: Yes? Park: Regarding the length and the width, the height of the wall, it's still undefined by the board as is required in the verbage on page 6. Nickle: It doesn't speak to height and I don't know if you submitted anything on the plan that - Park: The top of the wall is at 106' in relation to the height of the garage - Chesser: 106'? Park: Well, that's to the elevation. Chesser: Not going to approve 106'. I'm teasing you, 6' above grade just as you've submitted. Nickle: Andrew would you call the roll? Roll Call: The motion to approve BOA 06-2098 carries with a vote of 5-0-0. Board of Adjustment June 5, 2006 Page 33 BOA 06-2099: (CAHOON, 485): Submitted by THOMAS P. CAHOON for property located at 120 N. WASHINGTON AVENUE. The property is zoned RMF -24, MULTIFAMILY — 24 UNITS/ACRE and contains approximately 0.17 acres. The requirement is for a 25' front setback, an 8' side setback and 60' of lot width. The request is for a 22' front setback (a 3' variance) to accommodate a re -built porch on an existing foundation, a 4' side setback (a 4' variance) and a 42' lot width (an 18' variance). Nickle: Alright, to BOA 06-2099 for property located 120 N. Washington and Jesse can we have that please? Fulcher: Yes, the property is located at 120 N. Washington. Zoned RMF -24 Residential Multi -Family 24 units an acre. This is an existing home built in 1942 it's one of many older structures in older platted subdivisions within the city. Most of which were built, or all of which were built probably prior to current zoning regulations therefore are located in front, rear, and sometimes also side setbacks. The existing home did have a front porch which did extend approximately 23' from the front setback. The applicants have requested to replace that front porch as shown on drawings from page 9, 10, and 11 of 14. On page 9 of 14 you can see the existing outline that was a building footprint taking of the old porch area. You can see it extends to the front building setback. There are also some photos on page 11 which are a little dark but the, one of the pictures you can see, above the door you can see a line where the porch was attached. Then on page 10 of 14 it shows the proposal which is a scaled down front porch area with a pergola look or design extending on either side of the front porch. When staff reviewed this, as we typically find other items that are non -conforming they should be addressed at this time of this variance. One of those items is the lot widths which is currently 42'. That is how it was platted in the RMF -24 zoning district. 60' lot width is required, could request an 18' variance be reviewed and approved at this time. Also, in looking at the site plan it appears that the home is 4' on north side of the home, the side setback, it encroaches into the side setback. We'd also like that to be addressed at this time. However, doing a little bit of more research into a previous building permit, there is a little discrepancy in that side setback. The side setback shown on this site plan on page 9 shows that the house encroaches into that 8' side setback. A building permit I just pulled today from where they had done some remodeling work at the beginning of this year, the house is shown approximately I F from the side setback. So, we have a little concern with maybe addressing that side setback at this time. Regardless of the side setback discrepancy we are comfortable, based on the age of the home, that there was an existing porch and that the new porch will ultimately replace that with a different architectural styling. We are also comfortable with the lot width that has not changed regardless of the site plan. We would positively request that the applicant provide a site plan that has everything measured out and that can address the discrepancy between the house locations on these site Board of Adjustment June S, 2006 Page 34 plans. Whether that, decide that should be tabled now and have them review these site plans and come back to the next meeting, whether they wish that we just address the lot width, the front porch and carry on with possibly a non -conforming structure - Kohler: There is no site plan in this packet. Not of this building permit, but yes, on page 9 there is a site plan which shows - Chesser: Which is incorrect. Fulcher: That's what we're not sure about. Kohler: Oh, I see. Fulcher: And I can pass this, this is the original copy, if you can pass this, if you'll pass that around. It doesn't have a scale there, but scaling it out if it's at the same scale 1 to 30, it shows it to be at about I F off the north property line so, we're a little concerned with addressing a variance not knowing what the variance request would be for. And if the applicant wishes to maybe address that and give us some ideas of what they'd like to do. When we review these variance requests and we find other items we like to address them all at once rather then have the applicant come back and have the board review the same property for the same structure. So, it may be up to the applicant with what they would like to do, what the board would like to see done. Nickle: Questions from the board for staff on this? Chesser: I have some specific questions on this property because I like reviewed it and if we look at this thing that was just handed around, 1 there is a fence to the north, which is if you see this, on page 9 where it shows 8' and that the building is encroaching in that 8', that's not, if the fence line is the property line, which is what I'm assuming, there's at least 11' between - Fulcher: Not necessarily, you can't assume - Chesser: I understand that, I understand that. But, let my clarify where my problem with this is. Where the fence, and you seem to indicate though that there is some work, building permit that shows it at about 11'. Fulcher: From the approximate line shown on that site plan to the approximate location of the house it's about, it's 11'. Chesser: So, there is, my problem with this is there's a variance request about this side, I have no problem with the front porch. I think the front porch is fine. My problem is on the side there, shown on that plan, is very small little Board of Adjustment June 5, 2006 Page 35 step out to the side of the house when in fact on that side of the house there is now a deck, a rather larger deck, that reaches to the fence line. Did you get a chance to measure that deck by any chance? Fulcher: The height, I don't have the height. It appears to be over 30". Chesser: Ok. Fulcher: Which would be required to meet setbacks and require a building permit. Chesser: And I have been approached, there have been some concerns from neighbors, about the deck, which approaches within about a foot of the fence. That's the only thing I had a question, I mean this is just a little unclear to me because it seems to me that if, I don't want to, oh, and the deck by the way is brand new as far as I can tell. The foundation is clearly a hundred years old and the deck is on, the deck still has the little tags on the end of the lumber. I don't want to accidentally allow a deck that really should, was added on later, when we address this side setback. Again I have no problem with the, I don't want to, I don't want to indicate that I have any problems with that front porch. But there is clearly an old foundations there and it's an improvement and I like it. I think it's a good improvement. I'm just not sure about this deck off to the side. I would be definitely in favor of tabling and addressing that issue or having the applicant address that issue because it doesn't at all match either plan. Nickle: Let's have the applicant address us. Is the applicant present? Cahoon: I'm here. The deck is less then 30" and I called down, I called down the planning when I was doing the permit on it just to find out if I can take it up that close because I just, it has a back door and - Chesser: I saw the door. I understand why it's there I just - Cahoon: They said as long as it's not over 30" you can do it. Chesser: It's not a problem. Cahoon: That's why I built it that way, but it was on the building permit. Chesser: It's on the building permit? Fulcher: Well, that's the building permit and within our Hansen System where we make notes, the porch is mentioned. Chesser: It is? Oh, that's fine. That's fine then. Board of Adjustment June S, 2006 Page 36 Fulcher: The discrepancy is the size of that porch and the size of the porch built. If the applicant is correct, if it's under 30" he's welcome to build. Chesser: And that was my thought, and it is under 30" on the front and back? Cahoon: The reason we left those, we left those things for railing on it because I just thought we need to put a railing on it too. And then I was talking to a neighbor one day and he said well I don't know if you can do that with a railing. So, I never finished the railing, I was actually going to call you Jesse and talk to you about it before I cut those off. Fulcher: Ok. Cahoon: Just to see if it was ok. It would, you know, I didn't finish the railing, but the deck is 30, it's under 30". Chesser: Yeah, I'm fine with it if it, it looked like it was close to me and I was just nervous that we would - Chesser: Where do you measure from, do you take an average or is the worst case? Fulcher: Yes. Chesser: So, you take the highest point. Fulcher: From the grade below it. It was actually at the back that I was more nervous about because it does slope down. Nickle: I think what we can specifically do because you all mention again that you were unclear about the side setback based on the different drawings and applications, so I think, and can we do this, can we approve a portion of this and table a portion of it? Is that permissible? I think it might be in our best duty to approve, if we want to approve, the front variance and the lot width variance to do so and to table the side variance until we have more definitive information that staff can come to us and say it's really a 4' variance or it's really a 6' variance or whatever it is. I think we'd feel more comfortable giving approval to that specific information. Kohler: How does the legal department feel about that? Whitaker: As far as what? Kohler: Partial approval. Nickle: Yeah see I [Multiple people talking at once]. Board of Adjustment June S, 2006 Page 37 Whitaker: When someone comes with an application for variance and includes multiple ones you could pick, lets say for example, there were 3 separate ones up for consideration. You could approve all 3, you could approve 2 out of 3, you could 1 of the 3, because depending on how the motion is phrased. There is nothing wrong with, at this point, approving 2 of the 3, deferring on the 3`a one if that's staffs' recommendation because they want to clear up this discrepancy on the site plan. So, yes, you can do that. Zant: Well, there's a new on for me I haven't seen that done. Nickle: You're in Fayetteville now Jim. Whitaker: It really comes down to what the motion is that's made. Nickle: I want to give the public, anyone from the public would like to speak on this specific request. Seeing none I'll bring it back to board. Chesser: I would move that we approve BOA 06-2099 or portions thereof. Those portions being the front porch, and the lot width variance that staff has brought to our intention but table the issue of the side variance until such time as the staff can investigate it further. Kohler: I'll second. Nickle: Ok, we have a motion and a second. Anything further? Cahoon: Is there anything else I need to do as far as the little deck there on the side. Nickle: Well, I can't say about that. You'll have to talk with staff on that and if they want to measure that then you all can meet out there and do that. Alright, Andrew would you call roll please? Roll Call: The motion to approve BOA 06-2099 carries with a vote of 5-0-0. Board of Adjustment June 5, 2006 Page 38 BOA 06-2100 (ELROD, 409): Submitted by KATHRYN J ELROD for property located at 1434 LUNSFORD AVENUE. The property is zoned RSF-4, SINGLE FAMILY - 4 UNITS/ACRE and contains approximately 0.36 acres. The requirement is for an 8' side setback. The request is for a 3' side setback to the south and a 5' side setback to the north. Nickle: Thank you. Alright, almost time to send out for pizza but we'll forge ahead. Next is BOA 06-2100 for property located at 1434 Lunsford and Suzanne, do you have that for us please? Morgan: Yes, I do. This property is located on somewhat of a hill. It's sloped up in the front of the property and then kind of levels out towards the rear. There is a detached garage and home on the property, both of which encroach into the side setbacks approximately, according to the applicant's site plan, 3' to south. Excuse me, the home encroaches 5' into the southern setback and garage 3' into the northern side building setback. With regard to the applicant's request, the applicant is requesting waivers or variance for each of these existing structures which were built in 1960, approximately. The applicant is requesting a variance to add on to the existing home with the southern wall extending from the existing wall which will be a further encroachment into the side building setback. The staff finds that there are conditions special and unique to this property which would justify the granting of a variance for the existing encroachments into the setbacks. We do not find that the creation of this need for a variance is a result of the actions of the applicant and we find that the existing structures are in harmony with the other surrounding structures. However, with regard to the extensions of the existing home we do not find that there are special circumstances which justify granting this variance. We find that there is ample unencumbered property in which to add a significant area onto the back of the house. And staff has discussed with the applicant modifying the expansion so that the footprint would not encroach into this 8' building setback and the applicant had indicated that such an expansion was possible. Therefore, we are recommended the approval of the two requested variances for the existing structures and are recommending denial for the variance request for the addition to the existing home. Nickle: Thank you, Suzanne. Questions from the Board for staff? Is the applicant present? Elrod: I am. The house was built in 1950 not 1960, and also no one talked to me about redesigning. You said you had talked to me but you haven't. Morgan: That information was supplied from Jeremy Pate. I believe he talked to someone about the house. I don't know if he spoke to the owner or the architect, but Jeremy Pate had that discussion and told me. Board of Adjustment June 5, 2006 Page 39 Elrod: He didn't talk to the owner. Nickle: Can you identify yourself please? Elrod: Kathryn Elrod. Nickle: Thank you. Would you like to speak about... Elrod: The only hardship I see with that is since it was built in 1950 and it was built into the setbacks at that time they might not have had those setbacks. [cut off by tape ending]. All the way across the back and if we went out any further we would take out the patio area and all it would have would be the slope up, that's all the yard we would have. And then there is yard further back but the backyard around the house that's all we have left, but you know it's up to you all's discretion and I appreciate your time. Nickle: Thank you. Would anyone from the audience like to speak to this request? Seeing none I'll bring it back to the board. Discussion? Motion? Chesser: Where did we get the 1960? Morgan: That was from a permit that I found. I believe it was the permit that actually granted approval for building, but there may have been a previous permit, but 1960 was at least the one that I found. [inaudible, multiple people talking at once]. Chesser: I was just ... that's what I was asking was how you found that date. Is there a difference in... were both of those before zoning? Nickle: Yes, we didn't have that until 1970. Chesser: I just wanted to clarify and make sure, so either way the house was built before, the zoning was applied afterward. Morgan: That's correct. Chesser: So, that's neither here nor there. We're talking about 45' square feet of house that's affected by this. Kohler: Often times when this happens, often roof lines are, when you bring an addition out to an existing sort of plane, you know the roof lines are sort of simplified. I don't see a problem with being an addition out to the existing wall. Obviously, there is plenty of space behind that that square footage could be put in, but really what they are doing is they're squaring off two existing corners and I don't think that's going to make the project or the neighborhood impacted in a negative way. I support approval for both. Board of Adjustment June S, 2006 Page 40 Chesser: I think I should agree with that. I think that it would actually be a negative impact in sort of forcing into this mold and again Bob you're an architect so you would know more about that then I, but my tendency is to agree with that. Zant: Was that a motion Bob? Kohler: Yes, it was. I move that we approve BOA 06-2100 for the requested variance of side setbacks, including the 2 - Zant: Including the 2 conditions here? Nickle: Well, condition 1 specifies existing structures so if you want to - Morgan: There's modified language proposed on page 5. Our proposed conditions, should the Board approve both, or all the requested variances, be: "The variances granted shall apply only to the existing structures and proposed addition as shown on the site plan." And the second would be, "Any enlargement, expansion, or extension of existing structures, and additions shall comply with the requirements of the Unified Development Code and the zoning district unless otherwise granted by the Board of Adjustment." Kohler: Motion as stated by Suzanne Morgan. Nickle: Ok. Chesser: Second. Nickle: We have a motion, a second, further discussion? Very well. Andrew. (call roll) Roll Call: The motion to approve BOA 06-2100 carries with a vote of 5-0-0. Board of Adjustment June 5, 2006 Page 41 BOA 06-2101: (PROFFITT, 446): Submitted by ANITA PROFFITT for property located at LOT B OF 800 N. OLIVE AVENUE, ON REBECCA STREET. The property is zoned RSF-4, SINGLE FAMILY — 4 UNITS/ACRE and contains approximately 0.34 acres. The request is to create two single family lots of approximately 7,499 s.f. and 7,490 s.f. The required lot area is 8,000 s.f. Nickle: Alright, next is BOA 06-2101 for property located at 800 N. Olive and Suzanne you have that as well. Morgan: Yes, this property is zoned Residential Singly -Family, 4 units per acre. The lot which we are discussing consists of two older lots which, in past history, have been combined into one. There is one existing home on this property and was built over that former lot line. The applicant requests to subdivide the property to build and additional single family dwelling on the second lot, the newly created lot. The applicant has received approval from the Subdivision Committee on May I I'h, 2006 with the condition that a variance be required. The variance is required because each of the lots is less the 8,000 square feet, the minimum lot area required for single family dwelling. The variances would be 510 square feet on tract A and 501 square feet on tract B. Staff finds that there are unique conditions to this property. Most of the surrounding properties are developed with 50 foot widths and long lot lengths with approximately 75 hundred square feet, just as most of the other properties are unique in and around the downtown area. Staff does not find that doing so, granting the variances, would grant a special privilege on this applicant and find that though this request is a result of the applicant's desire to build a new dwelling unit on the property, we do not find that in any way this would be granting special privileges to this applicant. We are recommending approval, therefore, of the lot area variances with 4 conditions of approval which state one single family home may be permanent on the new lot tract B. "Any development shall comply with all zoning development regulations including building setbacks from the property lines and Master Street Plan, rights-of-way, height restrictions, and so forth." Condition 2, "a building permit shall be obtained prior to the commencement of any construction." Condition 3, "all existing structures, easements, and utilities shall be on any site plan submitted for building permit consideration." And finally, that "the applicant shall comply with all conditions of approval associated with Lot Split 06-2039." Nickle: Any questions from the board for Suzanne on this? Is the applicant present. Proffitt: I am. Nickle: Yes, would you identify yourself please? Board of Adjustment June S, 2006 Page 42 Proffitt: My name is Anita Proffitt. Nickle: Any thing you want to add to - Proffitt: This is just a place that my parents bought after my father finished serving in World War II and we just kind of understood it was 2 lots over the years. And instead of an old empty lot sitting back there, which makes kind of a big yard, you know, my sister and I just decided that that would be a better use of the property. And to build a house that's probably craftsman style home befitting the area. Nickle: Questions for the applicant? Anyone from the audience like to speak to this particular request? Seeing none, I'll bring it back to the Board for its consideration. Chesser: I move that we approve BOA 06-2102 with staff recommendations. Oh, sorry, I already flipped I gave you the wrong number. Change that, I move that we approve BOA 06-2101 with staff recommendations. Alt: I second. Nickle: We have a motion, a second. Any further discussion? Chesser: Actually, I think I still got that wrong. Did I get that right? Nickle: 2101. 2 10 1. Andrew, would you call please? Roll Call: The motion to approve BOA 06-2101 carries with a vote of 5-0-0. Kohler: I have a question. Do we have an adjunct party list? Chesser: That's what confused me. That was the Lot Split. Nickle: Yeah, that was just the confirmation of the Lots Split process they're going through. Board of Adjustment June 5, 2006 Page 43 BOA 06-2102: (BAXTER, 361): Submitted by JASON BAXTER for property located at 1985 PURVA, LOT 14 IN PHASE 8 OF THE BRIDGEPORT S/D. The property is zoned RSF-4, SINGLE FAMILY — 4 UNITS/ACRE and contains approximately 0.31 acres. The requirement is for 25' front setbacks on Purva and New Bridge. The request is for a 15' setback on Purva (E)(a 10' variance) and a 7'9" setback on New Bridge(S)(a 1 T 1 " variance). Nickle: Alright, BOA 06-2102 for property located at 1985 Purva Place. And I believe Andrew you have that. Garner: Yes, sir. This property is located at, as you mentioned, 1985 Purva Place. Lot 14 in the Bridgeport subdivision. It's zoned RSF-4, Single Family of 4 per square acre. It's surrounded by single family residences in the Bridgeport subdivision. It's also surrounded by some developing properties in the neighborhood. The 2 story house was permitted in September of 2005 with 25' front setbacks and utility easements off of Purva Place and New Bridge road. Page 11 shows the new building permit site plan. During construction of the home it was brought to the Planning Commission's attention by an inspector that the house seemed to be closer to the street then those to the west and after investigation we determined that the house was built within both setbacks of the front and it was built within 7' of an existing waterline and encroaching substantially into the utility easement. And the water and sewage department indicated that they would not support vacating the utility easement without substantial relocation of the existing waterline and the house at the developer's or owner's expense. And upon informing the applicant of this situation a survey was required and that's shown in your packet as well. It shows the accurate extent of the violation. And most of the garage encroaches into the building setback and utility easement. New Bridge Road is a collector street with a 70' right-of-way, Purva Place is a local street with a 50' right- of-way. And the variances shown or requested are shown in table 1. And the request is for, to allow the existing setback off of the front, off of the south for a 7' building setback when 25' is required and on the east for a 15' setback when 25' is required. Staff does not find that special conditions exist for this property that would justify granting this variance. The builder at the time of construction was aware of the setback requirements. A mistake was made in locating the home. We just find that this is a newly created subdivision, it was newly platted in 2005. The building permit showed compliance with the 25' setback. In previous projects we've seen where there have been violations of new setbacks, there have been some we have been able to support. This one we are not able to support just because it is such an egregious error. We find that it would be detrimental to leave this house in its location as far as the street-scape is concerned because it is noticeably different then some of the other houses in this neighborhood. When you're out there it is noticeably different. We would Board of Adjustment June 5, 2006 Page 44 be supportive of a 10' variance off of New Bridge Road and we would support this because this roadway was recently reclassified from a Residential Street to a Collector's Street, which expanded the right-of-way 10'. So, the other houses to the west of it are only setback 15' from the right-of-way. So, when we reclassified that, all those in that row are in 10' violation so we'd recommend allowing that. That basically summarizes our findings. We find it would be detrimental to the neighborhood and we're recommending removing the portions of the structure that encroach into the setback. And I'd be happy to answer any questions you might have. Nickle: Questions from the board for staff? Is the applicant present? Yes, sir. Baxter: My name is Jason Baxter. First I have agreed to pay for any moving of utilities necessary for them to be moved. I also want to point out that it shows here that they, staff, decided that there was not a special condition unique to this property or the end of that statement shows that there was, it says in staff writing, that this was a special condition unique to the property. That it is the last out on the block bordering a previous phase to a new phase where all the lots are set, or all the houses are set, like he said, with a 10' front because the road has been changed at that point and time. During aesthetics I went out and looking for construction of the home when I went out and presented the building permit to the City of Fayetteville, which I have built several houses in the Bridgeport subdivision and never had any issues, never have requested any type of variances, it hadn't been necessary to do it at all. I went ahead and submitted the building permit with a plat plan that described where my curb cuts were, you know, in my estimation, which was where I was pulling from, which was the curb and it showed that the curb had a 25' setback from there. The building permit or application was sub - sequentially approved. The building, pardon me, the planning I guess, engineering, all the different phases, Jeremy had said that there are a couple of things that should not have been approved. So, the system of checks and balances failed in this particular instance. However, if you take the difference and the difference in where the houses are on New Bridge, and how far off they're set, that 10' encroachment there makes the 17' encroachment be approximately 7'. And I have agreed that I have made mistakes in the past and trying to make it right by paying for any necessary movement of water lines or anything of that nature and I'm more then willing to concede that. However, I just feel that in this particular instance, the checks and balances, on whether or not the permit should have been granted, should have not been granted, this, for instance the sidewalk that I drew on here is incorrect. It should have been 15' off from the property line. I drew in 9' from the curb and it was subsequently past because that is one of the governing bodies that requires that that be past. They continue to allow this to be constructed. It seems to me that there is no way that anybody can go out and check on the process in the Planning Board of Adjustment June 5, 2006 Page 45 Division until an inspector brings it to their division or attention. In this particular instance, that was represented and that was, it's my contention that when the inspector comes out and looks at the location of the footage, looks at the location of the slab, continues the approval process during the new construction and the house is built to the point where it is almost a half, almost a full -built structure or half completed structure and then they request that I have it tore down and changed, I'm willing to go with all the obligations that the City of Fayetteville has requested that I do except for item 1. That's the only one that I don't think that I could manage. Because I'm a small guy I don't think that I could afford to tear it down. I'm not Big Man Brothers or a larger home builder I'm just a small home builder building custom homes for a gentleman who wants this house built and I think that in this instance our system failed and I'm willing to suck up my end of it. And pay to have stuff moved and get it all taken care of best I can, but at the same time I would ask that you guys review it and do your best to make a sound judgment. Nickle: Questions for the applicant? Zant: Did you happen to use the surveyor to lay this all out? Baxter: I made it myself sir. Zant: That's the problem. Nickle: Anyone else in the audience like to speak to this? Hanson: Yes, sir. My name is Pam Hanson and I'm the adjacent property owner to the west of the property. And he is correct in saying what he said also in about the structure has been there I guess since you got the permit, I guess in September. And it started out a beautiful home, I had no problem with the home myself. The only problem that I'm having now is that there are vandalism that are starting to take place. The house has been vandalized. The windows have been broken. I don't know if Mr. Baxter can say to - Baxter: That's right. Hanson. That's correct. I'm worried about safety issues with children. I've seen children over there, I've called the police department and also co - compliance to see what could be done. They told me that there was a stop - order on the house and they did come out and put some kind of a little plastic fence around which the doors are still open. I've seen children in there playing docks since they've done that, but previous to that. So, I'm very concerned. Any time a home sits for a long time, which you can see that this is already June, and I knows that the construction kind of stopped around Christmas time, correct me if I'm wrong. And it's going to be a Board of Adjustment June S, 2006 Page 46 beautiful home, I have to say. I have no problem with the home whatsoever. But my thing is that I would just like for the board to come to some kind of a conclusion to solve this, to get this done, because I am very concerned about what might happen in-between this time. So, your cooperation in doing whatever you have to do and I'm sorry that this is unfortunate for you that you're having to do all this, but has being a property owner next to this home I would like to see something done soon and get this problem resolved. Nickle: But you don't care whether we make him have to front off or finish it the way it is. Hanson: Well, I mean, I know that he's got to do what's got to be done with the cities and you know comply with that. And you know I feel sorry for him that he's going to have to do that but whatever has to be done to do this I'm just saying get on with it and do whatever he's going to have to do in order to get this thing taken care of. And I'm sure he'd agree to like to have something done so he can either finish the house, do what he's got to do, instead of just sitting there and going down and down and down. Chesser: So, again, I'm not reading from you an objection there to finishing it. You're not lodging a complaint with it being, you're just saying you want it resolved. Hanson: I want it resolved. I've got no problem with the home. It's going to be a beautiful compared with what I've already seen on the outside. [unclear]. Mostly, I'm concerned about the safety issues about this building being vacant. Nickle: Thank you. Other comments? Hagen: My name's Steve Hagen I'm also a home builder in the area and I'm not here on Jason's behalf or anyone else's, I actually, we're building a custom home down Purva Place, actually 2 doors down from his home and I actually wanted to just kind of see what this process was like, I hope I never end up in front of you guys with something like this. But I want to assure you that the folks we are building that home for built that lot knowing that house, I mean it's obvious where it sits you can't dispute that. They didn't even realize that it was out of compliance when they were looking for a subdivision for a lot to build on and the only way that they would knew that it was was when the stop order came up and you know the withers were all knocked down. So, I made a phone call to some people I just know in the city and someone informed me what was going on and so I guess I'm all I'm just saying is they're soon to be missed by the resident out there, which will be the only one on that street when we're finished out there. And they have no problem with it where it says they Board of Adjustment June S, 2006 Page 47 realized it was in the right-of-way then all the other houses were built. No body is even going to know that the home was in or outside of the right- of-way or anything. The only concern that they mentioned to me was that they're down for this home as far as water service and they're only hope is, they don't want the house to be torn down, they want it to be built, but they just wanted to be sure if there was a bust, just one in a million chance that there was a water break on that property, that the utility department can get in there and make that repair quickly just as if it was, it had all the cement easement that they needed to get in there and work. And it sounds like Mr. Baxter is willing to pay to have that moved and that tells me it's going to be moved out and away from that house, they would be able to access it and repair it. So, that being said, as a home builder that's gotten interested in that subdivision and for my client that is going to be building a house on that street there is no problem. And we'd just as soon let it stay and not chop it in half or cut it off because it's a nice looking home and no one is going to know you're out. Baxter: I've also spoke with the other utility companies and they've given me verbals stating that it's really, it's no issue with them. It's a non -issue. The main issue is with the water. And that's again, I'm willing to move that at my expense. Chesser: That's the City of Fayetteville. Baxter: Yes, sir. Chesser: But the city, but the Water Department is adamant. That's an expensive and that's a huge process. Garner: [inaudible] Chesser: No, I understand that part I'm saying that the Water Department is adamant that the water line must not be moved. Garner: No, the Water Department just said for the safety of the water line and the house they cannot be that close. Kohler: It can't stay as it is. Chesser: I understand that but the Water Department is not, the water line would be admittable to be moved Garner: Yeah, at their expense. Kohler: I got a couple of questions. I'm not going to even ask you how this could happen. This is the worst cast of setback encroachment that I think we've Board of Adjustment June S, 2006 Page 48 ever had and that's saying a lot. I'm not going to ask you that because obviously it was human error right? You were measuring from the back of the curb instead of the property line, right? Yeah. The other thing is it's not the responsibility of the building safety department to draw a, to survey a site, to verify placement of property, I mean they do do that and in this case it was so bad he noticed it. But you know if it's 2' off, you know the building department is not responsible for pulling a tape from a stake or from a property line to verify anything. So, blaming it on them is, you know, I guess you can do that but - Baxter: I was not trying to blame it on them I just felt as though it was a system error where - Kohler: Well, you know they could've let you finish your house and this same issue would've come up. So, that doesn't resonate. The only way that I, I'm going to propose a compromise because this could go on forever. I went out there today and it has been vandalized it looks awful. Because of the roof -lines, taking any part of the structure off the south side just is not reasonable. I'm not supportive of having you tear the house down. Even though I'd like for it to go away or to be in its proper place. I don't believe on the south side you can do that. On the east side, the way that gabble comes out you can remove that and I would be supportive of doing that, that would take you out of the easement. And you'd lose half of your garage but you could also put an accessory garage or a detached garage on the north side of the site I assume. There is plenty of space over there. Chesser: Especially now. Kohler: And now I don't know what that does to you cost wise, I'm not really, I'm not concerned about that really. But I think that would be, you know, within all reason short of tearing, you know, tearing the house down. I think, as far as I'm concerned, that would solve one of the setback issues. I'm still curious about what that sidewalk is going to do as it hits your driveway even though that won't be garage anymore under this proposal. You would have another curb cut on Purva. You know, I guess you'd gain some square footage inside the house if you'd convert that half of the garage, I don't know. Seemed to me that that would be something that, I mean I could live with that. In the last few months we've had egregious setback violations and we're getting sick of it. And you know, having someone take part of their structure down is not all that bad of a solution as a way to deal with the oversight or the lack of care in staking your site so, that's my - Chesser: Does the house have a crawl space? Ok, so moving it is impossible? Board of Adjustment June S, 2006 Page 49 Baxter: Well, I mean all I could do from the south in the front slab is re -block it I guess. I don't know, there's not a whole lot I can do. Kohler: No, there's nothing. Zant: Let me explore what would it cost to move water lines? I was kind of ball park curious as to - Baxter: I was estimating 27, 12 thousand dollars. Zant: And in your pursuits of your options, and I know what I'm about to speak may sound absurd, but I probably watched too many Mega -Mover things on the history channel. But I was just curious whether you had ever explored the option of finding a way to move the structure itself. Baxter: That's not possible. Chesser: That was the purpose of my crawl space question. If he's on slab it's not going to be possible to do. And I was thinking exactly along the same lines. Zant: Your smarter at construction then I am. I just wondered. Well - Chesser: Yeah and if he did... I don't think it's possible. Zant: It's unfortunate that even an apprentice carpenter in Austin measured twice before cutting once and this is egregious. I'm sure that in 3 states it's the worst I've seen. Hagen: My only concern with Mr. Kohler's suggestion, and I'll agree with him. You know I don't know how you could violate something that bad without knowing it but that's here or there from my stand point. But if someone who, again, who has got interested in building in that neighborhood, I think if he, I think if Jason were to chop that house up in any way shape or fashion, it would never look as good as if you don't make him do a thing to it and allow the variance. And what my concern is how that neighborhood looks when all the houses are up. And it's going to took better, because that's a corner home, it's going to look better when that neighborhood is completed if that house has not been chopped and modified, I mean obviously modified. And again I'm not excusing what Jason did I'm just trying to protect the rest of the subdivision and the people who are going to live there and architecture they can see because of Jason. To change the way the house looks and the expense of it then, you know, because a human may be might be less concerned with how the finished product looks as is to making it meet your guys compromise. I think the way it is Board of Adjustment June S, 2006 Page SO now it's going to look 100 times better then any kind of cut and pasting that anybody could do to the structure. Nickle: I guess I failed to close the public - Hagen: Sorry, I - Nickle: I did. That's my fault, but we do need to bring it back to the board at this time. Kohler: If you'd took at page 11, I guess, 11 of 16. You'll see what I'm talking about. Chesser: Yeah, I'm interested, I mean, Bob obviously wouldn't suggest this if he didn't think there was the aesthetic possibility. Kohler: Yeah, I mean there's a gable roof coming out right over that 2 car garage over the east and if he just cut that off, you know, it's not going to negatively impact the rest of the roof -line other then just the part you take off and he would create another gable there. And he would lose, you know, maybe he could do a 1 car garage. Chesser: Or just relocate it to the north, the 2 car to the north side. Is there a problem with the curb cut onto Purva? Is that possible? Garner: We would just have to review the distance between Jason's curb cuts but no. Chesser: Not as far as you know. Nickle: Let me ask this, I know we don't enforce covenants, but I'm assuming probably this subject is of covenants that might behoove us to be aware of in terms of the requirement for a 2 car garage. I'm going to guess that that's in there. The questions comes to me is it required to be attached or could it be attached? Baxter: Yes, sir. As far as I'm aware the requirements of the covenants is that it must be an attached garage and it must be a side entry on these custom homes. Chesser: It must be, oh I see. So, it could be either the front of the house facing east. Baxter: A 2 car garage. Board of Adjustment June S, 2006 Page 51 Kohler: Well, since you're on a corner you have 2 sides and 2 fronts, it could come up either way. You could just call the south side the front and I'm not trying to get into covenant enforcement. Nickle: And if you look at this, if you built one on the north side of the house and it came in you could still have a side entry it just wouldn't come in directly. Chesser: Is there enough space for that? Just including a turn out. Nickle: Just looking at it. Chesser: What about, what does the applicant think of that? Baxter: I'm thinking that in any event this gets passed, I'm probably not going to be the builder for the custom home buyer anyway. And so, whatever expenses is going to end up happening here, I think if you're going to change the structure of the home, anyway I'd be out of a job but I'd be held on for technical for moving it away. And it would be a great example for those who came after me. And the way in which I provided an inappropriate violation here. However, the same time I can only throw myself at your mercy and ask that you approve the variance. Chesser: So, because it's a custom home they're probably going to find that unacceptable and take you to court is what you're saying. Baxter: I'm pretty much thinking that that will be the process. Chesser: It's just really tough. It's a really tough situation because we don't want to, you know, force you to knock the house down, but as Bob said this is really egregious. Zant: With all of our talent on this board, it's really common I'm sure for our architect and for Bill to attempt, out of the goodness of their hearts to redesign at this level or suggest things, but the issue is probably do you want to grant the variances or not. Chesser: Yeah, it looks like it's coming down to that. Zant: And I have to say, and it's sad. I hate to be in this position, but I can't support the variances. Nickle: Does anyone want to make a motion? Board of Adjustment June S, 2006 Page 52 Kohler: I want to ask one question to the applicant. I read your letter and I guess in your attempt to try to salvage this you talked about the transition to phase 8. Baxter: The transition between phase 1 and phase 8, yes sir. Kohler: Right, and how does this house relate to phase 8 again. Baxter: It is the first house in that phase. Kohler: It's the first house in phase 8 and where will phase 8 go? It goes to the north or it goes to the south? Baxter: It goes to the east and it includes the cul-de-sac of Purva and the - Kohler: It goes to that dead end there. And how is this house going to be similar to phase 8? Baxter: It's going to be, well, the square footage requirements are what's similar to phase 8. However, the idea in the mind of the developer, I suppose, is that that house had a lower square footage and be kind of like a transitional home between phase 1 which was built 9 years ago and phase - Kohler: So, they get smaller as they get away from the center. Baxter: Yes, sir. And so this one was transitioning those, going to make it like a special situation for that one lot. All the other homes in there are a minimum square footage of 3,000. Kohler: And setbacks aren't going to change for phase 8? Baxter: For phase 8, you mean setbacks for - Kohler: Setbacks for houses. Required setbacks for houses on that street as it goes east. Are setbacks going to be any different along New Bridge to the west? Baxter: Yes, yes they are different. The original plan - Kohler: Oh, because of this, ok. But other than that, that there's no development code changes other than that for the rest of the subdivision, right? Baxter: For the rest of phase 8? Kohler: Yes. Baxter: I'm not aware of any. Board of Adjustment June S, 2006 Page 53 Garner: That's correct. Kohler: So, other then the square footage there's really no difference? Are lot sizes different? Baxter: Well, they vary as you would in any subdivision. They vary from - Kohler: They get smaller? Baxter: No, they get larger. This is, well, I think there is 1 or 2 in there that are well over an acre and I think that most of them are between one four seven and like maybe .68, that's what I would estimate. Kohler: I'm looking for reason to - Baxter: I really appreciate it. Chesser: I really, I tried to get out to the property so that I can to look at them and I did not get a chance to go this one. I'd sure like to look at it and see, you looked at it Bob, is it really far out of line with the other houses? You looked at it too? Kohler: I have to say that it is not as bad visually as what shows on this survey. I was expecting it to see, to be, after looking at this, I expected it to be a little closer, but this is just the property line. So, this is a little bit misleading because the curb line is, how far away from the property is the curb line, anybody know? 9'. Baxter: Yes, the reason it is like that is because the road there in the new phase is anticipated to widen at that point and my theory is I don't think they're ever really going to wide, there is no need for a turn lane because there is a cul-de-sac right there. And it is the last house on that block so, to widen just that one corner lot is the reason why the visual effects is ligated because of the fact that they had to further, I guess they set their pins farther off from the road in that particular - Kohler: See this EOP, Edge of Pavement, that's what we should be looking at not the property line. Chesser: Wait, which page here? Oh I see it. Yeah. Kohler: 9 of 16 Edge of Pavement, so I mean, it does not block, and I was thinking that it was going to block the corner from another car coming, and it doesn't do that. Board of Adjustment June S, 2006 Page 54 Chesser: So, there's no safety issues? Kohler: No, there's no safety issues. Chesser: Does staff concur that this may not be actually widened or do you have an opinion on that? Garner: To a Collector's Street? Chesser: That any lanes will be added or - Garner: I don't have an anticipation no, it is designated as a Collector's but no. Chesser: I'm going to feel uncomfortable, I mean I'm really torn on this because I, this is a major major mistake. However, I'm going to feel uncomfortable to make this guy tear his entire house down without looking at it. So, I would certainly at the very least would be in support of tabling it, and this is a personal, I would like to see it before I vote to seek somebody basically. I'm not moving to table it but I would like to discuss that possibility with the board. I know two of you have seen it and it's just how I feel. Nickle: The problem with tabling it is I see number 1 that - Chesser: Well, it's going to exacerbate this problem. That's true. Nickle: And, so, I feel like we kind of owe, and I don't know why it took so long to get here if the stock order was in January why it took so long to get to the Board of Adjustment, I don't know why that was, but apparently it did. So, I just, I feel like we, my personal feeling is we ought to go ahead and give them some sort of result. Kohler: How do you feel about cutting off that east side? Baxter: I said, I would be more then happy to investigate all avenues. I just have come up with the idea that the home owners will, will not go for that. That's just my opinion, I mean, but if the variance were to be granted and that's the only way it were to be granted then it would probably, it would probably move me to go along with it, because in the event that they told me they wanted to buy the house back out from them in order to get out from a law suit or something then that's all I could do and then I'd have to chop it in half and try to make it conform and all of that and then try to resell it, that's all I could do. Zant: These are very critical decisions to make. Ironically, I had a home right next door to me built 18' over the ordinance height requirement on the slope and there was some interpretive error and the fellow, it took nearly 2 Board of Adjustment June 5, 2006 Page 55 years to get it through the Board of Adjustment, but he was able to tear down parts of it and rebuild part of it and he got some partial variances from the Board of Adjustment to get the matter settled. But the process is designed ultimately to function long term. He has to weigh some other options perhaps, perhaps he can redesign. But I don't see, we're not going to solve anything as far as making this move along one way or another by delaying it any. Chesser: That's fair. How do you feel about Bob's suggestion? The compromise be made in chopping off the east side and then letting the applicant deal with the home owner, I mean, I feel like that's a compromise. It's not a happy compromise for you I understand, but it's better then us telling you go ahead and tear it down. Certainly I'd be happier with that personally, how do you, do feel like we should just hold the letter to the law here? Zant: See, in my experience I'm used to having, I don't like trying to redesign, and that's because of your talent, and your God given talents. Chesser: Well, it's Bob, Bob's the one with the architecture degree, I trust him. Zant: You've got civil engineering behind you and you've got more to reading a blueprint then I'll ever know, but I'm very used to making a decision based on the input of staff and all of the criteria that go into it. I resist trying to redesign something when we really don't have a good concept, at least I don't have one of how it might look and how it might impact the neighborhood in trying to do something like that. Chesser: Well, you might think of it as not so much as a redesign but merely as a compromise, we're going to give him one side and not the other. Zant: I feel more comfortable, regardless of what happens here I'll probably vote no on this issue. And I feel comfortable with that because I'm looking at what I'm looking at and my gut feeling is to do that. That's not the end of the world for the applicant. He can redesign and or come back with something altogether different and propose something that we might all feel comfortable with. Chesser: But again that's exacerbating the problem of the neighbors though. Zana Well, he doesn't have, he has a number of choices, but I have heard enough from the applicant at this juncture to feel that he has explored all of his options carefully. This is the easy option for him, but it's one that's [cut off from end of tape]. Perhaps others to swap. So, that's just my gut feeling. Chesser: I understand. Board of Adjustment June 5, 2006 Page 56 Nickle: Is the owner local? Baxter: Yes, sir, they are. That was the only two children that came in earlier today but she had two children and I had to tell her it would probably be a while because we were number 9 and I figured that it might be best for her. However, she did want to come in and speak. Nickle: Ok. Kohler: Really it wasn't so much a redesign as it was addressing this number 1 recommendation from staff and they talked about the 8' on the south and the 10' on the east on Purva place. So, what I'm recommending is just to go in favor of the variance and taking out this 8' along New Bridge Road, taking that out, but then leaving in the front 10' along Purva Place to be removed from the building setback. So, really it's not so much a redesign as it is just addressing those recommendations. Alt: So, you would be in favor of a variance to allow the 15' front building setback along New Bridge. Kohler: Right. Really to cut the baby in half. Nickle: Is that a motion? Kohler: Yes, I guess it is. Nickle: Alright, just be clear on that motion. Kohler: Yeah, I'll restate it. For lack of any other proposals I guess I'll move that for BOA 06-2102 we grant a variance for a 15' front building setback along New Bridge Road and we adhere to staff recommendations with exception of modifying recommendation number 1 that the front, just strike the front S' of the structure on New Bridge Road. Strike that from the recommendation and pick it up with front 10' on Purva Place shall be removed out of the building setback. Chesser: I, can you add to that, and I don't know if this is any, I mean obviously the water line has to be removed also. Kohler: No, it would not. Chesser: It would not? Kohler: It would not because it takes it out of the utility easement. This solves that problem. Board of Adjustment June S, 2006 Page 57 Chesser: This solves that problem? I'm sorry I am misunderstanding because it is only 7' from the water line on the south side. Nickle: I think that, I think that maybe we can't vacate an easement. Chesser: No, we're still required to - Kohler: It takes it out of the easement. It takes the structure out of the easement. Chesser: Even to the south is that correct? Nickle: It takes it out of the setback but that doesn't necessarily take it out of the easement. Kohler: I thought the easement and the setback were in the same line. Garner: The water line is on the east however there is an easement on both sides. So, the main concern is the east where the water line is. Chesser: The main concern is the east where the water line is not the south. Garner: Right. There is an easement on the south that would have to be vacated as well, however, that wasn't our main concern from the city's Water Sewage division. Because the water line is on the east. Chesser: So, I guess what I'm saying is, if the water line turned out it had to moved, it would, I would be more comfortable if you added that if it turned out that the water line did have to moved for any reason that it would fall on the shoulders of the applicant and he'd pay for that. Alt: Well in number 4 it does say that vacation of any easements shall be approved. Chesser: Ok, ok, fair. Alt: Prior to commencement of any construction. Nickle: But we can approve a setback variance but that does not change [Too many people talking at once]. Chesser: Ok, that's fine then. I just wanted to make sure, that's fine. Kohler: It does take it out of the east easement but not the south. Anyway. [Multiple People Talking] Board of Adjustment June 5, 2006 Page 58 Nickle: The water line if required by the city to be moved it had to moved at the owner's/builder's expense in order to go forward with the project. Garner: Yeah, I think that on number 3 we're covered. Chesser: Ok, I'm sorry. Nickle: We have a motion to approve BOA 06-2102 with staff conditions except for the condition 1, the first 11 words will be deleted. Garner: Mr. Chair. Nickle: Yes. Garner: Just to clarify the motion, the variance, instead of a 15' variance setback, if you want to leave the south side without have to remove it then it would actually be a 7' building setback on the south side. So, staff would be in favor of allowing a variance to out and then you were wanting to allow a 7' setback. Nickle: Yes. Got it clear in everyone's mind exactly what the motion was and did you second that? Chesser: That's fine with me and I would be willing to second that motion. Yes, I second that motion. Nickle: Alright, we have a motion and a second, further discussion? Kohler: Is that, was the motion clear about the T? Cause I said 15'. Chesser: You want it to be 15' or you want it to be 7'. Kohler: No, no. If you leave the house where it is it's actually a 7' setback. Chesser: And a 15' setback to the east. I'm sorry a 25' setback to the east. Kohler: 25' setback to the east, right. Chesser: So, that the 10' of the house must - Zant Mr. Chairman, could either of these gentlemen either restate the motion or would you like to — Nickle: I'll attempt to. Or did you know, did you follow that well enough? Board of Adjustment June 5, 2006 Page 59 Whitaker: I'm going to basically ask a question and see if that clarifies it with your leave. I think what to cut it down to its simplest essence is what you're basically doing is granting the request for the south setback, which would be a variance request of 18' leaving a setback of 7'. You are not granting the east setback which means it would just stay at 25' which is the law with the staff recommendations and language as amended. Kohler: Ok, I'll restate the motion as stated by [multiple people talking]. Nickle: I think that we're fairly clear on that now. Chesser: Will second that. Nickle: Alright, Andrew would you call roll please. Roll Call: The motion to approve BOA 06-2102 carries with a vote of 4-1-0.