HomeMy WebLinkAboutZBOA Minutes 2006-11-06 Special, Joint w/ City Council State of Texas )(
City of Friendswood )(
Counties of Galveston/Harris )(
November 06,2006 )(
Minutes of a Joint Special Meeting of the Friendswood City Council and the Zoning Board of Adjustment
that was held on Tuesday,November 06, 2006 at 4:30 PM at Friendswood City Hall Council Chambers,
910 S.Friendswood Drive,Friendswood,Texas,with the following present constituting a quorum:
Chairman Ron Decker
Vice Chairman Greg Hughes
Regular Member David O'Brien,III
Regular Member Steve Knis
Regular Member Elisabeth Wagner
Alternate Member Mike Czarowitz
Alternate Member Ric Miller
Alternate Member Linda Thornton
Staff Liaison Melinda Welsh
Alternate member Mike McDonald was absent from the meeting.
Mayor David Smith and Zoning Board of Adjustment Chairman Ron Decker called the meeting to order
at 5:30 PM following City Council's 4:30 PM Work Session.
5:30 PM-Special Session
Discussion was held between City Council and the Zoning Board of Adjustment and Appeals (ZBOA)
regarding Special Exceptions. Zoning Board of Adjustment Chairman Ron Decker introduced members
of ZBOA that were present which was Greg Hughes, Ric Miller, Mike Czarowitz, David O'Brien, Linda
Thornton, Steve Knis and Elisabeth Wagner. Chairman Decker gave a PowerPoint presentation regarding
special exceptions, authority of the Zoning Board of Adjustment (ZBOA) is given by Texas Local
Government Code 211.009, the ZBOA is a quasi-judicial body with authority in three specific areas
(211.009(a)) which are appeals from administrative decisions in the enforcement of the Zoning
Ordinance, special exceptions as permitted by the governing body and variances in specific cases,
administrative appeal authority is given by Texas Local Government Code 211.010, and can be brought
by a person aggrieved by the decision, or any officer, department, board,or bureau of the City affected by
the decision, an appellant must file an official appeal form with the ZBOA and a hearing must be held
within 45 days as required by Ordinance,the appeal stays all proceedings in furtherance of the action that
is appealed, special exception authority is given by Texas Local Government Code 211.008, the City
Council may authorize the Board of Adjustment, in appropriate cases and subject to appropriate
conditions and safeguards, to make special exceptions to the terms of the Zoning Ordinance that are
consistent with the general purpose and intent of the ordinance, must be permitted and required by the
City Council, the City Council has not done so, variance authority is given by Texas Local Government
Code 211.009, variances should be granted only in limited instances, the ZBOA may authorize, in
specific cases, a variance from the terms of the Zoning Ordinance if the variance is not contrary to the
public interest, and due to special conditions, a literal enforcement of the ordinance would result in an
unnecessary hardship and so that the spirit of the ordinance is observed and substantial justice is done.
Further discussion was held regarding what a hardship is, it is a prerequisite to a variance, the hardship
test asks,"Does the enforcement of the ordinance destroy any reasonable use of his property?" (Reiter v.
City of Keene, 601 S.W.2d 547 (Tex. App.—Waco 1980)), in other words, "Is the environment such that
the lot is not reasonably adapted to a conforming use?" (Board of Adjustment v. Stovall, 218 S.W.2d 286
(Tex. City. App. — Fort Worth 1949, no writ)), asked if hardship, is something more than financial,
"Unnecessary Hardship" language expressly limits the ZBOA's power to grant a variance: "The Code
expressly provides that the unique circumstances existing on the property so as to justify granting a
variance must be something other than a financial hardship. A variance is not authorized merely to
accommodate the highest and best use of the property, but where the Zoning Ordinance does not permit
any reasonable use of such lot." (Board of Adjustment of the City of San Antonio v. Willie, 511 S.W. 2d
591 (Tex. City. App.—San Antonio 1974, writ)), Financial hardship is not a special condition envisioned
by the statute. (Battles v. Board of Adjustment and Appeals of the City of Irving, 71 S.W.2d 297 (Tex.
App. —Dallas 1986, no writ), example of variances is the applicant wants to put a pool in his backyard,
because of the configuration of the house and the physical characteristics of the lot,the only place for the
pool requires 5 foot encroachment into the side yard set-back. The neighbors do not oppose. Another
example is the applicant is building a house, permit was issued six weeks ago and signed by the Building
Official. Plans submitted to Building Official show a 4 foot encroachment into required front yard, the
house is 50% complete, to comply with the ordinance would cost $30,000. Another example is the
applicant wants to build a house on a corner lot, because the sides of the lot are on two streets, he has
greater set-back requirements than lots in the middle of the block. The lot is oddly configured so that he
can only place a building pad with a 25 foot depth on the lot without encroaching on the set-backs.
Regarding variances - granting of variances when all of the requirements for a variance are not present
becomes a legislative or Council function. Granting of variances in the absence of all elements of a
variance can seriously erode the comprehensive zoning plan. Zoning regulations are a very long-term,
planning device, there are many legally existing, nonconforming uses of the land that take time to be
eliminated. The ZBOA asked Council to meet and consider allowing special exception authority, gave
examples about citizens requesting covered patios, Development Review Committee (DRC) is trying to
come up with parameters for breezeways, other example is Perry's Steakhouse is requesting for a portable
building, had to disapprove the variance because of the ordinance, the info received from City Attorney
John Olson showed special exceptions examples from other cities is limited,ZBOA is not seeking a broad
and general exception, another example is at final inspection a builder discovers setback is too close does
it constitute a hardship,Mayor Smith stated he has seen some of the problems and favors granting special
exceptions but would like to hear other opinions, Councilmember Measeles asked if it sets a precedent
when they allow variance or does it stand on its own merit, Chairman Decker stated it does not set a
precedent, City Attorney John Olson stated the City has to keep in mind that anytime the Board is allowed
to use it's own common sense, the City gets into trouble, it is a legislative decision, should be solved by
changing the ordinance and not by allowing special exceptions, the Board is a judicial body and not a
legislative body, cannot do general special exception authority, Councilmember Measeles asked John
Olson if other cities have special exceptions, City Attorney John Olson assured no, not for general
exceptions, stated it could be discriminatory if the City does not allow across the board, Councilmember
Hill asked about Perry's Steakhouse being denied and told them to come up before Council to discuss
changing the ordinance, does not think Council should put restraints on ZBOA, should help them and the
people they are trying to help, City Attorney John Olson stated ZBOA is not the architectural control
committee but a quasi-judicial body, Mayor Smith asked if ZBOA would prepare a list of special
exceptions they would like to have,Ron Decker stated he feels like his job is to deny variances and would
like special exceptions to approve for variance when it makes sense, feels like most issues are new most
of the time and not many that come back again and again, Vice Chairman Greg Hughes stated ZBOA
does not want to change the ordinances but to make a special exception, member David O'Brien stated
ZBOA wants wiggle room, Councilmember LeCour stated he would like to hear how ZBOA feels about
ordinances and if they recommend changes,Vice Chairman Greg Hughes suggested turning in a quarterly
report to Council of cases that come up with suggested changes, Councilmember Horecky says he would
like ZBOA to be able to grant special exceptions when warranted, which is their job, would like to see a
list from ZBOA, ZBOA member Steve Knis spoke about the case presented of a garage being too close,
the builder volunteered to put in special drains to help with drainage, Councilmember Ewing stated the
immediate need is special exceptions and for ordinance change recommendations later, Mayor Smith
stated he would like them to do all so they can get the ball rolling, stated the consensus from Council is
that they want to see the lists and appreciates the Board's effort.
The meeting was adjourned at 6:16 PM.
Ron Decker
Chairman
Attest:
Melinda Welsh,Deputy City Secretary
ZBOA Staff Liaison