HomeMy WebLinkAbout320-BAT6: BOARD OF ADJUSTMENT DATE: 5/5/87
FROM: PLANNING DIVISION/COMMUNITY .DEVELOPMENT DEPARTMENT
REQUESTED ACTION; An appeal. concerning Section 30-30B (2) of the.. Zoning
Ordinance to determine if a specific use permit is required to open
a drinking place at 2405 Hegel.e, on property described as Tract 45,
Plat B-10, J. W. Bullock. Survey.
It is recommended the appeal be denied based on the following:
- The applicant has not demonstrated a reasonable difference
of interpretation as to the specific intent of the zoning
regulations;
Granting approval of the appeal would result in a special
privilege to one property inconsistent with other properties
or uses similarity situated; and.
The approval of the appeal would not be in the best interest
of the community and would not be consistent with the spirit
and intent of the City's zoning laws.
{CASE 320-BA
Mr. Eddy Autry owns a vacant building located at 2405 Hegele. A tavern
(Dolly's Place) operated on the site until December 1984. An application
for a Specific Use Permit for a drinking place was presented at a joint
public hearing on May 19, 1986. On May 2.7, 1986 City Council denied
the permit. A request for a new hearing was made to the Planning Commission
on September 22, 1986. This request was tabled by the Commissioners.
The property is vaned GC -MD (General Commercial Multiple -Family Dwelling).
The GC -MD district allows a wide range of permitted commercial uses
such as: food stores, general retail stores, automotive services, restaurants,
offices and various personal services. However, uses with nusiance
characteristics such as bars, auto body repair shops, and adult book
stores require a specific use permit to allow City Council the chance
to determine if the use is appropriate for a particular location.
This request is an appeal regarding the need for a Specific Use Permit
for a drinking place at 24015 Hegele. Mr. Elmo Willard, 11L, Attorney,
is representing Mr. Eddy Autry, the property owner.
A letter from the applicant's attorney is attached.
BOARD OF ADJUSTMENT
APPEAL PROCESS: Appeals to the Board of Adjustment can be taken by any
person aggrieved by any decision of the administrative officer. Such appeal
shall be taken within a reasonable time after the decision has been rendered
by the administrative officer by filing with, the officer this application
for appeal,
ERROR BEING APPEALED: The applicant hereby alleges that the following error
in the order, requirement, decision or determination has been made by the
administrative officer in enforcement of the Zoning Ordinance: The Plan-
ning Department erroneously concluded that Applicant required a variance
I
permOt because premises were vacant for a period of more than twelve (12)
months.
In order for the Board of Adjustment to grant an appeal the Board of Adjust-
ment must find the following conditions have been met: (Explain after each
condition how you believe the condition has been met.)
I. That there is a reasonable difference of interpretation as to the specific
intent of the zoning regulations or zoning map, Court Interpretations of
zoning ordiances such as the one in issue equate "vacant" with
"abandonment." There is no evidence of abandonment of the Premises and
Applicant is prepared to show that he never abondoned same.
2. That the resulting interpretation will not grant a special privilege to
one property inconsistent with other properties or uses similarly situated.
Applicant is prepared to show that the use such as the one proposed is
the same as uses directly accross the street from his premises and other
uses within a two block area.
3. The decision of the Board must be such as will be in the best interest
of the community and consistent with the spirit and interest of the, City's
zoning laws. in addition to the assertion set out in number two (2)
above, Applicant contends that his proposed use is in keeping with com-
mon sense consistency in zoning ordiance enforcement.
APPLICANT'S SIGNATURE
NOTE: THE APPLICANT HAS THE BURDEN OF, PROVING TO THEI'BOARD OF ADJUSTMENT THAT
Al I OP T14r Apovi: rr1d nTTT0WZ WAVr PCVNI PACT
March 30, 1987
TO: CITY OF BEAUMONT
BOARD OF ADJUSTMENT
RE: APPLICATION FORM
EDDY AUTRY
NO. 6
In compliance with the directives contained in this section.
of the application applicant submits the following details:
Applicant is the owner of the premises located at 2405
He,gele Street. For a period of over forty (40) years such pre-
mises have been leased to various persons who have used same as
an on -premise retail liquor outlet, or beer tavern.
In or about the month of December, 1984, and after the last
tenant, Mrs. Dollie Dobbins vacated said premises, applicant al-
lowed same to remain vacant for a period of time, while he commenced
repairs to the entire structure. After the repairs were substan-
tially completed, and applicand had secured another tenant he was
told by Mr. Kirk Anderson that before said premises would be
allowed to re -open as a beer tavern he would be required to apply
to the Planning and Zoning Commission for a Specific Use Permit.
This procedure was initiated by applicant on or about the 24th day
of April 1986,.when applicant filed his original application for
such permit with the Planning Department. Thereafter, on or about
the 19th day of May, 1986 a hearing was duly held on such application
resulting in a denial of same.
Subsequently, present counsel was retained for the purpose of
attempting to re -open said hearing. Counsel was successful in this
attempt, and a public hearing was conducted on or about the 22ad day
of September, 1986 regarding the substance of the original applica-
tion. At such hearing, it was pointed out that the legal interpre-
tation of ordinances such as that employed by the City of Beaumont,
equate "vacant" with "abandonment," and that abandonment must
include the critical element of intention on the part of the
landowner, i,e. "vacant' means vacant with intent to remain so.
Following, the hearing, several conferences were held with
representatives of the Planning staff and City Attorney"s Office
during which evidence was submitted tending, to show that the
landowner/applicant had no intention of abandoning the premises
even though they might have been vacant longer than the twelve
(12) months provided by ordinance, These representatives finally
concluded, after due and protracted consideration, that the
burden of proof lay with the landowner, and that they were not r
convinced by the proof submitted that abandonment had not occurred.
The present appeal therefore, is an attempt on the part of
the landowner/applicant to convince this Board of the error of such
conclusion, and that said applicant is therefore, not required to
obtain a Specific Use Permit.
Very truly yours,
/ F i"R. Willard, III.
Counsel for applicant.
CASE+ 320-13A
APPLICANT: Eddy Autry PROPERTY OWNER: Eddy Autry
STATUS OF APPLICANT: 0 OWNER 0 PROSPECTIVE BUYER
C1 TENNANT 0 OTHER
I LOCATION - 2405 Heele
9=0 ".=,0=1fMM7M;MNW*Tq
EXISTING ZONING: I GC -MD (General FLOOD HAZARD ZONE C (Minimal)
Commercial -Multiple Family Dwelling) 0 B (Moderate)
0 A (100 YEAR)
E] FLOODWAY
SIZE OF PROPERTY: 0.26 ACRES
I EXISTING LAND USES: Vacant Commercial
SURROUNDING LAND USES'
NORTH: Commercial (tavern)
EAST: Residence
SOUTH: Vacant lots & Residence
WEST: Residence
SURROUNDING ZONING*
RM-H
GC -MD
RM-H
RM-H
I COMPREHENSIVE PLAN: Conservation and Revitalization
I OTHER PHYSICAL FEATURES NONE
CASE+ 320-BA
EXISTING:
STREET R. O. -W.*,/PAVEMENT
Ilegele 40-ft. / 20-ft.
�FAA,
rk F-103 K M F]MR41 -0 1
DESIGNATION/.R. 0. W.
Residential / 40-ft.
Usan 40-ft. / 20-ft. Collector / 60-ft.
WATER LINES (SIZE AND LOCATION) 8" in Hegele; 6" in Usan
SANITARY SEWER (SIZE AND LOCATION) 6" in Hegele; 10" in Usan
DRAINAGE 27" storm sewer in Hegele; surface ditches in Usan
FIRE PROTECTION: FIRE STATION NO. 10, 3855 Washington Blvd.
ADEQUACY OF FACILITIES AND SERVICES: The existing streets, utilities
and services are adequate to serve the proposed use.
• gaguzin
IN
RESPONSES IN OPPOSITION
* R. O. W.= RIG14T OF WAY
A E # 320-13A
A. APPEAL
Applicant is appealing a decision by an administrative officer of the
City Planning Division which denied the re -opening of a tavern without
the applicant first obtaining a Specific Use Permit. The reason for
the denial was that said tavern had been vacant and not used as a tavern
for a period of excess of twelve months. The Zoning Ordinance, Section
30-30B (2), under Limitations on Nonconforming Uses, states:
"Any building, structure or land which is occupied or
used as a lawful nonconforming use which shall become
vacant or unused for continuous period of one (1) year
shall not thereafter be occupied or used except for a
use which conforms to the use regulations of the
district in which it is located...."
B. BACKGROUND
The property and structure at 2405 hegele, a tavern, possessed a beer
and wine permit from the Texas Alcoholic Beverage. Commission which expired
on December 28, 1984.. The tavern closed at that time and became vacant.
The applicant's operator applied for a Specific Use Permit during April
of 1986.
• A tavern was in operation on subject property when the. City adopted the
original 1955 Zoning Ordinance. The site was zoned R-3 (Modified Two -Family
and Multiple Dwelling). A drinking place was not a permitted use in
the R-3 District making the tavern a nonconforming use. In 1977, the
property was re -zoned to LR-1 (Local Retail District). The tavern remained
a nonconforming use since drinking places were not permitted in the LR-1
districts. Finally, in 1981, as part of the newly adopted Zoning Ordinance,
the applicant's property was re -zoned to GC --MD (General Commercial -Multiple.
Family Dwelling). A drinking place in GC -MD is allowed only after the
issuance of a Specific Use Permit by the City Council. This requires
a joint public hearing and passage of an ordinance by City Council...
• The applicant applied for a Specific Use Permit and a Public Hearing
was held on May 19, 1986. Subsequently, on May 27, 1986, City Council
denied the applicant's request to re -open the tavern. The applicant
then applied to the Planning Commission on September 22, 1986 for a re -hearing
of this request to open the bar. The Planning Commission did not act
on the request. During this hearing the applicant's Attorney presented
the issue of abandonment, stating his client never abandoned the bar
use and, therefore, a Specific Use Permit was not needed to reopen.
The Commission sent the issue back to the staff to determine if a Specific
Use Permit was required to allow the bar to reopen. It is the staff's
opinion a Specific Use Permit is required.
C. CONDITIONS FOR. APPEAL
In order for the Board of Adjustment to decide an appeal in favor of
the applicant the Board must find the following three conditions have
have been met;
Ja V allA
1. That there is a reasonable difference of interpretation as to
the specific intent of the zoning regulations or zoning map.
Deciding the appeal in favor of the applicant would be inconsistent
with the stated regulations of the Zoning Ordinance regarding
non -conforming land uses based on the following:
Section 30-248, Permitted Use Tables under SIC Group number
581.3, Drinking Places, allows drinking places on property
zoned. GC -MD (General Commercial -Multiple family Dwelling)
only with a specific use permit. The applicant's property
is zoned GC -MD.
Section 30-30B (2), Won -conforming Uses, stipulates a non-
conforming use that becomes vacant or unused for 1 year or
more cannot be reopened. Only a use that conforms to the
use regulations may open. The applicant applied for a specific
use permit in April of 1986. Tl,,, Last liquor license for
the applicant's property expii.F xi December of 1984. The
property was vacant and unused as a bar for at least 16 months,
therefore, a specific use permit is required to open a bar.
Attached is a memo from the City A.ttorney's office addressing
the applicant's contention that "vacant" means "abandonment".
Finally an exemption to the requirement of a specific use
permit is found in Section 30-30D (2) of the Zoning Ordinance..
In order to qualify for this exemption the bar had to have
been a conforming use in 1981 at the time the property was
rezoning to GC -MD (General Commercial -Multiple Family Dwelling).
Since the property was zoned R-1, which did not allow bars,
the establishment was a nonconforming use and does not qualify
for the exemption.
2. That the resulting interpretation will not grant a special privilege
to area property in consistent with other properties or uses
similarly situated.
Deciding the appeal in Mr. Autry's favor would be giving
a special privilege for the use of property inconsistent with
the stated regulations of the Zoning Ordinance regarding
non -conforming land use.
• The area around the subject tract is primarily residential.
Another tavern the Ambrosia is located across the street from
2405 Hegele. The Ambrosia is on property zoned RM-H (Residential
Multiple Family Dwelling -Highest Density) which makes it a
non -conforming use. Single family homes lie to the east,
west and south of the applicant's property. Also, there are
vacant, residentially zoned tracts situated south of the subject
site. The re-establishment of a bar in the neighborhood could
Impede further residential conservation and revitalization.
it is the intent of the Zoning Ordinance that a non -conforming
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use be eventually eliminated and replaced with a conforming
use. Because of size limitations the property owner will
not be able to buffer his property from his neighbors with
landscaping materials without losing his parking spaces.
3. The decision of the Board must be in the best interest of the community
and consistent with the spirit and interest of the City's zoning
laws.
• It would not be in the best interest of the community, nor
would it be consistent with the spirit of the Zoning Ordinance
to grant the appeal. The City's Comprehensive Plan encourages
compatible development and re -development in Conservation
and Revitalization Areas.
• As demonstrated during the public hearings and by the Planning
Commission and City Council actions, the best interest of
that neighborhood is not to have a bar within it. The spirit
and intent of the Zoning Ordinance is to allow development
of bars and taverns in locations where the nuisance factors
(noise, late hours, traffic, etc.) commonly associated with
bars will not detract from the use or value of adjacent properties.
The subject property is in a predominantly residential neighborhood.'I
Neighborhood residents have objected to the bar as a nuisance.
FILE 320—BA APPEAL TO THE BOARD OF
l _ _ ADJUSTMENT; DRINKING PLACE AT 2405
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INTER -OFFICE MEMORANDUM
CITY OF BEAUMONT, TEXAS
Date: May 5, 1987
TO: Zoning Board of Adjustment
FROM: Tyrone Cooper, First Assistant City Attorney
SUBJECT` Non -conforming use
C 0 M M E N T:
This appeal is before you due to the decision of an
administrative officer (Planning Director) in requiring the
property owner, Mr. Eddie Autry, to secure a specific use permit
for the operation of a bar at 2405 Hegele Street. The basis of
this decision is that the use was allowed to exist at this
location as a prior non -conforming use. The non -conforming use
became vacant or unused for a period of one year which, pursuant
to Section 30-30(b)2i of the Zoning Ordinance, caused the use to
lose its nonconforming status. However, bars are allowed in
CC -MD zoning districts with a specific use permit. "Non-
conforming use," as defined by the Zoning Ordinance of the City
of Beaumont, is:
'"a non-residential use of a building or land
which does not conform to the use district
regulations of this chapter and which
lawfully existed at the time the regulations
with which it does not conform became
effective. A lawful conforming use existing
at the time of the adoption of this ordinance
shall not become non -conforming as a result
of a specific use permit requirement.
Section 30-30(b)2. states that:
"'any building, structure or land which is
occupied or used as a lawful non -conforming
use which shall become vacant or unused for a
continuous period of one (1) year shall not
thereafter be occupied or used except for a.
use which conforms to the use regulations of
the district in which it is located...."
Zoning Board of Adjustment
May 5, 1987
Page
The facts presented to us and the information that we have
been able to gather indicates that the non -conforming use has
been "vacant or unused" in excess of the one-year period required
by the ordinance. The intent of this provision is that vacancy
or non-use of any non -conforming use in excess of the one-year
period is an abandonment or discontinuance of the non -conforming
use as a matter of law. This vacancy or non-use of the premises
for the requisite period of time operates to prevent and prohibit
the resumption of a non -conforming use. Failure to resume the
non -conforming use within the time set by ordinance is construed
by the ordinance to constitute the failure to act sufficient to
support the implication of intent by the owner of the property to
abandon and not continue the use.
It is the position of this office that the vacancy or Mr.
Autry's failure to use the premises for a continuous one-year
period results in his intent to abandon the right to the
non -conforming status of the premises.
'14 •',l)ROXIM
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