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22 JUN 13 A G E N D A BOARD OF ADJUSTMENT JUNE 13, 2022 6:00 P.M. CITY HALL CITY COUNCIL CHAMBERS 1. CALL TO ORDER: PAGES 2. APPROVAL AND/OR CORRECTION OF MINUTES: Regular Scheduled Meeting of March 14, 2022 1-2 April 11, 2022 3-4 May 9, 2022 5-6 3. VARIANCE REQUEST(S): 2404 Hunters Chase Court Petitioner: Frank Swift, Jr. Letter of request for Hearing 7-8 Notice from Code Enforcement 9-11 Letters of support: Arkansas Wild Spaces 12-13 Michael Sullivan (adjacent neighbor) 14 John Pritchett (neighbor) 15 Ty Williams 2409 Estates Ct. 16 Terry Neal (neighbor) 17 Arkansas Game & Fish Commission 18 Plat showing lot owners in Subdivision 19 Ord. 1692 Most recent grass ordinance 20-21 List provided by Mr. Swift regarding mowing status of lots in Subdivision 22 Photographs provided by opposing neighbors in Subdivision (Included in packet) ADJOURNMENT MINUTES: BOARD OF ADJUSTMENT REGULAR MEETING DATE AND TIME: June 13, 2022 6:02 p.m. – 7:00 p.m. ATTENDANCE: Commissioners: Ruple, Montgomery, Twitty, and Chairman Brown were present. ______________________________________________________________________ City Clerk Susan Davitt recorded those listed above in attendance and Chairman Brown declared a quorum. APPROVAL AND/OR CORRECTION OF MINUTES: Commissioner Twitty moved, seconded by Commissioner Montgomery to approve the regularly scheduled meeting minutes of March 14, 2022, April 11, 2022, and May 9, 2022. MOTION CARRIED. VARIANCE(S): 2404 Hunters Chase Court City Attorney Friedman stated the Commissioners will have to determine whether Mr. Frank Swift, Jr. is in compliance with Jacksonville Municipal Code. She affirmed it is not a variance and understands there may have been some misunderstanding about it. She explained under Jacksonville Municipal Code and State Statute the Board of Adjustment has two functions: 1) to hear appeals from administrative decisions, which is what they are doing tonight, by hearing the appeal from Code Enforcement’s decision that Mr. Swift is not in compliance with Municipal Code, and 2) to grant variances based on zoning. She noted because this does not involve zoning, it is an administrative appeal, so they will be determining if Mr. Swift is compliant or not. Mr. Swift related he was told he was to come and request a variance and that is how he prepared his case. He stated if they are going to talk about something different he would like a continuance so he can prepare a different case. Chairman Brown did not see where that should change from whatever preparation Mr. Swift has made for tonight in asking for the variance. He noted tonight they can only discuss and hear the opinions from both sides and, once that is heard, this Board will take it into advisement and at a later time they will make a decision or pass it back up to the City Council. City Attorney Friedman instructed the Board of Adjustment will make the final determination and if Mr. Swift wants to appeal he can file it in Circuit Court. Mr. Swift objected because he was told he to request a variance and now he is being told the Board cannot give him a variance. City Attorney Friedman believed they spoke about this at City Council where she stated then they cannot grant a variance for something that is not zoning related. She clarified that he is asking for an administrative appeal to appeal the decision from Code Enforcement. Mr. Swift shared he did not prepare for an appeal, but prepared for a request for a variance, as he was instructed by the City Council. City Attorney Friedman assured City Council told him he was going to do an administrative appeal. BOARD OF ADJUSTMENT REGULAR MEETING June 13, 2022 6:02 p.m. – 7:00 p.m. Mr. Swift related City Council told him he had to come to this Board and ask for a variance. City Attorney Friedman agreed with Chairman Brown’s previous statement in that she does not see how the argument would change for a variance versus an appeal. Mr. Swift explained if he is not in compliance, he would need a variance, but they are now going to determine if he is in compliance. City Attorney Friedman confirmed the Board of Adjustment does not grant variances for non-zoning related issues. Mr. Swift requested this proceeding be continued to the next meeting on the grounds that he was told he was coming to get a variance and now he is told he cannot get one. City Attorney Friedman recalled it was discussed at City Council and she believes she spoke with him on the phone. She reiterated this Board cannot grant a variance for this issue and recalled it was explained to Mr. Swift before the City Council meeting. Mr. Swift stated she did not explain that to him on the telephone. He reiterated that he was told at the City Council meeting he would have to refer it to this Board to request a variance, and if that is different, he requests a continuance until the next Board meeting so he can prepare his case properly. Commissioner Twitty suggested Mr. Swift go ahead and make his proposal tonight. Mr. Swift asked if he is able to get a variance from the Board of Adjustment. City Attorney Friedman replied, based on Jacksonville Municipal Code and State Statue, he cannot get a variance from the Board of Adjustment. Mr. Swift questioned why he was told to come to this Board to request a variance. When City Attorney Friedman asked, Chairman Brown recommended this issue be continued to next month because Mr. Swift is prepared for something and there was obviously a misunderstanding. Discussion ensued and it was determined the next meeting will be July 11th. Mr. Swift requested clarification on exactly what the Board of Adjustment is capable of. City Attorney Friedman shared that she sent him an email today. Mr. Swift noted he did not receive it yet and that is similar to what happened last meeting where an email was sent after a discussion with the Game & Fish Commission, which he was not privy to. BOARD OF ADJUSTMENT REGULAR MEETING June 13, 2022 6:02 p.m. – 7:00 p.m. City Attorney Friedman clarified that particular email was from the Arkansas Game and Fish Commission, not her. She then pointed out that she was not privy to his discussions with Game & Fish either and noted this is not a courtroom setting. Mr. Swift requested a statement of what the Board could render as a decision. City Attorney Friedman reiterated that she sent it in an email to him. Mr. Swift inquired if enforcement action will be suspended until the next meeting. Phillip Carlisle, one of Mr. Swift’s neighbors, stated this is a Code violation that Code Enforcement enforces hundreds of times a month. He requests the City enforce the Code and pointed out this is not a court of law. Mr. Swift related that his meadow has been undisturbed for 12 years and another 30 days is not going to make a difference. When Chairman Brown asked if it will make a difference in the next 30 days, Mr. Swift responded it would if it is mowed because he invested a great deal of time and money on the native plants he planted in that area along with the drainage, pond, and other aspects of the property. He stressed if they enforce the City Code and mow it, it becomes a moot point and he will be irrefutably harmed by it. Police Chief Brett Hibbs suggested if Mr. Swift is already prepared for the case he was planning on, he should be able to testify to it tonight. Chairman Brown noted that he is not in disagreement with that but more than likely the Board cannot make a decision tonight in regards to the request. He asked if Mr. Swift would rather come back for the continuance as opposed to presenting anything tonight. Mr. Swift responded that there is a record from the City Council and he can present a few more things but he would like a continuance and assurance Code Enforcement is not going to bring their mowers out tomorrow, but be held in abeyance until he can present his case. When City Attorney Friedman asked Lieutenant Ryan Wright how long this has been as issue with Mr. Swift, he responded longer than 31 days, but with the previous case they had since about March. City Attorney Friedman recalled the first email she received regarding this issue was in February, so this has been an ongoing issue since then. Lieutenant Wright explained the most recent tag was following the discrepancy about whether Mr. Swift was certified with the Arkansas Game & Fish Commission, which resulted in them opening a new case on it. BOARD OF ADJUSTMENT REGULAR MEETING June 13, 2022 6:02 p.m. – 7:00 p.m. Mr. Swift reiterated that his meadow has been there for 12 years, so another 30, 60, or 90 days are not going to make a great deal of difference. He affirmed it has not changed, except to be improved, over those 12 years. City Attorney Friedman shared her concern of setting a precedent if someone is not in compliance with Code they would go to City Council then come to this Board and ask for an extension or continuance for another 30 days. She believes they need to apply the Code uniformly. Chief Hibbs recalled at the City Council Meeting, Council decided they do not have authority over this and that is why they referred it to this Board. He explained they said it was a Board of Adjustment issue and that is why we are here tonight. He noted they have been waiting long enough. Commission Twitty encouraged Mr. Swift to proceed tonight. Mr. Swift agreed to proceed but objected because he is not prepared since he was told he was here to seek a variance but now is told they cannot grant him one. City Attorney Friedman noted Mr. Swift’s objection. Commissioner Ruple asked what Mr. Swift plans on sharing differently tonight than he would a month from now. Mr. Swift replied that his presentation tonight is not based so much on law as it is on equity, explaining he has been operating under a Code provision that regulated lots up to 5 acres for the last 12 years. He explained only in April of this year did the City Council change the ordinance, so the presentation he prepared to ask for a variance from this new ordinance is based on the fact that he should be grandfathered in since he was in compliance with the ordinance for 12 years before it was changed. He pointed out that he prepared a request for a variance and will make the presentation if they wish, but he believes he is being prejudiced by the fact that they are now telling him they cannot grant him a variance. When Chairman Brown asked, he responded that he understands the Code to be a new ordinance that was passed on April 7th of this year, but the Code previously had a provision that regulated mowing on lots up to, and including, 5 acres. He noted this did not apply to his lot since it is 5 ½ acres, so he was repeatedly assured by City officials, the Mayor and City Attorney, that his whole lot did not have to be mowed because it was over 5 acres. He affirmed that provision was in effect before he did his research and purchased his lot and remained in effect until April 7th of this year when it was rescinded by the City Council. He assured that throughout that time he had been in compliance with the City Code and the homeowner’s Bill of Assurance. He wants to present a request for a variance because he believes in equity and he should be allowed to be grandfathered in after the investment he has made in preparing the area. Lieutenant Wright noted the ordinance Mr. Swift is referring to is one in a chapter they are about to repeal but was entered in 2001. He explained the ordinance they were enforcing was from 2009, prior to the new one being passed. He detailed that the one from 2009 repealed the 5 acre requirement BOARD OF ADJUSTMENT REGULAR MEETING June 13, 2022 6:02 p.m. – 7:00 p.m. and regulated that residential lots are limited to 8 inches and commercial/industrial lots without buildings to 24 inches. He confirmed that was the ordinance they were enforcing and, per Code, the more restrictive ordinance is the one they enforce. He reiterated that was the ordinance they were enforcing since it was the newer ordinance, not the ordinance from 2001. Mr. Swift related the 2009 ordinance did not repeal the previous ordinance. He explained the previous ordinance was based on mowing and it continued in effect until it was specifically repealed on April 7th of this year. He believes Lieutenant Wright is mistaken because it was still in effect. City Attorney Friedman stated she does not have the 2009 ordinance in front of her but she does remember there being a section saying any ordinances in conflict are hereby repealed to the extent of such conflict. She asked if anyone knew the ordinance number so she may look it up. Lieutenant Wright detailed the only difference in the 2009 ordinance and the current ordinance is they added the word “fences” to it and changed the height of the grass to 18 inches. City Clerk Davitt noted the 2009 ordinance is number 1381 and the 2001 ordinance is 1154. Mr. Swift pointed out that he is looking at the 2009 ordinance and sees nothing about the repeal of any other ordinances. Mr. Swift’s attorney, Chris Travis, related he probably will not be engaged very much in the conversation but he did just read those ordinances. He explained the 2001 ordinance had a table in it that said residential lots below 1 acre had a limit of 8 inches and the 1 to 5 acre limit of 18 inches. He said if you look at ordinance 1381, it references the same table, specifically stating that for details refer to this table. He noted because the regulations for residential lots stopped at 5 acres, and there was not another line that addressed residential lots 5 acres and above, neither ordinance 1381 nor 1154 from 2001 regulated his size acre lots. He stated until this April he was operating under those two old ordinances that did not address the height of anything, grass or weed related, on lots more than 5 acres. He assumed that is what the City was going along with since there had not been any citations for 12 years, until this Spring in February, and then again in March. He related the City then changed the ordinance, which he agrees, does not have the reference to the table, but expressly repealed 08.08.01, which was the 2001 ordinance. He explained that is where non-conforming use comes in since it was a piece of property being used this way for more than a decade, and when the rules changed, just like if you had a building 18 feet tall but the City changed the limit to 10 feet tall, you do not have to tear your building down. He reiterated it would be a non-conforming use to where as long as you do not sell to someone else or increase your usage height from 18 to 20 feet, you are grandfathered in. BOARD OF ADJUSTMENT REGULAR MEETING June 13, 2022 6:02 p.m. – 7:00 p.m. City Attorney Friedman stated ordinance 1381 from 2009 states in section 5 on page 21 “all ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict and the stricter provisions, if applicable, should prevail,” so there is that language. She explained that non-conforming use was passed in 1969 when the zoning ordinance was initially brought before Council, so her argument would be it is for buildings or property in 1969 that would not conform with the new ordinance. She affirmed it is not for a public nuisance, but for zoning. Mr. Travis agreed the ordinance does have the repeal clause in it and if it conflicts, it repeals the older ordinance, but the 2009 ordinance specifically referenced the table that said under 1 acre is 8 inches and 1 to 5 acres, occupied or unoccupied, is 18 inches. He explained it did not go above 5 acres and it is still in the 2009 ordinance so neither one of those, operating in conjunction, apply to his particular lot. Lieutenant Wright recalled the table it refers to does not exist and that is why they cleaned the ordinance up. Mr. Travis agreed there was a typographical error that should say table 08.08.01, but it says 08.08.02 and it has existed in Jacksonville Municipal Code since 2001. He stated it was reiterated in 2009 but it does not mean the table that comes immediately after the section of the Code, and was part of the original ordinance, does not exist. He explained it was just a typo someone made when they were typing on their typewriter with their carbon paper in 2001, that was never corrected. He said the table is the height regulation that was part of the 2001 and 2009 ordinance and what Mr. Swift and the City have been operating on since 2009 or 2010 when he bought his property. He affirmed that was the state the ordinances when the City adopted this new ordinance on April 7th. He agreed it repealed the older ordinance so now we have a new height regulation standard, a definition of weeds, and what constitutes a nuisance under this new statute. When Chairman Brown requested clarification, Lieutenant Wright replied that the first violation letter was issued in February, but Mr. Swift advised he was certified by the Arkansas Game & Fish Commission to have a habitat in his yard. He explained it was researched and Mr. Swift did not have the certification, so at that point, he was given another letter advising he had seven days to cut his grass. He noted that they gave him a letter saying if his grass was not cut by May 26th they were going to cut it, but Mr. Swift requested the appeal to the Board of Adjustment. He confirmed that they are functioning under the new ordinance at this time and there has not been a further citation issued yet. City Attorney Friedman stated even though the 2009 ordinance referenced a table that does not exist, it expressly stated trees, shrubs, and vegetation shall not exceed 8 inches in residential districts, so her argument is that it is expressly stated in the body of the ordinance and although it references a table that does not exist, she would argue the clause at the end of the ordinance also says if there is any conflict or contradicting ordinances, this one would prevail. She reiterated her argument is the ordinance says 8 inches for residential districts. BOARD OF ADJUSTMENT REGULAR MEETING June 13, 2022 6:02 p.m. – 7:00 p.m. Mr. Travis requested a copy of Ordinance 1381 and City Attorney Friedman offered to send it to him electronically. He questioned why does the 2009 ordinance reference the table. City Attorney Friedman was unsure and replied that she did not draft that ordinance. Mr. Travis believes it does still reference the 2001 table and Mr. Swift has been operating under it for 12 years. Chief Hibbs confirmed that the table was removed from the ordinance and they did not grandfather any properties because they want everyone to be in compliance. City Attorney Friedman agreed when Commissioner Twitty asked if the 2009 ordinance expressly mentioned this is it and it supersedes the table. Lieutenant Wright added that if he says it has been 12 years, he was functioning under the 2009 ordinance the whole time. Mr. Travis affirmed he does not have that ordinance in front of him but from memory it says “for specifics refer to the table”, which was the table that was with the old ordinance. He explained that the 2009 ordinance grabbed that old table and brought it forward so it applied to residential lots, residential lots 1 to 5 acres, occupied commercial lots, unoccupied commercial lots, and different types of land. When Commissioner Montgomery asked then if from 2001 to 2009 everyone could have their grass grow in the City of Jacksonville, he replied only if you were above 5 acres. Commissioner Twitty understood what Mr. Travis was saying but noted it does mention 8 inches in 2009. Lieutenant Wright respects what Mr. Swift has done with the work he has put into his property but, if he is grandfathered in, the City would have to grandfather in every property they have tagged for grass in the past two years he has been in Code Enforcement. Mr. Travis replied only since April 7th. He stated that the new ordinance 1692 uses three different adjectives that he believes mean it does not apply to Mr. Swift’s particular situation. He listed the first one as “noxious” and detailed that it prohibits noxious grasses, weeds, plants, and/or vegetation. He then explained that the adjective “noxious” first has to apply to all of those types of plant matter or vegetation, otherwise the City would be prohibiting any plant or vegetation on any property, which is not what they are trying to do. He pointed out that noxious means physically harmful or destructive to living beings and no one has said Mr. Swift’s plants are that, because they are not. He shared his second point stating the definition of weeds, which include all grasses and is a very encompassing definition, except at the end it says “however, the term “weeds” shall not include cultivated flowers, gardens, and/or landscaped areas.” He clarified that cultivate means “to loosen or break up the soil about (growing plants), to foster the growth of, or to improve by labor, care, or study.” He affirmed it is exactly what Mr. Swift has been doing BOARD OF ADJUSTMENT REGULAR MEETING June 13, 2022 6:02 p.m. – 7:00 p.m. for the last 12 years since he has been taking out non-native plants and encouraging and fostering the growth of Arkansas native plants. He shared his third point is that landscaped areas do not apply to weeds and landscaped means “to modify or ornament (a natural landscape) by altering the plant cover.” He stated that Mr. Swift has landscaped his area, removed plant cover, and dug a pond and made a trail around it. He explained that he modified the preexisting plant cover by removing the non-native plants and encouraged and fostered the growth of native plants. He assured even under its own terms without any sort of variance or anything else, the current ordinance 1692 does not apply to his particular situation. He is certain it applies to thousands of other situations and it is a good ordinance, but it does not apply to Mr. Swift’s situation. When Commissioner Ruple asked, he replied that he has not been out to see Mr. Swift’s property personally yet. Commissioner Ruple noted when he thinks of a neighborhood that is landscaped he thinks of bricks, timbers, and something that is a defined area of a garden. He pointed out that Mr. Travis mentioned a trail and a path, but it is just an area that has been mowed around and is not uniformed into a landscape. Mr. Travis shared one of the reasons he did not go out to see this property is because what we are dealing with here is not necessarily a subjective opinion on whether someone likes the yard or not. City Attorney Friedman clarified the definition of landscaped is “all of the visible features of an area, countryside, or land often considered in terms of their aesthetic appeal,” so she would argue that whether or not it is aesthetically pleasing would come into play. Mr. Travis asked if under Ordinance 1692 is the City going to decide, in general, whether it likes someone’s landscaping or not as the standard under Ordinance 1692. City Attorney Friedman stated that it is a verb “to make more attractive by altering the design by adding ornamental features and planting trees and shrubs” so “making more attractive” is very subjective. Mr. Swift related that he has had an expert come out from the Arkansas Master Naturalists and they did an inventory of over 60 native plants he has either cultivated or planted. He affirmed that the landscape is very attractive to birds, pollinators, and wildlife and it does not say it has to be attractive to any particular person. He pointed out that aesthetics is very subjective and to a naturalist his landscape is extremely attractive. When asked by Commissioner Montgomery, he responded there are 2 to 3 acres of woods in the back yard, a pond they have built at their expense, and a meadow of tall grasses, shrubs, hedges, bushes, and trees. When Commissioner Twitty asked, he responded he could not put this in his back yard because the trees are in the way. BOARD OF ADJUSTMENT REGULAR MEETING June 13, 2022 6:02 p.m. – 7:00 p.m. Lieutenant Wright requested clarification on the definition of noxious grass and Mr. Travis responded that it means “physically harmful or destructive to living beings.” Lieutenant Wright asked if he cultivated crabgrass 8 to 16 inches in his yard, since it is not physically harmful to him, could he have as much of it as he wants just because he cultivated it. Mr. Swift noted that crabgrass is not a native Arkansas plant. He then objected to his neighbor, Bart Gray, being able to speak since it is not in the Board’s power to grant him a variance. He affirmed if the Board is simply deciding whether or not he is in compliance, Mr. Gray’s testimony if irrelevant. He reiterated that he is either in compliance or not and the opinion of a neighbor has no relevance about his compliance. Commissioner Twitty requested to hear from Mr. Gray, Chairman Brown replied it is not a public hearing at this point since all they are doing is sharing information. Chairman Brown requested clarification regarding if they are speaking about a lot that sits in the middle of an extremely exceptional residential neighborhood. He related that when you bring a lawyer in and start defining terms, they are not going there. He stated this is about someone who does not want to cut their yard that is located in the middle of a beautiful, gorgeous neighborhood. He noted so far that is what he has heard and seen. He pointed out that they will end this quickly because it is going nowhere, it’s pointless, and that is why they are going to continue it since they cannot reach an endpoint tonight. Mr. Swift understands the continuance and acknowledged he requested it, but his question was whether Code Enforcement is going to come out with their mowers tomorrow and mow it, cutting off his right of appeal. City Attorney Friedman replied no and assured if it has been continued there has not been a decision then Chief Hibbs confirmed it will not happen until a decision has been made. Bart Gray of 2413 Hunters Chase Court stated he lives next door to Mr. Swift and moved there two years ago. He explained it has been in the City zoning as a subdivision since 2008 and did not take off as quickly as it needed or wanted to, but in the last three years they have had a lot of houses being constructed. He pointed out that until this time last year, the neighbors on Mr. Swift’s side were undeveloped lots that have not been sold to build houses, but are now sold with houses going up. He added that there is a great differentiation between those lots and the lots in the rest of the subdivision compared to Mr. Swift’s. He noted that this subdivision has brought citations before the City Council or Code in previous years to cut grass and their neighborhood is designed to have estate-like houses with well-manicured lawns that are aesthetically pleasing to the neighbors. He was unsure of the legal terms that were mentioned but they, as neighbors in their neighborhood, cut their grass and would like to see Mr. Swift do the same. He stated that Mr. Swift lives on two lots with one being above the floodplain designation and one being below, but he has plenty of land in his back yard if he wanted to replicate his native plants. He knows Mr. Swift takes a great deal of pride in that but they do in their neighborhood too and would like to see the standards maintained throughout. BOARD OF ADJUSTMENT REGULAR MEETING June 13, 2022 6:02 p.m. – 7:00 p.m. Mr. Swift voiced that Mr. Gray misstated the fact because they have not received any mowing citations out there in the past. He affirmed that he cannot put the grass in the back yard without cutting down all of the trees and added that their Subdivision is unique in Jacksonville since it is a gated community, but it is also unique because it is a special improvement district. He stated it is the Jacksonville Municipal Property Owners Multipurpose District and it is not exclusive. He explained that a normal subdivision is dedicated to the City that requires a developer to provide curbs and gutters, streets, storm drains, sidewalks, streetlights, and the sewer system meeting City specifications. He confirmed they do not have any of that and reiterated Foxwood Estates was organized as a special improvement district and is not dedicated to the City, but to the property owners. He pointed out that the developer, Woodhaven Homes, was not required to provide curbs, gutters, sidewalks and they do not have any of those. He detailed that they have crumbling streets with huge potholes, ditches instead of storm drains, two out of three streetlights working, and a private sewer system that only works if they have electrical power because it has to be force fed by pumps. He affirmed they cannot complain to the City to get those things fixed since it is a special improvement district where the 22 property owners, together, own the streets, ditches, sewer system, and the two working streetlights. He reiterated that they are responsible to maintain and repair those things and the district has no money to do it. He added that their property values have fallen because a shooting range has been installed next door and the noise has caused them to hire an attorney to get their property assessments lower. He stated that this is technically a gated community, but it is not up to par with any other subdivision in the City of Jacksonville. When Commissioner Ruple asked, he responded that they do have a Bill of Assurance and he is in compliance with it. Mr. Gray confirmed they do have a Bill of Assurance that calls for landscaping around their residences and Mr. Swift has it on his front and side yard, but not his other side yard. Mr. Swift disagreed and said if you look at the pictures his front yard, both side yards, and back yard is landscaped. Mr. Gray disagreed and assured it is his opinion, along with several neighbors. Chairman Brown noted the decision will not be made tonight. Discussion ensued on whether Mr. Swift is in compliance with the landscaping terms of their Bill of Assurance and it was determined that it is landscaped everywhere but this area of his lot. Karen Carlisle related she is a commissioner of Foxwood Estates and she has lived there almost as long as Mr. Swift has. She understands at one point there was a provision for over 5 acres, but it has been changed so now they would like all of their lots more uniform. BOARD OF ADJUSTMENT REGULAR MEETING June 13, 2022 6:02 p.m. – 7:00 p.m. Mr. Swift mentioned provided a letter from a Mr. Sullivan who bought the lot directly next to his meadow and read: “When we purchased the property, one of the selling points for us was the natural wildlife habitat set up next door. As the neighbors immediately bordering the habitat, we heartily support their right to keep and maintain the natural wildlife habitat and implore the City not to remove this beautiful and educational addition to our neighborhood. The native plants and species they house and feed will be a wonderful learning experience for our children and grandchildren.” He reiterated it is in their packet with several other letters of support. Commissioner Twitty shared that he called the Arkansas Game & Fish Commission today and had a copy sent to him that specifies a back-yard habitat program. He explained they also told him they have suspended the program, then emphasized it specifically states “back yard” program. He noted that he drove out to Mr. Swift’s house today and his opinion is that he has plenty of room in his back yard. He pointed out that he has a pond back there with a canoe and other things that look nice, but on the left-hand side of his house it looks like someone who does not want to cut their yard. He added that he lives in a neighborhood with lots being 1 to 1 ½ acres and in his back yard on any given night or daytime there are butterflies, bumblebees pollinating, wasps, an owl, deer, and coyotes. He told how he tells his wife to not leave the door open because hummingbirds and bluebirds will fly into the house. He added that they have snakes there too and his grass is 4 inches of zoysia. He reiterated there are a lot of butterflies and habitats, then suggested Mr. Swift put in landscaping with butterfly bushes close to his house in the back yard or side of it. He expressed that right now it looks unkept and like he does not want to mow his yard. He assured he is not a landscape expert but he did not see any kind of vegetation that was attractive, other than to maybe snakes, mice, and rats. Mr. Swift stated they are surrounded by swampy woods and everyone has snakes. He assured he has not seen any lately but if any of his neighbors have snakes they are not coming from his yard, but from the woods. He asked Commissioner Twitty if he looked at his back yard within the fence or outside the fence because outside the fence are the trees and inside the fence is a nice lawn, butterfly bushes, landscaping, and a swimming pool. He pointed out that unless he cuts the trees or takes out his swimming pool he cannot move the meadow to the back yard. Mrs. Carlisle added that her son-in-law is a Science teacher and principal now at the Lighthouse Academy and he is very well-versed in natural woodlands and meadows in the State of Arkansas. She shared that in his and her back yards they have done a lot of butterfly weed, bat houses, and a manicured version of natural landscape along with natural wildlife such as turkey, but it is still within Code. She stressed there is a possibility of still maintaining the natural life around us without having overgrown weeds and she assured on any given day they have an abundance of wildlife around them. She reiterated that it can be done without having overgrown weeds growing up to almost the street line. BOARD OF ADJUSTMENT REGULAR MEETING June 13, 2022 6:02 p.m. – 7:00 p.m. Chief Hibbs noted Mr. Swift’s property backs up to Holland Bottoms Wildlife Refuge that goes all the way up to Pickthorne and there are tons of wildlife there that is protected. He explained this issue is present and future because there is a lot of construction in this neighborhood, just to explain the potholes and everything; there is a lot of new housing going up. He related that it means new people moving in and he believes what they have seen from all of the neighbors here so far is that it is subjective, however, the opinion of the appearance of this property is in the negative based on all of the people who live around there. He stated it is not pleasing to the eye, which is hard to argue that it is. He pointed out there is more construction going on in the future and they will have more people moving in, which means more complaints for Code Enforcement. He noted property values, curb appeal, and all of these things that come into play. Lieutenant Wright stated he is not an environmentalist or horticulturist, but a Code Enforcement Officer, pointing out if an exception is granted, the City is going to have to grant it to everyone that says their yard is being cultivated. He shared his only concern is whether he can stick a yardstick in the yard and it measures over 8 inches, and Mr. Swift’s grass measures over 8 inches. He related that he has butterflies, flies, wasps, bees, and everything else in his yard also, and while he respects the work Mr. Swift has put in, regardless, it is a violation of Code. Commissioner Ruple asked Mr. Swift if there is any way he can operate his natural habitat within 8 inches so he would not have to get rid of it if it can be under 8 inches. He affirmed that no one said he has to get rid of his habitat, it is just that Code is stating it has to be under 8 inches. He shared that he is not an expert on the wildlife issues and he does not know if it is possible to maintain it under 8 inches but wants Mr. Swift to understand no one is asking him to get rid of it. Mr. Swift related that Central Arkansas Master Gardeners came out on June 9th and did an inventory of over 60 native plants in this area. He does not see any that could survive if cut down to 7 or 8 inches and reiterated they are all native Arkansas plants where 90% of them are taller than that. He stated what Mrs. Carlisle mentioned earlier of a manicured version of a natural landscape is an oxymoron because it is either manicured or it is natural. He disagreed with what she said about it being overgrown because there are distinct plants in there. He also disagreed with the idea that all of the people want him to mow because most of the people who are moving in are doing so because they endorse what he is doing with the natural habitat he maintains and noted that the Board has letters to that effect in their packets. When it comes to the comment that everyone who wants to quit mowing their lawn, can simply call it a natural habitat, they are going to have to go through 12 years of hard work to remove invasive species and put in native Arkansas plants in order to become a natural habitat. He noted he is certified by the Natural Wildlife Federation, the Audubon Society, and the Arkansas Game & Fish Commission tells him when they get their back-yard wildlife program back up he will be certified by them. Mrs. Carlisle affirmed that Arkansas Game & Fish Commission do not supersede City Code. BOARD OF ADJUSTMENT REGULAR MEETING June 13, 2022 6:02 p.m. – 7:00 p.m. Mr. Swift assured he is not trying to supersede Code; he is trying to comply with it. Chairman Brown noted they have taken an hour and it has been a nice discussion but the thing he feels disappointed in is they do not have enough data or specifics to make a decision. He stated they are going to do a continuance until July 11th and by that time he is hoping to come to the meeting and make a decision, one way or the other. He explained he will not say it is going to be in anyone’s best interest but he feels there are a lot of families in this community consisting of 22 properties and it appears most of those properties are in agreement in terms of what they want the neighborhood to look like. He related that suddenly someone comes in and wants to take the neighborhood in a totally different direction and this will take a lot more digging into. He apologized that they could not make a decision tonight and reiterated whatever decision they make will be in the best interest of the City and more importantly, the majority of the community that lives within a particular neighborhood. When Commissioner Ruple inquired, City Attorney Friedman replied that on July 11th they will be hearing the administrative appeal where they will determine whether Mr. Swift is in compliance with Code or not. Mr. Swift asked if they are going to make a decision whether or not he is in compliance then why does it matter what these neighbors say. City Attorney Friedman assured she did not say that it mattered. Chairman Brown affirmed he did. ADJOURNMENT: Without objection, Chairman Brown adjourned the meeting at approximately 7:00 p.m. MOTION CARRIED. Respectfully, ___________________________ ______________________________ Susan L. Davitt CHAIRMAN Dan Brown CITY CLERK – TREASURER