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HomeMy WebLinkAboutZBA 2015-01-22 Minutes MINUTES OF THE WORK SESSION MEETING OF THE ZONING BOARD OF ADJUSTMENT CITY OF NORTH RICHLAND HILLS, TEXAS JANUARY 22, 2015 The meeting was called to order by Chairman Tom Duer at 07:02 p.m. PRESENT AT THE MEETING WERE : Present: Tom Duer Place 5, Chairman Jim Kemp Place 1 Brian Crowson Place 2, Alternate Fonda Kunkle Place 4 Bill Gibbs Place 6 Doris Elston Place 7 Absent: Robert Housewright Place 3, Alternate City Staff: Clayton Comstock Senior Planner Penny Peterson Assistant Building Official Debbie York Assistant Director of Neighborhood Services Dean Roggia City Attorney Cheryl Booth Recording Secretary 1. Discussion of Item on the January 22, 2015 Zoning Board of Adjustment Regular Session Agenda. Clayton Comstock presented the case for discussion at tonight's meeting. In November, 2014 the applicant came into the permit office to file for a Certificate of Occupancy to conduct a vehicle towing and onsite repair use. Because that use type has been discontinued at that site for greater than six (6) months, the "Automobile and Light Truck Repair" use is now classified as non-conforming. This evening's application is for appeal of the decision of the Building Official that the nonconforming use of "Automobile and Light Truck Repair" has been discontinued at 7245-B Boulevard 26. The legal authority granted and being contested by this case is found in Section 118- 153 of the Zoning Ordinance. The City of North Richland Hills requires a Special Use Permit (SUP) for "Automobile and Light Truck Repair" uses within the C-2 Commercial Zoning District. This means that all such existing uses are "grandfathered" as legal nonconforming uses and may continue operation. However, Section 118-153 of the Zoning Ordinance defines the discontinuance of a nonconforming use and the resulting loss of the use. The property in question is zoned C-2, which would require an SUP for "Automobile and Light Truck Repair" and other types of uses. January 22,2015 ZBA Meting Page 1 Section 118-153 outlines the applicant's appeal process. A nonconforming use shall be considered discontinued when such building or structure is or hereafter becomes vacant and remains unoccupied or out of use for a continuous period of six (6) months, or the special equipment and furnishings peculiar to the nonconforming use have been removed from the premises and have not been replaced within such six (6)-month period. The most recent Certificate of Occupancy for the suite was issued to G&A Auto Repair Services on November 3, 2006. A sixty (60)-day "Clean and Show" permit was issued August 28, 2013 and no new Certificate of Occupancy has been issued since that time. As such, the use of "Automobile and Light Truck Repair Shop" was deemed by the Zoning Administrator and Building Official to be no longer lawful within Suite B of the property without City Council approval of a zoning change or Special Use Permit. Other considerations for the Board are as follows: • There are already two (2) automobile repair businesses operating on the property at 7425-A and 7501 with a total of nine (9) operational bays. Parking and storage of vehicles awaiting repair as well as business vehicles already congests the property. Allowing this nonconforming use to continue without SUP approval would add six (6) additional repair bays, their associated customers' vehicles and additional employee and business vehicles to an already crowded property and will likely exacerbate code compliance issues with the one (1) property owner and three (3) separate lessors. • In this immediate vicinity, there are already a number of other auto repair and lubrication businesses. • The City of North Richland Hills is investing considerable resources in the area through the City Hall and surrounding City Point development. The 2011 redevelopment of the Quick Trip and the 2013 remodel of the Kroger grocery store show the investment and reinvestment being made by private entities as well. • The property owner has an alternative option of requesting approval of an SUP or a zoning change to RD-PD (Redevelopment-Planned Development) to accommodate and legalize the desired use. With this option, the Planning & Zoning Commission and City Council may favor the application if certain improvements were made to the property to bring it closer to conformance with today's development code and addressed the code enforcement issues of parking. Example improvements include outdoor lighting, landscaping, signage, building improvements, parking lot paving and striping, screening, etc. • The property owner has an alternate option to lease to other uses permitted by right within their current C-2 zoning. Examples would include auto inspection, auto lube, window tint, auto alarm, auto stereo, and auto upholstery. • Another option that the property owner has is to redevelop the site. The value of improvements shown by TAD (Tarrant Appraisal District) is far less than the actual cost of the land itself. The appeals process is outlined for the Board as follows: • The property owner has the burden of proof to establish either that a. the use was not discontinued for the time which would result in loss of nonconforming status or January 22,2015 ZBA Meting Page 2 b. that the loss of nonconforming status would amount to an unconstitutional taking, considering the original cost of the improvements to the property, their adaptability to conforming use, and the length of time the owners have had to recoup the capital cost of such improvements since originally constructed. In establishing a taking, the owner or user shall have the burden of proof of establishing such costs, non-adaptability and length of time required to capitalize the investment. The building is shown by TAD to be built in 1979. All improvements on the property (two separate buildings) have been appraised at $14,838 since 2009. The land has been appraised at $228,162 since 2009. The applicant has provided evidence of lease agreements dating back to 1983. Just for Suite B (six (6) out of fifteen (15) total bays) on the property, the owner received one thousand ($1,000) per month for thirty six (36) months or a total of thirty six thousand ($36,000) between June 1998 and May 2001. They also received $1,750 per month for thirty six (36) months or a total of sixty three thousand ($63,000) between November 2004 and October 2007. It can be argued that this and other leases for this and other suites undisclosed by the owner/applicant can show that the owner had thirty one (31)+ years to recoup the costs of the improvements for the now nonconforming use The Board shall have the power to: • Reverse the determination and order of the Building Official's decision if the use was not discontinued for the requisite time. • Sustain the determination and order of the Building Official, or • Modify the order by establishing a time for the non-confirming use to be allowed to be continued in order to amortize the capitalized investment in the improvements. The intent of the property owner or use shall not be considered in the appeal. If the property owner fails to meet his burden of proof, the action of the Building Official shall be sustained. The Assistant Director of Neighborhood Services, Debbie York, has been requested to be present this evening to address code compliance questions regarding storage of automobiles. Vehicles awaiting service must be stored properly on any property. Chairman Tom Duer requested clarification of a "Clean and Show" permit. Assistant Building Official, Penny Peterson responded that it is an electric permit pulled for the purpose of turning on the lights. This permit was pulled by the property owner or a representative of property owner. Brian Crowson inquired what zoning was at this property prior to the current C-2 zoning. Clayton Comstock responded that he was not sure, but it has been C-2 zoning since ti approximately 1999. It was zoned as C-1 prior to that since about the late 1980's. If a business were to build an auto repair business today, it would need to be within a C-2 zoning after SUP approval through City Council for that use. City Attorney Dean Roggia has been consulted in this case and is present this evening to answer any questions the board might have January 22,2015 ZBA Meting Page 3 Chairman Duer inquired about the appeal process of the building official determination. Clayton Comstock responded that tonight's appeal was the choice that the applicant selected as a first appeal option. City Attorney, Dean Roggia responded that there is a difference between a hardship appeal and a Building Official determination appeal. It is not uncommon for Building Official appeals to be brought before this board. There is a different standard, but not the same latitude when dealing with a Building Official decision appeal. This Board is a quasi-judicial board. So, it works best for the appeal to be brought before this Board. There are only three options for the Board to rule on this appeal. Clayton Comstock responded that if the ruling were to reverse the Building Official's determination due to finding that the use was never discontinued, an SUP would not be necessary to the City Council. _ l Chairman Duer asked for clarification as if the Board were to ignore the facts presented on this case if they were to find that the use was continuous. This is not a self- contained building. The building has a business operating in the front portion with no separation by walls with this suite B portion of the building. The front part of this building has continued operation. Chairman Duer asked for clarification about vehicle parking. If nine (9) out of fifteen (15) garage bays are already operational, what would be a realistic impact of six (6) additional operating bays? On a related note, why would an allowed car inspection use not cause the same parking issues as auto repair'? Bill Gibbs inquired about the parking issues as well Debbie York stated that a repair business cannot always get to the service right away which would create a need for parking spaces. Over-parking prevents right-of-way for emergency vehicles. Bill Gibbs inquired about the number of required parking spaces. Chairman Duer stated that if vehicles are parked improperly, they would be tagged. Brian Crowson inquired if the adjacent businesses have used all of their allotted parking spaces, and if are there enough parking spaces left for the business in question. Clayton Comstock stated that he could look that up within a few moments. Chairman Duer replied that it would really be the responsibility of the business owner to rent off-site parking spaces, as needed to accommodate needs. Brian Crowson inquired if there are handicapped spaces available in this parking area 2. ADJOURNMENT January 22,2015 ZBA Meting Page 4 3 ` The Work Session adjourned at 6:58 p.m. Chairman Tom Duer January 22,2015 ZBA Meting Page 5 1 MINUTES OF THE MEETING OF THE ZONING BOARD OF ADJUSTMENT CITY OF NORTH RICHLAND HILLS, TEXAS JANUARY 22, 2015 1. CALL TO ORDER The meeting was called to order by Chairman Duer at 7:02 p.m. 2. ROLL CALL Present: Tom Duer Place 5, Chairman Jim Kemp Place 1 Brian Crowson Place 2, Alternate Fonda Kunkle Place 4 Bill Gibbs Place 6 Doris Elston Place 7 Absent: Robert Housewright Place 3, Alternate City Staff: Clayton Comstock Senior Planner Penny Peterson Assistant Building Official Debbie York Assistant Director of Neighborhood Services Dean Roggia City Attorney Cheryl Booth Recording Secretary 3. PLEDGE OF ALLEGIANCE Chairma Duer led the Pledge of Allegiance. 4. CONSIDERATION OF MINUTES FROM THE SEPTEMBER 25, 2014 ZONING BOARD OF ADJUSTMENT MEETING Jim Kemp motioned to approve the minutes from the September 25, 2014 meeting. The motion was seconded by Fonda Kunkel and approved (6-0). Chairman Duer clarified that the Zoning Board of Adjustment, by state statute and in order for a variance or appeal to pass, requires what is classified as a super-majority approval. This equates to seventy five percent (75 %) affirmative vote of the Board members in order to pass. In other words, four (4) affirmative of the five (5) eligible Board members this evening are required in order for a motion to pass. January 22,2015 ZBA Meting Page 6 5. BA 2015-01 A PUBLIC HEARING TO CONSIDER AN APPEAL OF THE DECISION OF THE BUILDING OFFICIAL THAT THE NONCONFORMING USE OF "AUTOMOBILE AND LIGHT TRUCK REPAIR SHOP" AT 7425-B BOULEVARD 26 HAS BEEN DISCONTINUED UNDER THE PROVISIONS OF SECTION 118-153. Clayton Comstock presented the case for discussion at tonight's meeting. In November, 2014 the applicant came into the permit office to file for a Certificate of Occupancy to conduct a vehicle towing and onsite repair use. Because that use type has been discontinued at that site for greater than six (6) months, the "Automobile and Light Truck Repair" use is now classified as non-conforming. This evening's application is for appeal of the decision of the Building Official that the nonconforming use of "Automobile and Light Truck Repair" has been discontinued at 7245-B Boulevard 26. The legal authority granted and being contested by this case is found in Section 118- 153 of the Zoning Ordinance. The City of North Richland Hills requires a Special Use Permit (SUP) for "Automobile and Light Truck Repair" uses within the C-2 Commercial Zoning District. This means that all such existing uses are "grandfathered" as legal nonconforming uses and may continue operation. However, Section 118-153 of the Zoning Ordinance defines the discontinuance of a nonconforming use and the resulting loss of the use. The property in question is zoned C-2, which would require an SUP for "Automobile and Light Truck Repair" and other types of uses. Section 118-153 outlines the applicant's appeal process. A nonconforming use shall be considered discontinued when such building or structure is or hereafter becomes vacant and remains unoccupied or out of use for a continuous period of six (6) months, or the special equipment and furnishings peculiar to the nonconforming use have been removed from the premises and have not been replaced within such six (6)-month period. The most recent Certificate of Occupancy for the suite was issued to G&A Auto Repair Services on November 3, 2006. A sixty (60)-day "Clean and Show" permit was issued August 28, 2013 and no new Certificate of Occupancy has been issued since that time. As such, the use of "Automobile and Light Truck Repair Shop" was deemed by the Zoning Administrator and Building Official to be no longer lawful within Suite B of the property without City Council approval of a zoning change or Special Use Permit. Other considerations for the Board are as follows: • There are already two (2) automobile repair businesses operating on the property at 7425-A and 7501 with a total of nine (9) operational bays. Parking and storage of vehicles awaiting repair as well as business vehicles already congests the property. Allowing this nonconforming use to continue without SUP approval would add six (6) additional repair bays, their associated customers' vehicles and additional employee and business vehicles to an already crowded property and will likely exacerbate code compliance issues with the one (1) property owner and three (3) separate lessors. January 22,2015 ZBA Meting Page 7 • In this immediate vicinity, there are already a number of other auto repair and lubrication businesses. • The City of North Richland Hills is investing considerable resources in the area through the City Hall and surrounding City Point development. The 2011 redevelopment of the Quick Trip and the 2013 remodel of the Kroger grocery store show the investment and reinvestment being made by private entities as well. • The property owner has an alternative option of requesting approval of an SUP or a zoning change to RD-PD (Redevelopment Planned Development) to accommodate and legalize the desired use. With this option, the Planning & Zoning Commission and City Council may favor the application if certain improvements were made to the property to bring it closer to conformance with today's development code and addressed the code enforcement issues for parking. Example improvements include outdoor lighting, landscaping, signage, building improvements, parking lot paving and striping, screening, etc. The appeals process is outlined for the Board as follows: • The property owner has the burden of proof to establish either that a. the use was not discontinued for the time which would result in loss of nonconforming status or b. that the loss of nonconforming status would amount to an unconstitutional taking, considering the original cost of the improvements to the property, their adaptability to conforming use, and the length of time the owners have had to recoup the capital cost of such improvements since originally constructed. In establishing a taking, the owner or use shall have the burden of proof of establishing such costs, non-adaptability and length of time required to capitalize the investment. The building is shown by TAD (Tarrant Appraisal District) to be built in 1979. All improvements on the property (two separate buildings) have been appraised at $14,838 since 2009. The land has been appraised at $228,162 since 2009. The applicant has provided evidence of lease agreements dating back to 1983. Just for Suite B (six (6) out of fifteen (15) total bays) on the property, the owner received one thousand ($1,000) per month for thirty six (36) months or a total of thirty six thousand ($36,000) between June 1998 and May 2001. They also received $1,750 per month for thirty six (36) months or a total of sixty three thousand ($63,000) between November 2004 and October 2007. It can be argued that this and other leases for this and other suites undisclosed by the owner/applicant can show that the owner and thirty one (31)+ years to recoup the costs of the improvements for the now, nonconforming use The Board shall have the power to • Reverse the determination and order of the Building Official's decision if the use was not discontinued for the requisite time. • Sustain the determination and order of the Building Official, or • Modify the order by establishing a time for the non-confirming use to be allowed to be continued in order to amortize the capitalized investment in the improvements. The intent of the property owner or use shall not be considered in the appeal. If the property owner fails to meet her burden of proof, the action of the Building Official shall be sustained. January 22,2015 ZBA Meting Page 8 The City Attorney has been consulted in this case and is present this evening to answer any questions the board might have. The applicant Charles Clawson, 6219 Lake Ridge Road; Arlington, TX came forward to present on behalf of Mrs. Janell Scott. Chairman Duer swore him in under oath. The applicant is contesting the determination by staff of the use being discontinued and is arguing that the property owner had intent of reoccupying the space with the nonconforming use. Applicant provided three (3) lease agreements dating back to March 1983 to show that the building was originally built as an auto repair facility and has continued to be leased to various auto repair operators with the exception of vacant periods between tenants. The facility has an existing tenant at 7245 Boulevard 26, at one end of the building, occupying an office and three (3) service bays. The remainder of the building has an office and six (6) service bays. The last lease payment was received in 2013. The lessor entered into bankruptcy proceeding and maintained a legal hold on the property into 2014 before the applicant was able to regain control of the property. In June, 2013, the property went before the court. The judge gave the tenant ninety (90) days to continue operations. After that time, the Clean and Show permit was submitted. After that, the tenant declared bankruptcy. After six (6) months of cleanup (necessary due to the lengthy lease period), a new tenant was denied a Certificate of Occupancy permit. The property owner has been attempting to re-lease the property as evidenced by the signs in the windows (as has been the case with any tenant vacancy). The applicant has never shown any indication of intent to abandon. The property was never boarded up or suffered any major change or leased to any other type of use. The property was originally built to all codes and ordinances and only became a non-conforming use due to actions beyond her control. City Council has implemented an SUP process, as did the City of Arlington for auto repair in a C-2 zoning district. This case is unique. The City has been provided with Texas landmark court cases that establishes the test required to show abandonment as "1-an intent to abandon; and 2-some overt act or failure to act that carries the implication of abandonment". The court also said that "temporary discontinuance of a prior nonconforming use will not of itself show an abandonment to preclude resumption of the use, even if the discontinuance existed over a considerable period of time." It is not the applicant's fault if "automobile repair" use is saturated in that area. The applicant wishes to show evidence that her actions have never indicated an intent to abandon. The applicant, as of time of this application submission, had not received written notice that a loss of nonconforming use with an order that such use is no longer lawful. The applicant had been proceeding in good faith and without knowledge that there was an issue with the use. The applicant has a tenant in waiting and would like to re-lease to an "automobile repair garage." The applicant wishes to present that a hardship exists as the building was built as an automobile repair facility, with a portion of the building currently dedicated to such purpose. Permitting lease of only a portion of that building's } available service bays places an undue burden on the applicant. Brian Crowson inquired for clarification that the intent to abandon test applies to the land owner, not the tenant. Mr. Clawson responded that over seventy percent (70%) of the building is occupied. There are for lease signs in Suite B. Suite B area has been vacant for six (6) months. The building was built for automotive repair use He stated that there are no dug-out January 22,2015 ZBA Meting Page 9 pits in this facility to be used for oil changes. The prospective lease is not really a towing operation, as portrayed. They actually repair trucks at the place of breakdown. He stated that they will not be doing any towing operation at this Suite B location. Mr. Clawson stated that notification was received yesterday, on January 21, 2015 that Suite B has become a non-conforming use. Mr. Clawson explained that he has worked in the past for the City of Arlington. He believes the City of North Richland Hills to be remiss in failure to communicate to the property owner that they were in jeopardy of losing conformity use status. His client could have asked the existing client in Suite A to take steps to occupy Suite B as part of his automobile repair operation. His client has not had any intent to abandon the non-conforming use at this property. His client is trying to work with the other tenants to ensure that parking is compliant on the property. Leads on leasing the property have been few in that the lease signs are not very visible. Brian Crowson inquired about the time period during which no rent was received. Mr. Clawson responded that no rent was received from June 2013 through December 2013. Court gave ruling in June 2013, whereby they were given another (ninety) 90 days to occupy. The property owner received possession of the property about September 2013, which was when the Clean and Show Permit was submitted. Bill Gibbs inquired if it is required by the City to send notification to a property owner when a use becomes non-conforming. { City Attorney Dean Roggia responded that the Building Official, by ordinance, must notify the property owner / end user if a use is non-conforming. Certified mail of such notification was mailed on January 16, 2015 and received on January 21, 2015. The purpose of the notification is to ensure that all parties are provided with appropriate notice. As all parties are present at this evening's appeal, having had adequate time to respond, such purpose was properly executed. Bill Gibbs inquired if is a legal requirement that the applicant receive notice prior to the time frame of non-conformity. City Attorney Dean Roggia responded that it is not a legal requirement, although it would have been nice to let the property owner know. Clayton Comstock responded that the intent of the letter was two-fold; to provide legal notification of non-conforming use and to respond to request for appeal. Chairman Tom Duer opened the Public Hearing at 07:32 p.m. Being no additional comments, Chairman Duer closed the Public Hearing at 07:33 p.m. City Attorney Dean Roggia clarified that intent or use shall not be a consideration in the determination of this appeal. There is no statutory requirement to show intent to abandon a non-conforming use Chairman Duer opened up the floor for discussion by the Board. Chairman Duer clarified that this is a single building with multiple tenants. The front of the building has January 22,2015 ZBA Meting Page 10 been used for automobile repair. Were this a self-contained individual business that had closed or became non-operational, he might feel more comfortable in granting the appeal. Were an approved C-2 zoning tenant to occupy Suite B, the business would not necessarily fit in with the other businesses in this area. The pictures are showing that none of these six (6) bays have been in use. He believes that there was not intent by the property owner for these bays to not be in business. After gaining possession, the property owner had to invest money to get it back into operating condition. Brian Crowson stated that he is ineligible to vote as his is an alternate board member position. There are enough voters this evening for a quorum. Bill Gibbs stated that he believes that the Board only has an option to sustain the ruling. Due to the complexity of this case, an SUP is appropriate. Due to the nature of this application, hardship is not a consideration in the appeal. Chairman Duer reiterated that a motion would need to be made to approve or to deny the determination. Bill Gibbs inquired if the Board only has the ability to sustain. City Attorney Dean Roggia stated that the verbiage would be to sustain or to reverse the determination. To sustain would be to uphold the decision of the Building Official. MOTION FAILED Bill Gibbs motioned to sustain (to uphold) the determination and order of the Building Official regarding non-conforming use for BA 2015-01. Doris Elston seconded the motion. The motion failed a super majority ruling (3-2). Tom Duer and Fonda Kunkel voted against. Brian Crowson inquired if one of the voting Board members had the ability to abstain. Chairman Duer stated that a Board member could abstain if there was a conflict of interest in the case by one of the five (5) voting members. City Attorney Dean Roggia responded that he doesn't believe that one (1) Board member could sustain to allow an alternate to step in and vote. MOTION FAILED Fonda Kunkel motioned to reverse the determination and order of the Building Official regarding non-conforming use for BA 2015-01. Chairman Tom Duer seconded the motion. The motion failed a super majority ruling (2-3). Jim Kemp, Bill Gibbs and Doris Elston voted against. Chairman Duer asked for clarification from the City Attorney. City Attorney Dean Roggia explained what the Board must utilize as the burden of proof in this appeal case. The burden of proof is a preponderance of evidence. That would mean it is more likely than not that the Building Official was mistaken or it is more likely January 22,2015 ZBA Meting Page 11 than not that the Building Official made the right call. When you weigh that in your mind, where do you arrive at? Chairman Duer inquired if it could be a Board Member's feeling that the Building Official, by interpreting to the letter of the law, was not interpreting the intent of the law? Attorney Dean Roggia responded absolutely. Brian Crowson stated that the question becomes if the property was vacant or not. He stated that it appears to have been shown by the City that the property in question has been vacant. Chairman Duer inquired what is the definition of vacant'? Brian Crowson stated that according to the City's Certificate of Occupancy, the space t has been vacant. Chairman Duer inquired who decides how to divide the building into the respective portions, the tenant or the land owner? There was not a survey done. With a continual, confluent building, how and why does it get divided up? Clayton Comstock responded that a Certificate of Occupancy application is issued for a certain square footage of a building. That is the definition of the area for that occupancy. A building would already be separated into different suites. If an applicant comes in with a request to combine two (2) suites, that area would be relabeled and addressed at the time of the issuance of a C.O. The C.O. for Suite A has not changed use for however long it has been there. Suite B has changed use by discontinuing services in that square footage. Chairman Duer inquired how commercial suites are handled? Clayton Comstock responded that if there is a partitioned wall, that wall would define a "suite area." If there is an open concept, that is defined as a single area. Fonda Kunkel stated that she can't get past the fact that this space has been doing auto repair since 1979. That business has been there paying property taxes for the City for all of that time. Chairman Duer stated that the property owner has still been paying property taxes on property value of two hundred fourteen thousand ($214,000). They still have expenses for that property. They are not trying to reinvent the wheel, only to continue the operation that has been continued for so many years. Brian Crowson inquired what the neighborhood is commenting on this property. Are there complaints about parking or unsightly property? Assistant Director Debbie York replied that the property owner reset a dilapidated fence in response to a letter from Code Enforcement. January 22,2015 ZBA Meting Page 12 Brian Crowson commented that while he was a police officer, they took a lot of car burglary reports there. Debbie York stated that the City has not been receiving many resident complaints. The property owner does the minimum upkeep. That property is grandfathered to allow non- conforming landscaping and non-conforming open dumpster area. Chairman Duer inquired about what type of requirements would be needed regarding improvements to that property. If a variance was approved this evening, could it be part of the appeal variance to require specific improvements to the property? City Attorney Dean Roggia responded that these questions are not appropriate for tonight's appeals approval. But such questions would be appropriate to apply towards a ff Special Use Permit application process. Clayton Comstock clarified that sixteen (16) parking spaces are required per code based upon the entire building size of seven thousand nine hundred and ninety (7,990) square feet. One (1) parking space per five hundred (500) square feet is the minimum code requirement guideline. Currently, there are enough parking spaces that are non- I conforming. The painted striping identifying the spaces is faded. Chairman Duer asked for clarification that the Board cannot force any contingencies regarding tonight's appeal. It would have to be done with an SUP. City Attorney Dean Roggia responded that the only way that could factor into the discussion is if the Board selected option number three (3), which is the modify the order to allow the non-conforming use to be continued in order to amortize the capitalized investment in the improvements. Chairman Duer commented that option number three (3) doesn't really fit into what we are talking about. City Attorney Dean Roggia stated that the applicant submitted evidence in that area. Fonda Kunkel inquired if that would mean they could have one (1) more tenant with that non-conforming use. City Attorney Dean Roggia responded that this would be the case to allow the property owner time to amortize the cost of improvements. Brian Crowson inquired what would happen if the property had been sold to a new owner. Clayton Comstock explained that use goes with the property, not the owner. So, the non-conforming use issue would continue no matter who owns the property. Chairman Duer clarified that this property is under grandfathered code compliance regarding landscape improvements and the exposed dumpster. January 22,2015 ZBA Meting Page 13 f Clayton Comstock stated that is currently the case. MOTION FAILED Tom Duer motioned to reverse the determination and order of the Building Official regarding if the use was not discontinued for the requisite time for BA 2015-01 with the stipulation that it will remain in effect for five (5) years City Attorney Dean Roggia commented that Chairman Duer might want to add language from option number three (3) to "modify the order by establishing a time for the nonconforming use to be allowed to be continued in order to amortize the capitalized investment in the improvements." Tom Duer motioned to modify the motion, with the stipulation of establishing a time for the non-conforming use to be continued in order to amortize capital investments of improvements. Fonda Kunkel seconded the motion. The motion failed a super majority ruling (2-3). Jim Kemp, Bill Gibbs and Doris Elston voted against. City Attorney Roggia clarified that that the Board must review the facts and findings based upon the preponderance of evidence. The Board is having difficulty coming to an agreement. The Board has the option to continue this application to a later meeting date to give everyone more time to review the evidence. It would be under the same application request. Chairman Duer replied that the best alternative for this applicant would be to apply for a Special Use Permit. He wants to see this applicant be able to continue this use He would like to see the parking lot re-striped. He would like to see a barrier fence to separate these businesses from the adjacent residential area. He would like to see the dumpster area enclosed. Clayton Comstock explained that a Special Use Permit could open up such requirements to improve this property. Brian Crowson stated that he would like to see this property improved so it has a better appearance. The City is trying to improve this general area. MOTION APPROVED Bill Gibbs motioned to sustain the determination and order of the Building Official regarding non-conforming use for BA 2015-01. Doris Elston seconded the motion. The motion passed (4-1)with a super majority ruling. Fonda Kunkel voted against. Chariman Duer commented that he would like to see property improvements at this property. However, we realize according to the City Attorney, that the board does not have the authority in this appeal to force such contingencies in this appeal process. January 22,2015 ZBA Meting Page 14 6. ADJOURNMENT There being no other business, Brian Crowson motioned to adjourn. Jim Kemp seconded the motion to adjourn. The meeting adjourned at 8:06 p.m. Chairman Tom Duer d 4.. 43 } $ky January 22,2015 ZBA Meting Page 15