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HomeMy WebLinkAbout10/05/1999 - Regular Minutes - Zoning Board of AdjustmentsMinutes Special Called • Zoning Board of Adjustment CITY OF COLLEGE STATION, TEXAS October 5, 1999 6:00 P.M. MEMBERS PRESENT: Chairman Alexander, Murphy, Happ, Hill & Bond. STAFF PRESENT: Senior Planner McCully, Staff Assistant Grace, City Planner Kee Staff Planner Anderson, Senior Assistant City Attorney Nemcik. AGENDA ITEM NO. 1: Call to order -Explanation of functions of the Board. Chairman Alexander called the meeting to order and explained the functions of the Boazd. AGENDA ITEM N0.2: Consideration of scheduling a special meeting of the Board. AGENDA ITEM N0.3: Consideration and determination of Board jurisdiction over certain issues associated with the project at 600 & 604 Welsh. • Ms. Kee approached the podium and told the Board that she would address both items to ether and g then the Boazd may choose to consider them sepazately. She told the Boazd that an application has been received requesting a special meeting to hear an appeal to a decision made by the Zoning Official. It is in reference to a minor plat and two single-family building permits issued in the 600 block of Welsh. There aze several items that the applic<<nt is requesting be heard by the ZBA. The legal and plaz~ning staffs have determined that several of the items aze not within the Board's purview. The Board's charge is to determine questions of a factual nature relative to the application of the Zoning Ordinance. Ms. Kee presented to the Board the items in the applicants (Mrs. Miller) application, and also from a letter from Mr. Steve Esmond. Ms. Kee told the Board that Mr. Esmond is representing Mrs. Miller in the appeal. Ms. Kee told the Board that she would address each item in Mrs. Miller's appeal and help the Board understand which items are in their jurisdiction. Ms. Kee reminded the Board that this is not a public hearing but they may request clarification from the applicant, Mrs. Miller or Mr. Esmond. ZBA Minutes October S, 1999 Page 1 oj9 1. "Off-street parking requirements not met." Ms. Kee stated that it is unclear what the applicant is referencing by this statement. The Zoning • Ordinance calls for a certain number of parking spaces for asingle-family dwelling unit and it also outlines the dimensions that have to be met. Ms. Kee stated the area that was shown as part of the building permit meets the parking requirements for single-family. Ms. Kee added that she is not clear on exactly what is being appealed. Ms. Kee ended by telling the Boazd they may want to solicit some additional information from the applicant. 2. "Zero lot line" Ms. Kee told the Boazd, from the application of appeal she is not exactly sure again what is being appealed. Ms. Kee added that from some conversation with Mr. Esmond, she believes she understands, but again recommended the Board solicit some additional information. Ms. Kee stated that the ordinance allows lot line construction were property on both sides of the lot line is owned and/or developed by a single party. It also requires approval of the Zoning Official. Also required, is that in no case would two homes be built closer than 15' to each other. Ms. Kee stated that staff has interpreted lot line construction over the years to allow for a variable setback. Ms. Kee told the Boazd that this is were she believes the appeal is being made but is not absolutely certain. Ms. Kee stated that this is in the Board's jurisdiction to hear. R1s. Kee stated if the Boazd decides to heaz this case at a special meeting, the staff report at that time ~~711 address the application of the lot line construction section and the applicant at that time should be ~~repazed to explain how the application is invalid. Ms. Kee told the Board that the application of appeal submitted in writing by Mrs. Miller does not explain in sufficient detail what, if any, error was • committed in the application of this section. Ms. Kee again suggested to the Boazd to solicit additional information from the applicant. 3. "Does not comply with Council action on July 23,1998." Ms. Kee stated that she believes what is being referenced is a report that was presented to the Council related to concerns and issues that residents in the south side have. Ms. Kee told the Boazd she is ~:*~sure which items in the report that is being referred to are being appealed. Ms. Kee stated that none of those items are within the ZBA jurisdiction. Ms. Kee reminded the Boazd that they only have authority over the Zoning Ordinance and not any plans, reports or other actions that the City Council might have taken action to relative to hearing a report that was presented. 4. "I am appealing the surveys and/or building permits issued for lots lOR,11R, 12R -Welsh." Ms. Kee stated that this is not within the Board's purview to consider. Surveyor's and applicants signatures on plats indicate that ownership and dimensions aze true and accurate. This is accepted when surveyors, as registered professionals, put their seal on a plat. A discrepancy between surveyors and an individual's azgument over a survey is neither within the City's nor the Boazd's jurisdiction. This is a private matter between parties. Ms. Kee stated relative to building permits the ZBA has no jurisdiction over the granting of building permits. That is the Building Official's responsibility. • ZBA Minutes October S, 1999 Page 2 oj9 2 Mr. Esmond's appeal 1. "Appealing the Zoning Official's approval under Section 7.2.D." • This is within the Board's purview to consider. 2. "Deficiencies in the project which adversely impact access, parking, drainage and existing structures. Ms. Kee stated again that she is not cleaz what the appeal is relative to these issues. Driveway access is not within the Board's purview. There is a separate driveway ordinance. Pazking numbers and dimensions aze prescribed in the Zoning Ordinance and if that is the area of appeal then that could possibly be in the Boazd's purview. The city's drainage ordinance is not applicable to single-family building permits. Again, Ms. Kee stated that she is not sure what is being appealed. 3. "Violation of the deed restrictions." The city is not given authority by state statute to enforce deed restrictions and cannot do so. This is not in the Board's purview. 4. "Violation of city policy regarding protection of historic areas." Ms. Kee stated that there aze policy statements in the City's comprehensive plan which mention preserving existing neighborhoods and not increasing densities. However, these policies have not been implemented in ordinance form. There is no ordinance in place at present that would preclude or • prohibit replatting or building asingle-family house on a lot that meets the subdivision regulations and the zoning ordinance. An allegation of a violation of city policy is not within the Board's purview to consider. Ms. Kee conclude that as she went through the appeal application and tried to understand the appeal, what she had determined so faz is there aze a couple of azeas that aze questionable. There is not enough information to know and hopefully that will be clarified at this meeting Special Meeting Request Ms. Kee stated that the applicant met the deadline for the upcoming November 2, 1999 meeting of the Board. Ms. Kee told the Board of their options to meet earlier than November 2. • It will not be possible to meet notification requirements and have a special meeting before the next regularly scheduled meeting of October 19"'. To try and set one any earlier would not allow sufficient time for property owners to receive notice as per the Board Rules and Procedures. • The October 19, 1999 meeting already has a full agenda for consideration of applications that did meet the proper deadline. ZBA Minutes October S, 1999 Page 3 oj9 3 • It is possible to have a special meeting and meet proper notification between October 19~' and November 2nd with the exception of October 2151 & 28"'. There is already a joint P&Z /City Council meeting on the 28"' and a P&Z meeting on the 2151. • Ms. Kee reminded the Boazd that any determinations made by the Boazd concerning the appeal will not by itself affect the plat or the building permits that have been approved and issued. Any injunction or other action to correct any error of interpretation is going to be subject to Council action. If the Boazd makes a determination and decides that the application of the Ordinance was incorrect, the Council will take it into consideration and could authorize the City Attorney to file an injunction to stop work. Ms. Kee stated that the Boazd's decision alone does not cause that to happen. The Boazd's charge is to decide on the Zoning Official's application of relevant sections of the Ordinance and not whether to revoke a building permit or how any other Ordinances apply. If the Board does determine at some point that the application of that section is incorrect, what the staff will do from that point forwazd is apply that section of the ordinance as per the Board's determination. Mr. Happ asked Ms. Kee who would have jurisdiction over the items that ZBA does not. Ms. Kee replied that not all the issues aze very clear. It depends on exactly what is being requested. She gave some examples. Mr. Murphy stated that he is trying to understand the need for an emergency meeting. Ms. Kee replied that the construction is underway right now. Mr. Bond asked if there are any requirements which would qualify issues for special meeting status other than the Board's own discretion. Ms. Kee responded no. It has always been at the Boazd's pleasure to determine need for a special meeting because there are two regulazly scheduled meetings a • , month. Mr. Hill stated that he has looked at the property and saw that the forms are set and sand in place. Mr. Hill told the Boazd that he would guess that the slab will be poured before a meeting is scheduled regazdless. Mr. Hill stated that if the Board did decide to heaz the case, construction was not going to stop. Ms. Kee replied that was correct. The builder is authorized to proceed with their building. The Building Official sees no authority under the building code to issue any kind of stop work order. Everything was in compliance with the building code. Ms. Kee added that Ms. Miller has some questions about the Zoning Ordinance application but they would not be sufficient enough to issue a stop work order. Ms. Kee told the Board about a section in the Zoning Ordinance that addresses stoppin~z any proceedings. It references legal proceedings that the city might be taking against someone, for instance code enforcement violations and does not apply to stopping these building permits. Mr. Happ stated that the Board's authority has been eliminated over several areas presented. The one issue the Board does have jurisdiction over is the issue of the lot line construction. Mr. Happ stated that reading from Jane's notes and listening to her report she is unclear what, if any, error there is. Mr. Happ ending by asking what would the emergency meeting be addressing. Ms. Kee stated again that she is not sure if she could answer that. Ms. Kee told the Board one of the purposes of this meeting is if it is not clear from the application to ask Mrs. Miller or Mr. Esmond for clarification. • ZBA Minutes October S, 1999 Page 4 oJ9 4 Mr. Hill stated that he feels very strongly that the ZBA address any citizens concerns that fall within their jurisdiction. Mr. Hill added that he is not cleaz what the concerns are and questioned the Boazd's jurisdiction as well. • Chairman Alexander asked for the Applicant, Mrs. Miller or Mr. Esmond to step before the Boazd. Mr. Esmond stepped before the Board and was sworn in by Chairman Alexander. Mr. Esmond told the Boazd that that he is representing Mrs. Miller and she may also want to address the Board. Mr. Esmond stated that he would like to answer any questions and concerns raised. Mi. Esmond stated he hoped that there could be a way to accommodate differing opinions and views without having to make misrepresentations. It is always difficult to challenge or question a decision that a professional has made. Mr. Esmond stated that this Board is the proper Boazd to bring these issues to and it should not be viewed as an attack on the city or it's staff. Mr. Esmond told the Board that when Mrs. Miller found out about this project, it was late in the planning process and members of the City Council & city staff told her they would work with her. Mrs. Miller was told that this project should have never been approved and should be stopped. Mr. Esmond told the Board that one of the last comments made to Mrs. Miller was "even if we can not stop this one, we will certainly stop the next one." Mr. Esmond read sections of the Local Government Code. Mr. Esmond stated in Section 211.009 it basically spells out the authority of the Boazd. Mr. Esmond specifically noted items • • A-1 "to heaz and decide any appeal that alleges an error in an order, requirement, decision, or determination made by an administrative official." • Section B "the Board may reverse or affirm in whole or part or modify the administrative officer's order, requirement, decision or determination from which an appeal is taken." • Appeal to the Board "any of the following persons may appeal to the Board of Adjustment a decision made by administrative official. #1 "the person aggrieved by the decision". • Item C. "An appeal stays all proceedings in furtherance of the action that is appealed" Mr. Esmond stated that he and Mrs. Miller believe that includes the building permit. • 211.012 #C "if a building or other structure is erected, constructed, reconstructed, altered, repaired, converted or maintained, or if a building or other structure or land is used in violation of this subchapter, the appropriate municipal authority in addition to other remedies may take appropriate action to prevent the unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use". ZBA Minutes October S, 1999 Page S of 9 • Mr. Esmond stated that it is believed that all of these items are in the ZBA's power. Mr. Esmond stated that the project at hand is in violation of a number of things in the city's subdivision and zoning ordinances. • Mr. Esmond focused on the zoning items. The first item Mr. Esmond discussed was the Deed Restrictions. Mr. Esmond told the Board that they are not asking the city to enforce the Deed Restrictions, but rather to not violate them. Mr. Esmond handed the Board a copy of the Warranty Deed that was signed by the recent purchaser of the property who is also the developer. Mr. Esmond referred the Boazd to Deed 111 # 6 which states "each individual dwelling must have a frontage of at least 75' ". The plat for this property shows 50'. Mr. Esmond referenced item 9 & 11, which basically say that the covenants and restrictions are still in effect. If there is anyone of these that is no longer in effect, the others will remain in effect forever. Deed 124 item #2 states "no structure shall be located nearer than 20' to any side front property line." Mr. Esmond told the Board that here are deed restrictions that are currently enforced but not being obeyed and respected. Mr. Esmond stated that he is not asking the city to enforce them but to not violate them. Mr. Esmond handed the Boazd a copy of the plat. Mr. Esmond stated that it is not a "minor plat" but an "amending plat". Mr. Esmond told the Boazd if you look at the requirements for an "amending plat" in the State Local Government Code Chapter 212 and in the Zoning Ordinance, this does not meet the requirements of an "amending plat". Pazagraph 9B .016 Texas Administrative Code states the purpose of the plat " to relocate one or more lot lines between one or more adjacent lots if the amendment does not attempt to remove recorded covenants or restrictions". Mr. Esmond stated that this plat does attempt to remove them. It should have never been handled as an "amending plat" because it does not have to go to Planning and Zoning Commission. Mr. Esmond told the Boazd that the dates indicate that city staff approved this plat July 23, 1999 and the County Clerk filed it July 29`x. • Mr. Esmond stated that the Subdivision Regulations require that within 20 days after an amending plat is filed, the City Engineer and the City Planner shall forwazd the plat to the Planning & Zoning Commission. Mr. Esmond stated that the plat was never forwazded and they have had 4 meetings since the plat was filed. Mr. Bond asked Mr. Esmond if he could restrict his presentation to the issue of the ZBA's jurisdiction and whether or not a special meeting is going to be required. If a meeting was required he would have ample time to present the case. Mr. Bond askew Mr. Esmond to show the Boazd where jurisdiction applies to the Boazd and they would be happy to set a hearing date. Mr. Esmond concurred. Mr. Esmond stated that the plat is one item that is being appealed. Mr. Esmond told the Board that the plat should have had a public hearing. Mr. Esmond briefly went over the points of appeal: • Staff did not have the authority to approve this plat because it fails as an amending plat. It should have been handled as a replat. • The side setback line on the plat shows an air conditioning pad next to the existing house. The air conditioning pad no longer shows up. However, item 6 on the amending plat states "the existing air conditioner for the house on lot 11 R will be allowed to remain on lot 12R. • Additional paved pazking proposed on lots l OR & 12R violates Section 9.2. A 5. of the Zoning • Ordinance. ZBA Minutes October S, 1999 Page 6 oj9 6 Mr. Esmond stated that there are several other things about the plat that can be discussed at the meeting. • Mr. Esmond stated as to jurisdiction, Section 15.2 of the Zoning Ordinance -Powers and Duties makes it cleaz that ZBA's duty is to hear appeals to decisions by the Zoning Official. Section 15.5 Appeals states that any aggrieved person can make an appeal. Section 15.6 Revision of Appealed Decisions states that ZBA has the power to reverse the action of the Zoning Official. Mr. Esmond told the Boazd that Mrs. Miller had the right to make the appeal. Mr. Esmond told the Boazd of the impacts on Mrs. Miller. There is no screen for the RV, which will set on Mrs. Miller's back fence. The gravel driveway is going to pose a safety hazard to Mrs. Miller because she still mows her yazd and the gravel is going to get slung into her yard. The driveway radius is going to cut into Mrs. Miller's property. Mrs. Miller has granted no easement for that and there will be another appeal. for that. Although it is not a consideration, it will diminish Mrs. Miller's property values. Mr. Esmond ended by telling the Board that Mrs. Miller is a widow and she lives alone. She lives on Social Security and on a fixed income. Mrs. Miller has attended every City Council Meeting for the last 2 '/z yeazs and no one mentioned replat or construction. Mr. Esmond stated the Mrs. Miller is a big neighborhood integrity advocate and asked to Board to look cazefully at this and treat Mrs. Miller fairly. Chairman Alexander asked Ms. Nemcik to address some items where Mr. Esmond was citing the authority of the Board. Ms. Nemcik stepped before the Board. Mr. Bond asked what enabling legislation does the Board need to follow regarding what appeals the Boazd can hear and can not hear. • Ms. Nemcik stated two provisions, 211.008 and 211.009. Ms. Nemcik stated that these two provisions were cited correctly by Mr. Esmond. These provisions set the general authority of the Boazd and further delineating that is the Zoning Ordinance. There were discussions among the Board and Ms. Nemcik concerning the Deed Restrictions. Mr. Esmond stated replating without vacating the preceding plat is a problem. If the replat is approved, after the public heazing, interested citizens would have the opportunity to be heard. But there was no public hearing. Chairman Alexander stated that ZBA is not the venue for Deed Restrictions. Mr. Esmond stated that the Board is being asked to recognize that a mistake was made and to overturn the decision where it can be dealt with in a public hearing. Chairman Alexander replied that he does not think that is the Board's jurisdiction on this issue. Mr. Esmond stated that the amending plat removes the covenants and restrictions that exist. Mr. Kee stated that it does not attempt to remove covenants and restrictions. The existing lots dimensions may not meet the Deed Restrictions criteria but amending the plat did not attempt to remove the covenants and restrictions. This plat does not take away the ability of the residents to enforce the Deed Restrictions. Ms. Kee stated that lots in this general area were looked at to see how many lots have been divided by metes and bounds descriptions since the subdivision was first established. City Staff found that about 70% are pieces and parts of lots. Mr. Esmond stated that he disagreed with part of Ms. Kee's statement. Mr. Esmond stated by approving the amending plat the Deed Restrictions are also amended. Mr. Happ asked, in replatting, were any zoning restrictions violated that are now in existence. Ms. Nemcik answered that is the issue. • ZBA Minules October S, 1999 Page 7 oj9 7 Chairman Alexander stated that he wanted to focus on the items that the Board has jurisdiction over. Ms. Nemcik stated that section 211.008 and 211.009 applies to the Board of Adjustment. It is further amplified and/or refined by the Zoning Ordinance. Ms. Nemcik stated that the Deed Restrictions and • amending plat issues aze not in the ZBA's jurisdiction. Ms. Nemcik made reference to the RV being pazked on one of the lots. That is not a matter of appeal but a matter of enforcement. Ms. Nemcik stated that she can not address the driveway cut on Mrs. Miller's property because she does not fully understand the facts. With regazd to Council action taken on July 23, 1998 Ms. Nemcik stated that those aze Council issues and those would need to be brought to that forum. There is no delegation of Council authority to the ZBA. Ms. Nemcik ended by saying that she noted those items as being the Boazd's concerns and Ms. Kee may expand. Chairman Alexander called Mr. Esmond back before the Boazd. Chairman Alexander asked Mr. Esmond what was his objective by reading Section 211.009 (The Authority of the Board). Is the Board ~~ ~pected to attempt to stop the work that is going on and have a heazing on the issues that are under the Z}3A jurisdiction. Mr. Esmond stated that he thinks jurisdiction is the Boards decision not the city staff or the Zoning Official's decision. Mr. Esmond stated it is the ZBA decisions because they are legally empowered to heaz the appeals from the administrative level. Chairman Alexander asked Mr. Esmond if he disagreed with "any determination made by the Boazd relative to this appeal will not affect the plat or building permits that have been approved and issued." Mr. Esmond stated that he disagreed with that statement. Chairman Alexander asked "is the Board going to be able to stop any further construction until the issues have been resolved?". Ms. Nemcik stated the first item to determine is whether the items presented and Mrs. Miller's appeal aze; 1) Sufficient in their description for the Board to understand what they aze, and; 2 Whether they are in the Boazd's jurisdiction. • Mrs. Miller approached the Boazd and was sworn in by Chairman Alexander. Mrs. Miller told the Board that when she filed the application of appeal it was her understanding that construction would cease. Mrs. Miller told the Boazd of the progress that has been made on the property since the application was turned in. Mrs. Miller stated that if the work in not put on hold, the houses will be built before a hearing could be scheduled. Mrs. Miller ended by saying that she would appreciate any help that the Boazd can give. Chairman Alexander called Ms. Kee before the Boazd. Chairman Alexander stated that one item the Board understands is their jurisdiction is the item concerning the lot line construction. Chairman Alexander asked for explanation and requirements. Ms. Kee stated that the requirements for someone wanting to use the zero lot line are: you have to own property on both sides of the lot line, you have to in no case have houses no closer than 15' of each other. Beyond that there is no more guidance but staff has allowed the flexibility to have vaziable setbacks as long as the 15' separation is maintained. Chairman Alexander asked if there aze any requirements if the house is built on the line. Ms. Kee stated under the building code there are some requirements for firewalls and limitations on percent openings that are a function of how close the wall is to a property line. • ZBA Minutes October S, 1999 Page 8 oj9 8 Mr. Bond made the motion to set a date for a special meeting to hear Mrs. Miller's Appeal relative to parking and setbacks. Mr. Hill seconded the motion, which passed (5-0). • Mr. Happ made the motion to schedule the meeting Tuesday, October 26. Mr. Murphy seconded the motion. Mr. Bond stated that his preference would be on a different night but he would certainly work with the Boards decision. Mr. Happ withdrew his motion. Mr. Bond seconded the retraction. The board voted (5-0). Mr. Bond made the motion to schedule the meeting Wednesday, October 20, 1990. Mr. Happ seconded the motion, which passed (5-0). AGENDA ITEM N0.4: Adjourn. The meeting was adjourned. ATTEST: Staff Assistant, Debor Grace • • APPROVED: ~~ Chairman, David A xander ZBA Minutes October S, 1999 Page 9 oj9 Zoning Board of Adjustment ~. N Address ~ ~ ~ ~~~ /Uv ~ Z o ~~~~ . _~ ~'a o ~l~ I ~ 1~.~ bra C? S , DPI C ~~ ~~~~~~ ~ ~_- c ~ $J ! C~ ~ ~ ~O Luc e t ~ ~s yd U F iwt ~~-% Guest Register _ ~ ~~ Date ~_ o s-©~ G , ~. I,r <'~1 ~~,,.., ~~ 5~~ ILyr.~ ,dv~ Cs