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HomeMy WebLinkAboutZBA 2008-02-27 MinutesMINUTES OF THE REGULAR MEETING OF THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF NORTH RICHLAND HILLS, TEXAS February 27, 2008 1. CALL TO ORDER The meeting was called to order by Chairman Tom Duer at 6:37 p.m. ROLL CALL Present Chairman Alternate Tom Duer Bill Gibbs Jerry Henry Fonda Kunkel Leslie Jauregui Sixto Rodriguez III Absent City Staff City Attorney Dir. Of Planning & Development Building Official Chief Pianner Asst. Director of Public Works Recording Secretary Jim Kemp George Staples John Pitstick Dave Pendley Eric Wilhite Greg VanNeiuwenhuize Gina Harner 2. ROLL CALL 3. CONSIDERATION OF MINUTES FROM JUNE 28, 2007 ZONING BOARD OF ADJUSTMENT MEETING. APPROVED Jerry Henry ,seconded by Sixto Rodriguez III, motioned to approve the minutes from June 28, 2007. The motion carried unanimously (6-0). Jim Kemp was absent. Page 1 of 10 02/27/08 ZBA Minutes 4. REVIEW AND TRAINING SESSION REGARDING SECTION 118-152, ~` NONCONFORMING USES, STRUCTURES, AND LOTS WITH CITY ATTORNEY. George Staples gave a general synopsis of general zoning and land use laws. John Pitstick said that the city is trying to revitalize Boulevard 26 south of the freeway. With the passage of this ordinance the vacant buildings in that area would be notified after 6 months with a letter from Dave Pendley. They would be advised that since the space has remained vacant for 6 months they would not be allowed to put the same use back into this location and that they could appeal this decision before the Zoning Board of Adjustment. George Staples said that it doesn't mean they wouldn't be able to use the building it just could be used for the previous non-conforming use. Most of those buildings could legally be used for another use. Bill Gibbs asked if there are any actual cases where there is anon-conforming use that has closed down? John Pitstick said yes. There are several cases. Our current ordinance only allows car lots to be 5 acres or more. Bill Gibbs said that this would apply to the building on the corner of Glenview. John Pitstick said that if a car lot has gone out of business and is vacant for 6 months then in order to reopen as a car lot and conform to the new regulations they would need to have 5 acres. It doesn't mean that we want them to tear down their buildings on the property. It just means that they would need to convert to a window tinting business or other legal conforming commercial use. Once they have converted to another business type they cannot return to the previous use. Bill Gibbs asked about the old barber shop on Glenview and Rufe Snow? Eric Wilhite said that it is zoned for that land use but might have some non- conforming non-conformances as related to the structure setbacks. Those businesses are not necessarily the ones that the city is going towards with this ordinance. It would be looked into if someone came in and wanted to completely change the land use type. Chairman Duer asked if the non-conformance would follow a change in ownership? Page 2 of 10 02/27/08 ZBA Minutes George Staples said that ownership has nothing to do with non-conforming land use. Chairman Duer asked if the non-conforming business is continuing and they change ownership can they maintain the non-conforming use? George Staples said yes. We do not look at the ownership of the property only the use. Eric Wilhite said that if the car lot is owned by a particular individual and he leases it to other people, the non-conforming use can continue as long as they haven't closed down for 6 months. Chairman Duer asked who officially starts the time for their 6 months? Eric Wilhite said that we keep an eye on certain properties. George Staples said that we have some tests written into this ordinance. John Pitstick said that we can contact the Utility department and find out when the water was turned off to the property. Bill Gibbs asked if this ordinance has already been passed? John Pitstick said yes. Bill Gibbs said that there should be a couple of properties that have already had their 6 months started. Eric Wilhite said that the day this ordinance was passed they were able to begin the process on some properties because the 6 months vacancy did not stand alone on the previous ordinance. John Pitstick said that the previous ordinance said that if they shut down for 6 months but they could still state that their intent was to open back up as this use. That is why this new ordinance has been written so that they can't just come back and say that their intent is to open back up as this non-conforming use. There is a process they will have to go through to appeal the decision. Chairman Duer asked when would the property owner be notified? John Pitstick said that once they come in to apply for their new Certificate of Occupancy. It will be researched and if it has been over 6 months they will be advised that they must take their case before the Zoning Board of Appeals. Page 3 of 10 02/27/08 ZBA Minutes Bill Gibbs said that they would just come before the Zoning Board of Appeals and state that his intent was to continue that business. George Staples said that ordinance specifically says that intent is irrelevant. John Pitstick said that the board should ask for evidence and there are some cases because of the significant changes over the last 5 years in the ordinances and revisions that have created non-conformities. It is not our intent to go after the WalMarts. The city would like to see the revitalization of Boulevard 26. Bill Gibbs said that the old barbershop on the corner of Rufe Snow and Glenview is non-conforming and an eyesore and would like to see if something could be done with that property. Eric Wilhite said that if it is an eyesore we could look at it as nonresidential maintenance code. John Pitstick said that it could be a building code issue also. Chairman Duer asked how abandonment is determined? George Staples said that there are 3 different tests that will be used to determine abandonment. Chairman Duer asked if the city staff actually goes out and determines whether one of the three items have been met. John Pitstick said yes. Chairman Duer asked what would happen if the property owner continued to pay the water bill? George Staples said that there are other tests that can be used if the water has not been disconnected. Chairman Duer asked what other provisions the city staff would have for determining that they were no longer in business other than the water being disconnected? George Staples said that it would come to their attention. John Pitstick said that Joann with Code takes pictures of vacant buildings and aerials. Dave Pendley said that sometimes they may get away with 8 or 9 months before it is noticed that they have gone out of business. Page 4 of 10 02/27/08 ZBA Minutes John Pitstick said that we are going to be checking with the utility department and ~"' going out to video corridors. Chairman Duer asked if almost all businesses collect sales tax? John Pitstick said yes if they are selling something. George Staples said that the problem with sales tax certificate information is that it is difficult to get that information in a timely manner. Fonda Kunkel asked if they have to redo their Certificate of Occupancy once it has already been obtained? George Staples said no. Eric Wilhite said only if they change ownership. Fonda Kunkel asked if once they are given that Certificate of Occupancy if it is good forever? Dave Pendley said yes, as long as it is the same people occupying the space. Chairman Duer asked what is done with remodeling? George Staples said that they are not allowed to expand anon-conforming use. Dave Pendley said that if they are going to remodel and it is more than painting and re-carpeting they will have to get a building permit. There is a financial percentage they are allowed to put into the remodeling if they are non- conforming. Chairman Duer asked if they get financial permission does the non-conforming use dissolve? Eric Wilhite said no. They can operate it the way it is but they wouldn't be able to expand the business. John Pitstick said a good example would be if you have a 1200 sq. ft. house and you want to add on to it and our minimum requirement is 1600 sq. ft. or it has to be masonry. If they choose to expand then they will have to conform to the new requirements. George Staples said the Zoning Board of Adjustment has the authority to allow people to expand non-conforming uses. Page 5 of 10 02/27/08 ZBA Minutes Bill Gibbs asked if a building is deemed non-conforming and now you are looking ,,, at the amortization schedule. Explain more about the amortization. When does it start? George Staples said that the amortization starts when they first opened the business. There are different ways to determine this time period. Nearly all of the methodologies say that you don't consider anything other than the original investment. The upkeep is not considered because it is not part of the investment. Although there are times that there is property that is improved and in those times you might say that it might be fair to look at his complete investment as of the time that it became non-conforming even though we will go back to the original time. As far as his investment is concerned we will look at his total investment in the property up to the time it became non-conforming. Then we will go back and use this schedule and capitalization rate to determine how long he has had an opportunity to recover his investment. Bill Gibbs asked if a change of ownership would restart the time on their 6 months? George Staples said no. They purchased the non-conforming use. Eric Wilhite said the purchasers should have checked to make sure that the property was in conformance. George Staples said that sophisticated investors ask those questions. Chairman Duer said that his concern is if someone purchases the property and isn't aware that it is non-conforming and want to come before the ZBA to get a variance. Eric Wilhite said that most will request a zoning verification letter from the city prior to purchasing the property. George Staples said that we do get a significant number of purchasers that do cash transactions and don't acquire information on the property ahead of time. George Staples said we are not proposing to use amortization as a general rule we would like to use it in general situations where there are businesses that basically are not businesses. Chairman Duer asked who technically decides amortization? George Staples said that the ZBA does. First the applicant will have to provide the information and each of those situations will be different. Jerry Henry said this has left them no option to be able to be granted a variance. Page 6 of 10 02/27/08 ZBA Minutes They will have no option other than going before the Zoning Board of Adjustment. George Staples said yes. This is the way we want it. We need a process in place that states if the property owner believes that we are taking their property they need to come in and provide evidence to that affect. Chairman Duer asked if they foresee that there is a possibility that they go to the city and they are turned down. This keeps them from being able to sue the city until they have gone before the Zoning Board of Adjustment. George Staples said yes. Bill Gibbs asked how many vacant properties have currently been documented? John Pitstick said 4-5 properties. In most cases we will tell them you can still use your building you just can't use it for a car lot. Chairman Duer said that one of the original intents of the ZBA board was the financial hardship. With this new ordinance the owner could come in and state that they purchased the property not realizing that it was non-conforming. George Staples said that ignorance to the law is no excuse. Property owners are expected to have some responsibility. John Pitstick said that if the property owners can prove the amortization on the property and building are worth some money. In most cases these are 20 and 30 year old buildings that could be used for something else other than that particular use. Chairman Duer asked about a person that might want to sue the city. They are told to go before ZBA and they go over all the details and in the past never felt that there would be any litigant problems as long as things were done in good judgment and not granting any special favors. Now if we turn that applicant down and now have the possibility of becoming part of a lawsuit. George Staples said that this is something that has always been there. Everytime you turn someone down for a variance they have a right to take it to district court. It is an uphill battle when you are suing a ZBA. If there is any evidence that will support your decision. All the court decisions say we won't retry this case they had all the stuff and there is evidence to support their decision. Unless there is something strange within the case it will be sustained. That is the reason I like going through the ZBA. The courts don't overturn ZBA's decisions. Leslie Jauregui asked if they are told what they need before they come before the ZBA? Page 7 of 10 02/27/08 ZBA Minutes George Staples said yes. ~.. Bill Gibbs asked if we got that far and one came before the board and it was a close issue would the city attorney advise the board regarding the facts that would help the board to make a decision? George Staples said that if you read through the ordinance, the ZBA has the power to vote up or down or give him more time. They board can also choose to extend the amortization period. Eric Wilhite said that they can allow him 5 more years to get his money out of his investment. Once the 5 years has passed he will have to either cease the business or have to return to the ZBA. John Pitstick said that it would be in their packets. They would have to fill out a formal application. If they want to go with amortization they will have to show facts and numbers. George Staples said they will have to show the original cost of the improvements the adaptability to a conforming use, the length of time that they have had to recoup their capital costs. Leslie Jauregui asked if they would have to state all of that upon applying for their appeal with the city staff? John Pitstick said that most of the cases that come before the ZBA are going to be simple cases. We aren't going to bring any of those cases that are within the gray areas unless the applicant is requesting. George Staples said that once they have provided all of that information the board can ask the applicant how much time they think they would need to recoup their costs. Dave Pendley said that in a lot of situations when people come in and realize that they have to provide all types of documentation they most likely will just want to know what they can do with the building without providing all of that information. Chairman Duer said that we can allow them more time with the non-conforming use with a time frame. George Staples said yes. You have the power to establish the time for the non- conforming use to be continued. You are essentially finding that he has some value. It is not an up or down question the only time you will have the up or down is if we have miscalculated the time and it hasn't been quite 6 months or if the property owner doesn't have any evidence. You won't see very many of these Page 8 of 10 02/27/08 ZBA Minutes cases because we won't bring complicated cases. It is not what this is going to ,,~„ be used for. Bill Gibbs asked how will the applicant show that the only possible use for his property on Boulevard 26 is as a used car lot? John Pitstick said that there most likely would be a lot of other uses that they could do with the building. George Staples said that there are a lot of other legal uses. It would be very difficult to say that any particular piece of property only has value as a used car lot. Bill Gibbs said that used car lots generally have a small office and the rest is asphalt. Are you saying that work can be done and they can build on additional or do they have to use it as is? George Staples said they don't have to use it as is but we need to know how long the building has been on the property. If he just built it yesterday then we might give him another year. If the building there doesn't have any other utility then make a determination based on how long it has been there. The property clearly could be used for other purposes. What is his loss if we don't allow him to use it for a car lot? You have only cost him the value of that little building. Chairman Duer asked what would happen if a business has been deemed non- conforming and then staff drives by and sees that he has cars out on the lot and is starting to do business what legal right does the city have? John Pitstick said that he has to come in and get a Certificate of Occupancy. Before he can put his cars out on the lot he must have his Certificate of Occupancy. Chairman Duer asked what would happen if a business starts operating without obtaining a Certificate of Occupancy? Dave Pendley said they would be issued citations and most businesses are under temporary power so the electricity and water could be shut off. Chairman Duer said that there are several thresholds they have to go through before they even make it before the Zoning Board of Adjustment. Dave Pendley said that some businesses that move into a building without acquiring a Certificate of Occupancy once 30 days has passed the utility company will notice that they haven't received anything from the city and turn off their power without notifying them. Page 9 of 10 02/27/08 ZBA Minutes Fonda Kunkel asked once the 6 months is started do they get a notice in the mail ,,,,r„ notifying them that they have 6 months? Eric Wilhite said no. They will be notified when they come in to apply for a Certificate of Occupancy. Fonda Kunkel asked if at the end of the 6 months they get a notice stating that they are no longer in conformance? John Pitstick said they have to be vacant for the entire 6 months. If they have a continuing business we can't do anything. Eric Wilhite said if they come in and request a Certificate of Occupancy for another car lot the owner and tenant will be notified that it has been over 6 months. If they come in for a window tinting business or another permitted commercial use the Certificate of Occupancy will be issued. Chairman Duer asked if we have any statistics on how many non-conforming properties are in the city? Eric Wilhite said no. George Staples said that it depends on how you define them. We have a lot of minor non-conforming issues for setbacks. John Pitstick said that we have a lot of pole signs that we no longer allow but there is nothing we can do about those. S. ADJOURNMENT There being no other business, the chairman adjourned the meeting at 7:52 p.m. Chairman Tom Duer Page 10 of 10 02/27/08 ZBA Minutes