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HomeMy WebLinkAboutMinutesZBA Minutes August 1, 2000 AGENDA ITEM NO. 2: Consideration to rehear the rear setback variance at 216 Stuttgart, Lot 9, block 25, Edelweiss 7-13. Applicant is W.R. Tubbs. Staff Planner Laauwe stepped before the Board and explained to the Board that this meeting is not a public hearing. The applicant does have a right to have both cases reheard as stated in the section VIII. — of the ZBA Rules and Procedures: O when a request is denied, the applicant must ask the ZBA within ten (10) days to consider the request again at a future date. O within the 10 (10) days, the applicant must ask the Zoning Official to put the request on the next available ZBA Meeting Agenda O Applicants must have the ZBA's approval to present the same or similar request regarding the same property after denial of such request by the ZBA. ZBA approval to rehear the request requires a motion to rehear, a second to that motion, and passage by a majority of present members. Mr. Tubbs did submit a letter to the Board dated July 26, 2000 requesting the rehearing. Mr. Lewis questioned the letter sent from the City to Century 21 Real Estate dated July 19, 2000. Ms. Laauwe explained the letter as one that is given to the title companies stating the situation and that the city does not have any immediate plans to take enforcement action of the Boards denial or to prevent the sale of the property. Ms. Laauwe stated that she believes the Title Company accepted the letter but the lender did not. Mr. Lewis asked if the wording of the letter is the wording for previous letters. Ms Laauwe replied yes. Mr. Lewis asked if city staff was aware of any instances where a Title Company or lender had issued a title policy or loan after receiving a letter with this wording. Ms. Laauwe answered that these type letters are written only for small encroachments and not for encroachments of this size. Ms. Laauwe stated that the lenders usually go through with the sale of the home. The applicant, W.R. Tubbs stepped before the Board and was sworn in by Chairman Bond. Mr. Tubbs handed the Board Members, and explained a packet of information. Letter from First Federal Savings Bank — homeowner approved for mortgage financing with an acceptable survey and title commitment. 2. 3 petitions from area homeowners that do not dispute the variance for 214 & 216 Stuttgart. Letter from Brazos County Abstract Company to the City Planner Laauwe and the reason the Underwriters are not willing to provide express insurance as to violations of encroachment into setback lines. Mr. Tubbs told the Board that he has built 37 homes in the B/CS area and he has not had an encroachment. Mr. Tubbs ended by telling the Board that he is making every effort to assure that this does not happen again. Mr. Richards asked if First Federal was the only lender that he approached. Mr. Tubbs replied that it is not. First American Bank has been approached and they are working to find an Underwriter that will accept this. Guarantee Federal has also been contacted. Mr. Richards stated that looking at the survey he finds it difficult to see how the house and driveway could be placed on the lot without some encroachment. Mr. Tubbs replied that it was originally achieved with a 25 - foot rear setback and in fact that was his initial goal. He drew the initial site plan. The left side of the home was pulled over the 7.5' setback line on the left side which allowed it to slide down towards the 25' front setback line which definitely allowed it to fit on the lot and still give the minimum of 20' in radius on the front side entry garage which allows for accessibility. Mr. Tubbs stated that he likes to see 24' and it definitely would have fit he had of know with out a doubt that it was a rear setback of 25'. Mr. Tubbs ended by telling the Board that if there is a rehearing he can produce survey showing the home fitting in the direction. Mr. Hill asked what express insurance is. Mr. Tubbs replied that it is his understanding that is states that they are willing to take the home under special provisions. Mr. Tubbs told the Board that his realtor could better answer that question. Chairman asked Mr. Tubbs if there is any information that has been presented that was available to him at the prior hearing. Mr. Tubbs replied yes. Linda Stribbling of Century 21 stepped before the Board and was sworn in by Chairman Bond. Ms. Stribbling told the Board that other lenders were sought as well as going to another Title Company. Ms. Stribbling told the Board that a buyer is willing to accept the property the way it is, and two title companies are saying they absolutely can not close with the variance. The Underwriters for the four different banks that were approached said even if it did go through this time with this particular buyer, they will have equally a hard time if the home was sold again. Mr. Hill asked again what is express insurance. Ms. Stribbling replied that she is really not sure but she does know that title companies give express insurance in instances when it is not complete insurance. Ms. Stribbling again told the Board she really does not know the answer but she will get the answer for the Board if the case is reheard. Chairman Bond asked Ms. Stribbling what other title companies were contacted. Ms. Stribbling replied that University Title Company. Chairman Bond closed the public hearing. Mr. Sheffy stated that the Board is not here to teach anyone a lesson. The Board is charged to uphold the ordinances of the city and provide variances if need be. Leslie Hill made the motion for the Board to rehear the case for the property at 216 Stuttgart. Graham Sheffy seconded the motion, which passed (5-0). ZBA MINUTES July 18, 2000 AGENDA ITEM NO. 3: Consideration of a rear setback variance at 216 Stuttgart, lot 9, block 25, Edelweiss 7-13. Applicant is W. R. Tubbs. Staff Planner Laauwe stepped before the Board and presented the staff report. Ms. Laauwe told the Board that the applicant is requesting the variance for an error made during construction. This case involves a construction error made at the site plan stage. The applicant designed the home believing that the 10 -foot public utility easement (PUE) line shown on the plat was the rear setback line. Unfortunately the Building Department, during the plans review process, did not catch the error. During routine inspections, an inspector did request that the setback lines be laid out with a string line. However, thinking that the PUE was the setback line, this was also done in error. The realization of the mistake was not made until the certificate of occupancy was issued. The result of the error is that a 98.80 square foot section of the back east corner of the home is encroaching into the rear setback. At its furthermost point, the corner extends to only 15.92 feet from the rear property line, thus the applicant is requesting a rear setback of 9.08 feet. The applicant offers a special condition of the error made during the construction process. In addition, the Board may consider the lot's irregular shape as a special condition. The construction of the home is complete, thus the corner of the home would have to be removed. The only alternative to the variance is to tear down the corner of the home that is encroaching into the setback. The City is not under the current policy of rectifying setback violations. If the variance is denied, any future seller of the home would have to obtain a letter stating that the City does not intend to enforce the setback at that time. The applicant has stated that the backyard is large in proportion and that the encroachment will not be a problem to the safety, access or the aesthetics of the subject property or surrounding properties. Ms. Laauwe ended her staff report with pictures of the property. Mr. Hill asked Ms. Laauwe whose oversight was it that allowed this encroachment to occur. Ms. Laauwe replied that the building inspector missed it but it is ultimately the builder's responsibility. Mr. Hill asked if the PUE was shown on the drawing indicating the rear setback when submitted for permit. Ms. Laauwe replied that it is her understanding the PUE line was seen and it was believed to be the setback line. The inspector who inspected the slab thought it was a little off and he asked the builder to put out the string lines to pull the building setbacks, but again the builder thinking the PUE was the setback line, that was the setback line he drew. Mr. Lewis referred to the drawing that was turned in for the building permit. The drawing indicating the position of the house on the lot. It showed the 10 foot PUE but not the rear setback line. Ms. Laauwe replied that it did not show the rear setback Mr. Lewis stated that it is hard for him to understand if the line had been indicated, it would have been obvious that the house would not fit in that position on the lot. Ms. Laauwe explained that the PUE is located on the plat but not setbacks. Ms. Laauwe guessed that the plan reviewer saw the dash lines of the PUE and assumed it to be the rear setback line. Mr. Richards asked what would the recourse be if the variance is denied. Ms. Laauwe replied that the home would be considered non -conforming. At this time the builder would not be required to tear down the corner of the home that is encroaching. It will make it more difficult to sell the home because each time the home sold the city would have to do a letter to the title company stating the city is aware of the encroachment but at this time are not going to enforce it. Chairman Bond opened the public hearing. W. R. Tubbs, the applicant, stepped before the Board and was sworn in by Chairman Bond. Mr. Tubbs told the Board that setback variance being requested is a mistake on his part and he takes full responsibility. Mr. Tubbs stated he submitted the application thinking the rear setback was a 15 -foot setback and not a 10 -foot setback. The 10 -foot PUE was noticed but the slab was set up at a 15 -foot setback. Mr. Tubbs explained to the Board that when construction plans were drawn the line was not drawn on the site plan. Mr. Tubbs added that he had drawn the plans himself. Mr. Tubbs stated to the Board that his construction company as well as the city missed that error. Mr. Tubbs told the Board that it was he who caught the encroachment when he submitted the plans to the city for the construction of the home next door. An architect he had hired prepared that site plan and it did show the 25 -foot rear setback. Mr. Tubbs ended by telling the Board that he then immediately filed for the variance. With no one else stepping forward to speak in favor or opposition of the variance, Chairman Bond closed the public hearing. Mr. Hill made the motion to deny a variance to the minimum setback from the terms of this ordinance as it will not be contrary to the public interest due to the lack of any special conditions, and because a strict enforcement of the provisions of the ordinance would not result in unnecessary hardship to this applicant, and such that the spirit of this ordinance shall be observed and substantial justice done. The motion failed with a lack of a second. Chairman Bond reopened the public hearing so the applicant could further be questioned. Mr. Lewis asked Ms. Laauwe how could a building permit could get approved without the builder knowing what the correct setback requirement is on a lot. Ms. Laauwe replied the plan was submitted and missed by the plan reviewer. Mr. Lewis asked if rear setbacks vary in R-1 zoning. In R-1 zoning is the rear setback always a 25 -foot setback. Ms. Laauwe answered yes that is correct with the exception for garages which is 20 -feet. Mr. Sheffy referred to the staff report concerning responses received. Mr. Sheffy asked who received the phone calls. Ms. Laauwe answered that she received the calls. The concerns were from area neighbors because of this being a newly developed neighborhood. The concerns were curiosity because of the public hearing sign on the property but one caller was opposed to the variance due to concerns relating to neighboring property values. Mr. Lewis asked Ms. Laauwe if the request is denied, he knows the city is not going to enforce the removal of the structure, but what will happen. Ms. Laauwe replied that a letter would be written to the mortgage and title companies stating that the home is non- conforming and the city does not have any interest in enforcing the setback encroachment. Mr. Lewis asked if a letter would have to be issued each time the property changed ownership. Ms. Laauwe replied yes. W.R. Tubbs approached the Board. Mr. Tubbs told the Board that this home was built as a Parade Home and he was planning on moving into the home for financial purposes while waiting for his personal home to be completed in Woodcreek. Mr. Tubbs stated that when the public signs were placed on the properties the inquiries he received were what the signs were about. Most inquiries where about the property becoming commercial property. The reponses after knowing about the variances seemed to be OK. With no one else stepping forward, Chairman Bond closed the public hearing. Mr. Hill made the motion to deny a variance to the minimum setback from the terms of this ordinance as it will not be contrary to the public interest due to the lack of any special conditions, and because a strict enforcement of the provisions of the ordinance would not result in unnecessary hardship to this applicant, and such that the spirit of this ordinance shall be observed and substantial justice done Mr. Lewis seconded the motion, which passed (4-0-1) Chairman Bond abstaining. Mr. Hill offered clarification for his denial to the applicant. Mr. Hill stated that he feels strongly that in this situation the builder has the responsibility to understand the setbacks and ordinances. Mr. Hill stated that he is sympathetic to the situation but the city should not validate this mistake.