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HomeMy WebLinkAbout11-5-92 BA MinutesBOARD OF ADJUSTMENT November 5, 1992 City Council Chambers A meeting of the Board of Adjustment was held on November 5, 1992 with the following members present: Chairman Milton Bell Board Member Jayne Eisen Board Member Gerald Farha Board Member Ron Lanier Board Member Bill Lucas Board Member Kevin Fuller Board Members absent: Board Member Charles Thompson (excused absence); Board Member Close (excused absence); and Board Member Chavis (excused absence) Also present: Kirt Anderson, Planning Director; Murray Duren, Sr. Planner; Tyrone Cooper, First Assistant City Attorney; Bruce Cobb, Assistant City Attorney; Rick Bailey, Drafting Technician; Jill Manning, Recording Secretary. APPROVAL OF MINUTFS Board Member Eisen made the motion to approve the minutes of the September 3, 1992 Public Hearing. Motion was seconded by Board Member Lanier. Motion carried 6:0. PUBLIC HEARING 1) At this time, Board Member Eisen excused herself from discussion of this case. File #353-BA: Consider the variance requests by Munro's Dry Cleaning Co., Inc. involving the setback regulations for portable signs (Sec. 30-28 C.3) at four commercial locations: (a) 4865 Concord Rd.; (b) 5905-A Phelan Blvd.; (c) 3710 W. Lucas Dr.; and (d) 4408 Dowlen Road. Mr. Duren introduced the case: Location "A" - 4865 Concord Road (Village Shopping Center). Munro's is a tenant. Sign is on property line facing E. Lucas Drive. Location "B" - 5905-A Phelan Boulevard ("Gun Runner" Shopping Center). Munro's is a tenant. Sign on property line facing Phelan near its intersection with Goodhue Road. BOARD OF ADJUSTMENT November 5, 1992 Public Hearing Location "C" - 3710 W. Lucas Dr. at Folsom. Munro's is the owner of the building and lot at this location. The sign is located at the northeast east corner of the intersection. Location "D" - 4408 Dowlen Road (Parkdale Plaza Shopping Center). Munro's is a tenant. Sign facing Dowlen at north end of building. The ordinance which regulates signs, Sec. 30, City Codes, known as the Zoning Ordinance, applies to each of the four variance requests being considered. Code requirements were discussed in general as they apply to the granting of variances. Each location will be addressed individually and separately so that portable signs "A", "B", "C" and "D" were presented and considered on the merits of each request. Each location was advertised as a separate application as required by applicable law. Vernon's Texas Civil Statutes authorizes cities to zone their cities and regulate the number and size of buildings, and other structures; the size of yards and other open spaces, and the location and use of buildings. It also allows cities to regulate and restrict erection, construction, reconstruction, and repair or use of buildings, structures or land. Mr. Duren reviewed the purpose of the zoning ordinance as found in Section 30-3 which is to promote the health, safety, morals and general welfare of the community, in accordance with the comprehensive plan. Zoning regulations are to provide adequate light and air; to prevent the overcrowding of land; to conserve the value of building and encourage the appropriate use of land throughout the city. In addition, Mr. Duren reviewed definitions of terms found in Section 30-4 B., City Code of Ordinances and Section 30-28, Sign Regulation. Location "A" at 4865 Concord Rd. (Village Shopping Center); property owned by Business Properties, Inc. The property is in General Commercial Multiple -Family Dwelling District; the surrounding land uses are commercial, residential, school. Location "B" at 5905-A Phelan Boulevard (Gun Runner Shopping Center); property owned by Theodore Hanchey. The property is zoned General Commercial Multiple -Family Dwelling. The surrounding land uses are residential and commercial. Location "C" at 3710 W. Lucas Drive at Folsom Road. Property is owned by Munro Properties. Property is zoned General Commercial Multiple Family Dwelling. The surrounding land uses are commercial and residential. Location "D" at 4408 Dowlen Road (Parkdale Plaza Shopping Center). Property is owned by Parkdale Plaza Shopping Center. Property is zoned General Commercial Multiple Family Dwelling. The surrounding land uses are all commercial. A slide presentation of all four locations was shown. K BOARD OF ADJUSTMENT November 5, 1992 Public Hearing Speaking in Favor Bill Munro 6690 Windwood Beaumont, Texas Mr. Munro told the Board that all four signs have been in place for approximately six years. He said the signs are used for public service messages in addition to Munro's advertising. He said he took out permits with the city at the time the signs were put in place in 1986. His landlords have approved the signs and they are well maintained and do not obstruct traffic. Mr. Munro had a video presentation. Mr. Duren continued with the staff analysis: Location "A" - Notices were sent to the forty three abutting property owners. No replies in favor or opposition were received. The zoning regulations were written to apply to everyone in each zoning district; the sign regulations were written to help business owners with advertising, but at the same time prevent traffic problems, unsightly street litter, etc. in the city. Portable signs present special problems to the city. Village Shopping Center contains 176,000 sq. ft. and has many tenants. The parking lot provides approximately 1,700 parking spaces and extends from Pinkston Drive north to East Lucas Drive. It is the opinion of the staff members that studied the site that there are places for portable signs to be placed on that property that would comply with the regulations. Granting a variance for this sign would be contrary to the public interest. The applicant has not met the requirements to satisfy Condition A. Under Condition B, the applicant stated that moving the sign back 10 ft. to comply would cause a hardship because the sign would be in a traffic lane. However, this statement did not demonstrate that literal enforcement of the ordinance would cause an unnecessary hardship because of the physical configuration of the property. His situation is not unique to him, but is equally shared by every tenant in the shopping center and by any other business owner located in a general commercial district. The sign is meant to attract the attention of drivers on East Lucas. The regulation has been enforced since 1981, prior to the time that Mr. Munro leased space in the center. The sign ordinance regulations also went into effect in 1981. The applicant has not met the requirements of unnecessary hardship under Condition B. The applicant's statement for Condition C states that the signs are located in safe places and will deliver public service messages as well as Munro's advertising. The ordinance deals with the entire community and the regulations apply to all who advertise. Each tenant in the center is under the same regulations within the same zoning district. There is no hardship presented here that relates 3 BOARD OF ADJUSTMENT November 5, 1992 Public Hearing to the property. The request for a variance is for financial reasons and for convenience. The applicant has not met Condition C. Location "B" - Notices were sent to nineteen abutting property owners. Three responses in opposition were received; none in favor. Mr. and Mrs. Johnny M. Richey, 5865 Calder, responded in opposition. Nell P. McCallum, 585 Goodhue, responded with "I am absolutely opposed to any further or more extensive liberalizing of the restrictions." T. O. Looney, 590 Goodhue, responsed with "portable signs are an eyesore to our city and in this case the sign is an endangerment to safety. The sign inhibits a drivers view of oncoming traffic when entering the Phelan Blvd. -Goodhue Rd. intersection. Traffic departing the Gun Runner shopping center and Calder Oaks Apartments cannot see traffic moving east on Phelan Boulevard. I am opposed to granting Munro's Dry Cleaning Co., Inc. relief from strict application of the setback regulations for portable signs." Chairman Bell offered for Mr. Munro to examine the responses. Mr. Duren responded to the applicant's statement for Condition A with the comment that enforcement of the minimum setback regulations are difficult and time consuming. He said portable signs are often placed on property lines or in the street right-of-way blocking the view of drivers and interfering with sidewalk access to pedestrians. Variances should not be contrary to the public interest. The sign is used for advertising. The center contains approximately 34,000 square feet. There are several tenants. Only Munro's has chosen to use a portable sign. The other tenants either use the center's sign or a building sign. This sign is focused on Phelan traffic but is partially obscured by the landscaping provided by the owner of the property. There may or may not be a place for a portable sign at this location; that is something to be worked out by the tenant and the owner of the property. Granting a variance for this sign would be contrary to the public interest. For Condition B, the applicant again states that to set the sign back would put it in the traffic lane. This statement does not demonstrate that literal enforcement of the ordinance would cause unnecessary hardship because of the physical configuration of the property. His situation is not unique to him but is equally shared by all the tenants of the shopping center. The sign is meant to attract traffic on Phelan. The regulation has been in effect since 1981, prior to the time that Munro's leased space in the center. The applicant's statement under Condition C does not address the question of how granting the variance would be in keeping with the spirit of the ordinance and that substantial justice will be done. He says the sign is located in a safe place, will deliver public service messages and aids in advertising. (Mr. Munro informed Mr. Duren that the lease was signed in 1979.) These regulations apply to all who lease and advertise in each zoning district. No hardship was presented in the application. The request is for financial reasons and for convenience. The applicant has not met Condition C. 4 BOARD OF ADJUSTMENT November 5, 1992 Public Hearing Location "C" - Notices were sent to eight abutting property owners. One replied in favor and none in opposition were received. The reply in favor was received from Mrs. Tilley and her response was that the sign did not bother her at all. This is the property that Munro's constructed for a laundry. He does have an existing rotating pylon sign and banners on the windows in front of the building and the violating portable sign on the corner. It's placed at a sharp angle between Lucas and Folsom so this sign might appeal to all traffic coming through this intersection. The applicant may or may not be able to meet the requirement of the setback in a way that would meet his needs, but he has not shown that granting this request will be in the public's interest as addressed under Condition A. Again, the 1981 regulation that was in place when this building was built. The building was built in a new subdivision that was constructed under the regulations of the 1983 subdivision ordinance. There are other tenants and other business owners along Lucas. The sign should be relocated to meet the code requirements. He has not shown that literal enforcement of the ordinance will cause an unnecessary hardship because of the physical configuration of the property itself. This request relates to the convenience for the financial benefit of the property owner. It does not relate to an extreme physical hardship caused by the property. Applicant was aware of the sign ordinance when this store was opened. The ordinance deals with the entire community. Regulations apply to all. The property is in a general commercial zoning district, and all the other businesses on that strip all the way to Eastex are under the same regulations. Granting a variance would not provide substantial justice to the public. Location "D" - Notices were sent to the seven abutting property owners. Two replies in opposition were received. Crossroads Shopping Center (Crossroads Properties) responded in opposition with, "this type sign in this particular location will obstruct visibility of our customers leaving our center and it creates a traffic hazard". Parkdale Plaza Development Corporation responded with, "this is to inform you and the Board of Adjustment that Parkdale Plaza Development Corporation, owners of Parkdale Plaza, does not want any portable signs on Parkdale Plaza. Your cooperation on this matter will be appreciated". No replies in favor were received. The zoning ordinance regulations were made in accordance with our adopted Comprehensive Plan. These regulations were designed to ease traffic congestion, fire prevention, provide adequate light and air, prevent overcrowding of land and other public goals. Zoning regulations try to regulate the use of land so that the values of existing buildings are preserved and new development is compatible with the existing development and neighboring properties. The city regulations encourage appropriate land uses so that property values are not diminished by incompatible activities and operations. The sign regulations were adopted to provide a set of rules that all could reasonably follow. The portable sign located in the Parkdale Plaza Shopping Center is in the South Parkdale Addition. 5 BOARD OF ADJUSTMENT November 5, 1992 Public Hearing Both the subdivision and the center's development were created after the zoning ordinance was adopted which includes the sign regulations. The sign on Dowlen is placed on the property line in front of the end of the building that houses the tenant. There are many tenants in the Plaza which contains over 100,000 square feet and provides about 400 parking spaces. Munro's also has an owner identification sign in front of the lease space. This applicant is the only tenant that has chosen to use a portable sign in violation of the ten foot minimum setback regulations. All the property in the center is in the same zoning district (GC -MD). All tenants are subject to the same rules. The public interest means more than the interest of one person and more than the interest of a select few in a particular district. The public's interest is the interest and general welfare of all the people. The applicant has not met the public interest test for Condition A. In response to Condition B, the applicant has not demonstrated that literal enforcement of the ordinance will cause an unnecessary hardship because of the physical configuration of the property. His situation is not unique to him but is equally shared by all the tenants of Parkdale Plaza. The application for the portable sign facing Dowlen is for the convenience of the applicant. The sign is meant to attract drivers on Dowlen. The applicant was aware of the sign ordinance regulations that have been in force since 1981, prior to the time that he opened his store at this location. Under Condition C, the applicant's statement did not address the question how granting the variance is in keeping with the spirit of the ordinance and that substantial justice will be done. He says the sign is located in a safe place, will deliver public service messages and aid Munro's advertising. There is no hardship presented here related to the property. The applicant is requesting a variance for financial reasons and for convenience. In the staffs opinion, granting a variance would not provide substantial justice to the ordinance or to the public. The applicant has not satisfied Condition C. Staff is recommending denial of the requests for variances at Locations A, B, C, and D. The applicant has not satisfied the legal requirements needed for the variances. He has not shown that the variances are in the public interest. He has not demonstrated unnecessary hardship or extraordinary physical conditions for any of the four sites. The applicant has not satisfied in his application that by granting the variances, the spirit of the ordinance would be observed. Rebuttal by Mr. Munro: Regarding the sign at the Crossroads Center, there is no way that this sign blocks any view from that particular center. He said he has had several conversations with Mr. Conn and he never mentioned the sign before. Mr. Munro added that there is a Subway Sandwich sign that he believes is in violation. Mr. Munro finished by saying that they take good care of their signs, they're not a public hazard and that the company would appreciate a variance. 6 BOARD OF ADJUSTMENT November 5, 1992 Public Hearing There being no other comments, Chairman Bell closed the public portion of the meeting. Board Member Lanier asked if it was determined how far back each sign was located. Chairman Bell responded that some are on the property line and some just within it. Mr. Lanier asked if any measurements were taken. Mr. Duren responded that three of the signs are on the property line and one may be across the property line into the right-of-way. He said he had not taken any actual tape measurements. Mr. Lanier asked if there was any follow-up when a permit is issued. Mr. Duren responded that the staff is not aware that city has issued permits on any of the four signs discussed. Mr. Lanier said he would like to look at any permits that Mr. Munro has. Mr. Anderson explained that "...the only way a legal permit could have been issued by the building official is one that does comply with the ordinance. The building official isn't empowered to issue a permit that would allow the sign to sit on the property line. Whether the permit issued actually indictated a 10 ft. setback and then it was never actually placed at that spot or if the permit didn't address the issue or not or wasn't even issued or not really has a minor impact in the staffs opinion in terms of the fundamentals. The Code still has to be complied with by law in any one of those type scenarios". Mr. Farha questioned why the landlords or the property owners have not asked Mr. Munro to move his signs. Mr. Fuller asked how far the building is from the back of the property line at the Folsom and Lucas location. Mr. Munro said he thought it was five feet off that back property line. Chairman Bell expressed his concern over a portable sign being in place for six years and said that in his opinion, that would become a permanent sign. Mr. Lucas asked Mr. Duren if all four locations had other places to position the signs where they could be meeting the Code and asked if he discussed this with Mr. Munro. Mr. Duren said that all four were in violation and the only way they could get a permit is with a site plan showing that the sign is in fact in the proper place or they're not going to get a permit there. Mr. Anderson stated that there's probably numerous locations on almost all the sites, except Lucas where you can place a sign behind or comply with the Code where a structural support itself is set back ten feet into the ground. The actual sign or face of it can overhang to the property line, obviously it can't cross the property line but it can come out to the right of way line. The fundamental problem you have with most portable signs is, whether or not you bolt them to the 7 BOARD OF ADJUSTMENT November 5, 1992 Public Bearing ground, they essentially have four legs at four corners and when you pick up the whole thing and put it ten feet back as required by code, it normally places it where the property owner would like to have his traffic lane or a parking stall, but that is a design issue that's internal to his site and a choice of his nature. There have been people in the past that have taken a sign and put it on a pole and placed the pole permanently into the ground. The pole is then ten feet back but the portable sign sticks out. One other point that Mr. Anderson made, referencing back to Mr. Farha's question, the applicant in this case for the variance is Munro's. In terms of a violation the city tries to work with him since it's obviously his business that has placed the sign out there, but the property owner is held responsible. In a couple of these shopping centers, where he is a tenant, the city could have just as easily and properly filed against the property owner which would be the shopping center owner as having the violation; and in that case, they may be coming forward and taking the action. Mr. Farha asked if the Subway sign has been addressed the same way that Munro's had. Mr. Anderson said yes that the city has been out and visited with them. Mr. Munro asked the Board if there was a statute of limitations regarding the signs and or permits. Mr. Cooper told the Board that there is no statute of limitation on it and the ordinance does address that any structural support would have be back ten feet from the property line which means if any part of his sign is within that prohibited area, it needs to be moved back, and if the board wants to say that after six years his sign is permanent, then that only means that all portions of that permanent sign have to be back 10 feet. But by definition, it's still a temporary sign. Mr. Lanier discussed his concern over the residents on Goodhue responding that the sign blocks the view there. Chairman Bell said he felt like a portable sign is a temporary sign and six years is past the temporary stage. Mr. Lanier agreed. Board Member Fuller made a motion to deny the request at Location A. Board Member Lucas seconded the motion. Motion to deny passed 3:2. Board Member Fuller made a motion to deny the request at Location B. Board Member Lanier seconded the motion. Motion to deny passed 5:0. Board Member Fuller made a motion to grant the request at Location C. Board Member Lucas seconded the motion. Motion to approve the request passed 4:1. Board Member Fuller made a motion to deny the request at Location D. Board Member Lucas seconded the motion. Motion to deny passed 4:1. Chairman Bell explained to Mr. Munro that there's an appeal period of ten days. 8 BOARD OF ADJUSTMENT November 5, 1992 Public Hearing 2) At this time, Board Member Fuller excused himself from discussion of this case. File #354-BA: Consider a variance request by Jan Ford Blanchette involving the front yard building setback (Sec. 30-25 B.1) for a residence on a residential lot at 5575 Viking Drive in the Tanglewood Addition. The applicant is requesting a variance to extend her residence 6.6 feet into the required 25 ft. front yard building setback line for a residential lot in a residential zoned area. The applicant wishes to demolish an existing carport that sits in front of the house. It sits back 25 ft. back from the property line. She wishes to replace the carport with an enclosed garage for two cars and an addition of a storage closet and a small study on a second story of the proposed addition to the house. The property owner wishes to continue the same method of entry into the garage but will enclose it and remodel it to resemble the house itself and also to create a new doorway into the house from the garage rather than from the front yard. Speaking in Favor Jerry Nathan 1510 Belvedere Beaumont, Texas Speaking in Opposition Ernest Breda 5555 Viking Drive Beaumont, Texas Mr. Duren continued with the staff analysis. Under Condition A regarding public interest, the staff feels that the architectural design of the 1-1/2 story garage addition will improve the appearance of the existing house and will enhance the general residential character of the immediate neighborhood. The present carport is open and supported by only one structural support. The east (left) side yard setback of 10 feet would remain at 10 feet if the addition is made. The resulting height would be 20 feet, an increase of 6 feet from the existing 14 feet roof height. Single family zones permit heights of 35 feet. The minimum side yard setback for a one story house is 5 feet, 7-1/2 for a two story house. The nearest structure to the carport is the neighbor's garage. Both homes are set back about 25 feet from the property line. The neighbor's garage has no side windows. By adding the proposed 18.4 feet front yard to the distance between the street curb and the front property line, there will be a physcial separation between the addition and the curb of approximately 36 feet. Mr. Duren feels that the applicant complies with Condition A because of that situation. 9 BOARD OF ADJUSTMENT November 5, 1992 Public Hearing The applicant's lot is 67' wide, although the lot was platted as a 70' wide lot. The house is 46' wide and the side yards are about 10' in width. The carport is in need of some structural repair. The applicant does not propose to change the layout of the existing driveway. The applicant would like to enter the garage from the same direction on the driveway without having to remove the landscaping or the large tree. The staff feels that the desire for a direct access from the garage to the house is reasonable from the standpoint of safety and security. Staff feels that the applicant meets Condition B. This proposal is in compliance with Condition C. It's in the spirit of the ordinance regarding yards and setbacks. The staff feels that the public will be served by the architecturally designed addition to the home, which would also enhance the appearance of the immediate neighborhood. Extending the residence six more feet is not going to block the view entering or leaving the property. Staff recommends approval of the variance permitted under Section 30-37 E. 3 because the applicant has shown compliance with the following conditions: (a) granting the variance will not be contrary to the public interest; (b) literal enforcement of the ordinance will result in unnecessary hardship; and (c) by granting the variance, the spirit of the ordinance will be observed and substantial justice will be done. Notices were sent to seventeen property owners. Mr. Breda, 5555 Viking, replied in opposition. He feels that the proposed structure would be too close to the street, too high and block his view and would also adversely affect the property value in the neighborhood. James R. Burkhardt, Elizabeth Petersen, James P. Swain, Warren N. Dudley, and M. E. Warren, all residents on Viking, replied in favor. Chairman Bell closed the public portion of the hearing. Board Member Lucas made a motion to grant the variance. Board Member Eisen seconded the motion. Board Member Lucas commented that the recommendation to the board was valid and doesn't feel that by granting the variance, hardship will be brought to the other neighbors. He also feels that the application complies with all three conditions: Motion to grant the variance passed 5:0. 3) Board Member Fuller excused himself from discussion of this case. File #355-BA: Consider a variance request of the property owners involving the interior side yard building setback requirements (Section 30-25 B.1) for a second story addition to the rear of a residence located at 3840 Usan Street. Mr. and Mrs. Owens seek the variance from Section 30-25 B.1 which requires that two-story houses leave a minimum interior side yard of 7.5 feet. The applicant has only a 5' side yard next to his residence on the north side of his narrow lot. He proposes a 14' x 24.2' second story addition to 10 BOARD OF ADJUSTMENT November 5, 1992 Public Hearing be constructed above the rear 14' of his present home. The house is a one story frame single family dwelling. Notices were sent to thirty-one property owners. Hilda Bernard, 3750 Usan St.; John Babineaux, 2385 May St.; Zella Babineaux, 2385 May St.; and Lillie Granger, 2390 Hebert St. replied in favor. No replies in opposition were received. The addition that Mr. Owens would like to make is 14' x 24'. He is asking you that you allow him to go up 24' x 14' on the rear of the house. He has lived in the house for 20 years. ,The property is only 45' wide, a substandard width for a lot. Several years ago, Mr. and Mrs. Owens constructed a carport 8' behind the house. He poured a slab under the carport and built a driveway extending out to the street on the south side of the property. Behind the carport is an existing storage shed and behind the shed are several large trees. This property is zoned RM-H as are the abutting properties. The property is surrounded by residential development; it is a conservation and revitalization area according to the Comprehensive Plan. Saeakine in Favor Robert Jean 1050 Monterrey Beaumont, Texas Mr. Jean spoke on behalf of Mr. and Mrs. Owens because their son was hospitalized as the result of an accident. Mr. Jean will make the improvements to the Owens' home. Mr. Duren continued with the staff analysis. Granting the variance will not be contrary to the public interest. They have lived in the house for 20 years. Ten years ago, Mr. Owens built the carport right behind the house. When the house was originally constructed (by others), there was no 7.5' setback requirement. Because of the needs of the family that wishes to stay there, the staff feels this is in the public interest. The lot is 45' wide, a substandard width. He purchased the property as is. Forcing a one story addition to the rear would cause an unnecessary hardship because of the narrowness of the tract and because of the location of other structures and buildings causing a physical condition unique to this piece of property. Mr. Owens purchased the property many years ago and needs to make a 339' sq. ft. addition because of the needs of the family. The narrow lot precludes a one-story extension without causing extreme hardship to the owners. The second story will add value to the property and will be in the public's interest. If this variance of 2.5' is granted, the spirit of the ordinance will remain intact and substantial justice will have been done. Staff recommends approval based on the reasons that he meets Conditions A, B and C. Chairman Bell closed the public portion of the meeting. 11 BOARD OF ADJUSTMENT November 5, 1992 Public Hearing Board Member Lanier made a motion to grant the variance. Board Member Lucas seconded the motion. Motion to grant the variance passed 5.10. THERE BEING NO FURTHER BUSINESS, THE MEETING WAS ADJOURNED. 12