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HomeMy WebLinkAbout032811R CC Min0 The City A Neighborhood City CITY COUNCIL Bob Kelly, Mayor Bob Fry, Councilmember George Boehme, Councilmember Steven Segal, Councilmember Chuck Guffey, Councilmember of West University Place STAFF Michael Ross, City Manager Alan Petrov, City Attorney Thelma Lenz, City Secretary CITY COUNCIL MEETING MINUTES The City Council of the City of West University Place, Texas, met in regular session on Monday, March 28, 2011, in the Municipal Building, 3800 University Boulevard, West University Place, Texas beginning at 6:30 p.m. Mayor Kelly called the meeting to order at 6:30 p.m. All members of Council were present. City Manager Ross, City Secretary Lenz, City Attorney Petrov, ACM/Public Works Director Peifer, Police Chief Walker, and Chief Building Official Brown were also present. Councilmember Segal led the Pledge of Allegiance and Pledge to the Texas Flag. City Secretary Lenz confirmed that the Notice of the special and regular meetings was duly posted in accordance with the Texas Government Code, Chapter 551. Agenda items were as follows: Mayor Kelly 1. Public Comments Les Albin, Steve Brown, and Bryant Slimp signed up to speak regarding basements. They all spoke during the discussion of that item. 2. Excellence in Facility Design Awards Recognition will be given to the City's Parks and Recreation staff, Parks Board, and to members of the community for their efforts that resulted in the City receiving excellence in facility design awards from the Texas Recreation and Parks Society and the National Recreation and Parks Association for the Recreation Center and Colonial Park Pool. Mayor Pro Tem Fry presented and recognized all involved in the project, specifically the Parks Board, Friends of West U Parks, Parks and Recreation staff, and the Lewis Family Charitable Foundation. He said the success of this project will be enjoyed by citizens for many years to come thanks to the farsighted vision and dedication to our community of those he named and well as to the many others. 3. Volunteer Month Proclamation Matters related to proclaiming the month of April "National Volunteer Month" in the City of West University Place. City Council Minutes, March 28, 2011 Mayor Kelly proclaimed the month of April as "National Volunteer Month". Dorothy Zink, a member of the Good Neighbors team, accepted the proclamation on behalf of the City's volunteers. 4. Arbor Day Proclamation Matters related to proclaiming April 2, 2011 "Arbor Day" in the City of West University Place, Texas. Mayor Kelly proclaimed April 2, 2011 "Arbor Day' in the City. Urban Forester Craig Koehl accepted the proclamation and reminded everyone that Arbor Day will be held from 9:00 a.m. to 11:00 a.m. in Weir Park. 5. Basements Matters related to an ordinance amending Chapter 18 of the City of West University Place City Code of Ordinances regarding basements. Mayor Kelly called Zoning and Planning Commission (ZPC) Chair Steve Brown and Building and Standards Commission (BSC) Chair Bryant Slimp to the podium. Mayor Kelly said he asked Mr. Brown and Mr. Slimp to attend tonight because he was surprised by the vote at the last meeting. Mayor Kelly said this is perhaps one of the most significant issues that has faced this City since he became mayor, because at the fundamental core of this issue is the relationship of property rights versus zoning. He said he has contended all along that the hallmark of this City is zoning, which separates us from those cities that don't have it. Mayor Kelly said we have heard from the two Commissions, three structural engineers, and from resident Larry Pirtle that this is a bad idea, but he thinks it is important to find out why it's a bad idea. Mayor Kelly confirmed with Mr. Brown and Mr. Slimp that the majority recommendation of both Commissions is that there should be an outright prohibition on the construction of basements in West U and it's the recommendations of the structural engineers that, though you can construct basements in West U, it's crazy to do so. In response to Mayor Kelly's question as to how long the Commissions had been working on this, Mr. Brown responded that in the summer of 2008, City Planner Scarcella brought to the ZPC's attention that there were three applications for building permits that included basements and it was realized at that time that our Code provides no provision or control for basements. He said so the issue became that we need to do something and two and a half years later it's still an issue. Mr. Brown said there are two choices - prohibit basements or allow basements with established rules to protect neighbors, the community, and the life and safety of the residents living in homes with basements. Mr. Brown confirmed with Mayor Kelly that the first time a recommendation to prohibit basements was brought to Council was two meetings ago and the outright prohibition was voted down 3-1, with Mayor Kelly being absent. He said at that point, Chief Building Official (CBO) John Brown was asked to come forward with something similar to a draft he had put forward about 6 months before. Page 2 of 10 City Council Minutes, March 28, 2011 In response to Mayor Kelly's question to Mr. Brown as to what both Commission's positions were when the Building Official came to them and asked them to consider his recommendation, Mr. Brown said it was never brought to the ZPC and Mr. Slimp said the BSC still elected to vote for the prohibition. Mayor Kelly confirmed with Mr. Brown and Mr. Slimp that neither Commission has changed its position since the original recommendation. Mr. Brown added that what he is presenting tonight for the ZPC is the position it took back in February. He said he has no reason to think that those who voted would change their votes, but he doesn't really know. Mayor Kelly asked Mr. Brown and Mr. Slimp if the concerns within their groups are only with individual homeowners that would build basements. Mr. Slimp responded the BSC's primary concern is for the neighbors surrounding the property, especially after seeing the collapse of the walls on the Lake Street property, which compromised the neighbor's driveway and fence. Mayor Kelly asked Mr. Slimp if he sees the City as the insurer of the safety or construction of these buildings. Mr. Slimp said yes and no. He yes because the Commission is designed to make our regulations better, but on the other hand we can't be responsible for what a builder does or doesn't do as to regards to workmanship. Mayor Kelly gave some background for a property on Marlowe. He said this property was an example of what you would consider to be good rules and regulations regarding building a property in West University Place. He said everything seemed in compliant on its face, but when they got in there and really checked then the builder's permit was revoked. Councilmember Segal asked Mr. Slimp what was the BSC's vote was on the reconsideration of the proposal. Mr. Slimp replied the same - 4 to 1. Councilmember Boehme said he wanted to clear things up about the three structural engineers. He said they appeared on September 3, 2009, which was the prior BSC. He said the only current regular and/or alternate members on the BSC at that time was Mr. Slimp and Frank Griffin and the point he is trying to make is that there have never been three structural engineers at a BSC meeting with the current members. He also pointed out and confirmed with Mr. Brown that the Zoning and Planning Commission has never met with structural engineers. Mr. Brown responded by saying that the issue is more of a building and standards matter and so the ZPC never asked the structural engineers to meet with them. Mr. Boehme said one of the engineers was Lynn Ratcliffe and said Mr. Ratcliffe wrote him an email on March 3 and stated "as a practicing geotechnical engineer in the Houston area for nearly 40 years, there are no technical reasons for restricting the construction of basements in West U." Mr. Slimp noted that Mr. Ratcliffe continued on to say that it is a very, very crazy idea to it Councilmember Boehme said "no", Mr. Ratcliffe's position is that the City should be allowing basements and that the City is making a mistake by not allowing them. Mr. Brown said he disagrees with Mr. Boehme's interpretation when he states that the City is making a mistake. Councilmember Boehme said he talked with Mr. Ratcliffe several times and what he says in the email is that "requirements can be made sufficiently onerous if building a basement and will be Page 3 of 10 City Council Minutes, March 28, 2011 expensive and I would suspect that few request for basements would be made" He said what Mr. Ratcliffe is saying is that we should allow basements, but require the proper protections. Mr. Brown responded to Councilmember Boehme by saying "I'm not sure I would add the last part to the interpretation, but that's your interpretation." Councilmember Segal said he also spoke with Mr. Ratcliffe and he understood him to say that basements can be built, but it takes skilled people and really strict regulations. He said Mr. Ratcliffe never said to do it or don't do it. He said Mr. Ratcliffe also stated that the proposal in front of Council today is totally inadequate to protect us because there is nothing in this proposal that addresses the structural aspect. Mayor Kelly said he reviewed the July 26, 2010 Minutes and in those Minutes it states that ZPC Chair Steve Brown said "the ZPC always tries to balance private property interest with community interest" He asked Mr. Brown if he still feels that way. Mr. Brown responded that he always keeps that in mind and try to emphasize that in discussions within the ZPC. He said he thinks that's the key issue in zoning. Mayor Kelly said as with the Marlowe property, even if there was something in place that was followed to the 'Y' with good workmanship and good quality and people that knew what they were doing, etc., if one of those pieces misfires then you could have a structural problem. Councilmember Segal said he believes he has a slightly different understanding of Marlowe. He said there were two issues. One was that it was 47 1/2 foot property and not a fifty-foot property, which affect the build out space and the second is that the 2 1/2 floor rule was allegedly submitted properly, but built out differently. He said the owner and the builder were apparently building a third floor and so he thinks that was the issue they lost on in court and forced the settlement. City Manager Ross reminded Council that he forwarded to them an email from CBO Brown that demonstrates how staff would have the tools to be able to enforce the regulations as it will fold in with the foundation criteria already in place. Councilmember Guffey said he can't see where there is any concern outside the homeowner with problems concerning a basement and feels we should allow people to do it. He said he thinks soon there will be a demand for them. Councilmember Guffey said he spoke with Michael Talianchich, a degreed structural engineer and former councilmember, who said we could structurally build a basement which would not collapse and would not affect anything around it, particularly if it's in the middle of the building. Mr. Talianchich said it could be waterproofed, but in the event it does leak, it can be repaired. Councilmember Guffey said it's Council's job to weigh the pros and cons. He said he feels the Commissions are taking the conservative approach by saying "no basements" to avoid any and all problems. He said there are going to be problems with everything (i.e. foundations and roofs) and it's not Council's job to protect a buyer and builder from what he wants to put in a house. Councilmember Guffey said this is a perfect example of a situation where there are good intentions on both sides. Mayor Kelly called Les Albin to the podium to speak Page 4 of 10 City Council Minutes, March 28, 2011 Les Albin, resident at 3817 Southwestern, mechanical engineer, and a builder since 1987, came forward and said he has built two full basements in Houston and is probably one of only a few builders who has actually done that. He said he has also been a member of the ZPC, BSC, and Zoning Board of Adjustment. Mr. Albin demonstrated the process of constructing a basement on a flip chart to show how things could go wrong during and after construction. Councilmember Guffey said he thinks Mr. Albin's demonstration concerns full basements and he believes that in constructing a small basement, as being proposed in the ordinance, it could include just a concrete box that could be dropped in the ground. He also said he hears everything Mr. Albin's is saying but thinks that Mr. Albin is neglecting the fact that the basement will be in the middle of the house and so there will not be any water draining down the sides of the basement. Mr. Albin said he thinks Councilmember Guffey is mistaken and said he wouldn't try that approach at all. Councilmember Guffey said he just doesn't think that all the problems Mr. Albin's is speculating will happen with the smaller size basements being proposed. Mr. Albin said the same techniques have to be used regardless of the size of the basement being constructed. Councilmember Guffey said he disagrees. Mayor Kelly asked Mr. Albins if there are people in the area that know how to construct residential basements well if they follow the rules. Mr. Albins said there are people that will do the best they can, but there is not a community of contractors who are familiar with this kind of work that would likely result in a successful basement. Councilmember Boehme asked Mr. Albins if he disagrees with the synopsis produced by the BSC or the staff, which states that basements can be designed to structurally function. Mr. Albins said a basement can be designed and built, but the chances of having problems are very high. Mayor Kelly asked Mr. Albins, as a builder, if problems with basements could affect the market value of not only the home that has the problem basement but other homes in the West U area. Mr. Albins responded that anytime you have a problem with a home, it affects the market value of the house, as well as others in the community, if financing is involved. Mayor Kelly read excerpts from Article I, Sections 101 and 102, of the City's Zoning Ordinance and he said to him it seems to be controversy to the Zoning rules in general to create situations that could affect the relative value of property in West University. Mayor Kelly called CBO Brown to the podium. Relative to an email CBO Brown sent to Assistant City Manager/ Public Works Director Peifer, which states "per our conversation, I feel confident with the current City ordinances and the authority offered me as the Chief Building Official from the International Code Council to ensure basements are constructed safely," Mayor Kelly said he knows from other examples (i.e. streetlights project) that we do not want, as a City, to take a position ensuring the safety of anybody with these basements. He said he is somewhat amazed that the City Manager would approve, and the City Official would write, that the City is going to ensure these basements. Page 5 of 10 City Council Minutes, March 28, 2011 Councilmember Segal pointed out that the word is "ensure" not "insure" City Manager Ross stated that the CBO is responsible for seeing that everything is built safely in accordance with the International Building Code. Mayor Kelly said he has trouble with the word "ensure," because the City is not ensuring or insuring that the thing will be built right. Mayor Kelly asked CBO Brown if he agreed with anything Mr. Albins said. Mr. Brown said all those problems pointed out by Mr. Albins are potential problems. Councilmember Boehme asked CBO Brown how we could keep potential problems from being problems. CBO Brown said there is nothing definite in anything when it comes to building. CBO Brown said when we get to the point of issuing a Certificate of Occupancy, the general verbiage of that is that "at the time of issuance, it was in substantial compliance to the Codes adopted by whatever City you're in." He said so it isn't 100 percent compliant and never can be. He said we don't see every nail, every screw, or electrical connection, etc., because it's just impossible to do that. He said all you can do is get the best qualified people for the job, look over their shoulder as often as you can to verify that they're doing what they said they would do, and hope that it all works together for the good. Councilmember Boehme asked CBO Brown if this ordinance that we passed on first reading had been in place could the basement on Lake Street been built. CBO Brown said no, not with the ordinance passed on first reading, because that is a full basement and the ordinance passed on first reading permits only a 200 square foot basement. Councilmember Segal asked if the basement on Lake Street was 200 square feet, could it have been built under our current rules. CBO said there is nothing in the local ordinance for zoning setback that requires anything below ground to be located underneath the thumbprint of the building; so, someone could build half of that 200 square feet outside the footprint underneath the ground and half of it inside; but, he thinks the overall design criteria is still to be engineered. Councilmember Segal rephrased the question and asked if the proposed ordinance is adopted to allow 200 square foot basements in the middle of the footprint, could CBO Brown ensure that they will be safely built or do we need additional engineering requirements. CBO Brown said he doesn't know about additional engineering requirements, because we have very good local amendments for engineering of foundations. Councilmember Segal asked CBO Brown if those cities, even if further north, that have had regulated basements for some time, do they have specific rules related to the construction of basements. CBO Brown said there are standard design criteria that apply to three or four counties in and around the Amarillo area, but there is not one design within that portfolio. Mayor Kelly asked CBO Brown if he went back to the BSC to see if they would change their mind about recommending this ordinance to allow basements with regulations. CBO Brown said the BSC asked him to write a document of what he thought would be a reasonable size basement that we could build safely, which he did. Mayor Kelly then confirmed that the BSC still did not change their recommendation after receiving and reviewing the document from CBO Brown. Page 6 of 10 City Council Minutes, March 28, 2011 Mayor Kelly asked CBO Brown if he found any fault with Les Albin's scenario construction techniques regarding basements. CBO Brown said the things Mr. Albin's listed that he was in the room to hear are true and all of those things were brought up during the meeting they had with the engineers, who also stated that we can build basements in West U, they just don't recommend it. Mayor Kelly stated that there hasn't been one citizen to come to a meeting to say that we should have basements in West University Place. He said he thinks it's because they have confidence in this Council and that they will do what they elected them to do. He said on the other hand, there has been at least one citizen to come in to speak in favor of banning basements. He said there are also 8-10 citizens on two separate Commissions that have spent two years on this who have said don't do it. Mayor Kelly said if this ordinance passes tonight on second reading, basements will be allowed. He said once we do this, where will it stop. Councilmember Boehme asked the City Manager if allowing basements would increase any costs to the City and/or all of its citizens either through either the type of flood insurance, liability insurance, or city ratings by carrier increases. City Manager Ross responded no, it won't because basements are allowed to be constructed today and what City Council is considering is actually restricting basements for the first time or prohibiting them all together. Councilmember Boehme asked CBO Brown if he's aware of any city in the United States that restricts basements. CBO Brown said no. Councilmember Boehme asked CBO Brown if he was aware of any ordinance regarding basements that is more prohibitive than the one we have passed on the first reading. CBO Brown said no. Councilmember Boehme asked staff if they are aware of the suggestion by ZPC Chair Brown for a change in the definition of location and, if so, are they comfortable with it. CBO Brown said yes he has read it and he is comfortable with it. Councilmember Segal said he wanted to clarify that there are no rules on basements at this time, only rules on foundations. CBO Brown said there are no local rules on basements, but the Building and Residential Codes cover basements to some degree. Councilmember Segal asked if the City adopted those Codes and CBO Brown said yes, we adopted them in 2006. Councilmember Segal said in the document where CBO Brown ensures that basements can be built safely, it states "where special conditions exist the building official is authorized to require additional construction documents to be prepared by a registered design professional" and asked if that was specified in the International Building Code to which CBO Brown responded yes. Councilmember Segal asked if there is a list of the additional construction documents required for basements. CBO Brown said it will because you get into weather-proofing, cast in place, etc., that we currently don't have to do and he confirmed that this is all listed in the Building Code. City Manager Ross asked CBO Brown if basements and foundations are synonymous. CBO Brown said they are as far as structural, but not as far as weatherproofing and waterproofing and those types of things. Page 7 of 10 City Council Minutes, March 28, 2011 Mayor Kelly said he has heard it said many times by several people at the Council table that the Commissions are our experts. He said we look at them to be our experts and do the time and spend the time to research things and come back to give us their opinions; so, he asked why do we want to go against our experts and set in motion something that we know is froth with problems and sit back and hope that all goes well. Councilmember Guffey asked ACM/Public Works Director Peifer if the City has had any problems with any of its below grade structures. Mr. Peifer said we have 12 lift stations of various sizes and he can't recall any structural problems with any of them. Councilmember Boehme said he doesn't want a basement or a swimming pool, but said he is not going to be against something just because he doesn't want it. He said he hasn't heard any evidence that this ordinance, under any conceivable scenario, can cause any risk to a surrounding property owner. Councilmember Boehme said he tried to find any city anywhere that prohibits basements and couldn't find any, including Corpus Christi, Surfside Beach, Galveston, New Orleans, Old Orchard Beach Maine, cities in South Carolina, cities in California, cities in Florida, etc. He said all of them allow full basements. Councilmember Boehme said currently we have absolutely no regulation at all regarding basements. He said Lake Street posed a situation that showed we needed some regulation. He said the ordinance here today passed on first reading clearly would have dealt with the Lake Street issue, but instead of identifying the problem and writing public policy to just fix that, we are going to go all the way from the being the least regulated to being the most regulated, best he can tell, city in the entire United States and he thinks that is a mistake. He said we have balance here. If this does not work, we can come back later; but, for 85 years we have allowed full basements in West U and we've done pretty well with that. Mayor Kelly said logic leads him to believe that the reason a lot of cities don't prohibit basements is because they just didn't think that anybody would be stupid enough to build one. Mayor Kelly said another reason why he thinks the issue of basements has been raised is because now we have lots selling by the square-footage and we have an 80 percent cap as to how much you can put on that lot, as well as height requirements; so, if they can't go out or go up, then they are going to go down. Councilmember Boehme moved to adopt the ordinance on second reading with an amendment to change the definition of location to "the basement is entirely within the footprint of the principal building and no portion of the basement extends outside the middle third of the width of the first floor (e.g. the owners of a 40-foot wide first floor structure could build a basement with a maximum with of 13.33 feet while still leaving 13.33 feet on either side of the space to the opposite edge of the first floor foundation). Councilmember Guffey seconded the motion. Mayor Kelly amended the motion to where the ordinance as shown by Appendix "A" reads that the construction of the basement for residential and commercial structures is prohibited "period" Motion failed for lack of second. Mayor Pro Tern Fry said he respects the work of the Commissions and said obviously it's a very controversial issue or it would not have taken two years to work through it. He said the early information he had on this was pretty much right down the middle. He said he had structural Page 8 of 10 City Council Minutes, March 28, 2011 engineers tell him that it was the stupidest idea they ever heard of and he had others to tell him that it's perfectly fine and they do it all the time. Mayor Pro Tem Fry said this issue has swung 180 degrees and now almost everybody he talks to says that it's fine to construct basements in West U; and, so if City staff can live with the ordinance as presented, then he sees no reason to restrict our citizens further. He said we have very strict ordinances for good reason, but we can't go overboard and, in his opinion, a total ban on basements is going overboard. Councilmember Segal said the first time a total ban came up he voted for it and did so because he wanted some rules in place because he didn't like the situation of having absolutely no rules with the respect to basements. He said last week he voted for the total ban again to get rules in place and then deal with any exceptions later. He said Councilmember Boehme made a very persuasive argument that this ordinance will put in place, so he's voting for it tonight. At this time, a vote was then made on the original motion by Councilmember Boehme. MOTION PASSED. Ayes: Fry, Boehme, Guffey, Segal Noes: Kelly Absent: None 6. Recycling Bins Matters related to recycling bins, including the possibility of offering a second recycling bin to residents at no charge. Councilmember Boehme presented and said the Recycling Board is trying hard to get citizens to participate more in recycling efforts and he so he proposes giving an additional bin to residents who requests one. Councilmember Boehme said the cost of a bin is $8.50 and the revenue the staff has projected on an annual basis from a full bin is $22.18, assuming that 70 percent of it is glass, from which we receive no money; but, the bins will still pay for themselves in five months if they're used. Councilmember Boehme said the Recycling Board supports this, though two members do not want this to take away from their goal of automation down the road. Councilmember Boehme said the way this would work is to have a period of time to be determined by the staff whereby citizens can email or call to order a bin. He said he thinks if we just went and delivered the bins to all residents we would have people not using them for recycling, but if they request them he thinks there will be a high percentage of usage. He said it's a win-win deal. He said it ups our participation in recycling, takes less waste out of the landfill, and shows a profit for us. Councilmember Boehme moved to adopt this agenda item. Councilmember Guffey seconded the motion. MOTION PASSED. Ayes: Kelly, Fry, Boehme, Guffey, Segal Noes: None Absent: None Page 9 of 10 City Council Minutes, March 28, 2011 7. Consent Agenda All Consent Agenda items listed are considered to be routine by the City Council and will be enacted by one motion. There will be no separate discussion of these items unless a Council member requests in which event the item will be removed from the Consent Agenda and considered in its normal sequence on the agenda. A. City Council Minutes Approve City Council minutes of March 14, 2011. B. Lemonade Day Proclamation Matters related to proclaiming May 1, 2011 as Lemonade Day in West University Place. Mayor Pro Tern Fry moved to accept the Consent Agenda as presented. Councilmember Segal seconded the motion. MOTION PASSED. Ayes: Kelly, Fry, Boehme, Guffey, Segal Noes: None Absent: None 8. Reports by Council/Staff City Manager Ross reported that staff has come to terms with West U Baptist Church, which is generally the same agreement Council approved at the last meeting and both parties should be signing the agreement tomorrow and the demolition of the asphalt parking, immediately next to the existing police station, will begin almost immediately. City Manger Ross also reported that the old police station is just about demolished and most of it, if not all, should be hauled off tomorrow and the 3816 University residential structure should begin being demolished on Wednesday. He said by the end of the week it should all be dirt and we will plan for a June 1 total completion of the project. 9. Adjourn With no further business before the Council, at 8:50 p.m., Mayor Pro Tern Fry moved to adjourn the regular meeting. Mayor Kelly seconded both motions. MOTION PASSED. Ayes: Kelly, Fry, Boehme, Guffey, Segal Noes: None Absent: None Meeting add ourn1d. Prepared r'V►~ 1_ ~ l l Thelma A. Lenz, City Secretary Date Appr ved Page 10 of 10