Jul 27, 2026 Zoning Board of Adjustment on 2026-07-27 5:30 PM (Regular Meeting - 1 of 2)

Okay, it's six o'clock. We're up three minutes past the start time. I would like to propose if the board is willing, if we wait an additional 10 to 15 minutes to see if our last member will show up and if by 615 he doesn't, I'd say we could see about calling the meeting or at least shattering it if we don't have more room. Does that seem reasonable to the board? Did we put in back what you gave hope of them? Unfortunately, we didn't. Is it possible to have any kind of a discussion, aspects to it, but not take it to a vote? Okay. So I take it you weren't able to get a hold of the microphone? Unfortunately, I wasn't able to. End of day. Sorry about that. Okay. After determining that a quorum is present, I hereby call this meeting of the City of Denton Zoning Board of Adjustment in session. The Zoning Board of Adjustment of the City of Denton of Texas will convene in the first of two regular meetings at 615 p.m. The second regular meeting is scheduled to convene at 630 p .m. Item number one on our agenda is the U.S. and Texas Pledge of Allegiance. I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all. Now for the Texas Pledge. Honor to the Texas flag, I pledge allegiance to the Texas, one state, under God, one, indivisible. My name is Connor Hall. I am the chair of the Zoning Board of Adjustment of the City of Denton for this evening's meeting. Prior to commencing our hearings, I would like to review our meeting format for the benefit of those in attendance. The board consists of seven regular members and three alternates. The members of the Zoning Board of Adjustment are residents of the City of Denton. We serve voluntarily and have been appointed to our position by the city council. It takes six votes to reverse or modify any determination of an administrative official on appeal. Citizens wishing to participate may submit a white card to indicate their position on an item. Citizens may also make virtual comments using the e-comment module made available when the agenda was posted online. Similar to when a citizen submits a white card to indicate their position on an item, the e-comments will be sent directly to members of the Z oning Board of Adjustment and recorded by the secretary. E-comments may be submitted up until the start of the meeting, at which the time the ability to make an e-comment will be closed. Citizens wishing to speak may submit a blue card. All speakers are to state their name and address for the record. In consideration of other speakers, comments will be limited to four minutes unless otherwise specified by the chair and information relevant to our agenda items. We will now commence with our regularly scheduled agenda. Item number 2A, consider the approval of the April 6, 2026 minutes. Each member of the board has been provided with a copy of these minutes. Are there any corrections, additions, or deletions to these minutes? Okay, hearing none, the chair would entertain a motion on item number 2B. I motion to have a second of minutes. Okay. I make a second. Okay. Excellent. Having received a motion for a second, is there any further discussion on the minutes from last meeting? Okay. There being no further discussion, please vote on the motion. All in favor of approving the minutes as presented, raise your hands and say aye. Aye. Aye. Okay. The ayes have it. So the results of the vote are six in favor and zero against. The minutes are approved. Now for item number 2B, receive a report and hold a discussion regarding non-conforming rights. The discussion will include but is not limited to the state statutes and local regulations, types of non-conformities, and process related to the discontinuities. And in the interest of time. I love how ready you are. Good evening. I'm Julie Wyatt, principal planner with the city of Denton. And we're going to talk a little bit about non-conforming rights tonight. So generally a non-conformity is a land use or structure that was lawfully established but no longer meets the current zoning or development standards. So for example, a building was built decades ago and at the time it met the setback in the new standards. But since then regulations have changed and so it no longer meets those standards. What is the purpose of non-conforming regulations? The debt development code in section 1.5.1 talks about this and the reasons that it gives are to curtail substantial investment in non-conformities. To bring about their eventual elimination and then preserve the integrity of the debt development code in the goals of the city of Denton. Now we're going to talk briefly about state law as it relates to non-conforming rights. So the Texas Local Government Code has two sections that deal with non-conforming rights within the state of Texas. Section 2.11 talks about that a municipality has two options when it comes to non-conforming uses. First, it can allow the non-conforming use to continue in the same manner. And the second option is to require a non-conforming use to cease operation. Now there's a really specific process related to this. It requires an official action, specific timelines, notification. And then there is a payment to an owner or lessee for loss of market value or expenses or allow that use to continue until those costs have been recovered. It is important to note that this does not apply to non-con forming uses that have been intentionally abandoned for at least six months. Section 43 talks about non-conforming rights when they are applied to annexation. So annex property, a municipality must allow the continuation of a use that was legally existing or planned to occur prior to annexation. And that is subject to some limitations. But that does not prohibit a municipality from imposing regulations relating to SOBs and destruction, public nuis ances, flood control, hazardous substances, or fireworks. Aside from certain retail uses, this section of state law does not specify a timeframe for how long a municipality must allow a use to continue. Now, after state law, we're going to talk about the regulations and the DENT Development Code. So all of our regulations related to non-conforming rights are outlined in Section 1.5. As I mentioned at the top of the presentation, DDC 1.5.1 discusses that non-conforming uses are regulated in order to limit the development and continued existence of land building structures, uses, and site features, which once again were lawfully established prior to the effective date, but are no longer conformed to the DENT Development Code. There are general regulations related to non-conforming uses. Generally, a non-conforming use can continue or a non-con formity can continue to be used and occupied, but there are limitations in the DENT Development Code. We allow minor maintenance and repairs. So you can repair the roof, you can repair the plumbing, restripe the parking, or replace landscaping. But the degree of non-conforming cannot be increased by any action. And this really is related to the land use in the land. So changes in ownership, tenant management does not change the non-conforming regulations as they apply to the property. The DENT Development Code identifies four types of non-con formities. First, a non-conforming use that is in the use of the land, again established legally, but no longer conforms to the zoning. For example, somebody builds a gas station along a rural road. But now it's in the middle of a residential neighborhood. So there are limitations to that continuation of use. It may be expanded throughout the same building, provided that no structural alterations, additional dwelling units, or non-residential units shall be permitted. And it may not expand into an additional structure. The use can change to a lesser impact non-conforming use, but once it's changed to another non-conforming use, it can 't go backwards. There's also non-conforming structure. That's any structure that was established or constructed legally, but no longer conforms to the DENT Development Code. This is things like setbacks, like a building that doesn't need a 10-foot setback, where it's too close to the road. Expansions require that any new portion of the structure conform to current regulations. So you couldn't continue to add in that area that encro aches into the setback. A non-conforming lot, a lot that is legally established prior to current regulations, but does not comply with crime zoning dimensional standards. So you have a 9,000 square foot lot, flat in 1970, but it's now suburban corridor. So it doesn't meet the minimum lot size of 10,000 square feet. Now, the DENT Development Code does discuss that a lot made non-conforming by the 2019 DENT Development Code may be used for construction of a building in the applicable zoning district, but it still has to meet all those dimensional requirements . So even though it might be a smaller lot, it still has to meet all building coverage and setback requirements. And then finally, the fourth one is a non-conforming site feature. These are things like driveways, off-street parking, loading areas, building coverage, landscape buffer, or screening. So all of those other things that go into making up a site. Once again, legally established, but now no longer meets the minimum regulations. So for instance, a building built in 1995 has 200 parking spaces. We didn't have parking maximums at the time. Now the parking regulations would only allow 100 spaces. So that would be a non-conforming site feature. Now that can continue. They can remain in place. But any expansions would have to conform to the DENT Development Code. So they couldn't add additional parking spaces. Does that make sense? All right. So this is where it gets a little more complicated. Discontinuance. So if a non-conforming user structure is voluntarily discontinued for one year or more, the DENT Development Code states that all non-conforming rights cease, and the user occupancy cannot be continued unless in conformance with the DENT Development Code. So one year, and then those non-conforming rights will cease. However, that determination of discontinued status may be delayed for up to one year by the director if a written request is provided, and that there is a documentation that the property has been actively marketed for at least six months during the previous year. So it was listed for sale for that use, or it was trying to obtain a tenant for that use. And so I've created a diagram. Hopefully it will better describe it. So day one, non-conforming use ceases. So the tenant moves out of the building day one. Day 10, in this hypothetical, the property owner markets the property for lease or sale. After six months and 10 days, the property owner ceases to market, ceases marketing the property. It's like, "Ah, I'm not going to market anymore." Prior to that one-year mark, the owner requests determination, delay, and writing. At that point, the director can approve that one-year delay in determination of discontinued status if the property owner adequately provides that written request and the documentation. From there, they have another calendar year to either re establish the use or the non-conforming rights will cease. So is that clear? It can get a little confusing because it does give an extra year if the property had been marketed for at least six months during that first year of the use of CXA. Discontinuance due to damage or destruction, and this is a natural or accidental cause. If less than 50% of the gross floor area is damaged or destroyed, it can be restored in the original condition. However, anything over 50%, it could not be rebuilt or occupied. Then the DIP Development Code also has amortization. That's where city council could say, "Hey, property owner, we are giving a formal action that you are to cease operations, but then you have to amortize that non-conforming structure ." So allow them to continue until that market value has been provided to that property owner. The DPA would be responsible for setting a plan for compensation and/or establishing a determination timeline. Again, state law has those additional requirements, things like notification time and the types of compensation. So it's a pretty tricky business. Then there are other options for property owners when it comes to non-conforming. First, they could seek approval of a subdivision for variance from the Planning and Zoning Commission. So say it doesn't meet the minimum setbacks, they could request from the Planning and Zoning Commission a lot size. They could request a variance from the Planning and Zoning Commission. They could also seek a variance from the Zoning Board of Adjustment. Now that is not for use. There is no variance for use. But they could seek a variance for something other than use . A non-conforming could be modified to come into compliance with the DIP Development Code and become conforming. Or the property could be rezoned to a district that permits the use or has different standards. Or the 2019 Development Code has plan development, so a property owner could seek a plan development, particularly if their use is very unique or their site conditions are very unique. So with that, I'll be happy to answer any questions. And that's the presentation. Would you go back to your chart where you were saying yes, that is? Yes. Okay. So non-conforming use happens, whatever reason it happens. They're marketing it. As long as they market it for six months, doesn't matter when it starts. Like in your example, it was day 10, but maybe they don't start until month five. As long as it's six months within that first year. Okay. So yes, they could. You're right. Anytime during that year. Okay. All right. And then they have to request it in writing for an additional year, which would be 364 days from day one. It would be a year plus. Yes. Okay. The day it seizes, 12 months in writing whenever within their 12 months. 12 months. Correct. Correct. And remember, during that, with that request in writing, they do have to provide that evidence that the property was marketed. Okay. Thank you. Any other questions for our presenter? Do you have? No. All right. Thank you for coming up to present. Thank you. All right. In the interest of time, I will swear in all witnesses for the public hearings, the variance and appeal that are scheduled for today's meeting. Will all witnesses who will provide testimony or information at today's meeting, please stand up and raise your right hand. Under penalty of pre-jury, do you swear or affirm that any testimony or information you provide or any statement you make before this board is complete, true, and correct to the best of your knowledge and ability? If so, please answer, I do. I do. Okay. Is there any witness who was unable or unwilling to take this oath? Okay. Seeing none, I feel free to pass the. In order to ensure an orderly meeting, the hearing procedure for each variance will be as follows. No person shall speak unless they are recognized by the chair to speak and then shall only speak from the podium. First, the city's presentation questions for the board. Next, applicant presentation and questions for the board. Then after the parties have finished their presentations, members of the public may speak on the item. And finally, the board may ask any follow up questions of staff or applicant that were raised by the public and not previously answered. At that conclusion of the evidence, I will close the public hearing. So moving on to item number 3A is to hold a public hearing and consider approval of the variance from Chapter 33 signs and advertising devices of the code of ordinances. Specifically, section 33.14.2C as it relates to the minimum setback from the side yard property line. To allow for a sign with a side yard setback of approximately 3 feet and 7 meters from the existing gas station. Located on an approximately .23 acre property on the south side of Eagle Drive and approximately 235 feet west of Cleveland Street. The union board, the map of the assistant planner, here to present the Texas Code of Sign Variance. I will give them some background, go over the variance requests and then each of the criteria for approval that are assessed during approval of the variance. So to give them some background. So this sign variance is for an existing sign with the gas station on Eagle Drive seen in the picture on the top there on the screen. So how we got here, so the property owner recently removed a pole sign that's shown in the picture at the bottom on the site. And then placed the current monument sign in roughly the same location. To clarify, at this time they did not have the final permits, they did submit an application but failed the final inspection because they were in need of a variance. So in order to keep the sign where it is, they submitted a variance request from the minimum setback from the side yard property line. So the sign code requires that all freestanding signs be at least 10 feet from that side property line. This existing sign is about 3 feet 7 inches from that property line so they're requesting a setback difference of 6 feet 5 inches. This is the only request especially with the signs that do need all other sign standards. So to go to the criteria for approval of the variance, the first one being that due to some unique condition of the property, literal compliance with the sign code would cause unnecessary hardship. So in this case, literal compliance would require the sign be moved into the middle of a driveway as kind of shown in this graph up here. This creates a clear safety hazard. For the applicant, the current location of the sign is really the only practical location this time could be that doesn't create a safety hazard without in turn requiring major redevelopment or renovation of the site, which would be an unnecessary hardship. Now while SAF certainly does find that to be an unnecessary hardship, the location of said drive-about being so close and thus requiring the sign, thus leading the sign to be where it is, is not necessarily a unique condition. While it is in the style of older development patterns have nearly the entire site paved over and would not be allowed if the site were to redevelop today, regardless of that type of site properly setback, it is the style of development that we do see throughout the city in just older developments, so not necessarily unique. The second criteria being that the granting of the variance will not violate the spirit or intent of the ordinance. SAF finds that this variance would preserve the spirit of the sign code, particularly in that it's there to promote the safety of the city's inhabitants by avoiding the sign becoming a safety hazard if it were to be placed in literal compliance with the sign code. The third criteria that the condition was not the result of the property and its actions. Based on tenure records, this site and its current layout was developed approximately in 1975, so well before the current owner purchased the site. Fourth, the board shall not grant a variance of any outcome solely for reasons unrelated to the property. This variance is due to conditions of that site location of that drywall causing the safety hazard and is therefore not solely for reasons unrelated to the property. So on to staff recommendation. So due to the site layout and the location of that drywall not necessarily being a unique condition, we can't say, staff does not find that all the criteria are strictly met, however staff does have no objection should the board find that this request does meet the spirit of intent of the sign code. And then just to remind you practically, if the sign variance is granted, the sign would be permitted to stay at the current location, if denied, the sign would have to be removed. Okay, thank you. So before we get into the questions, the matter for the board is whether to grant a variance in city 's development code regulations regarding the unlock that I now open the public hearing all witnesses for this case have been previously sworn. Do any board members have any questions for city staff? I want to go back one slide where you state that if it's denied, the sign is going to have to be removed. Based on all that, what with the removal being required, you would then require them to place their sign at the 10 foot set back from the site. Or where else are you suggesting any sign being located? My impression, it may be wrong, but if you remove the sign, you are removing an aspect of the business performing its duties as a business. So if I understood correctly, you're wondering if the sign would be removed, where could it be placed? In that case, it would still have to stay out of drive-outs, so there's a reasonable probability that they could have this particular sign on the property. If you went to the slide that has the picture of the property per se, the instance here was we don't have the 10 foot setback from the side, what is the requirement from the front, from your street? Is there a possibility the sign could be relocated in that position, or how much would that impact drive and therefore safety? So the front setback is 20 feet from the curb, which is currently based on a survey, and then extracted a little bit from it. It does meet that front setback, it's about 21 feet away from the current curb. So as you just have to. So therefore, from what I'm seeing on there, it would mean that the sign would have to be, quote, "up on a pole, visible, perhaps, adjacently attached to what is the canopy that goes over the pumps." Correct? That would be another decision. We have selected, there are multiple signs, so they had a separate sign that was approved and finaled that's on the canopy. That's different from this sign in question. Okay. Yes, I have a question regarding the signage itself. Are monument signs showing locations of businesses now preferred over signs that are on elevated poles, or does the city not really carry either way? We would just have to make sure it meets the height limitations, whether it's on a pole or in a monument. Sure, we'll. Was it non-conforming just due to position or for the type of sign that it was? So this, are you referring to the previous? Yeah, the previous. The previous sign was non-conforming for location and height. Okay. So this one is just location. Okay. So, and I guess, I don 't know if it would be a better question for the applicant, but were they replacing the sign to become more incon forming with the height, or was the old sign this? So it is considered a new sign, so, because the old sign was new. I guess it's up to the board. Okay. So this new sign is more inconforming with the current deep, didn't develop a code than the previous one. If, like, how it is current. Correct. You said there is another sign on the canopy itself. Yeah, it's on the picture. Yes. Oh, yeah. The circle one. The circle logo. Yeah, that's when you're driving by, you have to turn your neck to see it. Oh, yes, Member Ronsky. Well, if you're referring to the, quote, Texaco circle sign , that's just their logo. It doesn't address the issue of the gas prices, which is, I think, what this, both the old and current sign are trying to do. And if they removed a legal, but not conforming, whole sign , and placed the monument in the same location, I'm looking at that as saying that the whole issue is, they didn't address, somebody told them, hey, this doesn't conform. You need to go to Exit X, and they took it under advisement , put it in, but they went, oops, and didn't put up a permit . So is it perhaps a case of asking forgiveness, which is what we're doing right now, by allowing a variance? Yes. So, given the location, does it meet the setbacks? The city would not have been able to issue a permit for this sign. You're correct that it's less non-conforming, and that they addressed the height issue, but the location would never be able to be permitted. So they could seek to put that sign anywhere else on the property that meets setbacks. They could move the pricing to the canopy, for example, or other locations, but that's not for staff to tell them where to put the sign on the side. It's to tell them, here's the sandbox you can play with, and it needs to fit with it there to get a permit for it. So then what I'm hearing or understanding is, okay, what was non-conforming, although legal, about the pole sign? The fact of the setback, or the fact of the height? To be clear, we have no proof to my knowledge of the original permit to know that it was ever permitted to begin with. The sign that was previously there was non-conforming to both height and location. But either the sign code does not allow you to replace a non-conforming sign. So if rather than replacing it, if there is just a way to quote "upgrade it" to the new technology without changing anything else. Had the structure of the sign been left in place, they perhaps could have refaced it if they had been able to show that it had been damaged or something, and only replaced the face of the sign. I believe there is an allowance for on the code that they have removed the structure of the sign so you cannot put the sign back in that location to get a permit for it. It's not a variance being granted. You know, I understand the change in the structure. I was just kind of wondering what all factors make corporate or whoever take it into consideration and looked at in this, and whether or not all of those variances were available for corporate in order to do their decision. Sure, to be fair, the criteria for you all were not necessarily corporate business related decisions, but the hardship criteria, I don't mind if you say, Paul. So there was, my understanding is there was a variance request submitted. It just wasn't processed when the sign was in place? I guess, as some clarification, so you did find the permit for the previous sign, it was permanent in 19. This is a new sign, so any conformity rights don't necessarily apply. So this, and then I guess the answer, could you say your question again? Sorry. I thought I heard that there was a, like a permit, a variance submitted and just not approved by the time the sign was installed. For this sign, they submitted applications, signed permit applications, no permit was finaled. So it was for the permit, not a variance to the code? Correct. By sure, do you have a question? Yeah, so just timeline of this, there was the permit that was not approved and it wasn't, how long ago was that permit made? I have it back here. So the city received applications for the sign permit of July 2025, and then this variance was submitted. I'm trying to remember. It was the beginning of June, sometime this year. And then how long has that sign been up? The new one? Can't say for sure, definitely in the last year. Okay. I don't know. Are there any other questions for our presenter? Will the applicant please present any evidence or arguments to support the request? Thank you for coming up to present Mr. Wheatley. Thank you, Mr. Board. As you can see, pretty much my presentation is pretty even. On my branch code, branch request that I'm asking for, it doesn't need the requirements, the setback, the prompt set back or the site setback, adjacent to the next property. As you can see in this picture, the old original sign was removed, and then we mounted the new monument sign, everything was constructed exactly where the old sign used to be. And a permit was pulled for this, and obviously the measurements and their measurements doesn't match, and they denied the permit after we already had pulled one. I don't know what the difference will be on the measurements. When we measured the side of the monument, side of the property, you can't quite see it here, but it's actually the grass area that stands pretty far, so we measured the whole section of the grass area, there's a little creek that goes there, so we measured the concrete that's in the other property, thinking that was the proper measurement of the property. But at the end, when the city requested a survey, which we did, we added a survey here, we got a brand new survey, and they came out saying it doesn't meet the requirements, we only 3 foot 7 inches from the adjacent property, or the property, with the property as well. And then on this particular situation here, in order for us to remove the monument sign back, or remove it more to the outside of the parking lot, it's dangerous to pull the property because they won't be able to go around the gas station pumps, or they won't be able to, like we said, more back, people won't be able to see the sign at all. Like we need to beat the 20 foot clearance from the street to where the sign is now, you're moving it 5 feet more far back, and the pumps will be on the way, you won't be able to see it anymore. Like I was saying, on all this property, none of this was created by us, the property was renovated, new fascia was installed, new signs were installed on the canopy, which we pulled permits for it too. The only thing is when, I guess no excuses, we made a mistake on that one, when the gas of the monument sign, it was placed before we had the inspector come by and look at it, and make sure everything was there, but the sign was placed before the inspector came and looked at it, and that 's when we got a failure on the inspection. And then just public benefits, preserving, saving the circulation that was creating, without us, it was a hazard. So we were just maintaining the sign location, modernizing the property, not having an advertisement for the gas station, it really affects the business. We respectfully request an approval for the variance that monument sign to remain 3.7 inches from the side property, lying in the required 10% back on the section 331.2.2. If you have any questions, please let me know. Thank you for your presentation sir. Do any board members have any questions for our applicant? Vice Chair? What would have you done if you had gotten the inspector before the sign? Were you the one that put in the new sign or was the company that did the renovations the one that put it in? Our company, our employees, they put it there. You put it there. Yes. And what would have you done if you found out that you couldn't put a sign there, before you put the sign in? Before we put the sign in, well we're going to, because this sign is our grandfather's hand, so you're only allowed to do refacing the sign, so that's what we would have done. But the customer wanted a monument sign at the moment, and when we applied for the permit, we received the permit. We didn't get the denial of the permit until after. Okay. So you thought you had the permission and then you did it. Yes. Okay. Member Rimsky. Okay. If I understand from your presentation, what you measured, you measured from where the sign is located, the full sign or the present sign, to where the grass ended, adjacent to the parking area of what I believe is an apartment complex, or that past year. Did anybody give you an accurate site map that showed exactly where the property line was? No, because you can see. With them coming out and re-addressing it, where did they put the property line? As you can see, I had this survey, which I had provided one day by the property, right, and then we used this thinking that the property line was there, but it obviously is different than what it is from the new original survey that we did after. So you're saying you used it in an official survey or you had another survey done? I had another survey done because this one is different than the survey. They're a little bit different. The old one and this one. This one was created, I can't say the name of it, but it was created quite back. But basically you did go to the effort to have what is an appropriate survey done by an approved survey company. Yes, this company in case, it's an approved company and I think it's placed here in the industry with that. But I think this survey was used to buy the property. Okay, thank you. Does the board have any other questions for Rob? Thank you for coming up to present. Now that the applicant and the city have presented their testimony, evidence, and arguments, is there anyone who wishes to speak regarding this variance? If so, please come forward and state your name and mailing address. You have four minutes to address the board. Okay, seeing none. After hearing all the testimony, evidence, arguments, and questions and answers, as well as hearing from all those desiring to speak in support and opposition to the variance , I will entertain further questions from the board for any parties or the speakers. If anyone has any further questions on the evidence now, this is the last time to ask. Hearing none, I now close the public hearing. The board will now deliberate and decide on the variance request. Upon the completion of the board's deliberation, the board shall render an unbiased decision based on the record and supported by reasons and findings of fact. In considering the variance, this board shall consider the facts and information in the agenda backup, including staff 's written analysis of the variance, the applicant's narrative, and testimony presented in the public hearing, and the board's consideration and evaluation of the requirements of the applicable standards from the Debt and Development Code. The board may either grant the variance as presented or with conditions, or they can deny the variance. In your deliberation, consider the basis for the request and staff analysis criteria for approval of the variance. All right, so is there anyone who wishes to discuss the variance that was presented to us? Ms. Wormski. Based on what I have heard both from the city as well as the person addressing it on behalf of the patient, if that survey was performed as a means for the sale of the property, and the survey says that the property extended to X point, and they used that to determine what their setback and approval rate was, only to find out that somebody else comes out and says, no, it's not there. To me, one's caught in a legal circle thing on it, and it's no fault of the present owner, and therefore, in my estim ations, I would like to suggest that the variance be approved. Mr. Chair, did you have something you wanted to add? It is, I definitely think there would be an unnecessary hardship if the variance was not allowed, and it doesn't meet the purpose of what, yeah, just like for the safety thing, and it's like for the information available, like in order to get that information out for a gas station to his business, if it's not facing perpendicular to the street, if it's parallel with the street, you can't really see it as well if it's perpendicular. And I was basically going to say the same thing. There was no other than improving the look of the property, moving the sign from a pole sign to a monument sign. It was a break-even deal. It makes the property look better , and I'm not aware of the property that is adjacent to the property that we're talking about has had any complaint about this, you know, hey, they moved the pole sign and put a monument sign there, and I agree that I believe that the individual was trying to do everything properly, and if you're getting bad information, but you're making legitimate decisions on the information now, I don't believe the person ought to be penalized. Did you want to add something? I was going to, correct me if I get the language right, I motion that we allow the variance, because it would be an unnecessary hardship to have it removed or to find a new place for it. Is that the correct verbiage? Okay. Isn't this the exact verbiage that you need? Yes. I move that the variance be approved and adopt the test report because the applicant has met the variance approval criteria listed in section 20.8.1(d)(1), and that is it would be unnecessary hardship to have to find a new location for the sign. Would anyone like to second this? I second this please. Okay. Now that we have a motion and a second, having received a motion and a second, is there any further discussion on this variance request? Yes. Okay. There being no further discussion on the variance, please vote on the motion and show of hands. All in favor of approving the variance, or to have the variance be approved and adopt the test report, because the applicant has met the variance approval criteria listed in section 2.8.1(d)(1), that is it. Okay. Say aye. Aye. All opposed? All opposed? Okay. So we have, aye or nay? Nay. Sorry, nay. Okay. Okay. So the results are the five in favor of the variance and one against, so the motion fails. So the motion fails. The request variance has been denied then. No. It fails. The variance has failed. Okay, so we just go back to discussion then, right? Okay. Okay. Let's see. I guess since we do have an A on the board, remember, should anyone present their reasons as to why you're opposed to it? Sure. My understanding is that the survey was done after the sign was installed. Also, that was not done at the point of purchase of the property and then that information of where the property line would be. I understand the mistake of measuring to the grasp, but the property line is public information. So I'm not sure that I find that to be. And like the city presented, the fact that the property is entirely paved is not a unique condition to this specific business. I guess my understanding is they had a survey in which the property was bought on, and that was not necessarily correct. That was my interpretation of it. Can we enlarge the survey as always? No, go ahead, Mr. Raffenspiel. Can we enlarge the survey as it is out there to see when exactly it was done? I don't know. No. There's no reason? Oh, no. Yeah, the testimony period is out there. Is that right? Yeah. We can't ask. We can't investigate new evidence. Yeah. I have a question under the staff recommendation for clarification. Can I ask that? It depends on what it is. Okay. It was the staff, they do not find all the criteria strictly met, therefore they do not recommend approval of the variance. However, staff have no objection should the zoning board of adjustment find that the request meets the spirit and intent of the criteria. That was not our motion. No. If we change our motion, if I present a new motion for vote , is that an allowable? So the motion has to be the way it was read before. That's just a kind of way to get your head around how different people might view different facts differently. So it's all part of the discussion that you guys are having as to what conclusion you would come to. So that's kind of staff's report, what they recommend moving forward with. But then as you guys review the evidence that was presented to you, it's up to you to either make a motion to approve or to-- Okay. All right. Thank you. Do you have a question? I guess question to board member. Register. Register. Do you--is it the fact that--is it the holding on that is not unique, like you view it as not unique, as the reason as the name? That is a factor, yeah. That's like according to my understanding, it has to be unique. That's a hardship. I mean, the reason why I view it as a hardship is because one, there is the--I mean, you can put it on the sign. Like you can put it on the canopy, but it doesn't necessarily do the same--it's a less--it doesn't do the same role as it does there. And there's also the canopy--the canopy that I saw on the new one, I don't know what type of work you're going to have to do to make sure that it can hold the sign. Sure. And I view that as the unnecessary hardship, but you're going to have to get that inspected to make sure that it can be load-bearing, especially over--since it's over gas pumps. Like either it is, then you put the sign up, but then you also have--if it isn't, you're either going to have to do the work to make that safe to do it or not. And I guess that's--I view that as burdensome and unnecessary. Do you wish to respond? I hear what you're saying. That's not what was presented. I think that if this was being presented as a variance request for a sign that didn't exist, my opinion might be different, but the sign doesn't exist. I do--I guess if I can call myself, I suppose. I'm trying to think--I guess I do have a concern if the--I guess my thing is mainly the safety feature, but I believe --because if we had the move to sign my feedback, it would cause some traffic safety issues. I am trying to think. If--I suppose if we were to deny the variance, I imagine-- well, no, that would be an evidence question, I think. Yeah. No, I can't ask that. I was trying to think if there would be another place to put the sign. All we have is our minds and the evidence presented. Right. So if the board can't make a decision without additional evidence, we can go back up to the beginning and reopen the public hearing and ask additional questions. Okay. Would the board be open to reopening the public hearing for additional evidence? Sure. Okay. So then we're going to go back. I now reopen the public hearing. All witnesses for this case have been previously sworn. So it's just--do you want to call the city or the public hearing? I guess we can call the city first. Will the city please make a presentation of the request for variance analysis for Criterion of Approval? Or at least return to stand-experience? I'm not going to be an assistant. Before I ask my questions, does anybody have any questions for this member of the city? Sure. I'll ask. So to your knowledge, would it be permitted for the price or part of the sign to be installed on the canopy itself instead of the monument signs? So currently there is--I'll forward my--I'm just saying, sorry. So currently there is a sign permitted on the canopy. I'm going to--I said I would double-check real quick to see if there's another sign permitted on the canopy. I just have to double-check that. So there's a--it's considered a wall sign on the canopy, so it's a little different from the monument or wall sign. So we'll come to that real quick. So are there other questions? I have a question. If instead of a monument sign, the current sign there was placed on a one-foot pole instead of on the ground, would it be a non-compliant legal sign? I'll just do one second. I'm going to grab the tape real quick. So it would still be a ground sign, so it would still have to move. Well, at what point does it no longer be a pole sign and it moves to a monument sign? Is there a certain elevation? So the elevation--so the height limit is the same whether it's a monument or a pole sign. Well, what I'm saying is it was a legally nonconforming pole sign. If instead of the sign being 10 feet or 12 feet in the air, they just cut the pole to where it was a foot above the ground and made it a pole sign that was only a foot above the ground, would that have been a legally nonconforming pole sign? Or does it have to be a certain elevation for it to be considered a pole sign? You have to be a certain height. So the code doesn't distinguish-- A specific height for the pole, correct? Yeah, the code doesn't distinguish specific height for the pole. Yeah, I have a question. So it's my understanding that any change to the signage, as in there was a nonconforming sign , that was removed. At that point, any other sign going in must be conforming? Correct. Okay, so by no longer having a pole sign, it doesn't matter . They wouldn't necessarily be able to put in a pole sign at this point unless it meets all requirements. Correct. Okay, so the monument sign, even though it was put in the same place, which is what it's showing us on the photos, it doesn't meet the conformity. Correct, yes. It's considered a new sign. It's a new sign. So that's actually what the issue is. They need to request the variance that they did not meet that new requirement, or the requirement of a new development, new sign. Correct. Okay. Maroski? So therefore, a variance is required whether you put it up as a pole sign or whether you have it as a monument. And even if it was a pole sign, with the pole going in the exact same concrete or whatever sleeve that the pole goes in. So as whether, so if it's a new sign, whether it's a pole or monument sign, anything you can create up, I guess the only way for them to have maintained legal nonconforming on the previous sign is if they change just the face. The pole itself would have to stay, you know, just have to, only the face can change. I understand that, but what I'm stating is you put a new sign in that's on a pole, and everything about the sign is consistent with the previous sign. It's height, it's size of the sign face, etc. All of that is identical to them. It would still require the variance is what we're hearing. Am I correct? Correct. Yes, correct. So I downloaded what was listed as the criteria for the documentation. I was inquiring if it was possible to make that date visible of the survey a little bit more legible by quote, " just enlarging that," you know, zooming it in. And I'm having a bit of difficulty with the reply being that that's a new piece of information, trying to determine and being able to read what is put up on the screen. Well, we can ask questions about it now. We reopened the public hearing, so you can ask any questions you want. I'm at, you know, for that. But anyway, in doing it online, which I don't know that it would be acceptable for me to read off, it shows that the date of the survey is on the 4/ 26. Okay, this is one by Metroplex Survey. The one that's up there is by KMZ. Is there any way to find out? Because if I understand... I guess... Remember, register's objection was that the survey was done after the sign was in place. So one of these could have been done after the sign was in place. But what does the survey that was required at the sale of the property? Is that KMZ's? And where does it show is the end of the property? That's what I'm trying to get to. And I think that's what we are all trying to get to. I guess that would be a question for the applicant. Would the applicant find coming to the board to vote anything as a question? Same question? Okay. We've got two surveys. The one that's there, I guess, is your presentation. Yeah. Okay, you had it done by KMZ. No, no. This survey was done before we even started this. All the survey was provided by the owner. Okay, so then that's the survey at point of sale. Because when you go to sell something, you have to have a survey done. Right. Is there any means, and that's a technical means for with us here, that we can have that portion that lists the date of when the survey was done. And if that survey was indeed done at point of sale, it's definitely ahead of what any monument sign was put in. And if that survey shows that the property line goes all the way over to the concrete of the apartment complex or whatever is next to it, then, and if that shows that it's, quote, that 10 feet that , as you said in your presentation, it was in, this whole exercise should lead to accepting the variance. Because really, if you go to the right end, a variance wasn 't needed. Somebody's measured something wrong. And that's what the determination is. Member Rimsky, I do apologize, but may I ask what your question was to the applicant? My question is to the applicant is determining what was the date of that survey. Is it possible to get that survey outside just like a better resolution of that survey so we can see details on it? Yeah. Can I answer that? I have the survey on my phone somewhere. I have to just look for it. Okay. You know, just really have to look at it. Okay. Okay. Last one. [ Inaudible ] So the date on the survey is July 2, 2020. July 2, 2020 was when the property was sold or prior to sell. Prior, I don't know, whoever the owner is the one providing the survey prior to this. I believe this is the survey that was done with the property. Okay. Okay. So when you say that you measured, you were talking about, you weren't using the survey to determine where to measure. Yes. Yeah. As you can tell in the survey, you don't see, you know, the other property is not adjacent to it on the service. So it's pretty hard to tell where exactly to measure. So when we measure, when we have a rough people measure, we measure from the street, from the edge of the street into the grass area and so the other side was the next property. There's actually, it drops down and there's a little creek that helps down. Yeah. So we measure all that. Sure. So that survey that you had, that made you believe that the property line was to the concrete? Yes. Okay. Is it possible to see, I mean, technically it is sort of evidence in, is it, would it be okay for us to look at that , a better resolution of that survey? So he's a sworn, he's providing sworn testimony. So his sworn testimony is that the survey is dated July 2nd , 2020. Okay. It's more of the lines of the survey. And I don't know if we have the ability to do that. Yeah. That's what I guess. But it's more of a process question. Yeah. Like would it be possible to get a better resolution screenshot or photo of that survey to look at the evidence or is it too late? Do you, does that help? We do record it. I see. All right. Okay. Okay. Is the question just on verifying the date of the survey or is that what the question is? Well, would it be possible for the presenter to physically maintain control of his phone and show the date, the survey date on the phone to each one of us? I think we would pass the date issue. Oh, we are? Yeah. Because I think board member registers concern, would it, if the survey showed that, like that the property was -- If the survey was wrong, sure. Okay, that's what I was trying to get at. That would be -- If the survey was -- That's one issue. Yeah, sure. But would that be enough to change your vote? I don't think that it's unique still. No. Okay. So that's not going to be loaded or -- All right. This one's a shot. Okay. Do you want to load the survey? Do you want to load the survey? I mean, if it's -- If there's no discrepancy between the surveys, then it doesn't matter. I mean, I guess for me, if it shows the -- I don't know. I did, because there was a -- because there was this survey . Was this -- just to clarify, was this the second survey done or the first survey done? This is the survey, the first survey we provided to the city. Okay. Do you have -- or does the city have it or does the -- for the second survey? It's in the presentation. Yeah, that was in the presentation. Okay. I think it's in your presentation. Yeah, it was there. Okay. Do you want to see the first survey? Yes. If we could -- I'm just trying to figure out the first one. [ Inaudible ] While they're doing that, you had a question about wall signs? Oh, yeah. A wall sign could be potentially added to the canopy. It depends on height, because there could be setbacks regarding the variation. So it really depends on height and whether they have the ability to do so. Okay. And I guess how many wall signs are they allowed to have on a canopy? We don't limit the number of wall signs. Okay. Again, it's related to relevant setbacks to adjacent residential uses. But -- so I understand that the canopy is more than 10 feet . So if the wall signs were on, even the far side of the canopy, it would be acceptable. Illumination. Well, the setbacks are related to ground signs. Wall signs are treated a little differently. Okay. When I looked at the survey -- This is the first survey? Okay. Okay. What would the sign be on this survey? Right with the X marks? X marks. Which, when you're looking at the survey, the bold black is the property black. Okay. That's why -- It was in this reading of the -- Okay. Yeah, when staff reviewed the permit, their comment was, " It appears the sign would be located off site. You need to provide updated location information." Okay. Because the X is outside the boundaries of the property lines on this. So the new survey has to put it within property, but outside of conformity. Okay. Yeah. Okay. Okay. Do we have the date for the second survey that was done? Actually, I haven't gotten that. That shows us April 4th of April 20th. Okay. What's the list? April 2nd and April -- yeah. So the second survey was done April -- oh, I just had it -- 20th of this year. Okay. On the 6th. Okay. And then -- What was that? Yeah. And then -- Is it April -- Yeah. Okay. Okay. Great. Since what would be the alternative would be the ground signs on the canopy, I guess -- I mean, if -- like, even if like this -- like, because would there be any -- because the rules are different, could they put -- could they put wall signs on the -- either on any part of the canopy or -- I'll say that the code allows -- would allow a wall sign. We haven't reviewed it. We don't know if it meets any other regulations. So I would hate to say it could be a wall sign. Okay. So indeterminate. Okay. If we were to -- if by the statement of looking toward a wall sign, any wall sign is going to have the -- arise that is going to be consistent with the lower height of the canopy as a minimum. The sign will be there above there. Realistically, as a driver going by who wants to buy gifts, in order to see that sign, it's going to be the, quote, 20 feet or so back because that's where -- Okay. Oh. -- the thing is. Plus it's going to be up as to a point that it's not really within the site. Member Rimsky. I do apologize for interrupting, but do you have any further questions for either our applicant or for the city? I can't stop, but what I was trying to do was address the discussion with Council Member Wakefield. So my apologies for this. No worries, Member Rimsky. Does anyone else on this board have any other questions for either our -- for either the city or for our applicant? Hearing none, I will go ahead and close the public hearing. Thank you both for your -- thank you both for coming up again. The board will deliberate again on the side on the variance request. Upon the completion of the board's deliberation, the board shall render an unbiased decision based on the record and supported by reason and findings of fact. In considering the variance, this board shall consider the facts and information in the agenda backup, including staff strength analysis, the variance, the applicant's narrative and testimony presented in the public hearing, and the board's consideration and evaluation of the requirements of the applicable standards from the D IN Development Code. The board may either grant the variance as presented or with conditions or deny the variance. In deliberation, consider the basis of the request and staff analysis for the criteria of the board's rule of variance. Member Rimsky, did you want to continue? She has a question. Yes, go ahead. Okay, I was just kind of thinking out loud, my apologies for that. Okay, we're looking at this variance. The end result, number one, we provide the variance, all is well and good in that aspect. Number two, we don't agree with the variance. There does not appear in my risk/benefit options analysis to be any option. Therefore, if there's no other option for the sign's location, they don't have a sign. By not having a sign, are we therefore impacting the ability of the business to function as a business? And that, in my understanding, is not what government is supposed to do, or this whole thing is supposed to do. If they can't provide us a business, they close up shop, and anybody else would then go to the QT, which is down the street from it, if I'm understanding things right. Vice Chair Wayfield, did you want to comment on it? I guess, just more of a general comment. It is, I guess, I view this as in, not necessarily as staff said, staff does not have an objection of this. There is no negative to proposing the variance, and I do view it as unique enough, as in most of the gas stations I see around here are not fully paved like that. I would say, if you look at, on North Texas, there's multiple that are fully paved. On Blaine Gray, there are several that are fully paved. And then, I guess, it is, we have, since we couldn't get that information from staff, we have no, they are either going to be having to either pay for more signage to get the same benefit that they currently have with it right now, or they will get no benefit from it due to, or they'll have to come back for another variance. And, we know this process takes time and is inexpensive, so if they have to come back for either another variance for a sign, either for the canopy, yeah. I have a question. Our, sitting on the ZVA, we are either to uphold the requirements, and as Member-Register has pointed out, it didn't mean all four. We, as a board, are allowed to, okay, we can say it's meeting the spirit of it within the language that Commissioner Wakefield proposed, but at the end of the day, we need to come to a vote. And continuing conversation about the economic well-being, the expenses, everything else, that's not actually our pur view. We need to vote on the variance, yes or no, and, oh, I'm sorry. That's completely understandable. I'll have Vice Chair Wakefield speak. I guess this is, because like we can also do, like conditions, I don't know if there's any conditions that you want to do, but is there any, would there be any conditions that you would be interested in applying that would swing your vote? Or is this? Well, no, because you have to approve with these conditions , but it would ultimately approve the, okay. So it's just, it's just no, and nothing can sway it. Okay. Member, I guess before we take the vote, Member Omsk is, did you have anything else that you wanted to add or comment on that? Well, I guess the way I'm phrasing the economic thing is they're not, as to one of the criteria, the statement about economic hardships being involved on it . And I can understand if I may, Councilman, excuse me. It's okay. Remember, Registrar's replies about there are several other gas stations that aren't, you know, fall in the same soup, because it has the concrete all the way around. But there also used to be, and it's not listed here, the thing about ex post facto laws. And, you know, to me the intent of, I'll just, never mind. So, okay, we have, we do have, I suppose, three options presented. We can either approve the variance, like as presented. We can either deny the variance that was presented for us, or we could postpone and listen. I'm sorry? Like what more information do you need? Okay, I guess with more information that's needed for the next meeting. Yeah, because if, I think what we do need the information is what type of signage they can put on their property, where they can, with that information, sway you one way or the other. If not, then they're, you know, what I'm doing. Well, if you told me that they could put a sign on their canopy, I would say no, but the sign doesn't. But if they could? I'm not sure that that would, I'm not sure. Okay. Because I don't think it would be fair to staff or the applicant or any of us on this board if we postpone to gather information. Like, if, like, if it is, because there's no guarantees in the case, they'd have to go through it. If that, even if they couldn't put a sign on their canopy, it would change your book, then I don't think there's a point in gathering that information if you're not absolutely certain that it would change your book from the uniqueness requirement. But would it, would the fact that they couldn't put it on their canopy be a unique feature to you? Again, if, maybe if it were presented, if that were an issue that we were talking about. Okay. Okay. Then I don't think we should postpone it. Okay. I don't think we should postpone it. There'd be no point to it. Okay. All right. Yes. I'm just going to dig out of the box. Is it possible to have, that they could have a variance for a monument sign based on if one could conform to the set back if it's at the opposite side of the property? Right now we have it, and it looks very nice there. I believe that would be asking for more evidence, which we 've already closed the public meeting again. I also don't think, because right now it is member registers vote that is holding us up to where, that we cannot pass this variance. And I do not think that would change the uniqueness requirement. That it, member Rinsky, that it's, I've been trying to find ways to prove uniqueness to, and it has not satisfied, and I, we are at an impasse. I feel like I can vote against this. And I could, we, I don't know if we're allowed to do this postpone until we get another board member, so I, because either we have to vote to fail, to deny this, or we need to grant it. And they, the vote to deny is far easier to get than the vote to, the vote for varying, to grant it. I, I believe then if we can't, if we, I guess if gathering more evidence won't change any votes or minds, I suppose that the only way forward is to vote to deny the variance as presented by the council. I mean, we can still postpone. I mean, like the only two ways of things changing is if, I mean the only way it changes now is if we get a seventh board member, either an alternative or permanent one, and they decide to vote for this. But of course I do have one thing is like, well one, there 's no guarantee that we would get a, a board member, and we also can't guarantee what, how, but we can. Yeah, exactly. That's. I mean, I guess. Chairman, I'd like to call the vote. Okay. All right. I move that the variance be denied as presented by staff because the applicant has not met the variance approval criteria listed in section 2.8.1(d)(1) specifically. Is there a motion? Is this the motion that I need to make at the top? Yes. That's basically what you just said. Sure. Okay, yeah, I, I would take a motion that the applicant has not met the requirements for the variance, that we deny. Okay. Is there a second? I'll make a second. All in favor of denying the variance, raise your hand and say aye. Aye. Aye. All opposed, raise your hand. Aye. Okay. The motion, all right, so the, it is four in favor. Or three in favor. Oh, okay. Four against. So the, one, two, three. There's only six, so it's three and three. Wait, so why is that? So it's, we might have to postpone this until we get to break the tie one way or the other. Okay. All right, so since the variation, since, I had better, I mean, deny the variation. Okay, and I would like to then, let's go ahead and postpone . Tell. Entertain a motion. Entertain a motion, postpone. Till we get another board member. Well, we don't want to be that specific. Till we get that tie breaker. I mean, I guess what would the phrasing be on this? We could do fair and day certain, fair and tell and event certain, so. Yeah, so tell. Tell and event certain. Yeah, the event is like, tell, I guess, we have to have, like, the only reason why we come back is we have a one way to decide. Either one of us has to decide to deny just to get out of the way, or we have to wait until we get another board member so they can decide, break the tie. And that would have to be the event, that we have seven board members. Or seven votes. That's the motion. Okay. Okay. I would like to entertain a motion to postpone until we have a seventh member on board. Sure. Okay. Any motions? Second. All in favor of postponing until we have a seventh member, you can say, "Hi." Hi. All opposed? Okay. The ayes have it. Six, zero, the, let's see. Oh, we don't want to step forward. Okay. So, given that we could not reach a decision today, this variance will be postponed until another member is added onto a board. Okay. Okay. So, now moving on to item number 3B is AA26-0003, hold a public hearing and consider an appeal and administrative decision regarding the existence of non- conforming rights with the building addressed at 910 North Mineral Road. The building is one of four structures located on approximately 3.5 acre property located on the east side of North Mineral Road, approximately 735 feet north of Russell Newman Boulevard in the city of Denton, Texas, Dent County, Texas. The matter before the board is whether to affirm, reverse, and hold or impart or amend or modify a decision made by the administrative official. Okay. The decision of the administrative official is that non-con forming rights to continue a variety of industrial and storage uses do not exist. A vote of at least six members of the board is required to reverse the administrative decision. Okay, we've already been. Yeah. This is a, I think you can start with I now. I now open the hearing. All witnesses for this case have been previously sworn. Will the city please present its testimony, evidence, and arguments to support the administrative decision? Yes. I believe there was a little break. It's okay. Pause for a break if you'd like. Oh, I think with a five minute break, satisfy everyone. It would be lovely, thank you. Okay. I think we do have a break. Yeah, I think I have five minutes. Thank you so much. Thank you. The sun's gone down. Okay. We have returned from recess and have returned to our meeting. Yeah, really quickly, since I know a lot of you all are new to city boards and preliminary procedure and everything, since we've continued that one item, please don't talk about it, you know, with each other separately outside of the open meetings. Any discussion on that will be come back at your next meeting. Thank you for the clarification. Okay. Now, we'll go ahead reopen the meeting. All witnesses for the case have been previously sworn. Will the city please present its testimony, evidence, and arguments to support the administrative audit officials decision? Good evening, Chair, members of the board, Kim Izygurski, Planning Director. The case before you tonight is an appeal of an administrative determination regarding non-conforming rights. So a quick overview of the request before you and how it came to be here. The property owner submitted a zoning verification letter, specifically a request for a determination of non-conforming rights back in May. They submitted a letter and evidence to the city that was included in your backup that asserted that they had a variety of non-conforming uses that had been occurring on the subject of property and that they believed they had rights for those non-conforming uses to continue. And the uses that they described were a variety of contractor and storage-related uses. Those translated into the uses listed in the DDC would include outdoor storage, warehouse, and wholesale facility, low-impact manufacturing, and administrative, professional, and government office uses. Based on the evidence that they provided and the additional research that staff did, which I will walk you through in this presentation, the director determined that non-conforming rights did not exist for the subject building due to there being no records that we could find that any of those uses had legally been established since at least 2021. The owner therefore had the right to either use the property in accordance with the existing rural residential zoning or to apply for a zoning change to apply to change it to a district that would permit the desired mix of uses. The owner has now filed an appeal with that termination so that it is before you all to either affirm, reverse, or modify that determination this evening. Just a look at the subject property. It's outlined in black on the two maps on your screen. There are four buildings on the subject property with four different addresses. The original zoning verification letter request as well as the staff determination and this appeal are specific to the building circled in yellow. This address is 910 North May Hill. Just some additional history for you all. This property was annexed into the city in 2013. The buildings on site do predate annexation. At the time of annexation, in accordance with the code at that time, it was assigned the placeholder designation of rural residential or RD5X as it was called in the 2002 code. Since that time in 2019, the city updated our development code and that transitioned to a rural residential or RR zoning. That district under both codes was primarily intended to permit agricultural and low density residential uses and requires a five-acre minimum lot size. So just walking you through some of the aerial imagery and some of the history and research that staff did and the applicant provided, you can see here images from 2009, 2010, and 2013. These all predate that annexation. As you can see, the subject building did or was constructed sometime between February of 2009 and February of 2010. The first record of utility services that the city has for this was in 2011. It does appear, as you can see in the 2013 imagery, that there was some sort of outdoor storage activity occurring on site at that time. However, we could find no records that would help us specify what that use was. An outdoor storage could be accessory to almost any non- residential use of the code. So that did not lead us to any conclusions to help us determine what the use would have been. Host annexation. You can see here images from 2015, 2017, and 2019. Again, you can see a variety of outdoor storage activities. Some vehicles parked on site, but we had no evidence during that time period again to establish what specific use may have been occurring in that building. We did again look through those utility records that the city has on file. We found that the utility account name change occurred in 2018, but service was continued. And then you can see in 2019 that it does look like some sort of cleanup began to occur on the site, and there was a decrease in the amount of outdoor storage. Looking at the more recent imagery, 2021 through 2025, again you can see changes occur on site. The outdoor storage component does appear to have been removed at some point during that time. There is intermittent vehicle activity on site, but again parking alone, we can't determine what the use might be for that because vehicles could be present for this building or any of the other buildings on site. And again, we couldn't determine a specific use based on that information alone. Utility accounts during this time period, there was again a name change in 2020, and then the accounts for this building were terminated in April of 2021, and there's been no utilities to the site since that time that the staff had determined. So again, over this time period, we found no records that enabled us to say with any certainty what use or user may have been on that site, or that any use has occurred since utilities ended in 2021. So looking at the determination of nonconforming rights, it is incumbent upon the owner of the property to establish and provide the evidence to prove that they have nonconforming rights through that zoning verification letter process. So specifically what they provided and what was passed along to you all was a lease from 2020 for a company named Esparza Custom Cabinets for two of the other buildings on site, address is 870, which is also sometimes called 920 in certain records, and 890 North Mayhill Road. That lease did not include the subject building at 910. They provided the listing showing that the property has been listed for lease from March of '24 through November of '26. They provided imagery through Google Street View that was passed to you all. Again, there was no visible signage or anything on the building that helped staff use that Street View imagery as opposed to aerials to say what use may have occurred there. And then they did provide tax records and ownership proving when they purchased the property in 2021. Their letter of intent did specify that a company named Es parza Custom Millwork relocated from the building address is 890 to the subject building in 2023 and stayed there through January of 2026. However, there were no lease documents or anything else to help substantiate that. So staff, even though not required by code, does try to help people out. So we did additional research through our own records with what we had available through public records. Stitton County provided us with, again, a construction timeline for those buildings and the history of sales. We looked at the imagery that I've walked you through all this evening that showed it was constructed prior to annexation. There were outdoor storage and vehicular activity on site. But again, that alone was not enough for us to determine what use may have occurred prior to annexation. Again, we looked at the city utility records. We found three accounts for the subject building between 2011 and 2021, but no utilities have been active to the building since 2021. And then we also searched through the city's certificate of occupancy and permitting records. We found no CO applications for any use within the subject building in the 13 years that it's been in the city. And we found only one CO for the entire property, and that was for the building addressed as 936. So nonconforming rights can only exist if a use was legally established. That's the basis that staff was operating from. We know only the name of one business that has reported to have been operational in this building, that was in the owner's zoning verification letter application, as well as reiterated in their appeal information. And that's not as far as a custom cabinet or custom mill work company. But we again have no records provided by the applicant to show us that there was ever a lease of the building or any proof that they operated there during that time period. The cabinet manufacturing business was determined to have never been legally established in the building because they had no utility services in the time period. They were said to be operational. So even if that building was only utilized for storage, the city's adopted building codes would require that it have utilities to it for plumbing and ventilation. So it had an electrical water service and those sorts of things. And we again have no records that utilities were active to the building during the three years it was said to be there. Furthermore, there was no CO application ever made. So there was no application for the city to review or we would have flagged at that time that you have to have utilities in order to get a CO. So those were the premises that we used to determine it was never a legally established business. Therefore, we determined no nonconforming rights could exist because there was not a lawful establishment of the use. That again leads to either the building could be used in accordance with RR zoning or the owner could apply for a zoning change to a district that would allow the variety of uses they intend to do. Going back to the state laws that were cited in the appeal application and that relate to nonconformities, local government code section 43 again would have obligated the city to allow anything legally established prior to annexation to continue following annexation. As I presented to you this evening, we had a variety of aerial imagery available to us from this time, but we found no evidence through that imagery to tell us what use might have occurred within the building. The appellant did not provide us with or assert a chain of uses that were said to have occurred between annexation and 2023 when the first listed use that they named as far as their custom cabinets was reported to have began using the building. So therefore, staff had no way to reasonably conclude what use, if any, the city might have been obligated to allow continued since annexation. Section 211 of the local government code requires that the city allow a person to continue using their property in a manner that's nonconforming following a zoning or code change. It establishes assertion that that does not apply in this case because there was not illegally established use. If we had records of illegally established use, then we would be looking to what was spoken to in your work section was their intent to abandon. We recognize that the owner says in their affidavit that they had no intent to abandon the use, but again, we've determined there was no lawfully established use to have had nonconforming rights, so that would not apply. The decision criteria before you all this evening are to look at the general criteria and the development code for all applications, the facts stated in the application presented by the Director of the Appellate, and requirements of all applicable standards of the DDC. So I'll walk you through all of those briefly. The DDC has 13 general criteria for all applications. Most of those are site design specific, so they're not germ ane to this request related to nonconforming rights in the existing building because there's no site changes or anything else being discussed this evening. For the criteria that are applicable, they relate to the comprehensive plan and the development code being followed. Staff found that the determination that was made respects the purpose and intent of the city having nonconforming regulations and the intent of the RR zoning to serve as a placeholder for those properties that are annexed into the city until such time as the owner comes forward with the zoning request. The appellate's request to permit the variety of uses that were named in their application would not be consistent with the city's adopted codes and limitations for nonconforming uses. The code specifies that the use within a building that's nonconforming cannot be spread to other buildings on site so they couldn't just change uses between buildings. And furthermore, you're only allowed to change a noncon forming use if it's going to something that is less, determined to be less intensive and have less impact on the neighboring properties. So having just the ability to change freely between the mixture of uses they proposed would not be in alignment with those. The proper procedure in this case would be for them to apply for a zoning change to a district that permits the mixture of uses they would like to have occur on the property. The second criteria is the board's consideration of the facts stated in the application as presented. In this case, the documentation was all provided to you from the applicant's original zoning verification letter, staff's determination, as well as their appeal. Staff found in that the appellant did not demonstrate the legal establishment of any of the desired uses within this building throughout the history as we've looked at tonight. And then again, staff did that further research and also found that there was no evidence of a legally established use, again, because there have been no COs applied for for the building. Furthermore, no utility since 2021 to the building means they could not have had a CO during that time period anyway because you have to have ventilation and plumbing to a building. And then the third criteria are the requirements and intent of the applicable standards from the DDC compared to the written decision being appealed. In this case, the DDC standards related to non-conformities are consistent with state law. They exist for the purpose of limiting the continued existence of and financial investment into non-conformities to preserve the integrity of the city 's adopted plans and ordinances and allow the city to grow and develop over time as councils envisioned. Staff determined that no legal non-conformity exists. Therefore, it is consistent with the intent of the DDC to not allow them to establish new uses along the property. Allowing the variety of uses, as they've requested again, would have the effect of changing the zoning of the property without following the legal due process of the public hearing required for zoning change. So it would be consistent with the intent of the DDC for the owner to therefore apply for that zoning change and go through that public hearing process to get to a district that would permit the mix of uses they desire. The options before you this evening were outlined in your backup. I do have them here on the screen so that you all can reverse them in your deliberations. I won't read them aloud, but in short, you can affirm the decision or the director's determination that there are no non-conforming rights for the variety of uses that passed. You can reverse the director's determination whole or in part. If you choose that option, staff would request that you would at least specify which use you find to have non-conforming rights on the property because again, we cannot allow them to change between uses that have varying degrees of impact. We need to focus that on one use. And then you also have the option to amend or modify the determination or attached conditions. So this was outlined in your backup, but just to further provide guidance to you all as to what staff is requesting, our initial request would be affirming the director's decision. That's option one on the list of options that you have there. In this case, the owner would still have the ability to use their property in accordance with RR or again, apply for a zoning change. That would be proper procedure to give themselves the rights to do the mixture of uses they desire. If you do disagree with staff and find that there are non- conforming rights for a use of this building, then staff again would request that you specify which use has the legal non-conforming right to continue because we cannot just allow the free for all switching between uses that they listed in their zoning verification application. Third, I would point to you all that the appellant requested, if you do find that there are non-conforming rights, they requested that delay of discontinuance be made because they did provide proof that they marketed the property for six months within the last year. So if you choose to go that route, then that's also an option before you is to grant them that one year delay as they've requested. And at this time, I will pause and answer any questions. Thank you for presenting. Do any board members have any questions for this witness? So it's just this one building on this property that were ... Correct. Because non-conforming uses are not allowed to be transferred between buildings essentially, and they only requested that zoning verification letter specific to the building at 910. That is the only... Okay, so this is how it came to the city's attention is they had to ask for a zoning verification letter. Correct. They initially, I believe, called our front counter asking about establishing an industrial type use on the property. They were told it looks like this is not conforming. You need to go through this process to determine if you have non-conforming rights or not. And for both the current zoning and the previous zoning, none of the uses were allowed, but it was annexed in 2013. Correct. So had there been proof at that time of what use was occurring, then at that time we would have been obligated to allow that use to continue even if it was not approved. Okay. But we have the history to know what that was. Okay. Okay, and the next? And then if I understand when it was annexed, you use as a placeholder what you now consider RR. And a requirement for something to be an RR has to have five acres. And if I heard correctly and have read in the presentation, we have four buildings that are a piece of property that's like 3.2 or they're about acres. So how can RR, other than being used as a placeholder until somebody figures out what else it's going to do, how can that be utilized as the zoning specification for that specific building if no variance is allowed? Sure. So at the time of annexation, again, they're allowed to continue with what they were doing if they were doing something legal at that time. Otherwise, the code since 2002 has assigned the RR as a placeholder solely because when something's annexed, it has to have a zoning district. There's no analysis done at that time to determine what zoning is appropriate because zoning has to follow the dual public care and process. So that's incumbent upon an owner after annexation to figure out what it is they want to do with their property and then apply for that zoning. Because you are correct, they don't have sufficient acreage . They could not plant this property or redevelop this property under the current zoning. They would have to change the zoning to continue using it. And I know that we're looking at this property per se without the other three, but the same thing, that same placeholder applies for the other three. So I guess in order to do what you just further elaborated, this whole process for this one specific building would have to go through the zoning request and how, I guess I can't figure out, how can one isolate one building on perhaps a piece of property that's one contingent property. Okay, if I've got my, bear with me, okay, because I've got a piece of land and it's zoned as having single family residential. And then I put more than one building on it that's quote, " nonconforming" because there's only one property, piece of property that's got a certificate of occupancy. The others are just quote, "big shelves" or storage things or that. Are those other buildings, you know, how do you take them out without dissecting the property? I think I follow what you're asking and nonconforming is as you want to bring it to your work, it's a very nuanced. The DDC distinguishes between noncon forming site features like parking or accessory features on a building or on a property, not structures, which it sounds like is more what you're describing, and then nonconforming uses. All of them have different regulations that apply. In this case, their letter that they originally requested a determination for was specific to one of four buildings. And because the use, the nonconforming use is what was in question, we looked at those nonconforming use regulations. And those use regulations are specific to an individual building. They do not, for example, if you had a legally nonconforming gas station in one building and you wanted to open another part of the business and another building on the site, you could not do that if it was nonconforming. You would have to change the zoning to something that permits that, or you would have to select a different use that conforms with the zoning. For use only, we have to parse between buildings, the way they go is random. I couldn't determine, you know, looking at it, is there any chain link or anything that defines the property other than the fact that you got your four buildings on there? I couldn't with looking at any of it. You know, they're saying, okay, there's lines drawn, but does that represent a fencing? The lines that you're seeing here, is that what you're referencing? Yeah. Those are fences that were installed, it looks like sometime between 2023 and 2025. I did not find permit records for those. Okay. There are fences there. So we're looking at how to handle one building within a parcel that is fenced in, if I am correct. Okay, thank you. Are there any other questions from our witness from the city? Okay. Okay, we're done. Oh. No, no, no, that's all right. Okay. Just one check. Okay. I think that's a better answer by the applicant. Okay. We'll be, all right, thank you for your presentation. Will the appellant please present his testimony, evidence, and arguments that support the appeal? Good afternoon, board. Thank you for taking this time to hear our appeal. Thank you for staying late. I used to work for the city of Dallas, and I need this attorney, so I don't have long to be seen now. So I'm going to be as brief as possible. I also have two witnesses who will be able to answer your more specific questions. First off, my name is Steve McBath, I'm the general counsel , and I'm on behalf of the appellant and property under 24K. This is the appeal from the planning divisions, May 27th, administrative determination for nonconforming use, that exists at 910 Mayfield Road. We ask respectfully that the board reverse that determination or in the alternative to delay any finding of discontinuance under Denton Development Code 1.512-F. First, I'd like to tell you that this is one property, and there are four buildings on it, but it is one continuous property. It has been in its exact same use, and it's still being used the way it was from 2011. The buildings were originally put up between 2009 and 2011. So building 910 has been assigned, and it was assigned back just for electricity purposes, not because it was being parceled out for them, but this was strictly for electricity purposes. There have been tenants in all of the buildings, except this last one, which we spent the last two years trying to get this person out. This became an issue with the city, or brought to the city 's attention when a new CO was sought after in April of this year, April/Romain. There was not a previous CO on this property because it dates back to 2011, pre-annexation. So the city of Denton could not have even given a CO in this situation because of the ETJ. Second, the city's own findings confirm commercial and storage activity has been existing on this building going all the way through this year. This use has not been abandoned, it has not been discontin ued, and nothing that would extinguish the nonconforming rights. In fact, nonconforming use is a zoning concept. The Supreme Court says it is land use, impermissible for current zoning regulations, but allowed because it was legal at the time that the restriction was not in place. This land has been used legally since 2011 and continuously since 2011, up until the time that it was purchased in March of 2023 by 24K. And again, as you mentioned, this is a 3.5-acre tract. If we cannot do this, then we're stuck with a piece of property that no one can do anything with because it's too small to develop into anything else. Rezoning would take probably a minimum of two years, I guess, and it's already cost. We're not asking for anything to be done that is not being done right now or has been done in the past. We're just asking that we be allowed to continue in the use of the property as it's being used right now. In the alternative, we will ask that the city consider owning it off for a period of one year to allow us to apply for a new zoning and to get everything in order. We want to do, we want to be good neighbors, and we want to break down the city. And that's the style I'll take down. Any questions? Do any members have any questions for our witness, Steve P ellin? He was first. Okay, question? Do you have any, I guess, the nature of the lease? Where is the people that operate in that facility? Were they leasing the property or all the other, like all the buildings as a whole, and do you have those lease agreements? I do not have the lease agreements, the less the word pre- existing us purchasing the property. Okay. So, do those agreements exist at all? I do not know. I do know that there was a tenant who was there and they continued and hold on over status for over two years. Do you have records of their payment? Uh, I have to ask. You don't have to pay cash. Okay. Go ahead. Are there utilities on the building? There are utilities in one of the buildings. You'll need to come into the building. You have to speak in front of the camera. And we're only looking at the building 910. Yes, ma'am. So, are there utilities plumbing, electricity, what's required by the city, and should have been if there was a business going on in building 910 North Bank? That's a good question. From the time that the owner acquired the property and I'm the realtor of the delta, all the buildings were occupied from the previous owner. Electricity, of course, is run to every building, but none of those tenants used electricity. The reason they didn't use electricity is because they could not get electricity is because they did not have a driver's license that was required by Denton County Co-op in order to connect electricity to the building. So they all run on generators. Even the current tenant that's occupying the final last building is running on a generator right now. Are there plumbing? There is no plumbing. We do have a water well on the property, so no city water. Waste? We don't have any plumbing. How do you have a business in the... We do have a septic tank. We do have a septic tank. And then septic tank would then have to follow... We do have it... ...requirements. We do have the septic tank serviced annually and we do have records of that. You have records of that? Yes. And has that been since 2013 when it was annexed? Yes, ma'am. And septic can be used within city under annexation? I believe so. So city should have records of that? Records of the septic? I'm assuming so. I've never checked. I wouldn't know. I mean... That would also have to be... I'm sorry. It would have to be tied to this one building, 910, not septic to all four buildings. Right. And the septic would be applicable to all four buildings. I was about to ask, are they serviced... Are there four separate septic tanks or do they all go into one? All go into one. Okay. Yes. I don't know if we have a packet that we sent that might be pulled up that we could view on the stream. We certainly provided it to Max. And the zoning department. Is it? We included it in the packet for this particular presentation. I didn't. It's fine. No? It is in the back of my notebook. Go ahead. Thank you. I have a few... It is this one. Mayor Wilton. Just above. Sure. Yeah. We're going to try to look at some images here that might be able to... I kind of pointed us in the right direction. The goal of... Since the owner took over the property was to try to bring in new tenants that could actually get us the typical occupancy. Okay. Our goal was to clean the property up. We're going to show you some images here. It was just an absolute eyesore. And after we purchased the property, it was our goal to try to get the tenants out. And I don't... Evictions are very difficult. And the only thing we could do, which is the easiest way, is to raise the rent, which is what we tried to do. And all these people paid cash. Let's go to the images at the bottom. It'll be good. Yeah. That's correct. So this is in 2024. You can see that all the buildings are actually occupied. And as far as it would move from building to building, and we would have to come and get on and continuously about changing buildings without permission. Okay. So you can understand while we're trying to get the tenants out. And we were involved in not actually executing a written lease with these people because we didn't want them there. Our goal was to try to get them out. And if you'll scroll down and kind of look at the historical, you'll see even back coming up, it just got worse. When we bought the property, it was just continued to get worse. People were dumped behind the buildings that just would come on a Sunday and just dump trash. So we were trying to gain control and prevent it from being such an eyesore for the community in the street. And Bay Hill now has become a very well-traveled street. You're going backwards? Yeah. To 2018. If you all purchased the property in '23. Yes. Let's not look at anything from... Okay. So here's '23. And then you can see they were operating out of all the buildings. This building was occupied by this tenant, which was a sp arser. Okay. And then... This is 910, by the way. Right. And that one. Yeah. All right. But there's nothing saying what was being done inside those buildings. There's no photographs. There's no written evidence if they were on generators. And I'm sorry, I know it's not... Well, no. It's not. Okay. It's kind of hard to provide evidence when they operated the way they did. Our goal was to get them out and to try to carry it to a legal non-conforming use that the buildings had all along. I mean, they've been there quite some time before. Annexation? Yes, sir. And they were able to get them out of the buildings. And they were able to get them out of the buildings. And they were able to get them out of the buildings. And they were able to get them out of the buildings. And they were able to get them out of the buildings. And they were able to get them out of the buildings. And they were able to get them out of the buildings. And they were able to get them out of the buildings. And they were able to get them out of the buildings. 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And they were able to get them out of the buildings. And they were able to get them out of the buildings. And they were able to get them out of the buildings. And they were able to get them out of the buildings. And they were able to get them out of the buildings. And they were able to get them out of the buildings. So there is more information available that could establish . Is there proof of, I guess, bank deposits of what the rent would be? Well, I certainly have historical photographs of photos that I've taken when I visited the property through the years. Yeah, like that building specifically of it in use? Of trash and beer cans and things that we were upset about. We were trying to just eliminate the ten-volume. So inside the building too? It was all the buildings. No, but like you have photos of it inside 910? No, I did not. Okay. So just the outside of the building? I didn't care to go in the building's gas. Okay. Yeah. Richard. So would any of this have been applicable to prove to the city that it was being occupied by a business? Because based on their presentation, it seemed like they had no evidence that there was. Yeah, I see that. The only way to establish occupancy, of course, is with a certificate of occupancy or with a utility bill, which we 're not in city water. We're in well water. And those guys did not have the ability to acquire electricity. And it is not the owner's responsibility to get the certificate of occupancy in a lease. It makes the tenant responsible. But those leases were so old. And in order to go to... So yeah, I would want to see like bank statements of rent, like the amounts and like the photos and I guess what other information that you can gather to prove. It is... I'm willing to hear more on it. I don't know if anyone else is. And I would like to ask some city staff questions after everybody has the question of the appellate. Okay. Are there any other questions for the appellate on the front board? I have a question. Were any of these businesses required to have licenses or anything from the county or any jurisdiction they were in to show you just can't open up a shop and say, okay, you know, I'm going to be an electrician without some licenses or somebody coming out and inspect. I know that you're talking about probably undocumented people. But I mean, you want us to take on face value everything that you're saying when we're asking for proof and you don 't have any proof, much less what they pay because they're paying cash. Haven't provided proof when we sent a whole packet for review to the Zumba club. He doesn't have nine ten. That lease doesn't have nine ten. That kind of is the issue. It's the building that is being addressed as a building that we have a new tenant in place and wants to lease it. And he filed for a certificate of occupancy and that's how all this came about. In which we wanted him to do the right thing and get a certificate of occupancy. It was us that pressed him to make sure he had a CEO in place. And the answer to your question is, is one was supposed to be a lawn service and he was working on automobiles. Well, we hated this guy. It was just cars everywhere. You could see what was happening. And yes, sir. This was, as you said, this was before annexation. Are there any county documents available to you on these properties and occupantization? Typically when it's in a HGJ or a county there's no certificate of occupancy required. The only thing that would probably be required maybe is a firing inspection. So we wouldn't have to do this. And the well water. I'm sorry? And the well water. And the well water. But none of that answers the question of nonconformity for property 910 North and Angle. Yeah. Correct. Right. Yeah. Has everybody had questions for the appellant? Answered. Dr. Wormski. Looking at the hierarchy as to who has what, you had an original property owner that sold the property, at which time you became involved, sir? Yes. As a property manager for the new owner? No. This is a real hurt in the negotiating the sale transaction . Okay. So you're worried now. You, sir, function as the legal counsel for... Yes. Okay. That's when I came on in May after Brown before. So if a building has a certificate of occupancy and it is non-transferable at a sale, you mentioned that the person going in as the cabinet banker or an embroiderer or whatever has to apply for it. Is it not the responsibility, and you may not be the one to answer this discussion after, is it not the responsibility, I would think, of...I've owned properties in other states but not Texas. Okay. That the person who owns the property and then is looking toward utilizing it for rental income and renting, they are the ones responsible for getting the certificate, not the person who comes in as the... The tenant is always responsible. The lessor has to come. Pardon me. It's the owner. No. The tenant has to come and get the certificate of occupancy from the city. Oh, okay. That's different than what I... Okay. So if there was an existing CO when the property transferred from one owner to the other, that CO does not go to the owner, it goes to the tenant. Okay. So each time you write a lease with a new company, you have a new CO. Well, they have to get it. They have to get a tenant. Yeah, that's what I mean. They have to apply for it and get it in document. Okay. And if electricity is one of the criteria, as long as the property has access to electricity, but that electricity does not have to "go to a meter" which then provides the electricity. So if someone is coming in and as you're saying, these individuals were using generators. Yeah. You still get... Or no electricity at all. Yeah, or not. But I mean, if they're using a generator, there was still, in order to qualify for a CO, there was still electricity available. They were just not affording themselves the opportunity. Yeah. Okay. To get the electricity, you need a CO. Yeah. To get the electricity, you need a dropper's license. So... They could not produce it. It was pretty simple. They could produce it. The tenant is pre-existing in the annexation by the way. Okay. Yeah, that's my question. I forgot my question. Okay. Always. Yeah, my question is, like, they were... As far as I'm concerned. They were... The person in the... Is that the Esparza rental right there? Yep, it is. Yeah. So why did... If he was occupying that building and using that building, why was he not on... Why was that building not on the lease with the others? Well, like I said... Go ahead. Oh, I'll also go and point out that... That's a question, unfortunately, I can't answer or he can 't answer because this pre-exists... This predates us, right? But he would move and occupy a building that was unoccupied . That's sort of the problem that we have with the Esparza. He continued with about a 24K in the month to month, month to month, month to month, month to month, until he stopped paying and then he finally ran out. Okay. But yeah. Then this is my question, are these buildings not locked? Do they not have separate keys? The vacant ones don't. They're just an overhead door. They were not locked. It's a metal building. And if they were locked, if there was a lock, Esparza could get in. He was pretty... He was a cabinet maker. Well, if it's a locked building... He shouldn't. ...and it's not used by the... He shouldn't. ...and it's not used by the... He shouldn't. ...and it's not used by the... He shouldn't. ...and it's not used by the authorized key, that's an illegal entry. Well he shouldn't. But if he agrees to pay rent and we're there collecting rent, it's hard to turn the money down. Okay. So, and you can... What was the amount of rent that he had paid month to month ? I want to say, in the beginning, it was 1,800 if I remember right. And then we moved it up to 2,000 and then 2,200 and we slowly just tried to... Okay, so there should be records of those payments. There's probably a letter, of course. I mean also bank statements of the... Right, for the deposits. Yeah, and those are... Okay. Yeah. It's really interesting. Are there any... Oh, yes, we have one. So the flow chart, the whole need for this is because one, you want email and the eviction process, whatever it means, two, in order to have that one building be utilized and rented to a individual business is what it is. It's because the other buildings, if one, they're vacant, what zoning or previous can be demonstrated that didn't lapse if those were to be rented out by the owner or this gentleman was utilizing, hopping from building to building or spreading out and the owner wants to make not only this building but he would also want to look toward having the other buildings be in compliance because right now I'm understanding that nothing on there is in compliance or did I come to a wrong conclusion? From what I understand, none of the buildings will be in compliance as of right now. So the only thing that's happening is that they are all still operating under the continuous use. Well, there's only one building that's occupied. Okay. Yeah, but yeah, they have not been... We successfully evicted the tenants basically. Yeah, I have a good question. You're talking about generators. What kind of generators were these used in? Loud ones. Well, I mean, a generator uses a lot of fuel and how are they moving this generator? It's not a portable that you just pick it up and carry it around. I mean, it's like it goes on a set of car wheels. How's he moving this around and moving all this fuel around ? That's what confuses me and where are all the electrical cords? Well, I can take a picture of the current tenant of this generator. I'll be happy to. I don't know what size it is. But I mean, if you're running a shop for building cabinets, I mean, you must have had a thousand feet of electrical wire running around in there. Anybody who's been in a shop that builds cabinets, you don 't get a little extension cord. You have to have big cords for 240 volt equipment and stuff . It just seems pretty impossible that this guy can do all this stuff and there aren't pictures or something like that of all this heavy equipment that he would need in the setup that he would have for these buildings and the time and effort and expense it would be to move this generator around everywhere. Well, I want to tell you that I do not follow exactly what you're saying, but up until April of this year, May of this year, there was never a need to have pictures of any of this information because we were not even aware at the time that this wasn't a nonconforming use. We've simply been utilizing the property the same way we had from the moment it was purchased, from the same way it was being utilized, from the day these buildings were put up in 2009. We've just been going along the same tenant, until we end up in a bad tenant. But other than that, everything's remained the same. Is the generator, because of your inquiry, is it a permanent, you know, a generator or are we talking about the mobile plate generators? And if you attach a generator and they don't have a meter, because that's the reason they would stay off, you can attach the generator and have your wiring such that it goes to where the knockout is for the meter. I guess you could. I wouldn't know, you know. It's a big generator, it's a lot of effort and a lot of fuel and it's a pain to do that. This isn't like, hey today we're just going to open a debate and talk to kids. It's not the owners business. No I understand that, but if you're out there seeing it, what kind of generator was it? It's not a suitcase size, I mean it's the size of a Leica Volkswagen if you're talking about these generators for business. That's not true. I can provide you with a generator. I'm afraid to build it. No, I'm just asking everyone, just as a reminder, like it's to wait for the chair to call upon whoever's speaking, whether it be the Helen or whatever. It's all good, we can get in touch sometimes. I just want to remind everyone who's here just of that guideline. I do ask, are there any other questions that we have for our appellant? Okay. Hearing none, thank you for your presentation and comments. Does the city have any rebuttal comments? Okay. If so, you have up to two minutes per speaker for rebuttal with a total of no more than ten minutes from all speakers from this party. Yes, so just a few points to clarify based on what was stated this evening. So they argued that there was no CO because the use of building 910 predates the annexation date back to 2011. However, that is not what was stated in the application and affidavit provided to staff that our determination was based upon. That information indicated that Esparza began using the building in 2023 after their purchase of the property in 2021. So I just wanted to clarify that staff, again, was given no evidence of anything that occurred prior to annexation and the documents that were reported this evening. With respect to the land being discussed as a whole versus the specific building, again, the information provided to staff for the original request as well as the determination letter and all of the information provided with this appeal are specific to building 910. Staff had no information regarding the other three buildings on which to make any sort of determination. So we cannot speak to anything regarding the use of those three buildings. Regarding the lease of the buildings, again, the affidavit, if you look at what was provided in your backup, the affidavit of the owner stated that the lease of two of the buildings, not the subject building, predated their ownership. However, they acknowledged that the lease of building 910 began on a month-to-month basis in 2023. Again, they took ownership in 2021. So that occurred under the current ownership. With respect to the electric, again, the electricity is required for a building to be legally occupied. Those buildings do have electricity run to them and had electricity through the city provided through April of 2021, which was again after the current owner purchased the property in February of 2021. So it was sometime since this owner has purchased it that electricity has been cut off to those buildings. But a generator would not be sufficient for someone to obtain a seat. You have to have proper electricity to your building. Regarding the rent payments and the discussion of that, I just wanted to point out that rent payment alone would not substantiate a use of the building. That does not provide us any evidence as to what was occurring within the building for which the payment was made. Again, the important thing here is we have no evidence of any use having continuously occurred since prior to annexation. So establishment, finding that there is now a non-perform ing right would essentially be establishing the illegal use of the property because we do not have that use history. And then finally, I wanted to address the assertion that they haven't applied for a zoning because that would take two years. The average zoning application for a straight zoning would take no more than three to six months and would both remedy the issue of their property not having sufficient acreage for the current zoning and the use of the building. I'm happy to answer any other questions you all may have. Sharon? Yeah, sorry, I guess I forgot to report. Does the Board members have any questions for us? That's okay. I'm sorry, can you clarify when electricity stopped being used? Did you say it was in 2021? The total of 2021 is the record. And the purchase by the new owner was in 23? No, it was in February 2021. The 2023 date is when they asserted in their affidavit that Esparza began occupying building 910 on the last month basis. Thank you. Thank you. Question. So there was use of electricity beforehand? Like there was utility bills before? Correct, there were utility bills. I have to look back at my slides, I believe from 2011 until April 2021 there was continuous electricity. Okay. And if, what is the, I guess, to establish use, are there any besides CO and alternatives like, I mean, especially if you newly annex something, are there alternatives to provide the city the info needed to prove, I guess, usage or occup ancy? I'm sure we are willing to accept any and all evidence. There are some examples listed on our zoning verification application related to non-conformities that includes things such as photographic evidence, you know, of signs on the building, or in some cases we've accepted like here's proof of auto lifts with a car on the inside of the building to prove that there was an automotive use occurring. So electric accounts with the company's name on them, le ases, anything of that sort. We're happy to look at any evidence that someone can provide. Are there any other additional questions or which one's safe? Okay. Okay, none. Thank you for coming up again. Does the appellant/applicant have any rebuttal comments that could follow the statements? No. Okay. No worries. Do any board members have any additional questions for openness to the appellant? Okay, same none. Now that the applicant and the city have presented their testimony, evidence, and arguments, this is a public hearing, is there anyone who wishes to speak in support of the appeal? Is there anyone who wishes to speak in opposition to the appeal? After hearing all the testimony, evidence, and arguments, questions and answers, as well as hearing from all those desiring to speak in support and in opposition to the appeal, I will entertain further questions from the board for any of the parties or the speakers. Yes. Yes. So. And who is it addressed to? Actually, this is more, I guess, a process question of more of what they have. They said if we deny, they asked for a delay in the designation. What is it? Like it was. A firm reverse amend. Yeah, of like the opposite. The request was that their request for the delay of determination of discontinuance would require that you find there are not conformal rights. Okay. To be continued for that additional year. Okay. Okay. Not sure if that helps clarify. No, it does. It does what I plan. Yeah. Are there any additional questions for any parties involved in the matter? Okay. Once this hearing is closed, there will be no more evidence or testimony provided. This is the last opportunity to ask questions. Okay. Hearing none, I close the public hearing. Next slide. Deliberation. All right. The deliberation is in the second meeting. Okay. So then. Okay. Next item on the agenda is concluding items. Are there any concluding items for tonight? Okay. Hearing no further items, I adjourn the meeting at 8.55 p.m .