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09.13.2001 ZBA Minutes MINUTES OF SPECIAL MEETING/PUBLIC HEARING TOWN OF TROPHY CLUB ZONING BOARD OF ADJUSTMENT SEPTEMBER 13,2001 The Zoning Board of Adjustment of the Town of Trophy Club, Texas met in a Special Meeting on Thursday, September 13, 2001 at 4:00 p.m. in the Board Room, 100 Municipal Drive, Trophy Club, Texas 76262. BOARD MEMBERS PRESENT: Roger Unger Board Member David Bettis Board Member Darin Davis Board Member Sherry Gearner Board Member BOARD MEMBERS ABSENT: David Henry Board Member Jim Moss Board Member(Alternate) STAFF AND GUEST(S)PRESENT: Shannon DePrater Acting Zoning Board of Adjustment Administrator Kerin Fleck Planning and Zoning Coordinator Paul Rosenberger Asst.to Town/Mud Managers Bill LeGrand Director of Public Works Patricia Adams Town Attorney SPECIAL SESSION CALL TO ORDER,ROLL CALL AND ANNOUNCE A QUORUM. Chairman Roger Unger called the special meeting to order at 4:13 p.m.,noting a quorum was present. REVIEW AND APPROVE MINUTES OF JUNE 26,2000. Board Member Davis moved to approve the minutes of June 26, 2000 as written. Board Member Bettis seconded;motion carried 3-0-1 with Board Member Gearner abstaining. ZONING BOARD OF ADJUSTMENT TO CONVENE INTO PUBLIC HEARING: PUBLIC HEARING THE ZONING BOARD OF ADJUSTMENT OF THE TOWN OF TROPHY CLUB, TEXAS TO CONDUCT A PUBLIC HEARING TO CONSIDER A REQUEST BY THE OWNERS OF THE PROPERTY AT 2 BROOKHOLLOW LANE FOR A VARIANCE TO SECTION 15 (F) OF THE ZONING ORDINANCE OF THE TOWN OF TROPHY CLUB IN ORDER TO ALLOW A REDUCTION IN THE MINIMUM SQUARE FOOTAGE REQUIREMENT OF THE ZONING ORDINANCE FROM 2,500 SQUARE FEET OF INTERIOR FLOOR AREA TO 2,284 INTERIOR SQUARE FEET OF FLOOR AREA. OWNER/APPLICANT: STATURE BUILDERS,L.P. Kerin Fleck,the Planning and Zoning Coordinator,updated the Board and gave a timeline of events. Mr. Donald Walsh, attorney for Stature Builders, L.P. addressed the Board. Mr. Walsh called two witnesses,Mr. Pat DiFonzo, owner of Stature Builders, L.P and Mr.Andrew Reid, construction manager for Stature Builders. Mr.Walsh read the following exhibits into the record: Page 2 SPECIAL SESSION September 13,2001 Exhibit 1:Building Permit issued to Marc Allen Custom Homes on February 19,2001 Exhibit 2: Building Permit issued to Stature Builders on June 22, 2001 Exhibit 3: Survey Plat date July 13,2000, and updated March 28,2001 Exhibit 4: Special Warranty Deed dated April 27,2001 Exhibit 5: Sales Agreement between Marc Allen Custom Homes,Inc. and Stature Builders,L.P. Exhibit 6:New Home Contract between Stature Builders,L.P. and Abraham M.Attari Exhibit 7: Schedule of costs incurred by Stature Builders,L.P. for acquisition and development of subject property. Patricia Adams cross-examined Mr. DiFonzo regarding any reason not to add on the 216 square feet needed to bring the home into compliance. According to Mr. DiFonzo, there is no reason why the 216 square feet cannot be added. The Board recessed at 4:52 p.m. and reconvened at 5:00 p.m. Patricia Adams read into the record, Town Exhibit 1, board packet and Town Exhibit 2, supplement board packet. Shannon DePrater read a letter submitted by Mr. Kenneth Montanan of 3 Brook Hollow Court. Ms. Patricia Swickard of 1 Brook Hollow Court, Ms. BJ Bailey of 4 Brook Hollow Court and Mr. Joe Spiewak of 6 Brook Hollow Court addressed the Board. Mr. Walsh made a closing statement stating that Town officials admittedly erred in issuing building permits to both Marc Allen Custom Homes and Stature Builders. Both of these permits expressly allowed the construction of the 2,284 square foot home on that site. There has been no testimony about any fraud or any representations, a big mistake was made a—it was made twice. We have conceited the correct minimum area for a home on that lot is 2,500 square feet so we are not looking to change the zoning ordinance, we are not looking to amend it, we are just looking for relief because in this case, the Town and even the objectors could have objected to that building permit that you have in your procedures, fifteen days after a building permit is issued it can be appealed to this Zoning Board of Adjustment and a hearing held and be revoked, modified and amended. After the fifteen days, you cannot appeal anymore. Now when the City goes out and issues a stop order, they have in effect, gotten the benefit of an appeal after the fifteen day time period and a success,they won it. It is almost as if your rules for a public procedure, the due process that we are all are entitled to, only apply to the applicant, they do not apply to the City. If the City appealed it and lost, do they issue a stop order then? Do they always have that power,regardless,of what the rules are and how this is supposed to work? Our argument today is primarily focused on the fact that those permits were issued by mistake. My client, without any fraud or any deceit, in good faith relied on those permits both in buying that property and selling it and proceeding to develop it is now looking at a lawsuit from his buyer, if he does not go forward and build it or spending a substantial amount of money in order to build a house, other than what is required by that contract at his own cost and expense. He did nothing wrong. He followed the rules. None of these losses are suffered by my client will in all likely hood will be compensated by the City. Now what I would ask you to do, for just a moment, if you can, is try to put yourself in the position of somebody like that. Somebody, who in good faith, relies on, goes to the City, follows the rules, applies for a permit, gets one, relies on it. The time period passes in which it can be challenged. Everybody knows what was out there, what was going on site. No appeals were filed. No challenges were made. Lets take an example, landscaping improvements, you hire an architect and they violate setback lines, nobody realizes it, it was a mistake. You spend$15-$20,000 getting the plans organized, getting ready to go and somebody notices that this crosses the setback line by 5, by 2, by 1 foot. At that point, is it equitable to turnaround and impose the burden of those errors on the innocent homeowner, in that situation? He may get sued by whoever he hired to do the work; he might have to spend another $15- 20,000 to comply with these requirements. He might not have even considered doing anything like that if he had know that would be the cost of it, that those where going really going to be the equitable requirements. So I'm asking for, and what I think evidence supports is that my client, in good faith, a , Page 3 SPECIAL SESSION September 13,2001 responsible, reasonable person, looked at a building permit that was issued and made a business decision to buy a lot, went forward and did his part of the deal, as straight forward and as honestly as he could do it. You said to come get another permit, he came and got another permit and issued another permit, for the building of the exact same house. Nobody is hiding anything about garages or how the house was going to lay on the land, what it was going to look like or how big it was. It was all fairly and fully disclosed. And then the City issues a stop order and he is looking at not only substantial economic losses but he is also looking at the inability to perform a contract he entered into, damage to his reputation the possibility of being involved in litigation. The business he is in is not advanced by a track record that includes those kinds of incidents. So were are looking to the Zoning Board of Adjustment to do what the Comprehensive Zoning Ordinance expressly allows you to do to recognize that this building permit that he obtained was issued properly, validly, could have been challenged, if it had been challenged in that time period very properly would have been revoked, modified or whatever you wanted to do, but it wasn't. And at that point he went forward and relied on it and now he's looking at substantial hardship. And we are looking for relief. Thank you for your time. Patricia Adams made a closing statement giving the standard of the Board: 1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official of the Town in the enforcement of this ordinance. 2. To hear and decide special exceptions to the terms of this ordinance upon which the Board is required to pass under this ordinance, if any. 3. To authorize upon appeal in special cases, such variances from the terms of this ordinance as will not be contrary to the public interest, where, owing to special conditions, the literal enforcement of the provision of this ordinance will result in unnecessary hardship, so that the spirit of this ordinance shall be observed and substantial justice done. 4. To permit in any district such modification of the requirements of the district regulations as the Board may deem necessary to secure an appropriate development of a lot where adjoining such lot on two (2) or more sides there are lots occupied by buildings which do not conform to the regulations of the district. Patricia Adams also stated that the applicant signed a statement stating that he read the permit and zoning ordinance requirements. ZONING BOARD OF ADJUSTMENT TO CLOSE THE PUBLIC HEARING. The Board closed the Public Hearing at 5:23 p.m. ZONING BOARD OF ADJUSTMENT TO RECONVENE INTO SPECIAL SESSION: The Board reconvened into Special Session at 5:23 p.m. .. ZONING BOARD OF ADJUSTMENT TO DISCUSS AND TAKE APPROPRIATE ACTION RELATIVE TO A REQUEST BY THE OWNERS OF THE PROPERTY AT 2 BROOKHOLLOW LANE FOR A VARIANCE TO SECTION 15 (F) OF THE ZONING ORDINANCE OF THE TOWN OF TROPHY CLUB IN ORDER TO ALLOW A REDUCTION IN THE MINIMUM SQUARE FOOTAGE REQUIREMENT OF THE ZONING ORDINANCE FROM 2,500 SQUARE FEET OF INTERIOR FLOOR AREA TO 2,284 INTERIOR SQUARE FEET OF FLOOR AREA. The Board questioned the applicant. Page 4 • SPECIAL SESSION September 13,2001 Board Member Bettis moved to deny the variance. Board Member Davis seconded; motion carried unanimously. Board Member Davis moved to uphold the stop work order. Board Member Bettis seconded; motion carried unanimously. MATTERS FOR FUTURE CONSIDERATION BY THE BOARD. DISCUSSION OF SUCH MATTERS WILL BE LIMITED TO THE PLACEMENT OF THE ITEM ON A FUTURE AGENDA. There are no future matters. ADJOURN Board Member Davis moved to adjourn at 6:25 p.m. Board Member Gearner seconded; motion carried unanimously. /6A- Acting ZBA Chairman ATTE T: aron Ellis Huppert,Acting' A Administrator