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Home My WebLink About03-02-23 BA Minutes $$$ " * M I N U T E S * BOARD OF ADJUSTMENT March 2, 2023 City Hall, 801 Main Street A meeting of the Board of Adjustment was held on March 2, 2023 and called to order at 3:00 p.m. with the following members present: Chairman Dana Timaeus Board Member Jeff Beaver Board Member Tom Rowe Board Member Rogers Sorrell Jr. Alternate Board Member Chris Jones Board Members absent: Board Member Joey Hilliard Alternate Board Member Christy Amuny Also present: Adina Josey, Senior Planner Chase Engman, Assistant City Attorney Susan Smith, Recording Secretary APPROVAL OF MINUTES Alternate Board Member Jones moved to approve the minutes for February 2, 2023. Board Member Board Member Sorrell seconded the motion. The motion to approve the minutes carried 5:0. SWEARING IN OF WITNESSES All witnesses were sworn in at 3:02 p.m. OTHER BUSINESS Chairman Timaeus proposed hearing Other Business prior to the Public Hearing portion of the meeting in order that the Board may understand the Texas Local Government Code amendment by which the members would be making a decision for the Public Hearing agenda item. He then explained the amendment and referenced the memo included in the meeting packet, which states: City Ordinance Section 28.002.005(e)(3)(B), (page 28.16) says the Board of Adjustment Fxuuhqw"" cannot consider financial issues in determining if an "unnecessary hardship" exists. Legislature has recently changed this. Tex. Loc. Govt Code 211.009: BOARD OF ADJUSTMENT March 2, 2023 $ In exercising its authority under Subsection (a)(3), the board may consider the following as grounds to determine whether compliance with the ordinance as applied to a structure that is the subject of the appeal would result in unnecessary hardship: (1) the financial cost of compliance is greater than 50 percent of the appraised value of the structure as shown on the most recent appraisal roll certified to the assessor for the municipality under Section 26.01, Tax Code; (2) compliance would result in a loss to the lot on which the structure is located of at least 25 percent of the area on which development may physically occur; A Post-Session update from the Texas Municipal League states the following: A BOA is authorized to grant a variance if, among other things, enforcing the ordinance as f TOFQQBK!TLRIA!OBPRIQ!FK!WRKKB@BPP>OU!E>OAPEFM'X!<EB!QBOJ%!WRKKB@BPP>OU!E>OAPEFMX!FP!KLQ!ABCFKBA! in state law, so over time courts have grappled with the sorts of facts that can constitute an WRKKB@BPP>OU!E>OAPEFMX!>KA!GRPQFCU!DO>KQFKD!>!S>OF>K@B'!=KQFI!QEB!M>PP>DB!LC!5'2'!),.-%!>K! unnecessary hardship would be one that was not self-imposed, personal in nature, related to the property for which the variance is sought, and not a solely financial hardship. The hardship needed to be a condition unique, oppressive, and not common to other property. This changes the above analysis in a couple ways. It adds more objective criteria which a BOA @>K!@LKPFABO!QL!ABQBOJFKB!TEBQEBO!@LJMIF>K@B!TFQE!>!@FQUYP!VLKFKD!LOAFK>K@B!>P!>MMIFBA!QL!>! structure would result in an unnecessary hardship. For the first time, purely financial considerations can qualify an applicant for a variance. Additionally, if the proposed structure would be considered a nonconforming structure, that could be grounds to grant a variance. Those are two significant shifts in variance analysis, which allow an applicant to get over the might be an WRKKB@BPP>OU!E>OAPEFMX!EROAIB!>!IFQQIB!JLOB!B>PFIU'!=KABO!QEB!KBT!I>T%!QEBOB unnecessary hardship if: 1. the cost of compliance with the zoning ordinance is greater than 50 percent of the appraised value of the structure as shown on the most recent certified appraisal roll; or 2. compliance would result in a loss to the lot on which the structure is located of at least 25 percent of the area on which development may physically occur; or 3. compliance would result in the structure not in compliance with a requirement of another city ordinance, building code, or other requirement; or 4. compliance would result in the unreasonable encroachment on an adjacent property or easement; or 5. the city considers the structure to be a nonconforming structure. Keep in mind that to grant a variance, the variance must not be contrary to the public interest, and the spirit of the zoning ordinance must be observed. So even if a proposed structure fits an the variance is not automatic. The facts WRKKB@BPP>OU!E>OAPEFMX!@>QBDLOU!>?LSB%!DO>KQFKD surrounding each variance request still have to be analyzed by the BOA, but H.B. 1475 changes 2 BOARD OF ADJUSTMENT March 2, 2023 $ part of the analysis. Cities and their BOAs should look at their zoning rules, policies, documentation, and electronic or printed materials to make sure they are updated to reflect this @E>KDB!FK!PQ>QB!I>T!>KA!?B!OB>AU!CLO!KBT!>ODRJBKQP!COLJ!VLKFKD!>MMIF@>KQP!FK!QEB!C>II'X Board Members had no questions and stated they understood the amendment. PUBLIC HEARING 1) File PZ2023-48: To consider a request for a Variance to the required front yard setback to for a carport. MP!\]PO`NPO!Q\]ZX!,/h!_Z!-h Applicant: Helen Sutton-Tegbe Location: 1310 Galway Drive Mrs. Josey presented the staff report. Helen Sutton-Tegbe is requesting a Variance for the property located at 1310 Galway Drive. She would like to construct a carport in the required front yard. Carports are permitted in the required front yard if there is no existing garage or access to the rear yard. Ms. Sutton-Tegbe, however, has an existing garage. The property is zoned RS (Residential Single- :LXTWd!8bPWWTYR&!LYO!_SP\]PQZ\]P!\]P\\`T\]P^!L!,/h!M`TWOTYR!^P_MLNV!Q\]ZX!_SP!Q\]ZY_!\[\]Z\[P\]_d!WTYP)! The applicant requests the required setback to be reduced fro X!,/h!_Z!-h) A Stop Work Order was issued on January 25, 2023, as construction had begun without the benefit of a permit. The applicant shall have the burden of proof to demonstrate that all three conditions necessary for approval have been met: A) That the granting of the variance will not be contrary to the public interest; B) That literal enforcement of the ordinance will result in unnecessary hardship because of exceptional narrowness, shallowness, shape topography or other extraordinary or exceptional physical situation or hardship physical condition unique to the specific \[TPNP!ZQ!\[\]Z\[P\]_d!TY!\\`P^_TZY)!!fHYYPNP^^L\]d!SL\]O^ST\[g!^SLWW!XPLY!\[Sd^TNLW!SL\]O^ST\[! relating to the property itself as distinguished from a hardship relating to convenience, financial considerations or caprice, and the hardship must not result from the applicant Z\]!ZbYP\]h^!LN_TZY^4!LYO C) That by granting the variance, the spirit of the ordinance will be observed and substantial justice will be done. Slides of the subject property and site plan were shown. Eighteen (18) notices were mailed to property owners within two hundred (200) feet of the subject property. Zero (0) responses were received in favor and one (1) was received in opposition. Mrs. Josey stated that the property owner in opposition commented that if there was a guarantee property values will not go down, they would not mind. 3 BOARD OF ADJUSTMENT March 2, 2023 $ Brief discussion followed concerning _SP!6ZL\]Oh^!TYLMTWT_d!_Z!R`L\]LY_PP!\[\]Z\[P\]_d!aLW`P^!bTWW!YZ_! decrease and the role of the Board to only approve, disapprove, or table an agenda item. The applicant was present. Helen Sutton-Tegbe, 1310 Galway Drive, Beaumont, Texas, addressed the Board. She stated the carport is necessary due to the shape of the property. She further stated that the carport will not encroach in the street and not contrary to her neighbors or public interest. The land is useless without the carport and she presented photographs of neighboring carports similar to the one she is requesting. Ms. Tegbe added that she has met the conditions necessary for approval and submitted the necessary drawings required by Staff. United Metals, of Beaumont, is the contractor and Chairman Timaeus stated that he is concerned that the company began construction of the carport prior to receiving the proper permits from the City. Ms. Tegbe further stated that the garage is currently used to house dogs in kennels. She also voiced concern relating to statements made by City staff during the application process. Chairman Timaeus explained the role of the Board in relation to staff complaints and suggested that Ms. Tegbe follow the chain of command to initiate a complaint. The public hearing on this request was closed. The board discussed the case amongst themselves. The public hearing on this request was reopened. Board Member Beaver discussed with staff the Property Owner Notice forms mailed to surrounding property owners. Ms. Tebge inquired as to the process of obtaining a copy of the notice submitted by the property owner that is in opposition to the request. Board Member Beaver further explained that once the forms are mailed, surrounding property owners will often phone staff with questions relating to the form and not return the form to the City. The board further discussed the case amongst themselves. Also discussed was the location of the proposed carport in relation to the easement along the property line and the side yard setback. The public hearing on this request was closed without further comment. Alternate Board Member Jones moved to approve the request for a Variance to the required front yard setbafor a carport, as requested in File PZ2023-48. Board NV!_Z!MP!\]PO`NPO!Q\]ZX!,/h!_Z!-h! Member Beaver seconded the motion. A roll call vote was taken. Chairman Timaeus-No, Board Member Beaver-Aye, Board Member Rowe-No, Board Member Sorrell-Aye, Alternate Board Member Jones-Aye. The motion to approve failed 3:2. THERE BEING NO FURTHER BUSINESS,THE MEETING WAS ADJOURNED AT 3:24 p.m. 4