HomeMy WebLinkAbout07-19-2010 Board of Adjustments MinutesThe City of Fairhope Board of Adjustments and Appeals met on Monday, July 19,
2010 at 5:00 PM in the City Council Chambers at the City Administration Building,
located at 161 N. Section Street.
Members Present: Vice Chair Cathy Slagle; Troy Strunk; Sam Andrews; Debra
Green; Jonathan Smith, Director of Planning & Building; Chris Gill, Attorney and
Emily Boyett, Secretary.
Absent: Suzanne Winston; Anil Vira; and Clyde Panneton
The meeting was called to order at 5:00 PM by Vice Chair Slagle.
The minutes of the April 19, 2010 meeting were considered and Sam Andrews moved to
accept the minutes as written and was 2nd by Troy Strunk. Motion carried unanimously.
Jonathan Smith welcomed the new Board members and introduced Chris Gill, the City’s
Planning Commission Attorney. Mr. Gill addressed the Board and handed out the
following memorandum regarding the basic guidelines and the role of the Board of
Adjustment.
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VIA HAl'i D DELI VE RY ON LY
Mem bers of the City or
Fairho pe Board of Adjus1me nt
July 19. 20 10
Re: City of Fairhope Board of Adj ustment/Stat utory Powe rs an d Du ties
Lad ies and Gen tle men :
J WOll ld li ke to congratul a ie eac h of you on your appoi nt ment to t he City or Fa irh ope
Boa rd of Adjustment. It is certainly a n ho nor to be app oin ted to such an important board.
I am writing at the req uest of Jona than Smith to advise you of t he ro le of the City of
Fa irhope Board of Adjustmen t with resp ec t to zoning ma tt ers and certain p rocedural iss ues
relat i ve to future act ions yo u. as a boa rd . may see k w take. The Boa rd o f' Ad j ustme nt es se ntia lly
has t wo roles : (l ) to hea r appeals from ad m inistra tive deci sions made by Ci ty offic ials in rega rd
to zon ing ma tte rs; and (2) to dec ide variance requests . Eac h or these matters alo ng with a br ief
di sc ussio n of certain procedura l issues rel at ive to the Board of Adjustmen t is d is cussed
separatel y below .
I. Administr ati ve Appea ls .
With rega rd to the Boa rd of Adjust men t's role in th e appeals proces s !or ad min istra ti ve
dec is io ns. th e Al abama Code grants a boa rd of adj ustme nt the ex press powe r "[t]o hea r an d
dec ide appea ls where it is alle ged there is erro r in an y order, requ irement. dec ision. or
dete rmina tio n made by an admi n ist rat ive officia l in the enfo rce me nt or t his art ic le or or a ny
ordinance ad op ted pursuant the reto... Al a. Code § 11-52-S0(d)(I} (1975). T hi s powe r is
esse ntia ll y des c ribin g situa tions w here .J onathan Sm ith . as the Plam1 ing and Bui ldin g Directo r fo r
the City of Fa irhope. makes an ad min istrat ive deci s io n regard.i ng a 111alle r pe rta in ing to the Ci ty"s
zoni ng ordina nc e, and th e a pplican t disagrees wit h that decision.
App eals of admin istrative deci sio ns are 110 1 ve ry co mmo n. However. if such a n appea l is
made. the Alabama Code pro vides lo r th e procedure to be fo ll owed in such a l:ase . In the case of
an appeal of an admi nistrat ive dec isi on pert ainin g to the zoning o rd inan ce. th e Alabama Code
pro,·id t'S th e rollo wing di scussio n or th e pro ce dura l na tme of any s uc h appea l:
City of Fa irhope Board o f 1\dj ustme nt
July 19, 2010
Page 2
Ap pea ls to the board of adjustment may be ta ke n by any perso n agg ri eved
or by any offi ce r, de partment. bo ard . or bmea u of the m unicip,llity affected by
any dec ision of the adm i ni strative offi ce r. Such app eal shall be ta ken wit hin a
reasona ble time, as prov ided by the ru les. of the board, by .filing w it h th e officer
fro m whom the appeal is taken an d with the boa rd of adjustmen t a notice of
appeal spec ify ing the grou nds thereof. The ofiicer fr om w hom the appea l is take n
s ha ll tra ns mit fo rth with t o the board all papers cons titu ting th e reco rd upon wh ic h
the action. appea led was taken . An appea l stays all proceedi ngs in furthe ran ce of
the action app ea led fro m unless th e officer from whom t he a ppea l is take n
ce rt ifies to the board of adjustment ali cr th e notice of ap pea l sha ll have been liled
wi th him tha t by reason of fac ts s tated in the ce rti ficate a s tay wou ld in his
op ini on cau se im mi nent peri l to life or property. Such proceedi ngs shall not be
stayed othe rwise than by a res tra ining order whi ch may be gran ted by the board of
adj ustme nt or by a court of reco rd o n a pplicati on on notice to the officer fr om
whom the a ppea l is taken and on du e cause s hown. Th e board of adjustmen t shall
lix a rea5o nab le t ime fo r the hea ri ng o f the appeal. give public no ti ce thereof as
we ll as d ue no tice to th e parties in i11lerest, a nd decide the sa me with in a
reaso nabl e tim e . Upon th e hea ring ,u,y party may appear i n pe rson or by agen t or
by attorney.
A la. Code§ 11-5 2-80(c) (1975).
2. Varianc es.
The typ ical matters t ha t wi ll co me befo re the Board of Adj ustme nt are va r iance req uests.
Sect.i on 1 1-52 -80{d)(3) of th e Ala bama Code exp ressly a uthorizes a board of adj ust men t lo grant
va riances fro m zon in g ord inances bu t o nly in extrao rdi nary and exceptional circumsta nces.
Mo re part ic ular ly, the Alaba ma Code gran ts the Board of Adju s t ment the power to "au th orize
upo n ap peal in specific cases s uch va riance from the te rms of the [zo ning°! ord in an ce as wi ll not
be contrary to the p ubli c interest. where. ow ing to spec ial co nd it io ns. a l iteral e nfo rceme nt o f the
provisio ns of the [zon in g] ord in ance will result iri unnecess ary hard s hip and so that the spirit
of th e ordin ance sha ll be ob served and s ubs tanrial justice done ... Ala. Code§ I l-52 -80(d)(3)
(l 975) (emphasis added). T he last port io n of the quo ted power is hig hli ghted in bold tex t as i1
prov ides th e bas is. fo r the burden that must be overcome by an appl ican t seeking a varia nce.
Variance reques ts can be d iflic ult lo review fr om the stan dpoint tha t you rarely . if eve r.
enco un te r situ mio ns th at a re e xactl y t he sa me. However, bo th the Ala bama Code and the
Alabama appe llate cou rt s have taken a very stri ct view of var iances. The Ala bama Sup reme
Court has held that var ia nces may be gran ted only whe re necessary to preven t injust ice,
oppression and a r bit rary a pplic at ion. to promote "the pub lic in terest'· and when a literal
application of the ordin ance wou ld not be withi n the sp ir it of the ordi nance . Nelson v.
Dona ldson, 50 So. 2d 244 (Ala. 1951 ). The Al a bama S upreme Co urt ha~ fu rther stated th at
··1 v laria nccs from zoning ordinances are to be g ran ted sparing ly and o nly und e r un us ua l and
e:<:ceptiona l ci rcumstances where a lite ral enforce men t of the ordinance wo uld res uh i n
City or Fa irh ope Board or Adj ustmen t
J u ly 19, 2010
Page 3
unnecessary hardsh ip.'' Ex pane Board nf Zo n ing Adjustmen t o f' City of Mobi le , 636 So. 2d
415, 417 (Ala. 1994) ( citation omi tted).
Oli:e ntim cs. an app licant fo r a var ia nce will c ite financia l difficult ies as s upp o n fo r
bis/her varia nce req uest. The A labama Supreme Court has spoken to this issue as we ll sta ting
t ha t ·•[i)t is clear that the loss of potential future economic gain on t he part of the landowner is
insuffici e nt to es ta blis h an ·unnecessary hardship ' justify in g the gram of a use variance." Ex
parte Board of Zoning Ad justment of Ci t y o f Mo bi~e. 636 So. 2d at 4 18.
It s ho ul d also be noted that a "sel f-infli c ted hardship'' sho ul d not be consid e red as
justi fy in g the grant of a varia nce. \\•11i le a ··self~inflicted ha rd ship" could take any nu mber o f
fo rms , it is essent ially a s itu a tion where t he app licant fo r the var iance has done something to
his/her property tha t has necess itat ed the var iance request. In these situations whe re the
app licant (or the app li cant's predecessor in title w it h respect to the real property in q uestion) has
brough t about the hars h condi ti o n o f which the applicant is now com pl ai ning, a varia nc e is
probably no t appropriate .
3 . Procedural Matters.
As you can probab ly d is cern from the discussion above. th e Board o f Adjust ment should
on ly acl in ex treme si tuati ons. T his principle is fi.trthe r established in the votin g requirements
imposed by the A laba ma Code upon the Board of Adjustment for any partic ul ar matte r to be
g ranted . The Alabl!m a Code express ly provides that ·'[t]hc concurring vot e of four mem bers of
t'hc boa rd shal l be necessary'· to reverse any admi nis trative decision of the Planning and
Building Direc tor or to grant any variance request. A la . Code§ l 1-52-80(e) (19 75) (emphasis
added). T hi s --s upe r-maj ority" voti ng requirement is ind icative o f the he ight of t he hurdles that
must be overcome fo r an applicant/appel lan t to succeed before the Board o f Adjustment.
Please note that the d iscussio n set forth a bove is only inte nded as a n overview of items
that may come before th e Board of Adjustm en i. The d iscussion set fo rth a bove is not inte nded to
be (and is not) com prehens ive with respect to the law of ad min istrative appeals to t he Board of
Adjustmen t or the granting/denial o f variance requests. While some of the discussion set fo11h
here in may p rov ide yo u wi th some gu idance relat ive 10 specific applications t hat may come
bd-◊re yo u in the future. yo u shou ld a lways d irec t spec ifi c questions to th e Planning Department
of the C it y o f Fairhope. The Planning Department can he lp e ns ure that you are provided with th e
tools necessary LO add ress a part icu la r application.
cc : Mr. Jonathan L Smith
Very tru ly yo ur ;;.
6 1\.L
Christopher M. Gi ll
Fo r the Fi rm
Mrs. Slagle asked if Mr. Gill reviews all of the Board’s cases and Mr. Gill responded he
does not usually unless Mr. Smith asks him to. Mr. Smith stated he reviews the cases and
states the literal provisions of the Zoning Ordinance. He added the most common reason
to grant a variance is due to the size, shape or topography of the property. Mrs. Slagle
asked what if the applicant purchased a piece of property knowing the restrictions of the
land and requests a variance. Mr. Gill said all aspects of the case should be considered
including that type of information. Mr. Andrews asked how long the Board will have to
review cases and Mr. Smith responded the packets will be delivered the Monday prior to
the meeting, so one week. Mr. Andrews asked if the members can talk about cases prior
to the meeting. Mr. Smith said the Board can call him anytime. Mr. Gill explained the
Board must never meet with three or more members and discuss a case because it would
violate the Open Meeting Law.
ZBA 10.03 Request of Mike and Kathy Baugh for a setback variance of an
accessory structure for property located on the west side of Mershon
Street just south of Morphy Avenue, at 210 Mershon Street.
Jonathan Smith, Planning and Building Director, came forward and gave the Staff
Interpretation.
STAFF INTERPRETATION: The subject property is zoned R-2 Medium Density
Single Family Residential District. Mike and Kathy Baugh are seeking a variance to the
provisions of Table 3-3: Dimension Table – Residential Accessory Structures in the
Fairhope Zoning Ordinance.
Table 3-3 requires that all accessory structures in the R-2 zoning district be built “behind
the rear building line of the principle structure”. In this particular case, there is a natural
drainage path that flows behind the principle structure on the subject property,
prohibiting the construction of an accessory structure behind the rear building line
without significant alterations to the lay of the land.
The applicant is proposing the accessory structure be constructed forward of the rear
building line of the principle structure.
The property is surrounded and bordered on all sides by R-2 zoned property.
Facts to be considered in this case:
1. The applicant is requesting that an accessory structure be constructed forward of
the rear building line of the principle structure, which is contrary to the provisions
of Table 3-3: Dimension Table – Residential Accessory Structures in the Zoning
Ordinance.
2. There is a natural path for drainage flow in the applicant’s back yard, as indicated
by the evidence submitted.
3. There are extraordinary and exceptional conditions pertaining to the particular
piece of property in question because of its size, shape, or topography, due to the
existing natural topographic storm water path behind the rear building line of the
principle structure on the subject property.
STAFF RECOMMENDATION: Staff feels that this application meets the minimum
criteria established by the Zoning Ordinance for the issuance of a variance; therefore,
staff recommends the Board of Adjustment approve the proposed variance and allow the
applicant to build the accessory structure forward of the rear building line of the principle
structure as shown on the site plan submitted. All other aspect of the project shall be in
compliance with all applicable regulations.
Mrs. Slagle opened the floor to the applicant and Mr. Baugh said he would answer any
questions. Mrs. Slagle opened the public hearing, having no one present to speak she
closed the public hearing. Mr. Andrews asked what direction the water flowed and Mr.
Smith responded it flows to the storm drain. Mr. Strunk asked if the storm drain is
owned by the City. Mr. Baugh explained the drain is part of the engineering for the
development of a subdivision and is located within an easement. He added he petitioned
the City to address the drainage in the area, but nothing has been done. Mr. Andrews
asked if the City is looking into fixing the drainage and Mr. Smith stated the City does
not accept drainage facilities on private property or in common areas. Mrs. Green stated
the pipe was put in just before the surrounding houses were built. Mr. Baugh said it is
part of the subdivision. Troy Strunk moved to accept the staff recommendation to
approve the request to build the accessory structure forward of the rear building line of
the principle structure. Debra Green 2nd the motion and the motion carried unanimously.
ZBA 10.04 Request of Cole Thompson for an approximate five foot (5’) rear yard
setback variance for property located at 378 Dover Street, Lot 9 of
Steel Branch Subdivision.
Jonathan Smith, Planning and Building Director, came forward and gave the Staff
Interpretation.
STAFF INTERPRETATION: The subject property is zoned R-2 Medium Density
Single Family Residential District. Mr. Thompson is seeking a variance to the provisions
of Table 3-2: Dimension Table – Lots and Principle Structures in the Fairhope Zoning
Ordinance.
Table 3-2 requires that all principle structures in the R-2 zoning district adhere to a
minimum rear-yard setback of thirty-five feet (35’). The applicant is proposing a 30’-7”
rear setback for a principle structure to be built on a vacant piece of property.
The minimum area and dimensional standards for an R-2 lot include a minimum lot area
of 10,500 square feet and a minimum lot width (at front setback) of 75’.
The subject property is approximately 13,000 square feet and has a lot width at the front
setback of approximately 77 feet. As it is currently platted, the subject property can
accommodate an approximate allowable building footprint area of over 5,500 square feet,
although maximum percentage requirements (max 37%) limit any principle structure on
the lot to approximately 4,800 square feet.
The property is bordered to the north, south, and west by City of Fairhope R-2 zoned
property. There lies un-zoned property in Baldwin County to the east.
Facts to be considered in this case:
1. The property is currently vacant.
2. The applicant is requesting a 4’-5” rear setback variance (a setback of 30’-7”).
3. The applicant is requesting a variance from Zoning Ordinance provisions to
construct a principle structure over the required minimum rear setback established
for R-2 lots.
4. There are not extraordinary and exceptional conditions pertaining to the particular
piece of property in question because of its size, shape, or topography.
5. The granting of the variance will confer on the applicant special privileges that
are denied by this Ordinance to other lands, buildings, or structures in the same
zoning district.
STAFF RECOMMENDATION: Staff recommends the Board of Adjustment deny the
variance request due to the application not meeting the mandatory criteria established in
the Zoning Ordinance for the issuance of a Variance.
Mrs. Slagle opened the floor to the applicant but no representative was present. Mrs.
Slagle opened the public hearing and having no one present to speak, she closed the
public hearing. Mrs. Green asked what the property to the east was being used as and
Mr. Smith responded it is common area for the subdivision. Mrs. Slagle asked if the
applicant has received approval from the subdivision’s homeowners association for this
request. Mr. Smith stated a homeowner association is not in affect at this time. Mr.
Andrews asked why the applicant wanted this particular lot and Mr. Smith answered
there is a buyer for this lot and this is the house plan they want. Mr. Strunk stated he
flipped the house on the lot and it fit within the setbacks and he would recommend the
applicant look at that option. Troy Strunk moved to accept the staff recommendation to
deny the approximate five foot (5’) rear setback variance due to the application not
meeting the mandatory criteria for the issuance of a variance. Sam Andrews 2nd the
motion and the motion carried unanimously.
New/Old Business – Election of Officers - Jonathan Smith announced that a
Chairperson and Vice-Chair need to be elected to serve until the Board’s annual
organizational meeting in October. Troy Strunk moved to elect Cathy Slagle as
Chairperson. Sam Andrews 2nd the motion and the motion passed with the following
votes: AYE – Troy Strunk, Sam Andrews, and Debra Green. ABSTENTION: Cathy
Slagle. There was discussion regarding the election of a Vice-Chair. Troy Strunk moved
to table the Vice-Chair election until the next regularly scheduled meeting to allow for
the additional Board members to be present. Sam Andrews 2nd the motion and the
motion passed unanimously.
Continuing Education Classes – Cathy Slagle stated the University of North Alabama
offers classes that are very informative and helpful for Board members. She stated the
classes are offered locally and she recommended the new members attending if possible.
Mr. Smith stated he has budgeted for the new Board members to attend some of the
classes.
Having no further business, Sam Andrews made a motion to adjourn. Troy Strunk 2nd the
motion and the motion carried unanimously. The meeting was adjourned at 5:49 pm.