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boa_04 20 1970LITTLE ROCK BOARD OF ADJUSTMENT MINUTES APRIL 20,1970 MEMBERS PRESENT L. Dickson Flake, Chairman Darrell Dover Spencer Compton Dave Grundfest W. Finley Williams MEMBERS ABSENT None STAFF PRESENT Don R. Venhaus John L. Taylor Louis E. Barber Leon E. Sneed Dorothy Riffel OTHERS Paul Johnson, City Attorney°s office J. Huddleston, Gazette Reporter Bob Ferguson, Democrat Reporter 2:00 P.M. There being a quorum present, the meeting was called to order by the Chairman at 2:00 P. M. A motion was made for approval of the minutes of the last meeting as mailed, which was seconded and passed. Action was taken as follows: Tract No. 1 e Z-2357 Applicant: Location: Description: Present Classification: Pulaski Heights Presbyterian Church 4401 Woodlawn Lots 1, 2, 3, 10,11 and 12, Block 15, Pulaski Heights Addition, and the West 75 feet of Lots 10, 11, 12, Block 6, Pulaski Heights Addition "A" -One -family District Variance: Requests Variances as follows: (1) From the Yard Area Provisions of Sec. 43-12 of the Code of Ordinances to permit construction in Yard Area The Staff°s recommendation was read as follows: "The Staff recommends approval of the request for more than one structure on a lot and the construction of a parking lot in the southeast corner of Woodlawn and Walnut Streets provided a 25 foot green space be maintained along Woodlawn, which is the north end of the proposed parking area, Board of Adjustment Minutes Aer it 2021970 and appropriate screening along the east, north and south sides of subject parking lot tract be constructed." Mr. Charles Harper, Chairman of the Building Committee, was present representing the applicant, Pulaski Heights Presbyterian Church. He stated at the corner of Walnut and Woodlawn Streets is the existing church structure. Immediately west of this building, they would like to erect what is known as an activities building 56' X 25' on the existing parking area. The Church owns property on the southeast corner of Walnut and Woodlawn on which there exists a two-story building which at present is being used for Sunday School facilities. They propose to remove this frame building, level the lot and erect a parking lot for offstreet parking for church members. It is their desire to maintain a green area on the Woodlawn side and supporting screening for the adjacent neighborhood. The 25 foot green space requirement will make it necessary to modify the paved area in the parking lot, but this will not reduce the parking space, and Mr. Harper said they could comply with the 25 foot green area AS the Staff recommended. The house is built on a terrace which they will cut back in order to make the parking area level, and this drop in elevation will more ®r less hide the parking lot from Woodlawn. Mrs. Ed McCuiston, 4317 Woodlawn, who lives next door to the proposed parking lot, was present and concerned about a pine tree in her yard which would be only 2 feet from the parking lot which would make it a hazard to her house, and might also kill the tree. She inquired about the type of screening wall the Church proposes. Mr. Williams pointed out that Walnut Street is very narrow and substandard in width, and would present some traffic problems involved in ingress and egress. Mr. Bill McLean, the pastor of the Church, who was present, answered this comment saying they recognize that there is a problem because Walnut Street is quite narrow, but hopefully the proposed parking lot would enable them to have no parking on Walnut Street. The proposed parking area is necessitated by the fact that the new building will house youth activities and this is the only lot they have for this type of off-street parking. Mr. Taylor suggested that the traffic problem might be alleviated by restricting parking to one side of Walnut Street. After a conference between Mrs. McCuiston and the Church representatives, the following conclusions were reached: (1) that the edge of the pavement of the proposed parking lot would not be closer than 8 feet to the existing property line between the Church°s property and that of Mrs. McCuiston. (2) that the edge of the pavement on the north side of the proposed parking lot not be closer than 25 feet From the north property line (3) that the closest point of -excavation shall be a minimum of 13 feet from the pine tree at the northwest corner of the McCuiston property. Trom this point the sloping of the existing ground is to be consistent. (4) should the pine tree die within a year of the time of construction, Pulaski Heights Presbyterian Church will pay for the removal of this tree (5) Development will otherwise conform to the City requirements. The Church agreed to these provisions as did Mrs. McCuiston. was made for . . ..__ _--- ___i___ _C &1.- C...- -2- Board of Adjustment Minutes y _April 20, 1970 ____ Tract No. 2 m Z-2354 Applicants Elmer L. Hewitt Location- #4 Lombardy Lane Descriptions Lots 12 and 13, Block 1., Forest Park Addition and a strip of land south of and adjacent to Lot 12, described as beginning at the southwest corner of said Lot 12, thence south 24.75 feet; v thence east parallel to south line of Lot 12, 75 feet, thence north 12.14 feet; thence east parallel to south line of Lot 12, 71.7 feet; thence north 12.5 feet to the southeast corner of Lot 12, thence west along south line of Lot 12 0 144.2 feet to beginning. Present Classification: "A"-One®family District Variance- Requests a Variance from the Yard Area Setback Provisions of Section 43-12 of the Code of Ordinances to permit construction in Rear Yard Space and Side Yard Space The Staff's recommendation was read as follows: "The Staff recommends approval of the requested Variance provided the proposed structural addition complies with the Building Code." Mr. Elmer L. Hewitt, the applicant, was present. He stated tint he is requesting a variance in the rear and side yard space. His home is approximately thirty years old and was built before the present requirement of a 25' yard area was in effect. The present structure is within 13 feet of the rear property line. He proposes to construct a noncumbustible aluminum carport with white wrought iron posts on the front which would match the front decor of his home, attached to the south side of the existing structure. There is an existing paved apron where the driveway is and he would like to come to the present edge of that with the edge of the new carport which means that the carport would be 2 feet too close to the south property line. There have been no objections from the neighbors. To the s3uth of Mr. Iiewitt's property there is another carport running almost parallel to the proposed structure �( and to the west back property line there is a high rock wall, and to the south this side of the carport would back up to a frame garage. The roof/would be of metal I� construction, and the carport would be open on the sides. r A motion was made for approval of the variance provided the proposed structural addition complies with the building .code. The motion was seconded and passed. IV. OTHER MATTERS 1. Reconsider Board's decision to appeal Kaufman's case w Z••1871 ., to the Arkansas Cd Supreme -Court. �.. Mr. Kaufman was present and stated "that at the last Board of Adjustment meeting Mr. Whitmore announced that the Judge had called him and stated that the case in point {Cr on which he had held a hearing and rendered a judgment stating that the application of the petitioner, Joseph Kaufman, for a variance in yard area should be granted on the basis of unnecessary hardship. A motion was then made by a member of the Board -3- BOARD OF ADJUSTMENT MINUTES April 20,1970 of Adjustment on Mr. Whitmore's comment that it should be appealed to the Supreme Court. After having appeared before the Board of Directors they gsked that I come back to this Board, re -state my case, and see if we could prevail upon you gentlemen to revoke your decision to appeal this to the Supreme Court. I want to stress the uniqueness of the location of this building. In other words, the platting of the lot itself on which this building sits." He presented a picture showing the position of the building on the lot. "You will notice the lot is 60' X 140' of which the 140' lie parallel to "H" Street. Under a normal site plan we would have only 60' of depth and of course you can't build.on a lot and maintain a 25 foot front and 25 foot rear on 60' depth lot. That is why the ordinance called for a reverse corner lot classification for this particular lot. (edo this state- ment is incorrect. The ordinance does not provide this is a reverse corner lot situation.) In this particular neighborhood, you will notice - from the cars parked on Grant Street (which has never been opened) it is 150',from University. There is a very good possibility that Grant Street will never be opened, and there is a tremen- dous drainage ditch running along there. My original request was to add 20 feet into the front yard space running along "H" Street. Also to add 15 feet to the rear yard, running parallel to "H" Street. Then I had an additional request on two addi- tional lots across the alley so I could add some supplemental parking to take care of the building of the west 50 feet to allow 10 additional spaces on Lots 17 and 18 of the same block. The lots do not face "H" Street in the normal sense of the term. They were platted to face on what was normally an open street - Grant Street, only 140 feet from University. Basically the City does not like to have double frontage lots = lots facing on two streets - for this reason Grant Street will never be opened. It is used as access to apartments behind this building and probably will be used in some manner as access from some structure on the lots which will face University. There is also a large drainage ditch along Grant Street which will add tremendously to the expense of opening this street. My tenants are using a portion of this street, as are our tenants of the apartments behind as supplemental parking, They also use parking in this secondary area just off of the alley. We also have a park- ing lot across the alley. These two lots are occupied by duplexes on the east side and a parking lot on the west side. The existing parking lot was brought about by the Board of Adjustment waiver of the use of that land. We had a duplex on there and they granted me the use of the west 50 feet of that lot for the original construct- ion of this one-story brick building. I want to stress the fact that in a suit like this on an appeal to the Supreme Court - other than the fact that any decision that the Supreme Court hands down, will be solely on the basis of this one individual application. It will -have no bearing in any manner on any other application throughout the City. This would be a unique situation as your Zoning Ordinance requires that each Board of Adjustment waiver be handled on a unique and solitary position. We could go back and say on the parking lot that a precedent had already been set on the two corner lots where the duplex is located. You granted the use of that west 50 feet of that lot for parking. At the time I made the application I felt that I was not asking for any more than had already been granted me because I had been granted waivers of front and rear yard space on other buildings at other locations. Right next. door I had just been granted - a few years back - on parking on the mixed uses of the lot and I felt that I was not asking for anything that I had not either already been granted or that had not been granted other people. I realize that the economic usage of the land is probably the primary reason for Board of Adjustment waivers - the maximum utilization - the economics thereof - are the main reasons for waivers. There are very few cases where the economics of the site do not enter into the picture. Many -4- Board of Adjustment Minutes - April 20,1970 cases are done on the basis of accommodation for these people, and that is why I felt that - I was quite upset that I was turned down originally, and then I did take it to court because I felt that I had been treated rather shabbily here, and they upheld my contention. Then you gentlemen felt that it should go on to the Supreme Court and I was quite upset over that. I had several conversations with Mr. Venhaus, some with the City Manager, and then I went to the Board of Directors. I still feel quite strongly about this. Taking this case to the Supreme Court will cost the City money and me quite a bit of money. If the case is appealed to the Supreme Court the City also places itself in the position of being liable for a damage suit in that I could sue them for projected loss of revenue from the time it was originally denied me, and I would like for you gentlemen to think seriously of revoking this decision of appealing to the Supreme Court." Mr. Kaufman continued - "I believe Mr. Whitmore felt that his case should be appealed because he needs a little clearer definition of the term 'hardship'. The way your ordinance reads the Board of Adjustment shall have the jurisdiction to waive the existing ordinance in case of extreme hardship, etc. The word 'hardship' is not clearly defined in the ordinance. I think - and I am sure Mr. Venhaus would agree with me - that this money which would be spent on the Supreme Court suit to determine only one location which had no other bearing on any other case in the City would be better spent on re -writing the ordinance and getting a little clearer, more stricter definition so that you would not have all types and kinds of cases coming before you that you don't have jurisdiction on. It might weed out some of these cases, and answer a lot of questions that people have on particular waivers." Mr. Dover asked if "ours is a pretty standard ordinance" to which Mr. Venhaus replied "yes sir". "I might just read very briefly the reflection of our ordinance relative to hardship. 'The Board of zoning adjustment shall have the power to hear requests for variances from the literal provisions of this chapter,in instances where strict enforcement of this chapter would cause undue hardship due to circumstances unique to the individual property under consideration, and grant such variance only when it is demonstrated that such action will be in keeping with the spirit and intent of the provisions of this chapter.' That follows very closely the statutory language set up in Act 186 which is our enabling legislation. I have seen various renderings of hardship in local zoning ordinances, and sometimes both in the enabling statute and the local adopting ordinances that specify very distinctly that economic hard- ship is not considered a valid hardship consideration. Ours does not say that. I would suggest that by weight of literally thousands of local court decisions, and State Supreme court decisions, it is well established as a matter of law that economic hardship does not constitute a hardship within the meaning of the statutory grant in our State or any other State." Mr. Grundfest quoted from the Zoning Bulletin the substance of a case of Shell Oil Company vs. the Board of Appeals of Bloomington in which the petitioner desired to enlarge a service station and asked for a variance for the reason that the station was within 400 feet of a school in violation of the ordinance requirements. "The reason for the request was that this would give better service to their customers and thus receive additional income. The hardship claim was merely financial, and this would not support a variance. Denial of the variance was proper." Mr. Venhaus said "that is very characteristic of decisions of that type. When the sole appeal is based on economic consideration that is a very characteristic kind of court judgment. I might go ahead and state the kind of position the Staff took -5- Board of Adjustment Minutes April 20,1970 in this matter. I talked with Mr. Kaufmam at great length about this application. I stated to him, and I will state again that I don't think the reversal of the court of your decision on this matter is going to denigrate his neighborhood. I don't think it is going to cause the ruination of it. I don't think any great dramatic wrong has been done in this neighborhood, and as I look at the whole matter I am not "hung up" on the Kaufman issue. As far as I am concerned it is not terribly relevant. What I am distressed about is the consistency by which the local courts shoot down the City and it seems to me with very very poor reasoning. We consistent- ly get decisions like that shoved back down our throats, and I think we can ill afford to let this happen, particularly when there seems to be pretty flagrant abuse of what should rightly be your discretion. So I am more concerned, first of all, that we have had a decision here that seems to me to be m and I leave it to our attorneys to decide to what extent - it seems to me to rest on very tenuous ground indeed, and I don't think we can afford that. We have enough trouble when we have really got our decks in order. And the second point is that certainly it is true that we are looking at a particular piece of property, but I think when we have got a local court decision to the effect that economic hardship can be predicated on the matter of dollars and cents and business volume, and when they will accept this as a plea and as a basis for a variance request, then I think that that does become something of a precedent and I would suggest to you that the local attorneys will not pass up the opportunity to plead this before you as a legitimate basis of hard- ship sanctioned by at least one Chancery Court (edo Circuit Court) decision, and this seems to me to be an unfortunate kind of thing because I think it is pretty apparent that we have got any number of businesses that need to expand and in some cases they sit immediately adjacent to residential areas, and if they can get by with this kind of argument I think it puts us in a very unfortunate position. So that is basically our interest in the decision. It certainly has nothing to do with Mr. Kaufman, or a feeling on our part that any great wrong would be done, but, I think there are larger issues here, and those are the issues as we see them. I am very sympathetic with Mr. Kaufman or anyone who gets in this position. Of course if we do pursue this, and he will not be allowed to get a building permit to expand his facility until such time as the matter is disposed of, and it seems to me that the law provides for him in that case. Should we do this to him, and he could I think have a reasonable right to sue us for damages m to try to assess damages v if he should be held up over this period of time, and I think it is un- fortunate that the time lag would occur, but we can't hardly ever appeal an applica- tion where this would not be the case. In some cases the problem might be more immediate than others, but'we always have to suspend people's programs while we pursue the thing through the courts." Mr. Flake then said "I assume since the vote was taken last month to appeal this that it will be necessary now in order to reverse this to have a motion and vote to reverse that decision." Mr. Venhaus replied "as a matter of parlimentary procedure that would be appropriate but we really don't have anything in writing and we don't have any procedure so far as I can determine in dealing with this kind of question. So far as I am concerned it is kind of an informal thing on the part of the Board. It is almost as though you were sitting down as a committee talkisig to your attorney and to the Staff, and discussing the matter of whether or not to pursue a decision. I don't think the matter of formalities really are terribly important." Mr. Flake asked "is there a motion by any Board member to change the action of the Board taken at last month's meeting on this matter? The minutes are clear." Inasmuch as the Board members remained mute, Mr. Flake then told Mr. Kaufman that apparently there is no change of feeling on the part of the Board.- -6- Board of -Adjustment Minutes April 20, 1970, 2. Election of a Vice Chairman Mr. Finley Williams was nominated and elected by acclamation. There being no further business, the meeting was adjourned at 3:00 P.M. L. Dickson Flakes Chairman �7m asu&444--, Don R. Venhaus, Secretary.