HomeMy WebLinkAbout2002-12-02 - Agendas 12/2/02 Ad 11/27/02 age I
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CrFY OF FAYETFEVII-I-E
AGENDA NOTICE
BOARD OF ADJLJST1MENT
Monday,December 2,2002
City Administration Butding,Room 326
113 yy�Mountain
Fayetteville.Arkams'l
PUBUC MEEIING-OPEN TO�L City of Fayetteville
the folovving items Wil be considered:
Approval of minutes from the meeting of November 4,2002
Old Business:
VAR 02-29�(X)(1036):Veranda(Norbash.pic 291)was submitted by Sid&Sheme Nomash for property
locate:1 at 2482 Jimmie Ave. The property is scred R 1, Low Densly Residential and contains
approximai 0.44 acres. The requirement is for a 20'rear sedback. �flhe request is for a 11'rew
setback(a 9'vanance).
At interested parties may apidesar and be heard at the public hearings. A copy of the proposed
amendments and other pertinent data is upon and available for inspection in the Office of City Planning
(575-8264),CrIyAdmunistratIon Building,113WeadivountenStreet,Fayettevile.Aroansas.Alinterested
parties are invited to havim the petitions.
Interpreters or TDD for hearing impaired we aysJlabIe for all public meetings. 72 hour notice is required.
For ffther information or to request an interpreter,plane call Hugh Earnest at 575-8330.
CITY OF FAYETTEVILLE
AGENDA NOTICE
BOARD OF ADJUSTMENT
Monday, December 2, 2002 - 3:45 p.m.
City Administration Building, Room 326
113 West Mountain
Fayetteville, Arkansas
PUBLIC MEETING - OPEN TO ALL
The foflowing items wiH be considered:
Approval of minutesfrom the meeting ofNovember 4, 2002
OldBusiness.-
VAR 02-29.00 (1036): Variance (Norbash, pp 291)was submitted by Sid& Sherrie Norbash
for property located at 2482 Jimmie Ave. The property is zoned R-1, Low Density Residential
and contains approximately 0.44 acres. The requirement is for a 20' rear setback. The request is
for a 1 l' rear setback(a 9' variance).
All interested par-ties may appear and be heard at the public hearings. A copy of the proposed amendments and other
pertinent data is open and available for inspection in the Office of City Planning(575-8264), City Administration
Building, 113 West Mountain Street,Fayetteville,Arkansas. All interested parties are invited to review the petitions.
Interpreters or TDD for hearing impaired are available for all public meetings. 72 hour notice is required. For
further inforniation or to request an interpreter,please call Hugh Earnest at 575-8330.
* Please run this display ad Sunday, December 1,2002**
PO#00-000-2923-001 **Proof Requested**Contact Janet with questions or comments at 575-8263 Thanks!
FAYETTEVILLE
THE CITY OF FAYETTEVILLE,ARKANSAS
113 W. Mountain St
Fayetteville,AR 72701
Telephone:479-575-8264
AGENDA FOR A MEETING OF THE BOARD OF ADJUSTMENT
A regular meeting of the Board of Adjustment will be held Monday, December 2, 2002, at 3:45
p.m. in Room 326 of the City Administration Building, 113 West Mountain, Fayetteville, AR,
72701.
The following items will be considered:
Approval of minutesfrom the meeting of November 4, 2002
OldBusiness:
1. VAR 02-29.00 (1036): Variance (Norbash, pp 291) was submitted by Sid& Sherrie
Norbash for property located at 2482 Jimmie Ave. The property is zoned R-1, Low
Density Residential and contains approximately 0.44 acres. The requirement is for a 20'
rear setback. The request is for a I V rear setback(a 9' variance).
All interested parties may appear and be heard at the public hearings. A copy of the proposed
amendments and other pertinent data-is open and available for inspection in the Office of City
Planning (575-8264), City Administration Building, 113 West Mountain Street, Fayetteville,
Arkansas. All interested parties are invited to review the petitions.
Interpreters or TDD for hearing impaired are available for all public meetings. 72 hour notice is
required. For further information or to request an interpreter, please call Hugh Earnest at 575-
8330.
FAYETTEVILLE BOA meeting of Nov. 4, 200
TTIE CITY OF FAYETTEVILLE,ARKANSAS
113 W. Mountain St.
Fayetteville,AR 72701
Telephone:(479)575-8264
P�ANNING DIVISION CORRESPONDENCE
Fayetteville Board of Adjustment
FROM: Shelli Rushing,Associate Planner
THRU: Tim Conklin, A.I.C.P., City Planner
DATE: October 30, 2002
VAR 02-29.00(1036):Variance(Norbash,pp 291)was submitted by Sid&Sherrie Norbash for property
located at 2482 Jimmie Ave. The property is zoned R-1,Low Density Residential and contains approximately
0.44 acres. The requirement is for a 20' rear setback. The request is for a I l' rear setback(a 9'variance).
RECOMAIENDATION:
Staff recommends approval of the requested rear setback variance,subject to the following
condition.
1. The variance shall apply only to the 740 sq. ft. addition to the rear of the house.
Ordinance Requirement Applicant's Request
Rear Setback 20' 1 V (9' variance)
Comments:
The"CONDMONS OF APPROVAL"listed in thisreport are accepted in total without exception by the
entity requesting approval of this conditional use.
Name: Date:
BACKGROUND:
Property Description: The subject property is located north of Township St. and east of College
Ave.A 2,400 sq. ft.single family structure sits on approximately.44 wooded acres and was built in
the early 1980's. The property is zoned R-1 Low Density Residential and is surrounded by single-
family structures,also zoned R-1.The property has a steep slope and the structure sits back from the
right-of-way approximately 87.5'. The required front setback is 25' and the structure is setback 62'
more than required.A 15' easement is located on the south side of the property.An in-ground pool is
located in front of the house.
H:\USERS\COMMON\PIANNING\Rep�ts�BOA REPORTS 2002\November\nmbash_var02-29.dW Board ofAdjustment
December 2, 2002
VAR02-29 Norbash
Page 1.1
Proposal:The applicant proposes to make a 740 sq.ft.addition to the rear of the existing structure,a
3 1% increase in size. The lo'cation of the proposed addition will avoid the removal of four mature
trees on the north side of the structure. The addition extends 9' into the required 20' rear setback.
The addition will be no higher than the peak of the existing roof
Request: The applicant is requesting the Board of Adjustment to grant a variance from the 20'rear
setback requirement of an R-I district and permit an I V rear setback.
Public Comments: A neighboring property owner is not in support of the request finding that the
proposed addition will obstruct their view of the city.
Recommendation: Staff is recommending approval of the requested rear setback variance. The
condition of the property with its steep slope and mature trees combined with the location of the
existing structure restricts where additions and improvements can be made. The proposed location
for the addition is the most appropriate location on the lot.
SURROUNDING LAND USE AND ZONING .
Land Use Zoning
North Single-family residential R-I Low Density Residential
South Single-family residential R-I Low Density Residential
East _ Single-family residential R-1 Low Density Residential
West Vacant R-I Low Density Residential
GENERAL PLAN DESIGNATION Residential
FINDINGS:
156.02 ZONING REGULATIONS.
Certain variances of the zoning regulations may be applied for as follows:
A. General Regulations/Application. A variance shall not be granted unless and
until an application demonstrates:
1. Special Conditions. That special conditions and circumstances exist which are
peculiar to the land, structure,or building involved and which are not applicable to
other lands, structures or buildings in the same district.
Finding: There are three special conditions to this property that warrant this variance
request.First,the existing structure is located more than 801 from the right-of-
way,leaving approximately 301 in the rear yard. Second,the steep slope in the
front yard caused the house to be located further back on the lot. Third, an
addition to the north of the structure would result in the removal of four mature
trees.
H:\USERS\COMMON\I)LANNING\Repau\BOA REPORTS 2002\Nmember\nmb�h—varO2-29.dw Board ofAdjustment
December 2, 2002
VAR02-29 Norbash
Page 1.2
2. Deprivation of Rights. That literal interpretation of the provisions of the zoning
regulations would deprive the applicant of rights commonly enjoyed by other properties
in the same district under the terms of the zoning regulations.
Finding: Had the structure been located closer to the street right-of-way, the applicant
would haven been able to make the addition within the required setbacks.Other
properties in the vicinity would be permitted to make such an addition without
requiring a variance because they are located closer to the street The property
to the south faces the same situation as the applicant,with a setback from the
street right-of-way of more than 80'.
3. Resulting Actions. That the special conditions and circumstances do not result from
the actions of the applicant.
Finding: The special conditions of the property do not result from the applicant. The
mature trees exist on site and the house was located further back from the street
to preserve existing trees.
4. No Special Privileges. That granting the variance requested will not confer on the
applicant any special privilege that is denied by Zoning,Chapters 160-165,to other
lands, structures, or buildings in the same district.
Finding: Granting the vari ance will not confer on the applicant any special privilege that
is denied by zoning.
5. Nonconforming Uses. No nonconforming use of neighboring lands, structures, or
buildings in the same district, and no permitted or nonconforming use of lands,
structures,or buildings in other districts shall be considered grounds for the issuance
of a variance.
Finding: No nonconforming use of neighboring lands,structures,or buildings in the same
district, and no permitted or nonconforming use of lands, structures, or
buildings in other districts were considered during the review of this variance.
§ 156.02 C. Consideration by the Board of Adjustment.
1. Bulk and Area.
Applications for variances of bulk and area requirements shall be considered by
and may be approved by the Board of Adjustment.
2. Public Hearing. A public hearing shall be held.
Finding: A public hearing is scheduled for Monday,Nov. 4,2002.
H:\USERS\COMMON\PLANNING\RcpoM\BOA REPORTS 2002\NmembeMmbash—varO2-29.dm Board ofAdjustment
December 2, 2002
VAR02-29 Norbash
Page 1.3
3. Findings. The Board of Adjustment shall make the following findings:
a. Minimum Variance. That the reasons set forth in the applicationjustify the granting
of the variance, and that the variance is the minimum variance that will make
possible the reasonable use of the land,building,or structure.
Finding: The 91 variance is the minimum necessary to allow for the proposed 740 sq.ft.
addition.
(L) Harmony with General Purpose. The Board of Adjustment shall further make a
finding that the granting of the variance will be in harmony with the general purpose
and intent of Zoning, Chapters 160-165, and will not be injurious to the
neighborhood, or otherwise detrimental to the public welfare.
Finding: Granting the variance is in harmony with the general purpose and intent of
zoning. The proposed addition will be screened by the mature trees that line the
south, cast and north sides. It should have little impact to the property to the
northeast(to the rear of the subject property) since it is setback from the rear
property line approximately 1251 and is not directly behind the addition. The
property to the southeast is vacant.
(2.) Reasons set forth in the application justify granting the variance,and that the variance
is the minimum variance that will make possible the reasonable use of the land,
building, or structure.
Finding: The applicant has submitted a written request stating the special conditions are
the location of the existing structure,which is pushed back on the lot limiting
the size of the rear yard, and the existing mature trees.
b. Conditions and Safeguards. In granting any variance, the Board of Adjustment
may prescribe appropriate conditions and safeguards in conformity with the zoning
regulations.
Finding: The variance shall apply only to the 740 sq.ft.addition to the rear of the house.
C. No Variance Allowed. Under no circumstances shall the Board of Adjustment grant
a variance to allow a use not permissible under Zoning in the district involved,or any
use expressly or by implication prohibited by the terms of the zoning regulations in
said district.
Finding: The structure will remain a single family structure which is consistent with the
R-1 zoning district.
li:\USERS\COMMONTLANNNG\Reports\BOA REPORTS 2002\NwembeAnabmh—vm02-29.dm Board ofAdjustment
December 2, 2002
VAR02-29 Norbash
Page 1.4
From Chapter 161 Zoning Regulations F. Building Area.On any lot the area
Fayetteville Unified Development Ordinance occupied by all buildings shall not exceed 40%of the
total area of such lot.
§ 161.04 DISTRICT R-1: LOW DENSITY
RESIDENTIAL. (Code 1991, §160.031)
A. Purpose. The Low Density Residential
District is designed to permit and encourage the
development of low density detached dwellings in
suitable environments,as well as to protect existing
development of these types.
B. Uses.
1. Permitted Uses.
FLM:�t I City- 'deUsesbyRight
Unit 26 Single-Family Dwelling
2. UsesPermissible on Appeal to
the Plannin a Commission.
Unit 2 City-Wide Uses by Conditional Use
Permit
-Unit 3 Public Protection and Utility Facilities
Unit 4 Cultural and Recreational Facilities
Unit 8 Single-Family and Two-Family
Dwellings
C. Density.
SINGLE-FAMILY TWO FAMILY
DWELLINGS DWELLINGS
4 or Less Families Per 7 or Less Families Per
Acre Acre
D. Bulk and Area Regal tions.
Single-Family Two-Family
Lot 70 ft. 80 ft.
Minimum
Width
Lot Area 8,000 sq.ft. 12,000 sq.ft.
Minimum
Land Area 8,000 sq.ft. 6,000 sq.ft.
Per Dwelling
Unit
E. Yard Requirements I feet).
FRONT SIDE YARD ff-WaR.W'.
YARD
25 8
H:\USERS\COMMON\PLANNING\Reports\BOA REPORTS 2002\Nwembcr\nmbash_var02-29.dm Board ofAdjustment
December Z 2002
VAR02-29 Norbash
Page 1.5
October 18,2002
Board of Adjustment
Mr. Michael Green,Chairman
Dear NIr Green&Board Members:
We respectfully request that the Board would consider granting a variance reducing the minimum
set back from the back lot line of our property located at 2482 Jimmie Ave.
We are planning an addition to the back side of our home. The existing structure is 2400 square
feet,and we are planning approximately an additional 740 square feet. However,the twenty-foot
required setback is forcing us to use the space to the North side of our existing structure. There
are four mature trees on the North side that are in the way, and that we do not wish to destroy.
We are limited by space,and the setback requirement has created a hardship for us.
The requirement is for a 2W setback. We request I 1'rear setback,a variance of 9'. The necessary
drawings are attached to clearly show the nature of this request, and the following are the
justifications and reasoning for our appeal:
a. There are two special conditions and circumstances that exist. The original builder located the
structure close to the back lot line, in order to save as many trees as possible,which has limited
the space. Also there are four mature trees that prevent us to do our expansion to the North side
to maintain the necessary 20 foot setback, because we would very much like to save them..
b. As it is evident from the aerial photo,this area is wooded and there is ample privacy for the
property owners to the East,and granting this variance would not adversely affect diem. The
literal interpretation of this ordinance would cause undue hardship on us.'We firmly believe that
the true spirit of the setback ordinance will not be violated if this variance is granted.
c. This situation exists because of the existence of large trees;that are too beautiful to destroy.
d. We believe that granting this variance will not create any undue disadvantage to the
surrounding properties,or provide any privilege to us that other property owners do not already
have.
Sid& Sherrie Norbash
Board ofAdjustment
Decemher 2, 2002
VAR02-29 Norbaih
Page 1.6
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December Z 2002
VAR02-29 Norbash
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planned unit development Do fill in the office of the Circuit
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from the FIRM flap of Washington County, Arkansas, and Q —STONE MARMER
Incorporated Areas, hap NuIshor 01143CO0004 C, effective date
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SURMwis VAR02-29 Norbash
Page 1.16
Board of Adjustment
November 4, 2002
Page 8
VAR 02-29.00 (1036): Variance,(Norbash,pp 291)was submitted by Sid& Sherrie Norbash for
property located at 2482 Jimmie Ave. The property is zoned R-1, Low Density Residential and
contains approximately 0.44 acres. The requirement is for a 20' rear setback. The request is for a
I I' rear setback(a 9' variance).
Green: The next item on our agenda is a Variance request submitted by Sid & Sherrie
Norbash for property located at 2482 Jimmie Ave. The property is zoned R-1,Low
Density Residential and contains approximately 0.44 acres. The requirement is for a
20' rear setback. The request is for a I V rear setback(a 9' variance). Who has the
information?
Rushing: This property is located north of Township and east of College. Right now there is
an existing single-family structure with 2,400 square feet. The site is approximately
0.44 acres and it was built in the early 1980's. The property has a steep slope and the
existing structure sits back on the lot. It is in an R-I district which has a 25' setback
but the structure is setback 87 V2'. There is also a 15' easement located on the south
side of the property and there is an in ground pool located in front of the house. The
applicant is proposing to construct an addition to the house, a 740 square foot
addition to the rear of the existing structure. this is a 3 1% increase in size. The
location that they are proposing is to avoid the removal of existing mature trees. The
addition would extend 9' into the required 20' rear setback and they are requesting a
variance for that 20' rear setback to allow for an I I' setback. We have received one
call from a neighboring property owner that was concerned about the addition
obstructing their view. I did want to let you know about that. The addition will be
no higher than the existing roof We are recommending approval of this request
based on the conditions of the site, which include the steep slope, that the, existing
structure is pushed back from the existing right of way and that the location of the
addition is to avoid the removal of mature trees on the site. The only condition that
we have is that the variance apply only to the 740 sq.ft. addition.
Green: Ok, does the applicant have anything to add?
Norbash: I am Sid Norbash. No Sir, we are here for any questions.
Green: Does anyone have any questions?
Nickle: This will not increase the total roofline of the house correct?
Rushing: No, the addition will be actually lower than the top of the roof.
Green: The addition is actually toward the hillside instead of out so it really shouldn't cause
Board ofAdjustment
December Z 2002
VAR02-29 Norbash
Page L 17
Board of Adjustment
November 4, 2002
Page 9
any kind of increase in the projected field of view of the other people I don't think.
Norbash: I have this handout for you. I thought this might explain just a little what we are up
against and what we are doing here. The green shaded area is the 9' in question that
we are asking for. What we are saying is that if you would allow us to just add onto
the back of the house. If that is denied then that would push us to the pink area there
and that is where the trees are unfortunately,that is what is going to complicate the
construction as well.
Green: Ok, there was some other comment?
Pettus: I am Donna Pettus,I am an attorney for Drs. Moberly and Webb. They are not here
today. Unfortunately they wanted to be here. Dean Moberly had an emergency come
up this morning,he is in the hospital and he may be having emergency surgery as we
speak. For that reason, if you have lee way not to make a decision today he would
request that because he did want to be here to speak. However, if you can't then I
will speak on his behalf. Do you want me to go forward?
Green: Yes, could you please state his concern?
Pettus: His number one concern is not the obstruction of the view as said by the staff,but the
house will be so close to his property as to devalue his property. Dean and Mrs.
Moberly purchased the property in September which is hardly more than a month
ago, their property is on Sherwood Lane which is the east of the Norbash property.
They paid a considerable sum. That Sherwood Lane property is all very expensive
property and they bought in reliance upon the situation as it was. We took some
photographs not only from the back of the Dean's property but Mr. Norbash's
property. It was their understanding that they could go on and inspect Mr.Norbash's
property and so they did and they took a couple of photographs. I am sorry,I don't
have copies for everyone but if you would pass these around. You can see how close
this first photograph is from my client's property showing how close the existing
house already is to their property line. There is a driveway and a garage at the back
of my client's property and this shows also how close it is to my client's driveway,
this one as well. These are all of the Norbash property. This one is from the deck of
my client's house. I understand that the staff report says that there is considerable
screening from the trees. However,you should also remember that six months out of
the year there are no leaves and no screening at all. This also is from the Norbash
property showing potential site for a building that would not encroach back in there
and would also possibly come forward just enough not to even cut down the trees.
This shows the back how close the building line would be to the back of the property.
This is also a plat of my client's property where you will see that the driveway in the
Board ofAdjustment
December 2, 2002
VAR02-29 Norhash
Page 1.18
Board of Adjustment
November 4, 2002
Page 10
back actually a foot or so is into the back easement so these properties are very close
together. Their main concern is that they have just spent several hundred thousand
dollars on a house that will considerably lose value if this extension is built back too
close to their property. People that spend that kind of money on a house in that
particular situation do not want neighbors any closer than they already are. They buy
in reliance upon that. I think that is basically what I have to say. Do you have any
questions?
Green: Your client does understand that it is just going to be a low first story?
Pettus: It is not the height that concerns them, it is the fact that it is so much closer that he
will actually when he looks out off his deck he will be able to see into the Norbash's
house. The Norbash's will be able to see into my client's house. Their living area is
at the back. That is where everything is opened up to the view of the backyard.
Green: Probably in the alternative I guess would be to stay within the setback requirement
and go up higher.
Pettus: That really does not affect.
Green: That might be as big of a problem if not worse.
Pettus: I don't know how that would affect the property right now. Ijust know how it would
affect with what Mr.Norbash is proposing.
Green: Are there any questions of Ms. Pettus anyone?
Stockland: My name is Tom Stockland, I am an attorney in town but I am here on my mom's
behalf. She has the vacant lot that is right beside Ms. Pettus' client's lot. Basically
my concern is my mom is retirement age, she works retail, her house and lot
represent a big part of what she is worth and at some point she may need to sell them
for living expenses and the closer you get to the property line the more it is going to
reduce the value of that vacant lot. I understand Mr.Norbash not wanting to take the
trees away because they obviously add value to his lot but it seems like it would
detract from the value of my mom's lot to let him keep the trees that value his lot.
That is not something that we want, we want to protect the value of her lot to the
extent that we can.
Green: Mr. Norbash?
Norbash: There are several things that I would like to address the board with- That drawing,as
Board ofAdjustment
Decemher 2, 2002
VAR02-29 Norbash
Page 1.19
Board of Adjustment
November 4, 2002
Page 11
I showed you, I just want to emphasize that the pink area is what we are allowed to
do today. First of all, Ms. Pettus mentioned that this addition here is on the side of
the house to build on,that is not going to serve any purpose for us. It is a split level
and we just don't have any use for the lower area, that is a bedroom that we cannot
use in any way. It really does not do any good for us to build over there because it
really doesn't serve any purpose for us. As far as looking into somebody's living
area,please understand that these are large lots. There is going to be almost in excess
of 80' distance, we are not talking about a flat neighborhood where people are
looking into each other's house. This is a special terrain, a special hill. As far as
looking into somebody's living area, they are already looking at us down there
anyway. I am just appealing to you,this is all we are asking for,if you would picture
our wall right here,all we are asking right here is three steps,that is the 9'. If you are
up there looking down.at this hill,believe me three steps is not going to make any
difference in your perception as far as closeness of the house goes. That is all it is,
just three steps. From the pictures you can see yourself from the pictures that were
handed out, this is a well private area there. There is a 20' easement on Sherwood
Lane,all of the utilities are in already and there are not going to be anymore utilities
going through there so there would not be a chance of cutting the trees down or
anything like that. I understand,in winter time you can see forever in Arkansas when
the foliage is out, that may be a reasonable thing to say but please understand that
anywhere you look once the foliage is gone you can see forever. As far as the
valuation of the property, most of you, when they assess a property it is the
neighborhood that they really basically assess.I don't think anybody is going to come
and say"Ok,this is 10' closer to the property line so therefore,I am going to cut off
$200,000 off of this house." Essentially what it is is when you look at the house next
to you and say the value of this house is actually increasing by this addition. That is
my argument on that. As far as the valuation. That is a very subjective thing, how
you would evaluate something. I am just appealing to you as far as the structure
itself, all we are asking is three steps closer,just three human steps closer. This is
totally enclosing our own backyard right now and I would invite anybody to go over
there and look down and see if you can tell three steps from 80' away as far as
perception goes. I am sorry for being long winded, I really do appreciate that. I am
trying to put on a show for my family here, we couldn't afford an attorney so I am
their attorney. Our lifestyle has changed. We really are in need of this and we want
to do the right thing. We want to do something that is right but I think you will agree
with me that building on the pink area there would really be distractive,they would
have more building to look at.If you turn me down right now I will have to go do my
planning again and go ahead and build on the pink area which the law allows me to
do. All I am asking is forjust a little common sense. Would you rather look at 8'of
building or would you rather look at 37' of building? That is all I am asking, I
appreciate your time.
Board ofAdjustment
December 2, 2002
VAR02-29 Norbash
Page 1.20
Board of Adjustment
November 4,2002
Page 12
Green: Ok,thank you.
Stockland: We did have someone look at the lot and the lot hasn't been listed or hasn't been up
for sell but they have already expressed concern about how close that house is to the
lot, which I understand it is within the law. That has already become an issue,
someone came up and looked at the lot and said "Well,the lot would be worth this
but you have got to take something off for how close the house is." I think as the
house gets closer and closer that that becomes a bigger issue.
Pettus: I don't think that when people buy houses they go by the county's property
assessment anyway. They go by real estate appraisers who do look at these factors,
how close the neighboring property is,how intrusive it is to your property,especially
in properties with these values. I ask that you do consider,as well as common sense,
if a house comes closer to you than it was before and you bought your property
relying on it being where it was when you bought it and then this happens,it is going
to have a significant affect upon your property values.
Green: Ok,are there any other comments from the audience? Are there any questions for the
board?
Kunzelmann: I have a question for Ms.Pettus. Do you know if your client is concerned about the
profile of that house going from 37' to 80'?
Pettus: No,I don't know the answer to that question. That is the problem with the fact that
they are not here today and only because of an emergency. They would be here if it
weren't for that if Dean Mobley wasn't in the hospital.
Green: The staff I think had looked into all of their particular requirements for their
recommendation, do you have anything else to add as far as what your
recommendation was based on?
Rushing: Our recommendation still stands based on the fact of the size that they need to
increase,the existing structure,and to help avoid the removal of those existing trees.
Olszewski: This map you gave us shows the trees in line with the existing house right or is this
the addition?
Whitaker: That is where the addition would have to go if he doesn't get the variance is what the
pink is.
Board ofAdjustment
Decemher 2, 2002
VAR02-29 Norhash
Page 1.21
Board of Adjustment
November 4, 2002
Page 13
Olszewski: The pink is what he wants the variance for?
Whitaker: The green is the variance, 11' is the variance.
Olszewski: Ok, so if he doesn't get it he would do this right here.
VVhitaker: Yes, because that is within his setbacks.
Olszewski: Ok,I get it.
Pettus: I understand that he is saying that doing an addition, which I say he could do more
forward and save the trees is of no use to him but it could be built that way. It would
avoid devaluing anyone's property and still have his addition up higher on the same
level that his current house is. If you will look at what I'm talking about here,this
one right here,these are the trees he is talking about right here and if the addition was
built approximately where the vehicle is right now he could still save the trees.
Green: That is quite a bit lower than the elevation of his floor though.
Pettus: No,his floor is up here. He could build up to level with his floorjust like the rest of
the house is built.
S.Norbash: We are wanting to add accommodations for the family and they would have to enter
through my room. It doesn't really make any sense to get to the laundry room or the
arts and crafts room.
Norbash: It is a split level, it really does not, first of all, on the hill we only have two parking
spaces. By the way, we did not ask anybody to take pictures, we are under
construction here and the mess is because we were doing some reinforcement on the
foundation. If you see construction going on I do apologize for the mess around the
house but what we are asking is that this area here is two parking spaces that we
have. If we have company that is where they can park. First of all, we have to
sacrifice that plus it is a huge elevation difference and it would be very costly for us
and be of no use at all.
Green: Are there any other comments? It looks to me like we have at least three choices
before us. We can either table the matter to get additional information or if the Board
thinks that we have all of the facts that could be brought forward at this time then we
can either vote to approve the variance as it has been requested or we can deny it and
I suppose there might be some other possibilities or options within those two
extremes.
Board of Adjustment
,December Z 2002
VAR02-29 Norbash
Page 1.22
Board of Adjustment
November 4, 2002
Page 14
Olszewski: If we tabled it that would give us the opportunity to go to the Sherwood properties
and look at it from that viewpoint,which we don't normally do when we go visit the
house,we usually don't go to neighbors and look. That is one option,that would be
one advantage. The disadvantage is of course that your bedroom would be waiting
another month and then you are into winter.
Pettus: I think that when you are talking about the two property owners who are most
affected by this addition are both objecting then I think you owe it to them to
examine it just a little fin-Cher.
Nickle: I would agree with Joanne. I didn't think to go up to Sherwood and look down. Not
being aware of the objections,I wouldn't mind,1 know it is an inconvenience for the
applicant,but since these issues have been brought up I wouldn't mind going up and
looking down from that perspective assuming we can get those people's permission
to cross their land and look and everything like that. I don't know how much the
value of any,of these things are going to be affected and I would rather not give my
opinion until I go up there and look down. Those are my thoughts.
Green: That is certainly a valid thought and reasonable. Actually I did drive up there and as
far as I could see between the houses and everything from the street. Of course at
this time of the year there was still a lot of leaves on the trees and you really couldn't
see much from the street up there. I didn't want to trespass and get arrested for doing '
my civic duty so I just really had to observe it from the street but whatever is the
board's pleasure.
Pettus: Taking into consideration that Dean Moberly is in the hospital and has a serious
illness too,maybe next month he will be able to make his objection known.
Green: Can I ask what one month's delay would do to your schedule Mr. Norbash?
Norbash: It would be very inconvenient for us but listening to our neighbors and everything,
and we do appreciate our neighbor's concerns,we really do appreciate their concerns.
We invite the board to come and look at it and make the bestjudgment that you can.
We trust yourjudgment,that is why we are here. I would welcome that Sir and even
though it is going to greatly delay us and put us in bad weather. We do want the
neighbor's assurance and that would be fine with us Sir.
Green: Ok, is there a motion to table or postpone?
MOTION:
Board of A djustment
December 2, 2002
VAR02-29 Norbash
Page 1.23
Board of Adjustment
November 4, 2002
Page 15
Kunzelmann: I move that we table this item until our next regularly scheduled meeting.
Alt: I second.
Green: There has been a motion and a second to table, there is no discussion after that, can
you call the roll please?
Roll Call: Upon the completion of roll call the motion to table was approved by a vote of 5-0-0.
Norbash: May I sayjust one more thing? When you do come,as you saw in the picture,I have
two string lines for you, I will have those strings in our backyard and you are more
than welcome to come look from up there and from down there and we do appreciate
your time.
Green: Ms. Pettus, will there be an easy way to schedule access to your client's backyard?
Pettus: Yes Sir, either with me or the Moberlys. The Moberlys may not be available right
now because they are in the hospital, but you can call me and I will work it out
through you.
Green: We can do that through the staff?
Warrick: Yes, we will be glad to assist.
Green: Thank you, that variance request is tabled until next month.
Board ofAdjustment
December Z 2002
VAR02-29 Norbash
Page 1.24
Nov-08-02 03:09 Cit-cuil: Judge Kim Smi-th P�01
IN THE CIRCUIT COURT OF WASHINGTON COUNTY, ARKANSAS
SECOND DIVISION
DANIEL SCARBROUGH PLAINTIFF
vs. NO. CIV 01-1727-2
BOARD OF ADJUSTMENT FOR THE
CITY OF FAYETTEVILLE, ARKANSAS DEFENDANT
ORDER GRANTING MOTION TO DISMISS AND
MOTION FOR SUMMARY JUDGMENT
Now on this 7th day of November, 2002, for the reasons stated in the letter
opinion attached hereto and incorporated herein, the Court finds that the Motion to
Dismiss the Petition for Declaratory Judgment should be and hereby is granted and
that the Motion for Summary Judgment as filed by the defendant concerning Count 1,
Notice of Appeal, should also be, and hereby is granted and, therefore, this case
should be and hereby is dismissed.
IT IS SO ORDERED.
KI". SMITH - CIRCUIT JUDGE
Copies to:
Mr. John Scott, Via Fax, 443-0564, and U. S. Mail
Mr. David Whitaker, Via Fax, 575-8315 and U. S. Mail
Nov-08-02 03:09 Ci�cui-t Judge Kim Smi-th P�02
STATE OF ARKANSAS
FOURT I I JUOICIALCIRCUIT-SECOND DIVISION
WASHINGTON COUNTY COURTI IOUSE KAREN S.MORROW
RU BOX 1206 OFFICIALCOUKI'RLFOR I FR
FAYRTTFVTI-IX,AR72102-I2Q6 b-MAII-AniffrowCallo wjshiti�[vii.ar ti�
I ELEPHONE:(479)444-ISS7
KIM M. SMITH FAX (479)444-1752 10AN I FS I I R
OR0.111'JUDU 1;�MAIL:ksmith(efto.washingtonar tis CASE COORDINA I()k
....... ...
November 7, 2002
Mr. John M. Scott
Attorney at Law
P. 0. Box 8370
Fayetteville, AR 72703-8370
Mr. David J. Whitaker
Assistant City Attorney
113 W- Mountain Street, Suite 302
Fayetteville, AR 72701
RE: Daniel Scarbrough vs. Board of Adjustment for the City of Fayetteville,
Arkansas, Washington County No. CIV 2001-1727-2
LETTER OPINION
Dear Attorneys:
Pending before the Court is a Motion to Dismiss Count 11 of the Plaintiff's Petition
for Declaratory Judgment. The request for a declaratory judgment seeks from
this court a ruling that the city's interpretation of the Fayetteville Zoning Code that
his shed is a structure or building and, therefore, in violation of the setback
requirements is in error.
Since both sides have filed exhibits in relation to this motion, I will treat it as one
for summary judgment. It is admitted by the plaintiff that he submitted a request
for a bulk/area variance to the City of Fayetteville's planning division on
November 19, 2001, thus exercising an option available to him under ACA §14-
56-416(b)(2). The plaintiff did not appeal the city staffs interpretation and
application of the definition of"building or structure" to the Board of Adjustment as
was his right and, therefore, he has not exhausted his administrative remedies