BOARD OF ZONING APPEALS MEETING
JANUARY 20, 2009
7:00 P.M.



I. CALL MEETING TO ORDER

The meeting was called to order at 7:00 p.m.

II. ROLL CALL

Members Present: Robert Diehl, Robert Weidlich, Robert Emerson, Jane Huber, Dave Okum, William Reichert, Randy Danbury


Others Present: Randy Campion, Inspection Supervisor

III. PLEDGE OF ALLEGIANCE

IV. ELECTION OF OFFICERS

By acclamation and a unanimous vote Mr. Okum was accepted as the
Board of Zoning Appeals Chairman for 2009.

By acclamation and a unanimous vote Mr. Weidlich was accepted as the
Board of Zoning Appeals Vice-Chairman for 2009.

By acclamation and a unanimous vote Mrs. Huber was accepted as the
Board of Zoning Appeals Secretary for 2009.

V. MINUTES OF THE REGULAR MEETING OF 16 DECEMBER 2008

Mrs. Huber moved for acceptance of the December 16, 2008 Board of Zoning Appeals Meeting minutes, Mr. Weidlich seconded the motion and with a unanimous vote from all Board of Zoning Appeals Members the December Board of Zoning Appeals minutes were adopted.

VI. CORRESPONDENCE

a. Zoning Bulletin – December 10, 2008
b. Zoning Bulletin – December 25, 2008

VII. REPORT ON COUNCIL

Mr. Danbury gave the report on Council: The first meeting of the year consisted of the appropriation budget.

VIII. REPORT ON PLANNING COMMISSION

Chairman Okum gave the report on Planning Commission: There was one item on the Planning Commission agenda, the request for approval for the Thompson Thrift Development at 11580 Princeton Pike. The item will be continued at a special Planning Commission Meeting that is scheduled for Thursday, January 29, 2009.

IX. CHAIRMAN’S STATEMENT

X. NEW BUSINESS

A. Approval of a variance for 1037 E. Crescentville Road to allow the owner to keep his fence posts to the outside of fence located on the property. Said variance is requested from Section 153.482(C)(4) “All structural supports of any fence shall be erected with such supports on the inside of the area to be enclosed…”

Mr. Bernardo Samaniego came forward: My property faces north on East Crescentville and my backyard fence on the west side of my property was a picket fence and it was actually a fence that belonged to the neighbor’s property; that property is a rental property. I called the owners several times and told him that I wanted to replace the fence and asked if he would want to share the labor and share in the cost and the reply was basically, “No”. In the meantime one of your inspectors inspected the property and made them tear down the fence completely, and the owner of that property did not replace it.
I went to the Building Department and submitted my plans for my fence and they told me they would respond in about a week and I was under time constraints because my son was getting married and I was having a get together at the house and I asked the Building Department if there was anyway we could do it sooner. A lady went behind the desk and reviewed it with one of the inspectors, she came back and verbally told me the plans look good you can go forward with it. I mention this because ignorance of the law is no excuse. I went ahead with my plans and moved the fence toward my property about 10” to insure that I was in my property. I had no idea of the code to have the post inside the property. Due to the slope there was a gap of about 8” from the ground to the bottom of the fence; because I have a small dog I decided to put a footing all along the fence to have more support and to cover that big gap. I had already done that when I got the permit in the mail and saw that the structure supports should be on the inside. If not for the footing it would be very easy to just unclamp it and put it on the other side, but the footing is grabbing about ” of the fence. If I had to change it now I would have to break the footing or I would have to cut the fence all along in order to comply.

(At this time Mr. Campion read the Staff report.)

(Chairman Okum opened the floor to the audience for comments; no one came forward.)

Mrs. Huber: I make a motion to grant a variance from Section 153.482(C)(4) so as to allow a fence to remain with supports on the outside; the property is located at
1037 East Crescentville Road.
Mr. Riechert seconded the motion.

Mrs. Huber: Is there a utility building on that property?

Mr. Samaniego: Yes there is. The fence that was removed was up against that building.

Mr. Weidlich: That footing that you put in, is that a poured concrete?

Mr. Samaniego: Yes.

Mr. Emerson: Does that footer create a puddle effect in your yard?

Mr. Samaniego: Yes, it would: I am going to put a gutter underground with holes in it right along the footer and attach it to the drainage pipe.

Chairman Okum: I see a real practical difficulty and I will be supporting a variance on this tonight. Right now the concrete footing has some symmetry and if you go and jack hammer and chisel it out to get the chain link out of it I think you would have a real nasty mess.

Mr. Reichert: In the backyard, was the fence to the west replaced also?
Mr. Samaniego: No. That is my neighbor's fence and the supporting posts face my property.

Chairman Okum: That was probably put up some time ago. We changed the code five years ago to address the placement of the fence posts.

Mr. Emerson: What if his neighbor wanted to split the cost, what side would you put the chain link on?

Mr. Campion: The support post would face whoever’s property the fence was on.

Mr. Diehl: Do you recall the date you applied for the permit?

Mr. Samaniego: I came in on September 29th.

Mr. Diehl: And when did you start the project?

Mr. Samaniego: September 29th, when they gave me the verbal o.k. I received the permit in the mail on October 4th.

Chairman Okum: There is one thing to consider here that once a variance is granted it stays with it and since the code does call for fence posts to be on the inside, should this gentleman eventually move, if we grant just a blanket variance to allow, I think we need to be specific as to the existing 4’ high chain link fence. If someone does come and want to put up a 6’ high solid fence there someday this variance would be void.

Mr. Reichert: I will make an amendment to the motion that the permission for the post to be on the exterior of the property applies only to the chain link fence and its life existence.
The motion to amend was seconded by Mr. Weidlich.

Mrs. Huber polled the Board on the amendment only and with a unanimous “aye” vote the motion was amended.

Mrs. Huber polled the Board again on the amended motion and with a unanimous “aye” vote the request for the variance was granted.

Mr. Campion: Just as a note, if both property owners came in for a permit to put up a fence they would have permission from the adjacent property owner and they wouldn’t need a variance.

XI. DISCUSSION

Revised Board of Zoning Variance Application

Chairman Okum: We have an application that Staff has provided for us and we have the application from the gentleman that we just reviewed; so we can have a before and after to compare.
On the second page, staff has added, “Section of the Code from which you are seeking a variance”.

I believe that instead of “If no, please explain” in question 2, 3, 5, 6 and 8 we should just have “Please explain”.

On question #1, I would put “Why can the property not yield a reasonable return without a variance? Please explain.” I guess the term “reasonable return” means that the value of your property doesn’t lessen as a result of the variance not being approved; that you are not losing the value of your property without a variance.

Mr. Reichert: Wording it the way you just did, the applicant could not just answer yes or no; they would have to explain.
Mr. Campion: Some of these questions are questions the Board needs to ask itself before it grants a variance. I think questions like the old question #2 that says explain a description why you need a variance is because of things about your lot that makes it different from everybody else.

Chairman Okum: If we could put the current application question #2 back in and say “Please explain why the property would not yield a reasonable return without a variance; I think that sounds a lot better.
I think question #3 (new application) is basically an explanation of reasonable yield, whether there could be a beneficial use to the property.

Mr. Campion: A lot of it depends on what you are reviewing; if you are just talking about a fence or a shed it is not that big of a difference; but if you are talking about whether or not a commercial site can have a parking lot that obviously is a big difference.

Chairman Okum: I think it should say, “Please explain whether you believe the variance requested is not a substantial change to your property, and why.” You are defending yourself that the change that you want to make is not of substantial nature.
Number 5 should say, “Would granting this variance substantially alter the essential character of the neighborhood? Please explain.”
Number 6, in the same way should be changed to say “Please explain”, and not “If no, please explain.”
Number 7, we want to say “Would granting this variance adversely affect the delivery of governmental services (for example: Police & Fire)? Please explain.”

Mr. Campion: I am not sure why they are asking question #8, because ignorance of the law is no excuse.

Chairman Okum: I believe we should get rid of question #8 and #9; those questions are questions for us. Section 153.710, #7 (1, 2, 3, & 4) actually came from a Supreme Court ruling where somebody’s rights were not recognized, that is how Duncan’s Rule became law; Duncan vs. somebody was not given a fair hearing and these items were not taken into consideration, so they became Duncan’s Rules.
I think we should put Section 153.710 with the application.

Mr. Campion: You could put a note on the application that if they want the Section of the code it will be supplied.

Chairman Okum: What I think we should do is have the applicant initial each page that they have read and understand.

XII. DISCUSSION

Mr. Diehl: How many times do the applicants want the permit on the same day?

Mr. Campion: Bill is pretty fast at reviewing and approving applications; a lot of times we catch them putting something up and it is already done.

Chairman Okum: Hamilton County, if it is commercial, they have up to sixteen days before a plan examiner is assigned and that doesn’t mean the permit is issued within sixteen days and then they have four days to respond or issue a permit.

Mr. Campion: I would say on average, everything that is residential he probably turns around within a week.

Mr. Diehl: In this particular case, I think the Building Department did a really good job, the gentleman came in on Monday and got the permit on Friday; and if he would have waited until Friday he would have known about the support poles, my question was do we grant these verbal permits on a regular basis?

Mr. Campion: People kind of hear what they want to hear. We tell them the rules and there are information sheets that list the regulations for several types of permit applications, such as fences, utility sheds, decks, etc., that are handed out with the permit applications.

XIII. ADJOURNMENT

Chairman Okum: So, with that, I’ll accept a motion for adjournment.

Mrs. Huber moved to adjourn and Mr. Emerson seconded the motion, the Board of Zoning Appeals adjourned at 8:44 p.m.

Respectfully submitted,


________________________,2009 ___________________________________
            Chairman Dave Okum



________________________,2009 ___________________________________
            Secretary Jane Huber