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07-17-1978 ZONING BOARD OF ADJUSTMENTS JULY 17, 1978 The Zoning Board of Adjustments convened in Regular Session Monday, July 17, 1978 at 7:00 P.M. in the Municipal Complex Council Chambers, 1400 Live Oak Road. The following members were present: ~9EMBERS PRESENT STAFF PRESENT Jeffery D. Duffield - Chairman Bob Jacobson - Building Official Cecil Tilghman - Secretary Allen H. Hamblin INTERESTED PARTIES: Joe Potempa Richard McAleese ( absent) Mrs. Claire R. Eitmann Mr. William Dale Gillam, Attorney There were approximately 24 citizens from Mobile Villa Estates - a copy of their names and addresses will be provided with a copy of these minutes. #1 CALL TO ORDER: The meeting was called to order at 7:00 P.M. by Chair- man Jeffery D. Duffield. #2 APPROVAL OF P~INUTES: The minutes of the June 19, 1978 meeting were read and one item under general discussion, was requested to be changed. This item was the date needed to be changed from June 17, 1978 to read "July 17, 1978". There being no other corrections, addi- tions or deletions, a motion was made by Mr. Hamblin to accept the minutes as changed. The motion was seconded by Mr. Tilghman. The vote was unanimously in favor. #3 HEARING OF APPEAL: This appeal was requested by Mrs. Claire R. Eitmann through her attorney William Dale Gillam. Prior to the starting of the appeal, the Chairman announced that he would make a statement to explain what ground rules would be covered during the hearing. He stated that Mrs. Eitmann and her attorney, would have the opportunity to speak first. After he was all through, the residents of Mobile Villa Estates would be heard. Mr. Duffield explained that all questions and remarks would be directed to the Board and that he would not allow any cross talk between Mrs. Eitmann, her attorney and the residents of Mobile Villa Estates. Prior to starting the official appeal, Mr. Gillam asked the Chairman if he could make a statement. Mr. Gillam stated that due to a recent injury to his rib cage, on the ,right side, he did not feel that he was physically capable of representing his client. He therefore asked for a postponment of the meeting. Mr. Duffield stated that prior to the meeting that Mr. Gillam had stated to him that since he was present, that although he did not feel proper, he would continue, so the motion for postponment was denied. Mr. Gillam then requested another motion for postponment. He stated that state law and city ordinance requires five members on the board and due to the fact that one member was absent, he requested a postponment so that the whole Board would be available to hear his clients request, which he felt she was entitled to. The Chairman solicited comments from the members of the Board; and after brief discussion, he informed Mr. Gillam that the Board was in agreement they felt confident and capable of making the necessary decision, even with the absence of one of their members. Mr. Gillam then asked if he might proceed and Mr. Duffield gave him permission. Mr. Gillam asked if Mr. Jacobson, Building Official, would be available for questions and could he direct questions to Mr. Jacobson. Mr. Duffield in- formed Mr. Gillam that questions could be directed to Mr. Jacobson and that he could respond to the questions. One of the first questions Mr. Gillam directed to Mr. Jacobson was if Mr. Jacobson had ever had opportunity to visit Mrs. Eitmann's residence at 4802 Cabana Drive, Schertz, Texas. Mr. Jacobson stated that he had visited her residence, the nature of the visit being that she had requested a building permit to put an addition to her existing mobile home and that he had been there to conduct necessary inspections of said structure. Mr. Gillam also stated that he had two complaints directed toward Mr. Jacobson in the wording of the letters and the use of terminology that was used before the Board. First was that he objected to the use of the word "Special Exemption" which was used in the official notification in the newspaper for the public hearing. Mr. Jacobson responded that due to the fact that Mrs. Eitmann (through her attorney) was appealing a decision made by an officer of the City of Schertz, Texas, it fell under the category on page 1299 of the City Code of Ordinances, Article 4, Section 15, subsection 15.3, titled "Applications for Special Exemptions" and it was proper for the terminology "Special Exemption" to be used. Mr. Gillam did not contest this. Mr. Gillam's next objection was the use of the terminology in the letter from Mr. Jacobson to the Board and also the official notice in the paper that Mrs. Eitmann was requesting permission to operate or has been operating a "pet shop". Mr. Jacobson informed Mr. Gillam that this terminology was used by him before the Planning & Zoning Commission on the request from him for a Specific Use Permit. He did use the terminology "pet shop"; therefore, Mr. Jacobson felt it was a valid assumption due to the fact that Mr. Gillam had previously requested a Specific Use Permit for a pet shop. (reference the Planning and Zoning Commission minutes of April 12, 1978 under item #3, sub (c) specific use request.) Mr. Jacobson read this to the Board and Mr. Gillam and will provide a copy of this attached to the minutes. Mr. Gillam had no further questions of Mr. Jacobson at this time and he presented his argument. He stated various state statutes and informed the Board and the people present that the City could not take away Mrs. Eitmann's inalienable rights; he stated numerous times through his talking that Mrs. Eitmann had lived at her current address since 1965 and had conducted a business (even though he did not call it a pet shop) since 1965; and therefore, a business was in existence prior to annexation and adoption of zoning ordinance 74-S-48, which was adopted in 1974; therefore the City was required to provide her a non-conforming certificate of occupancy status. All throughout his presenta- tion Mr. Gillam continually stated she had a business in operation yet no definite proof, other than his statement and Mrs. Eitmann's was given to the Board at this time. Mr. Gillam talked for approximately 15 minutes and finished at 0720. At this time, Mr. Duffield asked Mr. Gillam if he had finished with his statement and he said yes, that he would only have some closing remarks. At this time, Chairman Duffield turned it over to the citizens who were in attendance. (a list of .those in attendance will be attached to these minutes) Mr. Duffield and the Board listened intently to all of their statements. There were only two people there that stated exactly when they had moved into the mobile home park. Their complaints were the odor from the animals (and it was stated by numerous residents that the number of animals was somewhere between 26 and 28, supposedly pekingese) was unbearable; the animals fought all the time; they accused Mrs. Eitmann of going away and leaving the animals alone for long periods of time- coaped up in the trailer. For the record, the majority of people in attendance publicly stated that they had no complaint toward Mrs. Eitmann herself; they liked her, they just could not condone the way she lived, they could not condone the inhumane way in which she handles her dogs, and the odor, etc. The main complaints were: the strong odor, the animals made too much noise; the inhamane treatment and that they did not buy their property in the mobile home park to allow a business to be next to them. It took approx- imately 15 to 20 minutes for all the citizens to be heard. At this point, Chairman Duffield asked Mr. Gillam if he had any further comments to make. Mr. Gillam restated his position that Mrs. Eitmann was entitled to inalienable rights; that it was in voilation of state constitution, federal constitution, etc. due to the fact that she had nested rights of 13 years living there running a business; that the city had no authority by state statute to make her desolve her business and the time period to apply for a non- conforming use of one year has been held unconstitutional by state law. Yet when questioned by Mr. Duffield to verify this, he could not or would not present any proof. Mr. Gillam also stated that he felt sure a compromise could be worked out between the three parties involved (even though he did not state which three parties). Due to the fact that Mrs. Eitmann had a 13-year vested right in her business,. he felt a 5-year period in order to allow her to completely do away with her business would be considered equitable and that they would be willing to consider it. There was no response one way or the other from the Board. Mr. Gillam also stated that he felt some kind of a comp~om~~~ should be made in order to save the tax payers of the City ofSchertz a trial, that he assured the Board that he would file in court. He finished his remarks at approximately 0750. At this time Chairman Duffield said he was closing the hearing of appeals and the Board members would discuss what was presented to them by both sides and make a decision. The public hearing was closed at 0752 P.M. Mr. Duffield asked if any members had anything they cared to discuss. Mr. Hamblin said he was well aware of Mrs. Eitmann's rights under the law but he also had to consider the rights of the people living in Mobile Villa Estates, and more especially the residents that appeared at this Public Hearing. Mr. Joe Potempa read, from the City Code of Ordinances, the Animal Control Ordinance verbatum, stating the number of pets that residents were allowed to keep. He also asked Mr. Jacobson if Mrs. Eitmann had come in requesting a building permit and had received a building permit for the extention to her quarters as previously stated, and was any mention made by her of a kennel or a place to keep the animals. Mr. Jacobson stated no - she speci- fically stated that it would be either an extention to her mo-bile home or as a storage shed. Mr. Tilghman stated, for the record, that he did not appreciate Mr. Gillam's insinuation and attempt to intimidate the Board by threatening that it would cost money to go before a court, which he planned to do. Mr. Tilghman stated that as residents of the city, they were not concerned about the court case nor were they concerned about the money of the court case; they were concerned about what exactly was being presented to them now and about making an intelligent and equitable decision. M:~-Duffield asked two questions of Mr. Gillam. (1) Had any attempt been made by Mrs. Eitmann to obtain a non-conforming Certificate of Occupancy, for a business within one year of annexation. The reply was no. (2) Did Mrs. Eitmann have any tangible proof (i.e. tax receipts, etc.) to show the Board that a business did exist prior to annexation. The reply again was no. At that time, Mr. Duffield asked if there were any further discussion and if not, he would entertain a motion. Mr. Tilghman made a motion that the correspondence received from Mr. Jacobson, Building Official, dated July 11, 1978, subject: "Appeal Case: Mrs. Claire I. Eitmann", be upheld;and he read,for the record, the statement from Mr. Jacobson on his notification to the Board, which reads as follows: "therefore, I respect- fully request that my decision to refuse a certificate of Occupancy for non- conforming use of her property for a pet shop in accordance with Zoning Ordinance No. 74-S-48 be held valid". The motion was seconded by Mr. Potempa. Mr. Duffield asked if there was any further discussion, there being none, he asked fora verbal vote, it being as follows: Mr. Hamblin -yes Mr. Potempa -yes Mr. Tilghman - yes Mr. Duffield - yes Mr. Duffield, on casting his yes vote, gave clarification on his "yes" vote. He stated that throughout the hearing, Mr. Gillam had stated that Mrs. Eitmann had been conducting a business since 1965 and therefore the City was obligated to allow her to continue her business. But at no time did Mr. Gillam or Mrs. Eitmann provide any proof. At this time, Mr. Duffield asked Mr. Gillam again if he could provide any tangible evidence to substantiate the claim of a busi= Hess. Mr. Gillam said that Mrs. Eitmann's word was all he had. Mr. Duffield asked for tax receipts, Mr. Gillam said there were none; Mr. Duffield asked if Mrs. Eitmann had a license, Mr. Gillam stated that back in 1965 if there was a license requirement, which he doubted, a license was not required. If there was a license required today he was not aware of it. Mr. Duffield said the main reason for his vote to refuse the appeal. to change the decision was based on the fact that neither Mrs. Eitmann or Mr. Gillam provided the Board with any tangible proof that Mrs. Eitmann had been and is still conducting a legal business at her residence at 4208 Cabana Drive. There being no further discussion on this matter, the Hearing of Appeals was terminated. The Chairman called a short recess to allow the people to leave if they so de- sired and the meeting would reconvene at 8:25 P.M. Before the Board could leave for the recess, Mr. Gillam presented to Mr. Duffield a notice of Intent to Appeal on their decision. Chairman Duffield accepted it and then the Board took a short break. The Board reconvened at 8:25 P.M. and went into General Discussion. The Board agreed not to schedule any meeting for the month of August due to members not being available as they would be on vacation. The next regular meeting of the Board of Adjustments of the City of Schertz will be September 18, 1978. Definite date at this time has not been established. Mr. Jacobson had two items. He informed the Board that at the next regularly scheduled meeting he would have two other cases to present to the Board for appeals. He did not elaborate at this time as to the details of them. He did say that all necessary documentation would be provided to them in sufficient time once they have informed him of when the next scheduled meeting would be. There being no further business, the Zoning Board of Adjustments adjourned at 0840 P.M.