Zoning Board of Adjustments Minutes - 01/17/2001MINUTES
BOARD OF ADJUSTMENT
January 17, 2001
RECEIVED IN
CITY CLER K'S OFFICE
Date o �� -Q
Time
PRESENT:
John Key, Chairman 0 Members
Rainer Hanold 0
Don McKinney 0
Charles A. Peters, III 0
Les Seipel 0
Willa Burgess 0 Alternates
Tom Cross 0
Steve Seese, City Planning Administrator 0 City Staff
Paul Stillson, Planner II 0
ABSENT:
Michael Norrie 0 Members
J. D. Ruiz 0
I. CALL TO ORDER
The meeting was called to order at 1:30 p.m. by Chairman Key.
II. REGULAR AGENDA
1. Variance to Reduce the Lot Width from 50 Feet to 41.67 Feet
3102 Jacksboro Highway
V 01 -01
Applicant ......... .............................A. E. Probst, Jr.
Requested Action . ....................... Variance
Purpose ........ ............................... To reduce the required width for a lot from 50 to
41.67 feet. This variance is necessary to plat this
property and obtain a building permit.
Property ........ ............................... 3201 Jacksboro Highway
Zoning ........... ............................... General Commercial
Commentary:
This is a vacant property where an existing structure has been removed. The property
is located north of 32nd Street, between Jacksboro Highway and Holliday Road, south of
a 15 -foot wide alley.
BOARD OF ADJUSTMENT • PAGE 1
The applicant is a surveyor who has prepared a plat of the property. The tract consists
of the north 41 feet of Lots 18, 19 & 20, Block 4, Hillcrest Addition. These lots originally
fronted on 32nd Street, but were subdivided in 1928, leaving the applicant's portion less
than 50 feet wide. The land was not replatted at the time of the subdivision.
Under Section 3490 (2) of the Zoning Ordinance, 50 feet is the minimum width for a
General Commercial lot. Section 6120 requires a variance to create a nonconforming
lot. Staff interprets that section to mean that platting this property will create a
nonconforming lot.
The applicant is proposing to construct a structure on this lot. This variance request
does not include approval of that particular site plan. The plan is included with this
report for informational purposes only.
Qualifying Criteria:
a. That special conditions or circumstances exist which are peculiar to the
land, structure, or building involved and which are not applicable to other
lands, structures, or building in the same district.
Applicant's statement. "This property is only 41.67 feet wide. It has been deeded
with this width since 1928."
Staff response: The property has been in this configuration for many years. The
applicant owns no adjacent property.
b. That the special conditions and circumstances do not result from the
actions of the applicant.
Applicant's statement. "See 1." (Referring to statement "a" above.)
Staff response: The applicant purchased the property last year, therefore he did
not create the existing conditions.
C. That literal interpretation of the provisions of this Ordinance would deprive
the applicant of a right commonly enjoyed by other properties in the same
district under the terms of this Ordinance.
Applicant's statement. "Proposed building could not be built."
Staff Response: Previously there was a furniture store on this lot. It has been
demolished. Without a variance the property could not be platted. The owner
would be unable to construct any building on this lot.
d. That the granting of the variance would otherwise be in harmony with the
objectives of this Ordinance and would not confer upon the applicant any
special privilege that is denied by this Ordinance to other lands, structures,
or buildings in the same district.
BOARD OF ADJUSTMENT • PAGE 2
Applicant's statement., " The adjoining property across the alley on the north side
is only 41.67 feet wide.
Staff response: There is a tract of similar size on the north side of the adjoining
alley. This adjacent tract by itself is probably not enough to constitute a special
condition.
Staff feels that this application presents sufficient evidence to support the claim of
hardship or special condition.
Evaluation Criteria:
In evaluating a variance request once it has been determined by the Board that the
request qualifies to be heard by the board, the Zoning Ordinance Section 7340 requires
that the following criteria be used:
a. The granting of the variance will not be contrary to the public interest.
Staff believes that it is in the public interest to allow this lot to be developed with
a new building. There was previously a building on this site.
b. Special conditions exist, other than financial hardship alone, whereby a
literal enforcement of the terms of the Ordinance will result in unnecessary
hardship to the owner of the land.
This site was developed prior to zoning.
C. The variance will not permit an activity upon the land, which is not allowed
by the terms of the Zoning Ordinance.
The property is zoned General Commercial. The owner will construct a plumbing
business on this site, a permitted use in this district. Note that any outdoor
storage will require approval of the Planning and Zoning Commission.
d. The granting of the variance:
Is consistent with the intent of this Ordinance;
The intent of the regulation of lot widths is to prevent the creation of lots
that are too narrow to function. The adjacent alley allows additional
access for the lot. This extra access helps to minimize the effects of its
narrow width.
Is in harmony therewith;
The ordinance recognizes the problem of substandard development
accomplished before the ordinance was adopted. If the lot was platted
prior to zoning, a building could be built on it without a variance.
BOARD OF ADJUSTMENT • PAGE 3
Will not be injurious to the neighborhood;
Because there is an alley between the two substandard lots, the alley
minimizes the impact of the lack of width. The proposed development
should not adversely impact the neighborhood since the alley provides
additional access.
Or detrimental to the public welfare.
Staff believes that approving this request will not be detrimental to the
public welfare.
Recommendation:
This site was developed prior to the adoption of zoning. Because of the availability of
the alley for access, off -site adverse impacts should be minimal. Staff recommends
that this variance be approved.
Chairman Key swore in Mr. Gene Probst, Mr. Calvin Davis, and Mr. Tom Mills.
Chairman Key then explained the procedure for variances; the first part is verifying that
the qualifying criteria is met and the second, if the evaluation criteria is met.
In his review of the qualifying criteria, Mr. Probst commented that the property was a
third portion of a larger piece of land that was divided but not platted in 1928. The new
owner wishes to build on this site and a variance is needed because the lot width is less
than the standard 50 feet. To questioning, Mr. Probst avowed that all the statements
he made in the Qualifying Criteria are correct.
Mr. Davis stated that he was representing the owner, Tim Sanders, and he is also the
contractor hired to build on this property. He was available to answer any questions the
Board had.
Mr. Mills stated he owned the property to the north of this lot. His objected to this
variance request because there would not be enough parking spaces for Sander's
vehicles. In the course of the conversation, it was determined that Mr. Mills did not
receive a notification because of outdated mailing labels which were obtained from
Wichita County. Chairman Key commented that the focus is on the qualifying criteria.
Mr. Peters made a motion to approve the qualifying criteria and have the evaluation
criteria presented. Mr. Hanold seconded. The vote was five (5) in favor and none (0)
opposed.
Mr. Probst stated that the only way there can be construction on this property is to
receive a variance because of the lot width. He stated that the proposed use is
consistent with the ordinance and is permitted in GC zoning.
Mr. Seese stated this Board has previously reviewed similar cases regarding
substandard lot sizes. If a variance is not granted, then the property can not be built on
and it could possibly be considered as a taking. Mr. Stillson explained that the site plan
is for informational purposes only and is not linked to the variance.
BOARD OF ADJUSTMENT • PAGE 4
Mr. Mills expressed concern about usage of the alley and possible traffic congestion
resulting from a business being built on this property. He also asked about drainage,
landscaping, and parking. Chairman Key noted that those considerations pertained to
site plan approval over which this Board does not have jurisdiction. There continued to
be discussion from Mr. Mills regarding the parking situation. Mr. McKinney agreed with
Mr. Mills that constructing a building on this property that would comply with all the
ordinances would be difficult; he then stated that granting the variance does not pertain
to site plan issues. When asked if he could contest the construction of this property at
another forum; Mr. Seese stated the applicant would be required to comply with all
ordinances regarding the construction of a building. If he could not comply, he could
request another variance from this Board or a waiver from City Council. Mr. Stillson
noted that only in those cases would there be more public meetings regarding this
property.
Mr. Hanold made a motion to approve this variance request. Mr. Seipel seconded the
motion. The vote was five (5) in favor and none (0) opposed.
2. Amendment to a Previously Granted Variance to Eliminate the Electric Gate
2801 Kemp Blvd.
V 01 -02
Applicant ....... ............................... Jordan Gary
Requested Action . ....................... Variance
Purpose ........ ............................... Request to eliminate a requirement by the Board of
Adjustments for an electric gate at the rear of his
property. Applicant desires to build the rear fence,
without a gate. He is proposing a 12 -foot opening in
the fence for the garage and drive.
Property ........ ............................... 2801 Kemp Blvd.
Zoning ........... ............................... Limited Commercial
Commentary.
On May 31, 2000, Mr. Gary appeared before the Board requesting an Administrative
Appeal to construct an alley access garage in his office at 2108 Kemp. Staff stated that
because the alley was a zoning boundary, a fence was required and access from the
alley was not allowed by the zoning ordinance. After considering the limited impact of a
single car garage in contrast to access for the general public, the. Board unanimously
approved the alley access garage under the following conditions:
1. An electric gate with material matching the fence both in height and in
appearance, and
2. Garage door which shields the visibility of the automobile, and
3. An electronic device for the gate and garage door, and
4. Any future use of tenants of that building:
a. Only handicap (handicap windshield placard or license plate) tenants are
allowed usage of the garage, or
b. If there are no handicap tenants, then the area is sealed off and the
building must comply with the ordinance regarding fencing.
BOARD OF ADJUSTMENT • PAGE 5
Specifically, the applicant is requesting the Board to reconsider and eliminate the
wooden electric gate requirement in items 1 & 3.
Qualifying Criteria:
a. That special conditions or circumstances exist which are peculiar to the
land, structure, or building involved and which are not applicable to other
lands, structures, or buildings in the same district.
Applicant's statement. "The building is only 15 feet from the alley. This does not
allow enough space to allow for both a gate and visibility for a driver to see the
alley."
Staff response:. Staff agrees that the required fence limits sight distances.
b. That the special conditions and circumstances do not result from the
actions of the applicant.
Applicant's statement: "The Board of Adjustments has allowed me to have a
garage for handicap access. We now need to be able to safely use it."
Staff response: The applicant had mentioned to staff that there were also
practical difficulties in constructing an electric gate because of the length that it
had to span.
C. That literal interpretation of the provisions of this Ordinance would deprive
the applicant of a right commonly enjoyed by other properties in the same
district under the terms of this Ordinance.
Applicant's statement. [no statement was given]
Staff Response: The applicant said he originally suggested the gate to the Board
as a compromise so that when the garage was not in use, it would be enclosed
with a wooden fence -like structure. He did not realize at the time the difficulties
involved in the actual installation.
d. That the granting of the variance would otherwise be in harmony with the
objectives of this Ordinance and would not confer upon the applicant any
special privilege that is denied by this Ordinance to other lands, structures,
or buildings in the same district.
Applicant's statement: " Several of my neighbors, including two next to my lot,
have access to the alley without using any gates."
Staff response: The building adjacent to the north does not have alley access.
The shopping complex farther north, at corner of Avenue K and Kemp, does
have pre- zoning alley access. The other uses on this side of the block are
residential. Residential uses are permitted to have alley access.
BOARD OF ADJUSTMENT • PAGE 6
Staff feels that this application presents sufficient evidence to support the claim of
hardship or special condition.
Evaluation Criteria:
In evaluating a variance request once it has been determined by the Board that the
request qualifies to be heard by the board, the Zoning Ordinance Section 7340 requires
that the following criteria be used:
a. The granting of the variance will not be contrary to the public interest.
Promoting the safety of citizens in their vehicles is in the public interest and
having an opening wide enough for adequate sight distance is a reasonable
goal.
b. Special conditions exist, other than financial hardship alone, whereby a
literal enforcement of the terms of the Ordinance will result in unnecessary
hardship to the owner of the land.
Because a wide opening in the fence is necessary to have adequate sight
distance, the applicant has stated that it is impractical to construct an electric
fence of that width.
C. The variance will not permit an activity upon the land, which is not allowed
by the terms of the Zoning Ordinance.
The property is zoned Limited Commercial. The Planning and Zoning
Commission previously approved the office use on this property.
d. The granting of the variance:
Is consistent with the intent of this Ordinance;
The applicant is asking to change some of the previous conditions
approved for his variance. The Board has already approved this variance
last May.
Is in harmony therewith;
The main impact of this request would be a change in the appearance of
the area around the garage door in the rear. The rear door would now be
more obvious to the adjacent neighbors. The traffic impact would remain
the same.
Will not be injurious to the neighborhood;
The benefit of increased screening would be to improve the aesthetics of
the back of the building at the alley. Conversely, the applicant claims the
gate would be difficult to construct. A narrower opening would decrease
the sight distances for drivers exiting the garage.
BOARD OF ADJUSTMENT • PAGE 7
Or detrimental to the public welfare.
Staff believes that approving this request will not be detrimental to the
public welfare.
Recommendation:
Staff recommends approval of this modification to the previously approved Variance.
Mr. Jordan Gary was sworn in by Chairman Key.
Mr. Gary gave a brief history of the previous variance he requested last May. He stated
that in the construction process, he is now ready to install the gate and found that the
contractors are indicating that an electric gate is not plausible. Mr. Gary is requesting
an amendment to the previous variance to eliminate the gate requirement.
Mr. Peters questioned the type of gates being considered. Mr. Gary stated that visibility
by the driver egressing from the garage would be a concern with a 15 foot wide gate.
He noted there was a fair amount of traffic from surrounding residents. Mr. Peters
inquired about sliding gates. Chairman Key stated the types of gates should be
considered under qualifying criteria.
Mr. Peters made a motion to not hear this variance request on the basis that the
circumstances are not changed in Item A. The motion fails for a lack of a second.
Mr. McKinney made a motion to approve the qualifying criteria and have the evaluation
criteria presented; Mr. Seipel. seconded. The vote was four (4) in favor and one (1)
opposed.
Mr. Gary thanked the Board for approving the variance in May granting the garage for
his handicapped tenant. He stated that the purpose of the fence is to screen the
building from the surrounding residences but the reason for the gate requirement was
vague. Mr. Gary presented an alternate plan where the fence is angled at 450 angles
from the back of the building allowing more visibility. Placement of a gate would be
where the garage door is located. A wooden, slatted gate is not feasible because it
would be required to be longer than the opening to be counterweighted for balance. A
steel mesh gate is another alternative but it would be an eyesore. Mr. Gary presented
photographs indicating various views of a car egressing from the driveway showing the
lack of visibility. The gate will end four feet from the garage for access into the yard
and to the utility meters. When asked by Mr. Hanold if a gate could be constructed at
that point (15 feet off the galley), he replied it would be at the opening of the garage.
Mr. McKinney stated that it appears that the previously granted variance that has
caused the solution to be a problem. He continued by stating that if the fence were
constructed along the driveway to back of the building and only fencing and the garage
door were visible, that sight would be just as appealing as a gate. He stated this
problem was not foreseen but the Board should consider "undoing" that part of the
requirement. Chairman Key noted that he shared the same sentiment and feel more
comfortable with this solution. Mr. Seipel indicated he was in agreement also.
BOARD OF ADJUSTMENT • PAGES
' Mr. Cross suggested eliminating the opening on the south side. Mr. McKinney echoed
his comments by stating the building would be completely fenced with access through
the man gate into the backyard or through the garage door. Mr. Gary was in agreement
with these alternatives.
To questioning about the area between the fence and the driveway, Mr. Gary replied it
would be grass. Mr. McKinney asked how much distance would be between the
driveway and the fence. Mr. Gary explained the fence would project, approximately 13
feet, from the garage wall at a 450 angle.
Mr. McKinney made a motion to grant the variance conditioned on:
1) The fenced enclosure be constructed to completely run adjacent to
the building and hide the utility connections;
2) The fence would run from each side of the edge of the garage at
450 angles;
3) A man gate to be installed matching the material used in the fence;
and
4) There is no requirement of a fence or gate immediately behind the
garage.
Mr. Peters seconded the motion. The vote was five (5) in favor and none (0) opposed.
III. ADJOURN
The meeting was adjourned at 2:35 p.m.
John Key, Chairman
Date
After the meeting, there was a general discussion regarding procedure used when
hearing variance cases.
BOARD OF ADJUSTMENT • PAGE 9