Loading...
Planning and Zoning Commission Minutes - 01/10/2001MINUTES PLANNING & ZONING COMMISSION January I 2001 PRESENT: David Rhone, Chairman • Members Lou Ann Phillips • Susan Wood Reeves • Danny Richardson • Bill Rowland • Rusty Sons • Ken Birck • Alternate J. C. Bradberry • David A. Clark, Director of Community Development • staff Steve Seese, City Planning Administrator • Paul Stillson, Planner II • ABSENT: Cliff Berg • Members Lin Purtle • I. CALL TO ORDER The meeting was called to order by Chairman Rhone at 2:00 p.. II. PUBLIC COMMENTS No one from the audience wished to address the Commission. III. ELECTION OF PLANNING AND ZONING COMMISSION OFFICERS Mr. Clark reported that City Council is standardizing board and commission appointments and elections. He stressed that the current Chairman could be reelected but the Vice -Chairman is no longer a member. Mr. Richardson nominated Chairman Rhone for the position of Chairman with Mr. Sons providing the second. The vote was unanimous in favor. Mr. Birck nominated Ms. Phillips with Mr. Sons providing the second. The vote was unanimous in favor. PLANNING & ZONING COMMISSION JANUARY 10, 2001 • PAGE 1 IV. APPROVAL OF MINUTES Mr. Sons made a motion to approve the minutes of the December 13, 2000 meeting as submitted. Mr. Richardson seconded. The vote was unanimous in favor. V. CONSENT AGENDA — No plats were submitted. VI. REGULAR AGENDA 1. Approval of Carport 4805 Harbor Road C 01-01 In cases such as this one where there is a paved alley in the rear of the property, the Commission must determine that rear access to the property is not reasonably possible. Mr. Sons made a motion to approve this request for a carport; Mr. Bradberry seconded. Seventeen surrounding property owners were notified of this request. Two () replied i favor and none (0) were opposed. Mr. Jim Toney, applicant, stated that in the rear of his property the alley is only paved for seven or eight houses then it is unpaved. The sanitation vehicle drives in forward 4 ; but must back out of the alley. He also stated that a rear carport would be twice the cost of one in the front because of the removal of the fence, trees, and bushes. Mr. Nelson stated he had a difficult time navigating the alley and he commends the sanitation employee being able to drive it without any collisions. He explained that Mr. Toney would have a difficult time backing out of the alley because there is a fence that would not allow sufficient room to turn his vehicle. Chairman Rhone commented that i the past few months several carport cases with alley access have been considered. After the Commission's investigation, it was determined that alley access was not reasonable because of landscaping and other obstacles. Mr. Sons stated that this Commission tries to be consistent with their decisions. He also traveled down the partially paved alley with some difficulty. He brought up the point that in the future the paved portion of the alley may be disused with the new sanitation system. Mr. Nelson stated he did not feel that rear access was reasonably possible. The vote was eight (8) in favor and one ) opposed. 2. Carport 1606 Hursh Case C 01-02 Mr. Birck made a motion to approve this carport request; Ms. Phillips seconded. PLANNING & ZONING COMMISSION JANUARY 10, 2001 • PAGE 2 Twenty-eight surrounding property owners were notified of this request. Six (6) replied in favor and two O were opposed. One of the negative responses stated that it appeared the construction had started; Mr. Seese added that a permit was not obtained before starting this carport. The vote was unanimous in favor of granting the carport. 3. Approval of Beauty Shop in Limited Commercial Zoning 2801 Montgomery Place Case C 01-03 Applicant ...................................... Elvin Dudley Requested Action ......................... Approval to construct a beauty shop in a Limited Commercial District. Property ....................................... 2801 Montgomery Place, Lot 1 , Blk. 75, Faith Village Sec. III Existing Land Use., ...................... Residence, LC Surrounding Land Use & Zoning.. N: Pier One Imports, LC : Residence, -2 Kemp Blvd. GC W: Residence, F-2 Analysis: The applicant requests approval to remodel an existing residence into a beauty shop at the corner of Montgomery Place and Kemp Blvd. The property is zoned Limited Commercial (LC). In this district, "Services" over 1,200 square feet in size require Conditional Use Approval. According to the site plan, the completed project will be ,900 square feet. The applicant's lot is bounded on the west and south by single family zoning. To the east is Kemp Blvd. with General Commercial development. North of this lot is Pier One Imports. The site plan shows that the existing residence will be enlarged to accommodate the planned beauty shop. Nineteen parking spaces are proposed. A beauty shop is classified as a personal service requiring one parking space per 300 square feet of building. Under the parking ordinance, thirteen spaces would meet the parking requirement. The plan shows nineteen parking spaces with a one-way parking system entering from Montgomery Place and exiting on Kemp. Staff has redrawn the applicant's site plan, as the original plan did not reproduce clearly. Developmental Requirements: 1. Landscaping with irrigation and sidewalks as shown will be required. . A six-foot wood or masonry buffering fence will be required along the south and 1%% west boundaries. 3. All outdoor lighting shall be directed away from adjacent residences. PLANNING & ZONING COMMISSION JANUARY 10, 2001 • PAGE 3 4. ignage shall be in conformance with the sin regulations and shall not exceed 80 square feet. The existing nonconforming billboard shall not be converted to an on - premise i . Recommendation: The proposed beauty shop should have minimal impact on the surrounding residences. Traffic flow and commercial activity will be directed toward Kemp and away from residential areas. Staff recommends that this project be approved. Mr. Sons made a motion to approve this conditional use request; Mr. Birck seconded. Nineteen surrounding property owners were notified of this request. Six () replied in favor and one (1) was opposed. Mr. Elvin Dudley, applicant, stated that this business will add to the neighborhood and not take away from i. Mr. Nelson stated he was concerned about the adjacent property but since there was no response from them he does not consider the business to be a problem. Mr. Birck stated that in his opinion Kemp Street cries for rezoning; he added he would be in favor. Ms. Wood Reeves asked if a fence on the west side was required; Mr. Seese replied it would be mandatory on both the south and west sides. The vote was unanimous in favor of approving this request. 4. Approval of the Conversion of a Child Day Care Facility from a Secondary to a Primary Use 4831 Cypress Avenue Case C 01-04 F,Itpplicant Purpose Property Existing Land Use Surrounding • Use & Zoning Shellie R. Damron Conditional Use Permit Conversion of a child day care secondary to a primary use. 4831 Cypress Ave. Commercial Day Care N: Residence, SF-2 S: Residence, SF-2 : City Water Reservoir, F- W: Fowler Elementary School, SF-2 facility from a Analysis: Around June 2000, the applicant leased the house located at 4831 Cypress Ave. and continued the use of Abraham's Kids Day Care, which had been operated by Lezlie Redclift since 1994. This is a commercial day care facility licensed by the State of 'Al"1 Texas. Shortly after, staff received a complaint from a neighbor that the operation of the PLANNING & ZONING COMMISSION JANUARY 10, 2001 • PAGE 4 day care had charged. Upon investigation of the complaint, staff determined the following history: The house was built in 1971 as a residential home within a residential neighborhood. At some point in the late 1 7 's, the home was used as a day care center. From 1983 to 1993 Clarece Allen operated the center and it was called Weecare Day Care. Mrs. Allen lived in Olney at this time but would stay over night at the day care on occasion. The primary use of 4831 Cypress was a commercial day care facility during this period. In 1985 the City of Wichita Falls adopted zoning. This lot was zoned Single -Family Residential (SF-2). The use of the property as a commercial day care continued and was considered a legal non -conforming use, i.e. "randfathered". In 1994 Clarece Allen sold the property to the Redclift's. The Redclift's continued the day care facility. However, in this case the Redclift's moved into the house and lived there as well. Around June 2000, the Redclift's moved from the house and leased the property to the applicant. The intention of the applicant is to operate the daycare without residing on the premises. Staff feels that because the Redclift's lived on the premise, the use as a commercial day facility was reduced in intensity compared to a facility that was not being occupied also as a residence. A commercial day care facility within a residence by nature may have less impact on the surrounding neighborhood than a commercial day care not conducted within a home. In this particular case, State records show that as the Redclift's began having their own children, certain areas of the house were deemed "off limits" to the day care activity, thus reducing the number Of children that could be enrolled and reducing the impact on the neighborhood. It is also felt that residing on the premise is more conducive to maintaining the residential character of the site. It is staffs position that when the Redclift's moved into the house, by default, the primary use of the structure became a residence. The day care use while the Redclift's operated it became secondary and incidental to the primary use. It is our opinion that once the home became occupied, the continued use of the commercial day care was operated as a "home occupation". However, since certain elements of the day care such as, hours of operation, number of children, outside employees, etc., exceeded what is allowed under the home occupation regulations, these elements could continue and remain as legal nonconforming aspects of the previous commercial day care. Staff advised the applicant that a conditional use permit would be required in order to operate the daycare facility without residing on the premises. Staffs interpretation that a conditional use is required is based on Section 6140 of the Zoning Ordinance which reads as follows: 1 • • • • MOM=• The conversion of a nonconforming use to another nonconforming use, regardless of the nature of the use, shall be subject to the Conditional Use PLANNING & ZONING COMMISSION JANUARY 10, 2001 • PAGES approval process provided in Section 7200. The Planning and Zoning Commission may authorize the Conditional Use Permit subject to the following: 1 a A nonconforming use may be converted to another nonconforming use provided the noise, odor, refuse, traffic volumes and patterns, hours o operation, parking requirements and other factors are similar or less intense. 2. Under no circumstances may a nonconforming use convert to a less restrictive use category. 3. When a nonconforming use has changed to a conforming use, such use shall not thereafter be changed to a nonconforming use. The applicant disagreed with staffs interpretation that a conditional use permit was required. The applicant appealed staffs decision to the Board of Adjustment (BOA). The BOA heard the appeal on November 14, 2000. The BOA agreed with staff by a unanimous vote that a conversion would occur if the daycare went back to its initial status as a primary use. The BOA determined that a conditional use permit is required to operate a commercial daycare facility as a primary use at 4831 Cypress Ave. Recommendation: The applicant's current State license for the day care facility allows a capacity of up to 42 children at any given time. According to City Health Department inspection records, the number of enrolled children in the last two years that the Redclifts' resided in the home was 25 in 1998, and 23 in 1999. Since it is felt that these numbers are a result of a family living within the home, staff feels that a cap should be placed on the number children in a situation where the house is not being used as a residence. Staff recommends approval of this request with a condition that no more than 25 children are to be allowed on site at any given time. Ms. Wood Reeves made a motion to approve this conditional use request. Mr. Sons seconded. Seven surrounding property owners were notified of this request. One (1) replied in favor and three () were opposed. Mr. Seese gave a brief summary of the staff report for the Commission. Mr. Bill Elder, attorney for the Damrons, and Shelley Damron, applicant, approached the podium. Mr. Elder stated that he wanted to ask Ms. Damron some questions. He also requested that she give the Commission some facts about this case. The following comments are verbatim: Elder: First of all, uh, Shellie, did you, uh, use the facility, uh, prior to owning the facility? Damron: Yes, my three children attended there. PLANNING & ZONING COMMISSION JANUARY 10, 2001 • PAGE 6 Elder: Okay, at what periods of time did they do o? Damron: Toby's seven so — Rhone: You could scoot up to the mike just a little bit, that's okay. Damron: 1994 to present. Elder: Okay, and, uh, at the time, who, who ran the day care at thatpoint? Damron: Lezlie Redcliff. Elder: Okay, and the Redcliffs are the, uh, are the individuals that actually moved into the, to the, uh, to the house, is that correct? Damron: Yes. Elder: Now, uh, from '94 until, uh, you basically purchased it from the Redcliffs, you were in and out of the facility, is that correct? Damron: Yes. Elder: So you were able to see what part of the facility was being used was not being used for day care purposes and what part was being used for residential purposes, is that correct? Damron: Yes. Elder: Okay, could you tell this panel what portions of the, of the, of the residence was closed off to the public, that was not allowed to be used for day care purposes? Damron: The Redcliffs bedroom was the only place that was off limits to my children and the other children in the day care. Elder: Okay, so the kitchen — Damron: Yes Elder: Was open? Damron: Yes. Elder: Bathrooms? Damron: Yes. Elder: Uh, and the rest of the house. Could you tell the panel approximately what the square footage of the house is? Damron: 1,460 square feet, approximately. Elder: Somewhere around 1,400 to 1,500 square feet? Damron: Yes. Elder: Okay, the Redcliffs bedroom was approximately, uh, 10 by 12 i size? Damron: Yes. PLANNING & ZONING COMMISSION JANUARY 10, 2001 • PAGE 7 Elder: And, so that's about 120 square feet, is that correct? Damron: Yes. Elder: So, i, as far as their residing there, the part that was actually not being used for day care was closed off, not used for the public, was approximately 1 % of the structure, is that right? Damron: Yes. Elder: Okay, now, uh, were there employees hired in the facility that were not family members of the Redcliffs? Damron: Yes. Elder: Okay, approximately how ? Damron: Over the years, between three and five different people worked there. Elder: Okay, and how many children did the Redcliffs have? Damron: Two. Elder: And those two children were born, about what are their ages? Damron: Four and two, probably. Elder: Okay, so they were born sometime during this period, uh, when they resided there? Damron: Yes. Elder: In fact, when the second one was born, is when they decided they couldn't live there anymore because it wasn't big enough to do a day care and their family live there. Is that right? Damron: I'm not sure exactly why they — but yes, after the second one. Elder: After the second one was born, they moved, okay. Elder: Now, uh, what were the hours of operation for this facility? Damron: 7:00 to 5:0. Elder: Now, when you purchased this, uh, the day care, nowyou're actually leasing the property but you purchased the day care itself, is that right? Damron: Yes, the business. Elder: The business. In so doing, can you tell this panel how much, uh, money was invested in the purchase of this day care? Damron: Approximately 23 to 25,000. PLANNING & ZONING COMMISSION JANUARY 10, 2001 • PAGE 8 Elder: Now, uh, any portion of that borrowed funds? Damron: We borrowed 14,000 home equity loan, $1 ,000, and the rest was just savings that we had. Elder: Now, what was this money used for? Damron: We bought, uh, since she knew that she was not going to be running the day care any more, she had not purchased new toys in some times. We had to replenish toys. Uh, we did some refurbishing to the inside of the house, uh, to make it safer plus more, uh, look nicer to the families bringing their children there. And, uh, books, uh, curriculum materials for pre-school age children. Elder: Okay, now, did you go into this venture blindly? Damron: No sir. Elder: Or did you make any inquiries? Damron: I made several inquiries, uh. Elder: To whom? Damron: Called the Health Department; called, um, the FireDepartment; I called the Texas Regulatory Child Services, um. And, then I called Planning and Zoning, as well. Elder: Okay, when you called Planning and Zoning, what was your question to them? Damron: I was concerned, u, I'd asked Lezlie Redcliff, the owner of the business, if, um, she knew, like we didn't want to live in a house and I asked her if she knew if that would be a problem. She said that the day care was grandfathered in; she didn't think it would be a problem. But, I still had further concerns about that, I wanted to make sure that we weren't going into something that later on, uh, we were going to have to, um, give up or quit, you know, make an investment in something that wasn't going to work out. So, I called Planning & Zoning and asked that, um, I explained the situation to them, that it had been a day care, how long it had been a day care, how many children they had, and told them that, um, I did not plan to live on the premises and asked if that would be a problem and us continue to run the day care even though nobody was living there. Elder: What was the response at that time, on that day? Damron: Um, I talked to a gentlemen named Randy, I don't have his last name or anything, don't remember it, but, um, he said I'll get back to you. And later that day, he called me and told me that he'd® uh, read the Codes and talked to a few people, and, that as far as he could see there would be no problem with that. PLANNING & ZONING COMMISSION JANUARY 10, 2001 • PAGE 9 Elder: Now at this point, u, what is your operational, uh, break even point as far as the number of children that you have to keep in order to break even. Just on operation, not to recoup investment, or, uh, your capital investment of the loan, just how much is a break even operation? Damron: Thirty children, we're breaking even if you don't count outside costs that we've incurred because of. Elder: When you took over the day care, how many children were, um, were using it? Damron: Mmm. Elder: Roughly. Damron: Fifteen, 16 when — that's the business that I bought from Lezlie. Elder: And how many are there now? Damron: Twenty-nine. Elder: So you're still, at this point, still not fully breaking even, is that right? Damron: Right, we lost money in December. Elder: You had to put money out of your pocket. Damron: Yes. Elder: To continue, alright. Now, to recoup the money, the 14,000 plus the other 9 you put into the property, uh, what is your, what is, how many students do you have to have, or kids do you have to have to, to recoup that investment and to break even? Damron: To recoup that investment and a, uh, three to five year period, we need about 33 children. Elder: Um, okay, is there anything else, as far as the facts that you want to go over and explain to the panel? Damron: No, sir. Elder: Okay, thanks. End of verbatim statements. Mr. Elder stated that the primary issue is whether or not the City can regulate the maximum number of children attending this day care. He continued by explaining this case was presented to the Board of Adjustment appealing City staffs interpretation of the Zoning Ordinance that a Conditional Use Permit should be required for a conversion of a non -conforming use. He stated that this business has always been a commercial day care center. From 1994 to 2000, it became a residence with the primary use of the facility was a day care. It never was a home -occupied residence day care. The Board acknowledged that the business was a secondary use because the Redcliffs moved in to the structure while 90% of the space continuedr day care. It was never PLANNING & ZONING COMMISSION JANUARY 10, 2001 • PAGE 10 authorized by the State of Texas for less than 23 children. A home occupied, or limited day care, can only have six children or 12 if they are after school children. It never had as few 12, the least amount of students was 23 to 25. Mr. Elder presented the Commission copies of the Zoning Ordinance that were applicable, a portion of Section 11 Definitions and Section V, 5100 Home Occupations. Chairman Rhone inquired about the largest number of children enrolled at the day care in the past; Mr. Elder declared that it was 33 children although it was authorized to have up to 42. He further observed that if the City is allowed to limit the maximum number of children then that will interfere with the Damron's ability to make a profit or to recover their investment. The City's rationale is that when the Redcliffs moved in, the day care became a secondary purpose. He claimed that the day care has always been the primary purpose. He then commented on the definitions and how limited day care center never has applied to business; he stressed that it has always been licensed by the State of Texas as a commercial day care facility. Mr. Elder stated that 90-100% of the home has been used for the day care; it never had only 25% used which is a stipulation of a home occupation accessory use. The only area closed off from the public was the bedroom which is 10% of the square footage. Another requirement of home occupation is employees must be family members and hours of 8:00 a.m. until 9:00 p.m. Mr. Elder declare that this business has never dropped to the home occupation level. He claimed the City's observation is the impact on the neighborhood lessened because the Redcliffs lived there and now the maximum number of children cannot be increased. He observed that the City should not dictate the amount of customers a business can have. Chairman Rhone asked if the hours of operation have always been 7:00 a.m. until 5:30 p.m. and, when the Redcliffs resided there, the business was not required to operate as a limited day care center. Mr. Seese replied that they were never restricted to the six child limited day care. Ms. Phillips asked when the Damrons purchased the business. Ms. Damron replied May, 2000. Chairman Rhone asked for an explanation about the Board of Adjustment's ruling. Mr. Seese replied that they considered this business as a conversion (expansion) of a non- conforming use therefore requiring Conditional Use approval. He further elaborated that the applicant does not consider this a conversion. He continued by commenting that all the facts must be considered, the property is located in a Single Family-2 zoning district where the primary use of structures is as residences and any other use would be secondary. The Redcliffs moved in the dwelling as a residence; therefore the commercial day care center was subordinate to that residential use. Mr. Seese addressed the State's regulations of the maximum number of children allowed by stating that, in this case, the State does not pre-empt the local government's ordinances. He informed the Commission that according to the Redcliffs there were two rooms not used by the day care center; the other room was a 10'x8' bedroom as noted on a schematic received from the Texas Department of Protective and Regulatory Services. PLANNING & ZONING COMMISSION JANUARY 10, 2001 • PAGE 11 Mr. Elder clarified that Ms. Damron was only aware of one room in the building where children were not allowed to have access. He also commented that the schematic was used to determine the square footage that would establish the maximum number of children allowable. He continued by claiming the structure was being used as a commercial, not limited, day care center. He noted that the maximum number on the City's limited day care center definition is the same as the State's number. Mr. Seese commented on a note, dated June 1, 1993, on the schematic (supplied by the State) stating that a 1 0'x1 V bedroom will be off limits. Mr. Birck asked when the business was limited by the State to a maximum of 42 children. Ms. Damron stated that it was "just recently" because Ms. Redcliffs maximum was 33 children. Chairman Rhone asked if the Redcliffs took occupancy in 1994, why didn't the City make them conform to the limited day care center. Mr. Seese replied that the City was not aware of any problems at that location. The only reason this case is at this level of decision making is that complaints have been received by staff. The City does not routinely scrutinize day care centers. Mr. Elder proposed that it was grandfathered as a commercial day care center in existence since 1978 and the Zoning Ordinance was not passed until 1985. He proclaimed that the City could not have enforced it even if they chose to do so. Chairman Rhone asked for City staffs finding about the commercial aspect of this business prior to the establishment of zoning. Mr. Seese stated that staff concurred that it was a commercial day care center at the time zoning was enacted. Chairman Rhone asked if staffs main concern was the maximum number of children. Mr. Seese agreed. Mr. Elder stated that Ms. Damron phoned the City Planning office to inquire about legality of this business and she was told there would not be a problem. He stated that if that fact is ignored, then the City is not being held accountable for their representations to the public. She made a $25,000 investment with the understanding that it was permissible. After the fact, the City instructed Ms. Damron that she was required to use that structure as her residence. He posed the question that what importance is her residency on the classification of the business, a commercial day care center. Mr. Elder avowed that this Commission is the only body that can hold the City accountable. If the Damron's are limited to 25 children, they will not be able to operate this business. Mr. Seese stated there was no record of any communication between the applicant and his staff. Mr. Randy Long is no longer a City employee and he exceeded his authority to make that administrative decision. He stated that the Planning office tries to make it a practice to have written inquiries submitted with staff responding in writing back. Ms. Damron stated she could produce cellular telephone records of the calls to and from the Planning office. Mr. Elder reiterated that if this Commission establishes a maximum number of children for this day care center then the $25,000 investment will not be able to be recovered. Mr. James Partridge, 4833 Cypress, stated he has lived next door to the day care since 1974. He continued by mentioning that since that time five or six couples have lived there operating it as a day care. He admitted that he made the initial complaint because he wanted the residents living on the property. He acknowledged there are traffic PLANNING & ZONING COMMISSION JANUARY 10, 2001 * PAGE 12 problems beginning at 6:00 a.m. and ending at 6:00 p.m. as well as noise problems. Chairman Rhone asked if there were a resident there, would he object to the day care. Mr. Elder replied that with a resident it will limit the number of children allowed. He mentioned that he discussed the matter with the State and was told the number of children enrolled is determined by the amount of floor space, playing area, and rest rooms. If there is a resident, the square footage would be decreased. Chairman Rhone stated that there is a discrepancy about continued residency at that location since it began as a day care. Mr. Elder explained that previous to the Redclifrs residency, a woman from Olney lived there during the week while operating the day care and the husband moved in some time later when his teaching contract expired. He affirmed that the Damron's are the only owners of the day care that have not lived there. Mr. Birck reviewed the average number of children enrolled; 25 in '98, 23 in '99, and 29 in '01. He asked Mr. Partridge if the nuisances were objectionable with less children in 1998; Mr. Partridge indicated noise has been a problem in the summer when the children are outside. He expressed concern for his residence and its selling potential if there is no resident. Mr. Partridge cited an example that if a prospective buyer were to be older, they might not want to reside next door to a day care center. He reiterated that it would be self-limiting with a resident on the premises. To questioning, he replied that the Hanes family was residing there and operating a day care when he moved into his house. Mr. Elder presented a letter from Clareece Allen explaining that she owned a home in Olney and maintained a portion of the day care center for personal use until 1991 when she purchased a home elsewhere in Wichita Falls. She also declared that she continued operating the day care until the building was leased to the Redcliffs. Mr. Nelson asked Mr. Elder how the business was classified by the State; he replied that it was a commercial day care center and the property is owned by the Redcliffs. Ms. Wanda Brown, 4835 Cypress, stated she has lived at that location since 1975. She commented that she has no objection to the day care center. Safety concerns were expressed with no resident on the premises at night. She noted that the home has not been maintained as well since there is no one living there. She verified that the number of children was not as much a factor as having a resident there. Ms. Wood Reeves inquired about the maximum number of children if this Commission does not limit them. Chairman Rhone explained that the State's license permit 42 children. Mr. Seese vouched that as long as it exists, it will always be a commercial day care. Mr. Birck commented that a distinction should be made, the State classifies it as commercial day care center but the zoning is Single Family-2. Chairman Rhone noted that this situation is a perfect reason for a city to have zoning. Chairman Rhone asked if the recommendation of a maximum of 25 children was based on the past enrollment. Mr. Seese responded that was correct; it is an expansion of a non -conforming use with restrictions on limits. PLANNING &ZONING COMMISSION JANUARY 10, 2001 • PAGE 13 Mr. Sons asked about ages of the currently enrolled children; Ms. Damron responded that there are 21 children under the age of four and eight coming after school. She stated one of the 21 is twelve months old; infants are not accepted. Regarding the supposedly incorrect information from the Planning office, Mr. Clark observed that frequently what they request and what they are trying to learn is different. Mr. Richardson stated that, with a $25,000 investment, it would have been prudent to obtain the information requested in writing. Chairman Rhone asked Ms. Damron what is the maximum number of children she could manage; she replied that the State limit is 42 and 33 would be profitable. Mr. Nelson asked if this Commission does not impose a maximum number, can the day care operate with 42 children; Chairman Rhone stated that limited day care is the only use permitted in SF-2 and the conditioned use must be amended [with a maximum number]. Mr. Seese read from the Zoning Ordinance regarding non -conforming use conversions that conditional use permits can be approved if the use does not increase noise, traffic volumes and patterns, hours of operation, parking, and other factors. He commented that 25 children have been the average; if the enrollment increased by eight children, would those conditions change. There was discussion regarding the average number of children; Ms. Wood Reeves stated that Ms. Damron has doubled the enrollment, from 15 to 30, since May. Mr. Nelson inquired about the day care's status if this Commission were to deny this permit; Chairman Rhone stated they are required to have approval to operate any day care center in SF-2. He then stated he would be in favor of this request if a maximum number is determined in which the owners could profit. Mr. Birck reminded the Commission that 33 children is the profit margin. Mr. Richardson stated that a defined maximum number might not produce a profit in the future. Mr. Clark recognized that the portion of the investment spent on toys, books, etc. would not be lost at another location. When asked to indicate how they would vote, Mr. Birck stated he was hesitant to vote against it. Mr. Rowland stated that he would be in favor of the request. Mr. Richardson declared that this is a tough case and he needs more time to consider. Ms. Wood Reeves stated she was against it in a residential environment. Mr. Sons commented that he is in favor and would prefer a maximum of 42 children. Mr. Bradberry stated that he was partially against it but could vote in favor if there was a resident living in the house. Mr. Nelson commented that this appears to be a good business but in the wrong place. Ms. Phillips stated this was a difficult decision and supported the case if a resident lived on the premises or the number of children were limited. Chairman Rhone affirmed the complexity of this case. The original motion, granting a conditional use permit with no more than 25 children on site at any time, was voted on; four (4) were in favor and five (5) were opposed. The motion failed. PLANNING & ZONING COMMISSION JANUARY 10, 2001 • PAGE 14 Mr. Sons made a motion to grant the conditional use permit with no more than 42 children on site at any time; Mr. Rowland seconded. Four (4) were in favor and five (5) were opposed. The motion failed. Mr. Birck made a motion to grant the conditional use permit with no more than 33 children on site at any time; Mr. Rowland seconded. Five (5) were in favor and four (4) were opposed. The motion passed. This decision can be appealed to City Council by submitting an application, within ten (10) days, to the Planning office. VII. OTHER BUSINESS Mr. Seese asked that the item regarding outdoor storage be removed from the agenda and considered at a pending workshop meeting. Chairman Rhone consented. 1. Proposed Ordinance — Communications Tower Regulations Mr. Seese stated that City Council has request conditional use approval on all tower applications. He stated research was done on other communities, such as Michigan Association of Townships, Florida counties, independent research reports on towers, and FCC regulations (Part 97). The proposed ordinance also addresses issues concerning Kickapoo AirPark. He further stated the issues of concern were protection of air space and land use including design of towers and locations of towers. He continued by stating that Council and staff realize the need for wireless communication abilities and this ordinance provides the least restrictive regulations possible. Requests for towers have increased in the few years. Mr. Clark stated there is enough interest in the tower ordinance that Council will entertain, at their January 16th meeting, a moratorium on towers until this ordinance is finalized. The Honorable Jerry Lueck, Mayor of Wichita Falls, reviewed the dangers of towers located too close to SAFB. He requested that tower applications be approved by Council as well as SAFB. Lt. Col. Vic Hnatiuk, SAFB, thanked the Mayor and the Commission for including the Base in the discussions regarding this issue. He continued by stating they have a vested interest in the location of towers around Sheppard and the Municipal Airport. He offered to technically review the ordinance or act as a liaison between the Base and the City. Mr. Seese summarized the content of the ordinance by stating communication towers 6 1 1 P"Iwill require conditional use approval within Light Industrial and Heavy Industrial zoning districts. The Planning & Zoning Commission will have sole discretion when issuing a permit. Council has taken the action away from themselves by legislating it to the Commission. Chairman Rhone reviewed the approval action of a communications PLANNING &ZONING COMMISSION JANUARY 10, 2001 * PAGE 15 tower by stating that, after review by SAFB, a conditional use application would be ��W considered by P&Z. Mr. Seese referred the Commission to Paragraph C for the exact procedure. Ms. Phillips made a motion to recommend approval of this ordinance to City Council; a second was made. The vote was unanimous in favor of approving the recommendation. 2. City Council Update Mr. Clark stated that City Council approved the rezoning of the acreage at Rathgeber and Crestview Memorial; approved the name change of Crestview Memorial Drive to Professional Drive; approved the waiver of screening requirements on Lake Park Drive; and, approved the three classification changes in the Thoroughfare Plan. 3. Discussion of Items of Concern to Members of the P&Z Commission Chairman Rhone welcomed the three new members to the Commission. VII. ADJOURN The meeting was adjourned at 4:00 p.m. ... �.. David Rhone, Chairman ATTEST: Seese,N tanning Administrator Date Date PLANNING & ZONING COMMISSION JANUARY 1, 2001 • PAGE 16