Loading...
HomeMy WebLinkAbout02/18/1986 - Regular Minutes - Zoning Board of Adjustments• MINUTES CITY OF COLLEGE STATION, TEXAS Zoning Board of Adjustment February 18, 1986 7:00 P.M. MEMBERS PRESENT: Chairm Herzik MEMBERS ABSENT: None STAFF PRESENT: Zoning Zoning Elmore AGENDA ITEM N0. 1. Call liaitations of Board. an Upham, Members Wagner, McGuirk, Meyer & (Alternate members Gilmore & Swoboda in audience) Official Kee, City Attorney Locke, Assistant Official Johnson, Assistant City Attorney and Planning Technician Volk to order - explanation of functions and Chairman Upham called the meeting to order and explained the functions and limitations of the Board. AGBNDA ITEM NO. 2. Hear visitors. No one spoke. • AGBNDA ITBM N0. 3. Approval of Minutes - aeeting of January 7, 1986. Mr. McGuirk made a motion to approve the minutes as shown; Mr. Herzik seconded the motion which carried unanimously (5-0). AGBNDA ITBM N0. 4. Consideration of a request for variance to side setback requirement (Ord. No. 850 Table A) at the single faiily residence at 8603 Rosewood Drive. Applicant is RepublicBank A&M. Zoning Official Kee explained this request is to allow the owner/applicant, RepublicBank A&M to receive a Certificate of Occupancy on an existing structure on which a fireplace encroaches the side setback by an amount unknown to staff, but to be submitted by the applicant. She described the adjacent structures, pointing out that even with the encroachment, there is at least 15 feet of separation between this structure and the one nearest to it. She then explained the sequence of events which have taken place over the past 18 +/- months and led to the necessity of this request for variance (Building permit requested 6-18-84 indicating deletion of fireplace; slab inspection on 7-2-84 indicated setback compliance; prior to issurance of C.O. staff received telephone complaint from neighbor regarding possibility of fireplace encroaching side setback; inspection at that time revealed encroachment). After that explanation, she passed around the only remaining copy of the site plan which accompanies the application for building permit, and which has the encroaching fire place crossed out. Mrs. Kee then addressed the section of the application in which the applicant states the builder of this home was utilizing Note "D" of Table A regarding lot line • construction. She then explained that the City staff has interpreted that to use lot line construction requires one structure placed on the lot line with any adjacent structure placed at least 15 feet away; therefore, not allowing for a variable ZBA Minutes 2-18-86 Page 1 setback. She informed the Board that although both the subject structure and the • structure adjacent to it were built by the same builder, in order for lot line construction to be used, site plans of all affected structures must be submitted together to allow staff to review the plans to ensure that all setbacks are being met. In this instance the house at 8605 was permitted in 1983 and the subject house followed approximately 18 months later in 1984. She then explained that staff had worked with the builder to try to solve the problem short of removing the fireplace or seeking a variance, but apparently possible solutions were dropped, and now the bank owns the house rather than the builder. Mr. Herzik asked if the Legal Department agrees with the Zoning Official's interpretation of lot line construction, and Mrs. Kee replied that she had merely explained her interpretation for the Board's information. Tim Chinn, 1214 Munson, an engineer with Kling Engineering was sworn in and identified himself as a representative of the owner/applicant. He passed around a sketch with the encroachment highlighted, then gave some background information dating back to approximately one year ago which included the information that replatting was tried, but apparently negotiations between the builder and the adjacent property owner broke down as the plat was never finalized or filed. Steven Smith, 19 Cedar Ridge Drive, was sworn in, identified himself as an attorney representing RepublicBank A&M and explained that the bank had financed this house, the builder defaulted on the loan and now the bank is the owner. He went on to explain that the builder thought that Section 5D was not applicable when adjacent houses were built by the same builder. He stated that when the bank was made aware • of the problem, contact was made with the owner of the adjacent lot to discuss alternatives, but all negotiations with that owner (Mr. Poteet) failed, therefore the bank was forced to come to this Board with a variance request. He then stated that he believes that perhaps a lay person may have some difficulty in .interpreting the Zoning Ordinance as it is written, especially if that person is developing adjacent lots. Questions followed regarding whether this fireplace is on the slab which was inspected by the City or adjacent to it, whether property owners within 200 feet of this property were notified of this meeting, and if the Board understood staff's explanation that the official plans which were reviewed and approved for the building permit actually showed this fireplace as being deleted. Mr. Smith stated that it is his understanding that this fireplace was not added after the slab was poured and Mrs. Kee replied that property owners within 200 feet had been notified but the only reponse she had received was from Mr. Poteet and referred to the letter from him which was handed out prior to the meeting. She then confirmed that the official building permit plans show deletion of the fire place. Mr. McGuirk stated that he can find no unique and special conditions of this land, and asked Mr. Smith to please demonstrate. Mr. Smith replied that he does not know what that means, but addressed language of the statute which refers to conditions not contrary to public interest or where a literal enforcement of the ordinance would result in unnecessary hardship. Mr. Herzik asked if there are any hardships other than financial the applicant could demonstrate. Mr. Smith said he has no answer to that question; that the bank could have the fireplace torn down, but is attempting to do everything it can on a voluntary basis (including offering cash for adjacent • land), but no help or relief has been received, so this variance request seems to be the last resort. ZBA Minutes 2-18-86 Page 2 Donnie Poteet, 8605 Rosewood was sworn in and stated that the builder had always told • him that the house at 8603 Rosewood was for him and his wife, and his wife wanted 3 fireplaces. He stated that the bank had offered monetary reimbursement for additional land from his lot in the amount of $200, which had been declined. He spoke of an alternative being to tear this fireplace down and to build one inside the house. He then stated that the encroaching fireplace had been poured with the original slab and not as an addition after the house slab was poured. Mr. Smith was granted permission to respond to the bank's offer of $200, and stated that when asked what it would take to get the additional land, Mr. Poteet suggested the bank could pay off his house note which was in excess of $100,000 and then he would consider giving it the necessary land. E. C. Poteet, 8605 Rosewood was sworn in and talked about the contact made by the bank, the suggestion that he made of removing the fireplace, and how the builder had referred to the house at 8603 being for himself. City Attorney Locke handed out examples of case law to be studied by the Board. Jimmy Jackson, 8607 Rosewood was sworn in and stated that the subject house encroaches on two sides (adjacent to Mr. Poteet's lot and adjacent to Mrs. Vance's lot}, He stated that some sort of agreement had been reached between the builder and Mrs. Vance. He also stated the builder had built the home for himself, and that the neighbors do not believe this variance should be allowed, for if it is, he fears the ordinance will not be followed at all in the future. Mr. McGuirk questioned the alleged encroachment violation on the other adjacent lot • and Mr. Jackson said he was repeating hearsay, and wanted the engineer to respond. Mr. Chinn responded, stating he is not aware of an encroachment, but that he does not have a plat to refer to. Donnie Poteet reapproached the Board and stated that Carolyn Vance (lot adjacent to subject lot on other side) had said that the house does encroach on her side and she is considering either a trade with the bank or signing a release. • Mr. Smith spoke up and stated the site plans the Zoning Official has submitted for review shows compliance, and further that the City has never mentioned a problem on that side of the lot. He stated that he had conversations with Mrs. Vance, but not about that matter. James Dreidelbis, 2901 Indiana, Bryan was sworn in and identified himself as a Senior Vice President and Loan Officer for RepublicBank ABdN. He stated that he has talked with Mrs. Vance regarding buying additional land, but those discussions have no connection with this encroachment. Mrs. Meyer asked Mrs. Kee to restate the chronological events and Mrs. Kee complied, pointing out they are listed in the staff report. Mrs. Meyer then recalled Mr. Chinn and asked him to please clarify. Mr. Chinn presented a survey done by another firm which shows no other encroachments, adding that his firm is not aware of any others. He then repeated that his firm had worked with the builder in preparing a replat of this lot with additional land from the adjacent lot (8603), but that plat was never finalized. He said from that point, other remedies have been tried which included lot line construction, but nothing would work. Mr. Herzik called Mr. Smith forward and asked him if he believes the bank has inherited a problem. Mr. Smith replied that he does, as the bank did not know of the ZBA Minutes 2-18-86 Page 3 encroachment prior to foreclosure; then clarified and stated that they did know • approximately 30 days prior to foreclosure; that the foreclosure letter had been sent out on 10-14-85 and the bank found out about the problem after that date. Mr. Herzik then called Donnie Poteet forward to ask if he had made the call to the City regarding the encroachment after the permit had been issued and the slab poured and Mr. Poteet said he had called the City in mid-August or early September 1984 to report that he believed there was a problem (from observation only) but that he could not be sure. He said he also spoke to a representative of the builder who said she would mentioned the concern to Mr. Lane, but that was the last he (Poteet) had heard from Mr. Lane until Mr. Lane contacted him and told him of Mrs. Vance's encroachment. Mr. Wagner asked if Mr. Lane lives in the City and Mr. Poteet replied that he lives at 8606 Rosewood, but he has not discussed the problem recently with him. Mr. Herzik asked Mr. Poteet what he believes a reasonable alternative would be and Mr. Poteet replied that the encroaching fireplace could be removed and rebuilt inside the structure, adding that people who buy in College Station know there is a Zoning Ordinance and believe they will be protected by it, and if the ordinance is ignored, what would prevent establishment of a gas station on the other corner in this subdivision. Mr. Wagner. stated he believes this is a case of inherited hardship on the part of the bank, as it (the bank} had nothing to do with the problem, but continued by stating that he does not feel the removal of this fireplace would cause any unsightliness such as chopping off the corner of a house would. He added that it seems like this is a case of too large a house on too small a lot. Mr. Wagner asked Mrs. Kee if the builder had been contacted between receipt of the • call from Mr. Poteet and October 1985 to which Mrs. Kee replied he had been contacted, staff had met with him several times, and he had made attempts to replat this lot showing additional land from the adjacent lot which would have rectified the problem, but that plat had never been signed by all parties involved, therefore, had not been taken through the platting process. Mr. McGuirk made a motion to deny this variance to the minimum setback Table A (side setback) from the terms of this ordinance as it will be contrary to the public interest, due to the lack of unique and special conditions of the land not normally found in like districts: 1. The nature of the encroachment into the side setback resulted not from any unique feature of the land, but from constructing a portion of the house in non-conformity with the approved site plan, 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 - two neighbors stated that the granting of a variance was not in the public interest of neighboring property owners. Motion was seconded by Mrs. Meyer. Mr. Wagner said that he had a problem with including the objections of Mr. Poteet & Mr. Jackson as part of the motion. Votes were cast with the motion to deny the request carrying by a vote of 5-0 (unanimously). Tim Chinn called for a point of order pointing out that the City Attorney had just supplied him with a plat of the subdivision which might be interpreted to show that the lot in question is "odd shaped", as it is at the beginning of a cul-de-sac and the lot lines are not parallel. AGBNDA ITBM N0. 5. • parking requiresents 315 University Drive Consideration of a request for variance to (Ord. No. 850 Sec. 7-C) to open a restaurant at (Bailio's). Applicant is John J. Loffarelli. ZBA Minutes 2-18-86 Page 4 Zoning Official Kee explained that this request is for a parking variance in Northgate at a location which has a history of parking variances which have been granted, but this particular variance would be for a restaurant rather than the 6 off-site spaces for an arcade without food or drink as was granted on previous occasions. She then referred to minutes as included in the packets covering previous variances and told the Board that at the time a permanent variance was granted to this location (10-18-83) the minutes are unclear as to the conditions of that variance - whether it restricts the use of the property to an arcade without food and drink, or is simply a parking variance. Mrs. Kee then referred to the draft copy of the section of the proposed zoning ordinance which covers the Northgate area, pointing out that the public hearing before the City Council for this ordinance is scheduled for March 13th, and if this section is approved, and then the entire proposed zoning ordinance is approved either at that same meeting or the following meeting, changes in requirements will take place and there is a distinct possibility that a parking variance would not be necessary for this applicant to do as he proposes. John Loffarelli, 1205 Westover was sworn in and identified himself as the applicant, then explained that although the dimensions of the subject building are only 10'x 100', he has a floor plan which will allow 24 tables with 42" between tables and 2- 36" exits, all which would be in compliance with the building code. He pointed out that the 24 tables with 4 chairs at each table would total 96 seats, but that he is only requesting to be allowed to open a restaurant with 80 seats. He referred to surveys done in the past which have indicated that roughly 45X of the traffic in Northgate is walk-on (from the campus), therefore required parking should be less in this area than other areas of the city. • Mrs. Kee again explained the previous conditions attached to the year-to-year variance which had been granted for this location, adding that she is still unclear as to whether or not those same conditions had been attached to the permanent variance. Mr. Upham said that he had made the motion, and although it does not reflect those conditions discussed previously, the same conditions were meant to be included in the permanent variance, therefore the use of this building would be restricted - the parking variance was for 6 spaces for an arcade without food or beverages. Discussion followed between Board members and the applicant as to whether or not leasing the space differed from owning the building; also, the Board pointed out that a variance goes with the land and not with the applicant. The applicant stated that he has a restaurant on Patricia with 37 seats which he plans to take out and put at this location, and use the Patricia Street location for cooking. Mr. Wagner said he (the applicant) cannot use those seats at Patricia Street for a credit toward the subject University Drive property; that moving those seats would not affect the University Drive property other than to require X number of parking spaces (based on the number of seats}. Mr. Herzik stated it makes no difference what percentage of people walk to this restaurant or how many seats the applicant plans to put in; the fact of the matter is that the location is short parking spaces - whether it be 1 or 20 and a parking variance will be required, because as he understands it, there currently is only 1 available on-site parking space. • Further discussion followed concerning the proposed number of seats, the size of the doors, the remaining aisle width and whether or not the proposal meets all safety ZBA Minutes 2-18-86 Page 5 codes. Mrs. Kee stated the building code regulates those requirements, adding that • the most restrictive code rules where there seems to be a conflict in requirements. Mr. Wagner said he feels any action tonight on this request would be premature as the City Council apparently is going pass a new ordinance which specifically addresses the Northgate area, and he suggested that perhaps the applicant would be wise in waiting a few short weeks for Council's ruling. Mr. Loffarelli stated emphatically that he did not want to wait, but would rather this Board take action on his request tonight. He pointed out that he has not yet leased this space, but is waiting the outcome of tonight's hearing before taking further steps to expand his business. More discussion followed covering many of the same points reported in the above paragraphs - number of seats, number of required parking spaces, safety of the proposal, number of existing parking spaces, history of previous conditional and then permanent variances granted to this location and whether restrictions were imposed on that variance. City Attorney Locke was sworn in, then pointed out that if conditions for the granting of a variance have changed, the condition that was relied upon can be looked at to see if those same conditions still exist. Mrs. Meyer asked Mrs. Locke if a variance goes with the land or the use of the land. Mrs. Locke replied that there is a 2 pronged test, and Mrs. Meyer should put that to use to see if the test is met. Mrs. Meyer said that if enforcing a requirement creates undue harship it doesn't matter what use is there. Mrs. Locke disagreed stating that the condition of the land might still exist but the hardship may change and cited the previous case in which the prior owner had a hardship which was then passed on the current owner, with no special condition. • Mr. McGuirk stated that he believes the discussion is getting somewhat far afield, that the question to the applicant is whether he would consider agreeing to having the Board table this request until after City Council takes action on the zoning ordinance, which should be within a few weeks. Mrs. Meyer pointed out that just because a hearing is scheduled with the possibility of approval of a new ordinance, does not mean that this project will not have special studies. Mr. Upham concurred, further explaining that the Board has the option of tabling this request or taking action (either to grant or deny the request), and he wanted the applicant to have the opportunity to make the choice. Mr. Loffarelli stated he would prefer the Board take some action and not to table the request. Mr. McGuirk explained that the City Council is a policymaking body, and has expressed its desire that parking situations, especially in the Northgate area, be handled by some means other than variances granted by this Board. He questioned the wiseness of the applicant's desire for action, when he (McGuirk) for one is not willing to act on a parking variance in Northgate at this meeting. Mr. McGuirk then offered a motion to table this item. Mr. Wagner seconded the motion citing reasons being that there is no lease in place, that a better ordinance for this area is before the City Council now, and he questions whether it would be opportune for this Board to act on this now. Mr. Upham concurred, stating that a moratorium on parking variances had been declared and although that moratorium is not now in effect, it still serves to give this Board direction. Votes were cast on the motion to table and the motion carried by a vote of 4-1 (Meyer). • Mr. Loffarelli then reiterated his case that there is room for 96 seats in this building and that approximately 45~ of the seats would be used by walk-in patrons. ZBA Minutes 2-18-86 Page 6 Mr. Wagner and Mr. Herzik explained that may well be true, but that he is still • asking for a parking variance. Mr. Loffarelli said that if this request was denied he could always reapply for a variance. Mr. Wagner informed him that would not be acceptable unless conditions somehow changed. Mr. Upham reiterated that this item has now been tabled and will be taken from its tabled position at a later date. AGBNDA ITBM N0. 6. Other business. Mr. Upham directed staff to include in future packets the list of people within 200 feet of a subject property who had received notification of a meeting. AGBNDA ITBM N0. ?. Adjourn. Mr. Herzik made a motion to adjourn with Mr. McGuirk seconding the motion; motion carried unanimously (5-0). APPROVED: ATTEST: City Secretary, Dian Jones • Cha' m n, Jack pham ZBA Minutes 2-18-86 Page 7 ZONING BOARD OF ADJUSTMENT FORMAT FOR NEGATIVE MOTIONS Variances: From Section 11-8.5 I move to deny a variance to the yard (6-G) lot width (Table A) lot depth (Table A) sign regulations minimum setback (Table A) (~si.0~ S~T~~~~'~ parking requirements (Section 7) from the terms of this ordinance as it will be contrary to the public interest, due to the lack of unique and special conditions of the land not normally found in like districts: 1. 2. 3 . C~xeZ ~ a. ~~ 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 ~-~~ This motion was made by Seconded by /"~i The,.~rer i ante was denied by e~~ ~ e roiiowing vote: gnature ~~~; Date %!~ ,ztia~~, ~Lfiu. ~~.,~c~tb~tT.~~v~..~n!/ s ~.~e, ~ S'tI(~ r~%t~~'fe~!.~- .~ea!e~cGl~,