02-24-2005 Regular Meeing and Public Hearing

Browse Search

Board of Adjustment February 24, 2005 #A 05-001 Page 2 of 4 site parking has to serve the primary use within 300 ft. of the building at 2219 Underwood Road. Off -site parking within General Commercial zone is classified as a Conditional Use per Section 106441 of the Zoning Ordinance. Mr. Melvin Walker applied for a Special Conditional Use Permit #SCU 99-001, for the subject tract leased from Mr. David Schoolcraft to construct off -site parking for serving a restaurant located at 2219 Underwood Road. The Planning and Zoning Commission and Council approved the request subject to an annual review. On September 3, 1999, The Texas Grill Restaurant was issued a zoning permit signifying that it was in conformance with the City's Zoning Ordinance. Due to a legal conflict with the landlord, and loss of the oil site parking area, the dine -in restaurant was forced to close December 2000 and remained so until April 12, 2004. At Mr. Walker's request, on April 12, 2004, he received a zoning permit for the Texas Grill for "catering only" no "dine-W' permitted. Again at his own request, Mr. Walker appeared before the Planning and Zoning Commission for a Special Conditional Use permit (SCU#04-009) to allow off -site parking and to be able to re -open the Texas Grill. City Council approved the request on June 14, 2004, subject to the provisions of the SCUP to wit temporary parking would be permitted on a leased area for six (6) months and a signed lease agreement for permanent parking be submitted for review by the City Attorney. This lease for permanent parking was never submitted thereby negating the provisions of the SCUP. The zoning permit and Certificate of Occupancy were, therefore, never issued. The Texas Grill open illegally on July 10, 2004. Mr. Walker's ' contention is that he was "illegally forced" to comply with the zoning ordinance in 1999. His basis for that line of reasoning is that his restaurant was a pre- existing -nonconforming use since 1982 which pre -dates the current zoning ordinance. As discussed, however, the non -conforming use was abandoned for greater than 180 days and, therefore forfeited. See analysis below. In describing the action of appeal, the Code of Ordinances states: In exercising the powers set forth in Section 106-88, the Board of Adjustment may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination as ought to be made, and to that end shall have all the powers of the enforcement officer from whom the appeal is taken. The Board must find the following in order to grant an appeal. a) That there is a reasonable difference of interpretation as to the specific intent of the zoning regulations or zoning map, provided the interpretation of the enforcement officer is a reasonable presumption and the zoning ordinance is unreasonable. b) That the resulting interpretation will not grant a special privilege to one property inconsistent with other properties or uses similarly situated