1 00:00:00,000 --> 00:00:03,960 I'm lost with the papers, that means a lot, right? 2 00:00:03,960 --> 00:00:07,560 Good afternoon, the date is Monday, October 28th. 3 00:00:07,560 --> 00:00:12,720 The time is 448, and I'd like to welcome you 4 00:00:12,720 --> 00:00:17,060 to this Zoning Board of Adjustments meeting. 5 00:00:17,060 --> 00:00:20,240 Our first order of business is to sign both the US and Texas 6 00:00:20,240 --> 00:00:20,740 flags. 7 00:00:20,740 --> 00:00:29,960 I pledge allegiance to the flag of the United States of America 8 00:00:29,960 --> 00:00:34,880 and to the Republic for which it stands, one nation under God, 9 00:00:34,880 --> 00:00:39,280 indivisible, with liberty and justice for all. 10 00:00:39,280 --> 00:00:41,040 I'll honor the Texas flag. 11 00:00:41,040 --> 00:00:43,720 I pledge allegiance to the United States of America, Texas, 12 00:00:43,720 --> 00:00:47,820 one state under God, one and indivisible. 13 00:00:47,820 --> 00:00:50,920 Thank you. 14 00:00:50,920 --> 00:00:54,360 The first item of our business is item 2A, 15 00:00:54,360 --> 00:00:59,320 considered approval of the minutes, September 30th, 2019. 16 00:00:59,320 --> 00:01:01,320 Is there any discussion about minutes? 17 00:01:01,320 --> 00:01:03,320 We move to approve Mr. Higgins. 18 00:01:03,320 --> 00:01:03,820 Second. 19 00:01:03,820 --> 00:01:05,000 And a second from Ms. Lane. 20 00:01:05,000 --> 00:01:06,920 Is there any discussion or corrections 21 00:01:06,920 --> 00:01:09,800 to be made to the minutes before we proceed? 22 00:01:09,800 --> 00:01:14,440 All right, seeing none, let's vote. 23 00:01:14,440 --> 00:01:17,880 All in favor, raise your hand. 24 00:01:17,880 --> 00:01:19,920 Any opposed? 25 00:01:19,920 --> 00:01:21,720 And any abstained? 26 00:01:21,720 --> 00:01:25,640 So all in our favor, thank you very much. 27 00:01:25,640 --> 00:01:29,040 The next item is to be received, the 2019 Zoning Board 28 00:01:29,040 --> 00:01:31,520 Adjustment Calendar. 29 00:01:31,520 --> 00:01:33,660 Yes. 30 00:01:33,660 --> 00:01:37,920 This is, again, for the 2020 calendar coming year. 31 00:01:37,920 --> 00:01:42,720 Calendar is shown on here that meetings 32 00:01:42,720 --> 00:01:45,160 are scheduled for the last Monday of every month. 33 00:01:45,160 --> 00:01:47,960 And you can see that there are some exceptions. 34 00:01:47,960 --> 00:01:52,560 Specifically, May is the only one I see that's the exception. 35 00:01:52,560 --> 00:01:56,360 But otherwise, it's the last Monday of each month, 36 00:01:56,360 --> 00:01:58,240 as we've done in previous years. 37 00:01:58,240 --> 00:02:01,800 So we will take any comments and put changes, 38 00:02:01,800 --> 00:02:04,760 if there's any, with regards to the calendar. 39 00:02:04,760 --> 00:02:08,880 Do you think you can get a quarter on December 28 40 00:02:08,880 --> 00:02:10,840 between Christmas and New Year's? 41 00:02:10,840 --> 00:02:12,360 Could we move that to the 21st? 42 00:02:12,360 --> 00:02:12,880 21st. 43 00:02:12,880 --> 00:02:14,720 Certainly, that's a good idea. 44 00:02:14,720 --> 00:02:15,520 We can do that. 45 00:02:15,520 --> 00:02:20,960 With December 14th? 46 00:02:20,960 --> 00:02:21,460 Yes. 47 00:02:21,460 --> 00:02:21,960 Is that-- 48 00:02:21,960 --> 00:02:23,240 That would be great. 49 00:02:23,240 --> 00:02:24,240 14th would be better. 50 00:02:24,240 --> 00:02:24,760 Better. 51 00:02:24,760 --> 00:02:25,260 Better. 52 00:02:25,260 --> 00:02:25,760 OK. 53 00:02:25,760 --> 00:02:27,720 I think we can make that exception, especially 54 00:02:27,720 --> 00:02:31,260 during that part of the holidays. 55 00:02:31,260 --> 00:02:34,120 Any other changes, corrections, input? 56 00:02:34,120 --> 00:02:44,160 And we can always-- sometimes there's a special call. 57 00:02:44,160 --> 00:02:45,000 Certainly. 58 00:02:45,000 --> 00:02:46,800 It's not reflected in this calendar, 59 00:02:46,800 --> 00:02:48,840 but that's certainly an option as well. 60 00:02:48,840 --> 00:02:52,320 All right. 61 00:02:52,320 --> 00:02:53,280 Moving on. 62 00:02:53,280 --> 00:02:54,480 I'm sorry to break it up. 63 00:02:54,480 --> 00:02:55,080 Just we need a-- 64 00:02:55,080 --> 00:02:55,600 Yep. 65 00:02:55,600 --> 00:02:56,920 Or do we have to vote on that? 66 00:02:56,920 --> 00:02:57,560 Oh, we're voting. 67 00:02:57,560 --> 00:02:58,240 I'll take it. 68 00:02:58,240 --> 00:02:59,320 OK. 69 00:02:59,320 --> 00:02:59,980 OK. 70 00:02:59,980 --> 00:03:00,480 So-- 71 00:03:00,480 --> 00:03:01,240 Motion? 72 00:03:01,240 --> 00:03:04,040 So the only change-- the only correction then, 73 00:03:04,040 --> 00:03:06,440 just for the record, to the calendar 74 00:03:06,440 --> 00:03:10,880 is changing the December 28th meeting to December 14th. 75 00:03:10,880 --> 00:03:12,920 Otherwise, the calendar is pretty much 76 00:03:12,920 --> 00:03:14,160 rolling in favor of this. 77 00:03:14,160 --> 00:03:16,600 So I guess we'll vote on this calendar all in favor. 78 00:03:16,600 --> 00:03:17,100 Oh, sorry. 79 00:03:17,100 --> 00:03:17,600 Pardon me. 80 00:03:17,600 --> 00:03:18,880 We need a first and a second. 81 00:03:18,880 --> 00:03:19,380 Pardon me. 82 00:03:19,380 --> 00:03:21,360 Is that for this year or for the 2020? 83 00:03:21,360 --> 00:03:22,240 That's for 2020. 84 00:03:22,240 --> 00:03:22,740 Oh, OK. 85 00:03:22,740 --> 00:03:25,680 I was hoping this year, but-- 86 00:03:25,680 --> 00:03:26,320 Sure. 87 00:03:26,320 --> 00:03:27,120 Yes. 88 00:03:27,120 --> 00:03:28,640 Do we have a motion to approve? 89 00:03:28,640 --> 00:03:32,120 A motion from Ms. Seaborn and a second? 90 00:03:32,120 --> 00:03:33,600 And a second from Ms. Lane. 91 00:03:33,600 --> 00:03:35,840 All in favor? 92 00:03:35,840 --> 00:03:37,720 Any opposed? 93 00:03:37,720 --> 00:03:38,680 And any abstained? 94 00:03:38,680 --> 00:03:42,440 So that, again, all passes unanimously. 95 00:03:42,440 --> 00:03:46,920 [INAUDIBLE] 96 00:03:46,920 --> 00:03:50,600 And then the next item is to see-- receive a briefing 97 00:03:50,600 --> 00:03:52,840 and discussion of limitations and authority 98 00:03:52,840 --> 00:03:54,380 of the Board of Adjustment and Hearing 99 00:03:54,380 --> 00:03:56,640 and willing upon Mary's request and appeals 100 00:03:56,640 --> 00:03:57,960 of administrative decisions. 101 00:03:57,960 --> 00:03:59,360 Who is presenting this? 102 00:03:59,360 --> 00:04:00,120 That's me. 103 00:04:00,120 --> 00:04:03,040 And if it's OK with the commission, 104 00:04:03,040 --> 00:04:07,680 may I present this position here rather than going to the lecture? 105 00:04:07,680 --> 00:04:08,960 Absolutely. 106 00:04:08,960 --> 00:04:09,460 OK. 107 00:04:09,460 --> 00:04:13,280 Good evening. 108 00:04:13,280 --> 00:04:14,460 My name is Jerry Drake. 109 00:04:14,460 --> 00:04:16,000 I'm with the city attorney's office. 110 00:04:16,000 --> 00:04:18,640 And one of the reasons why I asked for this item 111 00:04:18,640 --> 00:04:21,360 to be placed on the agenda is that I 112 00:04:21,360 --> 00:04:25,440 understood that we had several new members of the Board 113 00:04:25,440 --> 00:04:26,800 of Adjustment. 114 00:04:26,800 --> 00:04:31,560 And I wanted to go through a briefing similar to the one 115 00:04:31,560 --> 00:04:36,360 we had a couple of meetings ago to go 116 00:04:36,360 --> 00:04:39,720 over the role of the Board of Adjustment 117 00:04:39,720 --> 00:04:43,920 in hearing the various matters that come forward 118 00:04:43,920 --> 00:04:46,520 for your consideration. 119 00:04:46,520 --> 00:04:51,760 And I don't know what your experience level is, 120 00:04:51,760 --> 00:04:56,040 if this is a new experience for some of you, the Board of Adjustment 121 00:04:56,040 --> 00:05:01,480 is a rather unique board with the city. 122 00:05:01,480 --> 00:05:05,400 Because it essentially has a quasi-judicial function. 123 00:05:05,400 --> 00:05:08,360 It's not a political board. 124 00:05:08,360 --> 00:05:11,560 It's not a recommending body. 125 00:05:11,560 --> 00:05:16,240 It's not a board that sets policy or anything 126 00:05:16,240 --> 00:05:17,720 of that nature. 127 00:05:17,720 --> 00:05:22,800 Its function is to review the decisions of staff 128 00:05:22,800 --> 00:05:27,840 and to consider variances to various rules that 129 00:05:27,840 --> 00:05:30,800 are put into place by ordinance that are code. 130 00:05:30,800 --> 00:05:37,760 And to grant relief where necessary to avoid 131 00:05:37,760 --> 00:05:40,680 constitutional problems with district 132 00:05:40,680 --> 00:05:45,760 enforcement of the ordinances as written. 133 00:05:45,760 --> 00:05:50,560 And in the case of an appeal of an administrative decision, 134 00:05:50,560 --> 00:05:53,480 to review the decision that was made 135 00:05:53,480 --> 00:05:59,880 by staff for consistency with the law 136 00:05:59,880 --> 00:06:05,120 as expressed in the code ordinances and in state law. 137 00:06:05,120 --> 00:06:07,040 And so with that in mind, you're going 138 00:06:07,040 --> 00:06:09,800 to have to be briefed on what the law is. 139 00:06:09,800 --> 00:06:12,560 And so that's part of what I'm wanting to do here, 140 00:06:12,560 --> 00:06:15,880 is to let you know what the law is 141 00:06:15,880 --> 00:06:19,880 so that you can go through and know where to find it. 142 00:06:19,880 --> 00:06:24,160 Fortunately, most of the matters that you're going to deal with 143 00:06:24,160 --> 00:06:26,640 are going to be in a few sections of the Dental 144 00:06:26,640 --> 00:06:28,400 Development Code. 145 00:06:28,400 --> 00:06:35,360 And so I attempted to copy those into this briefing document 146 00:06:35,360 --> 00:06:38,960 that was set out to you in advance. 147 00:06:38,960 --> 00:06:41,280 As I looked at it, I saw where there 148 00:06:41,280 --> 00:06:47,600 were some errors that came out when it was printed off, 149 00:06:47,600 --> 00:06:58,360 starting at about page 8 and going through to about page 14 150 00:06:58,360 --> 00:07:00,880 or so. 151 00:07:00,880 --> 00:07:02,520 There are a few places where it says, 152 00:07:02,520 --> 00:07:05,200 error reference source not found. 153 00:07:05,200 --> 00:07:07,080 And I think what must have happened 154 00:07:07,080 --> 00:07:11,040 was that I copied this from a Word version of the Dental 155 00:07:11,040 --> 00:07:14,360 Development Code that was approved this year. 156 00:07:14,360 --> 00:07:17,560 And I think that it had some hyperlinks in there 157 00:07:17,560 --> 00:07:21,560 that as I cut and pasted into the Word document, 158 00:07:21,560 --> 00:07:26,080 some of the references didn't carry over with it. 159 00:07:26,080 --> 00:07:28,720 It looked fine when I put the paper together 160 00:07:28,720 --> 00:07:32,000 and when I attached it to an email over 161 00:07:32,000 --> 00:07:34,840 to our friends in the Planning Department. 162 00:07:34,840 --> 00:07:41,040 But somehow in the reproduction, something went awry. 163 00:07:41,040 --> 00:07:47,400 So I'm going to go through and just call out 164 00:07:47,400 --> 00:07:51,040 to you those section numbers that are missing 165 00:07:51,040 --> 00:07:52,160 that I'm aware of. 166 00:07:52,160 --> 00:07:55,120 But certainly, if there's any doubt, 167 00:07:55,120 --> 00:07:56,560 I hope that each of you have been 168 00:07:56,560 --> 00:07:58,680 given a copy of the Dental Development Code 169 00:07:58,680 --> 00:07:59,920 that you can refer to. 170 00:07:59,920 --> 00:08:01,520 And if there's any questions about it, 171 00:08:01,520 --> 00:08:04,160 you can refer to it. 172 00:08:04,160 --> 00:08:10,640 Starting out on this first page of this Legal Orientation Guide, 173 00:08:10,640 --> 00:08:12,480 we start with the statutes. 174 00:08:12,480 --> 00:08:16,640 And those come from the Texas Local Government Code. 175 00:08:16,640 --> 00:08:24,600 And this first section 211.008 speaks in general terms 176 00:08:24,600 --> 00:08:26,440 about the Board of Adjustment. 177 00:08:26,440 --> 00:08:27,880 And it allows for the appointment 178 00:08:27,880 --> 00:08:28,920 of a Board of Adjustment. 179 00:08:28,920 --> 00:08:32,000 Oddly enough, it's not a requirement of state law 180 00:08:32,000 --> 00:08:37,400 to have a Board of Adjustment, but it does allow for it. 181 00:08:37,400 --> 00:08:40,240 And it provides that if we do have a Board of Adjustment, 182 00:08:40,240 --> 00:08:42,280 we've got to have at least five members. 183 00:08:42,280 --> 00:08:47,160 And the idea being that the legislature doesn't 184 00:08:47,160 --> 00:08:49,880 know how big our city council is or how small it is, 185 00:08:49,880 --> 00:08:52,440 but it's got to be at least five members. 186 00:08:52,440 --> 00:08:55,280 And the idea is that each council member 187 00:08:55,280 --> 00:08:56,600 has an appointment. 188 00:08:56,600 --> 00:09:06,320 And the thought is that they want at least 75% 189 00:09:06,320 --> 00:09:11,400 of the members that have been appointed to hear a case. 190 00:09:11,400 --> 00:09:17,600 And sometimes, what do you do if one or two can't make it? 191 00:09:17,600 --> 00:09:19,880 Depending on how big your Board of Adjustment is, 192 00:09:19,880 --> 00:09:22,040 you may not have a court. 193 00:09:22,040 --> 00:09:24,680 And so the law also allows for the appointment 194 00:09:24,680 --> 00:09:28,960 of alternate Board members to fill in for the regular Board 195 00:09:28,960 --> 00:09:30,240 members. 196 00:09:30,240 --> 00:09:35,000 And so with that in mind, a quorum 197 00:09:35,000 --> 00:09:40,560 is stated in the statute as 75% of the members. 198 00:09:40,560 --> 00:09:43,160 Well, to simplify things a little bit, 199 00:09:43,160 --> 00:09:50,480 we've come upon that that's six, because there's seven members. 200 00:09:50,480 --> 00:09:52,560 Six out of seven is 85%. 201 00:09:52,560 --> 00:09:54,840 Five out of seven is 71%. 202 00:09:54,840 --> 00:09:57,480 It's not quite enough to make 75%. 203 00:09:57,480 --> 00:10:03,320 So the easy rule is six members. 204 00:10:03,320 --> 00:10:08,040 And as far as what the authority of the Board, page 2, 205 00:10:08,040 --> 00:10:13,080 sets out to hear and decide appeal that alleges an error, 206 00:10:13,080 --> 00:10:14,840 hear and decide special exceptions 207 00:10:14,840 --> 00:10:16,760 to the terms of the zoning ordinance, 208 00:10:16,760 --> 00:10:19,280 to authorize in specific cases of variance 209 00:10:19,280 --> 00:10:22,400 the terms of a zoning ordinance, hear other matters 210 00:10:22,400 --> 00:10:26,160 authorized by ordinance adopted under this subchapter. 211 00:10:26,160 --> 00:10:30,200 And then in item C, it provides the concurring vote 212 00:10:30,200 --> 00:10:33,600 as 75% of the Board is necessary to reverse 213 00:10:33,600 --> 00:10:36,000 an order requirement, decision, or determination 214 00:10:36,000 --> 00:10:38,880 of an administrative official to decide 215 00:10:38,880 --> 00:10:42,360 in favor of an applicant on a matter in which the Board is 216 00:10:42,360 --> 00:10:45,160 required to pass under a zoning ordinance 217 00:10:45,160 --> 00:10:48,440 or to authorize a variation from the terms of the zoning 218 00:10:48,440 --> 00:10:49,440 ordinance. 219 00:10:49,440 --> 00:10:54,520 Again, 75% of the members, there are seven members. 220 00:10:54,520 --> 00:10:58,000 And so that requires six votes. 221 00:10:58,000 --> 00:11:04,920 And alternates could fill in for the gaps as necessary. 222 00:11:04,920 --> 00:11:10,160 211.010 talks about procedures for an appeal to the Board. 223 00:11:10,160 --> 00:11:16,600 There is a new section, A-1, that the legislature inserted 224 00:11:16,600 --> 00:11:19,920 as far as who could bring forward an appeal 225 00:11:19,920 --> 00:11:21,680 to the Board of Adjustment. 226 00:11:21,680 --> 00:11:25,320 And it's got some new provisions in there as well. 227 00:11:25,320 --> 00:11:28,080 But in basic terms, a person who's 228 00:11:28,080 --> 00:11:30,560 agreed by the decision, an officer, 229 00:11:30,560 --> 00:11:33,160 Department of the Board, a bureau, a municipality 230 00:11:33,160 --> 00:11:34,640 affected by the decision. 231 00:11:34,640 --> 00:11:37,360 So the city can actually bring forward 232 00:11:37,360 --> 00:11:40,360 a matter to the Board of Adjustment if it wants to. 233 00:11:40,360 --> 00:11:43,360 And then A-1 adds to the people who 234 00:11:43,360 --> 00:11:46,520 can bring an appeal to the Board of Adjustment. 235 00:11:46,520 --> 00:11:51,640 If you have somebody who works for a different department, 236 00:11:51,640 --> 00:11:53,680 doesn't like the way that one department has 237 00:11:53,680 --> 00:11:55,920 ruled on an issue, theoretically, 238 00:11:55,920 --> 00:11:57,520 they could bring forward an action 239 00:11:57,520 --> 00:11:58,840 at the Board of Adjustment. 240 00:11:58,840 --> 00:11:59,560 Jerry? 241 00:11:59,560 --> 00:12:00,040 Yes, sir? 242 00:12:00,040 --> 00:12:01,400 Is there a legal definition for-- 243 00:12:01,400 --> 00:12:02,680 The Board of-- sorry, the Board of-- 244 00:12:02,680 --> 00:12:05,200 do I have to recognize him for the record? 245 00:12:05,200 --> 00:12:09,880 I think the point is to allow the microphones to pick it up. 246 00:12:09,880 --> 00:12:13,640 But as far as procedurals-- 247 00:12:13,640 --> 00:12:17,440 Yes, the chair recommends Mr. Higgins. 248 00:12:17,440 --> 00:12:19,640 I'm just wondering if there's a legal definition 249 00:12:19,640 --> 00:12:23,880 to a grieved or somebody could just say, I don't like it. 250 00:12:23,880 --> 00:12:28,280 Yeah, I don't know that I've seen one. 251 00:12:28,280 --> 00:12:29,240 I haven't looked at it. 252 00:12:29,240 --> 00:12:33,520 But I can look and see if I can find that and report back 253 00:12:33,520 --> 00:12:37,360 to you at our next regular meeting. 254 00:12:37,360 --> 00:12:41,040 I would assume it would be somebody who simply 255 00:12:41,040 --> 00:12:43,080 disagrees with it. 256 00:12:43,080 --> 00:12:46,240 But that's a good question, because you 257 00:12:46,240 --> 00:12:50,480 have to suffer some kind of specific harm. 258 00:12:50,480 --> 00:12:53,120 Or you just don't like it, theoretically. 259 00:12:53,120 --> 00:12:55,320 And that's something I'm going to have to look into. 260 00:12:55,320 --> 00:13:00,680 Let's see. 261 00:13:00,680 --> 00:13:05,840 As far as a decision made by an administrative official that 262 00:13:05,840 --> 00:13:08,120 is not related to a specific application 263 00:13:08,120 --> 00:13:13,440 address or project, it seems to suggest 264 00:13:13,440 --> 00:13:16,840 that if it's not related to a specific application, 265 00:13:16,840 --> 00:13:19,520 that a grieve could be theoretical. 266 00:13:19,520 --> 00:13:20,320 But I don't know. 267 00:13:20,320 --> 00:13:21,160 I'll have to look. 268 00:13:21,160 --> 00:13:27,280 Also included are the persons who 269 00:13:27,280 --> 00:13:29,640 file the application subject to the decision, 270 00:13:29,640 --> 00:13:31,760 owner representative, the owner of the property 271 00:13:31,760 --> 00:13:35,560 that is subject to the decision, a person who's 272 00:13:35,560 --> 00:13:38,680 aggrieved by the decision, and is the owner of real property 273 00:13:38,680 --> 00:13:41,400 within 200 feet of the property that 274 00:13:41,400 --> 00:13:45,200 is the subject of the decision, or any officer, department, 275 00:13:45,200 --> 00:13:46,920 board, or bureau of the municipality 276 00:13:46,920 --> 00:13:49,920 affected by the decision. 277 00:13:49,920 --> 00:13:54,040 There's some requirements in there for timeliness of filing 278 00:13:54,040 --> 00:13:59,440 and how the application must be made for appeal. 279 00:13:59,440 --> 00:14:04,200 211.011 on page 3 talks about judicial review 280 00:14:04,200 --> 00:14:05,760 of the board decision. 281 00:14:05,760 --> 00:14:08,040 I'm not going to go through all of that, 282 00:14:08,040 --> 00:14:09,520 because that's going to be something 283 00:14:09,520 --> 00:14:14,800 that's more of an abuse to the actual judge who's 284 00:14:14,800 --> 00:14:16,960 going to hear the appeal. 285 00:14:16,960 --> 00:14:19,760 It's not going to bear upon your decision here 286 00:14:19,760 --> 00:14:22,280 at the Board of Adjustment. 287 00:14:22,280 --> 00:14:25,600 But the idea is that-- 288 00:14:25,600 --> 00:14:29,680 and what I need to emphasize here is that your decisions, 289 00:14:29,680 --> 00:14:33,120 if the city council doesn't like your decision, 290 00:14:33,120 --> 00:14:34,880 that's too bad. 291 00:14:34,880 --> 00:14:36,640 There's no appeal to the city council, 292 00:14:36,640 --> 00:14:39,160 even though they are the governing 293 00:14:39,160 --> 00:14:41,800 body of the municipality. 294 00:14:41,800 --> 00:14:43,640 The idea of a Board of Adjustment 295 00:14:43,640 --> 00:14:48,160 is that the council sets what the rules are, 296 00:14:48,160 --> 00:14:51,280 what the law is, what the standards of the ordinances. 297 00:14:51,280 --> 00:14:53,880 And if somebody doesn't like that, 298 00:14:53,880 --> 00:14:57,200 they don't get to just challenge that because they don't like it. 299 00:14:57,200 --> 00:15:00,440 They get to challenge it because of some impact 300 00:15:00,440 --> 00:15:02,040 that it has on them. 301 00:15:02,040 --> 00:15:08,000 And you're deciding, is the application of the ordinance 302 00:15:08,000 --> 00:15:15,320 to their situation one that is untenable under the law? 303 00:15:15,320 --> 00:15:18,160 And is it confiscatory? 304 00:15:18,160 --> 00:15:21,720 Is it take away all of their property rights? 305 00:15:21,720 --> 00:15:23,640 Does relief need to be given? 306 00:15:23,640 --> 00:15:28,720 And so that's your role here with the Board of Adjustment. 307 00:15:28,720 --> 00:15:33,480 And any review of your decision-- 308 00:15:33,480 --> 00:15:38,600 because you've been given this discretion by the law. 309 00:15:38,600 --> 00:15:41,360 Any review of that has to be done by a judge. 310 00:15:41,360 --> 00:15:43,880 He's going to look at the evidence that 311 00:15:43,880 --> 00:15:45,800 was placed before you. 312 00:15:45,800 --> 00:15:47,480 That's going to be-- 313 00:15:47,480 --> 00:15:53,240 some of you may be surprised to see that people giving testimony 314 00:15:53,240 --> 00:15:57,840 are sworn in, that documents that you see 315 00:15:57,840 --> 00:16:01,640 are going to be numbered and put into evidence as exhibits. 316 00:16:01,640 --> 00:16:07,200 And the reason for that is that if there's an appeal, 317 00:16:07,200 --> 00:16:08,800 the judge is going to look at all that. 318 00:16:08,800 --> 00:16:13,160 He's going to see, did you have substantial evidence upon which 319 00:16:13,160 --> 00:16:14,440 to base your decision? 320 00:16:14,440 --> 00:16:16,040 If there's not substantial evidence 321 00:16:16,040 --> 00:16:20,000 to support your decision, then it's subject to being reversed. 322 00:16:20,000 --> 00:16:24,880 So it's not just a mere vote of preferences. 323 00:16:24,880 --> 00:16:29,520 It's an issue of, is there sufficient evidence 324 00:16:29,520 --> 00:16:31,160 to support your decision? 325 00:16:31,160 --> 00:16:34,800 And so that's very important. 326 00:16:34,800 --> 00:16:37,200 On page four, we've got a provision 327 00:16:37,200 --> 00:16:40,960 from the Denton Charter that provides 328 00:16:40,960 --> 00:16:44,440 that the Board of Adjustment is at least seven members. 329 00:16:44,440 --> 00:16:47,080 I guess if council member goes up to nine members, 330 00:16:47,080 --> 00:16:49,760 they can increase that to nine. 331 00:16:49,760 --> 00:16:51,640 But right now, the charter says it's 332 00:16:51,640 --> 00:16:54,640 got to be a minimum of seven. 333 00:16:54,640 --> 00:16:58,160 And right now, that's what it is, the seven members. 334 00:16:58,160 --> 00:17:03,720 And below the charter provision are some provisions 335 00:17:03,720 --> 00:17:06,960 from the 2019 DVC. 336 00:17:06,960 --> 00:17:11,400 And 281A, it talks about the process 337 00:17:11,400 --> 00:17:14,680 for gaining relief from the strict application of the DVC 338 00:17:14,680 --> 00:17:16,400 where literal enforcement of the DVC 339 00:17:16,400 --> 00:17:19,520 will result in an unnecessary hardship 340 00:17:19,520 --> 00:17:22,280 and where the variance is necessary to develop 341 00:17:22,280 --> 00:17:26,040 a specific parcel of land which cannot otherwise 342 00:17:26,040 --> 00:17:28,560 be developed in the same manner allowed 343 00:17:28,560 --> 00:17:32,720 for other similar parcels due to unique conditions 344 00:17:32,720 --> 00:17:33,400 on the property. 345 00:17:33,400 --> 00:17:34,520 Well, what would that be? 346 00:17:34,520 --> 00:17:39,080 Maybe it's really narrow and you can't get the proper width 347 00:17:39,080 --> 00:17:41,840 requirement on the front of the lot. 348 00:17:41,840 --> 00:17:47,200 And maybe you need 50 feet, and it only has 40 feet. 349 00:17:47,200 --> 00:17:48,840 But the back, it's pie-shaping. 350 00:17:48,840 --> 00:17:53,280 Maybe the width of it on the back is 200 feet. 351 00:17:53,280 --> 00:18:00,840 And so the concerns that might prompt the 50 foot requirement 352 00:18:00,840 --> 00:18:04,360 may not be as important when you consider 353 00:18:04,360 --> 00:18:07,200 that there's ample room on the lot 354 00:18:07,200 --> 00:18:11,280 to allow for the development. 355 00:18:11,280 --> 00:18:16,560 It also provides for appeals and variances on signs. 356 00:18:16,560 --> 00:18:20,480 Because what I first got here was 357 00:18:20,480 --> 00:18:24,000 Denton had a separate sign board of appeals for people 358 00:18:24,000 --> 00:18:28,880 to appeal application of sign decisions of the staff. 359 00:18:28,880 --> 00:18:31,480 And what we found was there was a lot 360 00:18:31,480 --> 00:18:33,480 of duplication and redundancy. 361 00:18:33,480 --> 00:18:35,720 And so the council decided, look, 362 00:18:35,720 --> 00:18:37,960 let's just combine sign board of appeals 363 00:18:37,960 --> 00:18:40,680 into the zoning board of adjustment. 364 00:18:40,680 --> 00:18:42,240 And so now the board of adjustment 365 00:18:42,240 --> 00:18:47,880 hears sign appeals and variances as well. 366 00:18:47,880 --> 00:18:49,840 As far as the variance procedure, 367 00:18:49,840 --> 00:18:53,560 I copied this from the Denton Development Code. 368 00:18:53,560 --> 00:18:58,240 And one of the things about the Denton Development Code, 369 00:18:58,240 --> 00:19:01,600 the new one that's really interesting and helpful, 370 00:19:01,600 --> 00:19:05,040 is that it gives a number of steps in the process 371 00:19:05,040 --> 00:19:09,200 to guide an applicant through the process. 372 00:19:09,200 --> 00:19:12,360 But you don't really need to worry too much about those 373 00:19:12,360 --> 00:19:13,400 steps. 374 00:19:13,400 --> 00:19:17,120 Those are really more for the assistance of the applicant. 375 00:19:17,120 --> 00:19:22,520 But it does describe the steps leading up to when you hear it. 376 00:19:22,520 --> 00:19:26,040 You're really not getting into it until step five. 377 00:19:26,040 --> 00:19:31,360 And so it provides, just like the state law, 378 00:19:31,360 --> 00:19:34,080 75% of the members or six votes is 379 00:19:34,080 --> 00:19:36,800 necessary to approve a variance. 380 00:19:36,800 --> 00:19:44,240 It requires findings and effective conclusions of law. 381 00:19:44,240 --> 00:19:50,680 And as far as post-decision actions and limitations, 382 00:19:50,680 --> 00:19:52,640 the director shall provide written notification 383 00:19:52,640 --> 00:19:56,040 of the board of adjustment decision to the applicant. 384 00:19:56,040 --> 00:20:01,200 There's a 24-month period for which the variance remains 385 00:20:01,200 --> 00:20:02,120 valid. 386 00:20:02,120 --> 00:20:04,720 If it's not exercised within 24 months, 387 00:20:04,720 --> 00:20:06,760 it shall automatically expire. 388 00:20:06,760 --> 00:20:08,760 It's not transferable. 389 00:20:08,760 --> 00:20:12,440 And the decision of the board of adjustment is final. 390 00:20:12,440 --> 00:20:14,320 And if you want to appeal it, again, 391 00:20:14,320 --> 00:20:15,880 you don't take it to city council. 392 00:20:15,880 --> 00:20:18,400 You take it to a district court. 393 00:20:18,400 --> 00:20:25,920 Section D on page seven talks about the variance approval 394 00:20:25,920 --> 00:20:27,800 criteria. 395 00:20:27,800 --> 00:20:30,480 It talks about special circumstances or conditions 396 00:20:30,480 --> 00:20:33,800 applied to this parcel that's unique to the property. 397 00:20:33,800 --> 00:20:37,760 It's different from other lots that are 398 00:20:37,760 --> 00:20:40,960 subject to these same requirements. 399 00:20:40,960 --> 00:20:44,320 And it requires special consideration 400 00:20:44,320 --> 00:20:47,080 because of these special circumstances. 401 00:20:47,080 --> 00:20:49,840 It has to be not detrimental to the public welfare 402 00:20:49,840 --> 00:20:51,680 injurious to other property. 403 00:20:51,680 --> 00:20:53,260 It has to be the minimum variance that 404 00:20:53,260 --> 00:20:55,520 will accomplish the purpose. 405 00:20:55,520 --> 00:20:57,680 It has to be a situation where literal enforcement 406 00:20:57,680 --> 00:21:02,240 and strict application will result 407 00:21:02,240 --> 00:21:04,720 in unnecessary hardship inconsistent 408 00:21:04,720 --> 00:21:07,920 with the general provisions and intent of the DEC, 409 00:21:07,920 --> 00:21:11,080 such as granting the variances in the spirit and intent 410 00:21:11,080 --> 00:21:14,000 to see that substantial justice is done. 411 00:21:14,000 --> 00:21:16,160 It's not strictly for the purpose 412 00:21:16,160 --> 00:21:18,760 of mitigating a financial hardship. 413 00:21:18,760 --> 00:21:22,560 So it says, well, it's too expensive for me 414 00:21:22,560 --> 00:21:25,000 to develop this piece of property. 415 00:21:25,000 --> 00:21:28,720 That's not a good enough reason. 416 00:21:28,720 --> 00:21:33,960 It's got to be something that inhibits an ability to develop. 417 00:21:33,960 --> 00:21:37,720 And F, a condition or feature that 418 00:21:37,720 --> 00:21:39,880 creates the need for the variance did not result 419 00:21:39,880 --> 00:21:41,760 from the owner's actions. 420 00:21:41,760 --> 00:21:45,600 So if somebody splits their lot in half, 421 00:21:45,600 --> 00:21:48,000 they can't come to you and say, oh, gee, my lot's 422 00:21:48,000 --> 00:21:50,640 too small to build on. 423 00:21:50,640 --> 00:21:56,560 It has to be something that is unique that the applicant didn't 424 00:21:56,560 --> 00:21:58,360 cause. 425 00:21:58,360 --> 00:22:04,120 So you know, 283 at the bottom of page 7 426 00:22:04,120 --> 00:22:07,680 talks about an appeal from an administrative decision. 427 00:22:07,680 --> 00:22:11,400 And right around in here is where 428 00:22:11,400 --> 00:22:14,960 we start to get these errors and reference source not found. 429 00:22:14,960 --> 00:22:20,120 So I guess the first thing I want to do here is-- 430 00:22:20,120 --> 00:22:22,120 and maybe if some of the members of staff 431 00:22:22,120 --> 00:22:26,240 can help me out a little bit with tracing these back-- 432 00:22:26,240 --> 00:22:33,560 I know that this item C here is referring to a figure 2.8-2, 433 00:22:33,560 --> 00:22:39,240 which is a table that shows the steps that you take 1 through 6. 434 00:22:39,240 --> 00:22:44,560 And the next reference not found is 2.4 435 00:22:44,560 --> 00:22:47,280 that talks about the procedure. 436 00:22:47,280 --> 00:22:52,080 The pre-application conference is spelled out 243. 437 00:22:52,080 --> 00:22:56,440 The application submittal and processing, 438 00:22:56,440 --> 00:23:01,000 it's in accordance with 2.4.4 with the following 439 00:23:01,000 --> 00:23:02,480 modifications. 440 00:23:02,480 --> 00:23:07,720 Staff review and action, that should be a reference to 245. 441 00:23:07,720 --> 00:23:13,360 In section C4, that reference source not found at the bottom 442 00:23:13,360 --> 00:23:15,720 should be 246. 443 00:23:15,720 --> 00:23:21,360 Post-decision actions and limitations should be 248. 444 00:23:21,360 --> 00:23:25,680 And approval criteria should be 245. 445 00:23:25,680 --> 00:23:31,240 So really, as far as the administrative decisions 446 00:23:31,240 --> 00:23:35,320 are concerned, again, the steps 1 through 4 447 00:23:35,320 --> 00:23:39,040 are primarily for the benefit of the applicant. 448 00:23:39,040 --> 00:23:42,320 You're really not going to be involved until step 5. 449 00:23:42,320 --> 00:23:46,600 And then step 6 bears upon your decision 450 00:23:46,600 --> 00:23:49,920 only insofar as someone might want 451 00:23:49,920 --> 00:23:55,080 to appeal a decision of the board of adjustment. 452 00:23:55,080 --> 00:23:58,880 Vested rights, this was not in your last briefing 453 00:23:58,880 --> 00:24:01,920 because we just didn't get to it. 454 00:24:01,920 --> 00:24:06,240 But knowing that you would be hearing 455 00:24:06,240 --> 00:24:09,160 a case that involved an appeal for a vested rights 456 00:24:09,160 --> 00:24:14,440 determination, I set that out here at 256. 457 00:24:14,440 --> 00:24:22,480 And basically the state's vested rights law is contained 458 00:24:22,480 --> 00:24:26,800 within chapter 245 of the Texas Local Government Code. 459 00:24:26,800 --> 00:24:30,360 And the thought behind the vested rights law 460 00:24:30,360 --> 00:24:36,440 is to prevent the government from changing 461 00:24:36,440 --> 00:24:40,120 the rules of development in the middle of the game. 462 00:24:40,120 --> 00:24:45,240 And the idea is that when you propose a development 463 00:24:45,240 --> 00:24:52,080 under certain terms and get your first approval on that, 464 00:24:52,080 --> 00:24:55,400 you're entitled to carry through with your proposal 465 00:24:55,400 --> 00:24:56,960 until the end. 466 00:24:56,960 --> 00:25:01,800 And there are some limitations associated with that. 467 00:25:01,800 --> 00:25:04,160 And there's a number of exceptions 468 00:25:04,160 --> 00:25:09,200 to this rule in chapter 245. 469 00:25:09,200 --> 00:25:11,280 One of the main exceptions to the rule 470 00:25:11,280 --> 00:25:15,440 is, for example, zoning provisions. 471 00:25:15,440 --> 00:25:17,160 There's only certain zoning provisions 472 00:25:17,160 --> 00:25:19,040 that are not accepted, those that 473 00:25:19,040 --> 00:25:21,640 talk about the size of your lot, the type, 474 00:25:21,640 --> 00:25:23,840 landscaping, things of that nature. 475 00:25:23,840 --> 00:25:26,440 But otherwise, the city can decide 476 00:25:26,440 --> 00:25:31,480 to rezone a piece of property at some point in the future, 477 00:25:31,480 --> 00:25:34,280 even if it has an impact on the land. 478 00:25:34,280 --> 00:25:39,000 And the landowner is entitled to protest that. 479 00:25:39,000 --> 00:25:43,120 Maybe they can even force a super majority in some cases. 480 00:25:43,120 --> 00:25:46,160 They can ask for rezoning. 481 00:25:46,160 --> 00:25:52,680 And so that exception recognizes that zoning is somewhat fluid. 482 00:25:52,680 --> 00:25:56,840 It's not necessarily going to be a guaranteed situation. 483 00:25:56,840 --> 00:26:03,120 Other exceptions include things like flooding provisions. 484 00:26:03,120 --> 00:26:09,080 You're not entitled to a vested rights 485 00:26:09,080 --> 00:26:12,360 type of determination for relief from something 486 00:26:12,360 --> 00:26:16,720 that's intended to prevent flooding or protect life 487 00:26:16,720 --> 00:26:18,760 safety. 488 00:26:18,760 --> 00:26:23,080 And there are a number of others as well. 489 00:26:23,080 --> 00:26:27,640 But let me give you some of these section 490 00:26:27,640 --> 00:26:32,520 numbers on page 10 in item C. That's 491 00:26:32,520 --> 00:26:36,480 referring to section 244, step 2. 492 00:26:36,480 --> 00:26:42,200 Item D is referring to subsection 234. 493 00:26:42,200 --> 00:26:47,800 And on page 11, under 62681, that's 494 00:26:47,800 --> 00:26:51,560 referring to section 622. 495 00:26:51,560 --> 00:26:55,960 And the first part of the vested rights determination 496 00:26:55,960 --> 00:26:57,800 is a complete decision. 497 00:26:57,800 --> 00:27:03,680 And there are some provisions in there 498 00:27:03,680 --> 00:27:06,680 to make sure that the application, what's 499 00:27:06,680 --> 00:27:12,880 put forward as a project, is a complete application. 500 00:27:12,880 --> 00:27:17,960 But a project defines the scope of the improvements, 501 00:27:17,960 --> 00:27:23,240 primarily public improvements, and does not 502 00:27:23,240 --> 00:27:25,960 include some other things. 503 00:27:25,960 --> 00:27:30,720 Once you build, say, a shopping center, what you do with it 504 00:27:30,720 --> 00:27:34,000 is not really a vested right. 505 00:27:34,000 --> 00:27:38,000 So you've seen situations where shopping centers 506 00:27:38,000 --> 00:27:42,520 have been repurposed into something else. 507 00:27:42,520 --> 00:27:45,120 That's not a vested rights issue. 508 00:27:45,120 --> 00:27:50,480 It's the development project that's vested. 509 00:27:50,480 --> 00:27:55,600 What you store on a piece of property is not a vested right. 510 00:27:55,600 --> 00:27:57,560 It's what you intended to build. 511 00:27:57,560 --> 00:28:01,840 How you intended to develop it, that's what's vested. 512 00:28:01,840 --> 00:28:07,840 And then this section D on page 10 513 00:28:07,840 --> 00:28:10,720 talks about the Board of Adjustment appeal 514 00:28:10,720 --> 00:28:16,600 and what your criteria are for deciding the petition. 515 00:28:16,600 --> 00:28:19,200 It says the city manager or the Board of Adjustment on Appeal 516 00:28:19,200 --> 00:28:21,480 should decide the vested rights petition based 517 00:28:21,480 --> 00:28:22,920 upon the following factors. 518 00:28:22,920 --> 00:28:26,200 One, whether the city received fair notice of the project. 519 00:28:26,200 --> 00:28:30,160 And then that's a key word, the project and nature 520 00:28:30,160 --> 00:28:31,600 of the permit sought. 521 00:28:31,600 --> 00:28:34,120 Two, whether the nature and scope of the project 522 00:28:34,120 --> 00:28:37,720 prevents the city from applying one or more current regulations 523 00:28:37,720 --> 00:28:40,320 to impose or pending applications. 524 00:28:40,320 --> 00:28:43,000 Three, whether any prior approved applications 525 00:28:43,000 --> 00:28:46,320 for the property have expired or have been terminated 526 00:28:46,320 --> 00:28:47,800 in accordance with the law. 527 00:28:47,800 --> 00:28:51,240 Four, whether any statutory exception to a right 528 00:28:51,240 --> 00:28:55,760 asserted pursuant to 245 is applicable to one or more 529 00:28:55,760 --> 00:28:57,200 of the current regulations. 530 00:28:57,200 --> 00:28:59,560 That's what I was talking to you about before, 531 00:28:59,560 --> 00:29:01,680 where there are certain exceptions for life 532 00:29:01,680 --> 00:29:10,680 safety, for fire regulation, for zoning that are not 533 00:29:10,680 --> 00:29:15,320 going to be subject to the city being locked down 534 00:29:15,320 --> 00:29:17,480 and a vested right determination. 535 00:29:17,480 --> 00:29:20,800 Five, whether any exemption from one or more regulations 536 00:29:20,800 --> 00:29:23,880 to the DDC or city ordinances is applicable. 537 00:29:23,880 --> 00:29:26,680 And six, whether the project is dormant. 538 00:29:26,680 --> 00:29:31,800 Basically, what dormant means is that even after you 539 00:29:31,800 --> 00:29:38,200 have a fine project, if there's no progress towards completion 540 00:29:38,200 --> 00:29:42,640 within a certain amount of time, it's 541 00:29:42,640 --> 00:29:47,440 subject to being found dormant. 542 00:29:47,440 --> 00:29:50,920 But generally speaking, if you have an approved flat, 543 00:29:50,920 --> 00:29:53,960 that's considered progress towards completion. 544 00:29:53,960 --> 00:29:59,960 If you have an investment that's made in the property, 545 00:29:59,960 --> 00:30:02,080 that's progress towards completion. 546 00:30:02,080 --> 00:30:05,600 Certain approvals could be progress towards completion. 547 00:30:05,600 --> 00:30:09,640 So that's going to be something, as each case comes forward 548 00:30:09,640 --> 00:30:13,440 to you, I can't really lay out all of them now, 549 00:30:13,440 --> 00:30:16,920 but as each case is brought forward to you, 550 00:30:16,920 --> 00:30:19,240 there should be some analysis that 551 00:30:19,240 --> 00:30:23,680 comes to you in the staff report that talks about whether or not 552 00:30:23,680 --> 00:30:31,400 there is an expiration because of a lack of progress 553 00:30:31,400 --> 00:30:36,120 towards completion, whether it's dormant or not. 554 00:30:36,120 --> 00:30:41,560 626, relief measures that apply to gas wells. 555 00:30:41,560 --> 00:30:49,080 That section number in A1 is 6.2.2. 556 00:30:49,080 --> 00:30:54,640 The A is providing for the setback requirements 557 00:30:54,640 --> 00:30:58,560 for drilling and operation. 558 00:30:58,560 --> 00:31:03,920 There are also in the city some setback requirements, 559 00:31:03,920 --> 00:31:06,120 what we call reverse setbacks, that 560 00:31:06,120 --> 00:31:12,360 impact people building protected uses around a gas well. 561 00:31:12,360 --> 00:31:16,240 And those are discussed in here as well. 562 00:31:16,240 --> 00:31:19,560 But the procedures are pretty much the same 563 00:31:19,560 --> 00:31:27,320 that you come forward and ask for a waiver of the setback 564 00:31:27,320 --> 00:31:33,160 provisions following more or less similar procedures. 565 00:31:33,160 --> 00:31:36,200 Going on to page 12, let me give you some of those section 566 00:31:36,200 --> 00:31:37,880 numbers. 567 00:31:37,880 --> 00:31:40,680 The first one is 626B. 568 00:31:40,680 --> 00:31:43,360 The next one is 626C. 569 00:31:43,360 --> 00:31:50,760 On to subsection A2, it's talking about section 22C. 570 00:31:50,760 --> 00:31:58,160 And then in A3, it's referring to subsection 637B, 571 00:31:58,160 --> 00:32:02,480 applying the procedures under subsection A. 572 00:32:02,480 --> 00:32:11,280 In this subsection B, B1 is referring to section 6.2 573 00:32:11,280 --> 00:32:15,560 with respect to the application and interpretation 574 00:32:15,560 --> 00:32:16,760 of the section. 575 00:32:16,760 --> 00:32:19,760 And it says, except for vested rights appeals, 576 00:32:19,760 --> 00:32:24,400 the matters described in paragraph 63AF. 577 00:32:24,400 --> 00:32:25,800 63AF? 578 00:32:25,800 --> 00:32:28,360 8F, as in Frank. 579 00:32:28,360 --> 00:32:29,680 Got it, thanks. 580 00:32:29,680 --> 00:32:32,120 And it says, furthermore, the Board of Adjustment 581 00:32:32,120 --> 00:32:34,240 shall hear a desired request for variances 582 00:32:34,240 --> 00:32:36,480 to provisions of this section. 583 00:32:36,480 --> 00:32:40,360 And that should be 6.2. 584 00:32:40,360 --> 00:32:47,640 On to the next page, this B2B at the end of it 585 00:32:47,640 --> 00:32:52,560 is referring to section 632G, as in Gerald. 586 00:32:52,560 --> 00:33:01,440 And then this B2C is referring to subsection 6.2.2 587 00:33:01,440 --> 00:33:05,000 with respect to the minimal setbacks. 588 00:33:05,000 --> 00:33:05,760 And-- 589 00:33:05,760 --> 00:33:06,640 Excuse me. 590 00:33:06,640 --> 00:33:07,600 Yes. 591 00:33:07,600 --> 00:33:10,320 Would it be possible to get a corrected copy of this? 592 00:33:10,320 --> 00:33:12,440 It sure could, absolutely. 593 00:33:12,440 --> 00:33:16,640 And I just discovered it today that they didn't carry over. 594 00:33:16,640 --> 00:33:18,560 And we can get that to you-- 595 00:33:18,560 --> 00:33:20,120 Even just by email. 596 00:33:20,120 --> 00:33:21,160 Sure. 597 00:33:21,160 --> 00:33:23,560 Absolutely, we can do that. 598 00:33:23,560 --> 00:33:25,160 And I apologize. 599 00:33:25,160 --> 00:33:28,640 I know this is very difficult to follow and find. 600 00:33:28,640 --> 00:33:31,000 I can only assure you that it was correct 601 00:33:31,000 --> 00:33:36,160 when I saw it last, and it's one of those computer issues. 602 00:33:36,160 --> 00:33:39,320 The problem is that when you do the links, when you just 603 00:33:39,320 --> 00:33:41,800 forward them, they only go partially. 604 00:33:41,800 --> 00:33:44,320 So you actually have to open them, copy them, 605 00:33:44,320 --> 00:33:45,040 and put them in. 606 00:33:45,040 --> 00:33:46,280 Right, exactly. 607 00:33:46,280 --> 00:33:49,120 And I didn't realize that they were links when 608 00:33:49,120 --> 00:33:52,920 I did the copy and paste, and it didn't appear. 609 00:33:52,920 --> 00:33:56,400 So that's the problem, isn't it? 610 00:33:56,400 --> 00:33:58,720 But Board of Adjustment proceedings, 611 00:33:58,720 --> 00:34:04,280 it talks about what these proceedings and what 612 00:34:04,280 --> 00:34:07,560 the standard review for appeals are, 613 00:34:07,560 --> 00:34:10,920 general criteria for review of variances, 614 00:34:10,920 --> 00:34:13,960 special circumstances existing on the property related 615 00:34:13,960 --> 00:34:15,800 to size, shape, area, topography, 616 00:34:15,800 --> 00:34:19,200 surrounding conditions, and location that do not generally 617 00:34:19,200 --> 00:34:22,240 apply to other property in the vicinity. 618 00:34:22,240 --> 00:34:25,520 Two, whether variances necessary to permit the applicant 619 00:34:25,520 --> 00:34:27,920 the same rights in the use of property 620 00:34:27,920 --> 00:34:31,320 that are presently enjoyed by other similarly situated 621 00:34:31,320 --> 00:34:33,720 property, which rights are denied 622 00:34:33,720 --> 00:34:36,520 for the property on which the application is made. 623 00:34:36,520 --> 00:34:38,920 Three, whether the grantee of the variance 624 00:34:38,920 --> 00:34:41,000 on the specific property will adversely 625 00:34:41,000 --> 00:34:44,520 affect any other feature of the comprehensive master 626 00:34:44,520 --> 00:34:45,840 plan of the city. 627 00:34:45,840 --> 00:34:47,960 Four, whether the variance, if granted, 628 00:34:47,960 --> 00:34:52,120 will be of no material detriment to the public, welfare, 629 00:34:52,120 --> 00:34:54,840 or injury to the use, enjoyment, or value 630 00:34:54,840 --> 00:34:56,880 of the property in the vicinity. 631 00:34:56,880 --> 00:34:59,800 Five, whether the operations proposed 632 00:34:59,800 --> 00:35:02,680 are reasonable under the circumstances and conditions 633 00:35:02,680 --> 00:35:04,480 prevailing in the vicinity, considering 634 00:35:04,480 --> 00:35:07,880 the particular location and the character of the improvements 635 00:35:07,880 --> 00:35:09,600 located there. 636 00:35:09,600 --> 00:35:12,560 Finally, six, whether the operations proposed 637 00:35:12,560 --> 00:35:15,080 are consistent with the health, safety, and welfare 638 00:35:15,080 --> 00:35:17,160 of the public, when and if conducted 639 00:35:17,160 --> 00:35:20,040 in accordance with the gas well development site plan, 640 00:35:20,040 --> 00:35:24,640 or gas well permit conditions to be imposed. 641 00:35:24,640 --> 00:35:28,840 And then for setback variances, this B2 642 00:35:28,840 --> 00:35:32,200 talks about the standard of review for that. 643 00:35:32,200 --> 00:35:35,920 And it talks about reasonable access for fire, 644 00:35:35,920 --> 00:35:38,440 to the extent that the operator and service owner are 645 00:35:38,440 --> 00:35:40,960 in agreement on the plan of development, 646 00:35:40,960 --> 00:35:44,160 have provided for adequate access, traffic circulation, 647 00:35:44,160 --> 00:35:46,360 taking measures to promote compatibility 648 00:35:46,360 --> 00:35:47,880 in gas well development. 649 00:35:47,880 --> 00:35:49,520 Three, for requests for the operator 650 00:35:49,520 --> 00:35:52,760 to reduce drilling and production site setbacks, 651 00:35:52,760 --> 00:35:56,120 whether the impact upon adjacent property and the general public 652 00:35:56,120 --> 00:35:59,360 from gas well development under the request of setback 653 00:35:59,360 --> 00:36:01,840 will be substantially increased, considering 654 00:36:01,840 --> 00:36:04,720 A, reasonable use of the mineral estate, 655 00:36:04,720 --> 00:36:07,440 of the mineral estate owners to explore, develop, 656 00:36:07,440 --> 00:36:09,400 or produce the minerals. 657 00:36:09,400 --> 00:36:12,720 B, the availability of alternative drilling sites. 658 00:36:12,720 --> 00:36:16,600 And C, the number of owners of protected uses or lots 659 00:36:16,600 --> 00:36:18,520 in a residential subdivision who are 660 00:36:18,520 --> 00:36:22,000 willing to waive the drilling production site setback 661 00:36:22,000 --> 00:36:24,880 as requested in the modified form. 662 00:36:24,880 --> 00:36:30,880 And it says that under 2B, in deciding 663 00:36:30,880 --> 00:36:33,280 to request for variance for setback requirements, 664 00:36:33,280 --> 00:36:35,960 you can approve the request as granted, modify the request, 665 00:36:35,960 --> 00:36:38,760 deny the request, in granting a variance 666 00:36:38,760 --> 00:36:42,080 for reduction of the drilling and production site setback, 667 00:36:42,080 --> 00:36:45,280 you may impose such conditions as are necessary to mitigate 668 00:36:45,280 --> 00:36:47,440 the impacts of the reduced setbacks 669 00:36:47,440 --> 00:36:50,160 and to preserve the public health and safety, 670 00:36:50,160 --> 00:36:53,320 including but not limited to the enhanced mitigation standards 671 00:36:53,320 --> 00:36:58,200 contained in subsection 632(g). 672 00:36:58,200 --> 00:37:00,880 And in 3, it says you will determine 673 00:37:00,880 --> 00:37:06,160 whether you grant an extension of the expiration of a gas well 674 00:37:06,160 --> 00:37:09,000 development site plan or gas well permit based upon whether there 675 00:37:09,000 --> 00:37:11,880 are certain stances reasonably beyond the control 676 00:37:11,880 --> 00:37:15,800 of the operator, including any delay on the part of the city 677 00:37:15,800 --> 00:37:19,160 and issue of subsequent permits to justify an extension 678 00:37:19,160 --> 00:37:22,800 of the site plan or permits in which the operator may enjoy 679 00:37:22,800 --> 00:37:27,360 the same rights in use of the property that are presently 680 00:37:27,360 --> 00:37:30,640 enjoyed by other similarly situated properties in which 681 00:37:30,640 --> 00:37:32,720 rights are denied to the property for which the site 682 00:37:32,720 --> 00:37:35,320 plan or permits have expired or suspended. 683 00:37:35,320 --> 00:37:38,120 4, any action in the subsection B 684 00:37:38,120 --> 00:37:42,080 shall require a 3/4 majority vote 685 00:37:42,080 --> 00:37:44,760 of the entire Board of Adjustment. 686 00:37:44,760 --> 00:37:47,000 And 5, any operator or other person 687 00:37:47,000 --> 00:37:49,000 agreed by any decision of the Board of Adjustment 688 00:37:49,000 --> 00:37:51,920 to present to a court of record a petition 689 00:37:51,920 --> 00:37:55,080 duly verified stating that the decision is ill. 690 00:37:55,080 --> 00:37:57,560 That's essentially your appeal. 691 00:37:57,560 --> 00:38:00,880 C talks about administrative variances. 692 00:38:00,880 --> 00:38:08,280 That's pursuant to section 622 for a new existing site 693 00:38:08,280 --> 00:38:10,920 from the gas well administrator under the following 694 00:38:10,920 --> 00:38:11,800 circumstances. 695 00:38:11,800 --> 00:38:14,480 One, the operator has at least one existing site 696 00:38:14,480 --> 00:38:16,160 on the property under mineral lease. 697 00:38:16,160 --> 00:38:19,600 Two, such existing sites are located closer 698 00:38:19,600 --> 00:38:23,040 to protected uses or residential subdivisions 699 00:38:23,040 --> 00:38:26,040 than is the proposed drilling and production 700 00:38:26,040 --> 00:38:28,080 site to such uses. 701 00:38:28,080 --> 00:38:30,880 Three, the operator agrees in a written instrument 702 00:38:30,880 --> 00:38:34,840 capable of reporting to limit gas well development 703 00:38:34,840 --> 00:38:37,600 on such existing sites to existing gas well drilling 704 00:38:37,600 --> 00:38:40,200 production activities. 705 00:38:40,200 --> 00:38:42,640 D, you have vested rights appeals. 706 00:38:42,640 --> 00:38:47,040 Any person who claims he's obtained a vested right 707 00:38:47,040 --> 00:38:51,440 pursuant to chapter 245 or another applicable vesting law 708 00:38:51,440 --> 00:38:53,880 under prior gas well development regulations 709 00:38:53,880 --> 00:38:57,080 from the requirements of section 6.2-- 710 00:38:57,080 --> 00:38:59,120 this is what that first one should be-- 711 00:38:59,120 --> 00:39:04,080 and section 6.3, as they pertain to gas well development, 712 00:39:04,080 --> 00:39:06,600 may request a determination pursuant 713 00:39:06,600 --> 00:39:13,040 to subsection 2.5.6, vested rights for proposed gas wells 714 00:39:13,040 --> 00:39:15,480 to be located inside the city limits. 715 00:39:15,480 --> 00:39:18,040 The petitioner shall include a statement of the reasons why 716 00:39:18,040 --> 00:39:23,480 the regulations contained in section 6.3 as they pertain 717 00:39:23,480 --> 00:39:25,360 to gas well development-- 718 00:39:25,360 --> 00:39:28,880 or section 6.2, as they pertain to gas well development, 719 00:39:28,880 --> 00:39:36,240 are not exempt pursuant to local government code 245.004. 720 00:39:36,240 --> 00:39:39,400 From there, we go on to signs. 721 00:39:39,400 --> 00:39:42,280 I'm not going to spend a lot of time on that, 722 00:39:42,280 --> 00:39:45,640 because it's very similar to the variances 723 00:39:45,640 --> 00:39:49,480 that you have for land. 724 00:39:49,480 --> 00:39:53,440 Basically, it can't be a situation that you created. 725 00:39:53,440 --> 00:39:58,880 It has to be the minimum hardship to allow use. 726 00:39:58,880 --> 00:40:03,440 It can't be a purely financial hardship. 727 00:40:03,440 --> 00:40:06,680 And then from there, there are a number of interpretations 728 00:40:06,680 --> 00:40:10,440 of procedures, starting on page 16, 729 00:40:10,440 --> 00:40:14,920 talking about sworn testimony in due process. 730 00:40:14,920 --> 00:40:21,280 As I said earlier, you need to decide your case is based only 731 00:40:21,280 --> 00:40:23,520 on the evidence that is put before you, 732 00:40:23,520 --> 00:40:25,680 just like your record of law. 733 00:40:25,680 --> 00:40:28,240 And so the witnesses need to be sworn, 734 00:40:28,240 --> 00:40:33,120 and the exhibits identified for your consideration. 735 00:40:33,120 --> 00:40:37,360 You cannot base your decision on personal experience, 736 00:40:37,360 --> 00:40:41,520 driving out to the site, what the applicant may have said 737 00:40:41,520 --> 00:40:46,240 to you at Rotary Club, or anything of that nature. 738 00:40:46,240 --> 00:40:54,000 It has to be on the basis of the record that is before you 739 00:40:54,000 --> 00:40:57,520 that is being reported here. 740 00:40:57,520 --> 00:41:01,000 And it talks about the cases being directly 741 00:41:01,000 --> 00:41:06,120 appealable to district court on the basis of the record. 742 00:41:06,120 --> 00:41:07,840 >> Just a question? 743 00:41:07,840 --> 00:41:08,760 >> Yes. 744 00:41:08,760 --> 00:41:09,360 >> Ms. Lane. 745 00:41:09,360 --> 00:41:10,400 >> Thank you, yes. 746 00:41:10,400 --> 00:41:14,880 One quick question, which is in section -- on page 14, 747 00:41:14,880 --> 00:41:19,720 you listed off the D, if you could just review those numbers. 748 00:41:19,720 --> 00:41:21,120 >> Certainly. 749 00:41:21,120 --> 00:41:23,520 The first one is section 6.2. 750 00:41:23,520 --> 00:41:24,720 >> Yep. 751 00:41:24,720 --> 00:41:26,280 >> That's on the third line. 752 00:41:26,280 --> 00:41:26,520 >> Yep. 753 00:41:26,520 --> 00:41:29,640 >> And then -- and section 6.3. 754 00:41:29,640 --> 00:41:30,800 >> Okay, got that much. 755 00:41:30,800 --> 00:41:33,480 >> Okay. As a pertaining to gas well development, 756 00:41:33,480 --> 00:41:35,640 may request a determination pursuant 757 00:41:35,640 --> 00:41:38,200 to subsection 2.5.6. 758 00:41:38,200 --> 00:41:39,880 >> 2.5, that's okay. 759 00:41:39,880 --> 00:41:42,160 >> Yeah. Vested rights. 760 00:41:42,160 --> 00:41:42,680 >> All right. 761 00:41:42,680 --> 00:41:48,000 >> And then the remaining section references are 6.3 and 6.2. 762 00:41:48,000 --> 00:41:51,320 >> All right, thank you so much. 763 00:41:51,320 --> 00:41:53,760 And then my other question is that -- 764 00:41:53,760 --> 00:41:55,720 this is maybe more substantive. 765 00:41:55,720 --> 00:41:58,800 You mentioned actually visiting the site. 766 00:41:58,800 --> 00:42:01,920 That seems to me that when possible is a duty 767 00:42:01,920 --> 00:42:06,080 because we should be able to compare what we see 768 00:42:06,080 --> 00:42:09,760 in three dimensions with what we see in two. 769 00:42:09,760 --> 00:42:11,960 >> Well, you know, I don't think you're going 770 00:42:11,960 --> 00:42:17,560 to find support in the law for that -- for that idea. 771 00:42:17,560 --> 00:42:20,720 I think that the -- where you're going to find support 772 00:42:20,720 --> 00:42:24,000 in the law is that the decision be made 773 00:42:24,000 --> 00:42:27,040 upon the evidence that's presented to you. 774 00:42:27,040 --> 00:42:30,240 It doesn't mean that you have to be totally ignorant 775 00:42:30,240 --> 00:42:34,160 of the situation from personal experience, 776 00:42:34,160 --> 00:42:38,000 but you can't let your personal observations 777 00:42:38,000 --> 00:42:42,400 and experience color your decision to the extent 778 00:42:42,400 --> 00:42:46,160 that it's contrary to the evidence that you see. 779 00:42:46,160 --> 00:42:50,560 >> They should -- actually, in my opinion, what you see 780 00:42:50,560 --> 00:42:52,360 with your own eyes should cause you 781 00:42:52,360 --> 00:42:55,480 to question things more, actually. 782 00:42:55,480 --> 00:43:00,240 That if the pictures don't show cracks, but you've seen them, 783 00:43:00,240 --> 00:43:01,720 you should be able to ask about it, 784 00:43:01,720 --> 00:43:04,320 and it would be a duty to do so. 785 00:43:04,320 --> 00:43:07,680 >> Well, like I said, I understand all I can tell you is 786 00:43:07,680 --> 00:43:10,320 that the requirements of the law is 787 00:43:10,320 --> 00:43:14,720 that you consider these cases on the record that's before you. 788 00:43:14,720 --> 00:43:20,800 Hopefully the staff report will go into that or the report 789 00:43:20,800 --> 00:43:25,680 of the various witnesses will discuss those. 790 00:43:25,680 --> 00:43:29,760 Certainly you can ask them about that if you saw cracks there. 791 00:43:29,760 --> 00:43:34,520 There's certainly nothing that says that you can't ask a person 792 00:43:34,520 --> 00:43:37,240 who's giving testimony to the Board of Adjustment 793 00:43:37,240 --> 00:43:40,800 about some cracks that you saw when going up there, 794 00:43:40,800 --> 00:43:46,320 and make your ruling on the basis of the testimony 795 00:43:46,320 --> 00:43:50,120 that you receive in response to those questions. 796 00:43:50,120 --> 00:43:53,320 And the photographs that you receive. 797 00:43:53,320 --> 00:43:57,400 But you can certainly ask questions about that. 798 00:43:57,400 --> 00:44:00,680 You just can't let that be the basis of your decision 799 00:44:00,680 --> 00:44:03,960 if it's outside of the record. 800 00:44:03,960 --> 00:44:05,960 >> Okay, let's see. 801 00:44:05,960 --> 00:44:08,040 Variance is a special exception. 802 00:44:08,040 --> 00:44:13,400 It goes into that, generally speaking, what is a variance? 803 00:44:13,400 --> 00:44:15,440 What is a special exception? 804 00:44:15,440 --> 00:44:21,880 It's relief from the strict application of the law, 805 00:44:21,880 --> 00:44:29,200 while putting into -- while honoring the intent 806 00:44:29,200 --> 00:44:35,960 of the regulation and trying to avoid undue hardship. 807 00:44:35,960 --> 00:44:40,480 And the special exceptions, that's discussed as well. 808 00:44:40,480 --> 00:44:43,200 We rarely see special exceptions, so I'm not going 809 00:44:43,200 --> 00:44:46,760 to spend your time on that. 810 00:44:46,760 --> 00:44:55,200 On page 18, use variances are absolutely positively prohibited 811 00:44:55,200 --> 00:44:56,760 in the state of Texas. 812 00:44:56,760 --> 00:44:59,000 And let me talk about what a use variance is, 813 00:44:59,000 --> 00:45:04,360 because there's a lot of confusion over that. 814 00:45:04,360 --> 00:45:07,200 You know, people think that if they can get relief 815 00:45:07,200 --> 00:45:11,080 from the Board of Adjustment, you know, can I come to the Board 816 00:45:11,080 --> 00:45:15,840 of Adjustment, because the zoning on my property, you know, 817 00:45:15,840 --> 00:45:18,680 I want to have a coffee shop, 818 00:45:18,680 --> 00:45:22,440 but it's zoned for a single-family home. 819 00:45:22,440 --> 00:45:26,120 You know, so I want to appeal to the Board of Adjustment 820 00:45:26,120 --> 00:45:34,160 to allow me to operate a coffee shop out of this structure 821 00:45:34,160 --> 00:45:36,240 that was built as a single-family residence. 822 00:45:36,240 --> 00:45:37,240 I'm not going to live there. 823 00:45:37,240 --> 00:45:39,480 Nobody's going to live there, but I'm going 824 00:45:39,480 --> 00:45:43,320 to have a coffee shop there, because I think it's a good idea. 825 00:45:43,320 --> 00:45:48,280 Cannot come, and the Board of Adjustment may not grant a 826 00:45:48,280 --> 00:45:53,200 variance to use property in a manner that is inconsistent 827 00:45:53,200 --> 00:45:54,800 with the zoning requirements. 828 00:45:54,800 --> 00:45:55,960 >> I have a question about that. 829 00:45:55,960 --> 00:45:56,440 >> Yes. 830 00:45:56,440 --> 00:45:59,200 >> I was on planning and zoning for a couple of years, 831 00:45:59,200 --> 00:46:03,840 and I remember seeing at least one case where there was, 832 00:46:03,840 --> 00:46:06,840 for example, like a, I don't want to name the restaurant, 833 00:46:06,840 --> 00:46:09,760 but there was a restaurant that was, had like more seats 834 00:46:09,760 --> 00:46:12,960 than what was zoned for, and there were a couple 835 00:46:12,960 --> 00:46:15,360 of restaurants out there, and it had been happening for, 836 00:46:15,360 --> 00:46:20,000 who knows how long, before like that applicant came to P&Z. 837 00:46:20,000 --> 00:46:22,880 I know it's a separate case, but can you help me like understand 838 00:46:22,880 --> 00:46:26,680 with those cases go to P&Z, or did we screw something up back there? 839 00:46:26,680 --> 00:46:28,960 They came and they're like, can we get this, 840 00:46:28,960 --> 00:46:32,800 I can't remember if it was a variance or like a zoning change 841 00:46:32,800 --> 00:46:34,960 so that they would be like not breaking the law 842 00:46:34,960 --> 00:46:38,160 by having 85 tables instead of 50 or whatever. 843 00:46:38,160 --> 00:46:41,000 Like is that, so is this specific just to ZEA, 844 00:46:41,000 --> 00:46:44,360 or like would those types of cases go to planning and zoning, 845 00:46:44,360 --> 00:46:47,760 or is that, we're talking completely because it was the, 846 00:46:47,760 --> 00:46:49,720 it was still like a commercial property 847 00:46:49,720 --> 00:46:54,560 and we're just changing, you're talking about like residential 848 00:46:54,560 --> 00:46:56,360 versus commercial or? 849 00:46:56,360 --> 00:47:00,320 >> If you own a piece of property and the zoning that's 850 00:47:00,320 --> 00:47:02,720 on that piece of property doesn't allow you 851 00:47:02,720 --> 00:47:06,680 to do what you want to do, and you want to do something 852 00:47:06,680 --> 00:47:09,080 about that, your remedy is to ask for the property 853 00:47:09,080 --> 00:47:13,240 to be rezoned, to some zoning classification 854 00:47:13,240 --> 00:47:14,160 that would allow it. 855 00:47:14,160 --> 00:47:15,800 >> Okay, and that's about what we saw. 856 00:47:15,800 --> 00:47:17,800 That just shook up something in my brain. 857 00:47:17,800 --> 00:47:21,040 >> And, you know, any rezoning is going to go to P&Z first 858 00:47:21,040 --> 00:47:24,960 for recommendation and a public hearing, and then it's also, 859 00:47:24,960 --> 00:47:28,080 then it's going to go to city council for a final decision 860 00:47:28,080 --> 00:47:30,920 and after a second public hearing. 861 00:47:30,920 --> 00:47:32,360 >> Thank you. 862 00:47:32,360 --> 00:47:36,040 I'd say special considerations for signs. 863 00:47:36,040 --> 00:47:43,560 A lot of people want to ask for variances on signs. 864 00:47:43,560 --> 00:47:47,640 We saw, well, one, with the last meeting 865 00:47:47,640 --> 00:47:52,800 where they wanted a taller sign, they felt like it would be easier 866 00:47:52,800 --> 00:47:55,360 for people to see as they were driving down the highway. 867 00:47:55,360 --> 00:47:59,480 The thing is, there were already provisions that allowed 868 00:47:59,480 --> 00:48:03,120 for taller signs by the highway and bigger signs by the highway. 869 00:48:03,120 --> 00:48:11,120 And so, you know, you can't, you can't apply the regulations 870 00:48:11,120 --> 00:48:18,200 in a way that act upon the message being communicated 871 00:48:18,200 --> 00:48:19,320 on the sign. 872 00:48:19,320 --> 00:48:28,320 So, for example, if there's a, somebody who wants to have a sign 873 00:48:28,320 --> 00:48:31,120 that supports some cause that you don't agree with, 874 00:48:31,120 --> 00:48:33,800 you can't deny it on that basis. 875 00:48:33,800 --> 00:48:35,920 It has to be content neutral. 876 00:48:35,920 --> 00:48:41,040 It's a First Amendment like that is very important. 877 00:48:41,040 --> 00:48:47,400 But as with other variances, it can't be self-imposed. 878 00:48:47,400 --> 00:48:49,560 It can't be purely financial. 879 00:48:49,560 --> 00:48:54,720 It can't be a situation that you could have prevented. 880 00:48:54,720 --> 00:48:56,520 It's not a place to come. 881 00:48:56,520 --> 00:48:59,640 Zoning Board of Adjustment is not a place to come 882 00:48:59,640 --> 00:49:03,720 if you simply disagree with the law that council passed. 883 00:49:03,720 --> 00:49:05,960 That's not a good enough reason. 884 00:49:05,960 --> 00:49:11,880 If you disagree with the law, then go to the council and, you know, 885 00:49:11,880 --> 00:49:15,720 when they have the public hearing on what the laws ought to be, 886 00:49:15,720 --> 00:49:20,160 what the code provides for, and sign up to speak 887 00:49:20,160 --> 00:49:22,880 and tell them what you think that the law should be. 888 00:49:22,880 --> 00:49:26,400 But once the law is in place, you can't just change it. 889 00:49:26,400 --> 00:49:28,200 Oh, that's for council to decide. 890 00:49:28,200 --> 00:49:29,480 They're the policymakers. 891 00:49:29,480 --> 00:49:35,080 They're the legislative body that gets to say what the code says. 892 00:49:35,080 --> 00:49:38,200 And that's not the Board of Adjustment. 893 00:49:38,200 --> 00:49:43,520 The Board of Adjustment only, you know, grants relief where necessary 894 00:49:43,520 --> 00:49:49,160 to carry out the intent of the law that the council has established. 895 00:49:49,160 --> 00:49:53,560 And it talks about some signs are just flat prohibited. 896 00:49:53,560 --> 00:50:01,480 You know, the provisions say you can't have a video sign or a flashing sign, 897 00:50:01,480 --> 00:50:07,400 and that's as opposed to a sign that's regulated at maximum height and size. 898 00:50:07,400 --> 00:50:11,000 You can grant relief from a maximum height provision 899 00:50:11,000 --> 00:50:13,960 if the variance criteria are met. 900 00:50:13,960 --> 00:50:20,640 But if where the audit says you just can't have a video sign or a flashing sign, 901 00:50:20,640 --> 00:50:22,080 then that needs to be honored. 902 00:50:22,080 --> 00:50:27,800 It's not a regulation from which you can seek relief. 903 00:50:27,800 --> 00:50:32,360 And there's some examples that are in there, as well as a discussion 904 00:50:32,360 --> 00:50:35,200 of unnecessary or undue hardship. 905 00:50:35,200 --> 00:50:38,320 And that's pretty much where I'm going to stop. 906 00:50:38,320 --> 00:50:43,040 I apologize again for the references that were messed up. 907 00:50:43,040 --> 00:50:45,880 And I apologize that this took so much time to go through. 908 00:50:45,880 --> 00:50:50,560 But I hope that at least for the new members on the Board of Adjustment, 909 00:50:50,560 --> 00:50:54,840 you can see some value in this, because it may be a little bit different 910 00:50:54,840 --> 00:51:00,240 from what you assumed in agreeing to be a Board of Adjustment member. 911 00:51:00,240 --> 00:51:05,440 Perhaps you thought that you could weigh in on policy issues 912 00:51:05,440 --> 00:51:09,920 on what the law should be as opposed to what it is. 913 00:51:09,920 --> 00:51:16,040 But I think the key takeaway for all of this is that on the Board of Adjustment, 914 00:51:16,040 --> 00:51:20,960 you're not deciding the law, the council decides what the law is. 915 00:51:20,960 --> 00:51:26,360 You only decide whether or not there's sufficient costs to grant relief 916 00:51:26,360 --> 00:51:31,200 under the provisions that are set forth in the ordinance itself. 917 00:51:31,200 --> 00:51:36,040 >> And I think the last case that we saw, I think really highlighted that for me, 918 00:51:36,040 --> 00:51:40,640 that having started on P&Z for three years, there would have been a whole lot 919 00:51:40,640 --> 00:51:45,360 of conversation about how can we tweak this, and so kind of keeping in the spirits 920 00:51:45,360 --> 00:51:49,640 of the signed ordinance, but making it easier for the applicant. 921 00:51:49,640 --> 00:51:54,480 There's a lot more flexibility with P&Z, because those are just recommendations 922 00:51:54,480 --> 00:52:00,200 to go to council, whereas we really were tasked with kind of upholding the law 923 00:52:00,200 --> 00:52:03,400 and the ordinance, there wasn't hardly any movement with that. 924 00:52:03,400 --> 00:52:10,080 So I think that really highlighted for me the big difference between those boards 925 00:52:10,080 --> 00:52:14,520 that make recommendations to city council as ours has the final say. 926 00:52:14,520 --> 00:52:17,240 >> We should approach this with the judicial freedom of mind. 927 00:52:17,240 --> 00:52:24,760 >> Yes, absolutely, and let me just tell you that on the item 3A, close meeting, 928 00:52:24,760 --> 00:52:29,520 I'm going to recommend that we not do that, and so if some of you were thinking 929 00:52:29,520 --> 00:52:36,480 about holding some questions for the close meeting, you know, go ahead and ask them now 930 00:52:36,480 --> 00:52:40,920 if you can, this is not the caption that we intended to post. 931 00:52:40,920 --> 00:52:46,880 We were not intending to meet with you in close session about the specific matter that's coming 932 00:52:46,880 --> 00:52:51,720 before you, we'd rather you decide that on the basis of the evidence that is put in front 933 00:52:51,720 --> 00:52:59,320 of you in the testimony that's on the record, and so we were intending for this close meeting 934 00:52:59,320 --> 00:53:06,440 to be a spot where you could ask questions about the general role of the board of adjustment 935 00:53:06,440 --> 00:53:13,640 in close session if you felt like you needed to, so, but with that in mind, 936 00:53:13,640 --> 00:53:17,440 I want to recommend that we not carry through the close meeting, 937 00:53:17,440 --> 00:53:22,600 and if that prompts some more questions, I'll be happy to try to answer them. 938 00:53:22,600 --> 00:53:23,800 >> Can I move to the back? 939 00:53:23,800 --> 00:53:24,440 >> Yes. 940 00:53:24,440 --> 00:53:29,440 >> Okay, so moving on, and I did neglect to mention at the start of the meeting a couple 941 00:53:29,440 --> 00:53:34,360 of absences, I think I need to mistake that for the record, so board member William House 942 00:53:34,360 --> 00:53:39,240 and alternate principal Mujafru are absent from the meeting, and I wanted to ask you, 943 00:53:39,240 --> 00:53:44,760 before we get started with the public hearing, I understand that we have another meeting tomorrow, 944 00:53:44,760 --> 00:53:50,840 which, you know, I love volunteering, but why are we, like this is a new thing, so confused, 945 00:53:50,840 --> 00:53:54,280 so why don't you explain to me why we're having this meeting tonight, 946 00:53:54,280 --> 00:53:56,840 and then seeing the same case again tomorrow? 947 00:53:56,840 --> 00:54:10,600 [ Inaudible ] 948 00:54:10,600 --> 00:54:14,040 >> Good evening, Richard Canone, Deputy Director of Development Services and Planning Director. 949 00:54:14,040 --> 00:54:20,040 The reason there's two meetings tonight, I have a little slide that explains partly. 950 00:54:20,040 --> 00:54:24,440 Within the local government code, there were some changes this last legislative session 951 00:54:24,440 --> 00:54:27,320 that requires a public hearing be held. 952 00:54:27,320 --> 00:54:31,400 However, the decision on that public hearing cannot be held on the same night. 953 00:54:31,400 --> 00:54:36,680 It has to be done within 60 days of when an application was filed, 954 00:54:36,680 --> 00:54:41,320 and so the reason we have the meeting tomorrow is for that decision to be rendered. 955 00:54:41,320 --> 00:54:43,800 So tonight would be the public hearing. 956 00:54:43,800 --> 00:54:46,760 Tomorrow would be when that decision would be rendered by the board. 957 00:54:46,760 --> 00:54:52,120 >> And that's what I understood from the, I guess, from the backup. 958 00:54:52,120 --> 00:54:57,880 So to be clear then, so we're only hearing testimony tonight, but the decision will have 959 00:54:57,880 --> 00:55:01,640 like 24 hours to kind of ruminate on this and come back tomorrow with the decision. 960 00:55:01,640 --> 00:55:02,760 >> That's correct. 961 00:55:02,760 --> 00:55:08,280 >> And then did I see something else in the backup somewhere that the only things 962 00:55:08,280 --> 00:55:13,000 that are going to be included in the public, in the minutes from this is basically the evidence 963 00:55:13,000 --> 00:55:18,200 that's been provided here, but not the public testimony that we have during the public hearing part. 964 00:55:18,200 --> 00:55:22,840 Did I misread that, or is that, I hope I misread that. 965 00:55:22,840 --> 00:55:25,720 >> No, you can consider the sworn testimony that you've received. 966 00:55:25,720 --> 00:55:27,400 That's part of what you receive on the record. 967 00:55:27,400 --> 00:55:30,040 >> But what, so that will be included in the minutes? 968 00:55:30,040 --> 00:55:33,800 >> Well, it's going to be recorded one way or another. 969 00:55:33,800 --> 00:55:34,360 >> Okay. 970 00:55:34,360 --> 00:55:37,880 >> You know, we, that's, that's, that's part of the reason for all the microphones. 971 00:55:37,880 --> 00:55:41,480 >> Okay, because I was like, that's not a sunshine lot. 972 00:55:41,480 --> 00:55:42,440 I don't know what that is. 973 00:55:42,440 --> 00:55:43,960 Okay, so thank you. 974 00:55:43,960 --> 00:55:47,880 So, so just to recap, so we're hearing, we're hearing everything tonight. 975 00:55:47,880 --> 00:55:48,840 We come back tomorrow. 976 00:55:48,840 --> 00:55:51,160 Is anything going to be re-presented tomorrow? 977 00:55:51,160 --> 00:55:53,000 Or we just sit down and someone makes a motion 978 00:55:53,000 --> 00:55:56,200 and then we discuss it and we're out of here in half an hour? 979 00:55:56,200 --> 00:55:57,160 Or like how does that work? 980 00:55:57,160 --> 00:55:59,240 >> Again, this is our first time doing it. 981 00:55:59,240 --> 00:56:03,160 My understanding was once the public hearing would be closed, it would be, that would be it. 982 00:56:03,160 --> 00:56:05,160 I mean, there would be deliberations obviously. 983 00:56:05,160 --> 00:56:09,800 And if there was questions, I think that if a board member had it, it would be available. 984 00:56:09,800 --> 00:56:13,480 But we were not planning on doing any additional presenting 985 00:56:13,480 --> 00:56:17,080 of any material once that public hearing was closed. 986 00:56:17,080 --> 00:56:21,640 >> And if I could jump in, on pages two and three of that legal orientation guide 987 00:56:21,640 --> 00:56:25,080 that I went through, this item here, yeah. 988 00:56:25,080 --> 00:56:33,560 It talks about section 211.010 of the local government code. 989 00:56:33,560 --> 00:56:37,480 You see it says, included the HB 2497 amendment. 990 00:56:37,480 --> 00:56:39,960 That's what Richard was just talking about. 991 00:56:39,960 --> 00:56:42,360 And A1 is a new section. 992 00:56:43,080 --> 00:56:50,040 And also if you look over on the next page, item D, there's some additional language. 993 00:56:50,040 --> 00:56:51,160 It was added to that. 994 00:56:51,160 --> 00:56:56,840 I didn't do the red line for you, but it does talk about the hearing, 995 00:56:56,840 --> 00:57:00,040 not later than the 60th day after the date the appeal was filed. 996 00:57:00,040 --> 00:57:05,080 So if you want some verification of what Richard was just talking about, 997 00:57:05,080 --> 00:57:08,600 it's these amendments to section 211.010. 998 00:57:08,600 --> 00:57:14,360 >> Will all of our future CBA meetings be held back to back like this? 999 00:57:14,360 --> 00:57:19,320 >> Just to appeal to the board is what I'm reading in this section. 1000 00:57:19,320 --> 00:57:20,680 >> Oh, appeals. 1001 00:57:20,680 --> 00:57:27,240 >> But like for example, like the sign thing that we saw, like, because that's not. 1002 00:57:27,240 --> 00:57:28,280 >> That's not an appeal. 1003 00:57:28,280 --> 00:57:28,920 >> Okay. 1004 00:57:28,920 --> 00:57:30,920 >> That's a parent's request. 1005 00:57:30,920 --> 00:57:31,640 >> Aye. 1006 00:57:31,640 --> 00:57:38,120 >> It talks to CBA by virtue of the fact that we consolidated the signed board of 1007 00:57:38,120 --> 00:57:40,200 appeals with the board of justice. 1008 00:57:40,200 --> 00:57:43,800 It's not as a result of the defined role in the statute. 1009 00:57:43,800 --> 00:57:47,720 >> Thank you. 1010 00:57:47,720 --> 00:57:47,720 >> Thank you. 1011 00:57:47,720 --> 00:57:51,000 >> Any other questions on that? 1012 00:57:51,000 --> 00:57:51,000 >> No. 1013 00:57:51,000 --> 00:57:52,920 >> Okay. 1014 00:57:52,920 --> 00:57:53,320 >> Thank you. 1015 00:57:53,320 --> 00:57:55,000 >> See you tomorrow. 1016 00:57:55,000 --> 00:57:57,000 >> Or later. 1017 00:57:57,000 --> 00:57:57,960 >> You got any other questions? 1018 00:57:57,960 --> 00:58:03,480 >> Well, the packet that we've got for tomorrow is like virtually. 1019 00:58:03,480 --> 00:58:04,200 >> It's a sign in. 1020 00:58:04,200 --> 00:58:04,440 >> Yeah. 1021 00:58:04,440 --> 00:58:09,800 >> Is there a reason for that, a separate meeting, you have to have the packet again? 1022 00:58:09,800 --> 00:58:11,880 >> It's not a legal issue. 1023 00:58:11,880 --> 00:58:13,480 I don't know if there was a. 1024 00:58:13,480 --> 00:58:18,920 >> I don't think, I think it's to make sure that everyone had the same information that 1025 00:58:18,920 --> 00:58:19,480 was provided. 1026 00:58:19,480 --> 00:58:22,200 I mean, if they're duplicates, then does it. 1027 00:58:22,200 --> 00:58:26,200 >> There might be some legal requirement or something. 1028 00:58:26,200 --> 00:58:30,920 >> Just the post date of having the meeting was important. 1029 00:58:30,920 --> 00:58:35,640 >> All right, so I guess, thank you for clarifying that. 1030 00:58:35,640 --> 00:58:37,640 So with that, I'd like to open the public hearing. 1031 00:58:37,640 --> 00:58:43,000 The time is 547, item 4A. 1032 00:58:43,000 --> 00:58:47,880 Hold a public hearing and consider an appeal of an administrative decision regarding vested 1033 00:58:47,880 --> 00:58:51,640 rights related to the applicability of gas well reverse setback and separating distance 1034 00:58:51,640 --> 00:58:53,880 requirements to a mobile phone park. 1035 00:58:53,880 --> 00:58:59,080 The subject property is approximately 13.6 acres, located on the west side of Fort Worth 1036 00:58:59,080 --> 00:59:05,000 Drive, across from the intersection of Country Club Road and the city of Denton. 1037 00:59:05,000 --> 00:59:09,720 And with that, and I believe, do I also swear in city staff, I think that's what you were 1038 00:59:09,720 --> 00:59:10,520 about to say, wasn't it? 1039 00:59:10,520 --> 00:59:11,240 >> You did. 1040 00:59:11,240 --> 00:59:11,720 >> Yes. 1041 00:59:11,720 --> 00:59:16,600 >> I just wanted to do that in house, possibly be able to speak to all of you at this point. 1042 00:59:16,600 --> 00:59:23,800 >> Absolutely, so to expedite this, anyone who plans on speaking during the public hearing, 1043 00:59:23,800 --> 00:59:27,000 why don't you all just, should we all stand at the front? 1044 00:59:27,000 --> 00:59:28,760 We swear everyone in at the same time. 1045 00:59:29,320 --> 00:59:30,840 And I'll just make it a little bit faster, is that good? 1046 00:59:30,840 --> 00:59:31,160 >> Sure. 1047 00:59:31,160 --> 00:59:31,720 >> Yeah, absolutely. 1048 00:59:31,720 --> 00:59:33,160 >> Stand here or go front, whatever. 1049 00:59:33,160 --> 00:59:34,920 >> I want you on the front, yeah. 1050 00:59:34,920 --> 00:59:36,440 I'm looking at you both at the same time. 1051 00:59:36,440 --> 00:59:40,600 Thank you, so could you quickly identify yourself for the record? 1052 00:59:40,600 --> 00:59:42,360 >> Richard Canone, city of Denton. 1053 00:59:42,360 --> 00:59:43,000 >> Thank you. 1054 00:59:43,000 --> 00:59:44,840 >> And I'm Jonathan Vinson of Jacksonville. 1055 00:59:44,840 --> 00:59:46,360 >> Thank you, and please raise your right hand. 1056 00:59:46,360 --> 00:59:52,360 Under penalty of perjury, do you swear or affirm that any testimony or information you provide 1057 00:59:52,360 --> 00:59:56,840 or any statement you make before this board is complete, be true and correct to the best 1058 00:59:56,840 --> 00:59:58,120 of your knowledge and ability? 1059 00:59:58,120 --> 00:59:58,600 >> I do. 1060 00:59:58,600 --> 00:59:59,640 >> Great, thank you both. 1061 00:59:59,640 --> 01:00:05,240 And that's not to say that y'all can't testify and speak as well. 1062 01:00:05,240 --> 01:00:07,000 If you choose to, we'll just swear you on later. 1063 01:00:07,000 --> 01:00:08,840 Okay, thank you, go ahead. 1064 01:00:08,840 --> 01:00:16,360 >> Again, for the record, Richard Canone, city of Denton Development Services, 1065 01:00:16,360 --> 01:00:17,800 Deputy Director and Planning Director. 1066 01:00:17,800 --> 01:00:22,120 What I've prepared is just a, and I think you should have a copy in front of you, 1067 01:00:22,120 --> 01:00:25,800 just a short PowerPoint presentation that just kind of outlines 1068 01:00:25,800 --> 01:00:29,560 the material that we have provided you in the backup. 1069 01:00:29,560 --> 01:00:33,960 Again, the location of this property is 2800 Fort Worth Drive, 1070 01:00:33,960 --> 01:00:37,400 approximately 13 and a half acres. 1071 01:00:37,400 --> 01:00:38,920 Currently used as a mobile home park. 1072 01:00:38,920 --> 01:00:42,200 There is a current license for 77 stands. 1073 01:00:42,200 --> 01:00:46,680 And there were some prior approvals relative to this site and this request, 1074 01:00:46,680 --> 01:00:48,040 or I should say this appeal. 1075 01:00:48,040 --> 01:00:53,720 There was a specific use permit/rezoning that was done in 1981 1076 01:00:54,440 --> 01:00:56,840 that included a concept plan for 100 pads. 1077 01:00:56,840 --> 01:01:01,240 The property received final plat in 1985, 1078 01:01:01,240 --> 01:01:05,320 and then this was also part of the 2002 city-wide rezoning 1079 01:01:05,320 --> 01:01:10,120 from that specific use to just the, to ECI, I believe. 1080 01:01:10,120 --> 01:01:14,680 Again, there was a vested rights determination 1081 01:01:14,680 --> 01:01:18,200 that was submitted in conjunction with a denial of a building permit 1082 01:01:18,200 --> 01:01:20,760 as it relates to gas well setbacks. 1083 01:01:21,880 --> 01:01:27,560 The applicant, their assertion was that they were vested 1084 01:01:27,560 --> 01:01:29,480 in a 50-foot setback from the wellhead, 1085 01:01:29,480 --> 01:01:33,240 which was in place or would have been a setback at the time. 1086 01:01:33,240 --> 01:01:38,040 And again, they based that on that the setbacks came after their site development 1087 01:01:38,040 --> 01:01:41,960 with the SUP approved in '81 and then plat in '85. 1088 01:01:41,960 --> 01:01:48,680 The staff determination was that the rich cheap gas well plat in 2002, 1089 01:01:50,040 --> 01:01:54,120 as you can see in the map attached here, or I'm sorry, included to the right. 1090 01:01:54,120 --> 01:02:00,600 The area that they were anticipating putting some of those additional trailers 1091 01:02:00,600 --> 01:02:04,520 would be covered by both the 250 reverse setback 1092 01:02:04,520 --> 01:02:08,120 as well as the 300-foot separation from equipment to protect use. 1093 01:02:08,120 --> 01:02:12,680 Staff's determination that the project was complete 1094 01:02:12,680 --> 01:02:17,960 and that zoning setbacks do not vest in accordance with Texas Local Government Code 245. 1095 01:02:17,960 --> 01:02:21,000 - Mr. Commanding, before you, sorry, before the next slide. 1096 01:02:21,000 --> 01:02:26,920 I was curious how those other properties or residences were somehow included in the 1097 01:02:26,920 --> 01:02:29,880 circle. Can you go over that part again? 1098 01:02:29,880 --> 01:02:34,520 - Certainly. So the gas well setbacks came into effect later 1099 01:02:34,520 --> 01:02:40,200 as part of the, I think it was 2002 development code. 1100 01:02:40,200 --> 01:02:43,080 And so those are essentially considered non-conforming. 1101 01:02:43,080 --> 01:02:47,240 So it would be like any other protected use, those that kind of fall within the ring, 1102 01:02:47,960 --> 01:02:52,040 can continue to exist as a nonconformity until such time as it's damaged or... 1103 01:02:52,040 --> 01:02:55,800 - So when those properties were built, they were probably just adherent to them? 1104 01:02:55,800 --> 01:02:57,240 By or totally just a hundred? - Correct. 1105 01:02:57,240 --> 01:02:57,880 - Okay. - Correct. 1106 01:02:57,880 --> 01:03:00,760 And I don't even know if the wells were there at that time when this was initially... 1107 01:03:00,760 --> 01:03:02,440 - Yeah, okay. - Initially constructed. 1108 01:03:02,440 --> 01:03:04,920 - May I ask a question while you have that up there? 1109 01:03:04,920 --> 01:03:10,600 - Mr. Higgins? - I don't, I understand this. 1110 01:03:10,600 --> 01:03:16,680 When you look at the Ricks Creek overhead, it looks like, 1111 01:03:16,680 --> 01:03:20,200 it looks like you don't measure it from the well, you measure it from the pad site? 1112 01:03:20,200 --> 01:03:24,440 - Correct. There's two different measurements. So there's a reverse setback that's measured 1113 01:03:24,440 --> 01:03:31,720 from the pad site. And then there's a 300 foot separation from the equipment into the protected 1114 01:03:31,720 --> 01:03:35,160 use. So there's really two measurements that are done. 1115 01:03:35,160 --> 01:03:41,240 - All right, I see. - And then again, this is really just 1116 01:03:42,120 --> 01:03:47,560 word for word, exactly what's in the, within the backup. These were, there are six criteria for 1117 01:03:47,560 --> 01:03:53,080 a vested rights determination. The first, whether the city received fair notice on the project 1118 01:03:53,080 --> 01:03:59,400 and the nature of the permit sought. Again, we found based upon these reasons that there was no 1119 01:03:59,400 --> 01:04:04,200 fair notice for another project or nature of another valid permanent property. The second 1120 01:04:04,200 --> 01:04:07,720 criteria, whether the nature and scope of the project prevents the city from applying one or 1121 01:04:07,720 --> 01:04:12,760 more current regulations to the proposed or pending applications. Again, we view this 1122 01:04:12,760 --> 01:04:18,360 project as complete and no vested rights remain from that 1985 plat. There were no other valid 1123 01:04:18,360 --> 01:04:25,160 permits. Therefore the vested, the guest will setback, reverse setback of 250 feet would apply. 1124 01:04:25,160 --> 01:04:31,080 Criteria number three, whether prior approved applications for the property have expired 1125 01:04:31,080 --> 01:04:36,440 and terminated. And there's been no other prior approved applications defined by 1126 01:04:36,440 --> 01:04:43,720 local government code chapter 245. Number four, whether any statutory exemptions to a right 1127 01:04:43,720 --> 01:04:47,240 asserted under local government code 245 is applicable to one or more of the current 1128 01:04:47,240 --> 01:04:52,360 regulations. And because zoning is exempted from local government code, the SGP was extinguished 1129 01:04:52,360 --> 01:04:57,960 as a part of the rezoning of the property, vesting no development rights of the property. 1130 01:04:57,960 --> 01:05:02,360 Again, that was what I had mentioned early on, where it was zoned with that SGP and then when 1131 01:05:02,360 --> 01:05:10,360 it was rezoned, it was not rezoned with that SGP overlay, if you will, or demarcation. Further, 1132 01:05:10,360 --> 01:05:19,400 the reverse setback is a zoning regulation and does apply. Whether there is any exemption from 1133 01:05:19,400 --> 01:05:23,320 one or more regulations under the DDC or city ordinance is applicable. There are no exemptions 1134 01:05:23,320 --> 01:05:30,280 from the 250 foot setback for this property. And whether the project is dormant, the development 1135 01:05:30,280 --> 01:05:36,520 project is complete, so it is not dormant, is really how we're looking at that. Just to reiterate 1136 01:05:36,520 --> 01:05:43,000 what we talked about prior to opening the public hearing, looking at the review of this, there's 1137 01:05:43,000 --> 01:05:49,800 two really sections that govern this, first being the local government code 211.010, again, which 1138 01:05:49,800 --> 01:05:54,360 requires this to transmit to the board all papers constituting the record of the action that is 1139 01:05:54,360 --> 01:05:59,320 appealed. And so what you have in front of you or was included as part of that packet is the initial 1140 01:05:59,320 --> 01:06:04,280 request as well as our determination, the legal memo, and ultimately that serves as the basis for 1141 01:06:04,280 --> 01:06:10,120 the city manager's letter. And then DDC 3538E, if the petitioner believes that the city manager 1142 01:06:10,120 --> 01:06:14,920 has vested rights, iterations, and error, the petitioner shall have the right to appeal such 1143 01:06:14,920 --> 01:06:24,120 determination to the city's board of adjustment. Under the criteria, DDC 3538E, and again, this is 1144 01:06:24,120 --> 01:06:29,560 the same language that's in the current DDC, there's criteria for deciding the petition, and I'll just 1145 01:06:29,560 --> 01:06:34,600 point to the city manager or the underlined or board of adjustment on appeal. And so the six 1146 01:06:34,600 --> 01:06:42,280 criteria are the same that I had just gone for, gone over previously. And with that, I have no 1147 01:06:42,280 --> 01:06:49,560 other slides. I'd be happy to answer any additional questions. Mr. Carton. You said the project's 1148 01:06:49,560 --> 01:06:56,520 complete once, and I see a lot of definition. What is the definition of complete project? 1149 01:06:56,520 --> 01:07:00,920 We look at that as when any improvements associated with that were required as part of that 1150 01:07:00,920 --> 01:07:07,080 plat. Once those were complete, the project is complete. Different than a residential subdivision 1151 01:07:07,080 --> 01:07:17,800 that has individually platted lots. This was platted as one lot. 1152 01:07:19,880 --> 01:07:28,440 When you say approves, does that mean that each intended lot for a mobile home, 1153 01:07:28,440 --> 01:07:39,320 pads are done, plumbing's done, electricity's done, and now you're done waiting for mobile homes to be 1154 01:07:39,320 --> 01:07:45,880 put on it, or does it mean that the mobile homes have to be on it? If there's any associated public 1155 01:07:45,880 --> 01:07:52,920 improvement with that, meaning any streets, drainage, those related permits. Another component 1156 01:07:52,920 --> 01:07:57,800 of that of that SGP approval was that it comply with all standards of the code. I think at the 1157 01:07:57,800 --> 01:08:04,120 time, I think is what it says in there. Now, we haven't reviewed this. I don't know for sure if 1158 01:08:04,120 --> 01:08:09,400 it meets it, but I believe in the code that governed at the time, I think it was part of the 1159 01:08:09,400 --> 01:08:17,320 1969 code, there was a maximum building coverage of 40%. So whether or not that came into play, 1160 01:08:17,320 --> 01:08:22,920 again, I'm not certain that wasn't anything that we looked at with respect to this. 1161 01:08:22,920 --> 01:08:32,440 Can you explain to me why it's considered completed if there's 77 sites there, but it was 1162 01:08:32,440 --> 01:08:37,960 originally approved for 100? I believe that was one of the arguments the applicant was making too, 1163 01:08:37,960 --> 01:08:45,000 is that they feel it's not complete, and we'll get a chance to explain that later, but why is 1164 01:08:45,000 --> 01:08:52,040 the city considering that it's complete when it's only built out to 77? You know, if I could jump in, 1165 01:08:52,040 --> 01:09:01,480 in Texas, a manufactured home is considered personal property. It's not a fixture on the land, 1166 01:09:01,480 --> 01:09:09,400 it's not development. It's an object to be, that can be stored on property. It's kind of like the 1167 01:09:09,400 --> 01:09:16,440 difference between a real house, or, well, I don't mean to say a real house, but a building with a 1168 01:09:16,440 --> 01:09:26,440 foundation that's affixed to the ground, or, you know, a mobile home that could be set upon the 1169 01:09:26,440 --> 01:09:34,600 ground, or a pad, or what have you, it's actually, and it can be moved away. The very fact that it's 1170 01:09:34,600 --> 01:09:41,160 mobile means it's not associated with the land, it's not part of the land. If the land is sold, 1171 01:09:41,160 --> 01:09:45,880 or if the mobile home is sold, someone could haul it off. It doesn't necessarily 1172 01:09:45,880 --> 01:09:55,320 have to be sold with the land, and so there are cases that talk about objects that you store 1173 01:09:56,120 --> 01:10:07,800 on land is not part of the development or the development project. So the company is selling 1174 01:10:07,800 --> 01:10:13,480 gravel, they could have a pile of gravel on the ground. The pile of gravel is not part of the 1175 01:10:13,480 --> 01:10:25,480 development, it's stock and trade. And so, because it's not an actual improvement to the land, 1176 01:10:25,480 --> 01:10:35,800 it's necessarily part of it. It's not part of the development itself, or a necessary part of the 1177 01:10:35,800 --> 01:10:45,720 proposal. The concrete is poured. What's necessary for storing mobile homes on there is done, 1178 01:10:46,680 --> 01:10:57,160 but the lack of homes is the homes that are protected uses. You could use the property for 1179 01:10:57,160 --> 01:11:04,120 something else, other than a mobile home park. But the fact that there are no mobile homes on 1180 01:11:04,120 --> 01:11:07,480 there doesn't mean that the project's incomplete. Does that make sense? 1181 01:11:10,920 --> 01:11:17,960 Wouldn't by the pictures, and I'm sorry for my ignorance on this, but having the 1182 01:11:17,960 --> 01:11:23,480 drive with the circle, wouldn't that show that there's intended for 1183 01:11:23,480 --> 01:11:32,200 further use there? It may be, but does it necessarily mean that those are going to be 1184 01:11:32,200 --> 01:11:41,320 mobile homes, as opposed to, I don't know, the same concrete could be used for a go park track, 1185 01:11:41,320 --> 01:11:52,520 or a parking lot for some other use? It's not necessarily a mobile home park. It doesn't 1186 01:11:52,520 --> 01:12:02,520 necessarily have to involve protected uses that are subject to the reverse setback. And it's not, 1187 01:12:02,520 --> 01:12:11,240 again, something that's stored on the land is not part of the development of the land. 1188 01:12:11,240 --> 01:12:19,720 Just like parking a car on there is not development. Could someone park their mobile home there without 1189 01:12:19,720 --> 01:12:29,400 any hookups to the city? Has that part not been developed yet, as the electric and water, 1190 01:12:29,400 --> 01:12:33,880 and that's what they're looking to develop, so that more mobile homes could be placed on the 1191 01:12:33,880 --> 01:12:41,880 property? Or are those already put in? Because if it's just things to be stored, then I don't 1192 01:12:42,680 --> 01:12:51,400 understand why. I have to go back to the original definition of mobile home park, 1193 01:12:51,400 --> 01:12:55,240 because I also think it talked about travel trailer, and it referenced a 1194 01:12:55,240 --> 01:13:05,000 sort of a non-permanent basis. I'm sorry, it was of a transient nature, I think is what the 1195 01:13:05,000 --> 01:13:14,120 definition states. And so there could have been a RV that potentially could use that. 1196 01:13:14,120 --> 01:13:16,920 That, I think, would be permitted within the ordinance at that time, 1197 01:13:16,920 --> 01:13:25,640 which I don't know if you necessarily had to have had a concrete path. Again, that I'm not 1198 01:13:25,640 --> 01:13:32,200 aware of to park an RV for a short period of time. And that could be parked closer than 250 feet, 1199 01:13:32,200 --> 01:13:37,960 because it's just... If it's not on a pad, it could be there for a day or two, or 1200 01:13:37,960 --> 01:13:46,120 just almost like a campground. And so is the applicant looking to build more pad sites? Correct. 1201 01:13:46,120 --> 01:13:53,000 Okay, and then that would be a protective use? Correct. I understand that. Mr. Higgins, 1202 01:13:53,000 --> 01:13:57,640 did you have a question as well? I'd like to get clarification from Jerry to see if I understand. 1203 01:13:58,600 --> 01:14:02,680 I'm not really concerned about the mobile homes, because those belong to the owners of the mobile 1204 01:14:02,680 --> 01:14:08,440 homes. I'm concerned about the property and what's on it, if it's owned by the property owner or 1205 01:14:08,440 --> 01:14:17,240 something. If you had 100 pad sites complete, then the project would be complete. And if you 1206 01:14:17,240 --> 01:14:23,320 have 70 pad sites complete and 30 that are not, you're still considering the project to be complete. 1207 01:14:24,920 --> 01:14:33,240 Well, and that was really a staff determination. But I think part of that is that having a pad, 1208 01:14:33,240 --> 01:14:40,040 or a concrete pad, is not a protected use as such. It's not a protected use until you have a 1209 01:14:40,040 --> 01:14:45,720 mobile home on it and people are living there. That's where the problem comes in. 1210 01:14:45,720 --> 01:14:53,800 You're not entitled to locate homes on the property within the reverse setback. 1211 01:14:54,440 --> 01:15:03,240 And so the fact that they've got the concrete poured for the drives and they've got 1212 01:15:03,240 --> 01:15:15,080 utility stands in that are not occupied or what have you, that's not actually a protected use 1213 01:15:15,080 --> 01:15:21,640 as such. Does that answer your question? So sorry, so pad sites are not a protected use, 1214 01:15:21,640 --> 01:15:26,280 or they are a protected use. They're only protected when a mobile home is on it. 1215 01:15:26,280 --> 01:15:33,160 So the setup for the mobile home is not protected until a mobile home is on it. 1216 01:15:33,160 --> 01:15:39,960 It's interesting because you're getting into these kind of hair splitting details here. I mean you 1217 01:15:39,960 --> 01:15:47,400 could even sell mobile homes without them being a protected use and store them for sale. That would 1218 01:15:47,400 --> 01:15:56,280 not be a protected use. To simply store mobile homes for sale would not be a protected use. 1219 01:15:56,280 --> 01:16:06,600 And so the pads, I don't know that that's really the issue so much as having the mobile homes there 1220 01:16:06,600 --> 01:16:12,920 that are occupied. They want to place residences within the 200 feet area. Right. I need a legal 1221 01:16:12,920 --> 01:16:18,200 definition of the term protected use. I'll have to look for that. Yep. 1222 01:16:18,200 --> 01:16:26,520 So I guess what I'm hearing is that there's a little, so pad sites are not a protected use 1223 01:16:26,520 --> 01:16:30,520 and the mobile homes are not a protected use, but put them together with the intention of that 1224 01:16:30,520 --> 01:16:35,800 becoming a residence. Well once it is occupied. Once it's occupied and that would be within this 1225 01:16:35,800 --> 01:16:45,640 250 foot circle that we're looking at. Am I clear on that? Did I get that right? 1226 01:16:45,640 --> 01:16:51,400 Clear as mud right about the closest. We usually see signs so this is different. 1227 01:16:51,400 --> 01:17:00,760 So to make sure we know what we're talking about. Protected use is defined in section 6.3.1. That's 1228 01:17:00,760 --> 01:17:08,680 general definitions. Protected use is defined as a dwelling church, public park, public library, 1229 01:17:08,680 --> 01:17:15,480 hospital, pre-kindergarten, pre-kindergarten or elementary, middle or high school, 1230 01:17:15,480 --> 01:17:23,320 public school, public transit center, senior center, public recreation center, hotel or motel. 1231 01:17:23,320 --> 01:17:27,960 In the first quarter that was dwelling. Yes. And that's really what we're talking about. 1232 01:17:30,120 --> 01:17:36,760 Because they didn't develop those out fast enough is that and it's not protected because of the 1233 01:17:36,760 --> 01:17:45,160 rezoning. Is that because they didn't put a dwelling in place. A dwelling is a protected use. 1234 01:17:45,160 --> 01:17:54,920 But they didn't do it fast enough. I just want to make that in 81 they were approved and 85 approved 1235 01:17:54,920 --> 01:18:01,800 because there's rezoning 02 because they didn't put a dwelling in place by 02 prior to that. 1236 01:18:01,800 --> 01:18:06,520 Well what you're saying with fast enough I think what you're describing is more or less 1237 01:18:06,520 --> 01:18:12,600 a grandfather that if they got it in that that they would be entitled to remain in place as a 1238 01:18:12,600 --> 01:18:18,920 legally non-conforming use despite the fact that they are non-conforming. They don't meet the law. 1239 01:18:20,200 --> 01:18:28,280 You know the issue here is that it's a protected use whether they put it up before or they put it 1240 01:18:28,280 --> 01:18:38,120 up after if it's within the reverse setback. And so you know would there be a situation where they 1241 01:18:38,120 --> 01:18:45,080 could claim some kind of a legally non-conforming component of that. That's an entirely different 1242 01:18:45,080 --> 01:18:50,600 question from the one that's brought before you today. So those properties that we're seeing 1243 01:18:50,600 --> 01:18:57,240 inside that 250 and 300 foot circle those were to your point Mr. Horne those were developed 1244 01:18:57,240 --> 01:19:04,600 fast enough. But now those would be legally non-conforming so heaven forbid something 1245 01:19:04,600 --> 01:19:11,960 you know some natural disaster should heaven forbid but it would be damaged somehow. The property 1246 01:19:11,960 --> 01:19:20,520 owner would not be able to add dwellings back to those sites in the same way that we saw that sign 1247 01:19:20,520 --> 01:19:25,400 that got knocked over and he had good intentions of putting a new one up but I'm sorry like it got 1248 01:19:25,400 --> 01:19:29,560 damaged so you can't do that. So is that do I understand this correctly so those those were 1249 01:19:29,560 --> 01:19:37,720 built out prior to this 02 rezone or ordinance or whatnot and if they were to be removed or damaged 1250 01:19:37,720 --> 01:19:43,240 somehow they could not be put back in. That's I know and so I know we're not talking about 1251 01:19:43,240 --> 01:19:47,080 those but just put it in context so I understand because we're talking about dwellings inside the 1252 01:19:47,080 --> 01:19:56,600 circle. Yeah okay all right thank you. And again just for for clarification because I know that 1253 01:19:56,600 --> 01:20:03,880 Jerry had provided on on the definition of dwelling or dwelling unit the code further defines dwelling 1254 01:20:03,880 --> 01:20:10,200 HUD code manufactured home and then dwelling mobile home but there is a specific exemption 1255 01:20:10,200 --> 01:20:13,960 this term does not include a recreation vehicle that's defined by 1256 01:20:25,000 --> 01:20:35,320 Thank you for helping us understand all of this all right go ahead yes remind me your name please 1257 01:20:35,320 --> 01:21:00,040 sir thank you all very much we certainly appreciate your time tonight on this complex issue my name 1258 01:21:00,040 --> 01:21:06,920 is Johnson Vincent office address is 2323 cross avenue and before I get going I want to mention 1259 01:21:06,920 --> 01:21:13,880 that I have with me tonight Mr. Wayne Allen who is with Stone Town the owner of the park 1260 01:21:13,880 --> 01:21:19,000 as well as Lee Allison and Lance Fulldoor who are civil engineers who office here in 1261 01:21:19,000 --> 01:21:23,480 Benton so you're probably very familiar with them. Mr. Allison is telling me that he's been 1262 01:21:23,480 --> 01:21:29,320 working on this project since about 2011 and in the last couple years it's gotten much more 1263 01:21:29,320 --> 01:21:34,920 heavily involved in it so is it correct I have 10 minutes or is there 1264 01:21:34,920 --> 01:21:46,600 I think Ron yes okay I'm sure I'm going to say yes but I'm sure we'll have follow-up questions 1265 01:21:46,600 --> 01:21:53,320 sure and that's some studies are stricter about time Mr. Smith Mr. Smith could you speak a little 1266 01:21:53,320 --> 01:22:03,160 louder sure we're here tonight on the appeal of the vested rights determination you have much of 1267 01:22:03,160 --> 01:22:11,560 this in your packet that was provided by the staff actually Mr. Allison's company is was working on 1268 01:22:11,560 --> 01:22:19,240 this back in February 2017 specifically they were tasked with looking at some of the floodplain 1269 01:22:19,240 --> 01:22:23,560 issues that were involved so it's been about two and a half years now that they've been working on 1270 01:22:23,560 --> 01:22:31,480 this the vested rights issue came up very late in the process over the summer of this year and 1271 01:22:31,480 --> 01:22:36,040 because of that Allison engineering group eventually did ask for a vested rights 1272 01:22:36,040 --> 01:22:44,440 determination the city manager issued that determination on September 27 and stated that 1273 01:22:44,440 --> 01:22:49,640 you know vested rights did not apply in this case we obviously disagree with that and that's why we're 1274 01:22:49,640 --> 01:22:56,760 doing it for you and I provided you with a letter explaining our position as well as a copy of the 1275 01:22:56,760 --> 01:23:01,960 PowerPoint presentation that we're going to talk about I'm going to come back to this in a second 1276 01:23:01,960 --> 01:23:08,120 but I think it is important to understand that this property was originally granted a specific 1277 01:23:08,120 --> 01:23:18,440 use permit in 1981 and that's a copy of ordinance number 81051 passed by city council in May 5 1981 1278 01:23:18,440 --> 01:23:27,320 it specifies in here that the SUP is granted for the mobile home park use and it specifically 1279 01:23:27,320 --> 01:23:32,520 states that it's conditioned on a site plan which is attached as an exhibit so this is an ordinance 1280 01:23:32,520 --> 01:23:39,880 passed by council when the only zoning process has the force of law you see the date there May 5 1981 1281 01:23:39,880 --> 01:23:45,240 and that's a copy of the attached concept plan the staff has acknowledged the concept plan 1282 01:23:45,240 --> 01:23:50,920 fills 100 pads and I'm going to come back to that issue in an event as well but it would be our 1283 01:23:50,920 --> 01:23:56,040 contention just like any other project that is not necessarily built all at one time but you see many 1284 01:23:56,040 --> 01:24:01,640 development projects that were built in phases this is no different the intent was always there 1285 01:24:01,640 --> 01:24:07,000 to do up to 100 units maybe it didn't happen all at once but I think that's irrelevant I think 1286 01:24:07,000 --> 01:24:13,720 what's important is that the intent was shown in 1981 when this concept plan was attached to this 1287 01:24:13,720 --> 01:24:19,480 ordinance that they wanted to develop 100 pads just because it didn't happen all at the same time 1288 01:24:19,480 --> 01:24:23,320 I think should be immaterial there's many other projects that are built in phases 1289 01:24:25,720 --> 01:24:32,440 the uh the plat final plat was adopted in 8.4 of 1985 now there are a couple of things I want to 1290 01:24:32,440 --> 01:24:40,680 discuss on this plat there's been some mention of the cul-de-sac on the west side why would you show 1291 01:24:40,680 --> 01:24:46,360 a cul-de-sac if you didn't intend to eventually develop dwelling units there that would be accessed 1292 01:24:46,360 --> 01:24:52,280 from that cul-de-sac there would be no point in doing that another thing about plats there's been 1293 01:24:52,280 --> 01:24:58,840 some discussion of the plat not showing or not mentioning a use not showing structures or building 1294 01:24:58,840 --> 01:25:03,320 footprints you know this is board of adjustment it's not your planning and zoning commission and 1295 01:25:03,320 --> 01:25:09,880 council where it's more typical to see plats come through but plats typically don't show uses the 1296 01:25:09,880 --> 01:25:16,200 use is really immaterial the property is flat I just lost our quorum so yeah one second I'll suspend 1297 01:25:22,360 --> 01:25:24,200 me 1298 01:25:24,200 --> 01:25:34,840 it's a shame if we had seven members we wouldn't 1299 01:25:34,840 --> 01:25:42,200 you keep your brother off 1300 01:25:48,840 --> 01:25:54,360 yeah we lost our quorum I apologize I have to be a mom okay it's okay all right thank you I apologize 1301 01:25:54,360 --> 01:26:02,360 you're the chair do what I want my dad all right go ahead please continue so anyway my point about 1302 01:26:02,360 --> 01:26:07,400 the plat is that the plat shows the lot and it shows the improvements that would be provided on 1303 01:26:07,400 --> 01:26:11,240 the lot again it begs the question why would you have a cul-de-sac there on the west end if you 1304 01:26:11,240 --> 01:26:17,880 didn't plan to eventually do pads there and plats typically do not show uses they typically do not 1305 01:26:17,880 --> 01:26:23,960 show building footprints those are governed by the zoning whatever use you put on your plat at lot 1306 01:26:23,960 --> 01:26:29,560 and whatever building envelope takes shape there that's governed by the zoning so you know I think 1307 01:26:29,560 --> 01:26:36,760 the plat does show the intent to develop this out with pads but the fact that there's no use for 1308 01:26:36,760 --> 01:26:44,360 building footprint shown on there I think is immaterial this is the email March 23 2018 1309 01:26:45,240 --> 01:26:51,560 when this issue first started to surface after several years and really after decades of this 1310 01:26:51,560 --> 01:26:55,960 property being in service as a mobile home park there was a question raised about what does the 1311 01:26:55,960 --> 01:27:02,200 sup provide what is the concept plan provide and what's what is the property invested in 1312 01:27:02,200 --> 01:27:11,000 this is the march 30 2018 reply from mr kanan refers to the 1981 sup ordinance in fact the city 1313 01:27:11,000 --> 01:27:15,160 revisions I think they were given up to find it for us refers to the concept plan for the mobile 1314 01:27:15,160 --> 01:27:20,920 home park and it says I quote the concept plan shows 100 mobile home pads also consistent with 1315 01:27:20,920 --> 01:27:28,600 staff comments referencing such pre-application comments from May 28 2009 so not just in 2018 but 1316 01:27:28,600 --> 01:27:34,920 back in 2009 staff apparently was of the opinion that the concept plan provided for 100 mobile 1317 01:27:34,920 --> 01:27:42,680 home pads and just as an aside the 2002 city-wide rezoning that may have changed the zoning on this 1318 01:27:42,680 --> 01:27:46,760 property but it would also be our contention that we were vested prior to that time as well 1319 01:27:46,760 --> 01:27:51,320 so you know we think we've been vested from 1981 going forward 1320 01:27:51,320 --> 01:27:57,480 further evidence that the city knew exactly what this use was 1321 01:27:57,480 --> 01:28:03,880 and had no issues with it going forward the first in a series of mobile home park licenses was issued 1322 01:28:03,880 --> 01:28:07,880 to the mobile home park in 1984 and again these are from the city's records 1323 01:28:07,880 --> 01:28:12,440 there were numerous mobile home park licenses issued over the years 1324 01:28:12,440 --> 01:28:22,600 new homes have continued to be set at the mobile home park the gas wells were approved in 2002 2003 1325 01:28:22,600 --> 01:28:29,320 but you can see here that there's a list of units just since october 2015 numerous units that have 1326 01:28:29,320 --> 01:28:34,520 been set in the mobile home park why didn't it come up then i can't take but apparently they were 1327 01:28:34,520 --> 01:28:44,280 proposition yes sir did you get sorry did any of those fall inside the circle with the word my 1328 01:28:44,280 --> 01:28:49,320 question yeah inside of the circle good question i don't know the answer to that question do y'all know 1329 01:28:56,600 --> 01:28:59,640 the fact remains that there were can i ask the question also 1330 01:28:59,640 --> 01:29:07,160 do those new home sets require permitting by the city i believe they did correct each one 1331 01:29:07,160 --> 01:29:14,440 required a permit by the city that's that's what i'm talking about yes can we be able to see can we 1332 01:29:14,440 --> 01:29:20,600 find is this can we get that information from the city is that like what i know they're in the circle 1333 01:29:20,600 --> 01:29:27,240 if they if those are in the circle yes after the 2002 and also the permits also the permit 1334 01:29:27,240 --> 01:29:33,320 this may mean if we need to gather this research oh thank you it may mean that we you know if it 1335 01:29:33,320 --> 01:29:39,880 takes the city time we might have to put on a vote obviously but so to so to your point mr vinson 1336 01:29:39,880 --> 01:29:48,120 there have been several new sites or homes that have been added since 2002 but we're unclear about 1337 01:29:48,120 --> 01:29:54,200 where those homes are located if they're inside the circle or out i personally am unclear on that 1338 01:29:54,200 --> 01:30:00,920 i'm sure someone could make that determination well could we get a map from country view of the 1339 01:30:00,920 --> 01:30:08,920 site numbers that'll tell us right there we just need a layout of the park with the pad numbers on 1340 01:30:08,920 --> 01:30:20,360 it thank you that way sure good question so in any event as you can see this issue has come up 1341 01:30:20,360 --> 01:30:24,680 very late in the game you know the city continued to issue permits for these settings of these mobile 1342 01:30:24,680 --> 01:30:30,760 homes on these paths country view mobile home park continues to be properly licensed by the city 1343 01:30:30,760 --> 01:30:38,200 this is dated september 30 2019 so what is that about four weeks ago they were issued a mobile 1344 01:30:38,200 --> 01:30:42,840 home park license for this year so again no problems that we can see you know have no reason 1345 01:30:42,840 --> 01:30:47,800 to think that we were not totally invested and could proceed to continue to develop the mobile 1346 01:30:47,800 --> 01:30:55,160 home park as i said allison engineering group has been working on this in the floodplain context for 1347 01:30:55,160 --> 01:31:01,240 a couple of years and i want to point out that from a floodplain standpoint you know we do understand 1348 01:31:01,240 --> 01:31:05,720 that's a totally separate issue we understand we need to comply with floodplain regulations 1349 01:31:05,720 --> 01:31:10,760 and do what's necessary to you know whether it's race a pad out of the floodplain or whatever 1350 01:31:10,760 --> 01:31:15,960 that's not before you today that's a totally separate issue i'm sure we're going to comply 1351 01:31:15,960 --> 01:31:20,360 with whatever needs to be complied with on that but the point of this is you can see on here the 1352 01:31:20,360 --> 01:31:26,200 cul-de-sac you can see the proposed pads around the cul-de-sac you can see that allison engineering 1353 01:31:26,200 --> 01:31:31,960 is working on this that that you can't read it on the powerpoint and i had to squint but this drawing 1354 01:31:31,960 --> 01:31:38,120 is dated may of 2018 so about a year and a half ago this was presented in the city they saw the 1355 01:31:38,120 --> 01:31:42,440 pad science this is going to relate to the fair notice issue we're going to talk about 1356 01:31:42,440 --> 01:31:52,760 existing hydraulic work map again showing pad sites around the cul-de-sac and a copy of the 1357 01:31:52,760 --> 01:31:58,680 1985 plan again showing the proposed pad so this is all my point my larger point is that this is 1358 01:31:58,680 --> 01:32:06,440 consistent all the way through from 1981 through today there are no surprises here the sqp ordinance 1359 01:32:06,440 --> 01:32:13,560 said what it said the concept plan said what it said with regard to 100 pads 1981 to 2019 this has 1360 01:32:13,560 --> 01:32:19,000 been a continuous operation permits issued you know everything's going along fine it's licensed 1361 01:32:19,000 --> 01:32:24,680 this issue came up very recently how much there are surprises i'm going to quickly take you through 1362 01:32:24,680 --> 01:32:32,280 a few photos just an aerial view of the country mobile home park you can see it's laid out exactly 1363 01:32:32,280 --> 01:32:38,360 like the plat showed see the cul-de-sac it's been there since that time birds eye view this is a 1364 01:32:38,360 --> 01:32:46,920 little bit closer just a quick photo tour and i know the use is not really relevant today other 1365 01:32:46,920 --> 01:32:52,440 than the fact that we're invested in the use but whether this is a good use or not i want to raise 1366 01:32:52,440 --> 01:32:58,440 your comfort level on this mobile home parks i've represented some over the years and the perception 1367 01:32:58,440 --> 01:33:04,600 of them is sometimes i think i'm more in this particular instance i'm going to take you inside 1368 01:33:04,600 --> 01:33:09,480 the park and show you what it looks like to see what we're talking about this is all recent 1369 01:33:09,480 --> 01:33:15,640 photo photography from google street view going down the main road in the interior 1370 01:33:17,240 --> 01:33:22,680 i think you'll see i was very pleasantly surprised to see how clean it is it's an 1371 01:33:22,680 --> 01:33:28,120 excellent shape i mean this is a well maintained mobile home park i'll go through these quickly 1372 01:33:28,120 --> 01:33:33,720 because i know my time is limited but again you know continuing west continuing west i mean it's 1373 01:33:33,720 --> 01:33:39,800 very spotless it's i'm very impressed with the view of this now we're rounding the curve and 1374 01:33:39,800 --> 01:33:44,040 showing them the plant you can see in the background the vacant part of the property 1375 01:33:46,280 --> 01:33:51,800 looking down the cul-de-sac you can see the vacant land why would they have shown this on the concept 1376 01:33:51,800 --> 01:33:57,480 plan if they did not intend to eventually develop those as mobile home pads now we're turning around 1377 01:33:57,480 --> 01:34:03,720 we're heading back east again i'll go quickly through these this is an excellent use i mean 1378 01:34:03,720 --> 01:34:09,080 this is you know these are people's homes they live here you know it's a good affordable housing 1379 01:34:09,080 --> 01:34:14,600 option it adds to the variety of housing types in the city of denton coming back towards the 1380 01:34:14,600 --> 01:34:20,760 main entrance you know there's a playground for the kids there's a little gazebo there i don't see 1381 01:34:20,760 --> 01:34:27,480 any trash anywhere or anything sitting out so you know it's a good use now i want to get in the time 1382 01:34:27,480 --> 01:34:33,560 i have left into the six points that the city has established to guide you in its criteria for 1383 01:34:33,560 --> 01:34:38,840 looking at these best rights determinations and this is in the handout that i gave you as well so 1384 01:34:38,840 --> 01:34:45,080 if i had to zip through this you can read it at your leisure question one whether the city received 1385 01:34:45,080 --> 01:34:51,880 fair notice of the project first of all the council passed the shp ordinance in 1981 they 1386 01:34:51,880 --> 01:34:58,040 granted the first mobile home park license in 1984 numerous subsequent licenses permitted numerous 1387 01:34:58,040 --> 01:35:03,000 settings of new homes as recently as this year i think that's fair notice i think the city knows 1388 01:35:03,000 --> 01:35:09,080 exactly what this use has been for decades uh city says that the final plan did not approve uses or 1389 01:35:09,080 --> 01:35:14,920 depict the location of structures as i explained flats don't do that concept plans do that flats 1390 01:35:14,920 --> 01:35:21,000 do not that seems to me to be of little if any relevance the city says that the project is 1391 01:35:21,000 --> 01:35:27,320 complete and that this is really i think the main question um that we're dealing with we think the 1392 01:35:27,320 --> 01:35:33,960 project was not complete it was intended to be phased why otherwise would the concept plan show 1393 01:35:33,960 --> 01:35:40,040 100 pads from the very beginning and plat shows the cul-de-sac to access the remainder of those 1394 01:35:40,040 --> 01:35:47,320 paths it was always intended to be fully developed so i think the record is is clear that the city had 1395 01:35:47,320 --> 01:35:52,200 fair notice knew the nature of the permit sought knew that there would be 100 pads there eventually 1396 01:35:52,840 --> 01:35:57,480 and i believe we're vested in that second point whether the nature and scope of the project 1397 01:35:57,480 --> 01:36:03,560 prevents the city from applying one or more current regulations the city says the project is complete 1398 01:36:03,560 --> 01:36:09,320 we disagree with that premise we think the vested rights derived from the original 1981 shp ordinance 1399 01:36:09,320 --> 01:36:15,560 approving this specific use it's not a blanket rezoning it was an shp ordinance specific to this 1400 01:36:15,560 --> 01:36:23,880 one news again 1981 concept plan the 1985 flat showing the entire lock and the cul-de-sac 1401 01:36:23,880 --> 01:36:32,040 and the mobile home park permits licenses and other things through 2019 as recently as earlier 1402 01:36:32,040 --> 01:36:37,640 this year whether any prior approved applications have expired or have been terminated uh staff 1403 01:36:37,640 --> 01:36:42,760 says there have not been any prior approved applications that have expired and terminated 1404 01:36:42,760 --> 01:36:47,480 we agree with that it's been a continuous operation there's no reason there would be 1405 01:36:47,480 --> 01:36:52,520 no reason why anything would have terminated we continue to operate for these decades uh with our 1406 01:36:52,520 --> 01:36:57,720 vested rights to the member paths before the presence of the gas wells which are only about 1407 01:36:57,720 --> 01:37:05,000 17 years old we've been approved since 1981 whether there's any statutory exception to our right now 1408 01:37:05,000 --> 01:37:08,520 this is an interesting question and you know i don't want to get too deep in the weeds on the 1409 01:37:08,520 --> 01:37:14,280 legal side of this but i think it's important only certain types of zoning regulations are exempted 1410 01:37:14,280 --> 01:37:18,520 under this portion of the vested rights statute and i've gone so far as to quote it here 1411 01:37:18,520 --> 01:37:25,400 there's an exemption for municipal regulations that do not affect landscaping or tree preservation 1412 01:37:25,400 --> 01:37:31,320 open space or park dedication property classification etc what that means is that 1413 01:37:31,320 --> 01:37:37,240 regulations that do not have and it's tricky because it's a double negative 1414 01:37:37,240 --> 01:37:43,320 regulations that do not affect these items are exempt from the vested rights statute from 1415 01:37:43,320 --> 01:37:49,800 preserving owners rights under the vested rights property classification i've looked there's no 1416 01:37:49,800 --> 01:37:57,640 definition in chapter 245 of property classification my research indicates that property classification 1417 01:37:57,640 --> 01:38:03,320 is commonly understood to mean the use of the property so what that means is that our vested 1418 01:38:03,320 --> 01:38:09,480 rights under the vested rights statutes include the ability to use the property for the intended 1419 01:38:09,480 --> 01:38:15,000 use under the specific use program that's that's our position and i think it's correct this is the 1420 01:38:15,000 --> 01:38:22,520 actual statute itself section 245.003 i'm not going to read this to you it's in your packet there 1421 01:38:22,520 --> 01:38:29,240 that's the actual text with my bold highlighting whether any exemption for one or more regulations 1422 01:38:29,240 --> 01:38:34,440 under the dent development code or ordinances is applicable to the project we're not aware of any 1423 01:38:34,440 --> 01:38:40,760 such exemptions we're not sure that there may not be any we would have to do further research on that 1424 01:38:40,760 --> 01:38:47,080 but to us it's a pretty simple proposition our use existed existed well prior in time for the gas 1425 01:38:47,080 --> 01:38:54,520 wells we believe the vested so we don't think this really even applies and finally point six 1426 01:38:54,520 --> 01:38:59,320 whether the project is dormant and again this kind of cuts to the heart of the issue this is this is 1427 01:38:59,320 --> 01:39:06,360 probably the central premise the city staff asserts that the project is complete so it's not dormant 1428 01:39:06,360 --> 01:39:12,040 we strongly disagree with that premise the project is not dormant has never been dormant we've always 1429 01:39:12,040 --> 01:39:18,680 wanted to do 100 pads maybe not all at once didn't happen that way but that's very common with 1430 01:39:18,680 --> 01:39:25,720 development projects so the project was always ongoing it was never going it's not going now the 1431 01:39:25,720 --> 01:39:32,040 vested rights we believe derived from the original 1981 issue keep ordinance approving again this 1432 01:39:32,040 --> 01:39:38,520 specific use with an attached concept plan part of the ordinance showing the 100 pads everyone agrees 1433 01:39:38,520 --> 01:39:45,080 on that the 1985 final plat again does not show uses or structures but it does show the entire lot 1434 01:39:45,080 --> 01:39:50,760 and the cul-de-sac intended to serve future development and again from the numerous mobile 1435 01:39:50,760 --> 01:39:57,000 home park licenses permits and other items up through this year even after this discussion 1436 01:39:57,000 --> 01:40:05,000 so we're here before you tonight respectfully to ask that the city staff's best rights determination 1437 01:40:05,000 --> 01:40:10,360 which was unfavorable to us be reversed again the shp was passed by council in 1981 1438 01:40:11,000 --> 01:40:17,240 first mobile home park license granted in 1984 property planted in 1985 showing the cul-de-sac 1439 01:40:17,240 --> 01:40:24,600 always intended that more pads 100 total would be developed mobile home park licenses granted for 1440 01:40:24,600 --> 01:40:30,920 most subsequent years including up to and including this year the gas wells that are the 1441 01:40:30,920 --> 01:40:39,080 causing the issue here appeared much later 2002 and 2003 how they got approved with mobile home park 1442 01:40:40,360 --> 01:40:45,640 pads with mobile homes on them sitting there is a great question i don't know the answer to that 1443 01:40:45,640 --> 01:40:51,560 question but it's causing us an issue we were there well before that and as recently as march 1444 01:40:51,560 --> 01:40:58,840 30 2018 the staff took the position that the shp ordinance from 1981 showed the 100 mobile home 1445 01:40:58,840 --> 01:41:06,440 pads consistent with staff congress in 2009 so you know i know that's been somewhat repetitive but 1446 01:41:06,440 --> 01:41:12,920 i think it's important to understand those facts the bottom line is we are very clear in our 1447 01:41:12,920 --> 01:41:19,320 thinking that we've invested since 1981 nothing has happened to change that you know the presence 1448 01:41:19,320 --> 01:41:24,440 of the gas wells don't know how they got there but they shouldn't affect us they shouldn't be used to 1449 01:41:24,440 --> 01:41:31,640 take away our property rights our vested rights in these 100 mobile home park pads so again very 1450 01:41:31,640 --> 01:41:37,240 respectfully we have a difference in opinion of the staff and we hope that you'll see it our way 1451 01:41:37,240 --> 01:41:52,680 we will take a brief recess for five minutes thank you okay thanks 1452 01:41:58,520 --> 01:42:05,320 6 34 are there any questions for that applicant yeah mr higgins yeah i'm 1453 01:42:05,320 --> 01:42:13,320 we'll take a bit of it i'm appreciative of your rebut to the manager's letter 1454 01:42:13,320 --> 01:42:19,000 but i want to take kind of a different tack it's sort of based on this 1455 01:42:19,720 --> 01:42:34,760 creek picture setback lines are are created with concerns for safety and safety is something that 1456 01:42:34,760 --> 01:42:40,680 that decision that safety decision is a legislative decision that's handed down 1457 01:42:40,680 --> 01:42:44,520 not something for us to argue about 1458 01:42:47,160 --> 01:42:54,840 in the texas uh legis whatever the texas legislative local legislator guide whatever the god 1459 01:42:54,840 --> 01:42:59,800 section 6 2 6 relief measures for gas wells only 1460 01:42:59,800 --> 01:43:16,200 page 13 paragraph 2 standard of review for setback during cities of section 2 paragraph d 1461 01:43:18,120 --> 01:43:22,040 in deciding the request for variance of setback requirements the board may 1462 01:43:22,040 --> 01:43:29,400 approve the request as granted modify the request or deny the request in granting a variance for 1463 01:43:29,400 --> 01:43:35,640 reduction of a drilling and production site setback the board may impose such conditions 1464 01:43:35,640 --> 01:43:42,200 as are necessary to mitigate the impacts of the reduced setbacks and to preserve the public health 1465 01:43:42,200 --> 01:43:49,800 and safety including but not limited to the enhanced mitigation standards contained in 1466 01:43:49,800 --> 01:43:58,200 subsection and then the jury provided the number i didn't like that so am i supposed to be talking 1467 01:43:58,200 --> 01:44:06,280 in the microphone no because the microphone's right here so given that it seems to me that 1468 01:44:06,280 --> 01:44:15,480 there is a concern for safety uh and how that might might play into this how would you address 1469 01:44:15,480 --> 01:44:21,800 that mr smith uh well first comment i would make is that uh one of the items we've taken 1470 01:44:21,800 --> 01:44:28,360 into consideration in this whole project has been fire code uh and we intend to fully respect the 1471 01:44:28,360 --> 01:44:33,800 fire code and comply with the fire code my experience with dealing with fire code is that 1472 01:44:33,800 --> 01:44:38,120 that pretty much trumps every time the fire marshal kind of gets the duty what he or she wants 1473 01:44:38,120 --> 01:44:43,320 and it's no different here so we will absolutely comply with fire code requirements 1474 01:44:43,320 --> 01:44:50,200 the gas well setback is more on the zoning side and you know i understand the zoning ordinances 1475 01:44:50,200 --> 01:44:54,600 are enacted because cities have the right to regulate the public health safety and welfare 1476 01:44:54,600 --> 01:45:01,880 but on the other hand you know they're to some extent they're picking a number 1477 01:45:02,440 --> 01:45:06,120 i mean the fire code is probably based on more of a technical analysis of what's appropriate 1478 01:45:06,120 --> 01:45:11,560 this happens to be a distance that cuts into our mobile home part 1479 01:45:11,560 --> 01:45:20,200 you know if i'm reading this correctly uh well it's a request for a variance to the setback 1480 01:45:20,200 --> 01:45:24,040 requirement so that's not really before you do not i guess what we're really only talking about is 1481 01:45:24,040 --> 01:45:30,040 the vested rights determination but that indicates that you know the board in some circumstances on a 1482 01:45:30,040 --> 01:45:36,440 different kind of a case could actually reduce that setback if they saw fit uh i'm not you know 1483 01:45:36,440 --> 01:45:40,440 obviously that's not before you don't have jurisdiction to do that in this case because 1484 01:45:40,440 --> 01:45:45,800 that's not the application but i think there's a big distinction to be made between a zoning 1485 01:45:45,800 --> 01:45:51,720 gas well setback and the fire code required setback which we absolutely understand 1486 01:45:57,960 --> 01:46:05,160 would the owner i wonder if the owner operator has considered the possibility that mobile homes 1487 01:46:05,160 --> 01:46:13,000 located inside the red circle should there be some sort of an accident disaster which created 1488 01:46:13,000 --> 01:46:18,360 physical harm for the homeowner or any other residents of the home i would think that the 1489 01:46:18,360 --> 01:46:26,200 owner operator would find himself in a pretty serious liability situation wouldn't that 1490 01:46:27,240 --> 01:46:34,360 um well that's outside my area of expertise would that be a fair same question be the same question 1491 01:46:34,360 --> 01:46:40,360 asked to the city if it's a safety issue then why are those homes allowed in another home or not 1492 01:46:40,360 --> 01:46:47,400 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 1493 01:46:47,400 --> 01:46:54,200 want to add as part of my answer that you know that that's a good question uh i don't know the 1494 01:46:54,200 --> 01:46:59,960 answer to that question but i do know that the mobile home pads were there long before the gas 1495 01:46:59,960 --> 01:47:07,080 well drilling sites were but they weren't developed yet correct some of them were that the ones that 1496 01:47:07,080 --> 01:47:12,520 are shown apparently on the there's a couple of drawings inside the line right so those have been 1497 01:47:12,520 --> 01:47:16,520 developed and then the gas well went in and then we have coordinates written because we're starting 1498 01:47:16,520 --> 01:47:24,680 to see several of us here at this table who are were very involved in the history of dentin trying 1499 01:47:24,680 --> 01:47:31,000 to find a compromise between what we're seeing here and with with gas well operators and so 1500 01:47:31,000 --> 01:47:38,360 my understanding is that had those sites already been developed they would have been protected 1501 01:47:38,360 --> 01:47:43,640 uses then there wouldn't have been room for that gas well to go in but because there were no 1502 01:47:44,280 --> 01:47:52,600 protected uses in that area they were allowed to come in and now they superseded your rights if i'm 1503 01:47:52,600 --> 01:47:57,880 understanding the how the ordinance was written and the conversations we were having as a community 1504 01:47:57,880 --> 01:48:03,320 four or five years ago that's part of what i'm clear about as representing the mobile home park 1505 01:48:03,320 --> 01:48:10,680 because and this is from the uh the staff's extensive memorandum uh you see the the drawing 1506 01:48:10,680 --> 01:48:16,840 here and i apologize it y'all have it yes i mean you see the the existing mobile homes these are 1507 01:48:16,840 --> 01:48:23,240 not just passed there are mobile homes here yeah they're within these setbacks um you know i believe 1508 01:48:23,240 --> 01:48:29,080 that those were there prior to the approval of the gas wells i don't know the information we 1509 01:48:29,080 --> 01:48:33,960 requested the map with the plat numbers and then the permits issued by the city for those mobile 1510 01:48:33,960 --> 01:48:40,600 homes sets yeah that will tell us yeah they were there yeah i think that'd be i do think that was 1511 01:48:40,600 --> 01:48:45,640 really helpful but i i guess what i'm saying is that yes yes those mobile homes were there and 1512 01:48:45,640 --> 01:48:50,440 then yes the gas or maybe the gas was put in and then the mobile homes were there but it was kind 1513 01:48:50,440 --> 01:48:57,080 of a free-for-all like we didn't have like the gas well kind of snuck up on us about 10 years ago 1514 01:48:57,080 --> 01:49:01,160 when they put that one in on on bonny bray and we're like crap we don't have any laws to regulate 1515 01:49:01,160 --> 01:49:06,440 this and that's when we started having these conversations so somewhere in that between 1981 1516 01:49:06,440 --> 01:49:14,840 and 2008 2009 when we saw that gas well going this probably all was happening at around that time 1517 01:49:14,840 --> 01:49:22,360 because i once we passed once we passed the gas well ordinance um and we and we've been which 1518 01:49:22,360 --> 01:49:27,240 we've been tweaking in the near sense trying to find like that perfect balance to not take 1519 01:49:27,240 --> 01:49:32,440 away the rights of property owners while still allowing gas well development in our town um 1520 01:49:32,440 --> 01:49:44,520 work i have so many words in my brain right now um we now have a set of rules that would not allow 1521 01:49:44,520 --> 01:49:52,200 for development within that within that circle and maybe in the 80s and 90s there was no loss that's 1522 01:49:52,200 --> 01:49:56,040 how they got there i'm just rambling at this point but i'm trying to think out loud like how 1523 01:49:56,040 --> 01:50:01,800 did they get there and how when when did they get there that would be something i'd like to see too 1524 01:50:01,800 --> 01:50:07,480 is when you're bringing these the the lot numbers to us i'd be really curious to see there's i see 1525 01:50:07,480 --> 01:50:12,440 like there's three three mobile homes up here and then there's another i don't know what this 1526 01:50:12,440 --> 01:50:18,280 property is down here at the bottom of the circle yeah but i'd be really curious to see when those 1527 01:50:18,280 --> 01:50:24,840 were allowed to be built because we saw the gas was put in in 2002 2003 the permits were shown 1528 01:50:24,840 --> 01:50:29,640 and that was before we had a guest so yeah and i appreciate what you're saying i mean that's an 1529 01:50:29,640 --> 01:50:36,360 important issue um i guess our position um and admittedly it's narrowly focused representing 1530 01:50:36,360 --> 01:50:41,720 the mobile home park is why should we be penalized right when we believe those were the conversations 1531 01:50:41,720 --> 01:50:49,240 we were having yeah yeah yeah so that's so back to i'd like to see a more concise timeline of 1532 01:50:50,120 --> 01:50:57,560 when the denton development code for the the current gas well setbacks and reverse setbacks 1533 01:50:57,560 --> 01:51:03,480 was established in relation to the timeline of the the mobile home park and 1534 01:51:03,480 --> 01:51:11,800 when i was going through the the reading at one point was at 50 feet for a reverse setback 1535 01:51:11,800 --> 01:51:19,000 a long time ago uh has the code changed or was that the fire safety the fire code has always 1536 01:51:19,000 --> 01:51:25,480 been 100 okay so what what were the what were the gas well setbacks or reverse setbacks previously 1537 01:51:25,480 --> 01:51:33,320 to the 250 and 300 feet we can get that and the dates and how it it correlates to to their 1538 01:51:33,320 --> 01:51:40,360 development and so i want to take this back to the issue of vested rights which is 1539 01:51:40,360 --> 01:51:45,080 what we're deciding right whether the city of denton administrative decision regarding 1540 01:51:45,080 --> 01:51:53,400 vested rights is appropriate or not this property was issued a special use permit in 1981 and then 1541 01:51:53,400 --> 01:52:01,400 it was rezoned somebody mentioned that earlier there you were mr kanane and does a rezoning cancel 1542 01:52:01,400 --> 01:52:08,840 the rights issued to the property or the owners of by the special use permit let me try to address 1543 01:52:08,840 --> 01:52:15,400 your legal question without actually testifying as to facts because i i don't want to be a fact witness 1544 01:52:15,400 --> 01:52:25,640 here but i i think that the issue of the rezoning speaks to the fact that the applicant has claimed 1545 01:52:25,640 --> 01:52:37,080 that an sup has created some uh vested rights as a supplement to their plat application yes if you 1546 01:52:37,080 --> 01:52:47,080 look at the plat the plat shows a concrete ribbon going around in an oval with a with a 1547 01:52:47,080 --> 01:52:55,000 little tail on the end of it you know it doesn't show uh you know any any homes there or anything 1548 01:52:55,000 --> 01:53:04,600 of that nature it just it it shows that hardscape and what the applicant is arguing is that there 1549 01:53:04,600 --> 01:53:15,640 was an sup that was granted at some later date that shows with more detail that there are going 1550 01:53:15,640 --> 01:53:24,120 to be specific areas locations if you will where mobile homes are going to be located and they are 1551 01:53:24,120 --> 01:53:30,920 they are are claiming if i'm if i'm not correct mr vince let me know that that that that augments 1552 01:53:30,920 --> 01:53:39,720 the uh and and further defines the project the the the problem with it and where the zoning issue 1553 01:53:39,720 --> 01:53:49,560 comes in is that uh sup is a component of zoning indented and so if you have a a particular zoning 1554 01:53:49,560 --> 01:53:58,760 classification with an approved sup that applies to it that stays there and that sup is relevant 1555 01:53:58,760 --> 01:54:09,560 until that property is rezoned once the rezoning comes in then you have new zoning defined for 1556 01:54:09,560 --> 01:54:17,720 that area it doesn't necessarily have an sup associated with it because the sup is specific 1557 01:54:17,720 --> 01:54:28,920 to the prior zoning okay so that that's the that's i think the importance of the rezoning it's not that 1558 01:54:28,920 --> 01:54:34,600 you know under the law that something's taken away or what have you i think that the argument 1559 01:54:34,600 --> 01:54:44,840 is that that's the practical effect is that once you have a rezoning of the area that the sup is 1560 01:54:46,680 --> 01:54:54,120 essentially of no importance or meaningless if i might respond to that just kind of give you the 1561 01:54:54,120 --> 01:55:00,680 other side of my perspective uh the the sup and the concept plan that was actually from 1981 so 1562 01:55:00,680 --> 01:55:08,360 that preceded the 1985 plan uh the the slide that i put up here uh this is from the texas vested 1563 01:55:08,360 --> 01:55:13,720 rights statute it talks about applicability and it specifies that it applies to a project that 1564 01:55:13,720 --> 01:55:22,440 was in progress on or commenced after september 1 1997 i would suggest to you that our project 1565 01:55:22,440 --> 01:55:27,880 qualifies for that because it was begun and was in progress in the sense that it was continuing 1566 01:55:27,880 --> 01:55:34,760 to operate and it had you know the delta of the additional mobile home pads available under the 1567 01:55:34,760 --> 01:55:43,000 concept plan if before september 1 1997 a regulatory agency city of denham approved or issued one or 1568 01:55:43,000 --> 01:55:48,280 more permits for the project absolutely happens mobile home park licenses permits for the mobile 1569 01:55:48,280 --> 01:55:58,360 homes with the plant the sup and so what i'm coming back to is i understand what mr drake 1570 01:55:58,360 --> 01:56:04,200 is saying about zoning and you know in a global sense uh that's that's kind of a different issue 1571 01:56:04,200 --> 01:56:11,720 our specific issue is regardless of the impact of subsequent zoning changes on us we believe we're 1572 01:56:11,720 --> 01:56:20,360 vested in our 100 mobile home pads and i don't think that the city is at odds with the applicant 1573 01:56:20,360 --> 01:56:29,640 on on whether it falls within 245 003 and i don't think that the city is at odds with the idea that 1574 01:56:29,640 --> 01:56:39,000 they manifested an intention to build a hundred some odd uh uh lots uh well it's not really a lot 1575 01:56:39,000 --> 01:56:48,440 but the pads for uh manufactured homes at some point in time i i think the the the issue is is 1576 01:56:48,440 --> 01:56:59,240 the is the project as defined uh by that application complete and and if i could offer by way of an 1577 01:56:59,240 --> 01:57:06,280 analogy uh let's say for example we were talking about a parking lot uh and and you apply for a 1578 01:57:06,280 --> 01:57:12,600 parking lot that has a hundred spaces on it they could they could you could park a hundred cars on 1579 01:57:12,600 --> 01:57:20,360 this parking space when is that parking lot as a project complete is it when the concrete is poured 1580 01:57:20,360 --> 01:57:27,960 fured and all 100 the stripes for all 100 spaces are put on it or is it when you have a hundred 1581 01:57:27,960 --> 01:57:35,880 cars actually parked and filling you know i think that uh the the city's perspective is that what 1582 01:57:35,880 --> 01:57:44,360 you're talking about is it's more like the former that the that the parking lot is complete once you 1583 01:57:44,360 --> 01:57:51,480 pour the parking lot and you stripe it and it's it is a parking lot it doesn't require you to have 1584 01:57:51,480 --> 01:58:00,440 100 cars on it before that parking lot is complete and in a similar fashion manufactured homes are 1585 01:58:00,440 --> 01:58:06,280 very much like cars because they're they're they're mobile they're pieces of personal property 1586 01:58:06,280 --> 01:58:14,920 that's not a development of land and uh and so the fact that you don't have all of the spaces 1587 01:58:14,920 --> 01:58:22,680 occupied doesn't mean that it's incomplete as a project uh the the fact remains that what was 1588 01:58:22,680 --> 01:58:31,160 shown on the plat was built uh and and and it's it it has a number of uses doesn't necessarily have 1589 01:58:31,160 --> 01:58:41,320 to be a mobile home and uh so it like i said you could sell manufactured homes uh in in that 1590 01:58:41,320 --> 01:58:48,680 location perhaps or or maybe it could be used for any of a number of different uses but let's say 1591 01:58:48,680 --> 01:58:58,440 with your parking lot analogy that there was some hazard such that it was unsafe it was determined 1592 01:58:58,440 --> 01:59:05,960 to be unsafe for vehicles to be uh within a certain distance of some hazard and so there was a separate 1593 01:59:05,960 --> 01:59:13,880 prohibition for that maybe it's because of flooding maybe it's because uh you know you got uh you know 1594 01:59:13,880 --> 01:59:20,600 winds or or there's an airport nearby and the planes are taking a very low approach and and 1595 01:59:20,600 --> 01:59:26,040 there's some other regulation that that that restricts how much of that parking lot could be 1596 01:59:26,040 --> 01:59:33,000 used does that mean that the project is incomplete i think the city's position would be that no that 1597 01:59:33,000 --> 01:59:41,000 does not mean the project's incomplete and so by analogy uh i think the city's position is that the 1598 01:59:41,000 --> 01:59:48,200 uh that the uh proposed mobile home farm was complete it's just that it's not fully occupied 1599 01:59:48,200 --> 01:59:54,680 if i could respond to that i because there's points i want to make in response uh the first 1600 01:59:54,680 --> 02:00:00,280 is on the manufactured homes you know they may be personal property but the land and the paths and 1601 02:00:00,280 --> 02:00:06,680 the potential paths are part of the real property which the applicant owns so i think that's really 1602 02:00:06,680 --> 02:00:12,600 what's an issue here tonight you know i get the manufactured homes can move in now but we're really 1603 02:00:12,600 --> 02:00:19,480 talking about the ability to develop this land in accordance with the 1981 concept plan uh the other 1604 02:00:19,480 --> 02:00:26,200 thing is you know we can draw on dueling analogies but uh lots of projects are built in phases i mean 1605 02:00:26,200 --> 02:00:32,200 mr drake's analogy of a parking lot well what if you had plans to build two parking lots or two 1606 02:00:32,200 --> 02:00:38,360 apartment buildings maybe you build one right away and maybe you build the other one when market 1607 02:00:38,360 --> 02:00:45,000 conditions warrant happens all the time you know we understand that some of these potential pad 1608 02:00:45,000 --> 02:00:51,000 sites are in floodplain the city of denton has regulations to deal with that you raise sites out 1609 02:00:51,000 --> 02:00:55,560 of floodplain you mitigate for the floodplain you do and that's where the civil engineers come in 1610 02:00:55,560 --> 02:00:59,320 who are the experts in that and and that's actually how we got here a couple of years 1611 02:00:59,320 --> 02:01:06,520 ago we were trying to work through that process by the book uh so you know i think the fact that the 1612 02:01:06,520 --> 02:01:12,600 the driveways were poured in accordance with the plan is not dispositive of whether this 1613 02:01:12,600 --> 02:01:19,880 project was complete it was ongoing sorry sorry i have several questions miss mason did you have 1614 02:01:19,880 --> 02:01:27,240 one yeah i just wanted to to bring it back to part of the statement about hold a public hearing and 1615 02:01:27,240 --> 02:01:33,480 consider an appeal of an administrative decision regarding vested rights related to the applicability 1616 02:01:33,480 --> 02:01:40,920 of gaswell reverse setbacks and separation distance requirement to a mobile home so it's it's circling 1617 02:01:40,920 --> 02:01:48,120 back to the gaswells as a main point of contention within the the clause that's stated i just want to 1618 02:01:48,120 --> 02:01:53,560 reiterate that because i think i feel like we lost that for a little bit thank you and mr 1619 02:01:53,560 --> 02:01:59,720 horton you had a question no no okay it was late yeah um are there children expected to live there 1620 02:01:59,720 --> 02:02:08,360 uh some i would imagine so there's an elderly perhaps i'm sorry elderly persons perhaps probably 1621 02:02:08,360 --> 02:02:16,440 and uh any disabled uh i'm sure maybe yeah because the reason i bring this up is because uh you know 1622 02:02:16,440 --> 02:02:21,240 many considering you know we have what we have in terms of the ordinances passed but it is generally 1623 02:02:21,240 --> 02:02:30,120 regarded as impossible for um uh those in wheelchair to safely get out unless there's a 600 1624 02:02:30,120 --> 02:02:38,680 foot setback or reverse setback we have 250 300 something like this so there's you know things 1625 02:02:38,680 --> 02:02:44,520 are moving in the opposite direction of allowing building close to these things not in the direction 1626 02:02:44,520 --> 02:02:49,880 of allowing it towards whether you know the debate obviously is about whether or not their 1627 02:02:49,880 --> 02:02:57,000 your project is grandfathered or whether rezoning and new ordinances affect any future decisions 1628 02:02:57,000 --> 02:03:04,920 about continuing but that that's the reality behind it that i think should be brought into 1629 02:03:04,920 --> 02:03:12,600 consideration by the owner as well as by us you raise a good point um but it comes back to the 1630 02:03:12,600 --> 02:03:17,800 fact that i think what we're here tonight to discuss is is the narrowly focused idea of whether 1631 02:03:17,800 --> 02:03:25,160 we are vested in our rights that preceded by decades the presence of those gas wells and i 1632 02:03:25,160 --> 02:03:33,880 i suppose what i'm asking is why are we here or why why why even be here for that when that narrow 1633 02:03:33,880 --> 02:03:42,840 focus is in conflict with safety well the fire code establishes a 50-foot difference we're sort 1634 02:03:42,840 --> 02:03:50,840 of respecting that i would argue we're here because as many people didn't have the forethought to 1635 02:03:50,840 --> 02:03:57,560 right see how this would affect the the decisions the city made the citizens made four years ago 1636 02:03:57,560 --> 02:04:04,840 right paying no attention to these issues right and we just unfortunately we're seeing the full 1637 02:04:04,840 --> 02:04:09,720 applications and we have seen through the years trying to find that balance between 1638 02:04:09,720 --> 02:04:19,800 gas well development which is a reality and the rights of surface owners and the mineral rights 1639 02:04:19,800 --> 02:04:25,000 as i understand in the state of texas supersede the rights of the service owners and so we're 1640 02:04:25,000 --> 02:04:30,680 trying to find this like what's the balance between like safety and being able to continue 1641 02:04:30,680 --> 02:04:34,920 to develop and so and that's what's what brought you here today so our task is really to find out 1642 02:04:34,920 --> 02:04:43,320 like we're are you vested you should be able to develop any way because you were there first 1643 02:04:43,320 --> 02:04:48,760 and and we're just trying to kind of find i guess that the answer to that the balance of that miss 1644 02:04:48,760 --> 02:04:54,840 regan's you have a question did you want to respond to her well i would just uh appreciate the remarks i 1645 02:04:54,840 --> 02:05:00,680 think you're spot on i mean i think uh it seems to me and this is not articulated anywhere it's not 1646 02:05:00,680 --> 02:05:05,320 really a rule in this kind of proceeding but it seems to me given the history that we've 1647 02:05:05,320 --> 02:05:13,240 discussed extensively the burden if you will should really be more on the city to demonstrate 1648 02:05:14,120 --> 02:05:19,320 you know why we shouldn't be allowed to continue our vested rights which we've had since 1981 1649 02:05:19,320 --> 02:05:28,200 and mr higgins yeah um i have a question for our attorney it's a question of clarification and then 1650 02:05:28,200 --> 02:05:36,600 based on that answer i probably have a comment to make we are not tied in a position here 1651 02:05:36,600 --> 02:05:43,320 a letter was sent out by the manager this is the rebuttal to the letter 1652 02:05:44,280 --> 02:05:49,960 are we restricted to voting up and down on that or couldn't we add mitigating things or changes 1653 02:05:49,960 --> 02:06:02,600 you can add uh you can add mitigating changes in accordance with the ordinance uh or or at least 1654 02:06:02,600 --> 02:06:10,840 those could be added okay uh as part of your your decision where i'm coming from on this is 1655 02:06:12,040 --> 02:06:17,400 i was i was set on a planning and zoning commission in a different community for a 1656 02:06:17,400 --> 02:06:24,760 couple of years and applicants would come and you know we wanted to mitigate a site problem we 1657 02:06:24,760 --> 02:06:30,120 wanted to mitigate a sound problem we wanted to mitigate a problem maybe people would didn't have 1658 02:06:30,120 --> 02:06:35,240 any reason to be in this proper being able to pass through this property and you would come to some 1659 02:06:35,240 --> 02:06:40,600 sort of agreement on that and that would be the recommendation of city council i know i know what 1660 02:06:40,600 --> 02:06:46,280 those mitigations are i don't know what mitigation for a gas well would be i don't know if you could 1661 02:06:46,280 --> 02:06:51,560 build something along the perimeter with enough height and enough strength that would deflect the 1662 02:06:51,560 --> 02:06:58,280 possible explosion or fire i don't know if that could be done if that can be done is it in our 1663 02:06:58,280 --> 02:07:07,800 purview to say we would uh it's one possibility aside with the owner given this condition 1664 02:07:09,160 --> 02:07:14,440 or is it not within our purview when if it isn't within our purview i would like to know 1665 02:07:14,440 --> 02:07:23,000 if anything realistically could be done to mitigate that risk i i think that that uh that 1666 02:07:23,000 --> 02:07:31,640 that legally the answer would be that you could impose qualifications conditions and what have you 1667 02:07:33,160 --> 02:07:40,920 but they would have to be based upon and informed by the evidence that has been presented to you 1668 02:07:40,920 --> 02:07:51,720 i do okay so that red circle evidence the red circle is is evidence that's been presented to you 1669 02:07:51,720 --> 02:08:00,680 and and will be part of the record because it was it was shown to you but you know as far as unknown 1670 02:08:00,680 --> 02:08:08,280 information uh that unknown information or supposition is not evidence before we will 1671 02:08:08,280 --> 02:08:17,400 we will meet tomorrow to discuss the last debate and so i this is the applicant's opportunity 1672 02:08:17,400 --> 02:08:22,040 to make a suggestion in that regard if they think it would be helpful 1673 02:08:24,920 --> 02:08:31,160 um i think we should discuss that you know the engineers are here i'll have to talk to the owner 1674 02:08:31,160 --> 02:08:38,520 the ownership and see you know um not sure what would be feasible but there might be something 1675 02:08:38,520 --> 02:08:43,560 feasible i i totally understand where you're going and i will commit to you to explore that 1676 02:08:43,560 --> 02:08:51,160 i i think just kind of following on with that it the law does not require a winner-take-all 1677 02:08:51,160 --> 02:08:59,320 right type of situation and and uh so bearing that in mind that that i think the question 1678 02:08:59,320 --> 02:09:06,280 is is probably very valid because as things stand right now for the applicant to gain any relief 1679 02:09:06,280 --> 02:09:13,400 they would require six of you to agree that they're entitled to it right but also again coming from 1680 02:09:13,400 --> 02:09:20,040 b and c experience you have to be specific you have to state you have to clearly state what it is you 1681 02:09:20,040 --> 02:09:26,920 have in an engineering sense what the materials are what the height's going to be how thick it is 1682 02:09:26,920 --> 02:09:35,240 and i don't know how in this short in the next 24 hours again miss lee yes i was just going to 1683 02:09:35,240 --> 02:09:43,560 say five years ago you would have had no problem because we banned it and i feel sorry that you do 1684 02:09:43,560 --> 02:09:51,160 have this problem at all because you would not have had that we have changed our ordinances 1685 02:09:51,160 --> 02:09:55,480 uh one question for the city and i said you don't want to testify as a witness i don't know 1686 02:09:55,480 --> 02:09:59,240 when did the city decide that the project was complete 1687 02:09:59,240 --> 02:10:04,840 i'm sorry kind of go back 1688 02:10:10,040 --> 02:10:19,160 that question could be taken two different ways are you asking when was the project completed 1689 02:10:19,160 --> 02:10:26,280 or are you asking when the city came to the realization that the project had been completed 1690 02:10:26,280 --> 02:10:37,320 in the past i i yes so uh the second and the first uh because you know the first was when did 1691 02:10:37,320 --> 02:10:41,640 the city decide that it was complete like when did the city make the determination 1692 02:10:41,640 --> 02:10:48,920 as of today we recognize that it's complete was that before or after we've had these other home 1693 02:10:48,920 --> 02:10:57,320 permits put on there is this a recent we have these emails is this you know in september we said that 1694 02:10:57,320 --> 02:11:04,040 that's when they and did you look did you go back and then backdate that and say hey this was 1695 02:11:04,040 --> 02:11:09,560 actually completed in 2001 or whatever so yes when did they just when did the city 1696 02:11:09,560 --> 02:11:15,240 make that decision and what day did they when did they decide that the project actually was completed 1697 02:11:15,240 --> 02:11:28,840 you know i i think that you could go ahead and testify with that richer i mean the simple question 1698 02:11:28,840 --> 02:11:32,840 simple answer is what we got a formal application that's when the determination was made when it 1699 02:11:32,840 --> 02:11:37,640 was looked at building permit but but i i want to i want to bring up something because 1700 02:11:37,640 --> 02:11:46,040 the slide here the the original permit that was issued this was something that we have not looked 1701 02:11:46,040 --> 02:11:52,200 at we did not have that as part of the original application but it but it brings up an interesting 1702 02:11:52,200 --> 02:11:58,920 an interesting point if you look at chapter 32 of the debt and code ordinances 1703 02:11:59,720 --> 02:12:07,000 which governs mobile home parks and rv parks going back to that that 81 sup approval one of the 1704 02:12:07,000 --> 02:12:13,160 conditions of that approval was that the park be developed in in accordance with those standards 1705 02:12:13,160 --> 02:12:20,280 so if you look at those standards again we still assert the project is complete 1706 02:12:20,280 --> 02:12:25,960 but if you look at those standards there's a there's a certain requirement certain number of 1707 02:12:25,960 --> 02:12:34,120 requirements one of those being a plot plan is required and the plot plan must show 32-39 1708 02:12:34,120 --> 02:12:39,880 the plot plan shall be filed as required and shall show the following the number of location 1709 02:12:39,880 --> 02:12:46,440 and size of all mobile homes and recreation vehicle stands and so again i i have not seen 1710 02:12:46,440 --> 02:12:53,080 that this initial license or the plot plan that's associated with again the license was shown tonight 1711 02:12:53,080 --> 02:12:59,720 on the slide but again i would assume again maybe that's not safe to do but if we issued a permit 1712 02:12:59,720 --> 02:13:05,000 based upon the number of stands that were required to be shown on the plot plan it's my guess that 1713 02:13:05,000 --> 02:13:11,880 that maximum was 76 what's also interesting is again depending where where the board decides 1714 02:13:11,880 --> 02:13:16,440 one of the ironically one of the items that 1715 02:13:19,480 --> 02:13:26,760 you do vest in is open space requirements under 245 this section of the code chapter 32 required 1716 02:13:26,760 --> 02:13:35,560 a minimum of one acre a max at least eight percent of the gross site area which on this when it was 1717 02:13:35,560 --> 02:13:42,840 initially approved would be approximately 1.01 acres of open space i think the area that's 1718 02:13:42,840 --> 02:13:50,280 that's vacant now you know taking out the the right of way just a quick take off is is approximately 1719 02:13:50,280 --> 02:13:58,840 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 1720 02:13:58,840 --> 02:14:06,200 aired and they are vested that vesting would still be in those those standards that would apply if 1721 02:14:06,200 --> 02:14:12,840 that makes any sense meaning that those open space standards so they they still may not be able to 1722 02:14:12,840 --> 02:14:23,800 get to that 100 stand mark sort of kind of were dairy's example related to the parking lot you 1723 02:14:23,800 --> 02:14:28,440 just because it was approved by the sqp doesn't necessarily mean you're able to get all of that 1724 02:14:28,440 --> 02:14:34,200 they were still required to comply with all the standards contained in that and i just want to 1725 02:14:34,200 --> 02:14:39,800 make sure that that i don't know if i mentioned this when i first spoke but i i did want to make 1726 02:14:39,800 --> 02:14:47,320 sure that that i had both the presentation entered in into well really all the exhibits one through 1727 02:14:47,320 --> 02:14:53,480 six from the backup it entered into the record exhibit seven being the powerpoint exhibit eight 1728 02:14:53,480 --> 02:14:59,400 definitions that i read and then exhibit nine chapter 32 the current version that's that's 1729 02:14:59,400 --> 02:15:06,520 on unity code now of the code ordinance that answered any additional questions 1730 02:15:06,520 --> 02:15:10,600 thank you 1731 02:15:10,600 --> 02:15:21,320 this is a public hearing is there anyone who would be compelled to speak 1732 02:15:21,320 --> 02:15:26,520 anything we'd like to add that hasn't been discussed already 1733 02:15:29,400 --> 02:15:37,800 so i believe at this point i closed the public hearing it's all right so we can deliberate it's 1734 02:15:37,800 --> 02:15:44,200 now 707 look i'm sorry pardon me yeah sorry deliberate today or deliberate i don't know 1735 02:15:44,200 --> 02:15:50,760 what i'm closing public hearing 707 so yeah one thing to say i just want to make sure of it sure 1736 02:15:50,760 --> 02:15:58,280 i'm new to this too so new rule so what happens now do we go do we deliberate now and then come 1737 02:15:58,280 --> 02:16:01,640 back and just raise our hands tomorrow that we're out of here or do we deliberate tomorrow 1738 02:16:01,640 --> 02:16:10,520 i feel like there's more more information that we need specifically the specific timeline and the 1739 02:16:10,520 --> 02:16:19,080 the the lot numbers that were mentioned you know where where are those um so i feel like 1740 02:16:19,080 --> 02:16:23,400 we need a little more information obviously before we can go anyway which we can't do until tomorrow 1741 02:16:23,960 --> 02:16:30,440 but are there any other i guess outstanding questions or concerns for staff or the applicant 1742 02:16:30,440 --> 02:16:35,240 so when we come back tomorrow we have everything we need if we're going to get 1743 02:16:35,240 --> 02:16:42,360 more information from the applicant i would like to see the suggestion as to how this could be 1744 02:16:42,360 --> 02:16:52,120 mitigated through some kind of error okay in order to vote tomorrow would we want to set a time limit 1745 02:16:52,120 --> 02:16:56,280 like saying to receive this information so that we have some other candidate 1746 02:16:56,280 --> 02:17:01,640 i'm down on that but i don't know what's reasonable that's you know whatever 1747 02:17:17,000 --> 02:17:27,560 the posting for tomorrow does not really appear to include taking additional evidence 1748 02:17:27,560 --> 02:17:40,600 and testimony it appears to contemplate that a decision will be made and given that it doesn't 1749 02:17:41,240 --> 02:17:48,600 it talks about a public meeting but not a public hearing okay and and so there's no mechanism to 1750 02:17:48,600 --> 02:17:58,600 receive evidence within tomorrow's posting if the board of adjustment believes well first of all 1751 02:17:58,600 --> 02:18:07,240 one the board of adjustment has to make determination on the evidence available to it 1752 02:18:07,240 --> 02:18:13,880 there are sometimes in life when there's not enough evidence to overturn a decision 1753 02:18:13,880 --> 02:18:20,680 and and and that's what's being asked is to overturn a decision 1754 02:18:20,680 --> 02:18:34,680 as first of all second of all you know if if the board does decide that more information is 1755 02:18:34,680 --> 02:18:47,480 necessary and it's going to have to be taken under some other posting other than the one that's set 1756 02:18:47,480 --> 02:18:53,000 for tomorrow because tomorrow's posting which cannot be changed at this point in time and still 1757 02:18:53,000 --> 02:19:02,040 afford you 72 hours advance notice to the public that that could not be done tomorrow 1758 02:19:03,480 --> 02:19:13,800 you could perhaps you know ask if the applicant as as the the impellent with the burden of proof 1759 02:19:13,800 --> 02:19:23,240 you know has additional information to submit to you today in terms of like say Mr. Higgins' 1760 02:19:23,240 --> 02:19:34,840 proposal for some some mitigating measures that that that might work for them if you 1761 02:19:34,840 --> 02:19:40,840 wanted to reopen the the hearing to allow for that additional testimony perhaps you could do that 1762 02:19:40,840 --> 02:19:47,080 you know so i i i think you've you've you've basically got three options right now you could 1763 02:19:47,080 --> 02:19:53,880 act on the basis of the evidence you have and and ask yourself whether that the the burden has been 1764 02:19:53,880 --> 02:20:03,240 met to reverse the decision of staff and and and act on that tomorrow the other options would be 1765 02:20:03,240 --> 02:20:15,240 to ask for the the public hearing to be continued to another date certain for you to receive 1766 02:20:15,240 --> 02:20:23,560 additional testimony and act on that at yet another date after their after 1767 02:20:23,560 --> 02:20:33,080 and and or you know to see if you wanted to reopen the hearing for today 1768 02:20:33,080 --> 02:20:39,320 only and and see if you have to bring additional testimony one question 1769 02:20:39,320 --> 02:20:42,840 is this a body that can receive cards in public meetings 1770 02:20:45,880 --> 02:20:50,520 i know public hearing anyone can show up with or without you know there was a 1771 02:20:50,520 --> 02:20:55,080 Cynthia there was a recent amendment on that wasn't there as far as you can 1772 02:20:55,080 --> 02:21:00,680 i i don't know if it could be done by cards i believe it's by testimony is that correct 1773 02:21:00,680 --> 02:21:10,040 i'm not sure the question a public hearing if you attend for example city council you 1774 02:21:10,040 --> 02:21:13,960 wouldn't have to fill out a card at all but after everybody speaks if you wish to speak you can 1775 02:21:14,600 --> 02:21:19,160 a public meeting however you can speak on items that are on the agenda if you file a card 1776 02:21:19,160 --> 02:21:25,320 i don't know if our body functions the same manner this this body does not function in the same 1777 02:21:25,320 --> 02:21:35,000 manner okay at all this would be an issue of you know if the question is can members of the public 1778 02:21:35,000 --> 02:21:42,680 offer testimony in a public hearing i believe that there was a recent legislative change that 1779 02:21:43,240 --> 02:21:51,880 does allow certain members of the public to to be heard during a zba hearing under certain 1780 02:21:51,880 --> 02:21:58,840 circumstances we'd have we'd have to find that and and and look at that with a real razor's edge 1781 02:21:58,840 --> 02:22:07,480 in response to a very specific question but uh you know i i i don't think it's one where 1782 02:22:08,360 --> 02:22:15,880 i don't believe testimony could be given by members of the by a by a card and that 1783 02:22:15,880 --> 02:22:20,600 that card of this is this isn't a matter of voting you know for who's in favor 1784 02:22:20,600 --> 02:22:23,880 or is it supported right in other words 1785 02:22:23,880 --> 02:22:32,360 so i guess i'm of the opinion that i i would like to 1786 02:22:34,280 --> 02:22:41,560 make a decision on this tomorrow the reason being to your first point is um i i don't know 1787 02:22:41,560 --> 02:22:49,560 if sufficient evidence was um or if all the evidence was produced to overturn uh the staff's 1788 02:22:49,560 --> 02:22:57,720 decision yes there were a list of of lots that were included since 2002 but they could have been 1789 02:22:57,720 --> 02:23:05,800 anywhere on that property and my my hunch is that given the scrutiny that every gas well permit gets 1790 02:23:05,800 --> 02:23:11,240 in st. denton over the last 10 years that we've lived here trying to pass an ordinance that works 1791 02:23:11,240 --> 02:23:17,160 for both gas well operators and surface owners my hunch is that that was that would have been caught 1792 02:23:17,160 --> 02:23:25,800 by the planning department so my i feel like we have the information we we need to make a decision 1793 02:23:25,800 --> 02:23:31,560 tomorrow but i am only one person on a six-member board and so i don't know if you all would like 1794 02:23:31,560 --> 02:23:36,200 to postpone have another public hearing so that we can continue to hear testimony or 1795 02:23:36,200 --> 02:23:44,440 the only sticking issue to that is that the city's position addressed on one of these five or six 1796 02:23:44,440 --> 02:23:51,640 and six conditions that whether the project is dormant or not and seeing that additional 1797 02:23:51,640 --> 02:23:56,200 information would allow us to make a better determination if we agree with the issue of 1798 02:23:56,200 --> 02:24:21,960 dormance sure that's the only thing i absolutely hang on is it your contention that the project's 1799 02:24:21,960 --> 02:24:27,960 dormant because i don't believe it's the city's contention that the project's oh i'm sorry i may 1800 02:24:27,960 --> 02:24:35,640 have stated that long the city says it's complete okay yeah sorry the city says it's complete and 1801 02:24:35,640 --> 02:24:40,120 the position of the property owners that you know it's an ongoing 1802 02:24:40,120 --> 02:24:45,960 phase development right and so and so the issue of completeness 1803 02:24:47,960 --> 02:24:54,200 if we saw that the city was continuing to approve new pad sites and it's ongoing 1804 02:24:54,200 --> 02:25:01,720 right well i don't think that that's uh you know i certainly don't think that that's correct 1805 02:25:01,720 --> 02:25:09,320 according to the law i think that the the project can be complete uh like for example you know if 1806 02:25:09,320 --> 02:25:17,560 you know you might have a residential subdivision that you can go back to your parking lot analogy 1807 02:25:17,560 --> 02:25:23,480 or you can do that if you want to but say let's say that it was a a single family subdivision 1808 02:25:23,480 --> 02:25:29,320 i mean the plat gets approved the public infrastructure is put into place uh the the 1809 02:25:29,320 --> 02:25:37,400 plat's recorded uh you know but maybe not all the houses are built yet uh you know is is is the 1810 02:25:37,400 --> 02:25:46,440 subdivision complete it is the it is the development complete uh even though a builder may put a house 1811 02:25:46,440 --> 02:25:53,640 on an empty at some point in the future we have subdivisions all over town where they have empty 1812 02:25:53,640 --> 02:25:59,000 lots i hate to be a sticker i know i'm probably out of order but since the public hearing is closed 1813 02:25:59,000 --> 02:26:07,960 mr drake is going to testify as a fact witness i'm not i'm not just i'm giving and uh a position 1814 02:26:07,960 --> 02:26:17,720 that's based on law uh and certainly i'll be happy to disclaim any kind of testimony uh because i 1815 02:26:17,720 --> 02:26:25,560 don't think i've offered any facts uh from this case uh if you disagree i mean i'll be happy to 1816 02:26:25,560 --> 02:26:32,200 revisit and disabuse any any statements you think was factual related to this case 1817 02:26:34,680 --> 02:26:39,880 i think it seems to me it's time you know the board did deliberate well and that's what we're 1818 02:26:39,880 --> 02:26:44,040 trying to determine because the rules have changed this would be the time that we would normally 1819 02:26:44,040 --> 02:26:48,840 deliberate but i think we've deliberate tomorrow so we're trying to figure out do we deliberate 1820 02:26:48,840 --> 02:26:54,520 tomorrow or in 72 hours i don't see why we can't deliberate tonight and we can't vote tonight so 1821 02:26:54,520 --> 02:26:58,600 yeah if we have questions that we want to talk to each other i think we're fine with that and again 1822 02:26:58,600 --> 02:27:07,160 tomorrow sure yeah i i've got an obligation to advise the board on legal issues so we can 1823 02:27:07,160 --> 02:27:12,840 deliberate tonight does that like i just i've this is a new thing and so i don't yeah it is a new 1824 02:27:12,840 --> 02:27:18,680 thing it's new for all of us and it's new for me uh to be realized we can deliberate tonight and 1825 02:27:18,680 --> 02:27:24,920 we can deliberate tomorrow the decision comes tomorrow yes no do we go home and deliberate 1826 02:27:24,920 --> 02:27:32,600 tomorrow well i want to make sure that uh posting for tomorrow i just didn't call the public meeting 1827 02:27:32,600 --> 02:27:37,080 and issue a decision regarding an appeal of an administrative decision regarding vested rights 1828 02:27:37,080 --> 02:27:42,920 related to the applicability of gas well reverse setback and separation distance requirements to a 1829 02:27:42,920 --> 02:27:50,440 mobile home park the subject property is approximately i have it right here cynthia what what your thought 1830 02:27:50,440 --> 02:27:57,880 yeah i and richard you gave as as well i i don't see anything that would prohibit the commission 1831 02:27:57,880 --> 02:28:07,240 from deliberating i think you can deliberate tonight on the basis of this posting uh the 1832 02:28:07,240 --> 02:28:13,480 the only the only limitation is that you have to come to your decision tomorrow that's so weird 1833 02:28:14,840 --> 02:28:23,000 it is well can i can backtrack to one of our other options if we did go down the avenue of 1834 02:28:23,000 --> 02:28:32,200 postponing what are the parameters for that to set another hearing it would be to continue a the 1835 02:28:32,200 --> 02:28:40,760 public hearing to some date in the future a date certain and receive testimony on that date as well 1836 02:28:41,320 --> 02:28:48,440 and then you would also have to find another time when the same six commissioners who heard this 1837 02:28:48,440 --> 02:28:58,360 evidence could reach a decision on the case that would be to allow them to bring back the additional 1838 02:28:58,360 --> 02:29:04,120 evidence that we originally requested that we're not going to hear tonight is that correct if you 1839 02:29:04,120 --> 02:29:11,320 were to do that you you would be continuing it to to receive additional evidence if you feel that 1840 02:29:11,320 --> 02:29:19,800 that is appropriate here but it will require setting another date for you to reach a decision 1841 02:29:19,800 --> 02:29:27,720 and i i think you're going to have to have the same commissioners to cite the appeal who heard the 1842 02:29:27,720 --> 02:29:36,840 evidence i'm sure if i may just ask for just for clarification item um because i know there's a lot 1843 02:29:36,840 --> 02:29:41,240 of additional information that was presented this evening and additional information that's being 1844 02:29:41,240 --> 02:29:47,720 requested i just want to make sure i understand correctly again we we issued a vested rights 1845 02:29:47,720 --> 02:29:52,840 determination based on what was submitted as part of exhibit one that was the information that we 1846 02:29:52,840 --> 02:29:57,960 had that we based our decision off of i know there's been additional information brought uh as part 1847 02:29:57,960 --> 02:30:04,200 of the presentation and discussed so i just want to make sure that there's additional information 1848 02:30:04,200 --> 02:30:09,480 that's being requested again that was not part of the record that we had submitted that was the 1849 02:30:09,480 --> 02:30:15,880 basis for this appeal i just wanted to point that out that's a good point as well so it may it may 1850 02:30:15,880 --> 02:30:26,040 be in the applicant's interest to postpone rather than force a decision now well i i think that 1851 02:30:26,040 --> 02:30:39,160 that legally mr canoni's point is that the the the appeal is based upon the information that was 1852 02:30:39,160 --> 02:30:47,720 known to staff and known to the applicant and and and so that determination was made by the city 1853 02:30:47,720 --> 02:30:56,040 manager and and he issued a letter on that basis to receive additional information outside of what 1854 02:30:56,040 --> 02:31:08,840 was considered in the context of that appeal uh you know maybe contrary to the process itself are we 1855 02:31:08,840 --> 02:31:15,160 saying that the city only looks at what was handed in a packet to them they don't look at their 1856 02:31:15,160 --> 02:31:23,480 permits or any of the anything that they've done no sir only look on that so no sir what i'm saying 1857 02:31:23,480 --> 02:31:30,600 what we're asking for is city information right we're asking for their behavior issuing permits 1858 02:31:30,600 --> 02:31:39,160 what have you so we're not asking for information outside of the city access the city had access to 1859 02:31:39,160 --> 02:31:47,320 make their decision understood that and that's that's a valid point as well uh you know i think the 1860 02:31:47,320 --> 02:31:57,080 point that mr canoni raised is that uh if this additional information was not part of the the 1861 02:31:57,080 --> 02:32:06,200 initial staff determination and so uh i think the argument would be uh if i'm saying this right mr 1862 02:32:06,200 --> 02:32:15,880 canoni that the um the the the determination that's being appealed was not informed by this 1863 02:32:15,880 --> 02:32:24,200 additional evidence and so it might be a different staff determination uh with 1864 02:32:24,200 --> 02:32:31,960 additional evidence from the applicant or from other sources whether it's the city's information 1865 02:32:31,960 --> 02:32:40,680 or whoever's uh who's ever uh information it is uh it may it that may result in a different 1866 02:32:40,680 --> 02:32:47,240 staff determination that is subject to appeal before so but i just i just i want to make sure 1867 02:32:47,240 --> 02:32:52,600 i'm accurate i want to make sure i'm hearing you right correct so what i hear you saying is 1868 02:32:52,600 --> 02:33:01,880 the city could have maybe not done a thorough job but because they chose not to do a thorough job 1869 02:33:01,880 --> 02:33:08,280 and your your analogy use an analogy the city chooses not to do a thorough job and they come 1870 02:33:08,280 --> 02:33:14,840 with a decision we have to be we have to make a decision based off of a non-thorough and not 1871 02:33:14,840 --> 02:33:22,280 using all the resources did i hear that correct no not for me uh you know i i i would i did not say 1872 02:33:22,280 --> 02:33:27,800 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 1873 02:33:27,800 --> 02:33:36,600 is if yeah if the city chooses not to do a thorough job in any case all right and so we have to in 1874 02:33:36,600 --> 02:33:46,360 that decision is appealed based off of a non-thorough job 50 data use we can only look at that 50 in the 1875 02:33:46,360 --> 02:33:53,640 appeal and not the other i i think that it is the appellate's responsibility to bring forward 1876 02:33:53,640 --> 02:34:03,720 evidence showing that the city's decision was in error that that that's the burden of proof 1877 02:34:04,520 --> 02:34:11,560 when you bring an appeal is is the burden of proof is upon you as an appellant to show 1878 02:34:11,560 --> 02:34:17,400 that a prior decision was erroneous and and here is the evidence that shows that 1879 02:34:17,400 --> 02:34:28,760 would it be okay if i ask a question 1880 02:34:32,600 --> 02:34:41,320 uh i asked a factual question it's actually for you i think you could make a legal argument 1881 02:34:41,320 --> 02:34:48,280 if that's fair uh well my really my question is what i think i interpret you as saying is that 1882 02:34:48,280 --> 02:34:53,320 with additional information we can ask for another 1883 02:34:53,320 --> 02:35:00,840 vested rights determination and see where that goes and in the meantime maybe this proceeding 1884 02:35:00,840 --> 02:35:06,760 would be held over while that goes on and then we come back see where we are that's an interesting 1885 02:35:06,760 --> 02:35:16,680 point because i i don't think that there's anything that that limits uh you know how many times an 1886 02:35:16,680 --> 02:35:22,120 appeal of a staff of different staff determination you brought in other words the fact that you 1887 02:35:22,120 --> 02:35:29,480 appealed this staff determination does not uh to my knowledge anyway prohibit anyone from appealing 1888 02:35:29,480 --> 02:35:40,840 a subsequent staff determination if if that makes sense what is what is your position on that i mean 1889 02:35:40,840 --> 02:35:47,240 you agree or disagree there i have no reason to disagree okay based on your discussions sounded 1890 02:35:47,240 --> 02:35:51,960 like i think everybody in the room is that there's more information out there that would be 1891 02:35:51,960 --> 02:36:04,040 beneficial just trying to see how how do we best take that in so 1892 02:36:04,040 --> 02:36:11,400 is it being suggested that this particular appeal be withdrawn and a new one submitted 1893 02:36:11,400 --> 02:36:21,160 i did suggest that is that kind of what you're suggesting yeah go ahead you 1894 02:36:21,160 --> 02:36:26,520 meet me oh she just in other words rather than deliberate and decide on what we have 1895 02:36:26,520 --> 02:36:33,080 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 1896 02:36:33,080 --> 02:36:40,840 that's outside my scope i believe this appeal is under this commission's authority and jurisdiction 1897 02:36:40,840 --> 02:36:48,920 now okay i don't think that anybody can take away that jurisdiction others in the commission itself 1898 02:36:51,640 --> 02:36:57,560 so we we are to determine the outcome of this they couldn't they couldn't reapply is that what 1899 02:36:57,560 --> 02:37:06,440 you're saying with new evidence the new evidence is being presented here and now we decide on this 1900 02:37:06,440 --> 02:37:14,120 the commission will need to decide this appeal that's under its jurisdiction on the basis of 1901 02:37:14,120 --> 02:37:21,880 on the basis of the evidence before whether the commission decides to continue the public hearing 1902 02:37:21,880 --> 02:37:29,560 for additional information is a matter for the commission to decide however mr kanoni's point is 1903 02:37:29,560 --> 02:37:37,480 that if you're asking for information that was not considered by the staff in reaching his decision 1904 02:37:37,480 --> 02:37:45,480 by the appellant in appealing the decision and by the city manager in initially ruling on that 1905 02:37:45,480 --> 02:37:54,920 appeal i believe his point is that that that would not be appropriate with respect to this 1906 02:37:54,920 --> 02:38:04,680 so we heard the evidence tonight yes so if we opened the public hearing if we had another public 1907 02:38:04,680 --> 02:38:10,600 hearing would that that would be out of order i think that that would be out of order because 1908 02:38:10,600 --> 02:38:16,600 because that's not what they considered they would have to he has to reapply and then possibly 1909 02:38:16,600 --> 02:38:25,640 reappeal okay so in other words we're coming back tomorrow to make a decision right because the city's 1910 02:38:25,640 --> 02:38:31,160 review of it was layer one and ours is layer two okay so if there's a bunch of new evidence brought 1911 02:38:31,160 --> 02:38:38,680 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 1912 02:38:38,680 --> 02:38:44,600 that i had made previously we reviewed it based upon what was submitted that's provided i believe 1913 02:38:44,600 --> 02:38:50,920 that's exhibit one in the as part of the staff report what we did not review it as for compliance 1914 02:38:50,920 --> 02:38:56,760 however however the board decides to vote if the board decides to say yes they are 1915 02:38:56,760 --> 02:39:01,640 they are vested what we did not do is look at it for compliance with what they would have been 1916 02:39:01,640 --> 02:39:07,080 vested in so that that has not been done um and there's a dish there's a number of requirements 1917 02:39:07,080 --> 02:39:11,800 there's a 5 000 square foot minimum i think for each pad say there's a there's a multitude of 1918 02:39:11,800 --> 02:39:19,560 standards that would would apply that we have not we have not uh we did not do and the families have 1919 02:39:19,560 --> 02:39:29,960 an opportunity to respond with all this so i i guess then if i understand there's so much legal 1920 02:39:29,960 --> 02:39:38,520 talk in here so if i understand this correctly then we're where we would be out of order to have 1921 02:39:38,520 --> 02:39:45,320 another public hearing but we can come back tomorrow to continue to deliberate and make a decision 1922 02:39:46,120 --> 02:39:54,600 based on what we heard tonight is that correct okay and not accept new information not okay so 1923 02:39:54,600 --> 02:40:01,320 where those lot numbers are and the exact timeline that would be information that we would have been 1924 02:40:01,320 --> 02:40:06,360 very helpful for us to make a determination tonight it was not presented and so therefore 1925 02:40:06,360 --> 02:40:12,120 we are tasked tomorrow with making a decision based on what was presented tonight is that 1926 02:40:13,880 --> 02:40:23,000 we all got that much at least good job okay um is there are there any other points that need to be 1927 02:40:23,000 --> 02:40:26,440 i feel like when we're deliberating whether or not we could continue to deliberate and i think 1928 02:40:26,440 --> 02:40:30,920 that's we've we've determined that is there anything else that's like just 1929 02:40:30,920 --> 02:40:37,080 you're burning the itch to say like tonight you should be out we've done and we'll come back 1930 02:40:37,080 --> 02:40:42,920 tomorrow just one thing i think public meeting means we can talk yes absolutely before we both 1931 02:40:42,920 --> 02:40:49,560 right yes will guys be here tomorrow if we have questions for them tomorrow or no well i will 1932 02:40:49,560 --> 02:40:56,760 we do that's taking testimony yeah that's taking testimony which is not posted for you to take 1933 02:40:56,760 --> 02:41:03,560 testimony receive that right so just us tomorrow okay and they can be here we just can't talk 1934 02:41:03,560 --> 02:41:06,600 on either side right right 1935 02:41:09,080 --> 02:41:14,920 so we can't we can't have more questions of staff or the applicants one i think that that's true i 1936 02:41:14,920 --> 02:41:21,880 think that uh you know to the extent that you wanted to ask about procedures or or the law 1937 02:41:21,880 --> 02:41:29,160 you know something that is not evidence in this particular case if you want to say you know how 1938 02:41:29,160 --> 02:41:39,560 does this ordinance work or how does this provision of the of the ddc work or or ask about that that's 1939 02:41:39,560 --> 02:41:50,040 not evidence that's directly relevant to this appeal i i have one more question to to them before 1940 02:41:50,040 --> 02:41:58,120 we leave tonight can i ask that the public hearing be reopened for that oh sure absolutely yeah i'll 1941 02:41:58,120 --> 02:42:02,840 reopen the public hearing now instead of 34 miss meissner has a question for the applicant 1942 02:42:02,840 --> 02:42:07,880 so i'll wait for you to get up to the podium 1943 02:42:07,880 --> 02:42:18,200 so in your process uh were you aware of the new denton city code development 1944 02:42:18,200 --> 02:42:23,320 codes in in regards to the gaswell setbacks and reverse setbacks when they came about 1945 02:42:25,480 --> 02:42:31,720 when those were adopted yes uh no i'm only become aware of those 1946 02:42:31,720 --> 02:42:36,120 in the course of work known as very specific manner okay 1947 02:42:36,120 --> 02:42:44,200 i work in cities all over north oasis so i haven't done anything 1948 02:42:44,200 --> 02:42:48,600 was the owner aware i can't answer the question 1949 02:42:52,280 --> 02:42:56,760 so okay i won't speculate further on that you answered my question thank you 1950 02:42:56,760 --> 02:43:02,440 close the public hearing again now one minute later 7.35 thank you 1951 02:43:02,440 --> 02:43:11,640 thank you how y'all doing my brain is mushed it was a lot of information 1952 02:43:11,640 --> 02:43:19,000 um are there any other this is your chance any other questions for staff or the applicant 1953 02:43:19,880 --> 02:43:24,760 before we come back to our meeting why is it necessary to come back we're not going to have 1954 02:43:24,760 --> 02:43:39,080 new information it's weird it's so weird but yes yeah yeah are we good okay um i have so many 1955 02:43:39,080 --> 02:43:51,320 papers uh i don't know where my agenda is thank you is that it okay all right so with that we're 1956 02:43:51,320 --> 02:43:58,040 moving on so that was item 4a we're moving on to item five are there any concluding items uh 1957 02:43:58,040 --> 02:44:04,920 that we would like to mention for the public record any questions future discussions yes 1958 02:44:07,080 --> 02:44:14,600 talk about earlier and this is changing the times for the meetings have a conversation 1959 02:44:14,600 --> 02:44:23,000 about changing the time i am so feeling that yes there we go five five well the the special 1960 02:44:23,000 --> 02:44:29,240 call meeting is set um yes absolutely well what i'll do is uh we'll reach out to y'all 1961 02:44:35,400 --> 02:44:40,280 anything else no but 5 30 next semester i want to be able to get here before 1962 02:44:40,280 --> 02:44:47,640 it's hard for me to get here before 5 32 i'm just an alternate so everybody we have to count 1963 02:44:47,640 --> 02:44:54,840 i really like four let's debate right now yeah okay i think with that then uh we are going to 1964 02:44:54,840 --> 02:45:03,000 wrap it up at 7 37 thank you everyone for your time tonight my goodness lulu you were amazing 1965 02:45:03,000 --> 02:45:08,440 that the public record show that my daughter is an angel thank you everyone i'll see you tomorrow 1966 02:45:08,440 --> 02:45:17,240 5 30 formally have to have emotion to it sure don't you do not sure just say that's it that's it