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.
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.
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?
Okay.
So we have, aye or nay?
Nay.
Sorry, nay.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
.