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2010 02 11 WS Minutes, Joint - CC- ULDC and PZMINUTES OF THE REGULAR WORK SESSION OF THE CITY COUNCIL OF THE CITY OF BAYTOWN February 11, 2010 The City Council, ULDC Task Force and Planning and Zoning Commission of the City of Baytown, Texas, met in a Joint Work Session with the on Thursday, February 11, 2010 at 4:35 P.M. in the Tejas Room of the Baytown Community Center, 2407 Market Street, Baytown, Texas with the following in attendance: Lena Yepez Lynn Caskey Brandon Capetillo Terry Sain David McCartney Scott Sheley Stephen DonCarlos Council Member Council Member Council Member Council Member Council Member Council Member Mayor Claire Sinclair Board Member James Haarmeyer Board Member Robert Kelley Board Member Spencer Carnes Chairman Shawn McDonald Commissioner Gil Chambers Commissioner Rolando Valdez Commissioner Brandon Benoit Commissioner Linda Krishner Commissioner Garrison C. Brumback City Manager Bob Leiper Deputy City Manager Kevin Troller Assistant City Manager Ignacio Ramirez City Attorney Leticia Garza City Clerk Keith Dougherty Sergeant at Arms Mayor DonCarlos convened the February 11, 2010, Regular Work Session of the City Council, ULDC Task Force, and Planning and Zoning Commission with a quorum present at 4:35 P.M. Page 2 of 9 Minutes of the February 11, 2010 City Council Work Session 1. DISCUSSION a. Joint Work Session with Planning and Zoning Commission and the Citizens Task Force - Planning and Development Services. In 2005 the City of Baytown decided to pursue the preparation of a Unified Land Development Code and a draft plan was presented to the City by a consultant in November 2006 that was rejected. In June 2008, a new staff draft and outline was prepared, which was more responsive to Baytown and the Council's needs. In October 2008, the City Council appointed a Citizen Task Force to seek public input on the proposed Unified Land Development Code and to propose a zoning chapter for the Unified Development Code. The Citizen Task Force first met on January 15, 2009 and held numerous meetings during 2009, which has resulted in a partial draft of a zoning chapter to the Unified Land Development Code. The Planning and Zoning Commission held Work Sessions on January 20, 2010 and January 27, 2010 to discuss the partial draft of the Commercial Zoning Section of the Unified Development Code with the Citizen Task Force. Mayor DonCarlos opened the meeting by extending thanks to the ULDC Task Force, Planning and Zoning Commission and staff for their hard work and dedication on the Unified Land Development Code, and stated that the purpose of the joint meeting is for the two (2) Boards and Council to review and provide direction for the draft commercial zoning chapter. Mr. Spencer Carnes, ULDC Chairman, gave an overview of the draft document and stated that the Task Force was charged with three (3) main goals when working with the Unified Land Development Code and they are: (1) to attract new businesses, (2) to protect existing businesses and (3) create flexibility in zoning requirements. Mr. Carnes also stated that the Task Force has approached their tasks into three (3) phases and they are: (1) to complete the commercial zoning chapter, which is completed with the exception of the design standards and is being presented this evening, (2) to complete the residential zoning, and lastly (3) to complete the non - conforming zoning. Mr. Carnes reviewed the Commercial Zoning categories, and stated that the districts are intended to be implemented and correspond to the comprehensive plan future land use map designations and descriptions, the proposed districts are: EMU: Existing Mixed Use A category intended to accommodate uses that are zoned MU (mixed use) as of the adoption date of this ordinance and which are an allowed use in the EMU section of Table 1 herein at the time of the adoption of this ordinance. Mr. Carnes stated that it is important to note, that after the adoption of this Code, there will be no more new MU (mixed use) area in the City, only the existing will be permitted. Page 3 of 9 Minutes of the February 11, 2010 City Council Work Session CN: Commercial Neighborhood The Commercial Neighborhood District is intended to accommodate MU (mixed use) development and commercial uses appropriate for a residential neighborhood. The provision of neighborhood residential improves traffic, and provides the option of pedestrian activity from dwelling units to the neighborhood commercial uses. LC: Livable Center A category intended to accommodate a planned in advance MU (mixed use) center, which is either vertically or horizontally integrated and includes a planned variety of living, working and entertainment options. Mr. Carnes stated that this is a new district that is for all intents and purposes a regulated mixed use area that has horizontal and vertical integration and a variety of living, working and entertainment in one area. (Models the Livable Centers concept set forth by the Houston - Galveston Area Council.) GC: General Commercial The General Commercial District is intended to provide a location of a variety of uses including offices, retail, residential and related uses that are mixed within buildings either vertically and/or horizontally which are planned as a unit. The GC district may be appropriate adjacent to most residential uses, and as a transition between residential areas and commercial areas. The GC district may be used as a transitional district between more intensive nonresidential districts and residential districts or as the primary district for "downtown" or near Lee College. It may accommodate some heavy commercial and light industrial uses that currently exist in the original MU district. LI: Light Industrial The Light Industrial District is intended to provide a location for low- intensity manufacturing and industrial activities that may generate some nuisances. Traffic generation will likely include heavy vehicles, making access to a minor or principal arterial or a freeway necessary. HI: Heavy Industrial The Heavy Industrial District is intended to provide a location for manufacturing and industrial activities that may generate nuisances. Industrial uses are not appropriate adjacent to any residential uses. Traffic generation will likely include heavy vehicles, making access to a minor or principal arterial or a freeway necessary. Unless separated by a principal arterial, the HI District is not appropriate adjacent to any residential district. Mr. Carnes stated that the overlay districts were not displayed in the document but will be included in the Development Code in order to create areas, such as the Highway 146 or Texas Avenue corridors that will overlap commercial zoning, but will require more lax or Page 4 of 9 Minutes of the February 11, 2010 City Council Work Session special design standards, such as the parking standards in older areas of Baytown and Texas Avenue. The Boards and Council discussed the non - conforming and possibly illegal businesses in the Light Industry District and how they would be impacted through the new Development Code. Mr. Carnes stated that this concern was actually a legal one that has been discussed with staff, and they believe this issue has been handled in the non- conforming ordinance that will be discussed separately. Ms. Carpenter stated that she would comment on the item during the staff comment period after Mr. Carnes presentation. Mr. Gil Chambers, Planning and Zoning Commissioner stated that the document being presented was a work in progress and that many of the items in the document still required a lot of work and clarification. Mr. Carnes then presented Table I for Commercial Uses and explained that in this table "P" means Permitted Use. "PC" means Permitted Use with Conditions as set forth in Table 2. Conditions, where neither a "P" nor a "PC" exists in the table, the use is prohibited. Mr. Carnes presented Table 3 for Property Development Standards for Commercial Uses, which outlines the lot size, setbacks, maximum height structures, lot coverage and specific notes for each district in the commercial zones. The Council and Boards reviewed and discussed Table 1, 2 and 3, the following recommendations were stated: (1) that the overlay district be an addendum to Table 1; (2) that the duplicated gas station with mini mart use be corrected to show gas station with limited eating establishments, (3) that the Warehouse and Freight Movement District (LSC) be removed; and (4) a definition for contractors and general contractors for building heating and plumbing is needed in Table 3. Mr. Carnes states that Non - conforming purpose and intent of this section is to set minimum requirements, standards and conditions for approving proposed changes to non- conforming uses and non - conforming structures. Ms. Carpenter, in an attempt to clarify a question from Commissioner McDonald regarding the legality of non - conforming structures in the Light Industrial District, stated that on December 13, 2007, at the time that the Council adopted the light industrial zoning, there was an illegal light industrial use in a mixed use zone MU then the when the new Development Code is put into place they would continue to be an illegal non- conforming use versus a legal non - conforming use that was allowed in the MU prior to the adoption of the Development Code. Non - conforming uses are either legal non- conforming or illegal non - conforming; this nomenclature is used in order to ensure that the City is not allowing an illegal non - conforming use that was not allowed under the prior zoning to become a legal non - conforming use after the adoption of the new ordinance. Ms. Carpenter stated that this language still requires clarification and will be further worked on by the staff. Page 5 of 9 Minutes of the February 11, 2010 City Council Work Session Mr. Carnes read the definitions for non - conforming use, structures, conditions and destruction, and they are: (a) Non - conforming, use: A land use in existence prior to one or more of the following dates: 1. The date of adoption of the original zoning code, July 27, 1995; 2. The date of adoption of applicable amendments to the zoning code, December 13, 2007; or 3. A use which becomes nonconforming when new zoning regulations are adopted by Council and was a legal non - conforming use on the property as it was zoned on July 27, 1995, December 13, 2007, or a subsequent adoption date of amendments to this code, and which is not now listed as a permitted use in the zoning category currently applied to the property; and/or 4. A use with a non - conforming use certificate issued by the City of Baytown. (b) Non - conforming structure: A structure in existence prior to one or more of the following dates: 1. The date of adoption of the original zoning code, July 27, 1995; 2. The date of adoption of applicable amendments to the zoning code, December 13, 2007; 3. A structure which becomes non - conforming upon Council adoption of Zoning Code amendments and was a legal non - conforming structure on the property as it was zoned on July 27, 1995, December 13, 2007, or a subsequent adoption date of amendments to this code, and which is now subject to setbacks, height or other building envelope regulations that it does not now meet; and/or 4. A structure with a non - conforming certificate issued by the City of Baytown. (c) Conditions: a set of standards with which a property owner must comply in order to obtain any land development permit for a non - conforming use or a non- conforming structure. (d) Destroyed: any structure which, upon determination by the City, is 50 percent or more reduced to useless fragments, a useless form, or remains, as burning, or dissolving; injured beyond repair or renewal. It also means a structure which has been rendered ineffective or useless. Any use which is located in such structure has thereby also been rendered ineffective or useless on the lot that it currently occupies. Mayor Don Carlos posed the question to Council and staff whether they are conformable that the new definitions of non - conforming structures allowed the Council to have more control in determining what a non - conforming structure is. Ms. Carpenter stated in Page 6 of 9 Minutes of the February 11, 2010 City Council Work Session response to Mayor DonCarlos questions, that the new definitions did not give Council or staff more control over deciding what is a non - conforming structure and instead guided attendees to review Section 130 -132, Appraisal Process on page 12 of the handout that outlines how to identify the destroyed portion of a structure; the excerpt reads: Section 130 -192. Appraisal Process (a) The finding of 50 percent of more destroyed is determined as follows: (1) Using the most current Harris County Appraisal District (HCAD) tax roll, the value of the non - conforming structure is established; or (2) The owner may propose to substitute a current appraisal of the non- conforming building (before it was destroyed) prepared by an appraiser satisfactory to the City of Baytown. a. In cases where the appraiser proposes a value for the non- conforming structure that is 25 percent or more higher than the HCAD valuation, then the city shall cause another appraisal to be done on the property for which the owner shall pay; and b. The City shall accept the value of the second appraisal. The Council and Boards discussed the appraisal process and criteria to determine when a structure can be destroyed. Ms. Carpenter, in response to questions regarding the percentage number and whether 50% was too low, stated that if a nationwide survey of cities was done regarding the percentage used to determine whether a structure is destroyed, that 50% would be the norm, even though there are some cities such as New Braunfels that have gone to 75% that is an anomaly and not the norm. Council and Boards also discussed whether to have the 50% or more destroyed amount, or the 50% or more with an override clause allowing Council to override the 50% to a percent deemed necessary pending circumstance. City Manager, Mr. Garry Brumback stated that Council can place the 50% threshold and use the appeal process in place as an option and allow Council under unique and/or catastrophic circumstances, such as a hurricane, to override the 50% and raise the percentage to 75 %, and direct staff to deal with anything under a certain percentage. Mr. Brumback asked Council and Boards to consider the negative side to some of the blanket options presented, and cautions that in our attempts to protect old structures that are of benefit to the community that we ensure that those structures are not to the City' standards and of no benefit to the community not allowed to stay. The Mayor requested that the staff review more flexibility to the percentage, the replacement cost, and the insurance of the standard to this section. Page 7 of 9 Minutes of the February It, 2010 City Council Work Session At 5:28 P.M., Mayor DonCarlos recessed the open meeting for break. At 5:32 P.M., Mayor DonCarlos reconvened the open meeting. Mr. Carnes then presented the item of abandonment for discussion and stated that abandonment is defined as: (e) Abandonment: to stop the use of land or structure intentionally. When the use of a property has ceased and the property has been vacant for 12 months, abandonment of use is presumed unless the owner can show that a diligent effort has been made to sell, rent or use the property for a legally permissible use. (May need to tie to our abandoned building ordinance.) Council Member McCartney stated if the term renovate can be added to the definition to cover those properties that are being renovated and efforts are being made to actively fix; Ms. Carpenter stated that there is value to the comment and will consider options for Council. Mr. Carnes then stated that the last item for discussion is the Zoning Board of Adjustment (ZBA). There are two (2) types of variances allowed: (1) is Director authorized and the (2) is Board authorized. 130 -XXXX. Variances A. Director Authorized. The director may grant a variance to the provisions of this chapter pertaining to the non - conforming status of a use or structure where the application meets the conditions set forth in this section, the standards set forth in section 130 —xxx, and the purpose and intent of this section. Any application for such an administrative variance shall be accompanied by a site plan, drawn to scale that accurately depicts the existing conditions and the proposed conditions (e.g., locations and size of all structures, including driveways, fences, berms, buffer landscaping, signs and paved areas). Ms. Carpenter stated that at this time, staff does not have any authority in granting variances to non - conforming structures. Adding a director (staff) authorized variance for up to 10% in any one year and 15% overall is a significant change in the Code. This will speed up the process for a number of people that have small requests as it relates to their variance and 10% seems to be enough. Mr. Carnes, in response to a question from Council Member McCartney regarding the "red box" in properties, stated that variances will be granted to those that stay within the foot print of the original home, i.e. they replace the roof, but not make a change to add square footage. Page 8 of 9 Minutes of the February 11, 2010 City Council Work Session Mr. James Haarmeyer, ULDC Task Force Board Member, read verbiage that is to be added to the definitions section of the Variance, but was not included in the handout that read as follows: Conditions: A set of standards with which a property owner must comply in order to obtain a building permit for non - conforming use structures, this does not apply to permits that are for improvement, maintenance or repair for any part of the structures that are inside the foot print or do not increase height or footprint of the structure existing at the time of the adoption of the ordinance. Mr. Spencer noted two (2) points number under the Director authorized variance procedures and they are: (3) Re- construction of a non - conforming structure that has been 50 percent or more destroyed, or resumption of a previously abandoned legal non- conforming use only upon finding that the failure to grant the variance deprives the property owner of substantially all use or economic value of the land. It shall be the applicant's responsibility to demonstrate to the Director that failure to grant a variance will deprive them of substantially all use or economic value of their property. (4) Reconstruction and occupancy of a non - conforming structure, or a structure containing a non - conforming use and/or the restoration of a building site that is non - conforming as to development standards (including, but not limited to, parking, building envelope, landscaping, site design standards), when a structure has been damaged by fire, flood or other calamity to the extent of more than 50 percent of the replacement of the building or structure at the time such damage occurred. Such action by the Director shall address the public welfare, character of the area surrounding such structure, the conservation, preservation and protection of property including the applicant's property, as well as all plans adopted by the Council and that affect or cover the area in which the land is located. B. Board Authorized. Variances may be granted by the Zoning Board of Adjustment (ZBA) in granting variances under this subsection, the zoning board of adjustments may impose such conditions as are necessary to protect adjacent property owners, the character of the neighborhood in which the non - conforming use or structure is located, and to ensure the public health, safety and general welfare, including but not limited to, conditions specifying the period during which the non - conforming use may continue to operate or exist before being brought into conformance with the standards of this chapter. Page 9 of 9 Minutes of the February 11, 2010 City Council Work Session Ms. Carpenter stated, in response to a question from Council Member McCartney regarding what happens to an appeal once the ZBA Board has made a decision, and if an appeal process can be added to include Council before it goes to the Courts currently once the Board has made a decision on an appeal it does not go to Council, but instead goes directly to the Courts. Ms. Carpenter believes this is written in state statutes, and an appeal process to the Council can not be added, but stated that staff and legal will review that option and respond back to Council. Ms. Carpenter stated that regardless of what Council adopted, staff recommended that a requirement be added to the ordinance for a quarterly or 6 month review by Planning and Zoning with recommendations to Council for their approval of the code, to show a living and breathing document and not set in stone. Secondly, there is still a lot of work that needs to be done on this document; the staff has a number of concerns with the non- conforming section of this document; such as, reviewing the definitions and understandings of non - conforming use and a concern that a use ordinance may not be legally feasible. The last concern is that a lot of chapters in the existing code have an effect on commercial codes, and they all have to be placed back into the code and "meshed"; such as places of assembly, salvage yards, peddler's permits, etc. Ms. Carpenter stated that the mapping part of the Development Code is significantly more difficult than writing the code. There is still a lot of hard work left to be done. Mayor DonCarlos recommended taking one month and setting a joint work session for the first meeting in March to present Council with a progress report on the process and feedback on the concerns presented to staff as it relates to this document. 2. ADJOURN Mayor DonCarlos adjourned the February 11, 2010, Regular Work Session of the City Council at 6:10 P.M.