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HomeMy WebLinkAboutboa_07 26 1971LITTLE ROCK BOARD OF ADJUSTMENT M I N U T E S JULY 26 1971 MEMBERS PRESENT L. Dickson Flake, Acting Chairman Dave Grundfest, Jr. Lawrence Woolsey MEMBERS ABSENT S. Spencer Compton, Chairman Darrell Dover, Vice Chairman STAFF PRESENT Don R. Venhaus John L.Taylor Louis E. Barber James Finch Dorothy Riffel OTHERS Perry Whitmore, Asst. City Attorney J. Huddleston, Gazette Reporter Brenda Tirey, Democrat Reporter There being a quorum present, the meeting was called to order by the Acting Chairman at 2:00 P.M. This meeting was a postponed one from July 19,1971, the scheduled date due to a lack of a quorum being present. A motion was made for approval of the minutes of the last meeting as mailed, which was seconded and passed The following action was taken on advertised matters: Tract No. 1 - Z-2423 Applicant: Location: Description: Classification: W. C, McMinn.Company, Inc. 516 West 16th Street Lots 4, 5, 6, Block 206, Original City "F"-Commercial District Variance: Requests a Variance from the Setback Provi- sions of Section 43-15 of the Code of Ordinances to permit an addition to an existing non -conforming building The Staff's recommendation was read as follows: "The Staff recommends denial of this application inasmuch as there appears to be no basis for the requested Variance other than the potential financial gain of the applicant which is not hardship due to circumstances unique to the individual property. The present development of the "F"-Commercial lot provides only a 20 foot rear yard and a 25 foot front yard. The Variance if granted would provide a 15 foot front yard, 10 feet short of the required amount for new construction." Board of Adjustment Minutes July 26-1971 Sec. 43-11 para (2) City Zoning Ordinance reads as follows: "(f) that no part of the existing non -conforming building shall encroach, extend or project into more than one yard space distance required by this Chapter (g) that such erection, conversion, or reconstruction of structural alteration shall fully conform to the yard space and all other provisions of this Chapter required for new construction." In the opinion of the Staff, this is a case of overbuilding on the lot." Mr. Ben McMinn, representing the applicant, W. C. McMinn Company, was present as was Mr. W. C. McMinn. Mr. McMinn stated that there would be no addition to the building as they intend only to enclose a part of a porch with glass between existing colums on the second floor, and remove the steps which extended about 15 feet out to the side. He stated they had executed a long term lease on this building based on the remodeling which includes enclosing the building, and if this request is denied it would cause them irreparable harm amounting to many thousands of dollars. He asked the Board to reject the Staff's suggestion and approve the Variance. Mr. Venhaus said that the fact that construction was under way without a building permit indicated the project was substantially premature; that there was a great deal of expense incurred for architect's fees and plans, etc. for this project, which would not be a rational way to proceed with development until the Board of Adjustment had an opportunity to deal with this question. "If any hardship accrued from the preparation of plans they were self-induced, and they didn't have a project until this Board permitted extension into the front yard area. If it faced Arch Street, they would be in non-conformance on the east side and would be 3:9 feet rear yard instead of the 25 feet required by ordinance. The entrance would not determine the frontage or side yard relationship - where you walk into the structure is not the determining factor as to where the frontage is." Mr. Flake told Mr. McMinn the Board is concerned with what appears to be going on in the former apartment house at the corner of Broadwgy.TAiich is being converted to a quiet business use prior to its being rezoned. Mr. McMinn replied that this was a separate issue and had no relevance to the property in question. Mr. Flake said it was hard to consider it as a separate issue when part of the parking on this application is to be used for justification for the other. Mr. McMinn contended that the property at 16th and Broadway had been rezoned, but Mr. Venhaus refuted this saying that no ordinance had been adopted by the City Board of Directors (ed: It has since been determined that the northwest corner of Broadway and 16th Street originally app.lie&—for (Case-Z-20.70).in_March, 1967. This property: was rezoned in February, 1971 #Z-2423 which case also includes this Board of Adjustment applica- tion for Variance.), and that a resume of that case would be provided the members of the Board of Adjustment which would include notices which were sent to Mr.McMinn. Mr. McMinn requested that a copy be sent to him, too. A motion was made that the application be approved, but there was no second. Mr. Grundfest commented that he personlly felt that it was very embarrassing for the Board to be asked to rule on such situations after construction had begun, and would put everyone in better position if they were allowed to review these things after the building permit had been issued and before construction had commenced. He said this comment was of a general nature, and not for this particular case. The Chairman then seconded the motion, but there was one negative vote, and the motion failed for lack of three affirmative votes, and consequently the application was denied. -2- Board of Adjustment Minutes July 26.1971 Mr. McMinn requested a rehearing for the next regular meeting August 16th, and upon advice of counsel that this was permissible, a motion was made for a re -hearing at the August meeting, which was seconded and passed. Tract No. 2 - Z-2489 Applicant: Location: Description: Classification: Variance: 5 5 5 Auto, Inc. 711 West 8th Street Lots 1, 25% 11 and 12, of Lots 3 and 10, all City "H"-Business District and the north 40 feet in Block 175, Original Requests a Variance from the Height Provision of Section 38-3 of the Code of Ordinances to permit construction of radio tower in excess of permitted (to a height of 150 feet above building or 190 feet + above ground level) Mr. Ed Shuffield, representing the applicant, was present. He stated that FAA had approved the tower which is only going to be 50 feet off the ground at the present time. At a later date they would increase the height of the tower in order that they might have communication with their other stores and delivery trucks. A motion was made for approval, which was seconded and passed. Tract No. 3 - Z_-1524 Applicant: Dr. Charles Betts Location:501 North Pine Street Description:' Lot "B" Sartin Replat of Part of Block 1 Pulaski Heights Addition Classification: "F"-Commercial District Variance: Requests a Variance from the Yard Area Set- back Provisions of Section 43-15 of the Code of Ordinances to permit construction in Rear Yard Space The Staff's recommendation was read as follows: "(This case was deferred at the last meeting due to the fact that notices to adjacent property owners had not been turned in, nor was there anyone present to represent the petition.) The Staff repeats its previous recommendation which read: "The Staff recommends denial of this application. Granting a Variance of the required rear yard space for reasons of the terrain is not justified. The hardship in this instance appears to be one of lesser financial return on development of the property which is not considered a hardship within the purview of the Zoning Ordinance. In the opinion of the Staff this is a case of overbuilding on the lot. It is desired to point out that there is recourse to the removal of the platted building line on the west side of the lot which would permit a re -design of the structure more fitting to the lot. -3- Board of Adjustment Minutes Julv 26.1971 The lot contains 6500 square feet and the developer proposed to construct 5 apartment units which require 6000 square feet of family lot area, The applicant advises this office that, in addition, the structure is to contain a rental office space. Before a building permit could be issued, the lot must be re -platted to re -locate the drainage easement. Although the revised plot plan provides a 14 foot rear yard instead of 10 feet formerly, the Zoning Ordinance provides that "Sec. 43-11 para (21 (g) that such erection, conversion, or reconstruction or structural alteration shall fully conform to the yard space and all other provisions of this Chapter required for new construct- ion." The Staff feels that a re -design of the structure is feasible without a Variance provided a side yard space of 12.5 feet is obtained on Pine Street by replatting the lot." Mr. Jack Young, attorney representing the applicant, was present. He related a little of the history of the property stating that until last year this property was occupied by a commercial type building located on the southwest corner of the property, and after Dr. Betts acquired it, by an act of legislation, the zoning on this property was changed to "F"-Commercial which is what it is today. "Dr. Betts acquired the property several years ago and remodeled it for "E-1" quiet business use and for apartments. The location of the building on the lot at that time made it difficult to see around the corner which was a traffic hazard. Last year the building burned and had to be razed and in the process of attempting to work out some feasible plan for the re- development of the property, he has developed the probability of a building which would be five apartment units, 2 or 3 of which would be efficiency units, and a quiet business office which will house a construction company which he and Dr. Betts are interested in. The location of this proposed building on the property is far more desirable, and notwithstanding that we are asking for a 10 foot or 11 foot variance from the rear yard requirement, I can understand to some extent the Staff's recommenda- tion in that the 25 foot setback on Pine Street, which is there by virtue of a Bill of Assurance, or 25 foot setback from Lee Street, which is thereby virtue of the zoning ordinance, boxes a building in pretty good. To us it is insignificant whether we get a variance on the Pine Street side or back of the property. We are talking about a variance from an existing line either set by a bill of assurance or by ordi- nance. To us the feasible thing to do would be not to create any improvements next to the street which might be an impediment to traffic giving more open space at the corner. As to the 10 feet behind, the only thing I can say there is that it does encroach upon the 25 foot requirement by ordinance, but if that 25 feet is there for any reason other than to protect the adjacent property, I fail to see what reason it would be. Dr. Pearl Shoudel, 511 North Pine Street, which is the property immediately north, has given me a letter indicating that she has no objection whatsoever to our request. We are in position of having an architect or a designer to design this building and we would like very much to put a residential and quiet business usage on a lot that we can economically operate in that capacity and avoid having the Staff's recommendation put us in a position of virtually having to go to an "F"-Commercial usage right in the middle of a residential and school area. We feel like the usage we propose in this instance is far more palitable to the people there and far more acceptable to the people for a good, effective control of the use of the property in that area. There is not a commercial piece of property within blocks in either direction. We don't want to have to be in the position of going to commercial in IE4 Board of Adjustment Minutes July 26.1971 order to make this a salvagable economic development of the lot. There was some mention of a drainage easement. In that respect that is something that we are going to have to work out, but we think we can handle this rather well. If we can get clearance at this point, we can. go ahead with a very modest development of what otherwise might necessarily be a commercial use of the property." Mr.. Young was questioned about the recommendation of the Staff to redesign the structure without a variance by providing a side yard space of 12.5 feet on Pine Street by replatting the lot, and why he did not want Logo this route. He replied "what we are talking about is a variance on one side or the other. The 14 feet in the rear would give us an opportunity to use some design that has already gone into the proposed building. We do feel like that the design that we have lends itself to an overall development in a building that would allow us to stack the plumbing and allow us to do things that would make two efficiency apart- ments and three two -bedroom apartments with the one quiet busines office very feasible. A change would complicate the internal arrangement of the apartments which would make it a bit more expensive. The question with us is whether we are put in the position of asking for a side yard variance by replatting and going through considerable expense in connection with that. We are asking for a slight reduction in the rear yard requirement which is not objected to by the only property owner who would really be affected, so to us this is the more sensible approach. Technically, the Staff may feel that they would prefer us to do it another way, but we are talking about 10 feet on one side or the other, and to us this would be the preferable approach." Mr. Venhaus explained that one of the Staff's principal concerns with this applica- tion was the property owner immediately to the north. "We had a variance request which to our mind was not supported by any topographical problem, and proposed to put a structure within 14 feet of this single-family dwelling to the north, when they could, by reducing the platted setback line on the west, orient the structure away from the single-family lot. In view of the fact that the property owner to the north does not object, then it is not terribly significant which way the build- ing is oriented." Mr. Young added that he had discussed with Dr. Shoudel, the adjacent property owner to the north, both alternatives. Originally I talked about reducing the rear yard to 9 feet instead of 14 feet she did not object to the 9 feet. She did suggest screening in connection with the parking area, and that the retaining wall not be damaged in the course of construction. Mr. Venhaus added if the Board approves the Variance as requested that screening be extended all the way along the north line of the lot, which was acceptable to Mr. Young. A motion was made that the application -be approved with the understanding that the screening be extended across the north boundary of the lot, which was seconded and passed. Tract No. 4 - Z-2488 Applicant: Mechanics Lumber Company by Eugene Pfeifer,III Location: 7600 Block "S" Street Description: Lots 4, 5, 6, 7, 8, Block 1, Bellevue Addn. Classification: "F"-Commercial and "C"-Two-family District Variance: (On next page) -5- Board of Adjustment Minutes July 26,1971 Variance: Requests a determination of the Board relative to the location of a retail oriented lumber company in an "F" - Commercial zone under the Provisions of Section 43-22 (k) of the Code of Ordinances The Staff's recommendation was read as follows: "The Zoning Ordinance excludes a lumberyard as permitted in the "F"-Commercial District (para (13) Sec. 43-7. Para (19) Sec. 43-7 provides: "A wholesale business may be permitted by the Board of Adjustment in an "F"- Commercial District provided such wholesale business is of a retail nature as determined by the Board of Adjustment and where the business is wholly contained within a building or buildings, and is of the type not obnoxious or offensive by reason of emission of odor, dust, smoke, gas or noise." The Staff feels that a lumberyard is a use which will require considerable truck traffic for unloading building materials. All lumberyards engage in retail busi- ness to a degree. The volume of retail sales as compared to wholesale sales we feel is not a reasonable basis for this determination." Mr. Eugene Pfeifer, III, representing the applicant Mechanics Lumber Company, was present. He stated that they felt they were being discriminated against just because their name happens to be "lumber company" when a building permit was requested in an "F"-Commercial zone and this created a hardship for them. "If our name was Mechanics Hardware and Housegoods Company, we could probably get a build- ing permit for a retail store with large enough storage in the rear to stock a quantity of lumber and plywood. At our store on Cantrell and other locations in the City or County, we would like to be in an "F" zone. The market which we are approaching is the -consumer market - the home owner or the "do-it-yourselfer". The same trip that takes them to the grocery store, drug -store, garden center, tire store, might bring them by our place of business to buy the items that we sell. We are not a hardware store but in addition to the hardware items we happen to carry are two or three lines of what might be considered heavy material such as lumber, plywood, cement, all of which products you can see advertised in the mailouts, the newspaper inserts - all stational name distributors who operate in our City such as Western Auto, Montgomery Ward, Sears -Roebuck- who compete with us from their location in an "F" zone who do sell these products. If we were primarily a lumber yard doing our primary business with home owners and apartment builders, I could understand the reason behind an adverse recommendation. All lumber yards do some business with consumers. There are at least two lumber yards in town who do not sell a line of paint, do not sell a general line of home hardware, tools, lawn and garden supplies, etc. Obviously they do not appeal to the do-it-yourselfer and do not appeal to the consumer traffic. If we were a lumberyard such as this we would be content to be relegated to an industrial zone. Industrial property can be acquired for 50� a foot. If we didn't want to appeal to the consumer, why would we operate from a piece of property which costs $1.50 a foot. We are appealing to the consumer traffic. We do sell to Xneral contractors, etc. but we are able to take care of them from our main location which is an 8 acre site with two different railroads going to it so that we can receive and economically store and bundle for large shipment, the gDods that these customers buy. If we can furnish a large construction project from that main distribution yard directly out of a box car and handle those goods and deliver direct to the job site, we would be foolish to -6- Board of Adjustment Minutes Julv 26.1971 deliver these goods by way of a small branch yard where we would have to double handle them. Their primary requirements are delivered out of our North Little Rock distribution yard. The quantity and items that they chose to come into the Cantrell Store are similar to the quantity and items bought by ladies and home- owners for their small cash purchases. Having a large distribution yard in the metropolitan area, we choose to operate one branch yard that is primarily aimed by products lines and customer class as primarily retail and we feel we should be permitted to operate where the retail business is going on. The entire north and northwest part of this community is an area in which we cannot operate There are only two outlets in this area that offer, in addition to hardware, lumber and plywood., products that you need for your do-it-yourself products. They are both there 3y virtue of having been there when the City took this area in. Neither one of them can get a building permit to do the type of expansion and improvement that we want to do, and there can be no new location. With the increase of cost of home repairs that the do-it-yourselfer will do more and more of, this sort of thing, the practical effect of the zoning ordi- nance as it now stands is that these people will have to do south and east of the line that I mentioned to obtain the products they need rather than being able to obtain these things in the same area that they are obtaining similar products. So we feel that the zoning ordinance is discriminatory against us as retailers which is how we see -ourselves in this type of outlet, and we request that you make this waiver." He added that in his opinion delivery should not play as barge a part as it seems to, and furniture stores will deliver a much higher percentage of their sales than they do. Mr. Pfeifer said they were fortunate in that they have so many small items, and being primarily a retail yard, they deliver less than one-half of what they sell, but do deliver 90% of the bulk materials. Mr. Venhaus took issue with Mr. Pfeifer that the ordinance discriminates against him any more than it discriminates against any use where they are required to locate in a particular district. He said "I am satisfied if you read the ordinance, it tends to obfuscate the issues tather than clarify them. It seems to me that the Section we quoted you is predicated on the sheer knowledge that it is extremely difficult to draw hardfast lines between retail and wholesale, and that these labels are somewhat confusing. It seems to me that the spirit and intent of the ordinance is to recognize this difficulty and to take cognizance over what is intended and how the use is installed rather than what that use might be labeled. It specifically states that the activity must be entirely enclosed and done in such a way that smoke, noise, odors, etc are ameliorated to whatever extent they can be. I don't think that lumberyards, simply because that label is attached to a particular use ought to be excluded from the Board's authority. At the same time I think because the,. ordinance specifically excludes lumberyards, the Board has a particular responsi- bility to look very carefully into the use of lumberyards in an "F"-Commercial District. We, therefore, would not be adverse to a finding on your part that lumber yards do potentially fall within the purview of this grant of authority that the Board has to allow retail type wholesale use, or wholesale -retail uses in an "F" Commercial District. But we think you ought to consider it on the basis of a specific application, detailed development plan, and a very careful look at th-e type of use that would be made of the property, the type of equipment, structure relationship, screening, etc." -7- Board of Adjustment Minutes July 26,1971 Mr. Flake asked for clarification from Mr. Venhaus as to whether the Board would distinguish between a lumberyard which is specifically prohibited and a retail store which emphasizes lumber as one of its primary product lines which you think the Board should consider with proper controls. Mr.Venhaus replied "I think that you have to concede that when you deal with a labeled lumberyard, it is almost impossible to assign any specific meaning to it. You can list a whole bunch of, things that are characteristic of lumberyards - some of which all of them have, some of which most of them have, etc. My point is that I think a lumberyard should be excluded from an "F"-Commercial District, but if they are willing to come in and subject themselves to the specific require- ments of the Board and to the stated requirements set forth in this grant of authority that you have, I don't think they ought to be restricted. Utilizing this provision with the full authority that it grants the Board, I think you ought to consider a lumberyard in an "F"-Commercial District, but only under these terms - fully enclosed with specific attention to structure relationship, screening, type of equipment, access - the whole package. I think that is the intent of the ordi- nance.11 Mr. Pfeifer said that a lumberyard would obviously have no economic reason to take advantage of the waiver if it had a second location in a metropolitan district of some size to take care of its customers. He added that the amount of selling space is important, and would enclose the warehouse space opening in toward the center of the property. He said "The only other alternative for us to continue doing business and being able to expand and improve our facilities, would be an applica- tion for "H10 zoning in that area which in my opinion would be worse for the City to permit an "H" zone in which we could get a building permit and do what we want. It would be better to grant us the specific waiver with specific limitations." Mr; Woolsey asked if the Board'sdetermination would cover lumberyards in general or only this application. Mr. Pfeifer then stated that he was more concerned about his application at this location, but because of the wording in the application which asks for a definition of "F"-Commercial zoning to permit retail lumberyards to do business in retail zoned classification. He said it was recommended to him that he try to resolve the general issue rather than attack it at a specific loca- tion, because he could envision it coming up again at some point in the future as they would like to have two or three branches around and would want them in an "F" zone because that is the traffic they are appealing to. Mr. Woolsey commented that he would advise fhat::Mr. Pfeifer take one at a time, and that he would be hesitant to approve it the way it is. He added that he was sympathetic with this one particularly, and thought it would be an asset to the neighborhood (in which he lives). Mr. Pfeifer responded that he would like very much to have a favorable decision now as to this particular piece of property, and at a later date make specific applications at other locations. Mr. Grundfest asked for clarification of the issue saying "assuming that we granted to approve the expansion of this yard, the first thing we have to do is to agree that we can put this in an "F"-Commercial zone and then dedide whether or not we want to allow him to expand this yard as he requested." Mr. Venhaus replied saying I think you could make a finding that you could include lumberyards in ai "F"-Commercial District assuming they met the criteria of the Berard of Adjustment Minutes July 26,1971 ordinance and also met the approval of the Board. You could make that finding and deny Mr. Pfeifer's specific application to expand hislumberyard if you thought it not appropriate in terms of what he wanted to do with it or where he wanted to put it, etc. The first question is a theoretical issue of whether or not a lumber yard should be included in one of those businesses included in an "F"-Commercial District." Mr. Woolsey said he did not follow that logic and did not see why the Board of Adjustment could not approve what he wants on that particular•piece of ground without trying to re -write the ordinance."Why can't we approve this site for what he wants to cb on it without saying "we will do it again". There is no precedent or legal procedures here, are there? Could this Board not deal with Mr. Pfeifer's specific piece of property without opening the door to other lumberyards;" Mr. Venhaus said "it would seem to me that you would have to find under the ordi- nance that lumberyards whether his or someone's else, could fall within this definition of retail -wholesale type use that could be allowed with specific Board approval for "F"-Commercial District. If you don't make that finding I don't see how you could deal with his issue because they are specifically excluded from "F" Districts." Mr. Whitmore was asked for his opinion and he said "the question is to grant an exception as opposed to the usual function of the Board of Adjustment. This particular Section permits the Board to permit a use of a zoning classification which ordinarily or customarily is not permitted. This is a different function of the Board from determining whether or not the various zoning ordinances should be varied under the ordinance in certain instances due to a hardship." Mr. Venhaus said it would be possible to approve this several ways. It would be possible to make a finding that "yes, you could build a lumberyard in an "F" Commercial District if you meet the specific requirements of the ordinance in terms of total enclosure, etc., but I think that would be a serious mistake. That would be a decision carte blanche to allow lumberyards in an "F." District if it were enclosed, etc, without further review, and this would be a serious error to make." by Mr. Grundfest A motion was made/that the Board of Adjustment hear applications for retail oriented building supply and hardware stores in an "F"-Commercial zone It was added that „this has no bearing whatsoever in my interpretation on this particular site. We will have to see an application on a particular site with a development plan, the Staff's suggestion, etc. before I would want to make a determination on this or any other particular site or location." The motion was seconded, and passed. Mr. Flake commented to Mr. Pfeifer "you have an interpretation, but not a ruling on your application. A specific site with development plan would be considered on its individual merits with all the safeguards for the surrounding area, etc. An addition to the motion was made that Mr. Pfeifer be allowed to submit this plan on his original filing, but that he contact adjacent property owners. There being no further business, the meeting was adjour- �.- Don R. Venhaus, Secretary L. Dickson Flake, Acting Chairman -9-