May 24, 2021 Zoning Board of Adjustment on 2021-05-24 3:00 PM

- Good afternoon. My name is Amber Briggle. I'm serving as the chair of the zoning board of adjustments here in the city of Denton. I hereby call this meeting of the city of Denton's ZBA zoning board of adjustments into session. The time is 3.06 and the date is May 24th, 2021. The board consists of seven regular members and two alternates. A quorum is present. Therefore, we're ready to proceed with our regularly scheduled agenda. Prior to commencing our hearing, I'd like to just review our meeting format just for the benefit of those in attendance. So the members of ZBA, we're all residents of the city of Denton. We serve voluntarily and we've been appointed to our positions by the city council. It takes six votes to reverse or modify any determination of an administrative official on appeal. Citizens wishing to speak over the phone, during the meeting may call 940-349-7800. Again, 940-349-7800. All speakers are to state their name and their address for the record. In consideration of other speakers, please keep your comments brief and only provide information that's relevant to the actual agenda items. And after the hearing and board discussion, a motion will be entertained. We will now commence with our regularly scheduled agenda and item number one on our agenda is applied to both US and Texas flags. So there's a flag behind Richard. So we'll look in that direction. - I pledge allegiance to flag of the United States of America and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all. - And to the Texas flag, I guess behind, well, it's not behind. That's the Denton flag behind that. So imagine the Texas flag in your head. (laughing) - Congratulations to the section one state under God, one indivisible. Okay. Item two A is ZBA 21-014 considering the approval of the minutes from January 25th. Every member should have gotten a copy of those minutes. Were there any, it was really brief 'cause we just kind of had a briefing. Were there any corrections to the minutes? And so hearing none, is there a motion to approve? - I will move. - Okay. - So moved. - Great, and a second? - I'll second. - Thank you from Ms. Meisner. So having received a motion and a second, is there any further discussion? Hearing none, we're gonna vote at a call on each of you individually. So I'm just gonna go on my screen. So Ms. Meisner, how do you vote? - Yes. - Mr. Redwine? - Yes. - Ms. Linus? - Yes. - Ms. Lane? - Yes. - And Mr. Njaka? - Yes. - And I also vote yes. So that's six in favor and zero against. So the minutes are approved. Item two B-- - Did you call on Prince? - I did. - Yeah, my last name is Njaka. You may have not known that. - Oh, gotcha. - Item two B is ZBA 21-0001. Hold a public hearing and consider an appeal of an administrative decision regarding the interpretation of the use specific standards for automotive repair major for property located at 3008 South I-35E. The appellant is Frederick Enterprises, LLC. Now I will swear in the witnesses for today's hearing. So all witnesses who will provide testimony of today's hearing, please turn on your camera and raise your right hand. Do they have cameras, maybe? - Chair, if I can interject real quick. If Billy can let the applicant know, I think they are going to be speaking in or presenting. - They're in the meeting and both on phone. - Both on phone, so I'm going to assume that their right hands are raised. Mr. Hanna and Mr. Sargent, are you, you are speaking and swearing you both in? - Yes, I am, I'm here. Great, this is Gray Hanna. Right hand is raised. - Great, great. - This is Trey Sargent. My hand is raised as well. - Oh, great, thank you. Okay, under penalty of perjury, do you swear or affirm that any testimony or information you provide or any statement you make before this board is complete, true and correct to the best of your knowledge and ability? If so, please answer, I do. - I do. - I do. - Great, thank you. Okay, so today we're talking about whether to affirm, reverse, and hold or impart or amend or modify a decision or interpretation made by the administrative official. There's information in the backup agenda. I'm not going to go through the whole thing on the script, but if you're curious to see what the DDC says and what the different definitions are, you can find that in the backup agenda on the City of Denton website. But I will go through how the hearing is gonna go, because this is very important and I wanna make sure everyone understands what's going on. So bear with me, it's a little bit long. So the hearing procedure will be as follows. Number one, I'm gonna open the public hearing in a second. Two, the city staff presents testimony, evidence, and arguments to support the administrative official's decision with potential questions of the city staff from the board. Three, the applicant presents testimony, evidence, and arguments to support the appeal with potential questions of the applicant from the board. Four, members of the public may provide comments with potential questions of speakers from the board. Five, city staff will be given an opportunity to make rebuttal comments with potential questions from the board. Six, the applicant will be given an opportunity to make rebuttal comments with potential questions from the board. Seven, members of the public who previously provided input will have the opportunity to make a rebuttal with potential questions again from the board. Eight, the city staff and/or the applicants will answer any further questions of the board. Nine, upon conclusion of this testimony, evidence and arguments and any questions and answers. And when the chair has determined that the board has adequate information to make a decision, the chair will close the public hearing. And then 10, I'm gonna open the next agenda item to deliberate and decide the appeal. So upon the completion of the board's deliberation, the board shall render an unbiased decision based on the record and support by reasons and findings of facts. Is that all clear as mud? Fantastic, good, okay. And considering the appeal, this board shall consider the facts and information in the administrative officials letter interpretation, the applicant's appeal letter and testimony presented in today's hearing. A lot of this is also found in the backup agenda, so I'm excited to kind of hear it from people actually today. And our consideration and evaluation of the requirements of the applicable standards from the DVC. So I now open the hearing at 3.13 p.m. First up is will the city please present testimony, evidence and arguments to support the administrative officials' decision? - Great, thank you, chair. I'm gonna have Julie White make the presentation for staff. Good evening, let me share my screen and we will go through the presentation. All right, so this is ZVA 21-0001, Automotive Repair Administrative Appeal. Before we get into staff's interpretation and the appeal information, I wanna talk a little bit of background about how this came to the fore. So the subject property is located along I-35, the property is outlined there in yellow. It's about 1.98 acres. It has the zoning of Highway Corridor District. Earlier this year, the applicant approached the city and requested a pre-application conference. That is a meeting that the city hails with potential applicants to talk about processes related to the development of a site and provide comments and information regarding their proposed use and development. In this instance, they requested information regarding the feasibility of redeveloping an existing retail site with an automotive repair major use. As the 2019 DDC has use-specific standards for that proposed use, it is permitted in Highway Corridor with those use-specific standards, and there are three of them. First, all repairs, services, and storage shall be conducted within an entirely enclosed structure. Second, open storage of wrecked or inoperable cars, discarded tires, auto parts, or other similar materials shall be prohibited. And then finally, sales of vehicles shall be prohibited. At that pre-application conference, staff provided information that cars awaiting service for this use would constitute open storage and must be kept within an entirely enclosed structure. Based upon that feedback, the applicant requested a formal written interpretation from city staff. This is a process that the 2019 Development Code has. It's in subsection 2.8.6. And it provides for a uniform mechanism for rendering formal interpretations of the DDC. The director is responsible for these interpretations, and it can be related to the zoning subdivision provisions, the text of the DDC. And it includes, but not limited to, interpretations as to which is the stricter and thus controlling provision in case of conflict with this DDC and other provisions of the Municipal Code of Ordinances, interpretations of compliance with a condition of approval, interpretations of whether an unspecified use falls within a use classification, use category, or use type allowed in a zoning district, and then to interpretations of a zoning district boundary. So those are the potential interpretations that the director could make, but it's not limited to those. Following that process, the Denton Development Code provides, there are considerations that the director has to keep in mind when making that interpretation. And those are listed in the Denton Development Code and in your backup material. They must follow the rules of construction. Those rules of construction are in sub-chapter nine of the Denton Development Code, and that words and phrases shall be construed according to the common and approved usage of the language, but technical words and phrases and such others may have acquired a peculiar and appropriate meeting in law and shall be construed and understood according to that meeting. So those are those rules of construction that have to be considered. And then those considerations that the director has to follow when making an interpretation are first, the clear and plain meaning of the provisions wording. Second, the intended purpose of the provision. Third, the intent to give every provision meaning. Fourth, the general purposes served by the DDC. And then finally, consistency with the comprehensive plan. We're gonna go over these again, so you don't have to commit those to memory. We'll talk through them again. So first of all, we are gonna talk through those considerations, but I first wanna talk about that intent of these use-specific standards. So when looking at that legislative intent, we first went back to the 2002 Denton Development Code. The use was a little different under the 2002 DDC, as was the zoning. The subject property had a zoning designation of RCR1. Vehicle repair was not a permitted use in that zoning district. So there were also no use-specific standards related to it. Vehicle repair was defined as a business providing vehicle repair or other body work to the motoring public. So you can see those pullouts for the 2002 Denton Development Code and then that zoning map. In 2010, we've got that property maintenance code that also speaks to outdoor storage. Two provisions I wanna highlight, and this is in the Code of Ordinances, section 17-34. And section A of that talks about the impacts, those visual impacts for inoperable vehicles being stored outside. It also talks about that they should be screened from the right of way or adjacent property by means of either a solid opaque fence or shall be enclosed within a building. Next, there was the 2019 Denton Development Code. The property was rezoned to Highway Commercial District and we also got a new use-specific standards related to automotive repair shop major. In that, we got those use-specific standards that we talked about, that the all repairs and storage should be conducted within an enclosed structure, the open storage of wrecked or inoperable cars is prohibited and then sales of vehicles shall be prohibited. So the City Council went further on that, the screening of those inoperable cars to be more specific within the use-specific standards in the 2019. So in the 2002, it wasn't permitted. Then we had the Code of Ordinances, we talked about it needed to be screened and then the City Council further clarified in 2019 that that open storage was prohibited. So based upon staff's analysis, we did provide a formal interpretation of those use-specific standards to the applicant. We provided them to them on March 25th of this year. And the three items on your screen are those interpretation. First, that automobiles awaiting repairs for less than 24 hours do not constitute storage. Second, any vehicles intended for service and stored outside of a structure for more than 24 hours are classified as open storage and must be contained within an entirely enclosed structure in accordance with those use-specific standards. And then third, while outdoor storage may be generally permitted as an accessory use under the provisions of the Zoning District, the use-specific standards for the primary use of automotive repair major prohibit outdoor storage of any elements related to the use. So now we're gonna go over those considerations related to that formal interpretation and just kind of talk through staff's analysis of that. So the first one, if you recall, the clear and plain meaning of the provisions wording as defined by the meaning and significance given specific terms used in the provision as established in sub-chapter nine definitions and by the common and accepted usage of that term. And remember, we're using that construction that we talked about. So first of all, the use-specific standard number one, that all repair services and storage shall be conducted within an entirely enclosed structure. The clear and plain meaning stipulates that all activities and materials associated with the use must be maintained within a structure with four walls and a roof. The wording does not provide special exceptions or carve-outs for any specific activities or materials. Second, use-specific standard two, open storage of wrecked or inoperable cars, discarded tires, auto parts or other similar materials shall be prohibited. This specifies items which are prohibited from being stored in an open manner. Open storage of wrecked or inoperable cars or vehicles is not permitted. I wanna go a little deeper into both of these in the next couple of slides. So first, I wanna talk about the meaning of open or open storage. So the DDC does not define open storage. So what we're gonna look at is those standard definitions for open or open storage and then talk about how that also relates to other DDC defined terms. So first of all, we looked at the Cambridge Dictionary. It defines open is not closed in or covered. A Webster Dictionary defines open is not covered with a roof, with a top roof or lid. It indicates the clear meaning prohibits any storage of items outside of a structure with a wall, with a roof or walls. So just based upon that clear meaning of open, it indicates to staff that those use specific standards would require four walls and a roof in order to meet the requirements. We also looked at those related DDC defined terms, first outdoor storage and then second outside storage. And those are in sub chapter nine of the 2019 DDC. And we looked to those to provide a basis for that specific time limitation because what we've got is that 24 hours in that interpretation. That's really when an item transitions to that storage. So it really sort of creates the difference between somebody may be getting an oil change who's there and will be parked on a very short period of time. And then those vehicles which are there for long-term repair. So outdoor storage as a principal use a property or area used for the long-term more than 24 hours storage of materials, merchandise products, stock supplies, machines, operable vehicles, equipment, manufacturing materials or other items not kept within a structure having at least four walls and a roof. New or used automobile sales and leasing display and parking and other outdoor sales and display areas shall not be defined as outdoor storage, outside storage. So once again, that gives that 24 hour limitation. And it also distinguishes between parking and those vehicles that are there for the service. And then second outdoors, outside storage, the storage of objects, items, products or other materials outside an enclosed building and not intended for immediate sale. The second term I wanna talk about is that wrecked or inoperable cars. What does that mean? So given the nature of automotive repair major which is primarily engaged in providing vehicle repair, bodywork, mechanical servicing and or painting, it is reasonable to construe that except for employees vehicles and or those which are awaiting immediate maintenance such as oil changes or tire replacement, vehicles parked on site are damaged and or inoperable, meaning the common accepted usage of wrecked or inoperable car. So if a car is there and is not for an employee or somebody short-term visiting, it really does meet that definition of wrecked or inoperable cars because they're there for repair. Number two, consideration. The intended purpose of the provision as indicated by purpose statements, its context and consistency with surrounding related provisions and any legislative history to its adoption. This is goes into that legislative history that we talked about at the beginning of the presentation, how vehicle repair has been treated in this general area from 2002 until now and then also how the city has kind of reviewed that storage of wrecked cars on site or inoperable cars. Additionally, the purpose of the standards is to ensure appropriate design and intensity for the use. So just broadly, our use specific standards are really written to ensure that a use would be appropriate in any given area. In this instance, that vehicle repair does require those use specific standards in HC district. And so it is the intent of that use specific standard to make sure that it is appropriate design for that zoning district. The DDC distinguishes automobile related uses which require vehicle storage within an enclosed structure from automobile related uses that allow outdoor vehicle storage. So for instance, automobile fuel sales, automotive repair shop minor, those also prohibit open storage of wrecked or inoperable cars. However, automotive wrecking service, impound lot, junkyard and salvage yard uses authorized stored vehicles to be outside if they are screened from public view. So the code makes that distinction between that vehicle repair and then those impound junkyard or salvage yard. So they do treat those differently. The definition of outdoor storage, new or used automobile sales and leasing display and parking are not considered outside storage. And then because automotive repair major use does not authorize outdoor screening of stored vehicles and is not a new or used automobile sales and lease display, the DDC requires the storage of vehicles to be within an enclosed structure. Additionally, under that 2002 DDC automotive repair, that this type of use was classified as vehicle repair and it was permitted in more intense type of zoning districts, consider community mixed use employment, a regional center commercial downtown employment center, commercial and employment and center industrial and then our industrial centers. And then city council through the adoption of the 2019 DDC sought to establish updated standards consistent with the comprehensive plan and that's where these new use specific standards came in to implement that high quality urban design as envisioned by the Denton plan 2030. Number three, consideration, the intent to give every provision meaning. The interpretation provides clarity as to how to apply automotive repair major use specific standards related to storage and open storage. So this interpretation does provide that more full explanation of those requirements. And then the general purposes served by this DDC is set forth in section 1.2 purpose. So purpose 1.2.4 is to improve the city's appearance and purpose 1.2.7 encourage the appropriate use of land, buildings and structure. These use specific standards, not only for this particular use, but more broadly how use specific standards are used within the city of Denton are to further these purposes outlined in the Denton development code. And then finally, consistency with the comprehensive plan. The interpretation ensures high quality urban design as envisioned by that comprehensive plan. So it does require that any cars awaiting repair kept over 24 hours on the site would have to be stored within an enclosed structure to ensure any visual impacts related to those cars would be muted and mitigated with that enclosed structure. So finally, just wanted to reiterate again that staff interpretation of those use specific standards and sub chapter five of the Denton development code. And really the purpose of this is to clarify what is open storage. First, automobiles awaiting repairs for less than 24 hours do not constitute storage. Any vehicles intended for service and stored outside of a structure for more than 24 hours are classified as open storage and must be contained within an entirely enclosed structure in accordance with the use specific standards. And then while outdoor storage may be generally permitted as an accessory use in the HC zoning district, the use specific standards of that vehicle, automotive repair shop major prohibit outdoor storage of any elements related to the use. Those really control. So the review, the administrative appeal is really a two step process. So this first step is this public hearing process. Once that's closed, it will then open that second agenda item and that's where that decision would be made. And then we do have criteria for approval for an administrative appeal. They are in DDC section 2.8.3D. The first is facts stated in the application as presented by the appellant and or the director. And then two, the requirements and the intent of the applicable standards from this DDC compared to the written decision that is being appealed. And that concludes my presentation and I'll be happy to answer any questions. - Does anyone have any questions for Ms. Wyatt? - Let me stop sharing my screen. Oh. So no questions. Ms. Wyatt, I think you did a great job with those, the definitions just walk us right on through the DDC. I learned a lot today, so thank you. So there's no questions from Ms. Wyatt, then I believe it's the appellant's turn to present their testimony, evidence and arguments. Do we have a screen share so we can see what y'all are talking about too? 'Cause I really wish there were more pictures in the backup, so I could have seen it. - The applicant has a presentation and I will be running through as they talk through it. So we're gonna work together. - All right, y'all take it away. - Thanks, this is Trey Sargent. My address is 512 West Hickory, Denton, Texas, 76201. I'm an attorney, I represent the appellant. And first of all, I wanna thank you for taking time out of your afternoon. I know it's a business day and that might not have been the most convenient thing, but both myself and my client appreciate your time this afternoon. Julie's gonna drive on the presentation, but as I think you all are aware, there's quite a bit of delay between the video that I'll be able to see whenever I'm speaking with you. So I just ask for your patience on that front. It's about 45 seconds behind, I think. So I'm gonna do my best to keep track with my own presentation here. Julie, can you let me know whether or not my first slide is up? - Your title slide is up. - Okay, great, would you go ahead and go on to the next one? And Julie, would you mind letting me know once you've done that? - It's there. - Okay, thank you. So this is sort of a concept plan, an elevation frontage for what my clients would like to put in at this property. Say, paint, body shop, service king collision repair, the company is well established. They've got several hundred locations. And I think an important thing to consider here at the outset is the type of work that's done at one of these locations. This is not a wrecking yard. This is not tearing down vehicles to be parted out for salvage purposes. There's no dismantling. The vehicles that are serviced at locations like this have been a fender bender. They've backed into a tree. It's not a full tear down type of job. The typical vehicle that comes to a location here and stays in the parking lot is roughly three to seven days in the parking lot. So on this first slide, you'll see over to the left side, there's a screening fence. And the proposed use for my clients is to be able to store vehicles that are awaiting service behind that wall so that nobody can see it. And then after space clears up in the shop, get them in there, get them serviced and get them out. Julie, would you go to the next slide, please? - It's at the next one. - Thank you. So as you all are familiar, this is the current improvements at the location, my flooring America. They were immediately south of Buckees along I-35. High traffic area, but no dense residential uses nearby. So we're in a pretty heavily commercially zoned and currently used area. Would you please go to the next slide, Julie? - Done. - This again shows the location of the subject property on I-35. This is before Buckees was built, as you can see. I wanna talk a bit, Julie, if you could go to the next slide. I wanna talk a bit about the highway corridors on any district. There are, on the map you're looking at, the locations depicted in bright red are highway corridor and we're gonna go north to south along I-35. Just so you have a, I want you to think about what you've seen when you're driven past. So that we can all kind of have an idea for what exists now and what is gonna exist there in the future. These red lights along I-35, this is north of university between the loop and 380. So along these locations, we have lots of heavy equipment rental and RV sales and a fair amount of vacant land. Julie, if you could go to the next slide. The HC district continues. This is between Fort Worth drive and Dallas drive where it connects to I-35. Again, bright red locations are zoned HC. Many of these locations are automotive repair sales, automotive sales, restaurant, vacant land, that type of improvement. And then finally, if you'll go one more slide, Julie, we get to the southern most portion of the HC zoning district. These locations are either vacant or have some of the largest car dealerships in town. And this goes roughly from, well, Bucky's on the north end down all the way to Post Oak on the southern end. So heavily commercial, lots of automotive related businesses. So if you'd go one more slide, Julie, I'd appreciate it. It's there. - Are we on the one that says use standards? - Yes, sir. - Thank you. So we all know within this district, an automotive repair shop of the major variety is allowed. That's any establishment that's primarily engaged in providing vehicle repair, body work, mechanical servicing and painting. And there are three specific use standards that apply for that use within the HC district. You've heard them before, but the first is all repairs, services and storage shall be conducted within an entirely enclosed structure. Two, that open storage of wrecked or inoperable cars, discarded tires, auto parts or similar materials shall be prohibited and sales of vehicles shall be prohibited. Now, within these three specific standards, there's not a whole lot of disagreement or issue with my client on a great deal of this. They don't plan to sell vehicles. So item three is not really of any concern for my client for their operations. On part two, the open storage of wrecked or inoperable cars, we're gonna talk about that some, but discarded tires, auto parts, similar materials, don't plan on having piles of rubber sitting around or old alternators. So we are gonna talk about wrecked or inoperable cars. And then on item one, all repairs, services and storage shall be conducted within an entirely enclosed structure. Much of that we don't have concern about. It's really what the meaning of an entirely enclosed structure is. So Julie, if you go to the next slide, I appreciate it. - It's there. - When you determine what is an entirely enclosed structure, the way that the city has interpreted that provision is these first two quotes I've got for you out of their interpretation letter that any vehicle intended for service and stored outside of a structure for more than 24 hours are classified as open storage and must be contained within an entirely enclosed structure in accordance with the use specific standards. And then they interpret that to be quote, the clear and plain meaning of section 5.3.5 stipulates that all activities and materials associated with use must be maintained within a structure with four walls and a roof. So this is the first time that four walls and a roof comes into play and all activities and materials associated with is far broader than what the actual use restriction is. So the other, the third, well, let's talk about these first two. These first two, this four wall and a roof requirement, where might that come from? 'Cause it's not in the use standard. The use standard reads all storage must be within entirely enclosed structure. So what is an entirely enclosed structure? We have some things we can look to to determine that. The first is the definition section of the DDC itself. The DDC itself defines a structure as any edifice of any kind or any piece of work artificially built up or composed of parts joined together which requires location on in or above the ground or which is attached to something having a location on in or above the ground. So that's very broad, what is a structure? There are lots of things that when you see the word structure that you might not consider would be a structure, but they are within the meaning of the DDC. For example, a permanent concrete picnic table in a park would be a structure under that definition. A permanent bench at a park would be a structure within that definition. So when we see the word structure, we often think building, barn, shed, but that's not what the DDC defines structure to mean. A structure would include a fence, okay? And so when you take the specific definition of a structure within the DDC and then you, not just a structure, a structure's not enough, it has to be an enclosed structure. But what does enclosed mean? Enclosed means wrapped around, concealed, okay? The staff relies on a Webster's definition or this open concept of not having, of not covered with a top roof or lid, but that's not what an enclosed structure is under the meaning of the DDC. A root, pardon me, a fence that was opaque even a fence that's not opaque would constitute an enclosed structure as long as access is restricted where you couldn't get into it. Let's see. And the city council could have required that a building, an entirely enclosed building be used for storage of materials or vehicles at a major auto repair or it could have required that a structure having at least four walls and a roof be required for storage. And it knew how to do that because they use those definitions in other places. So the definition of outdoor storage accessory has that four walls and a roof requirement that's not included in the use specific standard here. In the wrecking and vehicle tear down restrictions, it talks about unenclosed storage in buildings and enclosed building requirements. So when the council wanted an enclosure of building to be the required method of storage, it knew how to require it and it didn't do it here. And so what we're asking you all to decide today is that a fence constitutes an entirely enclosed structure, okay? And that a screening fence that's opaque that doesn't allow sites into what's being stored not only meets the requirements of an entirely enclosed structure, but also defeats the concern about open storage, okay? So open storage is not a defined term under the DDC and the city has looked to Webster's dictionary for the definition of the word open. They go down to the fourth definition listed where they cite that it means not covered with a top roof or lid. We believe that the first definition listed is far more probative that where it says having no enclosing or confining barrier accessible on all or nearly all sides, right? And then the black slot dictionary which lawyers use all the time says that open means manifest, apparent, notorious, visible, exposed to public view. That's the type of concern that the council apparently was trying to address with this open storage requirement. And it's satisfied by a screening fence or by which would be an enclosed structure as long as it goes all the way around. Julie, could you please go to the next slide for me? - Sure. I'm there. - Thank you. I don't want to get mine pulled up. So this, I went and took some pictures to take a look at some properties that are within this HC district. And this property here has long existed prior to the HC amendments that occurred in 2019. So I don't know what standards apply to them but I want to just go through a thought experiment here about whether or not this currently existing status would fit within the current, the current standards as they are, as they're being interpreted today. First, I think it's pretty clear there's some storage going on outside. And I can't represent to you that I drove past more than 24 hours apart but a great deal of these, this property looked like it had been there quite some time and it was visible from the public, from a public right away. And so you can clearly see that this screening fence on the left side here does not entirely enclose the objects that are being stored. If it did, I wouldn't have been able to see them. And of course, then it wouldn't have any of these negative impacts that we're trying to abate by adopting a zoning ordinance. So I'd submit to you that this current situation would not be approved under the current zoning scheme and it's certainly not what my client's proposing. Julie, would you please go to the next slide? - Yeah. - So if you're, this photograph was taken from the exact same spot facing the other direction. Again, this is a property that's within the current HC district. And here we see some vehicles. I don't know whether they're operable or not, but again, the main issue is you can see them. They're not adequately screened. Even though here, it does appear that they are contained within an enclosed structure. They're surrounded by a fence on the back, a fence on all four sides. They are enclosed. I think they meet the enclosed structure requirement but the openness component doesn't pass much through here because you can see them. So I wanna show you, if you could go to the next slide, and Julie, I'd appreciate it. The next slide, this is a much more recent installation here in Denton. This is not within the HC zoning district. This is actually a competitor of my clients, but this is a light industrial or some sort of industrial use. I don't remember specifically which one it is, but here, I think we meet the enclosed structure requirement but we don't meet the openness requirement once again. So you can even build a pretty nice looking building and a nice screening wall and still not meet the more stringent requirements that are gonna be upon my clients since they're in the HC district. But if you look here, we have entirely enclosed. The fence goes all the way around. You can just see through it. So you're not gonna get that second component. So I would submit to you that if this gate here were opaque, that it would meet the requirements of the HC district because you wouldn't be able to see in and it addresses all of the concerns that the council had. Julie, if you'd go on to the next slide, I'd appreciate it. - I'm there. - Thanks, this is a overhead shot of the concept plan for my clients contemplated improvements here. You'll notice here on the building is largely the same footprint over here on the right, I guess the north, well, the right-hand side, there's a parking area for the public. And then there's a fence, a screening fence that is along the bottom-most and left-most directions of this property and it screens on all slides. So it would shield from public view all of the vehicles that were either waiting to be worked on or had been worked on but not yet picked up. It addresses the enclosed structure requirement. There's a fence all the way around. It's not visible from the public. If you'd go to the next slide, please, Julie. These are some elevations depictions of the type of product that my client wants to install at the property. Julie, if you could go one more, I'd appreciate it. - Yes. - And then the very last one, this is the style of opaque fence that would shield from the public view the vehicles that are parked at the property. I do want to talk for just a moment about the wrecked and inoperable components. And the city that's interpretation letter has assumed that if you are at a body shop, then you must be wrecked or inoperable. And we all know that's not the case. We've all had fender benders. We've all had scratches. We've had either a window or mirror replacement or we've had a panel that's been repainted. And we all know that those vehicles were perfectly operable, right? And wrecked, not even close to wrecked. Wrecking is where you dismantle vehicles to salvage them basically. And that concept comes from the city of Denton code of ordinances where we talk about wrecked vehicles, discarded, abandoned, jumped, wrecked or worn out automotive vehicles, including those, including, but not limited to autos, trucks, trailers and buses are kept your store. This is about wrecking services for the purpose of disassembling, dismantling, cutting up, stripping or otherwise wrecking such automotive vehicles to extract their from parts, components or accessories for sale or for use in an automotive repair or rebuilding business. So that's not what's going on here. That's not what my client intends to do. And so we don't really have an issue with the prohibition on wrecked, on storing wrecked vehicles because we're just not gonna store wrecked vehicle there. That's not what we're gonna do. So, but I do think it's going a step too far to say that just because you have a vehicle that's at a body shop or a paint shop that it is automatically wrecked or inoperable because we all know that's just not the case. So in conclusion, the proposed screening improvements that my client has presented are an entirely enclosed structure within the meaning of the DDC. The vehicles that are intended to be parked there are not gonna be wrecked or inoperable and they don't run afoul of the storage requirements that are cited by the city and its interpretation letter. The opacity of the proposed improvement defeats the openness component of the concern that has been raised here today. And as such, we're asking this board to modify the interpretation letter of the city to specifically find that the proposed screening fence is an entirely enclosed structure within the meaning of the DDC and that the contemplated damaged vehicles do not categorically amount to wrecked or inoperable vehicles. And I know I've gone quickly. I'm happy to answer any questions that you all might have. - Thank you, Mr. Sergeant. Does anyone from the board have any questions? - I have a question. So in a couple, you showed a couple of previous slides of a business that was zoned HC, but it was probably pre-existing, the 2019 overhaul of the DDC. - Yes, ma'am. - And then, yeah. And then you showed another one that was much newer that was not in the HC zoning area. I was just wondering if you have any images or did you come across any businesses like this in the HC zoning district that have been built or created since the 2019 overhaul? - Not that I was able to locate. When I was driving through the districts, there's lots of pre-existing auto repair uses and there's lots of relatively new or constantly updated uses such as car dealerships. And those car dealerships have body shop work that they do. And you can see the vehicles that are waiting repair in some of those instances. What I did find up near the northern portion of the district up by the 288 intersection where we have the Zimmer-Kavoda location, there's a couple of uses up there that are not auto repair. They do sales for RVs and for rental equipment, but both of, well, there were three or four, I think, maybe three that had repair operations that they conducted where the materials used for repair and the vehicles or equipment that was waiting to be repaired were both visible from the street since they're not, I didn't include them since they're not a major auto repair installation. They're sales-based and they have different standards, but there are similar uses within the zoning district, but none that I could find that were just auto repair. - Yeah, in a way, the second one that you showed where it was just a fence very similar to what your client was proposing, what was the zoning on that one? Are you aware? - For the second one, the one that's relatively new? - Yeah. - That is an industrial use. - But it is auto repair? Like it's similar to what- - Yes, that's Caliber Collision next door to Duluth Trading Company and Northern Tool and Equipment. - Okay, do you know when they were built? - I don't. - Would it be possible to, 'cause now that you point that out, sorry, Amber, is that okay if I ask? - Yeah, go ahead 'cause it sounds like you're piggybacking. Go ahead. - Yeah, now that you kind of pinned up where that's at, Julie, is there a way we could pull that presentation back up and look at one of the slides that he showed with the red, I think this might be the first or second one, with the red HC District. - To answer your question when that caliber was built, I believe it was built in 2018. - Okay, so this all predates the 2019 overhaul of the DDC, which I think is important to point out here, but it's- - Yeah. - Yeah, okay. Is that what the- - Yeah, absolutely, and it's in a different zoning district altogether. I included to show what already exists along I-35 and what the, to show something that I don't think would be conforming in the HC District, but is nonetheless a high quality building. - Correct. - Keep in mind though, the same use standards apply throughout all the zoning districts that it's permitted in. So even in an industrial district, the use standards, even in the heavy industry. - So, Mr. Redwine, did you get, we were looking for you- - Actually, Julie, can we go back? I think it's maybe one more slide, well. - Oh, are you talking about all the red? - Yeah, where we showed the different districts. Yeah, I just want to see along that corridor where that location will be right there, I think. - No, that's the Northern end. - We don't have the one in between University and Dallas. - It's actually, it is visible on that first slide, that shows the HC Zoning District. If you look right down at the, you know, the bottom most portion, it's light blue. - Got it, okay. So I was just trying to see it. Well, I mean, so I guess to answer my question, we have just north of that, we have some HC Districts. Yeah, okay, that helps me with kind of what I was looking for. Thank you. - Ms. Meisner, you've been so patient. Thanks so much for your time. - Yeah, so I guess I have two questions here. The first one for Julie, I'm a little confused about the four walls and a roof. So was that just not stated clearly originally, but its intention was included? - In terms of the use specific standard, the within, the intent was to, the intent is to have those within a fully enclosed four walls and a roof. And what we do is we look to other parts, other use specific standards related to some more automotive uses to sort of see how they differentiate. So when we look at, for example, just outdoor storage, it doesn't talk about that full enclosure, you know, it just talks about it needs a screening wall. And then we talk about the, the automotive wrecking and salvage yards, where the only requirement it has, it has to be screened from public view. So the automotive repair major talks about that, that prohibits that open storage. So really it gets to that. It really needs to be enclosed. - Okay, so there's just a lot of splitting hairs between the terminologies that seems to be going on. And then my next, my follow-up question is, if the structure, from where you've got it now, have you looked at details for expanding into four walls and a roof? And if so, what is the cost of that? And is your client prepared to go down that avenue? What research has been done to satisfy the standards of the city? - Well, you know, we of course have a, we disagree with the city's interpretation of what those standards are, but I have not been a part of any conversations about those costs or what that might look like. Representative from my client, Gray Hanna, I think is on the line. Gray, are you in a spot where you could answer that question? - Yeah, you've been repeating the question on my phone, cut out just for like 10 seconds. - Have you looked at what it would take to expand to provide an enclosure with four walls and a roof to maintain consistent standards that the city's referring to? - I can say we've looked at it briefly, but to build an enclosure is gonna be very expensive. So, I mean, to maintain anything that's on the lot for more than 24 hours, I mean, gosh, that could be upwards of a million dollars easily. - Okay. Are there other questions for Mr. Sargent? Okay. All right, we're gonna move on then. Thank you very much, sir. Let's see, next then, is there anyone who wishes to speak at the appeal, Mr. Hanna? I imagine you probably would be in this category, yes. - Yes. - Yes, all right. If you'd like to go ahead and present your case, you've got the floor. - Oh, I'm sorry, no, I'm good with what Trey's outlined. - Got it, got it, good. Looks like we've got a question from Ms. Lane. - Yes, I had a question as to, you mentioned having quite a number of other similar businesses around and about, and that this business does not do heavy automotive repair work or parts replacement work. Is that the case with all of your other branches and has it been consistently case? And do you have documentation that prohibits customers from that expectation? - So typically how they, but they have a location down in farmers branch that takes on all of their, what they consider non-drives. Now, occasionally, what it means is it's just not drivable. It's not tutable to be on the road. Occasionally, what can happen is the car gets delivered to the site, it's considered a total loss and then the insurance company comes and takes it off and uses it for salaries. That is typically what you would see if a car is gonna remain there. And they do that within a week. - Within a week. So you could have visible, very damaged looking cars sitting there for a week, waiting for the insurance to come. Okay, thank you. Ms. Meisner. - One more question for Julie. With regards to standards for four walls and a roof, help me understand if this would qualify in that category, if it were to be just brick fencing with some type of a metal structure on top, that they were to not necessarily extend the full enclosure over full on with air conditioning, heating, whatnot, but just make a different smaller scale enclosure, would that meet that standard? - Let me make sure I understand. So you're talking about a sort of fencing, but with a maybe sort of a, just a covering on top? - Yes. - That first use specific standard, which talks about that entirely enclosed, based upon just that plain language, I really think it needs to be a fully enclosed building. In terms of like air conditioned space, that would probably fall to building inspections to meet their requirements. But given that that use specific standard talks about entirely enclosed, I would think it would need to meet that standard. - Okay, thank you. Ms. Lane, you're muted. - I unmuted, but it remuted for some reason. Is it understood that the repair work would take place inside the structure or whatever it is? - Mrs. Trey, I'm not sure your question's for you, go ahead. - That repair, all repairs are in the enclosed building. - I see, I see. So then it would possibly be a consideration that it be a habitable for human beings to spend many, many hours there? - Yes. Are you referring to the employees? - Yes, and the owners or managers, people who would need to be around the vehicles would need to be in there. - Correct, yes. - Okay, so we're gonna move on. - Now, I guess they wouldn't be in, they wouldn't have a need to be in the parking areas at all, but inside the existing building where the repairs are going on. Yeah, that is correct. - And is it that building? So it's the storage building that we're talking about, not the only reason to go in and it would be to move cars out of it? - Correct. - Yes. - Okay, any other questions? Okay, good, all right. So the next one is then, is anyone, not staff, not Mr. Sargent, anyone else who wants to speak in support of this appeal? I don't know how this works if people are calling in. Is there anyone? - Thank you, Chair. There are no callers for this item. - Okay, thank you, okay. And I assume then number seven, there's no one who wishes to speak in opposition of this appeal because there's no callers, so okay. Moving on, comments now having been received from all those desiring to speak in favor and in opposition appeal, I would call upon the administrative official and then the appellate for rebuttal. - Chair, if I can interject real quick, before we get to that point, staff does have a clarification. Julie, do you have that clarification? - Well, just in terms of the differences between the buildings, if a car was stored there or if the vehicles were being repaired there, they would need to, any structure would need to accommodate a lift or any other equipment that would be required in order to do that operation. So I just wanted to make that clear. - Thank you. So now we move on to the rebuttal part. I haven't, it's been a minute since we had a meeting like this. So I'm not sure if I start with, oh, I guess I start with Ms. Wyatt. Do you have a rebuttal to anything that was presented before us? - I don't have anything more to add other than to just talk about that the Denton Development Code does address. The vehicle repair is differently and that storage onsite and those cars differently than it does that outdoor storage and those junkyard type uses where those do just require that fencing and that vehicle repair does require that entirely enclosed structure. - Thank you. Do any members of the public for previous provide a comment? Yes, so I guess Mr. Sergeant, do you have a rebuttal to anything? - No, I just like to take the opportunity to thank you once again for your time this afternoon. Appreciate it, I know that it's valuable and that's not lost on any of us. So I do have one, I guess, point of order or question about the action that you're about to take. Julie had previously written me about needing to do that in a separate meeting and I know they're on the same agenda here and I wanna make sure that whatever decision you guys make is final and good and all that. So I don't know if Julie has a comment on that or not, but I wanted to bring it up before you got to the next item. - Yeah, I had a question on that too, which was clarified beforehand for me, but go ahead and staff could just clarify for the rest of us, please. - Yes, Chair, members of the commission and the applicant, due to the agenda, we are going to make that determination or just the board will be making that decision that is on the next item that's on the agenda immediately after this item. - And I guess the attorney for Mr. Sergeant, I just wanna make sure that's okay with you, that you all don't have any objections to that happening today. - Well, we're gonna reserve all of our rights under the local government code and if the board's been advised that that's the actually need to take work, I guess we will object to it on the grounds that it doesn't comply with section 211-010-D. For the record, I mean, just for the purposes of preserving that objection for the record. - So do we move on since you have an objective objection? - Well, we've got a couple of options. One is the board, we can go into closed session just to talk about potentially what goes along with the objection and what that would mean for the board. I guess the option beyond that is if you wanna meet or schedule another time that the 211 of the local government code requires the decision to be made within 60 days. I mean, that's June 13th. So if there's a time when the board can meet before then, I think that would address Mr. Sergeant's concern. - And I think the challenge with that is because we've done this once before, like two years ago, is that it has to be all six members who are here have to find a time that works for our schedules, which isn't impossible, but not always easy. So I'm not sure how to proceed at this point because the next step would be for me to close the public hearing and then open up item 2C, which is deliberations and a decision. So if Mr. Sergeant and his client object to us proceeding, then I think we should, I propose we close the public hearing and try and find a way for the six of us to get together between now and June 13th, or if Mr. Sergeant would like to proceed, then we can continue to proceed. I'm not a lawyer, this is above my paper. It's kind of how I see it. It's like, why would we deliberate and decide on this if there's an objection on that? So what do the smarter people who are paid like lawyers have to say about all this? I don't know. - Well, as far as advising the board, it's probably best in closed session if you want to talk through some of what that implication is of having the meeting go forward right now and make a decision. If your preference is to find a time when you all can meet before the 13th, I think that addresses the objection and there's no real reason to discuss the risk of moving forward if that's something that the board wants to move forward with looking at a date and a time that would work for everybody here. Nice, do we have a question? - Could I get the objection repeated? I just didn't hear it clearly before. - Of course, yeah, this is Trey Sargent. I'm objecting to the consideration of item, let me pull up your agenda so I can make sure I get it correct. Of item C to C, the consideration of the appeal for failure to comply with local government code section 211.010. - So Ms. Meisner, were you with us when we talked about that gas well at the, that other case with the trailer park? - Yes. - 'Cause that had to be like the Texas Legislature did a thing a couple of years ago we have to like have a hearing and then end that hearing and then have a totally new meeting to make the decision. And I guess the way how the agenda was posted, this was posted as one meeting. And so, if I understand your objection, Mr. Sargent, it's that we're having one continuous meeting and so we're not adhering to that law that the legislature passed a few years ago. Do I understand you correctly on that point? - Yes, my objection is that the procedure today is not comply with Texas local government code section 211.010. - I have a question. - Ms. Lane. - Yes, didn't staff send out two meetings that this is to close and the deliberation meeting is a brand new meeting, even though on the same day. It's not a continuous meeting in other words, in terms of what was sent to us. Maybe that's a question for Ron. - Yes, I can address that question. The agenda was to have two separate meetings where one would close and then reopen a special session for the deliberation. Unfortunately, the agenda did not have that separation. So we do have one. The intent was to do that. However, when posted, it did not contain that separation. - Fair enough. - So how do we proceed? Do we get out our calendars and find another date? - That's ideal, you can do that right now. - Let's do it y'all. This applicant has waited a very long time. So let's see what we can do to accommodate them. - This is Kate. Amber, do you mind just making some suggestions rather than us all going, well, I can do this and not can't do that. Thank you. - Well, I am almost never available. So I'm gonna maybe leave it to, I don't know like staff, like is there a preferred day for you all, day or time? Or can we generally agree on like evening is better than morning or yes, evening is better than morning? - Amber, I think since you said you're almost never available, you should lay out when you are. - I'm never available. Oh Lord, this week is crazy for me. I could be available next week. Oh no, that's Memorial Day. So I don't wanna ask staff to work that day. I could be available almost no evening next week. Oh my goodness, I'm so sorry. What about in two weeks on Monday, June 7th, sometime after 3 p.m. And again, all six of us have to be available, yeah? - Right, works for me. - I'll be right back. I'm gonna go grab my other calendar. - We'll grab your calendar. - I'm blocking mine now just so it doesn't change in the next five minutes. - I guess that works. - Good, Ms. Lane, does that work for you as well? - What time are you guys thinking? - Later is better than earlier for me. Like closer, I mean, we can maybe hammer that out, but sometime after three is, but later is better. Like 4.30 is even more ideal. Are you good? Okay, wow, that was magic. Wow, that was amazing. Okay, so now we're gonna hammer out a time. I prefer later rather than earlier. Could we say like four o'clock? Does that work for people or is that still too early? Four o'clock, yo, that's amazing. Look what we did. - Four o'clock works for staff as well. - Holy cow, all right, so, okay. So I'm gonna close the public hearing, yes? - Amber, before you do, before you close the public hearing, I just wanna make sure that we have the presentation of staff entered into the record just to make sure that was part of the public hearing item. - All I'm saying is that the presentation that staff made is, was made part of the record as far as the presentation. - And I have the same request for my presentation. - Amber, you look like you're. - I'm not sure if I was supposed to say like, like yes, we'll do that. I'm not a lawyer, so, but yeah. - Yes, you can mention those both on the record. They are, yes, those will be in the public record, yes? - Yes, thank you, thank you. - Line, that's not in the script, Ron. - Sorry about that. - Okay, okay, so Mr. Sargent and Mr. Hanna, does June 7th at four o'clock work for you both as well? - This is Trey, it works for me. - Yes, that works for me. - Good, that was like magic, that was amazing. Okay, so I will close the public hearing and both the presentations are included in the public record for all of that. We are going to postpone item two C to June 7th at 4 p.m. At that point, we will deliberate on the presentations that we heard this evening, the information that we gathered and we will make a decision at that time, correct? - I have one question. Will our June 7th meeting be Zoom or in-person? - It will be virtual, it will be Zoom, yes. - Thank you, that makes it easier as well. Good, thank you, good question. - Yes, good question. - So with that, with all these papers, are there any concluding items to be heard this evening? No, okay, so with that, I will close the meeting for today. The time now is 4/21. Thank you all for your time and your attention. I know sometimes it can be tricky to make these meetings and I'm really grateful to everyone for being here. I'm very grateful that we all can make June 7th work for the applicants. They've waited a very long time for an answer. So thank you for making this possible. We can meet again in two more weeks, yeah? - Yes. - Thank you. - Thank you everyone. - Thank you all very much. - Thank you guys.