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STAFF REPORT
Case No .: .86-102
Applicant: W.C-. (Cully) .Lipsey, TH.
Request: Rezone ,from R-l Single Family ResidentialtoC-l
GeneralCommer.c ial..
Location: Lot 2, Lakeview Acres (N.sideMiller's Lane, 400'
east of TexaS Ave.
Physical Features: NOTE:
Area: 4.33ac.
Dimensions: 505' X 384'
Frontage: .384' on Miller' sLane
Depth: 505 '.offofMiller's Lane
This lot is under the
same ownership as an
adjacent part of Lot 1.
That portion of Lot 1 is
zoned C-l.
Area Zoning:
North:
East:
South:
Wes t:
C~l, A-P
R-l
C-l (across Miller's Lane)
0-1
Existing. Land Use_:
Subject tract includes residential (mobile home) use along
southernportion,balance vacant. Residential uses to the
east ,south, and west; vacant toth.e north.
Land Use Plan:
This;area is reflected as commercial with medium density
residential and office commercial uses to the .east.
Engineering:
Water:2ttline currently serves this tract. Waterwould
havetobeupgraded to an 8ft line.
Sewer: Adequate j
Streets: Current street is 20 ft. wide in a 50ft.. right-
of-way,with no curb and gutter. Commercial width
street would be required. (SEE SPECIAL FEATURES)
Access to be determined/approved at site planning
stage.
Drainage: To north toward Bee Creek.
FloodPlain: North corner is in the flood plain.
SPECIAL FEATURES: Aproje.ct to widen and improve Miller
Lane is currently planned by Capital
Improvements.
Notification:
Legal NoticePublication{s): 2-5-86 & 2-26-86
Advertised CommissIon Hearing Date(s): 2-20-86
Advert.~sed Council <Hearing Dates: 3-13-86
Number of Notices Mailed to Property Owners Within 200':8
Response Received: None to date
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Staff Comments:
The subject lot is located in an area planned for commercial
use. Commercial zoning has been established to the north and
south of this tract. C~l zoning on this tract would be in
compliance with the landuseplaDand consistent with area
z on i ng .patt ern s...
Thet:idjacent lot (Lot 3) to the east is zonedR-land has a
residence on the southern portion. The development policies
in the City's plan recommend the use of office-commercial
o rmul ti--fami 1 yzonin gdis t r i c t s tose para teco.mme rc i a 1 an d
single:family zonIng districts. The Land Use Plan
refl~c~s.;a~ office commercial area to the east of ti~e
subjec~tract. Staff would recommend that bufferin!g with
A-Pzonill,goccuron Lot. 3, as reflected on the plan: and as
establisljed to the north and south.
The extension and widening of Miller's Lane is reflected on
the City's .thoroughfare plan.
Staff... .recommendsapprovaI:
I. The request is in compliance with the land. use
plan.
2. The request is consistent with area zoning patterns/actions.
.Approval of this request will move an existingR....l/C-l
conflict eastward. Staff does not consider this to be a
serious problemas the conflict already exists. The
conflict can be eliminated in the future by est.ablishing the
A-Pbufferasplanned.
Additional Staff Comments and Update (2-28-86):
This request was tabled by the Commission on February 20,
1986. The request was tabled to allow the applicant and
area residents to discuss buffering the residential area
east of the subject tract.
In addition to the above, the Commission has requested
response from the Engineering Department with respect to
floodplain...modificat.ions in the area. and from .the City
Attorneywi~h respect to "buffers"asa condition of
rezoning. Attached are copie.sofcorrespondence forwarded by
the EngirieeringDepartment.TheCityAttorney is reviewing
recent cases involving conditions placed on rezoning actions
and will forward a memo to.theCommissionat or prior to the
meeting.
Staff has received no response from the applicant to date.
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P&ZMinutes--me.eting, of 2--20-86: (Minutes from meeting of 3-6-86 wi 11
be.. furnished.. .aff.er meeting ...and preparation of minutes.)
AGENDAITBMNO.3.86-102: . A public hearing on the question of
rezoning Lot 2 Lakeview Acr.eslocatedonthenorth side of Millers
Lane,appr()xiaately 400 feet east of Texas Avenue, .froJlR-l Single
Fa.ily.ResidentialtoC-l General Co_ercial. . Applicant is W. C.
(Cull y ) Lipsey, .'Trus tee.
Mr.Callaway:d~scri.bedthetract,pointedoutthat this lot is under the same
ownershipaslan:tidjac.entpartofLot 1, which is zoned C-l, . explained. area. zoning and
land us~s'S1:1diinformed the Commissioners that the subject tract includes residential
uses wi~h.th~t>8.lEiDce.being vacant. He then stated that the Land Use Plan reflects
tllisarerasi:C()JJllll~rcialwi.th office commercial uses to the east, reminding them that
commercia~~pntng>hasalreadybee.nestablishedto the north and: to the south of this
tract. .~~~~~~e;~that staff recommends approval of this request as the request is in
comp~i~ft~~~~,t~e land use plan as well as being consistent with area zoning
patt~rn~r~ct~?~.He pointed out that staff's. only. concern with this request is that
approva~;io~ j~~(~ipmove an existing R-ljC-l conflict eastward,howeverex~lained
thats~~f~:.~~~:;;'..p~tconsider this to be a serious problem as .the c,onflict. already
exis~s :~~ ,)<;~b~ieliminated in the future by establishing the A-P buffer as planned
to tJ:ielEtMt er,this property. He then pointed out an alternate would be to establish
A-Pzolj1~.p.g- opLot2, but staff does not believe that would be the best way to handle
bufferirig.
Mr.Wen~feraskedifany adjacent property owners had voiced concern over this
request :iafterreceiving notification and Mr. . Callaway. replied that he had been
contact~,~onlybyone adjacent property owner. Configtlration of the intersection of
Millers ii~~eITexasAv.enue/F.M.2818was. discussed. with Mr. .Callaway informing them
thatth~!I,Mill:ersLanesideofthatintersectionwill not be developed like the
F.M. ~81~'isid~ <;If the intersection, that Millers Lane will not be able to handle the
amoUl)to:ft;rafi'ic that F.M.28l8 handles even after widening takes place, but will
carrr al~af~~y load similar to that of Southwest Parkway. Mr. MacGilvray asked if
the~e .~si~YI~dvEiDtage t.o .acommon ownership of land in a rezoning request and Mr.
Callaw~YfJ~ep~i~dthat information was.given only asa fact, and the only advantage
woul<,i.~~ithatJtherewould be twice the amount of frontage to work with in developing
the 1arid!~ Mr. :Paulson arrived at this time.
The public hearing was opened.
Switzerpeason, 2502 River Forest, Bryan, came forward, explained that he is a
partner '.intheQWnership..ofthis land and further explained that at the time this
partnensfiippurchasedtheland, it was believed that ithadalreadybeen.zonedto C-l.
He the~~tate~that because the land is. located along Millers Lane, . which is scheduled
forwi~e~ing ,f:lDd.connection to ..Dartmouth,. . it is prime commercial. property. He
indica~epthat right-of-way for the widening of Millers Lane had already been
dedicated.
JohnJor~an, .117 Millers Lane came forward, stated he o.wnspartofLot 3. on the east
sideof~hesubject lot, that he lives there and has plans to continue to live there,
so basic~llY :()pposes this request. He went on to explain th~t there is a lake on his
lot,theqsoun~eofwater to which has b.eencut off by excavation and fill of the land
to the n~,rthiofhistract, therefore the only source of water for his lake now comes
fromtheirunofffrom land to the west of his lot, and he fears this runoff will be
stopped, or if it continues to run into his lake after commercial development of the
tract, will be water ofa poor quality. He also explained that he is aware of plans
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to widen Millers Lane, and further that he has already dedicated right-of-way for
tllatproject.
Mr.Wendlel'ssked.if a buffer zone was required on Lot 2 between the.commercial
development and Mr.. Jordan's lot would he be amenable to the change to which Mr.
JordanrepliedthatA-P zoning adjacent to his residence would be acceptable,but
residential development would be preferred.
Discussion followed regarding how excavation had happened in the floodplain on the
land to the north of this area, with Mr. Paulson explaining that as he understands
it,.. the developer of thatland.hadbegun to haul in fill dirt without having a
permit, but: tll..(;!Cityhad shutdown that operation. He further explained that he does
not thinktl1atdeveloper is living in this area anymore and that the land has been
forclosedoI1now~ .
- -
City Attorney Locke-addressed.the two separate statements .from.thepublic concerning
their ttd~di~ationofright-of--wayftforthewideningofMillersLane, explaining that
theCityhasiPurchased all right-of-way it has for that project, and no land was
given to the Pity.
Clint Bert.rand, 120 Millers Lane came forward to state that he has no serious
opposition toithisrequest,.butthat he does believe a buffer is appropriate between
commercial de~elopmentand developed residential land.
Mr. Jordan came forward again to state that he has no idea what impact the widening
of Millers, lane will have on his residence, but that he does prefer residential
development, b:utinlieuof that, a buffer on Lot 2 would be better than having
c,ommercial' der,elopmentrightnext to his residence. He added that if the value of
hisresicienqe,jis. destroyed by the impact of a wide street and commercial development ,
he may chan~e,:hismind in the future, but at this time, he lives here and is
a:ddressing an,existing situation.
Mr. Deason came forward again to point out that there is_existing cOllBllercial zoning
directly :actos:sMillers. Lane from Lot 2, and this rezoning would ttsquareoffff a
commercial area. He added that there is not enough land for a buffer zone on Lot 2.
TheCommiss~on: . and staff discussed the types of buffers and minimum widths of buffer
zoningdistIlip[ts, Mr. Brochu asked if the City had any recourse in getting the
unlawful !1~d~1.11c()rrected to the north of this property. City Attorney Locke
stated that ,peR8use the City participates in. the Federal Flood Insurance Program, it
could se~k ~:injunction against the party who carried in fill. . She explained that
the Engineerint?;Departmentwouldhave to evaluate the situation and advise her as to
the best ,solution. Mr. Paulson pointedout.that the party who caused the problem is
no longer in this area, or even in this state as far as he can ascertain.
More discU$s1ol1f'ollowed concerning the appeal of establishing a buffer zone, what
kind ofbuffef:orscreeningwouldbe adequate between C-l andR--ldevelopments, with
City Att()rney'Locke stating that there is a possibility that a utility easement which
is normally 20 feet in width could be utilized fora greenbelt buffer.
Mrs. Stallings then made a motion to approve this request. Mr. Brochu seconded the
motion. Mr.Wendlerstatedhedisagrees>withthis request, and further that he does
not believe the. required 6 foot screening fence would be an adequate buffer. Further
discussion followed regarding the requirement of the Engineering Department of
compliance. to the P.R.C. Drainage statement, with Mr. Paulson pointing out that the
City actually has noway to enforce this requirement if a party wishes to defy
4
instructions, .asno .ordinanceaddresses that requirement. Council Liaison Tongco
asked from the audience <if a 50-60 foot buffer of natural woods would be buffer
enough. Mr..MacGilvrayconcurred that would be better than ...pavementadjacenttothe
property line, but added that he does not have a good width to suggest. City
Attorney....Locke.stated. ..if. that ..requirement. ..is....going...to...be included ..with..a ...rez.oning
recommendation,.....s~e would .like......to ..have.the.. opportunity.. to .....addressthe. issue through a
memo, and for the rezoning to be considered at a <later date unless the owner of the
land is interested inestabl ishing that sort ..of buffer voluntarily.
Votes were castoD.:themotion to recommend approval of this request., wi ththe motion
failing by a vote of 2-3 (MacGilvray, Wendler and Paulson against).
Mr. Wendler the~()f't'ered amotion totable this item to allow time for the interested
parties to' sat~~lfrthequestions.of adequate buffering and draillagr}o adjacent lots.
Mr. Brochu,secopded, the motion to table; motion carriedunanimously/{5-Q).
P&ZMINUTES 3....6-86:
AGENDA .. IT:BMNO.5: ... 86-102:. Reconsideration of the . question of
rez oning,Lot<2Lakeview Acres located on the north side 0 fiMi 11 e r s
LaneappriQxi.~tiely400feet e.8st.. of Texas Avenue from ...R-l.Single
Family! Rei~ident,ialtoC-1 General Co_ercial. Applicant is W. C.
Lipsey, Tirustee.. (Iteatabledat .eeting on 2-20-86. )
Mr. Wendler-made,amotion to take this item off the table. Mrs. Stallings seconded
themotion:whichcarried unanimously (7-0).
Mr. Callaw~Ybrietllyreviewedthestaffreport,concludingbystatingthathe has not
beenconta9tedby'eitherthe applicant or the adjacent neighbors,but:thathe noticed
that both ~heappl!icant'srepresentative and the immediate adjacent neighbor, Mr.
Jordan, are in the audience.
Mr.MacGil~rayreferredto a .confidentialmemofrom the City Attorney, and stated
that he does not completely understand the memo.
Mr. Kaiseriaskedifanyoneinthe audience would like to comeforwardito explain any
additional:devel()pments which may have taken place since thelast.mee~ingwhen this
item wast~bled. ... Switzer Deason, a partner in ownership of this tracii came forward
asrepreseqtingthe .applicantandexplained that a meeting has bee.n h~ldwiththe2
localresi~entswhohad opposed this request, but no compromise had b~enreached and
the aJ?plic~t still prefers C-I zoning on the tract. He.reiterated staff's
recomme'P~at!ion of approval of the request because it is in compliance !wi th the Land
Use Plap.an~is also consistent with area zoning patterns/action, with the buffer
area to~b:eestabli~hedto the east as previousl3' planned. Repainted ioutthat any
bufferipg orthi,.~ractwould.reduce the depth. of the tract and hinde~the type of
devel()pment!i~esire~.. He further ~>ointedout that the tract to the north on which
work in the: flood plain had been done without a permit is not under consideration,
nor is. ita' part 'of this rezoning request.
Mr. Kaiser asked if there is no change being made in this request and Mr. Deason
replied that is correct, adding that while a neighbor has indicated a buffer in
addition to the required fence is preferred if the tract in question is zoned C-l,
the width of a buffer to comply with his wishes has never been agreed upon with the
applicant.
Mr. MacGilvraypointed out that thedesired buffer would preserve the existing trees,
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and the drip line of those trees could probably be used to make the determination of
the width of the buffer. Mr. Deason stated that Mr. Jordan's house is approximately
500 feet from-~the--property 'line, and issos ituated tha thecannot.seethe propert y
line fromthe,hoUl;e, therefore he (Mr. Deason) does not. believe the buffer should be
taken fromLot2,<but rather from .thetractadjacent and to the east of this tract.
John Jordan then qame forward and stated that he can indeed see quite a bit of the
property linefromhish~use. .. He added that reference had been made to matters of
d.rainage atthelliSt meeting, but that he is primarily concerned with some type of
landscaped buffer of approximately 6-10 feet in width to separate his lot from any
adjacent. cODDlle.r<~i~lidevelopment'.and the ex~sting trees are primarily winged elms
which.will..gro"'8Ildwouldmakeajnice. landscaped buffer. area. whatever. develops on the
adjacent.lot..~e/p()inted out ~~~t the request and staff's recommendations ask for
hisprop~rtY~~~~.r'Ye as a buffer between commercial development and rema~ning
r~sident ial~~~~~~p:Qlent, andhe!4oesnot think his request of ...~6footn_lan<4;;caped
buffer .isunreasonable.
Discllssionfollowedconcerningt.helocation of the tree line,. whenC-l andA-P zoning
t()the southfl.l'ldtothenorthwere established and if the two types of zoning came at
once in both instances, with Mr. Callaway indicating they did.
Questions th~nweredirected to Assistant .. City Attorney Elmore as to whether or not
impqsitionof'~39.-50 foot buffer as a condition within a C-l zoning district is
allowedbyo~1illanceto which Ms. Elmore replied that a landscaped buffer should not
berequired.:~:Sihe.wasthenaskedif that could be a condition in the proposed C-PUD
z9ning distr~!~~towhich she r~plied that it could be under that district, but it is
nqt iallowe~~~:!:tJ:t$current Zoni~~Ordinance in a C-I district. She was then asked if
~.~ddit:i1oll~~ni~:etl>ack could be i~~quired and both Ms. Elmore and Mr. Callaway replied
t~at devia~i~Ri!!f'r?~ the requir~~nts set forth in the. Zoning Ordinance is not allowed
arrd 'theon~Yi'i~fl~~() make these :qpnditions of rezoning is to change the ordinance.
MI[. jCallawtilYli"~~~}()n to explain ,~hat the screening fence is required by ordinance to
s~parate c0~~fA~.tt~developmenti lrom residential development, and this fence should
be alongthe:'.I-i~pperty line and not setback from the property line.
Mrr.MacGilvra.~!j~~e~asked Mr. D~ason if he would be willing to offer a buffer by
offs:ettingth~'i:f~nee6feet inside his property line to protect the tree line without
i ~ b,eing a r~~~~r~~nt. Mr. De~:;onsaid he would not because he cannot speak for any
f~t~re owner~!i'~~:t~at tract, ad~ing that if this is desired, it should be required
either by ord~Plil'lceor as a.condition to rezoning.
Discussionfol~owed regarding existing rezoning ordinances which contain conditions
attached to t~~actualrezoningj. ... Mr. Callaway explained that any previous rezonings
in whichbuff~~ingwasincluded,~nthe ordinance itself came as a result of the
applicantvol~tarilY offering particular buffering to make the request more
acceptable, o,r-'!J1hich came as the result of a compromise between the applicant and
op.ponentsof .~~e original rezoniIlg request.
Mr. Kaiser asked staff to summarize. objections to anyC-l/R-l conflict, but before
staff replied, Mr. MacGilvraystated that the main concerns to this rezoning request
appear to be c(j):ncerningdrainage and screening, as he does not believe that Mr.
Jordan completely opposes havingC-l zoning next to his lot, but rather prefers if it
is rezoned to Gonunercial, that at1lditionalbufferingisrequired on that lot rather
than onhisR-1 lot.
\ Mr. Kaiser then asked Mr. Jordan if he opposes this request and Mr. Jordan replied
thatassWDinghecould work out a satisfactory agreement regarding location of the
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.screening fence and preservation of the tree line, he thinks it is providential that
Lot2willbeC-l,but he still would prefer some type of buffering.
Council Liais()llTongco pointed out from.theaudience.that.ordinance does not allow
the Cityt() require that type of buffering, and if Lot 2is rezoned, the. City cannot
guarantee thatanyf'l1ture owners ,would agree to. more buffering than. is required by
ordinance. Mr ~K.aiser said anything can be . controlled through. deed restrictions.
Mr.MacGilvraY~d.iMrs. Stallings simultaneously pointed out that the City cannot
enforce deedrf!~trictions. Mr. Wendler asked what would happen if this request is
deniednow~~,;\th(!Parties worked out any problems they may have. Mr. Kaiser stated
that the Ci~Yt~~tibea party to compromises betw~en the . applicant and Mr. Jordan,
but itc~~c~0P~~r.reject the rf!quest now without forcing them to strike a
co~promise?JI.~~3'ETfichan agreem~ntprior to consideration byth~City. ,Mr. Wendler
stated .he iljJ':cr~~f~1]P~d by the established .df!pth of commercial:?;QP.~ngalong Texas
AVNnue'and~:y-~?i~tJnuation of that may be forcing a less., than.pEfrfect relationship
bet~een~roJ?~~~}"~~rs. Mr. Kaiser stated the use is R~lwit' .,~R-l/C-l conflict
on i~sides~f}~~e~1.1bject tract ,and that in this case the R~l.al~Of;t represents an
intirusion iptO:fiC....larea, so the question is whether C-I is aib~tteruse with the
R-l/C~l(l:on~I~A\tplllY on one side of .Millers Lane. Mr.MacGi~y~~ysaid the answer is
cle~ran(i~~a~7vf!~Mr. Jordan recognizes that area will.bea<p9~e'i'cial .area in the
fut~reand~~t~gef; ,not oppose 'the request but is asking formof~"quffering than the
req~ir,ed6f()ot<scI1eening fence. He continued by stating that no one is claiming
this should be and remain to b.e R---l.
Mrs. Stallings made amotion to approve the reque.stasstated. This motion died for
lack of a second.
Mr. Wendler made amotion to table this request again. This motion also died for
lack. of a.second.
Mr. Brochu made amotion to deny this request. Mr. MacGilvraysecondedthe motion
and. then explained his reason for seconding the motion to deny is because this
Commissionhas:f()und itself in an embarrassing position partially because of the
re~lationsot1~he . Z()ning Ordinance and partly because of a lack of a compromise
beillg.reachedbf;!tweentheapplicant and a residential property owner who should have
fair treatment! by the City. Mr. Brochu agreed, stating that he does not want to send
a message to the Council that this lot should remain R-l, but he does not believe it
shou.ld berezoned..toC-l. under the circumstances .
Mr. Kaiser stated that should not be included in the motion, but that the motion to
deny has been offered and seconded because of this Commission's concern that the
required screen fen ceo may not be an adequate buffer between R-I andC-l zoning but
the.ordinance 1lsinadequate in allowing the requirement of any additional buffering.
Mr. !MacGilvray said .hewantedalsoto let Council know that this Commission is not
rec()mmending that Lot 2 . remain zoned R-l. Mr. ...Kaiserdisagreedwith him. Mr. Brochu
ask~dwhyMr. <Kaiser disagreed, adding that this Commission believes the lot will
everituallybeC__land should beC-l and the Council should know this. Mr. Kaiser
stated the basis of denial is not to force parties to .reach a compromise but rather
because of the C-I/R-l conflict.
Votes were cast and the motion to deny the request carried by a vote of 5-2 with Mrs.
Stallings and Mr. Wendler casting dissenting votes.
Mr. Deason . asked why lhis...Conunission .hasturned. down the ..request. Mr. Kaiser
explained it was denied because of the R-ljC--l conflict and not because of ordinance
failure to deal with that. Mr. Deason stated that he thinks that is really the
7
Commisslon'sproblem-thattheordinance is inadequate. Mr. Kaiser said that is not
stated as part of the motion. Mr. Deason suggested that if the ordinance is changed,
the problem would be removed. Mr. Kaise-rstated that .wasnot diScu.ssed,butpointed
out that any problems could be worked out by the parties involved and then brought
back tothisCommission>for consideration.
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