HomeMy WebLinkAbout07202006 ZBA Minutes
OLM) City of West University Place
A Neighborhood City
® Recycled Paper ZONING BOARD OF ADJUSTMENT
COUNCIL CHAMBERS, MUNICIPAL BUILDING
3800 UNIVERSITY BOULEVARD
MEETING MINUTES
July 20, 2006
6:30 p.m.
I. MEMBERS PRESENT: James Jordan (voting), Mark Plagens (voting), Richard Wilson (voting),
Susan Hanna (voting) and Frank Vargas, Jr. (voting)
II. MEMBERS ABSENT: Jeann Howse, Stephen Stewart and David Theis
III. STAFF PRESENT: Andrea Brinkley, Interim City Planner, Debbie Scarcella, Chief
Building Official, James Dougherty, Jr., City Attorney and Sallye A.
Clark, Planning Assistant
IV. CALL TO ORDER: 6:30 p.m.
Agenda Item Discussion Action
1 Call the meeting to James Jordan called the meeting to order at 6:30 Richard Wilson moved to accept that
order and Protocol. p.m. James Jordan asked all members and staff to all notices were properly posted and
Notices, Rules, Etc. introduce themselves. Sallye A. Clark, Planning distributed for this meeting. Motion
Assistant stated all notices were posted as required was 2nd by Frank Vargas, Jr. James
by city and state law. Jordan, Mark Plagens, Richard Wilson,
Swearing in of witnesses. Susan Hanna and Frank Vargas, Jr.
voted aye. Motion passed. James
Jordan administered the oath to all
witnesses.
2 Docket No. 06-04, Corrine Ross, 4228 Marquette gave a power point Richard Wilson made a motion to close
House at 4228 presentation of the variance request. Andrea the evidentiary portion of the hearing.
Marquette Street, Brinkley, Interim City Planner gave the background Motion was 2"d by Mark Plagens.
West University of the request as follows: James Jordan, Mark Plagens, Richard
Place, Texas 77005 The applicant of Docket 06-04, 4228 Marquette, is Wilson, Susan Hanna and Frank
(Variance) requesting a variance to the Zoning Ordinance Vargas, Jr. voted aye. Motion passed.
Public hearing regarding Table 7-4a, entitled "Garage space." After discussion, Richard Wilson made
regarding the following Table 7-4a limits non-garage space in a garage a motion to deny the variance of docket
matters: Accessory accessory building to 600 square feet, gross floor 06-04 to allow expansion of existing
Quarters. Matters area. The applicant has an existing two-story garage quarters to a total gross floor area of
relating the property building with garage space on the first floor and 713 square feet. Motion was 2"d by
owner's request for a quarters on the second floor. The gross floor area of Mark Plagens. James Jordan, Mark
variance to allow the second floor is 498 square feet. The applicant Plagens, Richard Wilson, Susan Hanna
expansion of existing would like to expand the second floor by adding 216 and Frank Vargas, Jr. voted aye.
quarters to a total square feet, which would put the non-garage space Motion passed. Variance denied.
gross floor area of at 714 square feet, some 114 square feet more than
713 square feet. allowed by Table 7-4a, according to the staff
Deliberation, decisions, interpretation of "gross floor area." Section 2-102
other action, etc. provides that "gross floor area" is to be measured
regarding the preceding from the outside dimensions of a building or space
matters. in a building, and it excludes the areas of a garage,
3800 University Boulevard 0 West University Place, Texas 77005-2899 • 713.668.4441 • www.westu.org
Zoning Board of Adjustment Minutes
July 20, 2006 Meeting
2
basement, or attic used for storage only. The
applicant has interpreted the definition to exclude
stairway area and storage area on the second floor.
If the ZBA agrees with this interpretation--and
issues a decision to that effect-- no variance would
be needed, because the non-garage space would be
less than the 600-square-foot limit (just barely).
Staff believes the ZBA has authority to make such a
decision. Because that decision would reverse a
decision of the administrative official, the zoning
enabling law requires four favorable votes.
Sallye A. Clark, Planning Assistant stated that there
was no correspondence received in favor of or
opposition to the request. Jay Javadi spoke for
daughter Fara Javadi, 4229 Villanova in opposition
of the request and submitted a letter from Lee and
Cathy Jolly, 4223 Villanova. No one spoke in favor
of the request.
Andrea Brinkley, Interim City Planner gave the staff
recommendation as follows: Staff does not agree
with the applicant's interpretation, because the
definition in the ordinance clearly calls for the
measurement to be taken from the outside perimeter
of the building, without excluding the stairway or
storage space. If ZBA agrees with staff's
interpretation, then a variance would be necessary to
allow the non-garage space to exceed the 600-
square-foot limit. Staff believes that the ZBA has
the authority to grant this variance, but according to
Section 11- 102, the ZBA may not issue a variance
unless all of the following circumstances are
present:
(1) The ZBA must make all findings and
determinations required by state law
for the granting of a variance, which
are: (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 public
interest.
(2) The ZBA must make any additional findings
and determinations required by a
specific provision of this ordinance
that relates to the variance.
(3) (3) The variance must be reduced
to writing including any conditions
prescribed by the ZBA or required
by this ordinance for the variance in
question.
Zoning Board of Adjustment Minutes
July 20, 2006 Meeting
3
3 Docket No. 05-03 and Bill Merriman, 2135 Sunset, Merriman Holt Frank Vargas, Jr. made a motion to
05-16, Place of Architects gave a power point presentation in close the evidentiary portion of the
worship at 6218 reference to the request. Also representing the hearing. Motion was 2nd by Richard
Auden; 3821,3831, church was Roger Patterson, associate pastor for Wilson. James Jordan, Mark
3835 & 3836 Amherst West University Baptist Church and Gary Plagens, Richard Wilson, Susan Hanna
Street; 3804, 3819 Pennington, Chairman of Building and grounds. and Frank Vargas, Jr. voted aye.
Milton and Lots 11, Andrea Brinkley, Interim City Planner gave the Motion passed.
13, 14 & 15, block 15 background as follows: The applicant in Docket After discussion, Richard Wilson made
Collegeview, section 3 05-03 & 05-16, Harry Craig, Trustee for West a motion to grant the Special
West University Place, University Baptist Church (WUBC), is requesting Exception in the form presented by
Texas 77005 (Special a special exception to allow joint use of parking City Staff with modification of article
Exception) spaces. Section 10-103(c) of the Zoning Ordinance 11 to article 14 and the page numbers
Public hearing allows the Zoning Board of Adjustments to issue a corrected. Motion was 2°d by
regarding the following special exception to allow up to 75 percent of the Frank Vargas, Jr. James Jordan, Mark
matters: Parking, parking spaces required for any type of use to be used Plagens, Richard Wilson, Susan Hanna
Access, Etc. By jointly for another use, if the ZBA can find that no and Frank Vargas, Jr. voted aye.
decisions dated July 22, increase in on-street parking is likely to result Motion passed. Special Exception
2005 and August 31, (Article 11 requires additional findings, for any granted.
2005 the Zoning Board special exception.)
of Adjustment granted Background. This request stems from WUBC's 2005
variances and special application for special exceptions and variances to
exceptions for facilities cover its existing campus and a proposed new
of West University gymnasium. The ZBA approved the application, but
Baptist Church at the with conditions. Among them was a condition that
sites listed above. The the WUBC study the required parking, loading and
decisions required circulation and, if necessary, come back to the ZBA
WUBC to study for additional consideration. The WUBC
parking and vehicular commissioned such a study. It recommended that a
access and follow-up. formal agreement between the City and WUBC be
Based upon the study pursued for joint use of parking spaces
and follow-up, the Proposed Construction; Parking Calculations.
WUBC has requested a WUBC intends to demolish and rebuild its gymnasium
special exception to located at 6218 Auden. Under detailed provisions of
allow joint use of the Zoning Ordinance, the project will trigger a
parking spaces owned requirement for 24 incremental parking spaces. The
by WUBC and the City calculations are as follows:
of West University (1) For places of worship and similar uses, Section 10-
Place (pursuant to a 100 (entitled "Off-street Parking") requires 10 off-street
Memorandum of spaces for the first 2,000 square feet of building space
Understanding with the plus 3.33 spaces per 1000 square feet above that,
City). In addition, there calculated for the campus as a whole. Applying this
are related questions formula, WUBC's campus is non-conforming at this
involving parking time. (At most, there are 84 off-street spaces in
spaces, loading areas, existence on the campus, but the formula would require
and vehicular 157 spaces).
circulation. Resolution (2) However, assuming WUBC demonstrates at the
of these questions may hearing that the non-conformity predates the off-
require interpretations, street parking regulations; the campus would have
variances, special prior non-conforming (PNC) status, as to the non-
exceptions, conformity in parking spaces.
determinations of prior (3) Ordinarily, expanding a building where the parking
non-conforming status is non-conforming would not be allowed, because the
and modifications to expansion would cause a loss of PNC status (Under
Zoning Board of Adjustment Minutes
July 20, 2006 Meeting
4
prior decisions. Section 12-103, if the "degree of non-confomitt/' is
Deliberation, decisions, increased or expanded, PNC status is lost.)
other action, etc. 4) However, there is a special rule about a non-
regarding the conformity in the number of parking spaces. See
preceding matters. Section 12-103(e)(3). It provides that PNC status is not
lost by a change in a building if the increase in the
number of required spaces resulting from the change is
provided, on an incremental basis." Here, the change
in the gymnasium building would increase the building
size by 7,000 square feet, so the increase in the number
of required spaces would be 23.31 on an incremental
basis (7 X 3.33 according to the formula). This is
rounded upward to 24.
(5) Therefore, WUBC will have to provide 24
incremental spaces to avoid losing PNC status by
demolishing and rebuilding the gymnasium.
The MOU. To provide incremental spaces, WUBC
approached the City about a possible shared
parking arrangement. A "memorandum of
understanding" (MOU) emerged from that
discussion. Both the WUBC and the City Council
have approved it. Under Appendix A of the
MOU: (a) the City has allowed the public to use
three City lots close to WUBC on Sundays and
Wednesday nights (Lots 4, 5 and 6), and (b)
WUBC has allowed the public to use two large
WUBC lots on Milton Street (Lots 1 and 2)
Monday through Saturday.
In addition, the MOU allows some special uses of
Lot 1 (next to the Public Works Building on Milton)
City employees have priority parking for 15 spaces,
and the City can use the whole lot for special events
(e.g., recycling and heavy trash collection).
a) requires that the parking spaces be located not more
than 300 feet from the entrance of a building served.
All of the City-owned spaces are located within this
distance from WUBC's buildings.
No correspondence was received in favor or
opposition of the request other than the green
comment and question cards and are of record. No
one spoke in favor or opposition of the request.
Andrea Brinkley, Interim City Planner read the
staff recommendation as follows:
To issue a special exception for joint use of
parking spaces, the ZBA must determine that the
special exception will not cause: (i) any increase in
on-street parking (i. e., no increase is allowed), (ii)
any substantial traffic congestion or (iii) any
substantial increase in traffic or an unreasonable
burden on utility systems or any other public facility
or public service. The ZBA must also determine that
special exception will be in harmony with the general
purpose and intent of the Zoning Ordinance. See
Zoning Board of Adjustment Minutes
July 20, 2006 Meeting
5
Sections 10-103(c) and 11-102 of the Zoning
Ordinance. Under Section 11-103, the ZBA may
impose conditions in a special exception, to the
extent necessary to enable the ZBA to make the
determinations listed above.
Staff believes that, to enable the ZBA to make these
determinations, the applicant will have to demonstrate
that, under real-world conditions: (i) the spaces to be
provided by the City (and the times they are provided)
will alleviate peak parking demand at WUBC, or, at
least, not make the current situation worse, (ii) the
spaces to be provided by WUBC (and the times they
are provided) will alleviate peak parking demand at
City facilities, or, at least, not make the current
situation worse. (Note: It does appear that the MOU is
designed to provide parking during each party's peak
hours of need.) In the alternative, the applicant could
demonstrate that, overall, the net effect of the joint use
agreement is to improve the current situation, or at
least make it no worse. Because the MOU mainly
provides public parking, on a first-come-first-served
basis, staff believes that the applicant will have to
demonstrate that, under real-world conditions, this will
be equivalent to reserved or exclusive parking, or, at
least, it will avoid making the current situation worse.
The number of joint-use parking spaces that can be
counted toward WUBC's parking requirement is
limited by Section 10-103 (c) to 75% of the number of
spaces required for the City building spaces. Because
the City buildings are under the direct control of the
City Council, staff believes the number of parking
spaces required is at least the number provided by the
City Council and listed in the MOU (33), so Section
10-103(c) would allow at least 24.75 (75% of 33)
spaces to be counted. This is just barely enough to
cover the number required by WUBC (24).
To be counted toward compliance, joint-use spaces
should not violate the technical requirements of the
Zoning Ordinance, e.g., dimensions, maneuvering
area, access, screening, etc. In this case, staff believes
that the City-owned spaces covered by the MOU are:
(i) sufficient to allow functional use, as a practical
matter, and (ii) under the direct control of the City
Council and, therefore, not in violation of the Zoning
Ordinance.
Staff believes that the applicant should be able to
present evidence at the hearing sufficient to enable the
ZBA to make these required determinations. Staffhas
not received any correspondence against the proposed
request. Staff believes that the ZBA has the authority
Zoning Board of Adjustment Minutes
July 20, 2006 Meeting
6
to grant a special exception to applicant, if the above-
listed determinations are made.
Loading Spaces. The WUBC traffic study does not
clearly indicate that the campus will have sufficient
loading spaces to comply with Section 10-104. Staff
recommends that the applicant be directed to re-study
the need for loading spaces and submit a supplemental
report or letter to the Administrative Official. If the
applicant can show compliance with Section 10-104
(or perhaps PNC status), that should be sufficient.
Otherwise, the applicant may need to seek approval
from the ZBA.
4 Docket No. 06-03, David McMahon owner of Smoothie King gave a Richard Wilson made a motion to
Commercial Business presentation for the special exception request. close the evidentiary portion of the
at 5410 Kirby Drive, Andrea Brinkley, Interim City Planner gave the hearing. Motion was 2nd by Susan
West University Place, background as follows: The applicant's lessee and Hanna. James Jordan, Mark
Texas 77005 (Special contractor obtained a permit to renovate the interior of Plagens, Richard Wilson, Susan Hanna
Exception) the building located at 5410 Kirby Drive so that part of and Frank Vargas, Jr. voted aye.
Public hearing it could be used as a drink shop. At the time, the drink Motion passed. After discussion,
regarding the following shop appeared to be "light commercial use," which is Frank Vargas, Jr. made a motion to
matters: Drive-thru, allowed in the C District. City staff discovered that the Deny the request for a special
Medium Commercial lessee also modified the parking area and building exception to allow a medium
Use. Applicant requests exterior, with the objective of adding a new "drive commercial use in a commercial
a special exception to thru" facility on the west side. Adding a drive thru district , to all the use of a drive thru.
allow a medium would change the use from "light commercial" to Motion was 2nd by Susan Hanna.
commercial use in a "medium commercial." Medium commercial use is James Jordan, Susan Hanna and
commercial district, to only allowed in the C District "to the extent authorized Frank Vargas, Jr. voted aye. Richard
allow the use of a drive- by a special exception" issued by the Zoning Board of Wilson and Mark Plagens voted nay.
thru. Deliberation, Adjustment. Motion passed Special Exception
decisions, other action, City staff notified both the lessee and contractor shortly denied. In addition, the board asked
etc. regarding the after the problem was discovered and met with them at the City Attorney to bring forward an
preceding matters the Public Works Offices. After the meeting, the order the next ZBA meeting for
administrative official and building official issued a review and signature.
formal decision. A copy is attached. It provided
background information, and it required, among other
things, that permits be obtained for the parking area and
exterior work. However, the decision was explicit that
no permit could be issued for a "drive thru" without a
special exception issued by the Zoning Board of
Adjustment.
Another section of the Zoning Ordinance (Section 8-
104) restricts commercial impact on residential
streets. In this case, Sunset is a residential street, as
defined in the ordinance. The site and
improvements may have acquired prior non-
conforming (PNC) status regarding access and
orientation to Sunset. If PNC status was acquired, it
can be lost. See Article 12. For this reason, the
formal decision required the submission of "clear
evidence that a drive-through would not cause the
Zoning Board of Adjustment Minutes
July 20, 2006 Meeting
7
loss of PNC status," as an additional condition of
getting a permit for a drive through.
After the formal decision, the lessee finished the
renovation and opened the drink shop, without a "drive
thru." The applicant conducted a "pre-application"
briefing, as required by Article 11. However, the
applicant failed to send proper notices before the
briefing. The applicant re-sent the notices and held a
second briefing.
All correspondence and materials in favor or
opposition of the request were received and made
part of the record. Lena Israel, 2610 Sunset; Pat
Malone, 2931 Quenby and Kyle Pentecost, 2606
Centenary al spoke in favor of the request. The
following all spoke in opposition of the request:
Sean Guffy, 2809 Sunset; Laurence Neman, 2628
Sunset; Dr. Janet Graham, 3031 Albans; Dale
Plumb, 2904 Albans; Roland Folansbee, 2708
Sunset; Daniel Olivas, 2618 Sunset; Anne Burke,
2704 Sunset; Dana LeJune, 2703 Albans; Stephen
Hodgson, 2636 Albans and owns 2620 Albans;
Sharon Graff, 2617 Sunset; Ana Estrada, 2622
Sunset; Brenda Keith, 2705 Sunset; Diana
Freeman, 3114 Sunset; Morna Simon-Raffel,
5804 Fordham.
Andrea Brinkley read the staff recommendation as
follows: There is a preliminary question about the
pre-application briefings. Although the second
briefing was held after the application was filed, staff
believes the procedure and briefings in this case were
sufficient to satisfy Article 11. However, if the
Board disagrees with that interpretation, the proper
action would be to require the applicant to send new
notices and conduct another briefing, and then re-file
the application. The current docket could be held
open to allow time for the applicant to comply.
To issue a special exception for a medium
commercial use in a commercial district, the ZBA
must determine that the special exception will not
cause: (i) any increase in on-street parking, (ii) any
substantial traffic congestion or (iii) any substantial
increase in traffic or an unreasonable burden on
utility systems or any other public facility or public
service. The ZBA must also determine that the
special exception will be in harmony with the general
purpose and intent of the Zoning Ordinance. See
Section 11-102(b) of the Zoning Ordinance. Under
Section 11-103, the ZBA may impose conditions in a
special exception, to the extent necessary to enable
the ZBA to make the determinations listed above.
If a special exception for a medium commercial
use (with a drive-thru) is granted, it would raise a
question about commercial impact on Sunset. The
Zoning Board of Adjustment Minutes
July 20, 2006 Meeting
8
driveways and curb cuts on Sunset--and possibly
the buildings themselves--are non-conforming
under Section 8-104. Possibly, the applicant will
show the Board that they predate the ordinance--
and therefore have PNC status. PNC status could
be lost if the drive-thru or other change in use
increases or expands "the degree of non-
conformity." See Section 12-103(e).
(1) If the applicant persuades the ZBA that PNC
status will not be lost, the ZBA could include a
ruling to that effect in its order granting the main
special exception.
(2) If the applicant does not so persuade the ZBA,
the applicant could present evidence sufficient to
satisfy Section 12-105. That section allows an
extension of PNC status if the ZBA finds that: (i)
a substantial investment was reasonably made in
the buildings, driveways and curb cuts, or in
reliance upon them, and (ii) extension is necessary
to allow a reasonable time to amortize the
investment, or avoid unreasonable waste, etc. If
the evidence is sufficient, the ZBA could include
these findings and an extension of PNC status in
its order granting the main special exception. The
extension could be indefinite or for a fixed time
period.
Some examples of possible conditions on a special
exception, if granted, include: (i) limitations as to
specific uses and specific areas of use, perhaps as
shown in an actual site plan, (ii) specific design
and operational features (e.g., safety precautions,
hours of operation, signage, etc.), which could
also be shown in a site plan, and (iii) a
provisional time period to use the facility on a
"trial" basis, with a mandatory follow-up
submission to the Board.
Adjournment. Richard Wilson made a motion to
adjourn the meeting. Motion was 2°d
by Mark Plagens. James Jordan, Mark
Plagens, Richard Wilson, Susan Hanna
and Frank Vargas, Jr. voted aye.
Motion passed. The meeting was
adjourned at 11:30 .m.
Zoning Board of Adjustment Minutes
July 20, 2006 Meeting
9
PASSED THIS A)6+--DAY OF 2006.
am ord e di fficer
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