1991-10-10
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CITY OF SOUTHLAKE
667 N. Carroll Avenue
October 10, 1991 7:00 P M
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MEMBERS PRESENT: Arthur Sorenson, Chairman; Ernest Johnson, Vice
Chairman; Joe Bentley, Robert Downard, and Fred Joyce.
MEMBERS ABSENT: Dennis Minder, Alternate # 1 and Karen Reynolds,
Alternate #2.
STAFF PRESENT: Karen Gandy, Zoning Administrator; and Jean Bryson,
wW Building Secretary.
Agenda Item #2 Approval of the Minutes.
With no objection Mr. Sorenson deemed the Minutes of September 26,
y, 1991 approved as corrected.
Agenda Item # 3 Comments.
Karen Gandy reported that November 14th there are 2 ZBA cases.
Agenda Item # 4 Case #135 Variance to all Setbacks.
Case #135 a Variance to all setbacks as required in the "SF-20B"
Residential district to allow the original setbacks of Dove Estates
per Ordinance No. 161; a minimum front and rear setback of 25 feet
and minimum side setbacks of 10% of the width of the lot for each
side yard. The location is 1322 White Wing Ct., Block 2, Lot 32,
Dove Estates. The owner applicant is Matthew R. Miller.
A presentation was made by Mrs. Gandy, Zoning Administrator. She
reported there were twenty one (21) notices sent to property owners
r within 200 feet and there were 4 written responses (2 opposed and 2
in favor) and 1 telephone call in favor of the request.
Public Hearing.
Mr. Matthew Miller owner applicant was present and had no
additional comments.
There was no opposition.
Public Hearing Closed.
After a discussion by the board, A motion was made to grant Case #
135 a Variance to all setbacks as required in the "SF-20 B", Zoning
District to allow the original setbacks of Dove Estates per
Ordinance No. 161. This variance would allow a minimum front and
rear setback of 25 feet and minimum side setbacks of 10% of the
width of the lot on each side.
Board of Adjustment Meeting page 2
October 10, 1991
Agenda Item # 4 continued.
ter
Mr. Sorenson stated the finding that special conditions and
circumstances exist which are peculiar to the land involved and
W which are not applicable to other lands in the same district. That
literal interpretation of the provisions of this ordinance would
deprive the applicant of rights commonly enjoyed by other
properties in the same district under the terms of this ordinance.
That granting of the variance requested will not confer on the
applicant any special privilege that is denied by this ordinance to
other lands in the same district.
Motion: Sorenson
Ayes: Bentley, Downard, Joyce, Johnson, Sorenson
Nays: None
Vote: 5-0 to grant
Agenda Item # 5 Case #136 Special Exception
Case # 136 a Special Exception Use for Family Quarters per
Ordinance No. 480, Section 44.12 (1). The location is 1027 Diamond
it Blvd.; Block 4 Lot 9 of Diamond Circle Estates. The
owner/applicant is Doug Stickland.
000001-
or-Woe A presentation was made by Mrs. Gandy, Zoning Administrator. She
stated that ten (10) notices were sent to property owners within
OR 200 feet and there had been 4 responses in favor of the request and
not opposition.
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Public Hearing.
A,
Mr. Doug Strickland was present requesting family quarters above a
garage. Mr. Strickland stated that the original plans were for
1080 SF and to comply with the ordinance the plans could be reduced
to 1000 SF.
There was no opposition to the request.
Public Hearing Closed.
After a lengthy discussion a motion was made to grant Case # 136
Special Exception Use per Ordinance No. 480, Section 44.12 (1) a
concept plan including septic tanks and fields will be presented
with building permits.
Motion: Johnson
Ayes: Bentley, Downard, Joyce, Johnson, Sorenson
Nays: None
Vote: 5-0 to grant
it
Board of Adjustment Meeting page 3
October 10, 1991
.r Agenda Item # 6 Case # 137 Variance to the maximum height
Case # 137 a variance to the maximum height requirement of 14 feet
for accessory buildings per Ordinance No. 480, Section 34.2 (e).
The location is 1027 Diamond Blvd. Block 4 Lot 9 in the Diamond
Circle Estates. The owner/applicant is Doug Strickland.
A presentation was made by Mrs. Gandy, Zoning Administrator. She
reported that ten (10) notices were sent to property owners and
there had been 5 responses all in favor of the request.
W, Public Hearing
Mr. Doug Strickland stated that the roof selected had 14:12 pitch
and the building height was approximately 26 feet.
After a lengthy discussion Mr. Johnson asked for a short recess at
8:45 P.M.
Meeting resumed at 9:00 P. M.
A motion was made to table Case # 137 to the next meeting date of
err October 24, 1991 to request opinion of counsel.
..AW*-, Motion: Johnson
Second: Bentley
Ayes: Bentley, Downard, Joyce, Johnson
Nays: Sorenson
Vote: 4-1 to table
A motion was made for the Chairman to request in writing a legal
decision from the City Attorney.
Motion: Bentley
Ayes: Bentley, Downard, Joyce, Johnson, Sorenson
Nays: None
Vote: 5-0
See attached request.
Agenda Item # 7 Proposed amendments to Ordinance No. 480.
no discussion
Agenda Item # 8 Board of Adjustment Rules of Order, Procedure,
and Conduct.
no discussion
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Board of Adjustment Meeting page 4
October 10, 1991
Agenda Item # 9 Meeting Adjourned.
With no objections Mr. Sorenson, Chairman deemed the meeting
adjourned.
Meeting adjourned 10:10 P. M.
r
Arthur t5pllson, Chairman
Je Bryson,
A ended meeting and prepared the minutes
ATTEST : ~~pal
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City Secretary
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B OAR D O F AD J U S T ME N T
T he City a f Southlake, Texas
667 North Carroll Avenue
Southlake, Texas 76092
October 15, 1991
TO: Mr. Curtis Hawk, City Manager
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40 RE: Request for Opinion of Counsel
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Dear Mr. Hawk,
By vote of its primary quorum, the Board of Adjustment requests
assistance of the City Attorney in resolving a question of the
board's latitude in reaching findings related to an application
for variance submitted under ordinance 4801, Section 44.3.b.
1 Situation leading to this request.
The matter at issue arises from public hearings duly noticed and
3 heard at the Board meeting of October 10, 1991. The applicant
no 4 had submitted two cases; both were related to a proposed detached
5 garage, a residential use accessory building as defined in the
6 ordinance.2
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7 Case 1361 an application for family quarters use by special
8 exception, was approved by affirmative vote of the five primary
wr 9 members. The applicant's plot plan proposed the quarters to be
qR 10 located above the proposed detached garage.0
AN
11 Case 137, an application for variance to a fourteen-foot
12 building height restriction4 which is applicable to all acces-
400
1 3 1/ City of Southlake Ordinance, abbreviated hereafter as COSO. Letter designators following the ordinance
14 number (e. g., 480C, 4BOD) may be used when differentiating between recent revisions.
15 s/ COSO 4800, Sec. 4.2, Definitions: 'A subordinate building... on the same lot..' etc.
" 3/ COSO 400D, Sec 44.12.1, 'Servants or family quarters... may be housed... above a residential garage'.
1 7 COSO 480C, Sec 34.2.e, shall not exceed one story or fourteen feet (141) in height'.
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18 spry buildings, was presented as a necessary concomitant to the
proposed use above (Case 136). Case 137 was tabled pending
clarification of the Board's authority in the matters which bring
err 21 forward this Request for Opinion of Counsel.
im 22 Overview of Discussion Related to Case 137.
OR
23 Lengthy debate produced tentative findings" largely favorable to
24 the applicant. However, a strong minority opposition developed
40 25 over a question of the Board's authority to grant a variance in
4 26 the face of a potential need for change to the zoning ordinance.
Mw 27 The factors considered in examining the merits of the variance
28 request follow:
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' 29 Views Found to be Held in General Agreement.
30 a. 'Family quarters' (Case 136) is a permitted use.'
b. The permitting process for physical construction of any
ll'2' family or servant quarters, above any ground-level accessory
33 building, is dependent both upon approval of use by special
34 exception and upon granting of relief from the building height
35 restriction by variance.
36 c. Application for variance to the height restriction is
37 the sole avenue of relief for this applicant because:
38 (1) an appeal from a decision of an administrative
39 official would not be appropriate in this case, and
40 COSO 480C, Sec. 44.3.b(5): 'The board shall wake findings that the requiresents of this section have
41 been set These findings, tentatively stated, are found below at Views Found Held by a Majority.
j 42 6/ COSO 480C, Sec 4.2, Definitions: Teraitted Use - Any use allowed in a zoning district and subject to the
4 3 restrictions applicable to that zoning district'.
2
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44 (2) the height restriction is not included in the
5 ordinance's provisions for use by special exception'.
46 d. Without approved variance, the height restriction for
47 accessory buildings effectively denies a use both permitted and
48 apparently intended by the district regulations (specifically,
wN 49 that of family or servant quarters use as proposed in this
50 application).
51 e. What appears to be a conflict in the ordinance is, by
52 the Board's understanding of the sense of the Council in
53 approving the provisions at issue, instead a device intended to
54 legitimately control accessory building height but not to impose
55 unreasonable maximums which would deny permitted uses.
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56 f. Conflicting ordinance provisions which at one hand
4 57 permit a use, and at the other appear to prohibit the use through
58 inappropriate restriction, may constitute a valid basis for
AM 59 granting variance in specific cases.e9
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Views Found Held by a Malority.
61 a. Discussion necessary to development of required Board
62 findings may be predicated on the representation that literal
63 interpretation of the conflicting ordinance provisions could
64 impose unnecessary hardship.0
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6 5 7/ The board noted that square footage (area) restrictions for accessory buildings are subject to relief
66 through provisions for use by special exception; e.g., this same applicant say seek to build a garage with
67 greater area than that imposed by district restrictions and do so with approved special exception use. But he
68 may not build it higher than a similar restriction permits without variance. (This apparent inconsistency in
69 regulation may later be included in the Board's periodic zoning ordinance review).
rr 70 COSO 480C, Sec. 44.3.b. - To authorize in specific cases variances from the terms of this
71 ordinance...'
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72 COSO 480C, Sec. 44.3.b. literal enforcement of the provisions of this ordinance would result in
73 unnecessary hardship...'
3
74 b. concurrence of the majority in this approach legitimized
further examination of the application. The sense of the debate
01
41,00 Is summarized in the tentative findings below.
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77 Finding 1 - Special Conditions. A permitted use is
low 78 precluded by the object of the variance request. Family quarters
ft 79 may not be placed above a residential garage if the 14' height
80 restriction is not varied.
low 1
81 Finding 2 - Deprival of rights. A clear preclusion of
M 82 the right to enjoy a permitted use of private property exists.
4 83 When such use is clearly in harmony with the general purpose and
84 intent of the zoning ordinance and is neither injurious nor
85 detrimental, etc.,XQ the Board may be held as obliged to
86 regard an enabling variance as 'within the spirit of the
87 ordinance'."
INS
88 Finding 3 - Causal Action by the Applicant. None. The
'x'89 special conditions and circumstances are a result of conflicting
go 90 ordinance provisions and not of the applicant's action in
exercise of property rights through a permitted use.
Mrs'`
92 Finding 4 - Special Privileges Conferred. None. A
93 permitted use, even though granted by special exception, is not a
OW 94 special privilege: therefor neither could special privilege be
95 granted through prudent grant of a variance which merely enables
96 the permitted use.
NO
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4P 97 COSO 480C, Sec 44.3.b(7)
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98 1'/ COSO 480C, Sec. 44.3.b [so that] the spirit of the ordinance is observed and substantial justice is
99 done'. The Board notes that among its powers to wake special exceptions to the terms of the zoning ordinance,
100 the authority to grant variance is unique in its foundation in equity (Texas Local Government Code, Sections
W1.0 1 211.008(a); 211.009(a)(3).
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102 Views Found Held in opposition.
3 a. A minority view holds that this case lacks specificity
04 of incidence; the result of coupling the conflicting ordinance
105 provisions is connective and non-specific. The effective denial
"106 of use exists in all zoning districts: it may not be un-coupled
96107 by variance to building height because all such buildings in all
108 such districts are restricted by the same general provision which
109 this case seeks to vary.
10 b. The basis of dissent is drawn from guidance"2
ll previously made available to the Board which, for the purpose of
112 this Request for Opinion of Counsel, has been construed to
1 13 suggest that the remedy for a conflict with such widespread
114 Impact" as this should only be sought through change to the
,x"115 ordinance, and that variance would therefor be inappropriate.
7116 Questions which require opinion of Counsel.
ft
1. Given the presumed intent of the Council, the nature of
00-■ the controls placed on both accessory building height and family
119 quarters siting, and the lack of general applicability of this
"1"120 case to all restrictions on, and all permitted uses of, all
10121 accessory buildings and all family quarters sitings; may this
122 case may be regarded as a 'specific case' within the intent of
123 COSO 480C. Sec. 44.3.b ?
'"""124 2. In the absence of any reason to recommend change to the
d0125 ordinance as a means of relief from the height restriction at
126 issue, should the guidance cited as the basis of dissent under
127 discussion of the minority position above be ruled to not apply?
do 128 12/ ZONING GUIDE etc., Office of the City Manager, City of Southlake, Aug 1990. From the last paragraph of
"129 Item 9, ZBA section: 'If it is clear that everyone should be allowed to build closer than what is presently
130 allowed, a request that setbacks be examined is in order. If the ordinance is too restrictive, the City
ftq 31 Council should amend it.'
"132 19/ i.e., general; non-specific or non-selective in application.
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`33 3. If the Board granted variance in this case (#137) and
subsequently used this case as the rationalizing precedent for
approval of variance in other cases with close similarities,
X136 would the Board be effectively usurping the zoning authority of
137 the Council by repeatedly negating the efficacy of the restric-
0138 tion here at issue?
W
X139 4. Noting that the four tentative findings listed above are
40 required by the ordinance, but not by the Local Government Code,
41 may the Board - within the spirit and intent of the ordinance -
#142 assign its own latitude to the standards implied by these
,143 requirements?
144 5. Are there recourses available to applicants or to the
0145 Board in the face of conflicting ordinance provisions other than
00146 those apparent in the discussion above?
147 6. May variance be granted to the 14' height restriction in
'148 this case without regard to a possible need for change to the
X1.49 ordinance?
*00'*1
or-old 7. If not or if so. are there other arguments overlooked by
151 this paper which would, if considered, have been helpful to the
x"152 debate?
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The Board has requests Counsel to reply in writing or by
appearance at the October 24 regular meeting at which time this
case will be taken from the table for further consideration.
66 FOR THE BOARD OF ADJUSTMENT
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Arthur J. Sorenson
Chairman
Copy to: Zoning Administrator
Board Secretary
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