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22 JUL 11 A G E N D A BOARD OF ADJUSTMENT JULY 11, 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 June 13, 2022 1-13 3. VARIANCE REQUEST(S): a. Accessory Building Max. Square Footage 3410 North First Street Petitioner: Virgil Heard 14-17 b. Administrative Appeal 2404 Hunters Chase Court Petitioner: Frank Swift, Jr. Request for Hearing 18-19 Notice from Code Enforcement 20-21 Letters of support: -Arkansas Wild Spaces 22-23 -Michael Sullivan (adjacent neighbor) 24 -John Pritchett (neighbor) 25 -Tyrone Williams 2409 Estates Ct. 26 -Terry Neal (neighbor) 27 -Arkansas Game & Fish Commission Clarification email from AGFC 28 Plat showing lot owners in Subdivision 29 Ord. 1692 Most recent grass ordinance 30-31 ADJOURNMENT MINUTES: BOARD OF ADJUSTMENT REGULAR MEETING DATE AND TIME: July 11, 2022 6:00 p.m. – 6:51 p.m. ATTENDANCE: Commissioners: Ruple, Montgomery, Twitty, Dietz, 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 Ruple moved, seconded by Commissioner Montgomery to approve the regularly scheduled meeting minutes of June 13, 2022. MOTION CARRIED. VARIANCE(S): a. Accessory Building Max. Square Footage 3410 North First Street Chairman Brown opened the public hearing at approximately 6:01 p.m. Petitioner Virgil Heard stated he is trying to build a larger building on his lot than what the City allows, adding he has two lots total. He explained his house is on Lot 1 of Heard Subdivision and has Lot 2 where he would like to build an 1800 square foot metal building. He detailed that it would have a 10-foot porch on the front of it, adding it would be mainly for storage and for him to work in. He pointed out he owns .8 acres and the building will be on the back of the property, noting it backs up to the Air Base. He related his property is 260 feet on one side and 250 on the other. Council Member Dietz clarified these are really big lots on the left of First Street that have been there for many years. He detailed that Mr. Heard is on the left in an all brick house and this is an adjoining lot next to it. He pointed out there are five lots with a new house being built on one pretty close. He affirmed this would be in the back and would fit the lot very well. Mr. Heard related you could build a house in front of the building if you wanted to later on, but he just wants it and his house since he likes having the space of two lots. City Clerk Davitt confirmed no one has called in reference to this request and mentioned the Bill of Assurance. Mr. Heard agreed this was a lot split from a larger piece of property, adding that he did the Bill of Assurance where he did not write anything about the exterior of the buildings, other than the house. He clarified this is a six lot subdivision where he owns two, someone else building a house owns three others, then someone else has one lot in between them. Council Member Dietz stated this is near the one where they are building the bigger accessory building the Board approved for Marsha Friedman. He reiterated those lots are really nice, deep, and wide and accommodate all of the things behind it, so it does not really cause an issue. City Clerk Davitt noted she asked about the Bill of Assurance because they generally say any accessory building has to match the main structure. BOARD OF ADJUSTMENT REGULAR MEETING July 11, 2022 6:00 p.m. – 6:51 p.m. When Commissioner Montgomery asked, Mr. Heard replied it will be metal, not be bricked, and will be gray in color. He reiterated his Bill of Assurance does not mention accessory buildings having to match the home and that he wrote it himself. He stated his house is about 19 years old and it has been about 20 years since he did this subdivision. Chairman Brown closed the public hearing at approximately 6:07 p.m. Commissioner Montgomery moved, seconded by Council Member Dietz to approve an accessory building for 1800 square feet at 3410 North First Street. MOTION CARRIED. b. Administrative Appeal 2404 Hunters Chase Court Chairman Brown opened the public hearing at approximately 6:08 p.m. Chairman Brown stated he realizes the petitioner, Frank Swift, Jr. has spent a lot of time with this request, with this being his fourth meeting. He explained he was made aware of a situation before this meeting and in addition to that, they have spent a lot of time reviewing all of the information. He wants to make sure they pay due diligence to this, adding that grass cutting, mowing, and height does not fall under the responsibility of the Board of Adjustment. He assured in this situation he has been informed the Board does have some responsibility in what he is requesting that falls under the area of an administrative appeal. He related that is an area they have not really spent a lot of time with so tonight they will not be able to make a definite decision, but will be able to hear both sides and will take all of that information and review it to make a decision later. Commissioner Twitty recalled they were supposed to make a determination tonight about whether or not they are in compliance with City Code. City Attorney Friedman concurred that was the issue last month and that is what the issue is now. She believes if they push it to another month they run the risk of having a timely appeal which would result in Mr. Swift coming back for a total of six of seven times. She thinks a decision needs to be made tonight unless there is other information the commissioners require that is not presented tonight. Chairman Brown confirmed they will make a decision tonight regarding whether he is in compliance or not with Code and confirmed this is a public meeting. Chris Travis stated he is a lawyer for Gill Ragon Owen and is here on behalf of Mr. Swift tonight. He mentioned that Chairman Brown was referring to some information he received and had a plan, but then changed it. He requested clarification from Chairman Brown or City Attorney Friedman on what caused the difference. BOARD OF ADJUSTMENT REGULAR MEETING July 11, 2022 6:00 p.m. – 6:51 p.m. City Attorney Friedman was unsure what Chairman Brown was considering with a change of plans, but at the last meeting she said this commission has two functions, which are to hear administrative appeals and then for rezoning. She affirmed that has not changed. Chairman Brown shared his only concern was regarding the administrative appeal and going back and checking through files, it was a new term for him and there has not been a lot of documentation in the records regarding it. Mr. Travis agreed there is not a lot in the ordinances, statutes, or casefiles, making it a murky area. He related that is why he thought Chairman Brown was leaning towards deferring so they could all figure it out before they made a decision. Chairman Brown assured he just wanted to be clear and wanted everyone else to be clear, adding hopefully if they move forward with this they can either make a decision one way or the other. He explained when you get into gray areas, he wants to make sure everyone is heard and if it is appropriate for a decision to be made tonight, it would be made, but in the event they have to defer to another time, they will. He shared that is his only position, otherwise, we follow the process. Mr. Swift requested to make a brief statement then to turn it over to his lawyer for the legal matter of compliance with the statutes. Police Chief Brett Hibbs stated he feels like we have already covered all of this, made their statements, and laid out the groundwork, so all they need tonight is a decision. Discussion ensued regarding the time limit of the meeting since another is scheduled following and it was agreed they would extend it. Mr. Swift thanked his friends, neighbors, and his grandson and friends, sharing that the boys helped him with the native plants and in removing the non-native ones. He explained that his family has maintained a wildlife habitat since they bought the property in 2008, adding they built their house in 2010. He pointed out they built the house on the corner of their 5.5-acre lot to leave maximum space for native plants and wildlife. He related they live on 1.5 acres that is fenced and neatly mowed, landscaped with ornamental trees, flowers, and shrubs, just like any other house in the neighborhood with a yard just as neatly tended as any other. He pointed out that their investment in the wildlife habitat includes years of hard work and expense which includes digging the pond, installing underground drainage lines to eliminate standing water, bringing in loads of gravel to create an all-weather road in the floodplain, wetland portion, and buying native plants. He detailed their hard work includes excavating by hand, planting native plants, and systematically removing non-native plants and invasive species over the last twelve years. He affirmed this was all done without violating the Bill of Assurance or the mowing ordinance that was in effect then, so they will be irreparably harmed if forced to destroy this natural area. He stated for twelve years there have been no complaints from the City or homeowners, adding that his efforts have been endorsed BOARD OF ADJUSTMENT REGULAR MEETING July 11, 2022 6:00 p.m. – 6:51 p.m. by the Game and Fish Commission, the National Wildlife Federation, the Arkansas Audubon Society, and the Central Arkansas Master Naturalists. He explained that Dr. Dan Scheiman from the Audubon Society inspected their property and certified it under the Audubon’s Plants for Birds Program, then requested to submit his report. He continued to say there were two Master Naturalists who visited their property that cataloged over 60 native plant species they have preserved, then requested to submit their report. He related that five of their neighbors came to speak on behalf of his natural area before the City Council and he has submitted messages in support of preserving the natural wildlife area, noting they have them in the record. He assured there is only one neighbor that lives on the lot that adjoins his, noting his name is Michael Sullivan and he lives right next to the natural wildlife habitat. He then read from a letter he submitted from his neighbor Michael Sullivan. “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 assured other neighbors have told him they support them, but cannot go on record for family, business, or financial reasons. He stated their property is not a nuisance, noting there is no garbage, rubbish, unsanitary articles, odors, unsanitary conditions, or vermin harborage. He reiterated they have installed underground drains to eliminate any stagnant water so it is not a breeding place for mosquitoes, flies, or germs. He went on to say it has no effect on any other property because it is simply a safe, healthy place to enjoy nature. He shared that this morning, like every morning, he went out on his golf cart, noting he cannot walk on anything other than a smooth surface. He told how there are three children, ages 3 through 7, that often go with him and today they counted seven species of wildflowers in bloom in the meadow with bees and butterflies pollinating them. He commented that the kids especially like feeding the fish in their pond and collecting specimens such as bird feathers, acorns, leave, etc., adding that they are even learning to identify animals by their tracks in the mud. He recalled that over the past 30 years, progressive disability has forced him to give up hiking, canoeing, fishing, and photography with even his passion for birdwatching being limited by his inability to hold binoculars. He affirmed he will fight to the last level of appeal before he will allow three neighbors, who do not represent the majority of the homeowners in the subdivision, to rob him of the enjoyment of nature in his own yard, or the chance to share that with children. He explained that he would prefer the City of Jacksonville to simply do the right thing. Mr. Travis stated he is not here to argue, advocate, or anything else about the substance, subject matter, or the content of whether someone thinks something is sightly of unsightly, pretty or unpretty, etc. He explained he has been out there now, but he had not been out there then to even see it before that because it did not matter since they are here to talk about the ordinances, statutes, and the law. He mentioned it is Mr. Swift right now, but it could be anyone else on some other topic at some point in the future, so it is important we do not get emotional, but look at the statutes and ordinances and follow what they say. He recalled last meeting they were BOARD OF ADJUSTMENT REGULAR MEETING July 11, 2022 6:00 p.m. – 6:51 p.m. talking about the ordinance that was adopted in April that defines “weeds” and has an exception from that definition first defining the concept itself as “noxious grasses, weeds, etc.” He then recalled they talked about landscaping and the difference between landscaping and not, and cultivating and not, and what that could mean. He related after the meeting he went back and read through Jacksonville’s Code of Ordinances while learning a bit more about what Mr. Swift has done with his property. He listed first that he realized in the Code of Ordinances section 08.01.055 it talks about the Board’s authority and lists three reasons to disaffirm or not agree with the Code Enforcement Officer. He detailed the three bases the law allows them to act on then proceeded to read from Code. “The decision of the Code Enforcement Office may not be overturned unless a determination is made that: 1) The true intent of this Code or the rules legally adopted there under has been incorrectly interpreted; 2) The provisions of this Code do not fully apply; or 3) The requirements of this Code are adequately satisfied by other means.” He affirmed any one of those could apply to this situation, noting the one he chose to talk about was the middle one stating “fully apply.” He feels the ordinance has to fully apply to the thing they are trying to abate, sharing he does not think any of us believe Mr. Swift’s land is full of great grasses and native plants, or if we think it is a pile of weeds, but if we are really being non-emotional and rational, he does have native species out there, he has done a lot of work, and it has been there for 12 years. He acknowledged Mr. Swift is maintaining it and there are parts of it that are not weeds, insisting if that is the case, the ordinance does not fully apply and the Board cannot affirm the decision. When Commissioner Montgomery asked what section of Code he was referring to, he replied 08.01.055 Ordinance 1381 section 1 from 2009. City Attorney Friedman stated the Code we are talking about is 08.01.078 which refers to the height of vegetation and the exceptions that have been recognized by the United States, the City, or the State. Mr. Travis replied those are two different clauses. He affirmed no one has said anything on Mr. Swift’s property is noxious, noting before you even get to an exception you have to have a noxious grass, weed, plant, or vegetative matter. City Attorney Friedman responded that weeds shall be defined as all grasses, annual plants, and vegetation other than shrubs or trees. Mr. Travis explained where the term “weeds” is used in the prohibition of the ordinance, it prohibits noxious grasses, noxious weeds, noxious vegetation, and noxious plant matter. He related that the word “weeds” is modified by the adjective “noxious”, reiterating that no one has said anything on his property is noxious. City Attorney Friedman replied that it says noxious grass, weeds, and plant growth. Mr. Travis asked then you cannot have any plant growth on any lot in any subdivision in Jacksonville. BOARD OF ADJUSTMENT REGULAR MEETING July 11, 2022 6:00 p.m. – 6:51 p.m. City Attorney Friedman clarified with the exception of shrubs or trees. When Mr. Travis asked then you cannot have any plant growth, she replied not over 8 inches. Mr. Travis asked then if everyone in here who has plant growth over 8 inches on their property is in violation of this ordinance. City Attorney Friedman requested clarification on if Mr. Travis is saying this does not fully apply because Mr. Swift has some flowers. Mr. Travis stated in order for the ordinance to fully apply, it has to all be under the definition of weeds, noxious grasses, noxious plant growth, and noxious vegetation, and it is not. City Attorney Friedman mentioned a loophole where no one has to mow their grass ever in Jacksonville as long as they cultivate 20% of their yard. Mr. Travis responded that standard is up to the City, assuring he did not write the ordinance. He acknowledged neither did City Attorney Friedman, adding it is not emotional but they are bound by what these words say. He affirmed that Mr. Swift is going to appeal if the Board tells him no so they are going to have to get to the bottom of this. City Attorney Friedman pointed out she does not interpret the Code the same way Mr. Travis does, though she can see where he is coming from. She disagrees on the idea that because he has a handful of flowers he has cultivated that it means this does not apply to him at all. Mr. Travis affirmed it has to fully apply first, and secondly, he learned when he went out and took a tour that Mr. Swift has excavated and created an underground drainage system from his grass area so when it rains the water from will run down into the pond. He explained that subterranean drainage system lends even more credence to the idea that he has landscaped, stressing that modifying where the water runs has to be landscaping. He emphasized that is even more evidence of what all he has done with his property. He noted there were a ton of hydrophidic, which means “water loving,” grasses and plants around the edges of the pound, up toward the front part, dying out the further you get away from the pond. He added there are a ton of grasses growing within the water that are specific to living in water. He was unsure if it is a wetland or not, but it is something that should be investigated rather than just mowed over. He mentioned Lynn Foster, telling how she is a super, well-respected law professor, now retired, who is a Master Naturalist. He pointed out that she wrote a one and half page letter to Mr. Swift then read from said letter. “Your native landscaping area and pond are valuable wildlife habitat and food sources. I observed about ten black willow trees and many, many dewberry and blackberry plants.” He stated that brings up an interesting point, saying trees and shrubs are exempt and are not being cut, so all the trees and shrubs on his property do not get cut, but get mowed around. He again read from the letter. “Your native landscaping area contains numerous goldenrod plants. Many of your flowering plants support numerous pollinators, such as your thoroughworts, sunflowers, coneflower, sneezeweed, and mountain mint, just to name a few. You have installed a drain under the native BOARD OF ADJUSTMENT REGULAR MEETING July 11, 2022 6:00 p.m. – 6:51 p.m. landscaped area to feed your pond and you have maintained pathways through the native landscaping area. In addition, you have planted coneflowers and purchased orange milkweed for planting. This is purposeful cultivation and landscaping. I should also point out that your native landscaping area and pond are providing a wetland function, an especially valuable type of habitat which provides value to the environment by filtering water and removing poisons.” He affirmed that the Board has a lot of evidence in front of them that what he has done out there, forget about the content of it, all of these people who are experts are telling you it is something that is not just a lot full of weeds, but is something else. He stated he would talk to City Attorney Friedman later regarding the due process section he does not understand. He urged the Board to not be swayed by various people’s emotions, but just look at the law, ordinances, and statutes and apply the law to the facts to make a decision. He suggested avoiding the trees and shrubs because that is a whole separate issue and there is no question those are not subject to being mowed. He asked if they do decide to affirm the Code Enforcement Officer’s decision, would they stay enforcement while they prosecute their appeal, which will be quickly forthcoming. Lieutenant Ryan Wright stated the true intent of the Code legally adopted has been incorrectly interpreted, adding that the grass ordinance states, “all real property, fences, exterior structures, including adjacent rights-of-way shall be free from noxious grass, weeds, plant growth, undergrowth, and or vegetation.” He noted it goes on to say, “for purposes of this Code, weeds shall be defined as all grasses, annual plants, and vegetation other than shrubs and trees, which shall not exceed 8 inches in height in all residential districts or 8 inches in height in lots in commercial zoned and industrial zoned districts on which a structure is located.” He feels if they find that Mr. Swift can keep his grass, it means that he would not have to cut his own grass because he cultivated it and everyone Code deals with could say they cultivated their grass where Code would not be allowed to cut it. He related when it comes to the claim that the provisions in this Code do not fully apply, he told how they have tagged over 200 yards just this season, going by the same provisions they went with on Mr. Swift’s yard. He listed that the grass, vegetation, and plants exceeded 8 inches in growth and as far as he is concerned, the requirements of the Code are met. He confirmed he is not a lawyer or is here to argue, but all he is saying is that it violates the 8 inches and they have done everything they can to enforcement the Code while treating Mr. Swift like they have everyone else. Police Chief Brett Hibbs stated the Codes are written by a standard that is uniform, adding they cannot go through and minutely define every little term when it comes to grass because in the law it is almost impossible since there are so many ways to violate a law, policy, or ordinance. He stressed that the Board already has pictures of this particular lot and all they need to do is find if they want to approve that type of lot. He explained that the definitions matter, but it is so hard to get to the nit and gritty of every little type of plant and Code Officers are not going to be able to do that. He affirmed they cannot bring in Naturalists, experts, or any of those things to look at every lot they go to and it is absurd, in his opinion. He noted the Board has the pictures then asked if they want to approve it or not, because that is all they need to know. He asked if the BOARD OF ADJUSTMENT REGULAR MEETING July 11, 2022 6:00 p.m. – 6:51 p.m. Board would like it in their neighborhood, urging it has to do with property values and everything else in the neighborhood. He stated they can determine whether or not it is valuable to wildlife, but all he needs to know is if this is going to be approved for the rest of Jacksonville. Commissioner Twitty can appreciate what Mr. Swift is doing, pointing out that he himself lives inside city limits where he has some wildflowers in his yard while his neighbor behind him has a pond on his 10 acres and his grass 4 inches tall. He explained in his backyard this morning, while he was watering plants for his wife, there were bumblebees and honey bees pollinating, a few humming birds, a cardinal, some bluebirds, about six deer, and the neighbor behind had geese there. He continued to say he has been out to see Mr. Swift’s property, reiterating that he can appreciate what he is doing, but he believes tonight they are here to see if he is in compliance with Jacksonville City Code. He recognizes that everyone always wants to do what makes them happy and sometimes we break the law, sharing how he sometimes will get out on I-440 at 11 o’clock at night, turn his music up, and drive 90 miles an hour since there is no one around and it is relaxing. He assured if a police officer pulled him over and he responded that he was not hurting anyone, it would depend on what kind of mood he is in, but he might write him a ticket anyway. He noted that it does not work when you are doing something you are not supposed to do. He detailed that he is in the insurance business and he has clients who live outside the city limits where you can do more of what you want to do, adding that one of them is retired military who has a big, beautiful home on 4 acres. He told how he came to his office about two years ago telling him how he bought 2 acres adjacent to his lot and wanted to make sure he is covered on his liability insurance. He mentioned when he asked him why he bought them, the client replied he did not want anyone building a dump beside him. He stated he has also had other clients come in unhappy with the people beside them who are trashy and have a gravel driveway compared to his probably $400,000.00 house. He brought up that this client regretted not buying that lot a long time ago, but he did not, so these people can do what they want to do. He reiterated that he appreciates what Mr. Swift is doing and his own backyard may be similar to his, but his grass is 4 inches tall along with plants, bushes, and shrubs. He asked Mr. Swift is he or is he not in compliance with Code. He recalled that Mr. Swift mentioned earlier that only three neighbors were against it, but even if all of his neighbors thought it was awesome, the Board would probably tell them they are against Code and the ordinance for cutting grass. He stated he checked with the Arkansas Game and Fish Commission before their last meeting and received a letter stating it was a discontinued program and they encourage people to do it but, “they are in no way encouraging people to supersede any local ordinances or regulations that otherwise may apply to property within a given city.” He pointed out she stated three times throughout the letter “backyard habitat” and not front or side yard program. He surmised it would be okay for Mr. Swift to move this area to his backyard based on what it backs up to so it will not be in the side or front yard. He understands that every man’s home is his castle, but you cannot go against City ordinances and if they were to grant it, they would be opening up Pandora’s Box where everyone would do the same thing. He pointed out that someone could check the records and see it was allowed in Foxwood Estates and think they could do it as well. BOARD OF ADJUSTMENT REGULAR MEETING July 11, 2022 6:00 p.m. – 6:51 p.m. Mr. Travis noted there is no distinction in the ordinance between front, side, or back yard, so technically the ordinance does not work the way Commissioner Twitty just said. Commissioner Twitty replied he was just pointing out what Game and Fish said because he and Mr. Swift were referring to it. Mr. Travis surmised if they cultivated 60 species of native Arkansas plants in their yard, they have a garden of Arkansas native plants in their yard that they have cultivated. He affirmed that is not like letting his zoysia grow until it is knee high, noting it is not anywhere near the same thing, so to compare the two is a false comparison. When Lt. Wright mentioned you still have to weed a garden, he responded yes, to remove the non-native Arkansas species. Commissioner Twitty believes it boils down to is he, or is he not, in compliance with City Code, and he would say no. Chairman Brown closed the public hearing at approximately 6:48 p.m. Commissioner Montgomery moved, seconded by Commissioner Twitty to deny the administrative appeal and find 2404 Hunters Chase Court incompliant with Jacksonville Municipal Code §8.03.010. MOTION CARRIED. Chairman Brown related that Mr. Swift’s next step would be an appeal to Circuit Court. Mr. Swift requested some assurance the City will not mow this area while he seeks the appeal. City Attorney Friedman stated the Code says 72 hours. Mr. Swift shared he has engaged people to do the mowing and they have started marking trees and shrubs. He requested some time to get this done for the things not required to be mowed. When Chairman Brown reiterated he has 72 hours, Mr. Travis replied technically it is after the Board enters an order and files it with the City Clerk, which is not tonight, noting that is not what just happened since they just voted. City Attorney Friedman affirmed it could technically happen tonight. She confirmed it would be 72 hours from when the order is given to City Clerk Davitt. Commissioner Ruple pointed out they are not saying the whole thing has to be gone, they are saying it has to be below 8 inches. Lt. Wright agreed, assuring he does not want to go out and destroy his whole habitat. He confirmed if he has trees or bushes they would need to weedeat around them. BOARD OF ADJUSTMENT REGULAR MEETING July 11, 2022 6:00 p.m. – 6:51 p.m. ADJOURNMENT: Without objection, Chairman Brown adjourned the meeting at approximately 6:51 p.m. MOTION CARRIED. Respectfully, ___________________________ ______________________________ Susan L. Davitt CHAIRMAN Dan Brown CITY CLERK – TREASURER