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HomeMy WebLinkAbout2006-07-05 MinutesBoard ofAdjustment July 5, 2006 Page I MINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT A regular meeting of the Fayetteville Board of Adjustment was held on July 5, 2006, at 3:48 p.m. in Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS DISCUSSED ACTION TAKEN BOA 05-1788: (CHAMBERS, 485) Approved Page 3 BOA 06-2144: (CORRAL, 410) Approved Page 6 BOA 06-2145: (FOSTER, 400) Approved Page I I BOA 06-2146: (FLYING BURRITO, 252) Approved Page 14 BOA 06-2147: (SCULL CREEK APTS, 366) Approved Page 26 BOA 06-2148: (MANSFIELD, 484) Approved Page 29 Board ofAdjustment July 5, 2006 Page2 Sherrie Alt Robert Kohler William Chesser Bob Nickle STAFFPRESENT Jesse Fulcher David Whitaker MEMBERS ABSENT James Zant Eric Johnson Karen McSpadden STAFF ABSENT Suzanne Morgan Andrew Garner (Garner arrives later) Board ofAdjustment July 5, 2006 Page 3 BOA 05-1788 (CHAMBERS, 485): Submitted by JULIE & MATTHEW CHAMBERS for property located at 347 N. WILLOW. The property is zoned RSF-4, SINGLE FAMILY- 4 UNITS/ACRE and contains approximately 0.20 acres. The request is to bring an existing non -conforming structure into compliance in the RSF-4 Zoning District. Nickle: Let's start the July 5tb, 2006, meeting of the Fayetteville Board of Adjustment. First, we'll have BOA 05-1788 for property at 347 North Willow. And David, this was, I guess, tabled back in November, so do we need to - - Whitaker: You need a motion to take it off being tabled. Nickle: Okay. Could I have a motion to take this 05-1788 off the table? Motion: Kohler: So moved. Nickle: I have a motion. Is there a second? Alt: Second. Nickle: Will you call the roll, please? Roll Call: The motion to hear 05-1788 carries with a vote of 4-0-0. Zant, Johnson and MeSpadden are absent. Nickle: All right. Jesse, will you give us the staff report. Fulcher: As you discussed, this was an item we heard back in November. It was tabled at the time so that the applicant could go to the Planning Commission and to the City Council for a conditional use for a second dwelling unit, which was part of the proposal for that -- for a new garage, which would allow the second dwelling unit. Also, a rezoning request to an RSF-8, which would have cleared up the two items we have today, which is the tot width and the front setback encroachment, among other things. The Planning Commission did approve the second dwelling unit; however, the rezoning request RSF-8 was denied by the City Council. So they're still in RSF-4, their lot is still noncompliant, and the principal structure, the home, which was constructed in approximately 1910, is still encroaching into the front setback. So the applicant has requested that you go ahead and address those two items. Initially, we had made our findings for recommendation for approval. We've more or less restated those same findings, given the age that the structure was constructed and also the lot platted, that special conditions do exist on this property. And just to be Board ofAdjustment July 5, 2006 Page4 clear, as we've stated within our staff report, this variance is just for the principal structure and just for -- (inaudible) it has nothing to do with the garage. The previous request -- (inaudible) and some were approved, some were denied. It's just for those two items, and for those two items staff is recommending approval. Nickle: Thank you, Jesse. And other questions for staff from the board? Is the applicant present? Could you identify yourselt? Chambers: Julie Chambers. Nickle: Thank you. Any additional comments on the request? Chambers: I'd just like to make a correction for the background. Our house was built in 1870, to the best of our knowledge, not 1910. Nickle: All right. Very good. Comments from the public on this item? Seeing none, we'll bring it back to the board. Kohler: Yes, I've got a question. You said this is strictly for the main house. Why would we not address the garage in the nonconformance of the garage that sits over by the setback? Fulcher: We had somewhat discussed this somewhat before the meeting with the applicant. Mr. Nickle had the same question. Originally, we had addressed that for a new garage to be built in its place. The applicant has requested to use the same setbacks as currently exist for that garage, although the garage, from what I understand, is un -repairable and will be removed at some point or just remain as is. Kohler: Okay. Alt: Okay. Fulcher: So that's why we just didn't address the issue (inaudible). Chesser: So isn't RSF-8 for specifically the historic district? Fulcher: Yes -- Chesser: I guess we need to address why it wasn't -- Fulcher: Its purpose was to address historical plat (inaudible). Chesser: Okay. But that was denied zoning for one reason or another by -- Board ofAdjustment July 5, 2006 Page 5 Fulcher: For whatever reason, yes, it was denied. Kohler: Well, here we are with another existing noncompliant situation, and -- because the zoning laws were changed prior -- you know, after the construction of the house by almost a century. This is one of those things where, you know, I typically support the request and I think I would be supportive of it this time as well. Chesser: I would too. So I guess -- in the future I guess that the existing garage will just have to be in the RSF-4 setbacks -- Is that the rule? -- if they want to build a new one or whatever? Fulcher: Yes, if they want to build a new one, it will have to be set back to the RSF-4 zoning district, unless otherwise -- Chesser: Because you said that it was non -repairable or something -- Fulcher: From what I understand. Chesser: So we just don't need to worry about that part. Fulcher: Yes. (Andrew Garner enters the room at this time.) Motion: Kohler: I move that we approve this request. Chesser: Second. Nickle: A motion and a second. Further discussion? Will you call the roll? Roll Call: The motion to approve 05-1788 carries with a vote of 4-0-0. Zant, Johnson, and McSpadden are absent. Board ofAdjustment July 5, 2006 Page6 BOA 06-2144: (CORRAL, 410): Submitted by ALAN REID for property located at 1182 SUMMERSBY DRIVE. The property is zoned RSF-4, SINGLE FAMILY- 4 UNITS/ACRE and contains approximately 0.37 acres. The requirement is for a 25.0' setback. The request is for a 23' front setback (a variance of 2') to accommodate an existing roof overhang. Nickle: Next on our agenda is BOA 06-2144 for property located at 1182 SurnmersbyDrive. And Suzanne is not here. Whoisgoingto-- Garner: I'll take it. Nickle: Andrew? Thank you. Garner: The property is located at 1182 Summersby Drive. It was permitted with a 25 -foot front building setback and utility casement. And a survey conducted in December revealed that the footing of the structure was constructed approximately 2 feet into the setback. So they are requesting a variance as shown on Table I for 2 feet. It appears that the builder set the foundation in a location to comply with the requirements of the building permit; however, it's conceivable that when they measured they misjudged by a couple of feet and so they -- and/or they didn't take the roof overhang into consideration. As with other requests like this, it's -- staff doesn't support building new structures in building setbacks and violating a signed building permit. But due to this house has been completed and due to our precedent for these types of violations, we do find that a violation with about, you know, 1 1/2 feet of overhang wouldn't be detrimental to the neighborhood, and we don't find that it's appropriate to require them to remove it. So we are recommending approval of this variance with some standard conditions. Number 3 is referencing that they have to vacate the utility easement separately from this action, and that is before the Planning Commission coming up on Monday. So those are the main issues. We'll be happy to answer any questions. Nickle: Any questions from the Board for staff? It looks like it's fairly typical of what we do see. Is the applicant present? Could you identify yourself? Reid: My name is Alan Reid. I'm representing the Corral on this action. He got -- we had an appointment (inaudible) with the Monday night Planning Board. We have gotten approval from all the utility companies and the adjoining landowners. Nickle: Anyone from the public like to comment on this request? Seeing none, we'll bring it back to the Board for consideration. Board ofAdjustment July 5, 2006 Page 7 Kohler: How did this happen again? Reid: This was an error on the part of the construction company. They just put the footings too close to the setback, and then when they built the roof on, the overhang extended about a foot and a half into the utility easement building setback area. I'm not sure, but I don't believe that my client was the first one that actually had the house built. He bought it like that without a survey, and then when he bought it they wanted a survey, and then the survey revealed that he had bought a problem. So I think his intention was just to get it cleaned up now so that there will be no future problems with it. Chesser: So nothing we do will have any bearing on the utility easement? That will all be determined in -- Garner: Correct. Alt: And I believe that's in the staff recommendations for approval? Garner: Yeah. Motion: Alt: Well, Mr. Chair, I move that we approve the BOA 06-2144 with staff conditions. Chesser: I'll second. Nickle: We have a motion and a second. Any other discussion? Will you call the roll? Roll Call: The motion to approve BOA 06-2144 carries with a vote of 4-0-0. Zant, Johnson, and MeSpadden are absent. Nickle: Thank you. Garner: Mr. Chair. Nickle: Yes. Garner: I just wanted to bring to your attention. This Board did bring a draft ordinance requiring penalties for violations of this sort. It did go before the Ordinance Review Committee and the Ordinance Review Committee, on the advice of the city attorney, recommended that if the City is not able Board ofAdjustment July 5, 2006 Page8 to enforce payment of penalties for this, it's -- maybe Mr. Whitaker can expound on that. Whitaker: That's not quite accurate. Garner: Okay. Whitaker: The city has authority to do it -- already has the authority. Any violation of an ordinance, whether it's in the building code or in any other part of the code ordinance is enforceable in the district court under criminal law with all the protections that an accused is afforded there. Arkansas law does not, however, vest any such authority in this Board. Since the Board of Adjustment is a creature of state law, there is nothing the Council can do to overturn what the legislature has properly done. That's where we sit on that. Kohler: Can this Board make a recommendation to the Council? Whitaker: You certainly can. Kohler: Is there -- is there a procedure in place or could there be a procedure in place that would allow that to happen, for them to consider penalties of this kind? Because, you know, we've been known to make people take -- take the building out of the setback, and, you know, short of that, we'd like to be able to in a case like this, you know, not just -- you know, rubberstamp every request, you know, every violation of a setback comes through, but at the same time, sometimes it's not reasonable to make someone tear a building down because of it. So for there to be some middle ground, a penalty would be ideal. Whitaker: Just to clear it up. The state legislature would have to change the state law and grant this Board the authority to impose those kinds of penalties or sanctions. Kohler: But if we made a recommendation to the City Council, then they could do it? Whitaker: They could do what? Kohler: They could impose a penalty? Nickle: No. That's what he's saying, the Board of Adjustment is our -- we're governed by whatever the state said we could do. So the state legislature would be the only body that could give the Board of Adjustment the authority to -- Board ofAdjustment July 5, 2006 Page 9 Kohler: Make a recommendation? Nickle: No. To have a penalty like that. Chesser: But I think to clear up -- I think what Bob is asking, how does the penalty get assessed? Kohler: Yeah. The City Council -- Whitaker: If there were to be any penalty, it would be assessed by the district court judge upon a finding of guilt. Chesser: Okay. Kohler: So it's not the City Council. Chesser: So the city would actually have to take someone to court -- Whitaker: The City Council is without authority to impose any penalties as well, since the legislature has not vested them with that authority in the manner of setback violations. But as it stands now, any -- like I said before, any violation of any ordinance can be sent to the prosecutor's office for prosecution. Chesser: Now, who would bring that sort of -- who would bring those charges? Whitaker: Normally, what's happened with other similar things like it -- like code enforcement, sign violations -- it would be -- it comes from the division with primary responsibility. In this case it would be the Planning Commission -- the planning division forwarding a file over to the prosecutor's office. Chesser: Okay. Then can you answer a question about what it would cost us to proceed with something like that on each case? I'm getting the feeling that it would cost us more than we would be able to fine. Whitaker: I don't even know how I'm going to try -- (inaudible) a financial guess, but I can tell you this. In the grand scheme of things, I don't know how high on the priority list it would be for prosecutors. Chesser: Sure. Sure. Alt: So basically, you're saying that there's really nothing we can do as far as the -- Board ofAdjustment July 5, 2006 PagelO Whitaker: As far as -- Alt: Penalizing these people. Chesser: Well, we can always tell them to remove the building from the setback. Whitaker: You can call your state legislator -- Alt: Sure. Okay. Chesser: Yeah -- Whitaker: -- and attempt to get some sort of new -- a middle ground, as Mr. Kohler said, implemented through a statute -- Kohler: The most direct way -- Whitaker: -- barring that under the current state law -- Kohler: And the most direct way would be the legislature empowering this Board to do it on our own -- Whitaker: Amending the specific statute section that governs the Board of Adjustments in power and authority. Chesser: Now, that's not a constitutional right, that's just a state statute? Whitaker: The statute certainly -- the state certainly has the constitutional authority to legislate (inaudible) Chesser: I don't mean the U.S. Constitution, I mean the State Constitution -- and that's not part of the state constitution either. It's just a -- we wouldn't have to be doing major amending, it's just the statute. Whitaker: Just the statute. Nickle: Talk to your local legislator. Board ofAdjustment July 5, 2006 Page I I BOA 06-2145: (FOSTER, 400): Submitted by DAVE JORGENSEN for property located at W. OF RUPPLE RD., E. OF BELLWOOD PHASE 1. The property is zoned RSF- 1, RESIDENTIAL SINGLE FAMILY- I UNIT/ACRE and contains approximately 1.09 acres. The minimum lot are requirement I -acre. The request is to create a .97 acre lot (a 0.03 acre variance). Nickle: Okay. Next is BOA 06-2145 for property located at west of Rupple Road. Suzanne had that, so who is going to take that today? Fulcher: I guess I'm going to take that one. It's just a little over a I -acre tract. It actually fronts on Rupple Road and its rear property line is adjacent to Bellwood Phase 1, which is a subdivision that has a preliminary plat approval. They're in the process of putting in all the infrastructure and are expecting to submit for their final plat here in the next few months. Since that time they've acquired some property -- if you at Page 10 of 12 is the best view of what this request is -- they've acquired property, and the property we're talking about, the I -acre tract, and it is adjacent to Lots 9 and 10 of Bellwood Phase 1. What they would like do is adjust that property line, decreasing the subject parcel so that it's just under an acre, .97. That's really the request there. Since it's zoned RSF-1, it's required to be a I -acre tract. The purpose of this is twofold: one to create more logical lot dimensions for Lot 9 and 10. It also allows them -- they're actually able to create another lot, currently, between Lot 9 and 10, make that into three lots, except that they would be very oddly shaped. Allowing this adjustment of this property line will allow these lots to be configured in a rational manner and allow that third lot to be put in there. Of course, the consequence is that the RSF-I lot goes down below an acre by .03 acres. This tract here that is zoned RSF- I is part of larger pieces of properties that were part of the island annexation that the City Council brought in here a year, year and a half ago. All those were brought in as RSF-1. That's kind of the beginning of the problem. The applicants attempted to rezone this and some other properties adjacent to it to RSF-4 recently. That was denied at the Planning Commission. So they are right now routing a different type of development proposal towards this. I'm not exactly sure what that wift be, but it will not be the RSF-4 that they are going for. They were going to try to extend the subdivision, but the Planning Commission denied that request. So now they're left with this RSF-I property. They would like to adjust that to make a better configuration for the Bellwood Subdivision. Staff is in support of this based on it being brought in as RSF-I, which isn't quite typical. Typically, when properties are annexed in, they're brought in as RSF-4. The applicant did try to rezone it to RSF- 4, although was not able to do that, is now requesting minor variance of the lot area requirements, and staff is supportive of that request with two conditions of approval: One, Board ofAdjustment July 5, 2006 Page12 that the Planning Commission will actually have to review the final plat with this -- with the changed property boundaries in the additional lot. That has to be approved for -- you can approve the variance, but, of course, the Planning Commission doesn't approve the change in the subdivision layout. It's kind of voided. So that's Condition Number 1, just addressing that fact. Nickle: Questions for staff from the Board? Is the applicant present? Jorgensen: Yes, I'm here representing the applicant. My name is Dave Jorgensen. And as Jesse mentioned, the whole purpose is to straighten up that property line, make it a little bit more logical -- we thought more logical -- the property line along the southeast comer of what is currently Bellwood Subdivision Phase 1. That would be bringing that through as a final plat here in the next -- possibly, the next cycle. And in this lot line adjustment we discovered that we needed to have this variance request for the smaller less than I -acre lot, so that's the reason for this request. Nickle: It's a bulk variance, I take it, as opposed to a dimensional. Thank you. Anyone from the public like to speak to this request? Hearing none, we'll bring it back to the Board. Chesser: Just out of curiosity, would -- I mean, if you moved the line, I don't know, a foot, would that not keep you at an acre? I mean, I see where you've adjusted the line and I see why, to bring it in line with these other two -- with the -- what is this? -- north/south line on the eastern border. I mean, if you adjusted it over a foot, you would still be able to put in two lots -- I'm guessing that a foot would give you -- a foot over the entire width of that piece of property would give you the point -- that three -hundredths of an acre to make that a full acre and the problem be avoided. I'm not saying I'm going to be against this, I'm just curious -- Jorgensen: Yeah. Chesser: -- if you guys considered -- Jorgensen: That is possible, although we would still have that irregularity that's created down there in that comer, and that was one of the reasons for this. It's just to go ahead and extend the line straight down that same bearing and even that, cut it off and just making it more normal. Chesser: Sure. I mean, looking over this, I don't see -- my only hesitance -- hesitancy here, really, is that the Planning Commission denied rezoning the RSF-I in the first place. So I'm wondering if we're overstepping -- Board ofAdjustment July 5, 2006 Page 13 and I don't think we're overstepping our authority, necessarily, but I'm just wondering why they made that decision. Fulcher: Part of the -- from what I remember from the meeting -- was really related to the density. What they envisioned to be developed out there did not really go along with what they were envisioning as an RSF-4. They mentioned a commercial development and other items other than just your typical RSF-1. Chesser: Oh, okay. So they wanted to see it as (inaudible) or something instead of just (inaudible)? Fulcher: Yeah. It was really being (inaudible) density not causing (inaudible) Motion: Chesser: I feel like there's -- I mean, it's three -hundredths of an acre. I move that we approve BOA 06-2145 with staff recommendations. Alt: I second. Nickle: We have a motion and a second. Further discussion? Will you call the roll, Jesse? Roll Call: The motion to approve BOA 06-2145 carries with a vote of 4-0-0. Zant, Johnson, and McSpadden were absent. Jorgensen: Thank you. Board ofAdjustment July 5, 2006 Page14 BOA 06-2146: (FLYING BURRITO, 252): Submitted by KEY ARCHITECTURE, INC., for property located at 3196 NORTH COLLEGE AVENUE. The property is zoned C-2, THOROUGHFARE COMMERCIAL and contains approximately 0.55 acres. The requirement is for a 50' front setback. The request is for a 35' setback (a 15'variance) off of College Avenue, and a 47' setback (a 3' variance) off of Harold Street to bring an existing nonconforming building into conformity. The applicant also requests a 37' setback ( a 13'variance ) off of Harold Street to allow for a new 240 square foot addition for a drive-through window. Nickle: Next is BOA 06-2146 for property located at 3196 North College, and Andrew, you have that one, please. Garner: Yes, sir. This property is located at the existing Flying Burrito restaurant there at 3196 North College. It's at the comer of Harold Street. The property is in the C-2 Zoning District. And this building was built prior to current zoning regulations and the Master Street Plan right-of-way, which requires 55 feet from centerline along North College, and 35 feet from centerline along Harold Avenue. And Page 13 of your staff report shows a survey of the existing structure as it currently lies and it shows where the setbacks are. And they're requesting two variances. The first variance -- the first set of variances is for the existing structure to be brought into compliance. Those are listed in Table I there. The front setback is located 35 feet from the property line off of College, and off of Harold Street it's located 47 feet. So those are the variances for the existing structure. The applicant also proposes to build a 240 -square -foot addition on the north side of the structure for a drive-through window. And that is also shown there on Page 12, kind of hatched in where the new drive- through window would be. And they're requesting a variance to allow this. That would set this drive-through window at -- let's see -- 37 feet from the right-of-way, which would be a 13 -foot variance. Staffs findings found that the variances are appropriate for the existing structure. That area has changed and grown since the building was originally built. The Master Street Plan right-of-way has been designated as a principal arterial for College and a collector street along Harold, and we do find this appropriate to vary the setback for the existing structure. And for the new addition, we do find that this addition would increase the setback violation on the frontage on Harold Street, and Harold does not currently have the required amount of green space or landscaping between the building and the street. And the applicant does propose to add a landscape island adjacent to the street in front of the proposed drive-through window, and staff would recommend that the size of that landscape island be increased along the width of that building, and that would, therefore, allow that to have a reduced front building setback with no parking in front of the building. That would reduce their setback requirement to 25 feet, which Board ofAdjustment July 5, 2006 Page 15 would eliminate the need for a variance. And we do find that with those conditions we would be recommending approval of these variances as noted there on Page 1. In fact, for the new structure, if they added that additional landscape, there would not be a variance required at all. And I did talk to the applicant about this and they had stated that they didn't feel like they could do that, but I'll let them speak. That pretty much summarizes it. Nickle: If they did agree to do that they would still meet the parking requirements that we have in place? Garner: I believe so. We have to -- Nickle: I thought I saw that. Garner: We have to look at that as far as -- I didn't -- I haven't counted all the spaces. I'm sure what is exactly shared with this parcel, if there's -- you know, because I know it's the whole shopping center that, you know, has access easement throughout this parcel. But I think that, you know, we would definitely have to look at that. That would probably be a condition of approval that -- Kohler: I think -- I believe they're providing more than what's required. Garner: That was my impression too. I don't remember counting exactly if those two extra spaces would be taken out, what would be required of that. Kohler: I don't remember how many more. Nickle: Other questions for staff from the Board? Is the applicant present? McNeal: Yes. I'm Hannah McNeal. I'm with Key Architecture and actually have the guy -- the owners of Flying Burrito. I'm a little confused, so I need -- when Andrew called me. You're saying to eliminate two more parking spots. Where are those parking spots in relationship -- because I -- by what you had told me I thought you were trying to eliminate an additional five parking spots. So I don't know where you're wanting -- is it -- are you wanting us to landscape this entire -- along Harold? Garner: No. Just the portion in front of the structure. McNeal: Right here? That's what we're doing, though. We've already shown that on our application. When we applied for this, we're adding a new landscape bed directly in front of this application, in which we're eliminating three parking spots, so we are planning on adding landscape Board ofAdjustment July 5, 2006 Page16 directly in front of the drive-through, which then therefore -- the drive- through itself is not really asking for a variance, because our setback would only be 25 feet. The problem is the existing building is already -- with the parking opposite it, it doesn't meet the requirements. Does that make sense? Nickle: When you say "front of the building," we're talking about the College front; is that -- because that's -- McNeal: That's what -- Garner: I mean, the one we're mainly concerned with is the front on Harold. Nickle: Okay. Garner: This side has two fronts and they're proposing a drive-through on the frontage -- on the Harold Street frontage, and what we're recommending is that they extend this landscape island here, an additional approximately two and half to three spaces to provide no parking in front of the building - Chesser: On Harold. Garner: Right, on Harold. Chesser: Well, there are two spaces here. Garner: Right. Chesser: And you want it to extend all the way -- Garner: No, just to where I've hatched. Kohler: In order for it to be a 25 -foot -- Garner: For a reduced building setback, there cannot be any parking in front of the building at all. So they would just have to eliminate all the parking in front of the building. So that's basically what we're recommending. Nickle: Do you see what he's talking about? McNeal: If I understand right, he's saying that from -- this is a larger plan. We're providing this much landscape. Kohler: Yeah. Board ofAdjustment July 5, 2006 Page 17 McNeal: From here to here you want us to landscape? Nickle: Just to the end of the building -- to the end of College, right to there. McNeal: That building? Kohler: Right there, which will be three spaces. McNeal: Okay. I guess let me kind of say what I wanted to say, because I was a little -- I was a little confused. Brad, the building is actually almost 4,000 square feet. We had missed -- in the application we have it as just about almost 3,300 square feet. There actually is more -- there's about 1,300 square feet upstairs, which was put down incorrectly. We are -- we currently have 44 parking spaces on this site. We're eliminating seven of those parking -- seven, so we will have 37 parking spots available. We can be -- you know, we are supposed to provide one per 100 square foot for a restaurant. We will be under the parking requirements, but you can be 30 percent under and 30 percent above and meet the current code within the city. The second thing I'm going to point out is that on nonconforming parking lots, if you increase more -- 10 percent of your gross existing square footage, then, therefore, you have to bring 10 percent up to compliance. In this case, we are only adding less than 7 percent onto this building, and we are actually going to provide -- in our plan we're providing almost 1,500 square foot of new parking -- of landscape, sorry -- of landscape. Sorry. So, I mean, we're adding more than even what's allowed by code by upgrading the existing parking lot that's here, and we felt that by doing the parking -- the landscape along College in front of the building helps and that actually doing on this one part would help instead of -- if we have to add more, we're going to lose three more parking spots. And our intent is that the parking that's over there now, we have five parking spots that are over on this area along Harold. That is actually employee -type parking. That's not parking that any customers will use, based on this drive-through and how it works. So we would request that we get it approved as we have shown it on the plan and do the landscaping we've done. Chesser: So let me get this straight. If they were to increase the landscaping with three parking spaces, no variance would be required at all, correct? Garner: For the new structure, that's correct. Yeah, for the new addition. Chesser: But not -- but for the old structure it would still be slightly out of compliance -- the existing one? Board ofAdjustment July 5, 2006 Page 18 Garner: Yes. The existing building has variances off of both frontages. Nickle: If you look at the first table there, it shows that. Chesser: Yeah, right. Nickle: We have -- you know, just to bring it into compliance as is, that needs to be done, that Table 1. Chesser: I'm a little bit curious. I know this thing got converted to the Flying Burrito from an IHOP not too long ago. Was this not -- did this not come up then or why would this not have come up then when -- McNeal: Do you want me to answer that? Chesser: Sure. Audience: We weren't adding onto it. McNeal: Yeah -- Chesser: Because you weren't adding onto it? McNeal: Well, we weren't adding onto the -- we weren't adding on at all. And I have pictures from before. It had been an IHOP -- Chesser: Yeah, I guess that's true, since that -- McNeal: Then it had changed to Peppers and then we added onto this. This other thing that I'd like to say, is that the one thing that we're trying to do, we -- as part of the drawings they don't ask us -- ask you to submit elevations. I have pictures of the other side, and by adding this structure on, we're actually going to get to screen some existing air-conditioning units that are over to the side, which even -- and we're going to bring a fence to this parking lot -- to this side. So I have pictures that will show you what it looks like. I mean, we're trying to do everything we can that will really improve. I've got pictures of Peppers from before and what these guys did after we -- you know, made a -- they've made a business look great along College. It has -- I know from my business the -- what they have done has really affected people down the road in changing things. We feel like -- they're giving a lot more than what they have to by the ordinances. Kohler: I've got a question. The discrepancy that she mentioned in the square footages in the original application, is that something we need to worry about? Is that going to -- is that going to drag anything down? Board ofAdjustment July 5, 2006 Page 19 Garner: I think we would need to add condition of approval that -- I mean, we could add that prior to building permit, you know, parking requirements would be met, and we would review that in detail. You know, it's the first I've heard of it. I don't have a calculator with me to calculate it, but it sounds like they would -- from what they're proposing, they have enough parking, but I -- we would just have to run the numbers. Chesser: Did you say it was 4,000 square feet? McNeal: Well, the existing structure is 4,000. We're adding 240 square feet. So we're going to be, basically, 4,200 square feet. By code we're supposed to have one per 100, so that would be 42 spots. Kohler: 43 rather. Kohler: That's not something that we -- that's not something that we -- McNeal: But you're asking -- Kohler: -- are concerned about anyway. That's a Planning Commission issue. McNeal: But if I can't get approval for this as it is and you make the condition that we'll have to deal with the parking, then that doesn't make sense. Chesser: Well, I was just trying to figure out how many parking spaces you would be required to have. The 43 -- Kohler: That's not something that -- Chesser: 43 and 30 percent under is 12 minus -- you would only have to have 31 spaces, so -- McNeal: We'll have 32 parking spots with this addition now if we do not take out those additional three. Chesser: You'll have how many? McNeal: 32 -- 37. So okay. If we take out -- we have 37 and if we take the additional three to four -- three -- Chesser: Plus -- yeah, that would still be 34. Board ofAdjustment July 5, 2006 Page20 McNeal: We'll still meet 30 percent under. Restaurants, as you know, within this town, they are not allowed enough parking and we are always going in front of City Council and asking for variances on parking. Nickle: Yeah, I know. Most any restaurant that goes through the Planning Commission, they have to request a variance with our parking ordinance just because of the nature of their business, so -- Kohler: Even with the 30 percent? Nickle: Yeah. I can't -- can you all recall any new restaurant that hasn't requested additional parking? Garner: Most of them do, but, I mean, a lot of them sometimes, instead of requesting additional parking for their site, they get shared parking agreements. So this shopping center here -- I don't know what the owners talked about, but that might be a possibility as well, is get a parking agreement for 10 spaces or something. We've seen that as well. Nickle: Okay. Would anyone from the audience like to speak to this particular request? Seeing none, we'll bring that back to the Board. Kohler: Does this driveway here onto -- I mean, if -- if you do as the ordinance allows, which is landscape the entire front of that building on -- what street is this? McNeal: Harold. Kohler: -- Harold, wouldn't that cut off this entrance off of -- into Harold? Garner: Yes, it looks like it would. Chesser: Well, but they don't have to landscape it from the driveway, right? Garner: That's correct. Kohler: Oh, I see. So it's -- Chesser: So it's only that they have to landscape (inaudible). Kohler: So it just goes down to -- to the -- okay. So really what you're talking about is just those three -- I see. Chesser: Just those three spaces. So on this second part of the recommendations -- this is interesting, because you're recommending approval of a building Board ofAdjustment July 5, 2006 Page 21 setback, but you're saying that if they comply with this they won't be required to have a building setback? Garner: Right, right. Chesser: So you're not really requesting approval, you're -- Gamer: Again, -- Chesser: I know. I understand. I understand. So the first part is only -- Garner: Yeah -- Nickle: The applicant is requesting that -- if it's granted in accordance with the applicant's request, that variance would be needed. Chesser: Right, right. Nickle: If we pass it and say with that requirement of that additional landscaping, effective -- Chesser: Well, we would just not grant the variance? Nickle: Effectively -- well -- Gamer: If we turn it down, they would have to -- Alt: It would fall into the -- Chesser: I mean, we would be granting them a variance that they would no longer require if they met the conditions, so we would just not grant the variance and then they could meet the conditions. Alt: If no part of that is located, yeah. Chesser: We could do it that way. Nickle: If that's right. Does that compute correctly? Whitaker: The question is, would you rather have the parking or the green space? Chesser: Yeah. Whitaker: Two scenarios. You don't pass it, their only choice is the landscaping, because you didn't grant them the variance, or they decide the landscaping Board ofAdjustment July 5, 2006 Page22 is just a better idea and voluntarily choose it. Either one of those says there's no variance needed. But they are maintaining -- my understanding is they're maintaining their request that they be granted the variance -- Chesser: Right. Whitaker: -- in lieu of the -- Chesser: So if we -- did not meet the condition that staff asked for, but we granted the request, then they could build the landscaping as shown on this plan, keep their parking spaces, and we would have granted them a 13 -foot variance, right? Nickle: That's correct. Whitaker: That would be -- That's correct. McNeal: I guess I -- I want to ask something really quick, because this was something that was real important. If you do not grant the variance, I still need the existing building brought in, so I still need a (inaudible) -- Nickle: Yes. Chesser: Right -- (inaudible) this is in sort of two parts. So the first part -- McNeal: -- the first part -- I still need a 3 -foot (inaudible) this project may not go forward, I mean, so I need at least a base. Nickle: Table I is what Andrew is referencing on our agenda here, and that's the initial request. The second request would have to be with -- either the Board grants that 13 -foot variance on Harold with the landscaping as shown on your drawing or the Board does not grant that variance, in which case you would have the option to proceed with your plan, provided you meet that landscape requirement. McNeal: And I guess the thing that I was confused about is when we originally approached Planning, if we put parking directly in front of the addition, we were meeting parking in front of the addition. And so then the addition -- the addition we are trying to do -- the addition is not going be within the setback, because there's parking right there, and I guess it's a little -- it's confusing. I can be 3 feet in the building setback and that's okay, and I'm still giving you 15 foot of landscape, so that kind of -- is supposed to adjust my -- adjust our setbacks, but -- Board ofAdjustment July 5, 2006 Page 23 Chesser: Well, but you're not -- you're not at fault for the initial 3 feet that's out. I mean, that was an existing condition. McNeal: Right, but I still feet like we are -- we are meeting the new code. By providing 15 foot of landscape in front of this addition, we're not violating the code. Chesser: Well, it's interesting -- Nickle: Well, it's not just -- the addition is, I think, staff's point. The ordinance points out that you have to have that landscaping across the, quote, "front of the building." There's more to just the addition -- there's more to the front of the building than just the addition portion. McNeal: Right. Nickle: I mean, I personally have no problem with your request because I think it solves a whole lot of things. I like the idea that the -- you know, fencing off that area where you screen -- doing a lot of screening there, I think that's going to give that whole side of the building a much, much better look to it by doing things like that. And I can understand, you know, having employee parking, you know, maybe you might want to address that with a little "Employee Only" parking, something like that. But I think that's what the Board needs to consider now. Kohler: Yeah, I think if this was anything other than a restaurant, I would not be in favor of sacrificing green space for parking, but since it is a restaurant and since parking is a problem at restaurants, I think in this case the parking would be better. But it wouldn't break my heart if you all decide to voluntarily green that in. So I think I would support it as well. Alt: I agree. Nickle: A motion? Kohler: Yeah. I move to approve BOA 06-2146 with the staff recommendations, both -- both components of the request. One, to bring the existing building into compliance, and two, to allow an addition on the north side of the building within the existing setback. Chesser: I have a question about that, though. Because if you take the staffs -- second -- first recommendation of the second part, then that will require them to put in that green space and I didn't think that that was -- Board ofAdjustment July 5, 2006 Page24 Nickle: I think what you -- your intention was to just approve it with Number 1, Number 2, and Number 3. Garner: Yes. Nickle: I believe, and grant the request for -- as it's shown on Page -- what page is that? -- 12 of the application. That's their drawing, if you look at Page 12. Alt: Yes. Kohler: Right. Nickle: Is that your intent? Kohler: Yes. So really this is -- this is misleading the way it's worded here. Because if you go with the Number I recommendation, you wouldn't need the approval -- I mean, the variance. Chesser: That's right. So we can give them the variance, ignoring Number 1, the second Table -- Kohler: Yes, yes. Chesser: -- of the staff s recommendations? Motion: Kohler: Yes. So I move that we -- that we approve it based on the first three recommendations, which brings the nonconforming structure into compliance, as well as a -- the request for the addition as drawn on Page 9 of 16 -- Nickle: 12. Kohler: -- 12 of 16. Nickle: Is that clear, what we're trying to accomplish there? Garner: Yes, yes. Nickle: Okay. Chesser: And ignoring staff s recommendation -- Nickle: In that respect, though. Board ofAdjustment July 5, 2006 Page 25 Kohler: Yeah, right. Nickle: So we have a motion? Alt: Second. Nickle: A second. Further discussion? Would you call the roll, Jesse? Roll Call: The motion to approve BOA 06-2146 carries with a vote of 4-0-0. Zant, Johnson, and McSpadden are absent. Nickle: Thank you. Board ofAdjustment July 5, 2006 Page26 BOA 06-2147: (SCULL CREEK APTS, 366): Submitted by BRANDON BARBER H & B VENTURES, LLC., for property located at ASH STREET, EAST OF LEVERETT AVENUE. The property is zoned RMF -40 AND 1-1, HEAVY COMMERCIAL/LIGHT INDUST., and contains approximately 1.66 acres. The requirement is for a 90' lot width. The request is for a reduced lot width/street frontage of 40'(a 50'variance). Nickle: All right. BOA 06-2147 for property -- well, Scull Creek Apartments, the property located at Ash Street, east of Leverett, and Andrew, you have that one. Garner: Yes, sir. This property was approved by the Planning Commission for development of 15 multifamily units in July 2005, and as part of that approval the Planning Commission approved a waiver to allow for Ash Street to only be improved to 40 feet, when it was required to be improved to 90 feet. And so the variance -- they also -- this also requires approval from the Board of Adjustment to allow a variance of that required lot width for development of a multifamily development on this lot. And so that's shown in Table 2, their variance request, and lot width and street frontage are tied together, so that's what that reference is, is that when you're required to have 90 feet of lot width in our zoning code, that also means there has to be 90 feet of improved street frontage, and so that's what their variance is for. And staff does recommend in favor of this request. We found that the large-scale development process, when we were reviewing it, that we didn't find that Ash Street was intended to be connected over Scull Creek at any foreseeable time in the near future. That's why we recommended that the large-scale development be approved, and we found that -- you know, they could improve Ash Street to 90 feet and build it all the way out to 90 feet, but it wouldn't be reasonable and it wouldn't -- we didn't feel like it would connect anywhere. So that's why we're recommending approval, and we don't find that it would detrimental to the neighborhood, and we don't find that it would be a special privilege for these developers in the fact that it's just an unusual lot with a flood plain in the street that we don't find that would go through. So we're recommending approval. Nickle: Thank you, Andrew. Questions from the Board for staff on this? Is the applicant present? Scott: Yes, sir. Art Scott, with Project Design Consultants, representing Barber. I'm here to answer any questions. I think Andrew covered it pretty well. Nickle: Okay. Thank you. Would anyone from the public like to speak? Yes, ma'am, if you identify yourself. Board ofAdjustment July 5, 2006 Page 27 Hart: Yes. Hi, Mr. Nickle, I'm Patty Hart. My husband and I are the neighbors directly to the north of the property, and I'm here as wearing two hats. Looking at the big picture overall, if I get on my soapbox as a taxpayer, we're going to be asked very soon to approve, vote yes to approve some road plans and trail money for the city. And I just don't want, you know, two to five years down the road we go, "Oh, look, we've got Scull Creek Apartments, we've got the Skate World Apartments. Both of these are dead ends, we have a lot of traffic. I guess the city is going to have to bite the bullet and build a bridge and taxpayers are going to pay for it." That's the only thing I'm saying. Don't forget that. As a neighbor, the builder has been really nice, you know, work -- letting us watch the tractors and everything work. I've got no problem with it and neither does my husband. All right. So I'm off my soapbox. Nickle: I'm sure most taxpayers would feel the same way. Any other -- Hart: It's just the growth of Fayetteville -- Nickle: Right. Hart: -- happening so fast. Nickle: Thank you. Chesser: Can you speak a little more to that? You're saying you don't think that bridge is going to be built? Garner: That was -- that was what we've been told from our Engineering Division reviewing it, and when we looked at the large-scale development we didn't find that it was feasible -- or reasonable at this time, so -- Nickle: And the bulk of the expense would not be paid in that 90 feet -- Chesser: That's right. Building a bridge anyway, so -- Nickle: It's going to be building a bridge. Alt: Yeah, exactly. Nickle: All right. If there's no more public comments, we'll bring it back to the Board for consideration. Board ofAdjustment July 5, 2006 Page28 Kohler: Well, really, no matter what is ever built there, as long as that piece of property is developed and as long as it's out of the flood zone, that's going to be a driveway right there. Nickle: Effectively, yes. Kohler: Because the city always requires there to be -- well, that's the only entrance -- Nickle: That's your ingress/egress. Kohler: So -- Alt: And I see where the Planning Commission -- didn't they determine in favor of the condition? Garner: Right. Motion: Alt: Well, Mr. Chair, I move that we approve BOA 06-2147 with staff s recommendations of approval with Conditions I and 2. Chesser: Second. Nickle: We have a motion and a second. Further discussion? Would you call the roll, please? Roll Call: The motion to approve BOA 06-2147 carries with a vote of 4-0-0. Zant, Johnson, and McSpadden are absent. Board ofAdjustment July 5, 2006 Page 29 BOA 05-2148: (MANSFIELD, 484): Submitted by LAURA KELLY for property located at 330 N. WEST. The property is zoned C-3, THOROUGHFARE COMMERCIAL and contains approximately 0.14 acres. The requirement is for a 5' setback. The request is for a 0' front setback ( a 5' variance ) on West Avenue and a 2' setback ( a 3' variance ) on Watson Street. Nickle: Okay. BOA 05-2148 for property located at 330 North West. And Jesse, you have that one. Fulcher: You bet. Before I get started, I think a couple of site plans and surveys they have will help explain some of this. Page I I of 16 is a current survey. It shows the approximate location of the building there. And also, if you see right where the words "Watson Street" are, the "W' in street, there's a vertical lot line, a north/south lot line, with a "60 foot" mark next to it. That's the approximate location of the existing building nearly being in the right-of-way, and that's -- I'll speak about that within the report. The next page, Page 12 of 16, is their proposed site plan showing a variance request for a zero setback on West Street and a 3 -foot variance request on Watson Street. Then on Page 14 of 16 it actually shows you the existing building and you can actually see the awnings that will be discussed with this variance request. And that's really what -- what the applicants are requesting here, is we have an existing structure built around 1930, obviously before current zoning regulations, Master Street Plan which was adopted, and actually within the downtown the Master Plan zone has been changed to an ST- 48 and ST -30 for Watson Street and West Street, respectively. The structure is currently on Watson Street, nearly within the Master Street Plan right-of-way. And on West Street, it's only 2 feet -- or just outside of the Master Street Plan right-of-way. The applicants are requesting variances so that they can add these steel awnings to each front of this building, which would result in a 0 -foot setback or for a 5 -foot variance on West Street, a 2 -foot setback, a 3 -foot variance on Watson Street, to allow the existing structure -- to bring that into compliance there along Watson Street. The staff looked at this. Obviously, I think this falls in the vision that we have of the downtown area. Given the location of the structure, the ability to construct any type of pergolas or outdoor areas, awnings, anything for pedestrian -friendly environment can't be done because of the location of the structure. I think that's one of the things that the staff, the City Council, the Planning Commission, are all trying to make a big part of the downtown area in having pedestrian -friendly environments, and that is what the applicants are trying to do in this case. Based on that, I think that this request is -- falls -- is in keeping with the overall character and harmony of the property of the downtown area and with the intent of our ordinances, and ordinances that are currently under review by City Council. With that, Board ofAdjustment July 5, 2006 Page30 staff is recommending approval of the request. Condition Number I -- I was told that the applicant is aware of Condition Number 1, but I want to verify that -- and that is the requirement that the sidewalk be reconstructed along West Street Avenue, just in that location, given that the structures will be located at the Master Street Plan right-of-way, which is where the sidewalks are located, and if this is constructed and then the city has to go back in at a later time, that can be problem, given these poles being right next to there. So we're asking the applicant to do that now, given the impact that this will have on West Street. We're not requesting that on Watson Street. It would not be proportional to have two streets reconstructed, have two sidewalks reconstructed. Also, they will not be impacting or be as close to the right-of-way on Watson Street. And also, the uncertain future of Watson Street and exactly how the city plans to address the flow and the sidewalk situation on Watson Street. Condition Number 2 is that the variances will apply to the existing structure as is, the current building, the two awnings on West and Watson, and in no such case, shall any awnings, temporary structures, permanent structures be located or extended into the right-of-way, unless otherwise approved by the City Council. The other two conditions are standard, and that's all we have. Nickle: Questions for staff on this request? Board? I have a question on the Watson Street side. Is that sidewalk -- is that considered a public sidewalk right-of-way or -- Fulcher: It's a public right-of-way there. I don't -- maybe the sidewalk does go all the way up, although it's not in very good condition. It's kind of uneven and broken as it meanders up the street to the east there, but it is a public right-of-way. Nickle: Okay. Kohler: Is the applicant willing to provide those -- the sidewalk? Nickle: Is the applicant present? Kelly: Hi. I'm Laura Kelly and I'm representing (inaudible). And I was not able to find the staff report until today when I went into Planning, so -- and the owner is out of town. So his original intention is to maintain adequate distance between the overhang, which is what we're really worried about, and the actual footings for the poles and not interfere with the sidewalk and leave it be as is. So I'm a little unsure as to whether or not the owner is willing to accept staff recommendations, but it's a short distance of right-of-way and I'm pretty sure it could be sold. I just -- you know, I'm - - I guess I'm in position of responsibility for trying to make that -- I would Board ofAdjustment July 5, 2006 Page 31 rather not have to declare that today, and leave it to the best judgment of the owner. Kohler: Should we table this until the -- Kelly: No, I'm sure he does not want to table it. I would rather put my name on the -- on the line. Chesser: You're betting he would pay for the sidewalk? Kelly: I am. Nickle: Any comments from the public on this particular request? Seeing none, we'll bring it back to the Board for consideration. Chesser: I feel like this is appropriate. Alt: I agree. Chesser: (inaudible) Alt: I think it will be a great improvement. Motion: Chesser: All right. I move that we approve BOA 05-2148, with all staff recommendations. Alt: Second. Nickle: We have amotion and a second. Further discussion? Wouldyoucallthe roll, Jesse? Roll Call: The motion to approve BOA 05-2148 carries with a vote of 4-0-0. Zant, Johnson, and McSpadden are absent. Nickle: Thank you for coming in on this off -regular day. I believe we're adjourned. The meeting was adjourned at 4:45 p.m.