BOARD OF ZONING APPEALS MEETING MINUTES

18 FEBRUARY 2003

7:00 P.M.

  1. CALL MEETING TO ORDER
  2. The meeting was called to order at 7:05 p.m. by Chairman David Okum.

  3. ROLL CALL
  4. Members Present: Robert Apke, Fred Borden, Marge Pollitt,

    James Squires, Robert Weidlich, Jane

    Huber and David Okum.

    Others Present Bill McErlane, Building Official

    Greg Dale, City Planner

  5. PLEDGE OF ALLEGIANCE
  6. MINUTES OF REGULAR MEETING OF 21 JANUARY 2003
  7. Mr. Squires moved to adopt and Mrs. Huber seconded the motion. By voice mail, all voted aye, and the Minutes were approved unanimously.

  8. CORRESPONDENCE
    1. Zoning Bulletin Ė January 10, 2003
    2. Zoning Bulletin Ė January 25, 2003
    3. Guidelines Ė Board of Zoning Appeals
  1. REPORTS
    1. Report on Council Activities Ė Jim Squires Ė no report
    2. Report on Planning Commission Ė David Okum

Planning reelected their officers and considered CVS, 11601 Springfield Pike Final PUD Development Plan. After some discussion, the applicant requested that this be tabled. They were able to arrange a connection between the Bingís property and the little mall and they had other items that needed to be resolved. One was a proposed off-premise sign, which would come to our board if Planning referred it. We also considered an amendment to the Zoning Code that we approved and referred to Council and we approved a Pear Street dedication plat.

Mr. Squires asked about the proposed housing at GEEAA Park.

Mr. McErlane reported that came before Planning in November as a concept discussion, and we have had a few discussions with the developer since then, but havenít seen any new application.

Mr. Squires asked the status of the United Dairy Farmer project, wondering about its status with State EPA. Mr. McErlane responded I am not privy to the EPA issue, but I thought they had satisfied EPA with respect to whatever remediation was going to occur on that property. I havenít heard anything on that, but I havenít seen a permit application either.

 

 

 

BOARD OF ZONING APPEALS MEETING MINUTES

18 FEBRUARY 2003

PAGE TWO

  1. CHAIRMANíS STATEMENT AND SWEARING IN OF APPLICANTS
  2. OLD BUSINESS
  3. NEW BUSINESS
    1. William & Lori Merz, 396 Naylor Court request variance to allow the construction of a 12í x 15í one-story kitchen addition to the back of their home. Said variance is requested from Section 153.072(A) ".shall have a minimum rear yard setback of 40 feet."

Mr. Merz said we wanted to add on to the back of our house. We are on a corner lot, and there is not that much room in the back yard, about 30 feet. Between our house and the neighborís is an empty lot with a pool on it, so there is plenty of room and I wonít be interfering with his property at all. Our kitchen is quite small, and we want to expand out as far as our patio is now. I gave you a sketch of what I think it will look like.

Mr. Okum opened the public hearing. No one came forward, and he closed the public hearing.

Mr. McErlane reported that the addition he wants to construct would place it 15 feet from the rear property line. Right now the building is a legal non-conforming use because the rear yard setback requirement in 1964 when it was constructed was 30 feet. Subsequent to that, the City revised the Zoning Code to require 40 feet. There is a covered patio roof over the top of an existing 15í x 15í patio. Under todayís Zoning Code, you can have an open roof porch and allow it to project half way into your rear yard, which would be 20 feet from the property line under todayís code.

Mr. Squires said the applicant has indicated that there is an empty lot to the rear. If a home were to be built on that lot, could it conform to the 40-foot rear yard setback? Mr. McErlane responded that if a house were built on that lot, that setback would only be 10 feet, because it is a side yard. Their rear yard would be to the east of that lot. Mr. Squires said so their options are relatively limited. Mr. McErlane responded yes. The only location where they could build an addition and meet the Zoning Code requirements would be on the garage side of the house, which is not the most conducive place to put an addition.

Addressing the applicant, Mr. Okum said you have indicated that you intend on using brick on the garage side of the addition and siding on the upper portion. Would the brick be on all three sides? Mr. Merz indicated that it would be, to match as closely as possible the present brick. Mr. Okum said if that were a condition of the variance, would you have a problem with it? Mr. Merz answered no, Iím going to insist on it matching. We donít want the addition to stick out like an addition. We were told that brick costs a lot more to build with, but thatís what we want.

Mr. Okum responded that the reason I would encourage that is because that addition would become almost a front yard exposure to Cameron Road.

 

 

BOARD OF ZONING APPEALS MEETING MINUTES

18 FEBRUARY 2003

PAGE THREE

IX A KITCHEN ADDITION AT 396 NAYLOR COURT Ė continued

Mr. Okum said I would recommend to the board that if there is a motion brought forward the condition be included that brick should be on all three exposures.

Addressing the applicant, Mr. Squires said on Question 2 of the application, "Would denial of your request prevent you from reasonable use of your property such as your neighbors are able to enjoy with theirs?" you answered truthfully no. I am assuming though that you are doing this because you need more room.

Mr. Merz confirmed this, adding that the kitchen does not have much room. We have had people come in to see if we could redo things within the building itself, and we were not satisfied with that. It would be an eat-in kitchen. Right now it is very cramped for a family of four.

Mr. Borden said looking at your sketch, are you getting rid of the window in the back and putting a door in? Mr. Merz responded the drawing is not to scale; the window and door will be there also. I didnít include the window on the drawing.

Mr. Okum said so your addition would go to the east side of that existing door towards the garage, further away from Cameron Road than the patio is. Mr. Merz confirmed this, adding that there still will be patio left and we were thinking of pouring the patio out to the end of the house.

Mr. Okum said to clarify, the addition will begin at the offset, the edge of the garage, and go westward from there. There still will be a patio left and that entrance door and the window that is on that side will remain.

Mr. Apke moved to grant the variance with the condition that the applicant use brick on the three elevations to match the existing brick color. Mr. Squires seconded the motion. All voted aye, and the variance was granted with seven affirmative votes.

  1. DISCUSSION
    1. Memo from William McErlane regarding ability to revoke Variance 15-2002 to construct a 7íx 7í deck on the front of the house at 11500 Hickory Street

Mr. McErlane stated I would like to withdraw it. I talked to Mr. Dale earlier about conditions on variances and whether or not what we have written in the guidelines in terms of revocation of variances is legitimate. There may be another way to accomplish the same thing. In this instance, if you go by what is worded in your guidelines, it doesnít fit the bill and you really canít revoke it. Your guidelines say that the project has to be started within six months. In this instance, the deck was in place when they came in for the variance, even though it was carried in on a truck and set on a slab. It never got finalized because we were requiring them to do some things to stabilize it. Subsequent to that he sold the property and he has removed the deck.

BOARD OF ZONING APPEALS MEETING MINUTES

18 FEBRUARY 2003

PAGE FOUR

X B REVOCATION OF VARIANCE 15-2002- CONSTRUCT A DECK-continued

Mr. McErlane stated that based on the strict wording of your guidelines, I donít think we can bring it up for revocation. We need to discuss those things a little more when we get into the discussion of guidelines.

A. Review of Board of Zoning Appeals Guidelines Ė Greg Dale

Mr. Okum said we appreciate Mr. Daleís presence here tonight. Probably the best thing for us to do is to address those items that are in the guidelines that you find are in contradiction to code or law. Would you agree with that?

Mr. Dale answered yes, although I think you are aware that we are trained as planners not as attorneys and canít give you legal advice. We can point to red flags.

Mr. Dale said you have before you a draft that Anne McBride prepared. Anne and I worked together on this, and I believe that addresses the concerns that we had.

It seemed to me in reading your minutes that there were three different kinds of things you were trying to do, and maybe it would be helpful to separate those into categories.

The first is to set rules for the operation of this board, and you are authorized under your code to do this.

The second would be essentially what appears to be repeating requirements that are in the Zoning Code, perhaps to keep it in front of the board as a reminder. For example the actual standards for variances are repeated in this and one of the things that we did was, rather than have those standards paraphrased, we took the language from the code and repeated it here.

The third thing you are trying to do is provide some additional guidance or amplification for the board in helping it as it goes about its business. In other words, you are taking the standards and amplifying them a bit.

Mr. Dale added if that is a fair assumption, I donít know how you would like to proceed. In your previous meeting you had some discussion. Are there any particular issues that you would like to review?

Mr. Okum said we have your draft and our draft, and we need to bring them together. If the board feels comfortable with Ms. McBrideís order, perhaps we should start with that draft. The members agreed to start with Ms. McBrideís draft.

Mr. Dale said as you see, we crossed out items that we removed. The bolded items are the changes that the board made, and the bold italicized version are the changes that Anne made.

 

 

 

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18 FEBRUARY 2003

PAGE FIVE

IX A REVIEW OF BOARD OF ZONING APPEALS GUIDELINES - continued

Mr. Okum said there are no changes to Item A. Is there any problem with our establishing and utilizing Roberts Rules of Order as a guideline?

Mr. Dale responded I donít think there would be any problem with that. I know many boards that do that. I do caution boards that if you are going to do that you need to make sure that you understand what is in Roberts Rules of Order. Mr. Okum said I like the abridged version. Mr. Dale answered that is fine, and there are a variety of versions. I would suggest that whichever you intend to follow you should indicate that. Mr. Borden had a copy of Roberts Rules of Order, illustrated by Will Eisner and published by Bantam Books, 1982, and the board decided that this would be the version they would use. This should be referenced in the Guidelines.

Mr. Okum said nothing was changed in Item B. Mr. Dale answered we removed the term "general".

Item C "24" was changed to "72" which we discussed as well. We felt members needed more notice than 24 hours for a special meeting. Mr. McErlane added that under the Sunshine Law, you still would have to indicate that you have a meeting, even if the discussion in that meeting is in Executive Session. That discussion came up a few years ago regarding how many votes constitutes an approval. Planning Commission is desalt with differently in our Charter, where it specifically spells out what constitutes an approval. Because there is no mention of it in the Charter for the Board of Zoning Appeals, typically you follow Roberts Rules. Mr. Okum said so we will add to that "provided all rules under the Sunshine Law are addressed."

Mr. Apke said staff does the notification, so that is not the boardís requirement. Mr. Dale stated that it doesnít hurt to acknowledge the requirement.

Mr. Dale said Item D reflects your changes. We took Item E out because I donít think what this board says in any document such as this will affect what is or is not public record. The question of when records like this become public record is in a gray area. I worked for a law firm, and our position was that they were public records as soon as they came off the printer. I think saying this will not change things one way or the other, and probably just confuses matters.

Mr. Borden wondered if the recording was public record. Mr. McErlane responded we actually have had requests for copies of recordings in the past. Mr. Squires wondered how long the recordings were kept, and Mr. McErlane answered indefinitely.

Mr. Dale commented I donít know that there is any legal requirement that you keep the tapes at all, but you do need to be able to produce a verbatim transcript of this if you are ever challenged in court, and I believe there is a 30-day window to do that.

 

 

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18 FEBRUARY 2003

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IX A REVIEW OF BOARD OF ZONING APPEALS GUIDELINES - continued

Mr. Squires commented that he thought the Minutes were verbatim, and Mr. McErlane responded that they are not like a court recorderís transcript.

Mr. Okum said in new Item E, we have added the word "Recording" to Secretary, and you have added "the applicant and others requesting notice." Mr. Dale reported that adding the applicant is simply a matter of good practice. Others requesting notice I believe are entitled to that if they request it. We are simply trying to be inclusive. Mrs. Webb commented that we typically do that.

Mr. McErlane said for clarification, the way this reads, it basically says we can use the Minutes as a notification. The applicant gets a copy of their variance, but they typically donít get the Minutes.

Under Item F, Mr. Dale reported that our intent was rather than try to define here what constitutes a conflict of interest, it is defined elsewhere in the law and we should leaves it at that. Mr. Borden asked if there was a specific law that needed to be referenced and Mr. Dale reported that there is an Ohio Ethics Law, but that law and any reference could change, so we felt it best to do it this way. Mr. Squires commented that this is the best policy; the courts often determine conflict anyway.

Mr. Okum said that makes it a lot cleaner. Mrs. Pollitt commented that we all would know if we felt like we were in a conflict of interest situation.

Mr. Borden asked if the board member determined conflict of interest or does the chair do that. Mr. Okum responded that the chair can if he identifies it, but it is better for the chair to discuss it discreetly with the member before the issue becomes an issue, and it would still be up to the member to make the decision to step aside or not. Mrs. Pollitt added or for the member to acknowledge that there may be an issue and excuse himself.

Mr. Dale stated that the only part of what you just said that concerned me was if there would be any kind of group discussion of the potential conflict of interest outside of the meeting. Mr. Okum responded I wasnít referring to that, only to the possibility of one member informing me of a potential conflict.

Mr. Dale commented that I donít think it is the chairmanís call. What you are suggesting is that the chairman trying to facilitate resolution of it. I donít think this is as much a legal issue as it is a public trust .issue. I have always advised members to follow the simple rule, "When in doubt, disclose". The situation may or may not be a conflict of interest, but in the interests of fairness, board members should disclose the nature of the potential conflict, state what you believe the resolution of that should be, (that you will or will not participate), and ask for the boardís agreement on that. The board of course would agree, and you would then leave the proceedings and not participate in them at all.

 

BOARD OF ZONING APPEALS MEETING MINUTES

18 FEBRUARY 2003

PAGE SEVEN

IX A REVIEW OF BOARD OF ZONING APPEALS GUIDELINES - continued

Mr. Borden asked what if the member excused himself and you no longer have a quorum to meet. Mr. Dale responded without any other provisions in these Guidelines or in your Code, you follow Roberts Rules of Order.

Mr. Okum commented that just because you excuse yourself from the discussion, you are not actually excusing yourself from the meeting, so you havenít actually left, you just arenít voting. So, the proceedings could continue.

Mr. Dale responded that I donít know the answer to that. You might want to research that. It may be that the person who has excused themselves may in fact stay present for quorum purposes and simply not participate and abstain from voting.

Mr. Okum said we might want to look at that, because if that were the case, it could turn out to be that way. At one of our Planners Meetings, Tim Burke said if it appears to be inappropriate, then it is in your interest and the interest of the community that you represent to step aside. Stepping aside doesnít necessarily mean that you sit at the dais. In most instances those who step aside separate themselves from the deliberating body. Mr. Dale responded and what you are suggesting is a unique situation where in doing so you may create less than a quorum. Mr. Okum said we need to look at that to determine what happens.

Item G is a blend concerning the record keeping; is that really a board issue? Mr. Dale answered that ultimately it is the boardís responsibility, and you have professional staff handling that for you. To the extent that this is a public document that is announcing the way you operate, I think it doesnít hurt to say that. It also is a signal to administrative staff, present and future, that it is one of the things expected of that position.

Mr. Okum said Item I is almost the same thing. Mr. Dale responded that is a more narrow issue with the focus being on the time limitations. The idea is that if you are going to put time limits on variances, and you will have multiple variances out there over the years, someone ought to be doing some sort of periodic review to make sure that a variance is not coming up for expiration. That was the intent of that.

Mr. Okum commented that the same sort of thing applies to a conditional variances, where you require an applicant to plant trees for example. That has to be maintained and for tree replacement. So it is not only time; I would say it is anything to do with conditional variances. Most of those conditions are met during the construction phase, but others are not.

Mr. Dale responded I donít disagree with what you are saying in concept. I think it is a practical matter. What you are really saying is that terms and conditions of variances should be enforced and you are putting the onus of that burden on staff to monitor those. In concept that is hard to disagree with.

 

 

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18 FEBRUARY 2003

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IX A REVIEW OF BOARD OF ZONING APPEALS GUIDELINES - continued

Mr. Dale added that as a practical matter, there are potentially hundreds if not more of variances out there, and the idea that someone is going to on any kind of regular basis inspect hundreds of properties to make sure that the variance conditions continue to be complied with is great if you can do it. Frankly, I wouldnít suggest that you put that in writing until you have some sense as to whether or not that is a practical goal to accomplish.

Letís be honest: a lot of conditions of variances are enforced based on complaints. You donít have people out there doing regular inspections of every zoning certificate that was issued to make sure that they continue to comply. Before you put that in writing, I think you should consider whether or not that is a practical goal that can be handled by staff.

Mr. McErlane responded that we could attempt it for a period of time; I donít know how successful we would be in trying to stay up to date on a routine basis checking the conditions of most variances. Most of them are construction-related and are taken care of at the time of construction. Even in instances where trees were requested, I do not know that it was specifically stated must be maintained indefinitely. Mr. Okum said I would assume it would be. If the condition is that the man plant a number of trees, how does staff handle that with a PUD? Mr. McErlane responded that in a number of cases in a PUD it is made a condition in the recorded covenants that run with the property. Mr. Dale commented but you are not out there inspecting them to make sure that the trees havenít died. Mr. McErlane answered only if we have noticed something. WE are not doing a routine check on a monthly basis of those plantings to see if they are still surviving.

Mr. Dale added what we have tried to do here is narrow that down to the specific class of variances that have time limits on them. Mr. Okum responded Ill think that is probably the only thing you can narrow down that you would have a time line to look at.

Mr. Borden wondered if Item I would be better if "monthly" was deleted? Mr. McErlane answered that I think if it pertains to time limitations, it makes sense to do that, only because if you donít monitor the time limitations, you might as well call it a permanent variance.

Mr. Okum said that the original Item J was removed. Mr. Dale reported that the reason why was because of several concerns. One of them was that the term "need not reconsider" implies that you may reconsider, but there is no guidance to determine when you do or donít reconsider. More importantly, our concern is that we donít see anything in your code of ordinances or your Zoning Code that gives you the authority to do that. If someone applies, without some authority to say that there is a six-month window here, I donít know that you have any choice but to process the application.

 

 

 

 

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IX A REVIEW OF BOARD OF ZONING APPEALS GUIDELINES - continued

Mr. Dale added that some communities have provisions in the code that say that once an application has been denied, you canít come back in with the same application within six months, but that would be a code text amendment to make that happen.

Mr. McErlane asked if that was a commonplace statement in a code? Mr. Dale answered I donít know if that is common, but I have seen it in a number of codes. Mr. McErlane added the only reason that I ask is because typically if you deny a variance, you have 30 days to appeal to the Court of Common Pleas. If you decide not to file with the Court of Common Pleas, if you donít have wording to that effect, they could come right back in with the same application and start the clock over again and continue to do that over and over again.

Mr. Dale responded absolutely, and that is why some communities have put that language in there. That is not to say though that if someone comes in with the same application you are obligated to give it the full consideration that you did the first time around. As a fact-finding board, your job is to determine whether or not the standards are met. If it is clear to you that the same application has applied, I do think it is reasonable for the board to come to a decision more quickly the second time around if the facts are the same.

If you are interested in this kind of provision, I would suggest that it be handled as a text amendment. My concern is that you are establishing rules here through your procedures that go beyond what the Zoning Code does.

Mr. Squires commented so you did not see anything in our code that would allow this. Mr. Dale confirmed this, adding I realize that you have this language in your current rules of procedure, and we think you are bluffing your way through on that one.

Mr. Dale asked if that had ever happened. Mr. Okum answered usually they modify it slightly. It makes it very difficult, and we donít have a fee. I think if they come around the second time, there should be a fee. Mr. Dale wondered why there wasnít a fee, and Mr. McErlane responded that Council chose not to have a fee.

Mr. McErlane stated one of the things that Gregg did mention was if you get an application that comes in with minor changes, you donít have to give it a full review. You can say I donít see anything substantially changed in this from the last application. Mr. Dale added and you can ask the applicant if there is anything new that he can add that wasnít already made a part of the record that we can incorporate by reference.

 

 

 

 

 

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IX A REVIEW OF BOARD OF ZONING APPEALS GUIDELINES - continued

Mr. Okum said you are not reconsidering though. Mr. Dale answered no, it is a new application. Mr. Okum said I think we need to make a recommendation either to staff or to Planning. We canít drive changes to the code, but we can recommend it to Planning. I think we should do that. Mr. Dale said it would be a text amendment. Board members agree.

Mr. Dale said on the new Item J. we just cleaned up the language. The old language referred to "handling" pending or possible litigation. That was the ambiguous term and we changed it to "discussing"; itís the same meaning, just a little cleaner.

The Board began a review of Guides for Granting Variances.

Under Item A, Mr. Dale reported that the way your revised guide read, it looked like what you were trying to do was to restate the standards. What we did was to repeat from the Code the findings that you are required to make. So A 1 through A 4 are the findings from your Code, because we think that is what is important for you to have in front of you as you are deliberating, the findings you need to make.

Under Item B, we largely are cleaning that up. I understand that one of the things that you want to have clear is that the variance runs with the land and not with the person. If a person sells their property, the variance continues to run with the land. I notice in your Minutes last month that you had an interesting discussion. In these meetings, you tend to grant these variances to people when in fact you are granting variances to the property. It was interesting that you picked up on that distinction, and you are absolutely right. Somebody made the comment that you have approved variances because of hardships associated with elderly relatives which is compassionate but I think you all recognize that those kinds of private personal issues are not what drive variances. It is the property conditions. Mr. Okum commented I think adding "but run with the land" is understandable and clear.

You have taken out Item C. Mr. Dale answered yes. You have very clear notice requirements in your code. Typically that is a staff function, and we didnít see any need to repeat that here. The new Item C just refers to obtaining legal counsel as needed.

Mr. Okum said Item D concerning assistance and advice of the City Planner, City Engineer or others also is a question of clarity.

Mr. McErlane said you notice you havenít gotten to the lapse of variances, because it is gone. Mr. Borden said if youíd look at Item 5) in Ms. McBrideís memo, you will see that she addresses that item.

 

 

 

 

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IX A REVIEW OF BOARD OF ZONING APPEALS GUIDELINES - continued

Mr. Dale said again, you are trying to do something that the Zoning Code doesnít authorize you to do. At the same time, there is a relatively easy solution, in that you can place conditions on variances. If you place a condition on the variance, "that construction shall be initiated within six months or the variance lapses", you have what you want, not just a blanket matter that all variances lapse after six months. Also, I think you would have the ability to enforce that.

In fact, that kind of begs a question, i.e. are there some standardized conditions that you desire to attach to all variances? Somebody said something earlier about maintaining landscaping. Any time you are approving anything with landscaping, you want them to maintain it. It may be that there is a set stock of conditions that you may wish to develop.

Mr. Squires commented so what you are saying is that relative to the one we had tonight, we should have put a condition that construction must begin within six months.

Mr. Dale responded you certainly could have, although I would raise the question why? Why would that particular variance not still be good a year from now as opposed to something else where a six-month window or a year window would be significant. There may be some where you think it is important to begin construction within six months and others like tonight two years from now if they havenít done it, I donít know if it would make any difference.

Mrs. Pollitt said a couple of months ago we had a garage that was in really bad repair and it had to be torn down and because of financial constraints he couldnít put it back up again right away. I passed by there the other day, and nothing has been done.

Mr. Dale responded that might be a good example where a time frame would have been appropriate. Mrs. Huber reported that he was given a time frame Ė to tear it down by the end of January. Mr. McErlane reported that we gave him extra time to demolish it because of the weather.

Mr. McErlane commented I think what Mr. Dale is saying is that if there are conditions that you see on a regular basis, you may want to keep those on a list somewhere and go through them each time. Mr. Borden wondered if that was something we wanted to discuss right now, and Mr. Okum answered I donít have a problem with that. Iíd like to limit it to about 15 minutes of discussion.

There was one item I had in terms of items we need from staff and from the applicant in order to deliberate on an issue. Do we want elevations, do we want site plans, etc.? We donít want to go above and beyond what the Code allows us to require, but in our process of deliberation, there are certain detailed things that we need.

 

 

 

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IX A REVIEW OF BOARD OF ZONING APPEALS GUIDELINES - continued

Mr. McErlane commented that you donít know what itís like to try to extract things from applicants, particularly when they canít draw. We do it on a daily basis to try to issue permits.

Mr. Okum said the items I had on my list was a site plan showing adjoining properties and structures, (staff gives us that on almost all applications); a photo of the site as observed from the adjoining parcels and the public right of way as permitted; staffís interpretation of the requested variance with comments (and we get that); a completed application from the applicant and staffís recommendations as they apply to the requested variance (physical conditions), and staff doesnít like to do that.

Mr. McErlane reported that the reason staff doesnít like to do that is because the application is a request from an order given by staff. In essence, I guess that is their recommendation, to deny it, which isnít necessarily the case in every instance. We are giving an order to comply with the code, and then you want a recommendation from us; it doesnít seem to jibe.

Mr. Okum responded I think that there are issues of physical conditions that staff can interpret better than the applicant at times.

Mr. McErlane commented that there have been instances where we have given our opinion as to whether or not what the applicant has presented truly is a hardship. We have done that rarely, but when the applicant says Iíd like to have more area in my back yard for my kids to play and thatís why I need a smaller setback to my shed, that is not a legitimate hardship in our opinion. I think we have expressed that in the past, but I want to stop short of giving recommendations for variances, primarily because they are appealing an order that we gave them.

Mr. Okum asked if that were typical in other communities, and Mr. Dale answered I have had this discussion with so many other communities and in 20 years my best estimate is about 50-50. About half the communities decide they want recommendations from the staff, and the other half do not. I understand the concern that in effect the staff already has denied an application because it doesnít comply with the regulations and now they are asking for a variance, so it puts the staff in the unusual position of saying no and recommending yes.

Mr. Dale added I do know of a lot of communities where the staff doesnít actually make a recommendation, but they do give proposed findings of fact that lead up to but stop short of the ultimate question. It can make the boardís job easier if they start with 75% of the findings of the fact done, and they simply have to complete the rest and make the decision.

 

 

 

 

 

 

 

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IX A REVIEW OF BOARD OF ZONING APPEALS GUIDELINES - continued

Mr. Borden commented that is how I looked at it anyway; I didnít look at it as a recommendation.

Mr. McErlane commented to a degree I did it verbally tonight when the question was raised as to whether or not they could put an addition onto the house, I could have put in writing that the only place that they could have and comply with the Zoning Code would have been on the eastern side adjacent to the garage.

Mr. Okum said that would help in our deliberations in terms of information. I can understand the position that staff takes; it is a quandary. Mr. Borden added I am not sure if we need the recommendation all the time. Mr. Okum said no, but there are certain physical issues that are important, and I think you include those most often. We have had you make statements that the pool couldnít be here but could be over a little bit.

What I am really saying is that if it gives us more findings of the physical conditions, it is important. I think more information is best. The photos help immensely. Do a lot of communitiesí staffs provide photos?

Mr. Dale answered yes, I have seen quite a few that do. When you ask for physical conditions, I would suggest that what it be focused on are the standards. What I mean by that is when you talk about physical conditions, what is really unique about the property?

Variances are really intended to be a safety valve that applies to unusual circumstances. The first question really should be what is unusual about this property that makes it different from other properties justifying the variance. That is what would help focus the discussion.

Mr. Okum commented that the corner lot tonight is a good example. A corner lot has two front yards, a side yard and a rear yard in the wrong place; you have all those issues which is a unique circumstance.

Mr. Okum said on standardized conditions for variances, if we canít say no construction, then time would be the special situation. I think Mr. Dale is saying that if the variance goes with the land, if that room addition is okay today, it will be okay 20 or 30 years from now, and that is why zoning variances apply to the land and not the person requesting it.

Mr. Borden commented we had one case where the applicant kept coming back and back and back and we kept granting extensions and extensions. If we had made a two-year condition for example, we probably never would have seen him again.

 

 

 

 

 

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IX A REVIEW OF BOARD OF ZONING APPEALS GUIDELINES - continued

Mr. Dale commented at some point you have to wonder if circumstances are not likely to change enough so that it might not make sense. To take an extreme, 20 years from now would it still make sense? Circumstances are probably going to change so much that it might or might not.

Maybe what you have is a laundry list of potential conditions. One of them might say that construction begins within blank months or the variance lapses. Another one might say that construction shall begin within say two years and if it doesnít the applicant needs to come back for an extension, something like that so you have some options. I think you need to leave yourself some flexibility. Maybe weíll give you some language you can use with some blanks in it and you can look at it as you are making conditions and pick and choose.

For example, there is some standard language about buffer that might be helpful to have, standard language about maintaining vegetation, standard language about lighting or environmental impact. There are some things that we can come up with that you might want to have in front of you.

Mr. Weidlich said we had the individual who started the construction of a shed and came back three times for an extension. We donít want anybody starting a room addition and abandoning it and five years later there is still a wall up.

Mr. Okum said so you are saying not only a start but also a completion. Mr. Weidlich answered yes, similar to what we did with the man with his garage on Kemper Road. Mr. Borden commented that would require that we know something about construction. Mr. Weidlich said he gave us a time frame in that he needed 19 months to get his loan.

Mr. Okum asked if that were inappropriate to put that in? Mr. McErlane answered in that instance, he was out of compliance with the Zoning Code until he actually built the garage. So, there is a realistic time limitation that you should put on that one.

Mr. McErlane said I also suggest that you put on your list is, you go to the trouble of putting notes on their exhibits on a regular basis. You should reference that exhibit each time you make the motion. We numbered them based on the month and the year. If you really are going to condition it on what they presented to you, you probably ought to reference what they presented to you as well.

Mr. Okum asked if we should exhibit all that is submitted to us? Mr. McErlane responded that it is more important if you make modifications, note something on the drawing, that it be referenced as part of the conditions. Mr. Dale added part of the point is to be as explicit as you can be with the conditions, recognizing that it might be two years from now that somebody has to pull that file and make sense out of what you approved. So, it has to be totally self-standing and explicitly clear to anyone who wasnít here.

 

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IX A REVIEW OF BOARD OF ZONING APPEALS GUIDELINES - continued

Mr. McErlane said the other item is the fact that there are a lot of things discussed during the discussion and testimony, and promises made by the applicant and discussion by the board indicating what they would like to see, but if it isnít incorporated into the motion, it may get lost.

Mr. Dale added that he had seen litigation over a gravel mine where the applicant had made a representation to the board that they would complete the mining within say 15 years. When the 15 years were up the community said they should be finished and there was a lawsuit over the question as to whether or not that was actually a condition of the approval or something that was said along the way.

Mr. Dale said that is a good point. If people make representations to you and those are important and are part of your approval, make sure they are explicitly reflected in the conditions.

Mr. McErlane added that it is not like we pull the Minutes and put them with the application for a variance. We will list the conditions that apply to it, but if something is in the midst of the Minutes somewhere, it is difficult to pull that together with the application.

Mr. Dale said on the comment about actually asking the applicant if they agree, I think it is worth keeping in mind that may very well be good practice from a good neighbor standpoint, but you donít have any obligation to make sure that the applicant agrees with your conditions. You are the decision-maker. You can place conditions upon them whether they agree with them or not. Since a lot of these folks are long time residents and you are trying to be good neighbors and solve problems with them, that is fine but ultimately this is not a negotiating process where they have to agree to the conditions.

Mr. Borden asked if it is important that the applicant understand the motion. Mr. Okum answered I have always felt that it is important, but I donít believe it is required by law. It is a courtesy.

Mr. Dale commented I think you are right, but at the same time if the applicant doesnít understand the conditions, it might cause you to look at whether or not the conditions are stated clearly enough. If the average person canít understand them, you probably need to work them out to the point that everyone is clear on what they mean.

Mr. Squires asked if our recommended Guidelines go to Planning Commission. Mr. Okum answered no, these our guidelines. We will finalize a draft and approve them.

There is one recommendation we will send to the Planning Commission and that is a text amendment to the Zoning Code regarding denial of an appeal. Weíll leave that up to Staff to come up with the appropriate wording.

 

 

 

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IX A REVIEW OF BOARD OF ZONING APPEALS GUIDELINES - continued

Mr. Dale added City Code of Ordinances that establishes the Board of Zoning Appeals says that you are authorized to establish your own rules and regulations for the operation of the body. It gives you authority to create the rules, and part of what we were trying to do is to make sure that you are creating rules and not rewriting the Zoning Code.

Mr. Okum said weíll have the Guidelines retyped and adopt them at the next meeting.

Mr. Okum thanked Mr. Dale for his participation. I also appreciate Mr. McErlane filling in and I want to compliment all the board members. Our attendance is stellar and everyone should be complimented.

  1. DISCUSSION
  2. On the running of the board meetings, Mr. Okum said we donít go out in a bus and visit with the property owners before the meeting. Mr. Squires added that we have had members who have gone on properties and had major discussions, and among ourselves have discouraged that.

    Mr. Dale responded I think you really need to discourage that. Lawyers will tell you that is particularly a problem for Boards of Zoning Appeals, even more than Planning Commissions and certainly more than legislative bodies. Because of the quasi-judicial nature of BZAs, that is a very troublesome issue. Youíre the closest thing to court that there is without being a court.

    Mr. Dale added that is not to say that you canít do site visits. You can drive or walk by sites, but you donít need to stop and visit with people.

    Mr. Okum said the difficulty is rear yard visits, and giving staff the authority to provide the photo journal that we need to avoid that is important.

    Mr. Dale commented that you might have some right to legal trespass, but I wouldnít push the issue before you get some legal advice on it.

    Mr. Borden said Mr. Weidlich mentioned before that we should have ID cards when we are making site visits. Mrs. Pollitt commented I donít know if it should even be known that we are on the premises or anywhere close to it. Mr. Weidlich commented that he has identified himself because people have come out when he was looking at the site. Mr. Dale said and I assume that you tell them that you canít talk about it, to please come to the meeting. That is the way to handle it.

    Mr. Squires commented I like your definition of a variance, and I would like to see it incorporated in this document. It is "a safety valve, based upon the uniqueness of the property involved."

    BOARD OF ZONING APPEALS MEETING MINUTES

    18 FEBRUARY 2003

    PAGE SEVENTEEN

    X. DISCUSSION Ė continued

    Mr. Squires said our codes are no more than general statements. The property itself may be unique relative to the variance requested. Mr. Dale added and remember as somebody said, you are not the Board of Zoning Approvals, you are the Board of Zoning Appeals.

  3. ADJOURNMENT

The Board of Zoning Appeals adjourned at 8:45 p.m.

Respectfully submitted,

 

 

________________________,2003 _____________________

David Okum, Chairman

 

 

________________________,2003 _____________________

Jane Huber, Secretary