Loading...
1992-10-15 CITY OF SOUTHLAKE 667 N. Carroll Avenue BOARD OF ADJUSTMENT MEETING %r►" October 15, 1992 7 P M MEMBERS PRESENT: Fred Joyce, Chairman; Robert Downard, Dennis Minder, Karen Reynolds, Sharon Hobbs, Alternate #1 and Bill Towler, Alternate #2. MEMBERS ABSENT: Joe Bentley, Vice Chairman. STAFF PRESENT: Karen Gandy, Zoning Administrator; Jean Bryson, Secretary. Agenda Item # 2 Approval of the Minutes. With no objections a motion was made to approve the Minutes of September 10, 1992 Regular Meeting. Motion: Towler Second: Downard Ayes: Downard, Minder, Reynolds, Towler, Joyce Nays: None Vote: 5 - 0 to approve Agenda Item # 3 Administrative Comments. i Karen Gandy reported that one case is pending for the November 15th meeting Agenda Item # 4 ZBA CASE # 158 Case # 158, a variance to all setback requirements for the "SF-20B" district as described in Ordinance No. 480, Section 14.5 to allow all the original (25') front rear yards and each side yard not and not less than five feet (5') nor more than fifteen feet (15'). The location is 2992 Lake Drive, being Lot 5, Block 1 Dove Estates. The owner/applicant is Larry and Shari Wells. A presentation was made by Karen Gandy, Zoning Administrator. Mrs. Gandy reported that twenty-one (21) letters were sent to property owners within 200 feet and that two (2) responses were received; one (1) in favor and (1) opposed. Public Hearing. Mr. Larry Wells, owner/applicant was present and stated that he has met all setbacks in the original setbacks for Dove Estates and asked that the board grant his request for a variance There was no other person present wishing to speak either in favor or in opposition to the request. Public hearing closed. Ilff Boar of Adjustment Meeting Page 2 October--15, 1992 Agenda Item # 4 continued. A motion was made to grant Case #158 the request for a variance to Ordinance No. 480, Section 14.5 as stated in the application. The finding were stated that special conditions and circumstances exist which are peculiar to the land involved and which are not applicable to other lands in the same district. That literal interpretation of rights commonly enjoyed by other properties in the same district requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands in the same district. Motion: Minder A Second: Reynolds Ayes: Downard, Minder, Reynolds, Hobbs, Joyce Nays: None Vote: 5 - 0 to approve Agenda Item # 5 ZBA CASE # 159 Special Exception Use Permit. MR fi ZBA Case # 159, Special Exception Use Permit to construct a garage ^ in the front yard (forward of the principal building) per Ordinance v No. 480, Section 44.12 (4). The location is 555 S. White Chapel Blvd., being 3.267 acres situated in the Hiram Grandberry Survey, IN 'A* Abstract No. 581 and being legally described as Lot 1, H. Grandberry No. 581 Addition. im The owner/applicant is Wilfred E. Anderson. A presentation was made by Karen Gandy, Zoning administrator. Ms. Gandy reported that ten (10) notices were sent to property owners within 200 feet and that two (2) responses in favor of the request were received. Public Hearing Mr. Wilfred E. Anderson, owner/applicant, stated that his reasons for selecting the area for the storage barn as it was surrounded by trees and a secluded area. The slope of the land itself makes the property look lower to the South and higher in the rear. Mr. Anderson stated that the existing barn will be demolished. There was no other person present wishing to speak either in favor or in opposition to the request. Public hearing closed. A motion was made to grant Case # 159 the request for Special wr Exception Use Permit to construct a garage in the front yard per Ordinance No. 480, Section 44.12 (4) as stated in the application. Board of Adjustment Meeting Page 3 October 15, 1992 Agenda Item # 5 continued. Motion: Reynolds Second: Hobbs 0 Ayes: Downard, Minder, Reynolds, Hobbs, Joyce Nays: None Vote: 5 - 0 to approve ~e The reasons for granting the request as stated by Karen Reynolds as follows: 1. Section 44.12 (4) Accessory building located in front yard. 2. Definition of Yard, Front (a.) At least one front yard shall be provided having the full depth required generally in the district. 3. Section 11.5 (b.) Front Yard: There shall be a front yard of not less than forty (40) feet. A Memorandum is attached that was received by Board Members and Alternates from Joe Bentley, Vice Chairman; regarding ZBA Case #159. ~I 00ml- Agenda Item # 6 ZBA CASE # 160, Variance to Ordinance No. 480. M ZBA Case # 160, variance to Ordinance No. 480, Section 34.2 (e) which limits the height of an accessory structure to fourteen feet (141). The proposed height of the structure is twenty-tow feet (221); the requested variance is for eight feet (8'). The location i~rr is 555 S. White Chapel Blvd. Owner/applicant is Wilfred Anderson. ~r A presentation was made by Karen Gandy, Zoning administrator. Ms. Gandy reported that ten (10) notices were sent to property owners within 200 feet and that two (2) responses in favor of the request were received. Public Hearing it1 Mr. Wilfred Anderson, owner/applicant stated that the storage barn w will have an upstairs to be used for storage and the lower floor for machinery and storage. There was no other person present wishing to speak either in favor or in opposition to the request. Public hearing closed. A motion was made to grant Case #160 the request for a variance to %ww/ Ordinance No. 480, Section 34.2 (e) as stated in the application. i1 4 Yrl Board of Adjustment Meeting Page 4 October 15, 1992 The finding were stated that special conditions and circumstances exist which are peculiar to the structure involved and which are not applicable to other structures in the same district. That literal interpretation of rights commonly enjoyed by other structures in the same district requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands in the same district. A Motion: Minder Second: Reynolds Ayes: Downard, Minder, Reynolds, Hobbs, Joyce Nays: None Vote: 5 - 0 to approve Agenda Item # 7 Discussion: Board Procedures. A discussion was held on Board Procedures. Agenda Item # 8 Meeting Adjourned. With no objections the Chair deemed the meeting adjourned. Meeting Adjourned 8:50 P.M. ed J y Ch 'rman JAafi Bryson, PkAended the meeting and prepared the minutes ATTEST: Sandra L. LeGrand City Secretary ~r V City of Southlake. Texas BOARD of ADJUSTMENT M E M O R A N D U M M1 October 13, 1992 FROM: Joe Bentley TO: Board Members & Alternates 1. Anticipating my absence from the 15 October meeting, I want to express my concerns regarding one case on the agenda. I make these comments in hopes that your deliberations will encompass not only the merits of the case, but the implications of the Board's actions for future cases and possible future litigation. 2. As we all know, a fundamental responsibility of the Board is to administer the ordinance correctly. In order to be correct, we must understand the ordinance thoroughly. It is my belief that this Board does in fact understand the zoning ordinance better than almost anyone in the City. This includes an understanding of the weaknesses and flaws contained in the ordinance. How we decide issues involving problematic wording is always challenging. I believe such V a challenge is again presented to the Board with case number 159. 3. The application in case 159 requests a special exception use, in accordance with section 44.12.4. The precise wording of this special exception use would 'i permit, "Accessory buildings located in the front yard." The meaning of this phrase, and the meaning of the words in this phrase are very clear. "Accessory building or use" is clearly defined in section four, as is "yard, front." The three !!'R remaining words, "located in the," carry their normal lexical definitions. This phrase, which describes this special exception use, means exactly what it says. 4. By now, you may be thinking, "So what?" The vital point here relates to the term "front yard," which is specifically defined in section four. The "front yard of a lot is that area, "...between [the] side lot lines across the front of a lot adjoining a public street..." The depth of the front yard being described within the "Development Regulations" section of the applicable zoning district. In case 159, the depth of the front yard is forty feet, and a front yard of this dimension is depicted on the plot plan accompanying the application. 5. It should now be obvious that the proposed accessory building in case 159 is not located within the front yard on the subject lot. It should be equally obvious that the special exception use being requested does not apply to the proposal depicted. So what's going on? (Good question.) 6. Discussion with Ms Gandy clarifies why the application is worded as it is. It is her personal observation and professional opinion that it was the intent of the Council that the special exception use described in section 44.12.4 be to encompass the situation presented by the applicant. That is to say, that the term a; irar 2 w~ "front yard" used in -section 44.12.4 means the buildable area located forward of the principal building. The reasons for providing this particular special exception use are not relevant at this point. Suffice it to say that Council wanted to permit, by special exception, construction of accessory buildings within the buildable area located forward of the principal building. Unfortunately, that is not what they adopted. They used the words "in the front yard." 7. Now the Board is confronted with construing a meaning which is clearly different from the written, and specifically defined meaning of the ordinance. Returning to my first point, that it is a fundamental responsibility of the Board to correctly administer the ordinance, and that the Board must understand the ordinance, let us consider how do we determine what the ordinance means. Fortunately, the vast majority of the text is clear in its meaning, and not subject ON to dispute. Other portions of the text are vague and less clear. In most of these ambiguous areas there is clarification of meaning provided in Section Four, Definitions. Unfortunately, there are a few areas where not even the definitions provided in the ordinance clarify the meaning to everyone's satisfaction. 8. When the applicable section of the ordinance is not sufficient to clarify the meaning, it is proper to go to the definitions for assistance. Often, we have wn cross-referenced several sections to obtain a "bigger picture" of the intent and t purpose of the ordinance, in order to better understand what meaning is proper. Occasionally, we have had to construct an inferred meaning for certain sections. Resorting to such constructions of inferred meaning is proper, but only when the ,r+' previous methods of determining a meaning are insufficient. 9. In case 159, the explicit wording of the text very clearly means what it says. In pursuit of confirmation of this conclusion, (that the text in section ' 44.12.4 means what it says,) we must look first to the definitions in section four. The definition of "yard, front" is also explicit. There is not a hint of ambiguity there. Cross-referencing other sections of the ordinance, there is not a single reference to suggest a second meaning for the term "front yard." Indeed, every reference to yards, or to front yards is consistent throughout the ordinance. Nowhere in the ordinance is the term "yard" used except in connection to setbacks and building lines. The only term used in the ordinance to describe the +111 portion of a lot that is not contained within any of the required yards is the term "buildable area." 4" 10. Regardless of the intent of the Council, they simply failed to word the ordinance sufficiently to permit what was intended. But what is worse, the words they chose clearly permit what they probably never intended. The explicit meaning of section 44.12.4 authorizes the Board to permit construction of building in the "front yard," which is contrary to the purpose of requiring front yards. The reasons for this mistake are not relevant. The good intentions of the Council are negated by the unfortunate wording. Section 44.12.4 does not apply to case y 159. 11. Section 34.2.f is the applicable portion of the ordinance for case 159. To Aft do what the applicant describes as his intent, would require a variance to this section. The merits of such a variance request are debatable. To consider such ~w Ilr ~w WA ~3 a variance would require notification of the property owners that a variance was being considered. The previous notification regarding a special exception would not suffice for this purpose. 12. It can be argued that the Board should act on the special exception use application, construing the meaning of section 44.12.4 consistent with the described intent of the Council. There are very significant arguments against that course of action: 1. The Board is a quasi-JUDICIAL body, (with emphasis on the OR judicial nature of its duties.) It is not judicious to ignore explicit terminology. It is not judicious to construe meanings where the written words of the ordinance are clearly in contradiction to such a construed meaning. iii 2. It is the responsibility of Council to adopt an ordinance which states what they want it to state. It then becomes the responsibility of the Board to administer the ordinance, AS ADOPTED, (or AS WRITTEN.) The Board has no discretion to interpret the ordinance contrary to its explicit meaning. Only when the ordinance fails to be explicit, or when discretionary authority is clearly given to the Board, can the Board exercise its discretion. 3. Special exception uses must be clearly permitted by the ..w` ordinance. Is the situation requested "clearly permitted" ? 4. While litigation is highly unlikely, every action of the Board M must be able to pass the "reasonable person" test. If contested, would such an action be considered the "reasonable" thing to do, in light of the "reasonable interpretation" of section 44.12.4 and the definition of "yard, front" ? 13. I believe it is important that the Board attempt to draw a line at some point, and refuse to "fix" mistakes contained within the ordinance. To try and fix the flaws of the ordinance is a dangerous over-reaching of authority. Our tilr role is to provide for a reasonable application of a very complex and comprehensive set of regulations, realizing that no ordinance can address every possibility that might be encountered. But it also is NOT our duty to undo, re-do, or modify the ordinance. That is solely the responsibility of the Council. We must refrain from "legislating." And if the Board takes on such a role, then there will never be the necessary urgency on the part of the Council to correct these mistakes themselves. 14. Finally, accept my apology for such a lengthy memo, but I simply did not have time to write anything shorter. Thanks! JB Aw F UA ON V ~ V r V 4 O o a p ~i Z Z o ~ I . :n 1 3 • C i ~1 • C7 y C ~ L d d Yf d v uj .Z 1 1