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HomeMy WebLinkAbout2009-01-05 MinutesMINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT A regular meeting of the Board of Adjustment was held on January 5, 2009 at 3:45 p.m. in Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ACTION TAKEN BOA 09-3184 (D. HILL / W. SYCAMORE, 367) Denied Page 3 BOA 09-3186 (CULLS II / WILLOUGHBY ROAD, 717) Approved Page 19 Robert Kohler Sherrie Alt James Zant Bob Nickle Mark Waller Steven Bandy STAFF PRESENT Jesse Fulcher Andrew Garner David Whitaker Steve Cattaneo MEMBERS ABSENT William Chesser STAFF ABSENT Dara Sanders Board of Adjustment Chair Bob Kohler called the meeting to order at 3:45 PM. 1 Old Business: 1. Approval of the November 3, 2008 Board of Adjustment meeting minutes. Motion: Board Member Nickle made a motion to approve the minutes from the November 3, 2008 BOA Meeting. Board Member Alt seconded the motion. Upon roll call, the motion passed with a vote of 6-0-0. 2 New Business: BOA 09-3184 (D. HILL / W. SYCAMORE): Submitted by DAVID M. HILL for property located at 208 W. SYCAMORE STREET. The property is zoned RSF-4, RESIDENTIAL SINGLE FAMILY — 4 UNITS/ACRE and contains approximately 0.27 acres. The request is for a variance from the east and south building setbacks. Andrew Garner, Senior Planner, gave the staff report. The property is located at the northwest corner of Sycamore and Woolsey, within the Hillside Hilltop Overlay District (HHOD). All surrounding property is single family residential and zoned RSF-4 with the exception of Gregory Park to the southeast that is zoned Institutional and owned by the City. The house on the subject property was constructed in 1960 according to the Washington County Assessor's office and is an existing non -conforming structure. The house has been recently modified. Garner discussed the history of the building permit being issued in July 2008 for a "re -roof and repair". Upon a call from a neighbor, and an investigation by the City Building Safety Division, it was discovered that trusses and a new roof had been installed over the existing house, deck, patio, and portions of the yard. The Building Safety Division issued a stop -work order on the property due to the fact that the structure was not being constructed pursuant to the approved permit. The new structure constructed by the applicant encroaches entirely within the front building setbacks off of both Sycamore Street and Woolsey Avenue. The structure also encroaches five feet into the Master Street Plan right-of-way off of Sycamore Street. Encroachment into the Master Street Plan right-of-way may only be granted by the Fayetteville City Council and is not under the authority of the Board of Adjustment. The applicant requests zero -foot front building setbacks off of Sycamore Street to the south and Woolsey Avenue to the east to bring the new nonconforming structure into compliance. As discussed in the findings in the staff report staff finds that special conditions do not exist for this property related to the new proposed building setbacks. The applicant did not construct the improvements as permitted and substantially expanded the roofline with supporting trusses almost 20 feet from the existing structure in some directions. This situation is an egregious violation of building setback requirements and the building permit process. Literal interpretation of zoning regulations would not deprive the applicant of rights that are commonly enjoyed by other properties in the same district. The applicant may repair the roof of the existing nonconforming structure as long as the roof is not expanded further into the required setbacks. These variances would be a special privilege to the applicant. Based on these findings and others discussed in the staff report staff recommends denial of the requested setback variances, and recommends removing the portions of the new structure that encroach further into the setbacks than the existing house. Board Member Kohler stated that the issue was that we have an existing non- conforming structure, that we are not necessarily addressing the existing footprint of the house. Garner stated that the applicant is not asking for a variance for the footprint of the existing structure, but for the new addition's footprint, which encompasses the existing 3 house. Board Member Kohler confirmed that the house's existing non -conforming status is moot when considering variances for the new structure. I have already seen the house even before receiving this Board of Adjustment agenda, and was startled about the scope of it and how close it is to the intersection. I wondered how did that come about? I didn't do anything about it, just thought "oh, that's different." It's an impressive structure manufactured trusses over an exterior space with a tree through it. There are peculiarities about this. I was also struck with the building permit application. I couldn't help but think there was some sort of agenda with the application itself, that the estimate was only $1,800 for all this work, and the wording relative to what was actually constructed. I'm an architect; I do these kinds of estimations. If you look at the roofing alone—I estimate $3,200 just for the roofing, not the structure, which extends beyond the footprint. The building permit grossly underestimated totals and wording does not describe the work that was done. These are problematic reasons to accept what you've done. It's not a re- roofing, it's not a repair, it's replaced decking, and new construction, and it exceeds by a lot, the existing footprint, which is why the building safety department didn't do their normal process from the get -go and require a full review by the Planning Division. We haven't seen this egregious of a violation, as far as exceeding what is allowed by the Unified Development Code. There's also a problematic issue on the other side, with an email from Karl in the Planning Department. I can understand how it may have been confusing what the exact setbacks were particularly when you review the email. He evidently misread the aerial photographs when he says "the structure appears to be out of the setbacks, that is 25 ft. from the property lines on Sycamore and Woolsey," which is not true. We have some oversights, to put it lightly, on both sides. Those are the major ones. Board Member Zant stated that this obviously started and progressed to some extent. He asked Mr. Hill to estimate how much has been invested to this point, in terms of man hours and materials. David Hill, applicant, distributed a new packet of information to the Board of Adjustment, including a timeline of events, letters from different people in the community who are in agreement with me on this venture. To address your question about the cost, the building materials were at a lower price when I purchased them in July. The trusses I bought for $500. When I was asked to estimate the cost for the building permit, I had no idea. I told the permit clerk I was building a gable roof over the existing roof and deck. I was told for a roof I didn't need a permit at all. I told the clerk I was going to go over everything with the new one, and she told me how to fill the permit out. Board Member Zant asked how much had been invested. Hill answered that he estimates he is currently $2,000-3,000 over what was estimated. Board Member Zant asked how he arrived at the original $1,800 figure. 11 Hill stated he bought the materials for pennies on the dollar from different job sites because he works for Home Depot, including the trusses for $500. Before I started building, I had maybe $1000 worth of materials. When the permit clerk asked me, and she did not ask about labor, I told her I had the lumber and will need shingles, and that I didn't know. When pressed for an estimate, I gave an estimate. I went through three hurricanes this year and the price has gone up every time. I don't know how many man hours I've put into it. I have worked on and off for three months. I asked the inspectors when they were out there why they hadn't said anything for three months, and they said it had slipped through the cracks. I did not go to the City to make anybody mad, the main thing I wanted to do was improve my home and the neighborhood. Board Member Kohler suggested we look at the $1,800 as a precedent for something that may or may not have been deception. He asked Mr. Hill to explain about the description of the work for a re -roof repair, which seems to be equally misleading. Hill stated that the building permit clerk asked me what I was doing, I told her exactly what I was doing, and she told me how to word it. When asked what the altered additional area would be, I stated maybe 1850 sq. ft., and that's what she told me to put down for the altered additional area. Board Member Kohler asked what the real area of the house is. Hill stated he had it written down somewhere. He believes Andrew has a copy. Do you mean the total roof line? Board Member Kohler asked if the "additional" figure is what is additional or if it is including the existing house. Hill stated that she [permit clerk] asked how much roof – I estimated—I said 1,850, right around 2,000. Board Member Kohler stated that it was not technically a re -roofing; it is a new structure with a new roof. A re -roofing is when you tear off the existing roof and re -roof it. Hill stated that's what he told her he was doing. Board Member Kohler stated that what you did was not what you put on the permit. Hill stated he told the permit clerk he was building a new roof over my roof, and this is how she told me to put the permit down. Board Member Waller asked if Mr. Hill believes what she told him was accurately representing what you intended to do? E Hill stated that yes, that's what I was doing. I explained it to her, she's an official, I explained everything to her and that's what she told me. The inspectors said that they at the permit office do not know what they're talking about because they don't go out to the job sites. Board Member Kohler stated that a re -roofing is a known definition that doesn't require the Planning division to get involved. With a re -roofing, you're not increasing the footprint. Hill stated he did not increase the footprint. Board Member Kohler stated he did. Hill stated that maybe he was not sure of the term. He asked if a footprint was the same as a foundation. Board Member Kohler stated that no, a footprint includes overhangs. For our purposes, and what is indicated on this sheet, it shows the extent of the roof overhang, which we consider as part of the setbacks when we analyze the structure. Hill stated that the two questions asked at the permit office were: was I increasing the square footage of the house, which I was not, and if I was moving the foundation, which I was not. I consider a foundation a slab. Board Member Kohler stated that it is up to us to decide whether this lack of knowledge — I will call it ignorance to the process and to the Code — warrants a hardship on your part. That's what we need to discuss as a Board. Those are the issues to me, with some extenuating circumstances, clearly. Hill stated that when Mirinda called me and said Steve had been out there and said I might be in the setbacks, so I called and talked to her. She said there are different setbacks in different areas, and sent me to Planning to get the setbacks. I spoke with Karl there. He said it looked good to him using the aerial photos, but he did not have my specified boundaries. I asked him how I get those. He sent me to the City Clerk, which eventually sent me to the Assessors office. I asked the lady at the Assessors office about my setbacks, she said there were no setbacks, but that 20' from the center of Sycamore and Woolsey is my property. I was told I was fine to build to my property line. I assumed from the information I got from everyone, that I was OK. That's why, when we finished drying it in, we got the stop work order. I never designed or planned it to be in the setbacks. Board Member Waller stated the email from the Planning Division referencing the aerial photos is from October 271h. How far along were you on this date? Hill stated he was almost to putting shingles on it. 0 Board Member Waller stated that he hadn't made the outline of the new pavilion (roof) on his house in reliance on this email. You didn't rely on this for your planning. Hill stated that no, he had been working on it for three months. When I got the email, I said I didn't want to be in violation, what do I do? And I went to the Assessors office. Board Member Kohler stated that was a good point. The damage had been done by that point. He asked what was repaired. Hill stated that in photo, P-2, the front porch was rotting from the water coming down into it. The old skylights were leaking. My ultimate goal was to get something that was maintainable and would shed water without these valleys and flat -roofs all combined and cut up. I call it a cut-up roof. I repaired the front porch, the side porch it actually had a small roof over part of the side porch. I got the permit to move the electric meter a month before. Board Member Kohler stated that when he wrote on the permit he intended to cover up the skylights; wouldn't a better description of your work have been to say constructing a roof that envelopes the entire house, instead of covering over the skylights? To me, that's a suspicious way of saying what you did. To me, that indicates someone is trying to minimize the work to the building safety department so they won't come and investigate what is actually going on. Do you see how I might think that? Hill agreed, but stated that is what he told her, "envelope" is exactly what I told her. Board Member Kohler stated that he wrote something else instead though. Hill stated that he wrote what he did because he was told to. I was not trying to be deceitful in any way, shape or form. If I was going to try and do something, it would be difficult because I'm right in the open. I've worked on this for three months and now three months later, there's a problem and I'm told I was slipped through the cracks. Board Member Zant stated he did not slip through the cracks, but was just discovered after a citizen complaint. The Building Safety Division relied on the information that Mr. Hill supplied. It wasn't found out for a few months until the structure grew quite immense, someone evidently called in, and that's when staff began to react. Were you also aware of the fact that we have a graduated scale of fees on building permits relevant to the estimated cost? Hill stated he was not aware of it. I have never filled out a permit before in my life. Board Member Zant asked if he could understand some of the Board's reaction in terms of, if I didn't know any better it would look like someone was trying to skirt higher fees by filling it out in this fashion? Hill stated that he understands that, and if he needs to pay more because he went more 7 than his estimate, he would be glad to do that, there's not a problem with that. Board Member Zant stated that if had he done that (properly estimated his project), he would have had inspectors out there, because that's built into the fee structure. If you had said you were enlarging the footprint, building something over, you'd have had people there and the project would have ceased. That's our reaction as a Board when we see a minimal cost that has become a major structure over the whole house encroaching into two street setbacks. What you built and what you were permitted - it's a difference between night and day. Board Member Kohler stated that typically a variance is based on a hardship. He asked Mr. Hill to describe his hardship. Hill stated he was ignorant to the word "hardship," not sure exactly what you mean. I look at hardship as if I need to build it in to the setback I need to request a hardship. I didn't know there was a setback when I built it. The hardship, I guess, in my opinion that I had, is that I've designed it to incorporate the tree, to save the trees and everything, and to provide shelter over my patio for my child to play in, and that is my hardship. I went to my property line and tried to save and make it look, and if you know— right now, I stopped work so it looks bad right now, but it's not finished because it still needs the cedar lining. Board Member Kohler stated that maybe he wasn't clear enough. Let's say that you came before this board with a design that included what you've already done. You came to us looking for a variance to allow you to do what you've done. The reason you'd be coming to us for a variance would be to request, based on a hardship that you've perceived what you had, for us to make exceptions to the UDC to allow you to do this work by granting you a variance. If we could work backwards, would there have been justification on your part other than a sense of design? Is there a hardship that you feel that you have—a right you feel you have to build this structure as -is, even though it violates the code and you would need a variance to do it? Is there a right you feel you are not being allowed? Hill stated that if he had known there was a setback he was not allowed to build into it, he would not have. If I was going to, my hardship would be that my deck has been there for 16 years. I wish to cover the deck but do not wish to cut down the trees. Board Member Kohler asked what right he was deprived of that would require him to come to this board and ask for this variance. Although, you said you would not have even designed it if you had known there was a setback, so perhaps that's not a fair question to ask. Your deck, as it was, was OK since structures no taller than 36" above the grade are allowed in the setback. However the deck cover would not be allowed since it exceeds the 36". Hill stated my deck as been there for 16 years and the answer I got about my deck was that it was grandfathered in. There was no setback 16 years ago when I built my deck. A 3 lot of the responses I got from my questions about the setbacks was that the deck was grandfathered in. Board Member Kohler stated that may or may not be the case, but it doesn't matter. Is there anyone from the public that has any comments on this? Hill asked if he could make one more point. I was told by the City to put this on my front door while I was working, which it has. (Mr. Hill held up his building permit envelope.) Board Member Kohler asked if there is a building permit in that envelope. Hill stated that they told me to attach this to my front door, and what's what I did. Board Member Kohler stated that permit was based on a re -roofing, based on this language. Board Member Waller asked if Mr. Hill had received a stop -work order on the 6 1 of November? Hill stated he did not. He received a letter from Mr. Cattaneo saying he had been issued a stop -work order, which I had not. Nobody had said anything to us at that point. When Mr. Truax was there, I asked him if everything was OK, he said everything looked good and was structurally sound, he said to go talk to Amy. That was on November 6`h 2008. He said there had been some complaints. Board Member Waller asked Mr. Hill to confirm that Mr. Truax had not given him a stop -work notice on November 6ch Hill stated that he had not. When he left, he said everything looked fine, and to get in touch with Amy in Planning, which I did. She told me there bad been no complaints and that Mr. Truax was the only one who had questions about it. She said that the courthouse should not have told me there were no setbacks and that I would have to file for a variance. Board Member Kohler stated he believed Mr. Cattaneo would have some comments. Mr. Kohler said he had talked to Mr. Truax earlier, and when Mr. Truax had said everything was OK, he meant he was not there with a measuring tape, was doing no analysis, and just sort of in a general way saying it looked OK. Could Steve put some perspective from the Building Safety division on that? Steve Cattaneo, Building Safety Director, stated he would let the record speak for itself. He did not believe Mr. Hill was trying to get away with anything when he came into our office. Not sure exactly how the conversation between Mr. Hill and our clerk went. We received a citizen complaint in October and sent Mr. Johnson out with the intention of getting Mr. Hill in front of this Board, told him to do no more work until we can straighten this out. That's been our message all along. Seeing the permit and what was 0 built; it needed to be addressed. As far as the stop -work notice, David did go out on the afternoon of November 6`h and reached over and posted the notice on the column of the porch because the fence was closed. It's possible the notice could have disappeared somewhere before Mr. Hill saw it. After we posted the notice we monitored the progress and saw the work continue, and that's when I sent the violation notice. Board Member Kohler asked if it would be fair to characterize this as you all threw out some red flags to the applicant to indicate there was a problem, and he continued to work in spite of those road blocks? Cattaneo stated that, yes, he did continue to work despite several instances. Board Member Kohler stated that even though he was made aware that there were potential problems along the way, he continued to work. I didn't see the urgency by Mr. Hill to make this right despite several instances where a caution flag was raised. I characterize this not as falling through the cracks, but maneuvering through the opportunities you see to benefit yourself. It's hard for me to think of this as total ignorance, when you have professionals whose job is to address issues like this. Hill stated that was incorrect, every time the professionals said there was a problem, they told me where to go and I went there. I went to the Courthouse. No one ever told me, until I spoke to Andrew. No one told me that there were setbacks. Everyone said there might be setbacks, but not for certain. I have not done anything since I received the letter from Mr. Cattaneo. Until I went to Mr. Garner, he was the first person. Board Member Kohler stated that Planning is really the only department that deals with the UDC, the County Clerk doesn't. What she may have meant was that there are no setbacks shown on the survey. That is a plausible explanation. Think of the people in Fayetteville who have the desire and maybe even the need to build within the setbacks, but they don't, because they don't have a hardship, it's just a desire to build. It doesn't constitute a hardship. They're not being deprived of rights. There's lots of people in this city that wish to build but can't, because the code won't allow it. If we make an exception for you, how fair is it for all these people who have the ability to but don't because they're respecting the code. That's the problem we have with every case. Your case illustrates this more profoundly. It's a struggle for us to look for your hardship and to decide if ignorance is a good reason to grant a variance. Hill stated he can understand that. David Whitaker, Assistant City Attorney, stated that before us is a request for two variances. All we are asking today is if there is justification to grant the request for the variances from the setbacks. All the rest of the issues with the building permit, etc., are not truly before this Board and do not need to be decided today. Board Member Kohler stated that the other issues are supportive to this decision. He asked if there was any public comment from the audience. 10 Sally Hill, Mr. Hill's mother, stated that the leakages through the skylight have caused his daughter to have many infectious colds and sinus problems. He doesn't know if he knew what you meant by "hardship," but my version of hardship would be helping to reduce sickness. Board Member Kohler stated that he could have fixed the skylights and not violated the setbacks requirements. Doug Adams, neighbor, lives on Vandeventer, stated that he drives by the site a lot and doesn't believe that the structure is injurious to the neighborhood or streets. He believes the structure is complimentary to the neighborhood, including neat, innovative ways of preserving the trees. I am sympathetic to someone who is not a contractor or building professional, going through a process that is baffling to him. I know there has been a concern that he has been less than forthcoming, but this gentleman does not strike me this way at all. He seems to be a person who did his due diligence, through great lengths to try and do what he was supposed to do. His hardship would be that he would have to remove the work that has been done. It would look worse to tear it apart. Board Member Kohler stated that aesthetics isn't something we are empowered to consider as a Board. In this case it is setback violations. Edward Tabor, neighbor, stated that it seems that what we have here is a case of a citizen who was acting in good faith in trying to improve his property, going through the legal procedures, and there may have been a lot of miscommunication on both sides, but at this point the question the Board has to ask is whether the hardship Mr. Hill would suffer in trying to undo what he's already done would be more costly than what he's already spent on improvements to the property. The question is whether we should subject him to this hardship rather than give him a variance to do what he's already done. I went by and it didn't strike me as something damaging to the neighborhood. Board Member Zant stated that what we're looking for are the hardships not caused by Mr. Hill, in other words topographical challenges, rock formations, etc. I think Mr. Hill tried very much to show us what he was dealing with, but even if he had expended a small fortune on what had happened here; it would not be a legally defensible hardship under these circumstances. Tabor stated that in itself, no, but the fact that he was acting in good faith and had tried to deal with the City to find out what he could do — I resent the fact that you are implying he was not acting in good faith and trying to circumvent the law. You are not giving him the assumptions you give to accused felons. Board Member Zant stated he believes we are, but we are dealing with all the materials in our hand that you don't have, and are looking at things from two perspectives. I don't mean to be disrespectful to you sir or to Mr. Hill but we are looking for a legally justifiable cause to make an exception to an ordinance, and we are struggling with that 11 because we are not seeing what we are normally looking for in terms of a justifiable hardship. Unfortunately economics are not one of them. We live in a fairly sophisticated society. I think his intent was honest, but unfortunately the road to Hades is paved with the bricks of good intentions. I don't file my own income tax. Between my wife and my particular financial structure, it's inviting audits from IRS unless I deal with a professional. Somewhere along the line Mr. Hill decided not to get a professional, and he decided to try it himself and get it done. Unfortunately, a professional could have saved him from entering any setback violations, but unfortunately it has happened, and here we are. Tabor stated that perhaps it should be a requirement that a person wanting to make improvements on their house should consult a professional, but as I understand it, there is no requirement with the City. Board Member Zant stated that as it was worded, the request was to cover over skylights and re -roof the house. The staff looked at it and said we don't even have to send inspectors out. People do simple things like this all the time and take care of it. I think everyone understands now that there was room for some belief in the beginning that maybe some of this was circumvention. The more Mr. Hill has spoken the more I have to believe it wasn't intentional. We have to establish that, but thank you for your comments. Board Member Waller asked Whittaker if we are correct in our assumptions that financial hardships are not a hardship we can consider. Whitaker stated that is correct. Board Member Waller stated that as a legal matter, we are not able to consider that. Whitaker stated that if you are looking at topographical issues on it, or the odd shaped corner lot, all the things you've seen as a Board before, where it comes to a point where not granting a variance would make it so exorbitantly expensive that no reasonable person could even attempt to build the lot, then yes, you can consider that as a factor. But that really ties back more directly to the topographical or engineering requirements of a particular site or the odd shape of a site. But typically the economic argument would be, well, that just runs across a project, that's too much and I don't want to have to spend that much money if I don't have to— that's not hardship. Board Member Kohler asked if there were any further comments. Hearing none, public comment was closed and discussion was brought back to the Board. Board Member Zant stated that we have, on some situations where staff couldn't work things out; we have tabled a number of issues like this. But seeing as how we aren't dealing with the original footprint here, I've looked at this real hard, and you know when it came to saving a tree a number of months back for a lady who had a hardship, I was right there for her because I believed it was legitimate. But I've looked at this, and I think 12 there are certain things I believe the applicant could probably do, including working with professionals and a professional working staff. I think he's going to have to modify his structure. I think he's going to have to bring it back to some degree. It's not that staff wouldn't recommend some variance off of the footprint that we're looking at, but we're not dealing with that today. The only thing I can see clearly to do, what I would prefer to do, would be to ask for a denial on this. Board Member Kohler asked we go back to another possible alternative. If we tabled it, could the applicant come back with another request that may make it less egregious, and have us consider that? That might solve your problem with City Council. It might make it a little more palatable for us. I'm not saying we would automatically grant that, since we would all have to vote on it individually. Board Member Nickle stated that we don't have a survey of the property, number one. Number two; we don't know how much, for instance, it appears on this drawing that in fact the structure encroaches into the right-of-way. If I'm not mistaken, we don't have any authority to grant a variance into the Master Street Plat right-of-way. Whitaker stated that staff pointed that out. City Council would have to grant that. Board Member Nickle stated that we can't approve what he's asking for anyway, in that respect. We could say we don't mind it, but it would still have to go to Council to approve the encroachment into the right-of-way. Whitaker stated that you could grant the one on the south without any trouble, it's the one on the east that encroaches into the right-of-way. Board Member Nickle stated that at least it appears to. We don't know because we don't have a survey. I have a hard time certainly going forward with a significant variance when we don't have a survey so we can know exactly what we're dealing with. If we chose to table this issue, and if he were willing to get a survey, and if he wants to engage some professionals to help him look at this thing with staff to come up with something they can not be so opposed to, we can look at that at a future meeting. Unless he was willing to do something like that, I see no reason to consider tabling. I have a real problem voting for a variance when I don't have the facts, and by facts I mean a survey. Board Member Kohler asked where the information in the agenda packet came from, and who drew it. Garner stated he had met with the applicant a couple times and helped him put together that site plan. That's my handwriting on the site plan. He turned in some markings on some graph paper and went out and took measurements a couple of times. The site plan that he was working on was not going to be legible for the Board. We talked about getting a survey and that wasn't an option for Mr. Hill, so we put that together. That's based on measurements of the pavement, the new structure, and existing right-of-way. It's not to a surveyor's accuracy. 13 Board Member Kohler asked if the buildings themselves are based on a satellite photograph. Garner stated that was correct. Board Member Zant asked what the cost was to Mr. Hill for this application. Garner stated it was $100. Board Member Zant stated that he thinks this matter ought to be denied in its current form. But I do think the City could, all factors considered, we heard maybe there was an error by certain personnel along the way, maybe the City could give him some consideration and let him immediately re -apply for something staff could live with, and make a modification, and bring the entire package back with all necessary measurements and requirements. Board Member Waller stated that on December 3`a Mr. Hill said he had someone working on a drawing with dimensions. Hill stated that it was Mr. Garner. He said it was illegible but when I brought it to him he told me to get graph paper and make each square represent a certain number of feet, which I did. I made it all square, I made the street and everything- he said no that's not right, your house is actually this way and the street is not in the place it's supposed to be. So he re -drew it. If you look, the tip of where the tree is, is in the most variance, the rest of the covered deck is not in as much variance because the street actually goes to the east. It's not square. I was going by what Mr. Garner told me to make to try to graph it out on paper, and that's why he actually filled it out on his. The whole structure is in the variance, it's just kind of catty -cornered in there and the street actually should be to the east 5-10 feet more according to Mr. Garner when we he was actually out there with me on site. Board Member Kohler asked Mr. Hill if he sees any benefit to do what's been suggested and get some more accurate information before we vote yes or no? Hill stated that he would love to see the City do a survey. Board Member Kohler stated that the survey would have to come from the applicant. The City is not in the business of providing private surveys. You would have to hire a surveying company, and it might cost a couple hundred dollars, and it might behoove you to do that, because if this is the most accurate drawing we have at this scale, just the width of the line itself is a couple of feet. It may benefit you to do that is what I'm saying. Or, you could run the risk of us voting today and maybe we should vote anyway on this particular one. It would not keep you from coming back with a modified proposal based on new information. We could look at it with a fresher perspective. 14 Hill stated he's all for doing what's right. I've been trying to do what's right with the City and everything and going through the steps and people they told me to go through. That's what I've tried to do. When he told me to draw it out, he gave me the satellite picture and lot measurements, I drew it to the best of my knowledge, and he said the street's over this way more. I've worked real hard and I value Fayetteville very much, and as a taxpaying citizen I wanted to improve my house. I didn't know there were setbacks. I wanted a house to complement the neighborhood and Fayetteville. Every day people are telling me what a good job I've done and how it will make Fayetteville stand out because somebody took the initiative and creativity to build something that looks nice. I wanted to follow the law, that's why I went through the steps I did. I did exactly what I was told. Board Member Nickle stated that he would guess that in today's market, a survey would cost between 300-500 dollars. It's very difficult to talk about potential encroachments in the right-of-way without that knowledge. A decision has to be based on facts. Without a survey we can't really determine what the facts of the property are. Most people that come to us with a variance request have a survey of the property so we can make a judgment based on that survey. Hill stated that he was told by Mr. Gamer that he didn't need a survey. Board Member Nickle stated that it's not a requirement. Hill stated that if he knew, he would have got one. Board Member Kohler stated it's not about doing the right thing; it's about a decision on your part to clarify what exactly we're dealing with, and help us make the decision. Board Member Waller asked if he had a survey from when he purchased the home. Hill stated he didn't know if he did or not. He bought the house from his parents, so he probably did not get a survey. He will check in and look if that will help the Board. Board Member Kohler stated that he understands this is a critical issue, and they are trying to consider all issues, but the Board has made it clear a survey would be helpful. If you choose to do that, what I'm interested in hearing is whether we have a motion to vote as -is, or if we have a motion to table it, and what are the differences between the two. Board Member Nickle stated he guessed the majority of the board would deny the request as -is. A survey is something that would help us, but wouldn't necessarily help us unless Mr. Hill was willing to make some modifications to his request vis-a-vis encroaching in the right-of-way. I have a hard time thinking about that. To me, it would not reflect favorably unless he was willing to look at some modification of the current structure. Unless a survey shows we don't have problems like that. Board Member Kohler stated that it's possible a survey could also show that the 15 problem is not as bad. We are not requiring you to get a survey, and it won't necessarily guarantee it will solve your problem if you get one. Board Member Zant asked what could be the cleaner process, all factors considered: a denial and encouraging the applicant to re -submit and work with staff and perhaps his own professional to re-engineer this structure, or to table and see if he could work it out. I was of the mind that tabling wasn't going to be enough for any good. Whitaker stated that to be perfectly frank, I think your instincts are headed in the right direction. Because the encroachments are vast here, because there is an issue of an actual structure being built into two setbacks, I don't know that just the provision as you alluded to of providing a survey at a later meeting would really change the essence of the difficulties with this application. If you were in a situation where you had the applicant saying to you, "OK, what if I remove this, this, and this part, can I bring it back and see if we have a variance," then perhaps you'd be in a situation where tabling might be an efficient remedy. This is one of those cases which is an after -the -fact application, and we know that always makes it more difficult to try and reach a compromise. You have to ask yourself, as it now exists, would you vote to approve it or not approve it? If your answer is that you would vote to deny it, then I doubt tabling is going to take those objections away, unless there's some kind of commitment to drastically reduce the footprint of the new structure. Board Member Kohler asked if it's fair to say that if we tabled or denied, his strategy would be the same. If it were to get a survey or re-engineer it, either way, he could come back, either by tabling and modifying this request, or coming up with a brand new request with new parameters, either way his strategy is the same. Whitaker stated that it may be different by degrees. If you deny, there has to be a significant difference with the re-application. You couldn't just pull it in 6 inches on each side and ask for a new variance. Staff would probably not judge that enough of a difference to constitute a new request. Board Member Kohler stated that if we denied it, it would also trigger a 90 -day tear - down. Whitaker confirmed that was correct, and it would also trigger the other Building Safety issues. Board Member Zant asked if he could beat that with a new application with significant modifications. Board Member Nickle stated that he could, but he'd have to have a survey and he'd have to have some kind of professionals. They would have to talk to staff. It gives him more flexibility if we table it. If it never comes back, then it automatically dies after a year. If he does, we can consider what changes he's made, if any. 16 Board Member Zant stated that if we table it, we aren't going anywhere, this could be tabled indefinitely. Garner stated that the applicant has an application before you for an existing structure that he is requesting variances on. He hasn't proposed anything else other than that, such as a reduced variance request, so that's what we need to keep the focus on. There's a new structure that's been built, and he's asking you to approve. If he wants to come back at a later date with a new application, that's up to him. Motion: Board Member Zant made a motion to deny BOA 09-3184 for both variances in accordance with the findings of staff. Board Member Kohler asked about the language in the staff report that says "staff recommends denial of the requested front setback variances based on the findings herein and that the nonconforming structure shall be demolished or removed" — there's some ambiguity there about a nonconforming structure, because I read that as the existing nonconforming structure meaning the new addition, but the old existing nonconforming structure — the old house — maybe we could say that he doesn't have to tear down the entire house... Garner stated it could be changed to say "the new nonconforming structure shall be removed from the setbacks." Board Member Zant stated he would modify his motion to encompass that. Whitaker requested the word "demolished" be removed from the language, since the word "removed" achieves what is necessary without giving the impression that the entire building is required to be knocked down. Board Member Nickle asked for clarification that that would not include the deck itself, regardless of whether it is conforming or not. Garner stated that is correct. Board Member Kohler requested that staff starts using the term "drip -line" instead of "footprint," for our purposes. It's far more concise. Motion: Board Member Zant made a motion to deny BOA 09-3184 for both variances in accordance with the findings of staff, and that the new nonconforming structure be removed from the south and east building setbacks within 90 days. Board Member Waller seconded the motion. Upon roll call the motion was approved with a vote of 6- 0-0. 17 Sally Hill stated that there is a child involved, and he's going to have to tear all this stuff down. What's he supposed to do when his child has to go to the hospital? Board Member Kohler stated that we don't Sally Hill asked if they don't consider a child's well being. Board Member Kohler stated he wasn't saying that. How you finally resolve this thing is still up in the air. We voted to deny allowing the structure to be in the setback. If you want to reapply and come back, we can't guarantee anything, but we will certainly look at it if staff considers it enough of a change to warrant that. As it stands now, in fairness to all the parties involved, the Board has decided this is not an acceptable condition on this site. Board Member Nickle stated that just for clarification, when we spoke of new nonconforming, the nonconforming portion would be that that is in the setbacks, not the roof structure that is currently in place over the original existing house. That can remain. Garner stated it was just the portion that extends out beyond the existing house and into the setbacks. Sally Hill asked what is it you want us to do, cut our house half off? Is that what you want? Whitaker stated that at this point, the Board has made their decision. Staff will work through possible solutions with you. Sally Hill stated that we tried to work with you but you wouldn't work with us. You tell us one thing and then tell us another. Hill thanked the Board for their time. I'm really sorry it came to this but I never meant to violate anything. Board Member Kohler stated it was very difficult for us when it's already been done. Hill stated he was trying to improve the neighborhood so much and to tear something down that looks so nice and will eventually really add to Fayetteville. Board Member Zant stated that he honestly believes Mr. Hill is a man of good intent, and I think you've tried here. If you can get yourself a couple professionals to work with you, I think you can modify what's there and this Board and staff will be sympathetic to a sensible solution. The ball, in essence, is in your court. You have to make some decisions. Sally Hill asked if there is any way you can put in writing what he needs to do. E Board Member Kohler stated that Planning staff will help with that. 19 BOA 09-3186 (CULLS II / WILLOUGHBY ROAD, 717): Submitted by CLAY GROTE HGM CONSULTANTS, INC. for property located at 585 W. WILLOUGHBY ROAD. The property is zoned I-1, HEAVY COMMERCIAL/LIGHT INDUST and contains approximately 2.69 acres. The request is for a reduced front setback. Jesse Fulcher, Current Planner, gave the staff report, recommending approval of the requested variance, with conditions as listed in the staff report. Board Member Kohler stated if the building will push back within the required setback, I was looking at the site plan and the site plan wouldn't even change at all. There would be no impact on the site if the building was pushed back 7 feet. To me, that's a negligible impact. Nothing would really change, there's no impact. Eric Heller, HGM Consultants, stated he was representing Joe Maynard, the property owner. As was mentioned, if you've been out to the site you'll notice there is a retaining wall along the front of the existing building and the construction of the extended retaining wall that would help greatly with the straight line construction of a 10-15 ft. tall retaining wall. There is an existing concrete drive below the building which is actually confining it to where it is, that was all just poured. Our biggest concern is, it's only going to be 45 feet. It's a pretty small variance. There's room for the sidewalk proposed, a 15 ft. green space, and the parking area. No public comment was presented. Motion: Board Member Nickle made a motion to approve the requested variance. Board Member Alt seconded the motion. Upon roll call the motion was approved with a vote of 6-0-0. All business being concluded, the meeting was adjourned at 5:25 PM. 20