HomeMy WebLinkAbout600 Welsh project 1999 Mrs. H. A. Luther & Michael Luther
614 Welsh Ave.
College Station, TX 77840
City of College Station In re: Construction project either side
Wayne Rife, Chairman of 600 Welsh Ave. and;
The Planning and Zoning Commission 614 Welsh Ave.; 612 Welsh Ave.;
Box 9960 601 Fairview;
College Station, TX 77840
As follow up to my personal visit to attempt to conference with you
on Tuesday October 12, 1999, now written October 15, 1999. Hand Delivered.
Dear Mr. Rife:
I asked your secretary for a chance to visit with you on what P &Z could hear
in an appeal to consider a. wrongful action concerning the issuance of building
permits on what I will generally call "The 600 Welsh project ", on Tuesday
afternoon, October 12, 1999. I left both a contact telephone number where
someone could page me so I could return a. call to you and an email address.
To date I have heard nothing. Therefore, I must unilaterally note what I have
read independently and understand about why P &Z should schedule this matter
for its next regular meeting.
There are a number of completely separate actions regarding the project
adjacent to 600 Welsh which require attention near the very near time frame of
the next P &Z meeting. However, the reason I came to you asking for advice on
how to form an appeal that would take the least time and focus on the most
important things about such an appeal, was that the next normal meeting of the
P &Z might he material to the other consideration to he given to this issue and
might he ahead of them, time -wise. P &Z action might pre -empt them.
This issue is material to our family, in that we own property in the affected
block at 614 Welsh, three doors down from this address. Our property has, we
believe, significant historic significance and requires careful planning and
work to preserve it. We have been on that same property in excess of 50 years
now. I believe we will suffer economic loss in the future and will incur
other safety issues in the future over this project as well.
You are an attorney, I am not. This issue and any relationship I have to the
P &Z is not one in which I am, at this time, represented by counsel. I came to
you, as the guiding responsible party for P &Z, to ask for what I think is my
right to appeal a. decision by one or more administrative officials in the
issuance of plats and permits for construction in the "The 600 Welsh Project."
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I read in:
CHAPTER 212. MUNICIPAL REGULATION OF SUBDIVISIONS AND PROPERTY DEVELOPMENT
SUBCHAPTER A. REGULATION OF , SUBDIVISIONS
212.0115. Certification Regarding Compliance With Plat Requirements.
what I think are relevant points that are crucial to this issue.
As far as I can determine, the responsibility for handling the requirement of
this law in:
Sec. 212.0065. Delegation of Approval Responsibility.
(a) The governing body of a. municipality may delegate to one or
more persons of the municipality or of a. utility owned or
operated by the municipality the ability to approve:
(1) amending plats described by Section 212.016; or
(2) minor plats involving four or fewer lots fronting on an
existing street and not requiring the creation of any new
street or the extension of municipal facilities.
was delegated to one or more officials in the City of College Station Planning
department.
Under this same general section of law, I read that the person or persons whom
handled this issue:
(h) The designated person or persons may, for any reason, elect
to present the plat for approval to the municipal authority
responsible for approving plats.
could have presented this plat to the P &Z Commission for action, rather than
act to approve the plat simply within the certification authority granted them
to act in the P &Z Commission's stead. Whomever approved and worked on this
plat did not choose to do this.
Further, per the next section of the law, I read that, in fact, if the plat
had anything in it which was seen to he wrong, from a. formal standpoint:
(c) The person or persons shall not disapprove the plat and
shall be required to refer any plat which the person or persons
refuse to approve to the municipal authority responsible for
approving plats within the time period specified in Section
212.009.
If an error occurred in granting the plat, evidenced by an "approved" plat
being issued, under the delegation of authority to grant such plats, it is
thus obvious to me that the error has occurred as committed by one or more
persons of the municipality ... granted the authority to approve it.
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Specifically, approval of this plat, on administrative basis, would have had
to have been done on either a. minor plat, or an amending plat. As I read the
law, there are only two circumstances under which a. designated administrative
official could have acted. I do not think the changes in this plat are minor
in nature at all. There were many, many things different about this plat and
the property which is to he the final outcome of this project.
To this extent, I would expect that there would often he a valid interchange
between the person or persons delegated the authority to approve a. plat, and
the owner of the property whom is entitled to present a proposed plat, so that
minor errors can he corrected such that approval can he granted, rather than a.
referral to the P&Z Commission.
It has been reported by many that this plat was issued only after much such
repeated interchange between the Administrative person or persons and not the
then owner of the property, by a subsequent owner. I think that can he
substantiated by evidence, if needed.
So noted, it is clear that this plat is an AMENDED PLAT. It clearly states
that on the plat. It would he an outright Administrative error, I believe, if
it were issued as an AMENDED PLAT, and it were, truly, a MINOR PLAT. I pose
that in the final analysis, it will he determined that it is, as represented,
an AMENDED PLAT and that one question you will have to decide on the basis of
appeal it that it is, as stated, an AMENDED PLAT,
That noted, in this context I read that the only things which can he addressed
amending plat axe:
Sec. 212,016, Amending Plat.
(a) The municipal authority responsible for approving plats may
approve and issue an amending plat, which may he recorded and is
controlling over the preceding plat without vacation of that
plat, if the amending plat is signed by the applicants only and
is solely for one or more of the following purposes:
(1) to correct an error in a. course or distance shown on the
preceding plat;
(2) to add a course or distance that was omitted on the
preceding plat;
(3) to correct an error in a. rea.1 property description shown
on the preceding plat;
(4) to indicate monuments set after the death, disability,
or retirement from practice of the engineer or surveyor
responsible for setting monuments;
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(5) to show the location or character of a. monument that has
been changed in location or character or that is shown
incorrectly as to location or character on the preceding
plat;
(6) to correct any other type of scrivener or clerical error
or omission previously approved by the municipal authority
responsible for approving plats, including lot numbers,
acreage, street names, and identification of adjacent
recorded plats;
(7) to correct an error in courses and distances of lot
lines between two adjacent lots if:
(A) both lot owners join in the application for amending
the plat;
(B) neither lot is abolished;
(C) the amendment does not attempt to remove recorded
covenants or restrictions; and
(D) the amendment does not have a. material adverse
effect on the property rights of the other owners in the
plat;
(8) to relocate a. lot line to eliminate an inadvertent
encroachment of a. building or other improvement on a. lot line
or easement.;
(9) to relocate one or more lot lines between one or more
adjacent lots if:
(A) the owners of all those lots join in the application
for amending the plat;
(B) the amendment does not attempt to remove recorded
covenants or restrictions; and
(C) the amendment does not increase the number of lots;
(10) to make necessary changes to the preceding plat to
create six or fewer lots in the subdivision or a part of the
subdivision covered by the preceding plat if:
(A) the changes do not affect applicable zoning and
other regulations of the municipality;
(B) the changes do not attempt to amend or remove any
covenants or restrictions; and
(C) the area covered by the changes is located in an
area that the municipal planning commission or other
appropriate governing body of the municipality has
approved, after a public hearing, as a. residential
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improvement area;
or
(11) to replat one or more lots fronting on an existing
street if:
(A) the owners of all those lots join in the application
for amending the plat;
(B) the amendment does not attempt to remove recorded
covenants or restrictions;
(C) the amendment does not increase the number of lots;
and
(D) the amendment does not create or require the
creation of a new street or make necessary the
extension of municipal facilities.
To that extent, we believe error has occurred, as my family notes this as
follows. As best we can determine from the issues:
1.) This plat was not issued to correct an error in a. course
or distance on the preceding plat as in (1) above;
2.) This plat was not issued to add a. course or distance that
was omitted on the preceding plat as in (2) above;
3.) This plat was not issued to correct an error in a. real
property description shown on the preceding plat as in (3) above.
4.) This plat was not issued to indicate monuments set after
the death, disability, or retirement from practice of the
engineer or surveyor responsible for setting monuments;
5.) This plat was not issued to show the location or character of
a monument that has been changed in location or character or
that is shown incorrectly as to location or character on the
preceding plat;
6,) This plat was not issued to correct any other type of
scrivener or clerical error or omission previously approved
by the municipal authority responsible for approving plats,
including lot numbers, acreage, street names, and identification
of a.dja.cent recorded plats;
7.) This plat was not issued to correct an error in courses and
distances of lot lines between two adjacent lots.
8.) This plat was not issued to relocate a. lot line to eliminate
an inadvertent encroachment of a. building or other improvement
on a. lot line or easement;
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9,) This plat was not issued to relocate one or more lot lines
between one or more adjacent lots if:
(A) the owners of all those lots join in the application
for amending the plat;
(B) the amendment does not attempt to remove recorded
covenants or restrictions; and
(C) the amendment does not increase the number of lots;
More specifically, error may have occurred because it, we
believe did relocate one or more lot lines between one
or more adjacent lots where;
(A) the owners of all those lots did not join
in the application for amending the plat;
(B) the amendment may have attempted to remove recorded
covenants or restrictions; and
(C) the amendment increased the number of lots as
evidenced by the issued amended plat.
10.) This plat was not issued to make necessary changes to the
preceding plat to create six or fewer lots in the subdivision
or a part of the subdivision covered by the preceding plat. if:
(A) the changes do not affect applicable zoning and
other regulations of the municipality;
(B) the changes do not attempt to amend or remove any
covenants or restrictions; and
(C) the area covered by the changes is located in an
area that the municipal planning commission or other
appropriate governing body of the municipality has
approved, after a. public hearing, as a. residential
improvement area;
More specifically, error may have occurred because it, we
believe did make necessary changes to the preceding plat
to create six or fewer lots in the subdivision or a. part of
the subdivision covered by the preceding plat where:
(A) the changes DID affect applicable zoning and
other regulations of the municipality where at
a. minimum it;
a..) was the first formal attempt in this block to formally
define the closure of one end of an alley more than
100 feet in length in violation of what we believe to be
the most recent law on such matters which was effective
as of December of 1997;
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We believe that there are other ordinances which were
violated as well, however we reserve the right to
further enumerate them between now and time of hearing.
(C) the area. covered by the changes is located in an
area that the municipal planning commission or other
appropriate governing body of the municipality has
approved, after a public hearing, as a. residential
improvement area where;
a.) There was NO public hearing granted over the issue
nor notice to us that this project even existed.
Specifically, we were denied what should have been
a. right to question the aspects of this project in
that the only notice we had on this issue was when
visual evidence of the work began, less than 30
days ago and months after we should have had a
right to protest the issuance of this plat under
the law.
(B) the changes DID attempt to amend or remove covenants
or restrictions in that it;
a..) violated covenants that. the City Council reached
with the people of the Southside Historic Area
in action taken July 23, 1998, wherein the
Council, by accepting the recommendations of
Staff and the Neighborhood Preservation Committee,
report and the Resolutions therein, joined in
and adopted as RESOLVED that, at a minimum:
aa..) Required that the same people whom approved
this plat should have implemented, as instructed
there own recommendations to Council, the
exact course of action they should have taken
that would have caused, at a. minimum, this
plat to go up for hearing!
(11) This plat was not issued to replat one or more lots fronting
on an existing street where:
(A) the owners of all the lots materially affected by this
plat were given the right to join in the application
for amending the plat, specifically;
a.) They were deprived of that right by the errors
which have occurred in the issuance of this plat
(B) the amendment does attempt to remove recorded covenants
or restrictions as noted previously above;
(C) the amendment does increase the number of lots;
and
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(D) the amendment does not create or require the extension of
municipal facilities, we believe, in such a. fashion that
its issuance will further deteriorate that city's ability
to properly serve all the lots, at a. minimum in the
in the specific block where this amended plat was issued.
We believe that we have a right to seek hearing under this law because as per
section of the law:
Sec. 212.0115. Certification Regarding Compliance With Plat Requirements.
(h) The municipal authority responsible for approving plats may
adopt rules it considers necessary to administer its functions
under this section.
(i) The governing body of a. municipality may delegate, in
writing, the ability to perform any of the responsibilities
under this section to one or more persons. A binding decision
of the person or persons under this subsection is appealable
to the municipal authority responsible for approving plats.
The decision to issue this amended plat was a. binding decision. It was a.
unilateral decision in which we had no notice or in which we were given any
opportunity in which to participate.
The economic damages to us which the project may force in the future, because
of the changes in utility service and street aspects of the project may well
exceed the value of the proposed construction of the project.
In:
TITLE 7. REGULATION OF LAND USE, STRUCTURES, BUSINESSES, AND
RELATED
ACTIVITIES
SUBT ITLE A. MUNICIPAL REGULATORY AUTHORITY
CHAPTER 211. MUNICIPAL ZONING AUTHORITY
SUBCHAPTER A. GENERAL ZONING REGULATIONS
we note that, by delegating the authority to approve this plat to one or more
person or persons, that person or persons had the legal requirement, in
considering this plat to act in consideration of:
Sec. 211.003. Zoning Regulations Generally.
(a) The governing body of a municipality may regulate:
(1) the height, number of stories, and size of buildings and
other structures;
(2) the percentage of a lot that may he occupied;
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(3) the size of yards, courts, and other open spaces;
(4) population density; and
(5) the location and use of buildings, other structures, and
land for business, industrial, residential, or other
purposes.
(b) In the case of designated places and areas of historical,
cultural, or architectural importance and significance, the
governing body of a municipality may regulate the construction,
reconstruction, alteration, or razing of buildings and other
structures.
This project is proceeding in the Southside Historic Area. of College Station,
Texas, The area. is demarked, for public notice, by signs which double as
traffic control signs during high traffic events in this city. The signs'
secondary purpose, to control street use during high traffic periods, clearly
indicates t.hat this area has special considerations necessary for both the
overall neighborhood area and that the basic civil engineering infrastructure
on which this neighborhood was founded and exists today. It cannot handle
many aspects of any additional structural density for property in this area.
There is such a. sign denoting this actually in front of this project and has
been there continuously during the entire period where this project took
place, was planned, and even before the developer bought this property, as far
as we can tell.
The adjacent property next to this project is a designated Historic Home in
the City of College Station. To my personal knowledge, our homestead, the
house on either side of us and the house behind us qualify for such registry.
We are spending significant money now on the family homestead preparing it for
such registration. I believe you will find that all but one house, six more,
in the facing property to the East of the project qualify for such registry.
At a, for practical purposes, joining corner to the rear of this project is
yet another house that qualifies for registry. Within only a. few more years,
some four or five more houses in this same block will also qualify,
Welsh Street, itself, has been effectively sheltered by Council action and the
designation of the area, when taken into context of the acceptance of the
Resolutions of the area's Neighborhood Preservation Committee. Even the
street and changes to it. must, as we see it, come to review for both the
property adjoining it as well as the protection of the trees along it, per the
Counci 1 action,
We note:
1.) Literally hundreds of people in this city have participated
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in the formulation of the Neighborhood Preservation Committee's
final report
2.) Literally thousands of hours of time have been devoted to
this issues and guidelines to he used in making decisions
in this neighborhood area.
3.) The City of College Station and the people of College Station
have invested thousands of dollars developing the guidelines
and principals which should have been used to refuse the
issuance of this plat and which should have resulted in a
request to act on it by the P&Z Commission.
In specific, as to this portion of the law, we believe that the approval of
this project is improper and may have violated the law by the simple fact that
it was issued in an area. which qualifies as to part (h) above:
1.) A VERY well known and dema.rked designated place and area of
historical, cultural, or architectural importance and
significance,
2.) The Administrative person or persons whom participated in the
issuance of the approved plat acted in violation of the
law in that in their charge to regulate the construction,
reconstruction, alteration, or razing of buildings and other
structures, they;
a.) failed to regulate the height, number of stories, and
size of buildings and other structures per 1.) above;
h,) failed to regulate the percentage of a. lot t.hat
may he occupied per 1,) above;
c.) failed to regulate the size of yards, courts, and other
open spaces per 1.) above;
d.) failed to regulate the population density per 1.) above;
e.) failed to regulate the location and use of buildings,
other structures, and land for business, industrial,
residential, or other purposes;
all to the exclusion of Sec. 211.003., (a) and (h),
It is most important to note that the same Administrative person or persons to
whom the authority to issue this plat were given, generally, in respect to the
Planning Department of the City of College Station, was or were EXACTLY the
source of the recommendations to the City Council of College Station, that
they ADOPT the very charge to protect this area which was grossly, we think,
violated by the issuance of this amended plat.
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Finally, we address the position that this is a. "minor" plat by the
Administration person or persons charged with the responsibility for handling
the plat request, Consider the following information which can he gleaned
from the documents.
A memorandum generated on July 14, 1999 by Bridgette George, the City's Asst..
Development Coordinator, strongly indicates that City Staff was cooperating
with the developer in helping him obtain approval of the plat without it
having to he presented to the Planning & Zoning Commission. Contained in that
memorandum is a. comment regarding extension of utilities which says,
"Please he aware that if the extension of utilities is required the plat
will no longer qualify as a. minor plat and will go to the Planning &
Zoning Commission for approval."
Other evidence suggests that, following this memorandum, the developer
reconfigured Lot 1OR to add a 5 foot wide by 30 foot long strip of land (which
no one could easily maintain) for the sole purpose of avoiding extension of
utilities and therefore escaped the necessity for an appearance before the
Planning & Zoning Commission, This memorandum further indicates that City
Staff considered this a. minor plat. For reasons explained elsewhere in this
letter, the subject replat does not qualify under State Law as a. minor plat..
Therefore, the internal confusion of our own City Staff in regard to the legal
requirements for staff - approved plats constitutes yet another reason for their
decision to he appealed to the Planning & Zoning Commission.
Our recourse, in this issue, is first to the P &Z Commission of the City of
College Station. This request for hearing and appeal to overturn the issuance
of the plat and permits to construct this project is made as timely as we can
make it, under the only time frame we could have possibly used to do this.
The matter is not of our sole interest. We know that P &Z has been asked to
act on other appeals of a similar nature in this case as well.
The issues are many fold and complex.
Time is of the essence.
We reserve the right to join others in this request..
If the P &Z Commission cannot place this issue on its agenda. for full discussion
and cannot reach a. finding in this issue at this next meeting of the P &Z, we
request that it issue a moratorium on further construction until all the
various parties in this issue can gather and present the needed evidence to
the Commission so it can reach a. fair decision in this issue.
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This project took many months to surface without our ability to inspect and
critique it. Surely the time it takes we and all others whom will be affected
by this project, to address this, will he no less damaging to the developer,
at this point, than the projected damage from his actions will be to us.
Sincerely your /
/4 't
Mrs. H. A. Luther
by Michael Lu t he r /PA
cc:
The Historic Preservation Committee
City of College Station
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