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HomeMy WebLinkAbout04/01/1986 - Regular Minutes - Zoning Board of Adjustmentsr1 TRANSCRIPT OF A PORTION OF THE ZONING BOARD OF ADJUSTMENT MEETING OF APRIL 1, 1986. BOARD MEMBERS PRESENT: Eric Herzik, Gale Wagner, Jim McGuirk, Bob Gilmore and Jack Upham, Chairman. BOARD MEMBERS ABSENT: Dorothy Meyer and Allen Swoboda. STAFF PRESENT: Carol Elmore, Assistant City Attorney, Jane Kee, Zoning Official and Shirley Volk, Planning Technician. VISITORS PRESENT: See guest register. UPHAM Item 4 - consideration of a request for variance to side setback requirement, Ordinance No. 1638, Table A, at the single family residence of 8603 Rosewood Drive. Applicant is RepublicBank A&M. • KEE Yes, I would like to go over the facts of the case again, you know was before you last month, but this is a new application and not a tabled item. The applicant, as you see, is RepublicBank A&M and the property owner at 8603 Rosewood. The current zoning on the property is R-1 single family and the applicant is requesting a variance to the side setback in order to receive a Cer- tificate of Occupancy on the existing house that has an encroachment. The encroachment is the fireplace on the side. If you would refer to your packet for a copy of the lot that's platted, you will see the utility easement along that side lot line in question, but the fireplace does not encroach into that easement. The setback requir- ed, of course, is 7 1/2 feet on that side. The setback provided currently is 5.8 feet. There are residences on both sides of this particular property. The garage and driveway of the resi- dence at 8605 is the nearest structure to the property line in question. Even with this set- back encroachment, however, there is more than 15 feet of separation with the garage next door as this particular structure offsets. The building permit was originally requested for this house on r: 6/18/84. At that time, the fireplace was deleted from the plans by the builder. The slab inspec- tion was made 7/2/84. At that time, the slab inspectors found that the setback was alright and there was no fireplace at that time. Prior to the Certificate of Occupancy, the staff received a call from the neighbor indicating the fireplace had been added and appeared to encroach the side setback. The two alternatives that the staff. sees thus far, is, of course, remove the fire- place, or replat the property. You will recall from the last meeting that replatting had been attempted on various occasions and apparently is not a viable option. I would also refer to you in your packet to the memo from the City Attorney explaining the change in the ordinance language, Section 15.2E, of which you have a copy of that section which (unintelligible). I would also refer you to the letter from applicant's attorney, Steve Smith, referencing the same; and I would just as a final item like to read for the record the way that Section 15.2E reads in what is now Ordinance No. 1638 which is the ordinance that revised and updated the City Zoning Ordi- nance. Section 15.2 is Powers and Duties of the Board of Adjustment. Subsection a reads, "That the Board shall have the following powers: to authorize upon appeal variances of the yard, lot width, lot depth, signs, minimum setback, off- street parking, or off-street loading regulations from the terms of this ordinance as will not be contrary to the public interest where owing to special conditions, the literal enforcement of the provisions of_ the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done." I would point out that the change in the language specifically is a referenced "special condi- tion". As you recall old Ordinance No. 850 re- quired unique and special conditions of the land not normally found in like districts that were and have been changed to just "special condi- tions" which is in line with how the statute is. That change was made on, well, the City Attorney made that change to the Planning Department and carried it before Council and under the direction of Council; and therefore this item is back - 2 - • s • before the Board with a change in conditions and that being the different language. UPHAM Any more questions at this time? Anyone else like to be heard on it, I presume. Raise your right hand. Repeat after me. I solemnly swear to tell the truth in these preceedings under the penalty of law. SMITH I do, Mr. Upham. UPHAM would you kindly give your name and address. SMITH My name is Steve Smith, I reside at 19 Cedar Ridge Drive in College Station. I think you all remember, but for the benefit of Mr. Gilmore who I do not believe was here the last time, I'm going to go over a little bit about the facts of the case again for his benefit. GILMORE I was here last time. SMITH Were you? I'm sorry. That's right you were sitting back here as an alternate. At the time of the last meeting, I suggested that, in my opinion, the way your powers were structured was outside the scope of the enabling statute that was passed by the legislature, Article No. 1011g , of Vernon's, in that unique and special condi- tions of the land not found in like districts unduly limited the scope of any kind of condi- tions that you could consider. Following the denial of our variance request, I filed suit in District Court on behalf of RepublicBank A&M; and in that suit I requested that the Court overturn your decision. I also suggested at the time that the statute as it was written here, the municipal ordinance, exceeded the powers given to the ZBA in the statute. Apparently, that argument was with some merit, at least in the City Attorney's eyes, because the statute has been changed. The statute now tracks to the letter verbatim the language in 1011, Subsection g, in especially Subsection 3, where it allows you to consider special conditions. It is our position simply that under the Code Construction Act in Article 10 of Vernon's, that unless there is a specific meaning attached to the word "special condi- tions", which I am unable to find in the statutes - 3 - or in any court cases, then this board must abide by Vernon's rules of construction which means the normal ordinary construction that you and I would use in everyday normal language, what I call the "Websters Construction". "Special conditions" meaning exactly that. Any special condition regarding the property that happens to exist. In this case, in my opinion once again, the special condition that exists is that the fireplace is over the setback line. Because of the change in the ordinance, I do not believe it has to be a special condition of the land any longer. The statute just refers to special conditions. I believe that we...I will not get into it. I want to save the board's time, and I'll be glad to answer any questions. I don't want to get into the things that we have heard before because they are going to be the very same things. RepublicBank A&M did not create this hardship; we have inherited this hardship. We believe it is a hardship. We believe that the enforcement of the ZOoning ordinance to the letter will result in an unnecessary hardship to us and that~the spirit of the ordinance would not be unjustly hindered, un- justly cut into, if the variance is granted and that substantial justice would be done with the granting of the variance. We do not believe that granting the variance for less than two feet, 1.7, I guess it is, feet of additional side set- back with the consideration of Mr. Poteet's garage and driveway being the nearest structures, and his house being further and beyond that with fifteen feet still between those. We do not believe that the substantial injustice that RepublicBank A&M would be under if you did not grant it is out-weighed by the potential harm to Mr. Poteet's property. HERZIK Since the law has now been changed to "special conditions", as I read that you left out a clause, that it would not be contrary to the public interest. SMITH That's true. HERZIK With special conditions, anybody can come in and say this is a special condition. That's a rather wide open clause. We need to include something • - 4 - U that would not be in conflict with the public interest. Could you define public interest in this case. SMITH I think the public interest, Mr. Herzik, is simple. And that is to keep the basic integrity of zoning requirements. That is the purpose, as I understand it, of zoning. I'm not a zoning lawyer, but I think that everybody wants to be sure that their house is adequately protected from their neighbor's house and that it is ade- quately protected from their neighbor's house in the back and from a street or traffic in the front. HERZIK Given that, aren't you asking for a variance problem, the variance zoning law as involved in the City of College Station? SMITH Yes. HERZIK Aren't you questioning the integrity of the law? SMITH I don't believe so. If I were not allowed to question or seek a vari ance, why would we have a provision for variances? UPHAM I don't think anybody is questioning your right to question us. While you are an attorney and have a little bit of "up-manship" on us here I , think you will find that what we will be doing here is considering the case in all of its seriousness, and we will probably pick your brains a little bit and take advantage of this and rest assured we shall. SMITH That's part of the process - considering all things. HERZIK Back to my point on the integrity of the law I , have another question to go with it. I recall from the minutes that have been approved that I asked this question about a month ago, if Mr. Poteet had in fact called the City to complain about the pouring of the slab before the fire- place ever went in, and it seemed to pass through but h , yes, e had done this. That seems to almost b e a challenge. He called and questioned the law at that point, at a time before the fireplace was - 5 - • even built and the foundation set. Somehow he is upset by it. We have the zoning law, and he noticed the violation, called attention the City, immediately; and now you are coming asking for this law to be, at least given some sort of variation from. SMITH Well, let me step one step further, Mr. Herzik, if I may. He apparently did call and complain. What I can't understand is if he called and com- plained at the time of the pouring of the fire- -place, and before the framing went up, what I can't understand is why that point wasn't appa- rently addressed before construction was allowed to continue to begin with. Now that is not a problem, obviously, RepublicBank did. It seems to me that somebody with the City may have dropped the ball. If that phone call was in fact made and said, "Hey, we've got a problem here" , I'm wondering why, and I assume that you have a slab inspection, and then I assume you have a frame inspection, and I'm assuming these things because I built my home outside the City. But if • you have a framing insection, and assuming the fireplace is th h ere w en it is framed, I assume it would have to be, why the problem wasn't caught then by City personnel, and I can't give you an answer to that question. I wish I could. HERZIK I don't think I can either. SMITH While that may benefit on his side some, I think it also benefits on our side some in that the whole thing had been allowed to proceed if in fact that phone call was made. I don't know why it wasn't caught earlier. HERZIK You've inherited the problem, and we've inherited the problem. SMITH I think we all have. UPHAM I'm having a little problem here, well, inherit- ing things here, too. I've sat on the board a long time, and I've heard unique and special law a lot of times, a million times, and I've heard discussions as to this is only a little bit off or etc., and my wife is nothing but a little bit pregnant. So I have that situation here which is - 6 - a problem to me, and then we now get down to where we have the word special only. We have a case here where there was erroneous and deliber- ate violation of the permit. I'm also having to do here to bring myself to believe that the in- tent of the legislature to use the word "special" and that they so design this thing that will allow for erroneous and deliberate violation of permit. That's the problem I have. "Special.", yes many things are "special" and properly so, but I'm having a very difficult time believing that the legislature or even a judge, I'm not sure, judges do some funny things sometimes as we all know. I have a hard time believing that a judge would, if he was asked, "Judge, do you believe that the legislature intended to put something in here in this thing so special that it was their intention to provide for erroneous and deliberate violations of the law?" in which case that automatically negates the law. There is no effect of the law (unintelligible). So this is the problem I have. Perhaps you can bring me up to date a little bit. • SMITH Let me address the point, and please don't mis- understand me, but I disagree with you in the extreme. In my mind, there was no evidence other than somebody's supposition before that the building of the fireplace was an erroneous and deliberate action as I recall. WAGNER Beg to differ. We saw the plat of the fireplace. SMITH Okay, what I'm saying is this, I don't know, the only person that knows about the deliberateness, or the erroneousness of it, is the builder, I think; and the builder is not here. I wish I knew what the builder thought, too. WAGNER I'm not sure that's relevant tonight. I'm not sure any of this is really relevant to your problem, to what we are trying to deliberate. SMITH Mr. Wagner, that was my, hopefully, my entire position last time. Everybody has been throwing bricks at my claim. While I think that what Mike Lane did or didn't do really doesn't have a whole heck of_ a lot to do with where RepublicBank finds • - 7 - C~ • themselves, Lane may or we were not change. the problem is that whatever Mike may not have done, we did not do, and party to, and we were not able to UPHAM And then we end up with a problem down here where the only thing that we cannot under any circum- stance do is to give relief where the problem is financial only. That is about one of the most cold-blooded approaches to something, that par- ticular sentence, I believe I've ever read anywhere. SMITH There is no question there is financial hard- ship. There is also a question of aesthetic hardship in the looks of the house. I don't think that is a financial consideration. I think that is a consideration where homeowner might say, "I don't care what is said, you can't match brick for brick once it's done." I don't care what you say. There is also the question of the interior having to be changed. It will be a financial hardship, yes, but it will also be an aesthetic hardship upon the future owner of the property. So, I think there is something more than the financial-hardship. I agree with you that's a pretty stout... UPHAM My problem very simply is that you were talking about throwing bricks at the builder; I'm not throwing bricks at the builder, but I do ask myself a very serious question--when a man files a plat,. says one thing, and does something else, maybe he ought to have a brick or two thrown at him, I don't know. SMITH I'm not saying that he shouldn't. I'm just say- ing that we had nothing to do with that obvious- ly. UPHAM No, this was an inherited problem. HERZIK I don't think anybody is trying to throw bricks at your problem. I'm very sympathic to your problem. You inherited something you probably didn't know about it at the time. If you inherit and assume a contract of a corporation, don't you assume many of their problems as well as far as contractual obligations? - 8 - • SMITH It depends. Honestly, it does depend. HERZIK Isn't it at least questionable that you inherited this question - you inherited this problem inno- cently enough, but still you should have a con- tractual legal obligation. SMITH If you were selling a company to me, okay, and you had violated some ordinance or statute while you were running the company, I do not believe that I'm going to inherit the responsibility for any liability that you may bear for acts done erroneously and deliberately, okay. I don't think that's going to flow with it. I'm going to take your notes payable and your bank accounts and everything else, but I don't think you can shift that what I'll call "quasi criminal" lia- bility over to another party simply because they step in. And this was not a voluntary assign- ment; obviously it as one taken under duress. UPHAM So was this. • WAGNER I think that, frankly speaking for myself, this is an emotional time in the sense that we have been sometimes laboring under a previous ordi- nance that really was not so liberal, was much more conservative. We are faced with a case that is a perfect example of what we would have thought a month ago or even two weeks ago to have been outside of the realm of our purview and that it is so liberal in interpretation that we would have never considered it. Although if you will review the minutes, I think you'll see that a certain portion of this was considered very carefully a month ago. I think we are dejected in the sense that we see here, to some degree, a "prostitution of the city ordinance". I think that the enabling act in the legislature suggest- ed that cities could take it upon themselves to make those ordinances as strict as they wished if they thought they had the guns to back it up. I think we, once upon a time, had a much more strict Zoning Ordinance than we do now. I think that we see our city, perhaps growing up in a sense; but at the same time, as you have so amply put, tracking the legislature, tracking the r1 U - 9 - record, tracking the court decisions, that have preceded us. So we have very little, in fact, recourse. SMITH And I'm not so sure that I disagree philosophic- ly. WAGNER Well, I think because of that and in order to keep it from getting to emotional this evening that we probably should stick very closely to the point of tonight's deliberation, that being whether you, RepublicBank, have any case at all to allow this fireplace to continue. I think probable that we're, back in my own mind and speaking for myself, it is an inherited hard- ship. I see it as that. I think that if we try to explore any other avenues, fault or otherwise, that it would probably be counterproductive at this point, and with that I'll shut up. HERZIK I'm not sure I agree with that except for the fact, ironically, Texas law is causing us to be more liberal, yet, tracking the legal cases, the big one seems to be the Corpus Christi case. • SMITH McBride? HERZIK In that case, the court ruled that the Corpus Christi ZBA essentially acted capriciously and that they granted some requests. SMITH Granted some and didn't grant others, that's right. HERZIK Do you happen to know, I was unable to find in any of the reprinted material we got, if there are any neighbors involved in this? A differing view of the public interest view so of speak. SMITH Just a moment. Mr. Herzik, it doesn't say one way or another in the case, and I'm looking at the court decision of the case. MCGUIRK I find a fundemental difference between that case and this case. That fundamental difference being in that case the builder built to an approved site plan, and in this case the builder built at odds with the approved site plan. • - 10 - L J HERZIK I would agree with that and also say that there are two other differences. The one I just asked about and. there seems to be contention here in a sense, in defining the public interest of two neighbors-RepublicBank and , and also the kind of zigzag course set by the ZBA of Corpus Christi on that very same property. WAGNER I fail to...well, go ahead, and then I'm going to give you my opinion. HERZIK I guess what I'm getting back to is we've now been given this new statute defining the public interest. Public interest that is not contrary. Consider special conditions that are now con- trary to public interest where before, Mr. McGuirk would always give us our one, two, three that we had to consider on any appeal, but now that's all we have to go by. Special conditions and public interest, two rather ill-defined terms. WAGNER Let's go back and suppose that the City would . have acted on Mr. Poteet's initial phone call. And that they would have acted in such a way that the Certificate of .Occupancy to the builder wouldn't have been granted. That the builder then would have had to come before the ZBA to request a variance to allow his fireplace to exist so that he could get a key to the front door, as it were. In that instance, I think we would have been more than adequately supported to have turned downed that variance without removal of the fireplace for the very conditions that we are talking about now. But the RepublicBank is not the builder. RepublicBank has foreclosed on the property. They had nothing to do with the fireplace and are now faced with howbeit aesthe- tically not unpleasant, it's still a rather horrendeous thing, but still it does have that bloomin' fireplace there. And if you look at it from a certain degree, it looks like the fire- place belongs there. Now, it seems to me that RepublicBank has inherited this problem. It has nothing to do with the plat, I'm afraid, or the builder, I'm afraid, or anything else that has happened before including, to an extent, Mr. Poteet's phone call at the very beginning. That's what I find is my dilemma. - 11 - • McQUIRK Mr. Chairman, are we still questioning witnesses or are we in the discussion phase? UPHAM I think that we are probably ... SMITH I'm still here to answer ... UPHAM This is a nasty thing in that we are presented with a third party problem here in a case which is the first case under consideration with this particular problem since changing the ordinance. And if there is anything on the face of this earth that this board is not, it is not arbitrary and capricious. I think that you will see that the people have all done their homework. Their opinions are founded to the best of their abili- ty, and we are trying to do everything we can in picking your brains. I think we are not so much in discussion; we are trying to feed you and use you. You have an expertise that is of value to this board, and if we didn't do it in whatever manner we could, I think we would be remiss. SMITH I'm here to answer any questions. I just feel.. UPHAM Does that answer your question? SMITH I feel sadly, Mr. Upham, that when Cathy told me that this was going to be the first evening she used the new statute, I went, "I don't want to be in their shoes." MCGUIRK At what date did RepublicBank first become in- volved in this property? SMITH How do you define involved? I'm sorry. Okay. Originally there was money loaned on this house on, and let me get you the date of that if you will wait just a moment, 9/19/84, RepublicBank loaned money to aid in the construction of this house. That note was subsequently renewed and extended 2 or 3 times. MCGUIRK Three months after the building permit was re- quested? SMITH I'm not privy to those dates. - 12 - • MCGUIRK Building permit was requested 6/18/84. So, was this property constructed before a loan was requested on it? SMITH Mr. McGuirk, I really can't tell you. All I know is that we first loaned money on the property on 9/19/84. UPHAM There was no conditional commitment or anything of this type prior to that time? This is the problem that we have in here. I think you see what I'm getting at. A lot of times a builder will go to a bank and say, "Hey, I plan to do this thing over here. If I get all my ducks in a row, will you finance this?" The company gets his ducks in a row, took 3 months, 6 months, etc. SMITH Mr. Welch could probably speak to that better. He is president of RepublicBank. HERZIK I don't know where you are going with the dates, but as I see it, this was filed in 6/84. The alab must have been poured sometime between 8 and • 9/84, and RepublicBank lends money on a house that is in progress. SMITH I don't know. HERZIK Well, the minutes from our last meeting, we have the phone call, well the supposed phone, or alleged, whatever you want to call it, in mid August or early September, 1984, which happened before they entered. KEE I can only tell you, Mr. Upham, that the two dates, the record shows when the building permit was requested in June of that year, the slab inspection was made in July, and the phone call came sometime prior to the Certificate of Occu- pancy. And as I recall, the staff responded immedately to the phone call. UPHAM But the slab inspection was made before the loan. KEE Well, the slab inspection was made July of 1984. I don't know when the slab was poured. MCGUIRK When was the decision rendered on the C.O? - 13 - KEE There has been no C.O issued on the property. MCGUIRK But, when was that - was there a date when that was dealt with? KEE There is no date that shows in the record when we received a call from the neighbor, but we re- sponded and at that time from what I recollect the house and the fireplace were there. There would have been no other inspections made in terms of zoning until the Certificate of Occu- pancy unless someone happen to notice something that was odd or that was wrong between the slab inspection and the final certificate. Now there is a framing inspection, of course, made, but that is out of a different department, and I don't know...I'm not a building inspector, I don't know what they might have seen from the framing inspection. SMITH Let me just add one thing, Mr. McGuirk. If you are interested, we took the property back on November 5, 1984, no, 1985, I sorry. UPHAM Do you have anything further? SMITH No. UPHAM Thank you very much. Raise you right hand please. Repeat after me. I solemly swear to tell the truth in these preceed- ings under the penalty of law? POTEET I do. UPHAM Give you name and address, please. POTEET Donny Poteet, 8605 Rosewood Drive. My question right now is mainly for Mr. Smith with Republic- Bank. Mr. Smith, when you loaned interium fi- nancing, I understood your point about the City might be at fault in this case in their inspec- tion. Do you all not send an inspector out as you all are giving the interium financing funds to inspect what is being built? It's my opinion. UPHAM He would have to be sworn in if someone else is going to answer the question. • - 14 - • POTEET Well that's ~ust m 7 y, question to ya'll. SMITH I'll refer that to Mr. Welch. UPHAM Mr. Welch will have to be sworn before he can answer any of the questions. POTEET Well, that's just my, you know, question to yau'll, I feel like... UPHAM I'm going to have to raise a point of order in here. I'm afraid we are getting a little far outside of here. You might question the board, but Mr. Welch has not at this point has been a witness before. I think we are getting a little bit, formal is one thing, but this is... POTEET Well, that's what I'm, and also referring to the case in Corpus Christi, was that dealing with a fireplace? It's my understanding that it wasn't dealing with a fireplace, so how could it have very much bearing on this case? UPHAM Well, I think sons and daughters are all children of parents, and I think all cases are all child- ren of the law so long that there is a reasonable blood relationship in construction and building permits and such things as this. I think it would be adequate and therefore it would be and have a reasonable parallel. HERZIK The issue wasn't fireplaces, it was setback. POTEET Okay, that's really all I have. It was just mainly questions. HERZIK I have a question, same question I asked Mr. Smith, public interest? POTEET We feel like it - I know that as far as ourself and the Jacksons, you know, its protection of our property rights. You know, again, in the last hearing I made the case of "aren't these ordinances to protect us?". I mean, our public interest is protection of careless builders. HERZIK That might be the case if you were dealing with the builder. A third party has assumed this problem, so how is your property - define your property rights and how it is being threatened by • - 15 - • careless builders? RepublicBank is not the builder. POTEET Weren't they partner with him? Didn't they lend him the money? HERZIK If the dates are correct, they were not partners when it was built. POTEET Well, on that, to me that's questionable. You know, I don't know when--they are saying that they lent the money in September. I don't feel like a builder, with my experience with builders and stuff, very few of them are going to start building something of that size with their own money. To me it wouldn't be a wise thing to do. What if they were to run out of funds and cannot get financing. HERZIK The builder cannot obviously be called and s tinned. They had this construction foreclosed upon. All this is somewhat irrelevant. How is your - you are interpreting the public interest • from your side not as from the RepublicBank side. POTEET Right, I feel yes, the do have Y a hardship. Maybe it is something they did inherit, but at the same time, I feel like they could have had as much prevention in it possibly, had the property been inspected as it were being built. Isn't that correct? Wouldn't their inspector know the ordinances for that area if they are lending money in that area? HERZIK I don't know. ELMORE Would it be possible to swear in Mr. Welch? UPHAM You're reading my mind. Any other questions, Mr. Poteet. Thank you very much. Mr. Welch, would you care to testify in this case? WELCH Yes. UPHAM Raise your right hand, please. Repeat after me . I solemnly swear to tell the truth at these pro- ceedings under penalty of law? WELCH Yes, I do. - 16 - UPHAM Would you give your name and address. WELCH Robert Welch, 20 Greentree Circle, College Sta- tion. UPHAM The one question that I see at this point in time which is apparently germane is whether are not there was interim financing agreement with this builder--I may be using the wrong terminology--as to whether or not there was an agreement with the bank and if the builder stepped on all the bases and got everything set up with this that they would in fact finance this. Was there a prior agreement of any kind? Maybe that's a better start. Maybe I should ask the attorney whether I am asking my question correctly. Thank you very much, I appreciate your agreeing. WELCH I'll try to address that as specifically as I can. There are no two individual cases identi- cal, obviously. Typically, any agreement to advance funds by having to borrow from a banking institution is predicated on appropriate presen- tation and reasonable request, application, and ~ so forth. The type of advance varies from one type of loan request to another. Basically, the bank's obligation is to protect its investment. Number one, to determine whether it is a reason- able investment to undergo. The construction of a luxury home in that market place, one of which Mr. Lane, in this particular case, had been suc- cessful in a number of cases in the past, was not an unreasonable request, in our opinion, in the market place. We were presented with a set of plans and drawings under which we could predeter- mine what the finished product would look like because as you know, in an interim construction loan, your loan advances as the house advances. In this particular case, the bank's position is that it wants to insure itself that it is pro- tected from day one of investment of dollars. That day one of investment of dollars can be anywhere from the beginning of construction up until and including the last nail driven in the hole. There is no obligation to the bank. UPHAM Or possibly even before that. That was the ques- tion I had in here, is whether or not the builder - 17 - and the bank had an agreement to the point where I'm going to do this, and I'll go out and step on all the bases and when I get this done, and I got everything ready to go, you give me a buck to start it, and etc., and if this was done prior to the say the slab inspection, if he received any money prior to the slab inspection. WELCH Let me first of all identify what our require- ments are and I'll try to respond to where I think you are headed with it, but let me explain to you where we are under obligation to protect our depositor's funds and that is once we expend funds, we do have a set of procedures that re- quire us to inspect after we have invested dollars. Let me give you an example, however, where, and this is a real case example, where people, builders, have opted to do the best they can to preserve the interest cost of their funds, i.e. that they will spend "X" dollars up front, i.e. they will complete and construct a portion of a residence, a building, a project before even requiring an advance from the bank. The bank is under no obligation to protect its investment ,~ until it has an investment in there. So, the period of inspection covers the time of invest- ment of dollars by .the bank. That other thing we do is insure that when we began investment of dollars by the bank, that we're protected by adequate insurance, title insurance, that is the attorney's responsibility to insure the bank that before dollar one is expended, that they are absolutely certain that there is no deviation that would prevent us from obtaining a valid and first and enforceable lien on the property. So, in answer to your question, I can't tell you that. Well I can tell you that there is no obli- gation and was no commitment from the bank for any extended period of time written or otherwise on a specific dollar amount without the absence of presentation to us first and foremost of what's going to be there. The commitment to the bank, in this particular case, was in the form of dollars rather than written. There was no prior loan commitment to this particular builder for this particular project. Our commitment began when we advanced dollar one. UPHAM Can you specify what date that was? - 18 - WELCH The date of dollar one advancement? UPHAM Well, excuse me, we are belaboring this thing. WELCH Well, I just wanted you to know that UPHAM Oh, September 19, 1984. Real estate lien note $256 000 S , , eptember 19, 1984. That answers our question. ? (unintelligible) UPHAM I'll take your word for that. Did that get you the date you were looking for? MCGUIRK I was willing to accept it the last time It th . was e other date I was looking for. Right up to the point where you started considering fore- closure and up to the oint h p w ere C.O. was not going to be issued. This was a normal bank transaction, a typical bank transaction WELCH . Typical as t ypical can be, I would have to say. UPHAM Thank you very much, I a cia Raise your right hand please Repeat after me. I solemnly swea r to tell the truth in these preceedings under th e penalty of the law? JACKSON I do. UPHAM Would ou y give your name and address, please. JACKSON Jimmy Jackson, 8607 Rosewood Drive. Well I'll b , e short because we don't want to drag this out any longer but I' , ve lived on Rosewood for at least a couple of years, and I know that there were RepublicBank of A&M i s gns on these lots all the way up and down the cul-de-sa c. So, in that respect, RepublicBank A&M's sign had been in th front e yard of that property since there were weeds on it. Number two I'm , surprised that this has even gone on this far--the fact th t a the builder did not have the fireplace on his origi- nal plans t o me should be enough for the turn down of this request. I just don't understand-- if you let this go on because a third party is now involved and say well o y u can go out and - 19 - build anything as long as the third party comes in and asks for the zoning variance, well then you are going to be having problems from here on out. College Station is well known for having a set of rules, you follow the rules and things will be fine. You don't follow the rules, you will have to adhere to them. UPHAM Very simply said. Any further discussion to the board? MCGUIRK My basic problem, I take it, is your basic pro- blem. My basic problem, Mr. Wagner, is your basic problem and that deals with inherited hardship and I don't think it's inherited. The reason I don't think it's inherited is because RepublicBank is not new to construction involve- ment. They had been involved in this property for over a year before the issue came to the point where it had to come here and it is not my idea of a typical inherited hardship. WAGNER I don't agree with that, in the sense that, and there is a certainly no intended culpability by having a sign on the lot. The problem is that I can't see a bank of any size during that period of time going before any body and trying to determine if all the setbacks are exactly alike. They depend on the City to do that. They are assuming that if nothing is wrong, therefore, all the sets are being met, all the construction codes are being met, etc... The City has built in controls for that up to and including the Certificate of Occupancy. My point is that if it were the builder wanting his Certificate of occupancy, I would have absolutely no problem in turning him away from his door, because I agree with the last gentlemen here that was here. It is wrong. It was illegal, and that man is cul- pable. He knew what he was doing. The bank did not, does not and cannot be held responsible in this case because if they tore it down it wouldn't match, if they took it out of the bed- room, it would look unsightly, and I see that is a hardship, and I feel that it is inherited by them. - 20 - MCGUIRK I disagree because, I sympathize with them but , they were involved. I don't think they... WAGNER Go ahead, please, because I need your argument. MCGUIRK It does not correspond to what I believe is a proper interpretation of inherited hardship. WAGNER I think that's part of my problem as well I . think that this thing is going to take a long and careful study by me if not everybody else cause thi i s s horrible. UPHAM With this being not a typical case, I don't believe that the board is establishing a prece- dent so far as setback incurrence even under our new special situation here per our new ordi- nance. This is as--yau'll know me, I'm a little bit hepped on d prece ent in that that's all case law is and that's the next thing we have to look at is the law, usually if someone doesn't get their way and they're capable financially and otherwise, of pursuing it through law. I'm beginning to line up here a good bit with Gale on the situation, that where we have an inherited situation and we wind up with some reason and logic, I began to go along with this situation as not being solely financial. This is the one that bu s m I h g e. n erited situation is one thing and I , think we can deal with that. WAGNER I hope we can. UPHAM We get back to the point now of having to take that financial--only began to tear it apart. We ' haven t gotten into that one yet. Aesthetics, in the sale of ' property--that s why people buy property because it is aesthetically appealing to them. They don't--why, they don't know what wasn't there, and they don't know what was there, but if they walked it and in general said this a desirabl i e p ece of property, "I think I'll make a bid on it." Next fellow walk i " s n and says, No, I wouldn't touch it with a ten foot pole." Some- where along the line you've got to come up with th e customers. Somewhere along the line you have to live within your city. We all have to I . would agree with Gale that the builder would be sweating blood if he was standing up here, but - 21 - that isn't the case, and I guess I've said every- thing. WAGNER My problem began with the tennis court case and the realization that a third party inherited hardship existed. I think that's what I would appeal to tonight is that case and then others including our own that we lost last year for much the same reason. UPHAM What's the same reason? WAGNER Much the same reason in the terms of our inter- pretation at the time. And it just does not fall into what's currently going through case law. UPHAM That's under our own law, in any event, at this stage, I guess we're ready to converse here... McGUIRK Are you talking about the case cited against ...with Judge McDonald? UPHAM No, that is the Cinek case. As far as I'm concerned the judge didn't read the cotton- picking transcript. HERZIK Yeah, unfortunately, perhaps we are bound by that. UPHAM We are most certainly bound by that regardless of the reason, which is what I maybe should have said first. HERZIK It seems that case was one of the few times that on appeal of the City's laW...ZBA'S from what we see, they lose a lot in trial court and then in appellate court. And the appellate court says the trial court has no business substituting their judgment for ours. UPHAM When we are on the ground and supposedly doing the best job we can as lay people. I think we pretty well covered all the facets of the thing. I don't think that there is any evidence of any arbitary. Certainly, anything arbitary or capricious in what we are trying to do here certainly is going to have (unintelligible) at this point in time (unintelliglble). - 22 - HERZIK Actually, your questions can help me make up my mind in the sense that it went in different directions on how we determine the dates and the bank took over this after essentially the house was built and the fireplace in question and the foundati on poured. Then you are assuming that the bank has to b e smart and ... they are arguing in a sense that "we didn't know any better and ' weren t smart in this case", that's not really fo r us to determine, with respect the inherited hardshi B t h p. u t ey assumed this hardship after the fact and without knowledge in a , sense with good faith that the City had done their job and the builder was not violating the law So I ' . don t see where the bank now has become in a sense culpable. McGUIRK They are not culpable. They made a mistake. WAGNER Well, that's not the issue here. McGUIRK I know it. That's why I'm not bringin it g up. WAGNER I glad we are not arguing about that. WAGNER Mr. Chairman, I have a motion, UPHAM We have a motion. Proceed. WAGNER I move to authorize the variance to the minimum setback Tabl A , e , from the terms of this ordinance as it will not b e contrary to the public due to the following special conditions: HERZIK 1. Encroachment onto side setback is minimal in that the utility easement remains intact, and 2. Fifteen foot separation between structures is maintained and because a strict enforcement of the provision of the ordinance would result in unnecessary hardship to this applicant being that removal of the fireplace would materially alter both the interior and exterior appearance of the structure and such that the spirit of this ordinance shall be observed and substantial justice done. Second. - 23 - McGUIRK I have a problem with the second item of your special conditions.... WAGNER That 15 foot separation. I'm using the City's jud ment h g on t at, that they are not concerned because the 15 foot separation, is... McGUIRK Is that going to cause a problem 10 years from now when somebody decides to build a building right up to the side setback? It's not illegal; it ' wouldn t be a problem? I was just curious. WAGNER It would be illegal. KEE What? WAGNER If the 15 foot separation at present is largely beca use the buildings are offset, is that correct? So the 15 feet is measured from the corner of the fireplace to the corner of the garage. Is that correct? So as long as that 15 foot separation is maintained, that's ok But . now if Mr. Poteet wanted to put up a garage further toward th e street, namely right on that setback line, then the 15 fo t o would no longer exist. KFE That's exactly the question I suggested to the Assistant Cit Att y orney. My understanding is that when the Board grants variance to the side setback, they are also granting a variance to that 15 foot separation; in other words, you ca 't n go back and impose a more stringent on the adjacent lot...(unintelligible) WAGNER I would withdraw this motion rather than trying to amend it. So the motion has been withdrawn. Is that correct, Mr. Chairman? May I make a second motion? I move to authorize a variance to the minimum setback, Table A from th , e terms of the ordinance as it will not be contrary to the public interest due to the following special con- dition: 1. Encroachment onto side setback is minimal and that the utility easement remains in tact, and because of strict enforcement of the provisions of the ordinance would result in unnecessary - 24 - hardship to this applicant being the removal of the fireplace would materially alter both the interior and exterior appearance of the struc- ture, (it may die of a lack of a second [aside to ChairJ) and such that the spirit of this ordi- nance shall be observed and substantial justice done. HERZIK Second. UPHAM Motion made and seconded. GILMORE In relation to the discussion of the motion, I still--I cannot get comfortable with the fact that we're trying to authorize a variance from an existing law even though, whether it be a third party or whatever is involved in the situation . Basically, to me what our intent is, is to define what is law is and how it applies to a given situation. If that, gets overturned, well it will be overturned, but we have a situation here where we have somebody in violation of the law and we have more than one party that objects to that, that's directly involved in that situation , and yet we say, well, we're going to allow this variance, and we're just going to forget that this is in violation at this point, and I have trouble. WAGNER Mr. Chairman, may I respond to that? UPHAM You most certainly can, we're in discussion about it. WAGNER The closest analogy that I can draw to that would be the numerous, and I say numerous over a period of i some s x years, the numerous situations that have come before the board in the form of Mr. and Mrs. So-and-So want this property, they cannot get clear title because the garage corner en- croaches "x" inches or the apartment house can't get clear title because title insurance, what- ever it is, because there is a mistake in the sense that in that period of building there were mistakes made, lots of mistakes, little mis- takes. Now, we never went beyond that individ- ual's request. I want to buy that house; I cannot purchase that house without you giving me a variance. I don't have any idea what happened, - 25 - all I know is I'm now told that it sits over the line by 3 or 4 inches. Now if we knew nothing obout this property, say that RepublicBank A&M came in and wanted a variance because of some- thing they found, to me right now, there is no difference. They found it. They had nothing to do with it being there. I agree with you whole- heartedly if the builder were here requesting a certificate of... GILMORE I don't believe that's an issue. WAGNER It is to me because its wrong. GILMORE It's not a issue to me. WAGNER Well good. So that's how I would answer your question is that we have precedence in the sense that we have granted a variance repeatedly to those inadvertent errors in judgment, whether they were the City's problem or whether they were some surveyor's problem or a builder's cross- sightedness. I don't know. UPHAM I have an amendment here in case anybody has finished discussion at this point. Amend the motion to read, "and because of strict enforc- ment provision of the ordinance would result in unnecessary hardship to this applicant so that removal of the fireplace and materials alter both the exterior and interior appearance of the structure and that the applicant has inherited a hardship not of his own making". I'm looking for a second. WAGNER Second. UPHAM I think that amendment would only require a simple majority, and we will have to have a vote on that. Is there any further discussion on it? All in favor of the motion as amended, excuse me, of the amendment. The amendment passes. (3-2). (McGuirk & Gilmore against). Votes on Motion as amended: 3-2 (McGuirk and Gilmore against). Motion is denied. - 26 - AGBNDA ITEM N0. 5: Consideration of a request for variance to front and rear setback requireaents (Ord. No. 1638 Table A) at the single family residence at 802 Woodland Parkway. Applicant is Ernest & Jayne Goetz. Zoning Official Kee explained the request, furnishing the information that the request is made by the property owners, Ernest and Jayne Goetz, for a variance to. front and rear setback requirements to enable them to create additional living space in their existing home by enclosing and enlarging the existing garage. She explained that the attached garage is currently conforming with a rear setback of at least 20 feet which is required for garages, but upon converting a garage to living quarters, the minimum setback becomes 25 feet, and this garage encroaches that setback by 2.7 feet, thus this request for variance to the rear setback requirements. The applicant also wishes to expand the converted area to the front, which will cause it to encroach the required 25 foot front setback by 3.8 feet. She pointed out the closest adjacent structures are a residence 50 feet to the rear and residences 40 feet to each side, adding that this home is on an unpaved portion of Woodland Parkway, and that there is a park across the road from this residence. Mrs. Kee explained that staff sees alternatives as being to leave the structure as it exists now or to reduce the size of the converted area to eliminate front and/or rear encroachments. Mrs. Kee reminded the Board that the revised zoning ordinance now gives the ZBA the power to authorize upon appeal variances of the yard, lot width, lot depth, signs, minimum setback, off-street parking or off-street loading regulations from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions, a literal enforcement of the provisions of the ordinances will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done, adding that the applicant no longer is required to show unique and special conditions of the land not normally found in like districts in order to have a variance granted as was previously required under the old zoning ordinance. She the informed the Board that on 1-22-85 a variance was granted to rear setback requirements at 800 Woodland Parkway to allow expansion of an existing structure by that property owner. Ernest Goetz, applicant and owner of the residence at 802 Woodland Parkway was sworn in and stated that his family has lived in this older home for seven years, and with the additional children in the family they believe more living space is required, so they have drawn up plans for this expansion which would maintain both the integrity of the neighborhood as well as the property value of this home. He added that the garage is adequate as a garage, but would be in violation of ordinances if converted to additional living space. He explained that there seems to be no alternative means of adding living space to this home which do not involve a variance from the ordinance and/or removal of established trees since this home is in one of the older neighborhoods in the city and the lot was platted and the structure erected before current zoning ordinances were in effect. He added that the lot is irregularly shaped, as are other lots in this neighborhood, and the position of the existing structure on the lot leaves little or no clearance between the existing structure and front and rear setbacks. He then passed around photos of his lot/home and discussed them with the Board. Mr. Upham stated that this is one of the few places in the city where houses face a creek and a park, and because of that fact, and the fact that the home is in an alder area of the city with homes 25-30 years old, he does not have a problem with this variance request, as it does parallel the previous case considered and granted in 1985 right next door on Woodland Parkway. Mr. McGuirk questioned the location of the rods in the ground and the corners or the property shown on the survey (on paper), and indicated there seems to be a discrepancy. Mrs. Kee stated that the city accepts a stamped survey as factual, but added that there is some right-of-way on both sides of Woodland Parkway which might affect visual observation of the rods in the ground, but added additionally that she does not know off-hand the width of that right-of-way. Mr. McGuirk then stated that essentially he agrees with the Chair about this variance request, but has one question, that being just how essential is the addition to the front of the house. Mr. Goetz referred to the floor plans furnished in the packets and stated that this plan helps the traffic pattern within the house, and further that the extension to the front would match the existing extension of the master bedroom. He added that he has been told that if a garage which is converted to living quarters still looks like a garage from the outside, it tends to detract from the property and the neighborhood, and this addition to the front would help enhance rather than detract from the neighborhood. He informed the Board that he has plans to remove enough of the existing driveway to plant shrubs. T. David Chinn, 1214 Munson was sworn in and stated that he is a neighbor of this applicant, and as a resident of the neighborhood, he does not object to this request as it is only a minor encroachment, and further, that he would like to commend Mr. Goetz for planning to improve and expand his property so he can stay in the neighborhood. He went on the explain that he is an engineer with a local engineering firm, and that he believes there is a 50 foot right-of-way along this section of Woodland Parkway, but that it is an unclear street, and a difficult area to work in as it is a very old neighborhood exemplified by his home which is more than 45 years old. '`~ Mr. Herzik made a motion to authorize a variance to the minimum setback (Table A) from the terms of this ordinance as it will not be contrary to the public interest due to the following special conditions: The position of the house on the lot and the existing floor plan, and because a strict enforcement of the provisions of the ordinance would result in unnecessary hardship to this applicant being reduced suitability of the living space, and such that the spirit of the ordinance shall be observed and substantial justice done. Mr. Wagner seconded the motion. Mr. McGuirk asked if the variance covers both front and rear setbacks and Mr. Upham said the motion to authorize the variance covers the variance as requested on the application. Votes were cast on the motion to approve the variances to front and rear setbacks as shown on the application, and the motion carried unanimously (5-0). AGBNDA ITBM N0. 6: Other business. Mr. Wagner referred to the tabled motion regarding a request for variance to the parking requirements for a restaurant at 315 University (applicant John J. Loffarelli), and made a motion to take this motion from its tabled position. Mr. McGuirk seconded the motion. Votes were cast and the motion carried (4-1) with Mr. Herzik voting against the motion. Mrs. Kee explained that staff had not included this item on the agenda for reconsideration at this meeting because a new ordinance had been approved since the last meeting, and if Mr. Loffarelli would approach staff with the same request as was previously tabled, he may or may not require a variance, depending upon his site plan and the recommendations of the P.R.C. She added that she had had no contact with Mr. Loffarelli since the last meeting at which time his request was tabled. Mr. McGuirk asked if this Board would still be in a position to rule against P.R.C. recommendations with the new zoning ordinance and Mrs. Kee explained the new section of the zoning ordinance which covers the Northgate area, adding that she would have to further confer with the Legal Department regarding appeals to P&Z decisions. Mr. Wagner stated that he would make a motion to drop this item from the record. Mr. McGuirk seconded the motion which carried by a vote of 4-0-1 (Herzik abstained). Mrs. Kee then announced that the next meeting would be on May 20th if any applications come in. AaBBiDA IT$M N0. 7: Adjourn. Mr. Wagner made a motion to adjourn with Mr. McGuirk seconding. Motion carried unanimously (5-0). APPROVED: airm n, ATTEST: ---------------------------- City Secretary, Dian Jones THESE MINUTES WERE APPROVED AS TO FORM ONLY - LACK OF QUORUM TO VOTE ON CONTENT. ZONING BOARD OF ADJUSTMENT GUEST REGISTER DATE April 1, 1986 NAME ADDRESS z . `~~,'H~/N N 1214-- Mvn son , C. S . 3 • =~ c7_~ (,,~~ . L ~ _ ~ ~ ~o Cae~2 A '~1-Q.e E, P. S 4 . _ !' ~~'~ ~' c~ 2 ~ oo ~4 P s • ~~C~ '~ 6. ~ G~~.. 7. 8. 9• 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. ZONING BOARD OF ADJUSTMENT FORMAT FOR POSITIVE MOTION Variances: From Section 15 - I move to authorize a variance to the yard (6-G) lot width (Table A) lot depth (Table A) ~---s--i-gn regulations minimum setback (Table A) parking requirements (Section 9) from the terms of this ordinance as it will not be contrary to the public interest, due to the following special conditions; C 6. and because a strict enforcement of the provisions of the Ordinance would result in unne~ssary hardsh~p~to this applicant being: ~t . ,~ _~ ~n~suc`~i thatV they sp i'r i~t~bf~~~~rd i nan ~evs~ia l 1 be o~se~ve justice donee 1. s uV~s t>~ n E i ~a 2. u - 3. 4. -d-~~ '%~/'~,. ~'~~' This motion was de bye ~v ( 1 ,]`~ '~~ Seconded by ate ,~. ran y the fol l ow ing vote: ' ' -' ~~ ~ i ~ ~~'~~_?'~~ air Sig ture 5. ZONING BOARD OF ADJUSTMENT FORMAT FOR POSITIVE MOTION Variances: From Section 15 1 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 q) from the terms of this ordinance as it will not be contrary to the public interest, due to the following special conditions: i ~ I ~ l 2. 3• 4. 5 , - _. 6. and because a strict enforcement of the provisions of the Ordinance would reQsult in unnecessar~~yL hardship to this applicant being: ~. ~ +.! C! . / d S In t ~ ~ i ~. t ~~ ~l ~_ ~ 1. ~ ~ ~ ti `) i/ G. ~.C.i and such that the spirit of this Ordinance shall be observed and substantial. justice done, subject to the following limitations: 1. 2. 3. 4. This motion was mad by _~r!c ~,/ZI~ Seconded by ~ Date The variance was gra by the following vote: ~; - p it is to MINUTES CITY OF COLLEGE STATION, TEXAS Zoning Board of Adjustment April 1, 1986 7:00 P.M. MEMBERS PRESENT: Chairman Upham, Members Wagner, McGuirk, Herzik and Alternate Member Gilmore. MEMBERS ABSENT: Member Meyer and Alternate Member Swoboda STAFF PRESENT: Zoning Official Kee, Assistant City Attorney Elmore, Assistant Zoning Official Johnson and Planning Technician Volk 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. AGBNDA ITBM N0. 2: Hear visitors. No one spoke. AGBNDA ITBM N0. 3: Approval of Minutes - meeting of February 18, 1986. Mr. Herzik made a motion to approve the minutes as presented; Mr. McGuirk seconded the motion which carried unanimously (5-0). AGBNDA ITBM N0. 4: Consideration of a request for variance to side setback requirement (Ord. No. 1638 Table A) at the single family residence at 8603 Rosewood Drive. Applicant is RepublicBank A&M. Due to the reference made at this meeting by the applicant to a law suit which was filed following denial of the request for variance made on February 18, 1986, a complete transcript of the recording of this item has been made and included as the minutes and are attached.