Zoning Board of Adjustments Minutes - 11/14/2000rvL -60 Q.
MINUTES
BOARD OF ADJUSTMENT
November 14, 2000
RECEIVED IN
CITY CLERK'S OFFICE
Date ok" l Lo - 0 1
By __
__Time
PRESENT:
John Key, Vice Chairman 0 Members
Don McKinney 0
Michael Norrie 0
Charles A. Peters, III 0
Les Seipel 0
Steve Seese, City Planning Administrator 0 City Staff
Paul Stillson, Planner II 0
Marty Odom, Planner 1 0
Diane Parker 0
ABSENT:
Rainer Hanold, Chairman 0 Members
I. CALL TO ORDER
The meeting was called to order at 1:31 p.m. by Vice - Chairman Key.
II. APPROVAL OF MINUTES
The minutes of the September 20, 2000 were approved as written.
III. REGULAR AGENDA
1. Administrative Appeal
Interpretation of Zoning Ordinance Requiring Conditional Use Permit
To Operate a Commercial Day Care Center at 4831 Cypress Avenue
Case V 00 -07
Applicant ....... ............................... Shellie R. Damron
Requested Action ........................ Administrative Appeal
Purpose ........ ............................... Appeal of the interpretation of Section 6140 of the
Zoning Ordinance requiring a Conditional Use Permit
to operate a commercial day care center.
Property ........ ............................... 4831 Cypress Ave.
Zoning ........... ............................... Single - Family Residential (SF -2)
BOARD OF ADJUSTMENT • PAGE 1
Commentary.
The applicant is requesting an interpretation of the Zoning Ordinance as it applies to
this case. 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 a commercial day care facility licensed by the State of
Texas. Shortly after, staff received a complaint from a neighbor that the operation of
the day care had changed. 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 1970'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. "grandfathered ".
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 home and leased the property to the
applicant. The applicant is now operating a commercial day care facility without
residing on the property.
Analysis:
Section 6140 of the Zoning Ordinance reads (as applicable) as follows:
6140 Nonconforming Use — Conversion
The conversion of a nonconforming use to another nonconforming use,
regardless of the nature of the use, shall be subject to the Conditional Use
approval process provided in Section 7200. The Planning and Zoning
Commission may authorize the Conditional Use Permit subject to the following:
A nonconforming use may be converted to another nonconforming use
provided the noise, odor, refuse, traffic volumes and patterns, hours of
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 central questions in this case are:
BOARD OF ADJUSTMENT • PAGE 2
1. Does a commercial day care facility which is being operated within a house while
a family is residing there, differ from a commercial day care facility in operation without
a family living on site?
2. Does vacating the residential aspect and the returning to a use solely as a
commercial day care constitute a conversion of a nonconforming use to another
nonconforming use?
If the answers are yes, then the applicant must seek a Conditional Use Permit from the
Planning and Zoning Commission as stated in Section 6140.
Staffs position is that the answer to both of these questions is yes. 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 staff's 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
done 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. Our
opinion is that the use converted from a nonconforming commercial day care to a less
intense nonconforming commercial day care conducted as a "home occupation ". Now
the applicant wishes to revert back to the previous status as commercial day care
without Planning and Zoning Commission oversight.
Explanation of Interpretation:
The Zoning Ordinance does not specifically address cases in which there is a
combination of uses within a structure. In such cases staff must make an interpretation
based on the given text and intent of the Ordinance. The purpose statement at the
beginning of Section 6100, Nonconforming development, reads as follows:
It is the declared purpose of this Section that nonconforming development be
controlled so that it is not a nuisance to the community, eventually eliminated,
and that development be required to comply with the regulations of the Wichita
Falls Code of Ordinances, having due regard for the property rights of the
persons affected, public welfare, aesthetics and function of the neighborhood,
and the character of the surrounding area.
In this case there was a nonconforming commercial day care within a residential area.
It is staffs opinion that when the Redclift's moved into the house, the intensity of the
use as a commercial day care decreased because a certain percent of the impact was
BOARD OF ADJUSTMENT • PAGE 3
"absorbed" by the residential use (i.e. reduced usable square footage). If the residential
aspect is again removed, the intensity of the use could increase. If it is the intent of the
Zoning Ordinance to eventually eliminate a nonconforming use, then staff feels that a
use that becomes partially in conformance cannot "automatically" go back to its initial
status without Planning and Zoning Commission oversight. Staff is not denying the
applicant the right to operate a commercial day care facility, we are simply saying that
this particular situation requires a Conditional Use Permit from the Planning and Zoning
Commission.
Summary:
Staff has determined that the Planning and Zoning Commission is required to issue a
Conditional Use Permit to operate the commercial day care as presented. The
applicant is appealing this decision.
Mr. Billy T. Elder, representative for the applicant, was sworn in by the Vice Chairman.
Mr. Elder asked the Board to consider this case as "the conversion of a nonconforming
use to another nonconforming use..." He continued by stating that this commercial
day care center has been certified by the State since 1978. The people who purchased
the property in 1992 operated a commercial day care center as well as residing there.
It never lost the commercial day care characteristics; there never was a conversion of
the use of the property (from a residence to a commercial day care). Mr. Elder stated
that the day care center never fell into the category of limited day care. Furthermore,
this non - conforming property was established in 1978 prior to the City ordinance's
effective date.
Mr. McKinney asked how this matter evolved to this point; Mr. Odom commented that a
neighbor had complained. To further questioning, Mr. Odom responded that the City
does not license day care centers, only the State does. Vice - Chairman Key then asked
if the City would be binding for an estoppel on the City; Mr. Sullivan, Asst. City Attorney,
stated the doctrine of estoppel is inapplicable to the City and ruled as such by the
Texas State Supreme Court.
There was discussion regarding the number of children attending the day care was
discussed. Mr. Elder stated that between 1978 and 1992, the range was 23 — 34
children.
Mr. McKinney asked if there were any citizen complaints against the prior occupant; Mr.
Odom stated there could have been but he was not aware of any.
Mr. Odom stated that there has been a conversion and an adverse impact on the
neighborhood. Per State and Health Dept. records, the total number of children for that
center was limited. The impact on the neighborhood was caused by the extra number
of children enrolled exceeding that limited number. That conversion requires approval
from the Planning and Zoning Commission.
Mr. McKinney asked if the present occupants had limited the number of children to 23,
would this case have been brought before this Board. Mr. Seese responded by saying
that the only limitations on the number of children would have to come from the
Planning and Zoning Commission through the conditional use process. He further
BOARD OF ADJUSTMENT • PAGE 4
explained that the City Planning office does not have the mechanisms to
administratively place maximum limitations on commercial day care centers. The State
controls the actual building and the City controls the zoning.
Vice - Chairman Key asked if the Zoning Ordinance had a definition for limited day care.
Mr. Seese responded that home occupations should maintain the residential character
of the neighborhood. This property does not fall into the home occupation classification
because it is not in conformance with the surrounding houses regarding traffic, waste
generation, etc. Vice - Chairman Key then asked Mr. Elder why wouldn't the home
occupation classification apply during the time this property was occupied as a
residence and shouldn't the business have been operated as a limited day care center.
Mr. Elder responded that there are other elements involved with home occupations that
would not apply including disallowance of employees other than family members, only
25% of the residence can be used for the business, and hours of operation are
restricted. None of those restrictions would apply to this operation. Vice - Chairman Key
then stressed that the property should have been operated as a home occupation since
the previous occupants were living in the house as a residence which would subject
them to the requirements of home occupation and classify them under the limited day
care definition. Then he explained that this property was a non - conforming use and
was always such because it was never converted to any other type of day care. Mr.
Elder then commented that with 23 children in the day care it was not making money
and with 30 it will break even. Vice - Chairman Key then asked when would this property
be subject to the Zoning Ordinance; Mr. Elder replied that if someone resided there and
did not conduct a day care center, it would lose its non - conforming status and be
subject to the ordinance. Vice - Chairman Key then asked which use was primary
(residence or day care center); Mr. Elder responded that under the definition of home
occupation the property must be used primarily as a residence and this property has
always been primarily a day care center.
Mr. Norrie asked for Mr. Sullivan's conjecture on the conforming and non - conforming
uses; Mr. Sullivan replied that the Zoning Ordinance states a non - conforming use is
entitled to be there but the intent of the ordinance is for those uses (non- conforming) to
eventually cease to exist. In this case, a house located in the middle of 22 homes is
being used as a business; at some point, this property should convert to primarily a
residence. He further stated that the intent of the ordinance is once a non - conforming
use begins to conform (used as a residence and complies with the residential zoning
and surrounding properties), the ordinance should capture the event of the property
transforming into a residence and oversee (by conditional use approval) the non-
conforming use.
Mr. James Partridge, 4833 Cypress, was sworn in by Vice - Chairman Key. He stated he
has resided next door to property since 1974 and there has always been a day care
center in addition to a family living in the residence. There have been five different
residents (husband and wife) operating a day care center since that time. He stressed
his concern is the commercial appearance of the property within a residential setting. A
non - residential establishment next door could be detrimental to the future sale of his
property. After checking with the City many years ago, Mr. Partridge was told the day
care was grandfathered so he did not continue to pursue the issue. He also stated
there has always been more than six children at the day care center and the property
has always had residents until the recent purchase.
BOARD OF ADJUSTMENT • PAGE 5
Mr. McKinney clarified the Board's charge that they must determine if there has been a
conversion from a non - conforming use to conforming use. Mr. Odom replied positively.
Mr. Norrie made a motion to acknowledge that a conversion to another non - conforming
use has been made from this current non - conforming property; Mr. Peters seconded
the motion. The motion passed with a vote of five (5) in favor and none (0) opposed.
Vice - Chairman Key stated that the nature of the current use of this property is subject
to the conditional use approval procedure from the Planning and Zoning Commission.
2. Variance
Approval to Reduce the Number of Required Parking Spaces for an
Apartment Complex at 1307 Buchanan Street
Case V 00 -08
Applicant ....... ............................... Mike Schallenberger and Jimmy Edwards
Property ............ ...........................1307 Buchanan St.
Requested Action ........................ Variance
Purpose ........ ............................... Request for a variance to reduce the number of
required parking spaces in order to re- establish an
apartment building that has been vacant for more
than two years.
Commentary.
This is a vacant structure built in 1920 and was used as the Buchanan Terrace
Apartments up until around 1990. It is located within a Single Family -2 zoning district.
The applicants wish to purchase the property and apply for bank funding and funding
from the City of Wichita Falls Rental Rehabilitation Program. The Rental Rehabilitation
Program is funded through Community Development Block Grant (CDBG) and will fund
up to 50% of the costs.
The applicants are proposing to rehab the structure into a 19 -unit complex with 13 one -
bedroom and six two- bedroom units.
This project requires a Conditional Use Permit. The Planning and Zoning Commission
granted a Conditional Use Permit at its October meeting. This permit is contingent
upon receiving a variance from the Board of Adjustment. An apartment complex with
13 one - bedroom and six two- bedroom units requires a total of 31 parking spaces. This
site has only enough room for approximately 14 parking spaces. The applicants are
seeking a variance so that they may proceed with the project.
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 site does not have enough room to meet the
required number of spaces. There is no available land to purchase for parking."
BOARD OF ADJUSTMENT • PAGE 6
Staff response: This structure was built in 1920. It can be assumed that it met all
requirements at that time. The structure has not been enlarged since. The
property surrounding this site is developed with residences. The only alternative
would be to purchase adjacent residences and demolish them.
b. That the special conditions and circumstances do not result from the
actions of the applicant.
Applicant's statement: "This site was developed prior to zoning."
Staff response: Staff notes that the building has operated for seventy years.
Obviously the current applicant had nothing to do with the original construction of
this project.
G. 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: 'Without a variance, this building will remain vacant and
an eyesore in the neighborhood."
Staff Response: The building cannot be reasonably reoccupied without this
variance. It is likely that it would have to be demolished.
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: "Granting the variance will not overburden the parking
needs of the project."
Staff response: The structure has existed with the adjacent residences since
1920. Granting this variance would allow the structure to be used as it was in
the past. At the Planning and Zoning Commission members of the
neighborhood appeared before the commission to support the reoccupation of
this building.
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.
BOARD OF ADJUSTMENT • PAGE 7
Staff believes that it is in the public interest to restore this abandoned building. It
will provide apartments for moderate - income residents. It will also benefit the
adjacent neighborhood to have this building repaired and put back into use.
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 Single Family. Since the building was constructed prior to
zoning, this activity is a legal non - conforming use.
d. The granting of the variance:
Is consistent with the intent of this Ordinance;
The intent of the regulation of parking is to provide sufficient parking. If
the building were not vacant for over two years, it could have been
reoccupied with the existing parking.
Is in harmony therewith;
The parking ordinance recognizes preexisting parking conditions, and
allows them to legally continue, as long as the use or size of the structure
remains the same.
Will not be injurious to the neighborhood;
Without a variance, this building will remain vacant and an eyesore in the
neighborhood.
Or detrimental to the public welfare.
Staff believes that approving this request will not be detrimental to the
public welfare.
Recommendation:
This site was designed as a multi - family complex and probably has no other feasible
use within this zoning district. Given that this project will cater to low to moderate
income families, staff feels that the requirement for full parking may not be necessary
and special conditions exist. Staff recommends that this variance be approved.
Nineteen surrounding property owners were notified of this request. Four (4) or 21.05%
replied in favor and one (1) or 5.26% were opposed.
BOARD OF ADJUSTMENT • PAGE 8
Mr. Mike Shallenberger, applicant, was sworn in by Vice - Chairman Key. He 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.
Mr. Shallenberger stated the site was built in 1920, prior to zoning, and used in its
original capacity of an apartment building until 1990. Without a variance, the structure
will remain an eyesore to the neighborhood and there is no additional land to buy for
parking purposes. He continued by stating the parking in the neighborhood would not
be overburdened from this apartment complex.
Mr. Seese confirmed the neighborhood is fully developed and there is no available land
around this site to be used for parking purposes. He also stated that there is a
possibility of the use of federal funds to rehabilitate this complex. This building would
eventually be demolished if it could not be used for an apartment complex.
Mr. Peters made a motion to approve the qualifying criteria and have the evaluation
criteria presented. Mr. McKinney seconded the motion. The vote was five (5) in favor
and none (0) opposed.
Mr. Shallenberger stated that for the last ten years the structure has degraded into a
dilapidated building housing transients and numerous flocks of pigeons. The present
owner prefers not to demolish the building. As previously stated, he reminded the
Board that this structure was constructed prior to zoning and is a legal non - conforming
use. This variance, if granted, will not be injurious to the surrounding properties and the
benefits far outweigh the inconvenience of the additional traffic and possible overflow
parking. Mr. Seese stated the City is interested in having a long vacant building in a
residential environment occupied. He also stated that the income requirements of the
potential residents might not afford them the luxury of vehicular ownership thus
reducing the potential neighborhood street parking.
Mr. Norrie asked if the current parking lot could be expanded. Mr. Seese replied that
the site plan is still being developed pending the sale of the property to the applicant;
however, staff has scrutinized the parking lot resulting in a potential expansion from the
14 existing parking spaces but not satisfying the required 31 spaces. Suggestions of
expansion were discussed by the Board members including removal of the berm.
Landscaping requirements were discussed with Mr. Seese stating that there are site
constraints for cases such as this one administered by the staff.
Mr. Norrie requested assurance from staff that as many parking spaces as is
reasonable would be constructed to protect the neighborhood. The parking lot layout
was again discussed.
Mr. Peters made a motion to approve this variance request with the condition that the
maximum number of parking spaces feasibly allowed be constructed. Mr. Seipel
seconded the motion.
Mr. McKinney called for discussion prior to the voting of this motion. He felt the motion
should have been more defined that leaving the requirement for parking at 14 spaces
would be inadequate regardless of the economic ability of the tenants. Mr. McKinney
BOARD OF ADJUSTMENT • PAGE 9
suggested a specific number of parking spaces be defined in the motion. He then
made a motion to amend the original motion to grant the variance on the condition that
22 legal parking spaces be constructed.
Mr. Norrie suggested the naming of a specific number of spaces might force the
applicant to commit to an impossible feat; he asked if motion could be tabled with the
applicant returning in December with several parking options. Mr. Shallenberger stated
that the CDBG money is not always available and the longer the variance decision is on
hold the more chance of the unavailability of the money for this purpose. Mr. Norrie
asked if approval could be made with the condition that this Board approve the parking
lot schematic within a specified amount of time.
Mr. Seese presented an extemporaneous sketch of an alternate parking lot option. He
incorporated five spaces in the front with three on the side; however, dumpster and
sanitation vehicle requirements were not considered.
Mr. McKinney commented that the required 31 parking spaces is reasonable for that
location and concern was expressed for tenants parking on the street when residences
already have cars parked there at night. Mr. Seese replied that staff suggested
appealing to this board because the only option remaining, if a variance is not granted,
is for the City to demolish the building. Mr. McKinney stated that as worthy and noble
as the project is, perhaps the benefit to neighborhood might be overridden by the
negative impact.
Mr. Peters suggested reducing the number of apartment units in the complex. Mr.
McKinney inquired if a similar situation occurred with the Richmond Condominiums; Mr.
Seese stated they were able to purchase adjacent land for parking. The challenge is
the fact that this building exists in a residential environment.
To questioning Mr. Shallenberger replied that there is no land available to purchase for
parking and that reducing the number of apartments is not feasibly economical.
Mr. Norrie seconded the motion made by Mr. McKinney to amend the original motion to
grant the variance on the condition that 22 legal parking spaces be constructed.
The original motion was voted on with five (5) in favor and none (0) opposed. Then the
amendment to the original motion was voted on with five (5) in favor and none (0)
opposed.
3. Variance to Approve Placement of an Eight Foot Privacy Fence at 2916
Radney Lane
Case V 00 -09
Applicant ....... ............................... Marsha Conyea for Rolling Meadows
Property ........ ............................... 2916 Radney Lane
Requested Action ........................ Variance
Purpose: ...................................... To allow for an eight foot metal fence along a Single
Family zoning boundary.
BOARD OF ADJUSTMENT • PAGE 10
Commentary:
The subject property is situated on the west side of Radney Lane just south of Fountain
Park Pool. The Board of Directors of the pool is selling this vacant lot to Rolling
Meadows. Rolling Meadows intends to use this property for future development. At its
September 13, 2000 meeting, the Planning and Zoning Commission recommended
approval of rezoning this property from SF -1 to MFR. Rolling Meadows wishes to place
a eight foot tall metal fence along the property line which is also a Single Family zoning
boundary. When non - residential uses are adjacent to a residential zoning boundary,
the Zoning Ordinance requires a minimum six foot tall privacy fence made of masonry
and /or wood. Rolling Meadows currently has a metal fence surrounding their property.
They would like to continue the same style of fencing along the newly acquired
property.
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: "To enclose the entire Rolling Meadows complex."
Staff response: Rolling Meadows currently owns all the property in the area that
is zoned Multi - Family. There are no other lands or buildings within this zoning
district.
b. That the special conditions and circumstances do not result from the
actions of the applicant.
Applicant's statement: "The existing property has been vacant and unfenced for
several years and since the acquisition by Rolling Meadows we would like to
include this land in our complex."
Staff response: The existing metal fence used by Rolling Meadows was in place
prior to the City's adoption of the Zoning Ordinance in 1985.
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: "Ordinances to date requires [that] all fencing be wooden
but the houses on Radney have been exposed to the appearance of Rolling
Meadow's metal fence because prior to Rolling Meadow's purchase, the land
was unfenced."
Staff Response: A literal interpretation of the Ordinance would require fencing
that is inconsistent with the existing fence surrounding the property.
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
BOARD OF ADJUSTMENT • PAGE 11
special privilege that is denied by this Ordinance to other lands, structures,
or buildings in the same district.
Applicant's statement: "Installation of a metal fence insures additional security
and safety for the residents who reside at Rolling Meadows, which currently
exists due to a metal fence surrounding our current complex."
Staff response: The granting of the variance would be in harmony with the
objectives of this ordinance.
Staff feels that there is sufficient evidence to further consider this variance based on
special conditions.
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.
The granting of the variance will allow Rolling Meadows to maintain the same
type of fencing along the newly acquired property. Staff feels that for aesthetic
purposes, it would be in the public's interest to allow a metal fence of the same
style.
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.
Staff feels that the applicant has shown that special conditions exist.
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 Multi - Family Residential. This activity is a permitted use in
this zone.
d. The granting of the variance:
Is consistent with the intent of this Ordinance;
The intent of the regulation is to provide a buffer for single family
residential uses.
Is in harmony therewith;
The placement of a metal fence instead of a wooden fence should not
conflict with the welfare of surrounding land uses.
BOARD OF ADJUSTMENT • PAGE 12
Will not be injurious to the neighborhood;
The fence should not create an adverse impact on the neighborhood.
Or detrimental to the public welfare.
Granting this variance should not be detrimental to the public welfare.
Recommendation:
Staff feels that the applicant has proven a special condition exists and recommends
approval of this variance.
Five surrounding property owners were notified of this request. Two (2) or 40.0%
replied in favor and none (0) were opposed.
Ms. Marsha Conyea, representative for Rolling Meadows, was sworn in by Vice -
Chairman Key. She presented the qualifying criteria to the Board.
Mr. Seese stated that the issue is whether a metal fence would be appropriate when
the ordinance requires a wooden fence. The purpose of the wooden fence is to
separate residential from non - residential land uses. Staff does not feel the metal fence
nor its height of eight feet would be a detriment to the neighborhood.
Mr. Peters made a motion to approve the qualifying criteria and have the evaluation
criteria presented. Mr. Norrie seconded the motion. The vote was five (5) in favor and
none (0) were opposed.
Ms. Conyea asked about the location of the fence, property line or off the line. Vice
Chairman Key stated that is a question for the Planning staff. Mr. Norrie suggested that
the fence face out or be faced on both sides. Mr. McKinney stated that the neighbors
are already looking at the back of the fence. It was agreed by the Board to be
consistent with the facing.
Mr. McKinney made a motion to grant the variance allowing the eight foot metal fence.
Mr. Norrie seconded the motion. The vote was five (5) in favor and none (0) opposed.
4. Variance to Allow Platting the Property Without the Required Right -of -Way
Dedication at 5301 Crestview Memorial Road and West Rathgeber Road
V 00 -10
Applicant ....... ............................... Dennis Probst
Property ........ ............................... 5301 Crestview Memorial Road
Requested Action ........................ Variance
Purpose ........ ............................... Request for a variance to allow platting the property
without the required right -of -way dedications.
Commentary:
The applicant has submitted a plat (Lot 1, Block 1, Parkstone Addition) for a new
retirement center. The applicant is requesting a variance to allow a 30 foot dedication
BOARD OF ADJUSTMENT - PAGE 13
rather than a 32.5 foot street dedication adjacent to West Rathgeber Road and
Crestview Memorial Road.
The Subdivision Ordinance requires the dedication of street right -of -way based on
standards that are set by the City's Thoroughfare Plan as adopted by the City Council.
The requirement for right -of -way dedication is set forth in Section 9 131(a) in the
Subdivision Ordinance which states that street dedications shall be based on the latest
Thoroughfare Plan. The Thoroughfare Plan calls for a minimum of 65 foot width on
West Rathgeber Road and Crestview Memorial Road. In this case the applicant is
required to dedicate 32.5 feet as right -of -way along both roads. The applicant requests
a variance based on prior dedications in the area of only 30 feet on either side of the
centerline of West Rathgeber Road, resulting in a 60 foot right -of -way along West
Rathgeber Road. Along Crestview Memorial Road, the applicant claims that since
Professional Drive has only 60 feet of right -of -way, 60 feet should also be adequate for
Crestview Memorial Road.
At its May 17, 2000 meeting, the Board of Adjustments approved a similar request for
reduction of right -of -way along West Rathgeber Road for the High Point Village
Preliminary Plat.
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 fronts on a portion of West Rathgeber
Road located between State Highway 79 and Old Jacksboro Highway and on
Crestview Memorial road where it heads South from the southern terminus of
Professional Drive."
Staff response: A variance has previously been granted eliminating the
requirement for a 32.5 foot dedication along the north right -of -way line of West
Rathgeber Road. Thus a precedent has been set along West Rathgeber Road.
However, the same situation does exist along Crestview Memorial Road.
b. That the special conditions and circumstances do not result from the
actions of the applicant.
Applicant's statement: "Approximately 75% of the existing road frontage on
West Rathgeber Road is comprised of platted property or property with an
approved preliminary plat dedicating 30 feet from the centerline. Professional
Drive has dedicated 60 foot of right -of -way all the way from Rathgeber Road to
its Northern terminus at Southwest Parkway."
Staff response: Staff agrees with the evaluation of West Rathgeber Road.
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.
BOARD OF ADJUSTMENT • PAGE 14
Applicant's statement: "Approval of numerous previous final plats and
preliminary plats in this area has been granted with 60 foot of right -of -way for
both Professional Drive and Rathgeber Road. Extensive preliminary site
planning has been prepared for this property under the reasonable assumption
that these patterns would be continued.."
Staff Response: Staff agrees with the evaluation of West Rathgeber Road.
However, staff finds no reasonable circumstance to justify a variance from
dedication along Crestview Memorial Road.
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: " Taking more of the applicant's property to provide either
Crestview Memorial Road or Rathbeber with right -of -way wider than 60 feet does
not seem equitable or justified."
Staff response: Staff agrees with the evaluation of West Rathgeber Road.
However, staff finds no reasonable circumstance to justify a variance from
dedication along Crestview Memorial Road.
Staff feels that a variance should be considered based on special conditions along
West Rathgeber Road. Staff does not, however, find similar conditions along Crestview
Memorial Road.
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.
Since a precedent has been established along West Rathgeber Road, staff feels
that it would not be contrary to the public interest to reduce the right -of -way width
along West Rathgeber Road.
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.
Staff feels that the applicant has shown that special conditions exist along West
Rathgeber Road, but not on Crestview Memorial Road.
C. The variance will not permit an activity upon the land which is not allowed
by the terms of the Zoning Ordinance.
BOARD OF ADJUSTMENT • PAGE 15
A variance for reduction of right -of -way dedication will not permit activities
contrary to the Zoning Ordinance.
d. The granting of the variance:
Is consistent with the intent of this Ordinance;
The intent of the regulation is to provide adequate street widths for newly
developed areas.
Is in harmony therewith;
A variance along West Rathgeber Road would be in harmony with the
way this area is being developed.
Will not be injurious to the neighborhood;
A variance for right -of -way width reduction along West Rathgeber Road
should not be injurious to the neighborhood.
Or detrimental to the public welfare.
Granting this variance should not be detrimental to the public welfare.
Recommendation:
Staff feels that the applicant has proven that a special condition exists along West
Rathgeber Road. However, staff feels the applicant has not shown a similar situation
exists along Crestview Memorial Road. Staff recommends a variance for right -of -way
reduction along West Rathgeber Road, however, staff does not recommend a variance
for right -of -way reduction along Crestview Memorial Road.
Mr. Dennis Probst, applicant for United Affordable Housing, was sworn in by the Vice
Chairman. Mr. Probst reviewed the qualifying criteria with t he Board. Mr. Seese stated
this board has previously granted variances on Rathegeber Road; staff does not
approve of the variance on Crestview Memorial Road. He stated that the solution
would be to amend the right -of -way to 60 feet on Crestview which has been proposed
to change from an arterial street to a major collector on the Thoroughfare Plan. Mr.
Seese explained the reasoning for the staff's recommendation (see previous staff
comments under Qualifying Criteria).
Vice Chairman Key suggested separating this request into two, one for each street, and
tabling the Crestview Memorial portion. Mr. Probst preferred to keep both requests
together and have it heard at this meeting because of time constraints.
Mr. Seese explained to the Board that it has been proposed to other City offices to
downgrade Crestview Memorial. Professional Drive and Rathgeber Road also need to
be redefined and updated in the Thoroughfare Plan. The status of the roads was
discussed. Then, Mr. McKinney called a point of order.
BOARD OF ADJUSTMENT • PAGE 16
Mr. Norrie made a motion to approve the
criteria presented. Mr. McKinney seconded
and one (1) opposed. The motion passed.
qualifying criteria and have the evaluation
the motion. The vote was four (1) in favor
Mr. Probst stated that it does not seem logical to bring a 70 foot right -of -way into three
60 foot right -of -ways. He commented that Professional Drive was adequate for the
amount of traffic currently traveling on this road with capacity for more. Crestview has
not had platting or development history for reducing right -of -way which causes it to go
before Council to be amended. Chairman Key asked Mr. Seese if granting the
ordinance would be contrary to the public interest. Mr. Seese replied negatively.
Mr. McKinney questioned Mr. Probst about this ordinance being in the public's best
interest. Mr. Probst indicated the first staff report he received was supporting his cause
and the later letter opposed it. Mr. Odom stated when he worked on the staff report he
was not aware that the applicant was requesting a variance for two locations.
Chairman Key asked about a hardship. Mr. Probst stated that the additional right -of-
way is not necessary; requiring a wider right -of -way to feed into a smaller right -of -way
does not make sense. This stringent requirement is not necessary. The usable
property has been slowly shrinking due to right -of way requirements over the years and
the owner is finding less uses for it. The hardship will eliminate 2 -1/2' of land for the
residential center. Mr. McKinney asked Mr. Probst to illustrate how the loss of this land
will be a hardship to the applicant. Mr. Probst stated that 2,500 square feet of property
could be used for parking, landscaping, and the entire site would requirement
redesigning. Mr. Peters stated that is a development problem that is entirely economic;
some land will be lost to easements, rights -of -way, utilities, setbacks, etc. Mr. Probst
stated that they have no problem dedicating the same amount of right -of -way as the
surrounding landowners have done. Chairman Key stated he was not satisfied with this
fT&_U11LZM
Mr. McKinney asked if he made a motion granting the variance on Rathgeber Road and
not considering the variance request on Crestview Memorial and it passed would it be
beneficial. Mr. Probst stated that he needed both variances. Mr. Probst considered
withdrawing the request.
Mr. Norrie made a motion to consider and approve the variance of 30 feet of right -of-
way on either side of West Rathgerber and remove the variance request for Crestview
Memorial Road from consideration. The motion was seconded by Mr. Peters. Mr.
Probst withdrew the variance request for Crestview Memorial Road. The vote for the
variance on West Rathgeber Road was five (5) in favor and none (0) opposed.
IV. ADJOURN
The meeting was adjourned at 4:00 p.m.
John Key, Vice - Chairman
BOARD OF ADJUSTMENT • PAGE W
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