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05-14-2002 . '" Planning and Zoning Minutes May 14, 2002 The Schertz Planning and Zoning Commission convened in a regular session on May 14, 2002 at 7:00pm in the Municipal Complex at Council Chambers, 1400 Schertz Parkway, Schertz, Texas. PLANNING & ZONING COMMISSION David Richmond, Chairman Ernie Evans, Vice-Chair Ken Greenwald, ex-officio Tony Moreno William Sommers Gary Wallace Joyce Briscoe Keith Van Dine CITY STAFF Ron Youngblood, City Planner Misty Nichols, Recording Secretary COMMISSIONERS ABSENT OTHERS PRESENT Bill McNeal, Lockhart Texas Robert Brockman, 4505 Grand Forest Larry Aiken/Don McCrary, 323 Breesport #1 Call to Order: Chairman Richmond opened the meeting at 7:00 p.m. #2 Approval of minutes: No minutes were submitted at this meeting. #3 Status of Final Plats: Chairman Richmond stated that the Doerr Lane Subdivision Plat was ready for recordation. #4 BOA Actions: Mr. Sommers stated that the BOA had met on the previous night, May 13th, and had approved a variance for Mr. Ron Coke. Mr. Sommers also stated there were questions concerning P&Z's new meeting format of a planning workshop on the 2nd Tuesday and a business meeting on the 4th Tuesday of the month. Mr. Sommers briefed the BOA members that there were numerous other responsibilities that the P&Z Commissioners had other than platting or site plan approvals. He told the BOA members that P&Z were reviewing the UDC, discussing zoning and rezoning actions, and working on the City's Annexation Plan, just to name a few. Chairman Richmond asked if they had received a copy of the joint City/P&Z Commission letter that outlined the changes in meeting procedures. Mr. Youngblood stated they did, and that it had also been posted outside City Hall on the meeting notice board for several months. #5 Citizen Input Other Than Agenda Items: Chairman Richmond indicated that there were individuals signed up to speak, and he called on them in that order. 1 , . The first speaker was Bill McNeal of Lockhart, Texas. Mr. McNeal stated that he wanted to speak on a matter that used to be called the "Aurora Subdivision". Mr. McNeal stated he represented a company called First National Acceptance Company of North America. In 1997, an individual named Jackie Keith tried to develop a subdivision in Schertz and Cibolo on both sides of Dietz Creek. He divided the subdivision into several lots which he sold to individuals under contract for deed, but he didn't get these lots recorded with the City. Two of the purchasers are here tonight, Mr. BUford Purser and Natalie Talbert, whose lots lie on the Schertz side of the proposed development. Mr. Keith then sold the contract, the financial paper, on these lots to a man named Jack Mallory who financed the purchase of the paper thorough my company, First National Acceptance. As it turned out, he was not complying with either City's subdivision's ordinances which was required as some of the lots were less than five acres. Mr. McNeal stated that all of the lots on the Schertz side were more than five acres. On the Cibolo side they were less than five acres. A lawsuit was filed by the Texas Attorney General's office on behalf of the State of Texas and the consumers, including the Pursers, Talberts and others in the subdivision, who were promised quite a few things. My client was named a necessary party with no relief assigned against him; however I was appointed as his lawyer to represent him in this lawsuit. We immediately began to work out some kind of plan to try to save my client's investment and at the same time try to give the people who signed these contracts in good faith an opportunity to properly buy the property. My client approved my plan for a subdivision to be re-drawn on the Cibolo side to have lots greater than five acres. The plan also devised a way for the purchasers to get a deed and owner's title policy, and sign a note of deed and trust in the conventional financial way. The purchasers would have to put in their own private road, utilities, and dedication of any public improvement, under government code Section 212. Mr. McNeal further stated that after two years of a lot of money in lawyer and surveyor fees, there was one lawsuit pending which involved a gentleman who had a piece of land on the Schertz side which blocked the access of another property. We got an agreed judgment saying that indeed we had access, both ingress and egress. On the Cibolo side, there was a private easement granted to the benefit of the owners, but the initial property owner disagreed on what the deed meant, and we had to join him as a third party defendant. We finally paid for an agreement. Mr. McNeal stated his client originally paid $144,000 for these contracts; his expenses now total $190,000. Purchasers who have defaulted over the years have signed releases. The Pursers and Tates have entered into contract with First National, but are subject to approval of the court. At our request a Seguin judge has put these properties into receivership. There is a lawyer in Seguin who is in receivership and has actual title to these properties. We did that for several reasons, mainly because Jackie Keith still had title in his name and had not deeded out the land- -these were only contracts. We feared other creditors or Mr. Keith might obey a court order not to convey it so we have title and a receiver. This whole plan would have to be approved by the District Courts. Mr. McNeal stated that he wanted to inform both Cities of this situation and have the Schertz Planning and Zoning Commission agree that the City does not have to approve anything. However, other ordinances might apply and might affect the Pursers and Talberts who are the only ones who have paid on their contracts and have not defaulted. Mr. Purser has contracted to buy four additional lots, and will have a total of 25 acres. The Talberts purchased a second 2 lot, originally owned by Patricia Smith who actually received a deed, that is next to the Juarez property where we had trouble with the ingress and egress. So actually there is a 10-acre and a 25-acre tract on the Schertz side. The description in Mr. Purser's contract says five lots because we didn't want to have that property resurveyed. I can show you the plats on the Schertz side, which are by field note description. The City is aware that a problem remains with physical access to both properties. The Talbert tract will retain a permanent easement across her property so the Pursers can gain access to their property. We understand both the Pursers and Talberts have to have their own water and sewer lines; there can be a private easement agreement with no dedication to the public. GVEC says they can get electricity. We want P&Z to know about this. Mr. McNeal explained that Cibolo P&Z is aware, as is the Cibolo City Council, and both have approved our plans. What that amounts to is that the City agrees to the statute which says we don't have jurisdiction to enforce our subdivision ordinance. We don't want to hide the ball, but rather let both Cities know our plan and that we're trying to solve this problem. I hope the Schertz P&Z Commission will approve our plan. I understand this item is not on the agenda so I am not sure you can take action. Mr. Wallace asked what we would be approving if we could take action? Mr. McNeal stated that you would be approving the fact that we are doing this without City approval; that there is a provision where the City can say yes we have or we do not have jurisdiction to enforce the subdivision ordinance. But we also want to ensure that when we give these folks a deed, the City will allow them to hook up to the water and sewer systems and there are no problems like that. There is also a physical access problem that both are aware of. This will have to be worked out. Both parties have been talking to the City about this problem for several years and hopefully that problem can be worked out. Mr., McNeal stated what they are asking for is not approval of a subdivision plat. They are asking for approval of this subdivision by field note description. They would like the City to be aware so no adverse action will be taken. The Schertz City Attorney is also fully aware of this matter and there has been an ongoing dialogue for several weeks. Chairman Richmond stated that he appreciates being made aware of this problem and the plan on how to correct the situation. He stated that all P&Z could do tonight is hear the presentation. The issue would need to be placed on the agenda of a future P&Z meeting for discussion. In the meantime, City Staff needs to review with the City Attorney and City Council on how to proceed with this matter as it appears to be very complex with legal implications. If the Planning and Zoning Commission includes this item on a future agenda, you will be notified prior to the meeting. Mr. McNeal stated that they were waiting for the Courts to approve the overall plan; now that Cibolo has approved it, he hoped Schertz would approve it also. He said that he hoped it could be done with no impact to the Pursers or Talberts and done the right way so there would be no mess at the end. Chairman Richmond stated it would be coordinated with our City Staff, City Council and our City Attorney before they would make a recommendation. 3 , On a different subject, Mr. Brockman stated that he appreciated Misty telling the BOA they could not take action on any item that was not given a 10-day notice in the paper. #6 Consider and Take Appropriate Action: On a request from Don McCrary and Associates for a final subdivision plat approval on Jonas Woods Unit II. Chairman Richmond asked for staff input from Mr. Youngblood who stated that the Chairman and Commissioners had agreed at the last P&Z to hear this action out of cycle. Mr. McCrary provided the Commissioners with updated copies of the plat that contained the corrected items. Mr. Aiken stated that the three items were corrected; flat curb detail, sidewalk detail for five foot, and the curvilinear curbs. He said Public Works had told them that ductile ironwork pipe should go down the center of the road. He further stated they would walk it with Public Works to determine what trees would remain, and what exact road width and driveway issues could prevent removal of good trees. He said they had reduced the width to 21 feet to save all the trees. Mr. Youngblood stated that Mr. Truitt also needed to be involved to ensure all code was correct. Mr. Aiken said that he was in contact with Mr. Truitt, and that the ROW would not change. Ms. Briscoe also stated she was concerned that the transplanted trees were not being taken care of. Mr. Aiken stated that of the 264 trees transplanted into the village section, only 17 have been lost. He stated that any remaining trees to be transplanted could be moved to the playscape, school, or anywhere the City needed. Chairman Richmond stated that the trees to be transplanted needed to be given a large root ball when removed and then given a full year to see if they live. Properly removed and cared-for trees should have at least a 40% success rate. An arborist told the City Manager that if a large enough root ball was dug up and then planted in a large enough hole and properly watered, the success rate is highly probable. Mr. Evans asked Mr. Aiken about his statement, "the right of way will not vary." Mr. Aiken stated that they first laid out the right of way, then went back and did a tree survey to determine how many trees would be affected. They then went back to the City Staff to see if they had any concerns on our planned ROW. The Fire Department had the most issues and stated that they needed 24 feet as the minimum road width to get public safety vehicles into that street. By weaving the street down to 21 feet at one point, Jonas Woods could save every tree in the ROW, some having a DBH of 16 to 18 inches. Mr. Evans stated that if you build the curb around the tree to save it, you have built into the ROW. Mr. Aiken stated that curbs are always moved around in the ROW because of various situations. It's a matter of is it 12 feet on this side and eight on the other side; that's where the serpentine effect comes in. The driving factor in this situation is emergency fire, police and EMS vehicles. As long as City Staff was comfortable that this street could be served safely, that gave us some latitude in weaving the street; we're just trying to meet all the UDC, P&Z, and Public Safety requirements. Mr. Evan stated that the street was "straight-lined" on the plat. He referred to the UDC plat section that says the plat is supposed to mirror what is built. He said that any shape, curves, 4 islands, bumps, etc. were supposed to be reflected on the plat. He said it appears we are making an exception to a platting rule by allowing this plat to be approved. Mr. Aiken then asked to come to the white board to diagram his point. He showed a 50' ROW with a 30-foot street. He then drew curbs and property lines. He showed that he could flex his curb to either go in front of a tree or behind it to help save the tree. Either way, the curb was still within the allotted 50'. Mr. Aiken said technically I'm not changing my plat and I'm not changing my lot line. Mr. Evans asked, "did you not change your road width to 28 feet under that scenario?" Mr. Aiken stated that according to Fire and EMS, he could have cut the road width to 24 feet and they would have been comfortable. Now, I have to deal with Public Works that informs me this might not be adequate. We are trying to work with each department to ensure we do this right. Just remember that the established 50-foot ROW does not change in any way -- it's always 50 feet. Remember, we went to the added expense of installing ductile iron pipe down the centerline for water to avoid having to remove the trees. We could have put in no parking signs along the street at the narrow points; however, we knew that wasn't going to work. City Staff all agreed that the best course was to make the street a minimum of 24 feet to help save the trees and allow access by public safety. Mr. Sommers said that what he heard is that each department would have to give a waiver saying that they were in agreement on the street width before this issue could come to P&Z. Mr. Aiken stated that was what he had done. Again, he was just trying to save trees and comply with all the public safety requirements. If the City Staff cannot live with this plan, then the trees will have to come out, and he knows how dear the trees are to P&Z and the community. Mr. Sommers said he didn't understand why you could not just paint the curb red to denote no parking. Mr. Aiken stated that would work most of the time; however, this option was just not practical. Mr. Evans asked that everyone go to the notes on the plat, reference note 6 for lot 9, block 21. If you look right under Schertz where Schertz Parkway is depicted on the plat, you'll find it. That's the greenbelt easement for that area. Mr. Evans then asked Mr. McCrary, "What is the true purpose for that strip of land that's labeled "common area" between lots 11 and 12?" Mr. McCrary stated that this is dedicated access to the common area in back of those lots. Mr. Truitt was informed that they wanted to grow some additional trees in the common areas for the benefit of the homeowners. He stated that all common areas had to be cleared within 75 feet of a structure. He said it was necessary to have a point of access for the HOA to get to these areas to allow them to be maintained. Mr. Sommers stated that he hoped that this was not a case of the "camel getting his nose under the tent" and P&Z expecting to see a change of plat later on in the process with a variance attached to it. Mr. Aiken stated no, that the ROW has been defined, the trees to be saved have been identified, and Public Safety and Public Works have coordinated hopefully to everyone's satisfaction. Any trees we can't save, we will be glad to donate to the City's transplant program. Chairman Richmond asked if there were any further discussion on this matter. With none, the Chairman asked for a motion. 5 .. , Mr. Van Dine moved to approve the request from Don McCrary and Associates for a final subdivision plat approval for Jonas Woods, Unit II. Mr. Moreno seconded the motion. A vote was taken, and all members voted to approve the final plat with the exception of Mr. Evans who abstained. Chairman Richmond declared the motion passed. #7 Items by Commissioners and City Planner: Ms. Briscoe stated she was having trouble understanding how developers, who get credit for leaving trees, later can let trees damaged in development die. For example in front of Walgreen's, there are four dead trees, and I'm not too sure the big one in the middle of the parking lot is going to make it. Does our UDC say the owner is supposed to remove and replace the dead ones? The UDC states that trees are supposed to be maintained in a live and healthy state, and I don't believe Walgreen's is doing that. What can we or should we do about this? Do we need to strengthen our ordinance on this issue? I think that Walgreen's has damaged those trees by trimming them up as high as they could, not putting the proper pruning paint on them, and letting the trees die. Mr. Evans stated that the City allowed Walgreens to wrap the saved trees right up to three feet from the base of the tree. Developer Larry Aiken asked to speak from his perspective. He said that developers are driven by volume yield per acre. He stated that if you write an ordinance that is so restrictive that developers must salvage every possible tree that they can, even if the odds of those trees surviving is remote, it would be impossible. For example, if you have a heritage or protected tree and it has to be removed, give the developer an option to remove it and plant it elsewhere where the City wants or needs it. For example, if the tree mitigation was say $2250.00, I could move a lot of trees and water them for 90 days until they got established. At least it gives the developers options to help save trees and hopefully a large percentage of them will survive. Chairman Richmond stated that is not the issue and Joyce agreed. The issue is when the developer has mitigated trees in lieu of payment some responsibility must rest with the developer or owner to maintain them. And, if the trees die in Walgreens case, our UDC says they must be maintained in a healthy state and dead ones removed. It is not clear if they have to be replanted, inch for inch. Chairman Richmond asked Mr. Youngblood to staff this with the Building Official and even possibly with the City Attorney to see if P&Z has any recourse to make Walgreens take out the trees and replant. Mr. Youngblood said he would staff this and report back to P&Z at a future meeting. He said the Staff first needs to try and come up with a workable solution to a problem before we get the City Attorney involved; legal fees are getting out of sight. Chairman Richmond asked the Staff to include in the next planning meeting an agenda item for action to address paragraph (C) 7.1 as it reads pretty clear. He would also like the Staff to see what the other cities in the local area are doing to see how we stack up. He said this appears to be enforcement rather than an ordinance issue. Mr. Evans then stated a need to review the zoning on Schertz Parkway now that it's being redone. He stated that some of the properties are not zoned, e.g. Savannah School, and some 6 ,.. ,~ .. ~ of the properties need to be rezoned as NS (Neighborhood Services) vs. GB (General Business ). Chairman Richmond stated there also is a need to look at FM 3009 for the same reason. Elbel Road to FM 78 is all GB (General Business), and there needs to be a review of this area to make sure it fits into our overall plan. Mr. Youngblood briefed the group on the Smart Growth Workshop in San Antonio last weekend. Mr. Moreno asked when/where is the APA Conference this year. Misty said 2-5 Oct in EI Paso. Mr. Evans then brought up the Jackie Keith property situation that Mr. McNeal had briefed the P&Z on earlier. Mr. Evans stated that he remembered when Mr. Keith came to P&Z several years ago to have this subdivision plat approved. Mr. Evans noted that it was flat out disapproved because it did not meet the standards and criteria of our UDC, and the fact that all this property was in the City's 1 OO-year flood plain. He stated the P&Z Commission would be ill advised to approve anything, especially any variances on drainage or flood plain management, until it is clearly shown that all standards we hold every citizen and developer to have been met. By the way, P&Z would not make that decision, City Council would, and I don't think we now could give them a favorable recommendation for any kind of variances. Mr. Youngblood stated that this was a very serious on-going problem especially with Mr. Purser, Ms. Talbert, and Mr. Juarez. As a matter of fact, Mr. Juarez was very upset with the City because in the 1998 flood, he claims he sat on the roof of his house during the height of the flood and could not leave his property, nor would the City come and rescue him. Mr. Wallace stated that Mr. McNeal said that Cibolo had approved his plan. Councilman Ken Greenwald stated that just because Cibolo had approved the plan didn't mean that we should jump in there and approve something unless we were sure it was legal, correct, and the right thing to do for our citizens. Chairman Richmond stated that we heard Mr. McNeal's proposal, and we can't act tonight anyway as it wasn't an agenda item. He suggests the City Staff and our legal folks review this with a fine-tooth comb, and come back and brief us on what is the proper and legal thing to do for the City and the property owners. Mr. Greenwald informed the Commissioners of an upcoming trip to the Gonzales well head site and invited anyone who wanted to go to let the front office know so they could have a seat and a meal available. It will be this Saturday and they plan to leave early. Mr. Youngblood briefed the Commissioners that TXDoT had given the City a letter of intent to improve the intersection of 1-35 and FM 3009 for about $1.5 million. He stated that this is not 100%; however, it was good to have TXDoT on our side to help get this on the books as a good project. Mr. Evans stated that he wanted to commend Mr. Truitt and his staff for all the wonderful enforcement he's seen over the past several weeks. He can tell they've been very busy. He also stated that we're starting to see a lot of agenda items, and we need to be careful to keep the action items off the planning meetings. It seems like we're starting to slip back into a two- 7 action-item-per-month-meeting just like we had before. We're never going to get moving ahead on these critical items, e.g. rezoning, planning, annexation, unless we bear down. Also, I know that Ron and Misty are real busy with such a small office and everyone wanting to come build in town. There is a lot of work that goes on with each one of these projects which takes a lot of Staff time to have them done right before they even get here. Remember, just to the West of us that City can take up to several months just to get an item on the agenda. Don't forget, we're not in a big hurry if it's not being done right. Anyway, Planning is doing a pretty good job, with just two people and considering the size of our City and the development pressure I'm seeing out here. Chairman Richmond stated he agreed and that we need to hold everyone to the January 2002 letter that clearly outlines the new rules. However, he did say there will always be extenuating circumstances and hopefully these would be the exception and not the rule. He said he just wants to ensure the City Staff has ample time to evaluate each agenda item without pressure from the developer or anyone until the City Planner feels it's ready to come before the Commissioners for action. He also brought to the Commissioners' attention that there were several new staff members, e.g. Fire Chief and Police Chief, who would require time to learn the UDC and the lay of the land to help us provide the best possible decision for the items that come before us. #8 Adjournment: Meeting was adjourned at 8:42 p.m. ry,J J01, Chairman, Planning and Zoning Commission ATTEST: '~~J1Q.Qi] Planning S . cret ry, City of Schertz 8