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