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HomeMy WebLinkAboutZoning Board of Adjustment-Minutes-11/14/2000Zoning Board of Adjustment Minutes -November 14, 2000 Page 1 of 19 -Draft Copy (~~/~5/00J The regular meeting of the Zoning Board of Adjustment was called to order by Chairman Dee McNosky at 7:00 p.m. on November 14, 2000. Roll Call: Present: Teresa Rutherford ,Sara Lester, Larry Henry, Jerry Birkes, Dee McNosky Absent: Steve Magee Staff: Clayton Husband, Jan Levy Approval of Minutes: September 12, 2000 Teresa Rutherford moved to approve the minutes as submitted. Sara Lester seconded the motion. The motion was passed by an "Aye" voice vote. Presentation of Plaques to outgoing members: Chairman McNosky presented plaques to Teresa Rutherford, Sara Lester thanking them for their dedicated service. Swearing In: Cheryl Feigel, Place 1 Skip Reynolds, Place 2 Jeff Byerly, Place 3 Rich Munson, Alternate #2 Jan Levy, Planning and Zoning Assistant administered the oath of office to the new Zoning Board of Adjustment members. Election of Officers: Chairman and Vice Chairman Cheryl Feigel moved to nominate Dee McNosky for Chairman. Larry Henry moved to close the nominations. Skip Reynolds seconded the motion. The nomination for Dee McNosky for Chairman was passed by an "Aye" voice vote. Cheryl Feigel moved to nominate Larry Henry for Vice Chairman. Jerry Birkes seconded the nomination. There were no other nominations. The nomination for Larry Henry for Vice Chairman passed by an "Aye" voice vote. 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: Feigel, Reynolds, Byerly, Henry, and McNosky. Chairman McNosky outlined the meeting format for the audience. PUBLIC HEARING - An Administrative Appeal by Mary Brothers & neighbors to allow the issuance of building permits on Lots 10C, 10D, & 10E, Wescoat Place. Case A-00-011 Clayton Husband presented the case to the Board. He summarized the staff briefing in the Official Packet. Zoning Board of Adjustment Minutes -November 14, 2000 Page 2 of 19 -Draft Copy (~~/~5/ODJ Larry Henry asked if the issue before them is if three house could be built or two houses and if it is not about if houses can be built, but how many. Mr. Husband said that could be one interpretation. He said that someone could construe that there is only a single lot for the issuance of a building permit, however, if someone does not plat them into one single lot, there is nothing to prevent however owns them from selling them as individual lots in the future. He said thattheplat states that there are three separate lots and even if they were platted into one lot, it would not meet the restrictions for R40. Mr. Henry questioned the non-conformity for the past use. Mr. Husband said that the use of the district is for single family and the use conforms. Cheryl Feigel questioned if the property was anon-conforming use or anon-conforming zoning. It was determined that it was not anon-conforming use because it was residential. The non- conforming issue was that the home that was destroyed did not meet the zoning district setbacks on platted property. Mr. Husband said that the house straddled the lot lines, and now that the house has been demolished, the non-conforming issue has gone away. He said that an application for a permit could not enjoy the same rights as the previous dwelling and could not straddle the property lines because it could not violate the setback requirements. Dee McNosky asked if the lot does not conform to the R40 requirements, what would it qualify for. Mr. Husband responded the setbacks for R40 still apply regardless of the size of the lot. Rich Munson asked if staff knew the history of the R40 zoning in the area and if it was put in place when Colleyville was incorporated. Mr. Husband responded he didn't know the history but typically, when properties are annexed they are given a base zoning. Mr. Munson said it could be assumed that when it was annexed, it was decided that the area was a good place for R40 zoning. He said that the plat predated the incorporation of Colleyville. Cheryl Feigel said that her quandary would be if the city actually went through a rezoning process and often times when doing a Master Plan the citizens visualize future zoning and discerning if it were zoned or master planned for R40. Mr. Husband said that he didn't know. He said it could have been given a zoning category when annexed or in 1977 when the first zoning ordinance was adopted. Larry Henry asked if the building permits that were issued had the restrictions that the R40 setback requirements would apply. Staff responded that they were. Rich Munson asked if staff has seen a plan that the building footprints would meet the R40 requirements or do the R40 requirements prevent or inhibit the construction of a residential structure on the lot. Mr. Husband said that the lots are 100' wide and 15' side setbacks reduce the width of the structure to 70'. Cheryl Feigel wanted to clarify that the lots are lots of record and the city would have to go through a rezoning process to change them from what they currently are. Mr. Husband responded that the lots are lots of record zoned R40 and by themselves cannot conform to R40 area requirements and rezoning them to an alternate category would be an alternative approach even though there is not a category that provides for these lot sizes. Dee McNosky asked if the owners are asking for any variances for required yard encroachments. Staff said they were not. Zoning Board of Adjustment Minutes -November 14, 2000 Page 3 of 19 -Draft Copy (~~/~5/00J Chairman McNosky asked to hearfrom the applicant. Mary Brothers, 6208 Westcoat Road was present to represent the case. She said that she has two or three issues at this point. She said that the first one would be the hearing that they are having. She said that as far back as July 10tH there was opposition to three houses being built on the property. She said that they didn't oppose to two houses and started coming to the City with her neighbors. Ms. Brothers said that Beverly Thorne and she had a meeting with the Mayor and Barry LeBaron on August 31 St at 10:00 a.m. and they were told to file an appeal. They were told it would stop any further proceedings with the property until they had an appeal and they could state their oppositions. She said that she filed an appeal on September 7~' and you issued a building permit on Octoberthe 5t". Chairman McNosky said that the Board didn't issue a building permit, city staff did. She said that Bob Stripling issued the building permit 2 weeks before he departed the City and he had a closed door meeting on a Friday afternoon and by Monday morning he had a building permit. Ms. Brothers said that it was after the appeal had been filed. She pointed out Section 211.010. Appeal to Board Section (c). She said that she is before the Board on November 14t"and the City has given him 2 building permits and they did not have an opportunity to have a hearing. She said that they paid $125.00 for nothing. Ms Brothers asked the Board to tell her why those proceedings were not stopped. She wanted to know why a man that should have been in a lame duck position of two weeks left in the city, going to Virginia, gave a man knowingly a building permit when there was an appeal filed, letters sent, meetings with staff, and meetings with the Mayor. Ms. Brothers said that when the City Manager was asked by the Mayor why he gave the building permit, his answer was to tell Mary Brothers to send her complaints to Virginia. She asked if this was the way the citizens of Colleyville get treated? Larry Henry asked staff if it was their understanding that her interpretation is that an appeal should stay all action by the City on matters like this. Mr. Husband responded that typically the Board of Adjustment action is for when the City sites something on a property by issuing a ticket and an appeal stays the furtherance of the City's proceedings. He said that this particular case is an appeal of a decision that was made by the City Manager and not an appeal of anything the City is imposing of this property. Skip Reynolds said that he is not sure what Mr. Husband is telling the Board. He said that if they were downtown at district court and there was a procedural rule that said the filing of something in the court stayed further proceedings, it would generally mean that until there was a hearing, there would be no further action. He said that he wanted to know if things work differently under this code of regulations. He said that they may want to get clarification from the City Attorney so that in the future they can have some understanding of it. He said that regardless of what practice may have been, the City needs to follow the law. Mr. Reynolds said if they don't have an understanding on the part of the staff and the members of the committee of what the law is, then perhaps they need to get some kind of bright light guidance. Jerry Birkes said that he remembers this case nearly coming before the board several months ago. He said that the builder had requested a variance to build one home on one of the lots and Zoning Board of Adjustment Minutes -November 14, 2000 Page 4 of 19 -Draft Copy (~~/~5/00) the encroach into the side yard. He said he remembers the builder withdrew the case while he was here. He said that the builder is not asking for a variance nor has he asked for a variance when he applied for a building permit. He said that they are talking about two different cases. One by the builder and now he gets a building permit that is in compliance. Jeff Byerly asked staff if an appeal could be made before the building permit was issued, because there is nothing to appeal. He said that until the building permit was issued, and then the appeal was made, there would be no proceeding to be stayed at that point. Mary Brothers said that is correct but the neighborhood had turned in a letter of objections for the building permits to not be issued that had 10 names on them. She said that the letter prompted a meeting with the Mayor and Barry LeBaron and at that point they were advised to file an appeal and pay $125.00. Chairman McNosky asked who did the advising and Mary Brothers responded the Mayor. Jerry Birkes said that he recalled that the people who were going to be speaking against the variance at that time were going to be speaking that it was not compliant and should not be given a variance, not that there should not be 3 homes built. Chairman McNosky said that they were looking at a request for a variance because before they did anything they wanted to make sure that they could do what they wanted to do. She said that when he withdrew it ended all proceedings regarding anything the Zoning Board of Adjustment had to consider on the case. She said that the documentation she has states the building permit was filed on August 30th and Mary Brothers' appeal was submitted on September 21St. Chairman McNosky said that the dates don't jive with the building permit being issued before her appeal. Ms. Brothers said that building permit was denied from the City because of the variance. She said that her appeal was submitted on September 7th. The Board told her that the City date stamped the appeal received on September 21St. Chairman McNosky said that the permit was approved and issued on October 5th. She said that this point in time the Board is dealing with procedural issues and not about the property. She asked staff how to reconcile the issue that the neighbors applied for an appeal prior to the building permit being given to the builder before they can proceed onto the rest of the appeal itself. Skip Reynolds said that he thinks the language Ms. Brother is talking about is Section 211.010 (c) Local Government Code, Exhibit B. He said that it says: "An appeal stays all proceedings in furtherance of the action that is appealed unless"certain things happen and there is no indication that those things have happened. He asked Ms. Brothers what she was appealing from when she made her appeal. She said that they were appealing him getting a building permit to build three houses on that property. He said that no permit had been issued yet for the three houses. She said "no" and they were trying to prevent that until they had a hearing and that is what the appeal was for. She said there were a number of problems with that property as it owed the City of Colleyville over $11,000 in liens that had not been paid. Chairman McNosky told Ms. Brothers that before the Board goes into the support phase of the case, she wanted a resolution regarding procedures. Skip Reynolds said that it seems to him that the question of who owes what on the property may not be the same as who has a right to use it one way or another. Ms. Brothers said that in the appeal they stated all of the reasons they were Zoning Board of Adjustment Minutes -November 14, 2000 Page 5 of 19 -Draft Copy (~~/~5/00) objecting to a building permit being issued for three houses. Skip Reynolds said that he is more curious about the procedural question of whether the Board has a cart before the horse so to speak. Rich Munson said that in looking at the application as an application of appeal and just because someone files an appeal, has the City accepted this and did they notify Mr. Hawkins that an appeal was filed, nor does he see any signatures from the City. Ms. Brothers said that she has a receipt from the City and they accepted her $125.00. Mr. Munson said that he looks at that as fees paid for them to look at the application. Ms. Brothers said that is not what the Mayor told her. Cheryl Feigel asked Ms. Brothers if the primary purpose for the appeal was the nonconforming use. Ms. Brothers said that was one of the concerns. Cheryl Feigel said that he understands that was the primary concern and as far as the financials go, it is the City's obligation to address those. Ms. Brothers said it was the nonconforming issue, the fact that the street and water lines will not handle three more houses. She said they were promised sewer 5 years ago and they don't have sewer. Cheryl Feigel said that the issues of utilities and traffic are for the City to decide, but she understood Ms. Brothers' primary concern was the nonconforming use. She said that once the nonconforming use was considered by looking at the ordinances of the City and it was determined that this was not a nonconforming use once the old house was torn down, then that concern went away. She said that now that the City has addressed the other issues, she doesn't see that the City had any grounds to hold up the building permit. She asked Ms. Brothers if she were advised when the building permits had been issued. Ms. Brothers said that until tonight she had not heard one word about the nonconforming use being the house sitting over the lines. She said that before tonight she was told by staff that the property itself was in a nonconforming status because it was nonconforming before the City was incorporated and it had nothing to do with the footage of the house or the setbacks. Ms. Feigel said that she apologized if there were some miscommunication to Ms. Brothers regarding this. Ms. Brothers said there was no miscommunication as she was told that it came under a nonconforming status for zoning and it had nothing to do with setbacks and tonight is the first time that she has heard anything about setbacks on that property. Ms. Feigel said that the Board has been advised this evening and in their packets that the nonconforming use applied to the old house that was there. She asked if the Board could arrive at a consensus about that. Larry Henry said that is staff's position and they need to decide if they are right or wrong in making that judgement in what that means. Skip Reynolds said that was thoroughly a nonconforming use and it no longer exists. He said that perhaps the question is if they ignore that particular piece of history and look at the way the property is zoned and platted separate from the questions about adequate water or sewer. He asked if it would be a permitted use to let someone build three homes there and that would be the simplest way to look at this problem. He said that if you look at the land without any lines except the boundary lines and ask how it is zoned and is there enough of it to build three homes on or does special action need to be taken. Larry Henry said that the Board needs to hear from both sides before they can arrive at that point. He said that the Board needs to get back to the first issue about the building permit and appeal. He said the quandary he is in is that it's very difficult to file an appeal on a proposed future action. Zoning Board of Adjustment Minutes -November 14, 2000 Page 6 of 19 -Draft Copy (~~/~5/00J He said that it would be like him appealing a traffic ticket that he may get in the future. Mary Brothers responded that is like shutting the gate before the horses are out because you've already issued 2 building permits. Mr. Henry said that the issue is if the Board stands with the City's judgement or do they do something different. Chairman McNosky told Ms. Brothers that the question before the Board is whether they pull the building permits or agree with the City. She asked Ms. Brothers to go forward with presenting her case. She said the Board will hearthe entire case and deal with the building permits first and then the timing issue and what happened with staff. Cheryl Feigel asked if Ms. Brothers was advised that the building permits were being issued. Ms. Brothers said she was told that the building permits were being denied. Ms. Feigel asked if Ms. Brothers received a letter from the City Manager telling her building permits were being issued. Ms. Brothers said she did not and Chris Hawkins met with Bob Stripling on a Friday afternoon and Monday morning he had a building permit. Ms. Feigel asked if Ms. Brothers was advised in any way that her appeal had been affected at all or was there any further communication from the City Manager. Mrs. Brothers responded she had not. She said that she came to City Hall on Monday morning and found out. Jerry Birkes asked if the building permits that were issued are on hold. He was told that 2 homes were being constructed. Jerry Birkes said that all of the timing aside, he asked why should the homes not be built. He said that the property is zoned R40, the lots are 14,600 s.f., and the buildings are compliant to the R40 setbacks and asked why the homes should not be built. Ms. Brothers said that to squeeze 3 houses on that area vs. all of the houses that are surrounding the property as they all have half acre to acre lots. She said that she has an acre lot. She indicated where her home is. She said that she has two lots that are half acres each and her home sits in the middle of them. She said that her lots had to be replatted when they were bought in 1982. Rich Munson asked if they were still described as two separate properties or if the deed was filed to describe it as one property. She said that they are two separate properties and her house crosses the property line. She said the house was an old farm house and built in the 1950's. She said that no one in the area has less than a half acre lot. Cheryl Feigel asked the size of the lots in question. Ms. Brothers responded that they were 100' by 145'. Jerry Birkes said that the lots were platted in this configuration when they were annexed. He said that they have been platted like this for 44 years. Chairman McNosky said that they have been platted as three lots yet enjoyed by someone as one lot like the applicant has 2 lots and enjoys it as one. Ms. brothers said that she had to replat her property when she bought it in 1982 and to answer the question, the area that she lives in, all of the homes are at least a half acre or larger. She said that to squeeze three houses on that property across the street will reduce their property values and increase their taxes. Ms. Brothers said that four years ago when the City started down Westcoat to give them sewer, they got to the house to the south of her and up to that point they have sewer. She said that across the street they got to the south lot of the 3 lots. She said that Phil Giles never had the sewer hooked onto his home and the reason that the sewer didn't go farther was that it came to a Zoning Board of Adjustment Minutes -November 14, 2000 Page 7 of 19 -Draft Copy (~~/~5/00J crest and to the north was downhill. She pointed out the lots that did not get sewer. She said that they were told at that point, the City would come up Bettinger, come down White, and when they headed to the subdivision down Westcoat, they would pickup the other five lots. She said that never happened and it was almost 5 years ago. She said that when Chris Hawkins bought those three pieces of property, the south lot had sewer to it, the middle lot did not, and the north lot did not. Ms. Brothers said that the middle lot could get sewer because he would take it off the south lot, but the north lot can't get sewer until the City brings it to it. She said that their water lines are inadequate and when she turns on her washing machine it takes forever to fill, her shower dribbles, Beverly Thorn's shower dribbles, Gail's across the street dribbles. She said that they have old water lines and they barley keep up with the people that are there now, and most people don't have children and are older without several people in the homes taking a number of showers each day. Ms. Brothers said that the neighborhood can't handle the traffic, water, and all of the above reasons. Jerry Birkes asked staff if septic tanks are allowed and if the lots had to have City water and sewers. He asked if it is safe to assume that the water going to this location is in PVC pipe or galvanized pipes. Chairman McNosky said that the Board needs to get back to the applicant, go through the process, and then ask questions after they get all the information. Ms. Brothers said that she told the Board everything that they need to know. She said that she is the spokes person for the neighborhood, but the whole neighborhood is in an uproar. She said that Chris Hawkins went around and visited all the neighbors with the exception of her because she made him mad the first day she met him. She said she told him to mow his lots and he told her if she didn't like it to take it to City Hall. She said he told everybody that he's building three houses there and don't worry about it. Ms. Brothers said that the lady across the street asked him if he were going to cut any trees down and he said no. She said that within 30 days he cut down a gorgeous apple tree that was very large when he didn't have a clue if he'd get to build three houses. Ms. Brothers said he is an ex-mayor, ex-city councilman, and he can do anything he wants to do because he's above the law. She said that they have a house almost built and another one almost half built across the street as he's building every day whether it's raining or not because he has his building ~ermits with an appeal in process. She said that the process goes back to a letter dated July 10 h by a City Manager that should be in a lame duck position to make no decisions what so ever. She said that Bob Stripling had no right to issue those building permits with two weeks left at the city. Chairman McNosky asked if there was anyone else present wishing to speak in support of the case. There was none. Chairman McNosky asked if there was anyone present wishing to speak in opposition of the case. Chris Hawkins, 7504 John McCain. He said that the misinformation is so endless that he can't possibly remember all of the things to correct. Mr. Hawkins distributed a copy of a letter Ms. Brothers wrote to the Mayor and City Council and he highlighted a portion so that they might get the sense that Ms. Brothers opposition is related to some politically motivated personal issue with him. He said that frankly he couldn't tell them what that issue is. He said that he hadn't met Ms. Brothers or had any conversation with her before the issue with these properties. Zoning Board of Adjustment Minutes -November 14, 2000 Page 8 of 19 - Dra# Copy (~1//~5/00) Mr. Hawkins said that he only owns one of the lots, the one on the south and that is the only one he has ever owned. He said that the lot in the middle is owned by the Lopez family and they are present to speak for themselves. He said that the lot on the north is owned by the Nagel family who had plans to build sooner, but circumstances have come up and will postpone for at least a year and a half or two years. Mr. Hawkins said that when it came up to buy the lots, there were three lots and if Ms. Brothers and the neighbors felt there shouldn't be three houses, they could have contacted the real estate agent and bought them. He said that he was more than surprised that anyone would object to the idea of three nice houses that are intended to conform with the look of the neighborhood. He distributed plans of the houses that are being built and said that it is beyond him how they will hurt the neighborhood. He said that after what had been on the lots because it was bad and should have been torn down before it was, he thought that anything would be an improvement. Mr. Hawkins said that the issue of holding things like building permits while the appeal goes on was explained to him. Why the City doesn't take the approach Ms. Brothers would like is because if someone is developing property and someone doesn't like the developer, they could go to the City Manager and come up with a creative interpretation of the ordinances, and file an appeal. If that Ms. Brothers interpretation is used that would stop the development. He said that when the hearing is held and the appeal is turned down, then you could get someone else who doesn't like the developer to do the same thing. He said that for $125.00 a month, you could keep anyone from doing anything if that is they way the regulation is to be interpreted. He said that his understanding that what is meant by the regulation to stay proceedings would be like if someone has a kennel and the City says they no longer have that nonconforming use and they're going to have to stop. Mr. Hawkins said at that time those people are able to appeal and the City cannot make them go out of the kennel business until they've had the chance for the appeal. Mr. Hawkins distributed photographs of the neighborhood. He said that the lots were platted in 1952 and all of the lots from the south end of the subject property, across the street, then north to White Drive were platted when Westcoat Drive was put in. He said that all of the lots are 100' wide lots. He said that the houses on the lots are smaller than typical Colleyville houses and are mostly nice framed houses with well kept yards for the most part. He said that the lots across the street only have one house per lot other than Ms. Brothers'. Mr. Hawkins said her house straddles a pair of lots. He said that hopefully the Board can understand his surprise that there would be an objection to building a house on a 100' wide lot. He said that Ms. Brothers said that Ms. Thorne objected, yet she lives on a 100' wide lot. He said that Ms. Thorne's and Ms. Brothers' houses have numerous encroachments into the required R40 side yards because they were nonconforming as the encroachments were prior to the zoning. He said that his construction will conform to the R40 setbacks. Mr. Hawkins said that their houses will not come as close to the property lines as theirs do as they each have out buildings that come right up to the property lines. He said that he did not understand what the objection is other than some politically motivated personal issue to object to the houses. Mr. Hawkins said that the center lot has had a sewer tap to it since 1997 and the south lot has recently had a sewer tap made to it. He said that sewer could be taken to the north lot, but it would be difficult and marginal and there are no plans to do anything to the north lot any time Zoning Board of Adjustment Minutes -November 14, 2000 Page 9 of 19 -Draft Copy (~~/~5/00J soon. Mr. Hawkins said that the water main is an 8 inch PVC water main that is more than adequate to carry that neighborhood, fire hydrants and other water needs in the area and was installed recently. He said that he saw it himself when they were digging for the sewer tap. He said that any problem those folks have with their water supply is probably related to some old galvanized pipes that have corroded inside that go from the main to their houses, and not with the main. He said that they cut the copper service to the house that the Lopez' will own and there is no shortage of water there. Mr. Hawkins said that the idea related to the nonconforming use, these are nonconforming lots of record. He said they don't meet the size requirement for the R40 zoning like almost every lot around there doesn't meet the size requirement and most have house on them. He said that he didn't think that there was ever a nonconforming use on the lot or any of the lots. The use that was there before was a single family residence and what is being built now is a single family residence that will comply with all the setbacks. He said that he is baffled as to the objection. Chairman McNosky asked if there were any questions for the speaker. Jerry Birkes asked if Mr. Hawkins has done pressure tests on the water lines that are coming into his lot. Mr. Hawkins said that there has not been a requirement or need to do a pressure test, but it is a fairly new line not an old clay or cast iron pipe. He said that the line is a new 8 inch PVC water main that is as big as any in the city other than the trunk lines and is more than enough to carry the water. He said that it's the same main that go all the way to Monticello and is looped through there. Mr. Hawkins said that if anyone is having trouble with there water it's in their service line going from the main to their homes as frequently the old galvanized pipe corrode inside and choke down and don't get much pressure. He said that if they'd replace those, they'd probably get plenty. Rich Munson said that as far as the sewer is concerned, he asked Mr. Hawkins how far it extended up the street and if there is a manhole at the end of the line or aclean-out. Mr. Hawkins responded that it is a clean-out and it dead ends approximately across the street at the property line of the center lot and the south lot. He said that when the tap was made at the center lot, Mr. Giles didn't want sewer and the city made him purchase sewer. He said that Mr. Giles took out a note from the city and paid about $600.00 then quit paying. Mr. Hawkins said that he made sure when he went to closing the money owed the city was paid for. He said they paid an additional $2,180 for the sewer line when they closed at the end of June. He said that they recently made a tap for the south lot and the sewer flows to the south. Mr. Hawkins said that the sewer line to the north will not work because the grade changes. Skip Reynolds asked Mr. Hawkins when was his building permit issued. Mr. Hawkins said that he did not have it in front of him and he did not have the exact date, but it was early or middle October. Chairman McNosky said that the briefing states that the building permit was issued on October 5 and another permit was issued on October 17. Skip Reynolds said that both were issued after September 21. Rich Munson said that the September 21 document is merely an application and there should be a letter from the City to Mr. Hawkins that the City has received an appeal. He asked Mr. Hawkins Zoning Board of Adjustment Minutes -November 14, 2000 Page 10 of 19 -Draft Copy (~~/~5/00) if he was notified in any way that there was an appeal. Mr. Hawkins said that he was told verbally until the notice that came for tonight's meeting. Skip Reynolds said he wanted to make an observation. He said that the government code appears to say that an appeal stays all proceedings. Rich Munson said that was true but who is it used by, the residents against the government or by the government. Chairman McNosky asked that one person should speak at a time. Skip Reynolds said that he would take them back to college government 3101 which he taught before he went to law school. He said that Texas like most American jurisdictions is what is called a unitary state with one state government and state law applies to the state and any subdivision. He said that state law controls over a countervailing county law or municipal law or ordinance. He said that the point he wants to make is that they need to get some clarification by the City Attorney, but probably the government code is mandatory and has to be followed by every city. He said that he thinks he has become persuaded that the cart came before the horse and the appeal was filed before there was anything to appeal from and that is why he wanted to get the dates straight. He suggested that it would be well for them to get the City Attorney to give them some guidance about what the section from the government code means so if it comes up again they have some guidance. He said that in some future proceedings, someone has gotten a permit and then an appeal is filed, they need to know what the affect of the appeal is under state law. Larry Henry said that he would like staff when knowing a building permit was going to be issued and knowing that an appeal is on file, they need to deal a lot more timely with these things before construction is under way. Clayton Husband responded that originally the permit was not going to be issued per the City Manager and he advised the building inspection department not the release a permit. He said that the decision was changed based on another section of the code that the Board has a copy of based on lots of record that have been approved an accepted at the time of the effective date of the chapter of code. He said that based on the conflict of the two sections, it was decided that there was no basis for denial of the permit. Skip Reynolds said that at the point that no permit had been issued, the fact that someone applied for a permit and it was not issued, didn't give anything to appeal from. He said it is his understanding from the applicant, she is trying to contest is the issuance of a permit which appears to have been issued after she filed the appeal. Chairman McNosky said that these are all good questions, but she has a feeling that the individuals they need to address them to are not here. She said that as far as the issue of timeliness, that they need to do that with those particular individuals in place. She said that she wanted to direct the Board's discussion back to the appeal itself and they can take care of the house keeping later. Skip Reynolds said that the house keeping may have to do with if they have jurisdiction to take any action. She said if they can't answer that issue, she wants to go ahead and finish hearing people speak and then decide whether they want to take action. Chris Hawkins said that there were so many issues raised and misinformation presented by the applicant. He said that there was a lien for tearing the house down and mowing liens and a few Zoning Board of Adjustment Minutes -November 14, 2000 Page 11 of 19 -Draft Copy (~~/~5/OOJ other things that amounted to around $16,000. He said that one of them was the sewer issue which was paid out of the closing proceeds. He said he has a copy of the order from the United States Bankruptcy Court Northern District Texas Fort Worth signed by Massy Tillman that is an amended order authorizing the sale and property free and clear of all liens and encumbrances. He said all the other liens and claims related to that property were moved to the bankruptcy court and it was not in his control and he would have like to see all of the money paid to the city at the time of closing. The court directed Mr. Giles to place $37,000 with the court to deal with the court and it is out of his hands and it's somewhat out of the city's hands other than to pursue those claims. Mr. Hawkins said that the other thing that came into play regarding any interestthe city had even if it had an ordinance that was clear about not building on these as three separate properties. He said that Local Government Code 245 which took affect on May 11, 1999 is a very clear piece of legislation. He said it says once anything related to size or lot coverage on a property once any permit is applied for, meaning a plat even preliminary plat, to the government that is in control at that time, those rules become fixed at that time. He said that for this property it was in 1952 when the plat was applied for at the County. He said that for the city to turn around and say that they need to make it into one piece of property, and it is under three different owners, state law would not allow that. Larry Henry asked if there were any applications for any variances on those two properties. Mr. Hawkins said that the original application to ask for a variance from the side yard setbacks to build a house like he wanted on the lot he owns to make a side entry garage was withdrawn. He thought that anyone in the neighborhood would be please with the idea and when he received opposition from Ms. Brothers he decided it was not worth the time involved to proceed with the variance. He said that the application was pulled more for a time issue. He said when he came to the hearing there were only 4 members present. He said that Ms. McNosky gave him the opportunity of going on and pursuing the variance before 4 members or waiting until the next meeting. He said that at the time, he opted to wait until the next meeting and then later decided it wasn't that important to him if the neighbors seemed to prefer the front entry garage that is what he did. Ken Lopes, 1001 Amherst Drive, Apt. 1003, Bedford, TX. He said that he owns the center lot and purchased it directly from Mr. Giles not Chris Hawkins. He said that he is not versed with the legalities as he takes the big picture approach and this has been an adventure from day one. He said that he can see that it is going to continue to be an adventure even after he moves in. He said that they have redrawn their plans to make the house fit on the land and made sure that the exterior would conform to the neighborhood. He .said that all of the lots nearby seem to be the same lot size as they are and he just wants to move in. He said they looked at other properties and have been in transition for a year and a half. He said that living in an apartment has really bonded their family quite well, and they are ready to move on. He asked the Board to look at big picture and see that they will build nice houses there and not demean the neighborhood. He said that they are vested in the community and attend church and have transferred their boys from private school into public school thinking they will be in the community. He said that the bottom line is that they want to live in Colleyville and he wants to get along with his neighbors and if it is decided they can do it, all fences will be mended. He said that he doesn't want to have problems Zoning Board of Adjustment Minutes -November 14, 2000 Page 12 of 19 -Draft Copy (~~/~5/00J with his neighbors. Mary Brothers asked if Chris Hawkins didn't own either one of those other pieces of property, why were all of the previous variances requested on July 20tH for all three lots in his name? Clayton Husband responded that an application for a variance does not necessarily need to come from the property owner, it can come from a builder or developer. Ms. Brothers said that Mr. Hawkins keeps referring that Ms. Brothers is objecting to this, but all of the other neighbors have objected and signed the petition. Chairman McNosky closed the public hearing. Larry Henry said that all of the three lots would be in compliance with R40 setbacks. Clayton Husband responded that was correct and if they didn't meet the requirements, they would have to receive a variance. He said that when he looks at the timing of the appeal and permits, he is persuaded that it is difficult to appeal an action in the future. He said that he is concerned about the length of time for the Board to act from the time that the City got the request. He said that it appears to him that there are strong feelings associated with it, but the best use is single family houses that fit the R40 requirements and the single legitimate use of the land. Jan Levy addressed the timeliness of the public hearing on the case. She told the Board that the application was received on September 21 St and the Board had restructured their format to meet once a month per their adoption of the rules of procedure. She said that it requires 15 days notice to surrounding property owners and 15 days notice in the newspaper for a public hearing. She told them that the deadline for submittals indicate that the deadline for the October meeting would have been September 15tH and this came in after the deadline and couldn't meet the notification requirements. She said that the next meeting since they went to one meeting per month was October 20tH Chairman McNosky addressed concerns about timeliness of staff keeping everyone involved in the appeals process notified of when the permits were approved and released. She said that there should have been better communications by staff. She called for a motion. Cheryl Feigel moved to deny the appeal and requested that the City consider that they may have accepted an appeal prematurely priorto anything to appeal and Mrs. Brothers is given a refund of her $125.00. Jeff Byerly seconded the motion. The vote being: Ayes: Feigel, Reynolds, Byerly, Henry, McNosky Noes: None Dee McNosky moved that considering the conditions that were just discussed, staff is recommended to refund her application. She said based on the fact that she thinks Ms. Brothers was given an opportunity to make an appeal with the thought that she would have a stop action and it was not able to be put in place. She said that going back to her lack of communication thing, she thought the applicant needs to be given compensation for it. Skip Reynolds seconded the motion. Zoning Board of Adjustment Minutes -November 14, 2000 Page 13 of 19 -Draft Copy (~~/~5/00) The Board Secretary, Jan Levy, asked if that action was already a part of the original motion. It was determined that it was. No action was taken on the motion. Skip Reynolds said that he moved that the City ask the City Attorney to take a look at the local government code Section 211.010 (c) which talks about an appeal staying proceedings to give them some guidance as to what that means. He said that not only for the Board's benefit, but for the City and Staff. He said that by way of comment also for the benefit of the citizens and for people who may be engaged in development projects so they will have guidance and nobody will be caught by surprise. Cheryl Feigel called for a point of order. She said that she is not sure they can make a motion if it is not publicized on the agenda. Staff advised the Board that they can make a recommendation it would go through the City Manager's office to request information from the City Attorney. The Board requested that Skip Reynolds comments be taken as a recommendation. 2. PUBLIC HEARING -Scott Berken for a variance from the Land Development Code Section 3.24 G -SCHEDULE OF DISTRICT REGULATIONS to provide for the construction of a room addition that encroaches approximately 11' into the required 25' side yard unit on Abstract 331, Tract 1 K1 at 6108 Waller Lane. Case A-00-012 Clayton Husband presented the case to the Commission and went over the staff briefing. Larry Henry asked how far away the house to the south was located on their property. Staff responded that they were unsure. Jeff Byerly asked if the applicant was proposing two additions, one on the south and one to the west. Staff responded that there are two additions to the house, but in theory there is only one and only the south side of the addition will encroach. Mr. Byerly said that staff is recommending limiting the room size. Staff responded that it is only for the master bedroom portion because that is the one that encroaches. Jan Levy told the Board that when she did a site visit, she noted that the dwelling to the south appears to not encroach into the required 25' side yard so there will still be a 39' separation between the two dwellings. She also told them that there is a large photinia hedge along the property line that will block the appearance. Skip Reynolds said that he wanted to make sure he understood how many square feet they are talking about. He said the recommended condition is that the room addition does not exceed 576 square feet, but in the memorandum there is a proposal fora 1,000 square foot room. Cheryl Feigel said that it appears to her that the 1,000 square foot addition is not an issue for the ZBA to deal with because it falls completely within the ordinances. She said that the only thing that they are dealing with is the part of the addition that does encroach. Mr. Reynolds said that he wants to clear up the verbiage doesn't muddy the waters when they make their decision. Rich Munson said that according to the sketch provided in their packet, the area that encroaches is 576.52 square feet. Jan Levy told the Board that the reason Mr. Berken came to Community Development was to talk about the mother-in-law suite and the addition of that suite in the package was for background purposes only because they redesigned their concept so that addition would not encroach and comply with the ordinances. Jerry Birkes said that the one drawing does not show the use of all of the particular rooms and his concern is not about how much square footage will go overthe line, are they building a separate Zoning Board of Adjustment Minutes -November 14, 2000 Page 14 of 19 -Draft Copy (~~/~5/00) apartment for a two family dwelling where there are kitchens, etc. Clayton Husband responded that in his conversations with the applicant, it is his understanding that it will be an addition to the existing house, and it's not considered a separate structure itself. He said that the applicant can respond. Scott Berken, applicant, was present to represent the case. He thanked staff for their assistance. He said that they were looking for property to live in Colleyville. He said that his father was ill about two years ago and they knew that they wanted to provide a place for their mother once his father passed. He said that came about at the beginning of May. He said they placed bids on a couple of other properties that were a little larger and they'd have more room to construct a mother-in-law suite as a separate building, but not an apartment because of the code requiring no second kitchen. He said they were proposing a living area for this to be her home base. He said when they lost the other bids, they were able to acquire this property. He said that her wife met with the Zoning Board originally and explained their hardship and they needed to build something as quickly as possible. Mr. Berken said that they were told they may be able to get an exemption if they submitted a letter explaining their hardship and then remove the setbacks without having to reptat the lot. He said that when they were going to submit their permit they were advised to submit all of their permits. He said the house was a little small for a family of five and they wanted to add on a fourth bedroom. He said that their thinking was that with the exemption the setbacks would not be an issue, but when they read the law it was determined that accessory buildings are acceptable, but the amount of square footage in accessory buildings was now the issue. He said they changed the code to a maximum of 750 sq. ft. in all of the accessory buildings and a maximum of three. He said he already has one that was the preexisting garage that is 450 sq. ft. and he only has 350 sq. ft. left. He said his mother is not an invalid, but the goal is that she was not going to be placed in any type of assisted living outside of their home. He said they needed enough room for medical equipment and if needed room for a full time nurse in the area and building a smaller room and going upstairs would not be acceptable. He said that he and staff brainstormed to attach the mother-in-law suite to the home and that is what the 1,000 sq. ft. comes from. He said they originally wanted something larger, but that would be acceptable and it will have a common wall and fit within the existing setback requirements. He said that they are now limited as to where they can add on their room addition. He said there is no other place for it because of a large tree in the back. He said that attaching to the side and keeping the roofline the same and matching the brick as best they could would keep the integrity of the ranch style house that is there. He said that basically the addition will enlarge a room into a master bedroom and the 1,000 s.f. add on will have access to the house and essentially be additional living quarters for his mother. Larry Henry asked if the total addition was "L" shaped. Mr. Berken responded that the 1,000 s.f. addition is not an issue today because it fits within the guidelines. Mr. Henry said that the part he is adding on is at the south end and that is at issue. Mr. Berken said that the existing south wall will be torn down so there will be access through the house. He said that the reason for 576 square feet is because the house cannot exceed 20% of the lot size. Jeff Byerly asked if there was another permit for the 1,000 sq. ft. addition. Mr. Berken said that Zoning Board of Adjustment Minutes -November 14, 2000 Page 15 of 19 -Draft Copy (~~/~5/OOJ there will be, but that is not an issue at this time. Jerry Birkes asked questions about the proposed room addition. Mr. Berken said that the plans got twisted by the designer and showed where the access would be. He said there would be windows to the side yard and would enter from a doorway from within the main dwelling. Clayton Husband said that the building codes would prevail, but restrictions can be made in the motion. Rich Munson asked if there were any drainage problems that might occur as a result of putting a room addition into the side yard. Mr. Berken said that the actual drainage heads to the north side of the house and they have French drains that run to the back of the property and everything will go away from the construction. No one else was present wishing to speak. The public hearing was closed. Larry Henry moved to approve the variance with the understanding that the addition is attached to the house with egress to and from the house and including the recommendations by the staff: 1. Require that the room addition does not exceed 576 square feet; 2. Require that the room addition does not encroach farther than 11 feet into the side yard; 3. Require that the photinia hedges on the south side of the lot not be disturbed in orderto provide adequate screening for the neighbor to the south; and 4. Require that the room addition matches similar roofline and construction materials as the main dwelling. Cheryl Feigel seconded the motion. The vote being: Ayes: Feigel, Reynolds, Byerly, Henry, McNosky Noes: None 3. PUBLIC HEARING -John & Beth Pallai for a variance from the Land Development Code Section 3.26 -Fences, Free Standing Walls, and Screening Materials - to allow the construction of a 5' iron fence with brick pillars that would encroach over the building line along Emerald Drive and a variance from Section 3.24G - Schedule of District Regulations to provide for the existing encroachment of the dwelling over the same building line of Lot 19, Block 2, Jewel Estates, 1101 Emerald Court. Case A-00-013 Clayton Husband presented the case to the Board and went over the staff briefing. He told the Board that they could separate the two issues and make two motions or make one motion to cover both aspects of the request. Beth Pallai, applicant, was present to represent the case. She handed out a copy of additional signatures of her neighbors in support of the variance. Zoning Board of Adjustment Minutes -November 14, 2000 Page 16 of 19 -Draft Copy (~~/~5/O0J Skip Reynolds asked the applicant if nobody in the neighborhood objects to the variance request. She responded that the people who they have talked to have not objected and signed a petition in support. Chairman McNosky pointed out the part of the packet that includes who was notified by mail. Ms. Pallai referred to the overhead that had stars on the properties who signed the petition and said they also got additional signatures other than one neighbor on the cul-de-sac who she couldn't get a hold of. Larry Henry said that 10 of 13 people who were notified signed in support. Rich Munson said that it appears the applicant's existing deck is about 20' from the existing property line and the fence will be about 5' from the deck. He asked if that is to allow some landscaping between the deck and the fence. Mr. Pallai joined his wife at the speakers' table. Mr. Pallai said that the deck is the gray area on the overhead and Mr. Munson is looking at the existing picket fence. There being no one else wishing to speak, the public hearing was closed. Cheryl Feigel said that she thinks the proposed fence is a definite improvement over the existing fence and will enhance the applicants' and neighbors' property. She asked staff if they approve the fence, can some future owner come in and replace that fence with a solid stockade fence without having to go back to the neighbors or consulted with the City. Clayton Husband said that if the Board's motion is specific in the type of fence that can be constructed and the amount of encroachment then they can't rebuild another type of fence. He said that if someone wanted to construct another kind of fence at the building line as allowed by code they could. Rich Munson asked if something happened to the fence and it had to be repaired if a portion became damaged, would the applicant orthe owner have to come before ZBA orthe City to effect the repair. Clayton Husband said that the variance runs with the property and is not tied to a specific owner. He said that the code requires the fence to be maintained. Larry Henry moved to accept the variance as submitted with the conditions stipulated by staff: 1. The fence will be a 5-feet iron fence with four brick pillars to be approximately 2 feet square and 5 feet in height; and 2. The fence will project 12-feet from the southwest corner of the dwelling and run more or less parallel to Emerald Drive to the rear property line, at which point the fence would be approximately no less than 26' from Emerald Drive, and then follow the rear property line to the southeast corner of the lot. And the variance for the encroachment of the existing dwelling over the building line as submitted is approved. Cheryl Feigel seconded the motion. The vote being: Ayes: Feigel, Reynolds, Byerly, Henry, McNosky Noes: None Zoning Board of Adjustment Minutes -November 14, 2000 Page 17 of 19 - Draff Copy (~~/~5/O0J 4. PUBLIC HEARING -Perry Steinhoff for a variance from the Land Development Code Section 3.26 -Fences, Free Standing Walls, and Screening Materials - to allow the construction of a 5' wrought iron fence that would encroach over the building line along Diamond Court of Lot 8, Block 2, Jewel Estates, 6601 Emerald Drive. Case A-00-014 Clayton Husband presented the case to the Board and reviewed the staff briefing. Jerry Birkes asked how far the variance that is being considered is away from the street because it meanders. Clayton Husband said that the building line would be approximately 50' from the street so an encroachment of 25' at the farthest point into that would be approximately 25' away from the pavement. Cheryl Feigel asked what is typical for fences to be placed back from the street even in an R20 zoning district. Clayton Husband responded that it all depends on what is adjacent to it. He said that on a corner lot like this one it would be required that it follow the building line since it backs up to the front yard of the lot behind it. He said that if it backed up to a side yard it would be different. He said that it is very situational as to what is allowed, but the closest it can be is 15'. Rich Munson said that he visited the neighborhood and the photographs bear it out that this is the optimal location for the fence due to the very nice stand of trees surrounding the house. He said that if it were moved in it may affect the trees. Clayton Husband said that the type of fence proposed will not create any kind of visibility problems at the corner. Perry Steinhoff, applicant, was present to represent the case. He said that they are typing to replace the fence that was built when the home was built in about 1985. He said it is a 6' wooden fence and it is in disrepair and they want a more open wrought iron fence that meanders through the trees. He said they love the trees and would never think about destroying them. He said that they side of their yard will become more attractive for their neighbors and will also enlarge their back yard away from the pool and house. Skip Reynolds asked the applicant what their neighbors think about it and if he had any objections or support. Mr. Steinhoff responded that he has two letters that were included in the packet, one being from the neighbor up the street adjacent to the property and one from the people across the street. He said they are the two nearest neighbors and they are in support and have not received any objections from the mailing that was done by the City. Mr. Reynolds asked Mr. Steinhoff if he would have any objection if he was permitted to do this with the stipulation that he could not later replace it with a wood fence. Mr. Steinhoff said that he had no problem with that. Dee McNosky asked Mr. Steinhoff if he has plans that were designed that would help explain if there are going to be pillars and of what material. He said that they are not planning on large pillars just simplest little wrought iron nothingness that disappears into the beautiful landscape. The pillars will be wrought iron instead of brick. He said it will conform to the pool standards. Larry Henry asked if it were possible to meander through the woods closer to the house. Mr. Zoning Board of Adjustment Minutes -November 14, 2000 Page 18 of 19 -Draft Copy (~~/~5/00) Steinhoff said that it could be, but there is a nice gap as shown in the pictures. He said that they are trying to accomplish a natural looking arc. Jerry Birkes said that there is an existing wooden fence and Mr. Steinhoff is proposing to build a fence substantially closer to the property line and what is the hardship that exists that require him to build in the manner he is proposing. Mr. Steinhoff said that the hardship they feel they have is inside the fence the existing fence is very close to the pool and the home in the back yard. He said that the back yard is odd shaped as it is and they're trying to expand the enjoyment of the yard because they water it and mow it all the tie, but they don't ever see it. He said that without doing anything negative for their neighbors and enhancing their own enjoyment, that would be their thought. Skip Reynolds asked if the other hardship be that there are trees in place and they have to take into consideration the existing trees to plot the path of the fence. Mr. Steinhoff responded that is true. Cheryl Feigel asked if the current stockade fence is the pool fence. Mr. Steinhoff said that there is an interior fence around the pool. Mr. Steinhoff said that the new fence would not become the fencing for the pool. Dee McNosky said that the Board would like to have specific dimensions to place in their motion. She asked if they had any kind of numbers that the Steinhoffs feel are necessary. She asked how much they needed at the farthest encroachment. Mr. Steinhoff said that he has not specifically measured the distance from the building line, but possibly 25'. Clayton Husband said that it could be no closer than 25' to the back of the curb and that would put it about half way between the building line and the street. Mr. Steinhoff said that is his intent. Chairman McNosky said that she would like to have specific measurements in place before a motion is made. She said that otherwise the vote needs to be put off, because they would be giving him carte blanche. She said that she did not want the applicant going home and finding out that 25' is on the other side of the tree trunk. Mr. Steinhoff said that he did not to find that out either and he specifically does not know the distance. Skip Reynolds said that it might make more sense to get more precise measurements. Chairman McNosky said that the application states that they have 15 year old original 6' wooden fence along the east side of the property with a 5' wrought iron fence. Now fence proposed to be outside the 40' setback on the corner lot with new distances averages 20' from curb. She asked if he is comfortable with the average 20' from curb. Mr. Husband said that the average figure would require other portions to be further away from the building line to reach the average. Larry Henry and Skip Reynolds said that they were uncomfortable with an average. Skip Reynolds said that he would be more comfortable getting a precise measurement so they don't have to guess about it. He said they would have to have a continuance. Staff said that the Board could approve the variance according to the drawing then staff could go out and measure exactly where the line is drawn. Skip Reynolds said that he wouldn't have any problem with that. Rich Munson pointed out that the applicant's statement that the new distance averages 20' from the Zoning Board of Adjustment Minutes -November 14, 2000 Page 19 of 19 -Draft Copy (~~/~5/00J curb and that could be 20' all along the curb or could also be 5' from the curb and 25' from the curb. Mr. Munson said that the applicant stated he would be happy with no closerto the curb than 25'. Cheryl Feigel asked if there were utility easements in the area of the proposed fence. Staff responded that there were not. Chairman McNosky said that who ever makes a motion in favor needs to consider language that requires staff to work with the applicant to keep with the intent of the drawing as a stipulation if they can't use a specific numeric measurement. She said that the fact that it is going to meander would give them several numeric measurements if they want to be exact. Clayton Husband said that it would be very easy for staff to go out and establish where that line would be located. Skip Reynolds said that he would feel more comfortable if they knew what the closest distance to the street was. He said that for the record he was not going to vote for or against this without knowing what the closest distance is. He said that he generally does not oppose the concept, but he would like some certainty about what they are doing. Larry Henry said that they should discuss tabling the case and rescheduling a meeting. He said that they were coming up on Thanksgiving, so they could consider it at the next scheduled meeting. Mr. Steinhoff said that he did not have a problem with it as long as his fence doesn't fall over before that he would be fine. There was no one else present wishing to speak. The public hearing is closed. Cheryl Feigel moved to table the case to clarify the distance from the curb. Skip Reynolds seconded the motion. The vote being: Ayes: Feigel, Reynolds, Byerly, Henry, McNosky Noes: None ADJOURNMENT: There being no further business, the meeting adjourned at 9:45 p.m. Respectfully Submitted, Jan Levy Planning & Zoning Assistant Approved on: jl/min/11 14 00 zba.min