HomeMy WebLinkAbout2009-07-06 MinutesI
MINUTES OF A MEETING OF THE
BOARD OF ADJUSTMENT
A regular meeting of the Board of Adjustment was held on July 6, 2009 at 3:45 p.m. in
Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville,
Arkansas.
MINUTES: June 1, 2009
Page 2
BOA 09-3336 (Kerri Russell, 446)
Page 3
BOA 09-3352 (Wall, 444)
Page 4
BOA 09-3353 (Wall, 444)
Page 5
BOA 09-3354 (Lois Smith, 678)
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ADM 09-3326: (Flash Market #194 Liquor Sales Appeal)
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Robert Kohler
Bob Nickle
Mark Waller
Kristen Knight
STAFF PRESENT
Andrew Garner
Dara Sanders
David Whitaker
Jeremy Pate
ACTION TAKEN
Approved
Approved
Approved
Approved
Denied
Affirmed/Upheld
MEMBERS ABSENT
Sheree Alt
Steven Bandy
William Chesser
STAFF ABSENT
Jesse Fulcher
Board of Adjustment Chair Bob Kohler called the meeting to order at 3:45 PM.
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Approval of the June 1, 2009 Board of Adjustment meeting minutes.
Motion:
Board Member Waller made a motion to approve the minutes from the May 4, 2009
BOA Meeting. Board Member Nickle seconded the motion. Upon roll call, the motion
passed with a vote of 4-0-0.
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BOA 09-3336 (KERRI RUSSELL / 218 E. MAPLE, 446): Submitted by BLEW &
ASSOCIATES, INC. for property located at 218 E. MAPLE. The property is zoned
RSF-4, SINGLE FAMILY - 4 UNITS/ACRE and contains approximately 0.37 acres.
The request is for a variance from lot bulk area requirements for a proposed new lot of
record (lot 2), and an existing encroachment into a side setback (lot 1).
Andrew Garner, Senior Planner, gave the staff report, giving background on the existing
nonconforming structures that were built in 1906 and 1936. Staff recommends in favor of
the requested variances to bring the existing nonconforming garage into compliance and
to permit for the subdivision of the property, as discussed in the findings throughout the
staff report.
Jeremy Pate, Development Services Director, stated that staff recommends a condition
of approval be added to limit the use of the property to single-family only, consistent with
the underlying zoning. He discussed that it was his understanding that the applicant
wanted to convert the existing nonconforming multi -family use into single family.
Mike Sebo, surveyor, and Kerri Russell were present to answer questions and confirmed
that their intent was to renovate the property for single-family use only.
Board Member Kohler asked about expanding the structure.
Mike Sebo confirmed that they will not be expanding the dripline of the structure.
Motion:
Board Member Nickle made a motion to approve the request with conditions as listed in
the staff report and adding the staff recommended condition that only single family use
be permitted on the property. Board Member Knight seconded the motion. Upon roll
call the motion passed with a vote of 4-0-0.
El
BOA 09-3352 (WALL / 828 CLEVELAND, 444): Submitted by JESSE DAVID
WALL for property located at 828 CLEVELAND STREET. The property is zoned
RMF -40, MULTI FAMILY - 40 UNITS/ACRE and contains approximately 0.22 acres.
The request is for a front setback variance to bring an existing structure into compliance.
Dara Sanders, Current Planner, gave the staff report discussing the existing
nonconforming home built well prior to existing zoning and Master Street Plan
requirements. Staff recommends approval of the requested variance.
Jesse David Wall (applicant) agreed to the conditions of approval.
No public comment was received.
Motion:
Board Member Waller made a motion to approve the request with conditions as listed
in the staff report. Board Member Nickle seconded the motion. Upon roll call the
motion passed with a vote of 4-0-0.
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BOA 09-3353 (WALL / 812 CLEVELAND STREET, 444): Submitted by JESSE
DAVID WALL for property located at 812 CLEVELAND STREET. The property is
zoned RMF -40, MULTI FAMILY - 40 UNITS/ACRE and contains approximately 0.06
acres. The request is for variances from lot width, lot area and setback requirements to
bring an existing non -conforming structure into compliance.
Dara Sanders, Current Planner, gave the staff report discussing the existing
nonconforming home built well prior to existing zoning and Master Street Plan (MSP)
requirements. Staff recommends approval of the requested variance with a condition that
improvements to the nonconforming structure exceeding 10% of the replacement cost of
the home will require City Council approval of an amendment to the MSP since a portion
of the structure is located within the MSP right-of-way.
Jesse David Wall (applicant) agreed to the conditions of approval.
No public comment was received.
Board members and staff discussed the need for and purpose of the condition of
approval requiring the involvement of the City Council. Staff explained that the
requirement is an ordinance that was adopted by the City Council. Any variance
from the requirement will require City Council approval.
Motion:
Board Member Knight made a motion to approve the request with conditions as listed
in the staff report. Board Member Nickle seconded the motion. Upon roll call the
motion passed with a vote of 4-0-0.
ll
BOA 09-3354 (LOIS SMITH / SKELTON STREET, 678): Submitted by LOIS
SMITH for property located at 737 W. SKELTON STREET. The property is zoned
RSF-4, SINGLE FAMILY - 4 UNITS/ACRE and contains approximately 0.25 acres.
The request is to allow a small wooden playhouse in the side setback.
Dara Sanders, Current Planner, gave the staff report discussing the nonconforming
structure constructed as an extension of an existing fence. Finding that the request is a
result of a self-imposed hardship, staff recommends denial of the requested variance with
a condition that the structure in violation be removed within 90 days of the Board's
decision.
Louis Smith (applicant) gave a detailed background of the reason for the structure and
the requested variance.
Board members and staff discussed the definition of a structure and the difference
between a pre -fabricated playhouse and the subject structure.
Chairman Kohler asked the applicant if the survey accurately shows the location of the
existing fence.
Smith and staff discussed the location of the fence but were unable to verify that the
fence is located exactly on the property line.
No public comment was received.
Motion:
Board Member Waller made a motion to deny the request. Board Member Nickle
seconded the motion. Upon roll call the motion was denied with a vote of 4-0-0.
ADM 09-3326: (Flash Market #194 Liquor Sales Appeal): Submitted by Alderman
Robert Rhoads on behalf of Eric McGill and Clayton Barnhart for property located at
2333 W. Martin Luther King, Jr. Blvd. The property is zoned I-1, Light Industrial/Heavy
Commercial. The request is for the Board of Adjustment to consider and render a final
decision of an appeal of the Zoning and Development Administrator's interpretation that
sale of beer and wine for off -premise consumption is permissible by the City of
Fayetteville's zoning regulations as an accessory use within the I-1 district.
Jeremy Pate, Director of Development Services, gave the staff report discussing the
applicant's appeal of the Zoning and Development Administrator's interpretation that the
sale of alcohol at the subject property is permitted under Use Unit 18, Gasoline service
stations and drive-in restaurants. He discussed that the applicant disagrees with staff's
interpretation and feels that the sale of alcohol at the gas station should fall under Use
Unit 34, Liquor Stores, which would not be permitted in this property which is zoned I-1.
Justin Eichman, applicant, discussed that a number of convenience stores have applied
for liquor licenses in Fayetteville. He gave extensive background and discussed that the
appeal centers around Use Unit 34. Flash Market is zoned I-1 and does not allow Use
Unit 34, Liquor Store. He discussed Fayetteville Unified Development Code 162.01 (HH)
which discusses a liquor store as a fixed place of selling liquor. He believes that Flash
Market is a liquor store based on that definition. He feels that any sale of liquor would
make this a liquor store and that it is not appropriate to apply accessory uses in this case
because you bypass all of the use conditions for a liquor store. He discussed that the
presentation of a floor plan was not accurate. A much larger percentage of the store is
alcohol sales. It seems that sale of alcohol in this store is not an incidental use.
David Whitaker, Assistant City Attorney, discussed the description in Chapter 162, and
that Chapter 151, Definitions, of the Unified Development Code is generally the chapter
to be used for definitions, although liquor store is not defined in Chapter 151.
Justin Eichman stated that it may be time for a clear definition of liquor store in the
City's code.
Board Member Kohler asked about the sales of alcohol products being less than 50% of
sales.
Pate discussed that as detailed in the staff report that well less than 50% of the floor
space is devoted to the sale of alcohol. He also discussed that the pump islands and space
for sale of gasoline could be added into those numbers which would make the percentage
of space utilized for alcohol sales be even less.
Board Member Kohler as what would make this a liquor store.
Cliff McKinney, Flash Market attorney, discussed that this business is not permitted as a
liquor store under state law.
t]
Board Member Waller stated that state law does not apply to City zoning laws.
Cliff McKinney, Flash Market attorney, discussed that the percentage of the floor plan
that was being utilized for alcohol sales was less than what the applicant discussed but
different than the floor plan presented to this application. He discussed that the floor plan
and layout of displays is varied depending on timing and inventory, etc.
Shane Patterson, Vice -President of Flash Market, discussed that sale of alcohol is less
than 5% of their sales.
Whitaker discussed the background for recodification of the Fayetteville Unified
Development Code which pulled out a prohibition against sale of alcohol in convenience
stores.
Jessie Wall, member of the public, discussed that valuation to society ought to be the
cost for this accessory use. He discussed that a six-pack of beer that results in a drunk
driver that results in a car wreck should be included in the cost.
Board Member Nickle discussed that after reading all of the materials, he agrees with
City staff's determination, although he agrees there is room for debate.
Board Member Kohler discussed that City code may need to be changed to clear up this
issue.
Whitaker discussed that if the board finds an ambiguity, state law requires you to find in
favor of the property owner.
Motion:
Board Member Nickle made a motion to affirm staff s interpretation. Board Member
Knight seconded the motion. Upon roll call the motion passed with a vote of 3-1-0,
Waller voting `no'.
All business being concluded, the meeting was adjourned at 6:15 p.m.