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Min - Board of Adjustment - 2005 - 12/05 - RegularBOARD OF ADJUSTMENT Special Called Meeting December 5, 2005 CITY OF ALLEN ATTENDANCE: Board Members Present: Ed McRoy, Chair Steven Shaffer Ed Spivey Alexander Kirk Griffith Moore Board Members Absent: City Staff Present: David A. Hoover, Director of Planning Kellie Wilson, Planning Technician Bret McCullough, Chief Building Official Regular Agenda Call to Order and Announce a Quorum is Present: With a quorum of the Board Members present, Chairman McRoy called the meeting to order at 7:10 p.m. in the City Hall Council Chambers at Allen City Hall, 305 Century Parkway Agenda Item 1: Election of Officers — Chair, Vice -Chair • Board Member Griffith Moore nominated Edward McRoy for the position of Chair. There were no other nominations. The Board voted 5-0 to elect Edward McRoy as Chairman. • Board Member Ed Spivey nominated Griffith Moore for the position of Vice -Chair. There were no other nominations. The Board voted 5-0 to elect Griffith Moore as the V ice -Chair. Agenda Item 2: Consider a request from Mercedes Homes of Texas for a special exception by variance for construction of a single family residence with a front entry garage. Mr. Hoover presented the request to the Board In May 2004, Mercedes Homes applied for a building permit for a single family home at 1019 Rushmore. In August 2004, the City discovered the permit was issued in error, and requested that they stop construction. The plans that were submitted did not conform to the Allen Land Development Code (ALDC) Per the BOARD OF ADJUSTMENT PAGE 2 DECEMBER 5, 2005 ALDC, front entry garages must either be a "J" swing type, or the garage door(s) must be at least 18 feet from the front of the structure. Mercedes Homes is familiar with the regulations set in the ALDC. They have built approximately 262 homes in Allen, with 100 of the 262 in the same neighborhood as 1019 Rushmore Drive. Section 1.08.9 of Allen Land Development Code, Revocation states "the Chief Building Oficial may, in writing, suspend or revoke a Certificate of Occupancy issued under the provisions of this (ALDC) Code whenever the Certificate was issued in error, or on the basis of incorrect information supplied, or when it is determined that the structure or portion thereof is in violation of any ordinance or regulation of this (ALDC) Code or the Building Codes and other codes adopted by the City, and any amendments thereto. " Staff has discussed various options with Mercedes Homes, but the only way to correct the violation is to change the floor plan and footprint of the home. To grant a variance, a hardship must exist — Staff does not feel a hardship exists. Mr. Hoover also stated that Mercedes Homes at no time requested a variance in writing. They did however submit an updated elevation, which is not the proper way to request such a variance. The Building Department spoke with the Homeowner's Association maintenance company about other options — no variances were discussed. Mr. Hoover stated that the City was contacted by the neighborhood residents who stated they opposed the front entry garage. Boardmember Kirk asked why the permit was issued. Mr. Hoover then explained the permit process to the Board. Items are checked: • setbacks; • special rules if a Planned Development; • front entry garages, etc. Mr. McCullough stated that the builder submitted four (4) different plans at the same time — having the same basic footprint. Three (3) permits were issued — the error was caught during the plumbing rough stage. At that time, they were told to stop. Questions from Chairman McRoy- • What is the zoning? Mr Hoover responded by .stating the zoning is not relevant to the request — the rules for front entry garages are the same for all residential zoning • Do all the homes in the development have driveway access from the street? Mr McCullough stated they do not BOARD OF ADJUSTMENT DECEMBER 5, 2005 PAGE • Are the inspection dates listed in the applicant's presentation as Exhibit 7 accurate? Mr McCullough stated thev were. • Are the e-mails accurate? Mr McCullough stated they had not been modified. • Is there any dispute in the facts provided in the exhibit? Mr Hoover responded that since he was not an attorney, he could not respond on the case law that was provided. • Other than the cases, the information provided about the permit, e-mails, etc. is it correct? Mr Hoover responded, `yes they are. " • Can the structure be reconstructed or modified? Mr McCullough responded by stating the applicant has stated it would be difficult, and staffagrees. • Have there been any other errors that have happened in the past that got this far along? Mr McCullough stated that the Building Permit Department has issued over 19, 000 permits and this is the first time this has happened. Boardmember Shaffer asked how many homes in Allen are front entry — Mr. McCullough responded that less than 15%. Boardmember Shaffer asked about the updated elevation that was provided, and was it a significant departure from what currently exists in the neighborhood — Mr. Hoover stated "absolutely " Mr. Ted Byers spoke on behalf of the Applicant. Chairman McRoy requested that he read Ed Wilson's response into record. Mr Wilson provided a response in writing prior to the meeting. Mr. Wilson who lives at 1021 Rushmore Drive stated he wants a resolution to the problem, and he would support the revised/upgraded elevation to complete the house as a front entry, even though the neighborhood would prefer that a bigger, swing -entry house be built in its place to increase property values Mr. Byers then stated that Mercedes Homes had done everything that was expected. They circled the setbacks on the plot plan. Boardmember Kirk responded that they submitted the plans that were not in compliance. Boardmember Kirk asked if there was a buyer at the time the plans were submitted. Mr. Byers responded there was not. Mr. Byers reviewed the "Documentary Evidence" that was distributed to the Board the night of the meeting. (Inspection records, photos of this house and other houses in the neighborhood, letter of approval by the HOA, and other letters of support from neighbors). He stated that the other required setbacks are in conformance. Mr. Byers stated that the house cannot be modified, and would have to be demolished if the request is denied. In his opinion, this was undue hardship. Mr. Byers asked that Mr. Ed Wilson come and speak before the Board. Mr. Hoover tried to address the Board to advise Chairman McRoy that the Public Hearing had not been opened. Chairman McRoy allowed Mr. Wilson to speak stating the Chair had not recognized Mr Hoover therefore he was not to speak to the Board. BOARD OF ADJUSTMENT PAGE 4 DECEMBER 5, 2005 Mr. Wilson, a resident of the neighborhood and once an employee of Mercedes, addressed the Board. He stated that the previous Forman had told him of conversations he had with the Plans Examiner. Mr. Wilson himself had no direct knowledge of any previous conversations or facts. Chairman McRoy asked what the cost would be to demolish the house. John Robinson stated it would cost approximately $60,000. Chairman McRoy asked what the current valuation of the house is. Mr. Robinson stated $175,000 to $200,000. Boardmember Kirk stated that Exhibit A states the market value is $103,500. Chairman McRoy asked Mr. Robinson if he was a real estate agent. Mr. Robinson stated he was not. Chairman McRoy advised the Board they should not take his valuation into consideration since he was not an expert and it was only a matter of opinion. Chairman McRoy asked Mr. Robinson how much had been spent on maintenance of the lot Mr. Robinson answered - $500. Applicant then stated that 1703 Grand Canyon Way sold as a front entry for $219,900. �! Chairman McRoy then allowed Mr. Byers to depose the Mercedes employees present at the ® meeting. Chairman McRoy stated that the MLS listing for 1703 Grand Canyon Way to be entered into record. Mr. Robinson stated that the new elevation will add uniqueness to the neighborhood — when finished it will look like a model. Boardmember Kirk asked if Mercedes increased the budget for the landscaping for the house. Mr. Robinson responded stating he could not say if the budget had been increased because he didn't know, however it would be "above and beyond." Chairman McRoy stated that the Board would need exact details of the proposed landscape upgrade. Boardmember Kirk asked how much has been done to the house from the date they had originally been told to cease construction until now Mr. Robinson responded that 55% was done when they first stopped construction — they had just begun the mechanicals. Currently, it is approximately 65% completed. BOARD OF ADJUSTMENT PAGE 5 DECEMBER 5, 2005 Chairman McRoy asked Mr. McCullough how stop orders were done. Mr. McCullough responded that inspections we done many times a day Inspection tickets we left on site by the inspector. Boardmember Kirk asked if anything had been left on site for Mercedes. Mr. McCullough responded that they were only notified by e-mail. Chairman McRoy asked if the products are on site at the sales office for customers to see. Mr. Robinson stated yes they were, and this particular product is a new prototype. Chairman McRoy opened the Public Hearing. Ed Tones (opposed) 909 Rushmore • Looked at three (3) builders in this development — no homes had direct entry garages • The builder has not kept up with the lot — the house hasn't been cleaned up except for the last few months. (weeds, mud, and bundles of bricks) • The intentional request of the permit of the front entry was contrary to the norm in the community • This is the entrance into the neighborhood • When the HOA was formed, the HOA was formed by the builders. This is a conflict of interest. A now in the HOA works for Mercedes. That is the person that is fielding complaints. • Felt the builder was rushed. Very small lot. • There is a lot of bickering between the HOA and the residents. D. Hooey (opposed) 1017 Rushmore Drive • No dispute — both parties made a mistake — neighbors should not have to pay for mistake. • Lot in disarray — trash from lot • Bought his home in the neighborhood because of entries. • The upgrade in material doesn't change that it is still a direct entry • Wants the house to be consistent with the other homes. • When HOA supported the request it was when the builders had control of the HOA. Dennis Kline 1805 Grand Canyon Way • At no time has a builder been on the Board of Directors of the HOA • The house is an eye sore • The frustration isn't because of the drive — it is because the house is vacant. • Don't care either way — providing it doesn't decrease property values. • Feels the improvements will make it a better house than what the replacement house would be. BOARD OF ADJUSTMENT DECEMBER 5, 2005 Gary Mrines 1007 Muir Woods • Expedite the process • The employee from Mercedes abstained from voting on this request when they voted on the elevation. PAGE Mr. Reeves — Board of Directors and an employee with Mercedes Homes Can't give detail on landscape upgrade Chairman McRoy asked what the time frame was for completion. Mr. Reeves responded 45-60 days. The structure will need to be inspected by a structural engineer. To demolish the house would take approximately 120 days. Chainnan McRoy closed the Public Hearing. Boardmember Moore stated Mercedes Homes has built enough houses to know this floor plan wasn't acceptable. Motion: Upon a motion by Boardmember Kirk and a second by Boardmember Spivey the Board voted 3 IN FAVOR, and 2 OPPOSED, with Boardmembers Moore and Shaffer casting the negative votes, to grant the variance to Mercedes Homes of Texas for a special exception not to be required to have a J -hook garage or a garage setback of 18 -ft. from front of house, and to allow for construction of a single family residence with a front entry garage, with the requirement they construct the house per the revised Elevation B, that the upgrade in landscaping will include a brick retainer around the tree landscaping and the landscaping along the front of the house, and the trees will be 4" in caliper trees. The motion failed. Adjournment Motion: Upon a motion by Boardmember Kirk, and a second by Boardmember Spivey, the Board voted 5 IN FAVOR and 0 OPPOSED to adjourn the Board of Adjustment meeting at 9:55 p.m. These minutes approved this 1st day of March 2006. Edward McRoy, Chairman Kellie Jilson, Planning Technician