Loading...
HomeMy WebLinkAbout04192012 ZBA Minutes� r _ The City of West • A Neighborhood City University Place ZONING BOARD OF ADJUSTMENT MUNICIPAL BUILDING 3800 UNIVERSITY BOULEVARD MEETING MINUTES April 19, 2012 6:30 p.m. Agenda Item Discussion Action 1 Call the regular Carole Steen (voting), Priya Coffey (voting), Milton Frankfort (voting), I. MEMBERS PRESENT: Katherine Brem (voting), Donald Yurewicz (voting) and Don Culbert Carole Steen asked the members to introduce all notices were properly posted and not voting) II. MEMBERS ABSENT: Sandy Hellums, Samantha Brantley and Ed Sobash III. STAFF PRESENT: Debbie Scarcella, City Planner, Sallye Clark, Planning Assistant, John was 2nd by Katherine Brem. Ayes: Brown, Building Official and Jolie Lenz, City Legal Counsel IV. CALL TO ORDER: 6:31 pm. Agenda Item Discussion Action 1 Call the regular Carole Steen called the meeting to order at 6:31 p.m. Milton Frankfort moved to accept that meeting to order and Carole Steen asked the members to introduce all notices were properly posted and Protocol. themselves. Sallye Clark, Planning Assistant stated distributed for this meeting. Motion Notices, Rules, Etc all notices were posted as required by city and state was 2nd by Katherine Brem. Ayes: law. Carole Steen described the procedure of the Carole Steen, Priya Coffey, Milton hearings. Frankfort, Katherine Brem and Donald Swearing in of witnesses Yurewicz. Motion carried. Carole Steen administered the oath to all witnesses. 2 Docket No. 2012 -04, Debbie Scarcella gave a brief background of Carole Steen made a motion that since regarding property at Docket 2012 -04. The applicant bought this the evidence is the same in all three 2704 Nottingham property and built a house for resale on it through requests that the rules be suspended Street, West a third party contractor. The building site is 61' and present entire case. Motion was 2nd University Place, wide and 105' deep. During the process of by Milton Frankfort. Ayes: Carole Texas 77005, construction, a form survey was conducted and Steen, Priya Coffey, Milton Frankfort, (Interpretation, submitted for city records before the concrete Katherine Brem and Donald Yurewicz. Special Exception, foundation was poured (Applicant attachment A). Motion carried. and Variance). This foundation survey did not show any Priya Coffey made a motion to close a. Public hearing encroachments into the setbacks. A final survey the evidentiary portion of the hearing. regarding the following (dated February 5, 2012 by Sury -Tex Surveying, Motion was 2nd by Katherine Brem. matters: 1. Request an Inc., (Applicant attachment B), as required by city Ayes: Carole Steen, Priya Coffey, interpretation as to what procedures to obtain a final occupancy certificate, Milton Frankfort, Katherine Brem and measurement was obtained and submitted. This survey showed Donald Yurewicz. Motion carried. constitutes a an encroachment into the rear yard setback of After deliberation, Katherine Brem made nonconforming approximately .3' at the left corner of the structure a motion to deny the appeal request. projection or and an encroachment into the side yard setback Motion was 2nd by Priya Coffey. encroachment into the approximately .1' at the right corner of the Ayes: Carole Steen, Priya Coffey, Zoning Board of Adjustment Minutes April 19, 2012 Meeting 2 regulated yard (setback) structure. The applicant and prospective buyer Milton Frankfort, Katherine Brem and contained in Table 7 -2 agreed to engage a third party surveying company Donald Yurewicz. Motion carried. of Appendix A of the to verify the final survey measurements. This Appeal denied. Code of Ordinances.2. survey (Applicant attachment C) did not show any Katherine Brem made a motion to grant If the interpretation is rear encroachments, but showed a side yard a special exception to allow three - not favorable, then encroachment of up to .4' on the right side corner tenths of a foot (.3') encroachment into request a special of the structure. The application for relief was the rear yard (setback) as based on a exception as authorized based upon the information contained in this survey by Precision Surveyors received in Section 12- 102(e), survey (Applicant attachment C) and on April 16, 2012 and marked as Job "Certain yard subsequently, the Building Official, John Brown Number 12 -02617 and revised on April encroachments ", or did not accept the survey because required 11, 2012. This survey is attached and Section 12 -106, information was missing from it. (See Staff marked as "Exhibit A" to this decision. "Certain work under attachment #5). The applicant submitted a Motion was seconded by Milton permit ", of Appendix A corrected survey on April 16, 2012 (No exhibit Frankfort. Ayes: Carole Steen, Priya of the Code of number), showing a new set of measurements that Coffey, Milton Frankfort, Katherine Ordinances to allow a indicate there is only a rear yard encroachment Brem and Donald Yurewicz. Motion projection of the rear and no side yard encroachment. carried. Special Exception granted. left corner of the The request for the variance was principle structure into The applicant, Russell Epstein was represented by withdrawn by the applicant. the rear and side yard attorney Reid Wilson. Reid Wilson attorney for setbacks. 3. If the applicant made a presentation giving the reasons special exception is not for requesting the Special Exception, Appeal and granted, then request a Variance Request. MR. Wilson believes the last variance from Section survey is correct with a date of April 16, 2012 7 -2 of Appendix A of which makes the encroachment 3/10 of a foot. He the code of Ordinances believes it is not a violation of the Code of to allow a projection of Ordinances . the rear left corner of the principle structure into the rear and side Debbie Scarcella gave the staff response and yard setbacks. recommendation as follows: b. Deliberation, The Appeal decisions, other action, The applicant's appeal concerns the degree of etc. regarding the encroachment, or specifically, the number of preceding matters. inches allowed before a projection is considered nonconforming. Table 7 -2 establishes the minimum regulated yards (setbacks). In the general rule at the top of Table 7 -2 it states: "No part of any structure may be located within a part of a building site included within a yard defined, by District, in this table. " Staff interprets this to mean just what is stated. No part of a structure may encroach, not even a tenth of an inch. The General Rule establishes exceptions and special rules for structures or parts of structures allowed to encroach per the projections schedule; any notes in Table 7 -2; PDD (Planned Development District) schedules; and, PWSF (Personal Wireless Service Facilities) schedule. Staff believes that there is not a provision in the projection schedule that allows the plane of the wall surface of a structure to Zoning Board of Adjustment Minutes April 19, 2012 Meeting encroach into a yard (setback). Specific architectural embellishments may encroach, but not the main wall surface. There is an Administrative Interpretation issued by the Administrative Official several years ago addressing the way in which staff measures the distance from the property line to the main wall surface. This interpretation was written as a result of an application before the Zoning Board of Adjustment dealing with a minor encroachment of a wall into the regulated side yard (setback) that affected the sale of a property. Staff does not believe they have the authority to ignore noncompliant projections noted on a survey conducted by a registered professional land surveyor. Staff requires surveys at different points during construction in order to verify that the setback requirements are in compliance. The applicant states that because the encroachment is minor, the ZBA should overturn the Building Official's determination that the structure is not in compliance with the setback regulations. The applicant states that he believes the projection into the setback is minor enough that the structure should be considered in substantial compliance with the setback regulations. Additional hearing and evidence for the special exception and variance will not be necessary if the appeal is affirmed (to reverse the Building Official's determination), The Special Exception Request If the ZBA affirms the Building Official's determination, the applicant requests a special exception to one of two sections contained in Article 12 of the zoning regulations. Article 12- 106, "Special exception, certain work under permit ", allows for a special exception when there is an error made during the construction process. The special exception is narrowly defined and applicable to only those instances of error where the plans clearly show noncompliance but are incorrectly approved and a permit issued. Staff does not believe that the applicant can obtain a special exception under this section unless he presents evidence that the plans indicated an encroachment and were approved in error. Staff attachment # 1 shows the approved drainage /site plan, which clearly complies with the setback requirements. Further, staff attachment #2 shows the approved form survey indicating no errors or noncompliance. Staff attachments 3, 4, and 5 show the progression to obtain correct and precise measurements to Zoning Board of Adjustment Minutes April 19, 2012 Meeting 4 substantiate the Building Official's decision to deny the final survey. Each submittal is missing required and previously requested information. Even the final survey submitted by the applicant on April 16, 2012, does not include every measurement previously requested by the Building Official. Section 12- 102(e), "Certain yard encroachments ", was intended to address these types of yard (setback) errors that occur during the construction process. This section would grant the structure the special status of Prior Nonconforming (PNC) status provided the ZBA is able to find 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, the ZBA must find that the request is in harmony with the general purpose and intent of the Zoning Ordinance and that the request will not cause any significant increase in on- street parking or traffic, traffic congestion, or an unreasonable burden upon public utilities or services. The burden is on the applicant to present evidence to the Board to support each finding and determination required for the issuance of this special exception. If the Board grants the special exception, the Board can attach conditions. The Variance Request If the ZBA does not grant PNC status for the structure, then the applicant requests a variance to Table 7 -2 regarding an encroachment into the rear and side yard (setbacks). Since the building site is 60.92' wide, the minimum side yard (setback) is 6.09' on each side of the structure. The minimum rear yard (setback) is 20'. According to the final survey submitted with this application, there is an encroachment in both the side and rear yards. The subsequent survey only shows a .3' encroachment into the rear yard. According to the applicant, the surveyor did not locate all of the property pins when originally determining the. This is why there are discrepancies in the surveys. The ZBA has general authority to grant variances, but according to Section 11 -102, the ZBA may not Zoning Board of Adjustment Minutes April 19, 2012 Meeting 5 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) The variance must be reduced to writing including any conditions prescribed by the ZBA or required by this ordinance for the variance in question. The burden is on the applicant to present evidence to the Board to support each finding and determination required for the issuance of a variance. If the Board grants a variance, the Board can attach conditions. John Brown Building Official also gave information in reference to the Administrative Officials interpretation from June 2009 being attached to every approved set of plans by him. His concern is tremendous number differences in surveys. Surveyors make mistakes but not this great of an amount. (10"' of a foot, 1.2 inches) Mr. Brown also had concerns if the forms were moved or the survey is incorrect. Russell Epstein, applicant stated the differences of Precision Surveyors surveys are because the incorrect pens were used the first time. Staff received correspondence in favor of the Requests from Villa D'Amico and Nash D'Amico, 2636 Nottingham and no correspondence in opposition of the request. No one spoke in favor of the request. Brenda Keith, 2705 Sunset spoke in opposition of the request. Zoning Board of Adjustment Minutes April 19, 2012 Meeting 3 Meeting Minutes. Approval of meeting minutes of March 15, 2012. Donald Yurewicz moved to approve the minutes as amended. Motion was 2'd by Priya Coffey. Ayes: Carole Steen, Priya Coffey, Milton Frankfort, Katherine Brem and Donald Yurewicz. Motion carried. Adjournment. Katherine Brem moved to adjourn the meeting. Motion was 2 °d by Priya Coffey. Ayes: Carole Steen, Priya Coffey, Milton Frankfort, Katherine Brem and Donald Yurewicz. Motion carried. The meeting was adjourned at 7:50 p.m. G � APPROVED THIS DAY OF 2012. Carole Steen, Pres' ' g Officer / ATTEST: VLAAL,.-) Sallye A. Clar lanning Assistant