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Min - Board of Adjustment - 2014 - 06/02 - RegularBOARD OF ADJUSTMENT SIGN CONTROL BOARD _ BUILDING AND STANDARDS COMMISSION I ;r= Regular Meeting CITY OF ALLEN June 2, 2014 ATTENDANCE Board Members Present: Gene Autrey, Chairman Deborah Angell Smith, Vice -Chair Bruce Howard, Alternate Kimberly Clarkson Craig Gillis, Alternate Absent: Ken Barry City Staff Present: Ogden "Be" Bass, AICP, Director of Community Development Lee Battle, AICP, Assistant Director of Community Development Madhuri Kulkarni, Planner Kevin Laughlin, Attorney Regular Meeting With a quorum present, Chairman Autrey called the meeting to order at 7:00 p.m. in the City Hall Council Chambers at Allen City Hall, 305 Century Parkway Consent Agenda I. Approve minutes from October 7, 2013 Board of Adjustment Meeting. Chairman Autrey stated that the title "Chairman" before Hemphill should be changed to "Board Member" under the second motion in the Election item Motion: Upon a Motion by Vice -Chair Smith and a Second by Board Member Clarkson, the Board voted 4 IN FAVOR and 1 TO ABSTAIN to approve the Consent Agenda. The Motion Carried. Regular Agenda I Board of Adjustment Public Hearing — Conduct a Public Hearing and consider an appeal of an Administrative Officer decision/interpretation of Allen Land Derelupmea( Crile, Article IV, Section 4.08.11 — "SC" Shopping Center District and Section 4.20.2 — Schedule of Principal Uses; for an Office use as applied to a proposed use for the Property described as Lot I B, Block A, Cottonwood Creek Village 42, an Addition to the City of Allen, Texas, and located at 121 North Greenville Avenue, Suite 1, Allen, Texas 75002. (BOA -4/15/14-1)[121 North Greenville Avenue, Suite 1] BOARD OF ADJUSTMENT June 2, 2014 PAGE Mr Ogden "Be" Bass, Director of Community Development, presented to the Board. He mentioned that this is a public hearing for an appeal to the decision that he has made for Title Max based on the Allen Land Development Code (ALDC). The subject property is located at 121 N Greenville Avenue, Suite 1, on the northwest corner of Greenville and Main Street/McDermott. Mr Bass listed the duties of the Board of Adjustment, including the basis for this meeting, to appeal the decision of the Chief Building Official. He mentioned that this is an interpretation. In most cases, uses are pretty simple; other are more ambiguous, and require three steps. The first is the Code. If the use is clearly defined, then the decision is easy In this case, a second level of scrutiny, is used — to check the statutory law to check a clearly rendered opinion The applicant is making their case because they believe Title Max to be an office use and a bank or financial institution The City's clearly rendered opinion is that it is neither. The third item is a common understood definition. Based on what Mr. Bass thinks, the determination is Title Max is neither a financial institution nor an office Both of these uses are permitted in the City of Allen. Banks and financial institutions are permitted in in every non-residential district except Agriculture and Community Facilities. Offices are allowed in every non-residential district except Agriculture. Both of those uses are also clearly desired This use fits neither category, and as such, it is not a permitted use in the City There are elements of Title Max having an office function, but elements that separate this are design, location, functional areas, customer traffic, and so on In this case, the use seeks out high traffic, high visibility, retail -Type areas, with different functional areas of an office building. There are no appointments needed, which is different than a normal office setting. Another differential factor is a reception area, which is not evident in this case Lastly, another separation is the customer walk-up. Title Max is dependent on walk-up space, which is not the case for many offices. As Mr. Bass mentioned, it is his professional opinion that this is neither an office nor a financial institution, which is the reason for the denial. Mr Kevin Laughlin, Attorney, presented to the Board. One of the issues is the classification of Title Max in the Bank or Financial Institution. By state law, Title Max is a credit service organization called a Credit Access Business. They are regulated under a section of the Texas Finance Code which is separate from a bank or other traditional financial institution. The Texas Finance Code has a separate title, Title 3, which outlines business, and does not include title businesses Since the City does not have an actual definition in the Ordinance, the next step is to view the technical or statutory definition. The organization is not a traditional bank as normally understood. Mr. Laughlin then spoke about the office use component. The ALDC does have a definition for office use — it means administrative, executive, professional, managerial premises not a part of retail, wholesale, or manufacturing operation A traditional office as described by Mr. Bass would be administrative, professional, and managerial premises. When considering Title Max's use as an office use, those need to be keet in mind in terms of the commonly used definition. Other elements of operation of Title Max include notjust what a place looks like but how it is used. Chairman Autrey asked if the Board Members had any questions Board Member Clarkson had a question for Mr. Bass, and asked if there are areas zoned for financial institutions in the City Mr. Bass replied that financial institutions are allowed in the City by right in all districts except the Community Facilities and the Agriculture Districts, with quite a bit of vacant land BOARD OF ADJUSTMENT June2,2014 PAGE Vice -Chair Smith clarified that in this instance, the classification is not a bank or financial institution. Mr. Bass stated that is correct. Board Member Gillis asked if Ace Cash is still in business in the same location, to which Mr. Bass replied yes. Chairman Autrey opened the public hearing and asked the applicant to speak. Sara Schalette, attorney at Jackson Walker, spoke to appeal the denial of building permit. She stated that the reason for the presentation is to disagree with the Plans Examiners' position The belief is that the ALDC is clear and unambiguous, and permits the Title Max use as an office use, or alternatively, as a financial institution. Her four main points include I. Title Max's intended use is an office use 2. An office use is a permitted use in the SC district 3. Ace Cash Express, a competitor, already operates in the same shopping center and same zoning district 4. In the event that Title Max is not an office use, the belief is that it is a financial institution use Ms. Schalette described her four points in greater detail. She discussed that Title Max is a credit services organization, not a lender. It is an interface between a consumer and a third party lender Their physical business place, an office, includes meeting with consumers and assisting them in filing loans, similar to a mortgage broker, title company, or insurance broker office, with consumer interaction The physical business place looks like an office with desks, chairs, reception area, and so on Title Max's intended use 1 does not have a land use impact that generates normal denials such as, for example, increased parking. This business operates during regular business hours, Monday through Friday 9-7, Saturday 10-4, and closed on Sunday No increased demands or noise will be generated. Secondly, an office use is a permitted use in an SC Shopping District. Third, Ace Cash Express, the competitor, is in the same shopping center in a different suite. The land development code was exactly the same when this company obtained their building permit and Certificate of Occupancy with no amendments since that date. This is how the city had interpreted the Code at that time. Doing so differently in this present case presents an inequity Finally, if it is believed that this is not an office use, then it falls within a financial institution use — a permitted use in the SC District There is no definition for a bank or financial institution. In this situation, when a City ordinance does not define a use, then the words should be looked at in a plain ordinary meaning of the word, which is a dictionary definition The dictionary definition fits the definition of Title Max, which is what should apply Chairman Autrey asked if anybody had any questions. Board Member Gillis asked that if Ace Cash Express is a competitor, then why does Title Max want to locate in that same area? Paul Bland, real-estate handler for TMX Finance (parent company of Title Max) first described his credentials. He mentioned that they wanted to get into Allen area, but there was no definition of title lending or Credit Service Organizations, etc As a result, Mr. Bland hoped their specific use would be put into a similar, general category Across the country, when there is not a specific category, an office use has been used. Mr. Bland further discussed that another site was picked earlier, but a day before construction began, the use was deemed not permitted. Real estate difficulties led to giving up the site, but he did not agree that BOARD OF ADJUSTMENT June 2, 2014 PAGE they were not a permitted use. The Certificate of Occupancy for Ace Cash was granted as an office. This site was intentionally selected because of two reasons: 1) It is not in a wide open area, and 2) They are only one suite away from Ace Cash, whose CO was already granted — to make the point clear that they are being treated differently Title Max is more of a "wal-mart" and charges less and has more volume. This was a desirable area, and Title Max is not afraid of locating near Ace. Some other points Mr. Bland added were to rebut Mr. Bass's points He said that this is an office use where anyone can walk in and get immediate service; the format of a place should depend on the occupant's culture. The office definition also states that an office is not a part of retail, wholesale, or manufacturing— out of which Title Max is neither. Chairman Autrey asked if Title Max is regulated by banking authorities in the state of Texas. Mr Bland replied that they are regulated by the state and state financial department that regulates banking, but would not be a traditional bank (no deposits, only loans). Title Max COs typically include two categories- banks/financial intuitions or office. Chairman Autrey asked his question again — if Title Max is regulated by banking or considered consumer credit Mr. Bland stated they are not regulated as a traditional bank. Board Member Howard wanted to know the process of walking through the door of Title Max. Mr. Bland replied that there would be signs to their place. The loan is based on the collateral of an individual's vehicle. Other factors such as income and employment are considered as well Title Max is not a lender; it is a third party. The information collected is sent electronically to a bank which would or would not fund 1 the consumer. Board Member Howard asked if a check is issued to the consumer at the end, and Mr. Bland replied res Discussion continued between Chairman Autrev and Mr. Bland regarding checks, bills, and transfers Board Member Howard asked if Ace would set a precedent by being in the same shopping center. Mr. Laughlin replied no. He said Ace's CO was issued 12 years ago. There was no evidence that the application was even reviewed by the Planning Department which would have determined the land use. The same CO would have likely not been issued today The staff has also changed from 12 years ago. Many other cities here have plugged Title Max into a similar use, but communities differ and have different policies to interpret ordinances. This argument is irrelevant to the City, of Allen. This administrative decision cannot be made under the ALDC. Another point that was made by the opposing party was on the impact on land use, which Mr Laughlin stated is not what the board is asked to consider, so that is not the focus of this appeal. Another argument made was on the definition Section 104.5 of the Code states that words should be used on "common" language when they are not described. Banks and financial intuitions are more technical terms, and a dictionary cannot define those Mr Bass, in an absence of the definition in the Code, has to look at the state law for the definition. If a use is not classified in the land use chart, then it is prohibited. Mr. Laughlin apologized that the applicant had to go through the previous site where the situation unfortunately did not work. This case, he said, proves that the permit was sent to Planning Board Member Clarkson asked Mr. Laughlin to go over the objective of the case again. Mr. Laughlin clarified that an administrative decision was made to reject the building permit based on an BOARD OF ADJUSTMENT June 2, 2014 PAGE 5 interpretation of the AFDC that the use is not a permitted use within the SC district because it does not fall in anv of the categories according to a statutory or ALDC terms. The board can either believe that the decision was correct or incorrect. A 75% vote would be needed to overturn the Director's decision. Chairman Autrey asked Mr. Bass if Ace Cash Express came to Allen today in 2014, what would the response be. Mr Bass said he would make the same ruling he did for Title Max Normal uses fit cleanly, clearly, and easily into a category — Title Max does not Board Member Clarkson asked if there are other businesses other than Ace of this type in Allen. Mr. Bass stated that there are not. Board Member Clarkson also clarified that this use is neither a bank nor a financial institution, and Mr. Bass agreed. Ms. Schalette again reiterated that the Code has not changed Title Max is an office use and also a financial institution, even though they may not be a bank. Board Member Howard asked if Title Max is considered a retail operation. Ms. Schalette refered to Tab 2, page 10 for a definition of retail — that which sells goods or merchandise for personal or household consumption. Title Max does not sell anything, so it is not retail Chairman Autrey asked if Title Max is a broker between a person and a financial institution to which Ms. Schalette agreed Chairman Autrey and Mr. Bland discussed Title Max being a broker. Mr. Autrey believed they are a 1 broker between someone wanting cash and someone willing to lend cash. Chairman Autre} asked if this type of business could be done online. The reply was no because the vehicle needs to be considered. Chairman Autrey stated there were no letters and closed the public hearing. Motion: Upon a Motion by Vice-Cbair Smith and a Second by Board Member Howard, the Board voted 4 IN FAVOR and 1 OPPOSED to deny the appeal of an Administrative Officer decision/interpretation of Allen Land Development Code, Article IV, Section 4.08.11 — "SC" Shopping Center District and Section 4.20.2 — Schedule of Principal Uses; for an Office use as applied to a proposed use for the Property described as Lot 1 B, Block A, Cottonwood Creek Village #2. The Motion Carried. Discussion Item 1. Discussion of Board Evaluation to Provide Feedback to the Council Nominating Committee Adjournment Motion: Upon a motion by Board Member Howard and a second by Board Member Clarkson, the Board voted 5 IN FAVOR, and 0 OPPOSED to adjourn the meeting at 8:15 p.m. BOARD OF ADJUSTMENT June 2, 2014 PAGE These inu s prepared and filed in the offices of the Allen Board of Adjustment, Sign Control Board, an� ildi g and Standards Commission this 4'" day of June, 2014. Madhuri Kulkarni, Planner Development The m' rtes approve us 3'1 day of �n yeyribc,r^ 2014 ne Autrey,lChamnan Madhun Kulkarni, Planner P