HomeMy WebLinkAbout01-25-1990 Public Hearing and Regular Meeting,.
C.rTY OF L.A FORTE
2ON.Z"NG BOARL7 OF ADJUSTMENTS
PUBLIG HEAR.~NG
F.LBRUAR.Y 22,. ~ 9 9 O
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M1'"NUTES
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LA PORTE BOARD OF ADJUSTMENT
MINUTES OF
JANUARY 25, 1990
Members Present:
Deborah Bernay,
Hines, Willie
Christensen
Jody Seeger, Steve
Walker, Charles
Members Absent:
All Present
City Staff Present: Director of Community Development Joel
H. Albrecht, Chief Building Official
Ervin Griffith, Assistant City Attorney
John Armstrong
Others Present: Eddie Gray, representing Fairmont Park
Joint Venture
1),. CALL TO ORDER
The meeting was called to order by Chairman Deborah
_ - Bernay at 7:00 P. M.
2) APPROVAL OF MINUTES OF THE JANUARY 25, 1990 MEETING
A motion was made by Deborah Bernay for the minutes to
be approved as read. All were in favor and the motion
passed.
3) CONSIDER VARIANCE REQUEST #V90-001, A REQUEST BY MR.
DECKER MC KIM ON BEHALF OF FAIRMONT PARK JOINT VENTURE.
REQUEST SEEKS RELIEF FROM THE THREE (3) FOOT SETBACK
REQUIRED IN RESIDENTIAL SIDEYARDS ADJACENT TO UTILITY
EASEMENTS. THIS REQUEST SEEKS TO HAVE THIS SETBACK
REQUIREMENT REDUCED TO ZERO (0) FEET. RELIEF IS BEING
SOUGHT FOR FIFTEEN (15) LOTS LOCATED IN SECTIONS I AND
III OF THE FAIRMONT PARK EAST SUBDIVISION. LOTS IN
QUESTION ARE LOCATED ON PECAN DRIVE, LINWOOD COURT,
LINWOOD DRIVE AND DOGWOOD DRIVE.
Joel Albrecht presented the staff's report on the
Variance Request #V90-001. The applicant on behalf of
Fairmont Park Joint Venture is Mr. Decker Mc Kim, who
is being represented by Mr. Eddie Gray. The
application is for a three (3) foot variance to the
three (3) foot residential sideyard setback
requirements of Section 5.7, Table B, footnote 3 of
• Ordinance #1501. The three (3) foot setback came from
an old zoning ordinance which had a larger rear yard
setback that required a different space requirement for
the rear yard. As the new ordinance was adopted, there
was a requirement for the three (3) foot setback for
® Board of Adjustment
Minutes of 1-25-90
Page 2 of 4
all easements. It was not thought at the time, that
the setback would apply to easements that provide
electric utility lines along the side of property to
street lights located in front of property. The effect
is, on same piece of property, a smaller house would
have to be built rather than what was originally
planned for General Homes. The existing sections of
Fairmont Park were approved previous to the adoption of
new Zoning Ordinance #1501, and the lot requirements
did meet the then existing zoning requirements. The
property in question are single family dwellings
located on Linwood Ct., Linwood Drive and Dogwood
Drive.
ANALYSIS•
Section 11-606 defines the term variance as follows:
The term "variance" shall mean a deviation
from the literal provisions of the Zoning
Ordinance which is granted by the Hoard when
strict conformity to the Zoning Ordinance
would cause an unnecessary hardship because
of the circumstances unique to the property
on which the variance is granted.
Before a variance can be granted, there are three (3) tests
that must be proven:
1) That the granting of the variance
will. not be contrary to the public
interest.
2) That literal enforcement of the
Ordinance will result in
unnecessary hardship because of
exceptional narrowness,
shallowness, shape, topography or
other extraordinary or exceptional
physical situation unique to the
specific piece of property in
question. "Unnecessary hardship"
shall mean physical hardship
relating to the property itself as
distinguished from a hardship
relating to convenience, financial
•
Board of Adjustment
Minutes of 1-25-90
Page 3 o f 4
considerations or caprice, and the
hardship must not result from the
applicant or property owner's own
actions; and
3) That by granting the variance, the
spirit of the Ordinance will be
observed.
The applicant contends that since the subdivision design
conformed to all of the city requirements at the time it was
approved, that conforming to the current setbacks in Ordinance
#1501, would cause unnecessary hardship. We do feel that the
applicants claim of unnecessary hardship is reasonable.
Requesting a variance to reduce setbacks to sideyard utility
easements to zero (0) feet is eligible for consideration. There
is currently an existing electric line going through the easement
that is encased in such a manner that should the line need to be
.replaced, it could be pulled through. No additional digging
would need to take place on the property. The staff feels there
is no problem with the granting of this easement and it is
consistent with the requirements of the zoning ordinance. We
recommend consideration of the request.
Mrs. Bernay swore in Mr. Eddie Gray with Fairmont Park Joint
Venture. He stated he concurred with the details discussed. He
stated there is really no change being asked for. All the homes
that have been built, have been built just like this and the
subdivision is already built, the lots are laid out and we would
like to continue on just like they are so this won't be a change
from what has been going on. He stated he would appreciate the
Board's consideration in passing the request.
4) CALL FOR VOTE TO APPROVE OR DISAPPROVE VARIANCE REQUEST
#V90-001
Jody Seeger made a motion to grant the variance
request. The motion was seconded by Steve Hines.
Variance Request unanimously approved.
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Board of Adjustment
Minutes of 1-25-90
Page 4 of 4
5) ADJOURNMENT
_ There being no further business, the meeting was
adjourned at 7:20 P. M.
Respectfully submitted,
Cheryl Stout, Secretary
Code Enforcement
Minutes approved on the day of
Deborah Bernay, Chairman
~~ Board of Adjustment
01-25-90
1990.
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APPEAL G7F THE .ENFG~RCING ~FFIG.ER' S IJECIS IG~N
A90-OQZ
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CITY OF LA PORTE •
- ZONING BOARD OF ADJUSTMENT
APPEAL OF ENFORCEMENT OFFICER'S DECISION
S --------------------------------------------APPlication Plo. ~~n- bal -
OFFICE USE ONLY: Date Received: ~;~9/~y _
Applicant• Belmont Constructors, Inc.
• Name
1241 Underwood Road, La Porte, Tx 77571 PH: 471-6566
Address
I am the owner of the herein described property. I have authorized
W. G. Clark, Jr. to act on my behalf in this matter.
Owner*: Belmont Constructors, Inc. _
Name
1241 Underwood Road,'La Porte, Tx 77571 PH: 471-6566
Address
I am appealing the decision regarding or the interpertation of
Sect.' 4-202.2 of the City Zoning Ordinance No. 1501. I am making
this appeal in regards to the property located
at. 1241 Underwood Road See Attached Exhibit A
Street Address Legal Description
' (X) Site Plan ( ) Minor Development Site Plan
( ) Major Development Site Plan ( ) General Plan
A Site Plan of the property is attached. Also, I have listed the
information requested below on the following pages of this form.
a) All facts concerning the matter that has led up to this request.
b) The type of relief I am seeking (setbacks, lot coverage, etc.).
c) The grounds upon which I am making this request.
'~ If applicant is NOT the owner, he must provide Authorization to act
on the Owner's behalf. /, ~j Li~ „ - .
February 9, 1990 ~/!~/! /ate//-
Date Applicant's Signature
-----------------------------------------------------------------------
OFFICE USE ONLY
Site Plan and Authorization (if applicable) attached? Yes ( ) No ( )
Date transmitted to the Board of Adjustments:
~4eeting Date:
Applicant ~dotified of Date:
Board's Decision: Approved ( ) Denied ( )
• Notice of Board Decision mailed to Applicant/Owner:
~-_. r
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PAGE 2
If there is not adequate room on the remainder of this form to
list all pertinent information, please feel free to attach an
additional letter or any information and exhibits you feel the Board
should consider.
FACTS RELEVANT TO THIS ?•tATTER:
SEE ATTACHED
TYPE OF RELIEF BEING SOUGHT:
SEE ATTACHED
GROUNDS FOR THE REQUEST:
SEE ATTACHED
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CED/1-~87
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BELMONT
Belmont Constructors, Inc.
Facts Relevant To This Matter:
In the early 1970's Fish Engineering Company purchased a 21.6 acre
tract of land located at 1241 Underwood Road. On this property
were several structures. Today, there is an office building, a
large warehouse, a large fabrication shop (which was built by Fish
in 1972 specifically for the fabrication of pipe) and several
smaller buildings.
Fish Engineering utilized the entire property in the normal
operation of an engineering/construction company i. e.
engineering, storage of pipe, storage of tools and equipment, pipe
bending, welding and fabrication operations.
During these early years the property was within the boundry of
the community of Lomax and was subject to Lomax's ordinances.
On Jan. 1980, the City of LaPorte consolidated with Lomax and
assumed the area in which the Fish property is located. This
placed the property within the commercial zoning classification of
LaPorte's zoning ordinance number 780.
In January of 1987 LaPorte's zoning ordinance number 1501 came
into effect. This placed the front portion of the property in the
general commercial category, the center portion in an R-2 category
and the rear portion in an R-1 category. The usage of the property
under ordinance number 780 was conforming, but under ordinance
number 1501 it became legal non-conforming.
The City of LaPorte, however, allowed Fish to continue using the
entire property in a legal non-conforming use status.
In the mid 1980's there was a decline in the construction
industry. Because of this decline Fish Engineering shrunk it's
construction activity on Underwood Road to an approximate 4 acre
section of the 21.6 acres.' This included the office building and
warehouse in which Fish continued with normal construction
activities. The remaining piece of the property (approx. 17
acres-including the large fabrication shop) was leased to a
company named Refurbco for the renovation and repair of mobile
homes.
On June 15, 1989 Refurbco discontinued their lease with Fish and
the property, with it's non-conforming use status, reverted to
Fish.
2400 West Loop South Suite 550 Houston, Texas 77027 • (713) 621-3223 • Fax: (713) 621-1822
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BELMONT
Belmont Constructors, Inc.
Type of Relief Being Sought:
In November 16, 1989, Belmont Constructors, Inc. signed an option
to purchase the entire 21.6 acres of land and the buildings on
Underwood Road from Fish Engineering.
Belmont, like Fish, is an engineering and construction company.
Belmont will continue to use the property for normal day to day
engineering/construction activities as allowed by LaPorte's
ordinances and within the SIC classifications 2451 and 3443 as
established by the city.
,: The office building and warehouse on the 4 acre piece of the 21.6
acre property will continue to be used under a non-conforming use
exactly as it has always been used by Fish Engineering.
The City of LaPorte contends that the right of non-conforming use
as a construction/fabrication yard has ceased on the 17 acre
portion of the tract. The City of LaPorte maintains that this
right ceased when the Refurbco lease was executed.
Section 4-202.4 of the City of LaPorte's zoning ordinance states
that the Board of Adjustments in determining whether or not a non-
conforming use has been abandoned shall decide whether or not the
owner intended to abandon the non-conforming use during the period
of cessation. Belmont believes that it was never the intention of
the former owner, Fish Engineering, to abandon the non-conforming
use. This is the basis for this appeal. Belmont is only
appealing the City of LaPorte's decision as it regards the large
fabrication shop and attached concrete slab indicated on the
attached site plan..
The entire length of the shop's south side adjoins the 4 acre
section of property. The shop's double doors open directly on to
the 4 acre section and to the attached slab on the east end of the
building.
The remaining 17 acre section of land, with buildings, would
remain under the current non-conforming use as was being used by
Fish Engineering.
2400 West Loop South Suite 550 Houston, Texas 77027 (713) 621-3223 Fax: (713) 621-1822
0 ~
BELMONT
Belmont Constructors Inc.
The Grounds for the Request:
The shop fabrication building was specifically designed and built
as a manufacturing facility. It's main features are an overhead
crane and high-bay construction.
To use this shop in any other way than what is was designed for is
a total economic waste.
The only option is to tear down and relocate the overhead crane to
a usable location which will be a significant added expense. The
• large shop will then be rendered useless except for storage.
During the economic downturn in the construction industry when
Fish leased the property to Refurbco, there was absolutely no
intent to abandon the non-conforming use status of the total
property. It was only the soft construction market that forced
Fish into this position as well as the legal and binding lease to
Refurbco..
Granting this appeal to use the shop fabrication building and the
attached slab under the 4 acre non-confirming status and SIC
number 3443 will certainly relieve Belmont Construction from an
unnecessary hardship.
Additionally, while greatly relieving Belmont's hardship there
will be no adverse effect on the value and/or use of adjacent or
neighboring property nor will it be contrary to either the short
term or long term best interest of the citizens of LaPorte.
2400 West Loop South Suite 550 • Houston, Texas 77027 • (713) 621-3223 Fax: (713) 621-1822
EXPID3IT "A"
Approximately 21.5493 Acres composed of LaPorte Outlots 367 through 370
in the Enoch Binson Survey, Abstract ,Harris County, having a street address
of 1241 Underwood Road, LaPorte, Texas.
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® APPEAL OF THE ENFORCINr OFFICER'S DECISION #A90-001
Requested By: Mr. W. G. Clark, Jr. on behalf of
Belmont Constructor's, Inc.
Requested For: Belmont Constructor's, Inc. which is
located at 1241 Underwood Road. (See
Exhibit A).
Leaal Description: An approximately 21.5493 acre tract
composed of La Porte Outlots 367-370 out
of the Enoch Brinson Survey; Abstract 5.
Zonina: General Commercial (G. C.), R-2 Mid
Density Residential, R-1, Low Density
Residential. (See Exhibit A).
Subject of Appeal: Determination by the Enforcing Officer,
that the right of non-conforming use on
• a portion of the applicant's property
has ceased and is no longer in effect.
.• Background: .
As noted in the •applicant's letter, Fish Engineering Company
purchased and developed the subject tract (1241 Underwood Road)
prior to the La Porte, Lomax incorporation. Following the
January 1980 incorporation into the City of La Porte, a zoning
designation of "Commercial" was placed on the Fish property.
Under Ordinance 780, the zoning ordinance in effect at the time,
Fish's use of the property as a construction/fabrication shop and
yard was a conforming use within Commercial zones.
Ordinance 780 was still in effect in the mid 1980's when,
due to a downturn in .the local economy,• Fish was forced to scale
back their activities at the Underwood Facilities. In December
1985, while still under the regulations of Ordinance 780, Fish
Engineering leased a seventeen (17) acre portion of their
property to Re-Furb-Co. Inc., whose business was the repair of
repossessed mobile homes, (See Exhibit B). Re-Furb-Co occupied
this portion of the Fish property until June 1989. The seventeen
(17) acre section which they occupied contains a large 46 ft. x
200 ft. shop .building and an adjoining 46 ft. x 160 ft. open
slab. The building and slab are the subject of Belmont's appeal.
(See Exhibit G).
In January of 1987, while Re-Furb-Co. still held the lease
on the seventeen (17) acre section of the Fish property, the City
® of La Porte adopted a new zoning ordinance and map. This
APPEAL OF THE ENFORCING OFFICER'S DECISION #A90-001
PAGE -Z
ordinance, (#1501) and map rendered Fish's
construction/fabrication activities at the Underwood facility,
non-conforming. This non.-conforming status was applied to the
four (4) acre portion still occupied by Fish. The remaining
seventeen (17) acre section occupied by Re-Furb-Co., while also
classed as non-conforming, was assigned a different
classification based on their business of mobile home repair.
This was the situation as of December 1989, when the Fish
facility was acquired by Belmont Constructor's, Inc., an
engineering and construction company which specializes in the
same type of work as Fish Engineering.
Belmont purchased the entire Fish facility and occupied the
four (4) acre portion which has remained in continuous use as a
construction/fabrication facility. This constituted a
continuation of a legally established non-conforming use and was
therefore perfectly proper under the City's current zoning
regulations.
• Belmont has subsequently come to the City and requested the
right to use the large shop building and slab located on the
seventeen (17) acre portion of their property. Based on the Re-
Furb-Co lease, and using Section 4-202.4 of the Zoning Ordinance
as a guide, the Enforcing Officer (Director of Community
Development) has determined that the right of non-conforming use
as a construction/fabrication shop and yard has ceased so far as
the seventeen (17) acre section of the Belmont property is
concerned. This is the decision being appealed by Belmont
Constructor's, Inc. Belmont is also basing their appeal on
Section 9-202.4 of the Zoning Ordinance.
Analysis•
As Section 4-202.4 lies at the heart of this appeal, it will
probably be helpful to quote the section in its entirety.
4. Abandonment of Non-Conforming Use
A non-conforming use, when abandoned, shall not resume.
A non-conforming use is abandoned when land used for an
established non-conforming use ceases to be used for a
period of ninety (90) consecutive calendar days, and it
is determined that an intent to abandon the non-
conforming use occurred, as evidenced by an overt act
® or a failure to act on the part of the non-conforming
_ use landowner or his occupant.
s
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APPEAL OF THE ENFORCING OFFICER'S DECISION #A90-001
PAGE -3-
Whether or not a non-conforming use has been abandoned
is a question that shall be determined by the Board of
Adjustment. The property owner or his representative
seeking to maintain the existing non-conforming use
shall have the burden of proving to the Board of
Adjustment that the use has not been discontinued for a
period of ninety (90) consecutive calendar days, and/or
that the owner or his representative did not intend to
abandon the non-conforming use during the period of
cessation of use of the non-conforming use.
Using the first paragraph of this section as a guide, the
enforcement officer determined that the non-conforming use on the
seventeen (17) acre portion of the applicant's property had been
abandoned. Based on Fish's multi-year lease to Re-Furb-Co., it
is clear that the use of construction/fabrication yard has been
abandoned in excess of ninety (90) days.
Belmont's appeal is based on
section; specifically that "the ow
the non-conforming use during the p
the second paragraph of this
er did not intend to abandon
iod of cessation of use_...
Belmont, as noted in their application, contends that Fish
Engineering never intended to abandon the use of the seventeen
(1?) acres as a construction and fabrication shop and yard. They
claim, the lease to Re-Furb-Co., Inc., was an effort to maintain
some degree of income from the property until such time as the
economy (and therefore Fish's business) improved to a point that
would justify reactivation of the facility. They also point out
that at the time the Re-Furb-Co. lease was executed, the
facility, as used by Fish, was a conforming use. Abandonment of
a non-conforming use was therefore not even an issue to be
considered at this time. Fish was not aware that zoning
restrictions on their property would change in January 1987 (one
year after the Re-Furb-Co. lease was executed).
If the Board accepts the applicant's contention that Fish
Engineering had no intention to abandon the property use, it
would be proper to rule that the right of non-conforming use has
not ceased and may continue. This decision would in no way
contradict the enforcement officer. The officer's decision was
properly based on paragraph one of the section. The use as a
construction/fabrication yard was clearly discontinued for a
period well in excess of ninety (90) days. Under paragraph 2 of
this section, the authority to make interpretative decisions
regarding abandonment of a use is reserved solely for the Board
of Adjustment.
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APPEAL OF THE ENFORCING OFFICER'S DECISION #A90-001
PAGE -4-
Conclusion•
It should be noted that the burden of proving their
contentions is on the applicants. If however, they are able to
support their position to the Board's satisfaction, granting this
appeal would be a proper action. It should also be noted again,
that the applicant's appeal extends only to the shop and slab
indicated on Exhibit C.
Options:
I) Grant Appeal #A90-001
A. As requested
B. With conditions such as development of
landscaping and/or screening in accordance
. with zoning ordinance requirements.
II) Deny Appeal #A90-001
III) Table Appeal #A90-001 for further consideration at
a future date.
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~• ~~ cRGe~t!!KkcT m,~,; #~ ~ EXHIBIT A ~'
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• FF,'iahl F i 3hi Et•1G I t•IEEF' I hl~ i TO '?=371 _~~~17 F . l~2
. ~ ® •
-~ - ~ AFFIDAVIT
I, Craig A, Reynolds, affirm that I am' Vice President Finance
of Advantage Nousing Corporation (fort7erly Re-Furb-Co, Inc. )
who occupied, under lease, the property at 1.241 Underwood Radd,
taPorte, Texas, December 1985 through June 15, 1989,
During the period February 20, 1989 through June 15, 1989, we
were curtailing our operations at that facility end~were attending
to numerous details of vacancy, constant with our lease. Although
• our vacancy was not fully completed by June 15, 1989 it was
~" substantially complete and gave rise to the subsequent refund
of our security deposit on August 22, 1989.
I further affirm that, in my capacity as Yice President of Finance,
• i am custodian of records of the company and have sufficient
first-hand knowledge to make the above statements and to certify
that they ire true and correct. .
Subscribed to and sworn by me this 26th day of SeQtember,
1:989 iryrHouston, Texas.
. ~r~~. ~rceyno~as
STATE OF TEXAS §
COUNTY Of kARRIS § ~ ~ ~~ •~-
8EF0lZE ME, the undersigned notary public, on this day
personally appeared~Craig Alan R2yttolds, in his capacity as Yice
President of Finance of Advantage Nousing 'Corporation, who, being.
by me first duly sworn on his oath, deposed. and said that he
has made foregoing affidavit 'and that the statements contained
herein are within his personal knowledge and are true and correct.
RC~aY~/ Pu c to anQ for tl
State of as / ,
Printed Name:
~'(y Comm! S ''
• ' LAARY ~Il~I~C N~WITf
• ~ " ! ~t~Ce Ml~ile~n `~ aka TailD-0O
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