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HomeMy WebLinkAbout09/03/1985 - Regular Minutes - Zoning Board of AdjustmentsMINUTES • CITY OF COLLEGE STATION, TEXAS Zoning Board of Adjustment September 3, 1985 7:30 A.M. MEMBERS PRESENT: Chairman Upham, Members McGuirk, Meyer, Wagner and Swoboda (for a portion of the meeting}. MEMBERS ABSENT: Member Wendt STAFF PRESENT: Zoning Official Kee, Director of Planning Mayo, Building Official Perry, Planning Technician Volk and City Attorney Locke for a portion of the meeting. AGBNDA ITBM N0. 1: Call to order - explanation of functions and limitations of Board. Chairman Upham called the meeting to order and explained the functions and limitations of the Board. Several Board Members expressed dismay at seeing a full agenda at what they believed was to be a "special meeting" to hear one particular item, with at least 2 of the members stating they could not stay for more than one item. After discussion, it was decided to bypass items 2, 3, 4, 6 and 7, and only hear item #5, • the variance for which this meeting was called. AGBNDA ITBM N0. 2: Hear visitors. AGBNDA ITBM N0. 3: Approval of Minutes - meeting of August 20, 1985. AGBNDA ITBM N0. 4: Reconsideration of a request for variance to Section 7-B.3.1 Ordinance 850, the requirement to mark parking spaces on the surface, on a proposed gravel, commercial parking lot at the northeast corner of Church and Nagle Streets. Applicant is Skipper Harris. (This item was tabled at meeting of August 20, 1985}. AGBNDA ITBM N0. 5: Consideration of an appeal of a decision of the Zoning Official that outside seating requires parking under Section 7 Ordinance 850. Consideration also, of a variance (in the event that the appeal is denied) to the parking requirements for 148 additional seats for the operation of a restaurant at The Flying Tomato Pizza In A Pan at 303 W. University. Applicant is The Flying Tomato, Inc. A. Ralph Senn, 804 N. Neal, Champaign, Illinois, president of the Flying Tomato, Inc. was sworn in and spoke of the background of steps taken which led to the establishment of this restaurant in this location, and the subsequent appeal of the Zoning Official's interpretation of the Zoning Ordinance. He read from a • letter sent to Paul Howald on January 17, 1984 by the Zoning Official, specifically addressing paragraph (c) of that letter which states "there are currently two hundred and thirty (230) seats and 20 parking spaces in Bogie's,...your restaurant 1 ZBA Minutes 9-3-85 • cannot exceed this number without approval from the Zoning Board of Adjustment." He stated that section 1-D.16 of the Zoning Ordinance has the clearest reference to seating, specifically classifying "consumption indoors" under the definition of cafe, restaurant or cafeteria. He said that by specifying "indoors", "outdoors" is excluded from consideration, and because no other reference to outdoor seating is made in the ordinance, it was presumed that control of outdoor seating at a restaurant was beyond the responsibility of the Zoning Department. He went on to state that after receipt of his letter from the City's Zoning Official, his company did a feasibility study/print of the existing seating by way of a main floor plan which indicated the pre-existing seats of Bogie's restaurant while it was still in business, and these prints indicate there were 248 seats indoors and 148 seats outdoors, excluding some benches without tables. He stated that since that time, the company has obtained photos from Mr. Howald which were taken in the winter showing all seats, tables and chairs which correspond with those shown on the feasibility study/prints. He stated that the company came before the Board on 10-11-84 to request a modification of the building as a non-conforming use and the Board approved that request. Subsequently, with that approval, and his understanding of the Zoning Department's interpretation of a non-conforming use, he signed the lease for this building and went on with his plans. He reiterated at this time that at this point he believed the outdoor seating was beyond the responsibility of the Zoning Department, and therefore, was not used in determining the number of seats allowed inside. • He then stated that page 37 of the Zoning Ordinance under section 7.B states that "...there shall be provided at the time any building or structure is erected or enlarged or increased in capacity, or at any time any other use is established, off-street parking spaces for motor vehicles in accordance with the requirements specified herein." He went on to say that section 6-R states that no fence shall be construed to be a structure, adding that the Zoning Ordinance refers to the restriction of restaurant seating indoors, and also refers to a structure, therefore he did not think the Zoning Department had jurisdiction over outdoor seating which was not inside a structure. He also stated the Fire Department had defined its requirement for outdoor seating, and that Coy Perry, the Building Official had said that a structure included walls and a roof, and because the seating in question is outside where there are no walls or roof, he did not think seating/parking was controlled by any department other than the Fire Department. Mr. Senn continued by stating that official approval was given to site plans which showed the maximum total seating as being 230, and these plans were signed by Al Mayo, after which he applied the definitions as he interpreted them and had mentioned earlier. He said that later the applicant had supplied revised prints to the Zoning Department, dated 7-16-85, to amend seating to the required 230 seats indoors,and these prints were filed with no additional comments. Upon requesting final approval from the Zoning Department on 8-20-85, Ms. Kim Johnson counted all seats based upon her copy of the blueprints which stated "maximum total seating 230 (indoors and outdoors)", this being the first reference ever made to outdoor seating (omitted in the written ordinance) and omitted from applicants' official signed operating blueprint. He then pointed out that the previous tenant's seating • (inside and outside) had exceeded 230. He stated that he, the applicant, is requesting exemption from requirement for ZBA Minutes 9-3-85 • parking for outdoor seasonal seating because Zoning Ordinance #850 does not require it, no attempt to refer to it by the staff was made until the day before opening, and because previous tenants had indoor and outdoor seating in excess of 230 with the same parking. Mr. Wagner asked if the feasibility study had been provided to the City. Mr. Senn replied that it had not, as it was an internal study. Mr. Wagner asked what was in the back if outside seating had been found and Mr. Senn showed a print and pointed out there were 7 pool tables, 8 picnic tables, small wire tables and a barbeque pit in the back patio area. Mr. Wagner asked if any of that area was covered and Mr. Senn replied that part of it where the pool tables were was covered. Mr. Wagner pointed out that the covered area outside the main walls of the structure which housed the restaurant may not be legal. Mr. Senn said he believes that it was legal under the definition of non-conforming use as it was an occupied building. Mr. Wagner informed him that according to interpretation given by the Building Official of a structure, it is still possible that the seats Mr. Senn had seen under that cover may not be legal. Mr. Senn replied that may be so, but he wanted to emphasize that the company found the ordinance clear regarding the fact that outside seating was not within the realm of the Zoning Official's responsibility. Mr. Wagner asked Mr. Senn if, when he heard the figure "maximum total seating allowed - 230", he tried to establish where that figure came from. Mr. Senn said that they had not questioned it, as they believed that referred to indoor seating only. Mrs. Meyer asked Mr. Senn exactly what areas were covered in the patio area and Mr. • Senn pointed them out. Mrs. Meyer asked if they were part of the 248 indoor seats he had referred to earlier and Mr. Senn replied that at the time his company's study was made, there were 248 seats indoors, and 148 seats outdoors, but some of those outdoor seats had a cover over them. Mrs. Meyer pointed out that the Building Official has ruled in the past that if you cannot see clear, blue sky by looking upward, then there is a structure. Mrs. Meyer then asked if any of the prints Mr. Senn showed the City had ever shown "outdoor" seating. Mr. Senn replied that they had not because the company believed that to be outside the realm of jurisdiction of the City. He went on to say that he had asked the Fire Department, and they had expressed no concern over them. Mr. Senn then added that the prints the City reviewed in April showed 10 tables with 6 seats per table outdoors, but he had never called that to anyone's attention because he believed that was optional. Mr. Upham stated that Mr. Senn has in his possession plans which were given back to him which indicate the maximum total seating will be 230 seats, and pointed out that he could show as many seats as he wants on the plans, but the maximum total seating will still be 230, and apparently Mr. Senn never questioned the City about that figure. George Boyett was sworn in and stated Mr. Upham's statement is a point well taken, but in view of the letter in January 1984 stating the City's position, it was an assumption that 230 indoor seats conformed with the Zoning Ordinance, but that in regard to the "covered seating" on this particular plan, it's hard to say how much is indoors by the City's definition, but by this applicant's definition, the 248 seats inside the main structure were the only ones he believed counted. He went on to state that the only parking variance ever granted to this structure was given in • 1979 at which time the use of the structure changed from an apartment building to a restaurant, and at that time street parking on University Drive was eliminated to help the traffic flow along this state highway. 3 ZBA Minutes g-3-g5 • Mrs. Meyer asked Mr. Senn exactly how many seats he plans to include in his place of business and Mr. Senn replied that he plans to have 230 indoors, and 148 outdoors, adding that he had never thought he was applying for additional seats because he thought that the outdoor seating was discretionary. Mr. Boyett stated that at this time, Mr. Senn has 230 total seats, both indoors and outdoors, and in the short time his restaurant has been in operation, it has become apparent that the outdoor seating will be highly seasonable and would probably not be in use more than 50% of the time. The Board asked Mrs. Kee to present the City's case and Mrs. Kee stated that page 55 of Ordinance 850 Section 12-B charges the Zoning Official with interpretation of and enforcement of the ordinance. She said that this is included in the ordinance because it is not possible within the constraints of language to construct an ordinance such that every person perceives the exact same meaning from every sentence. She then stated that the definition of restaurant does not exclude outdoor seating from regulation merely because it is not specifically included. She stated that perhaps because the ordinance does not refer to outdoor seating, it could be interpreted that outdoor seating is not allowed at all, adding however, that in her opinion this would not be logical. She went on to say that if parking requirements are based on the number of seats a business has, it is only logical that all seating, bath indoor and outdoor, be included in the number used. She stated that simply because a use varies from the strict wording of a definition does not remove it from the purview of the definition and therefore, does not remove it from the purview of regulation. She then referred to the letter sent to • Mr. Howald dated 1-17-84 which states that the restaurant would be limited to 230 seats, adding that the bounds of the restaurant extend beyond the bounds of the building itself. She then pointed out that the same letter differentiates between certain requirements regulated by the City's Zoning Ordinance and those regulated by the City's Building Code. She then stated that the revised plans the applicant referred to as having been submitted in July 1985 were submitted to reflect a drive through from University Drive, which had not be shown on the original plans which had been approved. Mrs. Kee concluded by urging the Board to concur with the interpretation that outdoor seating be treated the same as indoor seating relative to parking requirements as there is never any guarantee that patrons utilizing outdoor seating come to a premise by means other than vehicles. She pointed out that this will. be consistent with previous interpretations, will uphold the intent of the Ordinance and will insure future compliance with the purpose and intent of the parking regulations. Mr. McGuirk stated that this City's ordinance designates the number of seats included in a restaurant will control the number of parking spaces required for that business, and he sees no problem with the interpretation of the Zoning Official that the number of seats will be controlled by the parking provided by a business. Mr. Senn stated that his company is operating from the main office in Illinois, and it must operate under what is written in the Zoning Ordinance, and he would expect • that proper definitions would be included, further pointing out that there is no definition of seating given, nor is there any reference made to outdoor seating at all in the ordinance, and they did not feel they should have to question everything 4 ZBA Minutes 9-3-85 • done when the ordinance is made available to the public. Mrs. Meyer asked Mrs. Kee if the staff had included any outdoor seating when the survey by the City was made and Mrs. Kee replied that a previous employee had made the survey, but he had been instructed to count all seats, and she would have to assume he did exactly that. Mr. Senn stated that his company had not ignored the Zoning Ordinance, but rather had operated within the bounds of their understanding of it, and Building Official Perry had indicated that the occupancy of this building could be 261 after changes were made to the building. He went on to state that the company believed that after making those changes, additional people could be handled based on ingress and egress, and he had. never questioned how the number 230 had been reached. He went on to state that they were operating under the assumption that what they read in the ordinance was correct, and that since outdoor seating was not referred to, it was not controlled. Al Mayo, Director of Planning was sworn in and stated that during conversations and meetings held with a Mr. Gillary, the contractor in charge of remodeling the building, he had explained that any seating placed outside the building would have to be deducted from the total allowable seating, and after that conversation he had made the decision to add the words "total seating (inside and outside)" to the revised plans, submitted rerlecting the addition of the drive-through window. Mrs. W. 0. Reed, 702 Cambridge, Richardson, TX was sworn in, identified various • properties she owns in Northgate which are in close proximity to this business, and objected to the additional seats as there is already no parking in the area. She added that the one parking lot is leased to someone else who rarely gets to use it. She then named others who are against this variance request. Mr. McGuirk said that this is the first time anyone has come forward before this Board to state opposition to any additional demands on the already tight parking in the area. Jack Boyett was sworn in and stated he is open to making a deal with Mr. Senn, as he also owns property in the area. Mr. Upham stated at this time that any conversations or lack of them between the applicant and adjacent landowners cannot be considered as applicable toward this consideration. Mr. McGuirk then stated that in regard to the interpretation of the Zoning Ordinance, although he has sympathy with Mr. Senn and his dilemma, the issue is the relation of seating/parking and the intent of the Zoning Ordinance, and he cannot find any fault with the interpretation made by the Zoning Official. Mr. Senn stated that he understands now the intent of the Zoning Department in regard to seating in relationship to parking, but explained that with his main offices so far away, he had to rely upon his own interpretation, and he would suggest that perhaps the ordinance should be amended for clarification. • Mr. McGuirk then made a motion to uphold the decision or interpretation made by the Zoning Official in the enforcement of Section 7 of this ordinance, as the decision or interpretation meets the spirit of this ordinance and substantial justice was 5 ZBA Minutes 9-3-85 • done. Mrs. Meyer seconded the motion which carried unanimously (4-0}. Mr. Upham then explained that Mr. Senn has a right now to request a variance to ordinance requirements, and reminded him that he was still under oath. Mr. Senn came forward and stated he did not want to repeat information, but requested that the information submitted for the appeal be applied to this variance request. He then explained that he is requesting 148 additional seats to be allowed at this business but there is a lack of available parking in a contiguous 200 foot area. He spoke of the problem Mr. Loupot has in controlling his private parking lot citing it as an example of the inability to maintain and control integrity of additional sites, adding that any thoughts that it would be possible are totally unrealistic. Mr. Swoboda arrived at this meeting at 9:05 a.m. while Mr. Senn was presenting his case. Mr. Senn continued by saying that alcohol sales will be higher if seats are not provided, and he would prefer not to run a bar, but rather wants to run a restaurant. He added that he has no experience in operating a bar, but is a good restaurant manager. He explained that if a person is seated, he can be asked to order food, further explaining that this type of situation would be in the best interests of the public, and requested a variance for 148 seats, which computes to 47 parking spaces, based on the previous facts presented. • Mr. McGuirk asked Mr. Senn if he would be satisfied with a lesser number of additional seats and Mr. Senn said he was indeed frustrated as he is prohibited from referring to any economic hardship, and the answer to that question would refer to exactly that. Mr. McGuirk informed Mr. Senn that he, personally, had no difficulty in finding hardship other than financial in the Northgate area, but he does have difficulty in understanding any hardship which would demand an additional 148 seats, and asked again if the applicant could accept a lesser number. Mr. Senn asked if an acceptance of a lesser number would hinder an appeal or a variance request in the future, to which Mr. McGuirk replied that he could request a variance at any time, and in the interim, a re-evaluation of needs and conditions could be made. Mr. Wagner stated he would like to hear from staff before any motion is offered. Mrs. Kee stated the request is for 50 parking spaces in the Northgate area, and reminded the Board they are charged with considering unique and special conditions as well as hardship. George Boyett came forward, was reminded that he is still under oath, and then explained that he is appearing as a representative of the landlord of this building, but also as an owner of property within 200 feet of the building. He stated that all are concerned with the parking problems in the Northgate area, but some consideration should be given to other conditions which cause these problems other than variances to parking requirements granted in the area. He cited as examples of those conditions non-patrons parking in the available parking spaces, non-enforcement of existing parking regulations, and the congregation of large • numbers of people in the street during late night hours. He explained that he is in favor of this request for the following reasons: The nature of the business, much of the daytime business is from walk-in patrons, and off-street 6 ZBA Minutes g-3-85 • parking appears to be uncontrollable, continuing that he would urge that something is done to insure enforcement of parking regulations by the City. Mrs. Meyer asked the applicant if he anticipated ever moving the outdoor seats to the inside if people don't use them outside, adding that there are already 230 seats inside, and that is the maximum number he understood which would be allowed inside. Mr. Senn said he had been told he could be flexible in moving the seats inside and outside as necessary, as he is actually only limited inside by the occupancy allowed which is 261. Mrs. Meyer asked if the variance is granted, could it be granted only for outside seats and Mr. Wagner replied that it could be so stipulated. Mrs. Kee concurred. Mr. Swoboda disagreed, stating that a variance would be granted for parking, not seating. City Attorney Locke agreed with Mr. Swoboda. Coy Perry, Building Official, was sworn in and explained exactly how the occupancy limitations are figured, adding that they are not set by the City, but rather by the Southern Building Code as adopted as standards by the City. Mr. Swoboda stated that parking spaces are not related to occupancy. Mrs. Meyer explained that she is trying to tie in the argument that the applicant wants seats outside to preclude stand-up service inside, but he is still limited to an indoor capacity of 261 people. Mr. Wagner made a motion to authorize a variance to the parking requirements • (Section 7) from the terms of this ordinance as it will not be contrary to the public interest, due to the following unique and special conditions of the land not normally found in like districts: There is no existing alternate parking available, and because a strict enforcement of the provisions of the ordinance would result in unnecessary hardship to this applicant being forcing the applicant to retain and maintain parking in an area where historically, this has proved difficult, and such that the spirit of this ordinance shall be observed and substantial justice done, subject to the following limitations: The variance granted to Ralph Senn for the operation of the Flying Tomato and the approval be limited to 50 spaces (140 seats} at the applicant's request. Mr. Upham stated the variance must go with the land and not with the person. Mr. McGuirk seconded the motion for purposes of discussion. Cathy Locke, City Attorney was sworn in land and cannot expire with ownership. Mr. Wagner asked to withdraw his motion. the motion. • and stated that variances tie in to the Mr. McGuirk moved to amend the motion. Mr. McGuirk agreed to the withdrawal of Mr. Wagner then made a motion to authorize a variance to the parking requirements (Section 7) from the terms of this ordinance as it will not be contrary to the public interest, due to the following unique and special conditions of the land not normally found in like districts: No existing alternate parking is available and because a strict enforcement of the provisions of the ordinance would result in unnecessary hardship to this applicant being forcing the applicant to retain and maintain parking in an area where historically this has proved difficult, and such that the spirit of this ordinance shall be observed and substantial justice done, subject to the following limitations: The approval be limited to 50 spaces (140 seats) at the applicant's request. Mr. McGuirk seconded the motion for purposes of discussion, and then stated he has two problems with this variance, those being: 7 ZBA Minutes 9-3-85 • (1)There are already extreme pressures on the private parking available in the area and he is not sure granting a variance for 50 additional spaces is the right thing to do, and (2)The outdoor seats will have highly limited use and be extremely seasonal, and he is unsure of the need. Mr. Swoboda said that all parking could be eliminated in the Northgate area, and all business then would be walk-in. Mr. McGuirk said that nighttime parking, which is strictly commercial and not connected with persons going to the University, represents the most serious problem. Mr. Wagner disagreed. Votes were cast, with the motion to approve failing by a vote of 2-2-1; McGuirk & Meyer against; Upham abstaining. AGBNDA ITEM N0. 6: Consideration of a change in policy regarding the deadline date for filing applications to be heard by the Zoning Board of Adjustaent. AGBNDA ITBM N0. 7: Closed session to Discuss Pending Litigation [6252-17(2)B). AGBNDA ITBM N0. 8: Other business. AGBNDA ITBM N0. 9: Adjourn. Mr. Wagner announced he must leave; Mr. McGuirk stated he should leave as well. Discussion followed regarding the postponement of the other items on this agenda with Mr. Wagner making a motion to adjourn. Mr. McGuirk seconded the motion which carried unanimously. • ATTEST: --------------------------- City Secretary, Dian Jones • APPROVED: '' --- Chaff a Jack U ham 8 ZONING BOARD OF ADJUSTMENT FORMAT FOR MOTIONS • Appeal of Zoning Official's Interpretation - From Section 11-B.1 I move to uphold the decision or interpretation made by the Zoning Official in the enforcement of Section ~ of this ordinance, as the decision or interpretation meets the spirit of this ordinance and substantial justice was done. Motion made by MCG~~2~ Date x-3-85 Seconded by _~/!/~ CCy~=~ Resut is of voting : y' ~ Chair Signature a,~;~ ;r„:; ::;~ When ruling not to uphold the decision or interpretation made by the Zoning Official, use the following form: ;::~:t;~; ;r;t:: ~:r I move to interpret Section ~ of Ordinance 850 in the following manner: Motion made by Seconded by Chair Signature Date Results of voting: • • ZONING BOARD OF ADJUSTMENT FORMAT FOR POSITIVE MOTION Variances: From Section 11-B.5 I move to authorize a variance to the yard (6-G) lot width (Table A) lot depth (Table A) sign regulations minimum setback (Table A) parking requirements (Section 7) from the terms of this ordinance as it will not be contrary to the public interest, due to the following unique and special conditions of the land not normally found in like districts: // r.a wa^w..., '~'.~.r'G.. ~ o' I ~~`+7 ~..,M.,Ib'z~•:,<.:.., / 'w ': t ~r,~t, ~ ~~t J 2', . 3• 4, W1 ~~ ~", and because a strict enforcement of the provisions of the Ordinance would result in unnecessary ,hardship to this applicant being: .. ~ ..,, . -. a d su a \ ~ *. .,,. ~ the sprit oft this Ordina~Ce lsf`ial b~ bserve an~ subst.~nt a~ Justice done, subject to the foll~wing limitations: '` t ; f.:i , 1 ~ ~ ~, yyy ~.. ~, ifC~d/1 This mo t i on w ~ ~° ~' '~ ' ~ ~. ~ ~ , f" "-='~ / ,.; Seconded by ~ to ~+ The variance was gra ted by the following voter Chair Signatu e ZONING BOARD OF ADJUSTMENT GUEST REGISTER • DATE September 3, 1985 NAME ADDRESS 2. 3• 4. 5. 6. 7. 8. 9. 10. • I1. 12. 13. 14. 15. if. 17. 18. 19. 20. 21. 22. 23• • 24. 25.