Zoning Board of Adjustments Minutes - 08/16/1989E
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ZONING BOARD OF ADJUSTMENT
August 16, 1989
PRESENT
*
Syd Litteken
Edna Boren, Alternate #1
Burrell Lacey, Alternate #2
Carl Wilson, Alternate #3
*
Ron Buffum
(present for a portion of the meeting)
Members
Councilor
Roger McKinney, Director of Planning
*
Jeanie Thompson, Assistant City Attorney * City Staff
Subir Mukerjee, Development Coordinator * Y
Paul Stillson, Planner II
Barbara Bridges, Recording Secretary
ABSENT
*
Richard Sutton
William Kidd * Members
Bill Rowland
Richard Sutherland
Harold Arnett, Alternate #4
CALL TO ORDER
was called to order by Roger McKinney, Director act
1:40 p.m. It was decided that Burrell Lacy
would chairman due to the absence of the chairman and vice
The meeting
Planning, at
as temporary
chairman.
APPROVAL OF MINUTES
It was moved by Syd Litteken, seconded by Edna Boren, and carried
unanimously that the July 19, 1989 Minutes be approved.
BUSINESS ITEMS
1. V-87-07. Variance request to reduce the exterior side setback
from 15 ft. to 4 ft. in order to construct a swimming
pool at 1520 Mesquite Street
Mr. Mukerjee advised this variance is requested in order to con-
struct a swimming pool which would encroach into the side setback.
The applicant is also in the process of closing a utility easement
and replatting the property due to the purchase of a portion of
the adjacent lot to the north. The primary special condition
cited by the applicant is the existence of a large
g roak spa e tree
which makes the proposed location the only practical
for
construction. There has been no opposition received from the noti-
fication process. The staff recommended approval of the request
for construction of the swimming pool only, not for any
other
structure. Item No. ") /; 5
Page No. z
121
Wayne King, applicant, answered questions from Board members
concerning his site plan, and also presented pictures of the
property. It was brought out that the utility companies have no
objection to the easement closure, and an overhead electric line
will be relocated underground at Mr. King's expense.
Edna Boren questioned the placement and size of the pool area.
Mr. King stated the distance from the tree is necessary in order
not to kill any of the roots, and the size of the pool is needed
in order to have sufficient deck space.
After further discussion, Carl Wilson stated his opinion that this
is a great gesture to save the tree, and that the project would be
a beautiful addition to the property. He moved that, with the
closure of the easement, the Board grant the variance. The motion
was seconded by Syd Litteken, but failed to carry by a vote of 3
in favor by Litteken, Lacey and Wilson, and 1 opposed by Edna
Boren. Therefore the request was denied.
2. V-89-08. Variance request to reduce the front setback from 25
feet to 15 feet for a 5.3 ac. tract out of Robert
Evans Survey, A-74
Prior to the meeting, Board members were provided copies of an
illustration of the proposed zero lot line development to be
located on Kingsbury Drive, bounded by development south of Old
Seymour Road, by Lansing and Colquit streets, and by Our Lady
Queen of Peace property.
The Board was addressed by Randy Wachsman, developer, and by Bob
Mathews, of Biggs & Mathews Consulting Engineers. Mr. Wachsman
explained the variance request to reduce the front setback from
25' to 15' would enable him to develop the property with rear
entry access to garages built at the back of the homes. He stated
several times that he was making this request because he could not
put the land to the best use with a 25' setback. The best market
now is for smaller homes with rear access, "so they don't have a
maze of garages sticking out." Also, his development would meet
the city's preference for infill development. He presented slides
of a development in Dallas which would be similar to his proposal,
and also of other developments in Wichita Falls which have
utilized a 15' front setback.
The staff was questioned concerning their recommendation. Mr.
Mukerjee advised the Planning staff feels that a special condition
to this property exists in that it is a 5 acre tract sandwiched in
between developments on all four sides, with limitations on the
depth of the property. It is felt that the proposal "would work
as long as the design concept is carried through." Therefore, the
staff would recommend approval, provided there is no residential
access from the street, and that the entire street length is
developed at the same time, not in phases.
Item No.. �15
Page No.-
122
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Reference was made to a court case in Irving (Battles v. Board of
Adjustment and Appeals of the City of Irving, 711 S.W. 2d 297).
Mr. McKinney noted the case involved a request for rezoning which
was denied. The developer then went to the Board of Adjustment
and was granted a setback variance which allowed the density of
development desired which was not permitted in the zoning
district. The court held that the fact that the developer could
create the number of lots he desired with a variance did not
constitute a hardship, and required the developer to remove the
houses and street construction already finished. Mr. Wachsman
maintained that this suit did not relate to his request, as the
variance would not allow the subdivision of any additional lots.
Assistant City Attorney Jeanie Thompson was questioned on various
aspects of the discussion. She advised that "the highest andbest
use referred to by Mr. Wachsman is not a legally permissible
reason on which to grant a variance. Also, the five -acre size of
the tract indicates other platting arrangements are available such
as front entrances to a rear garage, thus eliminating legally
' enforceable grounds for a variance. However, the real issue here
is not if there are special conditions existing, but the legality
of the Zoning Board to grant this variance for a whole subdivi-
sion. She stated the function of the Zoning Board is to interpret
the law, and granting a variance in this instance would be
performing a function of the Planning & Zoning Commission regard-
ing the platting process. She advised that if the development is
desired as proposed, "the way to approach it is through the Zoning
Ordinance amendment process."
The Board was also addressed by Randle Forcher, 4021 Taft, who
stated he wanted to buy a lot in this proposed subdivision because
he wants a small home with rear entry garage, and he knows fifteen
other people who want the same. However, "if the development has
front garages, we don't want it." He asked if the Board could not
grant a variance for the whole subdivision, could Mr. Wachsman
request 32 variances. Ms. Thompson stated "the issue is how to do
it legally, as the Zoning Board interprets the ordinance as
written, they don't write new laws." Mr. Mukerjee stated the Plan-
ning staff felt the Board could consider the request as being for
one 5-acre tract that cannot be increased. A 239' tract with a 50'
street leaves 94' deep lots, compared with the usual lot depth of
110' to 120'. Therefore, the Planning staff believes there is a
special condition to the property, because it is landlocked by
existing development.
The staff was questioned as to how the other subdivisions of this
type were developed with a 15' setback. Mr. Mukerjee advised that
with zoning, the lot size minimum was reduced, and the regulations
for zero lot line homes were changed, requiring the same setback
as for standard housing developments. The developments referenced
by Mr. Wachsman with a 15' front setback were developed prior to
the change in minimum lot size and setback requirements. Bob
Mathews added that the 25' setback requirement was adopted so that
cars could park on driveways without obstructing the sidewalk.
is Item No.
Page No.
123
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The Board considered the desirability of recommending that the
ordinance be changed to allow for a 15' front setback when there
is rear entry access. Mr. McKinney stated his opinion that "an
amendment per se might not serve the purpose of addressing this
particular situation, because that would apply to every situation,
whether or not it was raw land or infill development."
Ms. Thompson asked if the proposed development would qualify as a
Planned Unit Development. Mr. Mukerjee replied that type of devel-
opment is an option which can be chosen by a developer, usually
when the property is developed at higher than required standards,
in order to protect the investment. However, it is usually chosen
when services and some supportive businesses are part of the plan.
Mr. McKinney indicated that a PUD usually involves a higher -
quality mixed use development.
Mr. Wachsman objected to further delay of the project which would
be necessary if he had to pursue development approval through the
Planning & Zoning Commission.
Mr. Lacey inquired how long the variance, if granted, was subject
to appeal in District Court. Ms. Thompson stated that the Board's
decision became final ten days after the minutes were on file in
the Board office, and at that time would no longer be subject to
review in District Court.
After further discussion, Carl Wilson stated that this is a great
project, and the land has never been developed, and if it is
developed with a 15' setback it would look like other projects
already existing in Wichita Falls. He moved that:
- the request be approved based on the unique size of the
land, and the fact that it is completely apart from other develop-
ments because of Lansing, Colquit, and the fencing (between the
development and the school property).
- the street and access must be constructed first as shown on
the site plan.
The motion was seconded by Syd Litteken and carried unanimously by
vote of Wilson, Lacey, Litteken and Boren.
The meeting adjourned at 3:30 p.m.
Date
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