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HomeMy WebLinkAboutZ-9196 Staff AnalysisFEBRUARY 27, 2017 ITEM NO.: 5 File No.: Applicant: Address: Description: Zoned: Variance Requested: Justification: Present Use of Property Z-9196 Patrick Ruettiger 4910 Kavanaugh Blvd. (address generating appeal request) East side of Kavanaugh Blvd., north of Cantrell Road C-3 An administrative appeal is requested for interpretation of the zoning ordinance Section 36-298(8)e. The applicant's justification is presented in an attached letter. Restaurant/Commercial Proposed Use of Property: Restaurant with Outdoor Dining/Commercial STAFF REPORT A. Public Works Issues: No Comments. B. Staff Analysis: On May 23, 2016 the Board of Adjustment approved a parking variance in conjunction with a proposed restaurant use at 4910 Kavanaugh Blvd. On November 1, 2016 the applicant for 4910 Kavanaugh Blvd. filed a second parking variance request to allow an outdoor dining area for the restaurant use. The outdoor dining area is proposed to be 408 square feet in area and located on the front (southwest corner of the building), between the building and Kavanaugh Blvd. According to Section 36-298(8) of the City's Zoning Ordinance, the regulations for outdoor dining in commercial zoning is as follows: "(8) Eating places (inside, with drive-in service and without drive-in service) shall be permitted to have an area of outdoor dining subject to compliance with the following provisions: a. The area of outdoor dining shall not be located in the public right-of-way nor shall it obstruct pedestrian movement, fire lanes, access to any business or areas designated for access by the physically impaired. b. The number of seats in the area of outdoor dining shall not exceed fifty (50) percent of the number of seats within the eating place. FEBRUARY 27, 2017 ITEM NO.: 5 (CON'T. c. On-site parking shall be provided for the area of outdoor dining based on the parking space per square foot requirement for restaurants established in Section 36-502. d. Compliance with applicable state and county health regulations. e. The area of outdoor dining shall not be located between the building occupied by the eating place and adjacent residentially zoned or used properties. Z-9196 This subsection shall not be deemed to permit signage or structural alterations such as canopies or walls regulated elsewhere in this chapter." Since this section of the ordinance was adopted by Ordinance No. 18,902 on July 15, 2003, staff has applied the requirements to numerous properties which have restaurants with outdoor dining. With respect to paragraph e. of the requirements, staff has never applied the term "adjacent" to mean across a public right-of-way. Staff has applied the term "adjacent" to be a property sharing a property line with a subject property. At the time the ordinance requirements were adopted for outdoor dining, the term "abutting" was, and still is, a defined term in the Zoning Ordinance, Section 36-2, and reads as follows: "Abutting means having property or district lines in common. Since zoning district lines fall to the center- line of a street, alley or waterways, lots which appear physically separated abut at the district line." The term "abutting" as defined by the ordinance refers to properties sharing a property line or district line (zoning line). Sharing a district line includes properties across public rights-of-way from one another. At the time Section 36-298(e) was adopted it was determined not to use the term "abutting", but instead the term "adjacent", which was not, and still is not, a defined term in the zoning ordinance. Patrick Ruettiger, representative of Alex Rogers (owner of 4911 Kavanaugh Blvd.), is appealing staff's application of the zoning ordinance with respect to Section 36- 298(8)(e), specifically with the term "adjacent." Mr. Ruettiger contends that the term "adjacent" should be interpreted to include properties across a public right-of-way from each other. Please see Mr. Ruettiger's attached six (6) page document for a complete explanation of his appeal/interpretation. The Board of Adjustment is asked to determine if the Planning Staffs application of the term "adjacent" with respect to Section 36-298(8)(e) of the City's Zoning Ordinance is correct. 2 FEBRUARY 27, 2017 ITEM NO. - 5 (CON'T. BOARD OF ADJUSTMENT (February 27, 2017) -9196 Patrick Ruettiger was present, representing the application. Staff briefly introduced the appeal issue. Patrick Ruettiger addressed the Board in support of the requested appeal. He explained that the definition of the term "adjacent" should include across a right-of-way. He referenced the term "abutting" as found in Chapter 36 of the Code. He noted that the definition of "adjacent" should be broader. He referenced the Capitol Zoning Code with respect to notification requirements. Staff addressed the Board with respect to the appeal. Staff noted that since Section 36- 298(8)(e) of the Code was adopted in 2003 the word "adjacent" has been interpreted to not include a property across a right-of-way from another, but to be only properties that touch along property lines. Staff further explained how definition of the term "adjacent" has been interpreted, and that the interpretation has been consistently applied for almost 14 years. Debra Weldon, City Attorney, addressed the Board and provided a memo dated February 27, 2017 addressing the appeal issue. She briefly reviewed the memo with the Board. Mr. Ruettiger again referenced the Capitol Zoning notification requirements. He noted the term "nearby" with respect to the term "adjacent" would be difficult to interpret and interpretation could be arbitrary. He stated that he could see the term "adjacent" defined more than one (1) way. There was additional discussion regarding the definition of the term "adjacent". There was also discussion regarding legislative intent of the code. Frank Allison made a motion to defer the application. The issue was discussed. Mr. Allison withdrew his motion. The issue of rendering properties nonconforming was discussed. There was a motion to approve the appeal as requested. The motion failed by a vote of 2 ayes, 3 nays and 0 absent. The appeal was denied.