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HomeMy WebLinkAboutMinutes Board Of Adjustment - 10/26/2011 MINUTES RE EIVED ZONING BOARD OF ADJUSTMENT MEETING City Hall, 1201 Leopard, Corpus Christi, Texas 1st floor, City Hall Council Chamber DEC 2 3 2011 Wednesday, October 26, 2011 1:30 P.M. C1I i SECRErj yss OFFICE BOARD MEMBERS: STAFF: Dan Winship, Chairman Miguel S. Saldana, AICP, Interim Manager, Development Ben Molina, Vice-Chairman Services Department R. Bryan Johnson Jennifer Ramirez, Zoning Board of Adjustment Morgan Spear Administrator Carl Hellums Deborah Brown, Assistant City Attorney John Douglas McMullan (Alternate) Linda Williams, Recording Secretary Heriberto A. Pineda (Alternate) Christina Aparicio, Assistant Recording Secretary Si usted quiere dirigirse al consejo de ajustamiento y su ingles es limitado, habra un interprete en la junta para ayudarle. I. CALL TO ORDER The meeting was called to order by Chairman Winship at 1:31 p.m. and a quorum was declared. II. APPROVAL OF MINUTES 1. September 28, 2011 Motion to approve the September 28, 2011 minutes was made by Board Member Johnson and seconded by Board Member Hellums. The motion passed. III. APPEALS 1. New Appeal Jennifer Ramirez, Development Services, read New Appeal item "a" into record (shown below). Ms. Ramirez stated Ms. Cynthia Ocanas, the applicant, has requested a variance to reduce the required 25-foot side yard setback to 10 feet to construct a 1,350 square foot detached accessory garage at the northeastern boundary of the subject property. a. Appeal No.ZBA 1011-02—Cynthia Ocanas Cynthia Ocanas requests a Variance to reduce the required 20- foot side yard setback to 10 feet. The subject property is described as King Estates Unit 1, Block 3, Lot 12, located south of S. Staples, and west of King Trail. Ms. Ramirez continued that fourteen (14) notices were mailed within the 200-foot notification area and two (2) notices were retuned in favor. Aerial views and photos were shown of the subject property, measuring 135 feet by 326 feet. Ms. Ramirez also showed an aerial depicting the north portion of the subject site. Ms. Ramirez continued that two neighboring residences also have detached structures in addition to their single-family dwellings and the Appellant referenced the adjacent site in her letter to support her request of the variance. Ms. Ramirez continued that the adjacent lot located directly behind the subject site to the west has an accessory structure located near the 10-foot setback, but in researching department records, there was no record of the owner receiving a variance for the detached Zoning Board of Adjustment October 26,2011 Page 2 structure. Ms. Ramirez went on to say that he property located north of the subject property had obtained an approved city permit satisfying the 25-foot side yard setback requirement for his accessory structure. An aerial photo of the rear of the property showed an outdoor batting cage and a pitcher's mound that were installed and the driveway was on the other side of the house. Ms. Ramirez continued that based on Staff's findings, the request did not meet all of the required findings and Staff recommends denial of the variance request to reduce the required 25-foot side yard setback to 10 feet. After Ms. Ramirez' presentation, the public hearing was opened for discussion and questions. Chairman Winship asked again for clarification as to what the orange strip represented on the aerial photo and Ms. Ocanas answered that it was a small pitcher's mound that had been installed for her daughter, who was a pitcher for a girls' softball team. Chairman Winship asked Ms. Ocanas if she would like to address the board. Ms. Ocanas stated she wanted to read her letter to the board and Chairman Winship asked if her letter was different from the one included in their packet and Ms. Ocanas stated it was the same letter. Board Member Spear asked what were the dimensions of the proposed structure and it was answered the dimensions were 35 feet x 40 feet. Board Member Spear continued that those dimensions could accommodate a regular sized garage and still maintain the 25-foot setback requirement. Board Member Spear asked Ms. Ocanas why she needed such a large structure and Ms. Ocanas answered that it would be used as a multi-type structure to store two small travel trailers and one vehicle along with various tools. Ms. Ocanas continued that during the winter months and bad weather, an indoor batting cage would also be installed for her daughter to continue practicing her pitching year round. Ms. Deborah Brown, Assistant City Attorney, addressed the board. Ms. Brown pointed out to board members that as indicated on page 2 of the ZBA report, the recommendation indicated that the variance request had to meet all five requirements in order for the board to grant the requested variance. Board Member McMullan asked if the applicant was made aware of the process and how the outcome would affect her if the request was denied and that taking this route might be a waste of money. Ms. Ramirez stated that she met with Ms. Ocanas before she submitted her application and strongly expressed to her that all five of the requirements had to be met in order for the variance request to be granted. Chairman Winship asked Ms. Ocanas who prepared her site plan and she answered that when she found out she could not just place a garage where she wanted and had to obtain a building permit to construct the garage, she obtained the services of Voss Engineering to draw her building plans and the site plan. Ms. Ocanas stated she came to the City and was told that she could obtain a building permit if she obtained a variance from the required side yard setback to place the structure where she wanted to place it. Ms. Ocanas continued she was advised that once she obtained the building permit, she could place the structure anywhere she wanted. Ms. Ocanas went on to say that when she met with Ms. Ramirez to discuss submitting an application to the board for the variance, she was told at that time that the variance request might not be granted, but she was willing to take the chance anyway. Ms. Ocanas continued she felt she had to try because she wanted to ensure that her daughter had adequate space to continue practicing her pitching. Chairman Winship stated to Ms. Ocanas that he appreciated her effort and the manner in which she put forth in coming before the Board to present her request, but the findings do not support the variance request. Miguel Saldana, Development Services, addressed the board. Mr. Saldana continued he wanted to clarify that staff cannot tell an applicant what the board will determine, but merely present the findings to support our recommendation. Even though staff has a recommendation, the board can make its own recommendation. Ms. Ocanas stated that she contacted the president of her Homeowners' Association and talked with him regarding the setbacks and he informed her that structures could be built up to 10 feet. Chairman Winship stated to Ms. Ocanas that the homeowners' association should be following City codes and helping enforce them rather than encouraging non-compliance. K:IDevelopmentSvcs\SHAREDIZONINGIZBA12011 ZBA Files12011 Minutes110 26 11 ZBA Minutes(incomplete).doc Zoning Board of Adjustment October 26,2011 Page 3 Board Member Johnson stated he could not justify the board granting the variance based on the stated requirements that have to be met. After all questions and discussion concluded, the public hearing was closed. Chairman Winship called for a motion. In accordance with Article 3.25 of the Unified Development Code, Board Member Johnson moved that Appeal No. ZBA 1011-02, a Variance to reduce the 25-foot side yard setback to 10 feet on property described as King Estates Unit 1, Block 3, Lot 12, be denied, based on insufficient findings and that in the Board's opinion and as a matter of fact, such a Variance will substantially affect adversely the uses of adjacent and neighboring property permitted by the Unified Development Code. The motion was seconded by Board Member Spear. Chairman Winship requested a roll call vote and the motion passed. IV. OTHER ITEMS 1. Workshop a. Swearing In of Applicants Mr. Miguel Saldana addressed the board. Mr. Saldana stated that at the last regular board meeting, an item came up regarding whether the applicants or anyone appearing before the board should be sworn in. Mr. Saldana continued that since the Board of Adjustment was quasi- judicial, any board decisions made were not appealable to City Council, but the decisions would be appealed in district court. Mr. Saldana stated that after some research, it was found that some cities require anyone who will be testifying before the board to be sworn in. Mr. Saldana continued that it was found that not all cities require the swearing in, but it was a matter of preference and each board/municipality handled it in the matter they preferred. Mr. Saldana continued that if the board decided to require "swearing in," the by-laws would have to be amended and approved before the next board was appointed. b. Alternate Members Mr. Saldana stated it was up to the chairman to decide whether the alternates could be dismissed from the meetings once a quorum has been declared. Mr. Saldana continued that several questions have been raised regarding whether they should be included in the discussion of the appeals since they were non-voting members. Mr. Saldana maintained that some people may view any comments the alternates may have an effect on the outcome of a vote. The chairman has the authority to dismiss the alternates if that is the desire of the board. Mr. Saldana continued it was also the chairman's responsibility to ensure there are no conflicts of interest on any particular case. Mr. Saldana emphasized that four(4) votes are needed on an appeal and an appeal can be tabled one time to the next board meeting. If a decision could not be made at the next meeting, the appeal would be denied. Chairman Winship asked board members, more specifically the alternate members, what was their thought of the alternates being dismissed. Board Member Pineda stated in his personal opinion, he had no problem in being dismissed, especially since they were not allowed to vote. Board Member Johnson stated he felt having the alternates at the meeting would be valuable to the board in making some decisions because with our diverse backgrounds, an alternate board member may have valuable information that can assist the board in making an informed decision. Mr. Saldana commented that he wanted to make the board members aware that the board could be sued in some instances depending on the case. K:\DevelopmentSvcs\SHARE0%ZONINGIZBA\2011 ZBA Files12011 Minutes\10.26 11 ZBA Minutes(incomplete)doc Zoning Board of Adjustment October 26,2011 Page 4 c. Overview of the Zoning Board of Adjustment Responsibilities Ms. Deborah Brown, Assistant City Attorney, addressed the board. Ms. Brown stated she attended a TCAA conference this summer and was able to participate in a presentation entitled: Zoning Board of Adjustment: Pitfalls to Avoid. Ms. Brown continued that the presenter was Steven A. Wood with the law firm of Taylor, Olson, Adkins, Sralla & Elam in Fort Worth, Texas. Ms. Brown gave an overview of the presentation highlighting sections that pertain to the local Zoning Board of Adjustment. Ms. Brown stated she spoke with Mr. Wood regarding "swearing in" of appellants before addressing the board and according to Mr. Wood, this was something that the board would have to decide whether to do it or not. Ms. Brown continued that according to Mr. Wood, it would be a "may" swear in and not a"shall." Ms. Brown provided an overall summary of the zoning board of adjustment and provided the following: A zoning board of adjustment(ZBA) is a board created by a municipality pursuant to Chapter 211 of the Texas Local Government Code. The purpose of ZBA is to make special exceptions to the terms of the zoning ordinance that are consistent with the general purpose and intent of the ordinance and in accordance with any applicable rules contained in the ordinance. The ZBA consists to decide in a particular case an exception to the rules should be made or if the rules should be enforced as written. A ZBA is quasi-judicial body whose decisions are subject to appeal before a district, state, or county court at law. Any person who is aggrieved by a ZBA decision will be permitted to challenge said decision by filing a writ with the applicable court within ten (10) days of the date of the written decision of the board is filed with the board's office. Each zoning board of adjustment must have rules of procedure clearly defined. d. Authority of the Board Ms. Brown briefly discussed the authority of the board and what they may do: 1) Hear and decide an appeal that alleges error in an order, requirement, decision or determination made by an administrative official in the enforcement of this subchapter or an ordinance adopted under this subchapter; 2) Hear and decide special exceptions to the terms of a zoning ordinance when the ordinance requires the board to do so; 3) Authorize in specific cases a variance from the terms of a zoning ordinance if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship, and so that the spirit of the ordinance is observed and substantial justice is done; and 4) Hear and decide other matters authorized by an ordinance adopted under this subchapter. Chairman Winship asked how the board would know if a case was prone to be appealed and Mr. Saldana cited as an example that an interpretation could be appealed either by the city or the appellant. Ms. Brown suggested that the board review the current by-laws and also review the packet she provided for them to read at their leisure; which would answer any questions the board members may have. Mr. Saldana added that anything that the board decides will have to be reflected in the by-laws. Mr. Saldana recommended that three (3) board members form a sub-committee and get together to review the by-laws and decide what changes needed to be made. Mr. Saldana continued that the subcommittee did not have to worry about putting it in legalese terms, because legal staff would review the document to ensure its compliance with state law. Chairman Winship stated the board has two documents to review and adopt, but Ms. Brown clarified that the by-laws and rules and procedures were the same. Mr. Saldana added when the by-laws were amended, the title will be changed to "Rules and Procedures." After further discussion, Board Members Morgan Spear, Ben Molina, along with Chairman Winship, volunteered to serve on the subcommittee to review the by-laws and Board Member Molina will chair the committee. K1DevelopmentSvcs\SHARED\ZONINGIZBA\2011 ZBA Files22011 Minutes\10.26.11 ZBA Minutes(incomplete).doc Zoning Board of Adjustment ' October 26, 2011 Page 5 Ms. Brown used Ms. Cynthia Ocanas' case as an example case study. Ms. Brown stated the wording in the motion to deny Ms. Ocanas' request was incorrect. The wording in the motion was for"an exception" and not for a "variance." Ms. Brown clarified that even though the wording was incorrect for the motion, the outcome of the appeal would still be denial. After further discussion, Chairman Winship asked if the original motion should be restated and Ms. Brown answered yes. After continued discussion regarding the previous action taken by the board, the original motion was amended as follows: In accordance with Article 3.25 of the Unified Development Code, Board Member Johnson moved that Appeal No. ZBA 1011-02, a Variance to reduce the 25-foot side yard setback to 10 feet on property described as King Estates Unit 1, Block 3, Lot 12, be denied, based on insufficient findings and that in the Board's opinion and, as a matter of fact, the variance request could not meet three of the five requirements outlined: 1) There were no extraordinary or special conditions affecting the land involved such that strict application of the provisions of the Unified Development Code would deprive the applicant of the reasonable use of the land; 3) Conditions of the property were applicable to the other properties; and 4) Conditions for the variance were created by the applicant's own actions. The motion was seconded by Board Member Spear. Chairman Winship requested a roll call vote and the motion passed. Board Member Spear asked if the board could meet to discuss the packet of information that Ms. Brown provided and Mr. Saldara answered no. For the board to meet to discuss anything would be a violation of the Texas Open Meetings Act. Mr. Saldar a continued the sub-committee should submit any information to staff to disseminate. Mr. Saldara commented that the board has done a much better job in following the rules. Board Member Spear expressed thanks to Ms. Brown for doing a good job in her presentation of the information received at the conference. V. ADJOURNMENT Motion to adjourn was made by Board Member Johnson and seconded by Board Member Spear. The motion passed and the meeting adjourned at 3:15 p.m. r� 11, jA9 Date: 1 t — / 04 J niter Rami z ia o ing Board f Adjustment Administrator • Date: 1 l 11 Lind Williams Recor ing Secretary K1DevelopmentSvcs\SHARED\ZONINGIZBA12011 ZBA Files12011 Minutes110.26.11 ZBA Minutes(incomplete)dcc