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BOA 01-23-2012BOARD OF ADJUSTMENT MINUTES January 23, 2012 The Schertz Board of Adjustment convened on January 23, 2012 at 6:00 p.m. at the Municipal Complex, Council Chambers, 1400 Schertz Parkway Building #4, Schertz, Texas. BOARD OF ADJUSTMENT Frank McElroy, Chairman Richard Dziewit, Vice Chairman Earl Hartzog David Reynolds Rebekah Inmon, Alternate CITY STAFF Lesa Wood, Planner I Michelle Sanchez, Director of Development Services Misty Nichols, Senior Planner BOARD MEMBERS ABSENT Christopher Montgomery Reginna Agee, Alternate 1. CALL TO ORDER/ROLL CALL OTHERS PRESENT Melanie Dziewit Mr. McElroy called the regular meeting to order at 6:07 pm and recognized all members present. 2. RECOGNITION/OATH OF APPOINTED BOARD MEMBERS. No action taken. 3. SEAT ALTERNATE MEMBER TO ACT IF REQUHtED. Ms. Inmon was seated as a voting member. 4. HEARING OF RESH)ENTS Earl Hartzog recognized Ms. Dziewit as in attendance at the meeting. 5. MINUTES: A. Minutes for December 19, 2011. Mr. Hartzog moved to approve the minutes. Ms. Inmon seconded the motion. Vote was unanimous. Motion carried. 6. PUBLIC HEARINGS: A. BOA 2011- 005 418 Maple Hold a public hearing, consider and act upon a variance to Article 5, Section 21.5.7 -Dimensional and Developmental Standards at 418 Maple to allow a carport to remain where it encroaches the required twenty-five foot (25') front yard setback by twenty-five foot (25'+). Public hearing opened at 6:11 pm. Ms. Sanchez explained the purpose of the hearing was to consider and act upon a variance to Article 5, Section 21.5.7 -Dimensional and Developmental Standards at 418 Maple to allow a carport to remain where Minutes Board of Adjustment January 23, 2012 Page 1 of 4 it encroaches the required twenty-five foot (25') front yard setback by twenty-five foot (25'+). She reminded the Board that the public hearing requirement was satisfied at the December 19, 2011 meeting. The applicant has requested a variance to allow a carport to remain where it encroaches the minimum front yard setback requirements of the Unified Development Code (UDC). She reviewed the following timeline related to the project. • During the week of October 18, 2010, Ms. Jackson phoned Ken Anderson, Chief Inspector to ask about the requirements to build a carport at her home. He told her of the building permit requirement and that it was possible that she would need a variance to encroach the front yard setback. Ken told her to submit a building permit application and staff would review and advise her if a variance was required. • On November 4, 2010, Ms. Jackson did not submit an application and began construction of a carport at her home, 418 Maple, without a building permit. She was issued a Stop Work Order by Assistant Chief Inspector Jim Derrickson and directed in the order to contact Inspectors Anderson or Derrickson. • November 9, 2010 - Ms. Jackson and Martin (caregiver) met with City Staff (Michelle Sanchez, Director of Development Services; Lesa Wood, Planner I; Misty Nichols, Senior Planner) regarding the carport construction. It was revealed to Ms. Jackson that not only is a building permit required, but because the carport encroaches the 25 foot front yard setback, that a variance is in fact necessary. She was given a variance application, variance checklist and calendar specifying that the next application deadline was December 13, 2010 for the January 24, 2011 Board of Adjustment meeting. The variance process was explained to Ms. Jackson including the filing fee of $350.00 at the time. The variance fee is now $500.00 as of October 1, 2011. • As of December 14, 2010, no variance application was received by Ms. Jackson on the deadline specified. Ms. Sanchez contacted Ms. Jackson at which time she discussed her health and financial issues and she requested more time to make a decision on the variance or to remove the carport. Ms. Sanchez agreed to give her more time through the holidays and was told that she would be contacted in January 2011. • January 17, 2011 - Ms. Sanchez attempted to phone Ms. Jackson several times through the month of January and partially in February. Inspectors went by her home several times to attempt contact with her, but to no avail. It appeared during this time that construction had ceased and that no further activity was taking place on the carport. • March 1, 2011 -Sharma Roman, Deputy Officer of the Code Enforcement Division issued a Notice of Additions and Corrections that there was no permit for the carport under construction. Photos are available. • On March 28, 2011 Ms. Sanchez sent Ms. Jackson a certified letter summarizing the events of her building the carport without a permit; the issuance of the Stop Work Order, the meeting with staff and the agreement with Ms. Sanchez to grant her an extension. Ms. Sanchez emphasized in the letter that as of March 28, 2011, she had not submitted a variance application and no building had been issued for the carport. That the notice would serve as Final Notice for her to submit the variance application by no later than April 11, 2011 or to remove the carport entirely by no later than April 13, 2011; and that failure to comply may result in the issuance of a citation to appear in court. • Apri12011 - Ms. Sanchez received a note and check in the amount of $350.00 from Ms. Jackson for the variance fee. The note said that she was at the Heartland Rehab Facility and that she had been hospitalized and in this facility since December 2010; and that she likely would not be out until the end of April. • May 9, 2011 - Ms. Sanchez began attempting to try to reach Ms. Jackson by phone and found that the local number had been disconnected. She then attempted reaching her using the phone number on her check in Great Falls, MT; that number was also out of order. Ms. Sanchez then phone Heartland Rehab Facility in San Antonio, TX and was able to confirm that she had been a patient and that she had been released. Minutes Board of Adjustment January 23, 2012 Page 2 of 4 • June 9, 2011 - Ms. Sanchez sent another letter and her check for $350.00 to Ms. Jackson at 418 Maple explaining that although she had sent the check, that no application for variance was included and that staff could not proceed with processing without the required details requested on the application form. Ms. Sanchez requested Ms. Jackson to contact her by phone to resolve this issue and emphasized that the carport could not be finished until a building permit was issued. • August 16, 2011 -Deputy Shanna Roman issued a door notice for Ms. Jackson to contact her office and Ms. Sanchez was advised by Ms. Roman that the carport had been finished. • August 23, 2011 - Ms. Jackson was issued Summons #0582 by Deputy S. Roman for violation of Section 18-5 of the Code of Ordinances for no building permit. • October 27, 2011 - Ms. Jackson appeared in Court and was directed by the presiding Judge to either work with staff to submit the necessary variance application by November 21, 2011 or that a citation would be issued for each day that the violation continued. • November 22, 2011 - Ms. Jackson submitted the variance application as directed. • December 19, 2011 -The Board of Adjustment met and postponed the public hearing to the January 23, 2012 meeting based on the applicant's illness. Mr. Sanchez reviewed the photos and exhibits provided by the applicant and explained that Ms. Jackson has one leg amputated and her current medical condition has placed her in a rehabilitation facility where she is receiving dialysis; therefore she was unable to attend the meeting; with no one present to represent her. The public hearing notices were published and mailed with four (4) responses received including: three (3) in favor, one (0) neutral and zero (0) opposed. There being no to speak, the public hearing closed at 6:30 pm. Mr. Dziewit thanked staff for the detailed staff report. He commented that upon visiting the area the proposed carport appears to be consistent with others in the area. Mr. McElroy asked about the City procedures related to building without a permit. Ms. Sanchez explained the process. Mr. McElroy commented on Ms Jackson's disregard for the rules. Mr. Hartzog explained that several people within the neighborhood attended last months meeting in support of this case. He commented on another case where a carport in this area was disapproved recently. Ms. Sanchez explained that the other carport being referenced was able to be built by achieving compliance. Mr. McElroy commented on the assessment of fees and penalties. Ms. Sanchez explained that Ms. Jackson does still have to attend court on January 26, 2012 and will be faced with the decision on the Court. Mr. Hartzog asked for clarification of the appeal process if the variance is disapproved. Ms. Sanchez explained the appeals process. Mr. Sanchez reminded the Board that the decision has to be decided by a minimum of four (4) votes. Ms. Inmon moved to approve the variance request. Mr. Dziewit seconded the motion. Discussion followed between the Board and staff on placing conditions on the motion to assess penalty fees. Ms. Inmon amended the motion of approval to include that Ms. Jackson obtain the required building permits and pay applicable permit fees, penalty fees and publication notice fees by no later than March 1, 2012. Mr. Dziewit seconded the amended motion. Vote was 3/2 with Mr. Hartzog and Mr. McElroy voting nay. The motion failed with a 3/2 vote. According to Local Government Code 211.009 a concurring vote of 75 percent of the members of the board is necessary to decide in favor of an applicant. Discussion followed between the Board and staff related to the outcome of the Boards decision and the applicant's options. The Board asked several questions of staff about the applicants appeal process. Mr. McElroy commented that the motion was made with conditions and the conditions were not a request by Ms. Jackson. He suggested that another motion could be made that did not include conditions. Minutes Board of Adjustment January 23, 2012 Page 3 of 4 Discussion followed on past procedures and entertaining a second motion and vote with a legal opinion following the meeting. 7. Mr. McElroy commented on the confusion with the motion and that the decision may have been because of the related conditions. Ms. Sanchez explained that this is a learning process and understood the confusion by the Board. She commented that another motion would be considered with the understanding that the City Attorney would have to be consulted to see if the second motion is an appropriate action. Ms. Inmon asked what if we voted on something we did not understand. Ms. Sanchez explained that the Board has an opportunity throughout the case for discussion and to ask questions to ensure that they understand the case and the motion before each member places his/her vote. Mr. McElroy asked if the City would object to an alternate motion without the fees. Ms. Sanchez responded that considering the uncertainty of an additional motion; it would be allowed with the understanding that direction of legal counsel would be sought on the matter. Mr. McElroy moved to approve the variance as requested by the applicant; BOA 2011-005 at 418 Maple. Ms. Inmon seconded the motion. The motion failed by a 1/4 vote with Mr. Hartzog, Mr. Dziewit, Mr. Reynolds and Mr. McElroy voting nay. REQUESTS AND ANNOUNCEMENT: A. Requests by Members to place items on a future Board of Adjustment Request for Training by the City Attorney. (E. Hartzog) B. Announcements by Members and Council. City and community events attended and to be attended Continuing educations events attended and to be attended No announcements. C. Announcements by City Staff City and community events attended and to be attended Ms. Sanchez commented on the following: Quarterly report Next meeting is scheduled for February 27, 2012. 8. ADJOURNMENT The meeting adjourned at 6:58 P.M. Chai an, B and of Adjustment Ci~ Recording Secretary, City of Schertz Minutes Boazd of Adjustment January 23, 2012 Page 4 of 4