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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. u