Oct 28, 2019 Zoning Board of Adjustment on 2019-10-28 4:30 PM

I'm lost with the papers, that means a lot, right? Good afternoon, the date is Monday, October 28th. The time is 448, and I'd like to welcome you to this Zoning Board of Adjustments meeting. Our first order of business is to sign both the US and Texas flags. 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. I'll honor the Texas flag. I pledge allegiance to the United States of America, Texas, one state under God, one and indivisible. Thank you. The first item of our business is item 2A, considered approval of the minutes, September 30th, 2019. Is there any discussion about minutes? We move to approve Mr. Higgins. Second. And a second from Ms. Lane. Is there any discussion or corrections to be made to the minutes before we proceed? All right, seeing none, let's vote. All in favor, raise your hand. Any opposed? And any abstained? So all in our favor, thank you very much. The next item is to be received, the 2019 Zoning Board Adjustment Calendar. Yes. This is, again, for the 2020 calendar coming year. Calendar is shown on here that meetings are scheduled for the last Monday of every month. And you can see that there are some exceptions. Specifically, May is the only one I see that's the exception. But otherwise, it's the last Monday of each month, as we've done in previous years. So we will take any comments and put changes, if there's any, with regards to the calendar. Do you think you can get a quarter on December 28 between Christmas and New Year's? Could we move that to the 21st? 21st. Certainly, that's a good idea. We can do that. With December 14th? Yes. Is that-- That would be great. 14th would be better. Better. Better. OK. I think we can make that exception, especially during that part of the holidays. Any other changes, corrections, input? And we can always-- sometimes there's a special call. Certainly. It's not reflected in this calendar, but that's certainly an option as well. All right. Moving on. I'm sorry to break it up. Just we need a-- Yep. Or do we have to vote on that? Oh, we're voting. I'll take it. OK. OK. So-- Motion? So the only change-- the only correction then, just for the record, to the calendar is changing the December 28th meeting to December 14th. Otherwise, the calendar is pretty much rolling in favor of this. So I guess we'll vote on this calendar all in favor. Oh, sorry. Pardon me. We need a first and a second. Pardon me. Is that for this year or for the 2020? That's for 2020. Oh, OK. I was hoping this year, but-- Sure. Yes. Do we have a motion to approve? A motion from Ms. Seaborn and a second? And a second from Ms. Lane. All in favor? Any opposed? And any abstained? So that, again, all passes unanimously. [INAUDIBLE] And then the next item is to see-- receive a briefing and discussion of limitations and authority of the Board of Adjustment and Hearing and willing upon Mary's request and appeals of administrative decisions. Who is presenting this? That's me. And if it's OK with the commission, may I present this position here rather than going to the lecture? Absolutely. OK. Good evening. My name is Jerry Drake. I'm with the city attorney's office. And one of the reasons why I asked for this item to be placed on the agenda is that I understood that we had several new members of the Board of Adjustment. And I wanted to go through a briefing similar to the one we had a couple of meetings ago to go over the role of the Board of Adjustment in hearing the various matters that come forward for your consideration. And I don't know what your experience level is, if this is a new experience for some of you, the Board of Adjustment is a rather unique board with the city. Because it essentially has a quasi-judicial function. It's not a political board. It's not a recommending body. It's not a board that sets policy or anything of that nature. Its function is to review the decisions of staff and to consider variances to various rules that are put into place by ordinance that are code. And to grant relief where necessary to avoid constitutional problems with district enforcement of the ordinances as written. And in the case of an appeal of an administrative decision, to review the decision that was made by staff for consistency with the law as expressed in the code ordinances and in state law. And so with that in mind, you're going to have to be briefed on what the law is. And so that's part of what I'm wanting to do here, is to let you know what the law is so that you can go through and know where to find it. Fortunately, most of the matters that you're going to deal with are going to be in a few sections of the Dental Development Code. And so I attempted to copy those into this briefing document that was set out to you in advance. As I looked at it, I saw where there were some errors that came out when it was printed off, starting at about page 8 and going through to about page 14 or so. There are a few places where it says, error reference source not found. And I think what must have happened was that I copied this from a Word version of the Dental Development Code that was approved this year. And I think that it had some hyperlinks in there that as I cut and pasted into the Word document, some of the references didn't carry over with it. It looked fine when I put the paper together and when I attached it to an email over to our friends in the Planning Department. But somehow in the reproduction, something went awry. So I'm going to go through and just call out to you those section numbers that are missing that I'm aware of. But certainly, if there's any doubt, I hope that each of you have been given a copy of the Dental Development Code that you can refer to. And if there's any questions about it, you can refer to it. Starting out on this first page of this Legal Orientation Guide, we start with the statutes. And those come from the Texas Local Government Code. And this first section 211.008 speaks in general terms about the Board of Adjustment. And it allows for the appointment of a Board of Adjustment. Oddly enough, it's not a requirement of state law to have a Board of Adjustment, but it does allow for it. And it provides that if we do have a Board of Adjustment, we've got to have at least five members. And the idea being that the legislature doesn't know how big our city council is or how small it is, but it's got to be at least five members. And the idea is that each council member has an appointment. And the thought is that they want at least 75% of the members that have been appointed to hear a case. And sometimes, what do you do if one or two can't make it? Depending on how big your Board of Adjustment is, you may not have a court. And so the law also allows for the appointment of alternate Board members to fill in for the regular Board members. And so with that in mind, a quorum is stated in the statute as 75% of the members. Well, to simplify things a little bit, we've come upon that that's six, because there's seven members. Six out of seven is 85%. Five out of seven is 71%. It's not quite enough to make 75%. So the easy rule is six members. And as far as what the authority of the Board, page 2, sets out to hear and decide appeal that alleges an error, hear and decide special exceptions to the terms of the zoning ordinance, to authorize in specific cases of variance the terms of a zoning ordinance, hear other matters authorized by ordinance adopted under this subchapter. And then in item C, it provides the concurring vote as 75% of the Board is necessary to reverse an order requirement, decision, or determination of an administrative official to decide in favor of an applicant on a matter in which the Board is required to pass under a zoning ordinance or to authorize a variation from the terms of the zoning ordinance. Again, 75% of the members, there are seven members. And so that requires six votes. And alternates could fill in for the gaps as necessary. 211.010 talks about procedures for an appeal to the Board. There is a new section, A-1, that the legislature inserted as far as who could bring forward an appeal to the Board of Adjustment. And it's got some new provisions in there as well. But in basic terms, a person who's agreed by the decision, an officer, Department of the Board, a bureau, a municipality affected by the decision. So the city can actually bring forward a matter to the Board of Adjustment if it wants to. And then A-1 adds to the people who can bring an appeal to the Board of Adjustment. If you have somebody who works for a different department, doesn't like the way that one department has ruled on an issue, theoretically, they could bring forward an action at the Board of Adjustment. Jerry? Yes, sir? Is there a legal definition for-- The Board of-- sorry, the Board of-- do I have to recognize him for the record? I think the point is to allow the microphones to pick it up. But as far as procedurals-- Yes, the chair recommends Mr. Higgins. I'm just wondering if there's a legal definition to a grieved or somebody could just say, I don't like it. Yeah, I don't know that I've seen one. I haven't looked at it. But I can look and see if I can find that and report back to you at our next regular meeting. I would assume it would be somebody who simply disagrees with it. But that's a good question, because you have to suffer some kind of specific harm. Or you just don't like it, theoretically. And that's something I'm going to have to look into. Let's see. As far as a decision made by an administrative official that is not related to a specific application address or project, it seems to suggest that if it's not related to a specific application, that a grieve could be theoretical. But I don't know. I'll have to look. Also included are the persons who file the application subject to the decision, owner representative, the owner of the property that is subject to the decision, a person who's aggrieved by the decision, and is the owner of real property within 200 feet of the property that is the subject of the decision, or any officer, department, board, or bureau of the municipality affected by the decision. There's some requirements in there for timeliness of filing and how the application must be made for appeal. 211.011 on page 3 talks about judicial review of the board decision. I'm not going to go through all of that, because that's going to be something that's more of an abuse to the actual judge who's going to hear the appeal. It's not going to bear upon your decision here at the Board of Adjustment. But the idea is that-- and what I need to emphasize here is that your decisions, if the city council doesn't like your decision, that's too bad. There's no appeal to the city council, even though they are the governing body of the municipality. The idea of a Board of Adjustment is that the council sets what the rules are, what the law is, what the standards of the ordinances. And if somebody doesn't like that, they don't get to just challenge that because they don't like it. They get to challenge it because of some impact that it has on them. And you're deciding, is the application of the ordinance to their situation one that is untenable under the law? And is it confiscatory? Is it take away all of their property rights? Does relief need to be given? And so that's your role here with the Board of Adjustment. And any review of your decision-- because you've been given this discretion by the law. Any review of that has to be done by a judge. He's going to look at the evidence that was placed before you. That's going to be-- some of you may be surprised to see that people giving testimony are sworn in, that documents that you see are going to be numbered and put into evidence as exhibits. And the reason for that is that if there's an appeal, the judge is going to look at all that. He's going to see, did you have substantial evidence upon which to base your decision? If there's not substantial evidence to support your decision, then it's subject to being reversed. So it's not just a mere vote of preferences. It's an issue of, is there sufficient evidence to support your decision? And so that's very important. On page four, we've got a provision from the Denton Charter that provides that the Board of Adjustment is at least seven members. I guess if council member goes up to nine members, they can increase that to nine. But right now, the charter says it's got to be a minimum of seven. And right now, that's what it is, the seven members. And below the charter provision are some provisions from the 2019 DVC. And 281A, it talks about the process for gaining relief from the strict application of the DVC where literal enforcement of the DVC will result in an unnecessary hardship and where the variance is necessary to develop a specific parcel of land which cannot otherwise be developed in the same manner allowed for other similar parcels due to unique conditions on the property. Well, what would that be? Maybe it's really narrow and you can't get the proper width requirement on the front of the lot. And maybe you need 50 feet, and it only has 40 feet. But the back, it's pie-shaping. Maybe the width of it on the back is 200 feet. And so the concerns that might prompt the 50 foot requirement may not be as important when you consider that there's ample room on the lot to allow for the development. It also provides for appeals and variances on signs. Because what I first got here was Denton had a separate sign board of appeals for people to appeal application of sign decisions of the staff. And what we found was there was a lot of duplication and redundancy. And so the council decided, look, let's just combine sign board of appeals into the zoning board of adjustment. And so now the board of adjustment hears sign appeals and variances as well. As far as the variance procedure, I copied this from the Denton Development Code. And one of the things about the Denton Development Code, the new one that's really interesting and helpful, is that it gives a number of steps in the process to guide an applicant through the process. But you don't really need to worry too much about those steps. Those are really more for the assistance of the applicant. But it does describe the steps leading up to when you hear it. You're really not getting into it until step five. And so it provides, just like the state law, 75% of the members or six votes is necessary to approve a variance. It requires findings and effective conclusions of law. And as far as post-decision actions and limitations, the director shall provide written notification of the board of adjustment decision to the applicant. There's a 24-month period for which the variance remains valid. If it's not exercised within 24 months, it shall automatically expire. It's not transferable. And the decision of the board of adjustment is final. And if you want to appeal it, again, you don't take it to city council. You take it to a district court. Section D on page seven talks about the variance approval criteria. It talks about special circumstances or conditions applied to this parcel that's unique to the property. It's different from other lots that are subject to these same requirements. And it requires special consideration because of these special circumstances. It has to be not detrimental to the public welfare injurious to other property. It has to be the minimum variance that will accomplish the purpose. It has to be a situation where literal enforcement and strict application will result in unnecessary hardship inconsistent with the general provisions and intent of the DEC, such as granting the variances in the spirit and intent to see that substantial justice is done. It's not strictly for the purpose of mitigating a financial hardship. So it says, well, it's too expensive for me to develop this piece of property. That's not a good enough reason. It's got to be something that inhibits an ability to develop. And F, a condition or feature that creates the need for the variance did not result from the owner's actions. So if somebody splits their lot in half, they can't come to you and say, oh, gee, my lot's too small to build on. It has to be something that is unique that the applicant didn't cause. So you know, 283 at the bottom of page 7 talks about an appeal from an administrative decision. And right around in here is where we start to get these errors and reference source not found. So I guess the first thing I want to do here is-- and maybe if some of the members of staff can help me out a little bit with tracing these back-- I know that this item C here is referring to a figure 2.8-2, which is a table that shows the steps that you take 1 through 6. And the next reference not found is 2.4 that talks about the procedure. The pre-application conference is spelled out 243. The application submittal and processing, it's in accordance with 2.4.4 with the following modifications. Staff review and action, that should be a reference to 245. In section C4, that reference source not found at the bottom should be 246. Post-decision actions and limitations should be 248. And approval criteria should be 245. So really, as far as the administrative decisions are concerned, again, the steps 1 through 4 are primarily for the benefit of the applicant. You're really not going to be involved until step 5. And then step 6 bears upon your decision only insofar as someone might want to appeal a decision of the board of adjustment. Vested rights, this was not in your last briefing because we just didn't get to it. But knowing that you would be hearing a case that involved an appeal for a vested rights determination, I set that out here at 256. And basically the state's vested rights law is contained within chapter 245 of the Texas Local Government Code. And the thought behind the vested rights law is to prevent the government from changing the rules of development in the middle of the game. And the idea is that when you propose a development under certain terms and get your first approval on that, you're entitled to carry through with your proposal until the end. And there are some limitations associated with that. And there's a number of exceptions to this rule in chapter 245. One of the main exceptions to the rule is, for example, zoning provisions. There's only certain zoning provisions that are not accepted, those that talk about the size of your lot, the type, landscaping, things of that nature. But otherwise, the city can decide to rezone a piece of property at some point in the future, even if it has an impact on the land. And the landowner is entitled to protest that. Maybe they can even force a super majority in some cases. They can ask for rezoning. And so that exception recognizes that zoning is somewhat fluid. It's not necessarily going to be a guaranteed situation. Other exceptions include things like flooding provisions. You're not entitled to a vested rights type of determination for relief from something that's intended to prevent flooding or protect life safety. And there are a number of others as well. But let me give you some of these section numbers on page 10 in item C. That's referring to section 244, step 2. Item D is referring to subsection 234. And on page 11, under 62681, that's referring to section 622. And the first part of the vested rights determination is a complete decision. And there are some provisions in there to make sure that the application, what's put forward as a project, is a complete application. But a project defines the scope of the improvements, primarily public improvements, and does not include some other things. Once you build, say, a shopping center, what you do with it is not really a vested right. So you've seen situations where shopping centers have been repurposed into something else. That's not a vested rights issue. It's the development project that's vested. What you store on a piece of property is not a vested right. It's what you intended to build. How you intended to develop it, that's what's vested. And then this section D on page 10 talks about the Board of Adjustment appeal and what your criteria are for deciding the petition. It says the city manager or the Board of Adjustment on Appeal should decide the vested rights petition based upon the following factors. One, whether the city received fair notice of the project. And then that's a key word, the project and nature of the permit sought. Two, whether the nature and scope of the project prevents the city from applying one or more current regulations to impose or pending applications. Three, whether any prior approved applications for the property have expired or have been terminated in accordance with the law. Four, whether any statutory exception to a right asserted pursuant to 245 is applicable to one or more of the current regulations. That's what I was talking to you about before, where there are certain exceptions for life safety, for fire regulation, for zoning that are not going to be subject to the city being locked down and a vested right determination. Five, whether any exemption from one or more regulations to the DDC or city ordinances is applicable. And six, whether the project is dormant. Basically, what dormant means is that even after you have a fine project, if there's no progress towards completion within a certain amount of time, it's subject to being found dormant. But generally speaking, if you have an approved flat, that's considered progress towards completion. If you have an investment that's made in the property, that's progress towards completion. Certain approvals could be progress towards completion. So that's going to be something, as each case comes forward to you, I can't really lay out all of them now, but as each case is brought forward to you, there should be some analysis that comes to you in the staff report that talks about whether or not there is an expiration because of a lack of progress towards completion, whether it's dormant or not. 626, relief measures that apply to gas wells. That section number in A1 is 6.2.2. The A is providing for the setback requirements for drilling and operation. There are also in the city some setback requirements, what we call reverse setbacks, that impact people building protected uses around a gas well. And those are discussed in here as well. But the procedures are pretty much the same that you come forward and ask for a waiver of the setback provisions following more or less similar procedures. Going on to page 12, let me give you some of those section numbers. The first one is 626B. The next one is 626C. On to subsection A2, it's talking about section 22C. And then in A3, it's referring to subsection 637B, applying the procedures under subsection A. In this subsection B, B1 is referring to section 6.2 with respect to the application and interpretation of the section. And it says, except for vested rights appeals, the matters described in paragraph 63AF. 63AF? 8F, as in Frank. Got it, thanks. And it says, furthermore, the Board of Adjustment shall hear a desired request for variances to provisions of this section. And that should be 6.2. On to the next page, this B2B at the end of it is referring to section 632G, as in Gerald. And then this B2C is referring to subsection 6.2.2 with respect to the minimal setbacks. And-- Excuse me. Yes. Would it be possible to get a corrected copy of this? It sure could, absolutely. And I just discovered it today that they didn't carry over. And we can get that to you-- Even just by email. Sure. Absolutely, we can do that. And I apologize. I know this is very difficult to follow and find. I can only assure you that it was correct when I saw it last, and it's one of those computer issues. The problem is that when you do the links, when you just forward them, they only go partially. So you actually have to open them, copy them, and put them in. Right, exactly. And I didn't realize that they were links when I did the copy and paste, and it didn't appear. So that's the problem, isn't it? But Board of Adjustment proceedings, it talks about what these proceedings and what the standard review for appeals are, general criteria for review of variances, special circumstances existing on the property related to size, shape, area, topography, surrounding conditions, and location that do not generally apply to other property in the vicinity. Two, whether variances necessary to permit the applicant the same rights in the use of property that are presently enjoyed by other similarly situated property, which rights are denied for the property on which the application is made. Three, whether the grantee of the variance on the specific property will adversely affect any other feature of the comprehensive master plan of the city. Four, whether the variance, if granted, will be of no material detriment to the public, welfare, or injury to the use, enjoyment, or value of the property in the vicinity. Five, whether the operations proposed are reasonable under the circumstances and conditions prevailing in the vicinity, considering the particular location and the character of the improvements located there. Finally, six, whether the operations proposed are consistent with the health, safety, and welfare of the public, when and if conducted in accordance with the gas well development site plan, or gas well permit conditions to be imposed. And then for setback variances, this B2 talks about the standard of review for that. And it talks about reasonable access for fire, to the extent that the operator and service owner are in agreement on the plan of development, have provided for adequate access, traffic circulation, taking measures to promote compatibility in gas well development. Three, for requests for the operator to reduce drilling and production site setbacks, whether the impact upon adjacent property and the general public from gas well development under the request of setback will be substantially increased, considering A, reasonable use of the mineral estate, of the mineral estate owners to explore, develop, or produce the minerals. B, the availability of alternative drilling sites. And C, the number of owners of protected uses or lots in a residential subdivision who are willing to waive the drilling production site setback as requested in the modified form. And it says that under 2B, in deciding to request for variance for setback requirements, you can approve the request as granted, modify the request, deny the request, in granting a variance for reduction of the drilling and production site setback, you may impose such conditions as are necessary to mitigate the impacts of the reduced setbacks and to preserve the public health and safety, including but not limited to the enhanced mitigation standards contained in subsection 632(g). And in 3, it says you will determine whether you grant an extension of the expiration of a gas well development site plan or gas well permit based upon whether there are certain stances reasonably beyond the control of the operator, including any delay on the part of the city and issue of subsequent permits to justify an extension of the site plan or permits in which the operator may enjoy the same rights in use of the property that are presently enjoyed by other similarly situated properties in which rights are denied to the property for which the site plan or permits have expired or suspended. 4, any action in the subsection B shall require a 3/4 majority vote of the entire Board of Adjustment. And 5, any operator or other person agreed by any decision of the Board of Adjustment to present to a court of record a petition duly verified stating that the decision is ill. That's essentially your appeal. C talks about administrative variances. That's pursuant to section 622 for a new existing site from the gas well administrator under the following circumstances. One, the operator has at least one existing site on the property under mineral lease. Two, such existing sites are located closer to protected uses or residential subdivisions than is the proposed drilling and production site to such uses. Three, the operator agrees in a written instrument capable of reporting to limit gas well development on such existing sites to existing gas well drilling production activities. D, you have vested rights appeals. Any person who claims he's obtained a vested right pursuant to chapter 245 or another applicable vesting law under prior gas well development regulations from the requirements of section 6.2-- this is what that first one should be-- and section 6.3, as they pertain to gas well development, may request a determination pursuant to subsection 2.5.6, vested rights for proposed gas wells to be located inside the city limits. The petitioner shall include a statement of the reasons why the regulations contained in section 6.3 as they pertain to gas well development-- or section 6.2, as they pertain to gas well development, are not exempt pursuant to local government code 245.004. From there, we go on to signs. I'm not going to spend a lot of time on that, because it's very similar to the variances that you have for land. Basically, it can't be a situation that you created. It has to be the minimum hardship to allow use. It can't be a purely financial hardship. And then from there, there are a number of interpretations of procedures, starting on page 16, talking about sworn testimony in due process. As I said earlier, you need to decide your case is based only on the evidence that is put before you, just like your record of law. And so the witnesses need to be sworn, and the exhibits identified for your consideration. You cannot base your decision on personal experience, driving out to the site, what the applicant may have said to you at Rotary Club, or anything of that nature. It has to be on the basis of the record that is before you that is being reported here. And it talks about the cases being directly appealable to district court on the basis of the record. >> Just a question? >> Yes. >> Ms. Lane. >> Thank you, yes. One quick question, which is in section -- on page 14, you listed off the D, if you could just review those numbers. >> Certainly. The first one is section 6.2. >> Yep. >> That's on the third line. >> Yep. >> And then -- and section 6.3. >> Okay, got that much. >> Okay. As a pertaining to gas well development, may request a determination pursuant to subsection 2.5.6. >> 2.5, that's okay. >> Yeah. Vested rights. >> All right. >> And then the remaining section references are 6.3 and 6.2. >> All right, thank you so much. And then my other question is that -- this is maybe more substantive. You mentioned actually visiting the site. That seems to me that when possible is a duty because we should be able to compare what we see in three dimensions with what we see in two. >> Well, you know, I don't think you're going to find support in the law for that -- for that idea. I think that the -- where you're going to find support in the law is that the decision be made upon the evidence that's presented to you. It doesn't mean that you have to be totally ignorant of the situation from personal experience, but you can't let your personal observations and experience color your decision to the extent that it's contrary to the evidence that you see. >> They should -- actually, in my opinion, what you see with your own eyes should cause you to question things more, actually. That if the pictures don't show cracks, but you've seen them, you should be able to ask about it, and it would be a duty to do so. >> Well, like I said, I understand all I can tell you is that the requirements of the law is that you consider these cases on the record that's before you. Hopefully the staff report will go into that or the report of the various witnesses will discuss those. Certainly you can ask them about that if you saw cracks there. There's certainly nothing that says that you can't ask a person who's giving testimony to the Board of Adjustment about some cracks that you saw when going up there, and make your ruling on the basis of the testimony that you receive in response to those questions. And the photographs that you receive. But you can certainly ask questions about that. You just can't let that be the basis of your decision if it's outside of the record. >> Okay, let's see. Variance is a special exception. It goes into that, generally speaking, what is a variance? What is a special exception? It's relief from the strict application of the law, while putting into -- while honoring the intent of the regulation and trying to avoid undue hardship. And the special exceptions, that's discussed as well. We rarely see special exceptions, so I'm not going to spend your time on that. On page 18, use variances are absolutely positively prohibited in the state of Texas. And let me talk about what a use variance is, because there's a lot of confusion over that. You know, people think that if they can get relief from the Board of Adjustment, you know, can I come to the Board of Adjustment, because the zoning on my property, you know, I want to have a coffee shop, but it's zoned for a single-family home. You know, so I want to appeal to the Board of Adjustment to allow me to operate a coffee shop out of this structure that was built as a single-family residence. I'm not going to live there. Nobody's going to live there, but I'm going to have a coffee shop there, because I think it's a good idea. Cannot come, and the Board of Adjustment may not grant a variance to use property in a manner that is inconsistent with the zoning requirements. >> I have a question about that. >> Yes. >> I was on planning and zoning for a couple of years, and I remember seeing at least one case where there was, for example, like a, I don't want to name the restaurant, but there was a restaurant that was, had like more seats than what was zoned for, and there were a couple of restaurants out there, and it had been happening for, who knows how long, before like that applicant came to P&Z. I know it's a separate case, but can you help me like understand with those cases go to P&Z, or did we screw something up back there? They came and they're like, can we get this, I can't remember if it was a variance or like a zoning change so that they would be like not breaking the law by having 85 tables instead of 50 or whatever. Like is that, so is this specific just to ZEA, or like would those types of cases go to planning and zoning, or is that, we're talking completely because it was the, it was still like a commercial property and we're just changing, you're talking about like residential versus commercial or? >> If you own a piece of property and the zoning that's on that piece of property doesn't allow you to do what you want to do, and you want to do something about that, your remedy is to ask for the property to be rezoned, to some zoning classification that would allow it. >> Okay, and that's about what we saw. That just shook up something in my brain. >> And, you know, any rezoning is going to go to P&Z first for recommendation and a public hearing, and then it's also, then it's going to go to city council for a final decision and after a second public hearing. >> Thank you. I'd say special considerations for signs. A lot of people want to ask for variances on signs. We saw, well, one, with the last meeting where they wanted a taller sign, they felt like it would be easier for people to see as they were driving down the highway. The thing is, there were already provisions that allowed for taller signs by the highway and bigger signs by the highway. And so, you know, you can't, you can't apply the regulations in a way that act upon the message being communicated on the sign. So, for example, if there's a, somebody who wants to have a sign that supports some cause that you don't agree with, you can't deny it on that basis. It has to be content neutral. It's a First Amendment like that is very important. But as with other variances, it can't be self-imposed. It can't be purely financial. It can't be a situation that you could have prevented. It's not a place to come. Zoning Board of Adjustment is not a place to come if you simply disagree with the law that council passed. That's not a good enough reason. If you disagree with the law, then go to the council and, you know, when they have the public hearing on what the laws ought to be, what the code provides for, and sign up to speak and tell them what you think that the law should be. But once the law is in place, you can't just change it. Oh, that's for council to decide. They're the policymakers. They're the legislative body that gets to say what the code says. And that's not the Board of Adjustment. The Board of Adjustment only, you know, grants relief where necessary to carry out the intent of the law that the council has established. And it talks about some signs are just flat prohibited. You know, the provisions say you can't have a video sign or a flashing sign, and that's as opposed to a sign that's regulated at maximum height and size. You can grant relief from a maximum height provision if the variance criteria are met. But if where the audit says you just can't have a video sign or a flashing sign, then that needs to be honored. It's not a regulation from which you can seek relief. And there's some examples that are in there, as well as a discussion of unnecessary or undue hardship. And that's pretty much where I'm going to stop. I apologize again for the references that were messed up. And I apologize that this took so much time to go through. But I hope that at least for the new members on the Board of Adjustment, you can see some value in this, because it may be a little bit different from what you assumed in agreeing to be a Board of Adjustment member. Perhaps you thought that you could weigh in on policy issues on what the law should be as opposed to what it is. But I think the key takeaway for all of this is that on the Board of Adjustment, you're not deciding the law, the council decides what the law is. You only decide whether or not there's sufficient costs to grant relief under the provisions that are set forth in the ordinance itself. >> And I think the last case that we saw, I think really highlighted that for me, that having started on P&Z for three years, there would have been a whole lot of conversation about how can we tweak this, and so kind of keeping in the spirits of the signed ordinance, but making it easier for the applicant. There's a lot more flexibility with P&Z, because those are just recommendations to go to council, whereas we really were tasked with kind of upholding the law and the ordinance, there wasn't hardly any movement with that. So I think that really highlighted for me the big difference between those boards that make recommendations to city council as ours has the final say. >> We should approach this with the judicial freedom of mind. >> Yes, absolutely, and let me just tell you that on the item 3A, close meeting, I'm going to recommend that we not do that, and so if some of you were thinking about holding some questions for the close meeting, you know, go ahead and ask them now if you can, this is not the caption that we intended to post. We were not intending to meet with you in close session about the specific matter that's coming before you, we'd rather you decide that on the basis of the evidence that is put in front of you in the testimony that's on the record, and so we were intending for this close meeting to be a spot where you could ask questions about the general role of the board of adjustment in close session if you felt like you needed to, so, but with that in mind, I want to recommend that we not carry through the close meeting, and if that prompts some more questions, I'll be happy to try to answer them. >> Can I move to the back? >> Yes. >> Okay, so moving on, and I did neglect to mention at the start of the meeting a couple of absences, I think I need to mistake that for the record, so board member William House and alternate principal Mujafru are absent from the meeting, and I wanted to ask you, before we get started with the public hearing, I understand that we have another meeting tomorrow, which, you know, I love volunteering, but why are we, like this is a new thing, so confused, so why don't you explain to me why we're having this meeting tonight, and then seeing the same case again tomorrow? [ Inaudible ] >> Good evening, Richard Canone, Deputy Director of Development Services and Planning Director. The reason there's two meetings tonight, I have a little slide that explains partly. Within the local government code, there were some changes this last legislative session that requires a public hearing be held. However, the decision on that public hearing cannot be held on the same night. It has to be done within 60 days of when an application was filed, and so the reason we have the meeting tomorrow is for that decision to be rendered. So tonight would be the public hearing. Tomorrow would be when that decision would be rendered by the board. >> And that's what I understood from the, I guess, from the backup. So to be clear then, so we're only hearing testimony tonight, but the decision will have like 24 hours to kind of ruminate on this and come back tomorrow with the decision. >> That's correct. >> And then did I see something else in the backup somewhere that the only things that are going to be included in the public, in the minutes from this is basically the evidence that's been provided here, but not the public testimony that we have during the public hearing part. Did I misread that, or is that, I hope I misread that. >> No, you can consider the sworn testimony that you've received. That's part of what you receive on the record. >> But what, so that will be included in the minutes? >> Well, it's going to be recorded one way or another. >> Okay. >> You know, we, that's, that's, that's part of the reason for all the microphones. >> Okay, because I was like, that's not a sunshine lot. I don't know what that is. Okay, so thank you. So, so just to recap, so we're hearing, we're hearing everything tonight. We come back tomorrow. Is anything going to be re-presented tomorrow? Or we just sit down and someone makes a motion and then we discuss it and we're out of here in half an hour? Or like how does that work? >> Again, this is our first time doing it. My understanding was once the public hearing would be closed, it would be, that would be it. I mean, there would be deliberations obviously. And if there was questions, I think that if a board member had it, it would be available. But we were not planning on doing any additional presenting of any material once that public hearing was closed. >> And if I could jump in, on pages two and three of that legal orientation guide that I went through, this item here, yeah. It talks about section 211.010 of the local government code. You see it says, included the HB 2497 amendment. That's what Richard was just talking about. And A1 is a new section. And also if you look over on the next page, item D, there's some additional language. It was added to that. I didn't do the red line for you, but it does talk about the hearing, not later than the 60th day after the date the appeal was filed. So if you want some verification of what Richard was just talking about, it's these amendments to section 211.010. >> Will all of our future CBA meetings be held back to back like this? >> Just to appeal to the board is what I'm reading in this section. >> Oh, appeals. >> But like for example, like the sign thing that we saw, like, because that's not. >> That's not an appeal. >> Okay. >> That's a parent's request. >> Aye. >> It talks to CBA by virtue of the fact that we consolidated the signed board of appeals with the board of justice. It's not as a result of the defined role in the statute. >> Thank you. >> Thank you. >> Any other questions on that? >> No. >> Okay. >> Thank you. >> See you tomorrow. >> Or later. >> You got any other questions? >> Well, the packet that we've got for tomorrow is like virtually. >> It's a sign in. >> Yeah. >> Is there a reason for that, a separate meeting, you have to have the packet again? >> It's not a legal issue. I don't know if there was a. >> I don't think, I think it's to make sure that everyone had the same information that was provided. I mean, if they're duplicates, then does it. >> There might be some legal requirement or something. >> Just the post date of having the meeting was important. >> All right, so I guess, thank you for clarifying that. So with that, I'd like to open the public hearing. The time is 547, item 4A. Hold a public hearing and consider an appeal of an administrative decision regarding vested rights related to the applicability of gas well reverse setback and separating distance requirements to a mobile phone park. The subject property is approximately 13.6 acres, located on the west side of Fort Worth Drive, across from the intersection of Country Club Road and the city of Denton. And with that, and I believe, do I also swear in city staff, I think that's what you were about to say, wasn't it? >> You did. >> Yes. >> I just wanted to do that in house, possibly be able to speak to all of you at this point. >> Absolutely, so to expedite this, anyone who plans on speaking during the public hearing, why don't you all just, should we all stand at the front? We swear everyone in at the same time. And I'll just make it a little bit faster, is that good? >> Sure. >> Yeah, absolutely. >> Stand here or go front, whatever. >> I want you on the front, yeah. I'm looking at you both at the same time. Thank you, so could you quickly identify yourself for the record? >> Richard Canone, city of Denton. >> Thank you. >> And I'm Jonathan Vinson of Jacksonville. >> Thank you, and please raise your right hand. 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, be true and correct to the best of your knowledge and ability? >> I do. >> Great, thank you both. And that's not to say that y'all can't testify and speak as well. If you choose to, we'll just swear you on later. Okay, thank you, go ahead. >> Again, for the record, Richard Canone, city of Denton Development Services, Deputy Director and Planning Director. What I've prepared is just a, and I think you should have a copy in front of you, just a short PowerPoint presentation that just kind of outlines the material that we have provided you in the backup. Again, the location of this property is 2800 Fort Worth Drive, approximately 13 and a half acres. Currently used as a mobile home park. There is a current license for 77 stands. And there were some prior approvals relative to this site and this request, or I should say this appeal. There was a specific use permit/rezoning that was done in 1981 that included a concept plan for 100 pads. The property received final plat in 1985, and then this was also part of the 2002 city-wide rezoning from that specific use to just the, to ECI, I believe. Again, there was a vested rights determination that was submitted in conjunction with a denial of a building permit as it relates to gas well setbacks. The applicant, their assertion was that they were vested in a 50-foot setback from the wellhead, which was in place or would have been a setback at the time. And again, they based that on that the setbacks came after their site development with the SUP approved in '81 and then plat in '85. The staff determination was that the rich cheap gas well plat in 2002, as you can see in the map attached here, or I'm sorry, included to the right. The area that they were anticipating putting some of those additional trailers would be covered by both the 250 reverse setback as well as the 300-foot separation from equipment to protect use. Staff's determination that the project was complete and that zoning setbacks do not vest in accordance with Texas Local Government Code 245. - Mr. Commanding, before you, sorry, before the next slide. I was curious how those other properties or residences were somehow included in the circle. Can you go over that part again? - Certainly. So the gas well setbacks came into effect later as part of the, I think it was 2002 development code. And so those are essentially considered non-conforming. So it would be like any other protected use, those that kind of fall within the ring, can continue to exist as a nonconformity until such time as it's damaged or... - So when those properties were built, they were probably just adherent to them? By or totally just a hundred? - Correct. - Okay. - Correct. And I don't even know if the wells were there at that time when this was initially... - Yeah, okay. - Initially constructed. - May I ask a question while you have that up there? - Mr. Higgins? - I don't, I understand this. When you look at the Ricks Creek overhead, it looks like, it looks like you don't measure it from the well, you measure it from the pad site? - Correct. There's two different measurements. So there's a reverse setback that's measured from the pad site. And then there's a 300 foot separation from the equipment into the protected use. So there's really two measurements that are done. - All right, I see. - And then again, this is really just word for word, exactly what's in the, within the backup. These were, there are six criteria for a vested rights determination. The first, whether the city received fair notice on the project and the nature of the permit sought. Again, we found based upon these reasons that there was no fair notice for another project or nature of another valid permanent property. The second criteria, whether the nature and scope of the project prevents the city from applying one or more current regulations to the proposed or pending applications. Again, we view this project as complete and no vested rights remain from that 1985 plat. There were no other valid permits. Therefore the vested, the guest will setback, reverse setback of 250 feet would apply. Criteria number three, whether prior approved applications for the property have expired and terminated. And there's been no other prior approved applications defined by local government code chapter 245. Number four, whether any statutory exemptions to a right asserted under local government code 245 is applicable to one or more of the current regulations. And because zoning is exempted from local government code, the SGP was extinguished as a part of the rezoning of the property, vesting no development rights of the property. Again, that was what I had mentioned early on, where it was zoned with that SGP and then when it was rezoned, it was not rezoned with that SGP overlay, if you will, or demarcation. Further, the reverse setback is a zoning regulation and does apply. Whether there is any exemption from one or more regulations under the DDC or city ordinance is applicable. There are no exemptions from the 250 foot setback for this property. And whether the project is dormant, the development project is complete, so it is not dormant, is really how we're looking at that. Just to reiterate what we talked about prior to opening the public hearing, looking at the review of this, there's two really sections that govern this, first being the local government code 211.010, again, which requires this to transmit to the board all papers constituting the record of the action that is appealed. And so what you have in front of you or was included as part of that packet is the initial request as well as our determination, the legal memo, and ultimately that serves as the basis for the city manager's letter. And then DDC 3538E, if the petitioner believes that the city manager has vested rights, iterations, and error, the petitioner shall have the right to appeal such determination to the city's board of adjustment. Under the criteria, DDC 3538E, and again, this is the same language that's in the current DDC, there's criteria for deciding the petition, and I'll just point to the city manager or the underlined or board of adjustment on appeal. And so the six criteria are the same that I had just gone for, gone over previously. And with that, I have no other slides. I'd be happy to answer any additional questions. Mr. Carton. You said the project's complete once, and I see a lot of definition. What is the definition of complete project? We look at that as when any improvements associated with that were required as part of that plat. Once those were complete, the project is complete. Different than a residential subdivision that has individually platted lots. This was platted as one lot. When you say approves, does that mean that each intended lot for a mobile home, pads are done, plumbing's done, electricity's done, and now you're done waiting for mobile homes to be put on it, or does it mean that the mobile homes have to be on it? If there's any associated public improvement with that, meaning any streets, drainage, those related permits. Another component of that of that SGP approval was that it comply with all standards of the code. I think at the time, I think is what it says in there. Now, we haven't reviewed this. I don't know for sure if it meets it, but I believe in the code that governed at the time, I think it was part of the 1969 code, there was a maximum building coverage of 40%. So whether or not that came into play, again, I'm not certain that wasn't anything that we looked at with respect to this. Can you explain to me why it's considered completed if there's 77 sites there, but it was originally approved for 100? I believe that was one of the arguments the applicant was making too, is that they feel it's not complete, and we'll get a chance to explain that later, but why is the city considering that it's complete when it's only built out to 77? You know, if I could jump in, in Texas, a manufactured home is considered personal property. It's not a fixture on the land, it's not development. It's an object to be, that can be stored on property. It's kind of like the difference between a real house, or, well, I don't mean to say a real house, but a building with a foundation that's affixed to the ground, or, you know, a mobile home that could be set upon the ground, or a pad, or what have you, it's actually, and it can be moved away. The very fact that it's mobile means it's not associated with the land, it's not part of the land. If the land is sold, or if the mobile home is sold, someone could haul it off. It doesn't necessarily have to be sold with the land, and so there are cases that talk about objects that you store on land is not part of the development or the development project. So the company is selling gravel, they could have a pile of gravel on the ground. The pile of gravel is not part of the development, it's stock and trade. And so, because it's not an actual improvement to the land, it's necessarily part of it. It's not part of the development itself, or a necessary part of the proposal. The concrete is poured. What's necessary for storing mobile homes on there is done, but the lack of homes is the homes that are protected uses. You could use the property for something else, other than a mobile home park. But the fact that there are no mobile homes on there doesn't mean that the project's incomplete. Does that make sense? Wouldn't by the pictures, and I'm sorry for my ignorance on this, but having the drive with the circle, wouldn't that show that there's intended for further use there? It may be, but does it necessarily mean that those are going to be mobile homes, as opposed to, I don't know, the same concrete could be used for a go park track, or a parking lot for some other use? It's not necessarily a mobile home park. It doesn't necessarily have to involve protected uses that are subject to the reverse setback. And it's not, again, something that's stored on the land is not part of the development of the land. Just like parking a car on there is not development. Could someone park their mobile home there without any hookups to the city? Has that part not been developed yet, as the electric and water, and that's what they're looking to develop, so that more mobile homes could be placed on the property? Or are those already put in? Because if it's just things to be stored, then I don't understand why. I have to go back to the original definition of mobile home park, because I also think it talked about travel trailer, and it referenced a sort of a non-permanent basis. I'm sorry, it was of a transient nature, I think is what the definition states. And so there could have been a RV that potentially could use that. That, I think, would be permitted within the ordinance at that time, which I don't know if you necessarily had to have had a concrete path. Again, that I'm not aware of to park an RV for a short period of time. And that could be parked closer than 250 feet, because it's just... If it's not on a pad, it could be there for a day or two, or just almost like a campground. And so is the applicant looking to build more pad sites? Correct. Okay, and then that would be a protective use? Correct. I understand that. Mr. Higgins, did you have a question as well? I'd like to get clarification from Jerry to see if I understand. I'm not really concerned about the mobile homes, because those belong to the owners of the mobile homes. I'm concerned about the property and what's on it, if it's owned by the property owner or something. If you had 100 pad sites complete, then the project would be complete. And if you have 70 pad sites complete and 30 that are not, you're still considering the project to be complete. Well, and that was really a staff determination. But I think part of that is that having a pad, or a concrete pad, is not a protected use as such. It's not a protected use until you have a mobile home on it and people are living there. That's where the problem comes in. You're not entitled to locate homes on the property within the reverse setback. And so the fact that they've got the concrete poured for the drives and they've got utility stands in that are not occupied or what have you, that's not actually a protected use as such. Does that answer your question? So sorry, so pad sites are not a protected use, or they are a protected use. They're only protected when a mobile home is on it. So the setup for the mobile home is not protected until a mobile home is on it. It's interesting because you're getting into these kind of hair splitting details here. I mean you could even sell mobile homes without them being a protected use and store them for sale. That would not be a protected use. To simply store mobile homes for sale would not be a protected use. And so the pads, I don't know that that's really the issue so much as having the mobile homes there that are occupied. They want to place residences within the 200 feet area. Right. I need a legal definition of the term protected use. I'll have to look for that. Yep. So I guess what I'm hearing is that there's a little, so pad sites are not a protected use and the mobile homes are not a protected use, but put them together with the intention of that becoming a residence. Well once it is occupied. Once it's occupied and that would be within this 250 foot circle that we're looking at. Am I clear on that? Did I get that right? Clear as mud right about the closest. We usually see signs so this is different. So to make sure we know what we're talking about. Protected use is defined in section 6.3.1. That's general definitions. Protected use is defined as a dwelling church, public park, public library, hospital, pre-kindergarten, pre-kindergarten or elementary, middle or high school, public school, public transit center, senior center, public recreation center, hotel or motel. In the first quarter that was dwelling. Yes. And that's really what we're talking about. Because they didn't develop those out fast enough is that and it's not protected because of the rezoning. Is that because they didn't put a dwelling in place. A dwelling is a protected use. But they didn't do it fast enough. I just want to make that in 81 they were approved and 85 approved because there's rezoning 02 because they didn't put a dwelling in place by 02 prior to that. Well what you're saying with fast enough I think what you're describing is more or less a grandfather that if they got it in that that they would be entitled to remain in place as a legally non-conforming use despite the fact that they are non-conforming. They don't meet the law. You know the issue here is that it's a protected use whether they put it up before or they put it up after if it's within the reverse setback. And so you know would there be a situation where they could claim some kind of a legally non-conforming component of that. That's an entirely different question from the one that's brought before you today. So those properties that we're seeing inside that 250 and 300 foot circle those were to your point Mr. Horne those were developed fast enough. But now those would be legally non-conforming so heaven forbid something you know some natural disaster should heaven forbid but it would be damaged somehow. The property owner would not be able to add dwellings back to those sites in the same way that we saw that sign that got knocked over and he had good intentions of putting a new one up but I'm sorry like it got damaged so you can't do that. So is that do I understand this correctly so those those were built out prior to this 02 rezone or ordinance or whatnot and if they were to be removed or damaged somehow they could not be put back in. That's I know and so I know we're not talking about those but just put it in context so I understand because we're talking about dwellings inside the circle. Yeah okay all right thank you. And again just for for clarification because I know that Jerry had provided on on the definition of dwelling or dwelling unit the code further defines dwelling HUD code manufactured home and then dwelling mobile home but there is a specific exemption this term does not include a recreation vehicle that's defined by Thank you for helping us understand all of this all right go ahead yes remind me your name please sir thank you all very much we certainly appreciate your time tonight on this complex issue my name is Johnson Vincent office address is 2323 cross avenue and before I get going I want to mention that I have with me tonight Mr. Wayne Allen who is with Stone Town the owner of the park as well as Lee Allison and Lance Fulldoor who are civil engineers who office here in Benton so you're probably very familiar with them. Mr. Allison is telling me that he's been working on this project since about 2011 and in the last couple years it's gotten much more heavily involved in it so is it correct I have 10 minutes or is there I think Ron yes okay I'm sure I'm going to say yes but I'm sure we'll have follow-up questions sure and that's some studies are stricter about time Mr. Smith Mr. Smith could you speak a little louder sure we're here tonight on the appeal of the vested rights determination you have much of this in your packet that was provided by the staff actually Mr. Allison's company is was working on this back in February 2017 specifically they were tasked with looking at some of the floodplain issues that were involved so it's been about two and a half years now that they've been working on this the vested rights issue came up very late in the process over the summer of this year and because of that Allison engineering group eventually did ask for a vested rights determination the city manager issued that determination on September 27 and stated that you know vested rights did not apply in this case we obviously disagree with that and that's why we're doing it for you and I provided you with a letter explaining our position as well as a copy of the PowerPoint presentation that we're going to talk about I'm going to come back to this in a second but I think it is important to understand that this property was originally granted a specific use permit in 1981 and that's a copy of ordinance number 81051 passed by city council in May 5 1981 it specifies in here that the SUP is granted for the mobile home park use and it specifically states that it's conditioned on a site plan which is attached as an exhibit so this is an ordinance passed by council when the only zoning process has the force of law you see the date there May 5 1981 and that's a copy of the attached concept plan the staff has acknowledged the concept plan fills 100 pads and I'm going to come back to that issue in an event as well but it would be our contention just like any other project that is not necessarily built all at one time but you see many development projects that were built in phases this is no different the intent was always there to do up to 100 units maybe it didn't happen all at once but I think that's irrelevant I think what's important is that the intent was shown in 1981 when this concept plan was attached to this ordinance that they wanted to develop 100 pads just because it didn't happen all at the same time I think should be immaterial there's many other projects that are built in phases the uh the plat final plat was adopted in 8.4 of 1985 now there are a couple of things I want to discuss on this plat there's been some mention of the cul-de-sac on the west side why would you show a cul-de-sac if you didn't intend to eventually develop dwelling units there that would be accessed from that cul-de-sac there would be no point in doing that another thing about plats there's been some discussion of the plat not showing or not mentioning a use not showing structures or building footprints you know this is board of adjustment it's not your planning and zoning commission and council where it's more typical to see plats come through but plats typically don't show uses the use is really immaterial the property is flat I just lost our quorum so yeah one second I'll suspend me it's a shame if we had seven members we wouldn't you keep your brother off yeah we lost our quorum I apologize I have to be a mom okay it's okay all right thank you I apologize you're the chair do what I want my dad all right go ahead please continue so anyway my point about the plat is that the plat shows the lot and it shows the improvements that would be provided on the lot again it begs the question why would you have a cul-de-sac there on the west end if you didn't plan to eventually do pads there and plats typically do not show uses they typically do not show building footprints those are governed by the zoning whatever use you put on your plat at lot and whatever building envelope takes shape there that's governed by the zoning so you know I think the plat does show the intent to develop this out with pads but the fact that there's no use for building footprint shown on there I think is immaterial this is the email March 23 2018 when this issue first started to surface after several years and really after decades of this property being in service as a mobile home park there was a question raised about what does the sup provide what is the concept plan provide and what's what is the property invested in this is the march 30 2018 reply from mr kanan refers to the 1981 sup ordinance in fact the city revisions I think they were given up to find it for us refers to the concept plan for the mobile home park and it says I quote the concept plan shows 100 mobile home pads also consistent with staff comments referencing such pre-application comments from May 28 2009 so not just in 2018 but back in 2009 staff apparently was of the opinion that the concept plan provided for 100 mobile home pads and just as an aside the 2002 city-wide rezoning that may have changed the zoning on this property but it would also be our contention that we were vested prior to that time as well so you know we think we've been vested from 1981 going forward further evidence that the city knew exactly what this use was and had no issues with it going forward the first in a series of mobile home park licenses was issued to the mobile home park in 1984 and again these are from the city's records there were numerous mobile home park licenses issued over the years new homes have continued to be set at the mobile home park the gas wells were approved in 2002 2003 but you can see here that there's a list of units just since october 2015 numerous units that have been set in the mobile home park why didn't it come up then i can't take but apparently they were proposition yes sir did you get sorry did any of those fall inside the circle with the word my question yeah inside of the circle good question i don't know the answer to that question do y'all know the fact remains that there were can i ask the question also do those new home sets require permitting by the city i believe they did correct each one required a permit by the city that's that's what i'm talking about yes can we be able to see can we find is this can we get that information from the city is that like what i know they're in the circle if they if those are in the circle yes after the 2002 and also the permits also the permit this may mean if we need to gather this research oh thank you it may mean that we you know if it takes the city time we might have to put on a vote obviously but so to so to your point mr vinson there have been several new sites or homes that have been added since 2002 but we're unclear about where those homes are located if they're inside the circle or out i personally am unclear on that i'm sure someone could make that determination well could we get a map from country view of the site numbers that'll tell us right there we just need a layout of the park with the pad numbers on it thank you that way sure good question so in any event as you can see this issue has come up very late in the game you know the city continued to issue permits for these settings of these mobile homes on these paths country view mobile home park continues to be properly licensed by the city this is dated september 30 2019 so what is that about four weeks ago they were issued a mobile home park license for this year so again no problems that we can see you know have no reason to think that we were not totally invested and could proceed to continue to develop the mobile home park as i said allison engineering group has been working on this in the floodplain context for a couple of years and i want to point out that from a floodplain standpoint you know we do understand that's a totally separate issue we understand we need to comply with floodplain regulations and do what's necessary to you know whether it's race a pad out of the floodplain or whatever that's not before you today that's a totally separate issue i'm sure we're going to comply with whatever needs to be complied with on that but the point of this is you can see on here the cul-de-sac you can see the proposed pads around the cul-de-sac you can see that allison engineering is working on this that that you can't read it on the powerpoint and i had to squint but this drawing is dated may of 2018 so about a year and a half ago this was presented in the city they saw the pad science this is going to relate to the fair notice issue we're going to talk about existing hydraulic work map again showing pad sites around the cul-de-sac and a copy of the 1985 plan again showing the proposed pad so this is all my point my larger point is that this is consistent all the way through from 1981 through today there are no surprises here the sqp ordinance said what it said the concept plan said what it said with regard to 100 pads 1981 to 2019 this has been a continuous operation permits issued you know everything's going along fine it's licensed this issue came up very recently how much there are surprises i'm going to quickly take you through a few photos just an aerial view of the country mobile home park you can see it's laid out exactly like the plat showed see the cul-de-sac it's been there since that time birds eye view this is a little bit closer just a quick photo tour and i know the use is not really relevant today other than the fact that we're invested in the use but whether this is a good use or not i want to raise your comfort level on this mobile home parks i've represented some over the years and the perception of them is sometimes i think i'm more in this particular instance i'm going to take you inside the park and show you what it looks like to see what we're talking about this is all recent photo photography from google street view going down the main road in the interior i think you'll see i was very pleasantly surprised to see how clean it is it's an excellent shape i mean this is a well maintained mobile home park i'll go through these quickly because i know my time is limited but again you know continuing west continuing west i mean it's very spotless it's i'm very impressed with the view of this now we're rounding the curve and showing them the plant you can see in the background the vacant part of the property looking down the cul-de-sac you can see the vacant land why would they have shown this on the concept plan if they did not intend to eventually develop those as mobile home pads now we're turning around we're heading back east again i'll go quickly through these this is an excellent use i mean this is you know these are people's homes they live here you know it's a good affordable housing option it adds to the variety of housing types in the city of denton coming back towards the main entrance you know there's a playground for the kids there's a little gazebo there i don't see any trash anywhere or anything sitting out so you know it's a good use now i want to get in the time i have left into the six points that the city has established to guide you in its criteria for looking at these best rights determinations and this is in the handout that i gave you as well so if i had to zip through this you can read it at your leisure question one whether the city received fair notice of the project first of all the council passed the shp ordinance in 1981 they granted the first mobile home park license in 1984 numerous subsequent licenses permitted numerous settings of new homes as recently as this year i think that's fair notice i think the city knows exactly what this use has been for decades uh city says that the final plan did not approve uses or depict the location of structures as i explained flats don't do that concept plans do that flats do not that seems to me to be of little if any relevance the city says that the project is complete and that this is really i think the main question um that we're dealing with we think the project was not complete it was intended to be phased why otherwise would the concept plan show 100 pads from the very beginning and plat shows the cul-de-sac to access the remainder of those paths it was always intended to be fully developed so i think the record is is clear that the city had fair notice knew the nature of the permit sought knew that there would be 100 pads there eventually and i believe we're vested in that second point whether the nature and scope of the project prevents the city from applying one or more current regulations the city says the project is complete we disagree with that premise we think the vested rights derived from the original 1981 shp ordinance approving this specific use it's not a blanket rezoning it was an shp ordinance specific to this one news again 1981 concept plan the 1985 flat showing the entire lock and the cul-de-sac and the mobile home park permits licenses and other things through 2019 as recently as earlier this year whether any prior approved applications have expired or have been terminated uh staff says there have not been any prior approved applications that have expired and terminated we agree with that it's been a continuous operation there's no reason there would be no reason why anything would have terminated we continue to operate for these decades uh with our vested rights to the member paths before the presence of the gas wells which are only about 17 years old we've been approved since 1981 whether there's any statutory exception to our right now this is an interesting question and you know i don't want to get too deep in the weeds on the legal side of this but i think it's important only certain types of zoning regulations are exempted under this portion of the vested rights statute and i've gone so far as to quote it here there's an exemption for municipal regulations that do not affect landscaping or tree preservation open space or park dedication property classification etc what that means is that regulations that do not have and it's tricky because it's a double negative regulations that do not affect these items are exempt from the vested rights statute from preserving owners rights under the vested rights property classification i've looked there's no definition in chapter 245 of property classification my research indicates that property classification is commonly understood to mean the use of the property so what that means is that our vested rights under the vested rights statutes include the ability to use the property for the intended use under the specific use program that's that's our position and i think it's correct this is the actual statute itself section 245.003 i'm not going to read this to you it's in your packet there that's the actual text with my bold highlighting whether any exemption for one or more regulations under the dent development code or ordinances is applicable to the project we're not aware of any such exemptions we're not sure that there may not be any we would have to do further research on that but to us it's a pretty simple proposition our use existed existed well prior in time for the gas wells we believe the vested so we don't think this really even applies and finally point six whether the project is dormant and again this kind of cuts to the heart of the issue this is this is probably the central premise the city staff asserts that the project is complete so it's not dormant we strongly disagree with that premise the project is not dormant has never been dormant we've always wanted to do 100 pads maybe not all at once didn't happen that way but that's very common with development projects so the project was always ongoing it was never going it's not going now the vested rights we believe derived from the original 1981 issue keep ordinance approving again this specific use with an attached concept plan part of the ordinance showing the 100 pads everyone agrees on that the 1985 final plat again does not show uses or structures but it does show the entire lot and the cul-de-sac intended to serve future development and again from the numerous mobile home park licenses permits and other items up through this year even after this discussion so we're here before you tonight respectfully to ask that the city staff's best rights determination which was unfavorable to us be reversed again the shp was passed by council in 1981 first mobile home park license granted in 1984 property planted in 1985 showing the cul-de-sac always intended that more pads 100 total would be developed mobile home park licenses granted for most subsequent years including up to and including this year the gas wells that are the causing the issue here appeared much later 2002 and 2003 how they got approved with mobile home park pads with mobile homes on them sitting there is a great question i don't know the answer to that question but it's causing us an issue we were there well before that and as recently as march 30 2018 the staff took the position that the shp ordinance from 1981 showed the 100 mobile home pads consistent with staff congress in 2009 so you know i know that's been somewhat repetitive but i think it's important to understand those facts the bottom line is we are very clear in our thinking that we've invested since 1981 nothing has happened to change that you know the presence of the gas wells don't know how they got there but they shouldn't affect us they shouldn't be used to take away our property rights our vested rights in these 100 mobile home park pads so again very respectfully we have a difference in opinion of the staff and we hope that you'll see it our way we will take a brief recess for five minutes thank you okay thanks 6 34 are there any questions for that applicant yeah mr higgins yeah i'm we'll take a bit of it i'm appreciative of your rebut to the manager's letter but i want to take kind of a different tack it's sort of based on this creek picture setback lines are are created with concerns for safety and safety is something that that decision that safety decision is a legislative decision that's handed down not something for us to argue about in the texas uh legis whatever the texas legislative local legislator guide whatever the god section 6 2 6 relief measures for gas wells only page 13 paragraph 2 standard of review for setback during cities of section 2 paragraph d in deciding the request for variance of setback requirements the board may approve the request as granted modify the request or deny the request in granting a variance for reduction of a drilling and production site setback the board may impose such conditions as are necessary to mitigate the impacts of the reduced setbacks and to preserve the public health and safety including but not limited to the enhanced mitigation standards contained in subsection and then the jury provided the number i didn't like that so am i supposed to be talking in the microphone no because the microphone's right here so given that it seems to me that there is a concern for safety uh and how that might might play into this how would you address that mr smith uh well first comment i would make is that uh one of the items we've taken into consideration in this whole project has been fire code uh and we intend to fully respect the fire code and comply with the fire code my experience with dealing with fire code is that that pretty much trumps every time the fire marshal kind of gets the duty what he or she wants and it's no different here so we will absolutely comply with fire code requirements the gas well setback is more on the zoning side and you know i understand the zoning ordinances are enacted because cities have the right to regulate the public health safety and welfare but on the other hand you know they're to some extent they're picking a number i mean the fire code is probably based on more of a technical analysis of what's appropriate this happens to be a distance that cuts into our mobile home part you know if i'm reading this correctly uh well it's a request for a variance to the setback requirement so that's not really before you do not i guess what we're really only talking about is the vested rights determination but that indicates that you know the board in some circumstances on a different kind of a case could actually reduce that setback if they saw fit uh i'm not you know obviously that's not before you don't have jurisdiction to do that in this case because that's not the application but i think there's a big distinction to be made between a zoning gas well setback and the fire code required setback which we absolutely understand would the owner i wonder if the owner operator has considered the possibility that mobile homes located inside the red circle should there be some sort of an accident disaster which created physical harm for the homeowner or any other residents of the home i would think that the owner operator would find himself in a pretty serious liability situation wouldn't that um well that's outside my area of expertise would that be a fair same question be the same question asked to the city if it's a safety issue then why are those homes allowed in another home or not so either it's a safety issue or it's not a safety issue it can't be and when i want it to be but i want to add as part of my answer that you know that that's a good question uh i don't know the answer to that question but i do know that the mobile home pads were there long before the gas well drilling sites were but they weren't developed yet correct some of them were that the ones that are shown apparently on the there's a couple of drawings inside the line right so those have been developed and then the gas well went in and then we have coordinates written because we're starting to see several of us here at this table who are were very involved in the history of dentin trying to find a compromise between what we're seeing here and with with gas well operators and so my understanding is that had those sites already been developed they would have been protected uses then there wouldn't have been room for that gas well to go in but because there were no protected uses in that area they were allowed to come in and now they superseded your rights if i'm understanding the how the ordinance was written and the conversations we were having as a community four or five years ago that's part of what i'm clear about as representing the mobile home park because and this is from the uh the staff's extensive memorandum uh you see the the drawing here and i apologize it y'all have it yes i mean you see the the existing mobile homes these are not just passed there are mobile homes here yeah they're within these setbacks um you know i believe that those were there prior to the approval of the gas wells i don't know the information we requested the map with the plat numbers and then the permits issued by the city for those mobile homes sets yeah that will tell us yeah they were there yeah i think that'd be i do think that was really helpful but i i guess what i'm saying is that yes yes those mobile homes were there and then yes the gas or maybe the gas was put in and then the mobile homes were there but it was kind of a free-for-all like we didn't have like the gas well kind of snuck up on us about 10 years ago when they put that one in on on bonny bray and we're like crap we don't have any laws to regulate this and that's when we started having these conversations so somewhere in that between 1981 and 2008 2009 when we saw that gas well going this probably all was happening at around that time because i once we passed once we passed the gas well ordinance um and we and we've been which we've been tweaking in the near sense trying to find like that perfect balance to not take away the rights of property owners while still allowing gas well development in our town um work i have so many words in my brain right now um we now have a set of rules that would not allow for development within that within that circle and maybe in the 80s and 90s there was no loss that's how they got there i'm just rambling at this point but i'm trying to think out loud like how did they get there and how when when did they get there that would be something i'd like to see too is when you're bringing these the the lot numbers to us i'd be really curious to see there's i see like there's three three mobile homes up here and then there's another i don't know what this property is down here at the bottom of the circle yeah but i'd be really curious to see when those were allowed to be built because we saw the gas was put in in 2002 2003 the permits were shown and that was before we had a guest so yeah and i appreciate what you're saying i mean that's an important issue um i guess our position um and admittedly it's narrowly focused representing the mobile home park is why should we be penalized right when we believe those were the conversations we were having yeah yeah yeah so that's so back to i'd like to see a more concise timeline of when the denton development code for the the current gas well setbacks and reverse setbacks was established in relation to the timeline of the the mobile home park and when i was going through the the reading at one point was at 50 feet for a reverse setback a long time ago uh has the code changed or was that the fire safety the fire code has always been 100 okay so what what were the what were the gas well setbacks or reverse setbacks previously to the 250 and 300 feet we can get that and the dates and how it it correlates to to their development and so i want to take this back to the issue of vested rights which is what we're deciding right whether the city of denton administrative decision regarding vested rights is appropriate or not this property was issued a special use permit in 1981 and then it was rezoned somebody mentioned that earlier there you were mr kanane and does a rezoning cancel the rights issued to the property or the owners of by the special use permit let me try to address your legal question without actually testifying as to facts because i i don't want to be a fact witness here but i i think that the issue of the rezoning speaks to the fact that the applicant has claimed that an sup has created some uh vested rights as a supplement to their plat application yes if you look at the plat the plat shows a concrete ribbon going around in an oval with a with a little tail on the end of it you know it doesn't show uh you know any any homes there or anything of that nature it just it it shows that hardscape and what the applicant is arguing is that there was an sup that was granted at some later date that shows with more detail that there are going to be specific areas locations if you will where mobile homes are going to be located and they are they are are claiming if i'm if i'm not correct mr vince let me know that that that that augments the uh and and further defines the project the the the problem with it and where the zoning issue comes in is that uh sup is a component of zoning indented and so if you have a a particular zoning classification with an approved sup that applies to it that stays there and that sup is relevant until that property is rezoned once the rezoning comes in then you have new zoning defined for that area it doesn't necessarily have an sup associated with it because the sup is specific to the prior zoning okay so that that's the that's i think the importance of the rezoning it's not that you know under the law that something's taken away or what have you i think that the argument is that that's the practical effect is that once you have a rezoning of the area that the sup is essentially of no importance or meaningless if i might respond to that just kind of give you the other side of my perspective uh the the sup and the concept plan that was actually from 1981 so that preceded the 1985 plan uh the the slide that i put up here uh this is from the texas vested rights statute it talks about applicability and it specifies that it applies to a project that was in progress on or commenced after september 1 1997 i would suggest to you that our project qualifies for that because it was begun and was in progress in the sense that it was continuing to operate and it had you know the delta of the additional mobile home pads available under the concept plan if before september 1 1997 a regulatory agency city of denham approved or issued one or more permits for the project absolutely happens mobile home park licenses permits for the mobile homes with the plant the sup and so what i'm coming back to is i understand what mr drake is saying about zoning and you know in a global sense uh that's that's kind of a different issue our specific issue is regardless of the impact of subsequent zoning changes on us we believe we're vested in our 100 mobile home pads and i don't think that the city is at odds with the applicant on on whether it falls within 245 003 and i don't think that the city is at odds with the idea that they manifested an intention to build a hundred some odd uh uh lots uh well it's not really a lot but the pads for uh manufactured homes at some point in time i i think the the the issue is is the is the project as defined uh by that application complete and and if i could offer by way of an analogy uh let's say for example we were talking about a parking lot uh and and you apply for a parking lot that has a hundred spaces on it they could they could you could park a hundred cars on this parking space when is that parking lot as a project complete is it when the concrete is poured fured and all 100 the stripes for all 100 spaces are put on it or is it when you have a hundred cars actually parked and filling you know i think that uh the the city's perspective is that what you're talking about is it's more like the former that the that the parking lot is complete once you pour the parking lot and you stripe it and it's it is a parking lot it doesn't require you to have 100 cars on it before that parking lot is complete and in a similar fashion manufactured homes are very much like cars because they're they're they're mobile they're pieces of personal property that's not a development of land and uh and so the fact that you don't have all of the spaces occupied doesn't mean that it's incomplete as a project uh the the fact remains that what was shown on the plat was built uh and and and it's it it has a number of uses doesn't necessarily have to be a mobile home and uh so it like i said you could sell manufactured homes uh in in that location perhaps or or maybe it could be used for any of a number of different uses but let's say with your parking lot analogy that there was some hazard such that it was unsafe it was determined to be unsafe for vehicles to be uh within a certain distance of some hazard and so there was a separate prohibition for that maybe it's because of flooding maybe it's because uh you know you got uh you know winds or or there's an airport nearby and the planes are taking a very low approach and and there's some other regulation that that that restricts how much of that parking lot could be used does that mean that the project is incomplete i think the city's position would be that no that does not mean the project's incomplete and so by analogy uh i think the city's position is that the uh that the uh proposed mobile home farm was complete it's just that it's not fully occupied if i could respond to that i because there's points i want to make in response uh the first is on the manufactured homes you know they may be personal property but the land and the paths and the potential paths are part of the real property which the applicant owns so i think that's really what's an issue here tonight you know i get the manufactured homes can move in now but we're really talking about the ability to develop this land in accordance with the 1981 concept plan uh the other thing is you know we can draw on dueling analogies but uh lots of projects are built in phases i mean mr drake's analogy of a parking lot well what if you had plans to build two parking lots or two apartment buildings maybe you build one right away and maybe you build the other one when market conditions warrant happens all the time you know we understand that some of these potential pad sites are in floodplain the city of denton has regulations to deal with that you raise sites out of floodplain you mitigate for the floodplain you do and that's where the civil engineers come in who are the experts in that and and that's actually how we got here a couple of years ago we were trying to work through that process by the book uh so you know i think the fact that the the driveways were poured in accordance with the plan is not dispositive of whether this project was complete it was ongoing sorry sorry i have several questions miss mason did you have one yeah i just wanted to to bring it back to part of the statement about hold a public hearing and consider an appeal of an administrative decision regarding vested rights related to the applicability of gaswell reverse setbacks and separation distance requirement to a mobile home so it's it's circling back to the gaswells as a main point of contention within the the clause that's stated i just want to reiterate that because i think i feel like we lost that for a little bit thank you and mr horton you had a question no no okay it was late yeah um are there children expected to live there uh some i would imagine so there's an elderly perhaps i'm sorry elderly persons perhaps probably and uh any disabled uh i'm sure maybe yeah because the reason i bring this up is because uh you know many considering you know we have what we have in terms of the ordinances passed but it is generally regarded as impossible for um uh those in wheelchair to safely get out unless there's a 600 foot setback or reverse setback we have 250 300 something like this so there's you know things are moving in the opposite direction of allowing building close to these things not in the direction of allowing it towards whether you know the debate obviously is about whether or not their your project is grandfathered or whether rezoning and new ordinances affect any future decisions about continuing but that that's the reality behind it that i think should be brought into consideration by the owner as well as by us you raise a good point um but it comes back to the fact that i think what we're here tonight to discuss is is the narrowly focused idea of whether we are vested in our rights that preceded by decades the presence of those gas wells and i i suppose what i'm asking is why are we here or why why why even be here for that when that narrow focus is in conflict with safety well the fire code establishes a 50-foot difference we're sort of respecting that i would argue we're here because as many people didn't have the forethought to right see how this would affect the the decisions the city made the citizens made four years ago right paying no attention to these issues right and we just unfortunately we're seeing the full applications and we have seen through the years trying to find that balance between gas well development which is a reality and the rights of surface owners and the mineral rights as i understand in the state of texas supersede the rights of the service owners and so we're trying to find this like what's the balance between like safety and being able to continue to develop and so and that's what's what brought you here today so our task is really to find out like we're are you vested you should be able to develop any way because you were there first and and we're just trying to kind of find i guess that the answer to that the balance of that miss regan's you have a question did you want to respond to her well i would just uh appreciate the remarks i think you're spot on i mean i think uh it seems to me and this is not articulated anywhere it's not really a rule in this kind of proceeding but it seems to me given the history that we've discussed extensively the burden if you will should really be more on the city to demonstrate you know why we shouldn't be allowed to continue our vested rights which we've had since 1981 and mr higgins yeah um i have a question for our attorney it's a question of clarification and then based on that answer i probably have a comment to make we are not tied in a position here a letter was sent out by the manager this is the rebuttal to the letter are we restricted to voting up and down on that or couldn't we add mitigating things or changes you can add uh you can add mitigating changes in accordance with the ordinance uh or or at least those could be added okay uh as part of your your decision where i'm coming from on this is i was i was set on a planning and zoning commission in a different community for a couple of years and applicants would come and you know we wanted to mitigate a site problem we wanted to mitigate a sound problem we wanted to mitigate a problem maybe people would didn't have any reason to be in this proper being able to pass through this property and you would come to some sort of agreement on that and that would be the recommendation of city council i know i know what those mitigations are i don't know what mitigation for a gas well would be i don't know if you could build something along the perimeter with enough height and enough strength that would deflect the possible explosion or fire i don't know if that could be done if that can be done is it in our purview to say we would uh it's one possibility aside with the owner given this condition or is it not within our purview when if it isn't within our purview i would like to know if anything realistically could be done to mitigate that risk i i think that that uh that that legally the answer would be that you could impose qualifications conditions and what have you but they would have to be based upon and informed by the evidence that has been presented to you i do okay so that red circle evidence the red circle is is evidence that's been presented to you and and will be part of the record because it was it was shown to you but you know as far as unknown information uh that unknown information or supposition is not evidence before we will we will meet tomorrow to discuss the last debate and so i this is the applicant's opportunity to make a suggestion in that regard if they think it would be helpful um i think we should discuss that you know the engineers are here i'll have to talk to the owner the ownership and see you know um not sure what would be feasible but there might be something feasible i i totally understand where you're going and i will commit to you to explore that i i think just kind of following on with that it the law does not require a winner-take-all right type of situation and and uh so bearing that in mind that that i think the question is is probably very valid because as things stand right now for the applicant to gain any relief they would require six of you to agree that they're entitled to it right but also again coming from b and c experience you have to be specific you have to state you have to clearly state what it is you have in an engineering sense what the materials are what the height's going to be how thick it is and i don't know how in this short in the next 24 hours again miss lee yes i was just going to say five years ago you would have had no problem because we banned it and i feel sorry that you do have this problem at all because you would not have had that we have changed our ordinances uh one question for the city and i said you don't want to testify as a witness i don't know when did the city decide that the project was complete i'm sorry kind of go back that question could be taken two different ways are you asking when was the project completed or are you asking when the city came to the realization that the project had been completed in the past i i yes so uh the second and the first uh because you know the first was when did the city decide that it was complete like when did the city make the determination as of today we recognize that it's complete was that before or after we've had these other home permits put on there is this a recent we have these emails is this you know in september we said that that's when they and did you look did you go back and then backdate that and say hey this was actually completed in 2001 or whatever so yes when did they just when did the city make that decision and what day did they when did they decide that the project actually was completed you know i i think that you could go ahead and testify with that richer i mean the simple question simple answer is what we got a formal application that's when the determination was made when it was looked at building permit but but i i want to i want to bring up something because the slide here the the original permit that was issued this was something that we have not looked at we did not have that as part of the original application but it but it brings up an interesting an interesting point if you look at chapter 32 of the debt and code ordinances which governs mobile home parks and rv parks going back to that that 81 sup approval one of the conditions of that approval was that the park be developed in in accordance with those standards so if you look at those standards again we still assert the project is complete but if you look at those standards there's a there's a certain requirement certain number of requirements one of those being a plot plan is required and the plot plan must show 32-39 the plot plan shall be filed as required and shall show the following the number of location and size of all mobile homes and recreation vehicle stands and so again i i have not seen that this initial license or the plot plan that's associated with again the license was shown tonight on the slide but again i would assume again maybe that's not safe to do but if we issued a permit based upon the number of stands that were required to be shown on the plot plan it's my guess that that maximum was 76 what's also interesting is again depending where where the board decides one of the ironically one of the items that you do vest in is open space requirements under 245 this section of the code chapter 32 required a minimum of one acre a max at least eight percent of the gross site area which on this when it was initially approved would be approximately 1.01 acres of open space i think the area that's that's vacant now you know taking out the the right of way just a quick take off is is approximately 2.7 acres is what i came up with and so i i bring that up in the fact that if it is found that we aired and they are vested that vesting would still be in those those standards that would apply if that makes any sense meaning that those open space standards so they they still may not be able to get to that 100 stand mark sort of kind of were dairy's example related to the parking lot you just because it was approved by the sqp doesn't necessarily mean you're able to get all of that they were still required to comply with all the standards contained in that and i just want to make sure that that i don't know if i mentioned this when i first spoke but i i did want to make sure that that i had both the presentation entered in into well really all the exhibits one through six from the backup it entered into the record exhibit seven being the powerpoint exhibit eight definitions that i read and then exhibit nine chapter 32 the current version that's that's on unity code now of the code ordinance that answered any additional questions thank you this is a public hearing is there anyone who would be compelled to speak anything we'd like to add that hasn't been discussed already so i believe at this point i closed the public hearing it's all right so we can deliberate it's now 707 look i'm sorry pardon me yeah sorry deliberate today or deliberate i don't know what i'm closing public hearing 707 so yeah one thing to say i just want to make sure of it sure i'm new to this too so new rule so what happens now do we go do we deliberate now and then come back and just raise our hands tomorrow that we're out of here or do we deliberate tomorrow i feel like there's more more information that we need specifically the specific timeline and the the the lot numbers that were mentioned you know where where are those um so i feel like we need a little more information obviously before we can go anyway which we can't do until tomorrow but are there any other i guess outstanding questions or concerns for staff or the applicant so when we come back tomorrow we have everything we need if we're going to get more information from the applicant i would like to see the suggestion as to how this could be mitigated through some kind of error okay in order to vote tomorrow would we want to set a time limit like saying to receive this information so that we have some other candidate i'm down on that but i don't know what's reasonable that's you know whatever the posting for tomorrow does not really appear to include taking additional evidence and testimony it appears to contemplate that a decision will be made and given that it doesn't it talks about a public meeting but not a public hearing okay and and so there's no mechanism to receive evidence within tomorrow's posting if the board of adjustment believes well first of all one the board of adjustment has to make determination on the evidence available to it there are sometimes in life when there's not enough evidence to overturn a decision and and and that's what's being asked is to overturn a decision as first of all second of all you know if if the board does decide that more information is necessary and it's going to have to be taken under some other posting other than the one that's set for tomorrow because tomorrow's posting which cannot be changed at this point in time and still afford you 72 hours advance notice to the public that that could not be done tomorrow you could perhaps you know ask if the applicant as as the the impellent with the burden of proof you know has additional information to submit to you today in terms of like say Mr. Higgins' proposal for some some mitigating measures that that that might work for them if you wanted to reopen the the hearing to allow for that additional testimony perhaps you could do that you know so i i i think you've you've you've basically got three options right now you could act on the basis of the evidence you have and and ask yourself whether that the the burden has been met to reverse the decision of staff and and and act on that tomorrow the other options would be to ask for the the public hearing to be continued to another date certain for you to receive additional testimony and act on that at yet another date after their after and and or you know to see if you wanted to reopen the hearing for today only and and see if you have to bring additional testimony one question is this a body that can receive cards in public meetings i know public hearing anyone can show up with or without you know there was a Cynthia there was a recent amendment on that wasn't there as far as you can i i don't know if it could be done by cards i believe it's by testimony is that correct i'm not sure the question a public hearing if you attend for example city council you wouldn't have to fill out a card at all but after everybody speaks if you wish to speak you can a public meeting however you can speak on items that are on the agenda if you file a card i don't know if our body functions the same manner this this body does not function in the same manner okay at all this would be an issue of you know if the question is can members of the public offer testimony in a public hearing i believe that there was a recent legislative change that does allow certain members of the public to to be heard during a zba hearing under certain circumstances we'd have we'd have to find that and and and look at that with a real razor's edge in response to a very specific question but uh you know i i i don't think it's one where i don't believe testimony could be given by members of the by a by a card and that that card of this is this isn't a matter of voting you know for who's in favor or is it supported right in other words so i guess i'm of the opinion that i i would like to make a decision on this tomorrow the reason being to your first point is um i i don't know if sufficient evidence was um or if all the evidence was produced to overturn uh the staff's decision yes there were a list of of lots that were included since 2002 but they could have been anywhere on that property and my my hunch is that given the scrutiny that every gas well permit gets in st. denton over the last 10 years that we've lived here trying to pass an ordinance that works for both gas well operators and surface owners my hunch is that that was that would have been caught by the planning department so my i feel like we have the information we we need to make a decision tomorrow but i am only one person on a six-member board and so i don't know if you all would like to postpone have another public hearing so that we can continue to hear testimony or the only sticking issue to that is that the city's position addressed on one of these five or six and six conditions that whether the project is dormant or not and seeing that additional information would allow us to make a better determination if we agree with the issue of dormance sure that's the only thing i absolutely hang on is it your contention that the project's dormant because i don't believe it's the city's contention that the project's oh i'm sorry i may have stated that long the city says it's complete okay yeah sorry the city says it's complete and the position of the property owners that you know it's an ongoing phase development right and so and so the issue of completeness if we saw that the city was continuing to approve new pad sites and it's ongoing right well i don't think that that's uh you know i certainly don't think that that's correct according to the law i think that the the project can be complete uh like for example you know if you know you might have a residential subdivision that you can go back to your parking lot analogy or you can do that if you want to but say let's say that it was a a single family subdivision i mean the plat gets approved the public infrastructure is put into place uh the the plat's recorded uh you know but maybe not all the houses are built yet uh you know is is is the subdivision complete it is the it is the development complete uh even though a builder may put a house on an empty at some point in the future we have subdivisions all over town where they have empty lots i hate to be a sticker i know i'm probably out of order but since the public hearing is closed mr drake is going to testify as a fact witness i'm not i'm not just i'm giving and uh a position that's based on law uh and certainly i'll be happy to disclaim any kind of testimony uh because i don't think i've offered any facts uh from this case uh if you disagree i mean i'll be happy to revisit and disabuse any any statements you think was factual related to this case i think it seems to me it's time you know the board did deliberate well and that's what we're trying to determine because the rules have changed this would be the time that we would normally deliberate but i think we've deliberate tomorrow so we're trying to figure out do we deliberate tomorrow or in 72 hours i don't see why we can't deliberate tonight and we can't vote tonight so yeah if we have questions that we want to talk to each other i think we're fine with that and again tomorrow sure yeah i i've got an obligation to advise the board on legal issues so we can deliberate tonight does that like i just i've this is a new thing and so i don't yeah it is a new thing it's new for all of us and it's new for me uh to be realized we can deliberate tonight and we can deliberate tomorrow the decision comes tomorrow yes no do we go home and deliberate tomorrow well i want to make sure that uh posting for tomorrow i just didn't call the public meeting and issue a decision regarding an appeal of an administrative decision regarding vested rights related to the applicability of gas well reverse setback and separation distance requirements to a mobile home park the subject property is approximately i have it right here cynthia what what your thought yeah i and richard you gave as as well i i don't see anything that would prohibit the commission from deliberating i think you can deliberate tonight on the basis of this posting uh the the only the only limitation is that you have to come to your decision tomorrow that's so weird it is well can i can backtrack to one of our other options if we did go down the avenue of postponing what are the parameters for that to set another hearing it would be to continue a the public hearing to some date in the future a date certain and receive testimony on that date as well and then you would also have to find another time when the same six commissioners who heard this evidence could reach a decision on the case that would be to allow them to bring back the additional evidence that we originally requested that we're not going to hear tonight is that correct if you were to do that you you would be continuing it to to receive additional evidence if you feel that that is appropriate here but it will require setting another date for you to reach a decision and i i think you're going to have to have the same commissioners to cite the appeal who heard the evidence i'm sure if i may just ask for just for clarification item um because i know there's a lot of additional information that was presented this evening and additional information that's being requested i just want to make sure i understand correctly again we we issued a vested rights determination based on what was submitted as part of exhibit one that was the information that we had that we based our decision off of i know there's been additional information brought uh as part of the presentation and discussed so i just want to make sure that there's additional information that's being requested again that was not part of the record that we had submitted that was the basis for this appeal i just wanted to point that out that's a good point as well so it may it may be in the applicant's interest to postpone rather than force a decision now well i i think that that legally mr canoni's point is that the the the appeal is based upon the information that was known to staff and known to the applicant and and and so that determination was made by the city manager and and he issued a letter on that basis to receive additional information outside of what was considered in the context of that appeal uh you know maybe contrary to the process itself are we saying that the city only looks at what was handed in a packet to them they don't look at their permits or any of the anything that they've done no sir only look on that so no sir what i'm saying what we're asking for is city information right we're asking for their behavior issuing permits what have you so we're not asking for information outside of the city access the city had access to make their decision understood that and that's that's a valid point as well uh you know i think the point that mr canoni raised is that uh if this additional information was not part of the the initial staff determination and so uh i think the argument would be uh if i'm saying this right mr canoni that the um the the the determination that's being appealed was not informed by this additional evidence and so it might be a different staff determination uh with additional evidence from the applicant or from other sources whether it's the city's information or whoever's uh who's ever uh information it is uh it may it that may result in a different staff determination that is subject to appeal before so but i just i just i want to make sure i'm accurate i want to make sure i'm hearing you right correct so what i hear you saying is the city could have maybe not done a thorough job but because they chose not to do a thorough job and your your analogy use an analogy the city chooses not to do a thorough job and they come with a decision we have to be we have to make a decision based off of a non-thorough and not using all the resources did i hear that correct no not for me uh you know i i i would i did not say the city didn't do a job no no i didn't say the city did what i'm saying is what i heard you saying is if yeah if the city chooses not to do a thorough job in any case all right and so we have to in that decision is appealed based off of a non-thorough job 50 data use we can only look at that 50 in the appeal and not the other i i think that it is the appellate's responsibility to bring forward evidence showing that the city's decision was in error that that that's the burden of proof when you bring an appeal is is the burden of proof is upon you as an appellant to show that a prior decision was erroneous and and here is the evidence that shows that would it be okay if i ask a question uh i asked a factual question it's actually for you i think you could make a legal argument if that's fair uh well my really my question is what i think i interpret you as saying is that with additional information we can ask for another vested rights determination and see where that goes and in the meantime maybe this proceeding would be held over while that goes on and then we come back see where we are that's an interesting point because i i don't think that there's anything that that limits uh you know how many times an appeal of a staff of different staff determination you brought in other words the fact that you appealed this staff determination does not uh to my knowledge anyway prohibit anyone from appealing a subsequent staff determination if if that makes sense what is what is your position on that i mean you agree or disagree there i have no reason to disagree okay based on your discussions sounded like i think everybody in the room is that there's more information out there that would be beneficial just trying to see how how do we best take that in so is it being suggested that this particular appeal be withdrawn and a new one submitted i did suggest that is that kind of what you're suggesting yeah go ahead you meet me oh she just in other words rather than deliberate and decide on what we have that's allow them to redo it that's not for me to say or comment on i don't think that's i think that's outside my scope i believe this appeal is under this commission's authority and jurisdiction now okay i don't think that anybody can take away that jurisdiction others in the commission itself so we we are to determine the outcome of this they couldn't they couldn't reapply is that what you're saying with new evidence the new evidence is being presented here and now we decide on this the commission will need to decide this appeal that's under its jurisdiction on the basis of on the basis of the evidence before whether the commission decides to continue the public hearing for additional information is a matter for the commission to decide however mr kanoni's point is that if you're asking for information that was not considered by the staff in reaching his decision by the appellant in appealing the decision and by the city manager in initially ruling on that appeal i believe his point is that that that would not be appropriate with respect to this so we heard the evidence tonight yes so if we opened the public hearing if we had another public hearing would that that would be out of order i think that that would be out of order because because that's not what they considered they would have to he has to reapply and then possibly reappeal okay so in other words we're coming back tomorrow to make a decision right because the city's review of it was layer one and ours is layer two okay so if there's a bunch of new evidence brought in we'd need to go back to layer one is the idea if i may i just want to sort of reaffirm a statement that i had made previously we reviewed it based upon what was submitted that's provided i believe that's exhibit one in the as part of the staff report what we did not review it as for compliance however however the board decides to vote if the board decides to say yes they are they are vested what we did not do is look at it for compliance with what they would have been vested in so that that has not been done um and there's a dish there's a number of requirements there's a 5 000 square foot minimum i think for each pad say there's a there's a multitude of standards that would would apply that we have not we have not uh we did not do and the families have an opportunity to respond with all this so i i guess then if i understand there's so much legal talk in here so if i understand this correctly then we're where we would be out of order to have another public hearing but we can come back tomorrow to continue to deliberate and make a decision based on what we heard tonight is that correct okay and not accept new information not okay so where those lot numbers are and the exact timeline that would be information that we would have been very helpful for us to make a determination tonight it was not presented and so therefore we are tasked tomorrow with making a decision based on what was presented tonight is that we all got that much at least good job okay um is there are there any other points that need to be i feel like when we're deliberating whether or not we could continue to deliberate and i think that's we've we've determined that is there anything else that's like just you're burning the itch to say like tonight you should be out we've done and we'll come back tomorrow just one thing i think public meeting means we can talk yes absolutely before we both right yes will guys be here tomorrow if we have questions for them tomorrow or no well i will we do that's taking testimony yeah that's taking testimony which is not posted for you to take testimony receive that right so just us tomorrow okay and they can be here we just can't talk on either side right right so we can't we can't have more questions of staff or the applicants one i think that that's true i think that uh you know to the extent that you wanted to ask about procedures or or the law you know something that is not evidence in this particular case if you want to say you know how does this ordinance work or how does this provision of the of the ddc work or or ask about that that's not evidence that's directly relevant to this appeal i i have one more question to to them before we leave tonight can i ask that the public hearing be reopened for that oh sure absolutely yeah i'll reopen the public hearing now instead of 34 miss meissner has a question for the applicant so i'll wait for you to get up to the podium so in your process uh were you aware of the new denton city code development codes in in regards to the gaswell setbacks and reverse setbacks when they came about when those were adopted yes uh no i'm only become aware of those in the course of work known as very specific manner okay i work in cities all over north oasis so i haven't done anything was the owner aware i can't answer the question so okay i won't speculate further on that you answered my question thank you close the public hearing again now one minute later 7.35 thank you thank you how y'all doing my brain is mushed it was a lot of information um are there any other this is your chance any other questions for staff or the applicant before we come back to our meeting why is it necessary to come back we're not going to have new information it's weird it's so weird but yes yeah yeah are we good okay um i have so many papers uh i don't know where my agenda is thank you is that it okay all right so with that we're moving on so that was item 4a we're moving on to item five are there any concluding items uh that we would like to mention for the public record any questions future discussions yes talk about earlier and this is changing the times for the meetings have a conversation about changing the time i am so feeling that yes there we go five five well the the special call meeting is set um yes absolutely well what i'll do is uh we'll reach out to y'all anything else no but 5 30 next semester i want to be able to get here before it's hard for me to get here before 5 32 i'm just an alternate so everybody we have to count i really like four let's debate right now yeah okay i think with that then uh we are going to wrap it up at 7 37 thank you everyone for your time tonight my goodness lulu you were amazing that the public record show that my daughter is an angel thank you everyone i'll see you tomorrow 5 30 formally have to have emotion to it sure don't you do not sure just say that's it that's it