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HomeMy WebLinkAbout2004-02-26 ZONING BOARD OF ADJUSTMENTS February 26, 2004 MINUTES The regular meeting of the Zoning Board of Adjustments was called to order by Chairman Victor Blood at 6:41 p.m. for consideration of scheduled items in the Council Chambers in City Hall of the Municipal Complex. Chairman Victor Blood stated there was a quorum of five members of the Zoning Board of Adjustments present. MEMBERS AND STAFF PRESENT: MEMBERS ABSENT Chairman Victor Blood Vice Chairman Thomas Stover Eddie Price Luther Dube Michael Cornell Mike Collins, Director of Planning and Development Eric Wilhite, Planning and Development Manager Paul Wieneskie, City Attorney Karla Allen, Administrative Secretary VISITORS: Walt Leonard, Attorney; Don Harrington; Hans Smith; Dorothy Smith; and others not list on visitors' register. THE PLEDGE OF ALLEGIANCE AND INVOCATION: The Pledge of Allegiance and Invocation was given by Luther Dube. ITEM 1 APPROVAL OF MINUTES for called meeting of January 15, 2004 Board Member Cornell made a motion to approve minutes for called meeting of January 15, 2004 as written. Chairman Blood seconded the motion. The vote was as follows: Ayes: Chairman Blood, Vice Chairman Stover, Board Members Dube, Cornell and Price Nays: None Abstention: None The motion carried (5-0-0). Chairman Blood called a recess of the meeting at 6:45pm to wait for the applicant to arrive. Chairman Blood reconvened the meeting at 6:54pm. Chairman Blood stated he had a request in regards to the case last month and correction to the minutes. Chairman Blood stated the minutes for that meeting have Zoning Board of Adjustments Minutes Page 2 February 26, 2004 already been reviewed and approved and could not be addressed at this time. Chairman Blood advised the requestor they could write a letter to the City regarding their concern and have it attached to the minutes. Sharon Williams asked to speak to the commission but did not come to the podium; therefore her comments were not audible enough to be recorded in the minutes. Paul Wieneskie, City Attorney, stated there was no procedure for an audience participant to cause the minutes to be amended, changed or corrected. Mr. Wieneskie stated they could do as Chairman Blood advised and put their concerns in writing and submit them to the City then that could be attached with the minutes. ITEM 2 CASE #04-02-ZBA — HOLD PUBLIC HEARING AND CONSIDER A REQUEST FOR A ZONING VARIANCE Receive public input regarding a request for a ZONING VARIANCE. The applicant is requesting the variance in order to NON-PERMITTED LAND USE IN TX-121 GATEWAY. This property is located on J.H. Havens Survey, A-685, Tract 2, 2800 Heritage Dr. Chairman Blood opened the public hearing. The applicant passed out information to the Board Members that will be included in their permanent file. Mike Collins, Director of Planning and Development, gave a brief overview of the case. The applicant, Mr. Donnie Harrington, is before the Zoning Board of Adjustment to seek a variance from the Unified Development Code zoning regulations specific to permitted land uses. As means of background, in approximately October 1991 a mobile home was moved onto property located immediately adjacent to a house that was addressed at 2800 Heritage Dr., which is located south of the existing Heritage Town Crossing Shopping Center. The mobile home was moved onto the property adjacent to a home that would catch on fire in September 1993 and at some point afterwards would be deemed non-inhabitable. The house had been the Harrington family homestead and is located on a tract that is part of over 200 acres that the Harrington family owns and has farmed over the years. At the time the mobile home was moved onto the property, the tract was zoned R-1 (Single Family Detached Dwelling District). The zoning of the property, as well as several of the surrounding tracts, would change zoning to the TX- 121 (The 121 Gateway District). That was done in October 1998. On either the property zoned R-1, when the mobile home had originally been moved onto the property, and the current zoning of the TX-121 Gateway, the land use in which a manufactured or mobile home were to be located on that property is not a permitted land use. The mobile home has never been classified as a legally existing non- - conforming land use. Such a classification would imply the land use had been permitted at one time and the underlying zoning changed and no longer permitted that land use. We would suggest to the ZBA that if the desire is to use this structure for Zoning Board of Adjustments Minutes Page 3 February 26, 2004 -- some type of commercial purpose, that there are separate processes that would be followed relating to the issuance of a certificate of occupancy. If for example, they desired to use that structure for some commercial purpose, and wanted some exception to development standards, there would be a separate process to follow in which they would go before the City Council for consideration of an exception to those development standards. In summary, it is the staffs understanding, the applicant is seeking a specific variance to a permitted land use in the TX-121 Gateway District, that would allow as a permitted land use, a mobile home to be located on that property as the primary residence. Chairman Blood asked for the applicant's representative to come forward for comments. Walt Leonard, Attorney representing the Harrington family and estate, stated that in any case this was an extremely unique situation in property. There is nothing else like this in the City of Euless and not likely to ever be again. The property in question is a large acreage family farm. It is a family farm, as it has been a family farm, since the period during the Civil War. The property is still in use as a farm. Mr. Leonard went through the documents that were handed out to the Board Members by the applicant: a certificate showing the property to be a Century Farm and historical data on the farm. Mr. Leonard stated this property was, and is all through this period, a functioning agricultural operation. Mr. Leonard also pointed out the documents from the United States Agricultural Department showing payments made for crop activity. Mr. Leonard — went on to explain that approximately 10 years ago the old farm house burned down. The city at that time allowed the Harrington's to stay there. For a period of many years they were allowed to use this as a residence. In the past 10 years the elder Harrington's have passed away and Don Harrington has only acquired the ability to do anything about this in the last year. It has been a real difficult situation legally just doing things on the property. Currently the situation has become easier since Don Harrington has acquired the property. Mr. Leonard stated this property was and is a working farm operation. There is equipment on the property, work going on and the farm house is being used as a headquarters for the farming operation. Additionally, this home was there to help reconstruct the farm which did not work out because of family members becoming ill and passing away. He stated it is obvious to anyone who sees this area that the continued operation of this as a multi hundred acre farm is probably not practical and uneconomical. They are in the process of changing this over into some piece of property that will fit in with the Gateway District. This is still a farming operation and a sales office so someone can be there to keep an eye on the property, and a place for them to live. The people living there is an accessory use to the existing commercial type uses. This variance is for a unique type of situation. They are not proposing anything that — would be harmful to the area and would like to show how this would be beneficial to the area. Mr. Leonard asked the Board Members to look over the pictures they submitted of the property. He stated there was a picture of the manufactured home and that it was Zoning Board of Adjustments Minutes Page 4 February 26, 2004 — not a trailer. Mr. Leonard stated that since Mr. Harrington has acquired the property, he has been working towards cleaning up the area. There have been discussions with Code Enforcement regarding areas that needed to be addressed and those have been brought up to standards. The question is what they do about the headquarters, the manufactured house which the people live, where they operate the farm and use as a sales office. There were several options in how to approach these questions. One, did the city actually give them permission to do this at some time. The record is not clear. It is clear that some things say they should not be there, but they were also there for about 8 years without anyone saying anything. The last couple of years the city has decided they should do something about it. In the variance they are asking for the building to continue to be used as a farm headquarters, sales office for the property, for security, and as an accessory use to these, allow people to live there to carry out these existing functions. Keeping this farm alive is important right now. It is a significant part of the history of Euless. It is one of the earliest things here. It would be more useful for the farm to continue to exist until the property is developed in the future. By refusing this variance it would impose a hardship on the family. By continuing the operation it will help to sell the property. Due to the various transitions that have occurred the property is still under various interests that has made it difficult to sell over the years. Now that Mr. Harrington has acquired his property he is able to do something with the property. The city has been aware the property was being used for this purpose for many years. The family believed the city approved it was alright to use the property as they are. The family is asking now how to make that right. Mr. Leonard stated this was a unique, odd and especially compelling situation to try and straighten things out and for the public benefit and to prevent a tragedy. They would like to suggest to their plan a benefit to the public and will improve the property by doing so by allowing this property to continue to operate in this manner. Mr. Harrington has already made improvements to the property and would like to continue making improvements until this property is developed. By keeping it operational will improve the attractiveness for selling. They would also have a chance to preserve history. Mr. Leonard stated the owners want to make this as compatible as possible. There has been landscaping improvements, screening with new fencing, vegetation and slats, and the home is a manufactured home not a trailer. This is a proper house under State law and should not be treated any differently. The family is also suggesting a time frame of several years making reports to the city on the progress of the property to allow them time to sell the property. Mr. Leonard stated the family and Mr. Harrington are committed to making this a workable transition period so everyone can benefit. Vice Chairman Stover asked Mr. Leonard who was living on the property. Don — Harrington stated he lived on the property with his brother, Lynn Harrington, and his fiancé, Dawn Patina. Zoning Board of Adjustments Minutes Page 5 February 26, 2004 -- Chairman Blood asked Mr. Harrington what types of farming activities were being conducted. Mr. Harrington stated he grows hay and some years he grows squash. Chairman Blood asked Mr. Harrington what crop he was currently growing. Mr. Harrington stated there was nothing cultivating at this time, that this was the time to prepare the fields for the next season. Vice Chairman Stover asked Mr. Harrington what type of work had been done to improve the property architecturally and landscaping. Mr. Harrington stated they have cleared off some old equipment, planted some shrubbery around the manufactured home and have continued to keep it mowed and cleaned up. He stated they have painted the exterior of the home and repaired some of the trim. Mr. Leonard stated there have been no structural improvements made to the home because it would be difficult to obtain permits. Hans Smith, 608 Bellah Dr., Irving, family member and real estate broker, stated the property looks tremendously better since Don has taken over the property. Mr. Smith stated the property became run down when Paul Harrington became ill and was not able to keep the property clean and he was also the type of person that would not get rid of things. There have been many vehicles that were removed from the property, and old equipment that no longer ran was also removed. Mr. Smith stated there have been problems with people coming onto the property, vandalism and theft on the property. There is also a problem with trash and debris blowing from the parking lot of Target onto the property. Mr. Smith stated Don Harrington has to spend much of his time cleaning up the debris after large winds from the north. Board Member Price stated he would like to see the city help the Harrington's but there are conditions that must be satisfied before they can help and one of those conditions was it could not be a self created hardship. Board Member Price stated he sees this situation as a self created hardship. The manufactured home was put on the property in 1991 when there is R-1 zoning in place that would prevent this. Mr. Leonard stated that when the manufactured home was put on the property it was not being used as a home. The property at that time also encompassed the old farm house. The manufactured home has always worn multiple hats. It is a headquarters, sales office and was possibly an accessory use for additional housing. The question is whether the city ordinances at that time properly addressed the whole issue of manufactured housing and whether it was illegal or not. The circumstances show not only how the home got there but the fact it is being used for this now is no ones fault. It evolved through a determination by the city by necessity of the parties. Board Member Price stated he did not see how the home is being used now is relevant. What is relevant is what kind of restrictions were on the property at the time the manufactured home was put in place. Mr. Leonard stated he didn't think the city had anything showing what it was being used for at that time. He stated it appears that when the house burned down they did in fact have to move into the manufactured home. At that time Mr. Tom Hart, who was City Manager, spoke with the family and apparently approved the family being there. The family believed the city approved them Zoning Board of Adjustments Minutes Page 6 February 26, 2004 -- being there. No one has given them formal permission but the city has allowed them to be there. At the time it was permitted to be used as the farm headquarters, which was a perfectly valid use at the time. Mr. Leonard stated he could not see how this was self imposed because self imposed is if you know better and you do it anyway as opposed to a necessity. Vice Chairman Stover stated they must have known this was wrong since they had paid fines. Mr. Leonard stated they did not pay any fines, they plead no contest. Mr. Leonard stated that pleading no contest establishes nothing legally. Paul Wieneskie, City Attorney, stated pleading no contest does not meet liability in a civil suit but Mr. Leonard is speaking falsely when he said they didn't pay a fine because they did. Mr. Leonard stated he didn't say they didn't pay a fine. Vice Chairman Stover advised Mr. Leonard he did say they did not pay a fine. Mr. Leonard asked to clarify his statement. He stated they plead no contest against the charges saying they were not challenging it which establishes no point as to whether that was correct. Vice Chairman Stover stated he was in favor of granting the variance before coming to the meeting but has changed his mind since that time. Vice Chairman Stover stated it did not matter whether it was anyone's fault but the Board had to determine whether this case meets certain conditions. Vice Chairman Stover stated one condition the board must meet in order to authorize a variance is the following: the literal enforcement of this chapter will result in unnecessary hardship because of exceptional narrowness, shallowness, shape, topography or other extraordinary or exceptional physical situation or physical condition unique to the specified piece of property in question. Vice Chairman Stover stated this case does not fit the criteria. Mr. Leonard stated there was a physical necessity in there is approximately 200 acres that has to be watched and zoning. Mr. Leonard stated the City Of Euless has adopted their own language regarding zoning that does not meet State Law. Mr. Wieneskie asked Mr. Leonard what reference he was referring to that the City Of Euless was not in compliance with zoning. Mr. Leonard stated Article 211 was the law for zoning and it has no restriction in regards to the physical matters. Mr. Wieneskie reminded Mr. Leonard that it states a city may enact additional regulations governing the granting of a variance if they choose to, and this is what the City Of Euless has chosen. Mr. Leonard stated it stated you are not allowed to change the fundamental law of zoning and by doing that reduces the chance of granting a variance and probably illegal. Chairman Blood stated he can see the argument that a manufactured house is a proper house and is to be considered on the same level as a stick built house. At that time, if a house were built under current residential zoning requirements it would be required to have a roof pitch of 6:12 and masonry. This house does not conform to either of these requirements which are zoning issues. Mr. Leonard stated he did not know if those were the requirements in 1991. Chairman Blood stated it was the requirement in 1991. Mr. Leonard stated the other question is that you can not prevent any type of modular type housing. Chairman Blood advised Mr. Leonard it can be restricted by the zoning Zoning Board of Adjustments Minutes Page 7 February 26, 2004 -- standards that are in place which in this case require masonry and pitch roof. Mr. Leonard argued that this would completely prevent them from being anywhere in the city. Chairman Blood stated there are other areas within the city that does allow for manufactured housing. Hans Smith stated Paul Harrington had it worked out with the current City Manager, Tom Hart, with accepting a letter in lieu of a permit for the home and the City Manager stated they could keep the home on the property for however long they needed it. Chairman Blood asked Mr. Smith if he had a copy of this letter. Mr. Smith stated Tom Hart had the letter. Board Member Dube asked Mr. Smith if Tom Hart gave them the permission to stay on the property for 15-20 years in writing or was it just hearsay. Mr. Smith stated Paul Harrington did receive something back in response from Tom Hart but that it was with Paul's things and they are not sure where. Chairman Blood asked Mr. Wieneskie if the City Manager could make an agreement of this type. Mr. Wieneskie stated it would not be enforceable. No one in the city has the authority to give someone permission to violate city ordinance. This can only come from a vote from the City Council in a properly called meeting using Council procedures to amend an ordinance. If such permission had been given verbally or in writing, it would not be enforceable by law. Mr. Smith stated none of the family was aware there were any problems until about a year ago when he visited with Mr. Collins. Mr. Collins stated when they spoke they discussed there had been citations written in 1994 and 1995 and there had been citations written in late 2000 or early 2001. Mr. Smith stated Paul Harrington was the only person that was aware of this and he died 14 month ago. Mr. Collins stated they had also discussed there were negotiations occurring for the drainage easement. Mr. Smith did agree they discussed these matters. Mr. Smith stated his mother was present and the Board Members could ask if she was aware of these problems because she thought everything was fine up until about a year ago. Mr. Collins stated his point in asking Mr. Smith to make reference to the conversations they had 2-3 years ago was he had discussed there had been citations issued for that nonconforming land use. Mr. Smith stated that was what Mr. Collins had told him but that was the first time he knew anything about it. Don Harrington asked which nonconforming use were they speaking of that citations were issued for in 1994 and 1995, the manufactured home or the old house. Mr. Collins stated the structure they referred to as the manufactured home. Mr. Harrington stated he was not aware of any such citations that were issued and he would know because he was with Paul Harrington when they responded to the first citation issued in 2000. -- Board Member Dube asked to clarify some relationships. Board Member Dube asked Mr. Smith how his mother was related to Paul Harrington. Mr. Smith stated Paul Harrington was his mother's nephew. Zoning Board of Adjustments Minutes Page 8 February 26, 2004 Hans Smith advised the Board Members that if a certain buyer they are considering for the property purchases the property the buyer will need to move his equipment onto the property and need a sales office. Chairman Blood stated that was not relevant to the Board at this time. Paul Wieneskie asked Mr. Smith if the property is developed just as he said, would the manufactured home be turned into a sales office or a place to lock up equipment at night and where would Mr. Harrington, his brother and finance go to live at that time if they do not have any other place. Mr. Smith stated that one of the developers stated he would like for Mr. Harrington to stay on the property. Dawn Patina, 2800 Heritage Ave., Euless, stated she could not understand why the city had so much interest in a 2200 square foot home on over 240 acres that was in an isolated area. Ms. Patina stated she could not understand how anyone could tell this family they could not live on the property because of the pitch of the house. She stated there was information passed out to them that indicates other family members who have interest in the property and those that are present would like to see that Don Harrington stay on the property to conduct his business and to sell the property which is the ultimate goal for the family. Hopefully the property will sell within the next 2 years. Chairman Blood asked how long they see this property needing to be continued as a residence. Ms. Patina stated it would be hard to give a definite time frame as to when the property will actually sell. Mr. Smith stated they are looking at approximately 3-4 years. Mr. Smith stated that if Mr. Chandler buys the property he has asked that Don Harrington stay on and farm the property for an additional 3 years. Board Members Dube stated the board has heard that when the situation first began in 1991 when there was a violation made of the home being moved onto the property there was no request to grandfather the family situation. The board is not interested in hearing there being a long delay in the family taking action to have something done since it has been an ongoing problem for the past 13 years. Mr. Smith stated the key parties of the family that are left were not aware there were any problems on the property until approximately one year ago. Board Member Dube advised Mr. Smith he had just advised he had spoken with Mr. Collins in 2000 or 2001. Mr. Smith stated he had not met with Mr. Collins until approximately one year ago. Mr. Smith stated he did agree there was a problem with the old house, that if someone was trespassing it did pose a danger, and there was a ZBA order to have the old home torn down. Mr. Smith asked Mr. Collins when they first met. Mr. Collins stated it was in the fall of 2002. Mr. Smith stated that was not correct, they did not meet until February of 2003. Chairman Blood stated if there were other uses for this structure there were other vehicles in the city for them to get permits for them to use it for those and the board does not have that authority. Mr. Leonard stated the residence is only one use for this Zoning Board of Adjustments Minutes Page 9 February 26, 2004 -- particular building. Mr. Leonard stated there are now people authorized to make arrangements for the sell of this property which has been a problem in the past. Mr. Leonard stated he has spoken with Mr. Harrington and stated the board could answer the questions they need to answer in regards to the uniqueness, the benefit to the public and no harm to the general plan. He stated they would like to ask the board to permit this residential aspect with a system that would allow them to stay there for 3-5 years with the condition they report annually to the city on the progress of the property. Chairman Blood asked Mr. Leonard who he thought they should report to at the city. Mr. Leonard stated the report should go to Mr. Collins if acceptable or whomever they suggest. If it is clear that nothing is happening, the family can come back before the board and discuss if the time limit has changed. They want to make this work for everyone. Chairman Blood asked if there were any opponents and to come forward for any comments. Seeing none the public hearing was closed. Board Member Price stated if they take advantage of helping the family with this situation they would be violating the principles under which the board is to conform. Chairman Blood stated they are not only concerned with the residential use but also the structure. If we grant a time frame for the residential use they would still need to go through the proper procedures through the city to have other uses otherwise it would still be an illegal use. Board Member Dube stated he would propose the board to deny the request due to a self imposed hardship or grant them a variance for 3 years with the provision that the facility must be vacated as a residence at that time if not already done so. Chairman Blood stated he would add to the end of the 3 years if they do not go through proper procedures to have another use approved by the city then the structure can be removed. Mike Collins asked for Chairman Blood to clarify his statement on what would trigger the event to end the primary use as a residence. Chairman Blood stated the time frame would trigger the event. Mike Collins asked if at any time between now and the time frame if all or a portion of the property were sold that would not have an impact on the residential use. Chairman Blood stated that if the property were sold during that time frame and has been asked to stay on as security they will be allowed until the time frame expires. -- Chairman Blood stated it was a structure that was not built according to zoning regulations at the time it was put in, does not have the required pitch on the roof, does not have the masonry and would not have been allowed to be built in this configuration. Zoning Board of Adjustments Minutes Page 10 February 26, 2004 -- They did not get a permit when the home was put there which would have flagged all of these and would not have been allowed to be put there at that time. It has been an illegal use for 10 years. Board Member Price stated he would like to help them out but the board should not throw out the zoning ordinances just because someone has violated them and we feel sorry for their circumstances. Board Member Price feels they should deny the request because it is a self created hardship. He stated if you give them a time frame you have to forget about the self created hardship. Paul Wieneskie stated unnecessary hardship as ordinance states the board is to follow in their decisions means physical hardship relating to the property itself as distinguished from hardship relating to convenience, financial considerations or the owners own actions. Although there has been a sympathetic story told about the owners situation, to move the manufactured home and either live in it or build a building that conforms to the regulations on the property to live in is a financial hardship. Vice Chairman Stover stated he could not be swayed by the history of the property. This is a farm with a unique situation. He stated the family had inherited the property and the problems associated with it and felt it would not hurt to give them some time. Chairman Blood stated he felt that 3 years was a good time frame. Board Member Price stated that only 2 out of the 3 conditions have been met for considering this variance but that all 3 must be met before granting this variance. Board Member Dube stated he read the ordinance as a guideline and not law. He stated it would be in the city's best interest to allow the applicant time to sell the property. Chairman Blood asked how the board could deviate from the ordinance. Paul Wieneskie stated the ordinance is absolute and if it states all 3 conditions must be met then all 3 must be met before a variance can be granted. Chairman Blood asked the board members if they could consider since the property was large and carried a variety of uses, could this be considered a hardship. Board Member Price stated the second condition still could not be met. He also asked if the applicant could have built a home on the property and met the zoning standards. Mike Collins stated single family dwellings were permitted in the TX-121 Gateway district. Board Member Dube made a motion to approve case #04-02-ZBA with the following condition: to live in facility for 3 years and at that time must vacate if occupied and make Zoning Board of Adjustments Minutes Page 11 February 26, 2004 -- written annual report to City Council. Board Member seconded the motion. The vote was as follows: Ayes: Vice Chairman Stover and Board Member Dube Nays: Chairman Blood and Board Members Cornell and Price Abstention: None Motion failed (2-3-0). Board Member Price made a motion to deny case #04-02-ZBA. Board Member Cornell seconded the motion. The vote was as follows: Ayes: Board Members Cornell and Price Nays: Vice Chairman Stover and Board Member Dube Abstention: Chairman Blood The motion failed (2-2-1) Neither motion passed therefore the variance was not granted. Chairman Blood adjourned the meeting at 8:41 p.m. ( #-$0'es .,d'i ,-< / ' 1/- 2 A,v- airman Victor Blood Date