boa_07 27 1984LITTLE ROCK BOARD OF ADJUSTMENT
SPECIAL MEETING
MINUTES AND SUMMARY
JULY 27, 1984
2:00 P.M.
I. Roll Call and Finding of a Quorum.
A Quorum was present being 6 in number.
II. Members Present: George Wells
Richard Yada
Steve Smith
Thomas McGowan
Ellis Walton
Herbert Rideout
Members Absent: B.L. Murphree
Ronald Woods
Joe Norcross
July 27, 1984
Item No. 1 - Z-3125A
Owner: Jennifer Garrison by Richard Daes
Address: 2500 West 7th Street (N.W. corner of
Thayer Street)
Description: Long Legal
Zoned: "R-3" Single Family
Variance/
Interpretive
Issue: Request for determination of the
illegal/nonconforming use status
of the White Water Tavern, i.e., can
the use remain and rebuild based
upon evidence presented by both the
owner and the City or has the use
been abandoned?
ORDINANCE PROVISION INVOLVED:
"5-101.C.3 Abandonment or Discontinuance
When a nonconforming use has been discontinued or abandoned
and the appearance of which does not depict the identity of
an ongoing use and further, if said situation exists for a
period of one year, such use shall not thereafter be
reestablished or resumed.' Any subsequent use or occupancy
of such land or structure shall comply with the regulations
of the zoning district in which such land or structure is
located."
BACKGROUND:
This applicant, as the result of enforcement proceedings,
filed a rezoning application for 11C-3" Commercial on or
about May 25, 1984. During the course of the Planning staff
review and Planning Commission public hearing, the subject
of nonconformity constantly arose. The owner's position
relative to the nonconformity and rezoning action was that
he desired to pursue rezoning, inasmuch as "C-3" zoning
would finally resolve the issue, and all clouds concerning
the use would be lifted. The owner specifically chose not
to ask for a review by the Board of Adjustment. The
Planning Commission discussed the rezoning matter and the
nonconforming use issue at length with the result that some
confusion remained when the vote was taken on the matter.
The Planning Commmission voted to recommend approval of the
"C-3" zoning to the Board of Directors by a vote of 7 ayes
and 3 noes. The issue was placed on the Board of Directors'
July 27, 1984
Item No. 1 - Continued
agenda and discussed at the agenda meeting on July 11, 1984
At that time, the Board acting on information from the City
Attorney determined that it would be appropriate to set a
public hearing for purposes of the rezoning to "C-3." That
hearing date was set for July 17, 1984. Members of the City
staff had offered the Board comments which suggested perhaps
the nonconforming use issue should be determined by the
Board of Adjustment prior to the rezoning hearing. The
Board of Directors and City Attorney apparently
misunderstood the issues at the agenda meeting. These
issues were clarified for them at the Board meeting on
July 17th. It was then determined by the Board after
hearing arguments on the zoning question that the land use
issue was primary and should be resolved by the Board of
Adjustment. That determination by the Board of Adjustment
would clarify the owner's rights to continue occupancy and
use of the structure if the rezoning were rejected. The
Board of Directors left the zoning matter on first reading
for their next scheduled public hearing in August. The
Board directed staff and the City Manager to work with the
Board of Adjustment in establishing this special meeting and
review their request.
SITE DESCRIPTION AND GENERAL HISTORY:
The subject site is 50 feet by 70 feet, which is a portion
of a platted lot. The use has no ordinance approved
parking, either on or off -site. The existing building is
wood frame construction. The building has on at least two
occasions been severely damaged by fire. On the first
occasion, the City of Little Rock allowed reconstruction due
to compliance with guidelines for nonconforming uses and
structures. The second and most recent fire damage has not
been restored. Additional supporting materials are attached
reflecting information from the Enforcement staff.
RECOMMENDED HEARING PROCEDURE:
This hearing involves interpretative powers of the Board of
Adjustment as provided for within the Zoning Ordinance;
therefore, we suggest that the public hearing be a
fact-finding procedure without the usual adversary roles.
It is suggested that the Chairman determine early in the
hearing whether audience participation will be permitted.
The staff has been advised in the past that the burden of
proof is primarily upon the owner of the property with the
Enforcement staff in a support role. The hearing order for
today could proceed as follows:
July 27, 1984
Item No. 1 - Continued
1. Planning staff identification of the issue and
responding afterward as directed by the Chairman.
2. The applicant's presentation of facts and his position.
3. Enforcement staff statement.
4. General discussion and formal action by the Board.
BOARD ACTION:
The Planning staff offered comments as to the circumstances
of this case and noted for the record that a formal
recommendation would not be made. Mr. Jim Hathcock of the
Environmental Codes staff offered background information on
the enforcement proceedings as well as commenting on the
staff interpretation of the subject paragraph within the
Ordinance.
Mr. Ray Hartenstein, representing the owner, then offered
evidence of his client's continued activity during 1983 and
1984. He provided a statement with dates of the various
legal proceedings involved with the prior operator's
bankruptcy. His stated purpose being to evidence that the
owner had not abandoned nor discontinued the use but
intended to continue when those problems were resolved.
The Chairman stated for the record that although this was
not an issue for debate but simply an interpretative matter,
neighbors would be permitted to offer comments if they were
to the point and not simply statements of objection.
A general discussion followed that produced a consensus
among Board members which briefly stated says that the proof
of discontinuance or abandonment lies in evidence of the
owner's intent to do so. Physical evidence alone is not
enough.
The Chairman then called for a motion on the matter. A
motion was made which stated that the intepretation be that
the White Water Tavern did not lose its nonconforming status
due to any action or inaction on its parts. The vote on the
motion - 6 ayes, 0 noes, 3 absent. The motion passed.
July 27, 1984
Item No. 2 - Other Matters
1. As a result of the Board's action on the White Water
Tavern, the Planning staff made a request for guidance.
The request stated that there are many instances,
especially in newly annexed areas whereby the
experience of today could be repeated many times. The
staff desires direction as to the types of
informational items required to offer to the Board in
support of abandonment of nonconformity. A general
discussion of the matter was held with the result that
a motion was made requesting that the staff produce for
the Board a discussion paper on the subject which would
be offered perhaps at the September meeting. The Board
then unanimously approved a motion to approve that
direction.
2. Mr. Hathcock of the Enforcement staff made a request of
the Board for permission to address the Board relative
to a previous requirement that he provide attendance by
inspectors involved in specific cases. Mr. Hathcock
offered a lengthy discussion of his staff's involvement
and the severe imposition on his staff by attendance at
Board meetings. The Board of Adjustment did not offer
a specific motion or direction to Mr. Hathcock, but the
consensus appeared to be that in all instances in the
future when an enforcement issue is before the Board
whereby there is conflict between an owner's statement
and City staff, that the inspector involved be
present.
July 27, 1984
There being no further business, the Chairperson adjourned
the meeting at 3:15 p.m.
Da
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Secretary --7-'� Chairman