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HomeMy WebLinkAbout12/02/1981 BOAMINUTES OF THE BOARD OF ADJUSTMENT AND APPEALS OF THE CITY OF THE COLONY HELD ON DECEMBER 2, 1981 A SPECIAL MEETING of the Board of Adjustment & Appeals was called to order with the following members present: Gerald Finley Chairman Roosevelt Johnson Member Gene Poole Member Don Lusk Member Michael Leddy Member and with no members absent; thus, a quorum was established. 1. CONTINUANCE OF PUBLIC HEARING ON APPLICATION OF CHARLES J. PURDY FOR A VARIANCE TO CITY ORDINANCE NO. 61, THE COMPREHENSIVE ZONING ORDINANCE, REGARDING A NON -CONFORMING USE OF A MODULAR OFFICE BUILDING ON A SIX -ACRE TRACT OF LAND LOCATED ON THE WEST SIDE OF FM 423 AND SOUTH OF ITS INTERSECTION WITH SOUTH COLONY BOULEVARD At this time, Member Lusk moved that the hearing be opened and continued from the November 18 hearing date. Seconded by Member Poole, the motion was passed by the following vote: Ayes: All members present voted aye Noes: None Mr. Charles Purdy and his legal counsel, Harris Lofthus, were recognized at this time. Mr. Purdy stated his reason for coming before the Board of Adjustment to appeal the decision of the city's building official regarding his right to a non -conforming use of a modular office building on this six -acre land tract. Regarding the background of this case, Mr. Purdy advised the Board of Adjustment that on April 3, 1981, a high wind struck the City of The Colony. This storm destroyed one of the three existing modular buildings on this property and partially damaged the other two buildings. To bring the structures back to a usable condition, it was necessary that they be removed from the property for repair and as a consequence of this action, one large modular office was constructed and placed back on the property. Mr. Lofthus stated that it is imperative to this case that the Board be aware that his legal practice which is also located in these offices as well as the real estate business and Mr. Purdy's tax -consultant business was continued and conducted at their residence during this time. The office use of this property was never abandoned. Mr. Purdy stated that in accordance with Section 20-104 and Section 20-105 of City Ordinance No. 61, the Comprehensive Zoning Ordinance, Mr. Bradburry did advise them that destruction of the buildings in an amount of over 60% and removing the buildings from the property did constitute an abandonment of their non -conforming use status which the city did grant to them when the property was annexed into the city on November 26, 1979, by City Ordinance No. 81. It was Mr. Purdy's contention that the non -conforming use was in fact still in effect, and he did have the right to continue business on this property as long asthe proper procedures for city code enforcement were followed. Chairman Finley asked if it is a modular building can the prints be supplied to the building official for inspection purposes. Mr. Purdy advised him that they could, if this variance appeal is approved by the Board. Alternate Member, Mr. Frank Henry, who was present at the meeting, did state that he felt it would be important to clarify that this hearing is concerned only with the non -conforming use, not code enforcement. At this time, Mr. Dan Savage, City Manager, presented to the Board the city's position on this case and supplied also the following background information: "Mr. Charles Purdy leases a tract of land on the west side of FM 423 from Mr. & Mrs. Marvin Kenning. This property is immediately south of the property. Prior to the annexation of this property, Mr. Purdy had three portable buildings located on the property for use as office space. When the property was annexed, it was classified as agricultural for zoning purposes, but because of the commercial nature of the businesses on the property, the property was given status of a legal non -conforming use. -1- "On April 3, 1981, a windstorm damaged these portable buildings. Mr. Purdy had the buildings removed from the premises in order to make repairs." Mr. Savage further advised that Section 21-103 of the Zonign Ordinance gives the Board authority to permit reconstruction if it were destroyed by natural causes. Mr. Savage did emphasize that this six -acre land tract was annexed into the city after the use had been established and it is presently zoned agricultural. Member Lusk asked Mr. Purdy to clarify the businesses that were located in the modular building. Mr. Purdy assured the Board that no additional businesses had been brought into the office facility and that again it was only the real estate, the attorney and his tax -consultant business that were conducted on this property. He did add that one essential reason that the buildings were removed for repair was that there was at this time no electricity on the property. Member Johnson asked Mr. Savage to clarify the city's position. Mr. Savage stated that the city does not see any conflict on zoning or non- conforming use at this time. Chairman Finley at this time asked if there were any statements against this variance request. Mr. Savage stated that there was no opposition to this variance present at the meeting tonight nor had any opposition been expressed by letter. Janice Carroll, City Secretary, did advise the Board that the landowners within 200 feet had been notified. Member Johnson stated that he personally had talked with Mrs. Etchieson, the neighboring landowner, and invited her to attend this meeting if she had any concerns. Chairman Finley stated that he was of the opinion that this new building is in fact of a sounder construc- tion than the previous three buildings. Mr. Purdy did agree and advised that it is on a pier foundation and a windscreen has been provided which could preclude any additional lifting. Frank Henry asked Mr. Purdy about his lease arrangements with the landowner, Marvin Kenning. Mr. Purdy advised that he did have an indefinite lease for up to 99 years for 200 square feet of the Kenning property. Mr. Henry further stated that the non -conforming use of the land presently zoned agricultural is in agreement with the eventual use of this land as described in the city's master plan. Member Johnson stated the two points that the Board was considerign at this time were if indeed this was a legal conforming use and, secondly, was this use intentionally abandoned by Mr. Purdy. Member Leddy added that he aslo was concerned with the 60% destruction clause in the city's zoning ordinance. Mr. Purdy stated that he had estimated that the first building was totally destroyed but the second building received only 30% dalmage, the third building received only 20% damage, and that during this repair, the three buildings were made into one which served the same purpose as the original three. He also advised the Board that the buildings were off the property for 22 days. Member Leddy noted that this does meet the time criteria per the zoning ordinance. Mr. Purdy advised that the third building did explode and was completely destroyed. Mdr. Frank Henry stated that he felt that there was no change in the use of the land and that the use of the land is in fact presently at its highest and best use. Mr. Henry further stated that the non-conformign use pertained only to the land, not necessarily a modular structure which is not real property. After further discussion, Member Johnson moved that the hearing be closed and that the Board restore the non -conforming. use to the six -acre land tract provided that Mr. Purdy initiate the process for permitting to allow the city proper inspections for code enforcement. Member Poole seconded the motion. The motion was passed by the following vote: Ayes: All members present voted aye Noes: None There being no further action to be taken by the Board, Member Johnson moved that the meeting be adjourned. Seconded by Member Lusk, the motion was passed by the following roll call vote: Ayes: All members present voted aye Noes: None Chairman Finley adjourned the meeting at 8:35 p.m. ATTEST: JANICE CARROLL, CITY SECRETARY -2- GERALD FINLEY, CHAIRMAN r F,