Loading...
HomeMy WebLinkAboutZBOA Minutes 2009-08-25 Regular State of Texas )( City of Friendswood )( Counties of Galveston/Harris )( August 25, 2009 )( Minutes of a Regular Meeting of the Friendswood Zoning Board of Adjustment that was held on Tuesday, August 25, 2009 at 7:00 PM at Friendswood City Hall Council Chambers, 910 S. Friendswood Drive, Friendswood, Texas, with the following present constituting a quorum: Chairman Greg Hughes Vice Chairman Steve Knis Regular Member Ronald Dyer Regular Member Delwyn Kendrick Regular Member David O'Brien Alternate Member Mike Czarowitz Alternate Member Glen Grayban City Attorney Bobby Gervais Building Official Frank Manigold Staff Liaison Sharon Parks Alternate members Carol Thelen and Linda Thornton were absent from the meeting. Chairman Greg Hughes called the meeting to order at 7:04 PM. 7:00 PM—REGULAR SESSION Chairman Hughes explained the process for holding the public hearing. Chairman Hughes called the hearing to order and addressed Dick Gregg, attorney for the applicant, regarding an appeal of the decision made by the Building Inspector in order for the Board to overturn or find for the appeal against the decision for a variance request for a fence to be built beyond the front building line at 700 N. Clear Creek Drive, Lot 16, of the Friendswood Forest Subdivision in Galveston County, Texas. He stated that there are three things that need to be found with one being reasonable difference interpretation specific to the intent of the zoning regulation or map, second being that the resulting interpretation will not grant a special privilege to one property inconsistent to other properties or uses similarly situated and three being that the decision of the Board must be, and will be, in the best interest of the community and consistent with the spirit and the interest of the zoning laws. Additionally, he stated that in order for the variance to be approved, the Board needs to find that what the applicant wants to do is not contrary to the public interest of the City and the citizens and owing to some special conditions of this particular property, the literal provisions of the ordinance would result in an unnecessary hardship, so the spirit of the ordinance can be observed and substantial justice done in order to grant a variance. Mr. Gregg stated the applicants, Jedd and Ann Gulledge, purchased their home in Friendswood Forest in 1986. The only site engineering drawings were in 1988 and everything filed since then has used the drawings as a tracing template for things like the application for the fence permit and the application for the gate permit. The template showed that the fence went all the way around the property. He stated that the intention is to show that the owner has continued to repair and fix the fence in varying ways, trying to make it sturdier; however, it is the same fence. The test under the ordinance, as Mr. Gregg stated he reads it, says the fence must be the same cubic content, which it is. The same area of the fence is the same when the applicant bought the property, when it was surveyed and the same for the fence today. Because of changes due to flooding and the storms, there have been constant repairs made to the fence. Mr. Gregg also gave a brief history of the fence: The fence permit was applied for on May 25, 2007. Unfortunately, there was no mention by the landowner that there was no repair of the old fence, stated Mr. Gulledge applied for a fence permit that required an estimate of the acreage. Additionally, he misjudged the amount of the acreage he had. Mr. Gregg stated the applicant is maintaining that it is not two acres, but 1.67 acres. The position of the applicant is that 1.67 acres did not need a permit because there was not a new fence; it has been in continuance with repairs; therefore, it is an old fence. Mr. Gregg read the part of the ordinance that applies to this variance. He stated the question is in the interpretation. The applicant was turned down on the fence permit, but in discussing that with the Building Department, after the decision, it was brought to light with the land owner that if he applied for the repair of the fence, he would not need a permit. However, the applicant went back home and wrote another permit application because he was told he needed a gate permit, so he filled another template off the engineer's drawing and applied for a gate permit and it was granted.. Now the applicant has the placement of the gate, four columns permitted with denial of a fence to connect the gate to. Mr. Gregg further stated that the gate was applied for in July 2007 and a fence permit was turned down prior to that. Then when the applicant started to work on the gate in the front, an inspector came to the house and told Mrs. Gulledge that she had to have a permit for the fence. She told the inspector that her husband was told it was okay to repair an existing fence. The inspector stated since it was an existing fence, it was okay to repair it. After that,when the gate was completely finished, Mr. Gulledge was cited to be in municipal court, so this is what he has been dealing with ever since. Mr. Gregg stated this is a situation where we can have a gate and four columns,but cannot have a fence except on the side of the house. The gate is not a detriment to anyone and the applicant has spent a substantial amount of money. The whole thing deals with interpretation of the ordinance; the fence has not increased. He further stated that the Board has been furnished a petition from all of the immediate neighbors indicating that they are happy with the fence. He also gave the Board a list of the other eight locations in the City with similar fences in the front. Chairman Hughes stated that the ordinance specifically says that since ZBOA is definitely not a court of record, and even though there have been similar cases, each one is based on its own merit,and told Mr. Gregg not to waste time referring to other similar cases. Mr. Gregg stated the applicant is seeking one of two things: one is to seek a variance or another method. Chairman Hughes stated the Board would be referring to the petition later in the hearing. He also asked if there was anyone who would like to speak in favor of this application. Mr. Kenneth Gattin, Friendswood resident, stated he has lived there for thirteen years and has never seen the house without any sort of enclosure and that he has no objection to the fence. Chairman Hughes asked if anyone would like to speak against the request and since no one spoke against it, he closed the public portion of the meeting. Boardmember Knis asked Mr. Gregg if he was equating the structure to the fence. Mr. Gregg stated that he was and cited Sec. 14.3.9 of the ordinance. Boardmember Knis inquired about the acreage and stated it was 1.627 acres rather than the 1.67 acres that was stated earlier in the hearing. Mr. Gregg stated that the 1.67 was from the appraisal district, but he would accept Mr. Knis' amount. Boardmember Knis asked if at no time any one project repair of the fence exceeded 50% of the replacement cost of the fence. Mr. Gregg stated it did not and that Mr. Gulledge was in the construction business, so he was familiar with costs. Boardmember Knis inquired about access to the house when the gate is locked. Boardmember Kendrick asked if the gate had a coded keypad. Mr. Gulledge stated there is an electric gate and a walk gate and the electric gate has a coded keypad with a speaker. He further stated the subdivision is asphalt with open ditches, so the only access to anyone's property is through the driveway. Boardmember Knis inquired as to whether or not the fence blocks open access; such as a fire truck going through the gate. Mr. Gulledge stated the fence does not block the access and the only way to access someone's house is across the driveway over culvert pipes. Boardmember Knis stated when this particular fence was being built, there was a code officer who came to the house and said the fence could not be built without a permit and the permit was denied and that was in 2007. Mr. Gregg stated that a permit officer came back out and talked to Mrs. Gulledge and told her she would have to get a permit. This was after the gate permit was issued. She stated that her husband told her City Hall told him he would not need a permit because he was repairing an existing fence. Boardmember O'Brien stated that there was never a permit, that all of this was verbal. Mr. Gregg stated that was correct. Boardmember Kendrick asked for some history on the fence. He inquired as to what kind of fence was across the front of the property when it was purchased. Mr. Gulledge stated that part of the fence was a slat fence and part of it was cyclone and across the front was some barbed wire with wooden post originally and the lot was heavily wooded and there had always been a fence. He further stated that he had repaired the fence four different times; the fence had gone from barbed wire to wood, so it had evolved over the last twenty years or so to what it is today. As he repaired it,he upgraded it to make it look better. Boardmember Kendrick stated even though a permit was denied, construction continued on the fence after the permit was denied, not the gate,but the fence. Mr. Gulledge stated he was working on the fence and Code Enforcement Officer John Harrist came by and stated the fence was a good looking fence, one of the best he had seen, but said he would need a permit. Boardmember Kendrick clarified that the fence was the one of metal and stone. Mr. Gulledge replied that it was. He further stated that when he went to the City to apply for a permit, he was denied because he did not have the right acreage. While he was talking to the City Inspectors at City Hall, he was told he did not need a permit to repair a fence that was grandfathered. That is the first he learned the word grandfathered which was from a City Inspector, not John Harrist. After he was told he did not need a permit to repair an existing fence, he asked to speak with Building Official Frank Manigold; however, Mr. Manigold was busy at the time, so the secretary asked for his name and number and said Mr. Manigold would call him back. He went back to work (continued the repairs), but he never received any calls from Mr. Manigold. About a month later, John Harrist came to his property (Mr. Gulledge was not at home) and told his wife that he needed a permit to build the fence. She explained that the Building Department told her husband that a permit was not necessary to repair an existing fence. Mr. Harris stated that was correct; it was grandfathered. He gave her his business card and left and Mr. Gulledge never heard another word, so he continued with the fence. Then three or four months later he stated he received a citation to appear in court for a misdemeanor concerning the fence,tried to settle the manner, to change the ordinance at a small hearing of the Zoning Board. He stated the Zoning Board told him,along with Mr. Manigold,to get a variance. He stated he applied and Mr. Manigold said he would sign the affidavit that he could do this, have tried to settle the matter,thinks, in large,there has been a misunderstanding of what the rule is for him, does he need a permit to repair the fence or not, thinks the whole thing has been kind of confusing. Building Official Manigold stated repairs would be repairing what you have existing; it would be non-conforming in front. He further stated that if you repair, you can change what is there existing; if it were barbwire, you could replace it with barbwire. If you change it by putting brick columns and wrought iron fence,then you are making it more non-conforming; you can be less non-conforming but not more non-conforming. Mr. Manigold further stated this issue §tarted when he received a complaint when John Harrist and another inspector went to Mr. Gulledge's house and told him to stop work and come into the office to see about a permit. Mr. Manigold did talk to Mr. Gulledge on the 25th when he came into the office to bring the application for the permit. Mr. Manigold tried to explain to him what the City needed to have and to see about the acreage and all. He talked to him one other time and then Mr. Gulledge had his attorney call him. Mr. Manigold stated he could not talk to Mr. Gulledge after his attorney called him. That is why he did no return any of Mr. Gulledge's calls; he had to talk to his attorney from then on about what was going on. Mr. Manigold stated he was trying to get things resolved, either by purchasing more land or telling Mr. Gulledge he could not build a fence in front because it was becoming more non-conforming. He could repair the fence from his front building line on back. Normally, the repair that someone has is replacing pickets or part of a section of the fence that needs to be repaired, but taking down an existing fence and putting up a brand new one, that is more than just a repair, so you do need a permit to build any fence. Boardmember Kendrick questioned does that radical of a change makes it more non-conforming. Mr. Manigold stated yes, in the front yard. City Attorney Gervais stated you can not enlarge the fence. That's why Mr. Gregg referred to the cubic content because if you are going to make repairs, you can not make it in a way that makes it bigger. The cubic feet is not just the area but the depth; that is one of the provisions of the ordinance. You can repair but you cannot repair in 36 months more than fifty percent of the current replacement cost and you cannot repair if the cubic content has been increased. Boardmember O'Brien asked if the cubic repair included the height of the fence. Mr. Gregg stated the ordinance says repair or replacement of non-bearing walls. Boardmember O'Brien stated that in the past, when we have had something like this, repair or even an upgrade if it needed to be fixed, you were allowed to make it prettier or whatever, but it still had to come within the fifty percent rule. Grandfathering means if it is non-complying and you are going to repair it, you are allowed to do whatever you want to, as long as you do not exceed fifty percent of the value. It looks to me like because you are replacing the whole front fence, that's got to be one hundred percent. That's got to exceed more than fifty percent of the old one. Mr. Gregg stated that when we started, there may be two different interpretations. Boardmember O'Brien stated that is correct, but he is referring to the first one. This one is that you are saying all you are doing is repairing the fence, but if it is non-complying, you are not allowed to do more than fifty percent of the value. Since you are replacing the whole fence in the front, the non-compliance section, one hundred percent has to exceed fifty percent for that part of it. Mr. Gregg stated the ordinance does not say that. That is the test. He stated he was told in the beginning there needed to be a reasonable difference of interpretation and he agreed there are two different interpretations. Frankly, the ordinance is not specific about that; you can read it however you want to and that is unfortunate that it is not that clear. He knew there was one way that the City Inspector had read it and Mr. O'Brien did not read it that way. Boardmember O'Brien inquired if Mr. Gregg had read the fifty percent part of it. Mr. Gregg stated he had read the fifty percent, but the fence is what is non-compliant. Boardmember O'Brien asked if it was the fence in front of the house. Mr. Gregg stated the ordinance does not say that. He stated he understood Mr. O'Brien saying that because the ordinance could be read that way, but you could also read it to be around the whole property. It is a two acre standard and this is not two acres. Boardmember Kendrick asked is there was a challenge on any other fence that is directly in front of the house and whether we talking about any other portion of the fence. Mr. Gregg stated they may be talking about from the front of the house to the road, it is hard to tell along the side property line or they may be just talking about the house in front. Boardmember Knis asked about the front property frontage. Mr. Gulledge stated it is less than what is required of a normal lot; normally it is 120 feet, but he thought it was 110 feet and one property line if 400 feet from the street to the creek. Boardmember Knis restated the question of the 110 feet and wanted to know if all of it was replaced with the wrought iron fence. Mr. Gulledge stated yes, but a large section of that was the gate; the gate and the side fence that was permitted. Boardmember Knis stated he was not clear on what was there originally; he understood that some of it was wood and some of it was something else and some of it was barbwire and was there barbwire in the front. Mr. Gulledge stated mainly barbwire and a swinging gate, like a farm gate. Boardmember Knis wanted to know if the iron gate went along the side at all. Mr. Gulledge stated it did for maybe fifty feet on one side and maybe fifty or sixty feet on the other side. Boardmember Dyer asked if the iron gate does not completely go around the property. Mr. Gulledge stated the iron does not; it is actually an aluminum wrought iron look; but it stops and changes to wood. Boardmember Knis asked him if he had 220 feet of that wrought iron in the front. Mr. Gulledge asked if he meant including the gate and everything. Boardmember Knis asked if the gate was 20 feet. Mr. Gulledge stated the gate is 24 feet and the side fences were 20 feet each side when he applied for the permit. Mr. Manigold stated there were only supposed to be the columns and the gate that was allowed for the permit. Boardmember Kendrick inquired if the permit was only supposed to be for a column or either side of the gate and the physical gate and when there was a stop put on the construction. He stated the information that the Board had was on the columns and wanted to know if they were all up then. Mr. Manigold stated the columns were all in place. Mr. Gulledge stated the columns were not all completed. Mr. Manigold said there were completed on May 30, 2007 Boardmember Kendrick asked if all of the columns were up, not just the two for the driveway. Mr. Gregg stated the gate was not permitted until July. Boardmember Kendrick asked if the columns were up by then for the permit. Mr. Gulledge stated that he did not remember. He did not know he needed a permit for a gate, so when he was told what to do, that is when he went to get a permit. That is when everything started. He stated it was brought to his attention, so he stopped work and went to apply for the fence permit; then he was told he needed to apply for a gate permit separately, so he applied for the gate permit and drew it on the little sketch. He got the permit for the gate but not the fence. Chairman Hughes stated he looked at the property and on the west side (left side) and that there looked like there was a fairly new wooden fence back there also and asked if that was correct. Mr. Gulledge stated yes. Chairman Hughes stated it looked like the wooden fence came beyond the front building line also. Mr. Gulledge stated it did. Chairman Hughes asked if this was where part of the wooden fence was previously. Mr. Gulledge stated that it was. Chairman Hughes inquired if where the new metal fence was up, did it correspond with what used to be the barbwire, the fence post, and the wire fence. Mr. Gulledge stated yes and that the rest of the fence was metal as well; it goes around the whole property. Chairman Hughes asked if the fence goes around the back yard, as well, was chain length or metal. Mr. Gulledge stated that it looks like a chain length fence, but it is like chain length and hog wire, kind of a farm type fence. Chairman Hughes referred to the drawing. He inquired in the essence of the appeal, was it important to anyone if the fence was there before or after the house was built. Mr. Gregg stated he did not think it made any difference. Chairman Hughes inquired as to what decision the applicant was appealing, whether the fence was grandfathered and whether an additional fence could be placed there. Mr. Gregg stated grandfathered and repair of the grandfathered fence. He further stated it was the interpretation that the language said the current replacement cost of the non-conforming structure or the portion of the structure and his interpretation was the whole fence around the whole property. The question is what is the structure. Chairman Hughes commented if it is assumed everything in front is non-conforming in front of the building line, then what percent of the fence is in front of the house and what part of that was repaired. Mr. Gulledge stated that the front part is approximately one-third of it is in the front. Chairman Hughes asked how much of the one-third metal fence was replaced. Mr. Gulledge stated the metal fence in the front was all replaced. Chairman Hughes asked how much of the metal fence was wood and how much was metal. Mr. Gulledge stated approximately forty percent, including the gate and sixty percent was wood. Chairman Hughes stated this was the first time the permitting of a gate had come, so there was a separate ordinance on putting up a gate. Boardmember O'Brien stated the columns were probably a big part of the cost, the ones in the non-conforming part of the fence. He further stated that one of the provisions we have is if a structure is so far along, we can consider the cost of what is there versus making it come back in compliance. Additionally, if you have these big columns already there, that has to be an appreciable cost of this fence project. He stated he was talking about the ones in the non- conforming area in front of the house; they were there when the City asked Mr. Gulledge to stop work on it. So we have an appreciable part of the structure already completed and the cost expended when the stop work was issued. Mr. Gulledge stated yes. Boardmember Kendrick asked if there were any conditions in the neighborhood where the same structure could be built. Mr. Manigold said there was not. Boardmember Kendrick asked if this would appreciate the value of this property. Mr. Gattin said yes it would. Chairman Hughes asked Mr. Gattin if he would like to have a similar fence in front of his property. Mr. Gattin stated that he would. He further stated that Mr. Gulledge's fence kept some of the flooding away from his property and he was in favor of the fence. Chairman Hughes asked Mr. Gattin if Mr. Gulledge's fence was an upgrade to what he already had. Mr. Gattin stated that it was and from a safety standpoint and flood control, it was an upgrade from a wood fence. The fence helped Mr. Gulledge's property and did not hurt his neighbors. Boardmember O'Brien asked if the fence made the whole neighborhood look better. Mr. Gattin stated that it did. Boardmember Knis stated that the question was did anyone look at the third option and does this fit in under the third option. Recently City Council approved exceptions to the rules two or three months ago. Mr. Gregg stated he was not aware of the exception. Boardmember Knis stated he had not heard any persuasive discussion tonight that I would feel comfortable with. He further stated that we have to operate under some very narrow guidelines for variances. The exceptions give a little bit more leeway. He stated that Mr. Gregg look into the new exceptions. Boardmember Kendrick asked if the exceptions would be beneficial to the time the permit was asked for or denied. Chairman Hughes stated that the state allows the Zoning Board of Adjustments three areas of authority. One of them is an appeal, another one is a variance with a different set of rules and recently Council adopted a third area (this is the first meeting since the exception was granted) which is special exceptions. The exception is something you may want to look into, but it is not part of your application tonight, so there isn't any headway we can make on that tonight. I will happy to discuss this with you later to see if this is something you want to look into. Boardmember O'Brien commented that what he is hearing is that the existing fence was a partial wood structure and wanted to know if it was blocking the drainage or not. Mr. Gulledge stated it did not, but back in 1986 or 1987 part of it was a swing gate, wooden post, barbed wire, and some wood slats. Over time, he has upgraded the fence due to storm damage and flooding. Additional discussion among boardmembers, Mr. Gulledge, and Mr. Gregg continued as to the construction of the fence and it was decided in the best interest of the applicant to table the request to allow the applicant to explore the possibility that the new exception adopted by Council might apply in his case. Mr. Dyer made the motion to table the case until the next regular meeting on September 22, 2009. Boardmember O'Brien seconded the motion. The motion was unanimous. One correction Kendrick didn't second motion on last page at bottom. Third to last line Czarowitz did. The motion to approve the December 16, 2009 minutes was approved by Boardmember Dyer and seconded by Boardmember Knis as corrected by changing the seconded motion on the minute approval to Boardmember Czarowitz. The motion was unanimous. A motion was made and approved to adjourn at 8:30 PM. Greg Hughes Chairman Attest: //`mot; Sharon Parks ZBOA Staff Liaison