HomeMy WebLinkAbout10201994 ZBA Minutes• ~ MINUTES FROM OCTOBER 20, 1994
REGULAR SESSION
ZONING BOARD OF ADJUSTMENT
MINUTES
The Zoning Board of Adjustment came to order at 7:31 p.m. with the following members
present: Sterling Minor, Chairman, Frank Billings Vice Chairman, Stephen Masera, Rob
Peterson, Lee Huber, Victor Hansen and Melinda Snell. Members absent were Sue
Porretto and Arden Morley. Also present from the City were Dennis Holm, Chief Building
Official and Cathleen King, Building Secretary. Members introduced themselves and
procedures were explained.
No residents were present to express opinion regarding any items that were not on the
agenda.
The first case on the Docket was 94-14, concerning property located at 3210 Rice, Lot
5, Block 58, West University Place, Second Section, a request for a variance to allow a
side setback for the east side to be one (1) foot instead of the required three (3) feet
and would allow the structure to encroach into the two and one-half foot side setback by
1.5 feet.
~ Notices were read and participants-were sworn in. Frank Billings made a motion to
approve the notices as posted. This motion was seconded by Rob Peterson. Voting was
unanimous.
Joseph P. Witherspoon III representing S. Edward & Sherry L. Williams the owners of
3210 Rice explained that he is their attorney and has been representing them regarding
this property for some time. He explains that the particular lot~ in question was originally
a 150 piece of land that was owned by the predecessor in title of the company now
known as Texas Land and Cattle. Many years ago the East eighty foot portion of that
property was sold to the Presswood's and the West 65 foot portion was sold to the
Aubertons who then in turn sold it to the Williams. They also at that time obtained a
deed to the five foot strip that was left out which in law is called a Gore. Then in 1987
the Williams began building their home and as soon as they laid the foundation there
was a dispute almost immediately about where the foundation was, and a lawsuit was
filed. The question was whether the foundation was to close or to far away from the
property line of the Presswood's. That lawsuit went on and eventually that lawsuit was
settled, but the settlement did not resolve all the problems. There's a judgement that still
has to be hindered and they feel they need to have some direction from the City with
respect to a variance so that they can in fact resolve this matter correctly., Here we
have a piece of land that is 5' x 100' that is in fact owned by Texas Land and Cattle
when in fact both parties on either side of the land thought that they owned it. So the
• resolution ultimately was that the property would be accrued from Texas Land and
Cattle and divided evenly between both of the warring parties and divide it down the
• middle, but even by dividing it down the middle, the Williams thought that they had a full
Victor Hansen asks if there was ever any consideration to buying the entire 5 feet strip
of land.
five feet rather than two and half feet. So the easterly face of their structure lies even
after they have divided the property closer to the boundary line between the two pieces
of property than is authorized under the zoning ordinance in that respect they would like
to have a variance once they have accomplished the settlement which they thought
was no problem. They would like a variance to allow the existing structure to be closer
to the new line than the three feet.
Mr. Witherspoon states that they had a deal that the parties would divide that property
down the middle and that the Presswood's would not agree to let the Williams have the
entire 5 feet of land.
Melinda Snell asked did the deeds that conveyed the property to the parties claim to
convey the 5 foot strip and did not and actually do so because of prior deeds.
Mr. Witherspoon explained that there was an original conveyance of 65 feet by the
Aubertons to the Williams and then a subsequent factor was a additional 5 foot
conveyance, they thought they owned an entire 70 foot lot. The title did not reflect that
the 5 foot was conveyed to the Aubertons nor had it been conveyed to the Presswood's
• but they all thought they owned it.
Mr. Witherspoon showed the Board Members pictures of the fences of the Williams and
the Presswood's showing how close the Williams fence was to the house which he feels
is very unsafe, in the event of a fire he is concerned that the Williams might have
problems getting through a space that small, he also states that it is a problem getting
trash out which is very inconvenient.
Frank Billings asks why the house was ever built if there was questions when the
foundation was poured.
Mr. Witherspoon explained that they thought that it was there property, they had deeds
to the property, the architect prepared plans for the construction of the residents, even
though the Presswood's said that it was not their property that it was their property, you
can't build here the Williams said I'm sorry but this is my property, we are going to build
here, and then low and behold the Presswood nor the Williams owned the property but
Texas Land and Cattle did having the record title, but they had not had possession for
35 or 40 years.
Mr. Witherspoon showed the survey which showed where the fence was located.
Mr. Edward Williams was sworn in and showed that the original fence was .9 feet inside
of the Presswood's property line. Mr. Williams explained that the reason that they built
• the structure was because they have been paying taxes on the entire 70 feet therefore
they believed that they owned the 5 foot strip. He explains that the Aubertons owned the
• property since 1936.
Mr Witherspoon stated that there was another issue here and that was the placement of
the fence itself. They needed to resolve the problem of the placement of the fence so
that it will comply with the regulations that the City had.
Frank Billings stated that his understanding was that the present structure was 3.7 feet
from the original property line on one side and 3 feet on the other side. Which was what
the survey showed. In the Zoning Ordinance at the time this structure was built the side
setback was 3 feet.
Mr. Witherspoon stated that this was not a court ordered agreement, the Presswood's
and the Williams decided not to litigate the entire case because there were three parties
involved and it would be very costly. He stated that Texas Land and Cattle the other
party involved supports and requests that the Board act favorably to the request for the
variance that they are making. There position is that they have record title to this 5 foot
strip of land, Mr. Witherspoon stated if he had to go to court he would say that Texas
Land and Cattle lost strip of land along time ago through adverse possession.
Mr. Witherspoon stated that if the variance was not granted that the Williams will not
have a settlement and then they then would have to go back to court. and prove that
they do have the right to the 70 foot in its entirety. He states that he would like it settled
• without having to go back to court not only is it the right thing to do but also less
expensive, and in this situation both sides are looking at considerable legal expense to
pursue this matter all the way down the line. They thought that it made alot more sense
to negotiate and mediate the cases.
Sterling Minor asks if any discussion official or unofficial about what would be the impact
of building on the Presswood's property, building within so many feet of where the
Williams house is.
Mr. Witherspoon states that they have been asked about what our feelings are in the
event that the Presswood's or any other owner of the Presswood's current property
were to demolish the current house and re build another house. The real question is the
distance between the Presswood house and the Williams.
Frank Billings asks when the house was built, Mr. Witherspoon replied in 1987 at which
time the side setback was 3 feet instead of the 5 foot side setback the current
Ordinance enforces.
Charlotte Bonica of 3211 Rice explained that she lives across the street from the
Williams and has since 1985, she stated that she was informed of the situation between
the Presswood's and the Williams and says that she thinks that Williams have made
great attempts to make amends with the Presswood's and hopes that the Board agrees
• to grant the variance.
• Frank Billings states that he is confused on what they want the Board to do concerning
the fence, Mr. Witherspoon states that they all have agreed that they will follow what
ever the City Zoning Ordinance requires them to do. Which he states is really not an
issue on the asking of the variance. He states that they would like to see the fence be 3
f.eet from the East face of that building so there will be adequate access. He states tha
the 1 foot that is there now is definitely not enough.
No correspondence was received in favor of the application.
t
Dennis Holm, Chief Building Official gave the City's point of view. Mr. Holm explained
that the structure was permitted as a single-family residence and the survey they
provided showed the lot to be 70' wide x 100' deep. The structure had the proper
setbacks: front, 30' b.l., sides (both) 3.0 (west) and 3.7 (east) and the rear had a 5' u.e.
and the proper 20' setback to the main structure as required by the Zoning Ordinance.
However, at that time, unknown to the owners of the property, Mr. and Mrs. Williams,
the Building Division for the City of West University Place and the contractor, W.A.
Shindler, Inc., the lot was actually only 65' in width. After the 5' error was discovered the
City of West University Place issued a"temporary-conditional" Certificate of Occupancy
for the structure at 3210 Rice. The conditional Certificate of Occupancy was issued on
condition that the east property line setback meet with current Zoning Ordinance. This
conditional Certificate of Occupancy was issued December 1, 1988 by T.A. Pelton. The
owners of the property at 3210 Rice Blvd., Mr. and Mrs. Williams, have gotten all the
• legal matters worked out and are now coming to the Zoning Board of Adjustments to
ask for the needed variances for their property.
Mr. and Mrs. Williams are asking for a variance be granted to allow for a side setback
for the east side of their home to be one (1) foot, instead of the required three (3) feet.
The reasons for this request are: (a_ their home was built into the five (5) foot area in
question by 1.5 feet; (b) If this five (5) foot area had belonged to them there would be no
reason for a variance request, the setback of 3.5 feet would have met zoning ordinance
requirements. They are also asking for a variance to be granted to allow the structure at
3210 Rice Blvd. to encroach into the two and one-half foot side setback by 1.5 feet,
again this is all due to the five (5) foot not actually being owned by Mr. and Mrs.
Williams, The City does not oppose the granting of these variances.
Mr. Holm states that as far as the fence goes the properties minimum setback under the
present ordinance is three feet plus. From the main building to the property line on a
side setback. He also explained that if the present home of the Presswoods is ever torn
down because of the way the ordinance is set up the front setback will be on the right
side regardless of witch way the home faced witch would have a twenty foot setback
interior side setback would be on the west side next to the Williams that would be either
five or seven foot setback, your side street setback on Buffalo Speedway because of
the way its been changed it could be in this case a rotated corner lot which would make
the front setback along Buffalo Speedway a minimum of twenty feet and then the rear
• setback will also have a twenty foot setback. He explained that basically you would have
the setback of the Williams home as it is now that would not stop or interfere with the
• proper setback of the new home going on at the Presswoods property. This would be in
compliance to the Zoning Ordinance.
One letter was received in opposition which will remain a part of the record and be
placed in the applicant's file.
Frank Billings made a motion to close the evidentiary portion of the hearing. This motion
was seconded by Rob Peterson. Voting was unanimous.
The next item on the Docket was 94-15, concerning property located at 5712 Kirby Dr.,
Lots 25, 26, & 27, Block 5, Tangley Terrace Addition, a request for a variance to allow a
patio cover to be constructed in the thirty (30) foot front setback.
Notices were read and participants were sworn in. Rob Peterson made a motion to
approve the notices as posted. This motion was seconded by Lee Huber. Voting was
unanimous.
Fred Deering owner of The Kirby Grill , 5712 Kirby explained that he would like to put a
cover on his patio, he explained that he would like to improve business by having a
covered patio and he has tried putting umbrellas, but with the intense winds we
sometime have he had no luck keeping them up all the time. He explained that he would
like to extend the cover with 2 X 12 rough cedars joist across, he explains that it will
have no plastic sides or enclosure. He proposes to put post 6 feet from front sidewalk.
• Also states that this cannot be seen from any residence only from high Kirby volume
traffic.
No one else was present to speak in favor of the application.
Dennis Holm, Chief Building Official gave the City's point of view. Mr. Holm explained
that the application was asking for a variance to allow a patio cover to be constructed in
the thirty (30) foot front setback area for the Kirby Grill located at 5712 Kirby. He
explained that the request for the patio cover was to provide shade for the outdoor patio
area where customers eat. He explained that in the Code of Ordinance, Article 8.
Commercial District, Section 8-100. Commercial District (C).,(d) Site Criteria: (1)
Setback areas. and (i), that this area, where the applicant wants to put the patio cover,
is the required thirty (30) foot front setback area, as defined in Section 2-102, Certain
terms, located adjacent to Kirby Drive. No buildings or projections are allowed in this
area except as permitted by the Projection Schedule. No buildings or structures, except
those permitted by Note 18 of the Projection Schedule, are allowed in the front setback
area. The patio cover is a structure, as indicated by definition, that does not meet the
criteria shown in Note 18; therefore, it cannot be constructed in the front setback area.
Therefore the City opposes this request for variance.
No one else was present to speak in opposition.
~ Frank Billings made a motion to close the evidentiary hearing. This motion was
seconded by Rob Peterson. Voting was unanimous.
• The Board discusses 94-14, Melinda Snell states that she does not understand why
don't just get entire five foot strip. Sterling Minor states that he feels that the
Presswoods since they are not present at the meeting nor did they send any
correspondence regarding the meeting that they are not concerned with the fence only
the five foot strip of land. The Board feels that they should grant the variance with some
conditions.
Frank Billings moves to grant the variance with the conditions that the Williams acquire
the 2.5 feet in agreement with the adjacent property, that no fence will be constructed
closer than three feet to the property line, no structure will be built on this property within
five feet or in accordance with the Zoning Ordinance will accept to be built or allowed to
remain on adjacent property. This motion was seconded by Rob Peterson. Rob
Peterson, Stephen Masera, Frank Billings, Sterling Minor and Victor Hansen voted in
favor. Melinda Snell and Lee Huber did not vote.
'`'kThe Chairman made a motion to grant this variance with the requirement that this be
filed with real property record.
The next item for discussion was 94-15. Frank Billings states that he feels that in no
way did this item show any requirements or evidence to support the granting of a
variance. Frank Billings made a motion to deny the granting of this variance. This
motion was seconded by Stephen Masera. Frank Billings, Rob Peterson, Lee Huber
• and Sterling Minor in favor. Victor Hansen and Melinda Snell did not vote.
Rob Peterson made a motion to approve the minutes from the September 1, 1994
meeting. Stephen Masera seconded the motion. Voting was unanimous.
Frank Billings made a motion to approve the minutes with changes from the September
15, 1994 meeting. Lee Huber seconded the motion. Voting was unanimous.
Rob Peterson made a motion to approve the Rules of Procedures. Stephen Masera
seconded the motion. Voting was unanimous.
Stephen Masera made a motion to adjourn the meeting at 9:10 p.m. This motion was
seconded by Rob Peterson. Voting was unanimous.
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