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boa_03 17 1980LITTLE ROCK BOARD OF ADJUSTMENT SUMMARY AND MINUTE RECORD MARCH 17 2: 00 P.M. I. Roll Call and Finding of a Quorum A quorum was present, being six in number. II. Approval of the Minutes of the Previous Meeting The minutes of the February meeting were approved as mailed. III. Members Present: Jim Summerlin, Chairman Sam Anderson Jerry Wilcox Richard Yada William Ketcher Ellis Walton Members Absent: Marcelline Giroir City Attorney: Bob Taylor March 17, 1980 Item No. 1 - Z-3446 Owner: Address: Description: Gordon Ward Thomas 5905 Country Club Boulevard South Lot 112, Forest Heights Place Addition Zoned: "R-2" Single Family Variance: Request variance from Sections 7-101.2 Dl and 7-101.2 D2 to permit encroachments into front and side yards of 3.9' and 6' respectively. Present Use of Property: Single Family Residence Proposed Use of Property: Single Family Residence Staff Recommendation: The structural element along the east property line proposed for enclosure was recently constructed without a building permit and according to the applicant's survey, encroaches 0.7' into the neighboring property. On -site inspection of the request revealed no unique circumstance which would give basis for approval of the requested side yard variance. The requested front yard variance would not seem to seriously violate the spirit of the ordinance, but there also is no hardship demonstrated for it. Therefore, based upon Section 3-101, Paragraph C, Subparagraph lb, staff recommends denial of the application in total. Board Action: The applicant was present and spoke at length about his role relative to this property. He stated that he had acquired the property in December of 1974 and was wishing to improve both the looks of the property and the use. He stated that other properties within his neighborhood had made similar additions over the past several years and stated that he had no intention of encroaching into a neighboring property. He further described his proposed addition as being intended as an open carport where it would not be closed in on either end. After his presentation, he asked for favorable consideration of his case. March 17, 1980 Item No. 1 - Continued Randy Coleman, an attorney representing owners of property located at 5817 Country Club Boulevard South, presented photographs of Mr. Thomas' property and stated that in his opinion Mr. Thomas had used his property with indifference to neighboring property owners. He further stated that, in his view, legally there was no unique circumstance relative to the property in question and reminded the Board that the variance ran with the property rather than with the owner. He stated that he disagreed with Mr. Thomas that other similar encroachments had taken place in the neighborhood and cited that, in his view, the hardship Mr. Thomas suggested was a self-created hardship and, therefore, not of sufficient merit to warrant the granting of the variance. Leonard Mizell, another property owner, stated his objections to the variance on the basis of general neighborhood appearances. He cited that if Mr. Thomas were allowed to extend his structure to the east, that it would use up one half of the separation between structures and as a result would do serious harm to the uniformity of the neighborhood. After a brief discussion, the Board moved to deny the application. The motion was passed: 6 ayes, 0 noes, 1 absent. March 17, 1980 Item No. 2 - Z-3449-A Owner: Tim Templin by Bill Putnam Address: Murray Street, just south of West 65th Street Description: Tract 77, Little Rock Industrial Park Zoned: "I-2" Light Industrial Variance: Request variance from Sections 7-104.2 E2 to permit a 15' encroachment into a required side yard. Present Use of Property: Vacant Proposed Use of Property: NAPA Auto Parts Store (1/2 utilization) Staff Recommendation: Section 7-104.2, Paragraph E, Subparagraph 2 requires that industrial buildings be sited with 30' side yards. The applicant believes this to be an excessive requirement and is seeking to leave only a 15' side yard on the west side of his proposed building. Staff feels that the criteria established within the Zoning Ordinance relative to bulk and area requirements are reasonable and proper for industrial development. There is an awareness of certain efforts to have the requirements reduced in a future amendment of the ordinance, but staff believes that under the present circumstances it is necessary to follow the ordinance. There are no hardships unique to this property which would justify a variance. Staff recommends denial of this request. Board Action: The applicant was present, and there were no objectors. The applicant described the area around this property and the circumstances which had prompted him to file the application. He cited the problems of conflict that he views as being between the Zoning and Subdivision Ordinances and made a lengthy presentation in support of his application. After a lengthy discussion, the Board moved to deny the application. The motion was passed: 4 ayes, 2 noes and 1 absent. March 17, 1980 Item No. 3 - ORDINANCE INTERPRETATION Staff Comment: Regarding the nonconformity issue brought before the Board of Adjustment at the February meeting when the true issues seemed to have been lost within the pleas of two area residents, Staff will try to once again to present the question. Section 5-101, Paragraphs B and C, dealing with the continuance of nonconformities in general and nonconforming uses in particular, presents a number of problems relative to the effective administration of the zoning Ordinance. Essentially, there is agreement that while it is desirable to eliminate nonconformities as quickly as possible through the process of natural attrition, there is no amortization process established within the City of Little Rock whereby either abandonment is required within a specific period of time or the owner is compensated for his loss of rights. The City, therefore, has chosen to rely upon the conditions outlined within Paragraph C, regarding expansions, changes in use and abandonment or discontinuance. The troublesome points are these: 1. What constitutes occupancy of land and structures relative to nonconforming use of the land? There would seem to be no doubt that one would not be permitted to construct a new building for continuance of a nonconformity, nor add onto an existing structure, nor purchase adjacent property for the purpose of expansion. However, there are two schools of thought regarding the propriety of allowing nonconforming uses to spread among existing structures within the property. The one school argues that nonconforming uses can be contained within a specific floor area or land area which is occupied at the time such nonconformity is declared to exist (usually at the time of the annexation or ordinance's adoption). The second school argues that nonconforming land use does reach the bounds of existing land area and structures (at the time of nonconformity declarence) even though physical occupancy may not be present at the time. Little doubt exists as to the important difference between these two views. 2. Does a "change in use" as discussed in the ordinance refer to only building usage, or is it meant to apply to land usage? The wording of the ordinance suggests that individual buildings located within the property containing a nonconforming use can be systematically used to eliminate the nonconforming use of the land one step at a time. For example, there are four buildings in use for the manufacture of widgets on a single piece of property at the time the new Zoning Ordinance is adopted in the City. New manufacturing technology allows the company to reduce its manufacturing facilities by one building and, wishing to gain cash flow, management decides to lease the surplus building to a retail store. Several months later, demands for widgets grow at an alarming rate, and Management decides to expand its production and use the fourth building again. If the nonconformity pertains to the land with all existing structures, there would be no difficulty in expanding back to the fourth building. However, if nonconformity is eliminated on a building to building basis, the expansion could not take place. While arguments could be made that the total elimination of the use is desirable, there appears to be broad legal implications for any attempt to deny piecemeal the use of what once legally existed. 3. What constitutes abandonment of a nonconforming use? The most common abandonment occurs when a natural disaster removes the use, causing damages in excess of reasonable replacement value (typically 50 to 75 percent valuation). Sometimes abandonment is more subtle, and frequently the subject of much debate regarding the intention of the abandonment. Voluntary abandonment usually requires that the owner demonstrate some identifiable intention to give up his right to use the property as a nonconforming use. Our ordinance does not address the matter of intent. Regarding the specific matter before the Board of Adjustment, the owner states that he ran a concrete casting operation on the property for a number of years prior to the annexation of his land. He admits that the business was not a full-time occupation, but he maintains that he kept records and reported income to the Internal Revenue Service on this business during this period. Statements offered by his insurance agent and accountant, plus letters from neighboring residents (copies attached), tend to corroborate that the owner did, in fact, operate a business from these premises prior to and after January 1979, when the property was annexed into the City The alleged business operation was conducted as follows: (1) Cast concrete items (birdbaths, figures and accessories) were manufactured in an accessory building on the rear of the property; and 2). sales and record keeping were usually conducted with any room specifically set aside and equipped for that purpose in his home on the front of the property. While it appears that the physical operation has been moved to another location, the actual removal of all signs of the business was never completed. There are numerous castings still on the property, and the accessory building shows evidence that it has fallen into nonuse, but that it would be a simple matter to reopen were the need to arise. The owner apparently moved from the property sometime in mid-1979 and leased the house to someone who did not have a business. This lease had a sufficiently short term as to be arguable as temporary. Subsequently, the owner has now sought to lease the property to a nonprofit agency for an office location under the assumption that nonconformity can be transferred either laterally or downward in intensity. The point of contention here is whether there is sufficient intent to abandon demonstrated by the owner. Staff believes that the key to resolution of this question is the prior resolution of the preexisting three questions raised regarding the statements within the Zoning Ordinance. Staff makes no recommendation as to either the specific case at hand or the final determination as to the three questions previously mentioned. Board Action: First, in consideration of staff comments and a lengthy discussion that ensued, the Board requested that staff research nonconformity as an issue and prepare an ordinance amendment for consideration. Second, in response to the direct question regarding the McKellips issue on Highway #10, the Board moved to declare that the nonconformity ceased to exist upon removal from the property and leasing to another party for subsequent use. The motion was passed: 6 ayes, 0 noes and 1 absent. March 17, 1980 Item No. 4 - Z-3441 - Deferred Owner: Joe Cunningham Address: 415 E. 9th Street Description: West 66' of Lots 10, 11 and 12, Block 59, Original City Zoned• "H-R" High Density Residential variance: Request permission under the provisions 2 of Section 43-35 (2) (j) to locate a professional office in the "H-R" District. Present Use of Property: Rooming House Proposed Use of Property: Professional Offices Staff Recommendation: The structure under consideration is presently used as a rooming house. The proposal would shift the use to professional offices. The continuing problem in this area of the City is a shortage of parking. While certain space within the boundaries of this property appears available for parking, staff is doubtful that parking in accordance with the Ordinance can be provided (one space per 300 square feet of office use) . In many other cases, part of the parking has been waived to accommodate: the rehabilitation of this area. The applicant originally suggested that only a portion of this property would be used as offices while: the remainder would stay residential. At the February meeting, several questions were raised relative to the applicant's ability to provide the necessary parking. He was directed to research the question further and meet with staff regarding this problem. As of March 13, staff has not received any communication from the applicant. It must be assumed that he is unable to solve the problem, and it is our recommendation that this matter be withdrawn without prejudice. This would allow the applicant to refile his request at some future date. A March 17, 1980 Item No. 4 - Continued Board Action: The Board moved to withdraw the application. The motion was passed: 6 ayes, 0 noes and 1 absent. March 17, 1980 In other action the members unanimously elected Marcelline Giroir as Vice Chairman of the Board of Adjustment. There being no further business, the meeting was adjourned at 3:30 P.M.