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HomeMy WebLinkAboutZoning Board of Adjustment-Minutes-9/12/2000Zoning Board of Adjustment Minutes -September 12, 2000 Page 1 of 9 -Approved on November 74, 2000 The regular meeting of the Zoning Board of Adjustment was called to order by Chairman Dee McNosky at 7:05 p.m. on September 12, 2000. Roll Call: Present: Teresa Rutherford ,Sara Lester, Jerry Birkes, Dee McNosky Absent: Steve Magee, Larry Henry Staff: Barry LeBaron, Jan Levy Approval of Minutes: August 22, 2000 Sara Lester moved to approve the minutes as submitted. Jerry Birkes seconded the motion. The vote being: Ayes: Rutherford, Lester, Birkes, McNosky Noes: None Chairman McNosky explained the procedures of the Zoning Board of Adjustment to the audience. She asked the voting members to identify themselves. The voting members for the meeting are: Rutherford, Lester, Birkes, and McNosky. Chairman McNosky outlined the meeting format forthe audience. PUBLIC HEARING - A request from Larry Gray, Young Construction Co., for Tom Miller for a variance from Section 3.24.G -Schedule of District Regulations of the Land Development Code - to provide for the existing building and a proposed addition to the building that encroaches 2' into the 25' required side yard on north side of Lot 15R, Block 1,Thompson Terrace, 5004 Thompson Terrace. Case A-00-008 Barry LeBaron presented the case to the Board. He told the Board about the applicant rezoning the property for commercial use and the change in building setback requirements. Kathryn Miller, owner, presented the case to the Board. She told about the plans for the renovation of the existing structure and the additions to increase the size of the building. She said that the north addition wall needs to adjoin the existing wall rather than be setback 2'. Bill Rogers, 5008 Thompson Terrace, asked questions about what kind of screening the applicant proposed. He said that he has talked briefly with Mr. Miller but did not have any firm commitments. Mr. LeBaron told about the requirements for screening. He said that the commercial user needs to provide some kind of screening from the residential lot. He said that it does not require a masonry screening wall or stockade fencing, but it does require some sort of screening and can consist of landscaping measuring 6' along the common property line. Mr. Rogers said that there are large piles of dirt behind the building that have created a real eyesore. Jerry Birkes told Mr. Rogers that there is a method to report such violations, and he should call the Code Enforcement Officer Steve Perez. Chairman McNosky closed the public hearing. Zoning Board of Adjustment Minutes -September 12, 2000 Page 2 of 9 -Approved on November 74, 2000 Jerry Birkes asked Barry LeBaron about the driveway extending into the required side yard. Mr. LeBaron said that the driveway was not a problem, only the northern wall of the expansion that encroached 2' into the required 25' side yard. Chairman McNosky asked if there was adequate space between the driveway and the property line to provide screening. Mr. LeBaron responded that there seems to be from the drawing plenty of room for screening. Jerry Birkes said that he is very familiar with the property because he travels on the road everyday. He asked if the main structure that was formerly residential will be o.k. as a commercial building. Mr. LeBaron said that the renovations will need to comply with the building code for commercial standards. Mr. Birkes asked if the outside parameters of the existing building become grandfathered. Mr. LeBaron responded that the existing building becomes anon-conforming structure because of the new setbacks imposed on commercial adjacent to residential property. He said that the regulations would not permit them from enlarging the nonconformity and could not enlarge the structure without a variance. Mr. Birkes confirmed that if the applicants were leaving the building the way it was or just adding on to the south, they would not need a variance. Jerry Birkes said that he is very familiar with this property and there are three residential lots to the north with a house next door, a vacant lot, and then another residence. He said that the background information states that the Masterplan indicates that the area is to become commercial, but at this particular time it is not commercial, it is residential. He said that the Masterplan has several things on it that may be in the future 2025 that may not become commercial and roads will not be widened. He said that by just saying that it is supposed to be commercial does not mean that it will be and the gentleman in the audience may live in his house for another 20 to 30 years. Mr. Birkes said that he is not sure how they can approve this variance to make an addition based on the fact that it might be in the future. He said that it is not zoned commercial, although the Masterplan calls for it to be commercial, it's not now. Chairman McNosky asked Mr. Birkes to recap his train of thought and his reasoning. He said that there is property along Cheek Sparger and Highway 26 that has been turned down for commercial zoning even though it is on the Masterplan as commercial. He said that there has been a ruling by the Board on property on the northern part of Highway 26 that had been sold and was not in compliance with use and there application was rejected and were given 90 days to become compliant. Chairman McNosky said that she is not sure that the future use of the property to the north will weigh heavily on her mind whether or not the particular request being looked at now is valid. She said that she will look at how the 2' encroachment will impact the neighborhood. She said that if the applicant were building a structure that would not be neighborhood friendly, she would be more concerned. Chairman McNosky said that she believes the structure will continue to serve the neighborhood and the neighborhood will remain intact. She said that this request fora 2' encroachment will not negatively impact the neighborhood, but will still serve to help the individual that is asking for the request create a structure that is useful for him. She said that if the neighbor to the north receives screening, the 2' doesn't seem to be his issue. She asked Mr. Rogers to respond to her statement that the 2' isn't the issue, the screening and cleaning up of the neighborhood is. Zoning Board of Adjustment Minutes -September 12, 2000 Page 3 of 9 -Approved on November 74, ZOOO Mr. Rogers said that he does not know is the 2' will make a difference or not, but he would say probably not. Chairman McNosky said that she is looking at the integrity of the neighborhood matched with development and does not believe that 2' will make a difference. She thanked Mr. Rogers for answering her question. Teresa Rutherford said that the request is pretty well self explanatory. She said that the request is for currently zoned commercial property and a 25' side yard is required and the building will encroach 2'. She said that if the neighbor's concerns are going to be alleviated, there should be no problem in approving the variance. Teresa Rutherford moved to approve the 2' variance request. Sara Lester seconded the motion. The vote being: Ayes: Rutherford, Lester, McNosky Jerry Birkes said that he would like to explain his vote. He said that the present property that is there is going to end up being 1/3 of the overall wall that is in question. He said that there is a reason for a requirement that there be a 25' setback versus the 23'. He said that this is going to be a large wall and for the Board to give a variance for the limited presentation as to the type of barrier, he would have to vote "no". Noes: Birkes The applicant, Kathryn Miller, asked the chairman why she did not get an opportunity for rebuttal once the neighbor spoke. She said that the chairman said in the procedures that the applicant would have an opportunity to speak. Chairman McNosky said that she was in error and made a mistake by not allowing her to speak. Chairman McNosky asked staff if she can back up and allow the applicant time for rebuttal and then revote. Barry LeBaron said that the Board made a motion, a second, and took a vote, and it was up to the Board how they wanted to handle the situation. Teresa Rutherford said that since discussion was not held, she would withdraw her motion. Sara Lester said that she would withdraw her second. Kathryn Miller, owner, said that her husband, Tom Miller, went to talk will Mr. Rogers and tell him what the plans were for their property. She said that it was their understanding that everything was o.k. with Mr. Rogers and Mr. Rogers talked about his property being rezoned to commercial in the future. She said that they do not plan on moving any closer to Mr. Rogers' property than the structure already is, and all they're asking is for a clean straight line. Mrs. Miller said that this is the same variance that has been granted to the property to the south. She said that if they build the addition two feet back from the existing structure, it would create a very messy look. Mrs. Miller said that they have improved the look of the neighborhood by improving the corner property and they intend to do the same with this property. She said that they live and work in Colleyville and they will make a good appearance and increase the value of the property on Thompson Terrace. Mrs. Miller said that Mr. Rogers responded to the chairman's question and does not Zoning Board of Adjustment Minutes -September 12, 2000 Page 4 of 9 -Approved on November 74, 2000 have a problem with the wall going down his side. She said that keeping up the appearance with a straight wall by gardening will look better than a wall set back 2'. She said that her request is very simple and straight forward and she would like to field any questions that the Board may have. She said that if the property next door was granted a variance even when it was closer to property line by 13', they should not have a problem with this variance. Jerry Birkes told the applicant that they did a wonderful job on the house on the corner and asked her what their plans were for fencing. Mrs. Miller said that she was not involved with the fencing plans, but she would put up something that is pleasant looking and that creates a nice barrier for the Rogers. She said that they will be neighbors for eight hours a day and their children go to school together and they want to make sure that Mr. Rogers is happy with the fence on their property. She said that even if there wasn't a fence there, the house itself would not have windows on that side and they won't encroach on the Rogers' privacy. Mrs. Miller said that she is sure that the Rogers' are concerned about their privacy and they will put up a 6' tall fence that is pleasing to the eye. She said that she wanted to respond to the concerns about the dirt piles. Mrs. Miller said that they were in the process of tearing the inside of the house down and had to stop work to get a variance and the piles of debris would have been moved. She said that as soon as construction resumes, the dirt piles will be gone. Jerry Birkes asked the applicant if the 6' fence would be a wooden fence. Mrs. Miller said that she has not talked to her husband about that yet, but it would be a privacy fence. She said that she likes green things and can envision growing something green with the fence. Mr. Birkes asked her to define a stockade fence. She said that it is a wooden fence. He asked her if she had any plans for planting trees along the property, or if there are any trees currently on the property. Mrs. Miller said that there are trees on the property, but she is not sure if there are trees within the 23' along the north side. Mr. Rogers said that there is one on the property line. Mrs. Miller said that they will landscape it nicely as they did the property next door and will work with a landscape architect. Chairman McNosky asked if there was any other discussion. Since there was not, she closed the public hearing portion and asked for a motion. Jerry Birkes moved to grant the variance based on the following two things occurring: 1) A six foot tall wooden fence from the northwest corner to whatever is allowed closest to Thompson Terrace; and also as the applicant has stated 2) There will be no windows along the northern portion of the building. Sara Lester seconded the motion. Chairman McNosky asked Jerry Birkes if the applicant and the neighbor, Mr. Rogers, agree to a fencing that is different than a wooden fence, would they be allowed to put that fencing in place. Jerry Birkes stated, "Madam Chairman, I was merely going by what the applicant stated." Mr. Birkes requested to change his motion by amending condition #1 to a six foot tall wooden fence or a masonry fence as long as the neighbor, Mr. Rogers is agreeable to the change from a wooden fence. Zoning Board of Adjustment Minutes -September 12, 2000 Page 5 of 9 -Approved on November 74, ZOOO Sara Lester asked the applicant if she agreed to the condition that there be no window along the northern portion of the building. Mrs. Miller said that she did not have the plans with her. Mr. Birkes said that the applicant stated several times that there are no windows on the north side and that is what he based his motion on. Mrs. Miller said that there are no windows on the previous structure, but she doesn't have the plans and she doesn't think that they are proposed. Sara Lester asked if they want to drop condition #2 from the motion. Jerry Birkes said that he made the motion and stands by that motion. Sara Lester seconded the amended motion. The vote being: Ayes: Rutherford, Lester, Birkes, McNosky Noes: None 2. PUBLIC HEARING (Request for aRehearing) -Discussion and consideration of the decision rendered to Jim and Lanette Carpenter for a variance from Section 3.26 -Fences Free Standing Walls, and Screening Material of the Land Development Code - to provide for the construction of a 6' wrought iron picket fence that would encroach over the 30' building line along Bill Simmons Road on the lot at the southeast corner of Bitl Simmons Road & Glade Road - 2201 Glade Road, Abstract 328, Tract 2Q. Case A-00-006 Staff said that Mr. Carpenter staked his property for the location of the fence that was approved by the Board at the last meeting and was concerned about the proximity of the fence in relation to the tree line and the sprinkler system. Staff advised Mr. Carpenter to present a letter requesting the Board to consider other information. Mr. LeBaron told the Board that they have a choice whether or not they want to make the applicant pay another fee and go back through the process, but the neighbors were advised that the Board may be rehearing the case tonight. Teresa Rutherford moved to reconsider the information presented by the applicant. Sara Lester seconded the motion. The vote being: Ayes: Rutherford, Lester, Birkes, McNosky Noes: None Mr. Carpenter distributed an exhibit that showed dimensions and the location of his dwelling on the property, the trees, the water meter, and Bill Simmons Road. He said that one of the concerns at the last meeting was the plot plan they presented was not clear. He said that the motion at the last meeting was to go with the recommendation of the Community Development staff to protect the 50' right of way, and to allow them to build the fence no closer than 15' from the edge of the pavement. Mr. Carpenter addressed the issues of the City of Cotleyville right of way for Bitl Simmons Road. He said that the intent of the right of way ordinance is to ensure the streets and utility easements are of sufficient size to ensure the safety and health of the community. He said that Bill Simmons Road will probable never be widened or made a through street and it would not be practical or affordable for the city to do so. He said that Bill Simmons Road is 0.487 miles long, and is a very rural road as stated by one of the Board members. He said that there are 43 quality trees of 4" trunk-size in diameter or greater that would have to be removed to widen the street. Mr. Zoning Board of Adjustment Minutes -September 12, 2000 Page 6 of 9 -Approved on November 74, 2000 Carpenter told the Board that there are 24 telephone poles that would have to be relocated. He said that these poles range from 2' to 12' away from the edge of the pavement, with the average pole being 9' from the pavement edge. Mr. Carpenter also said that there are 22 water meters that are within 8' of the edge of the pavement that would have to be relocated. He said that Bill Simmons Road would probably never be extended and made a through street because there is a very large, new home sitting at the dead end of Bill Simmons. He said to make this a through street, this home would have to be torn down and there is a residential area behind this home that would require another home to be removed. Mr. Carpenter said that there are 8 fences that are all place 10' from the edge of the road totaling 1278 feet that would have to be removed and one of these fences reportedly cost the homeowner, Mr. Kramer, $40,000. Mr. Carpenter said that their conclusion is that it is extremely unlikely that Bill Simmons Road will be widened or extending in the foreseeable future. Mr. Carpenter addressed concerns regarding aesthetic appeal. He said that every fence along Bill Simmons Road is set 10' away from the edge of the pavement, and if his fence on the corner is placed 15' back it would look out of balance. He said that the proposed location of the fence at 10' from pavement edge would enclose several large crepe myrtle trees and if they were place outside the fence, it would look strange. Mr. Carpenter said that with the fence crowding the large ash trees, it would look out of balance. Mr. Carpenter spoke about precedent setting. He said that Chapter 211, Texas Local Government Code Section 211.008. Board of Adjustment (a) states that the governing body of a municipality may provide for the appointment of a board of adjustment in the regulations adopted under this subchapter, the governing body may authorize the board of adjustment, inappropriate cases and subject to appropriate conditions and safeguards, to make special exceptions to the terms of the zoning ordinance that are consistent with the general purpose and intent of the ordinance and in accordance with any applicable rules contained in the ordinances. He said that they feel that the Board will not be setting a bad precedent, since Zoning Boards of Adjustments are authorized under the Texas Local Government Code to make special exceptions. Mr. Carpenter spoke about the hardship they are facing. He said that the state of Texas does not define hardship, except to say that the following arguments do not satisfy the hardship requirement: property that cannot be used for its highest and best use; financial or economic hardship; self-created; and the development objectives of the property owner are or will be frustrated. He said that they are not claiming any of those reasons for asserting that a hardship exists. He said that they are claiming that the following reasons do constitute a hardship: 1. Access, use and enjoyment of their land. When, on a half-mile stretch or rural road (approximately 2,700 feet), there are 1278 feet of fences, all of which are set 10' away from the road. He said that to deny them the same access, use, and enjoyment of their land would create a hardship; and 2. Risk to Trees: By placing the fence where the city staff originally recommended, they would be installing fence posts 3 feet away from the trunk of a 3.5' diameter trunk of a 25 year old ash tree, thereby putting that tree and two others at risk. He said that even though the degree of risk is subject todebate -putting these old, beautiful trees at any risk creates a hardship. Zoning Board of Adjustment Minutes -September 12, 2000 Page 7 of 9 -Approved on November 74, 2000 Lanette Carpenter also spoke to the board regarding their case. Teresa Rutherford said that the Carpenters did an admirable job of coming back to the Board with above average data and she agrees that aesthetically as well as saving the trees the fence should be placed 10' from the pavement. Jerry Birkes said that he has some questions because the drawing is still confusing to him. He said that since the property is not platted, the drawing presented is still out of scale. Mr. Birkes said that Board approved the placement of the fence to be 43' from the house, and the drawing shows the 43' from the last inset. He wanted to know if it was accidentally measured from that location. The applicant and staff confirmed that the 43' was measured from the last inset. Mr. Birkes said that since this is not a platted lot, and asked staff if it were platted, what would be the required setback for fences on the lot. Barry LeBaron said that the fence would have to be placed 30' back from the street and that is why the applicant was asking for a variance. Mr. Birkes asked what is the variance they are asking for and if staff could show where the fence should be located on the drawing. Barry LeBaron said that the variance is approximately 18' away from where the fence should be located. Chairman McNosky asked staff if they could be comfortable with the fence being placed where the applicant proposes with the stipulation that if anytime in the future things should change regarding Bill Simmons Road, the applicant will be responsible for moving the fence. Mr. LeBaron responded that the Board can place terms and conditions on variance approvals. He said that one of the things that is very difficult to determine is where the middle of the road is actually located and where to measure from. He said that Mr. Carpenter's property goes somewhere into the asphalt and he owns part of the road that everyone uses to drive on. Mr. Carpenter said that his iron stake is located 7 '/2 feet into the middle of Bill Simmons Road. Mr. LeBaron said that what staff tried to do was establish where a 50' right of way would be located if this property and all of Bill Simmons was platted in the future since the minimum is 50'. He said that measuring with a tape measure, you could get four different measurements on four different times and could be off a couple of feet because the asphalt on the edge is not smooth and the street meanders. Staff's recommendation was based on the particular day they measured and 43' from the last inset of the dwelling would accommodate the right of way, and if we measured again today, it might be 45' or 41'. He said that without getting a survey, the Board needs to find a comfort zone as to where to place the fence. He said that he advised Mr. Carpenter to put up the plastic fence where he would like to place his fence and take a photograph for the Board to see, and it shows that the location is much further back than the fence across the street. He said that if the property is ever platted, this would not be the only fence on Bill Simmons Road that has to deal with this issue. Mr. LeBaron said that we keep talking about how unique Colleyville is and as planners, staff had difficulty that everything is a curb and guttered street with 31' back-to-back pavement with 9'/2 feet of green space on each side. He said that this is how a 50' right of way is determined. He said that maybe half of the streets in Colleyville are constructed that way, but the other half are like streets that are the old rural development and staff has toyed with coming up with regulations for a rural Colleyville type of street. He said that if there were regulations for rural streets, staff could advise citizens who live on these streets how to deal with their culverts, fences, and other issues. Zoning Board of Adjustment Minutes -September 12, 2000 Page 8 of 9 -Approved on November 74, 2000 He said that in the old days it took a road grader 40' to clean out the bar ditches on both sides so the right of way would probably be 40' on a rural road with 22' to 23' of asphalt. Mr. Carpenter said that they drove all over Colleyvitle and drove down a whole lot of roads like Glade Road, Bill Simmons and little alternate streets. He said that the vast majority of fences on these roads are 8' to 10' away from the road and some even 6'. He recapped the figures he presented on where the current fences are placed on Bill Simmons Road and said they are asking for the same use of their property as everyone else and to be denied that use, a hardship is created. Teresa Rutherford moved to grant a variance for an additional 5' for the fence to be placed 48' from the dwelling. Sara Lester seconded the motion. The vote being: Ayes: Rutherford, Lester, McNosky Noes: Birkes Jerry Birkes said that he voted no the last time and unfortunately must continue to vote no. He said that one of the difficulties is that the drawing that was presented by the applicant is still not drawn to scale and he knows that it is not because he drives by it every morning and the house is bigger than on the drawing. He said that the only recommendation to the applicant to be considered further is to produce an actual drawing that is drawn to scale. Mr. Carpenter asked Mr. Birkes what the issue is. Chairman McNosky asked staff what the procedure is for discussion after a vote. Barry LeBaron said that he would be uncomfortable with conversation once the motion and vote is made. Chairman McNosky advised the applicant that he needed to work with staff again to determine any other requirements. Mr. Carpenter said that if he did not know what Mr. Birkes issue is, they don't know how to address the issue. Chairman McNosky asked Mr. Birkes, since he was the dissenting vote, to make very clear what is his issue with regards to the request so that the applicant can work with staff to present information. Jerry Birkes said that he also, like the Carpenters, live on a corner lot at 1301 Ashford Court and his setback is within the limits. He said that he also has a brick wall behind his residence and a gate and the reason it's where it's at is because it meets the regulations of the ordinance and he had to build according to the rules of Colteyville. He said that the Carpenters have now decided to put a fence and the Board occasionally sees variances that deal with one foot or two feet and this is not that, it is 18' and it's not a small variance. He said that the difference in the variance is greater than the distance from the street and that is why he asked what is a setback. Mr. Birkes said that if the street were curbed and guttered the Carpenters are supposed to be 30' away and they have come to this Board and asked for not a 2 or 3 foot variance, but an eighteen foot variance. He said that because anything that looked less than that looked out of bounds, and he is quoting what was said, and that is not a hardship to him. He said that trying to ignore that the street probably curves and winds around between the Carpenters' property a foot to two foot, and he is not sure that the middle of the street is parallel with the western edge of the house and to say that the variance is for a couple of feet is not correct. He said that according to staff, the variance is somewhere in the vicinity of 18' and the reason that they would want to do anything less than that is because the fence would look out of bounds is not a hardship. He acknowledged Zoning Board of Adjustment Minutes -September 12, 2000 Page 9 of 9 -Approved on November 74, 2000 that the Carpenters have some very lovely ash trees which have a life span of about 25 years, and said, "but non-the-less he didn't know that they were ash trees he thought they were oak trees, and that is his reasoning." Mrs. Carpenter said to Mr. Birkes that the last time they were before the Board, he was concerned about the aesthetic look of how their house would look off of Glade Road and he was the one who brought up the aesthetics. She said that is why they made the presentation regarding balance of where the fence is located. Chairman McNosky said that she needed to protect the conversation of the Board and understands that the Carpenters have grievances and would like to address them. She told them they needed see staff for the proper format to do that. She said that if they choose to come before the Board again, she has no personal problem with that. ADJOURNMENT: There being no further business, the meeting adjourned at 8:30 p.m. Respectfully Submitted, Jan Levy Planning & Zoning Assistant Approved on: November 14, 2000 as submitted. jl/min/0912zba.min