HomeMy WebLinkAbout01/18/2012 BOA
MINUTES
CITY OF THE COLONY
BOARD OF ADJUSTMENT
Wednesday, January 18, 2012
After determining that a quorum was present, the Board of Adjustment of the City of
The Colony, Texas convened into Regular Session which was held on Wednesday,
January 18, 2012 at 7:00 p.m. in the City Council Chambers located in City Hall,
6800 Main Street, The Colony, Texas, at which time the following items were
addressed:
Board Members Present: Lloyd Martin, Vice Chairperson; Donna McCright; Gerald
Odum; Charles Tredo.
Board Member Absent: Constance Yahwak, Chairperson.
Present from Staff. J. Michael Joyce, AICP, Development Services Director; Brooks
Wilson, AICP, Senior Planner; Jimmy Schnurr, City Attorney, Avriel Blackwell,
Acting Secretary.
1.0 CALL REGULAR SESSION TO ORDER
In the absence of Chairperson Yahwak, Vice Chairperson Martin called the meeting
to order at 7:03 p.m.
2.0 ITEMS FOR CONSIDERATION
2.1 Consider approval of the minutes of the regular session of the November 16,
2011 Board of Adjustment meeting.
It was moved by Board Member McCright to approve the minutes as written,
seconded by Board Member Odum and carried (4-0).
3.0 ITEM FOR CONSIDERATION
3.1 SI11-0025 - Ordinance Amendment. Discuss and consider making a
recommendation to City Council on a revision to the Code of Ordinances,
Appendix A, Sections 21-100 to 21-104, entitled "Board of Adjustment,"
establishing regulations for the Board of Adjustment, and establishing the
amortization of nonconforming uses.
Ms. Wilson presented the staff report.
Mr. Schnurr, City Attorney, said that the reason for the proposed changes to the
ordinance was to craft an ordinance that is easy to understand and is in compliance
with state law. The language used was taken from Chapter 211 of the Texas Local
Government Code. Mr. Schnurr went on to say that the Board of Adjustment had
broad statutory powers, but that the current ordinance did not spell these powers out
in a clear manner.
Board of Adjustment
January 18, 2012
Page 2 of 4
Board Member McCright asked how the Board of Adjustment has been operating up
to now.
Mr. Schnurr answered that the board acted in good faith and within the ordinance as it
was written; but if challenged in court, would most likely have lost. The current
ordinance uses the terms "variance" and "special exception" interchangeably. These
are two separate issues with separate criteria for decision-making.
Vice Chairman Martin brought up an example of an item that was brought before the
commission that was presented as a "special exception" but was in fact a "variance."
Mr. Schnurr added that it is critical for the items in question to be presented properly
and to be considered with the criteria that the state requires, as well as being in
compliance with all of the City ordinances in order to successfully defend any
decision made by the Commission in court.
Mr. Schnurr assured the Commissioners that no current powers that the Commission
has were being removed.
Board Member Tredo asked if the proposed ordinance was correcting grammar.
Mr. Schnurr answered in the negative; that the proposed ordinance is written to meet
the legal standard required by state law.
Board Member McCright asked why the current ordinance was written this way.
Mr. Schnurr answered that he did not know the history of the ordinance.
Mr. Schnurr read and explained the proposed ordinance, section by section. He said
that the ultimate authority for zoning resides within the City. Mr. Schnurr discussed
the make-up of the Board of Adjustment, the appointment of members by the City
Council, and other issues relating to the procedures of the Commission. He added
that state law requires 75% of the members vote together for or against any variance
or special exception brought before them. If a member is absent or fails to vote, all
four of the remaining Commissioners must vote together. This rule does not apply to
decisions made by the Commissioners regarding their processes, such as electing a
chairman or vice chairman. Mr. Schnurr also explained how vacancies on the board
are filled and the process by which the City Council may remove a Commissioner for
cause.
Board Member McCright asked about what might be a cause for a Commissioner to
be removed "for cause."
Mr. Schnurr answered that there is no specific incident or action spelled out, but that
a public hearing before the City Council was required for any removal of a
Commissioner for cause.
Mr. Schnurr continued with his explanation of the proposed ordinance by citing the
exact powers and authority given to the Commission.
Board of Adjustment
January 18, 2012
Page 3 of 4
Board Member McCright asked for clarification of a decision made in the past that
may have been beyond the authority of the Commission, as stated in the proposed
ordinance.
Mr. Schnurr explained that there is a fundamental difference between a "variance"
and a "special exception." A variance can allow changes to a specific and finite list
of development regulations and only if there is a physical hardship on the property
that is substantially different from other nearby lots which warrants the approval of
the variance. A special exception may be granted to any part of the Zoning
Ordinance (other than those specifically listed under variances) that the City Council
has authorized the decision-making to the Board of Adjustment by setting standards
for review and approval. Commissioners were given various examples. Some
questions on past items were discussed.
Mr. Schnurr then discussed the new section of the proposed ordinance relating to the
amortization of legal, nonconforming uses. He stated that the proposed section on
amortization is completely legal under state law and is not considered a "taking"
since the property owner retains the land and is given time to recoup his investment
of capital assets. Mr. Schnurr elaborated on the definition and process by which
amortization of a legal, nonconforming structure or use may be eliminated. He
stressed that the critical date for determining the value to be amortized is the causal
event that creates the nonconformity - such as annexation, a zoning change and the
addition of the requirement for a Specific Use Permit for the type of use after the use
is already in operation. Mr. Schnurr added that the City cannot capriciously impose
an amortization on a legal, nonconforming use: it first must determine that the use is
detrimental to the adjacent property owners and/or the City as a whole. He gave an
example of a local municipality that amortized an unwanted trailer park. The owners
of the trailer park were given a specific amount of time to garner the benefit of the
use and then the operation had to cease. They still had full use of the land for future
development, however, for any legal use under the zoning ordinance.
Board Member Odum asked who determines the value to be amortized.
Mr. Schnurr answered that both parties bring in expert witnesses and that the Board
of Adjustment ultimately makes the decision. The decision may be appealed, but the
state requires a 10 day maximum for the appeal to be filed.
Board Member Tredo asked whether the "10 days" was 10 calendar days or 10
business days.
Mr. Schnurr answered that the statute does not specify.
Board Member Tredo asked why a fee was not mentioned in the proposed ordinance
even though it was included in the current ordinance.
Mr. Schnurr answered that the fee would be listed in the City's Fee Schedule
document.
Board of Adjustment
January 18, 2012
Page 4 of 4
Board Member McCright stated that amortization can be unfair to the employees of
the business being amortized.
Mr. Schnurr answered that the concerns of the employees must be weighed against
the damage to the City as a whole.
Board Member McCright moved to recommend approval of the proposed
ordinance; Board Member Tredo seconded the motion. The motion carried (4-
0).
Being no further discussion, Acting Chairperson Martin adjourned the meeting at
8:47 p.m.
Lloyd artin, Chairperson
Avriel B ackwell, Acting Recording Secretary