HomeMy WebLinkAbout10152009 ZBA Agenda Item 2
Memo
To: Zoning Board of Adjustments
From: Debbie Scarcella, City Planner
Date: August 17, 2009
Re: Staff Report for Docket 09-09
The applicant in Docket 09-09, 3415 Amherst Street, is requesting a special exception under Article 12,
Section 12-102 (e) of the zoning regulations to acquire PNC status for a potential side yard
encroachment.
Background Information
The new house located at 3415 Amherst Street is covered by a building permit issued in 2008 and an
occupancy certificate issued in February 2009. 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 exhibits). At each phase of
construction, these documents were checked for compliance. The documents indicate that the side
yard setbacks complied with the yard (setback) regulations (Table 7-2 of the Zoning Ordinance), in
that the side yards were at least five feet each side.
In 2009, the adjoining property owner (3419 Amherst Street) had a property survey done. The survey
commissioned by the adjoining property owner disputed the applicant's survey as to the location of the
east property line and indicated that there was an encroachment of the new house into the eastern side
yard. After several rounds of discussion with the adjoining property owner, and after a loss of a
potential sale of the new house, the applicant had a survey done by a third party, who verified the
applicant's prior survey and indicated no encroachment into the side yard Apparently, the third-party
survey did not resolve the dispute. The Chief Building Official suspended the occupancy certificate
and a final survey was annotated to reflect the possible encroachment. The applicant, in order to
prepare for an eventual sale of the house, decided to apply for the special exception because the
comments of the adjoining property owner were having "a serious adverse effect" on the possible sale
of the house.
It appears that the applicant seeks an "if needed" special exception---it would only apply if an eventual
resolution of the boundary dispute indicates the new house encroaches into the eastern side yard.
(Note: It is possible that a resolution of the boundary dispute could also affect the overall dimensions
of the building site, which could require the owner to seek additional relief from the Board.)
3415 Amherst St Page 1 8-17-09
Staff Response Meeting August 20, 2009
The applicant does not believe that the original surveys were wrong in establishing the location of the
property boundary. The third-party survey also confirmed the property boundary location. The
adjoining property owner is just as adamant about the disputed location of the property boundary as
indicated by the new pin placed by the surveyor.
The correct location of the property boundary is not an issue that the ZBA has the authority to decide.
This issue must be resolved between the two parties (or by the courts). However, staff does believe that
any side yard encroachment resulting from a resolution of the boundary dispute is within ZBA's
authority to resolve. If the property boundary is adjusted per the adjoining property owner's survey, the
new house would not comply with the minimum five-foot side yard rule (Table 7-2 of the Zoning
Ordinance). There would be an encroachment of 2.4 inches at the front corner of the house, and 9.6
inches at the rear corner of the house.
Additional Information September 17, 2009 Meeting
The Zoning Board of Adjustment deferred the deliberations of this docket item to the September 17,
2009 meeting to give the applicant and adjoining property owner opportunity to discuss possible
resolution to the discrepancy in the location of the shared property line. The applicant has submitted an
update which indicates that the two parties have agreed to the location of the property line. The
applicant concedes that the property width at the rear of the lot is less than 47.50 feet.
Staff believes that the ZBA has generally the authority to issue the requested special exception as
provided for in Section 12-102(e) of the Zoning Ordinance. The ZBA may only issue such a special
exception if the applicant demonstrates all of the following:
(i) 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.
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 [the Zoning Ordinance];
(iii) The ZBA has made any additional findings and determinations required by a specific provision
of [the Zoning Ordinance], and
(iv) The special exception has been reduced to writing and includes any conditions prescribed by
the ZBA or required by [the Zoning Ordinance] for the special exception in question.
3415 Amherst St Page 2 8-17-09
If the Board issues the special exception, staff recommends adding special wording to make it clear
that: (i) the special exception would only apply if the boundary dispute is resolved to indicate that the
new house encroaches into the eastern side yard and; and (ii) the special exception would not cover
any changes in the overall dimensions of the building site.
3415 Amherst St Page 2 8-17-09
BARDWELL BUILDING COMPANY
3019 Ferndale
Houston, Texas 77098
(713)520-0421
(713)520-5037 - fax
waynebardwelIAcomcast.net
September 7, 2009
TO: WEST UNIVERSITY PLACE ZONING BOARD OF ADJUSTMENTS
RE: 3415 AMHERST
We have new evidence to indicate that the survey by B & B Surveying (Shields' survey) is
accurate. We have been in communication with Mr. Shields and have agreed that the boundary
line between our properties is where B & B indicated.
We have recently discovered that the width of our lot is only based on the two front pins. This is
the width that that is used to determine the building site. Per the plans and documents, this is the
measurement we used. It has come to our attention that on the LaPlante Survey (Westerfield) the
number 46.81 beside the directional notes is actually the width he found for the rear of the lot.
He called it 47.50. Therefore, we are not asking for the lot to be reduced in size.
It is our intention to sell the property using the metes and bounds survey with this dimension
(46.81) in the rear. We are only asking West U. to grant a special exception for the side set back
on the east side.
Thank you for your consideration.
Wayne Bardwell
I
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: (1) 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 hi) 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:
(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 rernodelin;; substantially in
5upp. 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 SPR
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
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 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 August 20, 2009. The hearing may be recessed and continued to a ZBA meeting set to begin at
6:30 P.M. on September 17, 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: 3415 Amherst Street, West University Place, Texas 77005
Legal description of the site: The West 47.50 feet of Lot (2), in block Forty-six (46) of
Second Addition to West University Place, an addition in
Harris County, Texas, according to the map or plat thereof
recorded in Volume 538. Page 147; Deed Records of Harris
County, Texas.
Docket No.: 2009-09
Applicant: Bardwell Building Company
Action Requested: Applicant requests a Special Exception to acquire PNC status
for a side yard encroachment of 2.4 inches at the front corner
of the house and 9.6 inches at the rear corner of the house.
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 & Development Assistant at
713.662.5843 in advance of the 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 the southwest parking area.
1 ~
Signed: or the ZBA 8-7-2009.
Sallye A. Clap J, Planning Assistant.
=800 1 ni~er~ity ROu1cvaYd • Nest I niversity Place, Texas x/oo5-2899 0 13.668*4441 • ,,vww.uIestu.org
BARDWELL BUILDING CO, THE LODEN MORRIS R MR WOODCOX JOSEPH D & KRISTEN
PO BOX 272587
3019 FERNDALE ST 3421 AMHERST ST HOUSTON TX 77277-2587
HOUSTON TX 77098-2007 HOUSTON TX 77005-3335 RE: 3419 AMHERST
SHIELDS JAMES ALBERT WISE SCOTT W SOBIESK PAUL & KELLEY
3409 AMHERST ST 3405 AMHERST ST 3402 AMHERST ST
HOUSTON TX 77005-3335 HOUSTON TX 77005-3335 HOUSTON TX 77005-3336
WILLIAMSON JIMMY HILL THOMAS A & SUZANNE OYER JAMES W & PATRICIA V
6624 VANDERBILT ST 3418 AMHERST ST 3410 AMHERST ST
HOUSTON TX 77005-3825 HOUSTON TX 77005-3336 HOUSTON TX 77005-3336
RE: 3406 AMHERST
HWANG LONG S & JOYCE C GLASSE BETTY J RANKIN ROGER N & NOEL
3424 AMHERST ST 3501 AMHERST ST 3502 AMHERST ST
HOUSTON TX 77005-3336 HOUSTON TX 77005-3337 HOUSTON TX 77005-3338
NEWMAN MICHAEL & DEBORAH MC ENANY MICHAEL TAYLOR ADDISON A & JUDY
3424 UNIVERSITY BLVD 3428 UNIVERSITY BLVD 3504 UNIVERSITY BLVD
HOUSTON TX 77005-3356 HOUSTON TX 77005-3356 HOUSTON TX 77005-3358
PEAKES ADAM & WAVERLY DORENFELD DAVID L & JOANNE VILLARS THERESA DUBREUIL
3412 UNIVERSITY BLVD 3408 UNIVERSITY BLVD 3402 UNIVERSITY BLVD
HOUSTON TX 77005-3356 HOUSTON TX 77005-3356 HOUSTON TX 77005-3356