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HomeMy WebLinkAbout2007-09-27 ZONING BOARD OF ADJUSTMENT September 27, 2007 MINUTES The regular meeting of the Zoning Board of Adjustment was called to order by Chairman Luther Dube at 6:38 p.m. for consideration of scheduled items in the Council Chambers in City Hall of the Municipal Building. Chairman Luther Dube stated there was a quorum of members of the Zoning Board of Adjustment present. MEMBERS AND STAFF PRESENT: MEMBERS ABSENT Chairman Luther Dube Vice Chairman Karin Newell Robert Wooldridge Harry Zimmer Ruby Anne Crites Steven Ellis, Alt. Mike Collins, Director of Planning and Development Chris Barker, Planning and Development Manager Gary McKamie, City Manager Loretta Getchell, Deputy City Manager Bill Ridgway, Director of Economic Development Susan Crim, City Secretary Holly Witt, Administrative Secretary VISITORS: Tim Stinneford, Jessica Deleon, Nick Mehmeti, Roger Albright, Bob McFarland, William M. McKamie, Paul Wieneskie THE PLEDGE OF ALLEGIANCE AND INVOCATION: The Pledge of Allegiance and Invocation was given by Chairman Dube. ITEM 1 APPROVAL OF MINUTES for called meeting of June 28, 2007 The minutes considered were approved by unanimous agreement of the board. ITEM 2 CASE #07-03-ZBA — HOLD PUBLIC HEARING AND CONSIDER A REQUEST FOR AN APPEAL Receive public input regarding a request for an appeal. The applicant is requesting an appeal of determination by the Building Official that Gator's Bayou is operating without a valid certificate of occupancy. This property is located on Westpark Central Addition, Lot 4AR1, 2155 W. Airport Freeway. Chairman Dube opened the public hearing. Zoning Board of Adjustments Minutes Page 2 September 27, 2007 -- Mike Collins, Director of Planning and Development, gave a brief description of the case. A Notice of Violation was issued on June 29, 2007 to Mr. Nick Mehmeti for operating Gator's Cajun Bayou (Gator's) without a valid Certificate of Occupancy. Mr. Mehmeti has now filed an appeal under the procedure established in Section 84-27 of the Unified Development Code. Gator's operates in a building located at 2155 W. Airport Freeway that is immediately adjacent to the former Ramada Inn Hotel. Both of these structures are located on single platted lot. The city maintains that Gator's is operating without a valid Certificate of Occupancy due to a change in ownership. Section 84-22 (3) establishes that a Certificate of Occupancy is required to be kept current reflecting any changes in ownership, change of address, name changes, or other pertinent information listed on the application. The applicant, Mr. Mehmeti, is of the opinion that the Certificate of Occupancy previously issued to Three New Millennium, Inc. d/b/a as Gator's Cajun Bayou remains valid. This Certificate of Occupancy was issued in June 2005 after approval of #05-03- SUP in April 2005. (Attachment A) The appeal by the applicant regarding the Certificate of Occupancy is inconsistent with representations made by the applicant since October 2004. As demonstrated by the timeline below, the only application submitted by Mr. Roger Albright on behalf of Mr. Nick Mehmeti, that identified Three New Millennium, Inc. as the applicant and as owner of Gator's was the application for #05-03-SUP. Since the application for #05-03-SUP was submitted, all other applications have represented Composite Investments, Inc. as the owner. This would include the most recent application that was submitted on July 17, 2007 by the applicant for a Certificate of Occupancy for Gator's, with Composite Investment, Inc. represented as owner. The following information identifies applications that have been submitted in recent years for either Specific Use Permits or Certificate of Occupancy by Mr. Roger Albright on behalf of Mr. Nick Mehmeti. 10/12/04 Composite Investments, Inc. makes application for #04-12-SUP and represents on application that Composite Investments, Inc. is owner of Gator's - approved for Gator's Bayou Cajun Sports Grill (associated with hotel) approved for one (1) year as drinking establishment with arcades and billiards - Composite Investments Inc., represented by Nick Mehmeti, purchased Gator's and hotel property and represents that Gator's is temporary until they sign a three star flagship hotel. (Attachment B) 4/26/05 Three New Millennium, Inc. makes application for #05-03-SUP and represents on application that Three New Millennium is owner of Gator's Bayou Cajun Sports Grill - approved for six (6) months as drinking establishment with arcades and billiards - Gator's/Hotel ownership was transferred to Three New Millennium Group, Inc., a subsidiary of Composite Investments Inc. (Attachment C) Zoning Board of Adjustments Minutes Page 3 September 27, 2007 Applicant represents that they are finalizing negotiations for a Clarion Hotel development with hotel's corporate office reviewing architectural plans. 6/08/05 Certificate of Occupancy issued for Gator's Cajun Bayou with owner listed as Three New Millennium, Inc. (Attachment D) 10/25/05 Gator's Bayou Cajun Sports Grill makes application for #05-09-SUP and represents on application that Composite Investments, Inc. is the owner of Gator's - approved valid for six months/ March 1, 2006 or until hotel site plan/SUP is considered by City Council to continue operating drinking establishment, with arcades and billiards. (Attachment E) Applicant presents detailed presentation of a Clarion Select "boutique quality" hotel and asks for more time to finalize negotiations. 2/14/06 Composite Investments makes application for SUP (#05-11-SUP) and Site Plan (#05-12-SP) and represents on application that Composite Investments is the owner of the project - approved for a 168-room Clarion Collection Hotel with an establishment known as Sports City Café containing arcades and billiards and full service restaurant w/food sales at least 25% of gross revenues. (Attachment F) 7/17/07 Composite Investments makes application for Certificate of Occupancy for Gator's Cajun Bayou and represents on application that Composite Investments is the owner of Gator's (Attachment G) Section 84-27. "Variance, exceptions and appeals for zoning," establishes a procedure that allows applicants an opportunity to appeal to zoning issues before the Zoning Board of Adjustments. Specifically, Section 84-27 (10) establishes the following: "The board shall hear and decide appeals when it is alleged there is an error in any order, requirements, decision, or determination made by an administrative official in the enforcement of this chapter. The board must find the following in order to grant an appeal: 1. That there is a reasonable difference of interpretation as to the specific intent of the zoning regulation or zoning map; 2. That the resulting interpretation will not grant a special privilege to one property inconsistent with other properties or uses similarly situated; 3. The decision of the board must be such as will be in the best interest of the community and consistent with the spirit and intent of the city's zoning laws. Mike read into the record that: Attachment B, Specific Use Permit application for case #04-12-SUP, shows the owner to be Composite Investments, Inc.; Attachment C, Zoning Board of Adjustments Minutes Page 4 September 27, 2007 Specific Use Permit application for case #05-03-SUP, shows the owner to be Three New Millennium Group, Inc.; Attachment D, Certificate of Occupancy application dated March 30, 2005, shows the owner to be Three New Millennium, Inc.; Attachment E, Specific Use Permit for case #05-09-SUP, shows the owner to be Composite Investments, Inc; Attachment F, Specific Use Permit for case #05-11-SUP, shows the owner to be Composite Investments; Attachment G, Certificate of Occupancy application dated July 11, 2007, shows the owner to be Composite Investments and were all included with the packet. Chairman Dube asked for the applicant or the applicant's representative to come forward for any comments. Roger Albright, the applicant's attorney, stated they have now entered into a contract to sell the property. They believe that in less than thirty (30) days the property will be sold. He requested the commission to hold off on this case and wait for thirty (30) days because this case will be resolved. Chairman Dube asked for the City Attorneys response. Bob McFarland, City Attorney, stated since April of 2006 it has been the City's position that this business has been operating outside the authority of the Unified Development _ Code of the City of Euless. The City Council and the City have met on many occasions with the owner of this establishment and have granted great latitude in the continued operation of the premises. The applicant has indicated on previous occasions that there were contracts outstanding which would allow the property to be brought into compliance with the City code. City staff was instructed by City Council to bring this property into compliance with the Unified Development Code of the City of Euless, to forestall it further would not be in the best interest of the City and asked that the board deny the request for a continuance. Roger Albright stated they had one contract before and it fell out. They are on their second contract and think this one is going to close. He asked again for a continuance of thirty (30) days because they have a buyer who is going to redo the hotel and this issue would be resolved. Chairman Dube asked for rebuttal. Roger Albright again asked for a continuance to save the board two hours of time. If this property doesn't close then they would be back here in thirty (30) days. Chairman Dube asked for any proponents/opponents to come forward for comments. Seeing none the public hearing was closed. Roger Albright stated he had a witness he wanted to question and had testimony. He didn't feel it was appropriate to close the public hearing. Zoning Board of Adjustments Minutes Page 5 September 27, 2007 Chairman Dube asked Paul Wieneskie, City Attorney (present to advise the Board) if it was appropriate to reopen the public hearing. Paul Wieneskie stated in order to be fair to all parties it would be appropriate if that was the Boards desire to make a motion and vote on it. Chairman Dube asked for a motion to reopen the public hearing. Vice Chairman Newell made a motion to reopen the public hearing. Board Member Crites seconded the motion. The vote was as follows: Ayes: Chairman Dube, Vice Chairman Newell, Board Members Wooldridge, Zimmer, Crites Nays: None Abstention: None The motion carried (5-0-0) Roger Albright called the Building Official for questioning. Mike Collins stated that Kurt Kasson, the Building Official, had a family emergency and was unable to attend the meeting. Roger Albright stated he would have to move to continue this meeting because it was the Building Official's decision they were appealing. He said he had discussed this with opposing council on more than one occasion. Luther Dube asked Mike Collins if there was someone who could stand in for Mr. Kasson. Mike Collins asked for clarification from the City's council. Mick McKamie, special Council for the City, stated he had not been requested to produce any witnesses or documents for this hearing. The board has the ability to issue subpoenas and he was unaware of any being requested. Bob McFarland stated the only discussion that he had with Mr. Albright in producing Kurt Kasson was at the hearing at the temporary injunction, but not before this board and was unaware that any witnesses would even be called. Roger Albright stated that two days ago, yesterday, and today, he and Mr. McFarland had a conversation that the Building Official would be made available. Luther Dube addressed Roger Albright by stating he didn't know what conversations he had with the City Attorney, but did he have anything to present without Mr. Kasson. Zoning Board of Adjustments Minutes Page 6 September 27, 2007 Roger Albright stated he did have documents to present. He then called Kurt Kasson. Paul Wieneskie pointed out that Mr. McKamie was correct in his statement that the board does have the authority to issue subpoenas for the attendance of witnesses and he was unaware that the board had received any request for any subpoenas for any witness for this case tonight. He does not know if any agreements were made but have heard the City Attorney stand and say he did not make any agreement to make Mr. Kasson available tonight. The City is not required to put on a case tonight, it is the burden of the applicant that the appeal be granted, that party is Mr. Albrights' client. They are the ones with the burden of proof at this hearing tonight, whether they carry that burden of proof based on what they represent and the City presents is what the board is here to decide. The City as it stands right now is not required to do anything unless and until the applicant meets his burden of proof to persuade this board that there was a mistake in the decision of the Building Official. There have been several documents in the packet that have been certified by the City Secretary as being true and correct copies of documents within the City's possession. If some of those documents that Mr. Albright wanted to introduce into evidence before this board using Mr. Kasson as a sponsoring witness he would suggest that Mr. Albright wouldn't need Mr. Kasson as a sponsoring witness in order to introduce those documents. He stated if any of the members of the board have any questions of himself, as their council, at this time before they precede any further he would try to _ answer them. Luther Dube asked the board if they had any questions. There were no questions. Roger Albright called Mike Collins as his first witness. He asked Mike to identify the document he handed to him. Mike Collins stated he has presented a Specific Use Permit identified as #97-09-SUP that approved arcade and pool tables. Roger Albright asked if it was fair to say that is an S.U.P. approval in 1997 for Gators to operate. Mike Collins stated he believed that to be accurate. Roger Albright handed the board Exhibit 2 and asked Mike to identify it and asked if it was an application for a S.U.P. dated September 1, 2004 again for Gators. Mike Collins stated that would be correct. Roger Albright stated this is a document for a change of ownership, no change in operation or use, back in 2004. Mike Collins stated that an application was made. Zoning Board of Adjustments Minutes Page 7 September 27, 2007 -- Roger Albright stated not only was there an application made, but approved. Mike Collins stated yes. Roger Albright handed the board a document dated April 10, 2005. Mike Collins stated that was a letter sent upon passage of#04-12-SUP. A serious of questioning and answering followed (verbatim minutes are available for review upon request). Chairman Dube closed the public hearing. Vice Chairman Newell made a motion to deny the appeal for case #07-03-ZBA. Board Member Crites seconded the motion. The vote was as follows: Ayes: Chairman Dube, Vice Chairman Newell, Board Members Wooldridge, Crites Nays: None Abstention: Board Member Zimmer The motion carried (4-0-1) Chairman Dube adjourned the meeting at 8:31 p.m. Ce 4,7' r l - `V Chairman Dube Date