Zoning Board of Adjustments Minutes - 11/18/19981,.
RECEIVED IN
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MINUTES -3.0
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BOARD OF ADJUSTMENT
November 18, 1998
PRESENT:
John Key 0 Member
Don McKinney 0
Charles A. Peters, III 0
Bobby Redwine 0
Don Johnston, Council Liaison
Steve Seese, City Planning Administrator 0 City Staff
Paul Stillson, Planner II 0
Diane Parker, Recording Secretary 0
ABSENT:
Rainer Hanold, Chairman 0
Guy Grogan �0 Alternate #1
In Chairman Hanold's absence, Mr. Peters presided over the meeting.
I. CALL TO ORDER
The meeting was called to order at 1:35 p.m. by Acting Chairman Peters.
II. APPROVAL OF MINUTES
Mr. Redwine made a motion to approve the September 16, 1998 minutes. Mr. McKinney
seconded the motion. The minutes were unanimously approved.
BOARD OF ADJUSTMENT..... NOVEMBER 18, 1998
do-
III. REGULAR AGENDA
1. Case V 98-03
Application to Reduce the Rear Setback
5016 Jacksboro Highway
Applicant:
James R. Looney
Property:
5016 Jacksboro Highway
Requested Action:
Variance
Purpose:
To reduce the rear setback from 30 to 13 feet.
Existing Land Use:
Commercial Building
Purpose of Request:
To obtain a variance for a building recently constructed
Zoning:
General Commercial
Surrounding Land Use & Zoning: North: Kirby Vacuum Sales, GC
South: James Lane Air Conditioning, SF -2
East: Commercial, HC
West: Residential, SF -2
Commentary.
The applicant's property is located in a general commercial zone adjacent to a single - family zoning
district boundary. According to the buffering requirements, any commercial building must setback
30 feet from a single family district. The applicant requests a reduction of the setback to 13 feet
for a building addition. The applicant has completed substantial construction on this building
without a building permit. After finding that the building did not meet setback requirements, the
applicant requested a variance.
Special Conditions /Hardships:
The applicant has cited the following special conditions. Staffs response follows each comment:
1. "The original office warehouse space too small and not adequate for all my business needs
and requirements. I need additional warehouse space for storage of expensive equipment that
cannot be stored outdoors. The original office and warehouse facility did not accommodate all
my business needs and requirements as a construction, service, and retail store thereby
decreasing warehouse space. The entire facility is 1,000 s.f. less than the present business
location we are at now."
Response: The need for additional storage space is a self - created hardship due to
the nature of the applicant's storage need. This alone does not
constitute a hardship.
2. " I have been forced to relocate my business location by Texas Dept. of Transportation for
overhead expressway expansion project. I am pressed by time and circumstances beyond my
control to relocate. I cannot afford to rebuild an entire new facility spacious enough for my
business needs and therefore must alter existing facility to acquire space needed and yet be
able to meet TxDOT deadline requirements."
Response: The urgency of relocation is not a hardship. A hardship must be based
BOARD OF ADJUSTMENT..... NOVEMBER 18, 1998
on the unique conditions of the land, building or neighborhood.
3. "The business property on both sides have warehouse and office facilities that do not adhere to
said ordinance. They may even extend further than my warehouse addition."
Response: This could be considered a unique or special condition, created by non-
conforming construction that occurred before the ordinance was
enacted. See further discussion in this report.
4. "1 consider it to be fair and agreeable with all businesses on both sides as it would be equal to
theirs. Also, for the residential side, what I am proposing to do to improve my property would
only enhance the back of my property and improve the utility easement right of way."
Response: Attractive architectural features of a proposed building or site have not
been recognized as a basis for granting a variance.
Analysis:
A variance is a procedure which provides relaxation of the terms of the Zoning Ordinance, when
owing to conditions peculiar to the property; not the result of actions by the applicant; and where a
literal enforcement of the ordinance would result in unnecessary and undue hardship. Generally a
variance can be granted for the following:
1. Where granting of the variance will not substantially affect the Comprehensive Plan,
and
2. The case is of practical necessity, and
3. Where there are peculiar circumstances and conditions which are special and
unique, and,
4. Where the hardship is solely due to the peculiar circumstances, and is unrelated to
the conduct or self - originated expectations of property owners or buyers.
These reasons are used corporately and not individually when determining the applicability of a
variance.
The following instances have been rejected by the courts as the basis for granting a variance:
1. Inconvenience.
2. Economic advantage.
3. Disappointment in learning that land is not available for the intended use.
4. Substantial construction has been done without the benefit of a permit.
5. Hardship is self - created by an owner or prior owner.
6. Special conditions personally affecting the land owner, and not the land.
7. The land was bought before the enactment of the ordinance, with building plans in mind.
8. Buying property after the Zoning Ordinance was adopted and claiming hardship through
ignorance.
9. Physical disability to earn a living.
10. Attractive architectural features of a proposed building.
11. Evidence that the applicant had spent money in anticipation of being granted a
BOARD OF ADJUSTMENT..... NOVEMBER 18,1988
variance.
An examination of a 1997 aerial photo shows that buildings on either side of the applicant's
property were constructed closer than the required 30 feet. Measuring from the photo reveals that
the applicant's building (already built, but not on the photo) is probably not as close to the
residential property line as adjacent existing buildings.
In many other cities, there is an ordinance provision for reducing setbacks when adjacent
construction does not meet the setbacks. The details vary, but a common method is to take the
setback of buildings along the block, average them, and allow a building that is no closer than the
average. Some regulations use adjacent buildings on either side. This is commonly done
administratively by city staff. Wichita Falls Zoning Ordinance has no such provision, requiring the
variance process to approve reduced setbacks. In considering a variance, the neighboring
buildings could create a special condition, unique to an area. These existing setbacks could be
the basis for approving a variance.
Forced sale, urgency, purchasing a building that is too small, or the attractiveness of
improvements are not hardships. However, existing construction has set a precedent for setbacks
less than 30 along the rear of these lots. A variance is the only tool available to use to approve a
reduced setback. In staff's opinion, existing conditions on adjacent lots may be considered in
reviewing a variance request.
Recommendation:
Staff recommends that is variance be approved based on existing nonconforming setbacks in the
neighborhood.
Acting Chairman Peters swore in all speakers.
Mr. James Looney, president of Star Lines Pools, Inc., stating the business was relocating to the
Jacksboro address because of the U. S. 287 expansion.
Mr. McKinney commented that construction has been started at this address. After a brief
question /answer series with the applicant, Mr. Key stated that the construction of the building is
irrelevant to this case.
Mr. Redwine inquired about the neighborhood response. Mr. Seese replied that 17 property
owners were notified of this request. Three (3) were in favor and two (2) were opposed.
Acting Chairman Peters inquired about a negative finding from this board. Mr. Seese stated it
would then be required for the building to be removed.
To questioning by the Board, Mr. Looney replied that inside the building would be storage of this
air compressors, construction equipment, pumps, etc.. The front building is retail and office space.
He also stated he is required to install a six foot wooden fence in the rear and a chain link fence on
the sides.
Mr. Key stated the ordinance does not consider adjoining property and its conformity to the
restriction. He asked if the nonconformance of adjoining properties is a special condition that this
BOARD OF ADJUSTMENT..... NOVEMBER 18, 1998
Board could consider. Mr. Seese stated that it would have to be determined by the members if a
special condition exists which would permit approval. Mr. McKinney stated he considered the
adjoining property as a special condition. The property owners behind the applicant did not
respond which he considers approval. He reiterated that the adjoining properties provide a special
condition and it should be considered.
Ms. Alex Jones, owner of the Vacuum Doctor, stated her main objection was based on drainage
problems. She explained that two properties have altered the water flow which now flows into the
rear of her property. Mr. Seese stated the drainage problem should be addressed through the
permitting process. Acting Chairman Peters commented that drainage is not a matter of
consideration by this Board.
Mr. McKinney inquired about the slab. Mr. Bobby Teague, Plans Examiner for Building
Inspections, stated that the slab would be considered flatwork, a non - permittable item, and could
remain. Mr. Key mentioned that the fourth requirement for a variance states that it will not be
injurious to the neighborhood. He asked if Building Inspections had control over the potential
flooding if the building were removed but the slab remained. Mr. Teague responded by informing
the Board of the grading ordinance which addresses watershed problems.
Mr. McKinney asked if the Board could conditionally approve this variance. Mr. Seese stated he
did not think there was a provision for conditional approval.
Acting Chairman Peters asked Mr. Teague if he felt there is a solution to the drainage problem.
He responded that could not be determined.
There was a discussion about tabling this case to research this matter. Mr. Looney stressed that
he has lost a month by appealing to City Council who referred this case to this Board. It is critical
for him to move from his present location because of the pending highway construction. He stated
this drainage problem existed prior to construction and this building should have no bearing on it.
Mr. Redwine made a motion to grant the variance. Mr. McKinney seconded the motion. The vote
was four (4) in favor and none (0) opposed.
Mr. Johnston stated he recommended that this Board should get an opinion from the Legal
Department for future reference.
2. Case V 98 -04
Application to Reduce the Front Setback
101 East Scott
Applicant: H. Smith Walker
Property: 101 East Scott Avenue
Requested action: Variance
Purpose: To reduce the front setback from 25 to 10 feet for a billboard
Existing Land Use: Commercial Building and Billboard
Purpose of Request: To obtain a variance for a sign recently constructed
Zoning: Heavy Commercial
BOARD OF ADJUSTMENT..... NOVEMBER 18, 1998
Surrounding Land Use & Zoning: North: Midwest Mattress, HC
South: East Scott Avenue, HC
East: Vacant, HC
West: Dance Hall, HC
Commentary.
The applicant recently completed construction of a billboard. The installation varied from the
approved site plan, and was found to be in violation of the sign ordinance. The two areas of
nonconformance are (1) the front setback is less than 25 feet, and (2) the sign faces do not share
a common support. Signs can have a "V" shape; but the sign faces must share a common point of
connection. Otherwise they are two separate signs. To correct the violations the applicant has
requested a variance to allow a front setback of 10 feet. He will also relocate the signs so that
they have a common support.
Special Conditions /Hardships:
The applicant has cited the following special conditions. Staffs response follows each comment:
1. "The triangle shape [of the lot] reduces size of [usable] building space. Right -of -way taken
[also] reduces the size of the building space. [The] existing building is 4.2 feet from the
property line and across the street buildings are on the property lines."
Response: The applicant's survey shows a metal building with a 4.2 foot setback.
The issue of pre- existing setbacks was discussed in the previous case
V 98 -03. That discussion applies to this case, also. The building
across the street, the former Ebner Brothers Meat Plant, is constructed
on the property line. However being across the street, it is not a factor
in this case. The property is triangular in shape, an unusual condition
of the land. The combination of shape and setback do result in a
reduced usable building area.
It must be noted that variances regulation typically recognize a building
and not a billboard. However, a sign as with a building, both constitute
structures.
2. "These conditions existed when the property was purchased."
Response: One of the criteria for a variance is that the conditions are not a result
of actions by the applicant. The main building on this site was
constructed in 1930. Old maps show the metal building (4.2 feet from
the property line) was once an oil storage warehouse and has existed
before 1953. It is probably as old as the main building.
3. "Because of the shape of [the] lot and fact that buildings in neighborhood are built on the
property line or 4.2 feet from the property line, make a 25 foot setback a hardship."
Response: This could be considered a unique or special condition, but the main
consideration should be the metal building. Construction across the
street is less pertinent. The metal building was built before the current
BOARD OF ADJUSTMENT..... NOVEMBER 18,1998
ordinance was enacted.
4. 'The existing building could be expanded into [the setback] space in question. Zoning and
everything else about [the billboard] is legal."
Response: Under current regulations the metal building could be expanded along
the existing (4.2 foot) building line. However, since it is not a part of the
existing building, the billboard must meet the 25 foot setback.
Analysis:
The applicant provided a survey showing the exact location of the signs and the property line. As
discussed above, there is an existing building 4.2 feet from the property line. The applicant is
requesting a greater setback of 10 feet. An addition, the metal building could be expanded to
continue along the existing building line, but a separate structure such as this billboard could not.
The triangular shape of the lot and a 25 foot setback required on both street frontages may be
considered hardships. Irregular lot sizes are often given as examples of unusual or special
conditions, when they are not of the applicant's actions.
Existing setbacks could be the basis for approving a variance. Under the City's ordinances a
variance is the only tool available to approve a reduced setback. In staffs opinion, the existing
setbacks on the applicant's lot, and its triangular shape could be considered in determining a
hardship.
Recommendation:
Staff recommends that this variance be approved based on existing special conditions on the
property. The applicant should note that the signs must be relocated to have a common support.
Each sign face shall not exceed the 672 square foot limit (807 sq. ft. with protrusions).
Mr. Smith Walker, applicant, stated he works on abandoned properties by bringing them up to
code. Mr. Seese suggested tying the two billboards together with both depending on a single
support. Mr. Walker explained in detail how the board would be joined together. He stated
everything would be in compliance with the exception of extending into the setback on the Walnut
Street side. Mr. Seese reminded the Board that the angle and spacing of the billboards is not for
consideration only the setback issue should be considered.
Mr. Key made a motion to grant this variance request. Mr. McKinney seconded the motion. The
variance passed with a unanimous vote in favor.
IV. ADJOURN
The meeting was adjourned at 2:25 p.m.
Charles Peters, Acting Chairman Date
BOARD OF ADJUSTMENT..... NOVEMBER 18,1998