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HomeMy WebLinkAbout7-7-11 BA Minutes*MINUTES* BOARD OF ADJUSTMENT July 7, 2011 City Hall, 801 Main Street A Regular Meeting of the Board of Adjustment was held on July 7, 2011 and called to order at 3:00 p.m. with the following members present: Chairman Dana Timaeus Vice -Chairman Pat Avery Board Member Mary Jowers Alternate Member Christopher Plaunty Alternate Member Christy Amuny Board Members absent: Board Member Joey Hilliard Board Member Bob Harris Alternate Member Kelli Maness Also present: Steve Richardson, Planning Manager; Jill Cole, Recording Secretary; Tyrone Cooper, City Attorney; Sharae Bassett, Assistant City Attorney II; Anna Varela, Historic District Code Enforcement Officer; Lois Balka, Code Enforcement Officer; Jack Maddox, Fire Marshall; Marcus Rogers, Fire Department Inspector APPROVAL OF MINUTES Board Member Jowers made a motion to approve the minutes of the Regular Meeting held June 2, 2011. Vice -Chairman Avery seconded the motion. Motion to approve carried 5:0. SWEARING IN OF WITNESSES PUBLIC HEARING 1) File 624-BA: Request for a variance to the minimum front yard building setback from 35' (as per the plat of record) to 28'. Location: 80 Avenue of the Oaks Applicant: Richard and Sonya Coffman Mr. Richardson presented the staff report. The purpose of the variance is to allow the construction of a porch on the front of the house. The south end of the porch will encroach Tinto the setback. BOARD OF ADJUSTMENT July 7, 2011 The Zoning Ordinance requires a minimum front yard building setback of 25'. However, Sections 1, 2 and 4 of Manion Oaks Subdivision were platted with a 35' front yard building setback. Sections 3 and 5 were platted with 25' front yard building setbacks. The subject property is located within Section 1. The applicant shall have the burden of proof to demonstrate that all three conditions necessary for approval have been met. Fourteen notices were mailed to property owners within 200 feet. No responses in favor or in opposition were returned. Slides of the subject property were shown. Chairman Timaeus opened the public hearing and asked for comments. Richard Coffman, the owner and applicant, addressed the Board. Chairman Timaeus asked for comments in favor or in opposition. No comments were made. The public hearing was closed. Discussion followed between the Board Members. Board Member Jowers made a motion to approve a variance to the minimum front yard building setback from 35' (as per the plat of record) to 28' at 80 Avenue of the Oaks as requested in File 624- BA. Vice -Chairman Avery seconded the motion. Motion to approve carried 5:0. 2) File 621-BA: Request for variances to the minimum front yard building setback from 20' to 3'. Location: 810 S. Major Drive Applicant: Share Enterprises, Inc. Mr. Richardson presented the staff report. The purpose of the variance request is to allow the construction of a second apartment building on the subj ect property. There is an existing apartment building and related parking at the rear of the property. The property owner would like to construct an additional three story twelve unit structure east of the existing building. Due to the circulation needs of the Fire Department and parking requirements, the site plan was redesigned with a 3' front building setback. The applicant shall have the burden of proof to demonstrate that all three conditions necessary for approval have been met. Twenty-four notices were mailed to property owners within 200 feet. Two responses in opposition and none in favor were returned. Slides of the subject property were shown. 2 BOARD OF ADJUSTMENT July 7, 2011 Chairman Timaeus opened the public hearing and asked for the applicant's comments. Bill Miranda, consultant for Share Enterprises, addressed the Board. Shawn Javed with Share Enterprises addressed the Board. Zahid Mahmood, engineer with Municipal Engineering, addressed the Board. Chairman Timaeus asked for comments in favor or in opposition. No comments were made. The public hearing was closed. Discussion followed between the Board members. Board Member Amuny made a motion to approve variances to the minimum front yard building setback from 20' to 3' at 810 S. Major Drive as requested in File 621-BA. Board Member Jowers seconded the motion. Motion to approve failed 3:2 (Timaeus, Avery). 3) File 623-BA: Request for an appeal ofthe Planning Manager's decision that two apartments located at 3980 N. Major Drive are community homes and thereby subject to the one-half mile distance requirement as required by the State of Texas Human Resources Code, Title 8, Chapter 123, Community Homes. Location: 3980 N. Major Drive Applicant: Todd Hicks and Laura Odom/Jubilee Group Mr. Richardson presented the staff report. This item is a request for an appeal of the Planning Manager's decision that two apartments located at 3980 N. Major are community homes and thereby subjectto the one-halfmile distance requirement as required by the State of Texas Human Resources Code, Title 8, Chapter 123 and as referenced by the Beaumont Code of Ordinances, Sec. 28.01.004 and the City Code of Ordinances, Sec. 28.01.004. In January, 2011, the City of Beaumont notified Folsom Apartment Development and Jubilee Group that certificates of occupancy had not been acquired for the community homes located at Eagles Landing Apartments, Units 814 and 825. Folsom Apartment Development was also notified that the community homes were in violation of the one-half mile distance requirement as required by the City's Zoning Ordinance and State statutes. Referenced packet material that shows image of the apartments and its distance from an existing community home located on Cheryl. Exhibit B which shows the Zoning Ordinance's definition of what once was called "family homes" but now called "community homes" by the State. A community home is a "residential home for no more than six disabled persons and two staff persons and meeting all of the requirements of Vernon's Annotated Civil Statutes, Art. 101 In, which is also Title 8, Chapter 123 of the Texas Human Resources Code, as represented in Exhibit C. Because of prior vocal and written communications that the Fire Department and Zoning Code Enforcement had with Jubilee Group about locations on Laurel, Norwood and Brandywine, a meeting was held on December 16, 2008 between City Attorney Tyrone Cooper, a number of other BOARD OF ADJUSTMENT July 7, 2011 city employees and Floyd James, Sr., attorney for Jubilee Group Homes, Inc. The purpose of the meeting was to discuss Jubilee's community based homes at 5050 Laurel, 895 Norwood and 865 Brandywine. What was discussed at that meeting was the possible resolution of the alleged code violations brought to Jubilee's attention by the Fire Marshall and Zoning Code Enforcement. After having identified the issues to be addressed, it was agreed between the parties that 60 days would be a reasonable time within which to resolve the concerns. March 1, 2009 was determined to the expiration date ofthe 60 day period. During that time period, Jubilee was to find alternative housing and relocate the residents to other properties which comply with City codes or bring the aforementioned addresses into full compliance with City Codes including the distance requirement. Mr. Richardson presented a letter dated December 9, 2008 from Marcus Rogers, Fire Inspector, citing violations and Mr. Cooper's letter to Mr. James that described what was discussed at the December 16, 2008 meeting as Exhibits G and H. The two residents now living at Eagles Landing formerly resided at Jubilee's Laurel and Norwood facilities. Disability Rights Texas has been retained by Todd Hicks and Laura Odom who are residents of said apartments. DRT contends that the City erred in its contention that the aforementioned apartments are classified as community based homes and therefore subject to the one-half mile distance requirement. DRT contends that Mr. Hicks and Ms. Odom are tenants of said apartments and have hired Jubilee to provide assistance. Mr. Richardson stated that as Planning Manager, he contends that the apartments are community based homes based upon the fact that Jubilee Group signed the apartment lease contracts for both Apartments 814 and 825 as the lessee. He presented Exhibits D and E showing that Jubilee Group is the lessee. He also submitted a picture taken of Jubilee's listing of group homes taken at Jubilee's office at 3450 Eastex Freeway during a visit by the Fire Marshall's office. Mr. Richardson presented the picture as Exhibit I. DRT states that Jubilee is a home and community support services agency that is licensed by the Texas Department of Aging and Disability Services. DRT references the Texas Health and Safety Code, Section 142.001. The Texas Health and Safety Code, Section 142.001 states that a certified agency means a home and community support services agency, or a portion of the agency, that provides a home health service and is certified by an official of the Texas Department of Health and Human Services and is in compliance with the conditions of participation in Title XVIII, Social Security Act. Mr. Richardson presented Exhibit F, which shows that definition. The Texas Human Resources Code, Title 8, Sec. 123.004, (referencing Exhibit C), states that to qualify as a community home, an entity must comply with Sections 123.005 and 123.008 and be a community -based residential home operated by, among others, an entity certified by the Texas Department of Human Services as a provider under the medical assistance program serving persons in intermediate care facilities for persons with mental retardation. 11 BOARD OF ADJUSTMENT July 7, 2011 Based upon the preceding information, Mr. Richardson, as Planning Manager, contends the following: 1) Jubilee Group, represents its facilities, both verbally and in written form, as community or group homes. 2) Jubilee Group is the lessee of Apartments 814 and 825, Eagles Landing Apartments, 3980 N. Maj or Dr. 3) Jubilee Group, as lessee, is operating community -based homes at 3980 N. Major Dr., Apartments 814 and 825. 4) Jubilee Group is operating community -based homes within one-half mile of another community -based home located at 3895 Cheryl. 5) The location of the community -based homes at 3980 N. Maj or Dr., Apartments 814 and 825 is in violation of Texas Human Resources Code, Title 8, Sec. 123.004 and City Code of Ordinances, Sec. 28.01.004. Seventeen notices were mailed to property owners within 200 feet. One response in opposition, without comment, and none in favor were returned. Discussion followed between Chairman Timaeus and Mr. Richardson regarding the issues on appeal today to be addressed by the Board and the requirements for a certificate of occupancy. Chairman Timaeus opened the public hearing and asked for comments. Sharae Bassett, Assistant City Attorney II, addressed the Board and clarified that the issue is that the subject locations are community based homes and as such, are subject to the one—half mile radius requirement. Sean Jackson, attorney with Disability Rights Texas, addressed the Board to state that DRT contends that the only issue is whether the apartment units are community homes. Anna Varela, Code Enforcement Officer, addressed the Board as to the different terms applied to group homes. Ms. Bassett reviewed requirements of family based homes. Jack Maddox, Fire Marshall, addressed the Board on requirements of group homes. Ms. Lois Balka, Code Enforcement Officer, addressed the Board and gave the history of her inspections of Jubilee Homes Marcus Rogers, Inspector with the Fire Marshall's Office, addressed the Board. Kendra Thomas, attorney with Disability Rights Texas, spoke on behalf of the applicants. The basis for the appeal 1) applicants home does not meet the statutory definition for a community home and therefore half mile does not apply; 2) they are not operating a business out of their home. The BOARD OF ADJUSTMENT July 7, 2011 applicants meet the statutory definition of a family under the Zoning Ordinance. Both applicants are enrolled in a Medicaid Waiver program, which allows persons with disability to move out of a nursing home or state school to live in a community of their choice. Presented a handout to the Board explaining the Medicaid Waiver program. Applicants have selected Jubilee Group Homes to provide supervise living services to them inside their home. Supervise living services are persons that do not require 24-hr supervision or 24-wake staff. They simply require services during the normal wake hours which is limited to medication administration or assist with bathing. Mr. Hicks lives in apartment 825 with a Jubilee staff member. Mr. Odom lives in apartment 814 with a roommate and a staff member from Jubilee Group Homes. They both contribute to the rent, utilities and groceries. They are contractually bound by the lease agreement, and the situation is no different from a parent signing a lease for a college student. The only reason why the lease was not put in the applicants name was because they were unable to meet the income requirements individually. A question was asked from the Board why a grantor lease form was not used. Ms. Thomas responded that she would not speak to that and would instead allow a member from Jubilee to address that issue. Ms. Thomas read the definition of family. Mr. Hicks and Ms. Odom are the functional equivalent of a family. They sleep there. They prepare food there. They eat there. They maintain it as a single house keeping unit. The mere presence of a staff member does not make this home a business. This is a family. The presence of a staff is no different than a person living in there own home and receiving hospice care services. The second point is the home does not meet the definition of a community home. Read and presented to the Board Chapter 123 of the Human Resources Code, which outlines the qualifications of a community based home. Our argument is that this home/apartments are not operated by any of the entities listed here. Jubilee Group Homes is not associated with the Texas Department of Mental Health Mental Retardation Authority. They are not a community center. They are not an entity subject to the Texas non-profit corporation. Presented evidence from the Secretary of States office that Jubilee is a for profit organization. Jubilee Group Homes is a certified and licensed community home facility. They do not run intermediate care facilities. This is a totally separate program governed under Chapter 252 of the Texas Health and Safety Code. Lastly, its not an assisted living facility governed under Chapter 247 of the Texas Health and Safety Code. So, our argument is because they don't meet the definition of a community home the spacing requirement is not applicable to Mr. Hicks' and Ms. Odom's home. In the event that the Board finds that this is a community home, we like to renew our request for reasonable accommodation under the BOARD OF ADJUSTMENT July 7, 2011 Fair Housing Act and the Americans with Disabilities Act. Were acting that you designate it as a family home and waive the spacing requirements. Board member questions followed, requesting clarity on the definition of family and community homes presented by DRT. Sean Jackson also addressed the Board to answer questions regarding the levels of care facilities, state schools and the Waiver Program. Chairman Timaeus requested a motion from DRT and Ms. Thomas provided the following: The motion would be that the homes of Todd Hicks and Laura Odom located at 3980 N Major Drive apartments 825 and 814 are not community homes and therefore not subject to the half mile rule noted in the community homes persons with disabilities act and in the alternate you would grant a variance to the half mile rule. Chairman Timaeus asked if anyone would like to speak to File 623-BA. Chairman Timaeus closed the public hearing. Discussion followed between the Board members. Vice -Chairman Avery made a motion to deny the appeal of the Planning Manager's decision that two apartments located at 3980 N. Major Drive are community homes and thereby subjectto the one-half mile distance requirement as required by the State of Texas Human Resources Code, Title 8, Chapter 123, Community Homes as stated in File 623-BA. Board Member Plaunty seconded the motion. Motion to deny carried 5:0. OTHER BUSINESS THERE BEING NO FURTHER BUSINESS, THE MEETING WAS ADJOURNED AT 5:15 P.M. 7