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HomeMy WebLinkAboutCORRESPONDENCE CV The Ciq of College Station, Texas Embracing the Past, Exploring the Future. Legal Department P.O. Box 9960 • 1101 Texas Avenue • College Station, TX 77842 • (979) 764 -3507 • FAX: (979) 764 -3481 www.ci.college- station.tx.us MEMORANDUM To: Lance Simms, Building Official CC: Glenn Brown, Assistant City Manager Kelly Templin, Director of Development Services Natalie Ruiz, Development Review Manager From: Angela M. DeLuca, Assistant City Attorneyq 4t1O Date: March 2, 2004 Re: Zero Lot Line / Ordinance Amendments QUESTION PRESENTED: Whether ordinance amendments that prohibit combustible materials located within three feet of adjoining property and allows either an 18 or 24 inch overhang beyond the property line on zero -lot line development resolves a conflict between the IRC and UDO. Whether a note may be placed on a plat referencing the prohibition of combustible materials located within three feet of adjoining property on zero -lot line development. FACTS: SECTION R302 OF THE INTERNATIONAL RESIDENTIAL CODE ( "IRC "), which has been adopted by the City, prohibits building components, such as eaves or overhangs from projecting beyond the property line. The IRC also requires exterior walls located less than 3 feet from a common " property line to be of one hour fire resistive construction. However, the City's UNIFIED DEVELOPMENT ORDINANCE ( "UDO ") conflicts with the IRC because it allows eaves to project a maximum of 18 inches beyond the property line in zero -lot line construction. The residential code in effect prior to the adoption of the 2000 IRC did not address and therefore did not expressly prohibit, projections beyond the Home of Texas A &M University Home of the George Bush Presidential Library and Museum w property line. Consequently, until the 2000 IRC was implemented, builders were permitted to construct houses with eaves that project beyond the property line in zero -lot line construction. As a result of the new restrictions in the IRC, builders must now request a variance from the City's Construction Board of Adjustments and Appeals in order to project an eave or overhang beyond the property line. Due to the conflict in the ordinance, Development Services drafted proposed IRC and UDO amendments and submitted them on an agenda to the Construction Board of Adjustments and Appeals for its consideration on February 2, 2004. The proposed amendments provided for: (1) the creation of a private fire protection easement recorded on plats, and (2) a maximum 18 inch overhang beyond the property line. These amendments, agenda and staff reports were not sent to the Legal Department until the day prior to the scheduled meeting and so I was unable to give them an in -depth review prior to the meeting. However, Legal recommended the option of amending the ordinance to provide that no variance could be granted (within a certain amount of feet) of the setback in zero lot line construction. Both options were presented to the Board. A motion was passed directing Development Services to draft an ordinance amendment detailing an easement of some sort, as well as an ordinance detailing the no variance concept for existing lots. (See, Construction Board of Adjustments and Appeals taped minutes) ANALYSIS: Since the meeting, I have reviewed the IRC and UDO in more depth. There are several options to resolve the conflict: The first option limits the distance for which the Zoning Board of Adjustment may grant a variance when considering variances from the setback in zero lot line construction. The distance would provide enough space between the properties to ensure adequate fire protection. In addition to the "no variance" provision, an ordinance amendment that prohibits combustible materials within three feet of adjoining property in zero lot line construction would be included in CHAPTER SEVEN, SECTION THREE OF THE CITY OF COLLEGE STATION CODE OFORDINANCES. These two amendments would prevent structures within three feet of an adjoining property in zero lot line construction and address the issue of fire protection. The City's Code Enforcement Department would have the ability to enforce any violations. This option allows homeowners and builders to build on zero lot line without having to obtain a variance and provides fire protection for existing homeowners on a zero lot line. A second option as proposed by Development Services is a nine (9) foot "private maintenance /fire protection easement" along the side lot line of zero lot line properties which would prohibit combustible construction or the storage of combustible materials within the easement, with the exception of a wood fence. While this proposal may provide a solution for homeowners/builders wishing to build on zero lot lines in the future, it does not resolve the fire protection for existing properties located on a zero -lot line because there is no prohibition on the placement of combustible materials in this area on lots that already have homes constructed on them. Further, the maintenance easement proposed is a private easement. Therefore, Code Enforcement does not have a right of access. Without a right of access the City would be unable to easily enforce the prohibition of combustible materials in the private easement. The third option is to adopt both proposals. The "no variance" provision provides a remedy for existing homeowners on zero -lot line and Development Services' proposal provides a solution for future homeowners on zero -lot lines. Code Enforcement could enforce an ordinance amendment to Chapter 7 prohibiting combustible materials within three feet of adjoining property for properties that are existing, and for new properties as well It also guarantees that no structure would be built within three feet of an adjoining property in zero -lot line construction and addresses the issues involved with fire protection. Without this amendment, the Planning and Zoning Commission (P &Z) may grant a variance under the UDO that allows an individual to build within three feet of an adjoining property. City staff may recommend against such a variance, however, the Commission is not obligated to follow staff's recommendation. The benefit of having a maintenance /fire protection easement provision is that it would be included on plats, which provides notice to developers and builders. However, this easement would be a private easement which Code Enforcement could not access. This option also does not address existing zero -lot line homes. While the notice issue may be addressed, this option does not address how Code Enforcement could access the property, nor does it address a solution for existing zero -lot line homes. CONCLUSION: The Board directed staff to draft an ordinance amendment that would address existing and future zero -lot line construction. Other related issues included requiring a note on the plat that would provide notice to developers/builders of the ordinance prohibiting combustible materials within three feet of an adjoining property. Notes on a plats hould be limited to related matters such as building lines, setback lines, lot lines, etc. Therefore, you may not lace a note on a plat referencing the prohibition of combus 1 e materials located within three feet of adjoining property on zero -lot line development. This should be placed in the ordinance as a defined term when you reference the easement. Some deficiencies in the proposed draft recommended by staff include the lack of definitions, addressing who is going to enforce the prohibitions if they are located in a private easement, and not providing a remedy for existing homeowners on zero -lot lines. Maintenance /fire protection easement, non - combustible and other necessary terms should be clearly defined in any ordinance amendment. In the future, please provide any legal issues and code amendments sufficiently in advance so that our respective departments can coordinate and work through all issues prior to placement on any board /commission agenda. If you have any questions, please feel free to contact me. MEMO To: Angela Deluca, Assistant City Attorney From: Lance Simms, Building Official Date: 4 March '04 Re: Response to Memo Dated 2 March '04 Cc: Kelly Templin, Director of Development Services Natalie Ruiz, Development Review Manger Eric Hurt, Fire Marshal Glenn Brown, Assistant City Manager Roxanne Nemcik, First Assistant City Attorney Harvey Cargill, City Attorney I was most disappointed after reading your four page memorandum concerning the review of the ordinances intended to address zero lot line development issues. The legal review associated with this issue has proven to be extremely frustrating and an unnecessary waste of staff's time. Untold hours were spent drafting your four -page memo when a phone call or simple e -mail would have served the same purpose. In turn, Development Services staff has spent unnecessary time on this issue as well. The fact that I feel compelled to respond to your memo in writing is a prime example of such waste. When you stop and think about it, what should have been a simple code change has turned into a ridiculous situation. We are no closer to a solution now than we were a month ago! This is especially disturbing to me since the Building Division is currently in the process of reviewing the 2003 I -Codes for eventual adoption by City Council. That process is monumental when compared to the zero lot line Memo Response - Pg. 2 issue. If the past month is typical of the legal review, the 2003 I -Code adoption process will be a long, arduous process. However, I am confident that we can do better. The adoption of the 2000 I -Codes was managed in timely manner and I see no reason why the 2003 I -Code adoption process can't be handled as efficiently. Your memorandum is replete with inaccuracies. Please allow me to address several as they appear in the "Conclusion ": 1. In the second paragraph you state, "Therefore, you may not place a note on a plat referencing the prohibition of combustible materials located within three feet of adjoining property on zero lot line development. This should be placed in the ordinance as a defined term when you reference the easement." Response - Natalie clearly defined a Maintenance /Fire Protection Easement in the ordinance submitted for legal review (see proposed change to Article 11.2, UDO). The ordinance submitted for review also prohibits the storage of combustible material (see proposed change to Article 8.2 C 2, UDO). 2. In paragraph three you cited several "deficiencies" in the ordinances drafted by staff. Among them you listed ...not providing a remedy for existing homeowners on zero lot lines ". Response - The IRC amendment submitted for legal review would provide for projections in association with zero lot line construction in all cases (existing undeveloped lots and future zero lot line developments). Also, my staff report (sent to you via e -mail on 1 March) clearly outlines the case for our approach to providing a remedy for existing zero lot line developments. 3. In paragraph three you also state that terms such as "maintenance /fire protection easement" and "noncombustible" should be clearly defined in any ordinance. Response - Again, Natalie clearly defined a Maintenance /Fire Protection Easement in the ordinance submitted for legal review. The Term "noncombustible" is already defined in the 2000 IRC (see chapter 2). Do we really need to make that part of the ordinance? After reading your memorandum, one must question weather you read the information submitted for review. If you did read the information, one must question your grasp of the issues. Memo Response - Pg. 3 The last paragraph in your memo states, In the future, please provide any legal issues and code amendments sufficiently in advance..." The Ordinances addressing the zero lot line development issue was submitted to you and Roxanne on 6 February. You have been aware of our efforts since before the last Construction Board meeting on 2 February. A month should be more than adequate time for a review of the legal issues related to a simple code amendment. Development Services strives to provide efficient customer service and is responsive to the needs of the community. Additional time results in a delay that cannot be tolerated. In conclusion, I suggest we work together in a spirit of cooperation. I stand ready to work with you as a team to resolve issues in a timely manner. Always feel free to pick up the phone or come talk to me when you have questions or need additional information. Internal strife consumes valuable resources in both departments and negatively impacts our community as a whole.