HomeMy WebLinkAbout05212009 ZBA Agenda Item 3
Memo
To: Zoning Board of Adjustments
From: Debbie Scarcella, City Planner
Date: May 15, 2009
Re: Staff Report for Docket 09-04
The applicant in Docket 09-04, 4222 Oberlin, is requesting a special exception under Article 12,
Section 12-102 (e) of the zoning regulations to acquire PNC status for a side yard encroachment.
Background Information
The structure located at 4222 Oberlin was built in 2006. During the course of construction several
surveys were completed-form survey, final survey, and topographical survey-and filed with the City to
show compliance with the yard (setback) regulations (See applicant's exhibit 1 and 2). At each phase
of construction, these documents are checked for compliance before the next level of inspection is
completed. Both documents indicate that the side yard setbacks comply with Table 7-2 in that the side
yards are 10% of the lot width. (Five feet each side.) In 2009, the property was surveyed in
conjunction with an offer for sale of the property. The survey (dated 4/7/09) showed encroachments
into the side yards at three corners of the structure (4.8', 47, and 4.6'). According to the surveyor,
these were the measurements as taken from the property line and measured to the outside wall facing
of the structure. A second survey, measured to the outside wall of the foundation (dated 4/16/09) and
marked applicant's exhibit 4, shows the foundation wall to be five feet from the property line at all
four corners. Clearly there are discrepancies between the surveys. The applicant believes that these
discrepancies caused the loss of a potential sale of his structure, and requests that the structure be
granted PNC status for the side yard encroachments.
Staff Response
Staff believes that the ZBA has generally the authority to grant this special exception as provided for in
Section 12-102(e) of the zoning regulations. The ZBA may only issue such a special exception if the
applicant demonstrates all of the following:
W The encroachment was inadvertent and neither misrepresented to the City nor hidden
from City officials,
(ii) The encroachment will not cause a substantial adverse effect on other persons, and
(iii) The encroachment does not create a significant health or safety risk.
4222 Oberlin St Pagel 5-15-09
In addition to the findings listed in 12-102(e), to issue the special exception, the ZBA must find the
following as provided in Section 11-102(b) of the zoning regulations:
(i) The ZBA has determined the proposed special exception will not cause any significant increase
in on-street parking, will not cause any substantial traffic congestion, will not cause any
substantial increase in traffic or an unreasonable burden upon utility systems or upon any
other public facility or public service,
(ii) The ZBA has determined that the proposed special exception will be in harmony with the
general purpose and intent of this section,
(iii) The ZBA has made any additional findings and determinations required by a specific provision
of this section, and
(iv) The special exception has been reduced to writing and includes any conditions prescribed by
the ZBA or required by this section for the special exception in question.
4222 Oberlin St Page 2 5-15-09
§ 7-101 WEST UNIVERSITY PLACE MUNICIPAL CODE
General Rule: No part of any structure may be located within a part of a building site in-
cluded within a yard defined, by District, in this table. ("N/A" means the rule does not apply.)
Exceptions /Special Rules: (1) Structures may be located in yards to the extent allowed by the
Table 7-2: Yards Projections Schedule. (2) See special rules noted in table. (3) See PDD Schedules for Planned
(or'setbacks) Development Districts. (4) See additional setbacks in the PWSF Schedule.
S` 1 2 31r~t<: T$ (3&2. QR ? . , fw;
Item Measurement
Front yard Distance from 20 feet if the building site depth is 110 feet 10 ft. 20 ft. 30 ft.
front street line. or less; 25 feet if the building site depth is See Note See Note 7 See
more than 110 feet but not more than 125 7. Note 5
feet; 30 feet if the building site depth is
more than 125 feet. See Note 5.
Interior side Distance from Greater of 10% of building site width or 5 5 ft. See Note 4. See Note 7. 5 ft.
yard side property line feet. See Note 2. See
(each side). Note 4.
Street side Distance from Greater of 10% of Greater of 10% of 10 ft. See Note 7. 15 ft.
yard side street line. building site building site width or
width or 5 ft. See 5 feet. See Notes 2, 6.
Notes 2, 3, 6.
Rear yard Distance from 20 ft. See Note 1. 20 ft. See 5 ft. See Note 7. 5 ft.
rear property Note 7.
line.
SF Distance from N/A N/A N/A 20 ft. See Note 7. 10 ft.
Bufferyard nearest part of an
SF District
Note 1. "Through Lots." If a building site extends all the way through a block, so that the font and rear both abut
a street area, there is no rear yard, but the site is treated as if there were two front yards, each with the same
depth as the average front yard on the same side of the block.
Note 2. Narrow Site "3/7" Exception. Alternate side yard areas apply to a building site meeting all four of the
following criteria: (A) The building site is less than 56 feet wide. (B) The use is single-family (detached) use.
(C) Outside the rear yard, no main wall surface of any building is closer than 10 feet to any main wall surface
of a "prior building" on another building site (unless there are "prior buildings" on both sides, each within
seven feet of the property line, in which case the minimum separation from a "prior building" is eight feet).
A "prior building" is a building in existence, under construction or covered by a current building permit when
a building permit is issued for the subsequent building. (D) The owner has designated alternate side setback
areas in a form approved by the administrative official and in accordance with all of the following criteria:
(1) Minimum setback, interior. 3 feet. (2) Minimum setback, street side: 5 feet. (3) Minimum setbacks, both
sides combined: greater of 10 feet or 20% of the building site width. (4) On each side, the setback is uniform
in width along its entire length. See Table 7-5a regarding "alternating driveway" rule.
Note 3. Rotated Corners. For rotated corner building sites (SF-1 District only), the minimum side street yard width
is: (i) 10 feet if the building site width is 65 feet or less, (ii) 10 feet plus the distance by which the width of
the building site exceed 65 feet, if the building site width is more than 65 feet but less than 75 feet, (iii) 20
feet if the building site width is 75 feet or more but less than 100 feet, or (iv) for building sites 100 feet wide
or more, the aide street yard width is determined by the same rules as the front yard depth, except that the
"depth" of the building site is measured from the side street line.
Note 4. Common Walls. In the TH, GR.2 and C District, the ZBA may issue a special exception for a zero-width side
yard, but only upon application by both property owners and only if the special exception is conditioned upon
the construction and maintenance of a common wall or continuously abutting separate walls (in either case
with a four-hour fire rating or better) along the property line. See, also, Note 7, below, for QMDS.
Note 5. Major Thoroughfares. The ZBA may issue a special exception for a front yard less than 30 feet deep abutting
a major thoroughfare, if the front yard prescribed is at least 10 feet deep, and if the special exception
requires the greatest practicable amount of pervious area in the front yard.
Note 6. Special Exception. The ZBA may prescribe a different street side yard by special exception relating to
frontage. See Article 8.
Supp. No. 1 CDA:32
APPENDIX A-ZONING ORDINANCE § 7-101
General Rule: No part of any structure may be located within a part of a building site in-
cluded within a yard defined, by District, in this table. ("N/A" means the rule does not apply.)
Exceptions /Special Rules: (1) Structures may be located in yards to the extent allowed by the
Projections Schedule. (2) See special rules noted in table. (3) See PDD Schedules for Planned
Table 7-2, conk Development Districts. (4) See additional setbacks in the PWSF Schedule.
PUP DD*,;.. PDD- PDg PD& PDDr PDl;I . PDD
Item Measurement SFI " SFy~ THI Tft TH4 THr, T H7 CI
Front yard Distance from 20 feet if the building site depth is 10 ft. See Note 7. 20 ft. 5 ft.
front street line. 110 feet or less; 25 feet if the building (Mercer (Bellaire
site depth is more than 110 feet but Street) Blvd.)
not more than 125 feet; 30 feet if the
building site depth is more than 126
feet. See Note 5.
Interior side Distance from Greater of 1096 of building ails width 5 ft. See Note 4. See Note 7. 20 R. N/A
yard side property line or 5 feet. See Note 2. (south
(each side).
property
line)
Street side Distance from Greater of 10% of building site width 10 R. See Note 7. 10 R. See
yard side street line. or 5 ft. See Notes 2, B. (Bisson- Note 8.
net)
mar yard Distance from 20 ft. Set Note 1. 20 ft. See Note 7. 5 ft. (west See
rear property
liue property Note 8.
line)
SF Distance from N/A 20 ft. See Note 7. N/A See
Bufferyard nearest part of an
SF District Note 8.
Note 7. Yards In QMDS. In a QMDS, yards are only required around the perimeter of the subdivision and are
designated by the subdivision plat. See definition of QMDS. Standard projections into QMDS yards are
allowed per the Projections Schedule. In addition:
(a) Front yard (GRA or GR-2 Only): A principal building with an internal access garage may project as
close as 10 feet to the street area if, in the projecting part: (a) there is a first-floor porch or with at least
80 sq. ft. of floor space (open or screened) and no dimension smaller than seven feet; (b) above the
porch or court, no more than half the usable floor space is enclosed (coverings and other floor space,
including open or screened porches, are allowed above all the porch or court); (c) the cornice height
does not exceed 27 feet; (d) there are no more than 2.5 stories; and (e) there is no garage space.
(b) Front yard: Bay windows, canopies and balconies at least 18 inches above grade may project up to 24
inches beyond the principal building. Steps and handrails may project up to 30 inches beyond the
principal building.
(c) Rear Yard and SF Bufferyard. Buildings up to 10 feet high (measured from finished grade to top of roof
plate) may project, but not closer than 10 feet to the property line.
Note 8. Yards in PDD-CI. In PDD-C1, the yards and street lines are as follows, notwithstanding other provisions
of this ordinance: G) The rear yard is the area within 20 feet of the rear property line (the line farthest from
Bellaire Blvd.) of any building site, and for this purpose, the said rear property line shall be not in excess of
120 feet from the north right-of-way line of Bellaire Blvd. Exception: The rear yard upon Lot 2, Block 35,
Colonial Terrace Addition (also known as the south 140 feet of Tract 9, Cambridge Place) is the area within
40 feet of the rear property line of said lot, said rear property line being located 140 north of the north
right-of-way line of Bellaire Blvd. (ii) The street side yard is the area within ten feet of any side street line
where the street area is 50 feet or less in width, or within five feet of any side street line where the street
area is more than 50, but less than 70, feet wide. (iii) The front yard is the area within five feet of the front
street line (which is the common boundary with Bellaire Boulevard). Any area outside of a building line
established by ordinance or by recorded plat is considered part of the corresponding yard.
Supp. No. 1 CDA:33
APPENDIX A-ZONING ORDINANCE § 12-102
Section 12-101. Burden of proof.
As provided in Article 6, PNC status is an affirmative defense, so it is the burden
of the person desiring PNC status to prove, for each non-conforming item: (i) PNC
status has been acquired, and (ii) PNC status has not been lost.
Section 12-102. Acquiring PNC status.
(a) General Rule. An item (defined below) acquires PNC status if. (i) the item was
constructed or established in conformance with the zoning ordinance (as applicable at
the time); and (ii) after construction or establishment, the item became non-
conforming solely because the zoning ordinance was adopted or amended. The item
acquires PNC status on the effective date of the ordinance making it nonconforming.
Items which can acquire PNC status are:
(1) A separately-existing building site.
(2) A structure.
(3) Some aspect, use or part of such a building site or structure.
(b) Work under construction. For purposes of acquiring PNC status, any structure
for which all necessary City construction permits have been applied for (by filing
complete and effective plans, specifications, applications and all other required items,
including fees) prior to a given effective date shall be treated the same as a structure
constructed before the effective date, but only if. (i) the applications are eventually
granted, and the permits are actually issued (before or after the effective date), and (ii)
the structure is completed substantially in accordance with the same plans and
specifications filed initially to obtain the permits, within the time allowed by those
permits, including any extensions lawfully granted. The ZBA may grant a special
exception to allow a partially-completed building to be treated the same as a building
constructed before the effective date, but only if all of the building's significant
structural elements, including the roof and all load-bearing members, were completed
as of the effective date and the building is fully completed within five years thereafter.
(c) Other committed work. For purposes of acquiring PNC status, any principal
building constructed new or substantially remodeled after a given effective date shall
be treated the same as a structure constructed before that effective date, if all of the
following criteria are present:
t 1) Prior site acquisition. The person initially claiming PNC for the building
("applicant") must have acquired fee simple title to the entire building site for
the building on or before the ninetieth day preceding the effective date in
question.
(2) Diligent progress to completion. The applicant must also make, or cause to be
made, diligent progress toward the completion of the principal building. Such
progress must include both of the following steps: (i) completion of the plans
and specifications and the filing (by the applicant) of complete and effective
applications for all necessary building permits incorporating such completed
plans and specifications, on or before the ninetieth day following the given
effective date, (ii) completion of the construction or remodeling substantially in
Hipp. No. 6 CDA.67
12-102 WEST UNIVERSITY PLACE MUNICIPAL CODE
accordance with the same plans and specifications filed initially to obtain the
necessary City permits, within the time allowed by those permits, including
any extensions lawfully granted.
In case of non-compliance with side yard regulations based on 10% of the building site
width as stated in the "Yards" table adopted in December 1994: (A) the time to acquire
the entire building site is extended through May 31, 1995, and (B) the time to file
applications for permits is extended through September 29, 1995
(d) Enlargement of building site and yard. A structure located in a yard (or
"setback" area) in apparent violation of Table 7-2 acquires PNC status if (i) after the
1987 effective date, the building site was enlarged in compliance with City ordinances,
(ii) the enlargement of the building site also expanded the yard to include the
structure, (iii) the structure was built before enlargement of the site, and (iv) the
structure did not violate the yard (or "setback") regulations before the enlargement.
The structure acquires PNC status only for non-compliance with Table 7-2.
(e) Certain yard encroachments. A structure located in a yard (or "setback" area) in
apparent violation of Table 7-2 acquires PNC status if the ZBA issues a special
exception granting PNC status. The ZBA may only issue such a special exception if it
makes all of the following special findings: (i) The encroachment was inadvertent and
neither misrepresented to the City nor hidden from City officials. Exception: This
finding is not required if the encroachment commenced before 1970. (ii) The encroach-
ment will not cause a substantial adverse effect on other persons. (iii) The encroach-
ment does not create a significant health or safety risk.
Section 12-103. Losing PNC Status.
(a) New principal building. If, after the 1987 effective date, a new principal
building is constructed on a building site, PNC status is lost for all PNC items relating
to the building site. Exceptions: (i) this does not apply to those principal buildings
treated the same as structures constructed prior to a given effective date (see above);
(ii) PNC status with respect to a building site dimension is not lost.
(b) Conformance is achieved; discontinuation. If a PNC item is changed to conform
to this ordinance for an indefinite period or for 180 days or more, PNC status is lost
for that item. If a use of property is discontinued for 180 days or more (exclusive of
time when actual construction work prevents the use), the use loses PNC status.
(c) Loss to casualty, etc. If 51% or more of the replacement cost of a structure is lost
to casualty, eminent domain, involuntary demolition or other similar cause, the
structure loses PNC status. Exception: This does not apply to a building used for SFR
purposes, except as to non-compliance with framed area regulations (i.e., in case of
such a 51% or greater loss, PNC status for non-compliance with framed area
regulations is lost). For this purpose, "replacement cost" is determined by standard
cost levels for similar structures as most recently published by the Southern Building
Code Conference International "SBCCI") or similar agency. See, e.g., the SBCCI's
internet publication of "Building Valuation Data," which provides average construc-
tion costs per square foot, by type of construction and occupancy group, with factors
to modify those costs for the Houston area. The ZBA may issue a special exception to
supp. No. 6 CDA:68
City of West University Place
APPLICATION TO THE ZONING BOARD OF ADJUSTMENT OF THE
CITY OF WEST UNIVERSITY PLACE, TEXAS CITY")
Address of site: q22-2- O Fee e L1 N ST. jA00 s Taal ,-r'y, 7 7CO57
Legal description of the site: LaT sc v~N C7) , IN i',LOCK E 16HT of (-0L.onj 1 A L T cR1_AcE r PtO
ApPIT-(PO iN K-PKkiS CoU~-j,- j, TE:-,t }S, AccoR,Dl116 Tb A MAP oR PL4T rWePEOF 1EC~CADE_D IK
voWr&a 416-91 PR.GE. LR3 of 711E DEEp RE cOP_Ds of j+&(zktS CouNT~Ji-r~EXftS
Applicant: pNtt_tP W. t3tRE5 sANE r v. aRCs
Address: ~rzZ~ o13ERul,4 sr• t{ovsraN, Tj- 7-7t)c g-
Contact: P41LIP aACS Phone: '113-W,I- Co o-7 Fax: TLt.-941.-77o3 Email: ph;tbr2S(eaif•ner
Decision or Action Requested (check one or more and provide requested data):
( ) Appeal. Hear and decide an appeal from an order, requirement, decision or determination made
by the Administrative Official.
• Is the official's action in writing? ( ) Yes; ( )copy is attached. ( )No, but the action appealed is as follows:
• When was the action taken? Note: Appeals must be filed within a reasonable time. Please explain any
delay below:
• Exact zoning ordinance section(s) involved:
• Grounds for appeal:
(v) Special Exception.
• Exact zoning ordinance section that authorizes the special exception:
5E:Mv 1 12--102; AcQulRLt~6 PNC 57-petVS C-) C(;yl;" IN yA-ko Ek5C"ACk4rWSjU r'S
• Exact wording of special exception requested:
yt,EP65E 3cE Arme-Hai~
( ) Variance.
• Exact zoning ordinance section from which a variance is requested:
• Exact wording of variance requested:
Other Data. Are there drawings or other data? ( )No ( )Yes(list items here and attach them)
PL1-ME -Sae. ArrA4,~tl;p
Attached. The applicant h read the State and City regulations attached.
Signature of applicant: Date:
- 0 j
For Staff Use only Da a fil d: °f Date heard: (Docket#. r t z'y 1
Form ZBA-102
Exact wording of special exemption requested:
This is a request for a Special Exception under 12.102. E, to acquire PNC Status for a
side yard encroachment for 4222 Oberlin St. Houston, TX 77005 as defined in Table 7.2
in Article 7 of the city's zoning ordinance Yards or Setbacks which requires a 5 foot
setback for the side yard.
A survey was performed by Meridian Surveying Mapping on 4/7/2009 (which seems to
have technical inaccuracies and was measured to the stucco walls versus the foundation
which is the City's practice) indicated West wall setback measurements of 4.7 feet at the
front of the home, and 4.6 feet at the rear of the home. The East wall had no
encroachment. Although this survey does not comply with the city's practice of not
treating the stucco exterior of a house as an encroachment it creates confusion and
contradicts 3 other surveys (that indicated no encroachment) and a literal interpretation
of Table 7-6, Article 7 of the City's zoning ordinance, which allows the maximum side
wall projection as "0". To resolve this confusion we request a Special Exemption for
PNC Status.
Other Data
Applicant's Narrative
Warranty Deed With Vendor's Lien - Proof of home ownership
Probstfeld & Associates Wood Form Survey dated 2/6/06 Revised 7/20/06 (shows no
encroachments)
Probstfeld & Associates Survey dated 2/6/06 Revised 11/22/06 - measured to slab
(shows no encroachments)
Meridian Survey - measurements to stucco wall, dated 4/7/09 (shows building over 5'
building set back)
Meridian Survey - measurements to foundation, revised 4/16/09 (shows no
encroachments)
Email and Letter from John Brown dated explaining that the Meridian survey showing an
encroachment does not constitute an encroachment based on the city of West University
Place customary setback measurements, which is from the foundation, not the wall
surface of the stucco.
Letter from prospective buyers' attorney cancelling home sales contract because of the
alleged encroachment
Email from John Brown regarding City Attorney Alan Petrov's suggestion that I request a
Special Exception
Photos of walls/foundation
Applicant's Narrative
Philip and Janet Bres
4222 Oberlin St
Houston, TX 77005
This is a request for a Special Exception under 12.102. E, to acquire PNC Status
for a side yard encroachment for 4222 Oberlin St. Houston, TX 77005 as defined
in Table 7.2 in Article 7 of the city's zoning ordinance --Yards or Setbacks which
requires a 5 foot setback for the side yard.
During the course of the sale of our home, Meridian Survey Mapping, at the
direction of the title company, provided a survey (Exhibit 3,dated 4-7-09) and
after discussion with the original survey company, provided a second and revised
survey (Exhibit 4, dated 4-16-09). The first survey was measured to the stucco
wall and did not take into account at least one iron rod at the rear of the house,
as a basis, and appears erroneous. It showed the stucco protruding on the West
side of the house between .4 and.3 feet and not at all on the East side of the
house.
The second and revised Meridian survey showed the measurements to the
foundation to be correct with the required five foot setback confirming the two
original surveys that the builder obtained for permitting purposes (Wood Form
Survey, Exhibit 1, dated 2-6-06 and then a final survey, Exhibit 2, dated 11-22-
06). While the second and revised Meridian survey shows the home in the same
position, the first Meridian survey, none the less, brings up the concern that the
stucco does protrude into the five foot building line (although by less than two
inches on both sides of the building based upon visual inspection and casual
measurement (please reference attached photos).
While the original Meridian survey results do not constitute an encroachment
based on the city of West University Place customary setback measurements,
which is from the foundation and not the wall surface of the stucco (per Exhibit 6
John Brown's attached letter of 4-21-09), the fact remains that it does protrude
into the five foot building line and is not scheduled as an allowed projection in
Table 7-6, Article 7 which allows for certain projections such as eaves, chimneys,
bay windows, etc. The side wall of the residence falls under the part of Table 7-6
that identifies the maximum allowed projection as "0". This was interpreted by the
buyer's attorney as an encroachment and prevented the sale of our home.
To resolve this confusion, we have been advised by John Brown, after extensive
conversation with the City Attorney, Alan Petrov, to request a Special Exception
for PNC Status for a Side Yard Encroachment (Exhibit 9 Mr. Brown's attached
email of 4-29-09).
Div
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
N OU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION
FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC
RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE
NUBMER.
i
r WARRANTY DEED WITH VENDOR'S LIEN
(Vendor's Lien Reserved and Assigned to Third Party Lender)
THE STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF Harris
f
THAT THE UNDERSIGNED, Churc .ill Homes live ,P
hereinafter called "Grantor," whether one or more, for and in consideration of the sum of TEN
DOLLARS ($10.00) and other valuable consideration to the undersigned in hand paid by the Grantee
herein named, the receipt of which is hereby acknowledged, and the further consideration of the execution
and deliverv by the Grantee of that one certain promissory note of even date herewith in the principal sum
of S 6ol 70o and 200,000 , pavable to the order ofTayior, Bean & Whitaker Mortgage Corp.
as therein specified, providing for acceleration of maturity and for attorney's fees, the payment of which
note is secured by the vendor's lien herein retained. and is additionallv secured by a deed of trust of even
l date herewith to Tommy Bastian, Barrett Burke Wilson Castle Daffin & Frappier, L.L.P.
TRUSTEE, has GRANTED, SOLD AND CONVEYED. and by these presents does GRANT, SELL
AND CONVEY unto Philip Bres and Janet Bres Husband and Wife, As Community Property
herein referred to as the "Grantee," whether one or more, the real property described on attached Exhibit
:<A
i
TO HAVE AND TO HOLD the above described premises. together with all and singular the rights and
appurtenances thereto in anywise belonging, unto the said Grantee, Grantee's heirs. executors,
administrators. successors and/or assigns forever, and Grantor does hereby bind Grantor, Grantor's heirs.
executors, administrators, successors and/or assigns to WARRANT AND FOREVER DEFEND all and
singular the said premises unto the said Grantee. Grantee's heirs, executors, administrators, successors
and/or assigns, against every person whomsoever claiming or to claim the same or any part thereof.
But it is expressly agreed that the Vendor's Lien. as well as Superior Title in and to the above described
premises, is retained against u e above descnbcd property, pre ,;tses and l:nprovenlents until the above
described note and all interest thereon are fully paid according to the face. tenor, effect and reading
thereof when this Deed shall become absolute. Taylor, Bean & Whitaker Mortgage Corp.
("Lender"), at the instance and request of the Grantee herein, having advanced and paid in cash to the
Grantor licrcin that portion of the purchase price of the licrcin described propcit}' as is evidenced by the
hereinabove described Note. the Vendor's Lien, together with the Superior Title to said property; is
retained herein for the benefit of said Lender and the same are hereby TRANSFERRED AND
ASSIGNED to said Lender- its successors and assigns.
/4
A'
C0564L 1
Paue 1 of 2
Current ad valorem taxes on the property having been prorated, the payment thereof is assumed by
Grantee.
yL Fj l
it LTED this day of
y
Grantee's Address:
4222 Oberlin Street
Houston TX 77005
THE STATE OF TEXAS §
COUNTY OF Harris §
The fore trument was acknowledged before n this the day of
22.7 by
- 7
of ' a Texas corporatio o4be alf of d co oration.
NOTARY PUBLIC, STATE OF TEXAS
z
PRINTED NAME OF NOTARY
MY COMMISSION EXPIRES:_
FILED FOR RECORD
8:00 AM
JUN 12 2007
THE STATE OF TEXAS q
§ County Clerk,~ Harris County, Texas
COUNTY OF §
The foregoing instrument was acknowledged before me on this the day of
by
NOTARY PUBLIC. STATE OF TEXAS
PRINTED NAME OF NOTARY
MY COMMISSION EXPIRES:
00564
Page 2 of 2
Lot Seven (7), in Block Eight (8), of COLONIAL TERRACE, at! addition in Harris County, Texas,
according to the map or plat thereof recorded in Vclume 655, Page 293 of the Deed Records
of Harris County, Texas
taw WNd+s of 9 LE "jL f2 USE of M pESGtIBEE REu
BELI E EC OA pR RACE V$ 00 AND UNFpRCEABa UNDER iE0ERF1 UW.
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COUNTY OF pwj was FILED u+r~e
hereon REC~p. In Cie
and at tl>e stamped DY "T8. ~ dou nty Texas on
dad
Official Pubhc Records d Real Properly of Harris Cou
i u N 12 2007
o~`y<
?O COUNTY CLERK
a * HARRISCOUNTY. TEXAS
PROBSTFELD ASSOCIATES
PROFESSIONAL LAND SURVEYORS
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PLAT 01- PROPFJ TY FOR:
Churchill Homes
at 4222 Oberlin Street I hereby certily that the above
City of West University Place Tx plot correctly represents the S OF
Lot T Block_ 8 facts found at the time of the q~,P+_r.GIS TER
-Colonial Terrace survey made on the ground .••I„F„'•„ 't
WEIRS 1. PAOB3ALID
Volume 855, Pege 203 of the Lap Records of under my wpenvision, and • •t»••••••••••••-•`••7••
Herds County, Texas there we no opporent 4086
2/6/06 !'.,OF o`,M1.re
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Zane X Date. 9 20 00
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IJBUBIECTTOMPLIU9LEFBSTRICTIVF CL rMiS ED iN Mw. I. SCHEDULE B aF TITLE COI-TNENr
ISSUED By BTBwART TIRE CONPANy UNL OF 1bIS11mT.IR
I) SURVEYOR HAB NOT ABSTRACTEO SILWEL .$-STING By TALE COMPANY ONLY. THERE MAY BE
RIONK EASEMENTS, BUILDING LINES A, NTTFJLB OF RECORD NOT SHOWN HEREON.
I.)"":CIT TO S'URLILI- EASEMENT ALONG RIB ,OPERrv LINE REw vL.Z BEB. PAGEB mO AND mr. NOD',
sU6JECT TO UTTY EASEMENT KONG RE , LINE PEA VOLUME 60p. PARE iA HCOFI
s) SUBrECT TO ALL BUILDING SET BACA LINES fE:. 11. NOON
6 )BUILDING DIMENSIONS- HEREON WERE Mi _p AT THE FDLNpATION
If CONSTRUCTION UPON ON ADIVISION Of B-1
CT IS PgOPOBEp AND If TRACT LIES IN THE CITY Of
-ST. OR ITS..-TERRNORw I-SOICi„ ,TNG AM OTHER PEWwEMENTS MAY -y PEq CITv
ALBEMIHGS-- RE BASED ON THE RECpL. .AT SCALE: Il0
SUBJECT RNORERTY L FED IN 1 R. K IN.U E AuuIMISTRAfION DESIONATEO ROOD _ -
NA3.1R0 AREA lOCA1ED IN :L, 6'G ; ROt J4R N20rCWSSL OATFD: a/iB/0].
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6L~ SEC71PlE BE~ilytl 1 1' i
6 - VOLUME 855• PALE 235, N.C.O."L
E~NN>-E SIA7I MFR
RFSlKTS TS CE1f11FY TIMT TMCi RAT REPRESEMIS THE \ 4 _,IY i
ws TCMIS Gf A SIJR.EY 1MDE ON THE G110U11D ON /I
THE 3rtl pAY l NIL 2aN- Ate/
LENDER Co. - `u
TTRF Co. SfESf MIRE COYiAMY "S ti,.~F lF ~AV'n .
PURC1Y " JIM CIURTDRO l~ rQ,~°L ylFgEOfN"
JO9 No. DY-30750
VIROINM mwoRD . I RI A ICI N.- . G.F. NO. 09112679
>A CH ry)
ADDRESS e3J2 OpCRUN mm ~ 5-... VVV
\1, ~,g 25.'•Q 91E1D WORK a/05/a oN
HOUSTON TEKA:
9.(. O: E901O,r•+0, DRAf'MED BY 0410I1OY VJ
5 U PV E CHECKED 9T 01/07/M RJ
KEY YAP SSH
1010 N. SW IIOITg1 NGrt. N, >rE t1J REVISION 0!/16/09
HOU910K ICKAf TW t_~`
O,H101T- If
Pa<oe 1 of 1
Phil Bres
From: John Brown Ubrown@westu.org]
Sent: Friday, April 17, 2009 4:12 PM
To: philbres@att.net
Cc: Chris Peifer
Subject: Interpretation of setback measurements.
Phil,
I spoke the city Attorney, Alan Petrov just now and he agrees with my interpretation of the setback
measurement being to or from the foundation. When he responds to me in writing I will officially provide you
with a letter stating this. I hope this will help your situation and I am sorry you have had to go through is. Have a
Blessed Weekend.
John R. Brown, MCP, CFM
Chief Building Official
713-662-5830
Fax-713-662-5304
jbrown@westu.org
4/30/2009
EX I+ 1 J3 i T
The City of West University Place
A Neighborhood City
April 21, 2009
Philip Bres
4222 Oberlin
Houston, Texas 77005
Re; Survey dated April 7, 2009 by Meridian Surveying & Mapping for 4222 Oberlin, West
University Place
Dear Mr. Bres
This letter is to inform you the measurement showing an encroachment on the side
building lines by the survey listed above does not constitute an encroachment based on the city
of West University Place customary setback measurements, which is from the foundation, not
the wall surface of the stucco. It met the city requirements back in 2006 and would meet them
today thus it received a certificate of occupancy accordingly.
While a literal reading of the Zoning code prohibits the encroachment of any part of a
structure into the set-backs, the reality is that the City has developed a course of practice with
respect to determining compliance of stucco structures with the set-backs and this course of
practice has been not to treat the stucco exterior of a house as an encroachment.
S il~er~y
Jdhn R. Brown, MCP, CFM
Chief Building Official
Cc. Chris Peifer, Asst. City Manager/Dir. Public Works
Debbie Scarcella, City Planner
Alan Petrov, Attorney
3800 University Boulevard • West University Place, Texas 77005 713.668.4441
Exif t4 t L
Paue I of 1
Phil Bres
From: Jim Brissee Ubrissee@wba-law.com]
Sent: Thursday, April 23, 2009 7:18 PM
To: PHILBRES@ATT.NET
Cc: virginia.k.crawford@exxonmobil.com; crawj1@cox.net; ccagle@marthaturner.com;
walter@walteraymen.com
Subject: Contract for 4222 Oberlin
Importance: High
Attachments: 20090423191621137.pdf
Mr. and Ms. Bres,
This law firm represents Jim and Virginia Crawford. Please see attached letter.
Jim D. Brissee
Williams, Birnberg and Andersen, L.L.P.
2000 Bering Drive, Suite 909
Houston, Texas 77057
Tel. 713-981-9595
Dir. 713-255-5353
Fax 713-981-8670
This transmission (including any attachments) is intended only for the use of the named addressee(s), and may contain
information that is confidential, privileged or exempt from disclosure under applicable law. If you are not a named
addressee, you are hereby notified that any use, dissemination, distribution, or copying of this transmission is strictly
prohibited. If you have received this transmission in error, please immediately delete the same, destroy all copies, and
notify the sender at Williams, Birnberg & Andersen, LLP, by telephone at (713) 981-9595 and by reply to this email. Thank
you.
4/28/2009 CXl-fla( F 7
WILT-,AMS, BIRNBERG & ANDERSEN, L.L.P.
PARTNERS: ATTORNEYS AT LAW FRED HOFHEIN7_
HERRFRT L. WILLIAMS
! OF COUNSEL
cf 'A. BIRNBERG
THOMAS B. ANDFRSFN 7000 BERING DRIVE JON E. KING
JOHN C. GRECO SUITE 909 Or COUNSEL
HOUSTON, TE\As 77057-3746
Loo W. BURTON TELEPHONE (713) 981-9595
JIM D. BRISSFT TELECOPIER (713) 981-8670
E-MAIL: wba@wba-law.com
www.wba-law.com
ASSOCIATES:
MICHAEL H. LASTER
BRAD C. BEDWELL
DAWN A. GuILLIAMS
REBECCA M. MOUGHON
April 23, 2009
Philip Bres Via email PHILBRES a ATT NET
Janet Bres °
4222 Oberlin
Houston, Texas 77005
Re: One to Four Family Contract between Philip and Janet Bres ("Sellers") and Jim and
Virginia Crawford ("Buyers") for purchase and sale of 4222 Oberlin, Houston,
Texas; GF No. 09112679
Dear Mr. and Ms. Bres:
This law firm represents Jim and Virginia Crawford in connection with the referenced
contract. The Crawfords have asked this firm to evaluate your efforts to cure the encroachment of
the residence at 4222 Oberlin over the west side set back line.
The side set back line requires a minimum distance of five feet between the property line and
the structure. It is established by both the zoning ordinances of the City of West University Place
and the Declaration recorded in Volume 800, Page 74 of the Deed Records of Harris County, Texas.
While the West University Place zoning ordinance allows for the projection of roof eaves and other
parts of a residential structure into the side yard, it does not allow the structure itself to encroach into
the side yard. The same is true for the Declaration.
Your efforts to cure the encroachment have consisted of obtaining a letter from John R.
Brown, Chief Building Official from the City of West University Place and providing a copy of a
certificate of occupancy issued by the city to Churchill Homes. Additionally, your agent instructed
the surveyor, Mr. Jordan, to revise the original April 7, 2009, survey to use measurements based on
the foundation of the residence, rather than its exterior wall.
Mr. Brown's letter, although written by a city employee, does not bind the City of West
University Place. Only a variance issued under the terms of the city's zoning ordinance could do
that. The certificate of occupancy, on the very face of the document, clearly states that it only
authorizes Churchill Homes' use of the residence and, more importantly, in extraordinarily clear
language, states that it does not grant any property right, may be revoked, is not a representation that
the residence conforms to city ordinances, and does not waive the violation of any city ordinances.
Xhtlrs rr ~6
Philip Bres
Janet Bres
> , '1009
Page 2
The revised survey does not change the fact that there is an encroachment of the residence
JIWi ate side yard. (Mr. Jordan confirmed the encroachment to my clients and explained that was
why he added Note 6 to the revised survey.) Neither the zoning ordinance nor the Declaration
indicates it is permissible to measure from the concrete slab foundation to the side boundary line.
Table 7-6 in Article 7 of the city's zoning ordinance clearly identifies certain allowed projections,
such as eaves, chimneys, bay windows, etc. The side wall of the residence falls under that part of
Table 7-6 that identifies the maximum allowed projection as "0." In other words, there is no
tolerance allowed for the projection of the side wall into the side yard and the structure violates both
the zoning ordinance and the Declaration.
Thus, despite your efforts, I have no choice but to advise my clients that the encroachment
has not been cured.
White the contract allows my clients to waive the encroachment and proceed with closing,
I have advised my clients not to do so. There is a substantial likelihood that my clients will relocate
from Houston in the not too distant future. In deciding whether to purchase a new residence, they
must consider the difficulty they may face when selling that residence. While your efforts are
appreciated, they have not resolved the problem.
As a result, please take note of the last sentence of Paragraph 6D of the contract. Under that
provision the contract terminates automatically and the earnest money is to be refunded to the buyer.
Assuming the encroachment is not cured within the time allowed by the contract, please contact
Stewart Title and arrange for the release of the earnest money to my clients.
Sincerely,
WILLIAM IRNBERG & ANDERSEN, L.L.P.
By:
Jim ssee
cc: Jim Crawford via email vir inia.k.cra rd a, xxonmobile.eom
Virginia Crawford
Cathy Cagle via email ecagleAmarthaturner.com
Walter Aymen via email walter{a4alteraymen.com
F:\W PUdb\M isc-R E\Crawford\Bres-itr-0l .wpd
Pa~-,e I of I
^hil Bres
From: John Brown bbrown@westu.org]
Sent: Friday, April 24, 2009 1:50 PM
0: philbres@att.net
Subject: 4222 Oberlin
Mr. Bres.
In discussing your situation with the city attorney he feels you may just want to apply for a special
exception as outlined below.
The packet you picked up has the special exception contained in it.
Remember you MUST return the application before noon on Friday,-May 1, 2009.
ARTICLE 12. PRIOR NONCONFORMITIES
Section 12-102. Acquiring PNC status.
e) Certain yard encroachments . A structure located in a yard (or "setback" area) in apparent violation
of Table 7-2 acquires PNC status if the ZBA issues a special exception granting PNC status. The ZBA
may only issue such a special exception if it makes all of the following special findings: (i) The
encroachment was inadvertent and neither misrepresented to the City nor hidden from City officials.
Exception: This finding is not required if the encroachment commenced before 1970. (ii) The
encroachment will not cause a substantial adverse effect on other persons. (iii) The encroachment does
not create a significant health or safety risk.
John R. Brown, MCP, CFM
Chief Building Official
713-662-5830
Fax-713-662-5304
jbrown@westu.org
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City of West University Place
.A Neighborhood City
Recycled Paper
NOTICE OF ZONING BOARD OF ADJUSTMENT HEARING
The Zoning Board of Adjustment ("ZBA") of the City of West University Place, Texas ("City") will
hold a public hearing in the Bill Watson Conference Room of the Municipal Building, 3800
University Boulevard, City of West University Place, Texas 77005, during a meeting set to begin at
6:30 P.M. on May 21, 2009. The hearing may be recessed and continued to a ZBA meeting set to
begin at 6:30 P.M. on June 18, 2009. The purpose of the hearing is to provide an opportunity for all
persons to be heard in relation to the following matter:
Address of the site: 4222 Oberlin, West University Place, Texas 77005
Legal description of the site: Lot seven (7), in block eight (8) of Colonial Terrace, an addition in
Harris County, Texas according to the map or plat thereof recorded in volume 655, Page 293 of the
deed records of Harris County, Texas.
Docket No.: 2009-04 Applicant: Philip Bres
Action Requested: Applicant requests a special exception per Article 7, Table 7-2: Yards (or
setbacks', Appendix A of the Code of Ordinances, to acquire PNC status for a side yard
encroachment. The special exception request is to allow an encroachment of 4.7 feet and 4.6 feet
instead of the required 5 feet.
Applicable regulations include the City's Zoning Ordinance, Chapter 211 of the Texas Local Government Code and
the rules of the ZBA. Additional details on such matters, as well as, the applicable regulations are available for
public inspection in the Public Works Center, 3826 Amherst, West University Place, 77005. Any person interested
in such matters should attend the hearings.
If you plan to attend this public meeting and you have a disability that requires special arrangements at the
meeting, please contact the Planning & DevelopmentAssistant at 713.662.5843 in advance ofthe meeting.
Reasonable accommodations will be made to assist your participation in the meeting. The Municipal
Building is wheel chair accessible from the west entrance and specially marked parking spaces are
available in tl outhwest parking area.
Signed: , for the ZBA 5-11-2009.
Sallye A. Cla Planning Assistant.
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