Zoning Board of Adjustment and Appeals

MINUTES ZONING BOARD OF ADJUSTMENT AND APPEALS MEETING CITY COUNCIL CHAMBERS 124 Old San Antonio Road Boerne, TX 78006 Wednesday, May 15, 2019 – 5:30 p.m. Board Members Present: Scott Lowry, Jim Terrian, Richard McCormick, Tom Harris, Cayman Gentry, Jon Paul Bergman, and Alan Thompson Staff Present: Michael Mann, Andrea Rivera, and Sheldon Cravey 1. CALL TO ORDER – 5:30 PM Meeting was called to order at 5:34 p.m. 2. APPROVE MINUTES OF APRIL 17, 2019. Jim Terrian moved to approve the minutes. Tom Harris seconded. All were in favor to approve the minutes of April 17, 2019. 4. CONFLICT OF INTEREST DECLARATION Jon Paul Bergmann recused himself for Variance No. 19-03. 3. DESIGNATE VOTING MEMBERS Chair Lowry designated five regular members for voting. Alternate members Jon Paul and Alan Thompson to take part in discussion only. 5. PUBLIC HEARINGS: Receive comments on Variance No. 19-02, Moosehead Manor Lot 4A (228 Bess St.). James Adams, the owner and occupant of 228 Bess St., approached to discuss Variance 19-02. He started by explaining the accessory dwelling on his property and that it is about 1300 sq. ft .and this is where his wife makes pottery and conducts classes two days a week. He said they do not sell or resell anything from this business, it's not open to the general public, and is not advertised. He believes they meet the requirements of home occupation. The question is the City of Boerne Page 1 Printed on 10/21/2019 Zoning Board of Adjustment and Official Meeting Minutes May 15, 2019 Appeals percentage of usage which conflicts with other requirements. In the zoning ordinance, the home occupation requirements are addressed in items A-L and have to be met for home occupation. And of those items, he believes they meet all of them. James continued by reading from the zoning ordinance and comparing his business to the items listed in A through L. The only item in question is the home occupation use utilizing 25% gross floor area of the building. Depending on how you define the 25% gross floor area, I don't believe we meet that. I don't know if it's 25% of the building we are using, or 25% of the gross floor area of all the buildings and square footage on the property. He feels they are being unjustly denied a use. He wants to know how one defines a percentage. Our business requires storage for the pottery. We are borderline commercial having HEB at our sideyard. He said he is requesting 50% use of the gross floor area to conduct this business. Member Harris asked if he considered any alternatives that could comply with the City rules and regulations. James said he doesn't know what other option he has besides going to a commercial zoning or adding on to the house which would bring him into compliance, but cost money. Alternate Member Thompson asked when he purchased the lot. James said in November of 2001. He added an addition to the garage in 2003. The use was discussed at the time of the addition and the use has not changed. Member Gentry asked if are there any other lots similar to this one. James said he wasn't aware of any and didn't want to discuss other neighbors. Member Thompson asked about the class size. James said anywhere from 4 to 5. Member Thompson also asked how they get there. James said they drive. James said most of the cars fit in the driveway. Mike Mann said we need to allow the Planning Director to talk about this variance. Laura Talley approached and said that she and Mr. Adams spoke many times and her recommendation to him was to rezone the property. Laura explained the definition of home occupation business is carried on entirely within the dwelling. This is a detached accessory structure that is not a dwelling and is not being used as a dwelling by this definition alone, it does not meet the home occupancy requirement. This qualifies as a commercial business, not as home occupation. Home occupancy for example is a business in a City of Boerne Page 2 Printed on 10/21/2019 Zoning Board of Adjustment and Official Meeting Minutes May 15, 2019 Appeals bedroom in a house and is 25% of the dwelling. He can add on to his house but only 25% of that can be used as home occupation, or subdivide the lot and rezone a piece for commercial. She understands commercial is slowly expanding down this street. Member Thompson asked if the code addresses the parking. Laura said it does and it talks about signage and parking and that is the reason why it is limited to 25%. The limitation is in the square footage and that is how the parking is limited as well. Vice Chair Terrian confirmed the fact that if the addition were to be built the board could not grant a variance based on the use of that structure. Laura said based on the square footage he has provided us for the use, it is well over 25%. Laura said the case Mr. Adams is making is specific to use. Laura said his interpretation of the 25% of the gross floor area of the building, which is how he is looking at it, but when you tie it to the actual definition of the use, it clarifies that it is within the home. This is the piece of the puzzle that is confusing. Laura said he is not trying to make the use exception, he is trying to make the square footage exception. Chair Lowry closed the public hearing. Receive comments on Variance No. 19-01, Moosehead Manor Lot 4A (228 Bess St.). Receive comments on Variance No. 19-03, Dietert Addition PT Lot 11 & PT Lot 12 (115 Oak Park). Member Bergman recuses himself for this variance hearing. Alvin Peters approached to present variance 19-03. He is representing the owners. He explained the overhead drawing and the zoning adjacent to the property. We looked at the pros and cons of a commercial structure and a residential structure. We decided on a multi-family residential two story structure. He explained the residents of this future structure will be able to walk to the local businesses. He also explained the challenges of fire access. Vice Chair Terrian asked if the existing home will be kept as a residence. Alvin said it is a business and will remain. Monte Lang approached and explained that he has done a lot of work to the 1964 house and wants it to stay and there is a lot of space in the back and wants to utilize this space. City of Boerne Page 3 Printed on 10/21/2019 Zoning Board of Adjustment and Official Meeting Minutes May 15, 2019 Appeals Member Thompson asked what is driving the need for a two story building. Alvin said rental revenue. We have space for parking and mixed use is allowed and trying to figure out how to capitalize on it. Member Gentry asked if it is four suites or five across and suggested building 4 and 4 with parking in the back and move building forward. Monte explained there are heritage trees and they do not want to touch those. There are trees that wrap around the back of the property and all the fence line and you can see a two story building behind us. It's a strip center. We want to maximize the occupancy and block the view of the gray building. They want to make this building to look nice. Vice Chair Terrian said looking at other options on design you could meet the height restrictions with 5 units below and 3 above. Alvin said we can meet this requirement, but we are hoping the board would grant the variance to add more square footage. Without a building similar to what's back there already, when you stand in the backyard you are looking at this commercial structure and it is ugly. Alvin explained that he is trying to put something nice in front of something that is ugly and how can this be bad. Vice Chair Terrian explained our job is to find a hardship. Alvin said he is trying to improve the aesthetics of the neighborhood. He said his biggest hardship is the fire lane. There is only one way in. Monte explained there are more oak trees along the neighbor's property. A two story wall next to this would not be appealing, but it would look better up against the two story gray building. Not having a variance for the top floor of the building would look unfinished. It would satisfy the variance, but it would look unfinished. There are other options we could do, but this looks the best. Alvin doesn't believe the two story structure will loom over the residential. Laura Talley, Planning Director, approached and said there is a section in the Zoning Ordinance that talks about height exceptions between residential and commercial zoning district. This rule is in place to protect residential. Any structure within 35' feet shall not exceed 20' total in story height. Beyond 35' and within 75' you can get up to two stories in height. He can build a one story structure back there or set back the second floor with a two story. The height restrictions are in place to protect the residential. Laura said there are other options to explore to City of Boerne Page 4 Printed on 10/21/2019 Zoning Board of Adjustment and Official Meeting Minutes May 15, 2019 Appeals prevent a two story from looming over the residential. Member Thompson asked about what the ordinance says about heritage trees. Laura said in a residential zone, they can remove the tree, but not in a commercial area. They would need a permit and mitigate the tree removal. It is inch per inch and a half of mitigation. 6. ITEMS FOR DISCUSSION/ACTION Consider Variance No. 19-02: A request from James & Sherri Jo. Adams, requesting a variance to the City of Boerne Zoning Ordinance Article 3 Section 04.002.H, to allow for home occupancy utilization of 50% of the gross floor area rather than the required 25% for all residential districts for Moosehead Manor Lot 4A (228 Bess St.). Mike Mann said the board can take whatever action they feel is appropriate. We've never had a use component to a variance request before. Any request can be made by the applicant, the board just needs to decide. Member Harris said the staff felt there were other options to explore. Mike said they dicussed an option of constructing an addition to the residence making the home occupation use part of the residence. There may be square footage issues, but it would negate the accessory versus residence condition or argument. Secretary McCormick asked if they re-zoned, would they meet the criteria. Laura said he has the appropriate lot size and would be a tight fit, but could be done. Secretary McCormick asked if he would have a setback issue. Laura said no as long as it is a one story building. James Adams challenges City staff to define dwelling and what gross floor square area and its definition. Dwelling is not defined in the ordinance. The 25% use within a dwelling is sketchy. The process of getting here and Staff's review of my package and their recommendation and I don't get to be part of that. I have to present an argument and I don't know what I'm up against. Mike Mann said the Staff Variance Committee has no legal authority and in the past the board has asked what the staff thought. Member Harris moved to deny variance 19-02, Secretary McCormick seconded. All were in favor to deny the variance. 5-0. City of Boerne Page 5 Printed on 10/21/2019 Zoning Board of Adjustment and Official Meeting Minutes May 15, 2019 Appeals Consider Variance No. 19-01: A request from James & Sherri Jo. Adams, requesting a variance to the City of Boerne Zoning Ordinance Article 5, Section 4, Table 5-2, to allow for a detached accessory structure front setback that is behind the front building line rather than the required 5-foot setback from rear of building line as required for an estate lot for Moosehead Manor Lot 4A (228 Bess St.). The applicant withdrawals this request. Consider Variance No. 19-03: A request from Alvin Peters, on behalf of Montgomery Lang, requesting a variance to the City of Boerne Zoning Ordinance Article 3, Section 3.05.001, to allow for a second story side setback of 5-feet rather than the required beyond 35-foot setback for the eastern side of PT Lot 11 and PT Lot 12, Dietert Addition (115 Oak Park). Vice Chair Terrian moved to deny the variance request. Member Harris seconded. All were in favor to deny Variance 19-03. 7. ADJOURNMENT _______________________________ Chair Meeting was adjourned at 6:55 p.m. _______________________________ Secretary City of Boerne Page 6 Printed on 10/21/2019