Loading...
HomeMy WebLinkAboutZBA Decision 2005-04 App - Varr41l~'YIj.C?M'MMM e T:'t't'tsC~~~~.,~.. • EjSQ~-~v(~i~~ SP.X?~ `~'1P.[d ~C1iS]a~TTT~ 1Ca~ t i1-IP,~a~Tl(1g ~S1fc.I~A1fII~ OO~E j a~nd °uozsz~aQ T~SZ au~) a~zs aq~ ~o apzs ~sarn aq~ buoZ~ ~uawas~a ~0o~-5~z ~'aaueuzp.zp ~ 5uzuoZ au~ ~o OOT-S uoz~~ag .zapun '~~u~ paTn.z Og~ au~ 'SOOZ/SZ/Z u0 •~aa~ a.z~nbs 000'9 buzui~~uo~ pu~ apt~n ~aa~ pS a~zs 6uzpZznq ~ pauiz~Z~ uozsszwqns T~uzSz.zo s, aa~~zuz.zad/.zauMO aus • a~ig SuzpZzng puE M02I ' Z •urnr.z~~ ~.zo~s-aa.zq~ (~) ao '~r~~~ (Z) ' or~~d pa.zano~ (I) ~ ~a.z~ paur~.z3 sr .6urn~orTo~ au~ ~o ~u~ ~r arn.z ~a.z~ paur~.z~ a08 au~ sa~~Torn asnoq aq~ ~~u~ pa~~arpur osr~ ag •X.zon~ aq~ ~rur.zad-a.z o~ pa.zrnba.z aq aa~~ rur.zad/.zaunlo au~ ~~q~ pu~ papurasa.z aq ~ ruz.zad burpTrnq au~ ~pu~ pa~sanbaz pu~ uorsr~ap srr.t~ par~add~ Tqod uauda~g •.zy~ • suoz~~tn6a.z ~uauipuaui~-a.zd au~ pu~ (~) ZOT-ZZ uoz~~ag u~zn~ a~u~tZdwo~ uz pa~aZduio~ sz asnou au~ ssaZun pazznb~~ ~ZTn~ aq ~ouu~~ sn~~~s aNd (E) pu~ '~uauipuaw~ a~u~uzp.zo au~ azo~aq a~ua~szxa uz asnou ~ s~ aw~s aq~ pa~~a.z~ 5uzaq st asnor~ au~ (Z) '(~) ZOZ-ZZ uoz~aag .zapun ~z.za~zz~ au~ ~auz s~u aMOZz~W 9Z6~ ~~ asnou au~ `.z~~ os (T) ~~~u~ paTn.z Og~ au~ 'SOOZ/ZZ/Z up •~uawpuaw~ u~ uans sz azau~ uauM sn~~~s (aNd) buzw.zo~uo~-uou .zoz.zd aaznb~~ o~ s~~aCo.zd uz~~.za~ sMOZZ~ a~u~uzp.zp 6uzuoZ au~ ~o (a)ZOT-ZT uoz~~aS •papuaw~ a.zaM a~u~utp.zp 5uzuoZ au~ ~o q~,-G aZq~,L pu~ z aTaz~.z~ uz pauoz~uau.i suot~~Tnba.z ~aa~ paw~.z~ au~ ' i~00Z uI • sn~2~S ~t~Id ' T :n~oTaq pazz.z~uiwns a.z~ ~sanbaa a~u~za~n pu~ sT~add~ auy •paZz~ a.zaM a~u~ia~n ~.zo~ ~sanba.z auo pu~ suozszaap asou~ uio.z~ sZ~add~ on~s • arnoZ.z~W 9Z6E ~~ asnou au~ o~ but~~Za.z suozst~ap T~.zanas panssz s~u (OH~) A~z~ au~ ~o T~iat~30 SuzpZzng ~a?ua aus punoabx~Eg ~ .I • r ~Tn~d ~ • y~ s~uzous ' uapad ~i~~Z0000-~i0 :.zauMp~ aa~~TUZZaa : saqumH ~ rur.zaa 6urprrng (s~xas 'r~~uno~ sz.z.z~H) uoz~zpp~ p.zzus MaznabaZZo~ 'g ~~{Zg gT ~07 :a~rs ar~~ ~o uor~dr.z~saa r~ba~ s~xay 'a~~Td ~~zs.zar~zun ~saM ~o r~~z~ 'a~noZ.z~y~ 9~6£ ~a~rs aq~ ,~o ssa.zpp~ 'IKI~2330 ~xzazzna ~HZ 30 Sl~IOIS~'d I~i02i3 S'Ird~dd~d 1~i0 1~IOISIa3Q ~i0-SO ' oN ~a~{aoQ ( „~~z~„ ) s~xaZ ' a~~Ta ~~zs.zar~zun ~saM ~o ~~z~ ~uaui~sn Cp~ ~o p.z~og 5uzuoZ ieded pe~o~(~ey ~ ~j?,~ poo~{.roq~8la~ ~ ~ a~~~d ~~.js~a~~u~ ~.sa~ ~o ~~ia .. , . ~. ~ Weslayan Street side) must be excluded from the building site, which meant that the site would actually be only 47.5 feet wide and contain only 5,700 square feet. Therefore, the house appeared to violate both Table 7-2 (house being built in side yard) and Table 7-4b (house larger than 80o framed area limit, which is a ratio of the size of the house to the size of the site). The owner/permittee indicated that Harris County-the grantee of the 2.5- foot easement-was being requested to abandon the easement. The easement document also contained an unusual clause. The CBO suspended the building permit pending receipt of proof that the easement has been abandoned or has reverted to the owner of the site. The owner/permittee appealed this decision, indicating that: (1) the easement reverted, (2) officials of Harris County have communicated approval of abandonment of the easement, (3) owner-permittee relied upon the City, (4) issuance of a building permit evidenced compliance with all building and zoning requirements and codes, and (5) they understand that adjustments have been granted to properties bordering Weslayan Street. Should the ZBA not find cause for granting relief under the appeals section, the owner/permittee requested a variance as follows: (1) that the easement be considered as part of the lot available for the calculation of square footage in determining the 80o rule, and thereby • the available square footage shall be determined to be 6,000 square feet, and (2) that the side yard shall be calculated from the property line, not the inside boundary of the right of way easement. 3. Framed Area & Stories. On 3/3/2005, the CBO ruled that a large area on the third floor was not being constructed as an attic as shown on the plans, so it should be counted as framed area. When the area was counted as framed area, the CBO indicated that the house exceeded the 80% framed area limit in Table 7-4b. Also, as the third floor was being constructed, the CBO indicated that it violated the 2 1/2-story limit imposed by Table 7-4b. The CBO suspended the building permit "pending receipt of written proof that the attic will be constructed for use as shown on the plans required by the building permit ...." The owner/permittee appealed this decision, indicating that: (1) an agreement was reached between the City building officials, owners, builder and architect to amend the plans to bring them into conformity, (2) suspension of the building permit prevented the owners/builder from completing the framing of the house, and (3) once the permit is re-activated completion of the framing will demonstrate compliance with the agreed upon specifications. In his appeal, Mr. Pohl indicated that the house violates the 80o framed area rule if the attic is counted as framed area. See note, • above, regarding appeal of the decision on PNC Status. ZBA Decision, Page 2 ~ II. Related Proceedings The CBO issued a decision indicating that all the requests mentioned above were filed late but recommended that the ZBA suspend its rules to allow the late filing. (Note: The ZBA suspended its rules to allow the late filing and commence the hearing on March 17, 2005.) In response to an inquiry from the owner/permittee, the CBO issued a decision indicating that action by Harris County does not, by itself, change any decision of the Building Official or the ZBA. This decision was not appealed. At the request of the owner/permittee, the CBO modified the suspension of the building permit to allow the contractor to protect the premises from weather and trespassers, subject to final decisions in this case. Also at the request of the permittee/owner, the Acting Building Official ruled that the modified suspension allowed the used of a base layer or cap sheet to protect the roof temporarily. Neither of these decisions was appealed. In response to a challenge from owner/permittee, the ZBA inquired about Mr. Pohl's standing to appeal. After hearing evidence and argument, the ZBA decided that Mr. Pohl did have standing. • Mr. Pohl requested that the ZBA order a refund of the filing fee for his appeal, as allowed by the Fees & Charges Schedule of the Code of Ordinances. After the meeting on March 31, rehearing, and, as provided in such a motion. At the meeting mini-hearing on the motion and Building Site issues. The ZBA to allow the rehearing to be c~ 2005, the owner/permittee requested a the ZBA rules, a member of the ZBA made on April 21, 2005, the ZBA conducted a then granted it, limited to the ROW and also suspended its rules of procedure ~nducted on April 21, which it was. III. Ordinance References Regarding PNC status, the key ordinance provision is Section 12- 102(c), entitled Other committed work. Regarding the ROW and building site size, the key provision is Section 5-100. Regarding framed area and the number of stories, the key provision is Table 7-4b. IV. Notice, Hearing, Vote ( X) Notice of hearing was given by mail and posting on the site in accordance with Article 11 of the Zoning Ordinance. • ( X) Hearing was held on March 17, 2005, recessed, and continued on March 31, 2005. At the meeting of April 21, 2005, the motion for ZBA Decision, Page 3 . rehearing was granted and the rehearing was conducted at that meeting. ( X) The vote on each point in this decision was as follows: 3-17-05: Rule that original applications were timely filed and suspend rules to allow hearing to commence on March 17, 2005: 5 for, 0 against. 3-17-05: Decide that Mr. Pohl had standing to appeal: 5 for, 0 against. 3-31-05: PNC status appeal (motion to affirm CBO decision): 5 for, 0 against. 4-21-05: Rule that motion for rehearing was timely filed: 5 for, 0 against. 4-21-05: Grant motion for rehearing and suspend rules to allow rehearing on 4-21-05: 5 for, 0 against. 4-21-05: ROW and building site appeal (motion to reverse CBO decision): 2 for, 3 against. 4-21-05: Variance request (motion to deny): 5 for, 0 against. • 4-21-05: Framed area and stories appeal (motion to deny as moot, without prejudice to re-urge if circumstances warrant; see discussion below): 5 for, 0 against. 4-21-05: Refund of filing fee (motion to deny at this time, but without prejudice to re-urge in connection with the framed area and stories appeal; see discussion below), 5 for, 0 against. V. Discussion and Decision 1. PNC Status. Section 12-102(c) spells out deadlines that an applicant must achieve to claim PNC status. The f'irst two are for acquisition of the site and filing permit applications. The timing of these events, as presented by the City staff, appears to be clear and not contradicted. The ZBA therefore finds and determines that the first two deadlines have been met and affirms the decision of the CBO regarding PNC status. That decision was that: (1) so far, the house at 3926 Marlowe has met the criteria under Section 12-102(c), (2) the house is being treated the same as a house in existence before the ordinance amendment, and (3) PNC status cannot be fully acquired unless the house is completed in compliance with Section 12-102(c) and the pre-amendment regulations. • 2. RoW and Building 5ite. There was conflicting evidence about what the owner/permittee knew about the 2.5-foot easement and what was ZBA Decision, Page 4 • disclosed to the City. After a pointed request, the applicant produced a copy of the title insurance policy that the owner/permittee obtained when the site was purchased, long before the plans were submitted to the City. [See Document 19]. That policy described the easement and listed it as an exception from title insurance coverage. Mr. Peden explained that a contemporaneous survey showed the easement to be a utility easement, not a right-of-way easement, and he relied upon the survey. [See Document 13]. At the second part of the hearing, the owner/permittee presented a modified title insurance commitment indicating that the easement would be partially covered. [See Document 16] . The house plans submitted by the owner-permittee showed the easement to be a utility easement, not a right-of-way easement. [See Document 9.~ The owner/permittee submitted a form designating the full lot as the building site, with no mention of the right-of-way easement. [See Document 8.] When the easement question arose, City staff reported that: (i) the construction contractor and the owner admitted that they knew about the easement, but they asserted that the easement had reverted to the property owner and (ii) they indicated that the issue had come up during the purchase of the property, and they had been assured by their title company that they bought the full 50-foot width of the site, unencumbered by the easement. [See Document 7.] On the other hand, at least one auxiliary survey submitted by the owner/permittee did show the right-of-way easement, although it did not clearly exclude it from the building site. [See • Document 10.] There was no evidence that the 2.5-foot easement was formally abandoned, so most of the hearing focused on the possibility of reversion. The owner/permittee submitted several documents from Harris County relating to reversion. These included two letters from a Mr. Key in the County Infrastructure Department (with attached copies of records) and two versions of a title opinion [See Documents 14, 15, 17, and 18.] These documents supported the owner/permittee's assertion that the easement had reverted. However, there were shortcomings with the proof submitted by owner/permittee. Early in the hearing, the City staff indicated that following types of proof would be relevant for determining if the easement had reverted (listed in order of ascending strength): (1) Certified copies of all Harris County records relating to this site or the easement. (2) Proof that a trained and skilled person has made a diligent search of other public records relating to this site or the easement, and none was found. (3) Proof that the title company which issued the current title policy for this site does not consider the easement an objection to title or an exception to coverage by title insurance. (4) Proof that a qualified independent title attorney has examined the relevant records and determined that the easement has reverted. (5) Proof that a court with jurisdiction has issued an order or judgment declaring that the easement has reverted, and the order or judgment has become final. • The ZBA concurred with this listing, and it was provided to the ZBA Decision, Page S • ~ owner/permittee. There was sufficient time for the owner/permittee to obtain this type of proof, but the owner/permittee did not do so. For example, the documents presented by owner/permittee did not include certified copies of County records; in fact, the second Key letter was just a fax copy. Also, there was no convincing evidence that all Harris County records relating to the site or the easement were provided or that a trained and skilled person had made a diligent search of other public records. Noticeably absent were any records from the governing bodies (the Harris County Commissioners Court and the City Council), which are apparently the only bodies with authority to control and dispose of public rights of way. On rehearing, the owner/permittee presented an April 12, 2005 letter from the County Attorney's office. [See Document 25.] It indicated that "at this time ... Harris County has no possessory interest ...~~ and that "the City of West University Place is the appropriate governmental entity that would assert such an interest, if one exists. Also on rehearing, Mr. Pohl presented a copy of an email apparently originating from the County Attorney's office which indicated, among other things: (i) "The boundaries of Weslayan Road have long been established by grant or prescriptive easement and would not change based on the County's assuming maintenance of the road." (ii) "We observe that deciding whether the City holds an easement over the 2.5 foot strip involves more than merely determining the date the County commenced construction of Weslayan Road. Issues such as waiver, estoppels and public policy arguments concerning whether such ~ a reversionary clause in a grant to a public entity is valid would need to be explored." [See Document 27.] There was very little evidence, if any, bearing upon a prescriptive easement, waiver or estoppel. The ZBA was not convinced that the owner/permittee presented the full picture, which left a lingering doubt about the claim that it had reverted. From a public policy perspective, the ZBA was convinced that the elected governing bodies (Harris County Commissioners Court and City Council) are the only bodies with authority to control or dispose of public road easements and that the ZBA has no such authority. It its deliberations, the ZBA tried to formulate an order that would allow an opportunity for the City Council to consider the easement matter and possibly clarify the ownership. However, the owner/permittee's attorney asked that the ZBA not pursue that approach. Instead, the attorney asked for an immediate decision. The ZBA has found this to be a very complicated and difficult issue to resolve. The essential dilemma is that the ZBA cannot adjudicate or change the title to the easement; that power is committed to others. If the ZBA makes a zoning decision that is inconsistent with title to the easement, the result could be a house located within 2.5-feet of a very busy street. In the end, a majority of the ZBA was not satisfied that the evidence showed that the building site contained 6,000 square feet. A • motion to grant the appeal on this point and to reverse the CBO's ZBA Decision, Page 6 • decision failed. After this motion failed, the ZBA turned to the owner/permittee's request for a variance. To issue a variance, state law requires that all of the following circumstances be present: (i) due to special conditions, a literal enforcement of the Zoning Ordinance provision would result in unnecessary hardship, (ii) by granting the variance, the spirit of the ordinance is observed and substantial justice is done, and (iii) the variance is not contrary to the public interest. The ZBA was not convinced, either at the initial hearing or at rehearing, that these circumstances were all present. Therefore, the request for a variance was denied. 3. Framed Area & Stories. As discussed above, the building site was determined to contain less than 6,000 square feet. Therefore, the house could not possibly comply with the framed area regulations, regardless of which building spaces were counted as framed area. Accordingly, the ZBA denied the appeal relating to framed area and stories [CBO's ruling dated 3/3/05, see Exhibit 9 attached behind Document 28] as moot, but without prejudice to re-urge the subject of that ruling before the Board, if the circumstances warrant it, at a later date. 4. Filing Fee. Mr. Pohl has requested a refund of his filing fee as allowed by the Fees & Charges Schedule of the Code of Ordinances. The request for a refund was denied at this time, for lack of prevailing • party status; however, this denial is without prejudice to re-urge the point if the framed area and stories issues are re-urged before the Board. 5. Other Provisions: THIS DECISION SHOULD BE RECORDED IN THE HARRIS COUNTY REAL PROPERTY RECORDS. THIS DECISION APPLIES ONLY TO THE SPECIFIC ZONING ORDINANCE PROVISIONS IDENTIFIED ABOVE. IT DOES NOT APPLY TO OR AFFECT: (A) OTHER REQUIREMENTS (SUCH AS, FOR EXAMPLE, REGULATIONS, SITES, BUILDINGS AND OTHER STRUCTURES UNDER CHAPTER 6 OF THE CODE OF ORDINANCES, OR ANY OTHER PROVISIONS OF THE ZONING ORDINANCE), OR (B) PROPERTY RIGHTS OF THE CITY OR OTHER PERSONS OR ENTITIES (INCLUDING, FOR EXAMPLE, CITY PROPERTY AND EASEMENTS). THE APPLICANT MUST SEPARATELY APPLY FOR AND RECEIVE APPROPRIATE PERMISSIONS FROM THE ZBA, THE BUILDING & STANDARDS COMMISSION, THE CITY COUNCIL OR OTHER BODIES THAT MAY HAVE AUTHORITY TO ACT ON SUCH REQUIREMENTS. THIS DECISION APPLIES ONLY TO THE SPECIFIC ITEMS DEFINED ABOVE. IT DOES NOT APPLY TO ANY OTHER ASPECT, USE OR PART OF THE SITE OR STRUCTURE IN QUESTION, NOR DOES IT APPLY TO ANY OTHER ACTIVITY, SITE OR STRUCTURE. • TO OBTAIN A RULING FOR ANY OTHER ITEM REQUIRES A SEPARATE APPLICATION, NOTICE, HEARING, PROOF AND BOARD FINDINGS. NOTHING IN THIS ZBA Decision, Page 7 ~ • DECISION IMPLIES THAT ANY SUCH FINDINGS WOULD OR WOULD NOT BE MADE BY THE BOARD. THIS DECISION REMAINS IN EFFECT FOR AN INDEFINITE PERIOD, UNLESS A TEMPORARY OR FIXED PERIOD IS INDICATED ABOVE. THIS DECISION REMAINS SUBJECT TO THE REGULATORY JURISDICTION OF THE CITY. IT MAY BE AMENDED OR REVOKED. THIS DECISION GRANTS NO PROPERTY RIGHT OR VESTED RIGHT OF ANY KIND. THIS DECISION IS SUBJECT TO ALL APPLICABLE APPEALS. 6. Effective Date & Appeals. Subject to any applicable appeals, this decision takes effect on the date it is filed in the Board's office (c/o Secretary of the Zoning Board of Adjustment, 3826 Amherst, West University Place, Texas 77005), unless otherwise indicated above. Any re-hearing of this decision is governed by the rules of the Zoning Board of Adjustment. Any appeals of this decision are subject to and governed by applicable ordinances and laws, including the Zoning Ordinance and Chapter 211, Tex. Local Government Code. Under Chapter 211, petitions for judicial review must be presented within 10 days after the date this decision is filed in the Board's office. ZONING BOARD OF ADJUSTMENT, CITY OF WEST UNIVERSITY PLACE, TEXAS By: ~ • Presidi Officer, Zoning Board of Adjustment STATE OF TEXAS COUNTY OF HARRIS Tl~,i._ inst~nea~ was acknowledg,~d ore ~.Jl~~ ~5 d (date) by ~ Y\ ~ (name) as Presiding Officer of the Zoning Board of Adj stment of the City of West University Place, Texas. r~ JOtE M OlO/C0 ~A- Can~M~Mofl B~~ Jun~ Z'l.'OM ( S EAL ) ~' ~~~ My commission expires: ~~~~~. YY~~ Q~~C~ Notary Public • ZBA Decision, Page 8 ~ • • • This instrumen was filed in the Board's office on ~,~_~~' , p2(~~ , and, if a mailing list is att hed, copies were mailed to the persons on the list on ~ ~ ~ ~QS By: Name: I) ~~~ Title:. ~ )a. nin9 After recording return to: Sallye A. Clark Secretary, Zoning Board of Adjustment City of West University Place 3826 Amherst Street Houston, Texas 77005 (Phone #: 713-662-5843) ZBA Decision, Page 9