Zoning Board of Adjustments Minutes - 05/19/1999f
MINUTES
BOARD OF ADJUSTMENT
May 19, 1999
PRESENT:
Rainer Hanold, Chairman 0 Members
John Key 0
Don McKinney 0
Charles A. Peters, III 0
Bobby Redwine 0
Michael Nome 0 Alternate 1
David A. Clark, Director of Community Development 0 City Staff
Steve Seese, City Planning Administrator 0
Paul Stillson, Planner II 0
Diane Parker, Recording Secretary 0
ABSENT:
none
I. CALL TO ORDER
The meeting was called to order at 1:30 p.m. by Chairman Hanold.
II. , APPROVAL OF MINUTES
Mr. Peters made a motion to approve the minutes from the January 20, 1999 meeting.
Mr. Redwine seconded the motion. The minutes were approved with a unanimous vote
in favor.
III. REGULAR AGENDA
1. Case V 99 -02
Reduce the Exterior Side Setback from 25 Feet to 15 Feet
2401 Ninth Street
Case No.: V 99 -02
Applicant: Dennis Probst for Brown Property Management,
Owner
BOARD OF ADJUSTMENT • PAGE 1
Property: 2401 Ninth Street, Lot 3 -D, Block 22, Floral Heights
Addition.
Requested Action: Variance
Purpose: To reduce the exterior side setback from 25 feet to 15
feet along Taylor Street.
Existing Land Use: Vacant
Zoning: Limited Commercial
Surrounding Land Use & Zoning: North: Auto Sales, LC
South: Residence, GC
East: Board of Realtors, LC
West: Office, LC
COMMENTARY
The applicant plans to construct a building on this property at the corner of Ninth and
Taylor. On this lot there is an existing building with paved parking currently. The
property is zoned Limited Commercial, requiring a side setback along Taylor Street of
25 feet. Before zoning was enacted, the lot was replatted with a fifteen foot side
setback which met the pre- zoning requirement. Recently the lot was again replatted,
this time a twenty -five foot setback was required. The applicant is requesting a
variance of the current regulations to retain a fifteen foot setback.
SPECIAL
CONDITIONS /HARDSHIPS
The applicant has cited the following special conditions. Staffs response follows each
comment:
"The owner is replatting this property to permit construction of an additional building on
the property. Imposition of a 25' side building limit line would make construction of the
additional building impractical."
Response: The applicant has not presented a site plan to illustrate the special
circumstances peculiar to the land, structure, or building for staff to
evaluate. Presumably the building will be built on the parking lot
between the existing structure and Taylor Street.
"The distance between the existing building on the property and Taylor Street is a fixed
quantity. This property has been replatted three times in the past. Each plat has had a
15 foot side building limit line on Taylor."
Response: City records show that the last time this property was platted as Lot
3C, a 15 foot building limit line was approved.
"Of the 13 replatted properties found in the adjacent neighborhood, 7 of these
properties are platted with 15' side building limit line."
Response: The applicant's map shows there is a trend in the neighborhood of
15 foot building limit lines. Over 50% of the lots in the general area
already enjoy the right of a 15 foot building limit line.
BOARD OF ADJUSTMENT • PAGE 2
"The only existing replat found on Taylor Street in the vicinity of this property has a 15
foot building limit line. It is located directly across the street on Taylor."
Response: The building directly across Taylor Street has a 15 foot building
limit line.
A trend of 15 foot building limit lines has been shown to exist and
therefore, no special privilege would be conferred on the applicant.
ANALYSIS
Considerable prezoning development has occurred in this vicinity. A trend of 15 foot
side building limit lines has been shown to exist. Literal interpretation of the 25 foot
setback provisions would constitute a hardship.
RECOMMENDATION
Staff recommends that this variance be approved, as special conditions may exist.
Mr. Dennis Probst, 4605 Jacksboro Highway, was sworn in by Chairman Hanold. Mr.
Probst stated he was representing Mr. Nathan Brown, applicant. He informed the
Commission that this lot at the corner of Ninth and Taylor has been replatted several
times with a 15 foot side setback on Taylor Street. When zoning became effective, the
side setback was modified to 25 feet. Mr. Probst is requesting a variance of this
setback, to 15 feet, to enable a building to be placed on this lot.
Mr. Peters inquired about the size of the building. Mr. Probst stated the building would
extend over the existing lot line and therefore must be replatted into one lot.
Mr. Norrie inquired about the building to the south. Mr. Probst replied that it is a
residential building which should comply with a 15 foot setback. This commercial tract
would require a 25 foot setback around the building.
Mr. Nathan Brown was sworn in by Chairman Hanold. Mr. Norrie inquired about the
existing building on the property. Mr. Brown stated this structure is an 82 year old
house built by the railroad company for their employees. Mr. Brown also commented
that the curb is square and has hitching post rings in it.
Mr. McKinney made a motion to accept the variance as requested. Mr. Peters
seconded the motion. The Board voted unanimously in favor to grant their request.
2. Case V 99 -03
Reduce Spacing Requirement for Billboards
1212 Broad, 1001 Holliday, 1501 1311 Street
Case No.: V 99 -03
Applicant: Murray William Sallis, William H. Clement & Jack
Ayres
BOARD OF ADJUSTMENT • PAGE 3
Properties: 1212 Broad, Tradewinds Motel, 1501 13th Street &
1001 Holliday
Requested Action: Variance
Purpose: To reduce the required separation requirements for
billboards so that existing nonconforming signs may
be relocated. Relocation is due to acquisition of
property by the State for the Broad and Holliday
overpass.
COMMENTARY
The three applicants have been contacted by Lamar Advertising to use their property to
relocate four billboards. The billboards are being removed to construct the Broad
Holliday overhead freeway. The four signs in their original locations did not meet the
city's separation requirements. The requirements are summarized as follows:
a. Each sign must be 1,500 feet from another billboard measured in a straight
line, on the same side of the street.
b. Each must be 500 feet from another, measured in a circle [radial].
c. Each sign must be 200 feet from a residence or residential zoning district.
The new locations do not meet the above separation requirements. Each new sign
location will therefore be nonconforming. The attached map illustrates the sign
locations:
Location 1. 1001 Holliday, Direct TV, applicant Jack Ayres. Proposed sign will be
less than 1500 from another sign. Sign will be 750 feet from proposed
sign at Tradewinds location.
Location 2. 1212 Broad, Tradewinds Motel, applicant Murray William Sallis. Two
signs are proposed, one facing Holliday, one facing Broad. Proposed
sign on Holliday will be less than 500 feet (radial) from another billboard.
It will be 250 feet from another billboard. Proposed sign facing Broad
will be less than 500 feet (radial) from another billboard. It will be 170
feet from another billboard.
Location 3. 1501 13th Street, vacant lot with existing billboard, applicant William H.
Clement. The existing billboard will be removed and replaced with a
larger, taller structure. This sign is less than 200 feet from adjacent
residence. If this sign is over 100 feet from the overhead, it can not be
elevated above the elevated freeway.
SPECIAL
CONDITIONS /HARDSHIPS
The applicant has cited the following special conditions. Staffs response follows each
comment:
BOARD OF ADJUSTMENT • PAGE 4
Lamar advertising is losing the grandfather privilege on a location [for these four signs].
We wish to relocate the structure to this site."
Response: The applicant is requesting to relocate existing nonconforming
signs and create other nonconforming locations. Staff has debated
whether a nonconforming structure can be moved to another
location. Is a nonconforming (grandfathered) status tied to a
structure or use or does it apply only to its original lot? Staff
considered as scenario examples: If a business with
nonconforming parking were to be purchased by the state, could
the owner apply to build nonconforming parking at a new location?
Or if the building were too close to the property line, could it be
moved to a new location and placed the same distance from the
property line?
"The State is acquiring right -of way for the overhead freeway."
Response: The hardship, if one is determined to exist, is clearly not the result
of actions by the applicant. However the applicant has received
some level of compensation for the loss of the signs.
"The zoning is appropriate for this use. It is the spacing requirements which create a
necessity for variance."
Response: There are three other signs between eighth and sixteenth street
that are nonconforming because they are less than 200 feet from
residential which are not are not included with this request. The
relocation of the four signs would not increase the total number of
nonconforming signs along this corridor. It would, however,
increase the number of nonconforming signs between eighth and
sixteenth. Staff has debated if three nonconforming signs are
enough to justify four additional nonconforming signs. In 1996 the
City revised its sign regulations due to a concern over the
increasing number of proposed billboards.
"This [variance request] would simply allow Lamar to utilize its grandfather privilege that
is being taken away by act of the State."
Response: This issue, discussed earlier, speaks to the question: Is a
nonconforming use transferable to another site? The Zoning
Ordinance Section 6127 concerning the expansion of a
nonconforming use, states that `the expansion must be on the
same lot where the nonconforming use is located." While the
applicant is declaring "grandfathered" status, the proposed
locations are not grandfathered. Adjacent uses that will be
impacted by the newly relocated billboards only see a situation for
them where these are new billboards not in accordance with the
ordinance and their rights ignored. This is the issue of transferring
BOARD OF ADJUSTMENT • PAGES
nonconforming uses.
ANALYSIS
This request raises four important questions:
a. Does the presence of three nonconforming signs create special conditions in
the general neighborhood where more should be allowed.
b. Is a taking by the state a more substantial hardship than if the property owner
would terminate the billboard lease and have the billboard removed for
business or development reasons?
c. Are nonconforming [grandfathered] conditions transferable to another site?
d. Is adding more nonconforming signs consistent with the intent of the
regulations of signs and in the public interest.
In a variance request the burden of proof is upon the applicant.
RECOMMENDATION
Staff feels that due to the nature of leasing arrangements for billboards, prohibiting the
relocation to the selected sites is not going to force the discontinuance of the business
providing the billboards. There may be loss revenues over time, above what the State
has compensated, at these locations. However, other possibilities exist in the City, in
conformance with the regulations. This is not a hardship, but rather a consideration of
special conditions.
In evaluating a variance request, 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.
Response: Public interest is served when allowing a nonconforming use,
understanding that eventually the nonconforming or
"grandfathered" use will be discontinued. Due to actions by the
State, the nonconforming use (the billboards) are being
discontinued. Re- establishing a nonconforming use is contrary to
the public purpose, or the regulations would not have been
adopted.
B. Special conditions exist, other than financial, hardship alone, whereby a literal
enforcement of the terms of this Ordinance will result in unnecessary hardship
to the owner of the land.
Response: Special conditions may exist. However, the interpretation is not
literal, but rather broad in that there are processes that recognize
the eventual discontinuance, and other regulations (sign ordinance)
that supports this prohibition.
BOARD OF ADJUSTMENT • PAGE 6
The Board has considered the questions of financial hardship as an
element to consider in aggregate with other considerations or if it
stands alone as a sole condition. There have been precedents set
where the Board considers it along with other factors. This issue
is only financially motivated.
C. The variance will not permit an activity upon the land which is not allowed by
the terms of this Ordinance.
Response: Approving the variance will allow an activity not allowed under
terms of this ordinance in that it would allow the creation of a
nonconforming use.
D. The granting of the variance is consistent with the intent of this Ordinance, is in
harmony herewith, and will not be injurious to the neighborhood or otherwise
detrimental to the public welfare.
Response: Granting of this variance is inconsistent with the ordinance. It could
justly be argued that billboards casting shadows and obstructing
views are injurious to the neighborhood and detrimental to the
public welfare. Approximately $1.6 million is being allocated by the
State for landscaping and beautification for the overhead freeway
area. It must be recognized that some of these billboards may be
42 feet above the overhead freeway which itself is 26 feet high.
While this may be acceptable in Houston and other areas, is it
acceptable for Wichita Falls and the projected image of the City.
Mr. Key recused himself from deliberation and voting on this case.
Mr. John Burns, 4934 Whisper Wind Drive, was sworn in by Chairman Hanold. Mr.
Burns stated that Lamar Advertising is requesting this variance for billboards placed
along Broad and Holliday. Currently, four billboards are being impacted by the
Broad /Holliday Overhead. He presented maps showing the locations. Mr. Burns
further explained that the State purchased one of the billboards through the taking
process. The State allows the permit holder of a legal non - conforming location to
relocate the sign under the same conditions as when the permit was granted. He then
asked if the Board of Adjustment would consider adhering to the same policy, relocating
the billboards to different locations south of their current location. The two northern
billboards are oriented to both north and south traffic; when those are relocated to the
south there will only be visibility from one side. He is asking for the grandfathering
rights to be extended to the proposed locations. Mr. Burns continued with details
regarding construction, billboard sizes and spacing requirements.
Mr. Redwine asked if all of the signs could be relocated in one location. Mr. Burns
responded by stating the spacing requirements could not be met in one location. Mr.
Burns emphasized that the Broad /Holliday location is a vital area of the billboard
marketplace. He stated he is requesting a fair solution to loosing these positions.
BOARD OF ADJUSTMENT • PAGE 7
Mr. Seese stated in this unusual case the Board is being asked to determine an action
based on previous governmental (State) actions that involve a sign (billboard, leasehold
arrangement) and instead of property. The City ordinance and the State law recognize
property and not leasehold arrangements on billboards. Mr. Seese summarized the
situation by stating it is a non - conforming use which is trying to relocate thus becoming
another non - conforming use. Mr. Seese stated the Zoning Ordinance requires there to
be special conditions or hardships on the property and none exist. Moving the
billboards to the proposed sites would create special conditions by relocating a non-
conforming use. Mr. Seese cautioned the Board regarding neighborhood opinion
stressing that this case involves public policy. Mr. Seese stated that $1.6 million was
allocated for landscaping and aesthetics in the overhead area.
Mr. Seese explained that the non - conforming development provision in the Zoning
Ordinance recognizes that non - conforming uses eventually cease to exist over time.
Mr. Seese stated that a waiver of provisions within the Zoning Ordinance, rather than a
variance request, seems to be the proper procedure.
Chairman Hanold stated that, of the four criteria for approval of this Board's cases, he
could not respond positively to any.
Mr. Burns stated the following in response to Mr. Seese:
1. He stated a hardship does exist regarding the status of his business in
this community. The lost positions on the freeway represent a core of his business, a
part of his presence in the community, and a part of his customers. It affects his ability
to do business; it affects the location of signage to promote causes and businesses.
2. He stated the signs are property and Lamar Advertising owns the permits.
He continued by stating the grandfather privileges are not extended to the land but to
the personal property which includes the signs.
Chairman Hanold asked if there were other locations suitable for billboards in Wichita
Falls. Mr. Burns replied there were but the highest traffic count in the City is on
Broad /Holliday. Advertising is based on the most effective way in getting to the largest
volume of customers at the lowest cost.
Mr. Peters inquired about compensation from the State. Mr. Burns replied there have
been compensation hearings; one structure was purchased by the State for $40,000
and the others remain pending. Mr. Burns continued by stating that, since financial
hardship could not be considered, there would be no point in explaining the loss over
the next ten years.
Mr. John Barton, Director of Transportation Planning & Development for TxDOT, was
sworn in by the Chairman. Mr. Barton stated that the outcome of this meeting will have
a direct bearing on the pending cases for the other three signs. If there is no variance
issued, the cost to the State will be in the $160,000 range. If a variance is issued, the
cost to the State would be for the relocation only, which would be much less. The State
BOARD OF ADJUSTMENT • PAGE e
Attorney General's office on behalf of the State of Texas has reached the opinion that
these signs are legally non - conforming uses and they would be allowed relocation.
Because they are being relocated on behalf of and from the direction of TxDOT for the
expansion of the highway system, their nonconformance is not an issue. TxDOT's
policy requires the signs to be located on the same highway system as their original
location (US 287). TxDOT's policy requires the relocation to meet City ordinances and
the spacing be no less than 300 feet apart. Lamar was granted a variance from the
State on the 300 feet distance. He asked the Board to look favorably on this situation.
Mr. Brian Ballard, Chairman of the Red River Sierra Club, 1410 DeVille, was sworn in
by the Chairman. Mr. Ballard read a statement of the club's views regarding the
relocation of the signs. At their May 16" meeting, the club unanimously voted approval
to oppose the variance being requested by Lamar Advertising. He continued by stating
this variance could set a dangerous precedence. Grandfather rights should never be
transferred and the City should take this opportunity to create an uncluttered,
aesthetically appealing freeway through Wichita Falls. The approval of this variance
would set a precedence of billboards hindering the beauty and vibrancy of our
community.
Mr. McKinney commented that Mr. Ballard's remarks were well stated. He further
commented that billboards are a legitimate form of advertising with a service to the
business and charitable parts of this community. He wants to remind this Board that a
viable service is provided by Lamar Advertising with benefits to the community. The
City and the retail industry as well as Mr. Burns profit from these signs.
Mr. Ballard stated the economic impact is recognized and Mr. Burns is not being
accused of any nefarious activities. Property and financial gain is not the only value in
this community. Appearance should also be considered. The highway should not
bombard people with billboards, the community should be seen.
Mr. Seese clarified Mr. Barton's statements by commenting that the Attorney General's
opinion addresses non - conforming uses and billboard issues, those are State and not
City actions. Mr. Barton should be commended for his representation of the State by
recommending the Board grant the variance because then the State doesn't pay as
much money.
Mr. Barton stated all the aesthetic issues relate to ground level vision. The billboards
are only viewed from the elevated portion of the highway and would not impact the
aesthetics of the construction project. He stated he applauded the Sierra Club for their
concerns and their position on this situation. The issue of advertising is important
because those traveling through Wichita Falls cannot take advantage of the
opportunities here if they are not aware of them. He continued by stating that the
Interstate Sign Program is not part of this highway corridor so there is no opportunity for
businesses to advertise along this highway other than through commercial advertisers.
Mr. McKinney inquired about the ages of the signs. Mr. Burns stated the signs were
constructed prior to 1991. Three of the signs were probably constructed in the late 70's
to mid 80's. Mr. Burns continued by stating that Lamar Advertising is a responsible
BOARD OF ADJUSTMENT • PAGE 9
member of this community. With respect to the Sierra Club, they are a wonderful
organization by supporting worthwhile things but they also support the elimination of
billboards everywhere. He further commented that he was not invited to the meeting
nor did the club research exactly what Lamar Advertising was trying to do. He stated
that he was not opposed to aesthetics and supported the sign ordinance for that
reason. Mr. Burns stated this case could set a precedence if the Board felt the State
would construct more overhead freeways in the right -of -way in Wichita Falls. He would
like to maintain the ability to serve his customers.
Mr. Peters asked who his advertising customers were. Mr. Burns replied that the
billboard that was purchased by the State had the Hampton Inn and Uncle Lynn's
Restaurant on the opposing side. The other advertisers are the local Miller Beer
distributor; Steven M. Williams, attorney; Service Associates; Popeye's; and Uncle
Lynn's relocated to another side. There is not any national advertising currently on the
billboards. Mr. Burns stated that he does not feel that he or his company is under
attack. Whenever possible, advertising is done for local campaigns for Red Cross,
Cancer League, and other non - profits.
Mr. McKinney inquired about the response from the City to item #A and felt it was very
broad. He also mentioned that, if the overhead were not being built, the non-
conforming billboards would remain. He stated he had a problem with that response
because a governmental agency other than the City has inflicted this situation on a
commercial business. Mr. McKinney stated that Mr. Burns is being forced to relinquish
his grandfathering rights by an outside entity (the State). Mr. McKinney stated the
Board should not be focusing on the item (billboard) but the issue.
Mr. Seese stated that the variance will not be contrary to public interest. The challenge
before the Board today is the response that staff has made. He continued by stating
that the State law does not require grandfathering. He explained purchasing,
compensation, and amortizing uses. Mr. Seese read from the Zoning Ordinance about
the eventual elimination of non - conforming developments. There was discussion
regarding the interpretation of public interest.
Mr. McKinney inquired about Smith Walker's variance case and if he gained additional
area. Had Mr. Walker complied with the ordinance, it would have resulted in less
advertising space for him. Mr. McKinney stated this Board must be consistent with the
rulings on the various cases. Mr. Peters stated that Mr. Walker's case was entirely
different than Mr. Burn's case. Then Mr. McKinney stated the ruling needs to made on
the facts of this case. From an economic issue, this case is the greatest issue faced by
this Board since he has been a member. He continued by stating that it extends
beyond Mr. Burn's realm.
Mr. Charles Elmore, 1133 Crescent Lane, was sworn in by Chairman Hanold. Mr.
Elmore stated that one of the nice things about a billboard was the fact that they can be
moved. Mr. Burns could located the billboards 50 miles in either direction and they
would have the same impact. To stipulate that these billboards must be located in an
exact position should not be an issue. He stated that it was his understanding that a
grandfathering cannot be relocated.
BOARD OF ADJUSTMENT • PAGE 10
Mr. Burns refuted that 50 miles south or 50 miles north would reach a different
consumer than the 287 corridor. The point is that a core portion of his market is being
lost. Lamar Advertising wants to have some portion of that market share and that is
why the billboards are relative to that area on US 287, and not US 287 in general.
Mr. McKinney suggested Mr. Seese read the portion of the ordinance regarding the
grandfathering clause again. Mr. Seese quoted Section 6100 of the Zoning Ordinance,
Non - Conforming Development, Subsection 6110 Purpose.
Mr. McKinney made a motion to accept the variance as requested by the applicant.
(No second was given to the motion.)
Mr. Burns requested the consideration of a vote from this board. He commented that
he came before this Board in good faith to ask for a legitimate request. He further
stated that Lamar Advertising deserves a vote on this case.
Mr. Bill Sullivan, First City Attorney, stated that, given the fact that this Board is a quasi -
judicial body, it is his recommendation that a vote be taken on this case. State law
gives the applicant the right to appeal the Board's decision. It is incumbent upon this
Board to at least make a decision regarding this case. Mr. Clark stated that at City
Council meetings all motions are put on the table and voted on. Staff, in concurrence
with the Legal Department, recommends that action for this Board.
Mr. Norrie seconded the motion.
The vote was one in favor and four opposed. The variance did not pass.
IV. ADJOURN
The meeting was adjourned at 2:45 p.m.
(Aa,,,_ .�_a C( C(
Rainer Hanold, Chairman Date
RECEIVED IN
CITY CLERK'S OFFICE
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By ._ __Time 3 -5
BOARD OF ADJUSTMENT • PAGE 11