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HomeMy WebLinkAbout08-13-01 ZBA MinTOWN OF WESTLAKE, TEXAS MINUTES OF THE MEETING OF THE ZONING BOARD OF ADJUSTMENT August 1.3, 2001 Don Redding, Member Bill Frey, Member Larry Sparrow, Member Buddy Brown, Member Trent Petty, Town Manager Matthew Boyle, Town Attorney Ginger Crosswy, Town Secretary Absent: Fred Held, Member Item # 1: Mr. Redding called the meeting to order at 6:45 p.m. by announcing a quorum. Page 1 of 2 Item #2: Conduct a staff presentation followed by a Public Hearing to consider an application for a variance regarding tennis court setbacks filed by Kevin and Janet Pollari for the property located at 1833 and 1835 Broken Bend. Mr. Petty, the Town Manager explained this item to the Board. The Public Hearing was opened at 6:47 p.m. Mr. Pollari, the owner and Mr. Scott Simmons, the builder spoke to the Board and answered questions. Mr. Tom Pritchett was present representing Mr. Randal Reed who owns the property next door. Mr. Pritchett stated that Mr. Reed approves of this variance. The Public Hearing was closed at 6:52 p.m. Mr. Boyle, the Town Attorney, clari Pied the law as to approval of this item. There was a motion by Mr. Frey, seconded by Mr. Sparrow, to approve this variance upon finding that in the effort to save mature trees this constitutes a hardship on the owner. There was no discussion and the motion carried unanimously. Item #3: Consider terminating the legal non -conforming use of Kennel Kare, Inc., located at 2205 Pearson Lane. Mr. Boyle, the Town Attorney, updated the Board as to the progress on this item. Mr. Boyle entered into the record the Subpoena Duces Tecum and Interrogatories and the letter dated August 6, 2001 that Mr. Boyle received from Ronald D. Gray of Geary, Porter & Donovan regarding the same. There was a motion made by Mr. Sparrow, seconded by Mr. Frey, -:o establish a meeting date of Oct. 22, 2001, to terminate the legal non -conforming use of Kennel Kare, Inc., located at 2205 Pearson Lane. There was no and the motion carried unanimously. There was a motion by Mr. Sparrow, seconded by Mr. r ; , to ask Nis Sherry Gray to attend this meeting. There was no discussion and the motion carried unal.11mously. Item. #4: Motion by Mr. Sparrow, seconded by Mr. Brown, to adjourn. The motic n car ~i ,d unanimously and the meeting adjourned at 7:04 p.m.__- Don Redding, Chairman ATTEST: dinger"CFOsswy, Town Saretary http://w",w.westlake-tx.org/agendas/zbamO81:) Ol .htm 09/25/2001 RONALD D. GRAY DuREcT DIAL Nu.B©t: (972)349-2210 GEARY, PORTER & DONOVAN A PROFESSIONAL CORPORATION ATTORNEYS AND COUNSELORS ONE BENT TREE TO WER 16475 DALLAS PARKWAY, SUITE 500 ADDISON, TEXAS 75001.6837 (972) 931-9901 FACSIIvI LE (972) 931-9208 August 6, 2001 VIA CERTIFIED MAIL No. 7106 45751294 0863 2343 RETURN RECEIPT REQUESTED Matthew C.G. Boyle Assistant Town Attorney, Town of Westlake 4201 Wingren Suite 108 Irving, Texas 75062 Re: Subpoena Duces Tecum and Interrogatories — Sherry Gray Dear Mr. Boyle: POST OFFICE BOX 700248 DALLAS, TEXAS 75370-0248 This law firm represents Sherry Gray in connection with a Subpoena Duces Tecum and Interrogatories issued from your office on or about July 5, 2001. Please be aware that Ms. Gray considers such Subpoena Duces Tecum and Interrogatories to be void, invalid, and unenforceable for the following reasons. 1. The subpoena purports to have the witness produce documents and respond to interrogatories on a date that is different from the date on which the witness is to appear. We are aware of no law providing for a subpoena to be applicable for two different actions on two different dates. 2. The subpoena purports to require the witness provide sworn responses to certain interrogatories. We are aware of no law providing for interrogatories to be served upon a prospective witness via subpoena or to require response to interrogatories outside of litigation. 3. The subpoena purports to compel the production of documents by the witness. We are aware of no authority of the assistant town attorney of the Town of Westlake, the issuer of the subpoena, to compel production of any documents. 4. The subpoena purports to compel responses to interrogatories. We are aware of no authority of the assistant town attorney of the Town of Westlake, the issuer of the subpoena, to compel responses to interrogatories. Matthew Boyle August 6, 2001 Page 2 5. The subpoena purports to compel the witness to appear for an administrative hearing. We are aware of no authority of the assistant town attorney of the Town of Westlake, the issuer of the subpoena, to compel the attendance of any witness. 6. We are also not aware of any ordinance or resolution that actually appoints any person to a position of assistant town attorney of the Town of Westlake. It is our understanding that an ordinance was adopted to appoint a town attorney, but that person is not the issuer ofthe subpoena. 7. The correspondence attached to the subpoena indicates that the Board ofAdjustment of the Town of Westlake directed the "dispatch" of the subpoena. However, pursuant to the provisions of Westlake's Unified Development Code, only the chairman of the Board of Adjustment has any authority to compel the attendance of witnesses. The chairman is not the issuer of the subpoena. 8. Additionally, the chairman's only authority is to compel attendance of witnesses. He or she has no authority to compel the production of any documents. 9. Also, the chairman has no authority to compel responses to interrogatories. 10. Even if the subpoena were issued by the chairman, we would question whether the authority to compel attendance of witnesses would extend to non-residents of the Town of Westlake, such as Ms. Gray. 11. The subpoena indicates that it relates to a hearing "concerning the nonconforming use located at 2205 North Pearson Lane." Ms. Gray is not aware of any "nonconforming use" at such location, since such location is not within the corporate limits of the Town of Westlake. As such the Board of Adjustment has no authority to consider any use at 2205 North Pearson Lane. 12. The subpoena indicates that the use of the property became nonconforming in 1996. However, Ms. Gray is not aware of any action occurring in 1996 that would have made her use nonconforming. 13. Even ifMs. Gray were required to respond to the subpoena, the documents requested are overbroad and irrelevant to any issue involving amortization of a nonconforming use. The subpoena seeks documents relating to leases, income and other statements for all years of operation, etc. Relevant documentation would instead consist of total investment expenses as of the date of any a nonconforming use and net income statements for operations since such date. 14. Among the requested information is a request for "the estimated cost to demolish the structure." Presumably, this means the structure located at 2205 North Pearson Lane. However, included at this address is Ms. Gray's home. We are aware of no basis for the Town of Westlake to cause the demolition or non-use of Ms. Gray's home. Matthew Boyle August 6, 2001 Page 3 15. Because Ms. Gray's property is not in the city limits of the Town of Westlake, it is not subject to the zoning laws of Westlake or any authority of the Board of Adjustment of the Town of Westlake. 16. Ms. Gray has indicated that no witness fee was served with the subpoena, thus making such subpoena unenforceable. 17. Any hearing by the Board of Adjustment concerning the use of Ms. Gray's property would be a violation of her constitutional rights. As you are no doubt aware, constitutional due process requires that a hearing be held prior to any governmental action against a property owner that would deprive that owner of a use of their property. Due process requires that the hearing be conducted before an unbiased authority. Litigation is currently pending between Ms. Gray and the Town of Westlake, with such litigation initiated by the Town. When Ms. Gray originally filed her lawsuit, she did not include the Town of Westlake as a party or make any claims against the Town. However, the Town voluntarily intervened in the lawsuit to raise certain claims against Ms. Gray and her business operations. That lawsuit is still pending. The efforts by the Board of Adjustment, which is also the Board of Aldermen, to question Ms. Gray's property use through an administrative procedure is clearly an illegal attempt by biased and prejudiced governmental officials to seek an advantage in such pending litigation. Based on previous matters involving its mayor and previous aldermen's efforts to remove the mayor, the Town of Westlake should be aware of the due process requirement of a non -biased judiciary. Any attempt by the Board of Aldermen to affect the property rights of Ms. Gray would be without due process. RDG/corn cc: Sherry Gray Joseph W. Geary Amy Reilly Very truly yours, GEARY, PORTER & DONOVAN A Professional Corporation By: onald ID..Grayy GASHARED\CLIENTS11575\ 3744ZSUBP0ENA.LTR C SUBPOENA DUCES TECUM AND INTERROGATORIES THE STATE OF TEXAS § ZONING BOARD OF ADJUSTMENT COUNTY OF TARRANT § TOWN OF WESTLAKE, TEXAS TO ANY PEACE OFFICER OF THE COUNTY OF TARRANT OR THE TOWN OF WESTLAKE, TEXAS: YOU ARE HEREBY COMMANDED TO SUMMON: Ms. Sherry GraX Who may be found at: 2205 North Pearson Lane Westlake, Texas to appear before the ZONING BOARD OF ADJUSTMENT of the Town of Westlake, Texas, in Town Hall, 3 Village Circle, Suite 207, Westlake, Texas, on August 13, 2001, at 6:30 p.m., and testify as a witness in ZBA Case No. 01-01, concerning the nonconforming use located at 2205 North Pearson Lane, Westlake, Texas 75234. TO THE PERSON SUMMONED: You are commanded to supply copies of the following documents. Do not supply originals, as the document cannot be returned to you. The requested documents and your sworn responses to the attached interrogatories must be returned no later than August 7, 2001, to Matthew C. G. Boyle, Assistant Town Attorney, 4201 Wingren, Suite 108, Irving, Texas 75062. The Board of Adjustment is required by law to set a compliance date for this nonconforming use. Failure to respond to this subpoena will not result in postponement or cancellation of the compliance hearing. It is in your best interest to respond fully to this subpoena -duces tecum and interrogatories. If you have questions, please call Matthew Boyle, Assistant Town Attorney, at (972)650-7104. 1. Any documents you wish the Board of Adjustment to consider in determining the amount of time needed for your to recoup any actual investment in the use prior to the time the use became nonconforming in 1996. 2. The deed or other document indicating ownership of the property at 2205 North Pearson Lane. 3. The current lease(s) for the property at 2205 North Pearson Lane. 4. Income statements for the use for each year the use has been in operation for Sherry Gray and Kennel Kare, Incorporated. 5. Year-end balance sheets for each year the use has been in operation. 6. Federal income tax returns for each year the use has been in operation, including the tax returns for Sherry Gray and Kennel Kare, Incorporated. 7. Any documents indicating the present book value of all assets on the property at 2205 North Pearson Lane or related to the use. 8. Any depreciation schedules for all assets, indicating the depreciation method used. 9. Any documents indicating the original purchase price or investment in the use. 10. Any documents indicating the current book value of inventory and fixtures. 11. Any documents indicating any estimated costs to close or relocate the use. 12. Any documents indicating the estimated cost to demolish the structure. GIVEN UNDER MY HAND OFFICIALLY THIS S N 'S day of ;� .,►i.i , 2001. ATTEST: BY:U) - Matthew C. G. Boyle Assistant City Attorney OFFICER'S RETURN OF SUBPOENA I certify and return that I executed this subpoena duces tecum and interrogatories by delivering a copy to the named witness at 2205 North Pearson Lane, on this day of June, 2001. Town of Westlake, Texas ACCEPTANCE BY WITNESS I certify that I have received this subpoena duces tecum and interrogatories. Sherry Gray