Jul 22, 2024 Zoning Board of Adjustment on 2024-07-22 5:30 PM

All right good evening Haley Skirsky assistant planning director after determining the report was present I will call this meeting of the city of Denton Zoning Board of Adjustment into session. The Zoning Board of Adjustment of the city of Denton Texas will convene a regular meeting at 5 30 p.m. Item number one on our agenda is the Pledge to the United States and Texas Proposal. I pledge allegiance to the 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. On behalf of the Texas flag I pledge allegiance to the Texas one state under God one indivisible. Next I will call item 2A which is to elect an acting chair for the Zoning Board of Adjustments July 22nd meeting so we will make a motion to elect Connor Hall. I second. All right we have a first and a second all in favor say aye. Aye. Okay my name is Connor Hall I am serving as the chair of zoning of the Zoning Board of Adjustment of the city of Denton for this evening's meeting. Prior to commencing our hearing I would like to review our meeting format for the benefit of those in attendance. The board consists of seven regular members and three alternates. The members of the Zoning Board of Adjustment are residents of the city of Denton. We serve voluntarily and have been appointed to our positions by the city council. It takes six votes to authorize a variance from the city zoning or sign ordinances. If there are any members of the public who wish to speak on item please fill out a blue card and hand it to Lacey. We will now commence with our regularly scheduled agenda. Item number 2B is ZBA 24-007 consider the approval of the June 24, 2024 minutes. Each member of the board has been provided with a copy of these minutes. Are there any corrections, additions or deletions to these minutes? I think the only question I had was that I didn't see Connor Tain as being the acting chair last time. You do like a motion to approve with the amendment that Connor be shown as the chair. That's awesome. Perfect. Do you need a second to his motion? I need a motion, a motion to approve with the amendment to the name. Okay, I'll make the second. All in favor of approving the minutes with the amendment made by member Redwood. Are you good with that? Yes. Okay. The minutes have been approved. Let's see. Okay. I'm sorry. I guess I'm going to need to write that down. Lacey's got it. Oh, perfect. If you want to fill it out, you can, but Lacey's got it. Okay. We are having two signed variance hearings tonight, items B24-0037 and B24-0038. In the interest of time, I will swear in all witnesses at this time, will all witnesses who will provide testimony of today's hearing, please stand and raise your right hand. Make sure it ... All right, go ahead, if you're able, of course. Under penalty of pre-jury, do you swear or affirm that any testimony or information that you provide or any statement that 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. Okay. If there are any witnesses who is unable or unwilling to take this oath, no? No. All right. It's not showed today. Excellent. In order to ensure an orderly meeting, the hearing procedure for each variance will be as follows. No person shall talk unless they are recognized by the chair to speak and then shall only speak from the podium. First, the city's presentation and questions from the board. Next, applicant presentation and questions from the board. After the parties have finished their presentations, members of the public may speak on the item. Finally, the board may ask any follow-up questions of staff or applicant that were raised by the public and not previously answered. After the inclusion of the evidence, I will close the public hearing. All right. So item number 3A is V24-0037, "Hold a public hearing and consider variance requests from Chapter 33 signs and advertising devices of the Code of Ordinances," specifically Section 33.14.2(b)(1) as it relates to the maximum effective area and maximum height of a ground sign permitted along I-35E located on an approximately 0.7 acre property, 555 feet from the intersection of William B. Miller Parkway and South I-35E, V24-0037 DME Old West Cafe, map voting. The matter before the board is whether to grant the variance to the city's sign ordinance. I now open the hearing. Good evening, board. As mentioned, here to present a sign variance for the Old West Cafe sign and the applicants for this. All right. Yes. So here to present a sign variance for Old West Cafe sign, the applicant in this case is Denton Municipal Electric. As mentioned, this sign is located at a property along the frontage road of I-35 south of the intersection of William Parkway. The conditions that led to the sign variance in question started with TechStop's lighting project of I-35. In the process of doing that, they required DME to relocate the utilities following a unique process that's not normal for what this kind of work is that would require the DME to place overhead power lines. In the process of DME planning through the placement of those overhead power lines, they did find that this sign was too close to where the power lines would be. There is safety and OSHA regulations regarding how close structures and people, non-certified electricians can be to those lines, so this sign was deemed too close. As such, DME worked with the property owners to relocate that sign of the same height and area as it currently exists to a location about 15 feet away from the property on the outside, a 10-foot zone that was required by the codes. In the process of receiving or submitting for the sign permits for this sign, it had to be considered as a new sign permit. The sign co-ordinates didn't contemplate what to do in this case when there is a previously approved sign that was legal upon installation but has become out of conformity with the passage of new co-ordinates after the signs were replaced. The sign co-ordinates did not contemplate that situation of legal non-conformity. The city, as we reviewed the sign permit, it was rejected for not following the current sign regulations. DME therefore requested this variance that is before you today. There are two variance requests associated with this sign. The first one is for maximum effective area. I'd like to consider approval of variance requests to increase the maximum effective area of a sign by 54 square feet. Current regulations allow a sign of 250 square feet along I-35. The second variance request associated with this sign is a request of an increase in the maximum effective height by 2 feet. So for current regulations allow a max height of 40 feet. Now this height can be measured from either ground level, the elevation of the frontage road, or the elevation of the principal lane of I-35, whichever grants the highest height. When measured from the elevation of a highway, this sign has a height of 42 feet, which is an additional 2 feet greater than what is currently allowed, hence the request for an additional 2 feet greater. Some considerations going into this sign request. So outside of this variance request for an increase in the effective area, an increase in the maximum height, applicant is proposing for this sign to be in compliance with all other requirements of Chapter 33 of the sign code. Regarding the criteria that we assess this variance against, one being due to some unique condition or feature of the property, which is generally not common to other properties, literal compliance with the sign regulation would cause unnecessary hardship. So in this case, the overhead power lines are creating a unique condition for this property. This is not the normal process for relocating utilities for this kind of project. This has been placed on the property by outside forces. Had the normal process been followed for utility relocations, the existing sign could have stayed as the utility was replaced on the ground. Given that the sign could have stayed, also considered in fact that the sign was approved at the time it was installed prior to the new sign code ordinances being approved. So that gives it a legal nonconforming status, generally for all these developments, seeking to not have the nonconformity increase, or not have it increase its nonconformity. In this case, it's just relocating it. Also, literal compliance would require the existing sign to be replaced with a smaller, shorter sign than what the owner has had for several years now. Second consideration, the granting of the variance will not violate the spirit or intent of the ordinance. The intent of Chapter 33 is to balance the right to free speech in public interests and safety and aesthetics. So this variance would not change the aesthetic along on 35 to maintain the existing aesthetic as it is now. So if we needed sufficient balances by allowing the owner to continue the right to speech of the sign while maintaining the existing aesthetic. Third point, the conditioner feature, which created the need for the variance, did not result from the Propounder's Act. As mentioned earlier, what brought about the requirement for this variance was actions by the state and local government, specifically TechStop and D&E, which created the need for this variance through their interstate widening project and utility of the location. Finally, the Board should not grant a variance to any applicant solely for personal convenience, financial hardship, or other reasons unrelated to the property. This variance is directly related to improvements made along the frontage of the property which are impacting the property itself, such as this sign. So it's not solely for personal convenience or unrelated. As such, staff recommends approval of the request for two variances associated with the sign to allow for the relocation of the existing sign that is 50 feet over the maximum allowed effective area and 2 feet over the maximum height because it meets all the criteria for approval. I just want to summarize the actions this Board can take so the Board may approve the variance as presented, and may approve the variance of conditions, or it may deny the variance. The action should be based on whether the applicant has or has not met that criterion on the right side of the screen that we have found to be appropriate. Any questions? Do any Board members have questions for City staff? Okay. Thank you for your presentation. Will the applicant please present? I think we're not doing that. Which aren't. Haley is incorrect. Did an applicant and staff happen at the same time? Yeah, I would say so. Okay. In this case. Okay. Now that the applicant and City have presented their testimony, evidence, and arguments, is there anyone who wishes to speak regarding this variance? If so, please come forward and state your name and mailing address. You have four minutes to address the Board. Okay. After hearing all the testimony, evidence, and arguments, and questions and answers, as well as hearing from all those desiring to speak in support and in opposition to the variance, I will entertain further questions from the Board for any of the parties or the speakers. Okay. Hearing none, I now close the public hearing. The Board will now deliberate and decide on the variance request. Upon the completion of the Board's deliberation, the Board shall render an unbiased decision based on the record and is supported by reasons in finding a fact. In considering the variance, this Board shall consider the facts and information in the agenda backup, including staff's written analysis of the variance, the applicant's narrative, and testimony presented in the public hearing, and the Board's consideration and evaluation of the requirements of the applicable standards from the code of ordinances. The Board may grant the variance as presented or with conditions. The Board shall not grant a variance to any applicant solely for personal convenience, financial hardship, or other reasons unrelated to the property. If the Board grants a variance, the variance shall be granted only to the extent that it's reasonably necessary to remedy the hardship. The Board may impose conditions relating to the use of the sign for which a variance is granted. If the Board grants a variance, the decision shall state that all conditions for a variance were met, specify the degree to which the regulations are being varied, and be signed by the members voting in favor of the variance. The other option is to deny the variance. If a variance is denied, the decision shall state the conditions for the variance which were not met. All decisions of the Board granting or refusing a variance shall be reduced to writing and signed by the Chairperson. Okay. So, is there a, let me see here. Okay. Are there any comments or discussion points from the Board? Yes, Member Ray. I would say this seems fairly straightforward to me. This is a sign that exists that was legal to build, and TechStock came in and told them to move it. So, it doesn't seem to cause any problems by allowing it to be moved. I agree with that. It's just the TechStock D&E had an issue that needed to be resolved, and everybody's happy with the solution that came up with, and I think it's a good settlement, a good solution. I'm in full agreement with both of those comments. Yes. I would move that we approve the variance for both the height and size of the sign. Can I beat pedantic for a second? It would be very helpful if the motion included a finding of fact that the three criteria and the finding of fact were shown, like that the applicant has demonstrated those. I would motion that we approve the variance for the size and height of the sign due to the fact that this is a unique situation with TechStock forcing them to move that sign, that this does not violate the intent of protecting aesthetics or free speech under the sign ordinance, and that it is not the applicant's fault that TechStock came in and needed these movements of utilities to be done. Thank you. Would anyone like to second that motion? I'll second. Thank you. All right. All in favor of approving the variance as presented? Go ahead and raise your hands. Aye. Aye. Aye. Okay. The ayes have it. Chair, at your discretion, could we have a moment to sign the decision letter? Was it printed? Okay. Can it be printed? It will be printed. Can we print both of them? Absolutely. Outstanding. Because the code is weird, we all get to sign it. Okay. So I want to make sure that we accomplish that before we splinter off. Okay. That sounds like a good idea. Excellent. Thank you, Chair. Of course. All right. So item number 4A is B24-0038. Hold a public hearing and consider a variance request from Chapter 33 Science and Advertising Devices of the Code of Ordinances, specifically Section 33.14.2(d)(2) as it relates to the maximum number of on-premises ground signs permitted based on street frontage on a freeway located on an approximately 10.78-acre premises, 725 feet southwest, or southeast, I apologize, of the intersection of Lillian B. Miller Parkway and South I-35E, B24-0038 DME, South Ridge Village, McLean. Since the witnesses have already been sworn in, I now open the hearing. All right. Thank you. Good evening. The signed variance for some signs at South Ridge Village Shopping Center. The background is very similar to what we heard for the last variance. So happy to roll it again. Just very quickly, text-out widening item 5 is causing existing signs to be relocated. In the process of doing so, the relocated signs were found to be out of compliance with the current code, even though they were approved prior to the current sign ordinance being adopted, and as such, they were seeking the variance requested. So to get into more of that variance, so the variance is to consider a request to install a third ground sign on the premise. And so the premise is the subject area that was highlighted where this shopping center is considered one. And so the current regulations allow one sign per premise plus an additional sign for each 500 feet of street frontage, a fraction thereof. So according to the current code, this will allow two signs along this premises frontage. Tests are as DME, and the process of relocating identified three signs, but there are three signs along this frontage that need to be moved. And so hence the variance request to install a third ground sign. The considerations are fairly similar to what we've heard before, except for the variance that I expect these signs are expected to be in compliance with other aspects of the sign code. I did find it wasn't all that blind, creating this unique condition. These are sometimes going to stay. Literal compliance would require one of the property owners to give up their sign if this variance was denied. Again, did not find found that this variance does not violate the spirit or intent of the ordinance. They're not adding any new signs. And so the existing aesthetic along I-35 is expected to remain the same as the variance is granted. As a reminder, it is outside forces. Text on DME, creating a new for this variance, providing utility relocation, and it is that liability that is impacting this property, and thus creating the new for this ordinance. As such, staff recommends approval of the request to install third on-premises ground sign because it meets all the original code. This is a summary of what the court can do and the criteria we found. I'll dig through things a little quickly just because it was very similar, but happy to explain further if needed. Do any board members have questions for state staff? Go ahead. You said that one of the property owners would have to remove their sign. Are these signs identical to each other and simply spaced apart on the property, or do the signs display different shops on each sign or more so forth? So they do display different shops. So the premise is made of three different lots that make up the shopping center. So there are three different signs with one sign appearing on each property, and they display different shops associated with their property. Yes, go ahead. If I remember correctly, one of these signs doesn't have any active retail on it. Is that the sign in question? I believe it was blank. It was blank? Am I thinking of the same sign that's on the property? Yes. Just to elaborate on Matt's point, since it is three owners but one premise and only two signs are allowed, if the board decides that the variance should not be granted, it would ultimately be arbitrary as to which sign has to be removed, but one of the three would have to go out. It's not any particular sign that's in question. It's the fact that there's more than is allowed on the premise, if that makes sense. Chair, if there may. Yes, of course. Thank you. And the effect of having to decide which sign might go would include the city having to functionally condemn a sign, which was a longer process, and I can't say more without accidentally being influential, but that would be the next step. Thanks. Yes, go ahead. My only concern is that the sign does not seem to be actively being used, with it being blank. I know there's one of three signs in question, but I would hope that they would, if the sign was remaining, that it would be beautified, for lack of a better word. That's just my thoughts. The only other question I have is, so this is our second request for a variance, because TxDOT and DME have made this because TxDOT is widening the area. Do we know or should we even contemplate whether or not there will be additional variance requests as widening continues, or is that something we should not consider at this point? As you know, with these particular signs, it was part of a specific project related to this intersection in which they expanded the scope, or TxDOT expanded the scope of their project last minute to include this area of these signs, and so that's for a far long TxDOT saying, "Hey, because this is a late edition, we're under a short timeline, hence we're not able to follow the process we're looking at." To answer the second half of your question, if you feel like that fact, whether there might be more sign requests, factors into whether or not one of the criteria are met, it may be appropriate to consider, but absent being able to put it under one of those criteria. But actually, the short timeframe also is part of that consideration, because that was somewhere within one of the criteria, wasn't it, about the... The conditions? Yeah, under the conditions, because it is. Yeah, the sign could have stayed under the normal process, but because of the short timeframe within this process, it couldn't even be considered. Okay, that's fine. I just wanted to add, we are not anticipating any additional signs that would come about with this, just for this little bit. Are there any other questions the board would like to ask? Okay, thank you for once again presenting for this specific variance. Now that the applicant and the city have presented their testimony, evidence, and arguments, is there anyone who wishes to speak regarding the variance? If so, please come forward and state your name and mailing address. You have four minutes to get to the board. Okay. After hearing all of the testimony, evidence, and arguments, and questions, and answers, as well as hearing from all of those desiring to speak in support and in opposition to the variance, I will entertain further questions from the board for any of the parties and speakers. Hearing none, I now close the public hearing. The board will now deliberate and decide on the variance request. Upon the completion of the board's deliberation, the board shall render an unbiased decision based on the record and supported by the reasons and findings in fact. In considering the variance, this board shall consider facts and information in the agenda backup, including the staff's written analysis of the variance, the applicant's narrative, and testimony presented in the public hearing, and the board's consideration and evaluation of the requirements of the applicable standards from the code of ordinances. The board may, one, grant the variance as presented or with conditions. The board shall not grant a variance to any applicant solely for personal convenience, financial hardship, or other reasons unrelated to the property. If the board grants a variance, the variance shall be granted only to the extent that is necessary to remedy the hardship. The board may impose conditions relating to the use of the sign for which a variance is granted. If the board grants a variance, the decision shall state that all conditions for a variance were met, specify the degree to which the regulations are being varied, and be signed by the members voting in favor for the variance. The other option is to deny the variance. If a variance is denied, the decision shall state the conditions for the variance which were not met. All decisions of the board granting or refusing a variance shall be reduced to writing and signed by the chairperson. So I go ahead and open the board for deliberation for this variance. Oh, would you like to go first? I would say that, I think, similar to the last thing we talked about, I mean, I think the intent, to me, makes sense since there's no change. Effectively, it's just that there's no fault of the property owners. I mean, I do understand kind of your point, Blair. But just the fact that it's just moving in, I think if I remember correctly, I think that area of the shopping center doesn't have any mini tenants right now, which is why it's black, but the goodwill there closed down for some reason. You can add your handrails first. Yeah, I would say with respect to Criterion 1 and 3, those seem fairly self-evident to me. It is a unique feature that they're having to deal with this last minute text.change, and it is not the owners' fault that they're having to deal with this last minute text.change. I would also say on Level 22, again, like you, I understand the concern with the fact that the sign is empty, but I think it's just kind of their big anchor tenant there at the end of the building, which I would assume if you're renting for square footage, you likely get that space on the sign. It is not rented at the moment. So I certainly don't want to make a decision against this on the basis of, oh, it just happens not to be rented right now when this particular issue came up. And Member Bray? I concur with both Member Redwine and Member Bray that it seems like it's a separate issue. This is just to approve the movement of it. I am curious about, I believe one or two of these signs were in a median, and I don't know if there's other things to be considered for when they move it. Is it going into a parking spot, and is it going to be addressed in the same manner as the median? Yes, come on. Looking at Google Maps, for all that's worth, the data is 2023, it appears that the existing condition of these signs is that they are in the parking lot, and I believe that's what we saw on the display as well. I guess whoever is running the clicker, will they run it back to the Google Maps view? Is there any further discussion or deliberation regarding this particular variant? I apologize, I'm not sure where to pick up. No, you're good. You can probably say, I would probably start here with because. Okay. Because there are three criteria and a required finding of fact for approval of a variance, and the applicant must meet each criterion, ZBA needs to make a finding of fact for each criterion. Because of this, I am asking for a motion as follows. So I move that a variance be denied/approved as presented by the staff, because the applicant has/has not met the following criteria. Which are what was on the slide. I would make a motion to approve the variance for the additional sign for this property, due to the fact that the text doc relocation is not the applicant's fault, and in accordance with criterion three, this is a unique problem condition for this property, that it is adjacent to this text doc road that is being expanded, and in accordance with criterion two, that allowing the retention of this third sign does not violate the spirit or intent of the sign ordinance with regards to aesthetics or free speech. Second. Okay. All in favor of the variance as presented by the staff? Aye. Okay. Do you guys have it? Excellent. Let's see. All right. So the next item on the agenda is concluding items. Are there any concluding items that board or the staff wish to bring forward? Okay. Hearing no items, I adjourn a meeting at 6.08 p.m.