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Zoning Board of Adjustments Minutes - 06/16/1999MINUTES BOARD OF ADJUSTMENT June 16, 1999 PRESENT: John Key 0 Members Don McKinney 0 Charles A. Peters, III 0 Bobby Redwine 0 Steve Seese, City Planning Administrator 0 City Staff Paul Stillson, Planner II 0 ABSENT: Rainer Hanold, Chairman 0 Michael Norrie 0 Alternate 1 I. CALL TO ORDER The meeting began at 1:30 p.m., moved from the City Council Chambers to the City Council Conference Room. II. REGULAR AGENDA Discussion of Rules and Procedures Mr. Seese presented a memo dated May 5, 1999 (attached) which formed the basis of the discussion. He discussed the responsibility of the Board and reminded the members that in order for a case to be approved, it would require the affirmative vote of at least 4 members (75 %) and not just a simple majority. The members provided insight into past cases. There was discussion as to what role the staff played in the hearing of cases, and what interaction was allowed between members prior to deciding if the case should be heard. Mr. Seese stated that staffs position was presenting the facts of the issue, defending the applicable ordinances and providing insight into the issue that perhaps was not included in the staff report. It was further discussed that when qualifying a case to be heard by the Board, there should be discussion if needed. Mr. Seese stated that when someone requests a variance, there may be times when staff does not feel that a variance is warranted. However, as established procedure, staff feels compelled to present the case to the Board in order to relieve staff of that BOARD OF ADJUSTMENT • PAGE 1 decision and to provide the case its procedural due process. It then becomes the responsibility of the Board to determine legitimacy of the request within established guide lines. It was agreed that there would be considered for adoption at its next regular meeting the Board Procedural Rules found in the attached memorandum. II1. ADJOURN The meeting was adjourned at 2:30 p.m. QN�Yy-),) 4 a q q Rainer Hanold, Chairman U Date RECEIVED IN CITY CLERK'S OFFICE Date By _ Time BOARD OF ADJUSTMENT • PAGE 2 DEPARTMENT OF COMMUNITY DEVELOPMENT PLANNING DIVISION CITY OF WICHITA FALLS, TEXAS INTEROFFICE MEMORANDUM Date: May 5, 1999 To: Board of Adjustment From: Steve Seese, City Planning Administrator It has been requested that staff assemble a "check -off' for items to consider when addressing a variance request. The following is derived from Sec. 7300 of the Zoning Ordinance. This section is generally taken from Chapter 211 of the T_ exas Local Government Code. When assembling this checklist, staff looked to the specific provisions in the Ordinance. These provisions and preambles are reproduced below in bold print. Comments following each in normal type are intended to provide staffs prospective, understanding and historical application. Sec. 7320 D. A narrative statement demonstrating the requested variance conforms to the following standards: According to this wording, the Board must positively affirm each of the following. When an applicant applies for a variance, the application form is asking these same questions. It is the responsibility of the Board to determine the legitimacy of each of the applicant's responses. If the Board finds that the applicant has failed to qualify under all provisions, then the application should be denied as not qualifying for a variance, which is different than denying a variance. 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. Historically this has involved uniquely- shaped parcels or lots and a few other considerations. An example we have provided in the past, and still applicable for discussion, is Walgreens on Southwest Parkway. Their lot was triangular - shaped, which is the most difficult to develop. A five foot variance of a rear setback on that property's side parallel to a creek channel was allowed. In addition, a variance was allowed to eliminate one tree from the landscape requirements so that parking requirements could not be met. Parking requirements were felt to outweigh the one tree that was lost, especially since BOARD OF ADJUSTMENT • PAGE 3 other landscaping was being provided. These two variances allowed a property to be developed with no apparent impact to adjacent properties. Allowing this development, with the variance considerations, was determined to best serve public purpose and public interest. The finding was that there was a situation unique to the land and the area. b. 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. This most often speaks to past cases where neighboring properties were enjoying the same privilege proposed by the applicant, as in setbacks in a pre - zoning (1985) situation. The challenge to the Board is to determine the extent of special considerations or circumstances, such as the question if one property two lots down set a precedence for other properties in the neighborhood. C. That the special conditions and circumstances do not result from the actions of the applicant. Consider a concrete slab poured for a foundation, where the slab violated setback requirements, and now the owner or developer claims ignorance of the law. This violation would clearly be a result of actions by the applicant. 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. Continuing to use the slab example from above: the applicant states that the building would not fit on the lot as a reason for the violation. Should the Board allow this violation to continue, it would be conferring upon the applicant special privileges that is denied by the Ordinance to other lands, structures, or buildings in the same district. Translated: remove the slab. The applicant should pass all four of the above requirements. If the applicant does not pass all four, the application does not qualify for a hearing for a variance. The application is not necessarily denied, but doesn't qualify. Should the applicant pass all four considerations from the above test, the following is then to be considered: Section 7340 The application for a variance shall be reviewed and evaluated using the following criteria: a. The granting of the variance will not be contrary to the public interest. BOARD OF ADJUSTMENT • PAGE 4 Discovering "public interest" may require staff to provide the Board, along with the Board's own input, what public interest involves. Theoretically, the passing of zoning in 1985; the creation of specific regulations passed at that time; the modification or new regulations passed since that time; direction of the City Council in achieving its goals; and other such issues define public interest. That is, how we want our City to develop spatially, functionally and aesthetically. 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. It needs to be recognized that financial conditions will play into every case. However, this requirement states that financial hardship alone cannot play into the Board's decision. This must be a consideration used in conjunction with "other issues." These other issues will define the "special conditions." C. The variance will not permit an activity upon the land which is not allowed by the terms of this Ordinance. This is an issue of land use rather than some measurement. For example, if someone was located in a Limited Commercial zoning district and they wanted to open a car wash, or perhaps do outdoor storage, they would not be allowed to since such a use would not be allowed in that zoning district. In other words, the Board cannot grant that privilege. 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. Upon close reading of this provision, there are actually four distinct qualifiers that need to be addressed individually and finally together: 1. The granting of the variance is consistent with the intent of this Ordinance; The Board's responsibility's deal with the Zoning Ordinance. Many times we mistakenly refer to the landscape regulations, for example, as the Landscape Ordinance. While this may have been a separate ordinance at passage, inclusion into the Zoning Ordinance removes its reference as another ordinance. Discovering consistency with the intent of the Ordinance (Zoning Ordinance) depends upon which provision or part of the Zoning Ordinance we are evaluating. It may even be necessary to discover further intent by reading the original ordinance that allowed that provision. BOARD OF ADJUSTMENT • PAGE 5 2. Is in harmony herewith; This could be considered a nebulous provision. However, giving consideration of the intent of the regulations in the Zoning Ordinance (less or more landscaping, less or more billboards, etc), it could be determined in some circumstances which direction the City is heading. Also, will the action conflict with the neighborhood's harmony (i.e. consistency of appearance and function). 3. And will not be injurious to the neighborhood; Will allowing a reduced setback affect the character, aesthetics, or function of the neighborhood. How about adjacent neighborhoods (i.e. next block). Also consider heights, size, etc. and their effects. 4. Or otherwise detrimental to the public welfare. Defining public welfare is similar to defining public interest, except that public welfare not only carries a more ominous connotation, but it also tends to deal with long -term economic development of the City and what would /could affect the public in the long -term through function, appearance, layout, etc. The City typically sends out a notice of this variance request to all property owners within 200 feet of the property under consideration. It can be seen by reading the "sub- qualifiers" under item 'd' above, that the neighborhood may offer insight as to issues such as harmony, injurious to the neighborhood, etc. As can be seen by the above, there is a check -off procedure available to determine whether or not an application qualifies for a variance hearing. From there, it becomes the charge to the Board to determine the validity or necessity of the variance request. It has been, and should be, the practice of the City to allow variance applications upon request. Allowing this procedure recognizes the procedural due process clause in the 5th and 14th Amendments to the U.S. Constitution. Four actions are possible from the Board: 1. It approves a variance. 2. It denies a variance. The only remedy allowed is through State District Court. 3. It conditionally approves a variance. All three situations require findings from the Board as a matter of record. BOARD OF ADJUSTMENT • PAGES 4. It denies the application as not qualifying for a variance. This will also require a finding as to why it did not qualify to be heard. If the application did not qualify for a hearing before the Board, there are still two remedies available to the applicant: first to the City Council for a waiver, and secondly, if denied, to a State District Court. It should be noted that with proper findings as a matter of record, rarely does the Court overturn a decision of the Board. Following the next Board meeting, staff would appreciate spending a little time with the Board to discuss procedural issues and this memo. BOARD OF ADJUSTMENT • PAGE 7 BOARD PROCEDURAL RULES The following rules are being presented for consideration by the Board of Adjustment: 1. The Chairman, or Acting Chairman will: a. Call the meeting to order; b. Conduct a roll call; and C. For the benefit of the public: state that determinations by the Board of Adjustment are limited in scope as to what the Board may consider, and that the Board operates under laws of the State of Texas and applicable ordinances of the City of Wichita Falls. 2. The Board should, determine whether a request for a variance meets the following 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; and b. 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; and C. That the special conditions and circumstances do not result from the actions of the applicant; and 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. 3. Should the Board determine by a quorum vote that the application did warrant consideration by the Board, the Board shall issue such decision in a finding for record and proceed with the hearing. 4. Should the Board determine by a quorum vote that the application did not warrant consideration by the Board, the Board shall issue such decision in a finding for record and dismiss the case. BOARD OF ADJUSTMENT • PAGES 5. Once there is agreement to hear the case, the Chairman, or Acting Chairman, should: a. Announce the case being heard by its case number; then b. Applicant's name; then C. Reason for the Board's hearing (administrative appeal or variance request); then d. Nature of the request; then e. Ask if all parties were prepared to provide testimony; then f. Direct staff to explain what led to this hearing, nature of the complaint or reason for the variance request, and why established procedures were unable to resolve the dispute between an official (administrative appeal) or between ordinance requirements (variance). 6. The Chairman, or Acting Chairman shall direct staff to present the case. 7. Following presentation of the case, the Chairman, or Acting Chairman, should ask if the applicant is present, and if so, ask the applicant to come forward. 8. The Chairman, or Acting Chairman, shall swear in the applicant and ask for name and address for the record. 9. Following testimony by the applicant, the Chairman, or Acting Chairman, should ask if there is anyone in the audience wishing to speak for the applicant's case. If so, the same procedure from #7 is used. 10. Following this testimony the Chairman, or Acting Chairman, will ask in there is anyone wishing to speak against the case. If so, the same procedures used in #7 will apply. 11. Following all testimony, the Chairman, or Acting Chairman will direct staff to respond on any issue made by the applicant or other. 12. The Chairman, or Acting Chairman will then solicit comments from the Board members. 13. A Board member may ask the Chairman, or Acting Chairman for staff, the applicant or other to return to the podium to respond to questions. 14. The Chairman, or Acting Chairman will remind of previous oaths. 15. Following all questions, the Chairman, or Acting Chairman shall close discussions and direct additional comments from the Board members. When no further comments, the Chairman, or Acting Chairman shall ask for a vote. BOARD OF ADJUSTMENT • PAGE 9