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HomeMy WebLinkAbout09042008 BSC Minutes City of West University Place A Neighborhood City ® Recycled Paper Building & Standards Commission Located in the Bill Watson Conference Room, 3800 University Blvd, West University Place, Texas 77005 Meeting Minutes September 4, 2008 MEMBERS PRESENT: Bryant Slimp, Dr. Peter Benjamin, J. Denis Powers, Dave Miller, Gerry Spedale, Brian Hoogendam, Muddy McDaniel and Frank Griffin MEMBERS ABSENT: David Flame STAFF PRESENT: Building Official John R. Brown, City Planner Debbie Scarcella, Permit Technician Josie M. Orosco, Permit Technician Kathi Sutton, James L. Dougherty, Urban Forester Craig Koehl GUESTS PRESENT: Steve Cavanaugh, Kulsurang & Chirawat Bodeepong, Gary Pfeffer, Robert Riquelmy, Steve Brown and Jerry Davlin [Call to Order] Bryant Slimp called the meeting to order at 6:02 p.m. • 1. Notices, Rules, Etc. Bryant Slimp welcomed BSC members, visitors and staff members to the meeting. There were introductions of BSC members, staff and visitors. Bryant Slimp stated Gerry Spedale and Dave Miller would be the alternate voting members for the meeting. 2. Meeting Minutes. J. Denis Powers made a motion to approve the August 7, 2008 minutes. Gerry Spedale seconded the motion. AYES: Bryant Slimp, Dr. Peter Benjamin, J. Denis Powers, Dave Miller, Gerry Spedale, Brian Hoogendam, Muddy McDaniel and Frank Griffin. NOES: None. ABSTAIN: None. Meeting minutes passed. 3. Docket Number 08-03 regarding tree damage at 6020 Fordham Street, West University Place, Texas. Dr. Peter Benjamin made a motion to suspend the regular meeting and start the hearing procedure. J. Denis Powers seconded the motion. AYES: Bryant Slimp, Dr. Peter Benjamin, J. Denis Powers, Gerry Spedale, Brian Hoogendam, Muddy McDaniel, Dave Miller and Frank Griffin. NOES: None. ABSTAIN: None. Motion passed. Bryant Slimp asked Permit Technician Kathi Sutton if the request for the appeal was posted properly. Kathi Sutton stated it was filed properly. Bryant Slimp stated that the purpose of the hearing to appeal the decision by the Urban Forrester that a Pecan tree was damaged, as defined by Chapter 82. The appeal asks the Commission to reverse the decision, and rule that the tree was not damaged. Bryant Slimp addressed the attendees of the hearing and stated the procedures for the hearing, and an oath was then administered to everyone speaking on this matter. James Dougherty offered his advice to divide the hearing into two separate matters; determining if damage occurred and the variance • issue. 3800 University Boulevard • West University Place, Texas 77005-2899 0 713066804441 0 www.westu.org Building and Standards Commission Meeting Minutes September 4, 2008 Debbie Scarcella offered a staff summary, and stated that Chapter 82 requires that to damage or to remove a tree require persons to obtain a permit. Debbie Scarcella explained certain instances, which would cause damage or death to a tree, which includes removal of branches. Debbie Scarcella stated that Craig Koehl determined that there was damage to a tree, and that a permit was not acquired. Debbie Scarcella explained that this proceeding was two-fold; that the Commission could rule that damage was not caused to the tree, and therefore a permit was not required, or that the Commission could rule that the tree was in fact damaged and a permit should have been obtained and what replacement plantings should be required. Stephen Cavanaugh, Attorney speaking on behalf of the Bodeepong's, stated a notice was received from the City concerning a tree that was damaged by the Bodeepongs that required them to provide replacement planting. Stephen Cavanaugh presented the members of the Commission with a picture of the trees current condition. Stephen Cavanaugh raised question of the ordinance definitions and how they were applied in this matter. He then stated that the Boodepong's did not knowingly damage the tree, and that the tree was cut to protect personal safety. Some discussion ensued as to the cost of a permit, and whether or not a permit was required. In order to provide clarification, Debbie Scarcella then read the tree permit criteria directly from Chapter 82. Stephen Cavanaugh stated that the Boodepong's had not made application for a tree permit after the tree had been cut, because at that point Craig Koehl had told them (the Boodepong's) that the only thing they could do was to pay replacement inches into the tree trust. Mr. Cavanaugh raised issue with several sections of the tree Ordinance, and stated that he has an affirmative defense of not paying the permit fee due to the hazard that the tree posed. Debbie Scarcella provided • clarification to Mr. Cavanaugh that the section of the ordinance was not the affirmative defense that he was actually reading from the fee schedule. Brian Hoogendam asked Debbie Scarcella for explanation of what a "tree disposition" is, and Debbie Scarcella provided the information. Stephen Cavanaugh then offered a summary of what the Boodepong's reasoning was as to why the tree was cut in the manner that it was. Mr. Cavanaugh brought to issue several occasions where large limbs fell from the tree. He then stated that the tree showed re-growth since the cutting of the limbs and asked that a determination of damage not be made until a period of two years time elapses. Mr. Cavanaugh then asked Mr. Boodepong to testify as to the matter at hand. Tony elaborated on the tree's history and that he was fearful of a large limb falling onto his roof. Mr. Boodepong stated that he was not familiar with the tree ordinance prior to his cutting of the tree; he also stated that he did not know that cutting all the limbs off would damage the tree. He stated that he wanted to preserve the tree, but keep large limbs off of it. Mr. Boodepong stated that if he were to contribute to the tree trust in the amount that he had estimated would be required, then it would create a financial hardship for him. He also stated that re-planting any trees in the backyard would not be a possibility because almost the entire backyard was paved. Mrs. Boodepong was then asked by Mr. Cavanaugh to testify in reference to the tree. She stated that she was also fearful of falling limbs due to the tree's size and prior history. Gary Pfeffer was then asked by Mr. Cavanaugh to provide testimony. Mr. Pfeffer discussed his homes location in relation to the Boodepong's, and also that he had lived in his home approximately 14 years. Mr. Pfeffer described instances where the property at 6020 Fordham was damaged by the tree. Stephen Cavanaugh then concluded his presentation of the Boodepong's request to have the damage determination reversed. Page 2 of 2 Building and Standards Commission Meeting Minutes September 4, 2008 Brian Hoogendam asked that the focus be redirected back to determining whether or not damage was caused to the tree. Bryant Slimp asked city staff to provide information about how a tree could be damaged. Craig Koehl described the maintenance issues directly related to Pecan trees. Craig Koehl stated that by definition that the tree in question was "topped". He stated that this is not an acceptable practice under todays existing guidelines, and causes permanent damage to a tree. Dave Miller asked Craig Koehl how much canopy the tree in question lost. Craig Koehl stated that at the time of pruning, the tree lost 100% of its canopy. Debbie Scarcella was then asked to read from the ordinance how "damage" is defined. Debbie Scarcella read the definition. J. Denis Powers asked whether a permit was required to prune a tree, and Craig Koehl stated that it was not. Dave Miller referenced the picture that was provided by Stephen Cavanaugh, and noted that all the large limbs were severed, thus meeting the Ordinance requirement of "damage". Craig Koehl stated that it was his opinion that it was damaged. Brian Hoogendam asked whether a tree that has been topped would appear dead within 2 years. Craig Koehl stated that a tree with a dead trunk could still show green re-growth. Dave Miller asked Craig Koehl if this tree would ever be considered again as a healthy Pecan tree. Craig Koehl stated "no", that it would not. Stephen Cavanaugh stated that he strongly disagrees with the statements that were just provided. He stated that by ordinance a tree is damaged if the actions done to a tree cause its death immediately or within two years. Stephen Cavanaugh stated that if the tree has green leaves on it now then it is not dead. He asks that the tree be re-examined at two years time to see if it is dead at that time. Stephen Cavanaugh brought the example of a case involving a tree trimming in the Dallas Court of Appeals, "The City of Dallas vs. Vanesco". Stephen Cavanaugh also stated again that he did not want the damage determination to be made now, that he would like the tree to be • looked at again in two years. Dave Miller stated that upon his review of the photo that Mr. Cavanaugh provided the definition of damage had been met. Mr. Cavanaugh restated his opinion that the Ordinance allows affirmative defense to cut a tree to protect property. James Dougherty advised the Commission to focus on the damage determination on the firsthand, and then consider the variance request. Bryant Slimp called for a discussion around the table. Dave Miller stated that he was prepared to make a motion that given the testimony by the Urban Forrester, and upon review of the pictures provided that he moves that the tree was damaged. Dr. Peter Benjamin seconded the motion. AYES: Bryant Slimp, Dr. Peter Benjamin; Dave Miller; J. Denis Powers, Frank Griffin; Brian Hoogendam, Muddy McDaniel and Gerry Spedale. NOES: None. ABSTAIN: None. Motion passed. James Dougherty suggested that the affirmative defense question now be addressed. James Dougherty stated that the affirmative defense applies if a permit is requested after the tree has already been removed. James Dougherty mentioned that to his knowledge no permit was applied for within the required 10-day grace period. Bryant Slimp asked Mr. Cavanaugh when the permit application was filed; Mr. Cavanaugh stated that no permit was applied for. Stephen Cavanaugh did mention the two letters that Mr. Boodepong submitted to the Urban Forrester. Craig Koehl brought to point that if in fact a permit had been issued for the tree removal, and then replacement planting would have been required. Craig Koehl described the replacement planting valuation point assessment to replace tree inches. James Dougherty directed the Commission to address the affirmative defense issue, and stated that the affirmative defense could not apply since a permit was never applied for. Dave Miller stated that the Pecan tree was behaving normally, and the sense of urgency for the tree's immediate removal is lacking. Bryant Slimp called for a motion as to whether or not the affirmative defense requirement had been met. Dave Page 3 of 3 Building and Standards Commission Meeting Minutes September 4, 2008 Miller offered a motion that the affirmative defense requirement had not been met. Gerry Spedale seconded the motion. AYES: Bryant Slimp, Dr. Peter Benjamin, Frank Griffin, J. Denis Powers, Dave Miller, Gerry Spedale, Brian Hoogendam and Muddy McDaniel. NOES: None. ABSTAIN: None. Motion passed. Bryant Slimp directed the Commission to move to the Variance portion of the hearing. James Dougherty suggested that due to the amount of testimony already provided, that the Boodepong's be asked if any further information would apply in the matter. Stephen Cavanaugh stated that he believed that nine requirements had to be met in order to be granted a variance. He said that he felt that all nine requirements had been met. Stephen Cavanaugh stated that replacement of the tree's inches would pose a financial hardship, but offered for them to pay the permit fee instead. He stated that secondly that there was no way to fix the limbs that were removed. He stated that the Boodepong's actions were not with malice, and that he felt that they acted in the best interest of public health and safety. Mr. Cavanaugh offered to enter into negotiation with the City. Bryant Slimp opened up discussion around the table. Dave Miller brought to issue that throughout the testimony provided that the Boodepong's want to imply that they acted impeccably while the City personnel was neither helpful nor upright in how they behaved. Dave Miller stated that based upon his prior experience that those opinions were untrue. Dave Miller wanted to know what actions / requirements the Boodepong's were hoping to leave with today. Mr. Boodepong acknowledged that he did not obtain the required permit to cut the tree. He offered to apply for a permit, and wanted to know why he was being assessed the full amount of the replacement of the tree because the tree was still standing. Stephen Cavanaugh discussed the • amount of money that the City was wanting from the Boodepong's and wanted to know what amount could be negotiated. Dave Miller stated that based upon Mr. Cavanaugh's prior statements that he was under the impression that the Boodepong's were willing to pay a $50 permit fee and that is all. Mr. Cavanaugh stated that the Boodepong's were willing to accommodate the City, but not $7,500. He says that he had not discussed an alternate dollar amount with them. Dr. Peter Benjamin asked the Boodepong's if the tree company was a reputable tree company that normally does work within the City. Mr. Boodepong stated that it was a landscape company and that they had not worked in West U before. He did not know that they had to be registered. Mrs. Boodepong stated that the tree company asked the Boodepong's if they wanted the tree trimmed or removed, because removal required a permit from the City. Muddy McDaniel asked how the tree would look and act in the years to come. Craig Koehl stated that the tree would not be able to recover and function like a normal tree again. Stephen Cavanaugh stated that from what he understood of the Ordinance that replacement planting could be done within the City or that an arbitrary amount of money determined by the Forrester could be paid into the tree trust. Bryant Slimp asked that a 10-minute recess be called for the Boodepong's and Mr. Cavanaugh to discuss what they would be willing to pay into the tree trust or what replacement plantings they would provide. Craig Koehl provided the Ordinance requirements of what replacement inches were needed (3) 4" trees, plus 22". Craig Koehl also provided the Commission with the dollar amount that is required of replacement planting ($6,200). The Commission then took a recess for 10 minutes. i Page 4 of 4 Building and Standards Commission Meeting Minutes September 4, 2008 Bryant Slimp officially called the hearing back into order from recess. Bryant Slimp asked if a compromise is proposed. Mr. Cavanaugh stated that he had reached a compromise offer from the Boodepong's. The Boodepong's would like to make application to remove the remaining portion of the Pecan tree, and replace that trunk with a 4" tree, and in addition plant 17" of smaller diameter trees possibly in the Boodepong's backyard or the easements located near their house (with permission). Bryant Slimp asked Craig Koehl how many trees could potentially be planted in their lot. Craig Koehl stated that it depended upon the species of trees. James Dougherty suggested that the Commission vote to find out if they feel that the settlement is an equitable compromise. He stated that two variances be voted on: that an extension be allowed for the filing of the tree removal permit application, and also a variance to reduce the replacement requirement. Bryant Slimp asked for two motions be presented. Dave Miller asked the Chairman to require the parties provide the replacement plantings in the form of Class 1 or 2 trees. Brian Hoogendam made a motion that the Boodepong's make application to remove the tree by the close of business of the 15th of September. Frank Griffin seconded. AYES: Bryant Slimp, J. Denis Powers, Frank Griffin, Brian Hoogendam, Muddy McDaniel, Dr. Peter Benjamin, Gerry Spedale and Dave Miller. NOES: None. ABSTAIN: None. Motion Passed. Bryant Slimp asked for a second motion for a variance to allow removal of existing tree, plant (1) 4" or larger tree, plus provide 17" in additional inches in the surrounding area or paid into the tree trust. J. Denis Powers made motion, Gerry Spedale seconded. AYES: Bryant Slimp, Dave Miller, Muddy McDaniel, Brian Hoogendam, Gerry Spedale, Dr. Peter Benjamin, J. Denis • Powers, and Frank Griffin. NOES: None. ABSTAIN: None. Bryant Slimp called for a motion to conclude the hearing. Dave Miller moved to have a motion to close the hearing. Brian Hoogendam seconded. AYES: Bryant Slimp, Dave Miller, J. Denis Powers, Muddy McDaniel, Brian Hoogendam, Gerry Spedale, Dr. Peter Benjamin, and Frank Griffin. NOES: None. ABSTAIN: None. Motion passed. 4. Docket #08-04 Mohamed Defra_wi regarding a swimming pool at 3308 Amherst, West University Place, Texas. Bryant Slimp stated that the purpose of the variance request was to allow for a 3' side setback for a swimming pool instead of a 5' side setback as required by Ordinance. Bryant asked who would be speaking on behalf of Mr. Defrawi, as he is understood to be out of the country. Jerry Davlin stated that he would be speaking on behalf of Mohamed Defrawi. Bryant Slimp asked if the notices have been filed in proper accordance with the proper procedures, Kathi Sutton Permit Technician stated that it had been filed properly. He asked if Development Services had given proper notice, and Kathi Sutton stated that it had been, both by regular mail and by certified mail. Bryant Slimp administered an oath to all parties speaking on the matter. Bryant Slimp asked Jerry Davlin to state the reason for the variance request. Mr. Davlin stated that normally pools are installed with a 5' side setback. Jerry Davlin stated that the house is placed on a 3' side setback, and the homeowner wanted the pool aligned with the house. Jerry Davlin presented the Commission with a letter from an engineer. Jerry Davlin stated that there is a garage at the neighbor's house on the other side of the fence from where the pool would be that is set at a 3' side setback so there would be 6' separating the pool from the neighbor's garage. Page 5 of 5 Building and Standards Commission Meeting Minutes September 4, 2008 Jerry Davlin stated that his engineer said that he didn't see anything that may cause damage to the neighbor's garage. Bryant Slimp asked for a comment from City staff as to the matter. Debbie Scarcella stated ordinance requirements of a 5' side setback, and the reasoning behind the requirement. Debbie Scarcella directed the Commission to the proposed plan of the pool and stated that there may be some intrusion into the neighboring yard if allowed at a 3' side setback, due to the angle of repose. The Commission asked Jerry Davlin to clarify how much excavation would be required, and Jerry Davlin stated 6 feet. Jerry Davlin directed the Commission to the site plan to show the proximity of the pool in relation to the adjoining property line and also the location in the yard. Brian Hoogendam asked about the decking requirements, and Debbie Scarcella explained them. Jerry Davlin stated that there would be no decking in the 3' side setback area, just below ground drains. Bryant Slimp asked Jerry Davlin if he had anything else to state in reference to the request and Jerry Davlin stated that he did not. Bryant Slimp reviewed the reasons that a variance would be allowed, and asked for a motion if the Commission felt the need to grant or deny the variance. Dave Miller asked for a discussion on the subject prior to the motion. Bryant Slimp agreed. James Dougherty directed the Commission to the list of findings in order to grant a variance. Debbie Scarcella read the variance requirements from the Ordinance. Bryant Slimp called for general discussion. Dave Miller commented on the 3' side setback, the angle of repose and the possibility of its affect on the neighbor. Brian Hoogendam asked if it was possible to move the pool 2' closer to the homeowner's garage. Debbie Scarcella stated that it was allowable. J. Denis Powers asked for clarification as to whether the Fire Department would have adequate access if the pool were 3' from the homeowner's garage. Debbie Scarcella stated that it was theoretically possible to do that. Bryant Slimp redirected the . Commission to the need to find that by not allowing a variance that it would cause an undue hardship on the property owner. Muddy McDaniel commented that historically variances were not allowed for swimming pools. James Dougherty gave suggestion on which items may or may not apply for the variance. Bryant Slimp asked for a motion. Dr. Peter Benjamin made a motion that a variance may not be granted because a finding could not be made for items number 1 & 6. Dave Miller seconded. AYES: Bryant Slimp, Dave Miller, Muddy McDaniel, J. Denis Powers, Brian Hoogendam, Gerry Spedale, Dr. Peter Benjamin, and Frank Griffin. NOES: None. ABSTAIN: None. 5. Basements and Underground Structures. Bryant Slimp asked for Steve Brown from the Zoning Commission to come forward for discussion. Steve Brown stated that he wanted to take a moment to introduce Agenda Item #5 regarding subterranean structures. He stated that Debbie Scarcella brought to the Zoning Commission's attention that plans have been submitted to the Development Services Department to have underground structures. Steve Cavanaugh wanted to comprise a joint summary to present to Council about this issue from both Boards and get direction by Council on the direction in which they would like the Boards to proceed. J. Denis Powers brought up the issue of elevators, bomb shelters or wine cellars and if that is also what is up for discussion. Steve Brown stated that it is all still open for discussion and that he wanted to get a feel for how the BSC would like to proceed. Steve Brown stated that the ZPC have discussed the issue at three meetings and that he feels like they are equally divided as to whether to prohibit underground.structures, or whether to allow underground structures and regulate them. James Dougherty provided direction to the Commission and opened discussion for the various options to be considered; prohibit, allow but regulate, and all without regulation. Dave Miller discussed alternative options available to residents whom would like to have elevators, or safe rooms. Bryant Slimp raised the question of whether or not the subterranean structure is habitable Page 6 of 6 Building and Standards Commission Meeting Minutes September 4, 2008 or not and restricting the use of the space. Debbie Scarcella stated that if they chose to allow but regulate, then we could propose to limit the use to storage, elevators, wine cellars, and not allow habitable space. Bryant called for a straw vote with three choices; complete ban, allow with restrictions, or allow broadly. Dave Miller's straw vote was completely ban. Bryant Slimp stated he would currently choose to completely ban. A show of hands was taken for allow with restrictions with 3 members, and 3 members choosing to ban, and Brian Hoogendam stated that he would allow them to use the entire footprint of the house unrestricted. Frank Griffin asked whether the concern was the setback area, or the basement filling with water. Dave Miller reminded the Commission that an 8' basement on a house with a 5' setback would encroach on the neighbor's house if there were a failure due to the angle of repose. Dave Miller also stated that we might have people who want to have a garage in the basement. Bryant Slimp stated that no matter where you live within the city that your basement would be below the floodplain and that homeowners would have to contend with water and mold issues. Brian Hoogendam stated that it is the property owner's choice to do what they want on their property. Dave Miller stated that it should be their (the Commission's) duty to protect residents who don't have experience in building issues. Frank Griffin agreed that they should protect someone from buying a faulty house. Steve Brown stated that the BSC discussion is very similar to the ZPC discussion and that he encourages us to keep the matter under consideration a work towards something that could be brought to Council for their consideration. Bryant Slimp asks for a motion to authorize him to work with Steve Brown on a preliminary report to address to Council on how they would like to proceed with the matter. J. Denis Powers made motion. Frank Griffin seconded. Steve Brown would like to make sure that city staff is included, Bryant agreed. AYES: J. Denis Powers, Muddy McDaniel, Bryant Slimp, Dave Miller, Brian Hoogendam, Gerry Spedale, and Frank Griffin. NOES: None. ABSTAIN: Dr. Peter Benjamin. Dave Miller wants the Commission to get a copy of the letter before it is given to Council. James Dougherty stated that the letter will only contain ideas and will not be geared towards persuasion in either direction of ban or to allow but regulate. Steve Brown agreed and added that they would ask the Council for a workshop session to bring the issue into their consciousness, and then ask them which way they want to go. Bryant Slimp stated that Debbie Scarcella would email a draft out to everybody. Dave Miller asked if they had comments should they be forwarded to Debbie Scarcella? James Dougherty stated to be careful with back and forth comment, that the Chairman should decide the content of the letter. Steve Brown suggested that any comments should be forwarded now, and not after the letter to make sure that the person's opinions and concerns are covered. Motion to table the Urban Forestry amendment made by Dave Miller. J. Denis Powers seconded. AYES: Dave Miller, Bryant Slimp, Muddy McDaniel, J. Denis Powers, Brian Hoogendam, Gerry Spedale, Dr. Peter Benjamin, and Frank Griffin. NOES: None. ABSTAIN: None. Motion Passed. Page 7 of 7 Building and Standards Commission Meeting Minutes September 4, 2008 40 [Adjournment] Dr. Peter Benjamin made a motion to adjourn. Gerry Spedale seconded the motion. AYES: Bryant Slimp, J. Denis Powers, Dave Miller, Frank Griffin, Muddy McDaniel, Gerry Spedale, Dr. Peter Benjamin and Brian Hoogendam. NOES: None. ABSTAIN: None. Meeting adjourned at 8:30 p.m. PASSED THIS DAY OF , 2008 Bryant Slimp, Chairrhajf~ ATTEST: Ms. Kathi M. Sutton, Permit Technician Page 8 of 8