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.