Board of Adjustment

BOARD OF ADJUSTMENT MINUTES November 28, 2023 @ 5:00 p.m. The Board of Adjustment held a meeting on Thursday November 28, 2023 at 5:00 p.m. Members Present Don Jacimore, Vice Chairman Justin Cothren Wayne Cummings Josh Stroud Members Absent Wendell Miller, Chairman Visitors Present: City Planner Sara Jondahl, Planner I Victoria Marchant, Planning Assistant Caden Lemley, Cindy Walker, Mr. Walker, and Laura Drown Welcome Visitors The First Order of Business is a request to review and approve the minutes of the Board of Adjustment November 2, 2023. Member Cothren made a motion to approve the minutes as written. The motion was seconded by Member Cummings and passed unanimously. The Second Order of Business is a Variance from Article 6.1.2 (5) allowing an extension of a non-conforming parking area at 1200-1218 N Jackson Ave. Submitted by American Dream Realty on behalf of Donna Johnson. (VARI-1123-000448) Planner I Marchant stated that located at 1200-1208 N Jackson Ave within the Parker Neighborhood, this site is an existing multi-family housing complex including a mix of duplexes and triplexes on a single property. She stated that it is an R-2 (Medium Density Residential) zoned property surrounded by other R-2 and R-1 zoned properties including such uses as Crawford Elementary School, churches, and other multifamily and single family housing units. Planner I Marchant stated that the application is to allow an extension of a non-conforming parking area at 1200-1218 N Jackson Ave. She stated that the parking area is non-conforming as the use is higher than a single family home or duplex on a single lot and the parking backs out into the public right-of-way instead of being in a parking lot. She stated that this property has been subject to numerous Code Enforcement cases over the previous years and in April of this year, the owner began an extensive remodel of the property. She stated that prior to beginning the remodel of the structures on the property the owner came in for a meeting on March 3, 2023 with the City Planner and Code Enforcement. She stated that at that meeting, the applicant was told that the parking could only be replaced like for like and could not be expanded. She stated that the applicant was notified that they could not expand this parking area and any new parking would have to comply with the zoning code and they would have to create a parking lot. Planner I Marchant stated that Code Enforcement noted on October 31, 2023 that the parking area was being redone and that the forms set were extending the parking area. She stated that Ms. Walker, the owners’ representative, had a phone call with City Planner Jondahl on November 3, 2023 in which Ms. Walker was made aware that the Board of Adjustment could not approve something that is not permitted. Planner I Marchant stated that Ms. Walker said she wanted to proceed with the Variance. She stated that in that phone call Ms. Walker additionally told staff that the new parking area was extended by accident due to a miscommunication with the contractor. Planner I Marchant stated that on November 13, 2023 it was noted by staff that the parking area had been repaved in the previously existing location. She stated that at that time staff reached out to the applicant to see if they were still moving forward with the Variance since initially they had stated that the Variance was being applied for due to an “accidental expansion.” She stated that at that time the applicant indicated they were still moving forward with the Variance. Planner I Marchant stated that the Board of Adjustment does not have the authority to approve something that is outright not permitted within the Zoning Code. She stated that Article 6.1.2 (5) states “All areas devoted to off-street parking shall be so designed and be of adequate size so that no vehicle is required to back into a public street to obtain egress. Exempted from this provision are single-family or duplex residences. This exemption applies only in cases where a parcel contains one detached single-family dwelling or a single duplex structure.” Planner I Marchant stated that this article clearly prohibits parking in the circumstance of this application from backing into the right-of-way. She stated that means that the Board of Adjustment does not have the authority to grant this request or approve the expansion of this parking lot. Planner I Marchant stated that staff understands the applicants need for parking, however, staff does not believe that the 4 extra proposed parking spaces will suffice for this parking issue. She stated that under the current standards of the code, this site is lacking at least 16 parking spaces to adequately service this property. She stated that the applicant was allowed to remodel the structure on site without coming into compliance with the current regulations of the code therefore they did not have to provide the parking at this time. She stated that additionally, there is room on the property for additional parking. She stated that from staff measurements, it appears there is room on the site for a parking lot that could hold 14 parking spaces. Planner I Marchant stated that if the Board of Adjustment wanted to further consider whether or not a variance should be granted, the following regulations shall be met. She stated that in Article 9.3.2 the Board of Adjustment has been given specific guidelines in order to grant a variance. She stated that the applicant has not demonstrated special conditions and only provided information that there was an accidental expansion by their concrete company. She stated that nothing in the application indicates reason to justify the variance and the granting of the variance is not the minimum variance allowing reasonable use of land, as there is room on the property to create a conforming parking lot. She stated that the applicant has indicated that they do not want to reduce the green space on the property to come into compliance with the regulations. She stated that a desire to retain green space, although a great idea, is not reason to justify the granting of a variance. Planner I Marchant stated that the granting of this variance is not in harmony with the purpose and intent of the code, since the code explicitly restricts complexes from having driveways backing out into the Right-of-Way. She stated that there are no additional safeguards required as this is listed as not permitted in Article 6.1.2 (5). She stated that the proposed use for the parking area is outright not permitted in Article 6.1.2 (5) which as stated for this requirement, again restricts the Board of Adjustment from allowing a variance and is reason to dismiss the case. It is staff’s recommendation that the Board of Adjustment dismiss this variance request based on the findings below: 1. The Board of Adjustment does not have the authority to approve something not permitted by the Zoning Code; and 2. This is not an expansion of a non-conforming use as this is something that is not permitted for the subject property; and 3. The applicant has not demonstrated special conditions exist; and 4. Sufficient evidence was not presented to justify the granting of thai variance; and 5. The granting of the Variance is not the minimum Variance allowing reasonable use of the land; and 6. The Board of Adjustment may not grant a variance to allow a use not permissible in the Zoning Code. Member Cummings asked Planner I Marchant if this was something that the Board of Adjustment did not have jurisdiction over. Planner I Marchant stated that he was correct. Member Cummings stated that if the Board of Adjustment votes to approve the variance, they would be approving something that is non-confomring to the property. Planner I Marchant replied that that was not necessarily the case, but that the Board of Adjustment could not approve something that was outright not permitted. Cindy Walker of American Dream Realty stated that she is representing Donna Johnson. She stated that the Planning Staff and Code Enforcement are against any remodeling done to the property. She stated that the apartment complex has had a negative reputation for some time. She stated that she asked City Planner Jondahl if her word supersedes the authority of the Board of Adjustment. Mrs. Walker stated that City Planner Jondahl stated that the Board of Adjustment could still approve this variance request. Mrs. Walker stated that she had been aware of this property for a long time. She stated that the buildings are all duplexes and not triplexes. She stated that they had been brought in to house workers for Arkansas Nuclear One, hence why they resembled “military” housing. Mrs. Walker displayed some pictures of the apartments before remodeling in which they were in “filthy” condition. She stated that tenents would not let professionals in to make repairs because they were consuming and selling drugs. She claimed that due to gun fire and drugs, it was coined as the “ghetto” apartments. She stated that she had had previous experience with Code Enforcement regarding other properties. Mrs. Walker stated that the property owner had made exterior and interior renovations to the property. She stated that before renovations, tenets did not pay rent and apartments would often be vacant, but now only one unit is vacant. She stated that by some means they had gotten rid of the former tenets to make these renovations. Mrs. Walker showed more pictures of the inside of the apartments on screen. Mrs. Walker stated that Code Enforcement had been a constant overseer in every move that they had made. She stated that Code Enforcement is requiring that the green space is to be made into parking. She stated that the existing parking was in disrepair. She stated that they had gotten a contractor. She stated that the contractor had gotten an apartment but they had concerns over the quality of their work. She stated that North Jackson at this location is not a through street but is a dead end. She stated that the contractor had told her that the City was giving them a “hard time” when they had tried to get permits. She stated that she did not personally hear of this from the City, but this came from her contractor. Mrs. Walker stated that there was a drainage issue around the mailbox area which she stated was in part the fault of the City in its responsibilities regarding drainage. Mrs. Walker stated that she got rid of her old contractor, and attempted to hire a new one that turned the job down. She stated that she received two evaluations that were both over $65,000. She stated that they hired the Tulis Brothers. She stated that the excavator did not only cut the front of the previous pads where they were supposed to but they also cut an additional two spots on the north end at 1216 and 1218 North Jackson. She stated that the first contractor had done the 1200 and 1202 spots. She stated that these four spots are what caused this issue. She stated that she found out about this when contacted by Code Enforcement called her and told her what had happened. Mrs. Walker stated that the issue with where the City is wanting parking, the ground is full of utilities which will cost a considerable amount to move. She stated that the second objection was that cars would be backing into the street. She stated that North Jackson is not truly a street at this spot but a small leg with dead ends on both ends, not even busy during the school day. She stated that the tenets are the only people that drive through this part of North Jackson. She stated that her tenets had been held up for a while because of this. Mrs. Walker continued to show a few more pictures of the property on the screen. She showed a picture of the green space and the “mudhole” area where water collects as mentioned earlier. She continued to show a picture of the north end of 1216 and 1218 North Jackson. She showed pictures of the forms set up by the concrete laying company. She stated that USPS had requested the mailboxes be on a concrete pad. She showed a picture of the new concrete parking pads. She showed an aerial photograph of the site showing where the proposed parking is located. Mrs. Walker concluded that this would only help the community and not hurt it. She stated that the area had been put in a bad light for a while now due to “riff-raff” but she is determined to make it a family-friendly place to live. Member Cummings stated that what has been done is nice, but the Board of Adjsutment has regulations they have to conform to, one of those being that they cannot rule on an issue like this. He stated that they cannot approve a use of property that is prohibited by the Zoning Code. He stated that they are not legally allowed to rule on this. Mrs. Walker asked Member Cummings if this was something that she should check with the City Attorney on. Member Cummings stated that he does not have an answer to that question. Member Cummings made a motion to dismiss the appeal. The motion was seconded by Member Stroud and passed unanimously. The Third Order of Business is a Variance from Article 7.8 3) B. (iii) (d) requiring design standards for billboard structures located along I-40 near Exit 83. Submitted by River Valley Sign on behalf of GCK Properties. (VARI-1123-000447) City Planner Jondahl stated that this is a variance request for the Cogswell Billboard located on otherwise vacant property adjacent to exit 83 off I-40 onto Weir Road. She stated that it is easily seen when close, but trees obscure the view when further west heading east. She stated that it is visible from both directions. City Planner Jondahl stated that the subject property is zoned C2 Highway Commercial and is located within a Suburban Center as defined by ReImagine Russellville 2040 Comprehensive Plan. She stated that this request stems from the neighbor no longer allowing the applicant to trim trees on the adjacent property. She stated that this is a main exit from I-40 into central Russellvile close to retail, restaurants, and banking opportunities. City Planner Jondahl stated that the proposal is to remove the billboard 200 feet to the east. She stated that this is currently defined as a non-conforming billboard. She stated that Article 7.8 has allowances for the updating of billboards. She stated that it does state that no new or additional signs meeting the definition of a non-conforming billboard shall be permitted. She stated that since this is only being moved, staff could categorize the Billboard as being a replacement or modernization of an existing sign allowing the billboard to fall under the requirements listed for that section. City Planner Jondahl stated that Article 7.8 3) B. (iii) states that regarding replacement or modernization, if the non-conforming billboard sign is to be replaced or modernized, the replacement sign shall: a. Not exceed 50% of the original non-conforming sign area. City Planner Jondahl stated that if 50% of the original non-conformign sign area will be less than 385 square feet in size, the replacement sign shall be allowed to exceed 50% up to 385 square feet. The original sign is 400 square feet and no changes are proposed. City Planner Jondahl stated that although strict compliance is not met, staff does feel that compliance would be excessive for the 15 square feet. b. Be located on the same property as the non-conforming sign. c. Meet the height requirements of the zoning district for a pylon sign. d. Remove the entirety of the non-conforming sign structure unless a portion of the structure is to be used for the replacement sign. If the existing, non-conforming sign structure is to be used for the replacement sign, it shall follow the design standards found in (v). City Planner Jondahl stated that this section was specifically advocated for during the zoning code update. She stated that it was included as a compromise to allow the replacement of billboard structures. City Planner Jondahl stated that the aim was to ensure that when billboards undergo changes, they transition into more aesthetically pleasing structures that convey community pride, align with design standards, and minimize unattractive infrastructure along our streets. City Planner Jondahl stated that Article 7.8 3) B. (v) Design standards states that when a non-conforming billboard sign is to be replaced, at least 75% of the visible replacement sign structure shall consist of similar materials as the primary building on site when in conjunction with a building. If not in conjunction with a building, at least 75% of the replacement sign structure shall consist of brick or stone veneer, or other exterior facade materials. She stated that no replacement sign structure shall consist of only an exposed metal structure. City Planner Jondahl stated that no documentation was provided indicating that special conditions or circumstances exist which are peculiar to the land, or structure or that would not be applicable to other properties in the area. She stated that staff did not consider other non-conforming uses. She stated that the sole rationale offered was that it’s impractical to require an applicant to expend thousands of dollars to adhere to the regulations. She stated that this consideration is not valid as justification for a variance. She stated that the intent is that structures comply with the regulations when improvements are made. She stated that the applicant is not proposing to make any improvements merely to move the billboard so that it is visible from the highway. She stated that although it does not meet the intent of the zoning code it could be that it still meets the general purpose of the zoning code. She stated that the Board of Adjustment may prescribe appropriate conditions and safeguards and may not grant a variance to allow a use not permissible in the Zoning Code. The Board of Adjustment shall deny this application as a result of the findings that: 1. Moving the Billboard does not constitute Special Conditions or circumstances; and 2. The current sign is Non-Conforming and per Article 7.8 3) B. (iii) (d), Design standards shall be met; and 3. Insufficient evidence was provided to justify the granting of this variance. Laura Drown stated that no changes are being made to the billboard and that Lindsey management is unwilling to allow them to trim the trees. She stated that it is a 50’ tall billboard, and making 75% of it stone veneer is not reasonable. She stated that she does not know of any other billboard that meets this regulation. She stated that she will already be spending $30,000 to move the sign, and she cannot spend more on the billboard. Member Jacimore asked Mrs. Drown why Lindsey Management would not let them trim the trees. Mrs. Drown stated that she was not given a reason. She stated that they had to get permission to trim on the Right-of-Way but they refused. Member Cothren made a motion to approve the variance. The motion was seconded by Member Stroud and passed unanimously. Meeting Adjourned _______________________ Chairperson