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Home My WebLink About2007-02-05 MinutesBoard of Adjustment February 05, 2007 Page I of 73 MINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT A regular meeting of the Board of Adjustment was held on February 5, 2007 at 3:45 p.m. in Room 111 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS DISCUSSED ACTION TAKEN BOA 07-2411: (OWENS, 447) Tabled Page 3 BOA 07-2443: (BOZARTH, 527) Denied Page 8 BOA 07-2440: (CENTRAL UNITED METHODIST, 484) Approved Page 15 BOA 07-2444: (EICHMANN, 444) Approved Page 26 BOA 07-2445: (FIVE WEST MOUNTAIN, 523) Approved Page 37 BOA 07-2446: (LOVING CHOICES, 522) Approved Page 41 BOA 07-2447: (KAMINSKY, 522) Approved Page 45 BOA 07-2448: (SHIREMAN, 409) Approved Page 48 BOA 07-2449: (NOCK-BROYLES LAND DEV LLC, 284) Approved Page 53 BOA 07-2450: (WM. LINDSEY, 596) Denied Page 58 BOA 07-2451: (CABERNET/DE NOBLE, 493) Approved Page 72 Board of Adjustment February 05, 2007 Page 2 of 73 MEMBERS PRESENT James Zant Bob Nickle William Chesser Sherrie Alt MEMBERS ABSENT Robert Kohler Eric Johnson STAFF PRESENT STAFF ABSENT Suzanne Morgan Andrew Garner Jesse Fulcher David Whitaker Nickle: I think our first Item on the Agenda will be the approval of the October 2, 2006 minutes. You have all had a chance to review those? Any corrections, additions? Motion: Chesser: I move that we accept the minutes of the October 2, 2006 Board Meeting. Nickle: We have a motion for approval. Alt: Second. Nickle: And other discussion? Would you call the roll please? Roll call: The motion to approve October 2, 2006 minutes carries with a vote of 4-0-0. Board of Adjustment February 05, 2007 Page 3 of 73 BOA 06-2411 (OWENS, 447): Submitted by SCOTT & CARLA OWENS for property located at 718 N. CREST DRIVE. The property is zoned RSF-4, SINGLE FAMILY - 4 UNITS/ACRE and contains approximately 0.47 acres. The request is for a 7' rear setback (an 8' variance) in order to construct a new 600 square foot detached studio/workshop. Nickle: The first item on our Agenda is BOA 06-2411 for property located at 718 N. Crest Drive. Andrew? Garner: Yes. This item was tabled at our January 2, 2007 meeting because the applicant was not present. I have to make sure that the applicant is present today. Ok. This property is 718 N. Crest Drive. It is located within the RSF-4 zoning district. They have already been in twice with their zoning regulations. Crest Drive is located on Mr. Sequoyah and is inside the Hillside/Hilltop Overlay District. A 2,488 sq It house was constructed in 1996 compliant with all required building setbacks. The variance request before you today is for a 7ft rear building setback in order to allow the applicant to construct a new 600sq ft detached workshop and studio. A total of approximately 240 sq ft of the structure would encroach 8ft within the rear building setback. The variance would allow a 7ft rear building setback where 15ft is required. And that is listed there on table 1 of your staff report. The surrounding land use and zoning is all single family dwellings within the RSF-4 zoning district. In finding number 1, staff finds that special conditions do not exist for this property related to the rear building setback. As a whole this lot is of sufficient width and area to develop the construction of a single family dwelling, which has occurred. It has been under use as a single family dwelling since 1996. That the owner wants to construct a new 600sq ft workshop/studio is not a special condition of the property that warrants granting a variance. Should other new developments be proposed in the same zoning district or on the same street they would be required to conform to the 15ft rear building setback as does the subject property. Encroachment of a new, nonconforming workshop or studio on this lot would not be consistent with the intent of the city's zoning regulations to prevent and discourage nonconforming uses and structures. Finding number 2, staff finds that little interpretation of zoning regulations regarding the rear building setback would not deprive the applicant of rights deprived by other property in the same district that could still enjoy this property as a single family dwelling. So with that we are recommending denial. I will be glad to answer any questions you might have. Nickle: Questions from the Board for staff on this? Zant: In your discussions with the applicant was it made clear, and I'm sure you had discussions along the lines.... He had other options did he not? As far as location of the building? Board of Adjustment February 05, 2007 Page 4 of 73 Garner: I realty didn't have those discussions with him. I think we just talked to him about the variance request in general and what would be required for the application. I don't think anyone gave an indication that we would support the variance. We typically do recommend that if there is any other place on the property he could put a structure like this we would recommend that. Zant: We will discuss that directly with him when the time is appropriate. Nickle: Would the applicant like to speak to that? And identify yourself. Owens: Yeah, I'm Scott Owens. I am the owner. There was no communication made to me whatsoever. This is the first I have heard about this. I apologize for not being here last month. I did not know that I had to be here. As far as other locations, I would like to build this to match my home. I have got an architect hired to design it just like my home. And the way my driveway goes up and curves up the hillside, the way I want this 7ft variance is when I back out of my driveway then I will have enough room that I can still back up and still have it back down the driveway. As far as the other option, the only other option I see.... My area is half an acre. The majority of that, the big majority of that is in the front yard. In the back it is a hillside, and I just don't see how. I don't want this thing right up against my backyard. This area that I am looking at would make much more common sense as far as building it there. Owens: It is really sloped. I'm Carla Owens. It is really sloped in our back yard and because of most of the land being up front we don't have very much room with the sloping of yard there. But where our driveway is, it is just dirt right there where it ends. It is pretty well flat right there and that would be the easiest spot to put it and not have it interfere. There are no trees. Zant: I think you can understand that as a Commission dealing with variances we are supposed to have some degree of justifiable cause to grant an exception to our ordinances. And we are looking here at one that, and we will continue to discuss this, but we want to make sure that this just isn't a matter of convenience to you. Because then we have to interpret that as a self-imposed hardship and I need a little more confidence in that to look at it differently than I am now. Owens: Well, I would not want to build a building that had to just be shoved in an area that would depreciate the value of that home. I still have to get up my driveway and don't want to be able to.... I need to be able to back out of my driveway without going down it one way down the hillside. Board of Adjustment February 05, 2007 Page 5 of 73 Zant: You have a beautiful home. It has been a real... In fact I fought my way up there on your snowy road on Friday to observe it. Gorgeous property. I'm just not 100% certain myself whether you absolutely have to build into that setback? Owens: You asked about other options. What other options do you see on that property for building a shop? Zant: I don't, and I am dealing with the staff report that says that you may have other options. I wonder if staff wants to comment any further in that regard? I have a hard time being able to see because... Owens: It is. It is up the hill! Owens: Our driveway is really sloped high. Owens: There was a limit to how much I wanted to deal with that snowy road of yours. Nickle: Yeah, I agree. Zant: So, Andrew, do you have anything further in that regard that you can...? Garner: Well, the main finding that I made was that the property exists in its current state. It has been used as a single family dwelling by right. It functions properly and has adequate size to function as a single-family dwelling. But that is the use by right. Zant It is a beautiful home. Garner: Just the fact that they want to add a 600sq It detached structure onto their lot that is not justification for a variance. Just because they can't squeeze it on there outside of the setbacks is not something that we found justified greatly the variance. I haven't gone and tried to redesign it or fit it on the topography or anything like that. That measure of detail, as he said, if he put it right behind the house. You could potentially put it right adjacent to the back of your house. It wouldn't be detached. You could probably put some sort of addition back there for additional square feet. It would be within the setback. If you needed some extra work space or something like that. But it doesn't sound like that is something they want to do. Nickle: Bill, did you happen to be able to get up where you can see this? Chesser: I didn't. Unfortunately. But looking at the overhead my initial reaction would be Board of Adjustment February 05, 2007 Page 6 of 73 similar to Andrew's. Let me say that I typically support the ability to build out - buildings within the setbacks, but that is not currently allowed by City Ordinance. I think if Bob were here he would have something to say about this also. Owens: I think the main problem is that it is not showing the slope on that for you to be able to see that there is not much room there. Owens: Can I ask this? Can we postpone this until you guys come out there and actually see what I am talking about and carry this into next month or whatever? Zant: I wouldn't have a problem with that. Nickle: That is better than having it tonight. Zant Based on what we have seen thus far, I don't see that we've got a lot of choice. It would appear that there is plenty of room from what we have seen. Owens: And that is what I am disagreeing with. Chesser: Well, what you have to understand is that even if there were not room, it doesn't necessarily grant us the ability to let you build inside the setback. It may be the case that the property, and I think this is what Andrew is saying and you can correct me if I am wrong. It is zoned RSF-4 which is intended for single-family and it is meeting that use. Changing the rules in order to allow it to be a secondary use, well I would probably agree with you typically. It is the kind of thing that I would want to have myself, and as I said I tend to support the idea of buildings in the setbacks. The fact of the matter is, at this point due to ordinance we can't make this kind of exception for one person based on this kind of finding without good reason to do so. Now, that said, since it was snowy and I wasn't able to go up there, I would not have any problem with tabling to take a second look at it. But I wouldn't promise that that would be able to change my mind in any way either. Zant: If we had better photographs, and actually could come onto your property and observe it might give us an indication that you do have sufficient and significant hardship to where we can justify this. But without justification we are really not supposed to... Owens: I understand that completely. Nickle: We can consider a motion to table if you all want to, but before we do I'd want to ask if there were any folks present who would like to speak to this particular Board of Adjustment February 05, 2007 Page 7 of 73 application. It doesn't look like there are. Chesser: I'm also going to have to say that even if I come out, I tend to support building into the hillside which is a little bit unusual. I am automatically going to agree that it couldn't be built elsewhere. But I would be happy to... As I said, there was snow and I actually did not have Mr. Zant's courage. Zant: Daring? Chesser: I wasn't going to put it that way, but if you want to call me a coward that's cool. Owens: That brings up another very good reason. As far as when there is snow, you don't want to go down that driveway backwards sliding. You want to be able to come out of your garage back up and drive down your driveway to the street. Zant: I did some of that Wednesday. Bill do you want to? Or I will. Chesser: Well, it was your proposal, go ahead. Motion: Zant: I will make a motion that we table until our regularly scheduled meeting of March 5. BOA 06-2411. Chesser: Second. Nickle: Ok. We have a motion and a second to table. I don't think we have any discussion when it is a motion to table, so if you will go ahead and call the roll? Whitaker: Technically you could since you are tabling to a date certain. Nickle: Any discussion? Otherwise call the roll. Roll Call: The motion to table BOA 06-2411 carries with a vote of 4-0-0. Board of Adjustment February 05, 2007 Page 8 of 73 BOA 00-2443 (BOZARTH, 527): Submitted by LEON M. & ELAINE A. BOZARTH for property located at 2761 TRAVIS LANE. The property is zoned RSF-4, SINGLE FAMILY - 4 UNITS/ACRE and contains approximately 0.29 acres. The requirement is a 25' front setback and an 8' side setback. The request is for a 7' front setback (an 18' variance) and a 2' side setback (a 6' variance). Nickle: Next is BOA 07-2443 for property located at 2761 Travis Lane. Jesse I think you have that report for us? Fulcher: I will run back through the staff report. It looks somewhat familiar. I think we covered some of the background when this item was heard back in 2005, early 2006. This was a carport that was put on the property without a building permit. The property owner contends that he was unaware that the building permit was required. When the Building Safety Inspector sent him a letter he did apply for a variance for the front setbacks and side setbacks. He was before the Board of Adjustment on December 5, 2005 and was denied. After that he did go to the Circuit Court of Washington County to appeal that decision by the Board of Adjustment, but later did drop that appeal. I think he has now brought forth a modified request in which I have tried to illustrate with some of the photos that are attached. We have attached photos from the 2005 request and also from the last few months. What I have tried to illustrate is that the carport is in the same location but what he has done is remove the front portion of that carport which has reduced the encroachment into the front setback. The applicant has requested the setback variance of 2011, which is a 5ft setback and a 611 variance on the side of the property line for a 211 setback. Staff did recommend denial originally of this request finding that special conditions and the other requirements of our staff report could not be found. Again, within this staff report, while the amount of encroachment has been reduced, ultimately somewhat like the past request this is a platted lot. It was platted in the 1990's. The home was built within the building setbacks. It is well over an 8,000 square foot lot, ample room to locate a carport. Really getting to the carport is, I believe, one of the difficulties on this property. That is if you located the carport in the back yard the amount of room left at the sides of the house.... Also there is a pool and privacy fence which kind of inhibits a vehicle to get to the back yard. Both of those were choices made by the builder and the homeowner since that time. Staff does not find that those are special conditions. Obviously the resulting actions are from that applicant and placing the building before receiving a building permit. Staff could have given better direction about where to locate that building. Staff is recommending denial of this request. Nickle: Thank you Jesse. Any questions from the Board for staff on this? If not, is the owner present? Board of Adjustment February 05, 2007 Page 9 of 73 Zant: I'm sorry. Just one. This was modified somewhat from the original application two years ago, was it not? It has been moved a little bit, hasn't it? Fulcher: The front porch on the carport has been removed so the structure based on the pictures has not been moved, but the encroachment has been decreased by removing the front of that structure. Zant Ok. I'm sorry. Nickle: Is the applicant present? Bozarth: Yes. Nickle: Yes, sir. Would you like to speak to us? Bozarth: I was advised that if I removed some of the front to give it more setback which would now have 16 Y2 ft setback, and that is as far back as I can go, that there would be a chance that it would be accepted. I have no other place on my lot to put this. As you can see I have a privacy fence all the way around and there is a pool in back. This other concrete driveway has been there since the house was built. The carport is actually structured for a boat cover is what it is. I have polled my neighbors. I have petition I have passed around. All except one neighbor signed it that it was fine with them. That is my residence. I own two properties, one right behind me and one down the street. I wouldn't want to do anything that would take away from the value of my property. That is my residence, and like I said I have two more right there by it. I would just like to have it for a boat cover. And like I said, I have no other place on my property to put it. I cannot get a vehicle to my back yard. That is about all I know to say. Nickle: You are Bozarth? Bozarth: That is correct sir. I would like for you to reconsider and accept it. Nickle: Questions from the Board for the applicant? Are there others that would like to speak to this request? Seeing none we will bring it back to the Board. Zant: Well, with all due respect because of your neighbors, I served under a chairman in another jurisdiction who was an attorney. He was sort of a crusty old fellow, but he had a favorite expression when it came to petitions. He said, "You know, your friends and neighbors will sign doggone near anything if it doesn't cost them anything.", and so I tend to personally takes a little less credence in that sort of Board of Adjustment February 05, 2007 Page 10 of 73 thing because I have found some degree of truth in that. You have a boat? Bozarth: Yes, sir. Zant: We know it, and anyone who drives down south Travis St knows it. Do you understand that this is kind of tough for us to deal with because there are even neighborhood associations.... And you have lovely homes there. Lovely middle- class homes. They are not very old are they? Bozarth: They are about 15 years. Zant: Lovely area, nice middle-class homes, but if I am not mistaken you are the only fellow on the street with a boat. Now, if we were on a.... (Unclear interruption) ...in your front yard. If we were dealing with a lakefront property here that would probably be very common place. I know I have seen that in my life, lakefront properties with more than one boat typically. Front, back, where ever they can fit it in the trees. I think we have to realize that this is pretty unusual and our ordinance has no way to accommodate this. No way to accommodate it. Our realtors might volunteer something here but my instincts look at it in terms of real-estate and say it might demean the value of not only your property but that of your neighbors as well. Forgive me, but for me it is somewhat unsightly. And I think that is why the ordinance was crafted the way it is, so that this sort of thing wouldn't happen in a front yard. But that is my feeling on it. Whitaker: Mr. Chair. If I could just for the record clarify that nothing in our ordinance addresses the presence of boats in front yards. If the structure was not encroaching that boat could be there from now to doomsday. So I don't want anyone getting the impression that we are saying that you can't have a boat in your driveway. Zant It's the structure. Ok. Whitaker: It is the structure that is all. Chesser: Well, specifically the location of the structure. Whitaker: Exactly. But the location of the boat is irrelevant. The existence of the boat is irrelevant to your decision. Board of Adjustment February 05, 2007 Page 11 of 73 Chesser: Right. If I may ask a question of the applicant, Mr. Chair? Bozarth: Please. Chesser: You said that you were advised that if you removed part of the structure that that might help? Bozarth: Actually I had acquired an attorney, and he was actually talking to the City Attorney or the Assistant Attorney. Whitaker: That would be me. Chesser: So was that your advice, sir? Whitaker: I did not give Mr. Bozarth any advice that we.... Bozarth: No, that was my attorney. Whitaker: Well, I spoke to Mr. Burnett who had represented him. I said when he came to me and spoke about the idea of withdrawing the appeal; he said "what are my alternatives?" I said, "You could go back to the Board of Adjustment but you would have to go back with a significantly different request." Number one, just because you can't simply keep coming back with the same request. Chesser: Right. Whitaker: And my impression from the first hearing was that the biggest problem that this Board had at that time was the extreme encroachment into the front setback. Which from the original request was 23ft into a 25ft setback. And if you will look at the earlier pictures it was almost down to the sidewalk. That was what I told his attorney. That if he had wanted to come back it would have to be a different request and the thing that would need the most change was the front setback. I can't recall how many of you were still on the Board at the previous hearing, but at that time the neighbor adjoining the side setback encroachment actually was at the hearing and said he would work with him. He didn't have any problem with that. My impression was that a lot of Board Members were nodding at that point, but when it came to the 23ft into the 25ft setback there was basically where it was beat. So that is the basis of that. Chesser: Did you explore that? Bozarth: Yeah. What's 16'h ft back from the street is what this other one is. Board of Adjustment February 05, 2007 Page 12 of 73 Chesser: 16 % ft back. Now... Nickle: That is not from the right-of-way. Chesser: Right, Ok. Bozarth: I've only got 7ft on this still. This is 16 Yz feet. Chesser: Well, but you have to realize that the right-of-way for the street extends far beyond the street edge itself. Do you understand that? The public property right- of-way extends quite a bit. Bozarth: It is 25ft from the edge of the street. Nickle: But your setback is really 2511 from the right-of-way. Chesser: Which is farther than the edge of the street. Nickle: On your survey that was submitted with this it shows where the right of way is. It is several feet back from the actual street edge, the curb out front. When they measure for setbacks the City Inspectors, they measure from the right-of-way because that is where the code tells them to. Are you aware of that? (Unclear discussion) Chesser: Yeah, the right-of-way is 25ft from the centerline back. And then there is a further setback 2511 on top of that. Meaning that you have to be 5011 back from the centerline of the street. Bozarth: You are making that 25ft from...? Nickle: The right-of-way. So here is the actual sidewalk, and here is the street edge. The right-of-way extends a little over 19 past the street edge. Chesser: So the problem is that though you have sort of moved it back, which I can see. Bozarth: Yes, sir. Chesser: You are still almost completely in the setback, which is very difficult for us to deal with. Board of Adjustment February 05, 2007 Page 13 of 73 Alt: I don't think we have a choice. Chesser: I don't think we have any choice either. Mr. Zant, I know your opinions on this. I guess Mr. Chair, you probably won't speak to this. Nickle: Well, you know, I know that when we had the original hearing on this Mrs. Isaac spoke about it. She apparently was not in agreement to the carport. I know it rereading the minutes that she did at least offer to let you have your boat on other property. But that is really neither here nor there. Because it is still 20ft into the setback I think that is the problem that most of the Board Members have. Motion: Zant: To boil it down, what we are dealing with here is with an ordinance requirement of 25ft, and we are looking for a request for 80% of the front and 75% on the side. All factors considered, and especially referencing the findings of fact. None of the five findings of fact support our granting a variance. I would make a motion that we deny this application. Chesser: Just a little discussion if you will indulge me. Nickle: Sure. Chesser: Because I always like to try and come up with compromise. Mr. Zant, I understand that you have probably indicated that you are unhappy with the carport at all for aesthetic reasons. I don't know if this is possible. I may be on a fishing trip. Looking at the survey it occurs to me that if it were rotated 90% it could be brought far less into the setback than it is. Now, this may be impossible for the applicant to achieve. It would probably incur significant expense to alter the.... I see that there is concrete there and a street cut/ curb cut sort of a thing. But it might allow him to house his boat. Would you support any sort of setback variance in this kind of case? Zant: Not to defer it, but I would ask Jesse. How would the Findings of Fact vary in reaction to this proposal? Fulcher: How the City would find, I don't know. But I think going back to the previous item and other items that we see when we look at new construction and new buildings it is difficult to make those findings to allow them within the front setback even at a lesser degree than this request here. Nickle: I don't think, realistically that doing that... Not only is it going to create great Board of Adjustment February 05, 2007 Page 14 of 73 expense and cover up the front of his house, plus... Chesser: It would be even more unsightly there. Nickle: It would be difficult to move it back again. Chesser: Well, I would have thought of coming across here. I was just going to try to give him something. But I am afraid that I can't see any way. I certainly can't see any way to leave it as it is. Motion: Nickle: So I have a motion to deny the request. Alt: And I second that motion. Nickle: A motion and second. Further discussion by Board? Would you call the roll? Roll call: The motion to deny BOA 07-2443 carries with a vote of 4-0-0. Chesser: I am sorry. Alt: Sorry. Bozarth: May I ask how long I have to have that removed? Alt: Staff might be able to answer that. Fulcher: Yes, typically it would be 30 days from denial. I will talk with Steve Cattaneo from Building Safety since it was their violation mailed out and have them contact you tomorrow. I would assume 30 days, approximately. Bozarth: Thank you. Board of Adjustment February 05, 2007 Page 15 of 73 BOA 07-2440 (CENTRAL UNITED METHODIST, 484): Submitted by Jorgensen & Associates for property located at 6 West Dickson Street. The property is zoned Main Street Center and contains approximately 6.02 acres. The request is a variance from the requirement for 75% minimum build able street frontage for to allow a variance of 2%. Nickle: Next is BOA 07-2440 for property located at 6 W Dickson St. And Suzanne, you have that for us. Morgan: Yes. This is an application submitted by Central United Methodist Church. It is for their property located south of Lafayette St. The overall property contains approximately 6 acres between Highland Ave and St Charles and Dickson. The property is located in the Main Street Center zoning district. It is currently developed for several of the buildings for this church. The applicant has received approval by Planning Commission for construction of a parking deck as well as a student ministry building on Lafayette. In looking at the plans for development we reviewed quite a few zoning codes and found that the applicant's proposal did not meet the minimum buildable street requirement around Lafayette. The overall developed or building area is about 8ft shy of the requirement in order to meet 75% minimum building frontage. In review of this application staff finds that in the information provide by the applicant, staff finds that it is potential that the existing gray house - what they call the gray house where the administrative office is- could be redeveloped at some point in time. The proposals for the proposed garage and parking garage as well as the ministry building, those buildings according to the applicant were designed before this came forward to us at the Large Scale Development. I have spoken with the applicant about perhaps modifying the buildings and what the intention is for the gray house. Our recommendation, as stated in the staff report, states that staff recommends that the applicant modify the proposal to add an addition 7.7ft thereby meeting the ordinance which would ultimately be a denial of this request. However we did state that if this church could provide formal written guarantee including scope, intent, and time frame of the redevelopment of that northwest corner of the great house with the commitment that any new structure be designed such that the minimum buildable street frontage adjacent to Lafayette Street is met. We did propose that as a potential acceptable solution for your consideration. The applicant may have some further information, but as of our discussion earlier this morning I don't believe that they were at a point where they could commit to anything. But I will let them address that. You have staff's findings in the report, and I will just leave it to the applicants. Nickle: Any questions from the Board for the staff? Chesser: How about a decorative wall of 7.7ft? Or anything that would lengthen the Board of Adjustment February 05, 2007 Page 16 of 73 structure? Morgan: According to the Development Administrator, in order to meet or be able to be counted towards the requirement it needs to be space which is habitable. If they bumped out one of the walls, maybe not the full length of the structure, but a portion of it to enlarge one of the rooms or to the parking deck that is a possibility. As you can see in the site plans included there are some spaces in between the structures, some of which may be able to be buried, a playground. According to the applicant there is a 20ft separation which was required between the garage and the great house. So, there are some things to work around, but our recommendation should the applicant not be able to supply that written agreement and that is not what you would agree with then we recommend denial. Chesser: I have a couple of questions for staff. One is clarification. Am I correct in reading this and I thought I was, that we are dealing with the same thing that we did last time. This is this new kind of change where 75% of this is just coming into effect in the last couple of months. Morgan: Correct. With the adoption of the plan. Chesser: I have a further question, and I apologize for not having read that ordinance yet, but educate me as to how this 75% rule relates to a complex of buildings as opposed to a single building. I mean, is it the same thing? It can be broken up into several buildings but you still must meet 75% given a single lot? Morgan: Correct. That 75% doesn't have to be one building at 75% of the lot length. Chesser: So taking a lot split? Could they not meet it right now? Just out of curiosity? Morgan: Well, the Large Scale Development was for the property.... Chesser: As a single lot. Morgan: That included that entire development. So we were looking at it as development of that entire block. Chesser: So they are penalized for having too much. Alt: Isn't that ah....? (Laughing) Nickel Does the gray house sit on a separate legal lot? Board of Adjustment February 05, 2007 Page 17 of 73 Chesser: No. Morgan: I believe it does. Nickle: Oh it does? Morgan: I don't know exactly where that lot line is in relationship with the parking garage. I wasn't able to measure that before this meeting. But it was included in the Large Scale as part of the project by the Planning Commission for construction of a parking deck as well a student ministry building on Lafayette. Chesser: So that sort of trumps the legal lot lines at this point? The Large Scale sort of encompasses all? So they haven't readjusted the lot? They haven't made this one legal lot? But since they went through the.... Please, go ahead. Morgan: Well, there are actually many lots on this property. Some of the lots are very small interior lots that are just parking on those lots. At this time they haven't. It is a separate parcel. There are many different parcels on this property but it is included as part of the overall development. Chesser: So for the purposes of this Large Scale you considered it essentially to be one lot? Morgan: Yes. Chesser: And for it to have to meet those requirements as if it was one lot? Morgan: Yes. Chesser: I have that correct? Morgan: Yes. Chesser: Ok. Thank you. Nickle: Other questions for staff? Thank you Suzanne. Is the applicant present? Jorgensen: Yes sir. Nickle: Would you identify yourself? Jorgensen: There are two of use. Blake Jorgensen of Jorgensen & Associates representing Central United Methodist Church. This is Brian Swain, the Administrator. If I Board of Adjustment February 05, 2007 Page 18 of 73 may pass this out, this is one elevation for what we have proposed and also the gray house in subject. Historically we had tried to develop the site plan. I might have some questions for staff as well. But we started this, or at least personally I started on this project a year ago back in February. I know that the church itself had started it much earlier than that. With the new Downtown Zoning, anticipating that, we developed a site plan that was supposed to match with that. They had a parking deck and the student ministry building had already been designed in that sense. The former option was to design it to the original setbacks of 25 and whatnot. There is not as much mobility as we seem because one is the site is a very steep slope. We have, if you notice on the third page, the east face of this building we provided just enough space to provide more trees to supply for mitigation purposes. So that is why it is not exactly on the right of way. And then the space between the parking deck and the student ministry building, it is the appropriate size to house enough.... You have to have 75sq ft per kid, and they have a certain quota of kids that they have to meet to make it certified to have daycare centers and whatnot. So that was designed specifically for that reason. And then the 20ft Iin is a (unclear) between the existing house, the gray house that you are looking at, and the west wall of the parking deck. So we have maximized what we feel is the site. And it is, I believe, 5 separate parcels. We initially wanted to propose just this north half of this whole site as our development area. But we had to include the whole thing for our Large Scale Development to bring everything else into compliance in terms of parking and whatnot. There was going to be three variances. One, we initially had the playground east of the student ministry building. It was 33ft. So it wasn't in that 25 to 0 build -to line. We moved the parking to the student ministry building east to make up for that. It was also not far enough north because it was just 2611. So we moved it north to not have to go for that variance as well. So we met as many variances, or we overcame those obstacles. The only other thing was the gray house. Well, we didn't consider that as part of our development because it is an existing historical house. Demolition, right now, is not part of the plan. Addition to the other structures is not beneficial or economical. The thing I felt we weren't real sure about is what is the measurable amount of the gray house? Because as you see, what I have measured is just the front. I guess the facade. Now, what entails a front facade? Can we count the roof line? Because those roof lines aren't allowed to be in setbacks. So if that is the case then we will start counting the roof line. And then we have that secondary part of the house that extends further. That does make us in compliance. And this is just the matter of what do we measure? And that is something that I should have clarified before we went forward but part of the initial process was going for three variances. It kind of got lost in the modifications. Nickle: Would you repeat that again about the overhang issue? Board of Adjustment February 05, 2007 Page 19 of 73 Jorgensen: Well, when we first measured this we just had the plat on page. So you are looking at it from plan view. There are different areas to measure in terms of how far. Can you go back 1Oft? Because it is recessed and it goes out further. Which part are we allowed to measure? So all I took was just this front part. If we go back further and do this then we are in compliance, but I just took this front because it is the main thing on the front. If it goes back l Oft... You see what I'm saying? Chesser: I think if you drew a line. What is the build -to line? Morgan: 0 to 25. Chesser: Is that this dashed line? Am I looking at that correctly? Jorgensen: That is actually a utility line. Chesser: Oh, that is the utility easement. Jorgensen: There is not a 25ft build -to line on there. Chesser: My guess, and correct me if I am wrong please staff. If you drew a line across here at 25ft back mark, you would measure directly across that line. Am I correct? Morgan: Yes. Chesser: In terms of build -to. Morgan: Yes. Chesser: And they could build past, right? Jorgensen: We have to build past. We have to be within 25. That is part of the new ordinance. Chesser: Right, but I mean... Sorry. Jorgensen: I see where you are going. Chesser: No. I misspoke there though. So I have another question if you will indulge me. Oh, go ahead. Board of Adjustment February 05, 2007 Page 20 of 73 Nickle: Just a point of clarification on these setback issues. We have been brought up to include overhangs in our setback issues. Now, the new ordinance speaks of a build -to line, which is completely different than what we have dealt with in the past. And I guess what I am wondering is that if it is a build -to line....? And I know we talked in the last meeting about heated areas, etc and that has to be part of the build -to line. But to me this almost says that you can't have overhangs because they will go into the setback, or they can't be counted as part of the setback. DO you see what I am talking about? Whitaker: I know exactly what you are talking about. It sound like another item that the Zoning and Administrator needs to interpret. Because certainly you want consistency. Nickle: Yeah. And that is my point. Whitaker: We are not in a position to make that interpretation. Nickle: Going with the concept of overhangs were to be counted when we're measuring for setbacks, and we have been many rulings based on that theory. And this is something that I think bears another look in general. It seems to me that we have some conflicting interpretations or potentially conflicting interpretations of our ordinance. This new ordinance is, frankly, new for us just as it is for you all. And we are being asked to make judgments. This is really seat of the pants. I really would... I don't know whether you all want us to delay this or rather it is reasonable. If I were asked to make a decision today it would fall in favor of the applicant when we are talking about these because I think it's a new ball game. And I understand we have to play by the new rules but I think it is almost opposing when you talk about setbacks, overhangs, and build-to's. And I don't know whether or not you have talked about that in staff meetings before, but I have a little discomfort to vote against an applicant without some kind of... And that is why I picked up when you said something to the effect that if we measure the overhangs on the gray house all of a sudden it looks like we are potentially in compliance. And so I would have a tendency to vote in favor of it. But I don't know how much of a rush the applicant is in for a decision on this one. Whitaker: Mr. Chair. Nickle: Yes, please. Whitaker: I just wanted to comment that your statement right then that you would tend to err on the side of the applicant is supported by Arkansas law. Since zoning and Board of Adjustment February 05, 2007 Page 21 of 73 development laws are as we say "in abrogation of the common law," any ambiguity should be construed to the benefit of the applicant and the property owner. But you may want to ask staff to get a formal interpretation on it if you feel there is an ambiguity great enough. Nickle: And I guess the question to the applicant is, you have obviously been in the process a long time. Would you want us to go ahead and render a decision today? Or would you be willing to wait another month? I know construction costs go up, etc. and we don't want to penalize you unfairly. Swain: Mr. Nickle, I think that we would prefer to get it done today if we can because we are geared up to start construction in the next month or so if we are able to get this approval. We are in the process of filing for our grading and excavation permit now. We are actually hoping to have our ceremonial ground breaking in about three weeks. A couple of other things that I want to mention just to be real clear on this. If we do count that overhang.... We went out and measured it again today. We had submitted in our documents that the width of that building was 33.46ft, I believe. We measured it today and it was approximately 43ft. If that overhang is counted then we have added l Oft to the equation and that gets us past the 7.7ft that is in question. Another thing that I wanted to mention is that we don't really... We aren't eager to do anything to tear down this house right now. We use it actively as a historic structure. We believe it serves a very purposeful use in the community. It also serves as a buffer of sorts to the existing area to the west. So we are not eager to tear it down. It is something that may happen down the road. I don't have a crystal ball to know when that might be. That is why I am reluctant to have us submit a guarantee on the exact time frame. Another piece of information that I want to throw out there is that we are only developing up until the property line between the gray house and the parking deck. That area down from Highland down to the property line is 373ft. We are building on 324ft of that. That is 86.8% of that particular area. I just think that is important to throw out there. I don't know how that enters into your decision making, but that far exceeds the 75% requirement for the area that we are developing now. My thinking would be that if the staff wants to get the area wider that they make it a condition of approval just as we had 26 conditions of approval on the Large Scale Development. Make it a condition of approval when that property is developed, that gray house property. Assuming the overhang doesn't count. If the overhang counts then I think that the point is removed and we would not have a noncompliant situation right now. Zant Let me ask you this. I trust at this juncture, having designed this building sometime back, and we are not going to come up with 7ft of livable space at any practical cost, obviously. We are not looking at anything other than 2%. Just in Board of Adjustment February 05, 2007 Page 22 of 73 regard to the staff report that has already been done on this, would I be correct in asking you or assuming that you have a copy of our staff report? Swain: On this project here? Zant: On your application here. Swain: Yes sir, I got it Friday afternoon at 4:00. Zant: Well, you didn't get it much before we did. Secondly, would I be correct to assume that you would be in agreement to what the staff recommendation is here if you can't add 7ft on practically. They are asking for some sort of guarantee or certification that you would adhere to their recommendations. Nickle: I said that he is a little bit uncomfortable with giving a guarantee of the type that I think would satisfy the staff. Swain: Right. We have now plans to redevelop the gray house property right now or in the near future. We do have a master plan that calls for other redevelopment on our property that does not involve that area. We want to preserve that area for now and for as long as we can. As a matter of fact, at Subdivision Review there was a neighbor who got up and spoke in favor of preserving that property and we were in agreement with that neighbor. So we don't have any plans to do that right now. I can't speak for 15 years down the road. I would hate to make a guarantee for 15 years down the road. That is a long time. Jorgensen: One thing is that it doesn't make it if we guarantee it or not. The City's ordinance is going to require that parcel to development to meet that 75%. So I guess it is the City's own code that they are going to enforce. Whichever applicant or whichever project goes in there will meet that by the City's own ordinance. Swain: That is what I was suggesting. I was saying that the City should make it a condition of approval on any future development there, but they shouldn't ask us to guarantee when it would be. Nickle: Before we get any further along I don't recall whether I asked for other audience members. Anyone else in the audience want to speak to this particular application? Seeing none we will take it back to the Board. My own personal feeling is that given the issues on the overhangs and where we measure from, and without additional interpretation by staff which I am sure we will get at a future time, I hate to delay them any further awaiting a decision. I think Mr. Swain has given us ample comfort in allowing this situation to go forward. Others may want Board of Adjustment February 05, 2007 Page 23 of 73 to speak to it. Zant: I thought we had the perfect avenue with the staff recommendation and some sort of certification or guarantee that might be recorded with the deed and so forth and just take care of it. Because lord only knows when you might further redevelopment. But we don't want to see a requirement that we were leaning towards to absolutely guarantee your support get lost in the shuffle either. Chesser: Can I make a couple of remarks, Mr. Chair? Nickle: Please. Chesser: One is a question for staff about Mr. Nickle's remarks about overhangs. First let me say that I agree with Mr. Nickle that we are at sort of a strange position here. We are required to count overhangs against setback requirements but we are not allowed to count them for build -to requirements. Now, on the other side of that I will ask, and I think this is the case, that given this realignment I would imagine that... Let's pretend for a moment that we move the house forward l Oft. It would still be within the setbacks but it would also be meeting the build -to line with its... I am just going to throw loft out arbitrarily, please correct me. The build -to line and the setback line are not the same thing. Is that correct? Morgan: There is not either build -to line or the setback, I don't believe, from the zoning industry. I believe it is a build -to zone. 0 to 25ft zoning regulations. Chesser: Ok. So you are saying they could build all the way up. There is potentially a Oft setback but they must build to at least 25ft. Right. So it could be the case where it meets the build -to requirements and yet it has overhangs that are further past that requirement. However, I still think that this is sort of having your cake and eating it too, to a degree. I feel like it should either count in both cases or not. I understand the reasoning for not counting it, but it seems a little unfair at this point. Zant: When you boil this right down, I am completely supportive of the project. It is a wonderful project. Chesser: I agree. Zant It is very worthy. I was just trying to find an avenue to get through it and do the right thing with it. Chesser: The other question that I would have, really quickly, is I know that this went Board of Adjustment February 05, 2007 Page 24 of 73 through LSD. And I understand that it is now being seen in this other manner. But it occurs to me that there is already an existing building here. Does the code specifically address that instance? I mean, because we are sort of mixing two things here. We are mixing old... we are using an old building and we are adding a new building and it is a little odd to me. And I have to say that I agree with Mr. Nickle. I am actually in full support of agreeing with the applicant that if they tear down the house and they build there later they will be required to follow the existing ordinance so there is no need for an extra guarantee. Nickle: If they rebuilt this they will be required to meet the 75% on that. That is right. Chesser: At the same time, given that it is a historic structure, I would prefer that they not remove it. I would be happy to support anything that allows it to stay. Given that, I am going to move that we allow. Now, let me phrase this quickly. If you will accept a motion, Mr. Chair? Nickle: Yes. Motion: Chesser: I am going to move that we approve BOA 07-2440. I don't believe that staff gave any other conditions, other than their recommendation which I am going to ignore with this motion. I am just going to go ahead and move that we approve it outright. Alt: To allow a 2% variance. Chesser: To allow the 2%. Basically to allow what they are asking for within this request. Alt: The 2%? Chesser: The 2% variance. Correct. Alt: And I am going to second that. Nickle: I have a motion and a second for approval of BOA 07-2440. Further discussion? Would you call the roll please? Roll call: The motion to approve BOA 07-2440 carries with a vote of 4-0-0. Nickle: Thank you. Jorgensen: Thank you all very much. Board of Adjustment February 05, 2007 Page 25 of 73 (Further Discussion after previous item) Garner: The interpretation last time for the previous variance for this, which was the very first one of its kind, was that in order for a structure to be counted into the percentage it had to be habitable space, and that did not count for porches. Alt: Really? Garner: We will go back to the Administrator and really clarify that interpretation for the Board, including overhangs, porches, and just.... That was what we talked about last time and that was what we told the board. Nickle: Good. If you could give us a written.... Garner: We'll write something up on that. Nickle: That would be great. For the Board to be able to review and have something to hang their hats on. Chesser: And can we have input upon this, too? Is there a way for us to have input, or is that inappropriate? Whitaker: Certainly you could sit down with staff and tell then your thoughts. Mr. Pate has always given me a fair hearing when I wanted to take five minutes to talk to him about any one of these things. Chesser: Excellent. Whitaker: He may not agree with you, and in the end it is his call. Chesser: He has not agreed with me many times in the past. I am sure that he won't stop now. Board of Adjustment February 05, 2007 Page 26 of 73 BOA 07-2444 (EICHMANN, 444): Submitted by JUSTIN EICHMANN for property located at 902 W. CLEVELAND ST. & 719-721 STORER. The property is zoned RMF -40, MULTI FAMILY - 40 UNITS/ACRE and contains approximately 0.21 acres. The request is for variances of lot size and setbacks to bring a non -conforming structure into compliance and to allow for a lot split of the subject property. Nickle: Alright. We are ready for BOA 07-2444 for property located at 902 West Cleveland and 719-721 Storer. Suzanne, you have that for us. Morgan: Yes. This subject property contains approximately 9,276 sq feet and is located at the northwest corner of Cleveland and Sorer. It is located within the RMF -40 zoning district and was developed as a multifamily development. Just a bit of background, the one-story, single family home that is located right at the corner was developed approximately in 1954 prior to zoning code requirements. And, as you can see with the attached site plan it is located right at the right-of-way for Cleveland, I believe. It is a Oft building setback. Additionally there is a Oft side setback and the building also encroaches within the eastern front building setback by 12 ft. The duplex, however, was just more recently built in 1998. The site plan which was approved by Planning and the Building Safety division for Development shows a building that meets all of the requirements. It does not appear that there was a porch, however, with the approved building plan. I assume it was the porch that created the nonconformity of the structure. It encroaches along the side or western setback by 4ft, and along the southern side setback by 211. The property was purchased by the current owner in September of 2003, and the applicant requests to subdivide the property into two lots to allow for separate sales of each of the structures. During staffs review of the lot split application the applicant was informed that the lot split would create lots that would not meet the minimum area requirements of 6,OOOsq ft per single family home and 6,500 sq ft for a duplex. Additionally, the splitting of these lots would also change the setbacks that were required for the duplex lot, and thereby create additional problems making the building more nonconforming. Overall, the single family lot is proposed to be 78% smaller than the required minimum allowed, and the two family lot is proposed to 15% smaller than the minimum lot area. With regard to findings, staff finds that the pre-existing nature of the encroachments into the building setbacks do constitute a special circumstance that is peculiar to these properties that were developed prior to the zoning code. We have seen several occasions where buildings were constructed to or with approval but not built in the exact location. This is a few feet off in either direction. This obviously was done in 1998 prior to the current owner acquiring of this lot. We do feel like that is special circumstance for this particular situation. However, with regard to warranting a subdivision of these properties we do not feel like Board of Adjustment February 05, 2007 Page 27 of 73 there is special circumstance. Being RMF -40 it does allow an owner to build multiple structures on one lot. The code does not.... It does allow for those structures to remain on the lot that is minimum 9,OOOsq ft, however to divide these lots you do need to meet the minimum lot area requirements of 6,000 or 6,500. Additionally, with regard to the lot split we do find that the proposal is due to the applicants desire to split the lot. And if there are no special circumstances which are particular to the other surrounding properties for this property. In general we are recommending denial of variances which are related to the splitting of the property with regard to reducing the minimum lot area as well as the setback variances which would need to happen in order to bring those lots into compliance with the new proposed smaller lots. We do recommend approval, and I would like to make a modification on the first recommendation for 719-721 Storer Ave. The recommendation for approval should read "Staff recommends approval of a 6ft side building setback, a 2ft variance along the south property line and a 411 building setback, a 411 variance along the west property line." Additionally, staff recommends approval of the three variances required to bring the single family structure into compliance. If you have any questions...? Zant: I do. I have written down a question here and you just answered it. But to reiterate, the findings of fact support granting the variances of setback on both directions on these properties on Storer and Cleveland, but with the staff denial of the requested variances on minimum lot area we are in fact going to deny and prohibit a lot split. Morgan: That is correct. Zant: And the findings of fact support that denial, do they not? Morgan: I believe that they do. Zant: Ok. Nickle: Other questions for staff? Chesser: I don't have questions for staff. I would like to make a statement if possible. Nickle: Would you like to hear from the applicant first? Chesser: It doesn't actually relate to that. Board of Adjustment February 05, 2007 Page 28 of 73 Nickle: Alright. Chesser: In the interest of disclosure, I would like to say that Mr. Eichmann and I have known each other for quite some time, so I had planned to abstain. But I find myself yet again in the position with abstention would cause us to fall below our quorum. Given the evidence I have brought forth in the past I believe I can be objective in this matter, but I would just like to make that known. Is that acceptable to you, Counselor? Whitaker: That is certainly fine. As we have discussed in the past, unless you have a direct or indirect financial interest in the project... Chesser: No. No financial interest what -so -ever. Just a personal relationship. Whitaker: You don't have to feel compelled to abstain. And if you feel that based on the relationship that you have with Mr. Eichmann, that you can still render an impartial decision on this project then certainly there is no requirement to abstain. Chesser: Excellent. I believe I can. I just wanted to make sure that was on the record. Thank you, Mr. Chair. Zant: And if you were to abstain and we had three positive votes it would still pass anyway, wouldn't it? Whitaker: That is my reading of it. Your rules of procedure say it can't be counted either way. So it can't be counted as a no or a yes, but your rules don't speak to whether it defeats the quorum. In the absence of it that would be three positive votes out of four people attending. That is a majority and your rules say a majority of a quorum is sufficient. Zant: Or if a motion was made and there were two positive and one negative to the motion? Nickle: It would still pass, would it not? Whitaker: That is a hypothetical, but if we ever get there I will render a decision. Zant: Thank you. Chesser: Well Mr. Zant, I don't know if you were here the last time this happened but I did in fact abstain for those very reasons and it passed anyway. Or failed. Either Board of Adjustment February 05, 2007 Page 29 of 73 way. Nickle: Well, that's that. We will go on. Is the applicant present? If you would identify yourself please? Eichmann: Yes, thanks. My name is Justin Eichmann. I am here for the Cleveland Street LLC. In the flesh they are Alan Lane who is sitting right here to my right and Steven Brooks who is back there in the back. That is to put a face to the name. I believe that is called "tyranny of the minority" when you can have a vote of two or three and carry an issue forward that is (unclear). It's kind of a funny issue. Zant: Tyranny!?! Eichmann: Tyranny of the minority. But I am here for Cleveland St. You know the property that we are talking about. It is kind of an odd shaped lot as you can probably see. It is sort of a squished L. In general we would simply like to point out, you probably read it already, my clients purchased the property in 2003. Holding this since primarily these properties in this area are university students. The Unitarian Church is across the street. Part of something that runs through or right by the Unitarian Church creates what we think is the geographical distinction that gives us cause to bring forward a request for variance on lot size, and that is that creek. It sort of runs down the hillside there. I guess it feeds from various parts there on the top and comes down University. It runs down by the church and crosses the street and runs behind the two houses that are on this particular lot. I don't know when the distinctions run from a ditch to a creek to a stream, but it does sort of.. is known on the surveys as a creek. It is kind of a rather substantial area there that splits this lot right down the middle. I clipped a few pictures today, and I though I would just go ahead and produce those. I am sure people may have seen the lot, but this might add a little bit of help. The first one and I am sorry I only have two sets but I didn't want to pay Walgreen's anymore than I had to. But the first one is a shot of the area between the two houses and the creek. The second one is of the duplex, and the third is of the single family structure. The fourth one is shot from Cleveland Street and you can kind of see the back of the duplex. That house you see is actually a small house that is right next to the house that is on our lot - My client's lot. So you can kind of get an idea of what that creek is and what kind of barrier that provides. With staff findings on the setbacks and the single family house that is there has been there for some time, and I think some street improvements on Cleveland have sort of eaten up, or pushed, the sidewalk and some sewer improvements and things that happened several years ago that have.... When you look at it from the street you see a sidewalk pretty close to the side of the house there. But the obstacle, and perhaps the reason why this Board of Adjustment February 05, 2007 Page 30 of 73 structure was placed on that other half of that lot, but I am not quite sure how you could build something across that creek that cuts through there. The purpose for this variance is for a lot split and for a sale. There is no denying that. They have been trying to sell this piece of property and the problem is and the issue is that the people that are showing interest and have approached them wanting to purchase it want each on an individual basis and not as a collective. And of course there is also value concerned with that as well. What they will sell for together and what they will sell for separate. But primarily it is trying to sell these pieces of property and not being able to. Other avenues have been looked at such as there is a lot to the north of the duplex that is sort of an odd shaped lot. I think at one point they were looking at trying to acquire maybe use in the mix. But that did not work out. We are sort of left here with the option of seeking a variance. So, be that as it may, we feel that the existence of that creek running halfway through the lot is our just cause and reason why we are asking for this variance on the minimum lot size. And my clients would be happy to answer any questions, and I am too if we can regarding this issue. Brooks: I would just say that staff has run its RMF -40 and that potentially the lot as a whole could be developed. But again, I think that natural divide at the creek would make that very difficult. They would have to find a way to build over that creek, and I just don't think that is feasible given the setbacks and the creek being a natural barrier between the two. It is just very odd to have to explain that those are all one property. So... Lane: I'll just say that I think staff mentioned at the opening remarks that the variance we are seeking on the single family lot was a 78%. In fact, and it is in there report, but it is a 38% smaller than the variance that is being requested and 15%, so it is not as large. Chesser: Staff, can you speak to that? Morgan: I was quoting from page.... Chesser: I have section four. Morgan: Yeah, the second page number four. "No special privileges". I apologize. I mis- spoke. The single family lot is 38% smaller than the required area with what they are proposing, and the duplex is 15% smaller than what is required. And the resulting buildable area, should they split it, for the single family lot with the 760sq ft running through the middle. Which is not in a designated floodplain or floodway. Board of Adjustment February 05, 2007 Page 31 of 73 Chesser: For advice on building over creeks I would point you to the flowing water. (Laughter) Zant: Did we feel that the staff report adequately addressed the creek and the drainage in conjunction with his comments in regard to the topography here and some of he challenges on the lot? Do you think that we addressed that completely? Morgan: In reading the applicant's letter that the drainage was mentioned, I can see, did not appear to be that that was their main reason for the request. Zant: Staff doesn't feel that that is a valid justification? Morgan: For the creation of two smaller lots? I believe that this could function well, and under current ordinance, as one lot as it is right now. And it meets all of the code requirements. So I don't believe that would be the best application. Zant: I have a question for our Attorney. Am I interrupting you? Nickle: No, I'm just going to ask for public comment. Zant: Well, maybe we ought to do that first. Nickle: Would anyone else from the audience like to speak to this particular application? Seeing none we will bring it back to the board. Zant What does state law have to say in regard to increasing nonconformities and making a decision on this Board? Does it address it at all? Whitaker: I think I have it memorized. Maybe not chapter and verse, but I have (Discussion) Whitaker: But I can say in general the law seeks to discourage the perpetuation and certainly the creation of new nonconforming uses. The whole concept of nonconforming use is that it doesn't conform to the district requirements. You would like them to disappear over time, not introduce new ones. In general. Zant So I think that gives your report pretty solid justification. Chesser: I have a question for the applicants if I may, Mr. Chair. Board of Adjustment February 05, 2007 Page 32 of 73 Nickle: Yes, go ahead. Chesser: And this is similar to a situation we have had before, and I believe... The horizontal property regime would be able to cover this type of thing? Nickle: That is usually on attached properties. Whitaker: Yeah. That is also known as the condo law. Chesser: So it probably wouldn't be.... you'd have to be able to sell one structure without selling the land that surrounds it. Nickle: You would have to have a POA . Chesser: Had you explored that possibility? Whitaker: You would have to bring it under that act first. Eichmann: It is possible. But again, it is just like the nature of the property that is just so unusual. I think for a property of this nature. Nickle: I would say that number one we're not a body that is approving a lot split. By granting variances they could then go to pursue a lot split. I assume at the Planning Commission or are they going to do that administratively? Morgan: It would be at Planning Commission level. The Planning Commission, if the applicant is meeting all of the zoning requirements, Planning Commission reviews these but it does not have any ability or reason to deny it if the lot split is meeting all of the requirements. With the excessive number of variances that were necessary, I felt it wise to come before this board to see if they would be able to get the variances. In that variances, all that are necessary are granted in order to do this lot split. I don't believe that there would be any reason for the Planning Commission to deny such a request. Nickle: I for one, you know, the single family house to me.... Granting the variance to bring that into conformity is not an issue for me. It was built well before we had things like setbacks, etc. And I know speaking on the finding of the lot area variances we often grant those especially for existing properties. So I don't find that to be an unusual circumstance for the board to make such a judgment. And the other thing which probably doesn't have anything to do with our variances, Board of Adjustment February 05, 2007 Page 33 of 73 per say, but I know it is a hot topic with the Council and maybe a lot of the population in general. And that is the affordable housing issue. While that is not a reason to grant a variance here, those kinds of things. To me granting the variances as requested really don't change anything. Nobody can add to these buildings without additional variances which I don't imagine would be granted. It is just recognition of the possibility of separate ownership here as opposed to modifying the structures in any way shape or form. Again, I don't see an issue at all in us granting the variances to bring them into compliance because they are existing structures. But I don't personally see a reason to deny the possibility of separate ownership of these two tracts because maybe someday down the road they might even be combined again... And maybe somebody does something big there. But you have to remember and look back to when zoning was first introduced. They took a look at this area and because of proximity to University they said "Ok, this makes sense for RMF -40". And they are right in general. But you know, you have a bunch of the little structures in there already. And if you go in there today you can find any number of little houses on what I am sure are nonconforming lots. I don't think the creation of separate ownership of potentially these two pieces of property is going to change the makeup of the neighborhood or be detrimental to that neighborhood over there in any way shape or form. Perhaps it provides the possibility for more affordable ownership. I know why we have setback rules, but in the case of these two existing structures I don't see where the city is any better off or the citizens are any better off from making it impractical to have a lot split. Zant: That said just as a good successful realtor would present that. Chesser: I would typically say that given the area we are talking about here and my general nature towards development, that I would typically support smaller houses on smaller lots. Especially in this type of neighborhood. I also understand that they can both meet the requirements of the RMF -40, but I agree with the Chair that I don't see how this is in anyway detrimental to the existing situation. In fact, as you pointed out and I agree, we don't consider things like affordability. I think that would be the only real result. Zant: My personal feeling is, and I think our Attorney answered it pretty well, and that is I don't think that state law or ordinances are in particular support for increasing nonconformities as we go through this. So I support everything in here, but I tend to agree with the staff report here. So if that means that I am no overall, then I guess that is how I am feeling. It depends on what you collaborators are going to do here. Board of Adjustment February 05, 2007 Page 34 of 73 Nickle: I await a motion, as usual. Chesser: I was going to say that I am just not going to make a motion on this given my earlier statement. Nickle: Uh-Oh, Sherry. Motion: Alt: Well Mr. Chair, I am going to try to make a motion. But let me say this before I do. And that is I just somewhat question the staff's finding of the special conditions. And that is because of this creek that seems to be running through as a natural border. It presents to these two homes and properties and I certainly don't want to overrule any decision that you have made, but I do think I need to make a motion that we approve the requested variance for the minimum lot area as the.... How can I say this? I want to approve all the variances including the minimum lot area to be approved. Zant: You don't want to split this up? Nickle: We don't make the split ourselves. Alt: I don't think we can split this. Nickle: We just grant variances. Zant: No, I meant the motion to split out the, for example.... Whitaker: Two different property areas. Alt: Do I have to? Do I need to split it? Zant: You don't have to. Alt: I move that we approve the requested variances as a whole. Nickle: Ok. We have a motion. Alt: Is that OK? Chesser: I know I am going to be in the position of having to second here because I know Board of Adjustment February 05, 2007 Page 35 of 73 that Mr. Zant is not going to do it. You are going to leave me with this decision aren't you? Zant: Why not. Chesser: Alright, well... Alt: Do you understand, Mr. Chair, my motion? Nickle: Yes. I think I will repeat it if I get a second. Chesser: Go ahead. Nickle: Was that a second? Chesser: Oh, I thought you meant a second as in an increment of time. I'm sorry. Did you have a question Mr. Zant? Well, I stated that I can be objective, and I believe that this would be in accord with my previous support for this type of move. And in that case I am going to second that motion. Nickle: OK. We have a motion and a second for approval of the requested variances on BOA 07-2444. Any further discussion before we move forward? Chesser: Do you have a question for our Council again? Zant: I will say that I wanted to make just a comment. I am certainly in favor of supporting the variances for the setback area and so forth. You will hear me vote no and it is going to be because I couldn't get that split out but it wouldn't make any difference to you. I know you want a lot split. I agree with the staff report and I am not going to support that. But that is not going to make a lot of difference if I am hearing what I am hearing. Chesser: Councilors, if I choose to abstain at this point? And we have two yes votes and an abstention. We do not have even a simple majority. What will be the outcome? And what have I done by seconding it? I suppose I have sort of.. ?: You have already, I guess, crossed the rooftops. Have I? Whitaker: If one chooses to abstain, one should not be involved in any debate or discussion. You are there. Board of Adjustment February 05, 2007 Page 36 of 73 Nickle: Further discussion? Chesser: I suppose I will end up on the floor of the Senate soon. Nickle: Further discussion? Will you call the roll please? Roll call: The motion to approve BOA 07-2444 carries with a vote of 3-1-0. Mr. Zant voted No. Board of Adjustment February 05, 2007 Page 37 of 73 BOA 07-2445 (FIVE WEST MOUNTAIN, 523): Submitted by JAMES FOSTER for property located at 5 WEST MOUNTAIN STREET. The property is zoned MSC, MAIN STREET CENTER and contains approximately 0.04 acres. The request is for a 0' rear setback (a 5' variance) to allow for the construction of a new multi -story building within the footprint of the existing nonconforming structure. Nickle: Thank you. Alright, next is BOA 06-2445 for property located at 5 W Mountain. Jesse, you have that for us? Fulcher: Yes sir. This is the property; actually, if you look at your close up maps at the back there you will see the close up view shows two outlined rectangles. The larger of the two rectangles is actually one west bound which is the building to the north. There is a smaller rectangle where Five West Mountain is actually located. They are separated by that stairwell and that small area in between the two buildings just for that southern partial that we are considering today. As I said Five West Mountain is to the north and the Fayetteville Town Center is to the west of this. It is also bounded by East Ave to the east and a public alley to the south. There is an existing 1500sq ft office building on the property. It was constructed in 1925 and is currently located in the request setback line, the rear setback line of 511 required. Since the passing of the Downtown Master Plan which rezoned this to Main Street Center, all the setbacks on this property went to the build -to line on the front and Oft sides to the north and the south and adjacent to the alley. But the rear setback is still 5ft. In which case existing building is located in that. What the applicants are requesting it to remove that building and construct a new building using that existing footprint which would require a variances of that 511 rear setback. For staff's findings as far as special conditions go, the reason I wanted to show you on the map that it is that southern property. That property is only 30ft wide. It is approximately 50ft long. It is how it was platted. There is some disparity north of that in between the two buildings that would be used for the reconstruction. But as the lot goes to the east and west it is 30ft wide. Requiring that 5ft setback reduces that build able area to 25 ft which is staffs opinion would be a hardship on creating usable space. Especially when you get into retail or office, commercial uses, having only 25 ft of build able area there would encumber the overall use of the property. Also, the result of the variance is obviously the request of the applicants to reuse this property or reconstruct this property. But the fact that the property is only 30ft wide and 50ft long, and where the existing building was constructed all occurred in the early 1920's. Obviously it was not a result of the applicants today. Overall permitting the redevelopment of this property within the existing footprint will allow efficient use of it being such a small property in an infill situation. Staff is supportive of this request given the unique size of this property and the date at Board of Adjustment February 05, 2007 Page 38 of 73 which this property was platted. Staff is recommending approval with three fairly standard conditions. If you have any questions, please ask. Nickle: Any questions from the Board for staff? Is the applicant present? Would you identify yourself? Foster: My name is James Foster. This proposed project, just let me clarify, does not exactly follow the footprint of the 1500sq ft building. It occupies portions of three parcels. All parcels are over the Carly/Bradberry Trust. The blue is basically the footprint of the new building. There is a lot up front that is where One West Mountain is. There is a parcel in back that we are developing next to, that cuts into One West Mountain. And that property actually extends another 15 or 16 feet beyond the edge of that building for redevelopment. All of this could be a shared stairwell and an elevator that will serve both buildings. It also would extend westward encroaching upon the lot that is also owned by the Carly/Bradberry Trust. It is showed there in the exhibit. So we do appreciate staff's support for the variances to eliminate the setback of the west side of this property. But we actually would like to extend it beyond that property line. So I would ask that the issue of the ability to do that be one that is left to the Building Safety Department and the City Attorney. But we have had previous discussions and understand that there is no problem doing that. So I just would prefer on recommendation one that we not refer to balconies, canopies, awnings, etc. Oft setback because in fact the building is encroaching beyond the property line. We are not impacting the Town Center Plaza, as far as this function. That is it. It is a lease that the City has with the Bradberrys. They have a right to use that for public access, so we are not impacting that. We feel like this additional depth that this gives us in this very narrow lot, it gives us additional depth to provide the amount of space the Bradberrys would like to have for their private residence. They would like to have balconies and look down on the sculpture there in the Town Center Plaza. It also gives us the depth in the building facade to have different planes, step -backs, and recesses. It gives it a lot more visual interest to the building facade instead of just a straight wall. Zant: So you are modifying your proposal. We have a recommendation here that we grant you a 5ft variance, and what would it be now? Foster: The variance just applies to that lot. We are not modifying that. Nickle: Except his request was to modify condition number one. Is that correct? Zant: And how would it read? Board of Adjustment February 05, 2007 Page 39 of 73 Nickle: He would like that stricken. The same ownership is on both properties. Foster: All three parcels. Nickle: And I assume that a lot line adjustment was explored to solve some of these things? Foster: It was. Lot line adjustment was explored. We were told that it was not necessary. Chesser: Can staff speak to this? Fulcher: Yes. Ultimately, with it being the same owner on Town Center property and this property, they yes could have adjusted the property line although it was not needed. This is kind of a standard kind of comment. This can be removed. Whether this is in recommendations of approval or not affects this request... It doesn't affect it at all. Zant: You wouldn't have a problem? Fulcher: Yes, we can totally remove it because ultimately if they want to build over their property line and combine those properties... Nickle: That was no problem. Fulcher: As long as it is under the same ownership. What it will affect is future division of that land. It will help them then sell those as separate properties because that property line for all intents and purposes will be gone. Chesser: But at that point they would have to do a property line adjustment, right? Fulcher: Yes, in the future they would have to do a property line adjustment. Create a new property line meeting all setbacks at that point. Nickle: Anyone else from the audience like to speak to this particular application? Seeing none we will bring it back to the Board. I may have cut you off. Did you have any other comments other than those? Ok. I understand the applicant's request to be for approval with deleting condition number one and leaving two and three in. They can just go ahead and do a toss up. So the City Attorney needs to be sure to go over the complex now. Board of Adjustment February 05, 2007 Page 40 of 73 Chesser: And that would allow you to do what you are proposing here? Whitaker: I can tell you from a personal knowledge that Mr. Williams has had several discussions about this and this report from the City Attorney's office is ongoing as they move this project along. Chesser: Ok. So we could strike this and probably be safe? Whitaker: Yes. Motion: Zant Given that, I make a motion that we approve BOA 07-2445 including the striking of staff recommendation number one and the elimination there of, and approval of conditions number two and three. Chesser: And I will second that. Only because you beat me to the motion. Zant Got to get in there somewhere! Nickle: Motion and a second. Is there further discussion from the Board? Would you call roll please. Roll call: The motion to approve BOA 07-2445 carries with a vote of 4-0-0. Chesser: May I say I really like the design of your building. Foster: Thank you. I appreciate that. Board of Adjustment February 05, 2007 Page 41 of 73 BOA 07-2446 (LOVING CHOICES, 522): Submitted by KATIE ALLEN for property located at 275 S. DUNCAN AVENUE. The property is zoned RMF -40, MULTI FAMILY - 40 UNITS/ACRE and contains approximately 0.20 acres. The request is for a reduced front setback along W. Stone St. of 12' (a 13' variance.) Nickle: Alright, we are going on to BOA 07-2446 for a property located at 275 S. Duncan. Suzanne, you have that for us please. Morgan: Yes. This property as stated is on the northwest corner of Duncan and Stone. The applicants have property that is RMF -40 and there is an existing 1,000sq ft structure on the property. The applicant is requesting approval from the Planning Commission to create or have a use for Loving Choices on this property. As part of the development of this site the applicant is proposing to raze the existing structure and construct a new three-story dwelling. The new building for professional office use will be compliant with the zoning setback requirements from Duncan Ave where the existing structure does encroach in that setback. However, there is a proposed encroachment into the Stone Street front setback 12ft. If you look at the property information this is a very long and narrow lot. It was created as an out lot, actually and not a part of the individual subdivision. And now with the Master Street Plan requirements of 2511 of right-of-way from center line, the resulting buildable area is 21ft by l l lft. The applicant's proposal will create a structure that is similar in size to those in the surrounding areas with regard to the depravation of rights. The size of the lot would allow for construction of some structure, however typically when you see lots as narrow a buildable area as 21 ft it is usually a townhome or a very narrow downtown type of development. With regard to resulting actions the condition of the lot area is not a result of the applicants. The building footprint is what the applicant is requesting for this particular development. However it will meet setback requirements onto Duncan and will encroach 6ft less than the primary setback on Stone St than the existing structure. Overall the area of encroachment will increase sightly in area but the structure will be pulled back 611 from the right-of- way. Staff finds that granting the variance as requested will be in harmony with the general purpose and intent of the zoning. It will allow for redevelopment of this corner lot in a manner that will not negatively impact the surrounding properties. Therefore, we are recommending approval of the request for 1311 front setback variance to result in a 1211 setback based on the findings here and the three conditions of approval as listed on the staff report. Nickle: Questions for staff on this? Is the applicant present? Can you identify yourself? Tessmer: My name is Tom Tessmer. A couple of things I would like to draw your attention Board of Adjustment February 05, 2007 Page 42 of 73 to while you evaluate this. First of all, for the building setbacks as said there would be approximately a 2011 wide build able space if this lot abided by the existing setbacks. Obviously with overhanging extra wall space that would grate about a 1511 wide livable space. For this type of building we do need to be ADA compliant and it would be extremely difficult and impractical to build a 1511 wide structure that had any usefulness for the facility. Secondly, if you look at the power point that has been included the purple covered one there you can see an assortment of other buildings that are in the immediate area. (Unclear) evidence of the existing mass and general structure of what is around there. What we are choosing to build which you can see by the elevations is something that hopefully would fit in the era of this neighborhood. The way to think about this is with the services being offered the desire is to present something almost though it is a clinic it looks like grandma's house. So the intention is to put as much detail as we can into the exterior structure to make sure that doesn't offend the area, that doesn't appear too massive or too unwelcoming. Those are all critical in our opinion to the success of having this center located there. At the same time, basically the structure from the main street of Duncan will appear much more as a one and a half story building. We have taken efforts with our draftsmen to squeeze space out of the attic without creating an entire second story on the exterior. Also due to the sloping of the lot the basement area is much more of a walk up basement, an optional 1500sq ft that we would presumably finish out immediately as well. But despite the absolute square footage of it we have designed it to fit very well with the neighborhood. In addition you may have interest to make sure that we can maintain this appropriately we are putting extra money into the budget to build this energy efficient through having highly efficient mechanicals through having low eave windows and additional insulation. We also want to make not of the actual footprint that does exist in the existing home. But we are building to replace that, why it should be a smaller footprint on land. As noted the setbacks are actually further off of the street from Stone St by 6ft. Lastly we certainly hope that you understand that our vision is to take what has been a vacant home for the past several years and an empty rundown asphalt parking lot and beautifying it. And we hope that you agree with our proposal and we are certainly open to any questions that we can answer. Zant: Could you give me a little scope of the size of this agency? How many employees are we looking at and what kind of traffic? That is more of a zoning type of question, but I just wondered if there was any kind of impact that we should be aware of. Tessmer: Certainly. This is Katherine Hansburger. She is the Executive Director. I'll let her answer that. Board of Adjustment February 05, 2007 Page 43 of 73 Hansburger: Hi Mr, Zant. Thank you for your question. I am Katherine Hansburger and I am the Executive Director. Loving Choices is a pregnancy resource center that has been in existence for 20 years in the Rogers area. We are looking to have a facility here in Fayetteville. As we went through with the Planning Commission and based our hours, we are going to be three days a week from about 9:00 to 4:00; roughly low traffic. It is going to be run like a doctor's office where you have appointments only. It is not constant traffic. It is like you can converge on something like maybe where a store would be or a shopping mall. It's a private appointment only kind of circumstance. We would have three paid staff that would be employed for that building and with various volunteers that will come through to help with staff during the day. The way it works is a girl comes in who has questions. We give her counseling and that is free of charge. We also have a nurse on site who can run an ultrasound if she does wish it. We also do longer term parenting classes and give her a skill so that if she chooses to continue on with her pregnancy she could be aided in her choice. That is how we operate. Does that answer your question? Zant: Yes, it does. And frankly it seems like a very, very worthy project and I am fully supportive of it. My comment here with all of these lovely color copies is that I wish I were still in the color copy machine business. Thank you. Hansburger: We have a friendly donor in the community whose color copier has been used on your behalf. Zant: Thank you. Nickle: So, if I understood staff correctly a Conditional Use has been obtained from the Planning Commission. Morgan: Yes, yes it has. Nickle: Is there anyone else in the audience who would like to speak to this application? Yes, sir. Can you identify yourself? Folkner: I'm Doug Folkner. I am the pastor of the First Baptist Church. We own the property across Stone Street. I have looked over the plans and we have no objection to this structure. Nickle: Thank you, sir. Anyone else like to speak to this particular application? Yes, ma'am. Board of Adjustment February 05, 2007 Page 44 of 73 Moss: My name is Stephanie Moss and I am obviously a mother of three girls and a community. We strongly support what Loving Choices does on a daily basis and respectfully request that you to approve this. As a mom of the next generation of ladies that will be growing up here in Northwest Arkansas we would love to have this resource available. Nickle: Thank you. Moss: Thanks. Nickle: Anyone else would like to speak to this particular application? Seeing none I will bring it back to the Board for consideration. Motion: Chesser: What is there for discussion? I move that we approve BOA 07-2446. I believe conditions from staff won't affect the applicant in any way? Morgan: No. Nickle: Ok. With staff recommendations. Zant: I'll second. Nickle: A motion and a second for approval of BOA 07-2446. Further discussion? Jesse will you call the roll? Roll call: The motion to approve BOA 07-2446 carries with a vote of 4-0-0. Nickle: Thank you. Hansburger: Thank you very much. Board of Adjustment February 05, 2007 Page 45 of 73 BOA 07-2447 (KAMINSKY, 522): Submitted by LAURA KELLY for property located at 641 1/2 W. SIXTH STREET. The property is zoned I-1, HEAVY COMMERCIAL/LIGHT INDUST and contains approximately 0.32 acres. The request is for a 5' front setback (a 20' variance), a 3' side setback (a 7' variance), and a 4' rear setback (a 6' variance.) Nickle: Alright, next is BOA 07-2447 for property located at 641 '/z W Sixth Street. Suzanne do you have that for us? Morgan: Yes. This owner and applicant actually owns two properties. One which fronts Sixth St and one which is just behind there. Access from Sixth St through an access easement. In review of the lot situation the applicant has come forward with several variance requests. First I will address the structure that is on 641 Yz W. Sixth St. It is located on that back property and encroaches within side and rear setbacks. It encroaches on the southern setback 6ft and the applicant is requesting a 4ft setback and 7ft along the sides. A 3ft setback is requested. The main encroachment is mainly consists of the stairwell leading up to the building. The applicant would like to refurbish this building and add some awning covers for those stairs which will encroach into the setback I think slightly, maybe a foot further than the encroachment. As for the building on the front, the applicant had requested a setback variance. In looking at the site plans and aerial photography it appears that the setback encroachment was greater than the applicant originally stated in their letter. It appears adjacent to this principal arterial the building is actually located within the Master Street Plan right-of-way. As several of the structures, I believe, are in this location and along College. In order to bring that building into compliance it would require a Oft setback and then further counts of action. I don't know if the applicant wishes to go that route, but I know from their letter that they don't intend to do any redevelopment or anything to that northern structure. We did want to bring it for you to consider if you'd like to grant a Oft variance for that setback. Staff does find that the preexisting nature of the encroachment this doesn't constitute a special circumstance to the slated building involved. The surrounding properties are developed for commercial areas. They are zoned IM -land most are nonconforming in nature do to the age of this development. With regard to the southern structure, if removed raised and redeveloped staff finds that the location of the building along those side and rear setbacks would no more encroach or hinder upon the adjacent properties than the existing structure due to a minimal variance request. Therefore we are recommending approval of front setback and a 5ft variance adjacent to Sixth St for 641 W Sixth Street with the condition that City Council approval of a waiver for the Master Street Plan requirements for Sixth St. Principal arterial are required to bring the structure into full conformity with zoning requirements. Again, the applicant does not necessarily have to pursue that. Also staff Board of Adjustment February 05, 2007 Page 46 of 73 recommends approval of the 3ft east and west building setbacks, 7ft variances for each, and the 4ft rear building setback a 6ft variance for 641 '/z W Sixth St. Nickle: I have a question. If this were zoned C-2 for instance would these variances on the rear building be necessary? Morgan: The variances for the rear building may actually increase along the southern portion, but it would have a Oft side setback if were C-2. So there is some change. Nickle: I was looking at the drawings. It would appear that they have been designed for a residential purpose as well as gallery purpose. Morgan: You will probably need to address that with the applicant. Their information states that this would be an art studios. But it may also be for dwellings as well. Nickle: I didn't know how that might affect it because it's zoned I-1. Morgan: The applicant will certainly have to get zoning approval, a certificate of zoning compliance prior to getting a building permit for renovations. Nickle: Is the applicant present? Kelly: Hi. I'm Laura Kelly and I am representing Kaminski, the owners of this project here. We have had extensive discussions with Planning and they have been very helpful. Actually because of Planning's suggestions to help tidy up our zoning and setback requirements we added the front setback because nothing is going to happen. The Art Experience is being lovingly maintained and really used now. We are just trying to help Planning tidy up some setback violations right there along Sixth St and the rear setbacks as Suzanne wonderfully lined out there. They are just moderate to allow the building to be refurbished and taken care of to get some vitality for the south end of that lot. Nickle: Would anyone else in the audience like to speak to this application? Seeing none we will bring it back to the Board. Chesser: We have one. Nickle: Ah, yes. Applicant: I just wanted to say that the use of the building was not... It's art studios but it is Board of Adjustment February 05, 2007 Page 47 of 73 a category called Artist live/work. There will be residences so that the artists can work in their own studios and live there as well. Nickle: I think it is a great concept. Chesser: You saved me a question. Staff, I'm sorry that I can't recall I-2 right off the top of my head. Is that allowable? Or is there a way that they can? I guess it is more of a point of interest. Morgan: I can speak to that. Nickle: I-1. It's light industry/heavy commercial. Morgan: It is allowed as a residential use. Fulcher: I think we put our live/work unit as Use Unit 12. Kelly: Well, Jeremy and I decided that the permit as a residential use as an accessory use to the Art Experience in the front. Fulcher: So that is acceptable. Chesser: Now, this is more a point of curiosity. This is the type of thing I fully support. Nickle: Alright, we will bring it back to the Board. Are we ready for a motion? Motion: Chesser: That said and being in full support I move, unless anyone has anything to say, that we approve BOA 07-2447 with staff recommendations. Alt: I second that. Nickle: We have a motion and a second for the approval of BOA 07-2447. Any further discussion? Jesse will you call the roll? Roll call: The motion to approve BOA 07-2447 carries with a vote of 4-0-0. Board of Adjustment February 05, 2007 Page 48 of 73 BOA 07-2448 (SHIREMAN, 409): Submitted by MAUREEN SHIREMAN for property located at 1701 E. MISSION BLVD. The property is zoned RSF-4, SINGLE FAMILY - 4 UNITS/ACRE and contains approximately 2.00 acres. The request is for a reduced rear setback. Nickle: Alright. We are ready for BOA 06-2448 for property located at 1701 East Mission Blvd. Andrew you have this for us, please. Garner: Yes sir. This applicant's property is located at 1701 E. Mission Blvd. It contains 0.58 acres. It is zoned RSF-4 and has been developed for two buildings that are being used for the offices of Shireman & Associates Architects. The two buildings are 960 sq ft and 1500 sq feet. Mr. Shireman also owns the adjacent 1.42 acre parcel to the south and east. That is developing utilized for a residence at 1677 E Mission Blvd. The applicant requests a 9ft rear building setback off of the eastern property line for a new 676 sq ft detached dwelling unit. The requested variance would allow a 9ft rear building setback where 20ft is required. The zoning land use consists of single family dwellings around Mission Blvd. The applicant has submitted a site plan and photos showing the special conditions of the property that they felt warranted the granting of the variance which include a stone root cellar, a retaining wall to the east of the office building. It is somewhat historic according to them. The photos there show that indeed they are pretty old. Staff does acknowledge that these are the existing conditions of a property and they are worth preserving in that sense. We find that they provide a hardship granting a variance in this particular case. We do find that there is ample room on the property to provide for 676 dwelling unit as proposed would provide for a detached dwelling in a different location. Additionally the applicant owns the parcel to the immediate east and a property line could be adjusted l Ift to the east in order for the structure to meet building setbacks. What they are proposing is to create a new nonconforming structure which we have talked about which doesn't meet the intent of our zoning regulations. I did discuss with Mr. Shireman the possibility of a property line adjustment. And as I noted in the staff report, he would not like to do that because he would have to adjust - mortgage would have to be adjusted if he did a property line adjustment. We do find that literal interpretation of the zoning regulations would not deprive the applicant of rights by one of the other properties in this same district. It is currently being utilized for an office which was granted years ago under a conditional use permit when this was under our old R-1 zoning, and to add a small dwelling unit would provide the various room to do that on the property without having to get a variance. With that we are recommending denial. I will be happy to help if you have any questions. Board of Adjustment February 05, 2007 Page 49 of 73 Nickle: Questions from the Board for staff? Would the applicant like to speak to this? Shireman: I'm Ken Shireman. This is my wife Maureen. We are the owners of the property. I would make one reference. He mentioned that we discussed the mortgage payments on the parcel would have to be modified. That is incorrect. We discussed that if we moved that property line we would have to modify the legal descriptions on both of those parcels. We have permanent financing on both parcels of land. I don't want to take a chance on being subject to refinancing on those parcels because we have very attractive rates on them. At today's market I just don't want to go there. I think the term I would use is that we don't want to screw with it. I think that is what I told Andrew. And we don't. We could adjust a property line, and we could bring the planned addition into compliance with the ordinance. I know that. However, it affects no property other than our personal residence and we are in compliance with everything on the addition that is planned except that rear setback. We could adjust the property line do whatever and deal with whatever impact it has on mortgages, but the net result would be that the addition would still be in the same place no matter where we draw the line in the sand. I would like to point out that staff did find that the variance would not be injurious to the neighborhood or detrimental to the public in general. I just find it a little interesting. I have been here for the entire meeting and I find it interesting. We are architects, and we are dealing with a project now that all deal with the new zoning ordinances that instead of requiring buildings to be setback so far now we are finding that they must be built within 25ft. We will be back to see you guys about another project that we are working on right now. So we are all struggling with this as we go. But the point being, we purport to promote infilling within the City of Fayetteville, and this is one of the reasons why we bought this two acres which we have owned since 1998. We live on the site. We work on the site. All of these buildings work with our phone and computer system. We support this very strongly and feel very strongly about the environmental impact that we have on this property. You say there is a lot of room. "You have 2 acres." Yes, we do. However, the entire almost eastern third of this is left in a woodland environment. The only call I have had on this property that I have discussed with my neighbors was I had one call today from Winston Sloan. He said "What's going on here."and I said "we want to add on to the white house down there.". This one is known every where as the white house. So he said "I saw some red survey flags up behind your house up there.", and I said "No, those are marking the wildflower trail." He said "Ok. Everything is ok." As long as everybody knows that we don't disturb those woods everyone is ok with everything. I have looked all over the place. We are not just looking for an addition or a dwelling somewhere on that piece of property. I want to add on to the white house. We have tried every way we could to add on it. I can't add in Board of Adjustment February 05, 2007 Page 50 of 73 front. I have parking in front and it would destroy the whole historical nature of the front of the house. That little house was built in 1940 and we have kept it virtually intact except for interior modifications. We like the historical aspects of the property. I like the root cellar. I like the stone wall. And I don't want to tear it down. I guess that is really it in a nutshell. We have tried to do everything we have on that property where it impacts the environment in the least manner and the least harmful way. That is really what we are attempting to do here. If this is approved this building will be constructed almost as a walk-up basement. We are going to dig it into the hillside. There is a lot of slope on that property. I don't know how much it falls from front to back, but it is 620ft deep and it has a lot of slope to it. Probably 60 to 70 feet or more. This house would probably be buried 6 or 7 feet in the ground in there. I want it low. I want it architecturally pleasing. I don't want my neighbors and us to be looking at the back wall of it. There is a lot that impacts this. I am going to respectfully request that you grant us this variance. Nickle: Thank you. Anyone else in the audience like to speak to this application? Seeing none then we will bring it back for the Board's consideration. Zant: I initially looked at this and thought that the staff report, which is technically correct and well done, and I didn't think there was any hardship. But as I looked at it, and then I saw these photos here. What do you call that? A rook? Shireman: It's an old root cellar as near as I can tell. Zant: I began to look at that and your layout on the lot and your proposed location of the building. As far as I am concerned I think you do have a hardship. I think this will be an appropriate addition. I think it will be tastefully done. I see justification for granting the variance. Chesser: I had an odd thought when the applicant was speaking. I don't know if we can do this but it seems to me that.... I first agree with Mr. Zant. Secondly, especially given the nature that the applicant owns both pieces of property. My question is, and I am not sure this is possible; it seems to me that this would all be solved if the parcels could be adjusted or combined in some way. I understand why you don't want to do that at this point, sir. Is there anyway that we can attach a rider that says that once the mortgages are done the adjustment must be made? I guess that would defeat the point of this adjustment. Never mind. I am going to withdraw that right now. Zant: I love the way you think some rime! (General laughter) Board of Adjustment February 05, 2007 Page 51 of 73 Chesser: Putting the cart before the horse. I apologize. Whitaker: Just for future reference though, probably.... Chesser: Not! Whitaker: It would be outside your authority to go that far. Chesser: I am always trying to expand the authority of the Board of Adjustment. Zant: Oh no, don't worry about it. It has been expanded a few times! Alt: We are very good at that. Zant: With that in mind, unless there is any further commentary? Nickle: I would jump right in there. Chesser: Wait a minute, Mr. Chair. Did you get comments from the audience? Nickle: Yes, I did. Chesser: Ok. Zant: I would like to move that we approve BOA 06-2448. That would include the recommendations here of staff we saw fit to approve it. If I can only find them. It is right here. And the findings are here. There are three conditions here. Any new development shall comply with all zoning development regulations. Stone root cellar, stone wall, discussed by the applicant in that variance shall be preserved, etc. And a building permit shall be obtained, of course, prior to construction. All existing structures easements, utilities shall be located on the site plan submitted for building permit consideration. Shireman: We have no problem with that. Zant: Ok. That is standard boiler plate, isn't it? Chesser: I have one question about your motion Mr. Zant. I believe in number two of the findings that staff recommended that they adjust the property line. It sounded to me as if you were... Board of Adjustment February 05, 2007 Page 52 of 73 Zant: I don't see that. Alt: I don't either. Chesser: Am I? You were trying to let me know that I was screwing up. ?: You just kept plowing on. Chesser: How typical of me. I just want to make sure that we don't do something we don't want. Nickle: We have a motion. Alt: Second. Chesser: And a third. Nickle: We have a motion and a second for BOA 06-2448 along with staff recommendations. Ok. Any further discussion? Please call the roll. Roll call: The motion to approve BOA 07-2448 carries with a vote of 4-0-0. Nickle: Thank you very much. Board of Adjustment February 05, 2007 Page 53 of 73 BOA 07-2449 (NOCK-BROYLES LAND DEV., LLC, 284): Submitted by NOCK BROYLES LAND DEVELOPMENT, LLC for property located at 3510 AND 3511 W. BELMONT CIRCLE. The property is zoned RSF-4, SINGLE FAMILY - 4 UNITS/ACRE and contains approximately 0.54 acres. The request is for a reduction in the bulk and area requirements in the RSF-4 zoning district to allow for the creation of a new lot. Nickle: We are on BOA 07-2449 for property located at 3510, 3511 West Belmont Circle. And Jesse? Fulcher: First I need to apologize on my recommendation. Don't ask me how; I guess too many reports were written that day. But the recommendations one and two are not exactly written correctly. If you refer to Table II on page 2 it has the applicant's request. It outlines the three items that we will be recommending and I would ask that we insert that specific language when we get to that point. If we do. Nickle: You are saying that your recommendations would vary as shown in Table Il. Is that correct? Fulcher: Yes, as per applicant's request. This is lots 42 and 43 of Salem Village planned unit development which some of you may be familiar with the planning and development no longer have that with our zoning ordinances. That development type was repealed in 2002 and replaced with a Planned Zoning District ordinance. When this was done in 1997 it was 39 acres at a plotted 111 lots with an overall density of 156 units which is shown in the staff report. It was actually outlined on the final plat that was signed and recorded. However, what was not done under the PUD ordinance which is now under the PZD ordinance is setting out bulk in area requirements. It just was not done. It allowed the Zoning and Development Administrator to administratively approve lot splits which is where you get the discrepancy in the number of units platted, or lots platted at 111 and density allowed at 156. Simply based on four units per acre, 39 acres., 156 units. Although that was not addressed when they changed the PZD so it remains RSF-4 although none of the lots out there actually conform to RSF-4 regulations. They conform to the PUD regulations that were approved in 1997. So the case here is that these two lots and a large void or empty area between these two homes. The applicants came to Planning staff asking bow could they split this out and create another build able lot that is in character and similar to the lots around those. Well, really there are only two choices. Either a planned zoning district to create one lot which staff would not be supportive of and I don't believe the Council would want to see. A planned zoning district for one lot. That leaves us with the Board of Adjustment February 05, 2007 Page 54 of 73 other alternative which is variances. A lot of variances and large variances which I think in other situations, and I think staff has been consistent in not recommending approval of large variances or a lot of variances unless we can make all of the findings within our staff reports. Which I think we were able to do in this situation. The fact is that there are no bulk and area requirements to conform to other than RSF-4. So he can go out to a development with lots that are 20 to 5011 wide or 20 to 40ft wide, about 5,000 sq ft. But under the current zoning ordinances you would have to create an 8,000 sq ft lot with 70 ft of lot frontage. 25ft front setback, etc. which is not at all in character with what was developed out there. Which is why staff is ultimately supporting this request and these three variances and the degree of these variance requests and that certainly there are special conditions. This was developed under a PUD ordinance. It no longer exists after it was repealed by the City. Obviously the actions to create a new lot are a result of the applicants wanting to create one more lot in then build it. One of the reasons that they have to request the variances is not a result of their request but rather of the City's change in policy to repeal the PUD ordinance and adopt the PZD ordinance. And finally, ultimately, the harmony and general purpose, hand the PUD ordinance still been in effect staff would have been supportive of an (unclear) lot split to create a lot in between these two constructed houses. It is consistent with the lots around them. So staff is recommending approval of the requested variances which are three. Which again are outlined in Table Il. And for the language it is a 20 ft lot width, which is a 50 ft variance. And we would round down on the lot area. 5200 sq ft would be the lot area which is approximately a 2800 sq ft variance. And a 10 ft rear setback. That was a requirement in the PUD. Everyone had a 10 ft setback and that is what they are proposing here. Those would be the three requirements that would be required for them to then proceed to the Subdivision Committee and the Planning Commission to request a lot split to create this new lot. Nickle: Jesse, one question I had was that I was a little bit confused about the address. 3510 and 3511 West Belmont? I mean... Is this a single family house? Fulcher: Well, there are two existing lots and two homes have been constructed on them. Those are the addresses shown on our GIS for those two units. Nickle: So this will be between those two units? Fulcher: Yes, but they are going to adjust that property line. Whitaker: Taking parts of both. Board of Adjustment February 05, 2007 Page 55 of 73 Fulcher: Exactly. Will create an open new lot in between those two units. Each of those units are constructed to the further property line. The eastern lot house was constructed further to the east. The western lot the house was constructed further to the west. IF anyone made it out to the site, as soon as you pull into the Belmont Circle you can see this large area where it appears that a house should be built although one cannot be built without variances. Nickle: So it is technically for property located between 3510 and 3511? Fulcher: Eventually it will be between them. But I guess right now it is both. Zant: How about 3510 %2? Nickle: Ok. Chesser: My geometry might protest at this point. Zant: Would I be correct to assume, I am sure that I am, that the purpose of creating an extra lot as such here is to increase value and the income potential of the property? That is the obvious answer. Fulcher: Only the applicant can answer that. Broyles: Originally that was not the case. Nickle: Could you identify yourself? Broyles: I'm Lex Broyles. I am one of the owners on this project. We have constructed the two houses there. We built the two, definitely the biggest house and one of the other largest other houses in the neighborhood on those two lots, because those are the two biggest lots trying to create something that would look nice there and fill that space. And it just doesn't. If we were planning on doing that the whole time, if we were trying to be greedy developers and squeeze every drop of money out of this development we would have gone and done this from the beginning. But this is something that if you drive out there you will notice it is pretty.... It breaks up the proportion. The other thing about these neighborhoods is that they take the garage doors, the trash carts, people parking in driveways they all put them in the back areas. And there are houses behind us so those things that the neighborhood is trying to hide are now visible through this gap in between homes. I would also like to mention that my personal residence is one of the adjoining property owners directly behind there. I can assure you that I would Board of Adjustment February 05, 2007 Page 56 of 73 not be interested in doing anything that would hurt my own personal property value out there. Chesser: You mean that you are one of the ones that they are trying to hide? (Laughing) Broyles: I am trying to hide my trash cart, yes. Chesser: Mr. Chair, if I may quickly comment. Again in the interest of disclosure I know both Mr. Nock and Mr. Broyles named in this adjustment and the younger Mr. Broyles present and my financial interests have aligned with theirs in the past. Although they do not currently and I don't have any immediate idea that they would, I would hope that we remain on friendly terms however. Just to get that clear I believe I can remain objective and will not cross the Rubicon this time if not required. Broyles: I would also like to mention that we still have these lots although we have a contact pending on the finished home. Just so there is not any confusion there that we are shifting houses or any of this under anyone else's ownership. Zant: I appreciate your comments. In some jurisdictions granting a variance to increase income potential is a no -no for granting a variance. But the Counselor will assure me that doesn't apply in the State of Arkansas. It is not one of the requirements. But I did have to ask. Nickle: I think that one of the issues here is because the City's attorneys keep changing these ordinances you see. Zant Does he do that a lot? Nickle: This could have easily been accomplished as a PUD except that we don't have PUD's now anymore. So they have to come and do these because we can't go and rely on going back to the old PUD ordinance and let staff say "Ok this is fine, this is fine, or you can't do this.". So this is an issue where because we have new ordinances applying to an old situation it requires us to use a variance to accomplish what could have been accomplished under the old PUD ordinance. Is there anyone.... I didn't give the applicant a chance to address. Would you like to add anything to staff s comments? Broyles: No. Not unless you have any further questions. Nickle: Anyone else in the audience like to speak to this application? Seeing none we Board of Adjustment February 05, 2007 Page 57 of 73 will bring it back to the Board. Just for clarification, again, what staff is recommending is those variances in Table II and the deletion of Condition One. Is that correct Jesse? Fulcher: Excuse me? Nickle: Table. You are recommending the variances listed in Table II and the deletion of Condition number one? Fulcher: Yeah. Condition one should just be stricken. It is actually the sentence "Staff recommends approval of.." and it refers to a 211 rear setback. That should be replaces specifically with the three numbers listed under Table II applicant's request. Nickle: So the suggested variances in Table II, would that be clear or not? Fulcher: Yes. Motion: Zant: Thus I will move that we approve BOA 07-2449 including the recommendation of staff to support the variances listed on Table II on page 2 of this particular report. Nickle: I have a motion.... Alt: I'll second. Nickle: A motion and a second. Further discussion? Jesse will you call the roll. Roll call: The motion to approve BOA 07-2449 carries with a vote of 3-0-1. Chesser abstained. Board of Adjustment February 05, 2007 Page 58 of 73 BOA 07-2450 (WM. LINDSEY, 596): Submitted by WILLIAM LINDSEY for property located at 1614 S. HANSHEW ROAD. The property is zoned C-2, THOROUGHFARE COMMERCIAL and contains approximately 0.69 acres. The request is for a 2' rear setback (an 18' variance). Nickel: Ok. We have BOA 07-2450 for property located at 1614 Hanshew Rd. And Jesse, you have that as well. Fulcher: Yes, sir. This is property located at 1614 Hanshew. This is just south of Sixth St. The property is zoned C-2 Thoroughfare Commercial. Actually there is a single family home on this property, a detached garage, and storage shed. It is one of those residential looking properties that is actually zoned commercial. It is being used for commercial uses on the property and the applicant also lives there. Back in about 2005 early 2006 the applicant constructed a 22 by 19 shop building on the east side of the existing garage. This would be between that building and the rear property line of the adjacent property owner on the east side. Similar to requests that we have heard tonight this was done without a building permit. Someone called in the Building Safety Division, I believe, about this and asked them to look into it. It was at that point that we contacted the property owners here tonight and asked them to apply for a building permit. We got a survey done. The building does not meet that rear building setback. It does meet all other required setbacks but not the rear building setback. And so he has come before you tonight requesting a variance. It would be an 18ft variance, a 2ft setback from the C-2 zoning district on that rear property line. As far as staff's findings of special conditions, the property is quite large. It actually would allow this size of a building to be located in many places, in staff s opinion, that would meet all required setbacks. I don't think there are any site restraints or slope restraints or anything like that that wouldn't allow this building to be located meeting all the required setback regulations. Again, as far as depravation of rights based on the size of the property, the locations, fairly centralized locations of the existing buildings. Again staff finds that the building that was constructed could have been constructed within the building setbacks in conformance with the C-2 regulations. Granting the requested setback would grant special privileges to the applicant that are denied to the other property owners in the same district. Admittedly I don't believe I went through too much of the staff report, but as far as detrimental to the public welfare, he is meeting his north and south setbacks and so therefore should not be detrimental to them based on that he is meeting those setback requirements. If you have been to the property and have maybe seen some of the photographs the east property is somewhat of a junkyard car repair place and the next has about a 20ft fence on that east property line. I don't Board of Adjustment February 05, 2007 Page 59 of 73 believe that the location of the structure is detrimental to that property owner since that is the setback it is located in. But overall, I am going to make the other findings for the applicant, staff was not able to recommend approval for this setback variance. We recommend a denial with four conditions of approval. Ultimately what they boil down to is that if the variance is denied then the structure should be relocated. A building permit should be pulled to relocate that on that property. Given that this is a commercial property and it would be commercially used it would be subject to items such as commercial design standards and other developmental regulations in the Unified Development Code. I believe Item 2 and 3 lay out time frames to have this accomplished. And condition number four, should you choose to approve this variance, the applicant should still get a building permit and have approved. Have staff look at items such as commercial design standards and things of that nature to make sure that we are meeting all the other requirements. Nickle: Any questions for staff? Is the applicant present? Lindsay: Yes. Nickle: Yes, sir. Would you like to address this? Lindsay: My name is William Lindsay and I constructed this building, or addition to an existing building not knowing full well what a setback was at the time. I am a first time property owner and didn't realize all of the ramifications that could be caused by building this building. I do have permission from all adjacent property owners except for across Hanshew written here. And I just would like to request the variance. Nickle: Anyone else in the audience like to speak to this particular application? Seeing none we will bring it back to the Board for consideration. Chesser: You are strangely silent, Mr. Zant. Zant I am thinking. Chesser: Well I will say that I absolutely hate being put in this position. And I understand ignorance of setbacks and such. However this seems to occur often where.... I wish people would take a look at... Lindsey: Yes, sir. And from here out. It will never happen again. Board of Adjustment February 05, 2007 Page 60 of 73 Chesser: Well, I feel that if we pass this I owe you at the very least a good tongue lashing for this. Lindsey: I have gotten plenty of them. And as I well deserved probably all of them. Nickle: Were you not aware of the necessity of a building permit to construct anything in Fayetteville? Lindsey: I didn't know the actual requirements. I guess there is an 811 by l Oft building you can actually build without a permit. And this is just an addition to an existing building. And I didn't realize that it was necessary because it is not really that big. It is just 20 by 19 and barely visible from the street. Chesser: Could staff speak to the... Do you know anything about the previous building? I don't know how you would. Fulcher: No. Zant: I wish Mr. Kohler were here. Lindsey: This is unique property and it is actually divided into two separate pieces. The reason why I constructed the building where I did is because I would in the future like to have a lot line adjustment replacing the line that actually goes through the existing building that was already there. And being where the line is I would have had to put it on the very back corner and it might have exceeded the setbacks anyway. And in the future I am actually, after all of this is said and done, will be applying for the lot line adjustment. So the existing building that has already been there will not be on the property line so I can sell them separately. Nickle: Are you aware...? I guess you have had a chance to read this report, the recommendation of denial. And then they go on to say that if it approved, if we would grant that setback variance they would still want you to.... Lindsey: Get the permits. Nickle: Be subject to the... Well, number one get the permit. But there is also associated with C-2 zoned property specific uniform development code requirements. Lindsey: Yes, sir. Nickle: They are going to be rather significant to this building. Board of Adjustment February 05, 2007 Page 61 of 73 Lindsey: This building is used for storage, not commercial use. Nickel: I know. But the property is zoned C-2. Lindsey: Actually on my deed.... or, not on the deed but on my mortgage statement it is RMF -24. It is not actually C-2. I didn't realize it was C-2 until I actually went to Planning and got the aeriel. I do have the paperwork. I don't have it actually with me. It is actually on my mortgage that it is RMF -24. Which actually doesn't make that much difference on the setbacks but it does actually on the conditional use of the building. Chesser: We generally hold to the opinions of the City as to zoning rather than mortgages too. Lindsey: Well, I just had what I had in writing and I didn't realize that it was C-2. Chesser: I understand. Zant: May I comment if I could? Chesser: Sure. Zant: I wasn't saying just in jest that I wish Mr. Kohler were here because we had a similar situation on one of the early applications that we heard this evening. He made the comment where someone had built something without a building permit and it got built into the setback area. And he made the comment that the only way to distinguish someone following the law and someone not following the law would be to deny the request of someone not following the law. And now, that was a quotation from him back in December `05 in regard to another application. But is sure makes sense. And that is, I think that I am going to have a hard time approving this on principle because if and when we make a motion to support your request I don't think any of the findings of fact are going to support that motion. They're just not. And we are not supposed to be granting variances in an arbitrary and capricious fashion. We have to adhere to the law unless there is an over riding consideration or a hardship. That is what we deal with, and I am having trouble with this one. Chesser: Just for my edification, staff, I believe in C-2 he would be required to have designed by an architect for this building. Is that correct? No, not correct? Board of Adjustment February 05, 2007 Page 62 of 73 Garner: It doesn't have to be designed by an architect for the size of the building. It would have to meet commercial design standards though. Chesser: Which could incur... We don't know if it will incur additional expense or not but it has the potential to do so. In that case would the existing building that had been there also be required to be brought up to those standards also? Garner: No. Chesser: Just the addition. Whitaker: Prospectively. Nickle: When you modify a building that the commercial design standards come into play and it has been there for five years or something.... Chesser: No, I understand that. But I mean because I thought that I remembered that if a building were repaired or modified that the other parts of the building had to be brought up to code. Garner: It is about percentage. If there is a certain percentage of the building. If he was constructing a 4,OOOsq ft new addition, since that would be a majority of the square footage of the overall structures on the property we would lot code be allowed to look and bring the other portion into conformity based on a formula that is in our code. Chesser: Ok. Fulcher: The other part to consider is that the existing house is a house. It is a residence. It is not a commercial use. Chesser: I understand that and I am taking that into account. I think you made it clear in the beginning that it appears as if it is a residential property even if it not zoned as such. Zant: Let me ask you a question, Bill. Chesser: Sure. Zant: Do you feel that the.... and it was what? A 20ft high fence approximately? Board of Adjustment February 05, 2007 Page 63 of 73 Lindsey: Yes, sir. Zant: That runs to the east side of your property between you and the salvage yard. Do you think that presents an extenuating circumstance that shields it? It is a sight obscuring fence from that direction, that is for sure. Chesser: Yeah. Zant I am just kicking this around. Chesser: I am in favor of some sort of punishment that does not include beheading necessarily. Zant: Or flailing, I appreciate that. Chesser: I guess to some degree this makes it easier to me that you are going to have a hardship with commercial design standards, I imagine. So that there will be expense incurred there which will be a reminder. I understand acting in ignorance. I know ignorance is no excuse. What did I say? You don't spank a baby with an ax, I think is the saying. Zant That would be pretty brutal wouldn't it? Chesser: And so feel like the 20ft fence, the fact that he is within his other setbacks... What is the encroachment again? 18ft. Now on the other hand I will say, and I have said before and I will say again, that in general I support auxiliary structures in the setbacks. Zant: Why? Chesser: Well, I think this was a discussion that Planning Commission had and that this Board has put forth to the Planning Commission in the past that this could be allowed. Am I incorrect in that? Nickle: Well I think it was to do with auxiliary buildings being built in the setbacks. Something along those lines. We had asked the Ordinance Review Committee which they have never gotten around to, to take a look at simply because these little manufactured storage sheds that people like to put back in the corner of their lots and that sort of thing. And as of yet we have had no response from the Ordinance Review Committee. Board of Adjustment February 05, 2007 Page 64 of 73 Whitaker: They were hoping to hear more from Planning staff if y'all want to pursue that I guess we can look at it. But I don't even know that it would have been a help here because it was never suggested that it would just get rid of.. It would lessen setbacks for auxiliary buildings. At least that was my understanding. Chesser: I understand that. I am just trying to be fair all around considering my previous opinions. Go ahead Mr. Chair, I'm sorry. Nickle: I had a question for staff. On number four down there under conditions you have "should the Board of Adjustment approve the requested variance as conditions of approval as stated above shall apply subject to the variance granted". Now would that mean if he goes up and gets a building permit, I guess he wouldn't have to move the building but he might have to meet the appropriate commercial design standards as staff...? Fulcher: Yes. Depending on how this played out. If he maybe just had to relocate it to some degree as opposed to fully out of the 20ft. Visibility, our commercial design standards require. There are a lot of things that have not been explored for us to look at when these other requirements are all dependent on the outcome of the variance. Nickle: I'm not sure even we granted the variance if you applied all this other stuff that it might not be economically feasible for him to try to do it with this building sited where it is. Fulcher: There are a lot of unknowns. At our stand point, without knowing whether the building will remain on the property or not in it's current position. Square footage and uses of the property. There are just a lot of unknowns here under code that will be effected by this request. Chesser: So you are saying that even if we grant it he is not out of the woods yet? Lindsey: Oh, I knew that. Fulcher: Just because you grant it, still going to the building permit and then look at the uses of the property. How the residential and commercial are combined. Whether commercial design standards should be applied to this building and if so to what degree? Should landscaping requirements be applied and to what degree? Chesser: Parking and things like that. Board of Adjustment February 05, 2007 Page 65 of 73 Fulcher: Yeah, there are a tot of smaller details that have not been looked at yet. Alt: Mr. Lindsay, what type of building is this made of? How did you construct this? Lindsey: It is a slab floor. Alt: Ok. Lindsey: It's got manufactured trusses, metal. And then the outer shell is tin, corrugated 3ft tin. Alt: And what, if you were to move it you would have to redo the slab and basically remove the structure. And what is this used for? Lindsey: Basically storage. Alt: Ok. Chesser: Well, Alt: You know that we are trying to do a compromise and help you as well as try to stay as well within the ordinance as we can. And I know that you have letters. Would you mind letting me take a look at those? And these are from your neighbors? Your surrounding neighbors? Lindsey: Except for across the street there is a 27 acre parcel that is owned by a conglomerate from Texas. I wasn't able to actually speak to them. Chesser: So it wasn't that they were negative? It was just that they didn't respond? Lindsey: No, they just didn't respond. And they got a letter because I had to go and get... Chesser: Sure. Atl: Ok. William wants you to "have and finish construction of the storage building addition". Is this the existing storage building? Zant Let me say this to you. I would prefer not to support this. If it weren't for that big 20ft fence there I think I might be looking at this real hard. Negatively. But I think that mitigates to quite the extent the negative impact of this. Board of Adjustment February 05, 2007 Page 66 of 73 Chesser: So given that it is a junk yard, too, frankly goes a long way for me. Alt: Right. Me too. Zant: And so all factors considered if you want to run with this I will fall in line. Chesser: You are going to let me do this? Zant: Yes, why not? Motion: Chesser: Alright. I move that, with irritation with you, we approve BOA 07-2450 with staff recommendation number four taking into account the other recommendations which follow that recommendation. Did that make any sense? Nickle: I think you want to do it with all. Chesser: With all? Nickle: Yeah. Chesser: Number four says that because it has specific variance granted, I think that should... Zant: Should the Board deny. Chesser: Oh, so even if we deny he has to go through these other things and even if we approve he has to go through these things. Nickle: Except, I guess, for number one. Would that be correct? Chesser: Right. I want to not force him to move it but I want him to have to comply with everything else required. Fulcher: Yes. That is what number four, you are approving their requested variance in whole. It sounds like or mostly to the effect the above conditions will still apply. Chesser: Other than obviously relocating the building. Board of Adjustment February 05, 2007 Page 67 of 73 Nickle: Right. Chesser: Well, in that case I will move that we approve BOA 07-2450 with staff recommendations striking the requirements to move the building. Which is obviously obviated by the fact that we are going to give him a new setback. Zant: I will second. Nickle: We have a motion and a second for approval of BOA 07-2450 with staff recommendations with the exception of the relocation of the building. Zant: Chair, I think that staff has a question. Fulcher: Just to be specific, I think that sometimes maybe we make it specific in the staff report that this is for this building as it sits today. This footprint. Nickle: Absolutely. That is the intent of the motion here I believe. Chesser: And the only changes to the building I would support are those as required by the Commercial Design Standards. Nickle: Motion and a second. Further discussion. Jesse would you call the roll? Roll call: The motion to approve BOA 07-2450 was denied with a vote of 2-2-0. With Nickle and Alt voting No. Zant: How do we go about making a different motion? Or do you just want to leave it? Chesser: I think we are fine. Whitaker: You are certainly in order from a parliamentary standpoint for other motions to be entertained. If you can find another one that will fit. But that motion has failed because it was failed to achieve majority of those members present and voting. You just have to find some language that can get you a vote. Chesser: Mr. Chair. Nickle: Yeah. Chesser: You have a compromise language that will support? Or are you unhappy enough that...? Board of Adjustment February 05, 2007 Page 68 of 73 Nickle: I guess the issue that bothers me the most is that no building permit was obtained initially. Had the applicant.... I find that a building in the City of Fayetteville... The public maybe doesn't, but should know in my opinion that you need a building permit. Chesser: And especially the slab on it. Zant: Did you build this yourself? Nickle: If you had a building permit, or if you had made application for a building permit staff would have enlightened you as to all the requirements. Lindsey: Yes, sir. I realize that now. Nickle: I have a hard time approving that if you don't get a building permit. Lindsey: Well, that is the next step. If I were granted the variance I would walk directly, well not right now but tomorrow, and apply for a building permit and comply with all of their recommendations and requirements. Chesser: The only thing that.... Go ahead, ladies first. Alt: Well, I was just going to say that I know the neighboring property right now is nothing that is developed into any type of residential or whatever but that doesn't mean that someday down the road it would be. And there is just a lot of unknown in that area. Lindsey: They have a 0 setback on their side because it is actually the side of the property. Now, if my property as it was bought originally, I would have.... Or, the original owners had a 0 setback on their side of the property. And in the early `80s they were divided into four parcels and therefore Hanshew became the front instead of Sixth St. Well, Sixth St was the original part of the property which I guess doesn't really matter now, but both sides had a 0 setback. Chesser: Can staff speak to that? Fulcher: I think what he was referring to is that at one point in time, and I haven't done the research on this, but his tract was one large tract and it fronted on Hanshew and on Sixth St. And so it had a front setback, a front setback, and then sides and sides. So it would have been a side setback where the building exists now. Board of Adjustment February 05, 2007 Page 69 of 73 Whenever and however it happened the property was then subdivided and it no longer has two fronts. It has a front a rear and two sides. Chesser: Yeah, I understood that. I was just wondering if you could speak to the veracity of that. But it doesn't appear to matter. Nickle: The 0 setback that he speaks of would only be there if it was zoned C-2. So in order to have known of a 0 setback that implies that you know it is zoned C-2 as opposed to Residential. Lindsey: I didn't know any of this until I got all of the research and did everything as a result of.. Nickle: I guess if you consider when it was divided or subdivided if you will into those parcels. Even so that creates... Well, even if it was a normal residential side setback it would be 8ft so it would still be encroaching significantly into the side setback if it was one big track. Lindsey: Yes, sir. I didn't know what a setback was. Nickle: I just have a problem when structures are erected without any kind of building permit. I guess that is my main concern. Chesser: The mitigating factor for me.... As to that part I agree with you in general. But the mitigating factor for me at that point would be, where as I know the construction was significant.... Really it doesn't matter. An addition requires a building permit. I can understand the confusion on the part of a typical citizen in that it was just a storage building and they might not be aware that something like a storage building would not require something... Lindsey: I fully understand that a house would require a building permit. Chesser: For me that is the upshot of it. I feel like I can understand ignorance in that case where it is not a residence. It is not a heated and cooled space. Zant: I have a question of staff. Either Jesse or Councelor you could jump in. But if our applicant were to find some way of modifying his application? Partial movement? Something? Anything? He could come back and reapply could he not with some sort of modification to his application thus far? Chesser: This sounds hauntingly familiar. Board of Adjustment February 05, 2007 Page 70 of 73 Fulcher: It would have to be a major modification to the request as we discussed with the second item, the carport. He can't just come back and have a small change and continually come back and ask for a variance. Lindsey: The only modification that I could do is the eave comes really close to the fence but actually the building is 6 1/z ft instead of 2 from the property line. The reason why it is 2 is because of a large overhang because of more storage space that is available with a larger overhang. That would be the only thing I could do other than disassembling the whole building and moving the entire thing. Chesser: Well, that is interesting. I think, and again I will say that I regret Mr. Kohler's absence. He had spoken of chain sawing off a portion of a building. Zant But would that add to the aesthetics of the building or....? Chesser: Well, I mean with the fence behind it I am not concerned particularly about the esthetics on that side. If we remove the overhang it would become... We could change the setback to 6ft. It would still be a 12ft variance. Nickle: Which would be considered a lot. Zant: Well, this process is designed across the country to kind of bend the Board and bend the applicant and so forth to where requests get funneled through some degree of requirement. In some jurisdictions if you don't change your proposal you have to wait a whole year before you can even reapply. But if you make a significant change to your proposal and your application than it allows you .... and stop me if I'm... Whitaker: I'll stop you if I feel like you are going too far. Zant: Ok. But in some jurisdictions one can make a significant modification to his application and come back pretty quickly. I don't know. Is that pertinent here in Arkansas? Whitaker: Um-hm. Zant: It is pertinent here. So that is something. We are locked up at two/two and I don't know. From our discussions it doesn't appear that we are going to change that. At least from what I can surmise. Unless one of you or us or me? But it doesn't look like we are going to go forward with this. It looks like it is a denial. Board of Adjustment February 05, 2007 Page 71 of 73 Nickle: I would say, I'm not sure what this is. Whether you would call this a condition of approval since we are not approving it. But it says the applicant shall apply and proceed with all applicable building permits or relocation of structure within 30 days. Shop building shall be relocated to an approved location within 45 days from the date that this is denied. Now that said, if we... and I don't know if that was incorporated in the motion. Well, because it was effectively denied by not approving it would that... Chesser: Now that is an interesting question. Nickle: Would that take action? Whitaker: That would take separate action to adopt that language because the original motion didn't speak to that. Nickle: Ok. Whitaker: I would think then that being the case that staff would not pursue that language at this time if he indicated that he wanted to come back with a modified proposal. Fulcher: In either case, regardless of whether the language is use or not here it is an outstanding violation and not obtaining a building permit. It is not approved or denied in either case here. Building Safety should then proceed with getting a remedy for the situation. And if he then turns back and goes to our department and submits a new variance request which is acceptable to our Zoning and Development Administrator being significantly different then this request then we would put a stay again on this violation until it is resolved. Nickle: That answers that question for me. Other than that I guess we have no further motions on this specific application. So we will move on to the next one. Board of Adjustment February 05, 2007 Page 72 of 73 BOA 07-2451 (CABERNET/DE NOBLE, 493): Submitted by DE NOBLE ARCHITECTS for property located at 615 WEST LAFAYETTE STREET. The property is zoned RMF -40, MULTI FAMILY - 40 UNITS/ACRE and contains approximately 0.27 acres. The requirement is 25' front setback and 20' side setback. The request is an 8' front setback (a 17' variance) and a 14' side setback (a 6' variance). Fulcher: Stated staff report with recommendation of approval with two conditions of approval. A building permit shall be obtained prior to commencement of any construction and expansion or rehabilitation of the existing nonconforming structure shall comply with City ordinance requirements. Nickle: Asked for comments from the applicant. DeNoble: (applicant) Advised that he agreed with Staff and their recommendation as stated. Nickle: Asked if there will be any additions in the future? DeNoble: Advised possiblya balcony on the west side of the building. Alt: Asked if they will be with in the setback? DeNoble: Advised yes, the columns will be with in the setback. Nickle: Asked for any public comment. Marinoni: Asked for the conditions of approval to be read. Zant Read them as stated above. Marinoni: Paula Marinoni advised that she and the family were very supportive of this variance. Pritchard: Irene Pritchard advised that she agreed with staff and the only concern was the height. Would like to see that "not" change. Motion: Board of Adjustment February 05, 2007 Page 73 of 73 Zant: Motion to approve BOA 07-2451 with stated condition of approvals. Alt: Second. Nickle: Requested roll call. Roll call: The motion to approve BOA 07-2451 was carried with a vote of 3-0-1. Chesser abstained. All business being completed, the meeting was adjourned at 6.53 PM.