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HomeMy WebLinkAboutZBA 2013-08-22 MinutesMINUTES OF THE WORK SESSION MEETING OF THE ZONING BOARD OF ADJUSTMENT CITY OF NORTH RICHLAND HILLS, TEXAS AUGUST 22, 2013 The meeting was called to order by Chairman Tom Duer at 6:30 p.m. PRESENT AT THE MEETING WERE: PRESENT Chairman CITY STAFF Director of Planning & Dev Building Official Senior Planner Recording Secretary City Attorney Tom Duer Jim Kemp Fonda Kunkle Jerry Henry Brian Crowson Bill Gibbs Robert Housewright John Pitstick Dave Pendley Clayton Comstock Katasha Smithers Steve Wood 1. Administration of Oath of Office to Board Members Kemp, Housewright, Duer and Henry Clayton Comstock said Jim Kemp, Robert Housewright, Tom Duer, and Jerry Henry were reappointed by City Council in July 2013. He conducted the Administration of Oath of Office to each of the Board members. August 22, 2013 ZBA Meting Page 1 2. Election of Officers to the Zoning Board of Adjustment. Jim Kemp nominated Tom Duer for Chairman, seconded by Jerry Henry. The nomination carried (5-0). Robert Housewright nominated Jerry Henry as Vice - Chairman, seconded by Jim Kemp, the nomination carried (5-0). 3. Discussion of Item on the August 22, 2013 Zoning Board of Adjustment Regular Session Agenda. Clayton Comstock presented the item for discussion for tonight's meeting. The Work Session adjourned at 6:50 p.m. August 22, 2013 ZBA Meting Page 2 MINUTES OF THE MEETING OF THE ZONING BOARD OF ADJUSTMENT CITY OF NORTH RICHLAND HILLS, TEXAS AUGUST 22, 2013 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 Fonda Kunkle Jerry Henry Brian Crowson Bill Gibbs Robert Housewright CITY STAFF Director of Planning & Dev. John Pitstick Building Official Dave Pendley Senior Planner Clayton Comstock Recording Secretary Katasha Smithers City Attorney Steve Wood 3. PLEDGE OF ALLEGIANCE Tom Duer led the Pledge of Allegiance. 4. CONSIDERATION OF MINUTES FROM THE AUGUST 23, 2012 MEETING Jim Kemp motioned to approve the minutes from the August 23, 2012 meeting. The motion was seconded by Jerry Henry and approved (5-0). August 22, 2013 ZBA Meting Page 3 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 % 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. 5. BA 2013-02 A PUBLIC HEARING TO CONSIDER A REQUEST FROM ELECTRIC GUARD DOG, LLC FOR A VARIANCE AND INTERPRETATION REGARDING ELECTRIC FENCING AND FENCE HEIGHT ON LOT 3, BLOCK 1, RANGER CROSSING ADDITION, 5900 RUFE SNOW DRIVE, AS SPECIFIED IN SECTIONS 118-873 AND 875 OF THE CITY OF NORTH RICHLAND HILLS CODE OF ORDINANCES. Chairman Duer called the applicant forward and swore him in. Curtis Neal from Service King Collision Repair, came forward with a request for variance and interpretation regarding Lot 3, Block 1 in Ranger Crossing addition, 5900 Rufe Snow Drive in North Richland Hills. He has been with Service King since 1999 and is the facility manager for Service King. He stated that the fence had stopped a lot of theft, the cyclone fence has been cut and nobody came through the electric fence after that. Average about 5-6 times a year and most all of the fence being cut is on the railroad side. The reason why we have the fence is to protect the customer's cars from theft/vandalism. He feels as if the fence makes a huge difference from stopping the theft/vandalism in the lot. Chairman Duer asked what is the main difference between your business working on cars that are owned compared to a new car dealership where you do not see a lot of fencing around that area? Curtis Neal stated that most of theft is caused by breaking in to vehicles where there are more valuables, whereas new car dealers, it is a new car. There is nothing there besides what belongs to the car. We have tried to have the customers to remove the majority of their property out of their vehicles. Our cars, a lot of the time, will be in the same area longer than a new car to do the repairs. Chairman Duer asked, in your impression, are you having theft problems of breaking into your building or mainly into cars that are there? Curtis Neal said here we had both and we have an alarm on the building and on the fence. We are seeing more in the lots, not only here but in different areas of Dallas/Ft Worth. I handle 24 stores, we have 6 stores that have the electric fence and they have stopped a lot of theft. Chairman Duer asked in what other cities are the stores located? Curtis Neal said Mesquite, Addison, Garland, South Fort Worth near White Settlement Rd., and Irving. August 22, 2013 ZBA Meting Page 4 Chairman Duer asked how long has this Service King been at this location? Curtis Neal said I started working there in 1999. Chairman Duer asked if Service King was the original tenants of that building? Curtis Neal said no, Mr Lennox bought the building, it was a strip center. There were 4-5 businesses in the center. Chairman Duer asked so Service King has been at that location since 1999? Curtis Neal said since the later part of 1999. Is when I went to work for them and when we opened the doors. Chairman Duer asked if they were the applicant that applied for the electric fence in 2000? 1 have to assume you were. Curtis Neal said yes. Jerry Henry asked so you have had break-ins at that location? Curtis Neal said yes sir. Jerry Henry asked in the cars and in the offices? Curtis Neal said yes sir. Brian Crowson asked when was the fence installed? Curtis Neal said it was there when I started working there. Brian Crowson asked so it was installed in 1999 and the permit was applied for in 2000? Curtis Neal said it was up in the last part of 1999 and early 2000. That is when I went to work there. Chain link was there but the electric fence was not. Brian Crowson asked when was the electric fence put up? Curtis Neal said he had no clue when the electric fence was put up. I went to work for them in November of 1999. Brian Crowson asked after that is when the electric fence was installed? Curtis Neal said I am not sure about that, I am not sure if it was there when I got there or afterwards. Michael Pate from Columbia, SC came forward and was speaking on behalf of Electric Guard Dog. Tonight we are looking at interpretation and there is no question that the August 22, 2013 ZBA Meting Page 5 city doesn't allow the use of electric fence. The city staff says they allow the use of electric fences in livestock operations so we know the city allows the use of electric fences, it says it in the ordinance 118-875(3). `This shall not prevent the use of approved of listed of equipment of charge of single strand of wires,' so the city already allows electric fences. Our contention is that they don't prohibit electric security fences. The city staff argument with me, in all the meetings with them and as well as my application has been that the electric security fence we have is capable of causing harm and death. That is the argument that the City has been using with my electric fence. My argument is that it does not. I have 2 documents in front of you right now and these documents were also presented to the City Staff. The first is from University of Wisconsin; Dr. Webster was the pre -imminent specialist in pulse electricity, which this is what this is. So let's explain pulse electricity, a lot of folks out here know that livestock fences are, they pulse. You have a 12-volt battery that builds a charge over about a second and a half, it releases that charge down the line. It takes about 3-4 ten thousandths of a second to run a loop around that place and bring it back to my alarm. So it is a pulse electrical charge. It is never hooked into the 110 or the infrastructure, ever. Dr. Webster is telling there in the report that it is a safe product and not only is it safe, it is safe for a multitude of different ranges of folks. Although he measures animals from 5 kilograms up to 100 kilograms. You are looking at about 12 Ibs to over 200 lbs. You are looking at fairly robust animals and some small animals that he has been charging up with pulse electricity. Now the second document you have is from Met labs. Met labs is a nationally recognized testing laboratory which is approved by OSHA. I think everyone knows who OSHA is. National recognized testing laboratory, there are about 14 approved in America. Most people are familiar with UL. I used Met labs because they are near my area. They have taken Dr. Webster's research, used that and the international standards to test and label the equipment we have to be safe that it will not cause harm or death to anybody. So our contention here is that the interpretation is not about electric fences with all due respect to City Attorney and City Staff it is about the harm and death aspects and we do not do that. It is very simple, it is a pulse electrical device that is powered by 12-volt battery, never hooked up to the infrastructure so it cannot harm a soul. Now going up to 118-875(2) are looking there where the particular devices like security fences might be allowed. We are one of those particular zones so we think we ought to be allowed to put up the electric security fence. It has been there since 2000 in my records, I am not sure the exact month but around the year 2000. 1 will go back to a legacy issue here. We bought this company in 2007. Chairman Duer asked what company are you talking about? Michael Pate said the Electric Guard Dog. We bought the Electric Guard Dog in 2007 and did a great job with dollars and cents, profit/loss, balance sheets. Had we did a little better job in researching compliance we would have paid a little less money for it. So after we got involved in the company after a while, say the first 6 months, we have been inundated by requests for permits. We didn't know what to do, so they basically took me and ran me out everywhere west of the Mississippi except for South Carolina and Alabama. My colleague works the east trying to clean up some of the mess the former owners created with the permitting. So I came into the city and requested the permit. Going into the height; we do need a variance for the height, the height is critical for the operation of the security fence. The reason being if we are sitting there at 6ft and 3 strands of barb wire and I am down at 8ft someone can simply stand on top of the barb August 22, 2013 ZBA Meting Page 6 wire and could put a blanket up there. Step over and drop in and they can rob them blind. If I got those extra 3-4 strands up there, no one will stand up there and catapult themselves over the top of the fence. If they do when they break out I am going to set the alarm off because basically what I am also is an alarm, I am anti -theft device because I am warning people not to touch it. Caution 7,000 volts, you fool don't touch the fence. I also guard my fence with a perimeter fence, I am always behind a perimeter fence. So some innocent folks walking aren't going to hit my fence even though I am a safe device. So we do need that 10 ft up there because it does help the effectiveness of the electric security fence. In that respect, yes we do need a variance for that, the interpretation ought to go our way. Brian Crowson asked do you want 10 feet of chain link and barb wire and 10 feet of the electric fence? Michael Pate said no sir, we just want 10 feet of the electric fence. The permitted chain link barb wire is still there we just need to be a little bit taller than that so no one can hurdle over it. Brian Crowson asked what is the heighth of the chain link fence? Michael Pate said it is 6 feet and 3 strands of wire straight up vertical. Actually about 7 feet. We are actually 10 feet, I went by that site and the fence is 10 feet tall. Chariman Duer asked the chain link fence? Michael Pate said no the chain link is only 7 and the electric fence is 10 feet. Robert Housewright asked that is your electric fence that is in place now? Michael Pate said yes it is. Brian Crowson asked what height is that currently? Michael Pate said it is 10 feet. Brian Crowson asked so you're not going to do anything different, you just want to be permitted? Michael Pate said if we aren't going to get the variance for the height, we will have to cut it down to 8 feet. The interpretation we think it ought to go our way. Because the electric fences are allowed in the city right now and there is no prohibition up there in this particular code section that prohibits the use of electric security fences. All it says is no harm, no death. We have that right here... no harm, no death. Robert Housewright asked so who's liable if someone were injured by it? The City? Michael Pate said no it is not, the liability is mine. Let me tell you why. First of all, I own the fence. Service King, I provide them a security service on a contractual basis so everything is on me. I erect the fence, I monitor the fence as an alarm, I am a registered August 22, 2013 ZBA Meting Page 7 alarm company in Texas, I keep it in good working order and I maintain that fence. The fence is mine and I own the fence. I do not sell it to anybody. So all the liability is on me. I have a 6 million dollar policy; I can identify that to the city if they request to do that. I have done that in many other places too. Robert Housewright asked is that the city's understanding? Chairman Duer asked can the City be held liable? Steve Wood said no the city cannot be held liable for any harm that might come to somebody if we granted the variance tonight. I do have a question for you though, I am looking at your application and it says that the safety of these devices is unparalled as no deaths or serious injuries have occurred since inception of the UL 69 in 1939. Later Bill Voelture of OSHA maintained a database of accidental deaths and no incidences have been reported. Now the standard that is set forth in our ordinance is much lower than that. It is not death or serious injury, it's just harm so do you have any studies or expert reports that would say if somebody goes up and touches this fence they are not going to be harmed in anyway? Michael Pate said no and that is what Dr. Webster goes through is that the electrical pulse will not harm you and it won't stop a pacemaker, not going to stop your heart, it won't burn your skin, it will not harm you. Jerry Henry asked there is a disagreement on that even with the documents that you presented. If I am looking at this correctly your ratings run for 70 miliamps to 500 milliamps and you have 500 milliamps in service, you have pictures of that. And on the front page of the University of Wisconsin at 100 milliamps, you have ventricular fibrillation and the things that I am able to read say it also depends on the conditions. The persons physical condition, how much body fat, how much moisture in the air, if they are wet when they touch it. I don't see anything here that says you don't cause harm. Michael Pate said that is probably not written in there, let's go to the 100 milliamps is on A/C power. It is pulsed. 100 milliamps is the standard that is used for A/C power there before they go to pulse electrical power, which is completely different so you can have more amps, more volts and not hurt anybody, not harm anybody and not cause a death. That is because of the short time, three ten thousandths of a second, that the pulse is actually on the line. You take a volt meter and try to read it. You cannot even read it on a volt meter, it will peg it right out. So you really don't know what the pulse is unless you get an oscilloscope, you have to use that scope to measure this. If you want to get $50,000.00 and put an oscilloscope up there we can measure the pulse that is actually on the fence. Chairman Duer asked I have a question for everybody in this room with the show of your hand, how many people ever experienced a pulsating electric fence for livestock? You turn loose real quick but if you have enough guts and hold onto it and it goes off and it hits again. August 22, 2013 ZBA Meting Page 8 Michael Pate said Mr. Chairman that is a great point. Point being is that we operate under the International Standard 60332-5-76 which states that you have to operate at a specific energy capacity of 5 Jewels whereas the livestock fencing is operating at 60 Jewels of capacity. We operate at less than half the average capacity of livestock fencing. So we can only operate at 5 Jewels so all my energizers operate 5 or 2 -1/2 Jewels depending on the length wire you have to run a pulse through. I cannot operate over 5 Jewels. Brian Crowson asked a rainy day, standing in a puddle, is there any difference between? Michael Pate said it is a good ground. It will give you a better ground absolutely. Chairman Duer asked now change that to barefoot? You have a different scenario? Michael Pate said the better the ground the better going to run the power through somebody. The larger someone is the better it runs through compared to someone skinny. Brian Crowson asked when you say better the ground you mean the better the shock? Michael Pate said no basically what the electricity is doing is running the ground, so when I say ground I am meaning the power, the electrical current is running through the body to the ground so it is being grounded much more efficiently if you are barefoot or if there is water there. If you have on rubber shoes or heavy soul shoes it is not going to ground efficiently and you are not going to get as powerful of a shock. Chairman Duer asked looking at the pictures that we got, the cars that are parked at the property, on the concrete what is keeping those people, customers from being shocked when all the gates are closed? When someone is inside the property I was told that before the gates open it disconnects and when it closes it connects back. Michael Pate said it is a continuous circuit so if the gate opens it will drop the circuit from the point where the power is. I do not think they run that thing through business hours. Chairman Duer said they do not have it on. Michael Pate said it is not a live fence right now this is just a shake fence right now. It is not fully charged, we have the signs on it but it runs on 12-volts and does not have the charges up on it right now. Basically it is an alarm fence right now. Chairman Duer asked so it is an alarm fence so is the alarm fence so is the alarm side of the fence running on A/C? Michael Pate said no. Chairman Duer asked so everything is always done on DC? August 22, 2013 ZBA Meting Page 9 Michael Pate said yes. Chairman Duer asked whether it be the shock effect of the fence or the alarm effect of the fence? It is all DC? Michael Pate said correct. I have a 12-volt battery powered by solar panels. Bill Gibbs asked if we were to grant this on both issues, will you be changing anything that is there now? Michael Pate said no sir. Bill Gibbs asked it will stay exactly as it is? Michael Pate said yes it would Brian Crowson asked other Service Kings you do business for in other cities, were these permitted okay, defined okay as are in line of operations? Michael Pate said yes, basically what we did was attack the city's, I looked where I had most business at -risk and went there first. So the first place I went was Charlotte, I got 332. Basically grew organically. Charlotte is 70 miles from us, big city, grew there but that being said in Texas; Houston actually had to change the code. In Houston and San Antonio. Brian Crowson asked why did they change it? Michael Pate said they actually had a prohibition against electric security fences. It actually says that in their code. We prohibit electric fences in any zone. Brian Crowson asked so they changed this prohibition. Michael Pate said Austin allows use of electric fences and never had to change the code. Dallas allows the use of electric security fences and never had to change the codes there. Fort Worth allows the use of electric security fences through a variance process and they got tired of seeing me after the 9th or 10th time and they changed their code on their own to get me out of the variance process over there. I got administrative relief of this type of forum in Euless. Euless basically declared me an alarm system and allows me to operate there. Grand Prairie as well so all around here we are operating. Brian Crowson asked so this is not new to you? Michael Pate said no I do this every day. Chairman Duer asked now the maximum voltage of the fence is 12 vollts, what is the maximum amps? Michael Pate said they are 3 to 7. The voltage on the fence goes to 7,000 volts. The power source is a 12 volt battery. August 22, 2013 ZBA Meting Page 10 General discussion between Board Members Robert Housewright asked have y'all had any issues or complaints/lawsuits filed because of your fences in other cities? Curtis Neal said no sir Brian Crowson asked on your electric fence did you say you had it posted somewhere of "danger high voltage" or anything like that? Michael Pate said the standards we operate under require us to have a sign every 60 feet that says "Caution Electric Fence". We actually have it in 2 languages here. Spanish and English, it is on both sides so we flip the signs over as we go. In Houston when we passed the ordinance, I actually had to put it in Vietnamese there also. Louisiana and about 5-6 Parishes down there I have it in Arcadian. New Jersey and New York I have it in Russian and Estonian. It just depends on the local population of languages there what exactly I have to put on the fence. But it is marked, yes. Brian Crowson asked 60 feet is that everywhere you go? Michael Pate said every 60 feet, few more on the gate, 2 or 3. Two on the gate, one on each side or each panel of the gate and every 60 feet after that around the perimeter. Brian Crowson asked how big are they? Michael Pate said the size of the yellow pad, they are not really large. You have to be walking by this thing to really see it. You can't see unless you are pretty close to it. Brian Crowson asked are they reflective? Michael Pate said yes they are reflective. Chairman Duer asked Clayton Comstock to pull up the ordinances one more time. Chairman Duer speaks about the interpretation about the electric fence and speaks out loud. Any more questions for the applicant? No one came forward with questions. Chairman Duer asked if there is anyone in the audience that wishes to speak. No one came forward. He closed the public hearing and opened the discussion up with the board. General discussions begin about the interpretation. Chairman Duer re -opens the public hearing to ask questions. August 22, 2013 ZBA Meting Page 11 Michael Pate said the way we design it is that we alternate between a live wire and a ground wire so you actually have to have 2 wires to create a ground. So if you hit a live wire you can feel a pulse, you can stand there and just tap. You will miss it a couple of times, eventually you will hit it and you will feel it but you are not going to get the full the load unless you get a grip and 2 of them. Chairman Duer asked so if a body leans up against 2 adjacent wires, you are saying every other wire is a ground so you would get a shock? Michael Pate said yes you would. Chairman Duer asked even if your feet are not touching the ground or another pole? Michael Pate said no if you were totally off the ground, no. You have to have ground. Chairman Duer asked so in order for this to be a shocking type feel, you have to touch both wires while your feet are on the ground? Michael Pate said while your feet are on the ground it would very difficult to get any type of shock if you were in mid -air. Also if you hit the chain link, it will ground out through the chain link. Chairman Duer asked so the electric fence, you would have to be touching 2 wires with your feet on the ground to be shocking? Then why are livestock usually a single wire? How much is the pulse roughly? Michael said yes sir. The ones I have seen are much more powerful load on there. I was talking about the 5 Jewels of capacity. You are looking at 20, 30, 40 Jewels of capacity in much shorter pulses. 1.3 seconds on pulses. Chairman Duer closes the public hearing and opens up to discussion and motion by the board. General Discussion begins between board members. APPROVED Bill Gibbs motioned to modify the interpretation of Staff to allow the fence requested in Case BA 2013-02 subject to clarification by the City at the time the permit is issued that the fence is operating in accordance to the way it was represented to operate by the applicant at the August 22, 2013 Zoning Board of Adjustment meeting. Chairman Duer seconds the motion to approve. (4-1 vote) Jerry Henry voted against. Chairman Duer proceeds with the discussion of the height of the fence. Stating he is not crazy about that tall of an electric fence. It is an eyesore and I believe one of you gentleman stated that you would not mind cutting it down some. We have residents who live right across the street from there and those people have to see that every time they August 22, 2013 ZBA Meting Page 12 come onto Stardust off of Rufe Snow Drive. I personally would like to see it reduced back down to 8 feet. Brian Crowson stated as well that he personally would like to see landscaping that is hiding it. Chairman Duer asked Crowson what can you do with landscaping at 10 feet? Pine trees? Jerry Henry suggests that the police force would like to see through the fences instead of the landscaping in front of the fence. We have to wrestle with security at this site. Brian Crowson stated there are other deterrents and shrubs like the holly shrubs, I don't know how high they grow. Clayton Comstock came to the podium and begins to go over the ordinance of the height, Section 118-873. Bill Gibbs requests to possibly see greater height on the railroad track side, where it is not an eye sore. Chairman Duer re -opens the public hearing. Can you cut a couple feet off the 10 foot? Michael Pate said yes sir I can. Doesn't mean I want too but I can. I can rig it so it does that. I can break it up into zones out of 1 panel and run wires under the ground to basically get the 10 feet, 8 feet and run it right. Chairman Duer asked does it effectively change the benefit security -wise from 10 feet to 8 feet? Michael Pate said it does a little bit. If it is 10 feet tall all around, it is much more effective than having an 8 than 10 than 8 but I have lived with worse. Bill Gibbs asked if most of the break-ins occur on the railroad side? Curtis Neal from Service King approaches the podium and states that most of the break-ins in the exterior fence, cyclone fence, have occurred from the railroad side, halfway down the eastside. It is all towards the southeast. They break in through the chain link fence not the security fence. You can get in but you can't get out but the problem there, the ones that have got in, not at this location but the ones that have got in at other locations. The way they get out was to steal a car and run it through the fence. It is hard to jump back out. Brian Crowson asked to make the fence effective, one the chain link fence has to be shorter than the electric fence? Michael Pate said that helps a lot and in this case the 8 feet will be a little bit taller. I will have a strand or two up there so it will be a little bit taller. Also I reiterate this, right now August 22, 2013 ZBA Meting Page 13 it is not a charged fence, it is a 12-volt shake fence. So basically it is just an alarm. It is not charged. Brian Crowson asked is that your goal to do that? Michael Pate said that is why we are here is the electric fence because we have had it shut down to just basically an alarm fence so the only thing running through it right now is 12 volt and you cannot even feel it but if someone shakes it and runs up to it then I know something has happened there and I am going to set the alarm off. Brian Crowson asked you don't have any lights going off? Michael Pate said it is a clack in style alarm and I have an alarm on the property and silent alarm that goes back to Colombia, SC. I have a call list and who is number one on the call list I will call them first and I go right down the list until I find somebody. They can bring up a camera or they can go out there by themselves to see what is going on. Once we verified the alarm, we will call the police or we won't. Robert Housewright asked has the City received any complaints of the esthetics of that location? Clayton Comstock said no, not to our knowledge. We don't know about any esthetic issues from their neighbors. Robert Housewright asked were the neighbors alerted of this meeting tonight about this? And nobody is here? Clayton Comstock said correct. Keep in mind that the residential neighborhood was developed after this was already in place. Brian Crowson asked Curtis Neal what do you think about approving on your own as the representative of Service King to make it more pleasant for the neighbors to look at? Curtis Neal said they do not have a problem with that. Our main concern is protecting the vehicles that are in there. Brian Crowson asked that is something that you would consider on your own? Chairman Duer closes the public hearing General discussion begins about the height. APPROVED Jim Kemp denied the variance request regarding fence height on Case BA 2013- 02 due to no hardship. Jerry Henry seconds the motion to deny the variance. (5-0 vote) August 22, 2013 ZBA Meting Page 14 6. ADJOURNMENT There being no other business, the meeting adjourned at 8:20 pm. Chairman �rtiu/ Tom Duer August 22, 2013 ZBA Meting Page 15