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HomeMy WebLinkAboutZBA 2011-03-24 Minutes MINUTES OF THE REGULAR MEETING OF THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF NORTH RICHLAND HILLS, TEXAS MARCH 24, 2011 1. CALL TO ORDER The meeting was called to order by Chairman Tom Duer at 7:00 p.m. 2. ROLL CALL Present Chairman Tom Duer Jim Kemp Jerry Henry Bill Gibbs Fonda Kunkel Robert Housewright Brian Crowson City Staff Director of Planning & Dev. John Pitstick Building Official David Pendley Recording Secretary Teresa Koontz 3. PLEDGE OF ALLEGIANCE 4. Consideration of Minutes from September 23, 2010 Zoning Board of Adjustment meeting. Jim Kemp, seconded by Bill Gibbs, motioned to approve the minutes from September 23, 2010. The motion carried unanimously (5 -0). 5. BA 2011 -01 A Public Hearing to Consider a Request from Rodney Munsell for a variance to the requirement that two covered parking spaces be provided on lots in the R -3 zoning district. These requirements are specified in Section 118 - 314(2) of the City of North Richland Hills Code of Ordinances. Page 1 of 03/24/11 ZBA Minutes Chairman Duer stated that the Zoning Board of Adjustment is a little bit different type of board. By state statute to get any variance approved or motion approved it takes a super majority which is 75 % or 3 % motion to approve. With us being a 5 voting member board it requires 4 affirmative votes. So if a motion carries 3 -2 vote that does not pass based on the state statute of meeting the 75% majority. Chairman Duer opened the Public Hearing and asked staff to present the case. Chairman Duer opened the Public Hearing. Dave Pendley said the case takes place at 7128 Winchester Road and is variance to eliminate two parking spaces behind the building line. Due to the age of the house it was built with one car garage so the fact that is does not have two now is not the point of contention due to the age and being non conforming. That is the requirement in the zoning ordinance and what we are truly here for is to talk about the omission of all the parking behind the building line due to a garage conversion into a living space. The house was constructed around 1978 and about ten years ago the garage was converted into a living area. Shortly thereafter a Code Enforcement Officer with the City of North Richland Hills opened a case on the project for the illegal conversion of the garage without proper permits. For whatever reason unrenowned to us, the Officer no longer works for the City but the case was not followed up on. Currently, the property owners bought the house about two years ago and just recently tried to sell it. During the mortgage process, the appraiser discovered and contacted our office whether or not the garage had been properly converted with permits. We had to tell them that did not occur and also that we could not issue any type of letter that would grandfather or forego the requirement. The loan apparently fell through and they are contended that they have hardship because they did not convert it and indicated that the City had played a part in it because the Code Enforcement Officer did not proceed to follow up on the case. Dave Pendley showed the case on a power point and said had this had been permitted today; the siding would not be approved because our current ordinance requires 85 % masonry. He said this house being in the middle of the block there is no room to reasonably put a carport on the property. Robert Housewright asked about the permit application in the packet. Dave Pendley said the reason for that is because the applicant has to have a building permit applied for and turned down before appearing before the Zoning Board of Adjustment. It was a matter of procedure. Chairman Duer called the applicant forward and swore her in. Linda Feldman, 1700 McDavid Ct., Aledo, Tx came forward representing the owner, Rodney Munsell, who is away on vacation with his family. She is the realtor who had the house under contract and was proceeding to close when found out before closing this issue was brought up and it actually closed the deal. We were not aware of the issue before then and the applicant feels that it is unfair that the house was bought two years ago without knowledge of this. Mr. Munsell was even further Page 2 of 03/24/11 ZBA Minutes distressed to find out there was a case that was opened and not handled. He has put approximately $20,000 of repairs into the house and cannot sell it for what it is worth because of this issue. The appraisal came in $10,000 less than what the appraised value should be and what he had it under contract for. The biggest concern is that an FHA appraisal and the appraiser would not include the square footage to the house because it was not permitted; therefore FHA will not ensure a loan on this house. By looking at the photographs of the house, it is a starter home and first time homeowners cannot qualify because of the issue. Robert Housewright asked if Mr. Munsell was living in the house? Linda Feldman said no, he was a real estate investor. Chairman Duer asked if anyone else wished to speak for or against BA 2011 -01? Seeing none he closed the Public Hearing and opened it up for discussion from the Board. Jerry Henry asked how the city would handle a situation if someone came in for a permit with one car garage since the current ordinance states two car garage required. Dave Pendley said when those houses were built, there was not a requirement for two parking spaces back in 1978. That aspect of the house is grandfathered and it can keep the one car garage. Jerry Henry motioned to approve the request for the variance based on the four findings of fact. Based on the findings, "the literal enforcement of the controls will create an unnecessary hardship or practical difficulty in the development of the affected property ", since it only had one car to start with he doesn't think we can force anyone to make two and it would force a hardship. "The situation causing the hardship or difficulty is neither self- imposed not generally affecting all or most properties in the same zoning district ", he didn't do it and purchased the home in that condition so he didn't create the hardship. "The relief sought will not injure the permitted use of the adjacent conforming property ", it will not because it has been that way for quite a while. "The granting of the variance will be in harmony with the spirit and purposes of these regulations ", he believes they will be therefore moves to grant the variance. Dave Pendley asked if it would be out of line to amend the motion to include obtaining the permits for final approval. Jerry Henry said because the enclosure was not permitted to start with the applicant needs to call for inspection to ensure the improvements are up to code and any violations would have to be remedied. Chairman Duer asked what would happen if in the inspection process there are any fire or structural that needed to be corrected. Page 3 of 03/24/11 ZBA Minutes Dave Pendley said if we found something that was not to code, the owner would be required to remedy the situation. APPROVED Jerry Henry motioned to approve BA 2011 -01, seconded by Bill Gibbs. The motion carried (5 -0). The motion was unanimous. 6. BA 2011 -02 A Public Hearing to Consider a Request from Leilani Rush for a variance to the requirement that two covered parking spaces be provided on lots in the R -3 zoning district. These requirements are specified in Section 118 - 314(2) of the City of North Richland Hills Code of Ordinances. Dave Pendley said this variance is a two car garage conversion at 5520 Finian Lane which was turned in to the city by a complaint from a neighbor. We believe the neighbor was turned down by a similar permit and that brought this to Code Enforcement. No permit was obtained to enclose this garage. We have been told that the Contractor was under the impression that the neighborhood was grandfathered and garage conversions were allowed and they made the conversion without the permit. Bill Gibbs asked wouldn't the magnitude of construction work require a permit? It would be obvious that any contractor would know to get a permit for this type of work. Dave Pendley said yes, it would require a building to wall that in. This is a typical scenario that we run into from time to time where someone takes it upon themselves to convert their garage and either a building inspector or code enforcement officer discovers it and turns it in and we have to go backwards. Jerry Henry asked if they had come in for a permit would it have been turned down? Would they have had to remedy the parking situation before it was approved? Dave Pendley said that was correct, they would have not been turned down, but would have been told to replace the covered parking behind the building line with either another garage or carport. Brian Crowson asked if we knew when the conversion took place? Dave Pendley answered in 2007 and the same ordinance existed then. Bill Gibbs asked how long has this ordinance been in effect? Page 4 of 03/24/11 ZBA Minutes Dave Pendley said since about 2000. He said if you drive down our streets there are not very many compared to neighboring cities like Watauga with different ordinances. Robert Housewright asked if someone had not have brought this to the cities' attention would be we be here? Dave Pendley said this one is on road that is not traveled very much and this was brought in by a complaint. Chairman Duer called the applicant forward and swore her in. The applicant, Leilani White Rush, 6509 Tabor Street, NRH came forward and said at the time this was done she lived at 5520 Finian Lane. Mrs. Rush stated she did try to do the right thing by going to the Code Department; it was too involved and thought she could subcontract it herself. She contracted with Rockaway Contractors who had been recommended to her and was told that due to the neighborhood and old section that she lives in that she would be grandfathered in. She stated there are other houses across the street from her that is closed in and if you drive any place in an older section of the city you would see the same thing. The contractor also told her since it did not affect the character of the neighborhood and would not make any big difference she was grandfathered in. She believed what she was told and went with that and paid them a lot of money to do this. Only recently has she gotten a notice and wants to know who filed the complaint? She said it looks good, there is nothing wrong with it, and it is just some mean spirited neighbor and doesn't understand it. Chairman Duer asked how much did the construction cost? Mrs. Rush said approximately $8000. Robert Housewright asked if she had talked to the contractor and what was his answer since this complaint? Mrs. Rush said at the time, he was in the hospital fighting for his life and Bill Zerby, the lead contractor on this job told other people the same thing. Chairman Duer asked if the contractor justified why a building permit was not obtained. Mrs. Rush said she never questioned it. She said since then had a meeting with the owner of Rockaway Company and the person who said those things is dead now, so nothing can be done. Brian Crowson said that he doesn't believe the person who turned this in did anything mean, they were just trying to do what was right by the city. Page 5 of 03/24/11 ZBA Minutes Mrs. Rush said then why would they pick on her? If you drive anywhere in NRH there are tons, she said. Chairman Duer asked if the person who filed the complaint was told they couldn't do the same conversion. Dave Pendley said that is what we understand, the person either called in or was told they couldn't convert their garage without a carport and we don't know if they lived up the street or driving by. But for whatever reason, they knew this address. Mrs. Rush said she was told she couldn't do a covered carport because there was not enough clearance. Dave Pendley said that was correct, she could not do one in the front. Robert Housewright asked if the other houses in the neighborhood that have done this, do they have this parking? Mrs. Rush said she was surprised that we didn't show the pictures of the other houses she submitted that have conversions across the street from her. She said she had asked the question when she met before how many summons were issues and what was the resolution, and her answer was "we don't know because we don't keep records of it." John Pitstick said we get complaints everyday, all we do is follow up and see if it is a violation or not and we typically don't share that information. But we cannot be every place at every time. Dave Pendley said perhaps it was the lowest bidder if she has several bids because a lot of times there are the ones that complain. Mrs. Rush said no, her son is in construction and he recommended them saying they were a good company. She contracted them in good faith and never worried about it again. She expected them to take care of their business. Jerry Henry said it is not the conversion of the garage literally that has caused this problem. The City probably would have given you the permit but they would have told you in order to enclose garage you would have had to provide two covered parking spaces behind the property line, which means you would have to have a carport or garage in your backyard. Mrs. Rush said that would be very expensive and very inconvenient. It would be a big slab and you would be walking across grass and mud to get into the house whereas here you are on concrete bringing your groceries in. She said this is a recession now and I'm a retired teacher I can't afford $12,000 to $15,000 to drive concrete into my backyard, and it would make me lose the only mature tree I have in my yard. Page 6 of 03/24/11 ZBA Minutes Jerry Henry asked Mrs. Rush if he heard her correctly, if they had required that of you, would you not have converted the garage? Mrs. Rush hesitated and said it wasn't an issue. Chairman Duer said it wasn't an issue because nothing ever came before the city and my question to the City Staff is this contractor still doing business in the North Richland Hills. Mrs. Rush stated if it were possible she would put a carport in where it is, but they told me it wasn't possible, so we have been like this for 15 years. If you drive around North Richland Hills you will see this a common thing in older neighborhoods having carports. Chairman Duer said the ordinances are set in motion for reasons and the Staff can let us know why they want two protected parking when you build a house or if you decide to enclose the garage why a covered carport can be done and in what areas it can go in. Mrs. Rush said then it should be fairly administered and it's not. Chairman Duer said they try to do the best they can but the process is usually what opens up all the questions, then the homeowner can get answers as to what is the best thing I can do. In this situation, you are telling us the contractor never came down and got a building application permit therefore you were not given those answers at the time you were paying him to do the work. Mrs. Rush said she didn't know what he did, they wrote out a contract, she wrote him and check and he did the work. Dave Pendley said if you drive down the street there are a few houses with carports. Chairman Duer asked since this applicant was turned in due to a complaint, does the City make any provisions for the 5 others that didn't get a permit, do they need to wait for a complaint or what happens to them? He said he is trying to understand the fairness because one person gets caught because someone complained against them, whereas some else gets off free until there is a complaint. Dave Pendley said we have to weigh it on a number of different fronts. One, we have to try to determine if the thing has been there for twenty years or twenty months. Also, many times people who come in to inquire about getting a carport will tell us about a neighbor who did the same thing without a permit, but more often than not they don't want to tattle on their neighbor because they ran into some difficulty on their own project. We regularly have to go back and tell people they are in violation. This happened a number of times this year already and Page 7 of 03/24/11 ZBA Minutes more often than not we are answering phone calls about people selling these houses and permits were not issued for these carports and conversions. Robert Housewright said what if she tries to sell this house would it raise a flag with the mortgage company? Dave Pendley said yes the way the mortgage companies are now it would definitely raise a flag with them. John Pitstick said the City uses the discretion of how old the job is to determine the outcome. Chairman Duer asked if anyone wished so speak for or against the case to come forward. Tome Renton, 8005 Emerald Hills Way was sworn in and said she has lived at this address for 40 years. She asked if the city was requiring her to build a covered carport? Dave Pendley said this meeting was not to decide that, it is one of the possible remedies. Chairman Duer said the variance that she is asking is to have a variance to not have two covered parking spaces as the ordinance requires. Mrs. Renton said the driveway is very short and she has been driving around and there are a lot of the garages in the neighborhood that have been converted. She said the neighborhood is a pie shaped community that belongs to no one besides themselves. She discussed carports in other cities and building requirements. If a carport was required in backyard then there wouldn't be much room because of the short driveway. When they built in house there wasn't a sidewalk at that time. The City built the sidewalk after that time and if a car or pickup was parked under it, it would stick out. She said she does not think Mrs. Rush should have to build a carport and likes the house the way it is. There was a general discussion about the driveway and building a carport in the back. Chairman Duer asked Mrs. Renton when did she buy her house? Mrs. Renton said 1971 is when she bought it. Chairman Duer asked if they widened it since she moved in? Mrs. Renton said yes they have and that is why we have no yard, she believes they took about 10 feet. But it has become a major thoroughfare to Davis. Chairman Duer asked if anyone else asked to speak for or against? Page 8 of 03/24/11 ZBA Minutes There was a discussion about what the cards meant regarding for or against the case. Susan Rowden said she is against the building of the carport. James Rowden said he is against the carport. John Melatin said he is against the carport. Chairman Duer closed the Public Hearing and opened it up by the board for discussion. Jerry Henry said he seems to think there is some confusion about what she would be required to do. There is not a requirement to build a carport. She could build a real garage and remedy the situation. Dave Pendley said she could build a carport, build a garage or she could put the garage back into service. John Pitstick asked for explanation where a carport would have to be built. Dave Pendley drew an example on the power point of where it would need to be. Chairman Duer asked about the green space requirement. Dave Pendley said unattached accessory structures do not count against the open space in the back yard, they are ignored. If it is attached, it takes away from the green space but judging on what he sees, there doesn't seem to be an issue. Robert Housewright asked how many houses on the street have the garage conversions? There was a discussion about the three across the street and several others on the street. Chairman Duer said he noticed we used to see carports go up everywhere. Also of the homes in the last 15 years have done what this homeowner has done and enclosed the garage. John Pitstick said he wants to clarify; it's not that we don't allow carports; they are allowed behind the front building line. Chairman Duer said when we upgraded all the ordinances, they have been upgraded to where it is too expensive and construction quality is hard to comply with. Mrs. Rush said she turned in copies of other houses on her street and around the city and didn't know why they were not being shown. Chairman Duer asked for copies of what she turned in. Page 9 of 03/24/11 ZBA Minutes Dave Pendley said we only present the facts; it is up to the applicant to present their case. Robert Housewright asked Mrs. Rush if she asked the builder to build a carport since he didn't do the right thing. Mrs. Rush said he can't build one there. She said she was told when she had met with Staff earlier that because of a mature tree that would have to be taken down; it probably would qualify for a variance. She has not asked for an estimate about a carport. She said it would be very expensive with all the requirements for a retired teacher to have to do. Robert Housewright said he is not asking her to encumber that expense, but if the contractor was willing since he did not do the right thing and pull a permit for the job. Dave Pendley said Staff takes it very seriously not to paint ZBA into a corner. The tree came up in conversation that is sometimes can be a reason for a hardship, but we make sure we do not say that ZBA will give you a variance. Jerry Henry asked if there has been any determination by the City if a two car carport can be built without removing that tree? Dave Pendley said it would be close. The explained that is the carport is put in the back then pouring concrete could affect the life of the tree or other issues unseen. There was a general discussion about the distance of where the carport would go, about the tree removal and distance of the driveway. Chairman Duer asked if anyone was living in the house now? Mrs. Rush said yes, her granddaughter is renting the house from her now but she owns it and pays taxes and insurance on it. Bill Gibbs motioned to approve the variance based upon the hardship of removing the mature tree and hardship created by a fraudulent contractor who did not properly get a permit that he doesn't believe is the fault of Mrs. Rush. He asks that the City to inform the company who did the work that their ability to do work in the City be restricted again. Chairman Duer said he can't believe that a contractor in today's times doesn't know the basic one know that he has to get a permit. If the excuse was it was grandfathered then it doesn't explain not coming in a getting a construction permit. It almost seems intentional and how does the City stop this. Dave Pendley said there are some things we can and will do. His registration will be suspended tomorrow and he will not be able to pull a permit. He would have Page 10 of 03/24/11 ZBA Minutes to talk to us in the future and try to figure out now to make this right. In cases like this the word gets out that you need a permit and City Council passed a revision to the building permit fees about a year ago that tagged on up to $500 penalty if you don't get one ahead of time. There is also the ability to double the permit fees for no permit obtained. We used those on our worst offenders. Could you add to the motion to inspect it? Bill Gibbs added to the motion that an inspection would be required and if anything deficient found would have to be repaired or remedied. Chairman Duer stated that because this is somewhat confusing, he wanted to clarify some things. All the people who said they were against were against a carport, not against waiving the two car covered parking requirements. He asked if that was a fair statement to say? Brian Crowson asked if this would make precedence for future cases? Dave Pendley said with the inclusion of the tree hardship it is not necessarily a presidency you are establishing, you have a unique situation with the tree sitting there. John Pitstick said the evidence presenting today could be used against ZBA in future cases. Fonda Kunkle asked if the widening of Emerald Hills Way affected it all? Chairman Duer said if they had not taken so much of the street off there would be a possibility of a little leeway as far as carport positions. Bill Gibbs said he is concerned with the fraudulent activity with the contractor that they need fair warning about doing this again, a suspension of license is in order. Dave Pendley said our ordinance is pretty broad and allows us to suspend his registration if he does something that damages or harms a citizen of NRH. Mrs. Rush said the owner of the company said he was in the hospital on deaths door when this happened and had nothing to do with it. The person in charge did some things that were not legal at that time. DENIED Chairman Duer seconded the motion by Bill Gibbs BA 2011 -02, after the vote, three members voted to approve the variance; two votes against the variance, the variance did not pass (3 -2). (Chairman Duer, Fonda Kunkle, Bill Gibbs voted to approve the variance, Jim Kemp and Jerry Henry voted against the variance). Mrs. Rush said please tell me what just happened. Page 11 of 03/24/11 ZBA Minutes There was a general discussion about the motion. Mrs. Rush asked to back to the podium and said she wants to know what just happened why? She asked about the vote. Chairman Duer said the vote for the variance to pass would require 4 affirmative votes to get it to pass to not require two car covered parking. That did variance did not pass. Mrs. Rush asked who did not vote for it. Chairman Duer said it was 3 -2, but state statute says it requires a super majority vote. Mrs. Rush asked why did they vote against it? What is the reason to not vote for the variance? Chairman Duer said he would ask City Staff that question. John Pitstick said they don't have to say, they just voted. They take the evidence, the Public Hearing was held and they vote. Mrs. Rush said they base it on something, why would you not vote for the variance? To make it hard on me, she stated? Chairman Duer asked the members if they wanted to say. Jerry Henry said he doesn't have a problem with it going on record that he feels this situation can be remedied and be in compliance with what the City Council has voted as the code and ordinances for this subdivision. If it couldn't be remedied then the hardship would say so and he would have voted for it. It can be remedied and had the permit be obtained, they same remedy was still available then. Mrs. Rush asked what would his remedy for this be? Jerry Henry answered to put a two car parking facility whether a garage or carport in the backyard. Mrs. Rush said take down the tree, take up all that space, all that expense to me. Jerry Henry said that would be your decision. Mrs. Rush said why would you even care? Jerry Henry said because are here to uphold the ordinances of this City. Page 12 of 03/24/11 ZBA Minutes Mrs. Rush said then you should apply it fairly all over North Richland Hills and not just at 5520 Finian Lane. I think you are just being mean spirited. Chairman Duer said that any decision this board makes can be appealed to a state district court because we are a quasi - judicial board. ADJOURNMENT There being no other business, the chairman adjourned the meeting at 7:20 p.m. Chairman al Tom D/ 11, � Page 13 of 03/24/11 ZBA Minutes