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2004-05-06 ZONING BOARD OF ADJUSTMENTS REGULAR MEETING AND PUBLIC HEARING MEETING MINUTESJ ZONING BOARD OF ADJUSTMENT REGULAR MEETING and PUBLIC HEARING MINUTES THURSDAY, MAY 69 2004 6:00 PM COUNCIL CHAMBERS OF CITY HALL :3519 LIBERTY DRIVE PEARLAND, TEXAS I. CALL REGULAR MEETING TO ORDER The regular meeting was called to order at 6:04pm. The following people were in attendance: Dale Pillow Chairperson Anne Talbot Board Member Marvin Elam Board Member Don Glenn Board Member James Lane Alternate Board Member Theresa Grahmann Planner Nghiem Doan Deputy City Attorney Aubrey Harbin Administrative Assistant II. APPROVAL OF MINUTES FROM APRIL 1, 2004 Board Member Marvin Elam made a motion to approve the minutes. Board Member Anne Talbot seconded the motion. The vote was 4 to 0. Board Member Don Glenn abstained. III. NEW BUSINESS A. VARIANCE APPLICATION NO. 04-05 1. CALL PUBLIC HEARING TO ORDER The public hearing was called to order at 6:06pm. 2. PURPOSE OF HEARING: A request by A. S. Osborn of Osborn & Vane Architects, applicant for Jay Javadi of Donya L.L.C., owner, for a variance from the requirements of Section 23.2 (f) Fence Regulations, of the Land Use and Urban Development Ordinance of said City, on the following described property, to wit: Page 1 of 8 (5-06-04) a Legal Description: 1.761 Acres, W. D. C. Hall Survey, Abstract Number 70, Brazoria County, City of Pearland, Texas (Generally Located on the West Side of Liberty Drive, and South of FM 518) 3. STAFF REPORT Theresa Grahmann, Planner for the City of Pearland, explained the Public Hearing process and that there were five members present, therefore, in order for a variance to be approved, it would require four (4) positive votes. Application VO4-05 is requesting a variance from the fence regulations. The ordinance requires a six (6) foot tall masonry fence when a property zoned Commercial abuts a R3 zoned property. The applicant has proposed landscaping instead of the masonry wall. This case was tabled at the last meeting. 4. APPLICANT PRESENTATION The applicant, Jay Javadi, purchased land from the City of Pearland. He explained that the adjacent property is not being used as a residential property. The library is located on the property. He is proposing to use shrubs or trees in lieu of the masonry fence. He would like it to be 4 to 6 feet tall. 5. PERSONS WISHING TO SPEAK FOR OR AGAINST THE PROPOSED REQUEST None 6. STAFF / BOARD / APPLICANT DISCUSSION None 7. ADJOURNMENT OF PUBLIC HEARING The public hearing was adjourned at 6:10pm. 8. CONSIDERATION AND POSSIBLE ACTION OF APPLICATION 04-05 Board Member Anne Talbot made a motion to approve the variance to allow landscape including six (6) foot high shrubbery (to be approved by Urban Forester/staff) in lieu of the masonry fence. Board Member Don Glenn seconded the motion. The vote was 4 to 1. Board Member Marvin Elam opposed the motion. The variance was approved. B. VARIANCE APPLICATION NO. 04-08 1. CALL PUBLIC HEARING TO ORDER The public hearing was called to order at 6:12pm. 2. PURPOSE OF HEARING: A request by Jack McGuff, Jr., AIA, applicant for James Medearis, owner, for a variance from the requirements of Section 16.4 (3) Yard Setback Requirements, of the Land Use and Urban Development Ordinance of said City, on the following described property, to wit: Page 2 of 8 (5-06-04) Legal Description: 2.512 acre tract of land out of and a part of H. T. & B. R.R. Company Survey, Section 17, Abstract Number 242 in Brazoria County, Texas, also being Lot 4 of Old Chocolate Bayou Subdivision (Generally located on the East Side of Old Chocolate Bayou Road, and South of FM 518) 3. STAFF REPORT Planner Theresa Grahmann explained that this variance request is for a side yard encroachment. The property is located on the East side of Old Chocolate Bayou behind the Shell gas station. The property is currently zoned Commercial (C). The ordinance requires a 0 to 10 foot side yard on the North side of the property because the adjacent property is zoned C. On the South side of the property the ordinance requires a 25 foot side yard because the adjacent property is zoned Suburban Development (SD). The applicant is asking to encroach the side yard on the South side that is adjacent to the SD zoned property. 4. APPLICANT PRESENTATION The applicant, Jack McGuff, presented site plans to the Board. He explained that they have been working on this project for over a year. He said that he was told at the Pre -Development Meeting that all of the setbacks would be 0 to 10 feet. He planned for a 5 -foot setback on the South side, which would be a 20 -foot encroachment. He also explained that the side of the building that faces the SD zoned property is a solid brick wall. He feels that there is a strong possibility of the SD property being changed to C, which is what the Comprehensive Plan shows. 5. PERSONS WISHING TO SPEAK FOR OR AGAINST THE PROPOSED REQUEST None 6. STAFF / BOARD / APPLICANT DISCUSSION Board Member Marvin Elam explained that he couldn't assume that the South property is not zoned SD. Mr. McGuff explained that the property will eventually have to be zoned something other than SD. Board Member Marvin Elam stated that he could not assume that the property will be zoned C. Mr. McGuff agreed that it would be an assumption. Planner Theresa Grahmann said that the Comprehensive Plan does recommend retail/office service uses in that area, which would be either C or GB. Chairperson Dale Pillow asked what the setbacks would be if the South property was zoned GB, OP or NS. Planner Theresa Grahmann replied that the only zone that would allow the 1 to 10 foot setback would be the C zone. All other zones would require a 25 -foot setback. 7. ADJOURNMENT OF PUBLIC HEARING The public hearing was adjourned at 6:25pm. 8. CONSIDERATION AND POSSIBLE ACTION OF APPLICATION 04-08 Board Member Don Glenn made a motion to approve the variance. Alternate Board Member James Lane seconded the motion. The vote was 3 to 2. Chairperson Dale Pillow and Board Member Marvin Elam opposed the motion. The variance was denied. Page 3 of 8 (5-06-04) C. VARIANCE APPLICATION NO. 04-09 1. CALL PUBLIC HEARING TO ORDER The public hearing was called to order at 6:26pm. 2. PURPOSE OF HEARING: A request by Horst Enterprises, Inc., owner, for Interpretations of Regulations Determined by the Enforcing Officer of the City, as defined in Section 29.2 Powers, of the Land Use and Urban Development Ordinance of said City, on the following described property, to wit: Legal Description: 1.60 acre tract of land .located in the Thomas Green Survey, Abstract No. 198, City of Pearland, Brazoria County, Texas; part of the Commercial Reserve shown on the recorded subdivision plat of Sherwood Subdivision as recorded in Volume 10, Page 11 of the Brazoria County Map Records (Located at 2720 Westminister Drive) 3. STAFF REPORT Planner Theresa Grahmann explained that this application is a request for Interpretation of Regulations. The property is located South of Broadway at Westminister Dr. The subject property is zoned GB. The property located South of the subject property is zoned R2, which according to the ordinance, requires the applicant to erect a 6 -foot masonry fence. There is a 20 -foot alley on the plat that is not maintained by the City. The zoning is determined by the middle of the alley, which is zoned GB. The applicant has an application for a variance, which is next on the agenda, if the Board does not agree with him on the interpretation. Staff received one comment form against the interpretation. 4. APPLICANT PRESENTATION Jim Watson, representative of Horst Enterprises, stated that he is appealing the decision of staff, which requires him to erect a 6 -foot masonry fence. He explained that he does not own the 20 -foot alley. He recognizes that the ordinance requires the fence between non-residential and residential property. He feels that his property is adjacent to the alley, which is not residential. 5. PERSONS WISHING TO SPEAK FOR OR AGAINST THE PROPOSED REQUEST James Hudson, 3105 Stratford, stated that he has lived there for three years. There is a picnic table up next to his fence that has been used for three years by the people who own the businesses adjacent to his property. 6. STAFF / BOARD / APPLICANT DISCUSSION Board Member Marvin Elam stated that Ordinance 22.9 509-H requires a fence. Mr. Watson asked what documentation shows that he owns the property. Chairperson Dale Pillow asked Deputy City Attorney Nghiem Doan who owns the alley. Nghiem Doan explained that it is not a City of right of way — the City does not maintain the property. Chairperson Dale Pillow asked where the detention pond Page 4 of 8 (5-06-04) was located. Mr. Watson explained that it is located within the boundary of the owner's property. He also said the there is 45 feet between the building and the fence line. According to a plat on May 27, 1964, Mr. Watson feels that the alley may be the City's land. He also stated once again that his property is adjacent to the alley, which is zoned GB, therefore he should not have to put up a fence. Board Member Don Glenn asked who maintains the property. Mr. Hudson stated that the businesses maintain the alley. Board Member Anne Talbot pointed out that the property could not be used by another business. Nghiem Doan said that everyone is disowning the property, but the business owners mow and maintain the property and have a trash receptacle on the property. Mr. Watson stated that he has never claimed the property. 7. ADJOURNMENT OF PUBLIC HEARING The public hearing was adjourned at 6:43pm. 8. CONSIDERATION AND POSSIBLE ACTION OF APPLICATION 04-09 Alternate Board Member James Lane made a motion that the Board accept the Staff interpretation (deny the applicant's request). Board Member Marvin Elam seconded the motion. The vote was 5 to 0. The staff interpretation was upheld. D. VARIANCE APPLICATION NO. 04-10 1. CALL PUBLIC HEARING TO ORDER The public hearing was called to order at 6:45pm. 2. PURPOSE OF HEARING: A request by Horst Enterprises, Inc., owner, for a variance from the requirements of Section 23.2 (f) Fence Regulations, of the Land Use and Urban Development Ordinance of said City, on the following described property, to wit: Legal Description: 1.60 acre tract of land located in the Thomas Green Survey, Abstract No. 198, City of Pearland, Brazoria County, Texas; part of the Commercial Reserve shown on the recorded subdivision plat of Sherwood Subdivision as recorded in Volume 10, Page 11 of the Brazoria County Map Records (Located at 2720 Westminister Drive) 3. STAFF REPORT Planner Theresa Grahmann explained that this is the same applicant as VO4-09, and that Mr. Watson has agreed to put in a living wall instead of a masonry fence. 4. APPLICANT PRESENTATION Jim Watson, Horst Enterprises, stated that he agrees with the recommendation of staff for the requirements of the living wall instead of the masonry wall. 5. PERSONS WISHING TO SPEAK FOR OR AGAINST THE PROPOSED REQUEST None Page 5 of 8 (5-06-04) 6. STAFF / BOARD /APPLICANT DISCUSSION None 7. ADJOURNMENT OF PUBLIC HEARING The public hearing was adj ourned at 6:49pm. 8. CONSIDERATION AND POSSIBLE ACTION OF APPLICATION 04-10 Board Member Anne Talbot made a motion to approve 6 -foot shrubbery/trees in lieu of the masonry wall for application VO4-10. Board Member Marvin Elam seconded the motion. The vote was 5 to 0. The variance was approved. E. VARIANCE APPLICATION NO. 04-11 1. CALL PUBLIC HEARING TO ORDER The public hearing was called to order at 6:50pm. 2. PURPOSE OF HEARING: A request by Osborn & Vane Architects, applicants for 288 Storage, LP, owner, for Interpretation of Regulations Determined by Enforcing Officer of the City, as defined in Section 29.2 Powers, of the Land Use and Urban Development Ordinance of said City, on the following described property, to wit: Legal Description: 4.690 acres, Abstract 300, H. T. & B. R.R. Company Survey, Tract 42-43 (Located at the Southwest Corner of S.H. 288 and F.M. 518) 3. STAFF REPORT Planner Theresa Grahmann explained that this application is also a request for Interpretation of Regulations. In November 2002, the subject property was zoned from SD to C with special conditions of mini -storage. The sitework permit was issued for paving and utilities. On the permit, there was a note to not construct the fence because it was not the correct type of fence. There are notes on the permit requiring a masonry fence. Staff received one comment form, which was against the applicant's interpretation. Deputy City Attorney Nghiem Doan explained that mini -storage is only allowed in C zone with a specific use permit. The applicant was granted a specific use permit with the intent of allowing mini -storage, warehouse, and an 8 -foot tall masonry fence. 4. APPLICANT PRESENTATION Reed Wilson, attorney representing Osborn & Vane Architects, stated that this is a technical issue. A permit was issued, which noted that the fence issue was not resolved. The City will not issue a Certificate of Occupancy. The owner would like a Temporary Certificate of Occupancy because the fence issue is not a life safety issue. The zoning ordinance is a legal document, which restricts the uses of peoples' properties. The ordinance for this property is as follows: Page 6 of 8 (5-06-04) Ordinance 509-618, Specific Use C -S for storage and mini -warehouse and construction of an 8 -foot masonry fence on the SH288 and FM518 side of the project in accordance with the City codes. Mr. Wilson also explained the definition of "and" from Black's Law Dictionary. He explained that "and" is a stipulation. He stated that the City wants the Board to believe that "and" and "subject to" mean the same thing. The proposed fence should be allowed. Jason Chapman, Osborn & Vane Architects, stated that the ordinance requires 8 -foot masonry fence, but they are proposing a fence of masonry and ornamental metal. The fence would be constructed of some masonry.. 5. PERSONS WISHING TO SPEAK FOR OR AGAINST THE PROPOSED REQUEST Peyton Morton, 310 Morton, Richmond, Texas, stated that he is against the variance. Council rezoned the property, but staff and the Planning & Zoning Commission denied it. He expressed his concern that the owner should be required to build the 8 -foot high masonry fence above finished floor elevation. 6. STAFF / BOARD / APPLICANT DISCUSSION Board Member Marvin Elam stated that the masonry fence has been required all along. Deputy City Attorney Nghiem Doan explained that the applicant wants the Board to interpret the word "and" to mean "or." The definition of fence in the ordinance may ambiguous, but it is up to staff to interpret the ordinance. Staff is requiring an 8 -foot solid masonry fence. Wrought iron can be seen through. Chairperson Dale Pillow stated that she remembered screening being a big issue at City Council's discussion when they wrote the ordinance. Jason Chapman explained that they have landscaping, a fence and a masonry building that serve as means of screening. Chairperson Dale Pillow said that Council was very clear about wanting the fence when they granted the ordinance. 7. ADJOURNMENT OF PUBLIC HEARING The public hearing was adjourned at 7:12pm. 8. CONSIDERATION AND POSSIBLE ACTION OF APPLICATION 04-11 Board Member Don Glenn made a motion to uphold the applicant's interpretation of the ordinance. Board Member Marvin Elam seconded the motion. The vote was 0 to 5. Staff interpretation is upheld. IV. ADJOURNMENT OF REGULAR MEETING The regular meeting was adjourned at 7:14pm. Page 7 of 8 (5-06-04) These minutes respectfully submitted by NwAI-)A%lbv� Aubrey Harbin, inistrative Assistant Approved as submitted and/or correct this day of Q'2004. r Dale Pillow, Chairperson Page 8 of 8 (5-06-04)