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Home My WebLink About11/10/1987 - Regular Minutes - Zoning Board of AdjustmentsMINUTES • Legal Workshop CITY OF COLLEGE STATION, TEXAS Zoning Board of Adjustment Tuesday, November 10, 1987 6:00 P.M. MEMBERS PRESENT: All present. MEMBERS ABSENT: None; Council Liaison Gardner unable to attend. STAFF PRESENT: Senior Planner/Zoning Official Kee, Assistant City Attorney Banks, Planning Assistant Johnson, Director of Planning Callaway and Planning Technician Volk AGBNDA ITBM N0. 1: 8eview of Polders of the Board. Chairman Ruesink introduced Glenda Baker, the newly appointed alternate member, to the rest of the Board. Mrs. Kee announced she would be changing the order of the meeting from the posted agenda because several people had indicated they would have to leave at 7:30 and she wanted to make sure they were here for the most important items. Mrs. Banks then began her review of the memo she had distributed entitled "Analysis • of the Powers of the Zoning Board of Adjustment". She advised that the Texas Civil Statues give the ZBA the following authority: (1) To hear and decide appeals from action of any administrative official regarding enforcement of statute or ordinance; (2) To hear and decide special exceptions according to ordinance; and, (3) To authorize variances from terms of ordinance. She then pointed out that the local Zoning Ordinance gives the ZBA the more specific powers which are as follows: (1) To hear and decide appeals from actions of the Zoning Official regarding enforcement of ordinance; (2) To interpret Zoning District Map; (3) To hear and decide requests for special exceptions as follows: (a) To substitute one non-conforming use for another which is less detrimental to the environment; (b) To allow enlargement of a building devoted to a non-conforming use; and (c) To allow the reconstruction of a non-conforming building; (4) To initiate (or hear requests for) action to discontinue a non-conforming structure or use through amortization; and (5) To authorize upon appeal variances of yard, lot width, lot depth, signs, minimum setback, and off-street parking or loading. She continued by explaining that the Board's power of deciding appeals is the easiest one in terms of its legal basis and the defensibility of the Board's action because the Board, upon such an appeal, is substituting its judgment for the decision of the staff. She went on to explain that the guiding principles to follow are (a}what does the ordinance provide (meaning and construction of the ordinance provision being disputed) and (b)what does the ordinance attempt to accomplish, keeping in mind that the intent of the provision should never be allowed to alter the clear and plain meaning of the provision. • She cautioned that one main objective of the ZBA should be consistency and good judgment, and if the City's rules do not generally further their supposed objectives, they should be changed overall, and not piecemeal on a case-by-case basis. She stated that the power to determine "special exceptions" is sometimes the most • difficult for the Board in that it demands an analysis (in each case) of the elements of the ordinance, and the use of good judgment as to the relevant and pertinent questions presented, with the "equities" of the aatter not being the priaary issues and do not justify a special exception where the requirements of the ordinance are not set. She then presented an outline of the relevant and pertinent questions presented by an application for a special exception which covered (a)the substitution of one non- conforming use for another which is less detrimental to the environment, pointing out that the extent of the use is the proper question, that is, is the second use less detrimental than the existing use, and (b)the enlargement of a building devoted to a non-conforming use where the extension is n_e_c_ess_a_ry and incidental to the existing use, where it does not increase the area devoted to a non-conforming use more than 25~ and it does not prolong t_he life of the n_on-_c_onforming us_e, nor prevent t_he_ return of th_e use to_ a con_form_in_g use and (c}the reconstruction of a non-conforming building if the cost does not exceed 60~ of the appraised value of the structure before re_c_o_nstr_uct_ion, if reconstruction would not prevent a return to a conforming use, if the reconstruction would not increase the non-conformity. She reminded the members that when they are faced with a request for a variance, it should not be granted merely to accommodate the highest and best use of the property, but can be permitted by law only if the following elements exist: (1) The variance requested is n_ot contrary to_ the public interest, (2) That special conditions exist which would create an unnecessary hardship if literal enforcement of the ordinance was followed, and (3) The spirit of the ordinance is observed and substantial justice • done (with the granting of the variance). She reminded the Board that its decisions can be appealed to District Court which will review the minutes (or in our case, a transcript of the recording tape) of the meeting and therefore, it is most important to establish a record during the meeting of the reasons and justifications for the actions taken. A(iBNDA ITBM N0. 4: Sample Case. Mrs. Kee then skipped agenda items numbered 2 and 3, to get to the sample case prepared by staff for a request for variance to the front and side setbacks to add an accessory structure for living space to be 5 feet from the side property line and 15 feet from the rear property line. Discussion took place among Board members, who use a sample form called "notes on consideration of a variance request" which Mrs. Banks supplied. After reviewing the case, and agreeing upon the variance request they would be comfortable granting, the Board instructed staff to make the sample "Consideration" forms available for use at meetings to help with the deliberations prior to preparation of the actual motion form. AQBNDA ITBM NO. 2: Review of rules and procedures of the Board. Mrs. Kee supplied the rules and procedures of the Board which are now followed and asked each member to review them. She said she would have an agenda item included at a regular meeting for discussion of them so any changes desired could be taken up then. • Mrs. Kee mentioned that there are no provisions or procedures specifically addressing the question of how long an item tabled can or should remain on the table before taking action on it. She said there are also no procedures addressing the Board's ZBA Legal Workshop Minutes 11-10-87 Page 2 • ability to subpoena witnesses for a meeting, and thought perhaps those subjects should be addressed in the future. AGBNDA ITEM N0. 3: Review of Pertinent Cases. It was decided to delete discussion of pertinent cases from this agenda, but Mrs. Banks briefly referred to the case she had handed out at the beginning of the meeting, from the Texas Court of Appeals concerning a particular case where the preservation of trees was considered a special circumstance. AGBNDA ITBM N0. 5: Robert's Rules of Order. Board members asked questions about how Robert's Rules apply in situations where a motion has been made and seconded, and someone from the audience begins to speak from the floor to the Board; after the question is called, are votes cast on whether the Board is ready to call the question, or are votes cast on the motion on the floor; and, what are the steps to follow when amending a motion. Mrs. Banks said she would research the answers and supply them to the Board at a future meeting. AGBNDA ITBM N0. 6: Suggested reading. Mrs. Kee informed the Board that the books listed on the agenda, along with others which would be good reading, are in the Planning Division library and are available to be checked out if anyone wants to use one. AGBNDA ITBM N0. 7: Other business. • There was none. AGBNDA ITBM N0. 8: Adjourn. Mr. Thompson made a motion to adjourn. Mr. Henry seconded the motion which carried unanimously. APPROVED: ------- ~~! C- ----- ---- Chairman, David Ruesink • ATTEST: ------------------------------ City Secretary, Dian Jones ZBA Legal Workshop Minutes 11-10-87 Page 3