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Home My WebLink About02-24-05 Regular Meeting and Public Hearing of the La Porte Zoning Board of Adjustment Minutes MINUTES Members Present: Members Absent: City Staff Present: 1. CALL TO ORDER. ZONING BOARD OF ADJUSTMENT MINUTES OF FEBRUARY 24, 2005 Sidney Grant, Bob Capen, Charles Schoppe, Rod Rothermel, Alternate NO.1 Lawrence McNeal, and Alternate No.2 Gilbert Montemayor George Maltsberger Wayne Sabo, Planning Director; John Armstrong, Assistant City Attorney; and Peggy Lee, Planning & Zoning Commission Secretary Chairperson Sidney Grant called the meeting to order at 6:00 p.m. 2. APPROVE MINUTES OF THE NOVEMBER 23, 2004, MEETING. Minutes of the meeting were approved as presented. 3. CONSIDER APPEAL OF THE ENFORCEMENT OFFICER'S DECISION #A05-001, REQUESTED FOR THE PROPERTY LOCATED AT 2219 UNDERWOOD ROAD. THE APPLICANT SEEKS TO APPLY CODE OF ORDINANCES SECTIONS 106-261, 106-262 "NONCONFORMING STRUCTURES" TO THE EXISTING BUILDING. THE APPEAL IS BEING MADE UNDER THE TERMS OF SECTION 106-89(3) OF THE CODE OF ORDINANCES OF THE CITY OF LA PORTE. A. STAFF PRESENTATION Wayne Saba, Planning Director, presented the information outlined in staffs report. He reviewed the background information relevant to Mr. Melvin Walker's appeal request. Mr. Walker is the tenant of the building in question and the owner is C&C Grocery. Mr. Sabo responded to questions from the Board pertaining to availability of adequate permanent parking and approval from adjacent property owner to utilize ingress/egress. Chairperson Grant asked Mr. Sabo to summarize the applicant's request. Mr. Sabo responded that the applicant would like to open the restaurant as a non-conforming, pre- existing use, since the building existed in 1982. However, the City contends that the non- conforming use was abandoned in excess of 180 days and that the use cannot be reverted to non-conforming status, after the building was opened in conformance in 1999. B. PROPONENTS Chairperson Grant swore in Melvin Walker, owner of Texas Grill. Mr. Walker noted the following: . Structure built in 1982 by Ellis Ebarb, permitted and inspected by City of La Porte, not City of Lomax. No parking space requirements for building when opened in December 1982. Subsequently, when gas tanks and pumps were removed, approximately 50' across front of property was lost. Statement by City that property was not in use from August 28, 1988 incorrect. Restaurant not in use from 1986 until he began work on it in 1998. Restaurant still had same equipment as when sold. . . . Zoning Board of Adjustment Minutes of February 24, 2005 Page 2 · Issue with Special Conditional Use Permit #SCU99-01: Met with Debbie Wilmore and Fire Marshal in March 1999 to discuss plans; building permit was issued. Contacted by Masood Malik approximately 4-5 months later to discuss off-site parking problem and need for special conditional use permit. Met the following day with Mr. Malik, Ms. Wilmore, and Doug Kneupper; was told he must apply for permit that day or not be able to open restaurant. He applied for permit and purchased a copy of the Zoning Ordinance. After reviewing, spoke with Mr. Malik a few days later to inquire about the non-conforming section and was told it did not apply to him. The restaurant eventually opened. · Moved out of restaurant in September 1999 surrounding lawsuit filed against owner, Mr. Abusada, but retained control of parking space. Approximately 2-3 months later, parking lease with David Schoolcraft was terminated when lienholder, Ms. Barbara Champion, foreclosed on property. · Building was not utilized from November 2000 until work began again in 2004. · Building was non-conforming and should have remained as such. Once determined that building use has been abandoned, Ordinance requires City to send written certified notice to property owner allowing filing of appeal. · Met with Wayne in 2004, was told again he would need to apply for special conditional use permit for parking. Parking spaces on south side meet city requirements. · Occupancy permit issued July 14, 2004. 4-5 days after opening, was notified by Fire Marshal that parking lease was incomplete. · City did not inform him of his rights as a property owner, nor was he notified of non-conforming use status. · Mr. Walker owns 25' strip of property behind the building and owns outright a total of 34 parking spaces. · Has a lease to purchase agreement with Mr. Abusada. Expects to close by the end of the month. · Has verbal agreement to access parking; has perceived right-of-way. Chairperson Grant asked Mr. Armstrong to summarize affected ordinance requirements. Mr. Armstrong responded his office was asked to review the lease agreement. An approved lease agreement was a condition of the most recent special conditional use permit. His office reviewed the agreement, but it was not approved. He added that Mr. Walker's testimony indicated abandonment occurred well over 180 days and it appears there is no valid parking. He explained how the City is unable to grant use variances. Mr. Walker referred to Ordinance Section 106-146 regarding application for zoning permit for non-conforming lots, uses and structures. Mr. Walker referred to Ordinance Section 106-262(g)(3) regarding notification of property owner. He had submitted an open record's request to the City for documentation of such notification, but none was found. He requested the non-conforming status be re-instated as should have been in 1999. C. OPPONENTS Chairperson Grant swore in Mr. Abusada, landlord of the property in question. Mr. Abusada leased the building to Mr. Walker on two occasions. First in 1998, but had to evict him for non-payment and again leased to him in 2003. Mr. Walker told him he could open the restaurant without the parking area, but would be getting a lease with Ms. Champion. Mr. Abusada reported that Mr. Walker has only paid him rent for a couple months during the past two years. Mr. Abusada no longer considers Mr. Walker for lease or purchase. Each time he tries to have him evicted, Mr. Walker applies for bankruptcy. Zoning Board of Adjustment Minutes of February 24, 2005 Page 3 Mr. Walker stated that Mr. Abusada does not tell the truth and that is the reason for the lawsuit. Mr. Abusada responded that Mr. Walker does not pay his rent. Mr. Abusada does not know about a lawsuit. Mr. Sabo pointed out the requirement to be an agent or representative of the landowner in order for the application to be valid. Mr. Armstrong concurred. Mr. Walker stated he has a lease to purchase agreement with Mr. Abusada, which has never been voided, therefore causing him to be in control of the property. Chairperson Grant ended public comment. Motion by Bob Capen to deny Appeal of the Enforcement Officer's Decision #A05-001 to apply Sections 106-261 and 106-262 "Nonconforming Structures. of the Code of Ordinances to the existing building located at 2219 Underwood Road. Second by Lawrence McNeal. The motion carried. Ayes: Nays: Abstain: Capen, McNeal, Rothermel, Schoppe, and Grant Gilbert Montemayor, Alternate No.2, was not a voting member for this meeting. Mr. Armstrong read Section 106-196 of the Code of Ordinances relating to Appeals. 4. STAFF REPORTS Mr. Saba reported the City would schedule additional in-house training, possibly in April, similar to the recent workshop. The content would address Board of Adjustment matters. 5. ADJOURN Chairperson Grant adjourned the meeting at 7:03 p.m. Peggy Planning cretary Approved on this M day of ~ ~ ~o? ,~ 42;;( ~ Viu.J:_JttUrGeo'j.Mal~ , ~ Sidney Grant ) D Chairperson, Zoning Board of Adjustment #SE05-001 SPECIAL EXCEPTION FOR HOPPlE'S - 1602 W. MAIN STREET TO DEVIATE YARD REQUIRMENTS EXHIBITS: APPLICATION FOR SPECIAL EXCEPTION STAFF REPORT EXHIBIT A - LETTER FROM THE OWNER EXHIBIT B - AREA MAP EXHIBIT C - SITE PLAN EXHIBIT D - SECTION 106-443, TABLE B, COMMERCIAL AREA REQUIREMENTS -- CITY OF LA PORTE ZONL ,G BOARD OF ADJUSTMEN': SPECIAL EXCEPTION REQUEST Application No.: OFFICE USE ONLY: Fee: $150.00 Date Received: Receipt No.: Note: This Fee is Non-Refundable Regardless of the Board's Decision '-::5 - 00 I . 3- 1/- os 7! 079 Applicant: (Y) \ \.l., e. L 0 t'\~ -t C\.. ~" Nam ~30L \JoJ\ejbrooK Address PH: W \ - 4lo-Q(u33 I am the owner of the herein described property. I have authorized to act. on my behalf in this matter. ('t\ i \-Ze.. lo (\j -'cO:I y) Name Owner*: PH: Address I am requesting a Special Exception to Sect. of the City Zoning regulations Chapter 106 of the Code of Ordinance. t" I am requesting this Special Exception for property located at /(Q02- We. S mOt. f ('\ Street Address ()~ l,4Vo(te... Lo+ / 1- ~O 6\OG~111 ToeDy"\ Legal Description ( ) Site Plan ( ) Major Development Site Plan (1-)'Minor 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! am seeking (setbacks, lot coverage, etc.). c) The grounds upon which I am making this request. · If applicant is NOT the ~wner. he mnst provide AnthOriz. atio~n to act of the. ~ehalf. 3h1/DS ~~ v~?0'41 ate App~c~'Iit's Signature Office Use Only Site Plan and Authorization (if applicable) attached? Yes () No () Date transmitted to the Board of Adjustments: Meeting Date: Applicant Notified of Date: Board's Decision: Approved ( ) Denied ( ) Notice of Boards Decision mailed to Applicant/Owner: Staff Report March 24, 2005 Special Exception Request #SE 05-001 Reauested by: Reauested for: Location: Zonine:: Backe:round: Mike Longtain, Owner of the Hoppie's Restaurant Lots 16- 20; Block 717; Town of La Porte. 1602 West Main Street General Commercial (GC) The tract in question is occupied by a 5,500 square foot building on the rear property line oflots 16 thru 20, Block 717, Town of La Porte. There is a 16' wide public alley running east and west between 15th & 16th Streets. The rest of the tract, lots 11 thru 15 of Block 717, is undeveloped. According to the Harris County Appraisal District (HCAD) information, the current retail/commercial building was built in the year 1977. Ordinance 780, adopted October 4, 1960, was in effect at that time. Area regulations required no side yard for retail use, except on a comer lot with a setback of 10 feet on the side street. The City's current zoning map adopted January 26, 1987, shows the property in question is located within a General Commercial (G.c.) zone. As presently drawn, the facility site plan indicates the current building is located within the ten-foot rear setback line. This is considered to be pre- existing and non-conforming structure. In the present location since 1977, however, prior to the current use, the building was used as retail commercial. The current property owner constructed a 16'x26' storage building (meat cooler) within the side setback just 5' from 15th Street right-of-way. The HCAD information shows this 416 S.F. utility building was built in 1987. Permission for the construction of the building addition is not available. At this time, the applicant has submitted a special exception request to allow construction of approx. lO'x 50' west side addition to this existing building. The part of a proposed addition also falls within the rear setback line. The proposed addition on the east includes storage for the meat cooler. With this second addition, the portion is located within side and rear yard setback Board of Adjustment March 24, 2005 Meeting #SE 05-001 Page 2 of3 Analvsis: lines. The front addition of the building will be utilized for customer seating area. These proposed additions will be located within the current lots of record, the portions would be approximately 80' & 160' located in the rear property line adjacent to alley and 15th Street ROW respectively. The standard rear setback in a G.C. zone is 10'. This exception is being requested under the terms of Section 106- 191 (b)(1)(2) of the City's Code of Ordinances. .:. To reconstruct, enlarge or extend a building occupied by a nonconforming use on the lot or tract occupied by such building, provided that the reconstruction, extension, or enlargement does not prevent the return of the property to a conforming use. .:. A rear yard exception where the actual rear yard setback of any four or more lots in the same block does not meet the rear yard requirements. .:. A yard exception on comer lots. .:. To deviate a rear yard requirement based on similar pre-existing nonconformities within the same block. The attached site plan identifies some similar pre-existing nonconformities existing within the same block. Also, in the past, decisions have recognized the hardships of some properties in the area and relief has been granted. Staff believes this situation is within the spirit of Section 106-191 (b)(1 )(2) of the Code of Ordinances of the City of La Porte. The Code of Ordinances defines a special exception as a specified enumerated deviation from zoning regulations. The Board is empowered to grant a special exception when it finds the following: .:. Granting the exception will not adversely affect the value, or use of neighboring property. .:. Granting the exception will not be contrary to the best public interest. Regarding this request, the relief being sought is covered by the terms of the Special Exception Section. Board of Adjustment March 24, 2005 Meeting #SE 05-001 Page 3 of3 Conclusion: Appeals: . Allow construction of a lO'x 8' awning covered parking as west building addition within the rear setback. . Allow construction of a lO'xI6' storage addition to the meat cooler on the east side. The issues to consider are impact on neighboring property and the best public interest. It does not appear that granting the requested special exception will adversely impact the adjacent properties nor does it appear that granting this exception would be contrary to the best public interest. Based on the facts and considerations noted in this report, staff concludes the request to grant Special Exception #SE05-00 1 has merit within allowances by the zoning ordinance. As per Section 106-196 of the Code of Ordinances of the City of La Porte: Any person or persons, jointly or severally, aggrieved by any decision of the Board of Adjustment, or any taxpayer, or any officer, department, board or bureau of the city may present to a court of record a petition for a writ of certiorari, as provided by V.T.C.A., Local Government Code Section 211.011, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within ten days after the filing of the decision in the office of the Board of Adjustment. Zoning board of adjustment special exemption request Hoppie's 1602 West Main . Lot 11-20, block 717 Proposed enlargement of preexisting non conforming structure will have no negative impact on adjacent property owners for t~e following reasons. The largest variance requested is approximately 17 feet (east & west) X 9 feet (north and south). It is located on the northeast corner of my lot. Its desired purpose is to improve business efficiency by making it possible to process incoming meat products, at the point of entry. On the north side of the variance is an unimproved alley, covered only with grass and maintained by Owner Applicant. The entire length of the ally (from 15th to 16th st) is lined by property owned by Owner Applicant on the south. The north side of . the ally is lined by the back of metal buildings used by Pfiefer Electric. This ally is never used by anyone, accept for routine maintenance. This requested variance is adjacent to 15th st on the east side. 15th is a dead end street that extends from Main street to the entrance for Ponderosa Plastics. It is used only by Ponderosa and Owner Applicant, with no through traffic. The other, smaller variance, is located at the north west corner of existing building. Its size is aprox. 8 feet (east to west) X 9 feet (north to south). It consists only of a concrete pad with an awning for the purpose of covered customer parking. The aforementioned ally is to the north, all other sides are on Owner Applicant property. These requested variances are part of a larger project designed to improve business performance by providing more customer amenities. These include more parking, more seating, more efficient food preparation and serving facilities. First and foremost however, is a desire to improve the property curb appeal. This will be done with a new parking area, a new building front with attractive outdoor seating, on long front patio with new landscaping all around. New franchise quality sinage has already been purchased an9 permit received. Funding has been secured and waits only on an approved sight plan '. Thank you for your consideration in this matt. Sincerely; Mike and Donna Longtain Owners "Hoppie's Texican Grill" 14 ZONING ~ 106-443 Uses (SIC Code #) Zones CR NC GC Kennels, breeding (0279) '* '* C Unlisted uses, similar to uses listed above C C C 1. Refer to chapter 10 of this Code. (Must be at least 300 feet from church, school or hospital) See.. 106-442. Interpretation and enforcement. Property uses, except as provided for by section 106-441, Table A, are prohibited and constitute a violation of this chapter. See. 106-443. Table B, commercial area requirements. (a) Table B, commercial area requirements. U:ru M"uUmum Larrdseaping Required . Ma:dmum Lot COlJuage M"mimum Yard SetbacJu, F.R.S. l."'4.~ 7 Adjaant to Residential Kuzimum Yard Setbat:k F.R.S. :z._ Ma:dmum Height (feed R-3 uses (permitted) 6'11 Density Intensity Regulations Specified in Table B. residential area requirements., section 106-333 CR Comm. Recreation Dist.; aU permitted or conditional NC Neighborhood Comm.; all permitted or conditional GC General Comm.; aU permitted or rJ\ft~;nnn" I 6" 50% 20-10-0 20-10-10 45 6" 4~ 20-10-0 20-20-10 45 N/A N1A 5-5-5 Same as N/A principle WIe N/A N/A 20-10-5 Same as See section principal 106-444(b) WIe See article vn or this chapter See article vn of this chapter Outside sales or ser- vices . Outside lltorage Freestanding an-prem- ises signa Freestanding on-prem- ises signs located in con- trolled acce.sa highway corrldol'3 CD 106:59 J FINDINGS OF FACT AND CONCLUSIONS OF LAW CITY OF LA PORTE, TEXAS ZONING BOARD OF ADJUSTMENT FINDINGS OF FACT AND CONCLUSIONS OF LAW AS-OOl FEBRUARY 24, 2005 Upon conclusion of the public hearing of the above-referenced cause, held on February 24, 2005, at 6:00 p.m. at La Porte City Hall, 604 West Fairmont Parkway, during which witnesses were called and testified, subsequent to be placed under oath, the Zoning Board of Adjustment of the City of La Porte, Texas, meeting in duly called open session at La Porte City Hall, makes the following findings of fact and conclusions of law: FINDINGS OF FACT 1. The owner of the property is Mr. Mahmoud Abusada (DBA: C&C Grocery). 2. The property in question is located at 2219 Underwood Road, La Porte Texas. 3. The applicant is Mr. Melvin Walker, tenant (DBA: Texas Grill). 4. Disclosed during the Public Hearing and stated by Mr. Abusada, Mr. Melvin Walker does not represent the property owner in this matter. 5. The building in question was constructed in 1982 and opened as C&C Grocery and Restaurant. 6. The building predates Zoning Ordinance 1501 of the City La Porte and was a pre-existing, non-conforming structure in terms of the parking requirements of that ordinance. 7. Disclosed during the Public Hearing by Mr. Walker, the Grocery and Restaurant closed in 1986 and remained closed until September 30, 1999. The non-use was in excess of the 180 days stipulated and defmed in Section 106-262 (h)(1) City of La Porte Code of Ordinances. 8. City recorded Zoning Permits verify that 2219 Underwood #B (Restaurant) was not in use From August 28, 1998 until September 30, 1999. 9. Mr. Walker sought to re-open the Restaurant under the name of Texas Grill in 1999. 10. While the use and structure of Texas Grill were permitted under the zoning regulations, the loss of property as a result of a road expansion eliminated sufficient parking spaces for the location to comply with parking requirements. 11. Mr. Walker secured additional parking through a lease agreement on adjacent property, and the Texas Grill Restaurant re-opened in a "conforming" status on September 30, 1999, under the provisions of a Special Conditional Use Permit (SCUP) #99-001 approved by the City Council of the City of La Porte. 12. Due to legal conflicts between the land owner and the tenant, Texas Grill was forced to close in December 2000. The non-use period remained in effect until April 12, 2004, when the Texas Grill was again issued a zoning permit to open in a conforming status as a "Catering Only" facility. This non-use was in excess of 180 days as stipulated and defined in Section 106-262 (h)(1) City of La Porte Code of Ordinances. 13. Mr. Walker, in 2003, began to remodel the restaurant and expanded the use from one half of the building to its entire 4000 S.F. thereby impacting the parking requirement. 14. Mr. Walker, at his own request, appeared before the Planning and Zoning Commission, and the City Council for SCUP #04-009 which was approved on June 14,2004, to reopen Texas Grill as a dine-in facility conforming to the zoning ordinance. 15. SCUP #04-009 had the following conditions: 1) Leased off-site parking limited for a period of six months, 2) Proposed permanent site for off site parking will be in compliance with all applicable City regulations, will require screening and or landscaping of the parking lot and shall be approved only after review of a certified site plan, 3) Lease agreements, duly approved by the City Attorney, shall be filed with the City Secretary, 4) A certificate of occupancy, renewable annually, shall be required, 5) The developer shall comply with all applicable laws and ordinances of the City and State of Texas. 16. A valid, signed lease/purchase agreement for the permanent parking site, in accordance with Item # 3 of SCUP #04-009 and as requested by Council was never received by the City. 17. Pending the completion of requirements of SCUP #04-009, the Final Clearance and Zoning Permit for Texas Grill were withheld on July 9, 2004. 18. Texas Grill opened illegally on July 10,2004 and was later cited by the City of La Porte. 19. During the Public Hearing, Mr. Walker testified that a certificate of occupancy (CO) had been issued to the Texas Grill by the City. Not mentioned, however, was that the CO, issued on July 14,2004, was for off-site catering only. 20. On July 15, 2004, Mr. Walker, in a letter to the City, stated his case for the Texas Grill retaining its pre-existing, non-conforming status and therefore not needing a zoning permit or to comply with zoning regulations. 21. On January 12,2005, Mr. Walker filed an appeal to the Zoning Board of Adjustment and the issue was heard on February 24,2005, after compliance with all noticing requirements by the City of La Porte. 22. On February 24, 2005, appeal number A05-001 was denied by unanimous vote. 23. Any conclusions of law which may be deemed findings of fact are adopted as part of these [mdings. CONCLUSIONS OF LAW 1. Application procedures for appeals to the zoning board of adjustment are by, or on behalf of the property owner. Mr. Walker's appeal, by testimony, was not supported by the property owner. 2. Section 106-89. Appeals to the board of adjustment states: "such appeal shall be taken within 30 days as provided by the rules of procedure of the board of adjustment by filing with the enforcement officer from whom the appeal is taken specifying the grounds thereof." Mr. Walker first notified the city of his grievance on July 15,2004. The application was not filed until January 12, 2005; almost six months after the grievance was identified. Furthermore, the board was asked to take actions on an enforcement officer's decision that occurred in 1999. 3. Section 106-262(h)(1). Abandonment of nonconforming use or structure states: "a nonconforming use shall be deemed abandoned when the use ceases to be used for the nonconformity for a period of 180 consecutive calendar days." On two occasions, the Texas grill was closed far in excess of the requisite period. 4. Section 106-263 (b). Changing a nonconforming use states: "any nonconforming use or structure may be changed to a use conforming to the regulations established in this chapter for the district in which the nonconforming use or structure is located...a nonconforming use or structure so changed shall not thereafter be returned to a nonconforming use or structure." The Texas grill opened on September 30, 1999, in a conforming status, therefore denying its use in a nonconforming manner thereafter. 5. Substantial evidence, adduced by the Board through testimony by the applicant and others in the February 24, 2005 hearing, shows that the decision of the building official is correct in all aspects, and that applicant's appeal should be denied in all particulars. 6. Any findings of fact which may be deemed conclusions of law are adopted as part of these findings. PASSED AND APPROVED BY THE BOARD OF ADJUSTMENT, CITY OF LA PORTE, TEXAS, ,2005. ZONING BOARD OF ADJUSTMENT, CITY OF LA PORTE, TEXAS By: Sidney Grant, Chairman (f) U III Z C':J III ::::u I G) I :2: -=)> 8-< ;:u ~ ~:2: III U) ---1 m l"'~ d: B;3 =i ~' 'j 6TH STREET (50' ROW) i' o NORTH \--- I o -I L ~ )> z 049.94' .... 11 / ~ ' I ~ Q c;.\///;<: ~ r= V5 I In l~ N Q z:;j " !Ill /;1.3 m z ~ r :! , "C)C)~ .\ fl,m ---g---\: I I I -----r---o--rr- () 1 ~ I,~ c I ,.., 1 L.... 'Q 1 I , S - -r:fT-~--,cr ~ 1 L ~ IjL _____L+'--l!l--rL I ~ I' :: g I ~ I . ~ ~ I ~ Ii"'" _ _ _ L..--- -"l ~ :: ~ L~~--!7- ~ ~ ~ ~ <D. Cl r~l roil \ '" __ --I ~ I I v I . '" 1 !Z! 1 1 " I j-- (, L2I I I ~ I I ~ ;q1~ I :c I I ~ -=-_IJE.Lii L~ ~ I Ie I I I Cl . ::! II~ I I I"'~. "6'~'.".;"" 1 1 I ..,1 ,h.77' 16' , I r C I'- (f) ---1 AJ III III ---1 "--..-/ () ij ij 1 -1- 1,,(- ~ <C L I o ~~~1~ 10 0:'') ~ G~ .L. I I 1 110' <.::-1 = 'I? ? _L..~-- -.... Z ;1 1 15TH STREET (60' ROW)