HomeMy WebLinkAbout2007-09-27 GATOR'S TRANSCRIPT 1
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4 CITY OF EULESS
5 ZONING BOARD OF ADJUSTMENT MEETING
6 HELD AT 201 N. ECTOR DRIVE
7 EULESS, TEXAS 76039
8
9
10 SEPTEMBER 27, 2007
11
12 6:30 P. M.
13
14 CENTRAL STANDARD TIME
15
16
17
18
19 BOARD MEMBERS PRESENT:
20 MR. LUTHER DUBE, Chairman
21 MS. KARIN NEWELL, Vice Chairman
22 ROBERT WOOLDRIDGE
23 HARRY ZIMMER .r `�-
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24 RUBY ANN CRITES yrr.; ,0
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25 STEVEN ELLIS, Alternate (DIP
WENDY WILSON CSR (817) 577-9771
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1 STAFF PRESENT:
2 MIKE COLLINS, Director of Planning &
3 Development
4 CHRIS BARKER, Planning & Development Manager
5 GARY MCKAMIE, City Manager
6 LORETTA GETCHELL, Deputy City Manager
7 BILL RIDGWAY, Director of Economic Development
8 SUSAN CRIM, City Secretary
9 HOLLY WITT, Administrative Secretary
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11
12
IC) 13
14 VISITORS:
15 TIM STINNEFORD
16 JESSICA DELEON
17 NICK MEHMETI
18 ROGER ALBRIGHT
19 BOB MCFARLAND
20 WILLIAM M. MCKAMIE
21 PAUL WIENESKIE
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23
24
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400WENDY WILSON CSR (817) 577-9771
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Ir; 1 P R O C E E D I N G S
2 CHAIRMAN DUBE: May I have your
3 attention, please. I call the September 27th, 2007 ,
4 meeting of the Euless Board of Adjustment to order.
5 According to city ordinance, all cases before the ZBA
6 shall be heard by a minimum of four members . There
7 are five members present and we have a quorum. We
8 also have an alternate member present . As I
9 understand it, the alternate can enter into
10 discussion, but does not have a vote.
11 Could we all stand, please, and pledge
12 allegiance to the flag.
ID13 I pledge allegiance to the flag of the
14 United States of America, and to the republic for
15 which it stands : one nation under God, indivisible,
16 with liberty and justice for all .
17 Would you join me for our invocation.
18 Our Heavenly Father, we again thank you for the gift
19 of life and for another day of it . We ask your
20 presence among us . Be with us in our deliberations
21 that they may be fair and just . In Christ ' s name we
22 pray, Amen.
23 I would like to welcome the audience to
24 the September 27th, 2007 , ZBA meeting. My name is
ID25 Luther Dube and we have here as our members, to my
WENDY WILSON CSR (817) 577-9771
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. ID 1 right, the first one is Ruby Anne Crites, the second
2 is Harry Zimmer and the third is Robert Wooldridge.
3 Would you hold your hand up as I call your name. And
4 over on my left is Karin Newell and alternate is
5 Paul -- I am sorry, Steven Ellis .
6 Now, as far as procedure is concerned, I
7 will go through this briefly for everyone to
8 understand what our objective is and how we go about
9 it .
'fl 10 First of all, I will open the public
11 hearing followed by a brief overview from our city
12 staff. And I think Mike will be giving that . I will
4C) 13 then ask the applicant or applicant ' s representative
14 to come forward to give their presentation. Then we
15 will ask for any proponents and opponents to come
16 forward for their comments regarding the case.
17 Following this, we will allow the
18 applicant or applicant ' s representative to come
19 forward again for any rebuttal.
20 The public hearing will be closed. At
21 which time, discussion will begin among the board
22 members . After all discussion, a call for motion will
23 be made and a vote taken. It takes a minimum of four
24 concurring votes for the ZBA to approve or deny a
. ID 25 variance, or in this case, I guess, the appeal .
WENDY WILSON CSR (817) 577-9771
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1 The first thing we have got to do here
2 is approval of minutes for the called meeting of June
3 28th, 2007 . Is there a correction to these minutes?
4 If not, they will stand as approved.
5 Now, for Case #07-03-ZBA, we open it for
6 public hearing. So Mike, would you give us a brief
7 overview of the case.
8 MR. COLLINS: Yes, sir, I would be
9 happy to. Board, thank you very much for your service
10 to the community and for being here this evening.
11 The case before you is an appeal by the
12 applicant, Mr. Nick Mehmeti, involving a property that
4E) 13 is located at 2155 West Airport Freeway on property
14 that is zoned C-2 . You can see from the graphic below
15 that the property is located on the south side of the
16 Airport Freeway Service Road, east of Westpark Way.
17 As background on the issue, a notice of 1
18 violation was issued on June the 29th, 2007 , to
19 Mr. Mehmeti for operating Gator ' s Cajun Bayou -- that
20 we will commonly refer to in our discussion this
21 evening as simply Gator ' s -- without a valid
22 certificate of occupancy.
23 The reason why we are here this evening
24 is because Mr. Mehmeti, under Section 20 -- excuse
4E) 25 me -- 8427 of the Unified Development Code, is I
WENDY WILSON CSR (817) 577-9771
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IC1 appealing a ruling or an interpretation made by an
2 administrative official . In this instance, it would
3 be the building official. He was the individual that
4 actually had issued the notice of violation.
5 As background, and which will serve as
6 the basis for the city maintaining that Gator ' s is
7 operating without a valid certificate of occupancy, we
8 have provided specific background information that is
9 contained in the agenda communication information
10 before you that I will highlight for you.
11 In October of 2004, Composite
12 Investments had made application for what would be
4D13 known as Case #04-12-SUP. On the application for this
14 SUP, it was represented that Composite Investments was
15 the owner of Gator ' s . Such an SUP was considered by
16 the planning and zoning commission and city council
17 and ultimately approved.
18 In April of ' 05, as noted for -- let me
19 back up for the record -- I would like the minutes to
20 reflect that that application that had been made by
21 Composite Investments, associated with the SUP
22 #04-12-SUP, was included with this agenda packet and
23 identified as Attachment B.
24 Continuing, in April of ' 05, an
25 application was made for a new SUP that would be known
WENDY WILSON CSR (817) 577-9771
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1 as #05-03 . And on that application it is identified
4::,
2 that Three New Millennium is the owner of Gator ' s .
3 Subsequent to the approval that would be
4 granted by the city for that SUP-#05-03 , a certificate
5 of occupancy was issued in June of ' 05 . On that
6 certificate of occupancy, it would identify the owner
7 as Three New Millennium and the business Gator ' s .
8 In October of ' 05, application would be
9 made for SUP-#05-09 . On such application, the owner
10 represented on the application of Gator ' s was
11 Composite Investment, Incorporated. The planning and
12 zoning commission and the city council would approve
13 that SUP, again referenced as #05-09-SUP. And upon
IC)
14 approval of that SUP, with Composite Investments
15 identified on the application as owner, the city would
16 maintain that the previous certificate of occupancy
17 that had been issued, under which Gator ' s had been
18 operating with the owner identified as Three New
19 Millennium, became invalid.
20 Further, we would maintain in support of
21 the change of ownership that in February of ' 06,
22 application was made for SUP-#05-11 . And on that
23 application it was identified that Composite
24 Investments was owner of the project .
25 And then lastly, as recently as July 17 ,
WENDY WILSON CSR (817) 577-9771
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IC) 1 of ' 07 , application was made for a certificate of
2 occupancy in which Composite Investments was
3 identified as the owner of Gator ' s .
4 I might represent for the minutes,
5 Holly, again, that in reference to the application
6 that was discussed relating to #05-03-SUP, that that
7 application was included in the packet as Attachment
8 C. That the certificate of occupancy issued for
9 Gator ' s with the owner listed as Three New Millennium
10 in June of ' 05, was included as Attachment D. The
11 application for #05-09-SUP was included in the packet
12 and identified as Attachment E. The application for
I IC) 13 SUP-#05-11 was included in the packet as Attachment F,
14 and lastly, the reference made to the certificate of
15 occupancy application referenced as July 17th, ' 07 , is
16 included as Attachment G.
17 Based on this information, the staff is
18 recommending denial of the appeal that Gator ' s Cajun
19 Bayou is operating without a valid certificate of
20 occupancy and that based on the criteria upon which
21 the board must find in order to grant such an appeal,
22 there is no basis for appeal. Thank you.
23 CHAIRMAN DUBE: Thank you, Mike.
24 Thank you, Mike. At this time, I would like to ask if
101) 25 the applicant or the applicant ' s representative is
WENDY WILSON CSR (817) 577-9771
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Cl present and if so, to come forward for any comments
2 they wish to make.
3 MR. ALBRIGHT: Mr. Chair and
4 Members of the Board, absolutely. There are several
5 things we want to say. The very first thing we want
6 to say and it ' s getting ready to hand out to you right
7 now is the fact that we have now entered into a
8 contract. We are selling the property. Now, we think
9 that within less than thirty days -- and I can give
10 you a copy -- I have already talked to opposing
11 counsel about this, but please give a copy to him.
12 Within less than thirty days, we believe
® 13 this property will be sold. We think, as a result,
14 this whole issue becomes moot . And what we really ask
15 the board to do is hold this for thirty days because
16 we think that within thirty days, all of this is going
17 to be resolved. Thirty days from now, it is going to
18 be a hotel. The issue of it being Gator ' s is not
19 going to be an issue.
20 Before we spend a whole bunch of time
21 this evening arguing over whether or not we are
22 entitled to an SUP -- because it is my position we
23 have an SUP that is good for two years, et cetera --
24 before we get into that, why don' t we just see if we
401) 25 can' t hold this for thirty days . I think in thirty
WENDY WILSON CSR (817) 577-9771
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ID1 days all of this gets resolved. So that is my first
2 position.
3 Now, if we need to get into the issue
4 about whether or not we have an SUP, we believe we
5 have an SUP. We believe we have an SUP that is good
6 for two years . But let ' s, you know, once again, I
7 would just as soon hold all those arguments if the
8 board is willing to, you know, go ahead and consider
9 that .
10 Let ' s first deal with the fact that I
11 think in thirty days all of this becomes moot . And
12 with that point, I am happy to step away from the
411) 13 podium and let the city' s representative respond. If
14 we need to go ahead and argue the merits, I am happy
15 to do this . I have got a stack of documents where we
16 are going to tee up and we are going to deal with the
17 board of adjustment, but let ' s not go there if we
18 don' t need to tonight . And with that, I would be
19 happy to turn it over.
20 CHAIRMAN DUBE: Okay. Thank you.
21 Anyone else as a proponent for this particular issue?
22 MR. COLLINS: Chairman Dube, would
23 you like to hear from the city' s counsel response to
24 Mr. Albright ' s discussion?
111) 25 CHAIRMAN DUBE: If it is in order,
WENDY WILSON CSR (817) 577-9771
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ID, 1 and I think it is, let ' s go ahead.
2 MR. MCFARLAND: Thank you, Mr.
3 Chairman and Members . Since April of 2006, it has
4 been the position of the city that this business
5 establishment has operated outside the authority of
6 the Unified Development Code of the City of Euless .
7 The city council, the city, and
8 officials of the city have met on many occasions with
9 the owner of this establishment and have granted great
10 latitude in the continued operation of the premises
11 which are the subject of the meeting this evening.
12 And if allowed to continue the operation of that
' 4C) 13 premises, irrespective of the fact as is the position
14 of the city this evening, that this premises was
15 operating outside the parameters of the city' s code.
16 Part of that reason was the fact that
17 the applicant has indicated on numerous occasions that
18 there were contracts outstanding which would allow the
19 property to be sold and to be brought into compliance
20 with the city' s Unified Development Code . I am aware,
21 I believe, of at least three different instances in
22 which there were pending contracts for the sale of
23 this property, none of which materialized.
24 Finally, the city staff was instructed
401) 25 by the council to move forward and to bring this
WENDY WILSON CSR (817) 577-9771
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1 property into compliance with the Unified Development
2 Code of the city, as with all other properties within
3 the city. And that has brought us to this evening.
x 4 If this contract closes, and we
5 certainly would hope that it would close and bring
6 this property into compliance with the code of the
7 city, so be it . If the result of that closing of that
8 contract would be the abatement of these proceedings,
9 no one would be happier than the City of Euless .
10 We have forestalled enforcement of the
11 code of this city now since April of 2006 . And we
12 believe forestalling it further would not be in the
410 13 best interest of the city. And we would ask you to
14 deny the request for further continuance. Thank you.
15 CHAIRMAN DUBE: Thank you.
16 MR. ALBRIGHT: There has not been
17 three contracts . There has never been three
18 contracts . We had one before, it fell out . We are on
19 our second contract . We are not on our fourth
20 contract, but on our second contract . We think this
21 one is going to close. My point is very simple.
F 22 Let ' s see if thirty days from now it closes . We 've
23 got a buyer who is going to like redo the hotel . And
24 if so, then we are resolved. We don' t even need to be
401) 25 here. This issue becomes moot . We don' t have four
WENDY WILSON CSR (817) 577-9771
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1 C 1 contracts as counsel would suggest . We are on our
2 second contract .
3
,
3 CHAIRMAN DUBE: Okay. Thank you.
4 And going back to the previous comment that I made,
5 are there any other proponents for the case to come
i
4 6 forward for comments? If not, you may take your seat,
7 please. If not, are there any opponents for the case
8 to come forward for comments?
9 And since there apparently are no other
10 proponents, let me just ask for this . If there is any
11 rebuttal -- and I think you just made a rebuttal --
12 but if there is any other additional rebuttal, we
4E) 13 would listen to it at this time.
14 MR. ALBRIGHT: Mr. Chair, I think I
15 can save the board two hours worth of time because I
16 am getting ready to put Kurt Kasson, the building
17 official, under oath and we are going to go through
18 everything that has happened on this particular piece
19 of property for the last, roughly, twenty years .
20 I think we can avoid all of that if we
21 will hold this for a month and see if indeed it
22 closes . If it doesn' t close, then we are right back
23 here. Nobody has lost anything. But we have got a
24 chance, I think, to make this go away.
100 25 And I am not -- you know, this is the
WENDY WILSON CSR (817) 577-9771
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1 first time I have been before this board, I have been
2 before anybody in the City of Euless in which I am
3 claiming that I think we can actually make this
4 happen.
5 So if we want to spend two hours, let ' s
6 spend two hours . And then tomorrow, I will be at the
7 district court and these fine gentlemen know where the
8 district court is . We will all be there and we will
9 all spend a whole bunch of time and a whole bunch of
10 money. I am thinking there is a way out of that box.
11 And that is let ' s just hold our breath for thirty days
12 and see what happens . But if you don' t want to do
414) 13 that, you don' t want to do that .
14 CHAIRMAN DUBE: Thank you. I feel
15 that our board has been called together this afternoon
16 or evening to do a job and regardless of what happens
17 down the road, we have to take some kind of action now
18 and let the other action have its effect as it may.
19 If there are no further proponents or
20 opponents to this particular action, we will close the
21 hearing. And hereby we ' ll close.
22 MR. ALBRIGHT: Mr. Chair, I don' t
23 believe we are closing the hearing. I 've got a
24 witness I 'm going to put on and we 've got a whole
4C) 25 bunch of testimony we want to put on, so I really
WENDY WILSON CSR (817) 577-9771
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401) 1 don' t think it ' s appropriate that we are closing the
2 hearing.
3 CHAIRMAN DUBE: Well, when I asked
4 for any opponents or further proponents, no one showed
5 up.
6 MR. ALBRIGHT: Well then, Your
7 Honor, if I misspoke myself earlier, I will assure you
8 that I want to call the building official . And I have
9 a whole lot of evidence that I want to get from the
10 building official to get in the record that will be
11 part of the written record that is going to the board
12 of adjustment -- excuse me -- that is going to the
401) 13 district court tomorrow morning. And so, yes, sir,
14 there is an incredible amount of testimony. I am
15 anticipating two hours worth of testimony that we are
16 getting from the building official beginning as soon
17 as the board allows .
18 CHAIRMAN DUBE: Okay. Thank you.
19 I would like to direct this question -- and it is
20 going to be to our attorney since we have closed it
21 already, closed the hearing. Is it okay to go ahead
22 and open it back up since there apparently was some
23 misunderstanding?
24 MR. WIENESKIE: I think in order to
401) 25 be fair to all parties and make sure everybody has
WENDY WILSON CSR (817) 577-9771
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1 their chance procedurally, that would probably be
2 appropriate if that is the board' s desire. It might
3 be best to go ahead and have a motion and a quick vote
4 on that just to make it better.
5 CHAIRMAN DUBE: Okay. Do I have a
6 motion that we go ahead and re-open this hearing and
7 obtain the additional information that wants to be
8 presented?
9 VICE CHAIRMAN NEWELL: Mr. Dube, I
10 so move.
11 CHAIRMAN DUBE: Okay.
12 BOARD MEMBER CRITES: I second.
4111) 13 CHAIRMAN DUBE: Ms . Newell moved
14 and Ms . Crites seconded the motion that we re-open the
15 hearing. Is there any discussion on this? If not,
16 let ' s vote by holding our hands up. All for the
17 motion -- and Holly, do you need us to --
18 MS. WITT: I will poll the
19 commissioners . Board Member Wooldridge?
20 BOARD MEMBER WOOLDRIDGE: Aye.
21 MS. WITT: Chairman Dube?
22 CHAIRMAN DUBE: Aye.
23 MS. WITT: Board Member Zimmer?
24 BOARD MEMBER ZIMMER: Aye.
4E) 25 MS. WITT: Board Member Crites?
WENDY WILSON CSR (817) 577-9771
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IC) 1 BOARD MEMBER CRITES: Aye.
2 MS. WITT: Vice Chairman Newell?
3 VICE CHAIRMAN NEWELL: Aye.
4 MS. WITT: The motion carries .
{
5 CHAIRMAN DUBE: Okay. Just to be
6 even. All opposed, the same sign?
7 MR. ALBRIGHT: I believe all five
8 voted for.
9 CHAIRMAN DUBE: So the motion
10 carries . Okay. Mr. Albright .
11 MR. ALBRIGHT: Mr. Chairman, I
12 would call the building official .
IC) 13 CHAIRMAN DUBE: I 'm sorry.
14 MR. ALBRIGHT: I would call the
15 building official as my first witness .
16 CHAIRMAN DUBE: All right . Go
17 ahead.
18 MR. COLLINS: Mr. Kasson is the
19 building official and had a family emergency this
20 evening and is not able to attend.
21 MR. ALBRIGHT: Well, then, I am
22 going to have to move, Mr. Chair, then I am going to
23 have to move that we continue this hearing. The
24 building official is the witness for me to have. I
401) 25 have discussed this with opposing counsel on more than
WENDY WILSON CSR (817) 577-9771
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401) 1 one occasion. We have to have the building official.
2 He is the official from whose decision we are
3 appealing. If he is not available, that is fine. We
4 just need to reschedule.
5 CHAIRMAN DUBE: Mr. Collins, do we
6 have someone who could stand in for Mr. Kasson?
7 MR. ALBRIGHT: No. It ' s his
8 letter. It ' s his letter. It ' s his decision. We are
9 appealing from the decision of the building official .
10 He is the man.
11 MR. COLLINS: I would need
12 clarification from our city' s counsel.
1E) 13 MR. MCKAMIE: Mr. Chairman, we
14 haven' t received a request to have any individual
15 witnesses here today. I am Mick McKamie, special
16 counsel for the city. Of course, this board is
17 entitled to issue subpoenas . I am not aware of a
18 subpoena request . This is the first I have personally
19 heard about needing for any particular witness . One
20 has been mentioned and there may be others . I was
21 even unaware -- I haven' t spoken to Mr. Kasson about
22 this hearing at all . I believe the city attorney, Mr.
23 McFarland, has had some discussions with Mr. Albright
24 about other hearings, but not this one.
25 MR. ALBRIGHT: I am not going to
ID
WENDY WILSON CSR (817) 577-9771
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401) 1 believe that Mr. McFarland is going to get up here and
2 lie and say that --
3 MR. MCKAMIE: You are out of order,
4 Mr. Albright . Take your seat, please.
5 MR. ALBRIGHT: I am not going to
6 believe that Mr. McFarland --
7 MR. MCKAMIE: Mr. Albright, you are
8 out of order. Take your seat, please.
9 MR. ALBRIGHT: I am not going to
10 believe that Mr. McFarland --
11 MR. MCKAMIE: Mr. Albright, you are
12 out of order.
IC) 13 MR. WIENESKIE: Counsel, would you
14 like to be ejected from the chambers for not
15 following --
16 MR. MCKAMIE: Mr. Chairman, I am
17 addressing the board. I believe I have the floor at
18 this time. Mr. Albright, I would appreciate the
19 courtesy of you sitting down, sir.
20 Mr. Chairman, we really need some
21 order. I am giving my talk as special counsel for the
22 city. I said that I personally -- I don' t believe I
23 said anything about what Mr. McFarland might or might
24 not say. He is standing here.
25 My point is, I haven' t been requested to
WENDY WILSON CSR (817) 577-9771
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111C) 1 produce any witnesses or any documents for this
2 hearing. This board has the ability to issue
3 subpoenas . I am not aware of any being requested.
4 Let Mr. McFarland speak for himself. I just merely
5 mentioned that Mr. McFarland may have spoken to Mr.
6 Albright, but as far as I have been made aware as
7 special counsel for the city, there have been no
8 agreements to produce a witness or any documents .
9 Thank you, sir.
10 CHAIRMAN DUBE: Thank you.
11 Mr. McFarland.
12 MR. MCFARLAND: Mr. Chairman and
13 Members, the only discussion I recall having with
14 Mr. Albright was my agreement to produce Mr. Kasson at
15 the temporary hearing on a temporary injunction for
16 the district court in Tarrant County, Texas . That
17 hearing was postponed under a Rule 11 Agreement that
18 was entered into by the city and Mr. Albright to allow
19 this hearing. I do not have any recollection of
20 agreement to produce any witnesses before this board.
21 I am unaware that any witnesses would need to be
22 called.
23 MR. ALBRIGHT: Mr. Chair, if I may
24 be heard on this matter?
F;
100 25 CHAIRMAN DUBE: Go ahead.
WENDY WILSON CSR (817) 577-9771
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401) 1 MR. ALBRIGHT: I will assure you
2 that two days ago Mr. McFarland and I -- and in fact,
3 yesterday and today, Mr. Farland and I had the
4 conversation regarding the idea that the building
5 official, the key witness, would be made available and
6 I did not need to subpoena that witness, that he would
7 be available.
8 I have -- I have 11 different documents
9 that I want to prove up through this witness . And
10 Mr. McFarland agreed that witness would be made
11 available. He is the key witness .
12 Let me spin it around a different way
13 for you. If you don' t have your building official
41)
14 here, I don' t think you have got a case. Where is
15 your witness? Where is the man who is going to stand
16 up and say, I am revoking this CO? Where is the man
17 who says, I don' t need to revoke the CO, it is revoked
18 as a matter of law? You don' t have a witness . You
19 need your witness . That is exactly what Bob McFarland
20 and I have discussed for weeks, that he would be here.
21 If you don' t have your witness, I am
22 happy to have you continue the case. Continue the
23 case. You don' t have your witness .
24 CHAIRMAN DUBE: Mr. Albright, I
4E) 25 don' t know what kind of conversations you may have had
WENDY WILSON CSR (817) 577-9771
22
1 with the city attorney, but right now, I guess what we
2 need to know from you, do you have anything to present
3 without Mr. Kasson being here?
4 MR. ALBRIGHT: Absolutely. I will
5 present any number of documents and you will be unable
6 to respond, the city will be unable to respond, as to
7 what it is that he did or did not do. But yes, sir,
8 I have 13 different documents that I am going to
9 present .
10 CHAIRMAN DUBE: Will you proceed
11 with that, please.
12 MR. ALBRIGHT: Yes . I call Kurt
IC) 13 Kasson.
14 MR. WIENESKIE: For the benefit of
15 the board, let me point out a couple of things .
16 Number one, Mr. McKamie was correct in his statement
17 that the board does have the authority to issue
18 subpoenas for the attendance of witnesses . And I am
19 not aware that the board has received any request for
20 any subpoenas for any witness for this case tonight .
21 I do not -- I do not know if any agreements were
22 made. I have heard the city attorney, who Mr.
23 Albright referred to, stand up and say that he did not
24 make any agreement to make Mr. Kasson available
11110 25 tonight and I have no reason to question that .
WENDY WILSON CSR (817) 577-9771
23
4:) 1 MR. ALBRIGHT: And why not?
2 MR. WIENESKIE: Mr. Albright, I am
3 addressing the board and I 'd appreciate you allowing
4 me to do it without interruption. Thank you.
5 Number three, the city is not required
6 to put on a case tonight . It is the burden of the
7 applicant, the person requesting that the appeal be
8 granted. That party is Mr. Albright ' s client and they
9 are the ones that have the burden of proof at this
10 hearing tonight . And whether they carry that burden
11 of proof, based on what they present and what the city
12 presents, is what you are here to decide. But the
13 city, as it stands right now, is not required to do
14 anything unless and until the applicant meets his
15 burden of proof to persuade this board that there was
16 a mistake in the decision of the building official .
17 MR. ALBRIGHT: And therefore I
18 would call Mike Collins --
19 MR. WIENESKIE: Would you please
20 allow me to finish my statement, Mr. Albright?
21 MR. ALBRIGHT: Mike Collins is my
22 first witness .
23 MR. WIENESKIE: Mr. Albright, I am
24 not finished and I would appreciate you behaving
25 professionally instead of interrupting all the time.
WENDY WILSON CSR (817) 577-9771
24
ID1 I was about to try to make your job easier for you if
2 you would let me.
3 The last thing I wanted to say to the
4 board is that there had been several documents in the
5 packet that has been given to the board tonight that
6 had been certified by the city secretary as being true
7 and correct copies of documents within the city' s
8 possession under what looks like a business record
9 affidavit or something close to it . And if some of
10 those documents are documents that Mr. Albright wanted
11 to introduce into evidence before this board, using
12 Mr. Kasson as a sponsoring witness, I would suggest
ID13 that he doesn' t need Mr. Kasson as a sponsoring
j 14 witness in order to introduce those documents . They
I
15 are already here and therefore, his burden is lessened
16 somewhat in that regard.
17 If any of the members of the board have
18 any questions of me, as your counsel at this time,
19 before we proceed any further, I will try to answer
20 them.
21 CHAIRMAN DUBE: Are there any
22 questions of any board member of our counsel?
23 MR. WIENESKIE: Thank you,
24 Mr. Chairman.
401) 25 MR. ALBRIGHT: I would call Mike
WENDY WILSON CSR (817) 577-9771
25
1 Collins as my first witness, Mr. Chair.
2 CHAIRMAN DUBE: So be it . May I
3 assume it is your intent to question him or what?
4 MR. ALBRIGHT: Oh, absolutely.
5 CHAIRMAN DUBE: Go ahead.
6 MR. ALBRIGHT: Mr. Collins, would
7 you see if you could please identify what I am going
8 to hand you as Exhibit Number 1 ?
9 MR. COLLINS: The applicant has
10 presented a specific use permit identified as
11 #97-09-SUP that I believe approved a specific use
12 permit for arcade and pool tables . The conditions
13 established included a one year time limit . Signs
14 would be posted on the walls as specified by the
15 police department and inspected by the city; a detail
16 drawing layout; no content to be sexually oriented;
17 date of action by P and Z, March the 17th of ' 98; city
18 council approval on April the 14th of ' 98 .
19 MR. ALBRIGHT: Is it fair to say
20 that is an SUP approval for 1997 for Gator ' s to
21 operate?
22 MR. COLLINS: I believe that to be
23 accurate.
24 MR. ALBRIGHT: Okay.
25 MR. COLLINS: Mr. Albright, are you
WENDY WILSON CSR (817) 577-9771
26
IC) 1 providing copies to the council?
2 MR. ALBRIGHT: I am.
3 MR. COLLINS: Okay.
4 MR. ALBRIGHT: Let me hand you what
5 I am going to mark as Exhibit 2 . And can you identify
6 that for me? And let me -- because I don' t want to
7 take a lot of the board' s time, is this an application
8 for an SUP dated November -- excuse me September 1st,
9 2004, again for Gator ' s?
10 MR. COLLINS: Yes, sir, that would
11 be correct .
12 MR. ALBRIGHT: Okay. And once
41) 13 again -- and, you know, I am happy to have counsel
14 object or if the council has any questions -- but just
1
15 to make sure that we all understand what we are
16 dealing with here, this is a document that I filed
17 regarding a change of ownership, no change in
18 operation or use back in 2004 . Is that fair to say? '
19 MR. COLLINS: I don' t know if it ' s
20 fair or not, but factually, yes, an SUP --
21 MR. ALBRIGHT: Factually correct?
22 MR. COLLINS: Yes, sir, an
23 application was made.
24 MR. ALBRIGHT: Okay. And
ID25 approved. Not only application made, but approved.
WENDY WILSON CSR (817) 577-9771
27
400 1 Is that not right to say?
2 MR. COLLINS : Yes, sir.
3 MR. ALBRIGHT: Okay. Let ' s try one
4 more document then and see how this works out . Let me
5 hand you now what is going to be a document marked
6 April 5th of 2005 . Is that where the certificate of
7 occupancy for this particular use got approved?
8 MR. COLLINS: Yes, sir, that would
9 be a letter that was sent that upon passage of the
10 SUP-#04-12 , yes, sir.
11 MR. ALBRIGHT: Okay. And that SUP
12 got approved; didn' t it?
41) 13 MR. COLLINS: Yes, sir, it did.
14 MR. ALBRIGHT: Okay. So now, let ' s
15 just make sure we all understand where we all are.
16 The CO got approved and the SUP got approved, right?
17 MR. COLLINS: SUP, yes, sir.
18 MR. ALBRIGHT: I want to make
19 sure. I don' t want to misrepresent anything because
20 apparently I 've got a little trouble with counsel over
21 here. We are not going to have a phone call ever
22 again. I want to make sure that we have the written
23 documents and the written documents say, Got approved,
24 right?
25 MR. COLLINS: Yes, this specific
WENDY WILSON CSR (817) 577-9771 f"
28
1 use permit was approved.
2 MR. ALBRIGHT: Okay. Let me hand
3 you the next document then. Let me get that so
4 everybody can have one. Did we get a certificate of
5 occupancy?
6 MR. COLLINS: Yes, sir. A
7 certificate of occupancy dated June the 8th of 2005,
8 was issued.
9 MR. ALBRIGHT: Okay. So we 've got
10 a CO, right?
11 MR. COLLINS: Yes, sir, a CO was
12 issued.
41) 13 MR. ALBRIGHT: Now, I understand
14 that apparently the building official, you know, he
15 has had some issue this evening and unfortunately he
16 is not here, but he sent us a letter saying we did not
17 have a CO, right?
18 MR. COLLINS: That would be
19 accurate.
20 MR. ALBRIGHT: And, in fact, we
21 have a CO; is that not correct?
22 MR. COLLINS: There was a
23 certificate of occupancy issued following approval of
24 a SUP in April of ' 05, yes, sir.
4C) 25 MR. ALBRIGHT: Uh-huh.
WENDY WILSON CSR (817) 577-9771
29
4C) 1 MR. COLLINS: Thank you.
2 MR. ALBRIGHT: And Mr. Collins, am
3 I correct that that CO got issued pursuant to the
4 zoning district change for specific use permit
5 document that I just handed to you?
6 MR. COLLINS: I am sorry,
7 Mr. Albright . You are referencing this as the
8 application that was submitted consistent with or
9 directlyrelated r
e ated to #05-03-SUP?
10 MR. ALBRIGHT: If that is not
11 correct, please tell me it is not correct .
12 MR. COLLINS: No, what I am asking
41) 13 you is for clarification. Is this the application
14 consistent with the --
15 MR. ALBRIGHT: Mr. Collins, I am
16 asking you --
17 MR. COLLINS: -- #05-03 or #05-09
18 that is what I am not clear on.
19 MR. ALBRIGHT: Let ' s see if we can
20 hop ahead. We submitted whatever application you
21 asked us to submit . We got an SUP approved; is that
22 not correct?
23 MR. COLLINS: Yes, sir, but what I
24 am trying to clarify are you referencing the
4C; 25 SUP-#05-03 in April of ' 05, or are you referencing the
WENDY WILSON CSR (817) 577-9771
30
4C) 1 SUP-#05-09 that was approved in October of ' 05? That
2 is what I am trying to get clarification on.
3 MR. ALBRIGHT: I guess for me my
4 question to you is we 've got an SUP; don' t we?
5 MR. COLLNS: There was a
6 certificate of occupancy issued following the approval
7 of a specific use permit in April of ' 05 .
8 MR. ALBRIGHT: That ' s -- let ' s try
9 to get to it another way. Did we not try in the
10 earlier part of this year to get an SUP -- excuse
11 me -- to get a site plan approved? And let me back up
12 a minute. Did you not, from a staff level, approve a
13 site plan? Mr. Collins, I am waiting for an answer.
14 Did you not, from a staff level --
15 MR. COLLINS: Yes, the development
16 review committee issued a recommendation to the
17 planning and zoning commission for a site plan.
18 MR. ALBRIGHT: Okay. And then did
19 the planning and zoning commission not in turn
20 recommend approval?
21 MR. COLLINS: Yes, they did.
22 MR. ALBRIGHT: I am sorry. I know
23 you got interrupted. I want to make certain that the
24 record is clear. The planning and zoning commission
25 recommended approval of a site plan?
WENDY WILSON CSR (817) 577-9771
31
IC) 1 MR. COLLINS: A site plan for a
2 restaurant, a stand-alone restaurant .
3 MR. ALBRIGHT: Whatever was on that
4 agenda item.
5 MR. COLLINS: Just trying to get
6 clarification of what you are asking specifically in
7 order to --
8 MR. ALBRIGHT: Did it get
9 approved?
10 MR. COLLINS: -- to be specific to
11 the case number and the date, please, that would help
12 this commission.
411) 13 MR. ALBRIGHT: Did it get
14 approved?
15 MR. COLLINS: We need to be very
16 specific about what was approved. We are referring to
17 site plan #07-01 .
18 MR. WIENESKIE: I will instruct
19 you, Mr. Collins, that if you do not understand the
20 specific question that is being asked of you, your
21 very appropriate response is, I can not answer that
22 question because I do not understand what you are
23 asking, because you are being handed quite a few
24 documents in rapid fire. This is a lot of history in
25 this case.
WENDY WILSON CSR (817) 577-9771
32
11C) 1 MR. COLLINS: Thank you very much.
2 MR. ALBRIGHT: Mr. Collins, do you
3 need more information?
4 MR. COLLINS: Yes, sir.
5 MR. ALBRIGHT: Okay. Let me back
6 up then. Let ' s go back to the site plan for what we
7 are calling Gator ' s . Are we -- do we all know what we
8 are calling Gator ' s? Do we have any dispute about
9 what Gator ' s is?
10 And Mr. Collins, I am looking at you.
11 If -- your counsel has now given you the opportunity
12 to run away from the question if you have an issue
411) 13 that you don' t know what Gator ' s is .
14 MR. COLLINS : Sir, I am just trying
15 to be very clear and be responsive to you. The site
16 plan application under consideration that you are
17 referencing would be for the renovation of the
18 existing Gator ' s into a 9, 532 square foot sport-city
19 cafe. Yes, I am familiar with that .
20 MR. ALBRIGHT: Okay. So we are all
21 on the same page. This is Gator ' s?
22 MR. COLLINS : It would be -- yes,
23 it would be related to the structure that Gator ' s is
24 located.
25 MR. ALBRIGHT: So we are all k'
WENDY WILSON CSR (817) 577-9771
33
401) 1 talking about Gator ' s . And Gator ' s got tabled by the
2 city council in March of ' 07?
3 MR. COLLINS: Consideration of
4 #07-01 site plan, yes, sir, was tabled.
5 MR. ALBRIGHT: Despite the fact
6 that it was approved by the staff and it was approved
7 by the planning commission; is that not correct?
8 MR. COLLINS: That would not be
9 correct .
10 MR. ALBRIGHT: Okay. Then tell me
11 where that is not correct .
12 MR. COLLINS: As a point of
401) 13 clarification, the development review committee at the
14 staff level simply makes a recommendation to the
15 planning and zoning commission. The planning and
16 zoning commission simply is a recommending body to the
17 city council .
18 MR. ALBRIGHT: Okay. Let me --
19 MR. COLLINS: To be very specific,
20 the staff did recommend approval and the planning and
21 zoning commission did recommend approval .
22 MR. ALBRIGHT: Okay. So let me
23 make sure that my question is correctly worded. The
24 staff recommended approval and then the planning and
411) 25 zoning commission, in turn, recommended approval?
WENDY WILSON CSR (817) 577-9771
34
401) 1 MR. COLLINS: Yes, sir.
2 MR. ALBRIGHT: Okay. 13o you
3 understand the concept of ministerial act?
4 MR. COLLINS: Yes, sir.
5 MR. ALBRIGHT: Do you think that
6 the board of adjustment -- I am sorry, the planning
7 and zoning commission was engaged in a ministerial act
8 when it approved that?
9 MR. COLLINS: On issues specific to
10 meeting the site plan development standards?
11 MR. ALBRIGHT: Yes, sir.
12 MR. COLLINS: No. The staff that
4101) 13 was involved believed, at the time, that it satisfied
14 all requirements .
15 MR. ALBRIGHT: So the staff was
16 happy with it, the planning commission was happy with
17 it; is that fair to say?
18 MR. COLLINS: Based on the
19 information that was presented and the knowledge of
20 staff, that is correct .
21 MR. ALBRIGHT: Okay. And then city
22 council made a political decision to not approve it .
23 Is that fair to say?
24 MR. COLLINS: No, I wouldn' t
25 characterize that .
WENDY WILSON CSR (817) 577-9771
35
1 MR. ALBRIGHT: Well, how would you
2 characterize it then?
3 MR. COLLINS: It wouldn' t be my
4 place to characterize what the city council --
5 MR. ALBRIGHT: Okay. Let ' s back up
6 again then and say staff. You recommended approval?
7 MR. COLLINS: Yes, based on our
8 knowledge, yes, we recommended approval .
9 MR. ALBRIGHT: The planning
10 commission recommended approval?
11 MR. COLLINS: Yes, sir.
12 MR. ALBRIGHT: And then something
4C) 13 happened at the council level . Is that -- for lack of
14 any better thing; is that fair to say?
15 MR. COLLINS: Yes, there were
16 questions raised by the city council members, yes,
17 sir.
18 MR. ALBRIGHT: And got denied?
19 That would be fair to say?
20 MR. COLLINS: Yes, it was denied.
21 MR. ALBRIGHT: When should an SUP
22 be approved or denied?
23 MR. COLLINS: I don' t understand
24 your question.
400 25 MR. ALBRIGHT: Let me see if I can
WENDY WILSON CSR (817) 577-9771
36
401) 1 rephrase that then, because it was a poorly worded
2 question. Is there any additional information that
3 either the staff or the planning commission requested
4 from the applicant with regard to their SUP?
5 MR. COLLINS: What SUP are you
6 referencing?
7 MR. ALBRIGHT: I am referring to
8 the SUP that was requested by the applicant that is
9 before you tonight . Was there anything? Was there
10 anything that was asked that was not provided?
11 MR. MCKAMIE: Mr. Chairman, I don' t
12 mean to interrupt counsel, but I am going to have to
4101) 13 object to all of this questioning because it doesn' t
14 relate to the issue of whether the building official ' s
15 interpretation of the city' s Unified Development Code
16 is correct or not .
17 MR. ALBRIGHT: It exactly goes to
18 it .
19 MR. MCKAMIE: Especially given this
20 last question by counsel that he said, The SUP that we
21 are here on tonight . We are not here on an SUP. We
22 ask that you limit the discussion in issue to what is
23 before this board which is the nature of the appeal
24 and the board of adjustment (inaudible) .
401) 25 MR. ALBRIGHT: Mr. Collins, what do
WENDY WILSON CSR (817) 577-9771
37
4101) 1Y ou think is before youtonight?
toni ht?
2 MR. MCKAMIE: May I have a ruling
3 from the board on whether this is a question --
4 MR. COLLINS: I am sorry to
'
5quick. Ms . Crim, as a
matter of
interrupt real
P
6 practicality, are the comments that are being made by
7 Mr. McKamie going to be picked up on the audiotape or
8 does he need to approach the mike every time he
9 speaks?
10 MS. CRIM: They are probably not
11 going to be picked up (inaudible) --
12 MR. COLLINS: Would you give,
411) 13 Mr. Albright .
14 MR. ALBRIGHT: Get up here.
15 MR. COLLINS: Thank you very much.
16 MR. MCKAMIE: Let me just reiterate
17 what I just said from over in the other part of the
18 room. Mr. Chairman, we object to this line of
19 questioning which doesn' t relate to the appeal that is
20 before this board tonight which is a specific issue
21 provided under the Unified Development Code and Texas
22 state law and the powers of this board.
23 The SUPS that are being discussed are
24 not at issue here in any way. The question is whether
401) 25 a valid certificate of occupancy exists on this
WENDY WILSON CSR (817) 577-9771
38
sa
IC)
1 subject property and if the building official ' s
2 determination was the proper interpretation. So we
3 ask you to please limit this questioning. Thank you.
4 MR. ALBRIGHT: Mr. Chair, we are
5 going to --
6 CHAIRMAN DUBE: Before we move
7 forward, I do not claim to be an expert legal person.
8 And it is not clear to me where we draw the line as to
9 does this information have bearing on the issue or
10 not . And I have your input, may we have your input on
11 it?
12 MR. WIENESKIE: Well, as I have
ID13 previously referred to, you are here tonight to decide
14 the appeal from the building official ' s decision that
15 there is not, at this time, a valid certificate of
16 occupancy in force for Gator ' s at the subject
17 property. What you are confined to consider tonight
18 are the three factors that are included in your
19 packet . And for the benefit of the record, I will
20 reiterate them here.
21 What you must find, in order to grant --
22 in order to find in favor of the appellant tonight is
23 that there is a reasonable difference of
24 interpretation as to the specific intent of the zoning
25 regulations or the zoning map.
ID
WENDY WILSON CSR (817) 577-9771
39
1 Number two, that the resulting
401)
2 interpretation -- that if you grant the appeal that
3 the applicant is asking for -- will not grant a
4 special privilige to one property. It is inconsistent
5 with other properties or uses similarly situated.
6 Number three, the decision of the board
7 must be such as will be in the best interest of the
8 community and consistent with the spirit and intent of
9 the city' s zoning laws .
10 Those are the narrow confines of your
11 hearing tonight . And I am not authorized to rule on
12 objections, but if I were, I would be inclined to go
4111) 13 in favor of Mr. McKamie that we need to be confined to
14 the specific question that you have been asked under
15 the city' s ordinances and the local government code to
16 decide tonight .
17 So now you, Mr. Chairman, as the
18 chairman of this body, unfortunately or fortunately,
19 get to rule on the objection that Mr. McKamie made and
20 decide whether the board will limit the presentations
21 tonight on both sides to a more limited area of the
22 certificate of occupancy as opposed to various
23 specific use permits .
24 CHAIRMAN DUBE: Thank you, Paul . I
4C) 25 will go ahead and rule on that . Mr. McKamie ' s ;.
WENDY WILSON CSR (817) 577-9771
4C) 1 comments that our discussion should be limited and 40
2 should not wander all over the field, so if you can
3 confine your comments and your questions, Mr.
4 Albright, to the issue at hand, we will go along that
5 format .
6 MR. ALBRIGHT: Mr. Collins, I 've
7 just handed you a copy of the June 29th, 2007 , letter
8 that I 've also given a copy to every member of the
9 board. Is that not the letter that says quote, You
10 need to obtain a certificate of occupancy?
11 MR. COLLINS : Yes, sir, that would
12 be correct .
41) 13 MR. ALBRIGHT: Okay. So the big
14 issue that we are really here about tonight is quote,
15 We need a CO; is that fair to say?
16 MR. COLLINS: No, sir. My
17 understanding is the issue is very specific to whether
18 or not Gator ' s is currently operating without a valid
19 certificate of occupancy.
20 MR. ALBRIGHT: Okay. Now, that ' s
21 not what this letter says now, is it? This letter
22 very specifically says, Need to obtain a certificate
23 of occupancy from the City of Euless . Is that not
24 what this letter says?
ID25 MR. COLLINS: Yes, sir. Based
WENDY WILSON CSR (817) 577-9771
41
1 on -- based on the fact that there was no valid
2 certificate of occupancy.
3 MR. ALBRIGHT: So you say; right?
4 MR. COLLINS: That would be the
5 city' s position, yes, sir.
6 MR. ALBRIGHT: Okay. Now, you do
7 know there is a CO out there?
8 MR. COLLINS: Yes, sir. I am well
9 aware that there was a certificate of occupancy issued
10 in June following approval of a specific use permit in
11 June of ' 05, following approval of a specific use
12 permit in April of ' 05 .
401) 13 MR. ALBRIGHT: So in June of ' 05,
14 you' d know there was a CO?
15 MR. COLLINS: Yes, sir.
16 MR. ALBRIGHT: So when the city
17 building official says, You don' t have a CO, he is
18 wrong?
19 MR. COLLINS: That would not be the
20 contention of the city, sir.
21 MR. ALBRIGHT: Well, then, let ' s
22 back up a minute. Is there a CO?
23 MR. COLLINS: There was a
24 certificate of occupancy issued in June of ' 05,
25 following the approval of Specific Use Permit #05-03
WENDY WILSON CSR (817) 577-9771
42
11110 1 in April of ' 05 .
2 MR. ALBRIGHT: Can you point me to
3 any other case in the city of Euless where you somehow
4 said it ' s revoked without sending a notice of
5 revocation? Is there one other example anywhere?
6 MR. COLLINS: Not that I recall .
7 MR. ALBRIGHT: Okay. So this is
8 the first time ever you have decided -- and I
9 understand that Mr. Kasson has some family trouble and
10 he is not here -- but for the first time ever, you did
11 not send out a notice of revocation. We didn' t go
12 through the normal process . You decided that it was
41) 13 quote, Revoked. Is that fair to say?
14 MR. COLLINS: No, sir, I wouldn' t .
15 MR. ALBRIGHT: Just tell me how we
16 characterize this?
17 MR. COLLINS: I would have no
18 characterization other than it was proper.
19 MR. ALBRIGHT: Okay. But never
20 before ever done?
21 MR. COLLINS: No. You asked me if
22 I had any knowledge of it and I don' t . All I was --
23 MR. ALBRIGHT: Okay.
24 MR. COLLINS: -- I don' t know
4011) 25 whether or not it has ever happened before.
WENDY WILSON CSR (817) 577-9771
43
1 MR. ALBRIGHT: I am sorry. Don' t
2 mean to cut you off. You think there ' s anybody in the
3 city, is there anybody you could point me to, who is
4 going to tell me that they've actually done what they
5 tried to do here which is say it was revoked as a
6 matter of law? Is there anybody in the city of Euless
7 who is going to actually stand up under oath and say
8 that?
9 MR. COLLINS: I don' t know, sir.
10 MR. ALBRIGHT: So your answer is
11 no?
12 MR. COLLINS: No, I could not
13 identify anybody right now; that is correct .
14 MR. ALBRIGHT: And maybe tomorrow
15 at nine o ' clock, you know, you think you maybe can?
16 MR. COLLINS: I don' t know, sir.
17 MR. ALBRIGHT: Yeah, I doubt it .
18 And you know that you doubt it too. Come on. It ' s
19 never, ever happened. It is just as simple as that .
20 There is a way. You have a certificate of occupancy.
21 And for members of the board, you get a
22 certificate of occupancy. It lasts forever unless and
23 until it is revoked. One time in history the city has
24 decided what they are going to do is say, in this
25 case, it somehow expired by operation of law. There
WENDY WILSON CSR (817) 577-9771
44
1 is nothing, nothing in the zoning code that says
2 that .
3 MR. WIENESKIE: Counsel, are you
4 finished examining this witness?
5 MR. ALBRIGHT: No, no, no. I am
6 not at all .
7 MR. WIENESKIE: Well, then, why
8 don' t we just question the witness and give argument
9 some other time.
10 MR. ALBRIGHT: Okay. Mr. Collins,
11 let me make sure I understand this . There was indeed
12 a site plan and an SUP approved for this development
4111) 13 back in February of ' 06; is that correct?
14 MR. COLLINS: If you are making
15 specific reference to, I believe, #05-11 -SUP and
16 #05-12 site plan from February 14th of ' 06 .
17 MR. ALBRIGHT: I am.
18 MR. COLLINS: Yes, sir, that would
19 be accurate. It was approved by the planning and
20 zoning commission.
21 MR. ALBRIGHT: How long is an SUP
22 good for?
23 MR. COLLINS: A period of time that
24 the SUP is valid?
100 25 MR. ALBRIGHT: Yes, sir.
WENDY WILSON CSR (817) 577-9771
45
1 MR. COLLINS: Specific to this
411)
2 situation, it would not be.
3 MR. ALBRIGHT: No, sir. No, sir.
4 I want to hear it . Generally, how long is an SUP good
5 for?
6 MR. COLLINS: Well, generally
7 speaking, there would be more than one response.
8 Specific to this situation, the response would be that
9 the validity of the specific use permit is tied
10 directly to the period of time that the site plan is
11 valid.
12 MR. ALBRIGHT: Point me to the part
4111) 13 of the City of Euless ordinance that says that,
14 please.
15 MR. MCKAMIE: Mr. Chairman, I am
16 going to renew my objection that this has to do with
17 site planning and doesn' t have to do with COs . We are
18 here about interpretation of what a CO -- a building
19 official ' s interpretation and the way the ordinance is
20 written -- is no longer valid, not whether a site plan
21 done perspectively at some later date. What happened
22 to it has nothing to do with that .
23 MR. ALBRIGHT: Mr. Chair, if you
24 will look at the correspondence that has come to the
10110 25 board, one of the issues that is directly before the
WENDY WILSON CSR (817) 577-9771
46
1000 1 board is whether or not we even need to be here,
2 because we think we have a site plan. We think we
3 have an SUP that is valid for two years .
4 Because what we are getting ready to
5 have Mr. Collins testify about is that an SUP is good
6 for two years . We have an SUP that was granted in
7 February of ' 06 . We don' t even think we need to be
8 here before February of ' 08 . And that is precisely
9 one of the issues that was presented to this board.
10 And once again, we are one question away from Mr.
11 Collins having to acknowledge an SUP is good for two
12 years .
13 MR. WIENESKIE: Just for the
ID
14 benefit of saving some time perhaps, counsel, an SUP
15 is good for however long the council says it is when
16 it approves the period. This one may have been good
17 for two years or it may have been good for six months,
18 but there is no specific standard for it .
19 MR. ALBRIGHT: And counsel, I am
20 going to disagree that in the absence of council
21 saying something different -- if you would like to
22 review your own zoning ordinance, I think you will see
23 that it clearly says in the absence of council ' s
24 action to the contrary, it is good for two years .
4111) 25 MR. WIENESKIE: And I would -- I
WENDY WILSON CSR (817) 577-9771
47
1 would have to go back to Mr. McKamie ' s previous
2 objection which is --
3 MR. ALBRIGHT: No --
4 MR. WIENESKIE: We are not talking
5 about that issue.
6 MR. ALBRIGHT: If you will look at
7 the Rule 11 agreement -- the Rule 11 agreement that
8 brought us here tonight was two-fold. One was an
9 issue about whether or not they were correct on the CO
10 and the other issue that is -- once again, please go
11 back and review the Rule 11 agreement -- is whether or
12 not they were correct on the issue about how long an
IC; 13 SUP requires -- I would refer you to your own zoning
14 ordinance that clearly says absent council doing
15 something different, an SUP is good for two years . I
16 will be happy to read you the exact language.
17 MR. WIENESKIE: Well, sir, what I
18 am going to go to is your letter asking for an
19 appeal . And your letter asks for an appeal on the
20 building official ' s determination that there is no
21 valid certificate of occupancy for the property. That
22 is all I see and that is what is before this board
23 tonight . And I think they would all like to go ahead
24 and get to that point so that they can make a decision
4C) 25 and go on.
WENDY WILSON CSR (817) 577-9771
48
401) 1 MR. ALBRIGHT: Well, so am I led to
2 believe then that for the district court we are
3 reserving the issue of whether or not the SUP is good
4 for two years?
5 MR. WIENESKIE: As far as I am
6 concerned, I don' t know that that is relevant .
7 MR. ALBRIGHT: I need to know
8 whether we are arguing that tonight or we are arguing
9 that tomorrow morning in district court? Which place
10 do you want to argue it?
11 CHAIRMAN DUBE: Mr. Albright, in my
12 opinion, that is not the issue before us tonight . The
414) 13 issue before us tonight is whether we grant the appeal
14 for not having a proper certificate of occupancy.
15 MR. ALBRIGHT: And, yes, sir, we
16 have shown you we have a certificate of occupancy that
17 has not been revoked.
18 CHAIRMAN DUBE: But the point is
19 that if ownership changes during the time of that
20 certificate of occupancy, it becomes null and void is
21 our understanding.
22 MR. ALBRIGHT: And Mr. Chair, I
23 want you to point me to that part of the code that
24 says that, because that is just not in your code.
401) 25 With all due respect, that is not in your code.
WENDY WILSON CSR (817) 577-9771
49
1 CHAIRMAN DUBE: Well, I can' t
4111)
2 argue --
3 MR. ALBRIGHT: And the lawyers can
4 argue it all night long, but Mr. Chair, that is not in
5 your code.
6 MR. WIENESKIE: Well, we do have a
7 requirement in our code under Section 8422 , Subsection
8 F3 that requires the certificate of occupancy be kept
9 current . And one of the things that is required to be
10 kept current is name changes . And I suppose that will
11 be the subject of some argument in district court and
12 that is probably where that argument needs to take
® 13 place.
14 Your appeal here tonight -- as I
15 understand your letter requesting the appeal, counsel,
16 which is what we are controlled by -- is whether there
17 is -- whether this certificate of occupancy remained
18 valid or was terminated or made invalid by the
19 ownership change in the business .
20 MR. ALBRIGHT : And counsel, I am
21 going to refer you to my letter of July 26th, which I
22 think you have in front of you.
23 MR. WIENESKIE: No, I have August .
24 MR. ALBRIGHT: Go back to July
40 25 26th, which is the original appeal letter. That is
WENDY WILSON CSR (817) 577-9771
417; 1 what got us here tonight . 50
2 MR. WIENESKIE: I don' t think I
3 even have it .
4 MR. ALBRIGHT: Well, then that is
5 in the city secretary' s files .
6 MR. WIENESKIE: Well, I don' t have
7 that . I have a letter that triggered this appeal
8 tonight .
9 MR. ALBRIGHT: If the city is of
10 the opinion that there was some basis upon which the
11 current CO could be revoked, what is that issue? I am
12 still waiting to hear the issue upon which the CO --
1111) 13 that we all now, I think, agree exists -- tell
14 me -- tell me the basis upon which that CO is being
15 revoked. We don' t have a notice of revocation.
16 MR. WIENESKIE: Well, counsel,
17 again, you and I are engaging in a debate which is the
18 subject --
19 MR. ALBRIGHT: No, sir. I am
20 relying on my letter of July 26th, which is what
21 started all of this .
22 MR. WIENESKIE: Okay.
23 MR. ALBRIGHT: And if you want to
24 tell me what basis it is that takes away my CO -- we
ID25 all know COs, once granted, remain in place unless
WENDY WILSON CSR (817) 577-9771
51
IC) 1 revoked. Have I seen a letter of revocation?
2 MR. WIENESKIE: Sir, again, you are
3 in the guise of debating a court of law. You are
4 trying to make a final argument or add argument to the
5 board of adjustment .
6 As I understand, the city' s position is
7 that the thing terminated with the ownership change.
8 And I am sure that one or both of the city' s able
9 attorneys are going to make an argument to that
10 effect, if they ever get a chance to. And they are
11 the ones that are going to make that argument . The
12 city staff takes that position and you ' re examining
400 13 Mr. Collins and he either can or can' t answer your
14 questions, but the city' s attorneys are here to
15 present the city' s side of the story.
16 It is not Mr. Collins ' job to present
17 the city' s side of this case. He has presented the
18 city staff' s position or the city' s position from a
19 staff standpoint which is what he is here for. You
20 have chosen to use him as a witness to sponsor in some
21 documents, which is fine, but trying to get him to
22 admit your case for you, I don' t think is appropriate,
23 to be honest with you.
24 MR. ALBRIGHT : Counsel, you know he
25 is the guy that -- you have chosen not to put the
WENDY WILSON CSR (817) 577-9771
52
1 building official up for whatever reason.
4C)
2 MR. WIENESKIE: No, we haven' t
3 chosen to do anything. And I would remind you it is
4 not our burden, it is yours . So if you want to try
5 to --
6 MR. ALBRIGHT: And we will dust off
7 all the files and we will decide if we think it is
8 appropriate to bring some sort of sanction, but let ' s
9 not go there. That ' s a different issue.
10 MR. WIENESKIE: You have brought
11 the members of this volunteer commission here tonight
12 to hear your appeal and the city' s determination that
100 13 the CO that was issued at one point, at some point,
14 became revoked or became invalid. And I think they
15 would appreciate it if you would try to focus on that
16 so they can decide that issue.
17 MR. ALBRIGHT: And, counsel, I am
18 attempting to do that . And I am still trying to find
19 out why the city staff, not this board, but why the
20 city staff believes that somehow an operation that has
21 been there for literally decades is now all of a
22 sudden needing to shut down.
23 MR. WIENESKIE: And why don' t you
24 ask that question directly of Mr. Collins, who is the
25 staff' s representative, and let ' s see what the city' s
WENDY WILSON CSR (817) 577-9771
53
1 answer is .
2 MR. ALBRIGHT: And I think we are
3 trying to get there.
4 MR. WIENESKIE: Why don' t you just
5 ask the question instead of us debating. They don' t
6 want to hear us argue. They want to hear evidence.
7 VICE CHAIRMAN NEWELL: Chairman
8 Dube, I would like to say something.
9 CHAIRMAN DUBE: Go ahead.
10 VICE CHAIRMAN NEWELL: I want to
11 remind you, sir, that I 'm the one that made motion so
12 that you could be standing there and talking to us
401) 13 since there was a point of order that you kind of let
14 slip by.
15 And I would reiterate, I would really
16 like to hear you get to the point and not dance all
17 around. Because I think what you are doing, in all
18 honesty, is not making your case at all . Well, you
19 are making a case, but it ' s not the case that I think
20 you want to have the outcome of. So I would
21 reiterate, let ' s stick to the facts . Let ' s stick to
22 what is in this letter so that we can do what our job
23 is, as you requested in your letter dated August the
24 24th.
25 MR. ALBRIGHT: I am actually
WENDY WILSON CSR (817) 577-9771
54
1 relying on the letter of July 26th, but I understand
2 your point and I thank you very much and I will try
3 and do that .
4 Mr. Collins, let ' s just do exactly what
5 the board is asking us to do . Why are you trying to
6 shut us down?
7 MR. COLLINS: It is not my place to
8 characterize whether or not we are shutting you down
9 or not . Again, the case before us is whether or not
10 -- for the commission' s consideration -- is whether
11 or not you are operating with a valid certificate of
12 occupancy.
411) 13 MR. ALBRIGHT: Okay. And we all
14 agree there is a CO out there. And I understand that
15 you and I will spend the rest of the night arguing
16 about that and we are not going to do that because I
17 won' t take the board' s time . There is a CO out there,
18 right?
19 MR. COLLINS: There was a CO that
20 had previously been issued, yes, sir.
21 MR. ALBRIGHT: Okay. Okay. So
22 when the building official sent the letter saying, You
23 don' t have a CO, that letter was factually incorrect .
24 MR. COLLINS: I do not agree with
25 that .
WENDY WILSON CSR (817) 577-9771
55
4E) 1 MR. ALBRIGHT: Well, do we -- we
2 didn' t -- we can go back through and we can weave
3 around the CO again, there was a CO. I understand
4 that you think it somehow magically disappeared,
5 right?
6 MR. COLLINS: No, sir. The staff' s
7 position was discussed in the opening. We went
8 through that . You 've got the information before you
9 that the application submitted in October of ' 05, that
10 identified Composite Investments as the owner of
11 Gator ' s, constituted a change in ownership that was
12 different from Three New Millennium, which was
411) 13 identified on the application for the SUP approved in
14 April . And then a subsequent certificate of occupancy
15 was issued based on Three New Millennium being the
16 owner. That is our position. I believe that has been
17 clearly stated to the commission.
18 MR. ALBRIGHT: So once again, just
19 to make it clear for the board, I am holding the
20 certificate of occupancy that has been issued for a
21 restaurant/bar use called Gator ' s Bayou to Three New
22 Millennium back on June the 8th of 2005 .
23 It is your position, on behalf of the
24 staff, that somehow this disappeared. We never got --
25 let me make sure we are all on the same page. Did we
ID
WENDY WILSON CSR (817) 577-9771
56
1 ever get a letter of revocation?
2 MR. COLLINS: The --
3 MR. ALBRIGHT: Did we ever get a
4 letter of revocation?
5 MR. COLLINS: Section 8422
6 establishes under the requirements for certificate of
7 occupancy that upon a change in ownership, that the CO
8 must be kept current . And it establishes that the
9 failure to comply with the provisions of this
10 document, meaning the Unified Development Code, shall
11 result in the issuance of a citation and/or constitute
12 a basis to deny or disconnect city utilities or to
13 require private utility companies to do likewise.
14 MR. ALBRIGHT: Let me back up again
15 and see if I can get a yes or no. Here is the CO.
16 Did you ever revoke this CO?
17 MR. COLLINS : Upon a change in
18 ownership, upon --
19 MR. ALBRIGHT: Just answer the
20 question. Come on. You and I have dealt with this
21 case for --
22 MR. COLLINS: Yes, sir. We have
23 dealt with each other for three years, yes, sir.
24 MR. ALBRIGHT: And did you ever
401) 25 revoke the CO? You know you didn' t . Come on. Just
WENDY WILSON CSR (817) 577-9771
57
400 1 say, No, I didn' t revoke it .
2 MR. MCKAMIE: Your Honor -- Mr.
3 Chairman, I object to counsel testifying on behalf of
4 this witness . This witness is trying to answer the
5 question that no revocation --
6 MR. ALBRIGHT: Then let him answer
7 a straight question.
8 MR. MCKAMIE: He ' s never been given
9 an opportunity to answer that no revocation was
10 necessary, it was automatic . We will him answer it
11 now.
12 MR. COLLINS: No, such as counsel
41) 13 has indicated, was necessary because the burden is on
14 the applicant or the holder of the certificate of
15 occupancy to keep current that information. Upon a
16 change in ownership, that CO then becomes invalid.
17 MR. ALBRIGHT: Gator ' s Bayou, Three
18 New Millennium, Inc . , doing business as a
19 restaurant/bar at that location.
20 CHAIRMAN DUBE: Mr. Albright, I
21 believe your question has been answered. It may not
22 have been answered yes or no, but no, there was no
23 formal letter sent to you, to our knowledge. But by
24 definition of this code that he is reading from, it
4r; 25 was -- it was invalidated.
WENDY WILSON CSR (817) 577-9771
58
401) 1 MR. ALBRIGHT: And Mr. Chair, I
2 have got a feeling that coming tomorrow morning about
3 nine o ' clock, we are going to have a big argument
4 about that at the district court and that is why I am
5 trying to --
6 CHAIRMAN DUBE: That maybe so.
7 MR. ALBRIGHT: And I am trying to
8 see if there is not a way we can resolve that before
9 we get to that .
10 CHAIRMAN DUBE: That is not for us
11 to decide though tonight .
12 MR. ALBRIGHT: Well, you know, in
13 the words of Bob McFarland, he has two suits so he can
14 do two days worth of trials, and that is fine. And,
15 you know, if that is what we need to do, that is what
16 we need to do.
17 CHAIRMAN DUBE: I will tend to
18 agree with you. It may not be the best policy to send
19 out an official notification.
20 MR. ALBRIGHT: And, Your Honor,
21 that is why I suggested to this board at the very
22 beginning, I think two hours ago, that, you know, it
23 might well be that if we just held all this for a
24 month, this might all go away. Clearly, that is not
IC) 25 going to happen.
WENDY WILSON CSR (817) 577-9771
59
1 CHAIRMAN DUBE: It is not our
2 option.
3 MR. ALBRIGHT: Well, yes, sir, it
4 is your option. You have that power.
5 CHAIRMAN DUBE: Thank you.
6 MR. MCKAMIE: Mr. Chairman, may I
7 have an opportunity to question Mr. Collins with a
8 couple of questions, please?
9 CHAIRMAN DUBE: Go ahead, sir.
10 MR. MCKAMIE: All right . Thank
11 you. Mr. Collins, was there a notice sent to a
12 representative of Gator ' s that the CO was no longer
4111) 13 valid?
14 MR. COLLINS: Yes, sir.
15 MR. MCKAMIE: Was that the letter,
16 this Exhibit 10 you already have before you?
17 MR. COLLINS: Yes, sir.
18 MR. MCKAMIE: Did that give a
19 period of time for a remedy to happen, a new CO to be
3Q 20 issued or some other action by Gator ' s?
21 MR. COLLINS: Yes, sir.
22 MR. MCKAMIE: How long was that?
23 MR. COLLINS: I believe thirty
24 days .
25 MR. MCKAMIE: Why isn' t that a
1011)
WENDY WILSON CSR (817) 577-9771
60
411) 1 notice of revocation of a building -- of a CO?
2 MR. COLLINS: I am sorry.
3 MR. MCKAMIE: Doesn' t that say your
4 CO is revoked? Doesn' t that say the same kind of
5 thing?
6 MR. COLLINS: Yes, sir, it does .
7 MR. MCKAMIE: Is it important, from
8 your viewpoint as member of the staff of the city, for
9 a certificate of occupancy to reflect the name of the
10 actual owner of the establishment?
11 MR. COLLINS: Yes, sir.
12 MR. MCKAMIE: Why is that?
411) 13 MR. COLLINS: The code requires
14 that .
15 MR. MCKAMIE: As a practical
16 matter, why is it important to you?
17 MR. COLLINS: Any number of reasons
18 associated with the operation of that business .
19 Anything that has to do with what the city' s involved
20 in regulating, you have to have the opportunity -- be
21 it code or fire or police -- to be able to notify the
22 actual owner to be responsive to whatever situation is
23 involved.
24 MR. MCKAMIE: An establishment such
401) 25 as Gator ' s or any other establishment like that in
WENDY WILSON CSR (817) 577-9771
61
401) 1 town, is it uncommon for the owner of the
2 establishment listed on the CO to be different from
3 that listed on the tax rolls?
4 MR. COLLINS : I am sure that that
5 exists, yes, sir.
6 MR. MCKAMIE: But this code
7 requires that the owner of the establishment, for CO
8 purposes, be listed?
9 MR. COLLINS: Yes, sir.
10 MR. MCKAMIE: And whose
11 responsibility is it to notify the city, formally
12 notify the city, of a change in ownership?
411) 13 MR. COLLINS: The holder of that
14 certificate of occupancy.
15 MR. MCKAMIE: Did that ever occur
16 in this case when Three New Millennium transferred
17 ownership to Composite Investments?
18 MR. COLLINS: Not to my knowledge.
19 MR. MCKAMIE: How did the city
20 learn that Composite Investments -- if you know -- how
21 did the city learn that Composite Investments was now
22 the owner of the property, no longer Three New
23 Millennium?
24 MR. COLLINS: When an application
25 was submitted for a specific use permit identified as ,
WENDY WILSON CSR (817) 577-9771
62
1 #05-09 considered on October 25th of ' 05, by the city
2 council . The application that was submitted in
3 support of that request had identified Composite
4 Investments as the owner.
5 MR. MCKAMIE: Have you seen
6 anything in writing on any application to your
7 department, Mr. Collins, since June of 2005, that
8 listed Three New Millennium as the owner?
9 MR. COLLINS: The owner of
10 Gator ' s?
11 MR. MCKAMIE: Yes, sir.
12 MR. COLLINS: No, sir.
4111) 13 MR. MCKAMIE: Who has been listed
14 as the owner?
15 MR. COLLINS: Composite
16 Investments .
17 MR. MCKAMIE: Does Composite
18 Investments hold a valid CO for the Gator ' s location?
19 MR. COLLINS: No, sir.
20 MR. MCKAMIE: Why wasn' t a notice
21 of revocation or a notice, such as the Exhibit 10 sent
22 by the building official, previously sent to Three New
23 Millennium or the Gator ' s operator saying, Your CO is
24 not valid, come in now. Why did you wait so many
401) 25 months to do do that?
WENDY WILSON CSR (817) 577-9771
63
4C) 1 MR. COLLINS: I am not sure I
2 understand the question. I am sorry.
3 MR. MCKAMIE: Well, Mr. Collins,
4 you knew or had an idea, even though the owner failed
5 to properly report the change in ownership, there was
6 an application reflecting a change in ownership of
7 Gator ' s that occurred in October of ' 05; didn' t it?
8 MR. COLLINS: Yes, sir.
9 MR. MCKAMIE: Why wasn' t there a
10 notice sent at that time that the CO was no longer
11 valid?
12 MR. COLLINS: Well, it is not
ID13 our -- it is not our responsibility to seek out and
14 issue that new certificate of occupancy. I don' t know
15 if this is what you are asking. The expectation was
16 created, since the approval in October of ' 05, that
17 Gator ' s was a temporary operation.
18 MR. MCKAMIE: Do you mean by that
19 that the Composite Investments ' proposals could
20 continue operation were represented to be temporary
21 only.
22 MR. COLLINS: Yes, sir.
23 MR. MCKAMIE: Is there a permanent
24 operation of Gator ' s -- has there ever been any proof
400 25 to you or any documentation provided to your office of
WENDY WILSON CSR (817) 577-9771
64
1 a permanent operation of Gator ' s by Three New
2 Millennium?
3 MR. COLLINS: No, sir.
4 MR. MCKAMIE: Is there anything in
5 the Chapter 84 or anywhere else in the zoning
6 ordinance, that you are aware of, that requires a
7 notice of revocation of a CO to be issued by any
8 official at the city?
9 MR. COLLINS: No, sir, not that I
10 am aware of.
11 MR. MCKAMIE: Is there anything
12 that requires revocation to occur prior to turning off
4111) 13 utilities at a location that has an invalid CO?
14 MR. COLLINS: Not that -- no, sir.
15 MR. MCKAMIE: I mean in the
16 ordinance itself is there anything like that?
17 MR. COLLINS: No, sir.
18 MR. MCKAMIE: That is all the
19 questions I have right now, Mr. Chairman. Thank you
20 very much.
21 CHAIRMAN DUBE: Thank you.
22 MR. ALBRIGHT: Mr. Collins, how
23 long has Gator ' s been there?
24 MR. COLLINS: Sir?
4C) 25 MR. ALBRIGHT: How long has Gator ' s
WENDY WILSON CSR (817) 577-9771
65
1 been there?
2 MR. COLLINS: Uh --
3 MR. ALBRIGHT: Come on. How long
4 has Gator ' s been there?
5 MR. COLLINS: You mean regardless
6 of who has owned Gator ' s?
7 MR. ALBRIGHT: I don' t care who
8 owns it . I don ' t care what CO they had or what SUP
9 they had. How long has Gator ' s been there?
10 MR. COLLINS : I could not be
11 specific with a date.
12 MR. ALBRIGHT: You are going to say
13 twenty years, aren' t you?
14 MR. COLLINS: I would characterize
15 it -- I would think since ' 84 or ' 85, perhaps late
16 ' 80s .
17 MR. ALBRIGHT: Let ' s take ' 85 . I
18 will take your most recent date. For more than twenty
19 years, Gator ' s has been there. And all of a sudden in
20 2007 , what a shock. The city discovers that Gator ' s
21 is there. Now come on. Now, I mean, is that a fair
22 assessment?
23 MR. COLLINS: I wouldn' t
24 characterize that as a fair assessment .
25 MR. ALBRIGHT: That you all of a
WENDY WILSON CSR (817) 577-9771
66
401) 1 sudden didn' t discover that Gator ' s was there?
2 MR. COLLINS: I wouldn' t
3 characterize it that way.
4 MR. ALBRIGHT: Did you know it was
5 there in ' 85?
6 MR. COLLINS: I have no personal
7 knowledge. I did not attend Gator ' s in 1985 .
8 MR. ALBRIGHT: But you, from a
9 professional knowledge, you know that it was there.
10 You just testified that you did.
11 MR. COLLINS: Yes, sir, there was
12 some operation within that structure that was known as
4111) 13 Gator ' s, yes, sir.
14 MR. ALBRIGHT: Okay. So twenty
15 years later, all of a sudden, Oh my God, we got to get
16 rid of Gator ' s . Is that fair to say?
17 MR. COLLINS: No, sir, that is not
18 fair to say.
19 MR. ALBRIGHT: Okay. What is
20 unfair about that?
21 MR. COLLINS: What is unfair is
22 you -- some characterization regarding, All of a
23 sudden. We are dealing specifically with the issue of
24 the validity of a CO and a change in ownership.
4C) 25 MR. ALBRIGHT: Well, let me ask you
WENDY WILSON CSR (817) 577-9771
I
67
401) 1 then about -- and I 've handed it to the board --
2 CHAIRMAN DUBE: Mr. Albright, I
3 would like for you to summarize whatever you have to
4 say within about the next three or four minutes and
5 shut her off. I don' t think we are getting anywhere
6 where we are going.
7 MR. ALBRIGHT: Okay. Mr. Chair, I
8 appreciate that . Let me see if I can be very quick on
9 this .
10 Mr. Collins, I have previously submitted
11 to the board Exhibit Number 5 which is a zoning
12 district change for a specific use application dated
4C) 13 September 6th of ' 05 . Have you not known for the last
14 at least two years that Gator ' s Bayou, a sports grill,
15 to be owned by Composite Investment, was trying to
16 operate there?
17 MR. COLLINS: I am not sure I
18 understand your question, Mr. Albright . What I 've--
19 if you are asking me what I think I know, I think I
20 know that an application was submitted in April
21 of ' 05, identifying Three New Millennium as the owner
22 of Gator ' s .
23 MR. ALBRIGHT: Well, no, sir.
24 MR. COLLINS: A certificate of
401) 25 occupancy was issued in June, based on the approval of
WENDY WILSON CSR (817) 577-9771
I
68
11:) 1 that SUP. And then there was a subsequent approval in
2 October of ' 05 --
3 MR. ALBRIGHT: Yes, sir.
4 MR. COLLINS: -- of SUP-#05-09 that
5 identified Composite Investment as the owner of
6 Gator ' s . That ' s what I do know.
7 MR. ALBRIGHT: Okay. Okay. So
8 from ' 05 -- from September of ' 05, until now, here we
9 are two years later. You've known that Composite
10 Investments has been running Gator ' s; is that not fair
11 to say?
12 MR. COLLINS: That would be an
101) 13 accurate statement that Composite has owned Gator ' s
14 since the SUP application of October of ' 05 .
15 MR. ALBRIGHT: And somehow two
16 years later you now think that you need to revoke the
17 license -- or more correctly, excuse me -- the
18 certificate of occupancy that was granted in ' 05? Is
19 that fair to say?
20 MR. COLLINS: All I know is that as
21 a basis of a CO becoming invalid is a change in
22 ownership.
23 MR. ALBRIGHT: That you have known
24 about for at least two years?
401) 25 MR. COLLINS: Yes, sir.
WENDY WILSON CSR (817) 577-9771
69
1 MR. ALBRIGHT : Okay. And once
2 again, let ' s talk about this SUP. Why is an SUP valid
3 for two years as per your code?
4 MR. COLLINS: Could I have a
5 recommendation from counsel that we already -- was
6 there not a --
7 MR. ALBRIGHT: No, there wasn' t .
8 You are --
9 MR. MCKAMIE: I will object to it
10 right now. This is off the subject . It is off the
11 topic as I 've objected to before, Mr. Chairman. It is
12 talking about the length of time an SUP can be valid.
411) 13 It has nothing do with issuance or invalidity of a CO,
14 which is a separate document and a separate rule.
15 MR. ALBRIGHT: If I have a valid CO
16 pursuant to an SUP that is good for two years, then we
17 don' t even need to be here because that SUP is valid
18 for two years, until February of ' 08 .
19 CHAIRMAN DUBE: You have about two
20 minutes left .
21 MR. ALBRIGHT: I am done. I am
22 done. I have -- the only question that I want to ask
23 is why do I have an SUP that is good for two years?
24 What part of the zoning ordinance of the City of
401) 25 Euless does not give me an SUP for two years that will
WENDY WILSON CSR (817) 577-9771
70
IC) 1 run to February of ' 08? Why are we even here?
2 CHAIRMAN DUBE: It is a good
3 question, but I don' t think we need to answer it for
4 this particular function of the board.
5 MR. ALBRIGHT: Mr. Chair, I
6 disagree.
7 MR. WIENESKIE: It sounds like the
8 chair has ruled that you don' t have to answer that
9 question, Mr. Collins .
10 MR. COLLINS: Thank you.
11 CHAIRMAN DUBE: Your time is up. I
12 would ask you to take your seat, please.
411) 13 MR. ALBRIGHT: Thank you.
14 CHAIRMAN DUBE: Do we have any
15 board members here that would like to make a comment,
16 ask a question or otherwise?
17 MR. COLLINS: Mr. Wieneskie, as a
18 point of clarification, do we need to ask if there is
19 anymore proponents or opponents as part of the public
20 hearing?
21 MR. WIENESKIE: Unless the chairman
22 would just take a chance to stretch and see if any
23 commissioners had any questions now that they might
24 forget between now and the end, but, yeah, I think the
401) 25 proper procedure would be to ask. Unless you want to
I
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41; 1 take a break for questions now, which I think is
2 perfectly fine if the board would like to do that, but
3 otherwise, to ask if there are any more proponents and
4 ask if there are any opponents that want to make their
5 presentation and go from there . But certainly, the
6 board is allowed to ask questions at any time.
7 CHAIRMAN DUBE: Let ' s go with the
8 board here. They have been sitting patiently for a
9 long time. Do you have any questions?
10 BOARD MEMBER WOOLDRIDGE: Just for
11 the record, one question. Who is the sole entity?
12 Who is the sole owner of Gator ' s today?
13 MR. ALBRIGHT: Gator ' s, the bar, is
14 run by Three New Millennium, Inc.
15 BOARD MEMBER WOOLDRIDGE: Who is
16 the owner?
17 MR. ALBRIGHT: The owner of Three
18 New Millennium, Inc . , is Nick Mehmeti .
19 BOARD MEMBER WOOLDRIDGE: Is there
20 a parent company?
21 MR. ALBRIGHT: It is and without
22 getting involved in all the corporate niceties, yes,
23 sir. Composite Investments, Inc. , which is the same
24 entity that has always been reflected on the corporate
100 25 documents, is the parent company, but the operating
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IC) 1 entity of Gator ' s is Three New Millennium, Inc .
2 BOARD MEMBER WOOLDRIDGE: Are
3 those separate entities or are they --
4 MR. ALBRIGHT: They are separate
5 legal entities under Texas state law. They are all
6 owned by the Nick Mehmeti .
7 BOARD MEMBER WOOLDRIDGE: Are the
8 tax documents filed separately as two different
9 entities or are they single?
10 MR. COLLINS: Would you please
11 approach? Thank you.
12 MR. MEHMETI : My name is Nick
IC;
13 Mehmeti, the president of Three New Millennium
14 Restaurant Group, which is owned by Composite
15 Investment Group. Composite Investments -- so
16 everybody understands -- owns the property, the whole
17 restaurant and hotel and the land next door to it,
18 which leases through New Millennium. The parent
19 company is Composite Investment . Three New Millennium
20 -- we file taxes -- there ' s other companies involved,
21 other Composite Investments . They are owned by
22 Composite Investments . Three New Millennium is one of
23 them and I am the president .
24 CHAIRMAN DUBE: It might have been
25 to your advantage to have an organization chart for
WENDY WILSON CSR (817) 577-9771
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100 1 your corporation or whatever so we would have a better
2 appreciation.
3 MR. MEHMETI : I apologize for that,
4 sir. We got off on the wrong foot here tonight . We
5 kept saying change of ownership. I don' t know what
6 change of ownership. It has always been me. It has
7 always been Gator ' s . Three New Millennium has
8 operated Gator ' s since we bought it from Johnny
9 (inaudible) Enterprises . Composite Investment owns
10 the property. Three New Millennium operates Gator ' s .
11 CHAIRMAN DUBE: Thank you. Any
12 other questions by the board? Go ahead.
11) 13 BOARD MEMBER ELLIS: In the
14 SUP-#05-03, the reason for that SUP stated here was
15 change in ownership. Previous to that, the SUP said
16 Composite Investments was the owner. This one says
17 Three New Millennium Group is the owner. That ' s the
18 one to which that CO was tied. Then the SUP after
19 that, the one you gave us as Exhibit 5, again lists
20 Composite Investments as the owner. Was there an
21 ownership change at that time?
22 MR. ALBRIGHT: No. Three New
23 Millennium has always been the operator of the
24 restaurant .
ID25 BOARD MEMBER ELLIS: That wasn' t
WENDY WILSON CSR (817) 577-9771
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1111) 1 the question. Was there a change in ownership at the
2 time? The previous document lists Three New
3 Millennium Group, Incorporated, as the owner. This
4 document lists Composite Investments, Incorporated, as
5 the owner.
6 MR. ALBRIGHT: If that document
7 says that, that is an error. Three New Millennium has
8 always run the restaurant .
9 BOARD MEMBER ELLIS: Owned, sir. I
10 am asking about ownership.
11 MR. ALBRIGHT: Three New Millennium
12 has always owned the restaurant .
4C) 13 BOARD MEMBER ELLIS: Okay. So the
14 documents from September -- October ' 05, that lists
15 Composite Group -- Composite Investments as the owner,
16 all of those are incorrect and typos?
17 MR. ALBRIGHT: They are correct in
18 the sense of they own the dirt, but no, sir, the
19 entity that is operating the restaurant is Three New
20 Millennium.
21 BOARD MEMBER ELLIS: And the
22 operation of it is not mentioned in the ordinance. It
23 is ownership.
24 MR. ALBRIGHT: I would have to
25 review the ordinance, but if you say that, I will --
WENDY WILSON CSR (817) 577-9771
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75
1 I 'm not going to disagree with you.
100
2 CHAIRMAN DUBE: Any other questions
3 by board members? If not, we will give -- we will
4 give the proponents of this particular issue two
5 minutes to make any further comments or questions and
6 then we will ask the opponents to close and we will
7 close it with the opponents ' input .
8 So, Mr. Albright, do you have any --
9 MR. ALBRIGHT: Yes, sir. Let me
10 get --
11 CHAIRMAN DUBE: I ' ll give you two
12 minutes .
41) 13 MR. ALBRIGHT: I only need thirty
14 seconds . It has always been clear, I believe, with
15 the city, with everybody, that Three New Millennium
16 has always operated the restaurant . I don' t think
17 there has been any dispute about that forever.
18 From the day that we bought it -- and
19 please let me back up and explain -- that in the
20 beginning, Three New Millennium bought the
21 restaurant . We didn' t own the dirt . It was later
22 that Composite Investments came in and bought the dirt
23 and therefore bought the hotel and all of that . In
24 the beginning, Three New Millennium, the restaurant
400 25 operator, operated the restaurant . We 've always done
WENDY WILSON CSR (817) 577-9771
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4C) 1 that . Everybody' s always known who the operator is .
2 Nick Mehmeti has always been the operator from day
3 one.
4 We did -- you know, we are not trying to
5 hide the ball from anybody. Three New Millennium has
6 always been the operator of the restaurant . Composite
7 came in after the fact, bought the dirt . We now own
8 the dirt . Whereas, you know from our earlier motion
9 to continue, we are trying to sell the dirt, but Three
10 New Millennium has always been there. And that ' s who
11 holds the CO. That is who has held the CO since
12 1975 . All we are trying to do is continue to operate
11) 13 unless and until we are lucky enough to sell it .
14 CHAIRMAN DUBE: Thank you. Okay.
15 Likewise, two minutes for any proponents -- opponents,
16 I am sorry. Mr. McKamie.
17 MR. WIENESKIE: Mr. Chair, since
18 the proponents had quite a while, I am not sure
19 limiting the opponents to two minutes would be
20 necessarily fair at this point .
21 CHAIRMAN DUBE: Go ahead.
22 MR. MCKAMIE: It ' s hard to limit a
23 lawyer to two minutes .
24 MR. WIENESKIE: I mean, Mr. McKamie
4C) 25 is uncharacteristically concise in his remarks, but I
WENDY WILSON CSR (817) 577-9771
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401) 1 am not sure even he can keep it under two minutes .
2 MR. MCKAMIE: I suppose that was a
3 compliment .
4 MR. WIENESKIE: It was .
5 CHAIRMAN DUBE: Well, we will go
6 forward.
7 MR. MCKAMIE: I don' t think I will
8 take very long, but I thank you for your indulgence,
9 Mr. Chairman. Again, I 'm Nick McKamie and I am
10 special counsel to the City of Euless and have enjoyed
11 a relationship with special counsel for a number of
12 years . Mr. Bob McFarland is also here and he may have
41) 13 some comments too, I don' t know.
14 Let me just tell you that the purpose of
15 the ordinance which is at issue here that was
16 interpreted by the building official, this case is a
17 perfect example of why it exists . You need to know
18 who the owner of the property is . And we need to be
19 kept up to date on who the owner of the property is .
20 And many of you are business people,
21 have your own private affairs and you know that a lot
22 of the commercial establishments in this and every
23 other town are single asset corporations, have owners
24 or a limited partnership. They don' t exist for that
111C) 25 one purpose.
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ID1 I am sure Mr. Mehmeti is a very
2 succesful businessman and is engaged in many of those
3 types of enterprises . So it is difficult for the city
4 to know who the owner is on a property at any given
5 time and it is especially important in commercial and
6 other similar establishments . That is why we require
7 COs for them and not for residential properties . We
8 need to have people who are responsible for ensuring
9 compliance with fire and health codes, police matters,
10 nuisances and everything else. As you all know, the
11 city has to enforce and have the right people to talk
12 to when things happen in their community related to
411) 13 their business .
14 We haven ' t had that here because the
15 applicant, themselves -- they admitted to you here,
16 the appellant here today, has kind of hidden the ball
17 about who is owning what . They have even given you
18 documents, SUP applications from Composite
19 Investments, that are for different uses than
20 Gator ' s . The ones you have in front of you wouldn' t
21 necessarily continue Gator ' s as a stand-alone bar. If
22 you look at them, one is for an SUP for a restaurant
23 and bar. One is an SUP that expired if it didn' t go
24 with a hotel development as well .
4011) 25 This is exactly the kind of -- this is
WENDY WILSON CSR (817) 577-9771
79
' IC) 1 exactly the reason we need to know who owns the
2 properties, whether it is a single asset corporation
3 or a little, old lady in Minnesota or whoever.
4 They failed to provide that information
5 to us . We had to find out ourselves over a period of
6 time that as Mr. Ellis, very insightfully noted on
7 these documents, they list reasons for making these
8 applications on two of those documents before you,
9 that the reason was for change of ownership. The only
10 CO in existence on this property is to Three New
11 Millennium, not to Composite Investments .
12 Now, you have heard an explanation for
4C) 13 that here tonight, but we don' t know that . All we
14 want is to know who the owner is . The CO holder,
15 Three New Millennium, never told us who the owner was,
16 so we told them your CO is invalid.
17 Because it is true, that probably that
18 letter from Mr. Kasson could have rightfullly gone out
19 about two years ago when the Composite Investments SUP
20 application on the same property came in. Possibly
21 that could happen. Certainly, they are not
22 complaining that we waited two years to try to
23 enforce. That can' t be their complaint .
24 But remember the structure of the zoning
100 25 ordinance. Picture zoning and SUP tie it to a site
WENDY WILSON CSR (817) 577-9771
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80
1 plan, whatever is required, it expires when the city
2 council says, as Mr. Wieneskie alluded to, at a
3 default date and then you go to get a CO. See
4 Composite never took those steps . The only company
5 that did is Three New Millennium.
6 Composite is the owner. It says on the
7 documents they are the owner. We have evidence they
8 are the owner. They did not get a valid CO. They
9 still don' t have one.
10 We would like to add -- I will try to
11 stop there to make Mr. Wieneskie proud of me, but we
12 would like for the board to consider and ask Holly to
IlD13 include, as part of the record, your entire agenda
14 packet for this, Mr. Chairman.
15 CHAIRMAN DUBE: Thank you,
16 Mr. McKamie.
17 MR. MCKAMIE: Thank you.
18 CHAIRMAN DUBE: Mr. McFarland, do
19 you care to say anything further to the case?
20 MR. MCFARLAND: The fact that this
21 establishment has been in operation should have
22 absolutely no bearing on this issue.
23 Let me assume that I have operated a
24 Dairy Queen in the city of Euless for 20 years and I
ID25 sell that Dairy Queen to Mr. McKamie. It is not my
WENDY WILSON CSR (817) 577-9771
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81
4C) 1 responsibility to inform the city that I have sold the
2 Dairy Queen. It is not the city' s responsibility to
3 come to me and say, Mr. McFarland, you 've sold your
4 Dairy Queen. We need to revoke your certificate of
5 occupancy. It is Mr. McKamie ' s responsibility to come
6 to the city and get a certificate of occupancy, just
7 as it is in every other instance in which ownership
8 changes .
9 And for me to come before you and say,
10 Well, wait a minute. Don' t pick on me. I have been
11 in business . It is easy to stand before you and
12 suggest that, Wait a minute. Wait a minute. I am
4C) 13 going to take back over the Dairy Queen. Don ' t tell
14 me I have to get a certificate of occupancy that I
15 can' t get because I am now in violation of your code.
16 I am going to rely on that certificate of occupancy I
17 had twenty years ago. That ' s what they are suggesting
18 to you.
19 You live by the code of ordinances of
20 the City of Euless and everybody else in the city of
21 Euless lives by those code of ordinances . And all we
22 are asking is that these people live by the code of t'
23 ordinances of the City of Euless .
24 And everything that was done, we
4C) 25 suggest, was done appropriately and properly. And
WENDY WILSON CSR (817) 577-9771
82
4C) 1 Mr. Kasson did exactly as he should have done under
2 the code. And they have appealed his decision and we
3 believe his decision was appropriate. You, though,
4 have the authority under that same code to determine
5 whether it was or it was not . We believe it was and
6 ask you to uphold Mr. Kasson' s decision. Thank you.
7 CHAIRMAN DUBE: Thank you.
8 MR. ALBRIGHT: Mr. Chair, just very
9 quickly, I would ask that the various documents that
10 we 've submitted -- I think there is exhibits now 1
11 through 12 -- would be added to the record so that we
12 have those going up on appeal .
401) 13 CHAIRMAN DUBE: Are they properly
14 annotated?
15 MR. WIENESKIE: We would like to
16 have all the documents in too.
17 MR. ALBRIGHT: Yeah, sure. We have
18 no problem with that .
19 MR. COLLINS: Mr. Albright, did you
20 give separate copies to Holly or do you want us to
21 rely on --
22 MR. ALBRIGHT: I gave separate
23 copies to Holly.
24 MR. COLLINS: Okay. Thank you.
4E) 25 MR. WIENESKIE: Do you have the
WENDY WILSON CSR (817) 577-9771
83
4C) 1 agenda packet too, Holly?
2 (Inaudible conversation. )
3 MS. WITT: Yes .
4 MR. ALBRIGHT: Yeah. And Ms . Witt,
5 we just ask that everything be included.
6 MR. MCKAMIE: No objection.
7 CHAIRMAN DUBE: Thank you. Is
8 there anyone else that would like to address the
9 subject? If not -- and I will ask the board once more
10 if they or if anyone has any further comments? If
11 there is no further discussion, I would ask for a
12 motion, a second and then a vote.
IC) 13 And the issue at hand it says, The
14 applicant is requesting an appeal of a determination
15 by the building official that Gator ' s Cajun Bayou is
16 operating without a valid certificate of occupancy.
17 Do we have a motion?
18 VICE CHAIRMAN NEWELL: Chairman
19 Dube, it might be partly my fault because we have been
20 here so late. I would like to move to deny the appeal
21 of the determination by the building official that
22 Gator ' s Cajun Bayou is operating without a valid
23 certificate of occupancy. And that property, of
24 course as we all know, is located at 2155 West Airport
4C) 25 Freeway.
WENDY WILSON CSR (817) 577-9771
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84
4C) 1 BOARD MEMBER CRITES: I would like
2 to second that .
3 CHAIRMAN DUBE: There is a second
4 to the motion. The motion was made by Ms . Newell and
5 seconded by Ms . Crites .
6 Any discussion? Are we ready for a
7 vote?
8 MS. WITT: Board Member
9 Wooldridge?
10
CHAIRMAN DUBE: Okay. We will go
11 ahead and vote.
12 MS. WITT: I 'm sorry. Board Member
4C) 13 Wooldridge?
14 BOARD MEMBER WOOLDRIDGE: Aye.
15 MS. WITT: Chairman Dube?
16 CHAIRMAN DUBE: Aye.
17 MS. WITT: Board Member Zimmer?
18 BOARD MEMBER ZIMMER: Sustain.
19 MS. WITT: Board Member Crites?
20 BOARD MEMBER CRITES: Aye.
21 MS. WITT: And Vice Chairman
22 Newell?
23 VICE CHAIRMAN NEWELL: Aye.
24 MS. WITT: Motion carries .
4C) 25 MR. WIENESKIE: For the record, the
WENDY WILSON CSR (817) 577-9771
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85
IC) 1 ordinances and the state law both require the
2 affirmative vote of four council members to grant an
3 appeal . This was a vote denying the appeal that still
4 got four votes, just for your information.
5 CHAIRMAN DUBE: So the motion
6 carries . The motion will carry for denial.
7 I believe that ' s all the business we
8 were here for tonight . I would entertain a motion to
9 adjourn.
10 MR. ALBRIGHT: Mr. Chair, I have
11 one point of information. I assume we will be getting
12 a written record of this over the next ten days so
IC) 13 that we, in turn, can do our statutory right to appeal
14 in district court .
15 MR. MCFARLAND: If I may, Mr.
16 Chairman, my understanding is that the chair will
17 enter an order with the city secretary. It would be
18 our intent to advise Mr. Albright when that order is
19 entered.
20 And Mr. Albright, it is my understanding
21 that the time limits for the writ of certiorari will
22 not run until that order is entered with the city
23 secretary. And I will advise you of the date it is
24 entered.
4E) 25 MR. ALBRIGHT: That is all we are
WENDY WILSON CSR (817) 577-9771
86
ICs1 looking for, Mr. Chair. Thank you.
2 CHAIRMAN DUBE: Thank you.
3 MR. ALBRIGHT: So now, Mr. Chair, I
4 assume we are -- in the meantime, we are -- status quo
5 is maintained?
6 CHAIRMAN DUBE: Do I hear a motion
7 to adjourn?
8 BOARD MEMBER CRITES: So moved.
9 CHAIRMAN DUBE: A second?
10 VICE CHAIRMAN NEWELL: Aye.
11 CHAIRMAN DUBE: Motion is made and
12 seconded to adjourn. All parties say aye.
13 BOARD MEMBERS: Aye.
14 CHAIRMAN DUBE: Opposed, same
15 sign. Motion carries . We will stand adjourned.
16 (Proceedings were terminated. )
17
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19
20
21
22
23
24
4C) 25
WENDY WILSON CSR (817) 577-9771
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IC) 1 STATE OF TEXAS X
2 COUNTY OF TARRANT X
3
4 I, Wendy R. Wilson, a Certified
5 Shorthand Reporter in and for the State of Texas,
6 certify that the transcript of the Zoning Board of
7 Adjustment Meeting for the City of Euless was
8 transcribed by me from an audio CD provided by the
9 City of Euless;
10 The transcript is a true record of what
11 was clearly audible from the above provided CD.
12 There were portions of the CD that were inaudible and
4111) 13 were stated that way in the transcript . The court
14 reporter does not accept any responsibility for the
15 inaudible portions of the CD and things that may be
16 stated differently due to the inaudibility of the CD;
17 That on the 12th day of October, 2007,
18 the original transcript was either hand delivered or
19 mailed by certified mail, return receipt requested to
20 The City of Euless .
21I:. -R . it
22 WENDY R. ILSON, CSR 4793
CERTIFIED ORTHAND REPORTER
23 7620 Douglas Lane
Fort Worth, Texas 76180
24 (817) 577-9771
25
4C>
WENDY WILSON CSR (817) 577-9771