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04 JUN 14.doc CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING JUNE 14, 2004 7:07 P.M. – 7:55 P.M. OPENING REMARKS: Vice Chairman Stroud opened the meeting at approximately 7:07 p.m. expressing appreciation for those in attendance. ROLL CALL: Commissioners: Susan Dollar, Chad Young, Glen Keaton, Kevin McCleary and William Montgomery answered ROLL CALL. Vice Chairman Stroud also answered ROLL CALL and declared a quorum. PRESENT six (6), ABSENT three (3). Others present for the meeting were City Engineer Whisker, Mr. Aaron Robinson, members of the press, interested citizens and petitioners. APPROVAL AND/OR CORRECTION OF MINUTES: Commissioner Young moved, seconded by Commissioner Keaton that the minutes of the 10 May 2004 Regular Planning Commission meeting be APPROVED as presented. MOTION CARRIED. PUBLIC HEARING(S): CONDITIONAL USE at 712, 714, 716, and 718 Smart Street for classrooms in an R-1 zone Vice Chairman Stroud opened the public hearing at approximately 7:09 p.m. Mr. Aaron Robinson of Bond Engineering represented the item of business. He stated that lots 40, 41 and 42 are being proposed to be combined for the Mt. Pisgah Baptist Church Subdivision. He related that the two duplexes on the property would be used for summer camp and after school programs. He noted that the property is currently zoned R-1, but is being requested for Church use. City Engineer Whisker stated that churches and their accessory buildings are allowed in R-1 zoning under a conditional use permit. He stated that Mt. Pisgah Baptist Church purchased the duplexes and is requesting a replat for one tract of Church property. He stated that the conditional use is for classrooms and possible future daycare. With no else to speak, Vice Chairman Stroud closed the public hearing at approximately 7:10 p.m. In response to a question posed by Commissioner Dollar, Pastor Craig Collier related that they are over crowded in their present space and are proposing to utilize the duplexes as classrooms for after school programs beginning in September, noting that renovation of the duplexes would not be complete until after school begins. He then added that they might consider use of the space for a daycare in the future. He related that the hours of operation would be when Church is in session on Sunday mornings and Wednesday nights. In response to a question posed by Commissioner Young, Pastor Collier related that the renovation of the buildings would meet City Code, adding that City Inspector Marty Sanady and Fire Marshall Captain Pope have both inspected regarding City regulations. CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING JUNE 14, 2004 7:07 P.M. – 7:55 P.M. He then noted that a licensed and bonded contractor would perform the work according to ADA requirements. In response to a question posed by Commissioner Keaton, Pastor Collier stated that the Church is considering a fence once the renovations are completed. Commissioner Montgomery noted that the property does not have any sidewalks, questioning if sidewalks are planned from the duplexes to the Church building. Pastor Collier responded that from the duplexes to the Church there is a small street. He stated that he does not believe that it is a proper dedicated City street, but added that it has been being used by traffic. Commissioner McCleary questioned if the renovation would cause the cut thru from being used as a street. Pastor Collier replied that the status of the street would be up to the City. City Engineer Whisker noted that the property is bounded by Smart Street, Ray Road, and Church Street on the west side and then on the east side there is a cut through in-between the Church and duplexes that has been used for many years as a street. He explained that over a long period of time when traffic uses an area for vehicular travel it becomes a street dedicated or not. City Attorney Bamburg stated that it would be treated as a prescriptive easement since it is being used in that manner, however, depending on construction plans and the recommendation of the City Engineer, the City Council could consider taking formal action to close and abandon. In response to a question posed by Commissioner McCleary, Pastor Collier answered that possibly in 5 to 7 years the Church plans to demolish the duplexes and build a family life center. He stated that at such time the Church would possibly consider asking the City to close the street. Vice Chairman Stroud noted that one of the buildings is on a slab and the other is on a pier and beam. Pastor Collier explained that the Church is planning to use the existing structures and construct a breezeway to connect the two buildings. He added that at as far as handicap access, they are planning to provide ramp access to the first duplex, which would allow access to the second duplex through the enclosed breezeway. CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING JUNE 14, 2004 7:07 P.M. – 7:55 P.M. Commissioner Montgomery moved, seconded by Commissioner Young to approve the conditional use of R-1 zoned property at 712, 714, 716, 718 Smart Street for church use and a daycare. MOTION CARRIED. REQUEST TO APPROVE PLAT(S): a. REPLAT Brown Addition, Lots 12 – 15 Mr. Aaron Robinson stated that lots 12-15 are being replatted into one tract of property in order to provide for future construction plans regarding a new church. City Engineer Whisker stated that the lots are located on North James between Charles Ray Insurance office and the small strip center on the other side. He added that both the Water and Wastewater Departments do not have any concerns. It was noted that the property was formerly rezoned to either C-1 or C-2. Commissioner Keaton pointed out that the final plat would need to indicate the adjacent landowners before being signed by the Planning Commission Chairman. Commissioner Young moved seconded by Commissioner Keaton to approve the replat of Lots 12-15 of the Brown Addition as requested. MOTION CARRIED. b. REPLAT of Dupree’s East Subdivision Lots 40, 41 and 42 Vice Chairman Stroud noted that the replat is the same property that was earlier granted a conditional use for the Mt. Pisgah Baptist Church on Smart Street. Mr. Aaron Robinson pointed out that the duplexes are encroaching on the lot lines, adding that the replat would consolidate the property under one tract for ownership by the Church. City Engineer Whisker stated that the main reason to replat the property is so that the duplexes could be joined by the breezeway without crossing property lines. Commissioner Keaton noted that the replat needed to show proper landowners and any rights-of-way. In response to a question posed by Commissioner Montgomery, Pastor Collier answered that there is not a playground planned for the rear of the duplexes. Commissioner Young moved, seconded by Commissioner Montgomery to approve the Replat of Dupree’s East Subdivision. MOTION CARRIED. c. SKETCH PLAT Marple Industrial Park CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING JUNE 14, 2004 7:07 P.M. – 7:55 P.M. Representative Mr. Aaron Robinson related that the property is located on John Harden Drive, south of the U-Pull It Automotive business. He added that it is bounded on the east by John Harden and Hwy 161. He stated that the commercial subdivision would have an entrance from John Harden. Discussion ensued regarding the culdesac length and City Engineer Whisker recalled that the maximum allowance for a culdesac is 750 feet. It was noted that a variance would be required, unless the street was carried straight through. Mr. Robinson explained that the street was not carried straight through because of the Junk Yard located on Hwy 161. In response to a question posed by Commissioner Keaton, Mr. Robinson concurred that the access for Tracts 7 and 8 would be from Hwy 161. He then answered that there would be two curb cuts from Hwy 161 to access those lots. Commissioner Dollar noted that some of the tracts appear to be mostly easement, Mr. Robinson concurred, explaining that it is because there is no sewer in the area. He explained further that sewer would be provided by an underground septic system. He stated that tract 15 would be utilized for sewage for tracts 16, 17, and 14. Commissioner Dollar stated that she was not in favor of a 1,000 plus foot culdesac. Discussion ensued regarding a redesign of the culdesac. Commissioner Young moved, seconded by Commissioner Dollar to redesign the culdesac to meet Code, including input from City Engineer Whisker and to table the Sketch Plat of Marple Industrial Park until the next regularly scheduled Planning Commission meeting. MOTION CARRIED. BUILDING PERMIT(S): GENERAL: PRESENTATION by Richard Magee of Metroplan Mr. Richard Magee of Metroplan related that he had reviewed the last 1995 training session with the Planning Commission and noted that one of the sections he would be covering concerns Board of Adjustment variances. He presented the Commission with a variance guideline handout. He then acknowledged that it is sometimes difficult for Planning Commissioners who also serve as Board of Adjustment Commissioners to take one hat off and put on another. He stated that as a Planning Commissioner, you have a lot more of discretion, such as granting a culdesac length waiver as just discussed in the plat before the Planning Commission. He stated that Board of Adjustment Commissioners are acting as a quasi-judicial body that has a totally different set of functions and responsibilities. He related that CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING JUNE 14, 2004 7:07 P.M. – 7:55 P.M. sometimes you get into issues of negotiation as a Planning Commissioner, which cannot be done as a Board of Adjustment Commissioner. He stated that the key phrase to remember with a variance is that it is a “minor exception” with the key word being “minor”. He highlighted the issue of how the Board should evaluate a variance being granted. He began by saying that there are typical standards that the regulations require and that as a Board of Adjustment member, Commissioners should be familiar with those regulations. He added that there is an evaluation checklist for when a petitioner request a variance. He stated that firstly the Commissioners should ask if the request is unique; is the hardship caused by zoning standards unique to the property, that is not shared by neighbors nor similar properties. He clarified that “literally” it means that it has to be tied to that specific piece of property. He stated that the effect is the effect regarding the zoning standards to deny a property owner reasonable use of the property. He explained that it does not guarantee that a petitioner can use his property how he wants, but that he is denied reasonable use. He elaborated that just because a petitioner wants to use his property a certain way; he does not have the right to do that but in fact has to adhere to the zoning regulations. He introduced Self-imposed issues, saying that he believes this gets more Boards of Adjustment in trouble than anything else. He explained that self-imposed means that the petitioner did not bring the burden upon himself through some action but instead had the burden imposed upon them, further clarifying that it means that it was imposed upon them either by the conditions of the property and/or the City’s regulations. He reiterated that it cannot be imposed by the applicant himself, because of something that he has done to cause it to be out of compliance and then ask the Board for a variance. He reviewed Consequences, pointing out that if the Board grants a variance, the variance should not cause any land use or parcel to become non-conforming. He stated that this means that the Board should not waiver something that causes that piece of property to become non-conforming nor should it be allowed to continue in a non-conforming use. He continued that there are other considerations the Board of Adjustment Commissioners should ask themselves such as “what would the variance do” and if the applicant has shown 1) that the variance is necessary to comply with the general purpose and intent of the zoning ordinance, 2) that the variance will not harm nearby properties, 3) that the variance will not harm people associated with nearby properties, and 4) that the variance will not change the character of the nearby area, which he added is really key to granting a variance. Vice Chairman Stroud questioned how much should the input from people to speak for or against weigh in regarding if the variance would harm nearby property. Mr. Magee stated that information regarding that question would be reviewed on the following page of the handout. CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING JUNE 14, 2004 7:07 P.M. – 7:55 P.M. He continued that 5) is that the variance is the minimum necessary to permit reasonable use of the property. He reiterated that it is very rare that someone would not retain some reasonable use of the property even if the variance were not granted. He stated that those factors are key to the Board checking and asking themselves if the variance should be granted. He reiterated that the Board’s responsibility is to hear appeals from decisions made by the administrative officer (zoning officer) and to hear request from the literal provision of the zoning ordinance in instances where strict enforcement of the zoning ordinance would cause undue hardship due to the unique circumstance to the individual property. He then addressed Vice Chairman Stroud’s question, pointing out that regardless of the opinions of the citizens present at the public hearing, the attention of the decision makers must remain focused on the standards governing and upon testimony as it relates to those standards. He clarified saying that it cannot be just because someone likes it or not, adding that it is suppose to be issues of their opinions on how it relates to the standards. He noted that the handout clearly states, “Thus, petitions for or against some application are merely expressions of opinion and should be considered as such”. He then added that separating fact from opinion deals with the Board acting as a quasi-judicial body, explaining that sometimes the Board may have opinions from expert witnesses of experience or education. He stated that it should be considered as an expert opinion because the Board is operating as a quasi-judicable body. He stated that since the Board operates as a quasi-judicial body it should 1) make all documents and exhibits publicly available, 2) list the standards in the zoning ordinance being considered regarding the facts relevant to the testimony, 3) the evidence for each of the standards and the conclusion by the weight of the evidence for each standard. He pointed out that the Board of Adjustment is acting as a judge and jury in the case of variances. He stated that he felt it important to highlight those considerations because it is often hard for Boards of Adjustment and Planning Commissioners to transition their Planning Commission function into Board of Adjustment function. He stated that the issue of the public opinion should be considered as such and should speak to the facts and standards in which it is to be judged. He added that obviously people need to express their point of view, but even as difficult as it may be for neighbors who may not understand the regulations but try and get them to express an opinion as to the standards which is better than just saying I do not like it or I wish you would not do this. He highlighted a specific case, relating that it was a legal case from Pennsylvania. He explained that the case addresses the same situation addressed earlier to him regarding a developer’s failure to determine applicable requirements barred use of de minimis doctrine to justify a variance. He went on to say that the case deals with a developer who sought a variance from the Board of Adjustment to allow the corner of a porch to intrude CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING JUNE 14, 2004 7:07 P.M. – 7:55 P.M. 1.19’ into the setback. He added that although the Board recognized that the intrusion was unintentional, it denied the request because the project superintendent had explicit knowledge of the setback requirements before building a porch. He added that on appeal, the trial court affirmed. It concluded that although the violation was de minimis, moving the corner of the porch out of the setback was not “particularly burdensome.” The developer appealed, arguing that once it found that the deviation from the setback requirement was de minimis, the trial court was required to determine whether rigid compliance with the Code was necessary to protect the public policy concerns inherent in the Code. He stated that the appeals court affirmed, holding that a developer’s failure to determine the applicable zoning requirements bars his ability to invoke the de minimis doctrine. He concluded, pointing out that the documents goes on to say that it does not matter whether the developer mistakenly or intentionally violated the Code because “there is a strong policy against assisting landowners without violate a zoning ordinance, whether negligently or intentionally”. He clarified that the developer was held to the Code and could not claim that it was a very minor issue and ask the court to overturn the Board of Adjustment’s decision. He stated that Boards of Adjustment often get into the very minimal issues and may want to grant the variance, but he cautioned that again because your function is quasi-judicial, then you have to look at the regulations. He stated that one thing he tries to get Boards of Adjustment Commissioners and Planning Commissioners to realize is that sometimes if the City is receiving a lot of the same type of variance requests, it often means that there is something wrong with your ordinance. He suggested that the if that is the case the City should go back and look at their ordinances and determine if it needs to be amended as opposed to changing it for one person which goes back to equal protection of the law. He elaborated saying that if the Board is allowing one person to do something that can be problematic, but if you are receiving the same request over and over, you probably need to look at your zoning ordinance and consider modification to provide that same opportunity for everyone to do the same and have that same advantage. In response to a question from Commissioner Dollar regarding like variance request and the difficulty of the Board to deny any second request, Mr. Magee stated that the Board would have to determine by looking very closely at the case facts and document that, adding that the Board would have to consider those facts in the first case and see if they are in fact the same or different from the second case. He stated that if you determine that they are similar then you would have legitimate concerns as to whether you are going to have problems denying the second request. CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING JUNE 14, 2004 7:07 P.M. – 7:55 P.M. Vice Chairman Stroud questioned, how relevant past cases would be in dealing with the public bringing in extraneous information. Mr. Magee related that he believes that is why the Board has to be very diligent in their deliberations in looking at the facts of each case. He went on to say that as a Board you cannot prevent people from bring up past cases. He added that it should not necessarily determine your action regarding the present case, unless the Board has been grievous in granting variances, which would create legitimate problems. He then added that having said that, I constantly see in legal cases where because a city via the Planning Commission or the Board of Adjustment has made a mistake in the past it does not mean you have to continue that mistake. He stated that the Board can turnover a new leaf and declare that they are not going to grant any future variances unless it is strongly proven. He related that he believes that is often times the case where the Board feels like they have to almost justify the case for the petitioner, adding that it is the responsibility of the petitioner to prove his own case. He reiterated that the Board does not nor does anyone else need to justify the case, the petitioner must make his own case as to why that variance is necessary for him and still not in fact violate the ordinance as written. In response to a comment from Vice Chairman Stroud, Mr. Magee stated that the Board should make its decision based on the facts presented, not on what you may know outside or beyond the meeting, but only on what is presented at the time of the public hearing. He related hat other information can be made known at the public hearing as a matter of public record. In response to a question from Commissioner Dollar, Mr. Magee agreed that the Board of Adjustment does not have as much leeway as the Planning Commission. He added that the Board of Adjustment needs to stick very, very closely to the zoning ordinance and the way it is written. He reminded the Commission that it does not mean that the ordinance cannot be changed but as far as the Board of Adjustment, it is your responsibility to enforce the regulations, not to modify them but to interpret the application. He reiterated that unless there is an undue hardship to that piece of property, whether it is physically, topographically, or something unique to that property that precludes them from reasonable use of their property then you should not grant a variance. In response to a question from Vice Chairman Stroud regarding the information to be weighed regarding the presentation of facts for and against, Mr. Magee stated that the Board should go back and ask those questions; is it unique, what is the effect, it self-imposed, and what are the consequences. He stated that often times issues are self-imposed or the petitioner claims economic hardship. He related that economic hardship is not a legitimate reason to grant a variance, relating that, again, it has to be tied to the property not economic CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING JUNE 14, 2004 7:07 P.M. – 7:55 P.M. issues. He pointed out that the petitioner still has reasonable use of their property, although it may cost them more to do so. In response to a comment from Commissioner Dollar regarding the demolition of a fence or a porch, Mr. Magee commented that over the years he has seen many such cases. He recalled a case where a petitioner built a $10,000.00 brick fence that was 2’ over his property line and the Board of Adjustment did not grant the variance. He stated that the petitioner had to actually tear down the fence and reconstruct it in the proper location. He noted that to be a good example for a case of economic hardship but added that the Board has to look at the consequences of making that decision and then it being replicated over and over again. Commissioner Dollar stated that what may have bothered her the most when she was on the Board of Adjustment was issues where the variance was only slight and if not granted it would create problems for the petitioner, but acknowledged that as Mr. Magee had pointed out it was not the Board’s fault. Mr. Magee agreed, saying that is the reason self-imposed issues arise. He clarified that a good example of a condition imposed upon a petitioner would be if a lot was created at some point in the past and a new zoning ordinance was adopted and the lot did not configure to the new zoning ordinance. He related that this might be a case where he cannot physically meet the requirements of the new zoning ordinance. He went on to say that it would be a legitimate case because it was conditions imposed upon him by the new zoning ordinance, not a case of his building something and ignoring either intentionally or unintentionally the regulations and then asking for a variance because he has done something to cause the violation. He related that another example would be a case where there is a steep slope on a lot and because your setback requires it is topographically impossible for him to meet the setback requirement and still have reasonable use of his property. He added that might be a case where the Board would grant a setback variance a certain number of feet to allow reasonable use of the lot. He reiterated that physical conditions of the plat are in the zoning ordinance. He urged that the Commissioners use the checklist to see if the property meets those conditions to ensure the right decision. The Planning Commission thanked Mr. Magee for his presentation. ANNOUNCEMENT: CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING JUNE 14, 2004 7:07 P.M. – 7:55 P.M. ADJOURNMENT: Vice Chairman Stroud without objection, adjourned the meeting at approximately 7:55 p.m. Respectfully, ____________________________ Susan L. Davitt Planning Commission Secretary