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HomeMy WebLinkAbout04/01/1992 BOABOARD OF ADJUSTMENT & APPEALS OF THE CITY OF THE COLONY, DENTON COUNTY, TEXAS HELD ON APRIL 1, 1992 A SPECIAL SESSION OF THE BOARD OF Adjustments & Appeals of the City of The Colony, Texas, was called to order at 7:30 p.m. with the following members present: Rob Bauman Member Robert Poynter Member Tim O'Neill Member Gene Poole Member Vivian Preston Member Alton Paris Member Quorum Present Bob van Til, Administrative Staff Planner of The City of The Colony was present. Member Poole read an overview of Variance Procedures and Requirements. 1. NOMINATION OF CHAIRMAN & VICE CHAIRMAN: (CHAIRMAN) Member Poole nominated Robert Poynter, Member Paris seconded, and carried by all ayes. (VICE CHAIRMAN) Member Poynter nominated Gene Poole, Member Paris seconded, and carried by all ayes. 2. PUBLIC HEARING: Regarding a request made by the City of The Colony to reverse a previous ruling of the Board of Adjustments and Appeals regarding an accessory structure located on city land adjacent to #8 Holden Circle. Meeting was turned over to Chairman Poynter. Member O'Neill motioned to open the Public Hearing, Member Poole seconded, and carried by all ayes. Mr. Van Til, representative of the City, addressed the Board and explained that the city was requesting they rescind the order of the Redden's case of June 1991 as advised by the City Attorney for lack of jurisdiction. Robert Maxfield, City Attorney had reviewed this matter and had made a determination that the issue, specifically the encroachment of a structure on city easements was beyond the jurisdiction of the Board of Adjustments. Mr. Maxfield stated he had also reviewed the Ordinance and concurred with Mr. Eckerts interpretation. (City Attorney whose original opinion appeard in the B.O.A.'S packet) Chairman Poynter asked Mr. Maxfield if the structure was on City Easement. Mr. Maxfield replied that was his understanding. Chairman Poynter asked who was requesting to rescind this. Mr. Hall, City Manager, said it was an action requested by the city. Mr. Hall said there has been numerous discussions since the Board met in June of 1991 regarding the power of the Board of Adjustments and Appeals to hear a matter of this nature. Member Bauman asked Mr. Hall what would happen if the Board doesn't rescind it. Mr. Hall said this particular item, the encroachment would be refered back to the City Council. Should the Board not rescind the order, one option the city could take is to file suite in District Court. Member O'Neill asked how did the Board receive this case if they had no jurisdiction. Mr. Hall replied that all requests are made by the individual land owners. Chairman Poynter voiced his concern of the city reviewing the decision of the Board. Chairman Poynter asked Mr. Maxfield how they decided it was out of the Boards jurisdiction. Mr. Maxfield replied that he determined the Board lacked jurisdiction after reviewing the City Ordinance Section 21-103. Chairman Poynter opened the floor for Citizen imput. Lou Gomez, 5081 Shannon - said he felt it doesn't look good for the Board to overturn their decision as requested by the city. He asked that they not rescind the order. Tom Bogan, 4232 Ireland - he questioned why this case was being reviewed by the city. He felt the Redden's were clearly in violation of the City Leasing Agreement, the Building Codes and couldn't understand why the building was still there. If there was some questions regarding the decision made by the Board an appeal should have been made within ten days. Mike Lynch, 4921 Roberts - said he must talk in length about this. Saying originally we - the city - the council - however, we sent this to the Board of Adjustment and Appeals by mistake. They did not consult with an attorney before they took their action. He said he was speaking we as a city because we as a city are now asking for the Boards cooperation in correcting this mistake. He said the issue here is basically the jurisdiction issue. He didn't want to get into size of building, changes of leases, building in question a temporary structure. Said leases were corrected at request of the City Council to make them uniform. There were some inadequacies in the leases, they were not all the same. He spoke on four leases in question. On the second case they asked for the opinion of the lawyer. The lawyers recomendation and opinion was the Board of Adjustment and Appeals did not have jurisdiction on encroachments or granting of a permissive agreement of city land. Private land they do, city land they do not. Based on the request and the desire to treat all encroachment cases the same so everyone is treated in the same way they then passed and granted a permissive agreement to the second case. He spoke of a third case coming up of an encroachment on city land without a permit. He said the Council will deal with that one. He went on to say after consulting with the attorney it was determined by the attorney through code and laws of Texas and opinion of the attorney was that the Board of Adjustment and Appeals acts upon appeals of private land and variances but only the city as owner of city land can grant an easement. Mr. Lynch told the Board they were not questioning their judgement of the case, that they made the judgement based upon facts that were presented to them, and in error of the city the error being it was presented to them in the first place. At this point Chairman Poynter asked - are you saying the error was made by the city? Mr. Lynch responded - the city sent it to you in error. What we're asking for is your cooperation to correct this error. He once again said they were not questioning or reviewing their judge- ment, the issue here is jurisdiction only. Bud Carpenter, #5 Indianola - he felt the Redden's built the shed knowing it was in violation of their lease agreement. He felt the shed should be removed. In closed discussion, Board Members reviewed the request. Chairman Poynter told members they could vote to rescind that motion - that variance - but it was very clear to him and he could show them the portion of the law that says the city can not review the Board. When they make a decision they have 10 days to appeal. Member Paris made a motion that the previous ruling of the Board of Adjustment and Appeals be upheld that the Board does have the jurisdiction over that case. Motion died for lack of second. Member Bauman spoke as he felt it was a serious matter and that he still had questions. Member O'Neill asked Mr. Maxfield if they reversed the decision did that mean the Board would not receive any more cases of this type. Mr. Maxfield said this was his understanding. Mr. Hall spoke on the city does not refer anything to the Board of Adjustment and Appeals. If a variance is requested it is re- quested by the property owner and he does pay a fee to make a presentation to the Board of Adjustment and Appeals. Member Paris asked Mr. Hall why did this case come to the B.O.A. Mr. Hall replied because the property owners filed for application through the city to appear before the Board of Adjustment and Appeals. Member Bauman asked Mr. Hall when did the City Council get involved? Mr. Hall replied within the last month, Chats when legal council was sought as to what action could be taken on this. Mr. Hall said Mr. Lynch could further respond to this. Member Poole asked Mr. Lynch could he answer the question on when did Council get involved. Mr. Lynch responded - in saying when the thing originally came up the city advised the Redden's to go to the Board of Adjustment and Appeals because we were under the impression they were asking for a variance when infact they had an encroachment. And B.O.A. with the facts brought to them ruled on it. Mr. Lynch said when the second case was found.and it was a similar case the attorney was consulted. The attorneys ruling was only City Council as care taker of city land can grant an encroachment of anything on city land. Thats what this was so therefore in the similarity between the three cases spoken of earlier - the letter that you have is the answer to all three cases and he spoke of the last paragraph that is addressed to staff of how to bring the cases to Council. He said it was not addressed -to the Board. Member Bauman intertained a motion to table the request for seven (7) days. Member O'Neill seconded. Board poled, 2 ayes 3 nays. Member O'Neill entertained a motion to rescind the Order. Member Poole seconded. Board poled, 2 ayes 3 nays. Motion denied. Member O'Neill entertained a motion to close the meeting. Chairman Poynter seconded. Meeting adjouned at 9:00 F-107-,717- 7 ert Poynte Chairman ti Sher y Hutch' on, recording Secretary