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8efore The Zoning Board of Adjusiment
Ciry of West University Piace, Texas
DEClSION FaLLOWING REHEARING
4ddress o~'slte: 4130 Riley, Houston, Texas 77005
Lega/ dascc•iption ot the site: Lot 67 and the West',4 of Lot 68, Fairhaven Addn.
Applicanl: hevin Mei
Dects~an o+• Action Reqr~esled o~ Proposed: A variance to allow the eastem portion of a
new house '~a remain within 3.05 feet of lhe eastem p~operty line." Nate: This is 4.45 feet
•~~ closer than r~llowed by the Zoning Ordinance. See Table 7-Z, which requires an interiar side
yard width of 7.5 feet (10°,6 of the 75-foot width of the building site).
Natice, f,~ea.-ing, Vcte: ~
Nat.ic~ given by: M~il ar1c5 site postmg (bath for original hearing and rehearing).
He.~rings held on. November 5, 1998 (original hearing) and November 19. 1998
(rehearing) ~
ThE: v.~te: 2-2, on motion made to qrant following rehearing
• . Decision (s.ubject iv a/I appllcab/e appea/s): On November 5, the original hearing was
held. A mot<i~n to deny the variance passed by a vote nf a-0. On November 19, the
applicant uff~ered new evidence and requested a rehearinq, which the 8oard grartted.
Follcwing a~~:?ngttly renearing ana a~ extended discussion, a motion to grant !he variance
was made. ~lhe motian failed to pass by a vota of two in favor (8illings, Segaf), two against
(Poretto, ~le.~l). 8ecause the variance did not receive four votes in favor, it is disatlowed.
See ArtiGE~ 1~, Section t of the Board's Rules of Procedure and the state law requirement far
four votes to grant a variance.
Findi~gs: G~~e to the very late hour when the rehearing and discusaions ended, formal fad
findings or1 s:3ch of the statutory v~riance requirAments wilt have to be taken up at a later
meeting. f~r,:ft findings are attached.
Ef~ective aa~~e 8 Appea/s: This decision takes effect on the date it is fited in the 8oard's
o~ce (do S~ :retary of the Zoning 8oard of Adjustment. 3800 Universiry Boulevard. Houston,
Texas 17005i. Any appeals ot this decision are subjec! to and govemed by applicable
ordinance:~ z~~id laws, inGuding the Zon~ng Ordinance and Chapler 211, Tex, I.OCa1
Govemment ~~ede. Under Chapter 21 ~, petitions far judicial review must be presented
within 10 aa}~s afte~ the date trtis decision is filed in the 6oard's o~ce.
ZONING 80.hR0 OF AOJUSTMENT, By.• ,~.~.~ ~,,~a ~.
Fr'I~I in the Ec~ard's ol~ice on ..l~~~l~lr 19 9~ nd c pies mailed on
_.D~,~~~~ 3 , Ts ,ey~ •
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Recetved: y2/ 3/98 1~:05; -y Cole 8 Oougharty; Page 3
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DRAFT FINOINGS
(SUBJECT TO REVIEW AND REVISfON)
(1) Stt~t~~ Law Requirement "var~ance is not contrary co public interest"
Fir.ding: The evidence on this point was mixed. None of the witnesses flatfy
opposed the variance. However, there were some concems expressed
. about the effect on adjacEnt property and about a drainage problem at
the rear oi the site. There was extensive discussian about whether
thes~ conc2ms Could be elimrnated (b~ reduced) by designing and
imposing scme very specific conditions. However, there.w8s
disagreement about how practical same of the conditions would be. All
• four members of the panel were not persuaded that the public intetest
requirement would be met, even ~f co~ditions could be worked out.
The applicant has urged the Board to grant the variance becsuse the
Ciiy's inspectors tailed to catch the problem~sooner than they did. The
~ Board believes that granting a variance far th~s ~eason would be contrary
to the public interest, because: (1) it might reward a builder who is
careless or who tries to hide violations from inspecfors; (2) on the other
hand, it might create unfairness fo~ 8 Duilder who is cereful and candid
w~th ~rtspecto~s; (3} it would reduce the incentive far a builder to try to
• prevent vioiations; and (4) it would altow the creatiort of non~o~oRninq
struclures that might siand for 50 0~ 100 y~ts.
(2) State Law Reqvir~ament: "due to special conditions a literal entorcement of the
otdin~nce would ~esult in unnecessary hardship."
Findin:~s. The @oard believes Ihat "special conditions" reters to conditions that are
unavoidable, such as an odd site shape or size, or environmental
cond~lions The evidence showed thal the site was regular in shape and
of more than sufficient size. There was b~ief testimony about soil
conditions, but Ihese conditions are apparenlty present in the whole
area, not just on this site. Therefore, the Board was not persuaded that
`spec~al conditions' were present ac rhis site.
In addition, the state law requires that the "special conditions" quse the
hardship. In this case, there was nothirtg about the site or its condit;ons
that caused the hardsnip. The ordinance requires a side yard that is
10°.G of the builaing site width, or 7.5 faet. Apparently, neither the
applicant nor anyone warking for the applicant read the erdinance, and
they des~gned a house that did not comply. In ather words, the hardship
was caused by the applicant's error, not by °Spec+al canditions" as
reqwred by law. Tha 8oard does not believe that the City's failure ta
Catch the error would chanqe this conGusion Whether the error was
caught o~ not, the hardship was still caused by error, not by "sp~cial
cortdtions" as required by faw.
• A good part of the test~mony and tliscussion fOCUSed on the nature of
the claimed hardsh~p The evidence convinced the 8aard that the house
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Received:
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y2/ 3/98 11:06; -} Cole & Doupherty; Pape 4
could be brought into campliance. Clearly this w~ll cost money, ~
although neither the architecis nor the engineer nor the builder said how
rnuch. At the end of the hearing, the Board was left with the conc.lusion
tnat the hardship was financial. Because financial hardship, alone, is
not suflicie~t to suppo~t a variance, the 8oard c,atlnCt make ar~
atfirmative frnding on this pcint.
u
(3) Slate L.~w Requ/remerrt: "spirit of the ordinance is observed."
F~rrtlings This flnding cannot be m2Ce, because the requested variartce wauld ~
have allowed site deve~cprnent that is very different from wt~et the
ordinance contemplates. The ordinance requires a side yard that is
~ 10".6 of the building site width, or 7.5 feet. The variance would altow a
side yard that is 4°/a of the buidling siie width, or 3.Q5 feet.
(4) State Law Req~ireirreRt: "substantial justice is done."
Flrti~lri,~s . The 6aard believes that this finding could be made, r'f the adverse
~ effects of Ihe enuoachment could be eliminarPd or reduced. As note0
above, there was disagreement about whether this could be done, as a
pracs~cal malter, and the Boa~d did not reach a consensus on this point
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