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Home My WebLink AboutCorrespondenceWEST, WEBB, ALLBRITTON & GENTRY A PROFESSIONAL CORPORATION ATTORNEYS: STEVEN N. ALLBRITTON ROY D. BRANTLEY" COURTNEY S. CAIN TERRANCE D. DILL, JR. PATRICK W. FOGARTY MICHAEL H. GENTRY" JENNIFER D. JASPER KEITH L. KRUEGER`"" DAVID T. POLING BAILI B. RHODES WELDON RUSSELLI JOHN C. WEBB, JR, GAINES WEST Zoning Board of Adjustments City of College Station 1101 Texas Ave. College Station, TX 77840 — Established in 1982 — 1515 EMERALD PLAZA COLLEGE STATION, TEXAS 77845-1515 TELEPHONE: (979) 694-7000 TELECOPIER: (979) 694-8000 WEB SITE: http://www.westwebblaw.com "BOARD CERTIFIED PERSONAL INJURY TRIAL LAW TEXAS BOARD OF LEGAL SPECIALIZATION "BOARD CERTIFIED November 8, 2011 COMMERCIAL REAL ESTATE LAW TEXAS BOARD OF LEGAL SPECIALIZATION LICENSED TO PRACTICE BEFORE THE UNITED STATES PATENT AND TRADEMARK OFFICE t BOARD CERTIFIED ESTATE PLANNING AND PROBATE LAW TEXAS BOARD OF LEGAL SPECIALIZATION Writer's e-mail: mike.gentry@westwebblaw.com Re: Appeal by Moreau Investments ("Applicant") of the Zoning Administrator's Written Interpretation Regarding Preexisting Retail Sales Use at 12900 Old Wellborn Road f/k/a Heirloom Gardens (the "Property") Dear Board Members: This matter concerns the Zoning Administrator's determination that the appropriate preexisting specific use designation of the Property under Section 6.2 of the UDO is a Commercial Garden/Greenhouse/Landscape Maintenance use. Applicant believes the proper preexisting use designation for the Property under the UDO is Retail Sales and Service, and that this use constitutes a preexisting, nonconforming use under the UDO and Texas law. Background The previous owner of the Property, Heirloom Gardens & Interior Decor ("Heirloom Gardens"), began operations at the Property in 2002 when the Property was located outside City limits and prior to the implementation of the City's UDO on June 13, 2003. Heirloom Gardens used the Property as a Retail Sales outlet for plants and landscaping products. The current A-O Agricultural Open zoning district designation was applied to the Property upon annexation in 2004. Retail Sales is not a permitted use in an A-O zoning district and would therefore be considered nonconforming. Applicant purchased the Property in 2010 with the intent to continue using the Property as a Retail Sales display area for granite, natural stone and related products. Thus, the preexisting nonconforming use of the Property has not changed and should be allowed to continue. November 8, 2011 Page 2 The Law Reaardina Preexistina Nonconformina Uses According to Texas law, a "nonconforming use" is one that lawfully existed before the effective date of a zoning restriction and that is allowed to continue to exist in nonconformance with the restriction.' Allowing preexisting nonconforming uses provides protection of private property rights while avoiding the expansion of uses that are no longer appropriate to a neighborhood .2 Section 9.1 of the UDO clearly states: "Except as specified in this Article, any use, building, structure, or sign existing at the time of enactment of this UDO or classification amendment applicable to its use, may be continued even though such use, building, structure, or sign may not conform with the provisions of this UDO for the district in which it is located...." Ample Evidence of Preexisting Retail Sales Use of the Property Heirloom Gardens was a retail sales facility with indoor and outdoor sales display areas, whose primary business operation and land use revolved around retail sales of plants, trees, landscaping materials and home decor products. Heirloom Gardens consisted of the following areas: • Indoor Retail Sales Building in which customers could purchase live indoor plants, floral arrangements, interior home decor, specialty gift items (candles, wind chimes), and holiday season decorations and ornaments. • Five Outdoor Retail Sales/Display Areas in which customers were allowed to walk around, view products on display and select products for purchase. These included a water garden, a covered live plant display, an uncovered live plant display, a containerized tree display, and a landscaping materials display. The Administrator's Determination Reaardina Preexistina Use of the Property is Incorrect In his written interpretation dated October 26, 2011, the Zoning Administrator determines that the Commercial Garden/Greenhouse/Landscape Maintenance use category is the appropriate preexisting use classification for the Property under Section 6.2 of the UDO. Applicant respectfully disagrees. "Commercial Garden" is not defined in Section 11.2 of the LIDO. However, Section 11.1(B) states that "words not specifically defined in Section 11.2 "shall take their common dictionary meaning." According to Webster's, "commercial" is defined as "occupied with or engaged in commerce." "Garden" is defined as "a plot of ground where herbs, fruits, flowers or vegetables" are cultivated. Heirloom Gardens did not grow plants on -site and was clearly not a "commercial garden." "Commercial Greenhouse" is defined in Section 11.2 of the LIDO as "a structure or location where plants, vegetables, flowers, and similar materials are grown for sale." However, ' Pearce v. City of Round Rock, 78 S.W.3d 642, 645 (Tex. App.— Austin 2002, pet. denied) 2 Wanda v. Bd. of Adjustment of City of San Antonio, 27 S.W.3d 162 (Tex. App.--San Antonio 2000) rev'd, 92 S.W.3d 424 (Tex. 2002). P:\Gentry\Moreau Heirloom Gardens Rezoning 22425\ZBA Appeal\ZBA Letter_11-4-11_2nd draft.doc November 8, 2011 Page 3 the trees and plants for sale at Heirloom Gardens were not grown on -site, but instead were trucked in on a regular basis and placed in display areas for retail sale. Heirloom Gardens was clearly not a "commercial greenhouse." The Administrator states in his written interpretation that "it should be noted that Commercial Greenhouse and/or Commercial Garden uses should not unnecessarily be limited solely to the sale of plants grown from origination at a site." However, the Administrator offers no explanation for this conclusory statement, and the definitions of the terms indicate just the opposite. "Landscape Maintenance" is also not defined in Section 11.2 of the UDO. "Landscape" is defined in Webster's as "to modify or ornament a natural landscape by plant cover." "Maintenance" is defined as "the act of maintaining" or "the upkeep of property." Thus, this term clearly contemplates the offsite upkeep of another's plants. While Heirloom Gardens did provide landscaping services to some customers, this function was accessory and incidental to the retail sales of plants, trees, landscaping materials and home decor products. The UDO defines "Retail Sales" as "establishments engaged in selling goods or merchandise to the general public for personal or household consumption and rendering services incidental to the sale of such goods". Retail Sales was the primary preexisting use of the Heirloom Gardens Property. The Administrator also states in his letter that the interior retail component "was accessory to other commercial activity that centered in the sale of landscape and plant materials." Even if true, there is no indication in the UDO definition of "Retail Sales" that the sales must take place in an interior structure, or that the sales cannot be of landscape or plant materials. In addition, the Administrator argues in his written interpretation that because the Property received an administrative adjustment of 10% to its parking requirements in 2004, this somehow is evidence that the use of the Property in 2004 could not have been nonconforming and must have been Commercial Garden/Greenhouse/Landscape Maintenance. However, nowhere in the text of Section 3.17 of the LIDO ("Administrative Adjustments") is it stated that in order to receive an adjustment a Property must be "conforming." Additionally, the fact that the specific use designation may have been incorrect in 2004 only supports the argument that the use designation is still incorrect today. Conclusion Applicant requests that the Board recognize Retail Sales and Service as the appropriate preexisting, nonconforming use designation for the Property under the UDO, rather than the Administrator's use interpretation of the Property as Commercial Garden/ Greenhouse/ Landscape Maintenance. Applicant intends to continue using the Property as a Retail Sales display area for granite, natural stone and related products. PAGentry\Moreau Heirloom Gardens Rezoning 224251ZBA Appeal\ZBA Letter_11-4-11_2nd draR.doc November 8, 2011 Page 4 Thank you for your consideration of this request. Sincere) Michael H. Gentry PAGentry\Moreau Heirloom Gardens Rezoning 22425\ZBAAppeaI\ZBA Letter_11-4-11_2nd draft,doc WEST, WEBB, ALLBRITTON & GENTRY A PROFESSIONAL CORPORATION Established in 1982 ATTORNEYS: 1515 EMERALD PLAZA COLLEGE STATION, TEXAS 77845-1615 STEVEN N. ALLBRITTON TELEPHONE: (979) 694-7000 ROY D. BRANTLEY* TELECOPIER: (979) 694-8000 COURTNEY S. CAIN WEB SITE: http://www:westwebblaw.com TERRANCE D. DILL, JR. PATRICK W. FOGARTY 'BOARD CERTIFIED MICHAEL H. GENTRY" PERSONAL INJURY TRIAL LAW JENNIFER D. JASPER TEXAS BOARD OF LEGAL SPECIALIZATION KEITH L. KRUEGER*** DAVID T. POLING SAILI B. RHODES **BOARD CERTIFIED November 8, 2011 WELDON RUSSELLI COMMERCIAL REAL ESTATE LAW TEXAS BOARD OF LEGAL SPECIALIZATION JOHN C. WEBB, JR. GAINES WEST LICENSED TO PRACTICE BEFORE THE UNITED STATES PATENT AND TRADEMARK OFFICE 1 BOARD CERTIFIED ESTATE PLANNING AND PROBATE LAW TEXAS BOARD OF LEGAL SPECIALIZATION Writer's e-mail: mike.gentry@weslwebblaw.com Via Hand Delivery and Email bcowell@cstxgov Bob Colwell Planning & Development Services City of College Station 1101 Texas Ave. College Station, TX 77840 Re: Moreau Family Investments, Ltd.'s Written Interpretation Application re: 12900 Old Wellborn Road f/kla Heirloom Gardens ("Property") Dear Mr. Colwell: I represent Moreau Family Investments, Ltd. ("Applicant") in the above -referenced matter. Pursuant to Section 3.19 of the City of College Station Unified Development Ordinance ("UDO"), Applicant submits this Zoning Board of Adjustment Application, along with our firm's check in the amount of $350.00 as the Application Fee. Applicant requests that its appeal be heard at the Tuesday December 6, 2011 Zoning Board of Adjustment meeting. Thank you for your help in this matter. Enclosures November 8, 2011 Page 2 cc: With Enclosures Brazos Valley Carpet Outlet Chuck Moreau via Email chuck@bvcarpetoutletcom IPA Group Natalie Ruiz Gessner Engineering Jeremy Peters Carla Robinson City of College Station City Attorney 1101 S. Texas Avenue College Station, Texas via Email natalie@ipsgroup.us via Emailjpeters@gessnerengineering.com via First Class Mail P:\Gentry\Moreau Heirloom Gardens Rezoning 22425\713A Appeal\Letter to Zoning Administrator 11-8-11.doc Page I of I Deborah Grace -Rosier From: Chuck Moreau <chuck@bvcarpetoutlet.com> To: <jschubert@cstx.gov> Date: 11/16/2011 5:13 PM CC: Julie Schultz <jschultz@cstx.gov>, Mike Gentry <mike.gentry @westwebblaw.... Jason and Bob, Once again I would like to thank you for our meeting today. I feel very encouraged moving forward with the zoning issue at 12900 Old Wellborn Rd property. Therefore, I am postponing the ZBA hearing on Tuesday December 6, 2011to a date TBD, with the understanding that if we cannot reach a satisfactory plan for phasing the PDD I can request a re -scheduled ZBA hearing without having to pay a new filing fee or seek a revised response to my request for an opinion. My prayer is to agree on a PDD zone with phasing options that allow my company to use the stated property. I am copying my counsel Mike Gentry and Julie Schultz. It is possible that Mike will want to write a follow up letter of confirmation. I look forward to working with the City to put together a well -planned development that will facilitate the business opportunities in our community. Jason please email dates and times at your earliest convenience so we can schedule a meeting to move forward with the PDD. Thanks again, Chuck Moreau Brazos Valley Carpet Outlet file://C:\Documents and Settings\dgrace\Local Settings\Temp\XPgrpwise\4EC3POIKity ... 11/17/2011 WEST, WEBB, ALLBRITTON & GENTRY A PROFESSIONAL CORPORATION Established in 1982 ATTORNEYS: 1515 EMERALD PLAZA COLLEGE STATION, TEXAS 77845-1515 STEVEN N. ALLBRITTON TELEPHONE: (979) 694-7000 ROY D. BRANTLEY* TELECOPIER: (979) 694-8000 COURTNEY S. CAIN WEB SITE: http://www.westwebblaw.com TERRANCE D. DILL, JR. PATRICK W. FOGARTY 'BOARD CERTIFIED MICHAEL H. GENTRY" PERSONAL INJURY TRIAL LAW JENNIFER D. JASPER TEXAS BOARD OF LEGAL SPECIALIZATION KEITH L. KRUEGER"' DAViD T. POLING November 17, 2011 '"BOARD CERTIFIED BAIL I B. RHODES COMMERCIAL REAL ESTATE LAW WELDON RUSSELLt TEXAS BOARD OF LEGAL SPECIALIZATION JOHN C. WEBB, JR. GAINES WEST LICENSED TO PRACTICE BEFORE THE UNITED STATES PATENT AND TRADEMARK OFFICE t BOARD CERTIFIED ESTATE PLANNING AND PROBATE LAW TEXAS BOARD OF LEGAL SPECIALIZATION Writer's e-mail: mike.gentry@westwebblaw.com Via First Class Mail and Email: bcoweH@cstx.gov Bob Cowell Planning & Development Services City of College Station 1101 Texas Ave. College Station, TX 77840 Re: Moreau Family Investments, Ltd.'s Written Interpretation Application re: 12900 Old Wellborn Road f/k/a Heirloom Gardens ("Property") Dear Bob: I represent Moreau Family Investments, Ltd. and Chuck Moreau ("Owner") in the above - referenced matter. In a letter to you dated November 8, 2011, Owner submitted a Zoning Board of Adjustment ("ZBA") Application, along with a $350.00 Application Fee, requesting an appeal of your interpretation of certain LIDO definitions regarding the Property ("Appeal"). This Appeal was set to be heard at the Tuesday, December 6, 2011 ZBA meeting. It is my understanding that in the meantime you, along with other City officials, have had a meeting with Owner regarding Owner's Planned Development District ("PDD") application. As a result of this meeting, Owner has made the decision to postpone its Appeal to focus on reaching an agreement on a PDD plan. It is my further understanding that if Owner elects in the future to move forward with its appeal to the ZBA, Owner will not be obligated to begin the interpretation and appeals process over, or to pay an additional $350.00 fee. In essence, it seems all parties have agreed to toll Owner's Appeal pending satisfactory resolution of the Owner's PDD process. Bob Cowell November 17, 2011 Page 2 If the above does not conform to your understanding of the situation, please contact me immediately. Thank you for your assistance in this matter. P:\Gentry\Moreau Heirloom Gardens Rezoning 22425\Ltr City 2_11-17-11_ZBA hearing suspended.doc Bob Cowell November 17, 2011 Page 3 cc: With Enclosures Brazos Valley Carpet Outlet Chuck Moreau via email: chuck@bvcarpetoutlet.com IPA Group Natalie Ruiz via email: natalie@ipsgroup.us Gessner Engineering Jeremy Peters via email: jpeters@gessnerengineering.com City of College Station Carla Robinson via email: crobinson@cst:r.gov Jason Schubert via email: jschubert@cstx.gov Julie Schultz via email: jschultz@cstx.gov PAGentry\Moreau Heirloom Gardens Rezoning 22425\Ltr City 2_11-17-11213A hearing suspended.doc