Board of Adjustment - Regular Meeting

Hey, Wendell.

Alright, I'd like to call the May June, sorry. The June meeting to order for the Board of Adjustment. I'd like to welcome everybody here. Commissioners, if you will take care of our housekeeping items here first. Justin, will you take the attendance, please? Miller. Here. Stroud. Here. Cummings. Here. Clear.

Here.

Cothran. Present. We have a quorum. We have a quorum. All right. We need to look at the minutes from our last meeting. I'll entertain a motion to accept those if you've got a chance to look them over.

Move we accept them as presented.

Okay. Second. All right. We have a motion and a second to approve the minutes from the previous meeting. All those in favor, acknowledge by saying aye. Aye. Any opposed? Hearing none, the motion carried. All right. We don't have any old business, so let's move on to the new. Item number one, variance from article 7.8.7c regarding the monument sign square footage. and height located at 821 East O Street submitted by Fast Signs of Maumelle on behalf of River Valley Flats, LLC. Victoria, you have a staff report on that?

Yes, sir. Alright, so our housekeeping item. As always, I'm going to go over the items that we have to look at when we're reviewing a variance. So the first the applicant demonstrates that special conditions and circumstances exist which are peculiar to the land structure or building involved and which are not applicable to other land structures or buildings in the same district. No non-conforming use of neighboring land, structures or buildings shall be considered grounds for the issuance of a variance. The Board of Adjustment shall further make a finding that the reasons set forth in the application justify the granting of the variance and that the variance is the minimum variance that will make possible the reasonable use of the land, building or structure. The Board of Adjustment shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of the zoning code. In granting any variance, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with the zoning code. And then under no circumstances shall the Board of Adjustment grant a variance to allow use not permissible under the terms of this code in the district involved. So with all of that, our first application tonight is a variance at 821 East O Street. This is located within the Parker neighborhood. It is the existing site of the River Valley Flats. This apartment complex was previously known as Vista Place Apartments, which might be what some of you recognize it as. It is surrounded by a variety of uses, including single family and multi-family residential uses, a place of worship, and a vacant property owned by ATU. this property is zoned r3 medium high density residential properties to the east are c2 highway commercial and r1 single family residential properties to the west and south are r3 and r2 medium density residential and properties to the north are zoned r3 So this application is requesting that River Valley Flats be able to put a new monument sign on top of an existing monument sign base. The existing monument sign base was previously utilized by Vista Place for their monument sign. The base does not count towards the square footage allotment, however it does count towards the total height of the sign. Staff has found that the applicant has demonstrated that special conditions exist due to the topography of the site. I feel like the pictures really capture that there's a pretty significant six to eight foot drop in grade, which makes sign visibility nearly impossible if you stay within those height constraints at this location. This steep drop in topography is unique to this property and deprives them of rights enjoyed by similar uses. Requiring the applicant to meet compliance with the height requirements would make the sign essentially not visible from the right of way. That top picture, you can kind of see the very tippy top of that base. Again, if they were meeting those height requirements, their sign would essentially not be visible. additionally the new proposed sign is coming closer into compliance with the sign regulations and although it is out of compliance it will be a reduction in total height as well as square footage as a result of that it is staff's recommendation that the board of adjustment approve this variance based on the findings that the applicant has demonstrated that special conditions exist and the applicant has met all other variance requirements are there any questions

Thank you, Victoria.

All right, thank you.

Commissioners, do you have any questions? Is there anybody? We may have the wrong sheet here, but anybody signed up to speak on this item tonight? Okay. All right. second okay we have a motion and a second to approve this variance as requested all those in favor acknowledge by saying aye aye any opposed hearing another motion carried all right that is a that is a good idea to be looking at you know future you know where's the sign going to be where's the level where's grade yeah all right all right item number two variance from article 4.1 from the fence height requirement located at 522 south jonesboro submitted by bill and doris lawrence Do you have a staff report on that?

Yes, sir, we do. As stated, this is a fence height variance at 522 South Jonesboro Avenue. If this seems familiar, this item did come before the board almost a year ago. Mr. Miller and Mr. Stroud, I know you two were there along with Mr. Jackamore. Um, it is staff's understanding that since that, um, that meeting that the, uh, applicants have been able to work with, um, with neighboring property owners to clarify, uh, civilly, um, any misunderstandings for the property. So just jumping back in, this property again is located at 522 South Jonesboro within the Glenwood neighborhood. This is currently a vacant lot. The lot is partially located within the FEMA designated floodway. It is an R3 medium high density residential zone property abutting an R2 zone and school to the west. Surrounding uses include single family homes and a middle school campus. Applicants initially attempted to donate the lot to Habitat for Humanity. However, Habitat for Humanity did not proceed due to the presence of the FEMA designated floodway on the back half of the lot. This application is to allow a five foot tall chain link fence along South Jonesboro Avenue and five foot tall chain link fences along the sides and back of the non-floodway portion of the property, enclosing an 80 foot by 50 foot area of the lot. along with two 10 foot wide, five foot tall chain link gates on the east and west sides of the fenced in area. Applicants' property experiences illegal trash dumping and believe that the standard three and a half foot fence heights along the south Jonesboro frontage would not be adequate to deter those who are dumping trash on the lot. Applicants contend that a five foot fence surrounding parts of the lot will be sufficient to deter the dumping of trash and plant debris. Applicants agreed to not build in the FEMA-designated floodway nor store vehicles, trailers, etc. within the floodway and updated their site plans accordingly. Applicants have acquired a flood development permit as required by the city floodplain manager. Staff has found that the applicant has demonstrated that special conditions exist due to persistent and unsolicited dumping of trash and or yard debris at the applicant's property. Applicants have been the owners of the lot since 2016 and have been maintaining it since then. A site visit to the lot shows that it is being maintained. The appearance of the vacant lot may be inviting to those looking to incidentally dispose of tree limbs, yard debris, or other trash. The persistent dumping of trash and debris has caused property damage to the owners. A fence of sufficient height would ostensibly be enough to deter or discourage others from the lot as it will, one, be harder to get materials over a fence taller than the standard three and a half foot height maximum, and two, it makes the lot appear less vacant. In light of this, it is staff's recommendation that the Board of Adjustment approve this variance request with the following conditions, that the applicants will not build in or otherwise obstruct the FEMA designated floodway based on the findings that the applicants have demonstrated that special conditions do exist, the applicants have obtained a flood development permit, and the applicants have met all other variance requirements. Are there any other questions for staff? Thank you.

I'll make a motion to approve it with the condition that was recommended.

Oh, I'm Doris Lawrence and this is my husband, Bill Lawrence. Yes. We recently sold a big house that had property. He has a bass boat that we put. It's down at the marina, but we have that empty trailer. And then we have a little trailer that we put mulch on and stuff like that when we need it. So this is just for personal use? Yeah, we're just going to put a couple of our trailers on it, and we're not putting house trailers or anything like that. Okay.

Yes.

Yes. Yes. Okay. Thank you. Okay.

All right. That being said, we have a motion and a second to approve this with those following conditions submitted by staff. All those in favor, acknowledge by saying aye. Aye. Any opposed? Hearing none, motion carried. All right. Thank you. Thank you.

Thank you.

Okay. All right, the next one is a variance from Article 14 regarding the setback requirements allowing complete reduction of the front yard setback at 1405 Skyline Drive, submitted by Brenda K. DePriest. Victoria, you got a staff report?

Yes, sir. So as stated, this is a variance at 1405 Skyline Drive. This is located within the Marina Heights District. It is the location of an existing single family home. Surrounding properties include single family homes and vacant wooded property to the north. This property is zoned R1 single family residential and properties to the south and west are zoned R1 and properties to the north and east are zoned R1 and R2 medium density residential. The application is requesting in addition to the front of the house that will extend completely to the front property line encroaching on the entire 25-foot front yard setback. The applicant's property line begins approximately 20 feet from the edge of the pavement along Skyline Drive. The applicant has cited the topography of the land and accessibility concerns as the special conditions related to this application. The applicant is requesting a covered parking area with a breezeway that will provide accessible ADA access into the front entryway that is currently not accessible at this time. There is approximately a six foot drop in slope in this area that the addition, or in the area that the addition could be located on the site while still meeting the setback requirements. This would require extensive engineering site work and a retaining wall in order to be built. Staff has consulted with the City Engineering Department and in conversations has come to the conclusion that Skyline Drive will likely never function as a minor arterial, which is what it's labeled as in the comprehensive plan. the city engineering planning staff concur that skyline will likely only ever function as a collector street adequate right-of-way does exist for skyline to function as said collector street per the typical road sections in the comprehensive plan and the city currently has no plans to widen skyline drive and there are no proposed multi-use trails that would run along this section of skyline drive per the master trail plan additionally staff has reached out to rdot because this is currently an rdot road They also have no plans to widen Skyline Drive. They have plans to overlay it in the next few years and potentially add two feet of shoulder on either side, but no plans to widen in their future either. Staff also believes that the addition to the front of the house, if extended to the right-of-way line, would not cause any visibility issues when considering the speed limit in the area if the addition is kept as an open-air carport instead of an enclosed garage. Additionally staff concurs that developing the addition as a carport without walls would reduce the overall visual impact of said addition So staff does not have a formal recommendation on this request. However, the planning department does not object to the Board of Adjustment considering approval of this variance based on the presented information. Staff does note that approval should be based solely on the specific circumstances of this request and should not set a precedent for future variance requests. Staff would like to say if the Board of Adjustment does proceed with the approval, staff would request the following condition. That the applicant may only build a carport, not an enclosed garage, to ensure there are no visibility issues and reduce the visual impact. That is our staff report. Are there any questions for staff? OK.

Thank you, Victoria.

Yes.

I move we approve the variance with the condition as listed.

Second. OK. We have a motion and a second to approve this variance request with those conditions. All those in favor, acknowledge by saying aye. Aye. Any opposed? Hearing none, the motion carried. All right. Okay, we have a variance request for city floodplain ordinance for improvements to buildings located at 420 North Arkansas and 110 East E Street, submitted by Barrett & Associates on behalf of Randy and Whitney Atkins. Sarah John Dahl, welcome to the, welcome back.

Good evening. Yes, I am here as the city's floodplain. certified floodplain manager presenting to you all tonight. And it has been one year since I have been before you. I do apologize up front. This is the first floodplain variance you all have heard since I started with the city back in 2019. So this presentation will be a little bit longer. And I apologize for that. The existing conditions are that this structure is located at 420 North Arkansas, and it was constructed in 1952. The structure at 110 East E Street was constructed in 1974. The first flood insurance rate maps for the city of Russellville were published in 1970. However, both of these properties were identified as being as not being within the base flood elevation or within the floodplain. So as a result, even though one was built after 1970, they are both considered pre-firm buildings under FEMA terminology. Staff's understanding is that the proposed work would not meet the threshold for substantial improvements under the National Flood Insurance Program regulations based on the information that they have provided with their floodplain development permit. The ground elevations adjacent to the building are approximately 343 feet and the base flood elevation for 420 North Arkansas is 347.8 and for 110 East E it's 348 feet. because this is planning, we're a board of adjustment, you always hear zoning, I'm giving you the zoning. It's a C2 highway commercial property and it's located, surrounded by C2 properties except the northeast corner is a medium density, medium to high density R3 zone property, residential. Ordinance 2095 is to promote public health, safety, and general welfare by reducing adverse impacts associated with floodplain development and minimizing both public and private losses resulting from flooding events. This ordinance advances the stated purpose through provisions designed to protect human life and health, protect natural floodplains against unwise development, eliminate adverse impacts of necessary floodplain development, minimize expenditures of public monies on flood control projects. Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public. Minimize prolonged business interruptions due to flooding events. Minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines, streets and bridges located in special flood hazard areas. minimize future flood blight areas to help maintain a stable tax base, and to provide for notice to provincial fires when property is in a special flood hazard area. Additionally, in the interpretation and application of the floodplain ordinance, all provisions must be considered as minimum requirements, be liberally construed in favor of the governing body, and be deemed to neither limit nor repeal any other powers granted under state statutes. The city ordinance adopts only the minimum standards of the National Flood Insurance Program. The improved infrastructure is a non-residential structure that falls below or non-residential structures that fall below the substantial improvement threshold. And they shall either be elevated or flood proofed. Floodproofing requirements apply not only to the building itself, but to the electrical, mechanical, plumbing, and utility systems that could be damaged during a flood. Any variance granted from the ordinance will constitute relief from the minimum standards of the National Flood Insurance Program. National Flood Insurance Program regulations require issuance of a formal written notice to the applicant advising that the variance may increase the risk of flood damage and may also result in significantly higher flood insurance premiums due to the increased flood risk associated with the structure. After I finalized my report, the state issued a letter approved by their federal contact that recommends the flood proofing requirements be met However, if a variance is approved, they include a requirement that a signed notarized liability waiver be kept in the permanent record and attached to the property deed, which would require that the applicant have the liability waiver recorded at the county courthouse. Recently, we had some pretty significant storms come through, or many of us thought. It was a equivalent of a two-year storm event. We had 2.57 inches within a 24-hour period, and it was a two-year storm event. And that storm overtopped the bank of Prairie Creek. I understand it's got some renovations, but the bridges were out when that happened. And these were pictures I took the morning after hard to see but there is a layer of mud on the entire parking lot very slippery but it shows that water got over the city mall parking lot at a two year two year storm it did not come close to this property so these pictures are not showing that it got close to them but that was just a two-year storm and when we're talking base flood elevations We are talking a 100-year storm, and that's the probability of flooding at any given time due to the amount of rain that we see. It's not once in 100 years. It's the probability of flooding at any given time. Insufficient evidence demonstrating why the variant should be granted was submitted. The applicant referenced a recollection of an approximately eight inch rainfall event occurring in approximately 2006. No engineering analysis or supporting documentation was provided demonstrating that the FEMA floodplain maps or base flood elevations were incorrect. Staff reviewed the FEMA approved 2023 Pope County hazard mitigation plan which identified the city's largest recorded rainfall event is approximately 6 inches of rain within a 24 hour period in August 1957. That would be approximately a 10 year storm event. I did additional research trying to locate anything, trying to substantiate that claim, because I've heard it from two different people that there were a significant rain event, but I could not find any documentation showing how much rain occurred or that it was greater than that 1957 flood event. Um, by comparison, the images that I had just shown you that may 27th, that was just, um, under two inches or just over two inches of rain within. No, it was under two inches of rain within one hour, over two inches of rain within 24 hours. Um, but it was this two year storm event. Um, and there was still standing water covering significant portions of city mall parking lot and other areas of town. which demonstrates that even smaller storm events can create localized flooding impacts within the area. Additionally, while the Prairie Creek project is expected to reduce the frequency of flooding associated with smaller storm events, the city engineer confirmed that the project does not alter or reduce FEMA established base flood elevations. The flood studies associated with the project indicate that storms up to approximately a 10-year event may remain within the Creek Banks following completion of the project. So the May 27th event that we just saw would not have come out of the banks once the Prairie Creek project is done, but we're in construction. So there's that. That's what they're saying is up to that 10 year event should stay within the banks. But it does not eliminate the risk associated with the base flood event for which FEMA regulations are designed. All of this is to ensure that the board understands the purpose of regulating the base flood elevation is not solely on recent rainfall observations or nuisance flooding events, but rather on long-term flood risk management intended to protect life, property, public infrastructure, emergency response resources, and the community's continued eligibility within the National Flood Insurance Program. So given all of this, I've just given you a lot of information. The ordinance does outline areas where a variance could be granted. Um, and so I'm going to run through those. Does the applicant show good and sufficient cause? No, they only provided finished floor elevations at City Mall and a claim that historical flood levels provide a higher degree of probability than actual engineering analysis that takes into consideration rainfall amounts and or frequency, drainage basin area, size and shape of watershed, and hydraulic capacity or conveyance of the floodway or drainage system. Will the variance result in any adverse impact upon other lands? Because these are existing structures and no expansion of the building footprints proposed, the variance would not create additional impacts to surrounding properties beyond the conditions that currently exist within the floodplain. Will the variance result in any additional threats to public safety? Because this structure will continue to function as commercial buildings rather than residential occupancy, staff does not anticipate the request creates significant additional threats to public safety beyond the existing flood risks already associated with the buildings. The response here is directly related to the fact that this is a non-residential structure and that no one is sleeping in these buildings at night. If they were, there would be additional threats to public safety. As we have seen recently, flooding doesn't just happen during the daytime. Does granting the variance result in extraordinary public expense? The request is not anticipated to create new or extraordinary public expense. However, floodplain regulations are intended to encourage structures to move toward greater compliance over time as rehabilitations and improvements occur. Does granting the variance create a nuisance, cause fraud on or victimization of the public or conflict with existing laws or ordinances? Because the structures will continue to operate as commercial buildings with limited occupancy durations and no overnight residential use, staff does not anticipate the request creating a nuisance or resulting in fraud or victimization of the public. Does granting the variance result in increased flood heights or an increase in expected velocities? These are existing buildings and would not have any impact on flood heights or velocities other than what they currently create. Is the request the minimum necessary considering the flood hazard to afford the necessary relief? The request seeks a full exemption from the floodplain ordinance requirements for the proposed improvements, which exceeds what is typically considered the minimum necessary variance in consideration of flood hazards. Is the request necessary to provide an extraordinary hardship to the applicant? No evidence has been provided that the requested variance is necessary to avoid an extraordinary hardship. The ordinance also does give examples of when a development would occur that a floodplain variance may be appropriate. and it states the new construction of or substantial improvement to a structure on a lot of a half acre or less in size that is surrounded by contiguous lots with existing structures constructed below the base flood elevation. Both buildings are located on sites of less than a one-half acre and are situated within a developed area where adjacent and contiguous properties contain existing structures that are below the base flood elevation. Based on the available information, there does not appear to be sufficient evidence to support a determination of substantial improvement. However, should the work be classified as substantial improvement, failure to bring the structure into compliance with the National Flood Insurance Program requirements could result in increased flood insurance premiums and could result in additional building or zoning regulations. Given the surrounding development pattern, a variance could be considered in this context, particularly since the requirement does not call for elevation of the entire structures, but rather flood proofing of the proposed improvements. Appropriate flood proofing measures for the improvements would include elevating all electrical outlets and associated components above the base flood elevation and ensuring plumbing systems are properly protected from flood damage. While the specific Wall assemblies are not fully detailed in the provided information. Consideration should also be given to the appropriate flood resistant construction methods for any newly installed walls. Regardless of construction type, electrical and plumbing systems should be adequately flood proof to prevent electrical hazards in flood waters and to reduce the potential for contamination from sanitary systems during flood events. That was a lot. I appreciate your patience. staff recommends the applicant comply with the floodplain ordinance requirements and provide documentation prepared and certified by a registered professional engineer demonstrating how the improved portions of the building including all electrical mechanical plumbing and utility improvements located below the base flood elevation will be properly flood proofed in compliance with the city's floodplain ordinance and the minimum requirements of the National Flood Insurance Program. If the Board of Adjustment chooses to approve the variance, then the Board shall provide justification on why the variance is being issued and must issue a formal written warning of an increased risk of flood damage due to removal of restrictions designed to lessen such risks. The notice must also warn of a corresponding increase in the cost of flood insurance since the cost of such insurance insurance will be commensurate with the increased risk and Per the state assigned notarized liability waiver to be be kept in a in the permanent record and attached to the property deed Again, that was a lot. Thank you so much, but that is my reports Do you have any questions I've got a couple so

I know that they've already done some work to that first building.

They've already done work to both buildings. They were out there working on the second building when I took the pictures that were included in my report this morning. Yes, sir.

So you were saying to go back and raise all the outlets?

The outlet should be above that base flood elevation, and the plumbing at least should be flood-proofed. or flood proof outlets, but I don't know how you do that. An engineer could potentially certify that.

Okay.

I'm not the one who would be certifying that. An engineer would certify that.

what what is the process because i mean from them asking for i guess permission to be able to go and do all of this you know like at what point were they given any kind of uh notice that this needed to happen um unfortunately during the whole process the building department forgot to include um or missed including floodplain in the review when they applied for a permit

This was brought to my attention when they applied for the CrossFit structure permits. Since that was part of my review, it highlighted they're already working on that one. What's going on with that? That's when this whole variance process essentially got started.

It was missed somewhere.

Somewhere along the line, floodplain management was not included in the review. It should have been included in the review. They should have been highlighted of that at the very beginning. And I cannot speak to how that happened. Sure.

And then if we do, if the board decides to approve the variance, who, I mean, who's responsible? Is it the owner? That would be ultimately, we're just saying, Hey, you understand that this is a high risk.

Well, we'll have to issue a formal letter from the city. We'll have to issue the formal letter from the Board of Adjustment, and then they'll have to have a liability waiver that they sign and get recorded on the property and then provide to the city to keep with its permanent record.

Essentially saying that they're not going to come after the city for any damages if they did have a flood. I'm just clarifying.

No, that is, yes, because they're, they are asking for variance and putting themselves at greater risk based on the fact that they're asking for a variance. Okay.

Thank you.

Yes. well miss clear i i am unaware of any variances that the city has issued i don't have any in my documentation this is the first variance that would be issued since 2019 so i'm i don't know that i have a good answer for that we would still have to go out and do any of the rescues or any anything if there was someone in danger there during a flood Like we would, any police and fire are still going to absolutely respond regardless of the variance.

So if there were a flood event that got up into it after we issued the variance and somebody waiting around doing rescues or whatever gets electrocuted because the electrical system was below the flood level, then that would expose the city.

It would expose the city, but I will fully admit that it's going to expose the city right now. They're doing improvements to a pre-existing structure.

So even if this were approved, they're still going to be in noncompliance with the rest of the structure that's not being worked on?

Correct. It's only the flood-proofing... requirements based on what the ordinance says it's only the areas being improved that are subject to the requirements which is great they don't have to elevate the building they don't have to worry about taking care of the rest of the building it's just the sections of the building that they're improving and the intent is as improvements are made to structures that they will be coming closer into and then fully compliant with the national flood insurance program

I noticed that the letter from the state mentions that, let me see here. Given these deficiencies in the associated regulatory and public safety concerns, the state NFIP office recommends denial of the variance.

Yes, they do recommend denial of the variance.

How would that affect or how could it affect the city's continued participation in the flood insurance program?

That's just a recommendation. We're following the ordinance that we have adopted that does allow a path for a variance. Obviously, based on the state's we prior to receiving that letter still recommend my staff report was completed before we received that letter so we are recommending flood proofing the areas of the building that have been improved the electrical mechanical Those areas specifically, I'm unaware of what walls or anything have been improved, but I knew I had been told by the owner that they were doing electrical and plumbing work. So that's where I'm like, we need to flood proof those items of the building. I didn't see plans. I don't know what the rest of the structure, how many improvements were made. But it's not a substantial improvement, so we're just looking at trying to get the areas that have been improved flood proofed. When I did receive that letter, obviously I updated some of the items in my presentation to you all tonight to reflect the information from that. But yes, I. I understood that they were going to recommend denial. It doesn't impact our participation in the National Flood Insurance Program if we do issue a variance because our ordinance does allow a path to issue a variance.

You have, Dave, you have anything to add to that or you do? Step up. Thank you, Sarah.

Sarah's right. Dave Garza for the owners. I'm going to pass out some information. This is the first variant. Okay, in understanding flood plains you have to understand how they're created, how the flood studies created. Flood studies created by modeling an area that flows down and that model is called, it's a 2D model. So what they do is they do cross sections across a stream and creek using the contours that they have available until it comes to a structure. The structure would be a box culvert or a bridge. that box culvert bridge has a certain opening. So when the volume of water that they've calculated that comes down the stream as the banks, you know, pass out, it's going to come up so high and then at that point, they calculate how much volume has to flow down that stream and that's called the floodway. Anything beyond that, from that height, let's say the height of the water is right here, okay, and this is the floodway between my arms. Any land beyond that on the outside that's lower, is a flood plain because it's going to flood water, naturally spreads out. That can be filled, OK? We can do a permit to fill that part. You can't fill the flood way without an engineering study. So as it comes down and it approaches that structure, that water hits that structure and what it does is the calculations show that it shoots up. If you'll open up your, to the second page, you'll see the highlighted portions on the top are the structure locations where they cross those specific roads. The pink down below are the structures, those are the bridges. So when it comes to the bridges, if you look at the model, you see how they shoot up? The top line is the 500 year flood, the second line down, So it's a 2D model. As a 2D model, the hydraulics of the water flow, the volume's coming down, hits that structure. Structure, there's too much water to get through that structure, so what it does, it shoots the water up. That's the way the 3D model works. The problem with the 3D model or the 2D model is that it's not a 3D model. What a 3D model does, it takes into consideration the roadway stretch. It's like this. If you're on Phoenix, and we demonstrated this when we were at the Corps of Engineers, when we were litigating the domus property problem, they had the calculations from this new ditch. And when it got to the Phoenix, the North Phoenix Bridge, the water shot up 4 1⁄2 feet. Well, because of that, it was going to cause flooding, they said. It was going to cause flooding to the new buildings that we were going to build there, those student housing. And so, therefore, they were denying the permit to build that. And our question was, what's holding the water up in the air 4 1⁄2 feet? Is it Moses? I mean, we actually said that. is because it's a 2D model. It doesn't take in consideration the roadway. The water is going to overtop the roadway, and it's going to flow. 2D models don't do that. 3D models do. So because of that, then there is an error in the design, in the maps. I'm going to show you that. Go back to the second page.

We have the FEMA flood hazard layer format.

Now if you look on the main street part where it says muffler shop, that's A1 muffler, the elevation of the muffler shop is 352. The base flood elevation there is 357. That's three feet above the muffler shop. Now, behind the muffler shop is B Street, okay? And there is a fourplex on North Frankfurt. And then you start getting into some vacant lots, and then you get into the Hughes Center. The fourplex is at 349. So 349 minus 357, as we do the math, is eight feet. So it's eight feet of floodwaters coming down through there for a 100-year flood. I've been here since 91. Some of you probably grew up here. Eight feet of water on B Street? It's a no-brainer. Think about it. Have you ever seen eight feet of water? No, it's because what it's doing, it's doing a 2D calculation when it hits that B Street bridge and then the Main Street bridge, that 2D calculation shows the water to raise up eight feet. Historically, it never happens. So what is of more importance, calculations or historic information? Historic information is generally used to be more imperative.

It is what actually happens.

We can sit here and we can calculate all day long how much water is going to flow down a stream at any given time, how much rainfall, and we can calculate and we can say this, that, and this. It doesn't mean it's going to happen, but what we do know is from historical floods, floods that do happen. And it shows us what exactly is going to happen because it is an exact, it's the high water mark. It shows us our flooding. And so from that, we learn what is actual, okay? So we learn what actually is going to happen here. How many of you were here in 2006 when I had alluded to in that letter? Now, Sarah wasn't here, but how many of you were here in 2006 when we had that big, okay. Fayetteville, how many inches did Fayetteville get that night, do you remember? 12, 12 inches in nine hours. And then that same storm came down. It hit us. We got two and a half inches to start with. Two hours later, we got two inches. About two and a half hours later, we got another two and a half inches. And then we had a small rain. I remember because I was working public works. I was manning the radios from 911. 911 would call us and we had to go out. And it flooded. I mean, when you get that much in that short of time, it flooded. It flooded that downtown area. And now that happened before we made that convergence on school drain. So we got about two and a half foot deep up there. It did not get into the bank. I think it was the Arkansas First Bank, Roy Reeves Bank that's in City Mall. Yeah, first, okay, it didn't get in there, but what they were having trouble with were the waves. From the cars going through, it was creating waves, and the waves were overtopping the sidewalk, and so they had to put sandbags to keep that from going. But as far as the water itself, it didn't get there. Morgan and everyone classified that as a 100-year flood. mean it's we've had 100 year floods because i mean that was fast it was quick it was a lot in a short amount of time so given that information that if if it didn't play and we're talking this is 30 years of history okay of that downtown area 30 years of history It's never gotten into City Mall, and yet City Mall is two feet lower than these two buildings we're talking about. It's two feet lower. It's on your, if you'll turn back to this map here, I put the finished floor elevation. So City Mall is at 342.95. The beauty salon is at 344.30 and the old shop building next door is at 343.8. So you're talking basically the shop is a foot above and the beauty salon is a foot and a half or just under a foot and a half above. And if it didn't get into City Mall, it's not gonna get into these. They're in the same location. Remember what we're talking about. We're talking about a flat plain. If it gets that high, the water's gonna distribute. It's gonna come out. Those buildings aren't that far away.

They're right next to the parking lot.

So my contention is there is a flaw in the program, in the floodplain maps. Another thing is it doesn't take into consideration any of the improvements that have been made. El Paso Bridge was replaced when I was at Public Works to help that. We did ditch pavement upstream to help get the water downstream faster so when the convergences of the other streams came into play, those streams would be passed before the other ones came in. We did the concrete ditch there behind the Suzuki shop to make sure that Prairie Creek and School Creek would come together. Because before, Prairie Creek had so much dynamic flow, it would not let School Drain come out. So then School Drain overtopped and went down Parkway and into that intersection. We fixed that. That's gotten fixed. they're doing the ditch project right now widening the ditch replacing the two bridges okay and that's supposed to help all of this is going on all this has come about and yet there's been no restudy done so my contention is this i go back to what historically has happened Historical evidence is factual. Calculated, computed calculations are not. They're just formulas. Like I said, we don't know how much rainfall is going to happen at any one spot at any length of time. We're guessing. We're calculating. I went to a conference once for ADEQ, and the ADEQ director started off the conference by saying, listen, These computations that we do for designing flood studies is the most accurate, inaccurate computations. And we were all like, what? And he explained it, that it's what we have. It's the best that we have. But again, we don't know. We don't know how much it's going to rain here and there. So we have to rely on historical events, historical data.

While I was at Public Works, we knew. Let me just say this.

When we're talking about historical events, if it's going to snow, what streets do we block off? Skyline, number one. And Glenwood, over by Skyline. Why is that? Because historically, we know where the problems are. if it snows. If we have snow problems or ice, we know where the problems are going to be. We know where the flooding problems are. Arkansas Tech. the downtown area, those are the two major flooding places when we get high rains. And they're working on Arkansas Tech now to alleviate that. So we know that because historically, that's where the events have happened. And we know how much they have happened, how high they've been. So I don't want to take all of your time, but I do want to just say that the owner is okay with the recommendations to the variants as far as the documentation that they have to support and that they have to provide as outlined in that portion. And the owner would also go back and remove the plugs and put the ground fault plugs in there. Since they had already been granted a permit to do the work and they had pretty much, they were like 50% done before they were told, oh, hey, we got a problem. And so, and here's the thing, it's not increasing. It's not increasing the floodplain. Now, the question was asked by Ms. Keller, right?

Okay.

Okay, here. Impact to the city from FEMA. Okay, we've already been through that. Sarah wasn't here. Don Johnson, he built his business out on West Parkway. Any of you remember that? Okay. Both FEMA and Corps of Engineers came in and to Morgan's office and said, you need to stop this development. So it's in the floodway, it's in the flowage easement, it's in the flood. And the way Don had designed it, he designed it with the little portholes on the bottom so the water would flow through. Now it was only, only had it like a foot. It was right at the edge. And Morgan said, no, we're not gonna do that. They have mitigated, they have done everything possible that they can in their construction to mitigate what they're doing there. And so they weren't happy, CORE wasn't happy, FEMA wasn't happy, but they didn't come back after the city either. So that's already been done. That's already been tried. That's tested. When you're asking for a test, that was tested. They didn't, and they left Don alone. And so we've already been through that. It's been tested. It's been tried. They didn't do anything. They didn't come back to the city and say, OK, we're going to pull our approval of you being a floodplain. They're not going to do that. And they're not going to do that for something this small either. They're looking for major stuff, major violations, major noncompliance. Those are the things that they're going to go after. And this isn't. These buildings have been there for a long time, and they've never flooded. So we're just asking, like I said, we have no problem with, if you grant the variance, the stipulations that they have added to the variance, and that we would also go back and change out all the electrical sockets to ground fault. And that's all I have, unless you have any questions. Yes, ma'am. Yes, it is. Mm hmm.

Thank you.

Well, they're going to deny it. But that's why we have in our ordinance that FEMA has developed that we have an avenue of variance request for certain specific situations. And this one, I believe, meets that specification. It's never been historically, 30 years that I've been here, it has never gotten that high there. And we've had a lot of 100-year rains since then. So you look at it historically. Now, I agree with you with flooding because I've been at, you know, If you want to, where the floodplain calculations and all that stuff came from is from Austin, Texas. If you go to any program, Austin, Texas is the one that developed everything. I grew up in Austin, Texas. I've been through those floods down there. And yes, they go down through the creeks. But what we're asking here is not going to increase the flood whatsoever, not at all. And if there's gonna be people there during the flood, there's gonna be people also all over that are in City Mall. So what would be the difference And that would be true if it's a new building, but this is a modification to an existing building. It's just a remodel. That's all it is. And that's why the variance comes into play.

How much of the remodel has been done? Are the walls covered and closed now?

In the beauty shop, which is the highest elevation, yes, it's complete. My understanding, I think they're still working in this.

You know, I totally understand what you're saying. But if we, I mean, if we were going to be real pragmatic about it, we have to reconcile to what the models show. And historical is fine, but Searcy and Stone County got nine inches in the last week. They never have had before. Of course, granted that the topography is different. But... I don't know.

So the issue, I mean, in my opinion, the issue is when you're looking at a rebuild, a complete rebuild or a brand new facility that's in a floodplain, then absolutely you should raise it up. Cornerstone, when they built their office off of B Street, they raised it up three feet to get it out. I absolutely agree with that 100%. But our existing buildings, even in the downtown area, you can't do that. I mean, you have to look at what impact of what they're doing. What they're doing, how's it going to impact the floodplain? And in this case, the impact is zero. other than life safety. That's it.

I was going to say, that's my concern is life safety. And to be clear, the parts of the buildings that are not being remodeled will remain noncompliant with flood zone issues.

And that would only be for damage for the owner himself. That's it. There's no life safety with that. Only the electrical.

Yeah, well, and you know, and that's my other concern is liability for the city for safety. And I don't know how that would go.

I don't think the city would have any liability if they have to have that later. All this stuff, that negates the city.

Yeah, and that's what we would have to issue.

Right, yeah. You issue all of that to protect the city, and you put the owner on notice that, hey, it's on you. And you can have this on you. You get any damage, it's on you, you know. And you can't go back and get FEMA funds for it and all that.

And if somebody gets hurt.

It's on them.

It's on the owner of the building.

Correct. Yeah.

Yeah.

Not when the city prepared all the documents based on what is available in the ordinance. The ordinance says they can grant a variance. If it wasn't there, if you couldn't grant a variance, then it wouldn't have been there. See, that's the whole point. The variance is to look at the historical facts, to look at what's happening there, and then determine, does it meet the variance? And if it does, then you put these safety guards, you have to sign all these papers and regulations to make it known that the city is not reliable, is not liable. Otherwise, why have the variance in there then? Because this would happen every time. Am I correct?

Is Trey in the building? Can we get a legal opinion on that? I saw him earlier. He's in the back.

Is he up to speed on what Sarah's recommending as far as the documents? He has all those, okay. What's that? I'm saying there's not going to be any water. I'm saying there's not going to be any water. Exactly. But we've proven the maps to be wrong in other locations. Sarah and I did that over on Shallow Creek. It's not that the maps are perfect, they're not. We look at the historical value to see what it actually is, what actually happens there.

Thanks, Dave.

Yes.

I want to state your name for the record, sir. Trey Smith, city attorney.

I'm trying to collect my thoughts on this. We've heard quite a bit of information from a couple of different individuals. What is the city's liability if a variance was granted for someone to come after the city in this scenario?

guess i'm not aware of the scenario so i'm just not sorry uh i with that being said i don't think there is because at the ultimate day adult thing comes down to property owners and their whether or not i'm guessing to say your question you're saying that maybe the flood of waters of one

property what goes on to another's and I take it that's the general ask basis of why you're asking there's liability well they're asking for a variance on flood proofing and so essentially you know Dave is saying that granting the variance isn't going to change anything as far as like the

flood plane is that right yeah so basically what sir is saying is that if they grant the variance then we then the owner there has to be an attachment to the deed that the owner has been warned that uh would they bring the burns that does not uh relieve the owner of the flooding but the city is not going to be responsible either right something like to that pretty much that effect right yeah so it's a waiver of liability right yeah ultimately

if there is any A homeowner channels water to another lot or something, then they are liable. If there's any kind of showing that they've channeled that water. If it's not that, then if it's just water flowing naturally, then there wouldn't be any liability. As for the city stuff, it's more of a statutory thing to try and prevent it so that there's less flooding generally. it doesn't necessarily impute any liability therefore to homeowners whatnot so i don't think there would be city liability and even if there is liability it would have to reach more than just the threshold of negligence because the city has toward immunity versus there had to be an almost an intentional showing of something

Mm-hmm.

Mm-hmm.

Because the modifications weren't made.

Okay. Right. If, I think it would protect if we did those, if we carried out those acts, then yes.

What was it you said, if we carried?

If we did what the letter asked us to do. Yeah, I believe so. Ultimately, they don't have authority to make these decisions, but they also have a national plan what they want all communities to follow because of the effects. If it's not followed, create potential dangers and risks when a flood does occur.

Can you demonstrate?

Are we any more?

Thank you Trey. So my contention is that the map is flawed and we know that from the historical data that we have. We know that because there are other places that we've seen that are flawed, that are not correct. We know that because the way that they calculated the floods coming down does not take into consideration the spread. It's just a 2D, not a 3D model. And based on that information that we do know that are facts, there won't be any flooding in this in this building it has yet to occur and we've had a ton we've had a lot of rain and a lot of flooding in that area over the past 30 years since 91 since i've been here and i worked some of those so And we're not increasing any flood, any waters down. So Trey was talking about residential. You don't want water flow. That's not the case here. It's interior remodel is all it is. So I think the safeguards that Sarah's put in her plan, the recommendation, if you grant the variance, I think the safeguards should be in place. And I think the added feature is that all existing outlets that are in there should be changed out to ground fault if they're not already. That's what I would recommend.

Increasing the flood risk is not as big a concern for me as safety. And that's my sticking point.

Well, if we made the modifications, let's say we flood proofed it, did we make it any safer for those people?

You make it safer in that part that we would grant the variance on.

I mean, but how did we make, the people are still in the building. If it floods, they're still going to have to get rescued, right?

That's right.

Yeah. So either way. right but they wouldn't get electrocuted because of our variance no that's why i'm saying we would change out those two ground faults which they automatically come off when they get wet yeah okay yeah you're saying yeah all of your restaurants in in all new houses the kitchen anything around the sink uh ground faults are all ground faults right now then uh any any

bit of moisture that gets into them they pop oh i know or if they get hot yeah i do it at my house all the time yes but uh that's that's my point is you will make the modifications to install it are the ground faults going to be adequate or do they have to the outlets have to be up at five feet the ground falls we'll do the ground faults that will take care of that they'll shut off any anymore okay

And then one of the other things I recommended that they go ahead and do the plate for the doorways, just like the bank has. If it gets to a certain height, they put the plate up there to keep the water from coming in.

All right. Anybody got any questions? Any more questions for anybody?

Obviously the seller, you said, was aware and be willing to do that, right? Yes. And what about plumbing? Was there any recommendation on plumbing?

There really isn't a whole lot you can do about plumbing because the plumbing is going to go through the entire city system over there when it goes through. And, you know, The only thing that it's going to prevent is just damage to the building. It could come up the commode, possibly, if it ever got that high. But hydraulically, I don't think it will. So there won't be any life safety there. It'll just be damage. And of course, we've already determined that if you grant this, any damage is going to be on the owner to repair. You know, they always say you can put like a valve, shut off valve outside. You'd never get to it in a flood.

Thank you, Dave. Anybody have any questions for Mr. Garza? It's your pleasure.

I'll make a motion to approve the variance for the following modifications. They go ahead and flood proof the outlets with the GFCIs and put the plates on the door that were recommended. And also following up with the notice from the city and attach it to the corresponding deed.

All right. We have a motion.

Second.

We have a motion and a second to approve this variance request with the listed recommendations there. All those in favor, acknowledge by saying aye. Aye. Any opposed? No. OK, take a roll.

Cummings.

Yes.

clear no stroud yes catherine catherine yes all right i thank you for your time all right i'm sorry it took so long for this but it's the first one now we know

All right. Anything else? The Board of Adjustment meeting is adjourned.