Meeting Packet Board of Adjustment Regular Meeting
April 5, 2021
The City of Lago Vista
To provide and maintain a healthy, safe, vibrant community, ensuring quality of life.
NOTICE OF A REGULAR MEETING BOARD OF ADJUSTMENT MONDAY, APRIL 5, 2021, 3:00 PM VIA VIDEOCONFERENCING AS DESCRIBED BELOW
NOTICE IS HEREBY GIVEN that the Board of Adjustment of the City of Lago Vista, Texas will hold a meeting on the above date and time for discussion and action on the following agenda items. Items do not have to be taken in the same order as shown in the meeting notice.
This regular meeting will be conducted utilizing an online videoconferencing tool. Board of Adjustment members, staff and citizens will participate in this manner only.
Please join the meeting from your computer, tablet or smartphone using this link: https://global.gotomeeting.com/join/619368893
You can also dial in using your phone to the following number and access code:
United States: +1 (224) 501-3412 Access Code: 619-368-893
For supported devices, you can also use the following one-touch number to join:
One-touch: tel:+12245013412,,619368893#
To participate in the portion of the meeting reserved for citizen comments for non- agenda items, please submit your comments or questions at least one hour prior to the beginning of the meeting utilizing the following online form: https://www.lagovistatexas.org/Citizen%20Participation%20Form%20-%20BOA.pdf
Your questions or comments regarding items not on the agenda will be read aloud and included in the minutes of the meeting.
You should also use this same form and one-hour minimum advance notice to inform us of your desire to speak on one or more agenda items. If you neglect to do so in a timely manner, you must utilize the “chat function” for the Chairman or a staff member to be aware of your desire to be heard on an agenda item.
You will be able to login to this virtual meeting when it is available online approximately 10 minutes prior to the scheduled start of the meeting listed above.
CITIZEN COMMENTS FOR NON-AGENDA ITEMS: In accordance with the Open Meetings Act, the Board is prohibited from acting or discussing (other than factual responses to specific questions) any items not on the agenda.
PO Box 4727, Lago Vista, Texas 78645● (512) 267-1155● (512) 267-7070 Fax Website: www.lagovistatexas.org
THE CITY OF LAGO VISTA IS COMMITTED TO COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT. REASONABLE MODIFICATIONS AND EQUAL ACCESS TO COMMUNICATIONS WILL BE PROVIDED UPON REQUEST.
IN ADDITION TO ANY EXECUTIVE SESSION ALREADY LISTED ABOVE, THE BOARD OF ADJUSTMENT RESERVES THE RIGHT TO ADJOURN INTO EXECUTIVE SESSION AT ANY TIME DURING THE COURSE OF THIS MEETING TO DISCUSS ANY OF THE MATTERS LISTED ABOVE, AS AUTHORIZED BY TEXAS GOVERNMENT CODE FOR THE FOLLOWING PURPOSES: §551.071: CONSULTATION WITH ATTORNEY; §551.072: DELIBERATIONS REGARDING REAL PROPERTY; §551.073: DELIBERATIONS REGARDING GIFTS AND DONATIONS; §551.074: PERSONNEL MATTERS; §551.076: DELIBERATIONS REGARDING SECURITY DEVICES; §551.087: DELIBERATIONS REGARDING ECONOMIC DEVELOPMENT NEGOTATION
PO Box 4727, Lago Vista, Texas 78645● (512) 267-1155● (512) 267-7070 Fax Website: www.lagovistatexas.org
Consent Agenda
Board of Adjustment Regular Meeting
April 5, 2021
Draft Minutes
December 7, 2020 Regular Meeting
Agenda Item 1 MINUTES Board of Adjustment Regular Meeting Monday, December 7, 2020 City of Lago Vista
Chair Freth Carroll called the meeting to order at 3:00 P.M. utilizing an online videoconferencing tool. Other members present were Mike Miskie, Lynda Aird, Howard Hoover, Jim Cason, Amadeo Perez and Jim Guy. Development Services Director Roy Jambor, Council Liaison Chelaine Marion, and City Attorney Erin Selvera were also present. Administrative Assistant Alice Drake was absent.
Citizen Comments for Non-Hearing Related Items There were no public comments.
CONSENT AGENDA 1. Consideration of the Following Minutes: November 2, 2020, Regular Meeting Freth reported the meeting minutes for November 2, 2020 are not available at this time.
PUBLIC HEARING AND ACTION 2. 20-1682-ZON-VAR: Application for a variance granting relief from the requirements of Section 22 of Chapter 14 of the Lago Vista Code of Ordinances to allow portions of an existing (built without a permit) wood privacy fence (Type “E”) to exceed six feet in height at 21007 Niagara Cove (Highland Lake Estates, Section 32, Lot 32192 and a .0179-acre tract at the rear of this lot as described in Document 2017136757 of the Official Public Records of Travis County).
A. Staff Presentation Roy mentioned that we have a full agenda and in the interest of time, if there aren’t any questions, he isn’t sure that he has anything to add.
Amadeo asked about the retaining wall in the last meeting and mentioned that the applicant was going to send Roy some information on it and asked if anything has happened on that. Roy replied that he hasn’t received anything. The applicant responded, he has everything here and didn’t know where to send it and said if someone could give him an email, he could do that. Roy replied, there are various emails on our website and mentioned there is a generic one for development. Roy continued and said he isn’t sure what the reason is, but typically if it’s more than four feet in height, we would require an engineering design for the wall. The applicant replied, he has everything with him, including the engineer’s letter and drawing. Roy replied, to the best of his knowledge, we don’t have a permit for that wall and said that would be the way we would receive it, typically.
B. Applicant Presentation The applicant stated that he was under the assumption from the last time they met that he just needed to get all of the documentation together and said he had no idea that it should have been sent out to anyone at that time and said that he thought they were going to discuss it here. He asked what everyone wants him to do. Roy replied, that would be up to the Board, in terms of that and said whether that wall is considered a retaining wall, part of your fence, or whatever, that just depends on how you want to submit it. He continued and said, if they want to call that a fence and say that fence is fine and it doesn’t need to be a retaining wall, that will be the end of that.
Howard commented that the thing that Erin sent us says that you must grant a variance if evidence shows that a variance would not adversely affect their interest (this is why it’s important to hear from any neighboring owners). He continued and said, we have an opposition from the person who evidently lives behind him, which says lowers property value and our property backs up to this property and they do not want two different styles of fences in the back lot. He said this tells me, according to what Erin sent us, we have no other choice, we have to deny this variance. He reiterated, according to what she sent out, it’s really simple.
The applicant reported that the property in opposition is across the street from the front of his house. He said they are on the other side of the street and he doesn’t back up to them. He said the people directly behind him agree and are okay with it because it helps erosion on their yard because he has drains back there that keeps water from flowing downhill to their property. He reiterated and said the opposition is a property owner that doesn’t even have a house on it and is across the street, the North side of the neighborhood. Howard responded, they made it sound like in this thing here that they were the ones directly behind this property. The applicant said he agrees, and they are not. Howard replied, that’s good to know.
Jim Cason asked if they are talking about the drainage you are averting, is that because of the retaining wall and it has nothing to do with the fence, does it? The applicant responded, he added the wall before the fence and said it’s a retaining wall that he did for drainage to level it up because everything flowed downhill which was going directly to the neighbor behind him, which is to the South. He said he added the wall and the drains in the backyard, and noted there are weep holes on the side, and he did that for erosion, and he ended up building a fence on top of it. Jim replied, but the variance doesn’t have anything to do with the retaining wall. Freth said, it does, because the retaining wall is part of the fence, it’s only allowed to be 18 inches tall before it requires a permit and when you put the fence on top of it, it has to be included as part of the height of the fence. Jim responded, what we are granting the variance on is the fence height, that is what the variance was requested for. Freth continued and said, if the wall is five feet tall then an eight-foot fence is only three feet above that and if it’s a six-foot fence then it’s only another foot. She said she didn’t see any way they can approve this variance since the fence is on the wall. The applicant responded, the fence is not on the wall and is only on the corner of the wall and it is four feet, eight inches. He said that it goes from that to zero in both directions.
Jim Cason asked, the fence itself is eight feet, right? The applicant replied, yes, sir, on that back side. Jim said an eight-foot fence requires a variance regardless of a retaining wall. He said that is what we are doing here, we are looking at a variance for that eight-foot fence.
Amadeo said, correct me if I’m wrong, but what you are saying is that retaining wall has to be considered as part of the fence? Freth replied, yes, because his eight-foot fence is going up and above that and said that it’s her understanding that the wall has to be considered as part of the fence height. The applicant responded, how, it’s a retaining wall and it’s holding dirt. Amadeo responded, according to how the city looks at it, and correct me if I’m wrong Roy, what is your opinion of that? Roy responded, a wall is a fence, it doesn’t really matter. A lady responded, what about on the end where the retaining wall grades down to nothing? She reported that she also lives in the home with the applicant. Amadeo replied, I’m sorry, what’s the question? The lady continued and said, that end is also eight-foot. The applicant replied, what she is saying is the wall to the corner and then it zeros out into the existing grade. Roy responded, right, it’s shorter.
Howard asked Erin, according to what he understands about what she sent out, we have to show that there is a particular hardship for this variance to be granted, is that correct? Erin replied, yes and said it’s the applicant’s burden to establish if there were to be a hardship.
Amadeo noted that we have a eight-foot fence on a five-foot retaining wall which is a 13-foot fence.
2
A gentleman asked if they are up for discussion on neighboring properties. He said this makes no sense how you can consider a retainment wall as part of a fence. He said a fence is a fence and a wall is a wall. He said in his back yard the builder built a retainment wall in his back yard and said his fence starts at the bottom by his house and goes up over the retainment wall and said the top of his fence is probably to the roof of his house. He said, but the thing is that his house is different than Marcus’ house is since his back yard slopes down and his back yard goes up. He asked what the difference is in a retainment wall and noted that his yard and the applicant’s yard are kind of opposite since the top of his property in his back yard is high, so he has a retainment wall to hold back the soil just like he does to hold back his soil. He said it makes no sense, he applied for a permit and it got approved. He said he has a six-foot fence so technically if you are saying that you approved a 30-foot fence in my backyard. He said you don’t even know what you are talking about since you probably haven’t been in construction because it doesn’t make any sense at all. Lynda responded, in one area the fence is unequivocally 13 feet high. The gentleman responded, a wall is a wall, and a fence is a fence. Lynda replied, yes, and at one point... The gentleman interrupted and said, it’s inside the retainment wall. Freth said it’s the topography of the property. The gentleman replied, the topography in his backyard slopes down to his house, so his house sits lower, and he said Marcus’ house sits up high. He said his fence would have set really low. He said it’s the same thing, it’s just opposite. He said you approved a fence in his backyard, and it was okay and his is 20 feet tall. He said you all need to get on the same page, you approved mine why would you not approve this? He said you need to be on the same page, whether it’s one way or another. He said it makes no sense how your logic is going with this. Jim Cason replied, let me tell you what my logic is, my logic is that fence is eight feet high, is that right or wrong? Jim continued and said you can’t have a fence like that without a variance. The gentleman replied, the variance was because we had a sex offender who lives behind us and we needed privacy in our house because we have kids. Jim responded, if you apply for a variance based on that hardship, you may have a point, but that isn’t what your application says. He said he looked for precedence on that issue and could not find it. The gentleman replied, when all of this was said and done in the conversation last time it was that because we have a sex offender that lives on the street behind us and we have kids and we want an eight-foot fence for privacy, why shouldn’t we be able to have that? He continued and said he didn’t want anyone looking in his backyard because his street is higher up than the one where he lives. He said, this is what this all came down to as far as getting accepted.
Chelaine said she is sorry to interrupt, but she doesn’t think it’s the applicant that is speaking and she is a little confused about who is speaking thinks it’s a caller that called in and is someone who is participating in citizen comments. She remarked she doesn’t think this is the applicant that you are hearing from.
Freth asked the gentleman for his name and address. The gentleman responded, my name is Cody Parsons, and my address is 21104 Niagara Cove and noted that he lives on the corner.
Howard said that he thinks that Jim is correct, there is nothing in this application that states that the hardship is based on the sex offender. The applicant replied, we didn’t know anything about it until this was all said and done. Lynda stated, but you clearly have at one point, a 13-foot wooden fence, and adjacent to that there is an eight-foot fence on top of a five-foot retaining wall.
Howard asked Marcus, if he were to lower the fence to six feet, can the sex offender look over your fence? Marcus replied, I would have to be standing out there to be honest with you. Amadeo responded, if you look at the pictures that we have, there is a picture of Marcus’ backyard and it’s kind of looking at the corner there and asked everyone if they can see that picture. Freth replied, yes, I’ve seen that picture. Amadeo continued and said, that house that you see down there is the house he is talking about, with the sex offender. He said, based on this picture, it’s a six-foot fence
3 down there, he said the only way you obstruct the view of your backyard from where this picture was taken of the house is to build a 20-foot fence. Roy reported that it’s on page 18 of your packet. Lynda held up a picture and asked Amadeo if this is the picture. Amadeo said, yes, that house you see on the corner is the sex offender’s house. He continued and said, so the only way to block the view from that house would be to build another six feet from this view. Freth said it appears to her that the eight-foot section of the fence is not even toward that part of the yard. Amadeo replied, that’s correct. Amadeo stated that he doesn’t think the eight-foot fence has anything to do with the sex offender. He continued and said, here’s the question, are we going to allow that retaining wall to stay there and just be called a retaining wall and not be part of the fence? He said, because if we are, in his opinion, then all he has to do is reduce the height of the fence down to six feet and he would be within regulation. He continued and said, if the retaining wall is to be included as part of that fence, then we are talking about a whole different issue. Freth responded, but the fence should be on the ground. Marcus replied, it is. Freth noted that there is a one-foot space or more between the backyard neighbors' fence and his fence and retaining wall. She continued and said, if his fence was on the ground and six feet tall, it would only go above the retaining wall about a foot and if it were eight feet tall, it would stick up about three feet. Marcus replied, the retaining wall is about four-foot eight in the corner and from that point on, it descends down to nothing. He said it’s not six foot, it’s not five foot, there’s maybe a five-foot long section that is over four feet and it zeros out to nothing. He said it goes from four-foot six to four-foot eight to nothing. He said he did it for erosion control and for water shed to control the environment and then we added a fence in the dirt where we filled, and we are not blocking anyone's view. Howard said the question is where is the hardship? He said if the hardship was the sex offender, he would agree with that. He continued and said, if he is trying to show a hardship because of the way his property is, I don’t see a hardship. Marcus replied, there isn’t a hardship with flooding the neighbor’s property because everything flows in that direction. Freth responded, didn’t it always flow in that direction? Howard responded, if that is the natural flow of water, it’s up to the neighbor to divert that. Marcus stated, I am diverting it for myself as well. Freth commented that is why the City Engineer needed to be involved in the construction of that retaining wall. Lynda said, the height of the fence that is on top of the retaining wall doesn’t have really anything to do with the flow of the water, we are still talking about the overall height of the barrier and the height doesn’t have an effect on the flow of water. Marcus responded, correct, the wall does. Marcus continued and said, so you what you are telling me to control the water I can put up a retaining wall and only have a one- or two-foot fence, what is that going to hold back and what is the privacy there? Amadeo replied, it’s to hold the water back and not privacy. Marcus continued and said, it’s only three feet, what is going to keep the dog in, the dog is going to hop a three-foot fence. Freth said her dog isn’t going to hop a six-foot fence, I don’t know about yours. Marcus responded, I’m not talking about a six-foot fence, you are telling me I can only have a one- or two-foot fence. Freth replied, well the variance is to approve an eight-foot fence which is outside of the ordinance, we aren’t talking about a six-foot fence, a six-foot fence is allowed. She continued and said, so that is up to the city between the wall and a six-foot fence and said what is before us is an eight-foot fence. Marcus replied, right. Freth continued and said, which I personally don’t see the hardship where you need an eight-foot fence on top of an elevated area of property, you would have to be a giant to look over it.
Amadeo said, in his opinion, at the very least, an eight-foot fence needs to be rejected for a six-foot fence and if you won’t allow the retaining wall then just leave the retaining wall with a six-foot fence. He said to him, that is what he needs to do. Roy responded, just for clarification, and once again, we don’t have drawings of this wall, but we have photographs that suggest that the retaining wall is on the inside and there is a fence concealing the five-foot retaining wall plus the eight feet of fence that extends beyond that. He continued and said, if it in fact, it’s built on top of that wall and there isn’t a five-foot fence covering the retaining wall at a lower level we would treat that as an eight-foot fence and not a 13-foot fence, but we don’t have any documentation because of the lack
4
of permit to even evaluate this, all we have are photographs. Marcus replied, I understand that and like I said last time...
Jim Cason said he thinks the eight-foot fence is what is in question here and asked if we grant a variance for an eight-foot fence and said he doesn’t think they have any hardship that really allows us to grant that variance. He said the question of whether or not the fence is on top of the wall, that is going to be settled when he goes for a permit for the wall and the fence. Marcus replied, you came out to my house and I met you out there and you came in my backyard, you said it looked great and that you didn’t see any issues personally. Amadeo responded, that was me, I came out to your house and saw it and personally, he thinks it’s a good-looking fence and he likes it but said he can’t make that decision just because he likes it, it’s something the Board has to decide. Amadeo continued and said, and again, we are allowed to grant a variance only if there is a hardship and he said he is with his fellow Board members here, he doesn’t see a hardship. Jim Cason said, personally, he thinks if that fence is not directly on top of that retaining wall, if it’s offset out towards your house, a six-foot fence wouldn’t require a variance. He continued and said, when he goes to get the permit for the wall and the fence that’s going to determine it and if they will not give you a permit for a six-foot fence, then come back and ask for a variance for a six-foot fence. Marcus replied, he has already paid for all of that, he has already taken care of all of that since that was the first issue at hand and then when we talked last month that’s when the issue with the wall came into play. Jim Cason asked, you have already paid for the permitting? Marcus replied, yes, sir. Jim Cason asked, what is the status of the permit? Marcus replied, he honestly didn’t know because he didn’t realize that this was separate from the city and when he got his letter, he took care of everything like he was asked to do and said he assumed it was through you guys. He said he guesses you all are different and said he hasn’t heard from or talked with anybody and paid all of the fees and he thought that’s all that needed to be done. Freth responded, the things that we consider are things that have already been rejected by the city or denied because they are outside of the ordinance as it stands, so she didn’t see any way they could approve the eight-foot fence. Amadeo relied, he agrees. Freth continued and said this committee needs a super majority, which means 75% of us have to be in favor before anything passes, that means six out of seven have to be in favor of the variance.
Freth asked if anyone wanted to make a motion. Mr. Roberts responded, you need to open this up to public comment before the members can make a motion. Freth replied, that’s true.
C. Open Continued Public Hearing Freth said that she believes that they have already heard some people from the public and asked if there are any other comments from interested parties regarding this piece of property and fence.
There were no public comments.
Marcus said he didn’t understand what the issue is if it’s not harming anybody, and nobody has an issue with it and said no one around him has an issue with it and said the people behind him are in favor of it and he isn’t blocking anyone’s view. Erin said that is not the legal standard by which this Board is required to evaluate your application and said there are specific legal requirements that they are required to evaluate for a variance, whether it’s your fence or something else. She continued and said the variance has to be consistent with the public interest, that is something they consider, and there has to be special conditions that exist on your property of which literal enforcement of the ordinance would result in an unnecessary hardship and issuance of the variance would result in unsubstantial justice. She said that is the legal standard they have to apply across the board. She continued and said, so it’s not about if your neighbors don’t care, or it looks nice, whether it was or was not well-built, it’s about these particular factors that are laid out in the law so that is why these ladies and gentlemen are looking to determine whether or not you have provided evidence or
5 information to substantiate that there is a hardship that you would suffer if they don’t grant the variance. She said that is why they keep asking you, where’s the hardship. She said if you don’t have or provide that information you are really putting them in a difficult position because they are not allowed to grant the variance if you cannot provide something that provides or substantiates that your property would be subject to a substantial or an unnecessary hardship if they do not grant it and so that is what they are looking for, it’s up to you to provide that information, that is your burden today and we tried to get that information from you last time, sir, and with all due respect, they are going to have to take public comment and then they are going to have to make a determination about whether or not your application meets these factors. She said those are the findings required by the law to do. She said, it’s not personal, sir, it has nothing to do with you, it has nothing to do with your neighbors, specifically in this particular case, especially given that the people who are abutting your property which this particular fence would be eight feet or greater don’t object. She said the people who were abutting your property against which this fence separates you from them where this taller than regulation fence is located, if they objected, they could substantiate how this would adversely affect them then the Board can consider that. She continued and said, if the only opposition to your application is from the neighbors across the street, those points would not be particularly relevant to their consideration today. She said she just wants to lay out for you to be clear on what these ladies and gentlemen are required to consider today and what they can’t consider. Marcus replied, you just gave a lot of information and asked if she could repeat the first part that she said about the community. Erin responded, sure, so, it says the variance is consistent with the public interest and the spirit of the ordinance. Marcus replied, that right there, isn’t everybody coming and having to talk to you guys about the eight-foot fence? Erin replied, it’s the variance that is consistent with the public interest, the request that you have made today. She continued and said, that’s not to say, sir, that the Board members, one of which you have as a liaison here, Ms. Marion, who is one of our newest Council Members. She said the Council can consider changes to the ordinance but that’s not what is before this Board today. She said the Board has to consider your request and whether your request is in the public interest. She said, so, it’s apples and oranges, sir. Marcus remarked, he’s not a lawyer, but he thinks he needs one.
Erin asked Freth if they want to take any additional public comments, if there is any, and then the matter should be ready for your decision.
Freth said, she sees a gentleman here with his hand up, do you have a comment? Mr. Roberts said, yes, thank you for recognizing me. He said, just a quick follow-up question, clarification that he is addressing to the Board, as is appropriate, if the applicant does not have a hardship, as Erin pointed out, a neighboring property who is adversely impacted by the fence would then have a claim against the city for having approved the variance where there was no hardship. He continued and said, so, it sounds like you guys don’t believe that he has a hardship as is defined by case law and city ordinance and it therefore begs the question is there a neighboring property who would have the potential of a valid claim in the future if there were a potential valid claim in the future then that would effectively resolve any liability for the city. He continued and said, so the way out to approve it, as he sees it, was only if there isn’t any neighboring property that is adversely affected and can claim that the hardship was not appropriately granted, is that the case? He said that is one of the questions that he thinks they should consider. He said, looking at the map, is there a property that boarders his property that would be adversely affected if you granted the variance. Lynda replied, she thinks part of the answer to that question would be the definition of adversely affected; there is definitely neighboring property owners, and they can obviously change, the property owners that are adjacent today and they may define adversely affected differently than the current ones do. Mr. Roberts responded, then perhaps the way you quantify what could be defined as adversely impacted is what if one of those neighboring properties should exchange title or transfer title at some point and the deed belongs to someone else, could they justifiably claim that their view is impacted, could
6 any of those things that the city ordinances seek to preserve be claimed by a future owner? Amadeo asked Erin if we allow this would we be setting a precedence where someone who lives three blocks away could come back to us and say you looked at my property and approved it and why are you not approving mine? Erin replied, no sir, every case has to be looked at in its own merit and every applicant has to demonstrate the hardship that they would endure should the variance not be granted on their particular property. She said that is the whole nature of variances, it’s specific to property and the applicant’s demonstration that they have a particular condition that exists on their property that warrants granting. Jim Cason asked, did that answer Paul’s question? Amadeo replied, it answered his question.
A lady asked, if they have any ordinances against having a sex offender in your backyard. Amadeo responded, he doesn’t think it’s pertinent to this case.
Lynda asked Mr. Roberts if his question was addressed properly. Mr. Roberts replied, no, he doesn’t, and he thinks no one really knows. He said the question was a hypothetical and it is if you grant the variance, is there potential culpability for the city down the road? He said that is for you guys to decide. He continued and said, but with that being said, is there another path; he said just as a citizen he would encourage you guys to consider perhaps for those of you who are inclined to vote against the variance to perhaps suggest to the applicant what you would approve to make sure he understands what he could get approved if he changed things on his end and at least he has a path to go to for some kind of remedy. Erin responded, while she doesn’t 100% agree with Mr. Roberts’ legal analysis of the issue, she said he did make a good point that should bring you back to the list of seven items for which the Board should make findings and that may lead you to kind of where you want to be as far as a decision. She said she provided those to each of you as a Board, the first one being if there are special circumstances or conditions affecting the land involved such that strict application of the provisions of this chapter would deprive this applicant of a reasonable use of the land or would result in significant practical difficulties or unreasonable hardship or unreasonable disruption of the natural terrain or unreasonable destruction of existing flora. She said she would encourage you as a Board to go through each of these factors and have some discussion and come to a conclusion regarding where you stand on these and that way it would lay out in the record properly the findings of the Board and she thinks it will lead you to your natural conclusion.
Howard remarked to Freth, number three says there is no reasonable alternative to the requisite variance that would alleviate the difficulty or hardship for the variance requested. He said to him that means that Marcus could say that he has a sex offender on the corner, and he could redo his application and say he has a sex offender on the corner, and he would be more prone to say, yes, that he says he has his eight-foot to protect his children and wife and said he would be more prone to approve that as a hardship. Freth responded, but that sex offender is on the opposite end of the property from where the fence is in violation. Howard replied, well, he thinks he has an eight-foot fence all the way around, doesn’t he? Freth replied, no its six foot. Howard asked, it’s just in the back? Freth replied, yes. Marcus replied, a portion of the back. Freth stated, to her she doesn’t understand why the elevated portion needs a taller fence.
Marcus asked why can’t you look in the other direction, you’re talking about he has to have a hardship and said if there isn’t a hardship on anyone else, then it still shouldn’t be an issue. Freth replied, like we said, those people can change, they could sell their house to someone else and have an issue, but it won’t necessarily be the same people all the time. She continued and said, even if there was a vacant lot, eventually with the development, someone is going to end up living there. She said you can’t foresee the future and see who’s going to be there and object or not object as property changes hands.
7
Freth said we will go through these seven and said Erin read the first one to you. She said the second one says a variance is necessary for the preservation and enjoyment of the substantial right of the applicant. She said you might say that one applies. She said there is no reasonable alternative to request a variance that alleviates the difficulty or hardship. She said we haven’t identified the hardship. She said a six-foot fence would certainly provide the same level of privacy at that height. She announced, if you have a comment, please speak up as she goes through this.
A lady asked, is an eight-foot fence illegal? Freth replied, it requires an exception to the rule, that is what a variance is all about. She continued and said, he needed more than just a fence permit, he needs to be approved for an exception to the rule. She said the ordinance allows a six-foot fence, not an eight-foot. She said an eight-foot fence is not illegal, but it’s an exception to the ordinance that has to be approved. The lady continued, and it’s all based on what your opinion is on what a hardship is and what is not; obviously the two feet is not hurting anybody, any neighbors or anything. She said it’s already said and done, the fence is there. She said it’s kind of like if someone had a problem with it or even had a problem with it to get us here now; if someone had a problem with it later in life, ten years from now, then couldn’t they just worry about it ten years from now?
Howard asked can we say the variance is approved, however, if any neighbor in the future was to complain about the fence that he would have to reapply for the variance for eight feet, can we do that? Erin replied, no, sir, the law requires that the Board makes specific findings to determine if there was a hardship and that’s really kind of tied into number one on your list of seven. She continued and said, and so you have to start there and peel this away one bite at a time and make each of those findings. She said whether it affects someone down the road is not necessarily the basis for determining whether or not you would grant it today. She said Mr. Johnson has the burden of establishing that he has some hardship that’s based on his particular property and the hardship is not something that he created. She continued and said, given that he hasn’t articulated and hasn’t been permitted, the retaining wall, that would have helped because it would have provided some information about whether or not that was necessary or whether that was just something that he wanted so he could have more flat property in his backyard. She said your hardship cannot be self- created; the fact that he extended out that part of his property and put up the retaining wall is something that he created and so that can’t be the basis of a hardship, so that is not a reason to give him extra height because then he raised up his property. She said you can’t dump a bunch of dirt in the back of your property and raise it up and then say, okay, I need a taller fence because now I have a higher viewpoint, you can’t self-create the variance. Marcus responded, he doesn’t have a higher viewpoint, he did all of this because the house is up so high. He said he did not have the house built; he bought the house as-is. He said the house was built up on a higher elevation; he didn’t choose that. The lady responded, that is how our fence is, like Cody was saying earlier, is almost taller, at our roofline. She continued and said, it’s the exact same thing as his situation.
Erin told Freth that she should focus on the facts of this particular case as a Board, whether someone else’s fence met the requirements and was evaluated separately is irrelevant to whether or not you should grant this variance or not. Freth replied, thank you, Erin.
Freth said, she believes that we got down to number four and that one says that the variance will be no greater than the minimum required to alleviate the difficulty or hardship for the variance requested. She said, at this point, she doesn’t see how it’s better than a six-foot fence. Marcus asked, that does that mean? Freth replied, that means if there is another answer that is within the ordinance, then that’s the way it should be decided. Marcus replied, I guess I don’t understand. Freth replied, is it a language barrier, or... Marcus said, I don’t understand what you’re saying. Freth said, she is reading directly from... (and held up a sheet of paper containing the variance requirements). Marcus replied, I get that, but I guess I don’t understand what the language is supposed to actually mean.
8
Freth responded, okay, let me give you an example. She said if someone wants to put a fence in their front yard and they wanted it to be a wooden fence that you can’t see through, that is not approved in accordance with the ordinance. She said, but, if they wanted to put up a wrought iron fence in their front yard, that is in accordance with the ordinance, and they would be allowed to do that. She continued and said, there may be a question about where they place the fence because of right of ways and setbacks but it’s not in the ordinance in any form or fashion to put a sight- obstructing fence in the front yard, so that would require a variance, if someone wanted to insist on a wooden stockade fence around their front yard and it would probably not be approved because it’s not the minimum that could be done to alleviate the problem. She said so far, we have yet to see where the hardship lies, or the problem, other than the privacy of your yard, which you have altered. She continued said, as Erin has stated, you have sort of created that problem. Marcus responded, I also fixed other problems doing it. Freth said, again, that is your assumption because there were no engineers consulted or city approval and you are not allowed to alter your property without a permit. The lady responded, can we send you engineering drawings? Freth replied, you probably need to apply with the city for a permit for that retaining wall and get it approved; that’s probably where you need to start. She continued and said, if they decide that was not the way to go because you’ve moved all of the dirt around and now the drainage has changed, I don’t know where you stand there, but I think it goes back to the city. She said all we are considering is your eight-foot fence, that section that is eight feet tall.
Lynda stated, in any event, it’s the burden of the applicant to first identify the hardship for which the variance is being sought, so, anything else comes after that. Freth responded, correct and said what he will have to do to make it acceptable is to make it six feet instead of eight feet, that’s one possibility. Freth continued and said, so, the minimum requirement to alleviate the difficulty, that’s what we were talking about there. She asked Marcus if he understands that. Marcus replied, I guess so. Freth commented, I mean that’s not legal mumbo jumbo or anything, at least it doesn’t sound like it to me.
Amadeo said the minimum requirements to alleviate the difficulty or hardship and said he’s not sure we understand what the hardship is yet. Freth agreed and said we haven’t identified the hardship. She continued and said, the granting of the variance will not have the effect of preventing the orderly use of other land in the area in accordance with the provisions of this chapter; the variance may be granted only when in harmony with the general purpose and intent of this chapter so that the public health, safety and welfare may be secured, and substantial justice is done. She continued and said, pecuniary hardship, which means money, to the applicant standing alone shall not be deemed to constitute an undue hardship. She said, so money you have already spent is not a consideration for this Board. She said we are considering this as if you applied for the permit and are yet to build your fence. Marcus replied, okay. Freth continued and said, number six says the variance will not violate the intent of the zoning ordinance nor the goals of the city’s master plan. She said some of these ordinances have to do with not just safety, but aesthetics. Marcus responded, I get that, and you are talking about the city’s plans and said last month you were just discussing how you are fixing to allow eight-foot fences, that is going to be the norm, but right now you have to fight for it. Freth replied, that’s correct, you will have to take it to the City Council and get those ordinances changed. Freth continued and said, and the last one, such a variance shall not restrict the reasonable or necessary unobstructed access to sunlight and preservation of views of those with properties that might be affected. She said she doesn’t know if it affects anyone’s sunlight or view, with the fence, but it’s going downhill and you have raised it up, so... Marcus responded, the only person that it could affect wants it there, the people behind us. Freth said and whoever acquires that property at a later date in the future. Marcus replied, I’m sure they will, it gives them privacy. He said there’s pool in that backyard and said their kids hangout back there and said they don’t have to worry about me sitting on my back porch and looking at them anymore.
9
Freth reported that the eight-foot section is apparently above the elevated portion of the property. Marcus replied, it’s not above, maybe I’m not following what you are saying. He continued and said it still drops down, from his back porch to the fence, the yard is still dropping. He said he didn’t go and build a wall and a fence to where it was higher than his house or back porch.
Howard said he agreed with Erin that the applicant hasn’t shown any hardship and said again, he tends to agree with Paul Roberts in that he doesn’t see it hurting anybody else at this time and said he guesses it could change in the future. He said that he knows that Erin has said that they have to prove a hardship, period, that’s the end of it. He said if that’s the case, then we have no other choice as a Board but to deny the variance. He said it’s clear cut.
The lady who also lives in the home responded, with our house being up higher, regardless of the wall, regardless of the raising of the backyard, my house sits up high and if she was to build her fence two feet shorter, the back side of her house is all windows, she wouldn’t have any privacy, her neighbors would be able to see inside and the neighbors would complain that they would need the eight-foot fence back because we could see in their home, what happens then? Freth responded, there is another way to solve that problem, like put up window coverings. The lady replied, what if I don’t want window cover? She continued and said, she loves big, beautiful windows and the natural light.
Jim Cason asked if everyone is ready to make a motion. He continued and said, based on the fact that I can’t see that there’s hardship, it’s been identified that a variance for an eight-foot fence as opposed to a six-foot fence, I make a motion that we deny the variance.
D. Close Public Hearing The closure of the public hearing was not announced.
E. Decision On a motion by Jim Cason, seconded by Amadeo Perez, the Board voted all in favor to deny the variance.
Marcus asked what he should do now, besides hire a lawyer. Freth replied, I believe that you need to go to the city and get your retaining wall permitted because anything over 18 inches requires a permit. Marcus replied, last month you told me it was four feet. Roy replied, the four feet applies to the requirement for geotechnical services for an engineered wall, that’s the difference. He continued and said if it’s below four feet you can just get a permit and build it. Marcus replied, okay, I understand now. Freth commented, it seems like you are going to have to take a couple of feet off of the fence. Marcus replied, I’m sorry? Freth stated, we will defer it back to the city to handle that. Roy responded, we will get with our guys and meet you out on the site and figure it out. Marcus replied, okay, thank you.
Freth announced for the next variance, I would like to switch the two so that we can consider the request for the deck prior to the request for the fence. She said instead of number three on the agenda, it will be number four.
4. 20-1692-ZON-VAR: Application for a variance granting relief from the requirements of Section 5.40 of Chapter 14 of the Lago Vista Code of Ordinances to allow an existing (built without a permit) structure consisting of a raised wood deck within the required rear yard setback at 2204 American Drive (Highland Lake Estates, Section 26, Lot 26076).
10
A. Staff Presentation Roy reported, same thing, in the interest of time, he’s not sure what he has to add about this one. He said he is certainly aware of the discussion about the discrepancies between Chapter 3 and Chapter 14 and said he can assure everyone that they are far more extensive than you know about. He said it’s very clear that there’s no mention of a wood deck being an exception for a setback in Chapter 14, which is what is in front of you. He said there are other reasons, how much weight you want to give that discrepancy and said that is obviously something they tend to discuss and said one of the ways you avoid that is with a permit application so that those kinds of things can be brought to your attention. He said that was not the case in this situation and we don’t have any reason to believe there was any intent to avoid compliance on the part of the property owners, they simply were not aware.
Freth stated this morning she was forwarded some portions of the zoning and it appears under Section 3.123 that an exception... Roy said, yes mam, but that’s not a part of the zoning ordinance. Freth responded, they are not part of what? Roy replied, that’s Chapter 3 and not part of the zoning ordinance. Freth continued and said, Chapter 14, part two, which says the following structures may be located within the rear yard setback and on that list are decks and patios of wood or concrete are allowed if they are not covered. Roy asked, that’s in 14? Freth replied, that’s what I’ve been told. Jim Cason responded, no, that is in Chapter 3 and said what is in 14, though, if you look on page two of what was handed out, towards the middle, Section 5.4, which says yards are required...you got it? Freth replied, I got it. Jim continued and said, that is what was cited. He continued and said, structures shall not be permitted in yards except as otherwise provided herein, which is Chapter 14, or the building code. He said the building code is in Chapter 3 and then you go back over to that 1.23 that existed and it all ties together. He continued and said, he could find nothing in Chapter 14 that says you can’t have a deck in a rear yard setback. He said Chapter 14 refers to the building code and the building code says it’s exempt.
Freth said she believes that there is some question about the slab that the hot tub sits on, it appears to be in the photographs at least, that it only extends past the deck just a couple of inches. Roy responded, the slab is allowed in the setback, that’s clearly in Chapter 14, and said the issue with the slab has to do with the need to vacate an easement and that’s a formality that can be handled and said the applicant has obtained the necessary releases to do that. He said they will have to wait and work on that when this is over. Freth said, so he has already taken care of the release of easement? Roy replied, the ability to take care of it, yes, mam and said there isn’t anybody else for that. Freth said, if the building code allows that exception... Roy responded, I’m not sure the building code can, that is a discussion that you can have. Jim Cason responded, Chapter 14 gives the building code the authority to make that discretion. Roy remarked, if you say so. Jim Cason replied, it says so in Section 4 of the building code. Roy replied, right. Freth responded, it’s provided herein/or the building code. Howard responded, Section 55.40. Jim Cason responded, if you believe that, then there’s no variance needed here. Freth replied, right. Jim continued and said it seems like they would need to apply for the permit and if the city does not agree that it’s exempted, they can deny the permit and they can come back for a variance. Freth said, apparently, they have already applied for a permit and the city did not accept it. Jim replied, okay. Freth continued and said, so then it comes to us as an appeal for that application requesting a variance to allow it.
Howard responded, then we are right back to where we started from, they have to show a hardship. Jim replied, not if you believe that the deck is exempted and in reading the regs, that is my belief, that the deck is exempt and doesn’t require a variance. He continued and said he doesn’t know what we need to do if we believe that and asked do we go ahead and grant a variance based on the fact that we don’t believe it needs a permit. Freth responded, they have applied for a permit and the permit was denied even though the deck was already built. She continued and said, so they are now
11 before us with an appeal and she asked Erin where they stand on that if they believe that the building code actually should have allowed that.
Erin replied, if you read the city’s ordinances to exempt this particular construction then a variance would not be necessary, and you would just need to make a finding that this is exempt. She continued and said, she wants to be sure she is following you so that she can give you some guidance. She said she believes that Mr. Hoover pointed to something in Section 5 of Chapter 14 regarding yards, which says structures shall not be permitted in yards except as otherwise provided herein or the building code and said if you are interpreting that to mean that in Chapter 3 which says decks are exempt as a structure from the setback lines, she thinks that would be a stretch but if that is indeed your determination then a variance is not needed. Jim Cason asked Erin, why would that be a stretch? Erin replied, the building code is never going to tell you where you can build your structure as far as the setbacks, that’s all in Chapter 14 so that is what you typically look to. She continued and said, something that would be exempted in Chapter 3, Chapter 14 would be the overriding or controlling regulation as far as the zoning ordinance goes and said typically you are going to be looking at your building regulations and the building code for health and safety, construction standards and methodologies and those types of things and not where the structure could be physically located. Roy responded, and I might go further, there’s a list of exemptions in Chapter 14 in case it is not in that list, so at the very least you would consider these to not be an addition but a conflict in two sections which, when we encounter a conflict, which is quite often by the way in our ordinances, we always air on the side as directed by the ordinance to impose the strictest standard. Jim asked where’s the list of exemptions? Roy replied, in 5.3 (B) there’s one set, and there’s another set... Howard commented that he thinks the overriding factor here is that the permit was denied, so this tells him that the city has determined that this deck had to be permitted and the permit would have been denied. Freth commented, I believe that’s true.
Jim said, okay, 5.3 (B)... Freth continued and said steps, balconies, porches, roof overhangs, in accordance with the building code and ramp should not be considered as a part of the principle building when measuring the setback distance from such buildings. Roy stated in reference to the building code it’s specifically related to overhangs and those overhangs are limited by the building code that are ignored.
Howard asked Erin does the planning and zoning rules or ordinances take precedence over the building, in other words, if there’s a conflict you always go with the strictest, but what if the strictest is in the building and not in the planning and zoning. Erin replied, so the first inquiry that she would make considering that is what rule are you looking to prepare to, is this about a setback that’s in Chapter 14, then Chapter 14 would be controlling; is this about a construction method or technique then you would look to Chapter 3. She said this is one of the considerations and in this particular case we are talking about something that is built in the setback, so Chapter 14 would be the controlling ordinance to look at. Howard replied, in that case, if the deck is in the setback and the applicant has already been denied a permit, that answers the question as far as he is concerned. Erin replied, yes, sir.
Jim Cason stated that he disagrees and said he wants to vote on it. He said he thinks Chapter 14 defers to Chapter 3 in regard to structures in the rear yard setback and he said Chapter 3 clearly exempts the deck. He said there isn’t anything in Chapter 14 that precludes that. Freth responded, there were a couple of instances that apparently refers to the building code.
Freth asked Roy if he had a presentation on this property, anything different from last time? Roy replied, no, mam.
12
B. Applicant Presentation The applicant said he is basically trying to get an idea of what’s going on here. He said there is a discrepancy between one chapter and another, is that right? Freth responded, yes, that’s correct. The applicant continued and said, at this point, I want to know where we are and said if the city denies this and this is something that should be approved by the city, I don’t know if we can apply again and start over from the beginning, is that possible, is that something we can do for the same situation? Freth replied, well, the city has already denied it, so I think at this point we have to hear the case for the deck and any presentation that you may have that indicates a hardship so that we can move forward.
The applicant asked if they need a variance at the end, or do we not need it, because it wasn’t clear to him. Freth replied, because it has already been denied by the city that you will need a variance just to get your permit approved. The applicant asked what the law says about this, in other words, you are asking him to present the hardship just like before? Freth replied, yes. The applicant said he did a little research and said he now understands better about what is going on than he before and said the other two times he didn’t know what they were talking about but now he understands about the patio and said he just had five feet to build, but the five feet doesn’t have anything to do with the deck, you can’t even put a small living area there. He said if this is the reason for his hardship, to build higher, then we don’t have it. He said he built more because it was just five feet and there’s nothing we can do there in order to enjoy the outdoors. He asked if anyone has any questions.
Freth responded, in addition to the deck, she understands that there is some requirement for the hot tub needing to have a lock on it and a gate. The applicant replied, it has it, it has a lock and said that he thinks you mentioned it before, we got all of the letters from Spectrum, Pedernales, and AT&T and they said there is nothing back there because it was built more in the front. He said, yes, there is a locked cover in there already. Freth asked if there is a gate to prevent access. The applicant replied, the deck has a well and you need either a cover lock or a gate and one of those is already in place. Freth asked why that was the only requirement on the hot tub. Roy replied, yes, mam, but that is not in front of you, there isn’t an issue with the hot tub that is in front of you. The applicant replied, I’m sorry, what was your question? Freth replied, that’s not what we are looking at.
Howard said Erin has stated the planning and zoning, Chapter 14, really is taking precedence here and says hardship consideration is what Erin sent to us and it says in order to justify a zoning variance, a hardship must not be self-imposed. Howard continued and said, if they built without a permit, that’s self-imposed. He continued, or financial only, okay, it’s not financial only, and must relate directly to the very property in which the variance is sought. He reported that he is just going along with what Erin has said and the letter of the law, so he’s trying here, even though he doesn’t like this, according to Erin, this is what he has to do.
Freth asked if there was a fence across the back of that property. The applicant replied, no, one more time, I’m sorry? Roy responded, there is not, madam Chair.
Freth asked, the railing on his deck constitutes the only thing for it on that back part of the property. Roy replied, I’m not sure I understand your question but there isn’t a fence. Erin responded, the railing around the deck would not be sufficient to constitute the barrier that’s required for a fence to keep children out of the hot tub, is that correct? Roy replied, if it was completely enclosed and latched and all that it would be sufficient. He continued and said, understand the railing on the deck and the hot tub are not directly connected, they are at different grade elevations; you step down into the hot tub. He continued and said, so, what they are doing
13 with the cover and the latch is probably the only effective way to meet the requirement. The applicant responded, we have a pretty hard cover and it’s locked at the four points and you can actually put a key on it, without the key you cannot. Roy remarked, that is a fairly standard solution for a hot tub.
Freth asked, shall we go through these seven on the list again? Amadeo replied, yes, let’s do that. Freth replied, okay.
Freth said, number one, there are special circumstances or conditions affecting the land involved such that strict application of the provisions of this chapter would deprive the applicant of reasonable use of his land or would result in significant practical difficulties or reasonable hardship of the landowner or unreasonable disruption of natural terrain or unreasonable destruction of existing flora. She said, for her, the only thing that applies would be that the applicant would not have reasonable use of his land because the backyard is so narrow, it doesn’t have any depth to it. She noted that the applicant’s deck takes up most of the backyard.
The applicant stated that the deck does not go all the way to the property line and said that he thinks there is another seven or eight feet before the property line. He said that his neighbor doesn’t have a problem with it, if that helps.
Freth continued and said the next one on the list is the variance is necessary for the preservation and enjoyment of substantial right of the applicant. She said she can agree with that one, as well.
Freth continued and said three, there is no reasonable alternative to the requested variance that would alleviate the difficulty or hardship which the variance is requested. She said, no reasonable alternative and said she guesses that the only other alternative is to not have a deck.
Freth continued and said, number four, the variance will be no greater than the minimum required to alleviate the difficulty or hardship in which the variance is requested.
Freth continued and said, number five, granting the variance will not have the effect of preventing orderly use of other land in the area in accordance with the provisions of this chapter. She said variances may be granted only when in harmony with the general purpose and intent of the chapter so that public health, safety, and welfare may be secured, and substantial justice is done. Pecuniary hardship, which means money, to the applicant standing alone shall not be deemed or constitute an undue hardship. She mentioned she is assuming that everyone is following along and will comment, as needed.
Freth continued and said, the variance will not violate the intent of the zoning ordinance, nor the goals of the city’s master plan.
Freth said, and the last one, such variance will not restrict the reasonable and necessary unobstructed access to sunlight and preservation of views of those properties that might be affected. She commented that she doesn’t see how this one applies at all.
Amadeo stated, so the issue here is the setback, because of the easements in the back, is that right, Roy? Roy replied, well, the easement is a separate issue and is no longer an issue. He said it’s not in front of you, it is the setback and said once again, the concern that staff would have, if you read this to mean that there is a blanket exemption for all decks, we would find it strange that you couldn’t have a six-foot fence at a certain location, but you could have an infinitely tall deck in the same location. He said if you read this ordinance to mean that, that is the conclusion that will
14
result. He continued and said that Chapter 3 means there could be no limit on the height or obstruction created by a deck, regardless of where it is on the property. Freth asked Roy if the deck is over the height limit. Roy replied, no. Freth asked if the rear yard setback should be 15 feet. Roy responded, in all honesty, and once again, I’m kind of jumping ahead of myself, like we are on the fences, there is a lot of work needed on these ordinances and if nothing else, to remove the ambiguities and the conflicts, but it’s a very standard requirement in other jurisdictions that if the deck is within a certain distance of grade that it can be in the setback. He continued and said, but if it’s any taller than that, it cannot be. He reported if our ordinance said that, where Chapter 3 did not do any serious damage to the integrity of the zoning ordinance, we might have a different opinion. He continued and said, absent that kind of language, we are perplexed how we could ignore a deck.
Jim Cason asked, anytime we decline to grant a variance, the applicant can take the matter to civil court or municipal court, right? Erin responded, district court. Jim continued and asked, if we grant a variance, and the city believes we erred because we didn’t read the regulations the same as the city does, does the city have that same right, to take it to district court so that the city could have the variance rescinded? Erin replied, no, and said if you grant it and someone is aggrieved by your decision, meaning the neighbor believes you shouldn’t have granted it, they could bring something against the city and said the burden is very high, but they could do that.
The applicant said he has as question, but said he just realized he doesn’t really understand exactly what the question is but go on.
Freth announced that she believes caller number two wanted to say something, is that correct? There was no response. Freth noted that she sees they are on their phone but can’t see their face.
C. Open Public Hearing Freth opened the public hearing (with no time announced) and asked if there is anyone interested in making a comment.
Rob Durbin stated that he thinks that the process that you are being asked to do here is inherently unfair not only to the applicant, but to this particular Board. He said you are not a Board that is really set up to look at conflicts between two city laws and make a decision as to which one to apply and which one you shouldn’t apply. He said he would think the city would get their own act in order, squared away, prior to getting to this point. He said he thinks you have the option to table this and say due to the conflict in the ordinances, we can’t make a decision and have the City Council straighten it out and then everyone come back to us. He said that would be his suggestion as to what is going on because everyone is wrestling with this and you have spotted conflicts. He said that is not on the citizen, that’s on the city and the city needs to get it squared away. He said it’s not really the place for this Board to decide which of the conflicted laws they should be applying. He said he thinks no matter which way you go you are risking having a district court decide it rather than someone here at the city, like the City Council. He noted that he used to be on the Board a long time ago.
Howard stated that he agreed with Rob and said they have conflicts, and he thinks it would be best for the city to square away their building codes and zoning so that they agree and then go on from there; then that gives them a clear path. Freth replied, well, Howard, it does clearly state that the stricter of the two is the one we need to follow. Roy responded, once again, let me remind Madam Chair and the rest of the Board, the normal course of events in Lago Vista is faring out these conflicts and to discuss some alternatives. He continued and said, like in the last case, it’s simply a building permit application, we wouldn’t be having this discussion had that occurred.
15
Erin reported it is not an unusual circumstance for there to be conflicts between different portions of ordinances. She said in fact, it’s explicitly expected in that part of this zoning ordinance which tells you what to do when there is a conflict. She continued and said, now, that’s not to say that this Board doesn’t have the authority to table this item until a certain date. She said the difficulty inherent to taking that approach is that there is no guarantee when and if the commission will choose to take this item up and to make those requisite changes and whether or not those changes would resolve the issue for this particular applicant. She said “kicking the can” in theory, is an available option, but it’s not an option that would guarantee a result for these folks in the near term. She said, what you would be saying (and it would be a very bold statement) is that it’s okay to build something without a permit if you do it and there are questions about what part of the ordinances exist, you are going to be allowed to have a noncompliant situation, so then it begs the question, are they in violation every single day until the issue is resolved or are you waiving any of the violations and fees and fines that would typically apply to someone who built without a permit and in conflict with our current codes. She continued and said, although it’s an option, she would ask you to think very carefully if you chose to take that option. She said that if it was very clear that it’s an easily resolvable issue, meaning something that you simply needed clarification on or you needed additional facts for you to consider, or something that was more straight-forward, it might be a simpler decision on your part. She said, she’s not saying that you can’t decide to defer or table this item until there is a determination, but that just means these folks are left in limbo potentially forever because there’s no guarantee that this item is going to be brought up. She said that she and Roy can certainly bring this to the attention of the Council, and you have your liaison here listening tonight and that is part of her role, to take these issues back to the Council and say that we need to direct or have staff address this. She said, the timing is a big question. She said she will end with the reminder that this particular zoning ordinance recognizes that there will be conflicts and tells you how to address the conflicts that do arise. She said in this particular situation, Chapter 14 will be the controlling ordinance because we are talking about a setback and that’s where the setback regulations exist. She said, so, your decisions are not ever going to be easy because the nature of your ward but hopefully that will give you some guidance as to how you want to proceed.
Jim Cason said, he thinks Chapter 14 is no doubt the controlling ordinance, there is language in there that says that, but what is it in Chapter 14 that says you can’t have a deck in a setback area? He said he has not found any specific language in Chapter 14 that says you can’t, he only found language that refers to Chapter 3.
Freth said she had a question for Roy. She said, the backyard setback is 15 feet, if she’s correct, and this deck is said to be 14 point something feet, is that correct? She asked if the deck is only encroaching a few inches. Roy replied, it’s a few feet. Freth replied, a few feet, not inches but feet? Roy replied, yes, mam. Freth asked if there is any way to make the deck in compliance. Roy replied, they could shorten it; he’s not sure if it would achieve the intended purpose. Freth asked, it’s not too long, though, but it’s too wide, is that correct? Roy replied, no, too deep. Freth replied, too deep, okay, by how much? Roy replied, approximately ten feet. Freth asked, it’s out of compliance by ten feet? Roy replied, to have a deck that was in compliance without the encroachment would not be much of a deck. Freth replied, so he can’t use his backyard, basically, other than for a yard. Roy replied, it would be a very narrow, not a very deep deck, if you will. He continued and said, once again, there is a porch coming off the back, unless you want to step down and then back up again, the grade elevation at the top of the deck is kind of established by the porch coming off from the rear of the house, there weren’t a lot of options here.
16
Howard stated that he thinks that Erin makes a poignant point in the fact that if we delay this, then we are basically saying, the question becomes is, are these people in violation of the variance for every day or if it’s going to be if and when the Building and Standards Commission ever gets around or the Planning and Zoning Commission ever gets around to looking at this. He said, he thinks she makes some really good points here and, again, he doesn’t see a hardship, so, as much as he dislikes doing it, he just doesn’t see any other choice but to go by the strictest thing in the planning. Freth replied, she thinks they are going to see more and more of this because the builders are building all the way to the maximum build line, so it doesn’t leave any extra space for decks or patios for any of that to be added on to any of this new construction, for the most part. She said she is not in agreement in leaving these people in limbo forever, so she would like for everyone to at least try to come to a decision. Howard said, well, you need to close the public hearing. Freth commented, she keeps seeing caller number two light up like they want to say something, but she doesn’t know who that is.
Howard asked Paul if he has anything to say. Paul replied, no, sir.
Freth said, she thinks they need to decide, either they have to bring their deck into compliance, which may mean that they need to take the whole thing down, or we approve it.
Mike said, I guess I’m a little bit unclear, Freth at this point. He said, now, the rear yard setback is supposed to be 15 feet off of the property line, right? Roy replied, no, sir, it’s 25. Mike said, 25 feet. Roy said, in the rear and the front, yes, sir. Mike said, if they request it, can’t they get that knocked down to five feet, isn’t that what you were saying before? Roy replied, no, the easement can be reduced to five feet, he thinks in this case they wanted to reduce that setback to, he thinks 15, and said he will have to go back and look at the drawings. He continued and said, and once again, the nature of the encroachment is not the sort of thing that the staff find objectionable, and we certainly find the intent of Chapter 3 to exempt certain types of decks compelling. He said the idea that it exempts all decks with no limit is a frightening thought. Mike said, but then in Chapter 3 they go on to say that construction over easements is generally not allowed, the City Manager or his designee may permit this, however, it shall be fully understood that the construction of any type over dedicated utility or drainage easements may have to be removed at the owner’s expense at a later date. Roy responded, yes, that’s a fairly frightening piece of language as well since that utility easement does not belong exclusively to the city.
Howard said, according to Erin, we have to take the stricter interpretation of the ordinance, which means the zoning law, which says you can’t be in the setbacks, period. He continued and said, as far as he is concerned, unless they can show a hardship, that’s the end of the discussion. Roy replied, right, unless it meets the standard. Jim Cason replied, it doesn’t say that Howard. Jim continued and said, it does unless accepted herein or in Chapter 3. He reiterated and said, you can’t have that unless it’s accepted either in Chapter 14 or in Chapter 3, the building code. Howard replied, but Jim, when there is conflict, it says you will go by the stricter interpretation of the law. Jim asked, where is that interpretation at, that’s what he’s asking. Freth replied, that is already addressed in Chapter 14 and as far as she knows they are not considered like a permanent structure. Roy replied, even the language in 14 is not intended to be an exhaustive list, it’s things like this is the way it reads. He continued and said, once again, that’s where the staff had a problem, is a deck always like this and the answer, no. He said, he will give an example, we had a gentleman who had a piece of property on the golf course and wanted to have an above-ground pool and insisted that it was allowed in the setback at 18 feet tall when he couldn’t have a six-foot fence in the area. He said that is the sort of thing you will run into if you allow this kind of unfettered limit as opposed to understanding what was intended. He continued and said, like he said, we wish we had an ordinance that allowed decks below a certain size to be in a setback, we
17 think that makes sense and he has seen lots of ordinances written that way.
Freth asked Roy if any type of deck would be permitted under the ordinance in this backyard. Roy replied, he thinks he had this conversation in an email with Mr. Cason and others on other occasions. He said if it were desired to simply have a wood finish on a patio and you had sleepers on top of a concrete patio, we would consider that a patio and not a deck, it’s the idea of a raised structure without limit that gave the staff cause to opening that can of worms without limitation. He continued and said, I assure you, we get lots of applications from people that want to build very tall structures in the rear setback that are decks, above ground pools and the like. Freth responded, so if it was on the ground, for instance... Roy responded, right, and once again, we have sympathy with the intent, we are of the opinion that intent is something that you are allowed to account for in your decision making but the staff does not have that prerogative. He said we avoid discretion; we don’t exercise it. He said we think that discretion is your province, not ours.
Jim Cason said, so, it sounds like we believe the intent is to allow a deck of a certain height and we feel like the height is within that certain height, it’s our discretion to grant a variance, but that doesn’t square up with hardship, I don’t understand how we would grant a variance based on what we believe the regulations say, it’s the requirement to find a hardship. Mike responded, I would say that what we believe the regulations say, it says it could be allowed. Jim replied, then a variance would not be required.
Howard asked Erin if they have to show a hardship here. Erin replied, I want to make sure I understand what is happening with Roy first. She said, if Roy has made a decision to deny the permit for this particular deck and the applicants are appealing to you because of the decision by the city, then you are under Section 11.50, appeals versus Section 11.20, which are conditions required for a variance. She said she wants to be sure procedurally what we are doing because 11.5 (A) talks about appeals to the Board may be made by the aggrieved person or by an officer, department or agency of the city affected by the decision or action of a municipal authority concerning the zoning ordinance. She said, this is an action, for example, if Roy has denied the permit and they are appealing to you, you are under this provision, you are under this section. Howard replied, what does that mean to us, Erin? Erin replied, so, you are looking at this as an appeal to his decision and this is where Roy’s discussion regarding your discretion, your interpretation of the ordinance comes into play. She said he has interpreted the ordinance to say, it doesn’t allow me to grant this permit. She continued and said, you are looking at the ordinance to determine is this ordinance written in a way that you interpret it to allow for what they are asking for. She said, they are appealing to you versus strictly asking for a variance from something where it’s very clear it’s not an issue of interpretation. Howard asked, so we don’t have to show hardship? Erin replied, if what he is asking for is appealing to you based on a denial by Roy, and it’s an issue of interpretation, I think you’re in a different section which does not discuss hardship. Roy replied, realistically, the sequence of events was that there was a citation issued because of the fence and an application for a variance on the fence was received, we then became aware of the fact that this deck was there, and we didn’t know exactly where the rear property line was, primarily because of the strange circumstances with the neighbor’s property and that accessory building that’s back there. He continued and said, so we had the Code Enforcement Official make the measurement in hope that there would be a non-issue, it turns out that there was an encroachment and we went directly and said we wish we had noticed this up front, we would have had you apply for both variances at one time, but it looks like with our best interpretation of the requirements of the ordinance, we have no ability to ignore that encroachment.
Jim Cason asked, does a vote to grant an appeal require a super majority? Erin replied, I believe, yes, it still requires the 75%.
18
Freth asked, do you have that Section 11.5 available to you? Jim Cason asked, is that in Chapter 14? Erin replied, yes, sir, Chapter 14, part 4, administration and enforcement, Section 11. She said that’s the same section that lays out variances, appeals, and special exceptions for height standards, there’s three different parts to that, so if this is a situation where he was denied a permit for that particular deck and he believes that the law allows for it, so he’s appealing to you, this is where you have to go through that process versus everybody’s in agreement that the law is clear and he had to seek a variance, it’s different. She continued and said, you do have to have subsection E of that which says concurring 75% of the members shall be necessary to reverse any order, requirement, decision or determination of the permitting official, which would essentially be if you are going to reverse Roy’s decision to deny a permit, then that’s what it would take to do that. She continued and said, if your interpretation is that the ordinance as you read it would allow for this deck within that area. Lynda asked, Erin, is this something that you recently sent out, is this within the last three days? Erin replied, no, mam, I’m sorry, I haven’t sent that language out, this is just something that I’m looking at. She continued and said, let me say this, this item is noticed as a request for a variance and because of that if you want to table the item so that you can look and see whether it fits more under the appeals, that’s the appropriate thing, then you will need to bring this back so that it’s noticed properly. She continued, then they have a notice issue because it’s not a variance; if you feel like this is an appeals issue, you are having to reinterpret Roy’s decision to deny a permit, then it needs to be noticed differently. She said if this is a variance issue that you don’t think the law is unclear, then you need to make a decision whether to grant him relief from the law, then you can make a decision today. Lynda replied, I don’t have that language so I can’t, I have nothing to report.
Amadeo asked Jim what he was saying. Jim Cason replied, it says such appeal shall be made within ten working days of the decision by filing with the City Manager or his designee and with the Board a notice of appeal which shall specify the grounds thereof. Jim continued and said, the fact that he hasn’t done that, is there relief for him to meet that requirement? Erin replied, so this is where I think that may be on the staffs' part because if we have been handling this as a variance application, it may be on us for handling it this way. She continued and said, Roy has been processing this and his people have been working this as if it’s a variance application. She said if you disagree and it shouldn’t be a variance application, that it should be an appeal to his permitting decision, I would not recommend penalizing the applicant in this particular case, he has been handling it as a variance request. She said, if you feel that it really doesn’t fit within the process of a variance request instead you find it should be handled under this other section, then we need to proceed forward, but what we need to do is I would recommend that you guys bring this back because you need to look at it differently and we need to have noticed it in the agenda differently. She continued and said, so, that is decision one, do you feel like it’s an appeal issue or it’s a variance issue and if you feel it’s an appeal issue, we’ve got to bring it back later and if you feel like it’s a variance issue, then we’ve got to find a hardship.
Howard said he would like to ask the applicant a question. He said his question is are you requesting relief from Roy’s decision or are you requesting a variance? The applicant replied, well, at this point, it’s a hard decision because what is going to be the scenario if I appeal, what is the process, how is it going to go? He continued and said, do I have to go back to the city first? Roy responded, it’s virtually the same process. The applicant replied, it’s the same process again, correct? Roy replied, it’s an application that’s standard. The applicant replied, do I have to apply again, is that correct? Roy replied, we would refund your application and allow you to apply for this one, we would not penalize you for that. He continued and said, once again, the scary thing to us is the interpretation of, if you will, that we’ve got to permit all decks no matter how tall, which is the one that concerns the staff. He said that appeal will create, if you will, that obligation to say all decks are exempt, no matter how tall they are. He said, I can assure you we’ve had some decks
19 that are taller than the house is allowed to be and they have been requested in setbacks. The applicant replied, so on the other side, I have to prove a hardship, is that correct? Roy replied, yes, and once again... The applicant replied, I’m just trying to get some advice from someone, what is the best option for me and said I am here improvising a little bit. The applicant’s wife commented that this has been really hard for them because this is the third time they are here and it’s hard for them to understand the language and they are doing our best and they are trying to focus on this. She continued and said, I don’t know if this is good to say but I want to say it, but we put all of our effort on our house of our dreams and we are planning to open a Cuban food truck because my husband is from Cuba, in Lago Vista and we have been working so hard so, this is more of a personal issue in our family. She continued and said, we have to put money, and I’m not saying that I’m going against the laws, but I just want to share that with you. She continued and said, this has been really hard because we have been affected by COVID because we have a restaurant, and we have to close it downtown, we’ve been affected with vandalism, well, personal things that I just want to share with you. She said my husband is going to get mad at me, but I just want to say it. She said, I hope that helps.
Howard asked the applicant, are you looking at an appeal or, are you looking for variance? The applicant replied, I think at this point, it may be better to look at the appeal with the city to see if we can resolve it, maybe we don’t need a variance with the city and then if we appeal and then later on decide that we need a variance, we need to go back here, correct? Howard replied, that’s correct. The applicant replied, so let’s appeal and see if we can resolve it with that with the city first, if it’s okay with you guys. He said I’m not sure I’m making the right decision, but I think it’s better like that. Howard replied, if Freth closes the public hearing then I would like to make a motion that we defer this for an appeal rather than a variance. Freth responded, if he has to do an appeal then there is a time limit, so we would have to hear that relatively quickly in order to accept it as an appeal. She continued and commented, I believe that he qualifies for a variance.
Amadeo responded, I am with you, we’ve had these people around two or three months. Freth replied, that’s right. Amadeo continued and said, that kind of creates a hardship in itself. Freth replied, I believe he meets all of the qualifications for a variance and noted this particular deck is extremely elevated, it’s not on the ground, but it is level with his back porch, or actually, it’s a few steps down according to that picture and it’s not elevated more than two feet and to allow it to be level on the ground, you know, where it’s slightly sloped, there’s no back fence. She continued and said, as long as his deck is in compliance, then I think he qualifies for a variance because he can’t use his backyard other than just planting grass. Howard responded, Freth, if you go for the variance, then he has to prove a hardship. Freth replied, he has a hardship, it’s the size of his yard. Jim Cason replied, but there’s tons of properties in Lago that have the same size yard and same size problem. He continued and said, there’s nothing unique about that problem which kind of precludes calling it a hardship. He said he thinks it’s an appeal and remarked he has concerns with the code not precluding giant decks and reported that the city needs to get with zoning and get that reg changed. He continued and said, I think if we did that, if we did change the reg it’s going to allow a deck with the height that he has, in a setback area. He said he can’t see being able to vote for a hardship, being able to vote for a variance, but he can see being able to vote the other way. Howard replied, an appeal, Jim. Jim replied, yeah, an appeal, I couldn’t think of the word.
Amadeo asked if they are allowed to vote on the appeal today. Freth replied, yeah, we have to hear the appeal within 10 days, I don’t believe everybody has access to the information.
Erin stated that Board Member Perez asked her a question about whether they would be able to vote for an appeal today and her answer to that is if we had noticed it as an appeal process, yes, you would be able to vote today, that is the only thing that is holding you up from for being able to
20
vote on this as an appeal application, we would have to re-notice it and put it on for your next meeting if that is the direction that the Board wanted to go, if that is how you are interpreting what he is asking for. Freth responded, unless they change the guidelines, it says such appeals shall be made within 10 working days of the decision, so we are already way past that, unless we are at the point that we can decide if it’s an appeal, I would say that we would have to hear it within ten working days from now. Howard asked, what if the applicant waives the ten days and we can do this at the next meeting. Erin responded, so, you are not required to act within ten days, I want to make sure we are all on the same page. She continued and said, what that requires is, if Roy makes a decision and he denies the permit, at that point, they would have ten days to file their appeal with you and then you hear it in the regular course of your business. She continued and said, if you decide today that you think this is an appeal application, we will set it for the next one or if you want to hold a special called meeting at another date, you have the authority to do that as well. She noted there isn’t a particular timeline for you to act, that ten days applies to the applicant and I would not penalize him for the time that we have gone through this process. She said he submitted his request for the variance after discussing this issue with Roy, so, I think he has met his obligation. She said let’s be clear and make sure you are on the same page regarding how you are looking at this particular issue, whether you are looking at it as it needs a variance or it should be as a request for an appeal. She said, I think this is really within your purview, Madam Chair and Board.
Lynda asked Erin if she needs two days to do the posting properly, is that right? Roy responded, no, mam. Erin replied, no, we have to put it in the paper, we have to post it, not just post it but publish it. Lynda asked, so, it has to be posted for two weeks or, can we have the special call meeting before two weeks? Erin replied, so, what’s your timeline? Roy responded, I think it has to be posted just like a public hearing, does it not? Erin replied, yes. Roy replied, it’s 30 days out. Lynda replied, okay.
Howard asked the applicant if he was okay with going to the next meeting in January to handle this as an appeal. The applicant replied, yes, I agree, thank you.
Howard announced that he would like to make a motion that they table this item until next month when they can consider it as an appeal.
D. Close Public Hearing Freth announced that the public hearing was closed (the time was not announced).
Freth asked Erin if we decide to come back and hear it as an appeal, is there any other action required of us at this date on this one? Erin replied, other than just making sure that the public has had had an opportunity to comment, no, Madam Chair. She continued and said, you can get all of the public comments and close the public hearing, take any motions and then take action and then we will go through the process to do the public notice that is required for the public hearing and we will bring it back to you next month as an appeal item versus a variance item.
E. Decision On a motion by Howard Hoover, seconded by Jim Cason, the Board voted all in favor to table the item until January so that they can consider it as an appeal.
3. 20-1680-ZON-VAR: Application for a variance granting relief from the requirements of Section 22 of Chapter 14 of the Lago Vista Code of Ordinances to allow portions of an existing (built without a permit) eight-foot wood privacy screen (Type “E” wooden stockade fence) approximately forty feet in length
21 along a common side property line at 2204 American Drive (Highland Lake Estates, Section 26, Lot 26076).
A. Staff Presentation Roy said, in the interest of time, you have seen this item at least twice and said he doesn’t have anything new to add.
B. Applicant Presentation The applicant said that they basically built the fence that high because the deck goes a little bit higher. He said if they can’t do it that high, there won’t be any privacy with the neighbor. He said, that’s it, he just wants to be honest. He said it’s just that the height of the deck is a little bit higher and then it goes down, the landscaping, and the fence, standing from the deck, you will be able to see everybody out there and they will probably be able to see us. He said, that’s basically it. He said he’s trying to be honest, there’s nothing else over there.
Freth said, she believes from the other side, it’s six feet, she doesn’t think they will be able to see over it, but from your side, you may be able to see over it. The applicant responded, yes.
Howard said, I don’t see a hardship here, Freth. Freth responded, the fence needs to be six foot rather than eight foot. Amadeo replied, I agree. Freth continued and said, in order to be in compliance.
C. Open Public Hearing Freth opened the public hearing for comments (the time was not announced). There were no public comments.
D. Close Public Hearing Freth closed the public hearing (the time was not announced).
E. Discussion There was no further discussion.
The applicant asked if he could reduce the fence to seven feet instead of eight feet. Howard asked Erin if the request would require a separate variance, he didn’t think they could consider that. Erin replied, yes. Freth responded, we can’t consider anything over six feet, being in accordance with the ordinance. The applicant replied, okay. Roy responded, you can put the rest in the request, but once again, you have to find the hardship. The applicant replied, he understands, and asked if he cuts the fence to six feet, if there’s nothing they can put, such as fabric, or something that is not wood, on top of that, maybe one or two feet more, is that legal? Freth replied, I believe the ordinance prohibits adding anything to a fence. The applicant asked, nothing at all, any kind of material, correct? Amadeo responded, that’s correct. The applicant replied, okay, then whatever you say, we will do it.
F. Decision On a motion by Howard Hoover, seconded by Amadeo Perez, the Board voted 6-1 to deny the variance for the fence at eight feet, the fence must be six feet, in accordance with the ordinance. (Amadeo Perez was opposed.)
The applicant asked if he has some time to do this, or does he need to do it right away? He said he was wondering if he can do it at the beginning of next year. Freth responded, she thinks he is asking the wrong people about how quickly that has to happen. The applicant responded, okay. Freth
22
replied, you will need to ask the folks at the city. The applicant asked, who is the person to ask? Howard replied, Roy. The applicant said, okay, I will contact him some other time. Freth replied, okay, thank you very much.
5. 20-1703-ZON-VAR: Application for a variance granting relief from the requirements of Section 22 of Chapter 14 of the Lago Vista Code of Ordinances to allow a six-foot high chain-link (type ”F”) fence within the required setbacks at 21201, 21203, and 21205 Paseo de Vaca Circle (Lago Vista Estates, Section 9, Lot 2063, 2064, and 2065).
A. Staff Presentation Roy stated, as you can probably tell from the application and the staff report, we are not sure exactly, in some instances, where the chain link fence is being proposed to be located, but it seems clear it’s within the required setbacks, so we would hope that the applicant, before you make a decision, particularly if it’s to approve, can explain to you the extent of the request. He continued and said, for example, wanting it in the front yard on the property line or somewhere else in the front yard setback that they can describe and the same thing along Paseo de Vaca. He said we know there will be a fence on the far side of the creek that, once you make that determination, is probably too close to the property line and a variance would be required; we aren’t sure exactly where they intend to put it. He explained there seemed to be a little discrepancy in the documents we saw. Roy continued and said, having said that, one of the important things about this request is that a wrought iron fence in the same location even on the property lines in both of these locations would be allowed by right by our ordinance. He said, so the fact that neither one is sight-obstructing, which suggests the real issue here is the appearance and whether that appearance is or is not necessarily appropriate and establishes a hardship in this case.
B. Applicant Presentation The applicant stated that it’s their intention to put up a black chain-link fence on the North side between their home and 21202 Paseo de Vaca Circle, which does not impact the setback, a six-foot wood fence on the East side between their home and Palomino Cove, which again, does not impact the setbacks, a six-foot black chain link fence in between the adjacent lot, which would be on 21205, which is again against a land lock which does not impact the setbacks, and lastly, a six-foot black chain fence on the South side on the back of their property which is parallel to La Paloma. He said that one would be the one that they are asking the variance for. He said he spoke with his neighbors on Paseo de Vaca Circle and Palomino, and no one has raised issues, in fact, they all offered to chip in and pay for the fence. He said the reason they are requesting the variance is the disruption of the natural terrain. He continued and said, the ordinance agrees with the fence in the back on La Paloma would be in a creek, so it would impact the creek and if he were to put the fence on the other side of the creek, he would lose about a half-acre of our land. He stated that the main reason that they want a fence is that he has had dumping on his property by the creek and he has had vagrants and children that have come onto his property illegally. He mentioned that the wrought iron fence has a financial cost of an additional $5,000, which is another consideration, which is why they prefer the chain link fence and doing it with the setbacks causes the natural terrain to be impacted. He said that he wanted to address some of the feedback forms in the packet and noted that Sandra and James Johnson had responded and said that the creek will not be impacted and said he just wanted to reiterate that and said there will no impact to any flow of water and said, in fact, there is a swimming pool on his property and are planning for their grandkids to swim in it someday, and again, if they put it on the other side of the creek, he would lose about a half-acre of his own land. He noted that Charles and Sandra Morrison had responded and said again, we will not obstruct water flow from the creek and said he hopes that resolves any of their concerns. He continued and said Reasa Burton had responded and said he is not sure what Reasa is referring to because he doesn’t have any fencing on their portion of the creek on their property. He said he is
23 aware of construction fencing up the creek from him, on Palomino from Brohn home builders, but those builds are complete, and the fencing was never taken down and is not on his property.
Roy asked, if the fence on La Paloma will be on the property line, or inside the property line? The applicant replied, it will be on the property line. Roy asked, do you intend to respect the front yard setback along Paseo De Vaca Circle? The applicant replied, that’s correct. Roy replied, okay, so there’s no variance needed there at all. The applicant replied, correct. Roy thanked the applicant for the clarification.
The applicant mentioned on page 94 you will see a picture from the back; it is a dead-end road that has a dirt path and its completely empty back there and said he hoped that would bring clarity to what the pictures were and noted that this is where the fence would be.
Howard asked the applicant if he is stating his hardship is that people are dumping trash and there are children getting into his yard with a six-foot fence, he said he doesn’t know about the dumping and asked if he believes that the eight-foot fence is going to stop children from climbing it and getting into the yard. The applicant responded, it’s just a six-foot fence and he said he believes it would keep people from walking directly onto his property and dumping right by the creek. He continued and said, yes, he believes it would stop people from coming onto his property. Howard replied, okay, so that’s your hardship. The applicant replied, he thinks his hardship is the disruption of the natural terrain because if he follows the setbacks and he puts the chain link fence at the setback, it would be in the creek, the fence would actually have to be in the middle of the creek.
Freth asked, are you proposing that your fence comes to the top of your property before it drops down into the creek and then at the top of the property on the other side of the creek, with a cable across, or are you talking about going down into the drop off with your fence. The applicant replied, you are talking about the cross sections of the creek; he said he plans on having the fence stop and having a grate so that the water can pass through naturally, but it would protect, say if his dogs went back there, they wouldn’t escape, he said he wouldn’t block off the creek or the water flow, he would do something which would be under the permit, something that he is allowed to do, basically. He noted that he and his wife constantly clean the creek before it flows into the river and said like when they were doing home building on Palomino, he thinks they filled up eight bags of garbage before it went into the creek. He commented that he takes really good care of his property to make sure it’s clean and to make sure the creek stays clean and said this would actually help protect it.
Amadeo asked if the variance is for the setback on La Paloma Drive, is that correct? The applicant stated, that’s correct. Roy responded, we thought there was a setback in the front yard, but we couldn’t tell from the drawings, so, we advertised it to be safe.
Jim Cason asked the applicant if he wants his fence to go along the property line across to La Paloma Drive, and asked if there is going to be any fencing from those corners back towards the creek. The applicant replied, yes, he is planning on fencing that property, that is his goal. Jim continued and asked, if that fencing is also going to be chain link. The applicant replied, it’s his intention to do an eight-foot fence, black chain link and mentioned that it will look really good and won’t stand out like a sore thumb like galvanized chain link fencing. Freth commented, we are talking about eight-foot now, are we changing that now, I thought it was six-foot. The applicant replied, it’s six-foot. Jim continued and said, the black chain link is going to go all the way across, adjacent to La Palomoa and you want it back to the creek on the other side, and what’s going to happen at the creek, again? The applicant replied, I am going to do something that has grates that will stop trash but will let water go through and but will secure the property. He continued and said
24 he would have poles on either side and a grate to stop garbage but not water. Jim continued and said, then across the creek you are going to convert to wood? The applicant replied, so, if you are looking at the survey, the bottom would remain chain link and if you are looking at the top, it will be a wood fence. Freth mentioned that a fence already exists along Palomino and between you and the property next to you in the cove already has a six-foot chain link fence and said she didn’t see anything on the other side. The applicant replied, that’s correct, he got a permit for the fence and started building and then he learned about the setback. Freth asked if it will stop at the creek and asked what happened there? The applicant replied, he said he stopped about 20 feet from the creek.
Amadeo reported that he was having power issues with his iPad. Jim asked him to dial into the meeting on his phone.
The applicant stated, to answer your question, it’s about 20 feet from the creek and said there is still construction fencing up past that on the other side on Palomino, but that is not his since it’s on the other side of the property lines. Freth asked, where your fence stops is where the property line is, at that end of your property? The applicant said, no, it’s about 30 feet from his property line and noted he is waiting to find out if this is approved to figure out what he will do next. Freth stated that was her question, in order to figure out what you are planning on doing with the creek at that end of the property. The applicant stated, his intention is once this is approved, is just where he finished with the wood fence, he will be putting a black chain link fence up to the creek and figure out the grates so that water can still come through and trash cannot, and then on the other side of the creek, start the chain link again. Freth said, she didn’t measure it, but it appeared to her that it’s at least 15 feet across that creek. The applicant replied, at the top it’s not that wide, it’s much narrower, and said the other side is much wider. Freth responded, directly behind your house, that area, which is about 15 feet across, and it might be ten feet deep or more. The applicant replied, it’s a nice swimming hole back there and once that water flows, it’s quite nice. Freth asked, so what is that structure that is out there in the middle of the creek? The applicant replied, it’s a kid fort from when my wife was a child so when it fills up with water, you can go up there and jump off of it into the water. Freth asked if the creek drains into the lake right there by the campground, correct? The applicant replied, correct and said that is why they are out picking up trash when the neighbors are not nice. Freth asked if it was flooded in the last flood. The applicant replied, yes, it filled up quite nicely. Freth asked, but it wasn’t flooded on your property. The applicant replied, no, they haven’t had flooding at their house since about 20 or 30 years ago, which was the last time it flooded the house. Freth asked, so you don’t think putting something across that creek is going to obstruct it enough; once you don’t catch that debris, it’s going to block the flow. The applicant replied, I would do something, for example, there was lawn chair that floated through recently; I would do something that would stop the lawn chair but won’t stop the water flow. He continued and said, obviously, if it were raining, he said he would go down there and check it frequently because he doesn’t want flooding and said that he doesn’t want flooding as much as you guys don’t want to approve something that will flood. Freth replied, no, we don’t want the neighbor’s property to flood or those houses that are up stream because if you block the flow, it’s going to back the water up to where your wood fence is and possibly flood their backyards. The applicant replied, I can promise you that I have a lot of common sense and I would not do something that would cause any flooding complaints about me.
Jim Cason said that he has to state the obvious here, putting a fence on your property line adjacent to La Paloma, that’s a good plan, you are allowed to do that if you put in a wrought iron fence. He asked, what is the difference, is there a hardship with putting in a wrought iron fence as opposed to a chain link fence and please understand that the regulations say that price cannot be a consideration. He asked, how are you going to justify the chain link as opposed to the wrought iron fence? The applicant replied, that’s a good question, so I love the wildlife and the woods, and I
25 have two dogs and the goal would be to keep other animals safe as well as our dogs safe from those animals and said that having the wrought iron opening would not prevent that and with the chain link they couldn’t come out and it would not affect that. The applicant continued and said, that is probably the main reason, is animal protection for them and for us, we have a golden retriever, and he has two small children, so he also doesn’t want things that are not welcome, like the deer and some animals are friendly but other animals that are not so friendly. He continued and said, they will still be able to get in with a wrought iron fence and recently they had a Chupacabra that actually came through that he has seen a few times. He said, I know you are laughing, but we really have. Jim Cason commented, you mean a coyote? The applicant replied, yes, he has been coming out during the day, which is alarming, but a wrought iron fence would not prevent that animal from coming into his yard. Freth asked, what’s going to keep them from coming up the creek? The applicant replied, the grates should prevent something from coming in or going out, as far as animals. Jim Cason asked the applicant to describe the grate again, he can’t wrap his head around that. The applicant replied, it’s something that probably has six-inch gaps in a grid that will let water flow freely and won’t obstruct water and will stop something like a lawn chair or larger debris from going through. He continued and said, he needs to design something that meets the requirements that doesn’t cause flooding but still lets the water flow and keeps the natural elements of the property. He said that he wishes that he didn’t have to put up a fence, but he has people dumping on the back of his property. He said he wishes he didn’t have to put up a fence because he loves sitting out on the back porch watching the deer in the morning. He continued and commented that he wishes that there weren’t houses on Palomino Cove that have eight-foot foundations staring at him while he does that.
Freth commented that it appears that the house has been there for quite some time and said she is wondering why all of a sudden, it’s a hardship. The applicant replied, well, he has small children and noted that he hasn’t lived there the whole time, but his wife’s grandmother has, and he has animals, so, circumstances have changed. Freth remarked, that has nothing to do with a variance and said a variance is related to your property and not your family size or dogs.
Howard commented that he agrees with Jim, it’s okay to put up a wrought iron fence because you can see through it and asked what the difference is between that and a chain link fence that you can also see through and reported that he didn’t see an issue here. Freth responded, the difference is that the ordinance does not allow a chain link fence in a front yard setback and you have a double front yard. Howard replied, I think we need to go with the spirit of the law. Amadeo asked, what do you mean by that, Howard? Howard replied, I think what that means is that if you can see through one fence, you can see through the other fence, to me, how do you exempt one fence but say it’s okay to have the other fence you can see through too? He continued and said, to me, the spirit of the law is that you can see through the fence, and I can see through a chain link fence. Freth replied, that’s not what the ordinance says, Howard. Howard responded, what’s your point on this? Amadeo responded, are we talking aesthetics here? Freth replied, yes and the ordinance only allows for certain types of fences in a front yard setback.
The applicant announced that he has another issue that kind of makes it awkward, he said the lot at 21205, the lot on La Paloma, is considered the front, and the lot 2064, the front is considered Paseo de Vaca Circle. He said, that is what makes it so awkward too, is that there are different setbacks on the two, which is a technicality because you can never actually build on lot 2065 and make that the front of the property. He continued and said, if he were to adhere to the setbacks, and put a fence up and follow the rules the fence would be directly in the middle of the creek, and if he did it on his side, up the side, he would lose about a half-acre of his lot. He said that is his hardship, that he would lose a half-acre of his lot if it were not put on the other side on the property line. Freth responded, but you are not using that other side, you are just trying to block anyone else from
26
coming on. The applicant replied, but he is enjoying that property and he reiterated, that is his hardship, that he would have to give that up and said he doesn’t want to give that up. Jim Cason replied, but putting up a wrought iron fence, you don’t have to give it up. The applicant replied, it’s not financial, but he would have to also pay a lot more money, which he doesn’t have to do it. Jim Cason replied, that is just not something the Board is allowed to consider. The applicant responded, he thinks he specified two things earlier, one was the public opinion, and noted he has spoken to all of his neighbors and four of them have actually offered to pay for the fences that impact them and said no one has complained, and everyone is happy that they are taking care of the property. He continued and said, then the second thing is the hardship, which, by code, is if he follows the setback for a fence, that is not the wrought iron, right? He said he just read it as you were talking to Marcus earlier, that is his hardship. He said he will follow what everyone says is the right thing, but that’s his opinion and that is the hardship, that he doesn’t have the money for the wrought iron, and once again, it’s a dead-end road and color doesn’t matter and doesn’t affect the aesthetics. Freth replied, there are people down that road, granted, they are across the street, but they have to look at that fence. The applicant replied, it really doesn’t, one eighth of that is adjacent from his, their house is facing sideways and is over 40 feet off the road. He said so it doesn’t really affect them, and their recommendation was that he should get an electronic fence. He said when he went to speak with them, an invisible fence, right for the dogs, he couldn’t get out of his car because their dogs were in the road, so we know how that works and said that’s why he does want a fence. He said he didn’t want to argue with anyone, but he will leave it with you.
C. Open Public Hearing Freth opened the public hearing (the time was not announced). There were no public comments.
Howard said he would like to hear what the rest of the public feels about one fence versus another where you could see through it. Freth replied, you will need to take that up with the city because that is what the ordinance requires. Howard responded, Erin, I am still waiting to hear from you. Erin replied, one of the purposes of allowing a wrought iron fence at the property line is that it’s not sight obstructing, and she said the applicant makes a good point, that the chain link fence is not sight obstructing. She continued and said, the other purpose for allowing specifically a wrought iron fence and not allowing the chain link fence has to do with aesthetics, and so, that’s where the issue diverges. She said, so it’s really a call about aesthetics from that standpoint. She said, to address the hardship issue, in this particular case, the applicant has articulated that his hardship has to do with losing the use of his property if he had to comply with the setback requirements, which is as this application was noticed, the variance you are considering is allowing the six-foot high wood fence within the required setback, so, that is the piece that he is looking for relief from. She said if he were required to comply with the setback, as he stated, the fence would be in the creek and he would lose use of some of his property. She said, that’s really what is being considered and said she does understand Mr. Cason’s comment that the fence could by right be put at his property line as a wrought iron fence and therefore, he may be analyzing this from a perspective that this is purely a financial issue because in theory, you could comply with setback requirements if you pay more money for a wrought iron fence. She said the request is for a chain link fence and relief from the setbacks so, that’s the request that he has, that is what he is requesting relief from and that’s what he is asking for. She said, keep in mind those seven requirements and just as a reminder, those are all in Section 1.40, so, I didn’t make these up out of thin air, those are the criteria in your ordinance for findings you are required to make, so, if you walk through those based on what he’s asking you for, maybe then you will be able to reach some determination on who wants to make a motion for what. She said you have to consider your request on what he is asking for, keeping in mind that you do have the authority to grant a variance no greater degree, minimum required in order to alleviate his hardship, which he indicated that he would lose part of
27 his property and then it would be impractical to put the fence down the middle of the creek and that has been found that the land feature would constitute a hardship.
Howard stated, the other thing, Erin, is that is says in number one it says it would deprive the applicant of reasonable use of his land, to me, that says I have to grant this variance; reasonable use of his land.
Lynda mentioned with an iron fence, you wouldn’t need the variance and wouldn’t need to lose the use of his land.
Jim Cason asked Erin, we can consider granting the variance without considering the fact that he has the option of putting in the wrought iron fence, thus not having a hardship that he is supplying. He said his application is for a hardship for specifically a chain link fence and we don’t have to look at the fact that he can have a wrought iron fence and still be in compliance. Erin replied, so, that’s a tough one, Mr. Cason, I think it should factor into part of your decision-making as you go through your findings for each of these seven items. She said, this is a difficult one. Jim Cason laughed and said, that’s why we have you.
Freth reported that she believes the wrought iron fence would fall under number four, that the variance will be no greater than the minimum required to alleviate the difficulty or hardship to which the variance is requested. She said, if you need to go through all of these again, we can do that. Howard responded, that actually tells me to approve the variance and not deny it. Erin replied, in true form, Madam Chair, there would be at least some minimal discussion of each of the items. She said, whether you read them off or not, is within your discretion of how you would like to proceed but there should be at least some discussions so there is something on the record about each of these seven items. She said, in an ideal world, there would be a finding specifically for each of them.
Freth responded, okay, the first one obviously addresses the hardship that he could lose access or use of part of his property, that constitutes a hardship for number one, however, number one also addresses unreasonable disruption of natural terrain or unreasonable destruction of existing flora. She continued and said, I have concerns about that creek, but we are not asked to address that side fence, we are asked to address the one on La Paloma, is that correct, is the chain link on the side already approved? The applicant stated the chain link fence has been approved by permit.
Jim Cason responded, number one could be answered in favor of granting the variance. Freth said, number two kind of falls into that, the variance is necessary for the preservation and enjoyment of the substantial right of the applicant, so those sort of address the hardship. Jim Cason responded, I think you should defer that until you answer number three. Freth continued and said, there is no reasonable alternative to the requested requisite variance that will alleviate the difficulty or hardship for which the variance is requested. She said, that’s where your wrought iron fence comes in. Jim Cason said, that’s the issue. Freth continued and said, number four, where you have... Howard interrupted and said, I would like to say about number three, that depends on what you call reasonable because is five or six thousand extra dollars reasonable, I don’t think it is, not when you can see through the fence. The applicant responded, and seven eighths of the fence will be on a dirt road. Freth replied, that may not always be a dirt road. The applicant responded, that no one will ever see. Freth replied, and all of the opposed people were on La Paloma, not on your cove side. The applicant replied, only one responded, not all of them, only one, which is the only person on La Paloma. Freth said, there were three opposed. The applicant replied, right, only one on La Paloma. The applicant continued, they saw the one on Paseo de Vaca Circle and thought I had built a fence across the creek, which I did not. Freth responded, to me, it’s the disruption of
28 natural terrain. She continued and said, but, moving on, number five, granting of the variance will not have the effect of preventing the orderly use of other land in the area in accordance with the provisions of the chapter, the variance may be granted only when the harmony and the general purpose of the intent of the chapter, the public health, safety and welfare may be secured, and substantial justice is done. She continued and said, pecuniary hardship of the applicant, standing alone, shall not be deemed as to constitute undue hardship. Howard responded, I think the trash in the creek is definitely something that affects public health and safety.
Freth said, I understand also from Roy that there needs to be a hammerhead end on La Paloma so that vehicles can turn around. Roy replied, yes mam, there are a number of situations in Lago Vista that have that problem, it doesn’t meet current versions of the International Fire Code. He said if there were ever significant number of properties, we would need to address that. Freth asked Roy if that would be addressed right there where La Paloma currently ends or down that gravel road. Roy replied, we would need to acquire property, or somebody would and create either a hammer head or a cul-de-sac or some way for vehicles to turn around without having to use private property. Freth asked, but that road, is it private property or does it belong to the city? Roy replied, it dead ends into private property with no mechanism for turning around. Erin commented, the road itself is city property, as it’s platted. Roy replied, right, there’s no room for a cul-de-sac; we would have to acquire right of way or something. Roy continued and noted, that is not the only place where that occurs. Freth commented, he decided to build his fence and then he put this turn-around in there and he is going to have to take his fence down, at least part of it, or go around it. Roy said, if we were to acquire his property, it would make him whole, if we took some of his property.
The applicant’s wife suggested, we could actually prevent people from driving into the creek if we have the fence there. But they decided to turn around were they already are because right now when you run into that sign you have to do a K-turn or a multiple point turn to get out that little area of driveway. Howard commented, the fire department is not going to drive into the creek. The applicant’s wife said, well, the fire department would have to reverse out, they would not be able to turn around there.
Freth continued and said, moving on, the variance will not violate the intent of the zoning ordinance or the city master plan. She said if you start giving people the ability to put a chain link fence up in that front yard setback as opposed to wrought iron, people are going to be wanting to do the same thing.
Howard commented, Erin said that every case has to be determined on its own merits, so this has nothing to do with what other people may or may not want to do.
Freth continued and said, and the last one says that such variance shall not restrict the reasonable unobstructed access to sunlight and preservation of views of those properties that might be affected. Freth commented, she would say the only affect it would be is the look of the fence.
Howard suggested, you could put up a wood fence inside his property line and then you would be looking at a wood fence without a view.
Lynda commented that she keeps getting stumped on the pecuniary hardship of the applicant standing alone shall not be deemed to constitute undue hardship. She mentioned that this is really a definitive statement. Howard replied, except that you are not reading, you are taking it out of context which says that it has to be in harmony with the general purpose of intent of this chapter for public health, safety and welfare. He continued and said, so trash being dumped in that creek is
29
not in the public health interest, safety or welfare, so you are taking that statement out of context. Lynda replied, well, not because if they put in the wrought iron that would still prevent the dumping of the creek. Howard responded, yes, and that goes back to what’s reasonable, is five or six thousand dollars in your mind reasonable, if it is, then you vote to block the variance, if it’s not, then you vote to allow the variance. Jim Cason responded, we need to keep in mind to that you have to be able to answer yes to every one of these seven items, not just one. He continued and said, so, go back to number three and tell me how you answer yes to that one, he said that is his biggest hang-up, there are other reasonable alternatives. Freth responded, then he doesn’t need a variance. Jim Cason added, the fact that you can’t consider the pecuniary aspect; he said he doesn’t have a problem with that chain link fence in that location, he is just trying to go by the regulations. Lynda agreed and said in this particular location, a chain link fence is acceptable, but it doesn’t give us the option.
Freth asked how long the section of fence is. The applicant replied, it’s 75 feet. Freth asked, is it 75 feet? The applicant replied, it’s 375 feet. Lynda remarked, it’s a big section of the fence.
Howard asked Freth, what if there isn’t a super majority to hold up the variance, then what happens? He continued and said, in other words, the variance is not denied, but it’s not approved either. Erin responded, you have to have 75% to approve the variance and she said, if you don’t have six “yes” votes to approve the variance, he doesn’t get it. Howard replied, okay. Erin replied, it really has to do more with how the motion is worded, because if there is a motion to deny it, you just need a simple majority and if there’s a motion to approve the variance, to grant it, you have to have 75%, you have to have six votes to grant it. Lynda commented, it looks like we only have five left of us in the meeting. Amadeo announced, I’m back, I’m on the phone. Lynda replied, okay. Freth commented, there should be seven here still.
The applicant asked Erin if he needs 100% yes vote to get a variance. Freth replied, 75% “yes” vote. Erin responded, it’s 75%, you need six members and I believe you have seven here. She said I believe you have Ms. Carroll, Chair, you have Mr. Cason, Mr. Hoover, Ms. Aird, Mr. Perez, Mr. Guy, and Mr. Miskie and asked if Mike is still with us. Mike waived his hand and said he was still there. Erin said, so you have seven people, and you need six “yeses” to get the variance approved, assuming if that’s what they move to do.
Freth announced that she was opening the public hearing (no time was announced) to see if anyone has comments. There were no public comments.
F. Close Public Hearing Freth announced she was closing the public hearing (no time was announced).
G. Discussion There was no further discussion. The applicant thanked everyone for their time today.
H. Decision On a motion by Amadeo Perez, seconded by Jim Guy, the Board voted 6-1 to grant the variance. (Freth Carroll opposed.)
6. 20-1719-ZON-VAR: Application for a variance granting relief from the requirements of Section 22 of Chapter 14 of the Lago Vista Code of Ordinances to allow a six-foot high wood privacy (type “E”) fence within the required corner lot side yard setback at 4224 Hillside Drive (Country Club Estates, Section 7, Lot 1338).
30
A. Staff Presentation Roy reported that they don’t know a lot about the exact extent of the fence, other than where it is in relation to the setback. He said there are no safety issues involved here, it’s purely aesthetics. He said his primary concern is that it would be in front of an existing fence that is in the proper location and we are wondering how good that will look. He stated, that is in essence what is in front of you.
B. Applicant Presentation Shawn Cunningham, 4224 Hillside Dr., thanked Roy for his help for the deed work that the attorney is being very delinquent on. He continued and said, the fence in question at 4206 Rockwood, if you guys look at the zoning map that is provided in the packet, you will notice that their lot is significantly further away from Yucca Drive, where his fence line is in question right now, it’s significantly further away, so the 15-foot build line off of the property line does not affect them as much and said I guess you have to go through the list here. He said his hardship is that he had no say in the placement or orientation of the initial structure considering it was a new construction building. He said he has listened for three and a half hours when everyone was talking about build lines in the front and the back and the left and the right, and the way the new construction is exploding here, he doesn’t really have a say where they set the house, nor does he have a lot of say in the ordinances that everyone has kind of agreed and said they may need to be revamped to 2020. He said his 15-foot build line, the essence of the fence would be to build five feet off the property line on Yucca, it would go from the rear property line all the way to the 25-foot front build line, which he agrees with the build line, and it would basically toenail into his neighbor at 4206 Rockwood. His intent was to mirror their style of fence so it would all be one style. He commented that he originally wanted to do a horizontal picket but after reading the parts (of the ordinance), it may look awkward and said he thinks it would look better to build a similar privacy fence to go along his property line into his neighbor as well. He said, so that’s the idea, there are some other people on this call that have already built structures and then applied for building permits. He continued and said, in arrears, he thinks that it would be best to discuss the fence with you now, get the variance on the build line and then he will go through the building permit process, which he thinks it’s the sequence of events you are supposed to do, but that is just what he is trying to do. He continued and said, the hardship is, he can go through the seven steps if you like. He said you guys said the word “pecuniary” many times and he didn’t know what that meant until today, so he appreciates that. He said, letter “A,” special circumstances or conditions affecting the land involved; like he said, he had no say in the orientation of the build and mentioned his lot from left to right is a little bit skinner than the lot behind him, so it puts him extremely close and completely reduces the use of that corner lot land. He said that he has two small kids, and he has some playground mulch to allow them to use that side yard and do all of the things that don’t require a permit that are less than 18 inches off the ground, which he will double check on that, which answers “A.” He continued and said, “B,” the variance is necessary for the preservation and enjoyment of the substantial right of the applicant and said that he bought a corner lot to get a little more space, so that’s “B.” He said he does understand that you can put a wrought iron fence on the property line, however, with Yucca Drive being a heavily traffic road, he doesn’t want to put a fence there that you can see through because it negates that privacy of his backyard and he doesn’t want to have his kids back there or where someone could potentially see him in the house doing something, to be honest. He said he requested five feet off the property line to try to maximize the space. He said he understands the build line is 15. He said he doesn’t really want to negotiate, but he can, he is open to it, so there is “D.” He continued and said “E” is granting the variance does not have the effect of preventing the orderly use of other land in the area in accordance with provisions in this chapter. He said he talked to his neighbors and they think it’s a good idea and said those that are opposed, he doesn’t know the one person that lives on the hillside where they can’t even see his house and said he isn’t sure what they have to do with it. He said he also doesn’t know the master plan but he thinks it’s a nice fence and it will make the house look better. He said as far as sunlight, it’s only six feet tall and the sun is pretty high up there.
31
Freth stated, actually, there were two opposed. The applicant replied, the McElderry’s, who have an Albuquerque address, I don’t know who they are, and then 3109 Hillside is not anywhere near our cul-de-sac, they are on the other side of Hillside, so I don’t see how it affects them. He continued and said, he did talk to Norma down the street and his neighbor to the right, who is not present and the one behind him to try to mirror the fence. He said everyone thinks that it will make the neighborhood look good and said it’s a brand new, attractive house so it adds to the overall aesthetics of the street and the neighborhood.
Howard commented, you said you were willing to negotiate, so his question to the applicant is are you willing to move this to 15 feet so you will be on the property line rather than over the property line. The applicant replied, no, the build line for the fence is 15 feet off of the property line, which effectively puts the fence about shoulder width apart from the corner of the house. He said he is applying for the variance to put the fence five feet off of the property line; he said, so correct him if he’s wrong, that should put him 15 feet off the road, he thinks. He mentioned he could measure it, but the variance request is to pull it off of the property line five feet instead of 15 feet so he would be closer to the property line to maximize for the applicable use of the land. Roy commented, proximity to the street in this case with no adjacent garages or driveways or anything like that is not really an issue, it’s purely aesthetics.
Freth mentioned that Yucca Drive is a well-traveled road and at some point in the future, they may need to widen it or add sidewalks or something in that right-of-way. The applicant replied, he doesn’t know what the actual easement is, Roy can answer that, but he thinks there will be plenty of space for the city to do sidewalks or add a curb at some point or whatever they would do, that’s why he is not asking to build on the property line and said he is trying to leave a little bit of the easement for the city.
Freth asked the applicant, how far off of the road are you proposing? She said it’s hard for her to tell where the property line is. Roy reported, he would be about 17 to 18 feet off of the paved edge. Freth asked, how far is the neighbor's fence off of that? Roy replied, it would be an additional ten feet. Freth asked, so he’s 25 feet? Roy replied, right. The applicant stated, that’s the argument, that is the way 4206 Rockwood’s lot sits, it’s wider left to right on Yucca, so his house is oriented more in the center. The applicant continued and said, if you are looking at the Rockwood house, the right-hand side fence extends into his neighbor’s backyard. He noted that the lot is offset and referenced the zoning map provided. He said 4206 is a much larger lot and noted that the house is more in the center and the orientation of his house pushes him more towards Yucca Drive. Freth commented, on this map it looks like it’s closer to the neighbor’s fence on the other side, 4222, and it looks like it’s a bit more angled. The applicant stated, 4206 is a much larger lot and said his right-hand fence is in his neighbor’s backyard and his house is positioned in the center so the build line is not an issue off of Yucca Drive. He continued and said, his house is narrower from left to right. Freth asked, you already have a fence on two sides, right? The applicant replied, yes, mam, so the variance is only for that one side, the Yucca Drive side.
Jim Cason asked, did you contract out to have the house built or did you buy it after it was built? The applicant replied, he bought it after it was 80% complete, so he had no ability to make a structural and/or engineering slab change. Freth commented, well, you probably couldn’t anyway because it was already built. Jim Cason remarked, but you had the ability to know what the ordinance was and where the fence should be before you bought it. The applicant replied, to be honest, he didn’t read the entire ordinance and said he thinks it’s pretty extensive and he has two kids and it’s been an interesting year and said Lago’s ordinances were not at the top of his reading list. He continued and said, he did read it and that’s why we are here, he’s trying to get the variance for that. Freth said, let me understand, what you want to do is to have it out farther at the front part where it connects to your
32 house and then taper back so that it runs to the corner of the fence behind you, is that correct? The applicant replied, no, the front fence will be compliant with the 25-foot build line from the front of the house, it will run parallel out to, hopefully with this variance approval, which will be five feet off of the property line which will then run all the way back to the back property line and then he will connect over to his neighbor behind him. Freth commented, you will be lining them up? The applicant replied, yes, in a perfect world they would be straight, but like he said, his lot is much wider, his neighbor doesn’t have to compete with that build line like he does.
Amadeo asked, without the variance and you build a fence there with the required setback, how close will it be to the corner of your house? The applicant replied, with the variance, or without it? Amadeo replied, without it. The applicant replied, approximately five feet, from the back left corner of his house to the fence, would be just that, five feet. Amadeo replied, that’s the issue isn’t it, there’s a fence right there. The applicant replied, yes, the orientation of the house has it kicked a little bit so that build line runs right on top of that corner. Freth commented, it looks like the house is straight with the fence that’s already built and noted his property line is angled. The applicant responded, yes, he is trying to get the preservation and enjoyment of the substantial right of the applicant, he said he is just trying to use as much space while being as thoughtful to the city as possible.
Howard asked Roy if Shawn decided to put up a fence, a split-rail fence, etc. that you could see through, we wouldn’t even be having this discussion, is that correct? Roy replied, yes, sir. Howard continued and said, what we are really looking at here, the variance is needed so that he can put up a wood fence to protect his children from the view of cars driving by who might otherwise decide taking a child would be to their benefit. The applicant stated, he can guarantee if someone touches his child, it would be to the detriment of theirs, he said he is just trying to do it so if he is grilling outside and goes inside to grab something, he doesn’t have to worry about his kids with a wrought iron fence where someone could see them, he said he has a lot to worry about and that’s the last thing he wants.
Erin asked Roy if the other consideration for these solid fences has to do with the vision triangle and driving, and in his opinion, with the fence five feet off of the property line, would it be an impediment in any way for traffic? Roy responded, and you raise the point he was trying to make earlier, he said normally the difference of the non-sight obstructing fences is because it doesn’t impede the location of an adjacent garage or driveway or that sort of thing where sight is an issue. He continued and said, your neighbor is the only lot adjacent to you and they are not likely to add a garage or driveway there any point in time. He said it simply wasn’t an issue here, notwithstanding the fact that the ordinance would allow him to put up a non-sight obstructing fence in another location. He said in our opinion, it's purely aesthetics, it’s whether this fence looks like it’s out of place with it’s different location than the one next to it.
Howard asked Roy if he is saying there is no safety issue here, is that correct? Roy replied, yes, it would only occur if the neighbor on Rockwood decided for some reason, he needed a driveway on Yucca, and that would require a variance, by the way. Freth remarked, everything requires a permit these days. The applicant replied, yes, I know, and he waited to build his fence until he talked to you guys, for the record.
Freth asked the applicant if there is any way to tie the fence to the neighbors in the back corner? The applicant replied, he plans to do that. Freth continued and said, not so that it will stick out ten feet, but angle it so it ends at the corner of his fence. Roy responded, he thought about similar things, now, it might help a little bit but at the end of the day, it may be lip service. The applicant replied, if you look, the neighbor at 4206 Rockwood has cedar trees on the exterior of their fence line, he thinks five of them, that are quite substantial at this point, so even if he were to right-angle into their fence line, and we even talked about planting some aesthetic bushes there, so you are not looking at a fence, you
33
are looking at flora, but with his giant trees, kind of like what Roy said, even if he 45’s it or 60 degrees it, it really doesn’t matter if he 90 degrees it, he is open to it. He said if he can keep the corner and said he doesn’t look like an extensive gardener, but he is, and that is sort of the plan with the backyard. Roy responded, he even thought about maybe it’s a good location to put a gate, that’s different or something to make it look a little better and said now, he’s getting into something that doesn’t have to do with this application. The applicant remarked, you are really welcome to come and help me design the fence, Roy.
C. Open Public Hearing Freth asked if there is anyone not on the Board that has any comments about this piece of property or this fence? (The time for the opening of the public hearing was not announced.)
Paul Roberts commented that he thinks the Board should approve the application for the variance.
D. Close Public Hearing Freth closed the public hearing (the time was not announced).
E. Discussion There was no further discussion.
F. Decision On a motion by Howard Hoover, seconded by Jim Guy, the Board voted 5-2 to approve the variance, as stated. (Jim Cason and Freth Carroll were opposed.) The motion failed.
Freth asked if the fence will be 15 feet off the property line or five feet. The applicant replied, five feet. Freth responded, five feet, which will be basically 15 feet off the edge of the road, is that correct? The applicant replied, yes.
The applicant asked if he is allowed to ask why Freth was opposed because he did all the homework and said she is saying “no” to just literally say “no.” Amadeo agreed, he said there is a good basis for that. The applicant continued and said, he sat here for three and a half hours and you voted “no” for no reason. Jim Cason said he has a reason, and said there are a lot of properties in Lago Vista that have the same issue and he understands that the applicant has the desire to have more property, as well as everybody else and a lot of people have kids and he said he sympathizes with you... The applicant interrupted and said, no you don’t, because you would have voted “yes.” He continued and said, he sat there for four hours and you don’t sympathize with him and you said “no” just be to “no.” The applicant continued and said, listen, he did it the right way, he applied for the variance, he didn’t build the fence first, like half these people did, he did everything the right way and you are saying "no” just to say “no” and you are making Lago Vista a place where they don’t want to live after going through this process for four hours. Freth responded, her issue is the five-foot setback, she said she believes it needs to be a little more or it needs to be angled into that other fence, it’s an aesthetic issue. The applicant replied, so what does this entail, then, does he reapply and spend 250 more dollars for a separate variation, then why didn’t you say that? Freth said, they can change a motion, it’s actually what you requested that we are denying. The applicant replied, okay, change the motion, what angle do you want it to be? Freth replied, we are taking out a 15-foot setback and you are asking to make it five. The applicant replied, no, your objection was that you wanted to angle the fence back into his neighbor’s property line which has a larger left to right lot, you are talking about apples to watermelons when it comes to the orientation of their house, yes you are. Freth replied, no, I’m not. The applicant continued and said, the footprint of his house is different from the footprint of his neighbor's house on a smaller lot. Freth said, yes, it is. The applicant replied, okay, so why don’t we just say he will run the five-foot setback and angle it into their fence at the end. He continued and
34 said, you are asking me to give up property and he wasn’t going to use the word “pecuniary” because that’s been overplayed, but what else more do you want us to do out here? He continued and said, he sits before the Board for four hours and you guys deliberate over craziness and then you just say “no.” Freth said, she would personally like to see a uniform fence line on major thoroughfares, not... The applicant interrupted and said, you are applying the footprint of his neighbor’s house behind him, whose house has been there for a long time, and the dimensions of their lot to his lot, that’s the point of having a variance board, their lot doesn’t apply to the same thing his lot does because he doesn’t have the usable space. Jim Cason mentioned there are a lot of lots in Lago Vista that do apply. The applicant replied, those other lots, he doesn’t care about, Jim, he is talking about his lot and said, so, let me ask you this, if he wanted to build a fence where he wanted to build it and he asked you guys for permission, and you said “no” for a ridiculous reason, then what happens, then he is back here fighting with you guys? Erin responded, you are going to end up with violations and then you are going to end up with her and said because his violation would be against the zoning ordinance, which is a $2,000 a day penalty, sir. She continued and said, that’s what happens if you build your fence without... The applicant interrupted and asked, is the gentleman with the deck being charged $2,000 a day? Erin replied, he is going through the process, he has a code enforcement violation that he is having to address. The applicant responded, so, how would you want me to build a fence that maximizes the usable space in his backyard, without (explicative), how would you like for me to handle that? Erin replied, you need to be respectful of the Board, sir, or we are just going to mute you and at this point, the Board has gone through all of its agenda items and in theory, it could end this meeting. The applicant restated, he sat there for four hours... Amadeo responded, we are not getting paid a lot of money to do this, either. The applicant replied, tell me how to do the fence without two grand a day. Freth replied, we are willing to negotiate or compromise. The applicant replied, tell me, do you want it seven feet off the property line and tapered into the back fence? Freth responded, she would like to see a uniform fence line.
Paul Roberts stated that he would like to make a point of order. He said the applicant has been recognized, you are the Chairwoman, if you want to reconsider your motion, and open it back up to public comments, and hear other considerations that the applicant has, and you would like to negotiate, he would like to encourage you to ask someone on the Board to make a motion to reconsider, if he is saying that correctly, Erin, if you guys want to reconsider or otherwise. Roy responded, there is also an option for an alternate motion and said nobody’s adjourned yet. Freth replied, no, we’re not.
Erin responded, the motion to approve the variance, as written, has failed and she said the Chair can make a motion or accept other motions that are different than that, you can’t make the same motion. She said if you make the same motion, you have to reconsider. She said those are the options or you can move on. Amadeo suggested, I think we should move on.
Freth asked Jim Cason if he had any suggestions on how they can proceed. Jim replied, he has a lot of problems with code the way it’s written but he is just trying to read what the regulations say and he has to make a decision and that’s what he did. He continued and said, if code needs to be changed, and he believes it does in many cases and said we need to get about doing that. The applicant replied, people are being punished for code that is not being updated fast enough and he said, he gets it and that could take forever. He said, he gets it, but he just wants to know where he can build his fence so he doesn’t get charged two grand a day in an economic climate that is pretty ugly. Jim Cason replied, the short answer to that is build it within the code. The applicant asked, so all of that space on the outside is just then unusable space? Jim Cason replied, it happens to everybody, it happens to a lot of people around here, that is the way the code is written. The applicant asked, do they all apply for variances? Jim continued and said, that is why he has such difficulty granting these variances because everybody else doesn’t have the same right. He said it has to be something unique about your property
35
that sets it off and causes a hardship and he said what you have here is not unique. The applicant asked, so it doesn’t constitute a hardship, he said he doesn’t understand and said he guessed... Amadeo responded, let me tell you something, okay, the only part that he sees is a little bit inconvenient is that back corner of the house that comes within five feet and noted that he has plenty of backyard and side yard, too, except for where that fence is and he said he doesn’t know if it really deserves a variance, he said he was kind of siding with Jim now.
Jim Guy announced that he would like to make a motion to adjourn, that they have been there too long already. The applicant replied, the applicant has been there equally as long and said caller number four, he doesn’t know who you are. Amadeo announced that he was Amadeo Perez and is on the Board and said he is ready to go home. The applicant asked if there was any other recommendations for an alternative way to build a privacy fence because he found out today that there are some sexual predators in the neighborhood, is there any other way to do it?
Erin asked Freth unless she wants to continue discussion on this item, we have one more business item which is comments from your Council Liaison and discussion of future agenda items.
Freth said she didn’t hear any other motions, so she will have to move onto the next agenda item.
Marcus announced that he had one more question and said he wants to go on with what he is doing properly, he doesn’t want or need a $2,000 fine and asked Roy if he will be reaching out to him on the city side or if he needs to do anything on his end. Roy replied, it’s a busy week and asked him to send him an email and he will get with the Building Official. He continued and said, it has to do with the wall more than anything else, the two feet should be correctable without major heartbreak, we just need to get that wall permitted. Marcus replied, okay.
Freth asked Roy if they have any recourse if they go to City Council to get some of these things changed. Erin responded, if they wanted to do something regarding the decision today, they would have to go to district court and said the other approach would be to not build a fence, just wait, go to City Council, and advocate to have whatever regulations changed if the City Council chose to request that staff go through the process or the proper Board or Commission go through the process to evaluate and come back with a new proposal, that could happen. She continued and said, what your applicants would have to do is simply wait until the regulations are changed in a way that they could comply with.
BUSINESS ITEMS 7. Comments from the Council Liaison Chelaine Marion introduced herself and said she is the new Council Liaison to the Board of Adjustment and said she is excited to be a part of this Board. She said that while she was listening quietly, she learned a lot this evening and said she enjoyed the active participation in conversation among the members of the Board. She mentioned she has a steep learning curve ahead of her, but she is learning as quickly as possible, and she is looking forward to serving as the Liaison and anything that anyone may need to be forwarded to the City Council.
FUTURE AGENDA ITEMS Jim Cason asked if they need to discuss future agenda items and mentioned that he doesn’t know what they can do with any of the regulations because most of it comes out of P and Z and asked if they need to have more discussion on how they handle these things. He continued and said that he understands the hardship that they are putting on some of these people, but he doesn’t see how someone can comply with the code and not do that. Roy replied, our ordinances make it difficult and onerous to justify a variance and said they are not intended to be impossible, however, some of the language in our ordinance (inaudible) than is typical,
36 and said except for COVID, he thinks the intent was to get you guys together with P and Z and express your frustration with standards that, if you apply them strictly, they are impossible to meet. He said that hasn’t happened and applicants are suffering from COVID and even the ability for us to effectively schedule that joint meeting; even though you are not the ones to write the ordinance, it’s important that you express your desire to have that ordinance, so you don’t have to turn your back to approve a variance that you think is justified, except for that overly strict language, does that make any sense? Freth replied, yes, and said she would look forward to that meeting. Roy mentioned that they have conspired against that not happening, they really have and said he doesn’t know what they are supposed to do about it and said that it needs to be done eventually, somehow, some way. Erin stated that she recommends that once you have your new members, or if you all remain the same here in January, that through your Council Liaison you can work to coordinate with P and Z and then of course, staff will work on the backside as well to set up a meeting. She continued and said, it’s difficult to do these and coordinate meetings through GoTo but it’s certainly possible and it sounds like there’s a great desire to try to address these things to have them later so we can help them to facilitate that, but her recommendation would be in the January meeting that you have this discussion with whomever your body is in full with your new Commission, our new Board and work through Council Member Marion get something set up with P and Z. She said they can do a training at that time, too, if that’s your desire as well.
Freth asked if they are still at the limit of ten people at a gathering. Erin replied, for now, yes.
Paul Roberts remarked that he has been going to every Council and Planning and Zoning meeting for almost two years and said he has recently started watching your meetings and he must say that what he enjoys most about watching your meetings is you guys are different in his opinion, but you guys ask a lot of questions and you really try to arrive at the right decision and have a lot of debate. He said that was his objective, honest observation. He said he applauds everyone and thanked them for what they are doing. He mentioned that he followed Councilwoman Marion through her campaign and said he thinks that everyone will like her as a Council Liaison.
ADJOURNMENT On a motion by Mike Miskie, seconded by Howard Hoover the Board voted unanimously to adjourn (no time was announced).
Freth Carroll, Chair
Alice Drake, Administrative Assistant
On a motion by ______, seconded by ______, the foregoing instrument was passed and approved this ______Day of ______2021.
37
April 5, 2021
Agenda Item 3 20-1734-ZON-VAR
1909 Patriot Drive
Zoning Variance Partial Excessive Wood Privacy Fence Height LAGO VISTA BOARD OF ADJUSTMENT STAFF LAND USE REPORT – APRIL 5, 2021
BOA CASE NO: 20-1734-ZON-VAR: 1909 Patriot Drive APPLICANT: Ryan Alexander LANDOWNER: Ryan K. and Sarah Alexander LOCATION: Southeast corner of Patriot Drive and Owens Lane ZONING: R-1B (single-family residential) zoning district VARIANCE: Increased height (eight feet) of existing wood privacy fence
GENERAL INFORMATION / LOCATION: Consideration of this application was deferred at the January 4, 2021 meeting and the public hearing continued. The purpose of this delay was the need to investigate the possibility that an existing portion of the fence, repaired by the previous property owner, was also performed without benefit of a permit and exceeded the maximum permissible height without a variance. The location of this additional potential violation is the property line separating the applicant’s property (1909 Patriot Drive) from the adjacent property to the east (21800 Owens Cove).
SITE PLAN / CONTEXT CONSIDERATIONS: The staff was unable to access the rear yards of either property to measure the height with a tape, but we were able to view the portion of the fence in question and adequately verify that a portion exceeds six feet. The staff photographs of that older portion of the fence that are included in the packet follow the photographs of the newer constructed fence that was originally cited. Those photographs depict the existing ornamental metal (Type G, “wrought iron style) fence installed along the corner lot side yard of 21800 Owens Cove that is approximately five feet in height. At the juncture of this fence and the Type E wooden privacy fence in question, the existing wood fence is approximately one-foot higher than the adjacent Type G fence. As with the newer fence originally cited, this older fence transitions over a fairly short distance to an approximate height of eight-feet. Both the older and more recently repaired sections of fence consequently require a variance to permit the additional height.
RELEVANT ORDINANCE PROVISIONS / CONSIDERATIONS: Some states or local jurisdictions include provisions that allow certain types of physically apparent and prominent deviations from strict compliance with zoning requirements to become “legally non- conforming” after a significant prescriptive period (typically at least five years). The theory is that after all impacted parties (including code enforcement) ignored or failed to notice any negative impacts, subsequent action to enforce compliance would be more disruptive than the status quo. Typically these provisions do not apply to any requirement with a safety component or that is not readily apparent by mere observation. Documenting the expiration of the prescriptive period is the burden of the property owner who might be seeking relief. There is no applicable local ordinance or state statute of that nature. Moreover, that type of provision makes much more sense in a dense urban or suburban environment where vacant property is rare and that any negative impact is readily apparent to the surrounding residents.
POTENTIAL ALTERNATIVE DECISIONS: A. Approve the application for a variance to include all portions of the existing fence built without a permit and that exceeds the maximum six-foot height limitation. B. Deny the application for a variance.
LAGO VISTA BOARD OF ADJUSTMENT STAFF LAND USE REPORT – JANUARY 4, 2021
BOA CASE NO: 20-1734-ZON-VAR: 1909 Patriot Drive APPLICANT: Ryan Alexander LANDOWNER: Ryan K. and Sarah Alexander LOCATION: Southeast corner of Patriot Drive and Owens Lane ZONING: R-1B (single-family residential) zoning district VARIANCE: Increased height (eight feet) of existing wood privacy fence
GENERAL INFORMATION / LOCATION:
This application results from the discovery of the existing fence that had been recently completed without the benefit of a permit by our code enforcement staff. The notice was issued on September 21, 2020 and informed the property owner of the need to secure a permit and lower the portion that was in excess of six feet in height or apply for this variance. When the code enforcement staff subsequently followed up on that original notice letter on November 5, 2020, the current variance application was submitted. The application was dated November 18, 2020 and we received it the following day. The application explains that they had only acquired the property about six months prior to that first violation notice letter and that it resulted from the need to replace an existing fence that was in very poor condition. The applicant further asserts that they “searched the Lago Vista website and did not note any reference to fence permitting or height restrictions.” However, under the “for RESIDENTS” tab at the top of the home page, there is a link to a page entitled “Do I Need a Permit?” That linked page has a long list of improvements that are noted as requiring a permit. Fences are specifically included in that list. It also notes that they should contact the Development Services Department by phone or email about any project type that is not included on the list. While it is correct that there is no Lago Vista website page specifically devoted to fence height limitations, a link to our complete Code of Ordinances, which includes a section listed in the table of contents as “Fence and Screening Devices” (Section 22 of Chapter 14) is accessible from a variety of locations. The most directly accessible link (titled “Code of Ordinances”) is found under the “our GOVERNMENT” tab on the home page. Moreover, one purpose of the required permit is to become aware of these types of requirements.
SITE PLAN / CONTEXT CONSIDERATIONS: The applicant did however, consult with the adjacent property owner that was directly impacted by the additional fence height and confirmed their lack of objection. The application also asserts “that the portion of the fence in question sits on a slope of yard making it appear taller than it actually is from the road.” I am not sure I understand what is meant illusion of additional height, but the adjacent lot to the south is slightly elevated compared to the subject property as verified by the topographic information on the staff provided aerial map. However, that change is elevation is certainly not severe when compared to many other properties throughout our jurisdiction.
RELEVANT ORDINANCE PROVISIONS / CONSIDERATIONS: The key determination is whether the need for the increased height asserted by the application (primarily the need for an increased level of privacy due to one property owner being afflicted by PTSD or Post Traumatic Stress Disorder) meets the criteria contemplated by the local ordinances and state statutes. Much of the remainder of the narrative addresses issues that would have solved by repair of the fence without the additional height (repair being required by our ordinance). BOA Case 20-1734-ZON-VAR Page 2
The application asserts that it meets all seven criteria contained in our Code of Ordinances due to “the significant slope of our yard” which causes privacy concerns that might otherwise exacerbate anxiety related to the medical condition (PTSD) of one of the property owners. The failure of the application to specifically address any one of those seven criteria is unfortunately reminiscent of the previous variance application form utilized by this department. Current Board of Adjustment members who might have also served during that time frame will recall that it included an opportunity to check a box corresponding to each of the seven criteria without prompting for or requesting any further explanation or justification. While a change in grade elevation (the “significant slope” referred to by the application) is certainly capable of being considered a “special circumstances or conditions affecting the land” as required by Section 11.20(a) of Chapter, it requires a finding by the members that it is a physical attribute that is somewhat unique or extraordinary. This is seemingly the most difficult of the seven criteria to resolve. Nonetheless, the staff is aware of several examples of many published opinions by higher courts in the state that upheld the consideration of such non-physical factors in applying criteria that are similar to those contained in our local ordinances, specifically including some that require the presence of a special physical characteristic. The state statute (Section 211.009(3) of the Texas Local Government Code) requires “special conditions” but does not specify that those conditions must be physical in nature.
POTENTIAL ALTERNATIVE DECISIONS: A. Approve the application for a variance. B. Deny the application for a variance.
20-1734-ZON-VAR 1909 Patriot Drive
Attachment 1
Application
20-1734-ZON-VAR 1909 Patriot Drive
Attachment 2 Site Plan
20-1734-ZON-VAR 1909 Patriot Drive
Attachment 3 Staff Photographs
20-1734-ZON-VAR 1909 Patriot Drive
Attachment 4 Maps 1
2
3 13 4 12
14 11 5
10 6
7 9
15 8
16 24
17 23 19
18
20 22
21
1909 PATRIOT DR Requestor Property 200ft Notice Boundary Street Request TypeZoning Variance Project20-1734-ZON-VAR TaxParcel Change RequestedAllow wood privacy fence Date12/17/2020
0 50 100 Map PurposeNotification Boundary Map Drawn Bycmartinez This product is for informational purposes and may not have been prepared for or be suitable for legal, engineering, or surveying purposes. It does not represent an on-the-ground survey and represents only the 1 in = 120 ft approximate relative location of property boundaries.
20
7 7
50
740
730
740
750
0 6 7
760
750
1909 PATRIOT DR Requestor Property Street Contours Request TypeZoning Variance Project20-1734-ZON-VAR 10 ft Change RequestedAllow wood privacy fence Date12/17/2020 50 ft TaxParcel 0 50 100 Map PurposeAerial & Topo Map Drawn Bycmartinez This product is for informational purposes and may not have been prepared for or be suitable for legal, engineering, or surveying purposes. It does not represent an on-the-ground survey and represents only the 1 in = 120 ft approximate relative location of property boundaries. 1909 PATRIOT DR Requestor Property Street R-1B Request TypeZoning Variance Project20-1734-ZON-VAR R-1E Change RequestedAllow wood privacy fence Date12/17/2020 R-1F TaxParcel 0 50 100 Map PurposeZoning Map Drawn Bycmartinez This product is for informational purposes and may not have been prepared for or be suitable for legal, engineering, or surveying purposes. It does not represent an on-the-ground survey and represents only the 1 in = 120 ft approximate relative location of property boundaries. 1909 PATRIOT DR Requestor Property Street City Park Request TypeZoning Variance Project20-1734-ZON-VAR Low Density Residential Change RequestedAllow wood privacy fence Date12/17/2020 TaxParcel
0 50 100 Map PurposeFuture Land Use Map Drawn Bycmartinez This product is for informational purposes and may not have been prepared for or be suitable for legal, engineering, or surveying purposes. It does not represent an on-the-ground survey and represents only the 1 in = 120 ft approximate relative location of property boundaries.
20-1734-ZON-VAR 1909 Patriot Drive
Attachment 5 Notice Comments
April 5, 2021
Agenda Item 4 21-1762-ZON-VAR
20908 Boggy Ford Road
Zoning Variance Wood Privacy Fence within a Required Setback LAGO VISTA BOARD OF ADJUSTMENT STAFF LAND USE REPORT – APRIL 5, 2021
BOA CASE NO: 21-1734-ZON-VAR: 20908 Boggy Ford Road APPLICANT: Garry Lavinge LANDOWNER: Evariste G. and Mary E. Lavinge LOCATION: North side of Boggy Ford Road ± 170’ west of Ridgeway Cove ZONING: R-1G (single-family residential) zoning district VARIANCE: Six-foot (?) Type E fence within “double frontage” lot setback
GENERAL INFORMATION / LOCATION:
The subject property is a “double frontage” lot with an address on Boggy Ford Road and a rear property line that fronts on High Drive. The ordinance prescribes that both required setbacks will be treated as front yard setbacks for certain provisions, including fence regulations. The application form asserts that the relief from the required setback adjacent to High Drive is required for them to achieve desired privacy. That issue is not mentioned in the attached narrative however, which instead concentrates on the fact that the proposed fence will not compromise traffic safety by creating a sight obstruction. There is an existing Type F (chain link) fence that appears in the applicant’s photographs that does not appear on the submitted site plan. It is mentioned in the narrative, but there is no specific statement that it will remain. However, the staff suspects that it will remain as there is a Labrador Retriever visible in one of the photographs. The chain link fence appears to be located slightly more than five feet from the rear property line. It also appears to have a height of four feet. That would tend to verify the applicant’s assertion that the stone retaining wall is four feet in height or perhaps slightly less.
SITE PLAN / CONTEXT CONSIDERATIONS: The application form mentions that the retaining wall is elevated in relation to the paved surface of High Drive and that this negatively impacts the applicant’s privacy from their rear porch. The property appears to slope even more significantly between the retaining wall and the rear of the residence. However, it is difficult to tell how the location of the fence relative to the setback will provide additional privacy. In fact, it would seem that the opposite might be true (i.e. that a fence of a given height provides more privacy when it is closer to the elevation of the porch). The narrative asserts that the sole purpose of the setback requirement is to ensure traffic safety by eliminating potential sight obstructions. While the staff would suggest that they are additional factors to consider, we do not disagree that the proposed variance would not create or contribute to any traffic safety hazards. The other primary consideration is the aesthetics or appearance from a public right-of-way. You would be more hesitant to grant a variance if the proposed fence was adjacent to or in the near vicinity of a predominant pattern of front yard setbacks. However, all of the adjacent and nearby lots seem to be similar “double frontage” lots and none of them appear to have established High Drive as the designated front yard. As such, approval of the variance would have no substantial negative impact on the aesthetics when viewed from High Drive.
RELEVANT ORDINANCE PROVISIONS / CONSIDERATIONS: As the application doesn’t mention seeking a variance for additional height, the fence will presumably be limited to a maximum height of six feet as prescribed by the ordinance. However, the photographic sample of the proposed fence type submitted with the application raises a question as to how a particular contractor has interpreted the meaning of “maximum height.” BOA Case 21-1762-ZON-VAR Page 2
Fortunately this property is relatively level between the side property lines as indicated by the applicant’s photographs of the existing chain link fence. As such, there should be no opportunity or basis for a misunderstanding and no concern of this type should be a factor in this application. However, the sample photograph includes a fence built on a significant slope with a level top within horizontal sections of variable widths. The staff has historically ignored minor variations in the height of a fence of this type to avoid substandard construction at grade. However, this photograph indicates the need to reinforce the understanding that the ordinance does not allow a horizontal plank fence to significantly exceed six feet in height merely because it is built on a slope. We will certainly urge the inclusion of a provision that specifies how the height is to be determined in the pending amendment recommendation expected from the Planning and Zoning Commission. A “double frontage” lot is something that is typically avoided by knowledgeable developers, land planners and subdivision approval authorities because of the inherent inefficiency. Unfortunately, they are less rare in our jurisdiction than they should be. If they qualify as “special circumstances or conditions affecting the land” as required by Section 11.20(a) of Chapter 14, it would still seem to require a finding by the members that they are somewhat unique or extraordinary in order to qualify as a “difficulty or hardship.” Notwithstanding previous discussions by the members, it seems reasonable that a greater expectation of privacy within the area defined as a rear yard in comparison to either a front or side yard qualifies as “a substantial right of the applicant” as contemplated by Section 11.20(b) of Chapter 14. The ability to normally surround only a rear yard with a privacy fence would seem to reinforce that notion. Nonetheless, the important question is whether the relief sought preserves it.
POTENTIAL ALTERNATIVE DECISIONS: A. Approve the application for a variance. B. Deny the application for a variance.
21-1762-ZON-VAR 20908 Boggy Ford Road
Attachment 1
Application
Evariste G. & Mary E. Lavigne 20908 Boggy Ford Road
Application For Variance
PROPERTY:
Our property fronts on Boggy Ford Road and our driveway runs from the garage on out to Boggy Ford Road. The back of our lot faces High Drive. We have no vehicle egress from the rear of our lot onto High Drive. One of the pictures submitted for review shows the chain link fence and the rock wall, which is several feet high, and our grass meeting the top of the stone.
PURPOSE:
We propose to erect a wood fence where our grass meets the rock wall. It would run along the back up to about the area of the large tree.
ORDINANCES INVOLVED: 5.40 YARDS (d) 22.25 (f)
Essentially the purpose of the ordinance is to prohibit the creation of a fence, on one of these lots which blocks the vision of a driver exiting onto High Drive from seeing any traffic on High Drive.
REASONS TO GRANT THE VARIANCE:
1. On High Drive, from its intersection with Rock Terrace to its intersection with Over Hill (which includes our property) there are five properties that have a vehicle egress onto High Drive.
2. High Drive is not completely straight; it bends at least twice before getting to Over Hill.
3. If you stand where the driveway of each of the five homes meets High Drive and look down or up the road, toward our lot, you cannot see our property. Therefore, any fence we erected would not affect the ability of the driver to see traffic on the road anywhere near him. The enclosed pictures show this.
4. The properties on either side of us do not have vehicle egress onto High Drive. I have also enclosed pictures showing this.
5. Therefore, we propose the fence would not prevent anyone exiting onto High Drive from observing traffic coming up or down High Drive as he or she moves out onto that road.
21-1762-ZON-VAR 20908 Boggy Ford Road
Attachment 2 Site Plan
21-1762-ZON-VAR 20908 Boggy Ford Road
Attachment 3 Applicant Photographs
21-1762-ZON-VAR 20908 Boggy Ford Road
Attachment 4 Maps 16
17 14 15
13
18 12 6
7 19
11
9
10
5
4
8
3
2 1
20908 BOGGY FORD Requestor Property TaxParcel 200ft Notice Boundary Request Type Zoning Variance Project 21-1762-ZON-VAR Street Change Requested Allow fence in rear setback Date 3/16/2021
0 50 100 Map Purpose Notification Boundary Map Drawn By cmartinez This product is for informational purposes and may not have been prepared for or be suitable for legal, engineering, or surveying purposes. It does not represent an on-the-ground survey and represents only the 1 in = 110 ft approximate relative location of property boundaries.
840
8
850
5 8
0 4
0
820
860
830
8
7
0
8
4 0
880
850
860
0
9
8
0 9 8
870
880
890 900 0 88
870
0 0 9
0 8 860 8
20908 BOGGY FORD Requestor Property TaxParcel Street Request Type Zoning Variance Project 21-1762-ZON-VAR Contours Change Requested Allow fence in rear setback Date 3/16/2021 10 ft 50 ft 0 50 100 Map Purpose Aerial & Topo Map Drawn By cmartinez This product is for informational purposes and may not have been prepared for or be suitable for legal, engineering, or surveying purposes. It does not represent an on-the-ground survey and represents only the 1 in = 110 ft approximate relative location of property boundaries. 20908 BOGGY FORD Requestor Property TaxParcel Street Request Type Zoning Variance Project 21-1762-ZON-VAR G-1 Change Requested Allow fence in rear setback Date 3/16/2021 R-1C R-1G 0 50 100 Map Purpose Zoning Map Drawn By cmartinez TR-1 This product is for informational purposes and may not have been prepared for or be suitable for legal, engineering, or surveying purposes. It does not represent an on-the-ground survey and represents only the 1 in = 110 ft approximate relative location of property boundaries. 20908 BOGGY FORD Requestor Property TaxParcel Street Request Type Zoning Variance Project 21-1762-ZON-VAR Low Density Residential Change Requested Allow fence in rear setback Date 3/16/2021 POA Park
0 50 100 Map Purpose Future Land Use Map Drawn By cmartinez This product is for informational purposes and may not have been prepared for or be suitable for legal, engineering, or surveying purposes. It does not represent an on-the-ground survey and represents only the 1 in = 110 ft approximate relative location of property boundaries.
21-1762-ZON-VAR 20908 Boggy Ford Road
Attachment 5 Notice Comments