Zoning Board of Adjustments Minutes - 10/16/2013MINUTES
BOARD OF ADJUSTMENT
October 16, 2013
PRESENT:
Jose Garcia, Vice Chairman
0 Members
Jerry Beaver
0
Chad Hughes
0
Kerry J. Maroney
0
David Lane
0 Alternate#1
Kinely Hegglund, Senior Assistant City Attorney 0 Legal Dept
James McKechnie, Assistant City Attorney 0
Bobby Teague, Asst. Director of Community Development 0 City Staff
Karen Gagne, Planning Administrator 0
Rita Miller, Code Enforcement Supervisor 0
Monique Coleman, Planner II 0
Leo Mantey, Planner 1 0
Ryan Chavis, Code Enforcement Officer 0
Diane Parker 0
ABSENT:
Annetta Pope -Dotson
0 Council Liaison
Dustin Nimz, Chairman
0 Members
Steve Lane
0Alternate #2
Tyson Traw
0Alternate #4
I. CALL TO ORDER
Vice Chairman Garcia called the meeting to order at 1:30 p.m.
II. MINUTES
Mr. Maroney made a motion to approve the minutes of the September 18, 2013 Board
of Adjustment meeting. Mr. Lane seconded. The minutes were approved with a
unanimous vote in favor.
BOARD OF ADJUSTMENT • PAGE 1
III. REGULAR AGENDA
Case V 13-05 A
Request for a coin operated amusement machines establishment,
Sweepstakes Cyber Cafe, to operate within 300 ft. of a school, Harrell
Accelerated Learning Center
3100 Seymour Highway — Unit No. 3106
Ms. Coleman asked the attorney representing the case to declare the applicant's name.
Gant Grimes with Gibson, Davenport and Anderson Law Firm stated he is representing
the Sweepstakes Cyber Cafe. The owner is Brian Ranger, who was seated in the
audience.
Ms. Coleman reviewed the Qualifying Criteria:
Qualifying Criteria:
STATEMENTS AND RESPONSES ARE SUMMARIZATIONS
a. Special conditions or circumstances which are peculiar to the land, structure, or
building.
Applicant's statement: The Sweepstakes Cyber Cafe has been operating several
years at their current location which is across Seymour Highway from Harrell
Accelerated Learning Center. The boundary line of the school is within 300 ft. of
the business; however, the school building and other space utilized by the
students is beyond the 300 ft. restriction.
Staff's response: Code Enforcement has made several attempts to advise the
owners of the business, as well as the owners of the property, that this business
is operating illegally and must relocate. The school was established before the
business chose this location; thus, there is no special condition.
b. Special conditions and circumstances do not result from the applicants' actions.
Applicant's statement: This business is located over 300 ft. from the school
building. The City determined the business should be more than 300 ft. from the
boundary line of the school property.
Staff's response: No special conditions or circumstances exist. This is an illegally
established business.
C. The literal interpretation of the provisions of this ordinance would deprive the
applicants of a right commonly enjoyed by the other persons.
Applicant's statement: The ordinance was written to keep school -aged children
a certain distance from video game businesses. Sweepstakes Cyber Cafe is
located over 300 ft. from student activity with significant grassy areas and a
driveway buffer. Strict interpretation prejudices the location of certain types of
BOARD OF ADJUSTMENT • PAGE 2
businesses.
Staff response: The distance law was passed by the State of Texas and the
Wichita Falls City Council specifying the 300 ft. measurement from amusement
machines to the property lines of schools, churches and hospitals. This
ordinance took into account setbacks, lawns, and driveways. Staff argues the
granting of this variance would violate the spirit and intent of the law.
d. The granting of the variance would be in harmony with the objectives of the
ordinance and would not confer upon the applicants any special privilege.
Applicant's statement: The case of Atlanta Bread Company had a similar case
[alcohol sales] and they were able to obtain a variance to operate within 300 ft.
of the property line. Granting a variance to Sweepstakes Cyber Cafe does not
place a special privilege on the business because it is not operating within the
300 ft. area. Other businesses are operating within the 300 ft. area because they
have been grandfathered.
Staff response: The granting of a variance would not be in harmony with the
ordinance. City Council passed the ordinance in 2001 because there was a
specific legal finding of potential adverse effects on public health, safety and
general welfare; the ordinance was effective immediately upon its passage.
In 2000, the City Council and the Planning and Zoning Commission made legal
findings determining that video game arcade establishments may have adverse
off -site impacts if located near schools. City Council also found this law was
necessary to preserve the quality of life.
References to Atlanta Bread as a similar situation are unfounded. They received
a variance based on a different state statute involving the Texas Alcoholic
Beverage Code. The primary function of Atlanta Bread is food sales, not
alcoholic beverages.
Eight (8) surrounding property owners were notified of this request. No responses were
received.
Mr. Hegglund, Senior Assistant Attorney for the City, stated that he was asked by the
Planning office to give a legal interpretation of this case. Variance requests are
submitted that sometimes are not truly variances by definition. Those requests are the
reason this Board has the four criteria which must be met by all cases. If the Board
feels these criteria have not been met, they should vote accordingly. He was asked to
address each criteria for explanation purposes.
Basically, this request is about the laws passed by City Council stating a sweepstakes
business shall not operate within 300 ft. of a school. Mr. Hegglund distributed certified
copies of the ordinances passed by City Council then asked the Board to review these
items. Mr. Hegglund stated this Board is charged with determining if this variance
request is in harmony with these ordinances.
Mr. Hegglund referred the Board to Ordinance #101-2000 which states Council
BOARD OF ADJUSTMENT • PAGE 3
determined the Planning and Zoning Commission made a finding that the video game
arcade establishments may have adverse off -site impacts if located near schools and
residential uses. This Board should take into consideration this Ordinance when making
their decision.
The second Ordinance #95-2001, Section 8 is a finding in the law that due to the
potential adverse impacts on public health, safety and general welfare, this ordinance is
an emergency and is in effect immediately. The ordinance relates to the sweepstakes
prohibition. Council has found these establishments to be detrimental to the community,
especially located near schools, churches and hospitals.
Mr. Hegglund reminded the Board that all four criteria must be met in order to proceed
with this case. If even one criteria is not met, then this Board should vote no. The City
Attorney's office is of the same opinion as Ms. Coleman that the variance request has
failed to meet any of the criteria. The City Attorney's office legal recommendation is that
this Board should vote no. The ultimate determination must be made by the Board
members.
Mr. Lane stated that he understood the applicant must first meet all four criteria then
this Board decides if the variance can be evaluated and granted. Mr. Hegglund
confirmed his statement. Mr. Lane then stated the City and the Legal Dept. do not feel
the applicant has qualified meeting the criteria and cannot move forward [to the
Evaluating Criteria]. Again, Mr. Hegglund confirmed this statement and asked Mr.
Grimes to respond.
Mr. Grimes stated he felt the applicant has met the required criteria and every vehicle
regarding keeping this business at this location has been exhausted. The business has
been located at this address for three years. He stated this business is not an illegal
business in the context of criminal law. Mr. Grimes continued stating that, of the eight
property owners notified, no one complained or came to this meeting. No one from
Harrell Learning Center came to this meeting or responded.
Mr. Grimes stated that this location is not within 300 ft. of this school. The property line
of the school is the school itself. He continued by stating this is not a sweepstakes law;
it concerns arcade games which mirrored coin operated amusement machines. The
children are beyond the 300 ft. line and too far away. In addition, the legal age to enter
an establishment such as this is 21 years. The high school children would not be
allowed in the business.
Mr. Grimes stated the business is past the 300 ft. limit. Measuring from the back wall, if
the machines were located there, it would be 296 ft. to the property line with another
100 ft. to the front door of the school thus qualifying asking for a variance.
Mr. Grimes stated the City commented this mirrors State law. He took exception stating
in the State Occupations Code, Section J, Subsection 2153.452, it does not mandate a
300 ft. prohibition. It further states that coin operated machines shall be treated in the
same manner as the political subdivision treats the principal use of the property or the
machine is exhibited. There are retail businesses, Maximus, a church, and an adult
probation office, that are located in the same shopping center. Regarding criteria #3,
there is no violation of land use.
BOARD OF ADJUSTMENT • PAGE 4
Mr. Grimes stated, regarding criteria #4, the business is not asking for a special
privilege. They want to continue doing business as they have done for the past three
years. This is a legal business; they have been a good neighbor and they pay City
taxes. The issue concerns the location being 296 ft. from the property line of the
property or another 100 ft. if measured to the school [building].
Vice Chairman Garcia asked Mr. Grimes if this business was in place when City Council
placed the restrictions on this type of business. Mr. Grimes stated the arcade game
ordinance was passed in October 2000. The machines in this establishment did not
have the type of technology to operate these types of machines in the year 2000. The
ordinance was not passed for businesses like the Sweepstakes Cyber Cafe.
Vice Chairman Garcia asked what type of licenses were required to open this business.
Mr. Ranger stated he asked two or three different City offices what was necessary to
open his business. He stated there was no license or permit required other than getting
a DBA [Doing Business As].
The meeting was closed for public comments.
Mr. Maroney made a motion to approve the Qualifying Criteria; Mr. Lane seconded.
There was one (1) vote in favor (Lane) and four (4) were opposed (Garcia, Beaver,
Hughes, and Maroney). The variance was not granted.
IV. Adjourn
The meeting adjourned at 2:04 p.m.
Jose Garcia, Vice Chairman Date
BOARD OF ADJUSTMENT • PAGE 5