Board of Zoning Appeals Meeting Minutes

19 February 2002

7:00 p.m.

 

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

  3. ROLL CALL
  4. Members Present: Robert Apke, Fred Borden, Jane Huber,

    Marjorie Pollitt, James Squires, Robert

    Weidlich, and Chairman Okum

    Others Present: Bill McErlane, Building Official

    Christy Holmes, Attorney

    Mr. Okum welcomed Mrs. Pollitt to the board. We also have with us our Building Official Bill McErlane, and our legal counsel, Christy Holmes.

  5. PLEDGE OF ALLEGIANCE
  6. MINUTES OF REGULAR MEETING OF 18 DECEMBER 2001
  7. Mr. Squires moved for adoption and Mrs. Huber seconded the motion. By voice vote, all voted aye, except Mrs. Pollitt who abstained, and the Minutes were adopted with six affirmative votes.

  8. CORRESPONDENCE
    1. Planning Commission Meeting Minutes Ė 8 January 2002
    2. Zoning Bulletin Ė January 10, 2002
    3. Zoning Bulletin Ė January 25, 2002
  1. REPORTS
    1. Report on Council Activities Ė no report
    2. Report on Planning Commission Ė Dave Okum

Mr. Okum said we had a lengthy agenda. There were two plat approvals on the Route 4 area, ones that were found and finally recorded. There was discussion and approval of a panel on the existing pylon sign for The Great Indoors, which is the sign below the Dave & Busterís sign on I-275. There was a lot of discussion and concerns raised, and the applicant agreed to make some modifications to the sign case, split the upper section of the sign so that it would not be illuminated and there would be a separation of 10 inches between the two sign panels, so it will appear to be two signs with depth. Approval of the fascia sign pump island canopy at Exxon. Since there was not representation, it was removed from the agenda. We gave final approval to the Springdale Church of the Nazarene for their building addition; this did not include landscaping or tree replacement. The applicant will meet with staff for that approval.

  1. CHAIRMANíS STATEMENT AND SWEARING IN OF APPLICANTS
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    BOARD OF ZONING APPEALS

    19 FEBRUARY 2002

    PAGE TWO

  3. OLD BUSINESS
    1. Michael Murdock, 12172 Greencastle Drive requests extension of Variances 88-1999 to allow the construction of a 12í x 16íutlity building. Said variance is requested from Section 153.036 "A separate accessory building.other than a garage, shall not exceed 120 square feet in area."
    2. Mr. Murdock said you have a copy of my letter, and there was a delay with the project in term of personal problems so I am requesting an extension until June 1st in order to be able to complete the project. The project was started and there was an inspection, but it has not been finished.

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

      Mrs. Huber asked Mr. Murdock asked if the height was going to be as tall as the posts shown in the photograph. Mr. Murdock answered that they would not; the posts would be cut off. It will be built according to what was originally approved by this board, an Amish top barn.

      Mr. Squires said you are aware that you will need to get another building permit? Mr. Murdock answered I didnít know the procedure. Mr. McErlane confirmed this, adding that if there is inactivity for six months, the permit expires. It is a matter of getting the old paperwork together and refiling for it.

      Mr. Borden asked the applicant if he anticipated any more delays before June. Mr. Murdock indicated that he did not.

      Mr. Weidlich said this is your third extension. Since you have had all this time, do you feel you can complete it in the next three months? Mr. Murdock answered I intend to. Mr. Weidlich said suppose you have two walls up and are not finished by June 1st; then what? Mr. Murdock answered we would have to cross that bridge when we get there, but hopefully we will not have to.

      Mr. McErlane commented the board has already picked up on the fact that this is the third extension to the variance. If we are talking June 1st for completion, it isnít that far off. Mr. Okum said I agree; optimism is good, but we are going into a spring rainy season.

      Mr. Borden asked Mr. McErlane if there were any restrictions on the number of extensions that can be granted. Mr. McErlane answered no. The issue of six months is in your rules and regulations. It is not a Charter issue or an issue of the Code.

      Mr. Squires moved to extend the variance until June 1, 2002 to complete the construction of the utility barn as originally presented. Mr. Borden seconded the motion. All present voted aye, and the variance was extended.

       

       

      BOARD OF ZONING APPEALS

      19 FEBRUARY 2002

      PAGE THREE

    3. Kerry Ford, 155 West Kemper Road requests variance to allow an oval sign to replace existing rectangular sign. Said variance is requested from Section 153.531(D)(2) "Pole signs..shall not exceed 50 square feet in total area.". Tabled 12/18/01

Patrick Merten said I would like to review some of the facts and circumstances of the December 18th meeting and get into the crux of the proposal.

The Ford Motor Company is implementing a new sign program and because of this, Kerry needs a new sign head on their facility. The sign that was designed was for what the variance allows now, which is 138 s.f. Based on the way the code stipulates calculation, it actually would require more square footage. The request at that time was to vary the method of calculation. One of the challenges in the code is that while there has to be a fairly straightforward and simple method of calculating signage, what you end up with is a situation where you are calculating air as signage. I understand that from the perspective of the board there has to be a way to calculate signage, but that was the position of Kerry Ford at that time.

At that meeting there was a question raised that if Kerry would be willing to lower the height of the sign, and the possibility of consideration for the approval of the proposed sign, even though it is more square footage. I offered to look into the matter of reducing the height of the pole sign. ABC Sign was contracted to simulate various heights of the sign. The proposal before the board tonight is reducing the pole sign approximately 6 to 6 Ĺ feet to from 41 feet to 35 feet.

The reasons for the proposal are not necessarily that Kerry feels that it should be granted as a hardship. They exist in that location because that is what they chose; that is what the market had available. Their challenges are trying to deal with traffic and exposure to SR 747, the major thoroughfare in the City. That is where commercial dealerships need to be, and they are not there.

When they simulate various sign heights, 35 feet based on what you can see in Exhibit B is really the lowest they can go. This is a straightforward proposal. I am not here to dilly dally with numbers. The 35 feet is derived from the heights of the existing signs out there and the fact that they are located in a hole in terms of elevation (see Exhibit B). In order to get the exposure to SR 747 and to remain at a competitive advantage with the other dealerships because of their sign heights of 35 feet, 35 and 30 respectively, after simulating those signs, 35 feet would be the lowest they would be willing to go.

In the interest of building a relationship with the city, and to deal with some of your issues of trying to bring the pole signs down, that would be 35 feet in perpetuity. That is not just with this particular proposal. So they are losing six plus feet in order to work with the board and get this new sign program implemented.

 

 

BOARD OF ZONING APPEALS

19 FEBRUARY 2002

PAGE FOUR

VIII B KERRY FORD 155 WEST KEMPER ROAD Ė OVAL SIGN

Mr. Merten reported that those are the circumstances and facts of their geographic location. Because there is an approximate drop of 10 feet from the intersection of 747 to where they are, and 35 feet would be the lowest that Kerry would be willing to go.

Mr. Merten added that Kerry is in a situation where they have to get a new sign up there. What was submitted, Exhibit C, is probably the last ditch effort for Kerry to get a new sign up top. They would have to reduce that head in order to comply with the square footage as calculated by the zoning code. What would happen is that they would probably replace the sign that is there now with this new sign. These are pictures from across the street (Exhibit D) which shows how significant that drop would be. This is 25 feet off the ground, but it is a height that is unacceptable to Kerry.

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

Addressing the applicant, Mr. Okum said I know that your reference is SR 747, but why is it this boardís responsibility to provide you with visibility at 747? Mr. Merten answered it is not this boardís responsibility to provide Kerry Ford access to 747. The facts as presented are simply to illustrate why Kerry cannot lower its sign any more than 35 feet, because of the competition in that market place. What I presented was reasons why they canít go any lower with their sign.

Mr. Squires said so Kerry Fordís ideal signage would be a sign enclosed by the smallest rectangle that measures 19í-11" wide by 8í- 3 Ĺ" deep, Exhibit A and 35 feet in height down from the 41í. Is that correct? Mr. Merten answered that is Kerry Fordís proposal. Mr. Squires commented that is a 20% increase in signage over what was allowed before. Mr. McErlane commented that it is 19.6%.

Mr. Squires asked if Kerry couldnít live with a smaller sign as it appears in Exhibit C, which would be 127 s.f. and back to the original height, 41 feet. This would give you the visibility you are seeking, and more than the businesses around you, which are 30, 32 and 35 feet high respectively. That would be within the variance, which we granted in 1969.

Mr. McErlane commented I think that is what Mr. Merten was trying to show, that he could place a smaller sign on the pole at the existing height and not need to be before this board. What he was trying to offer up was an alternative if this board would rather see a lower height sign.

Mr. Squires responded so the question is would we rather see an increase in signage of about 20% with a lower height.

Mr. Okum asked about the blue box and Mr. Merten answered that the box was 8 Ĺí x 20í so it is a little larger than the visible box. That represents the oval based on the calculations. The important consideration is that the proposed sign is not a solid blue mass; there is some white lettering in there.

BOARD OF ZONING APPEALS

19 FEBRUARY 2002

PAGE FIVE

VIII B KERRY FORD 155 WEST KEMPER ROAD Ė OVAL SIGN

Mr. Merten added that based on the first page of the letter, the corners of the rectangular are air. Mr. Okum commented that a lot of businesses in the city have lived with that air, Dave & Busterís and Mars Music to name two.

Mr. Okum said to grant an increase in sign space to justify a six foot drop in the height of the sign is not a win win for the city, and I would not be supporting it. I think the applicants are doing themselves a disservice by keeping the sign as high as it is because the driving public doesnít look 41 feet into the air to observe a sign.

When the sign was placed, there was a lot of vacant space in that area. I am sensitive to the issue of the Saturn dealership with a sign that is 30 feet, but that happens to be lower than the Chrysler dealership which is at 35 feet and the Chevrolet dealership which is at 35 feet. If you go on a topographical level, that Saturn sign is even greater in height than the proportional amount that we have here.

I think if this sign was placed at a not to exceed 710 foot level, it would be acceptable to me, but I donít think the proposed 35 feet is justifiable. I donít see a hardship here. Distance doesnít make a lot of difference when you are driving down Kemper Road. I thin Kerry Ford would be better off if they lowered the sign, and I would be somewhat flexible on size, but not reducing it down to 35 feet and increasing it by 20%.

Mr. Weidlich asked Mr. Merten if Kerry Ford would be receptive to the 35 foot height with the sign head on Exhibit C? Mr. Merten answered I donít believe so. I believe they are looking at this as a trade off in terms of being willing to reduce the sign height for a larger sign head. Mr. Weidlich commented that it doesnít seem like they are trying real hard to work with the City on this issue. They have come a little way, but not as far as they want the City to go.

Mr. Squires asked Mr. McErlane what the signage was in 1969 when we granted the variance for 138 s.f. Mr. McErlane responded I couldnít tell you what the allowable sign area was but we granted a variance for that as well as height.

Mr. Apke asked the width of the existing pole. Mr. Merten answered my drawing is not legible on the pole size. Mr. Apke wondered if it would be 18 inches. What I am getting at is even though I know that cladding doesnít figure into the signage calculation, with that 54 inch cladding with the blue stripe that is integrated into the design itself, it appears to me that you are getting some signage there. You are getting a much more visible sign, almost like a monument sign. I think I would be more inclined to go with something more like Exhibit C, because I think you are getting an increase in signage, even if it isnít fitting the city definition. With the cladding to me you are getting an increase, and I donít think we need to increase the square footage further.

 

BOARD OF ZONING APPEALS

19 FEBRUARY 2002

PAGE SIX

VIII B KERRY FORD 155 WEST KEMPER ROAD Ė OVAL SIGN

Addressing the applicant, Mr. Okum said it appears that you are not hearing a lot of favorable comment for Exhibit A or Exhibit C. At this point, I will request that one of the board members make a motion. Would you like to bring anything else to the table before the motion is made?

Mr. Merten responded I appreciate your ability to try to facilitate a common ground on this issue, but quite simply the proposal before you is the best that I could get, and I think the board needs to take the appropriate action at this time.

Mr. Okum said part of the request called a change in the way square footage is calculated, and my understanding is that the applicant is not including that as part of their request. Their request is for the allowance of a sign to be constructed as presented in Exhibit A with a total square footage of 165 s.f., and reducing the sign height from 41 feet to 35 feet. Mr. Merten confirmed this.

Mr. Squires said I will make this motion in a positive sense. I move that the board grant Kerry Fordís proposed signage of 165 s.f. with a reduced total height of 35 feet, as shown in Exhibit A. Mrs. Huber seconded the motion.

Mr. Borden said for clarification, so we are not considering changing the way we compute the sign area.

Mr. Okum said I have stated my position on this. I will be voting in opposition because I feel that to tie the sign in and hold this sign accountable to other signs in the district does not apply. It is not the responsibility of this board to make sure that all signs are on an equal basis. Unfortunately some had been placed at a higher level than what would be approved today, and do not meet our current code requirements. We would like to see the applicant work with the City, and we would like to have it be in some range that would be a balance. If the applicant would accept a 710 foot elevation height, they would get a favorable vote on my part.

All voted no and the variance was denied with seven negative votes.

  1. NEW BUSINESS
    1. Terry Miller, 546 West Kemper Road requests extension of Variance, 10-1998 (granted 5/19/98) which allowed the elimination of a garage on his property conditioned on the construction and completion of a new garage within three years S(5/19/01). Variance was granted from Section 153.075(B) "A single two-car garageÖÖis required."
    2. Terry and Beverly Miller approached the board. Mr. Miller said financially we have not been able to replace the garage. I am planning to retire between now and April 2003 and we are asking for an extension.

       

       

      BOARD OF ZONING APPEALS

      19 FEBRUARY 2002

      PAGE SEVEN

      IX A TERRY MILLER 546 W. KEMPER RD. Ė VARIANCE EXTENSION

      Mr. Miller commented that you asked for a time for the extension, but I have no idea of the time. There are other houses that donít have garages, and we would ask the question as to why we have to have a garage if other houses donít. I have a 168 foot driveway from Kemper to the existing building, and there is adequate parking for our vehicles, if that is the problem.

      Mr. Okum responded first of all, we donít write the Zoning Code, but we enforce it and act on it. I know that our Code calls for the garage and asked Mr. McErlane if there were any residential district in Springdale that does not require a garage.

      Mr. McErlane reported that all the single household zoning districts require a two car garage. There are a number of houses, particularly in the applicantís general area, that were built long before there was a Zoning Code in Springdale. They are considered grandfathered until somebody removes the garage or builds another one, and then they have to comply with the current code.

      Mr. Miller added that I am not saying that I donít want a garage. What man doesnít want a garage.

      Mr. Okum commented I would question where you would put your lawnmower and rakes, etc. if you didnít have a garage. Mr. Miller responded what is left there now looks like a garage. That was part of the stipulation, to make what I left there look like a garage so I could house all the equipment. Mr. Okum commented so you have turned it into a shed.

      Mr. McErlane added that there was a portion of it demoed and this was an addition onto the garage. You demoed the main garage out and left this in place.

      Mr. Okum said so you are requesting either not to have a garage there at all or an extension of the variance in order to get your garage constructed.

      Mr. Miller responded I still plan to build a garage, but I canít say when we can do this.

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

      Mr. McErlane reported that the original variance was granted May 19, 1998, and involved the elimination of an existing garage which was in disrepair at the time. The stipulation was that a new garage would be constructed by May 19, 2001, three years later. That didnít happen, so we issued an order to file and obtain a permit for construction of a new garage by todayís date, and gave him the dates for the Board of Zoning Appeals meetings if he wished to ask for an extension of the variance.

       

       

       

      BOARD OF ZONING APPEALS

      19 FEBRUARY 2002

      PAGE EIGHT

      IX A TERRY MILLER 546 W. KEMPER RD. Ė VARIANCE EXTENSION

      Mr. McErlane reported that our only comments are that if the board feels it is appropriate to give him an extension that needs to be for a stipulated length of time.

      Mr. Okum said if Mr. Miller doesnít construct this garage, what happens to Mr. Miller? Mr. McErlane reported that the legal steps would be a citation to Mayorís Court and then if necessary eventually injunctive action against him in civil court.

      Mr. Squires commented the original variance was an extremely long one, for three years. . This board doesnít normally do that. He asked Mr. Miller why he asked for a variance for three years. Mr. Miller answered it was a financial situation. That house is pretty old. We have an empty nest and are ready to do a few things

      We put a new roof on two or three years ago and we replaced all the windows. There are other things that are more immediate right now. We have the original furnace, and are trying to figure out some way to replace that.

      At that time it was no different. I wanted the garage down because I was afraid it was going to fall down. Then I was told that I had to build another one. It is no different than now; it is financial. The only thing is I am looking at more money now than it was three years ago.

      Mr. Squires responded the reason I am bringing this up is because I donít recall hearing that type of testimony three years ago. You will agree that the construction of a garage on that property will enhance the value of it. Mr. Miller agreed, adding that he wants a garage. It is a question of getting the finances together. Mrs. Miller added to build a two car garage is twice as much. I have never worked, and now I have medical problems.

      Mr. Squires asked the size of the required garage, and Mr. McErlane answered that it is between 400 and 700 s.f. Mr. Squires asked if he had investigated the cost of building the garage, and Mr. Miller answered that the only thing he checked into was pole buildings and PDQ. I sent for plans and they sent me pictures. I have looked into books and it is around $25,000 which is pretty cheap.

      Mr. Squires commented what we would be faced with is assuming that we give you what you want, to build no garage at all, ÖMr. Miller said thatís not what I want; that is what I need. I need you to put a time on it. Mr. Squires continued that the variance goes with your land and when you sell that property, the new owner would have the same variance you would have, and we would like to have a two-car garage there.

      Mrs. Pollitt at one of our last council meetings, we had a proposal, the Hamilton County Improvement Program which is a low interest rate loan. The county has to buy into the program, and the homeowner would get the loan on their own financial merit. They then could go to the building department and specify that they want to be a part of the HIP Program

       

      BOARD OF ZONING APPEALS

      19 FEBRUARY 2002

      PAGE NINE

      IX A TERRY MILLER 546 W. KEMPER RD. Ė VARIANCE EXTENSION

      Mrs. Pollitt added that the building departmentís responsibility is to make sure that the proper building permits are taken out and that the work is inspected properly. It is 3% below market for people who are looking to upgrade their home. I wanted to make you aware of that. Council passed an ordinance to have the City look into that.

      Mr. Squires said that proposal is from the Hamilton County Commissioners and the City of Springdale signed off on that. It doesnít become effective until members of the 49 municipalities within Hamilton County take part in it.

      Mr. Miller asked if there were stipulations in terms of income. Ms. Pollitt answered that there is no stipulation on income. Your home can be valued up to $299,000 and my understanding is that you can take out a $50,000 loan.

      Mr. McErlane added that the loan application is made through your bank, and Hamilton County is expecting to have five to seven banks and lending institutions that will participate in it. The City of Springdale has signed onto it but Hamilton County hasnít announced it yet nor have they released it. They hope to get at least 2/3rds of the communities on line before they announce it and make it available to people. The loan can be from $1,500 to $50,000 at 3% below the normal market rate for that type of loan. There are very few limitations as to what you can use it for. They indicate that it canít be used for what they consider luxury items, like swimming pools, saunas, spas or stables, but you can use it for landscaping, carpeting, painting and a number of different things to improve your home.

      Mr. Weidlich said you said you are going to retire; do you have any plans to move? I would hate to see this board grant a variance and have a new homeowner to be left without a garage. Mr. Miller answered we thought about it; I tried to talk her into going to Florida, but she wouldnít leave the grandchildren, and I probably wouldnít either. Realistically my income will be cut in half.

      Mr. Weidlich said about 10 years ago another resident had the Scarlet Oaks construction class build a two and Ĺ or three car garage for them, and they do it pretty reasonably, like lunch and gas money and the experience; you buy the materials. That might be another option if they are still doing that.

      Mr. Borden asked how long you have to complete the construction of a garage. Mr. McErlane responded that you have two years to complete it but you can only have inactivity for a six-month period before the permit is cancelled. However, if the garage is substantially underway, I donít think it creates a problem with the variance as much as it does with finishing out the permit on the project.

       

       

       

      BOARD OF ZONING APPEALS

      19 FEBRUARY 2002

      PAGE TEN

      IX A TERRY MILLER 546 W. KEMPER RD. Ė VARIANCE EXTENSION

      Mrs. Pollitt asked Mr. Miller if he had done any repair work on the garage since the photos were taken in 1998. Does the portion of the garage that is standing meet our maintenance code? Mr. Miller answered I made it look like a garage as I was told to do.

      Mr. Okum asked the size of the structure, and Mr. Miller answered that it is probably four foot in the front and a partition and about 5 or 6 feet to the rear. Mr. Okum said so it is about a 12í x 12í structure, about the size of a shed.

      Mr. Borden asked the definition of a garage. Mr. McErlane read the official definition, "A building used primarily for the parking storage or repair of vehicles." Mr. Borden commented you couldnít get a vehicle in that structure. Mr. Okum added that we basically have an accessory structure on the site now, which is permitted, but you are over the allowed size. We donít have a variance for that structure do we? Mr. McErlane indicated that we do not, adding that it is a structure that has been there quite a long time. Mr. Okum asked if he would tear it down if he built a garage, and Mr. Miller indicated that he would. Mr. Okum commented that it is not an issue then.

      Mr. Okum said personally I think Mr. Miller needs some time. I would not support a three-year extension of the variance, but a year or year and a half would be all right. I need a motion from the floor.

      Mr. Squires moved to extend the variance one year from this date (February 19, 2003) to construct a garage on 546 West Kemper Road. Mr. Borden seconded the motion.

      Mr. Weidlich wondered if something should be added to this indicating that if the house would go up for sale that the garage would be built prior to the sale being finalized so the new homeowner wouldnít be left without a garage?

      Mr. McErlane reported it is difficult for us to keep track of when a house is sold other than when we see for sale signs go up. I guess you could give it a shot. Mr. Okum commented that with the shorter time frame, one year, you would have less chance of that.

      All voted aye, and the variance was extended to February 19, 2003

    3. Lykins Oil Company appeal of planning Commissionís denial of application for canopy fascia change at 11444 Springfield Pike

Addressing the board members, Mr. Okum said please understand that this is not a variance request. This is an appeal of a Planning Commission decision. According to the wording in our Zoning Code, Planing Commission did not officially act on this within two meetings and therefore it is assumed to be a denial, and the applicant is here to appeal that denial. We have legal counsel here to help us through that because it is something different than what we typically consider.

 

 

 

BOARD OF ZONING APPEALS

19 FEBRUARY 2002

PAGE ELEVEN

IX C LYKINS OIL COMPANY APPEAL OF PLANNING COMMISSION DENIAL

Joe Trauth, Attorney with Keating, Muething and Klekamp said I represent Lykins Oil Company. Lykins Oil owns the service station at 11444 Springfield Pike. Until January 1st it was a Shell station. The customer is confused because they see the Shell colors and it is now an Exxon station.

Exxonís national logo colors are the colors of our flag, red white and blue. We came in initially with the Exxon colors (showed picture of a typical station in another area) with the red band around the canopy. We came in December before Planning with that, and it was tabled. We came back in January to ask if we could shrink the band from 24 inches to 8 inches. So we came in with an eight inch red band with the rest white, and Planning was unable to decide on that. We have an earthtone gray building with the Exxon red awning. The Exxon name would be on two sides of the canopy and the band would be on four sides.

We would prefer option #1, which is what Exxon has everywhere else in the country. (He passed around a packet of materials showing their national logo.) We think it is not inconsistent with White Castle or a Shell, but we do need to resolve this because right now we have Shell colors in an Exxon station.

Iím sure you have seen them all over the city; we believe it is attractive. With us here today are Tim Martz from Lykins Oil and, Jim Thacker of Reliable Sign to answer any questions. We also have the operators of the station here. We feel we meet the code in that we have a color scheme Ė the gray earthtone building with the colors of Exxon as the highlighted colors, and that is exactly what the code says. "One coordinated color scheme shall be utilized for all structures. Said color scheme shall have a predominant color and may use additional colors to accent to mark or otherwise provide interest and or to achieve a more compatible scale for the individual structure."

There is a suggestion of the earthtone, the gray is the earthtone and is the gray that has been there before. The accent color on the building is simply the awning, and the accent colors on the canopy are the trademark colors, the Exxon colors.

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

Addressing Mr. McErlane, Mr. Okum said we have had some information presented to us. We have had sections of our Corridor Review District identified to us by the applicant. We have Ms. Christy Holmes here from the law directorís office to make sure that this hearing is held appropriately. I want to make sure that everyone understands that this is not a zoning issue, and the normal criteria for approval of zoning variances donít apply. We are reviewing the issues of upholding the decision of the Planning Commission of denying their request or reversing their decision or reversing their decision with conditions or no conditions. Those are our basic options.

BOARD OF ZONING APPEALS

19 FEBRUARY 2002

PAGE TWELVE

IX C LYKINS OIL COMPANY APPEAL OF PLANNING COMMISSION DENIAL

Addressing Mr. Trauth, Mr. Okum said you are a legal counsel; do you have any comment in that regard?

Mr. Trauth answered I have one clarification. In your code, Section 153.422 the Planning Commission didnít technically deny the request, but by operation of the law, if they fail to act after two meetings, it can be deemed by the applicant to be considered a denial and brought to your board. Mr. Okum said so you have considered it a denial. Mr. Trauth answered under your code we did. Mr. Okum continued so by no action by Planning Commission was it denied. The applicant has indicated that their interpretation of that was that it was a denial. Addressing Ms. Holmes, he asked if that were correct per your understanding.

Ms. Holmes answered that is correct. For purposes of this hearing, we will consider it a denial so that if you refer the decision, even though there is no technical decision in the sense that we all understand it, you are approving what was submitted. If you reverse the decision with conditions, you are approving what was submitted or something similar to what may have been submitted with your own comments.

Mr. Okum said that he would appreciate it if we had a point of reference here. The applicant indicated at the first meeting that they submitted a color band that was all red with the Exxon signature on it. At a second meeting, the applicant submitted a second proposal to the Planning Commission, and I want to know which proposal we are reviewing. My understanding would be that the second submittal by the applicant would be their submission, so we should be reviewing the second and most recent submission, not the full red band but the limited red band. We had a full red band submittal with the Exxon signature on it and the applicant went back, modified that request and submitted a second set of drawings with an eight inch band. Is that correct?

Mr. Trauth confirmed this, adding that he wished to clarify this. The original submittal with the 24 inch red band is really what we have applied for, what we wanted and what we asked for, because it is consistent with the Exxon national trademark. At the suggestion of Planning Commission, we came back with the second proposal as an alternative. We would like you to consider the first proposal that we submitted to Planning Commission and did not receive a decision on as our first choice. Reluctantly, we would accept the second choice, because we donít think that is as attractive as the first.

Ms. Holmes commented that she thinks that understanding is correct. In fact, it is my understanding that the materials that were submitted with this appeal actually included the first submission. Therefore what you are looking at is the original submission to the Planning Commission. Certainly you can consider the alternatives that were given or any other alternatives you may come up with when you make the decision. In terms of a flat reversal or affirmation of the "decision" below, you are looking at the original wide red band submission.

BOARD OF ZONING APPEALS

19 FEBRUARY 2002

PAGE THIRTEEN

IX C LYKINS OIL COMPANY APPEAL OF PLANNING COMMISSION DENIAL

Mr. Squires said so we are considering Option #1, the wide band with the large Exxon letters on it. Is that the one that was denied by the Planning Commission? Mr. Trauth answered technically that is correct. Mr. Squires added I am looking through the notes of the Planning Commission, and it looks like one of the objections was

the bright red logo. That is in the Route 4 Corridor, and it is not consistent with the colors. There were several members who objected to the red band because of it being in the Corridor District. Other members objected to the distraction of the halogen lights. Are those lights a part of the original package as well?

Mr. Okum swore in Mr. Martz.

Tim Martz of Lykins Oil Company said there was some objection to the lights, putting lights out as opposed to down. At the second meeting, we brought in a system showing that we could change that light. As part of an overall package, we were willing to change the lights.

Jim Thacker of Reliable Petroleum Systems (which sell the lights) said what I proposed to do at the previous meeting was that there is a diffuser that goes up around the bulb. Instead of the light being so bright, it cuts the light that you actually see down. You only would see a bright light if you were standing right underneath it and looking up at it. It is similar to what you have here with your recessed lights. There are canopy lights that are there today. Mr. Okum added that it is being relamped, and you are offering that as an alternative with a directional lens adjustment that would direct the light down further for non-glare purposes.

Addressing Mr. McErlane, Mr. Okum said there are other items in our Corridor Review District that Planning Commission was reviewing with the applicant regarding chromatic colors and accents. There was an excerpt read from our Corridor Review District that only referenced blending colors and accents. It was not a situation where Planning Commission was not working with the applicant. The time expired. Two meetings passed, and the applicant took that as a denial. There are issues that were a part of the presentation of a red canopy that was placed on the front of the building without an approval that did not conform with the Corridor Review District. The lights were also mentioned on the canopy because it was being considered for refixturing and the band around the canopy was discussed. Those were the three issues. Is that correct?

Mr. Martz responded we are not actually talking about changing the underneath lights of the canopy. We are talking about diffusing them. Iím not sure that the red canopy that was placed on the building was made an issue. Phil from Lykins Oil put it up not knowing that he had to get approval, so it was agreed that it was put up without approval. We apologized for that.

Mr. Okum continued so the three items that were not approved by Planning Commission were the red canopy on the building, the canopy over the pumps in its entirety being a red band, and the lighting issues with that canopy if it were relamped.

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Mr. Martz responded we did not submit to change the underneath lighting. It was at the suggestion of the Planning Commission. Mr. Okum said I asked if you planned on changing the fixtures or modifying the fixtures or could you modify those fixtures, because they are currently a glare issue.

Mr. Martz responded it was not part of our original application. We were going to leave the lights as is, under the canopy. Mr. Trauth added that they apparently agreed to make some changes. Mr. Okum confirmed this, stating that they presented an adapter lens to go on the bulb that would direct the light down and out instead of out to the side. They were going to provide locations where that was used.

Mr. Borden said so then is the major issue the color, the bright red? Mr. Okum responded I think Mr. McErlane has found the section in the code that our planner referenced in her report.

Mr. McErlane reported that there are two paragraphs in the same section that apply. Under general requirements in the State Route 4 Corridor District and specifically under building design color and materials, there is one paragraph (153.423(A)(1) that says "all buildings and structures to be constructed within the CRD shall have an equal level of finish on all sides and shall generally utilize no more than two primary materials with one or two accent materials. Building colors shall primarily consist of earthtones and the use of bright high chroma shades as dominant building color shall be prohibited." It goes on and talks about roofs and mansards and in paragraph 3 it says "one coordinated color scheme shall be utilized for all structures. Said color scheme shall have a predominant color and may use additional colors to accent to mark or otherwise provide interest to achieve a more compatible scale for individual structure."

I think the issue of the red was that in paragraph 1 it says that building colors shall primarily consist of earthtones and the use of bright high chroma shades as dominant building colors shall be prohibited.

Mr. Trauth stated that our position on that is that high chroma shades as dominant building colors is not what we are doing. The building color is gray and the accent color is the red. Paragraph 1 says building colors shall primarily consist of earthtones. That is the grey in our building. The paragraph further says that the use of bright high chroma shades as dominant building colors shall be prohibited. We donít intend to do that; the building color is grey. Paragraph 3 says that one coordinated color scheme shall be utilized for all structures. Said color scheme shall have a predominant color and may use additional colors to accent to mark or otherwise provide interest or achieve a more compatible scale for individual structure. One reason for the red awning accent color on the building is to tie in with the Exxon logo and in their nationally registered trademark Exxon in red and the band red around the canopy.

 

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Addressing Mr. McErlane, Mr. Okum said your understanding is that the structures that he referenced and buildings are two entities? Mr. McErlane reported that in the Zoning Code, the definition of building also includes other structures as defined in the Building Code as a structure. Certainly under the Building Code it is considered a building. We would consider a canopy a part of the building. Mr. Trauth commented it is a structure; I wouldnít define it as a building.

A building is defined as something that is enclosed on four sides.

Mr. McErlane responded it wouldnít be our interpretation to totally neglect what is done with the canopy, because most people wouldnít call it a building. The definition within the Zoning Code does define it as a building. Mr. Okum responded so our Zoning Code identifies the canopy as a building structure. He asked Mr. Trauth if he had that section of the Zoning Code? Mr. Trauth answered that he didnít, adding that Mr. McErlane has the definition section. Mr. Okum asked Mr. McErlane to reference it and provide it to the applicant. Mr. McErlane read it. "Building is a structure which is permanently affixed to land, having more than one floors and a roof being bounded by open space or lot lines and used as shelter enclosure for persons or animals or enclosure of property. Buildings shall also be construed to include structures as defined in this section unless otherwise noted, and shall be construed as followed by the words part or parts thereof unless otherwise noted." The definition of structure is "That which is constructed on or under the ground or attached or connected thereto including but not limited to buildings, barriers, bridges, bulkheads, chimneys, fences, garages, outdoor seating facilities, parking areas, platforms, pools, poles, streets, tanks, tents, towers, sheds, signs, walls and walks. The term structure shall include all mobil homes boats, trailers in this chapter except those resting on wheels." I didnít see canopy in here, but it included everything else you can think of.

Mr. Okum said we have to resolve this issue in itself. You have heard Mr. McErlaneís indication that this canopy is a building in itself, and part of the site. So, we are considering it as a building, and therefore considering it as a building, do you feel your request for the red band at Planning Commission is consistent with the Corridor Review District and its requirements?

Mr. Trauth answered absolutely. If you measure the surface area of the primary building and the amount of gray surface area, you would find that it is the predominant color, and the red in proportion is an accent color.

Mr. Squires asked if Planning not acting on this a formal veto of this, or is this a time reference where they didnít get to act on it. Mr. Okum responded that by not acting, the applicant has the option of considering it a denial, and this applicant has considered it as a denial of their request. Mr. Trauth added that this was mainly because we had a time problem with the January 1st and the Exxon station with the Shell colors only. We have confusion with the customers.

Mr. Okum responded I understand, but now we are faced with it being February 19th and it is still not resolved. A week ago it possibly could have been resolved at Planning Commission. It is your option. Mr. Trauth commented that it was a judgment call.

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Mr. Squires continued that the three contentious issues are the red canopy on the building, the red canopy on the pump islands and the lamp power itself, which is going to be taken care of with diffusing panels. Mr. Okum said they have offered to do the lamp power; that was not a part of the requirement.

Mr. Trauth said let me add this to the equation. I know you have the benefit of having legal counsel here. I began my legal career in 1973 in land use planning and zoning issues. One of the first cases I had was a case against the City of Forest Park when they tried to deprive my client, the Cincinnati Board of Realtors, of the utilization of trademarks and trade logos in signage on for sale and sold signs. They had an original ordinance that prevented the use of for sale signs in real estate. The United States Supreme Court declared that unconstitutional. They then went to since we canít limit for sale signs, we will limit sold signs. They wanted to limit them by requiring them to be green lettering on a white background and a certain size and a certain shape and can only stay up for a certain number of days, I believe it was no more than two weeks.

That provision of their code was deemed to be unconstitutional by our courts here in Hamilton County. The reason was because they were depriving the individual realtors of their trademark and their logo, and that was a deprivation of freedom of Speech. That becomes an issue only if the Springdale Code is interpreted to deprive a national company or institution of its ability to market itself and use its free speech, which is its logo, for which they have spent a lot of money in advertising, then that in my opinion would be a deprivation of the Exxon Corporationís free speech.

We are willing to work with you within the parameters of a national corporation that has a trademark and has a logo for which they have spent a lot of money. You can see some of the literature I presented you with. To deprive someone of their free speech right of a trademark is in my opinion going beyond the scope of the police power of the municipality to regulate property use.

Mr. Okum stated I did not hear any comment from Planning Commission in regard to the Exxon logo or the placement of the word Exxon on your sign or being in variance to the amount of sign space for the Exxon logo in any of the deliberations or discussions. You are indicating that a color band is a piece of signage that is part of their logo and their identity. Therefore, if that is the case, my opinion would be that the entire red band and the Exxon sign should be considered sign space, and therefore to be calculated in the amount of sign space that the site is allowed.

Mr. Trauth answered I donít think it is a part of the sign. I think it is part of the trade dress; there is a distinction there. Mr. Okum said if you paint the building red because it is a trade dress that makes it conforming to the Corridor Review District?

Mr. Trauth answered the best example is the trade dress of White Castle, which is a castle shaped building with white as a predominant color and blue as an accent color. That is the trade dress of White Castle, so you could consider their whole building a sign if you took that interpretation.

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Mr. Okum responded that is what you are saying. Mr. Trauth answered I am not saying that. I am saying that this is a part of a trade dress, just as the White Castle building is part of their trade dress. It is not a sign. Mr. Okum asked if a sign company constructed it. Mr. Trauth answered that non-sign companies make the canopies. Mr. Okum asked if the red band on the canopy were made by a sign company, and Mr. Trauth answered no, adding that Bob Reddy of Lighting Systems Inc. in Blue Ash manufactures these canopies, and he is not a sign company.

Mr. Okum said one of the questions that came up in Planning Commission was what you had as a packet that is used as a national trademark for Exxon. Obviously there are other limited zoning districts where there are color restrictions. It was never submitted to us, but I have here a pump placement guidelines service bay which shows pumps and a canopy similar to what we have in this location with three pumps underneath it. It shows red white and blue on one side with the Exxon logo, and it shows a plain blank side on the other side. Why not something like this to resolve this? It is in Exxonís book and meets their standards.

Mr. Trauth said I donít know what section that was. Mr. Squires said it is the point of purchase placement guideline, and he showed Mr. Trauth the picture. Mr. Trauth said they are only giving one elevation of Exxon with their red white and blue. I believe that is intended to be carried around the four sides.

Mr. Martz added that it looks like they are showing the point of purchase placement guidelines, which are the things that go over the dispensers. Mr. Okum said so that is not their canopy design. Mr. Trauth added those are all point of purchase eye level type things, and not a canopy design.

Addressing the board, Mr. Okum said we have the option of upholding the decision, or reversing the decision with conditions or no conditions.

Addressing the applicant, Mr. Borden asked if there were a canopy design that you could present?

Mr. Trauth answered we have presented two alternatives. One is with the 24 inch red band, and one is with the eight inch red band. We prefer the 24 inch red band as an accent color. One of Planning Commissionís objections to the eight inch red band was that there was too much white showing beneath the red. Mr. Borden asked if the canopy were illuminated and Mr. Trauth answered that the red band is backlit. Mr. Borden continued that you are going to have the red band lit, plus you have lights shining down. Mr. Trauth responded the lights shining down are strictly for the customer to see what they are doing, and they would be directed down to eliminate the brightness as Planning Commission recommended. Mr. Borden asked if the Exxon name were lit also, and Mr. Trauth answered that it is not backlit, but the actual letters are lit.

Mr. Borden said this is not flat like we are looking at here, is that correct? Mr. Thacker said that they protrude out approximately four inches so they are flush with the red band.

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Mr. McErlane said my understanding is that the Exxon sign itself has a red face and either clear or white sides and the light projects out around the edges of the letters. This is similar to the red band, which has a clear bottom face to it and clear edges so the light projects more out of that than through the red itself. Mr. Thacker confirmed that it has a clear bottom and the light projects below that as well as through the red.

Mr. Borden said when this whole area is lit at night, will it create a distraction to motorists? Will the lighting project off your site? Mr. Thacker answered that the red band would not, and one of the purposes of putting up new fascia is to take the lighting that is already there and is offensive and tone it down so it is not. It actually would be better.

Mr. Trauth added I believe you are directing light downward so that you donít have spillage offsite. Mr. Okum commented that the canopy is almost on the right of way, so it would be almost impossible for them not to have spillage.

Mr. Thacker said we are talking about reducing the glare from underneath the canopy. Mr. Borden asked about the canopy itself, and Mr. Thacker answered the canopy that is there right now is backlit. Weíre going to put the same thing up there, but weíre going to change the color. Mr. Trauth added that the canopy you see there now is already backlit. It is just a replacement of one brand for another, Shell to Exxon.

Mr. Squires said so you are going to tear down the existing canopy and replace it with either the eight-inch or 24 inch band. Mr. Thacker answered that we will change just the fascia board, not the whole canopy. Mr. Trauth added that is why the picture we submitted is a little deceiving, because this is more of a rectangle and the canopy is more square. This is not site specific.

Mr. Okum commented I guess we have a philosophical difference in the interpretation of our Code. Our City Planner has interpreted that placing a red band on this structure/building is not in accordance with the Corridor Review District. Is that correct Mr. McErlane? Mr. McErlane confirmed that. Mr. Borden asked what color would be acceptable, and Mr. Okum answered earthtones, and colors that are not high chromatic.

Mr. Trauth responded that your city planner is not giving you a legal opinion; she is giving you a plannerís opinion. Her opinion is that the yellow and the gray complied, which is Shellís logo, but the red does not comply, which is Exxonís logo. Mr. Okum commented I donít think I heard in any of the discussions that yellow and gray complied. That predates the Corridor Review District, so I donít believe that was in any way referenced by our planner.

Mr. Trauth commented that the gray would be an earthtone, I would think, and the yellow would be chromatic. Mr. Okum said red is chromatic and blue is chromatic. Mr. Trauth commented that any of the blue on the White Castle building is chromatic.

 

 

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Mr. Trauth commented even interpreting it like I am hearing you interpret it, the key to the whole thing is whether or not the predominant color of the building is earthtone. We say that it is. Section 153.43(A)(1) "building colors shall primarily consist of earthtones and use of bright high chrome shades as dominant building colors shall be prohibited." We are saying that the predominant building color is gray; the predominant building color, even if you include the canopy and the structure of the building together, the dominant building colors are not

High chromatic. In (3) "additional colors to accent the mark or otherwise provide interest" is allowed. We are saying that the red is allowed as an accent color; it is not the predominant color.

Mr. Okum commented so what we are discussing here is the amount of red. Mr. Borden asked if what has been submitted is considered a coordinated color scheme. Mr. Okum answered frankly what I see there is not because we have a yellow and white and gray. Mr. Martz said that the yellow will be gone, painted gray, the same color as the building is now.

Mr. Trauth added that the only thing that would be red on that building would be the awning. So you would have a totally gray building with a red awning and a canopy with a red band. We could go with either band but we would prefer the wider one. Mr. Borden said so you are willing to accept either proposal here, and Mr. Trauth confirmed this. Mr. Borden said so your colors are gray, red and white; do you have any blue? Mr. Trauth answered that the blue is on the pumps and the gasoline sign, which falls in with the flag colors.

Ms. Holmes said I would like to clarify the legal position provided to you in preparation for this meeting and as it exists until today. To a certain extent I do disagree with the applicantís interpretation. I do believe the definitions of our code identify this at a minimum as a structure, and structures do fall within the definition of building. Therefore, I think you can look at this canopy in and of itself and apart from what we are talking about as a building you walk into to pay or buy sundries. You can take the interpretation that the main color on this canopy/structure/building needs to be earthtone to meet the current special Corridor District regulations. As was mentioned, this was a preexisting non-conforming use, but once it is changed, it loses that status.

In regards to the corporate logo, I want to point out that I do take a different position. The city sign regulations are content neutral. They serve a specific identified purpose that I do think is lawful and valid. I think what we are looking at here is the same reason that if you travel to the city of Dublin in Columbus, you will find a Loweís Home improvement store that is completely brick. You donít see any of the traditional blue that you see on Loweís. It is zoning. Itís what we are all here to revitalize our communities to do. I wanted to clarify for you my position on those issues.

Mr. Okum said I have to agree with you 100%. I consider the canopy a building structure. I do find the predominant color on the submission by the applicant (Option 1) to be red. I would have to turn my head upside down to know what is on the bottom of the canopy, so I canít consider a face that is upside down to be the face of the exposure.

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Mr. Okum said when I look at a building; I look vertically, not horizontally. Thatís like saying that the roof surface of this structure is also white and not red. It doesnít make any difference. It is what you see and what is observed is a predominant red band being wished to be placed on the building. From that point, I would like to see something softer, something less, something to conform to our Corridor Review District, and I have not seen that.

Mrs. Pollitt said one of the things that I am concerned about is that this is the corner where we are going to start our redevelopment, Phase 1 for the Route 4 Corridor. This will be a gateway to our City from the south, and I would really like to see our codes observed in terms of colors. We are going to be doing a lot of redevelopment over there, and I donít want to open the door for other companies to come in and say you gave that to Exxon and have us being backed up against the wall to honor their requests for their types of signage or their colors.

I understand your trademark is very important, but if I had to pick one or the other, I donít like the red and the white. It looks outdated to me. Again, I have to agree with Chairman Okum that when you are looking at the red band around there, that is part of the signage also. I perceive it as being part of your signage.

Mr. Trauth stated that the code is not specific when it uses terms like predominant. It leaves a lot to interpretation. I heard the chairman indicate that the predominant color of the canopy would be red. If you are looking at the canopy as you walk in or are standing there, if you are right under the canopy you would look up, but if you are looking at it like this, I would think the color of the underside of the canopy also would be considered part of the surface, predominant color of the building. So if you took the surface area of the building and the surface area of the canopy, your overall predominant color would not be red. You get into hairsplitting is what I am saying.

When you restrict property rights, you must obey the constitution saying that property rights cannot be taken away lightly. They must have some police power strength behind them and that is health, safety and general welfare of the community. It canít be just something in the eye of the beholder, or something that is nebulous or not concrete. That is the problem I am having in reading your code. I am hearing what you are saying, but you canít just willy nilly say that the predominant color is such just because I perceive it to be such, because the code really doesnít define it.

Mr. Okum responded so what you are saying is that is what is observed. Mr. Trauth answered that is the way it seems to be interpreted here. I think predominant color would have to be actually physically measured to interpret it under the code. Predominant means 51% or more. Thatís not what I am seeing here in what we are presenting, in either Plan 1 or Plan 2.

 

 

 

 

 

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What I hate to see if good people like yourselves who are trying to do something for the community to overturn a code that is trying to do that for you on a constitutional basis. What happens with these codes, if you push them too far, is that they get overturned. Your legal counsel may disagree with me and may say it is for good purpose, and that is why we are lawyers and argue the law.

Mr. Okum said I think the purpose of zoning is restrictive. The purposes of corridor review districts are more restrictive and the purposes of corridor review districts are to enhance, improve and improve the quality of life for all the people associated with that corridor review district and those who participate and use that corridor review district. Of course it is more restrictive.

Mr. Trauth stated that it has to be directly related to the health, safety and general welfare of the community. Mr. Okum said I disagree with that, because there are color standards set in the City of Montgomery and about 10,000 other cities in the State of Ohio and the United States. As far as the public health safety and welfare specifically being a zoning issue, that would be an argument for all communities, including Dublin and the City of Montgomery. Sure, there are issues, but the issue is that Planning Commission was trying to resolve and working with the applicant and you never gave them the opportunity to.

At this point you have assumed it was a denial, and this board has to make a decision whether that denial should stand. It doesnít mean that you canít resubmit to Planning Commission to conform to the Corridor Review District. You would have that option because there is not a time line restriction that would prohibit you from resubmitting it to Planning if it were denied.

Mr. Trauth said that there is something in the law called a regulatory taking of a property right. You can confer with your legal counsel on that. Mr. Okum responded I understand. The business has not been restricted from operating, nor has it been restricted from completing its changeover. It just didnít happen. Your applicant agreed for it to be tabled and extended. Mr. Trauth responded only because Planning Commission said come back with something else and we came back with something else and there was still a non-decision.

Ms. Holmes said I would like to point out to the board that I think it should consider both the first option and the second option submitted in terms of whether those items meet the Corridor Review District and/or at least meet the interests of the City when it came up with those restrictions. If you feel strongly that the first option did not, I think you should at least consider, for the record, whether the second submission in fact meets the regulations and/or at least substantially meets them to the extent that you think any variance from the Code is required here.

Mr. Trauth added that we might also want to clarify the health, safety and welfare requirements of zoning. Ms. Holmes responded that is why we are lawyers and disagree on certain things. I do think there is a legitimate interest here of the public safety, traffic safety, maintenance of appearance, curtailing visual clutter, all of which has been upheld.

 

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Mr. Trauth said I just wanted a clarification that restrictions can be made as long as they are for the general health safety and welfare of the community. I am just citing constitutional principles. We had a disagreement with the chairman on that.

Mr. Okum said no you did not. You were citing that our code is restrictive and my interpretation of what you were saying is that we were being overly restrictive interpreting our code the way it is written and prohibiting your client from enjoying the public health safety and welfare that he is equal to as well as all the rest of the people in the community.

Mr. Trauth responded all I was saying is that the zoning power is given to municipalities as long as it reasonably relates to the health safety and welfare of the community. Mr. Okum said I canít see anything in our code that does not.

Addressing Ms. Holmes, Mr. Squires said if we were to take no action on this, where does that leave us, the Court of Common Pleas? Ms. Holmes responded I think you need to take some action but the applicant could certainly file an action for injunctive relief seeking a determination or seeking the court to overturn what we have done. They also could file for injunctive or declaratory relief seeking a declaration that our code is unconstitutional. I think you have certainly heard at least a hint here tonight that that might be the route that they go. Again, I think we should consider what it is that these regulations were intended to meet. Is there something here that satisfies the board? Is there another alternative that we can pose that does satisfy the board?

Mr. Squires responded suppose that we denied both Options 1 and 2. Where does that leave us? Ms. Holmes answered then we would have an affirmation of the denial. The applicant could make an administrative appeal to the Court of Common Pleas at that time. That would be the next step. Mr. Squires said or resubmit. Ms. Holmes responded that they could choose to resubmit. From what we have heard this evening and based on the time frame, I think the City probably would be looking at some court action.

Mr. Okum said I think Ms. Holmes has made a recommendation to the board that a motion should be brought forward either for Option 1 or 2 so the applicant has a clear understanding of the position on the board and their interpretation of Planning Commissionís denial of Option 1.

Mr. Trauth commented that the board has the right to make their own option, Option C. Mr. Okum commented unfortunately I donít have an Option C.

Mr. Squires moved that the Board of Zoning Appeals accept what has been presented to us as Option 1, the 24 inch red band and the large Exxon letters as appeared in this picture dated 5/17/51. Mrs. Pollitt seconded the motion.

Mr. Okum said we have a motion to accept Option 1, which is a reverse of the decision to deny Planning Commissionís non-action to Option 1. I think approving that would not be in the interests of meeting the standards set forth in the Corridor Review District.

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Mr. Okum added I believe the eight-inch band would be more in conformance with that, because it is considered an accent color and not a predominant color. Therefore, I will be voting in opposition to the 24-inch band, as I feel the single eight-inch band would be considered an accent to the predominant color on the building.

Ms. Holmes I want to clarify for the board what I suggested before when I suggested that you consider both options. I donít believe it would be appropriate to make or pass any motion approving or denying the second option. I think there needs to be one motion to either reverse or affirm or reverse with conditions. In that motion we should consider both options, but because this appeal is based on a submission of Option 1, if we are looking at going to the Court of Common Pleas, the Court will be looking at whether it was appropriate for us to deny the applicant Option 1. We donít want to put the court in a position of deciding whether or not it was appropriate for us to deny Option 2, because that is not specifically before you, other than as a consideration in whether you affirm or deny the action below.

Mr. Trauth answered it was specifically before the board, because we submitted it as a second alternative at the boardís request. Ms. Holmes responded so here today you are asking that the board make a determination? Mr. Trauth answered I would like you to consider each one.

Mr. Okum said my position is exactly that. If it doesnít carry at this level and it did go to the Court of Common Pleas for consideration, I would want the Court of Common Pleas to review Option 2, the narrower band, as a consideration. If that doesnít carry, at least that is a consideration for them to review. Ms. Holmes responded as a board that is your prerogative.

Mr. Okum said Iím not sure I am going in the right direction either. I want to be fair to the applicant and I would like to keep it out of litigation for the applicant'í benefit. Certainly I think the applicant has expressed a willingness to reduce the stripe down to an eight inch band, which is closer to leaving more natural colors, less predominant red and being more in tune with the Corridor Review District. On the other hand, I would like to see them come back to Planning Commission and finalize that, but at this point itís not going to happen. That is the reason that I canít support the full band because I would vote to deny and I would have a problem with voting to deny because I think the resolution is would be to bring it down to eight inches which reduces the amount of red which is in opposition to the Corridor Review District. Then if you look at a dominant color, the red is not a dominant color as the applicant has indicated on the White Castle with the blue band. The predominant color on your building is grey, and the Corridor Review District says one or two colors and an accent color. Mr. Trauth responded it doesnít say a specific number; it says have a predominant color and may use additional colors to accent.

Mr. McErlane said we need a clarification on the way the motion was stated. I think what we are looking at is overturning the Planning Commissionís action with the consideration of one of two options, plus whatever other restrictions the board might consider. Or the motion should be to sustain Planning Commissionís action.

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Mr. McErlane continued if I understand correctly, the motion should have been to overturn Planning Commissionís action with consideration of Option 1. You may want to consider withdrawing your motion and restating it.

Mr. Squires withdrew his motion and Mrs. Pollitt withdrew her second.

Mr. Borden said so we are looking at Option 1. If we make a motion and deny that submission, and then we look at Option 2. Are we going in that direction or are we looking at this as one complete package that we are going to deny?

Mr. Okum responded it is a matter of making a decision to overturn Planning Commissionís denial with conditions or affirm Planning Commissionís denial with no conditions.

Ms. Holmes commented this is getting very sticky because the applicant has now requested to make a determination based on both submissions. Having that clarification from the applicant, I think it would be appropriate for this board to make a motion to affirm the decision of the Planning Commission below, which rejected Option 1. Then a separate motion should be made to affirm the decision below and/or to overturn the decision below which denied the submission of Option 2. If you decide to overturn the decision below, you can by your own accord place conditions, such as painting everything that is yellow gray or fixing the lighting as was discussed this evening. At this point, because the applicant has requested such, it would be appropriate for you to do two separate motions.

Mr. Okum said I havenít heard a lot of comment from the board. I would like to hear what you are feeling on this in reference to the Corridor Review District and affirming their denial.

Addressing the applicant, Mr. Weidlich said in Option 2, is there any consideration for changing all that white to gray like the building, and keeping the red stripe with the Exxon name?

Mr. Trauth responded that the problem there is with Exxon. Mr. Martz added I donít think you are interpreting your own code correctly. I am not looking at changing that from white to gray.

Mr. Borden said from where I stand, I am leaning more towards Option 2. The red doesnít appear to be that dominant on the canopy in that submission. I think we can work on it a little bit more, but I am more in favor of Option 2.

Mr. Apke said I agree with Chairman Okumís earlier statements. I believe the red in the first submission is dominant and out of character with the spirit of the Corridor Review District. I believe that the second submission with the smaller red stripe and the white is probably is more in keeping with the goals of the Corridor Review District. I would probably be more inclined toward that option.

Mrs. Huber said I concur.

 

 

BOARD OF ZONING APPEALS

19 FEBRUARY 2002

PAGE TWENTY-FIVE

IX C LYKINS OIL COMPANY APPEAL OF PLANNING COMMISSION DENIAL

Mr. Okum said I think there have been recommendations from staff concerning your painting all the yellow gray, which the applicant already has indicated that they would do. Also, the lighting should be protected for non-glare, which the applicant also agreed to, and that the eight inch is also agreeable to the applicant, not their first choice, but agreeable. Is that correct? Mr. Trauth confirmed this.

Mr. Okum said there would need to be two motions, one to affirm the denial by Planning Commission for a full red band with all the other issues included, i.e. painting all the yellow gray, non-glare lighting and with the red canopy as it exists to remain. The second would be a motion for the same thing, but an eight inch red band.

Mr. Borden asked if there were an issue with the red canopy over the door. Mr. Okum responded that it is an accent on the building, and I would not see it as an issue. It was done without review, but there was a yellow canopy there before.

Mr. Borden asked if he had made a motion, and Mr. Okum said he did, but itís not proper for the chairman to make it, so if someone would just affirm that, we could go with it. Mr. Borden affirmed it and Mrs. Huber seconded the motion.

Mr. McErlane asked that the motion be read, and Mr. Squires said it is to affirm the denial of Planning Commission. Mr. Okum added that it was to affirm the denial of Planning Commission for a solid red striped canopy, 24 inch red band with non glare lighting on the canopy and all yellow on the existing building to be painted out to their new gray.

Mr. McErlane said the motion is to affirm the denial, and you are adding conditions. Mr. Okum said right, shouldnít we do that? Letís make it simple. Affirm the denial for the 24-inch canopy. Mr. Borden added affirm the denial of the 24-inch red band option; that is the motion. Mrs. Huber seconded the motion. All voted aye, and the motion was approved unanimously. Planning Commissionís denial was affirmed.

Mr. Okum said the next item is to approve with conditions and overturn the Planning Commissionís decision.

Ms. Holmes said the motion would be to overturn the Planning Commissionís decision as to Option 2 but to place additional conditions on that approval.

Mr. Okum said those conditions are an eight inch red band, allowing the existing red canopy over the doorway, that the entire building is to be painted out grey, and that the lighting shall be changed out to non-glare to prevent issues with the public right of way. Mr. Borden said I will make that motion, affirm what you just said, and Mr. Apke seconded the motion

Mr. Okum asked the applicant if there were any questions on the motion. There were none, and Mr. Okum said if this were approved, is the applicant acceptable to this. Mr. Trauth indicated that they were.

 

 

BOARD OF ZONING APPEALS

19 FEBRUARY 2002

PAGE TWENTY-SIX

IX C LYKINS OIL COMPANY APPEAL OF PLANNING COMMISSION DENIAL

Mr. Borden commented that the motion is to overturn the Planning Commission decision and place conditions on Option 2. The conditions are an eight inch red band, a red canopy over the doorway, the entire building painted gray, and non-glare lighting.

All voted aye, and the motion was approved unanimously.

Board of Zoning Appeals recessed at 9:40 p.m. and reconvened at 9:50 p.m.

D. Wayne Burnett, 346 Cameron Road requests variance to construct a 1,700 s.f. single family residence at 11649 Greenlawn Avenue. Said variance is requested from Section 153.075(A) "..shall be a minimum 2,000 s.fÖ"

Mr. Burnett said I would like to have a variance to build a house on Greenlawn. My wife and I want to continue living in Springdale and we purchased the lot and then found that there was an ordinance against building a house less than 2,000 s.f.

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

Mr. Apke said looking over your description for reasons for the variance, the first question concerned exceptional circumstances or conditions with the property so you would need the variance, i.e. is it hilly, steep or narrow. You answered no.

Mr. Burnett responded we want to build a ranch house on one floor. When you do that it is very difficult to get a 2,000 s.f. home on a 75-foot wide lot. You can do it but the problem is cost. The problem of building a 2,000 s.f. in that neighborhood boils down to cost. It would cost over $200,000, and that is a real issue.

Mr. Apke commented we recently had a gentleman in here that put a 2,000 s.f. house on a 45-foot wide lot with no variances. It was not a ranch home. The code is specific for 2,000 s.f. and we have pretty much followed that. How much more would a 2,000 s.f. home be than the 1,700 s.f.?

Mr. Burnett answered that it is about $100 per square foot, or $30,000.

Mr. Okum asked if there would be a finished recreation room in the lower level, would he conform to the zoning code? Mr. McErlane answered no, not unless it could be a walkout and the topography of the lot would not allow for a walkout. The exterior walls have to be exposed to no more than four feet above the floor level in order to be included as livable area under the dwelling unit size.

Mr. Borden asked if that would mean a raised ranch. Mr. Okum responded I think what Mr. McErlane is saying is that he would have to go to a two-story or bi-level or tri-level in order to get the square footage, but the applicant has indicated that he wants a ranch.

 

BOARD OF ZONING APPEALS

19 FEBRUARY 2002

PAGE TWENTY-SEVEN

  1. C WAYNE BURNETT 1700 S.F. RESIDENCE AT 11649 GREENLAWN
  2. Mr. Burnett added that the idea wasnít to build another two story because of going up and down stairs. Not that we are disabled, but we are trying to get to a point where we donít have to rely upon going up and down stairs for the necessities of life.

    When we bought the lot we didnít know that we couldnít build a 1700 s.f. ranch home there. That is my mistake, but now that I have made that mistake, I have to appeal to the board to allow us to build this house.

    Iím not saying that it is physically impossible to build a 2,000 s.f. home but for us it is physically impossible.

    Mr. Squires said I would like to address an issue about those lots on Cloverdale, Greenlawn and Smiley Ė that area. Those lots have been divided and subdivided over a period of years. It is true our Zoning Code calls for 2,000 s.f. house with a two-car garage and a minimum 10-foot side yard setbacks. Some of those lots just donít conform to that. We almost feel like we have to take those on an individual basis. If we donít do anything, he could build a 2,000 s.f. house on that lot, and as long as he could conform to codes, he wouldnít have to come before us. What happened at 601 Cloverdale isnít in the best interests of this city, but it did happen. That lot was only 45 feet wide, and the builder arranged the house in such a manner that he met all of our codes, and he has a very bright yellow house there two stories high that is non conforming architecturally to every other house in that neighborhood. Personally I think we have to make some exceptions on those lots in that part of the city. We should consider those lots separately; something is happening in that area of the city that isnít in the best interests of our community.

    Mrs. Pollitt said I think the design of your house is very nice; I drove past the lot and I think it would look beautiful there. I can understand your position of not wanting stairs. I think it would be an asset to the subdivision, and I do think as Mr. Squires said that we need to take a look at those on an individual basis. So it would cost you $30,000 more to get that extra 300 square feet?

    Mr. Burnett answered the house and lot will cost us $182,000. The rate for a ranch home is $100 per square foot, so if we have to add another 300 square feet, the projected price would be an additional $30,000. First of all we doní t need a 2,000 s.f. home, and we certainly canít afford the extra cost. The really big problem there is when you build a house you have to look at resale value. If you built a $200,000 home, it is in a neighborhood where that isnít a good value. There is nothing wrong with the neighborhood, but it isnít the right size house for that neighborhood.

    Mr. Okum commented that the frustrating thing is that you see these situations come up where by virtue of zoning variances, you are rewriting the zoning code for a subdivision. On the other hand, it is hard to say that this subdivision supports 2,000 s.f. homes. So, what is presented to us this evening does not necessarily mean that this is going to be built there. I agree that this is a very attractive home, and it would be very nice to see a home of this type on those lots over there. However, if something happened to Mr. Burnett that would prevent him from building his home, someone else could come in and build a 1700 s.f. house no matter what.

     

    BOARD OF ZONING APPEALS

    19 FEBRUARY 2002

    PAGE TWENTY-EIGHT

  3. C WAYNE BURNETT 1700 S.F. RESIDENCE AT 11649 GREENLAWN
  4. Mr. Okum continued we saw someone build a 2,000 s.f. house no matter what. I think square footage doesnít dictate quality of the home. When you set square footage standards for home, it doesnít necessarily mean youíre going to get a better home.

    The only answer I can find for Question #1 is that the topography doesnít allow you to build a ranch with a walkout basement as a reason that he canít meet the 2,000 s.f. But you certainly could build a 2,000 s.f. house on this lot.

    Addressing the applicant, Mr. Apke said I think this is a beautiful submission and would blend in with the neighborhood very well. But, I think we as a board are in a dangerous area here because we have held peopleís feet to the fire in the past to meet the 2,000 s.f. requirement. We were fairly inflexible on a prior ruling. If we cannot find some exceptional condition, as much as I like the submission, I donít know if I could support it. I would like to hear the boardís comments.

    Addressing the applicant, Mr. Borden said your only reason for not being able to meet the 2,000 s.f. requirement would be economical. Other than that, there is no hardship; is that what you are saying?

    Mr. Burnett answered that it is really an economic issue. When you build a home it is a big investment, and you build it with the idea of how you are going to use the home. We are going to build a one-floor plan house somewhere. We would like to build it in Springdale, because we like Springdale. I could build a two-story house and meet the 2,000 s.f. requirement and maybe even the cost, but it isnít what we want, so I donít think we will do that.

    Mr. Okum said there is a size change on this drawing, from 57.8 to 61.6. Which number are you using? Mr. Burnett answered 61.6. This house as originally designed did not have a basement, so we added a stairway in the garage area going to the basement, which added to the length of the house.

    Addressing Mr. McErlane Mr. Squires said if he had an exit from his basement, that area would be included to total 2,000 s.f. wouldnít it? Mr. McErlane answered no. There are specific perimeters that the basement has to be exposed above grade for it to be included as dwelling unit area. The maximum depth below grade is 4 feet to be included as dwelling area. Mr. Burnett added if you try and elevate it, you add steps to get into the house, and you are defeating your purpose.

    Mr. Okum said I have to agree with Mr. Apke. As terrible as it sounds, I canít vote in favor of this because of the issues of other properties in the same zoning district that we have held to that same 2,000 s.f. requirement. Although I think this would be a major major enhancement to that district, if I approved this, we would be forcing a zoning requirement for that district. We should not approve variances that would drive changing the code. As long as this district calls for a 2,000 s.f. home, we are somewhat handcuffed.

     

    BOARD OF ZONING APPEALS

    19 FEBRUARY 2002

    PAGE TWENTY-NINE

  5. C WAYNE BURNETT 1700 S.F. RESIDENCE AT 11649 GREENLAWN

Mr. Burnett asked if the City of Springdale recognized that a ranch home is different from a two story or a bilevel. When you talk about making exceptions, doesnít it matter what kind of home it is? From an economic issue, no one will ever build a ranch home in Springdale. It would not be a physical can do, but no one would be able to afford it. Your elderly people who live here and want one-floor houses, will never build in Springdale.

Mr. McErlane asked him if he was certain that this is the plan he wants to build. Mr. Burnett answered absolutely; I have a builder right now who is about ready to apply for a building permit.

Mr. McErlane said one of the concerns that I heard expressed earlier was that if the board grants 1700 s.f. and if you walk away from it, then 1700 s.f. is what applies to this regardless of what it looks like. If that is a major concern, I believe the board could condition their variance on the plan and elevations looking generally like what was submitted tonight. You shouldnít get specific, because there might be things that might get tweaked along the line.

Mrs. Pollitt said one of the things I heard at our recent town meeting on January 29th was that we do want to see new buildings coming into our settled neighborhoods. Iím the newest member here, and I donít know the history of what has come before, but I am looking at this house and thinking there is no way that this house could be a detriment to that community. I did hear what Chairman Okum said about setting a precedent. My question is: is there any way that any modifications could be done to this floor plan to loft or something along those lines that would give him the square footage he needs so he could build his home and have his one story plan.

Mr. McErlane answered there probably are other building plans out there that would include a loft. Itís hard to take a ranch plan and build a loft into it. Mrs. Huber asked if a slight increase on the bedroom sizes on the south side help. Mr. McErlane answered it is probably in the neighborhood of 40-something feet, and you would be looking at in excess of seven feet more to try to accommodate 300 s.f.

Mr. Squires said thatís all fine and good, but you are negating what his hardship may be on this. An additional 300 s.f. at $100 per square foot is an additional $30,000.

Mr. Squires asked how many two-story homes are around there. Mr. Burnett answered that the house next door on the corner of Smiley is a two story. The next one south is a ranch and is probably 1200 or 1300 s.f. This will be the largest home in that immediate area. It means that when you go to resell it, it will take on the personality of the homes in that area. If we arenít approved for this, we probably will have a very difficult time selling the lot. What you wonít get are elderly people.

Mr. Okum asked if all four sides would be masonry. Mr. Burnett answered that it has a brick wrap all the way around the house, and the gables have vinyl siding. In the back of the house is a gable area also.

 

 

 

BOARD OF ZONING APPEALS

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PAGE THIRTY

IX. C. WAYNE BURNETT 1700 S.F. RESIDENCE AT 11649 GREENLAWN

Mr. Okum said as I said earlier, 2,000 s.f. doesnít necessarily quality as a quality home. I think we have an application here that we can put conditions on this site that would indicate that the plan and elevations would need to be similar to the existing, and all four elevations should be masonry with the exception of the gable ends. That would be a way of handling this if it is this boardís pleasure.

Mr. Squires asked if we made a motion with the idea that it would be Wayne Burnett and Rita Hoffman as the owners of the lot who would be the builder and it would be the house specified in the plans submitted this evening. Could we grant the variance based on that?

Mr. McErlane responded in the past our law director has cautioned us about trying to condition a variance based on a particular owner. What you are creating variances for are use or setback type issues that have nothing to do with the owner.

Mr. Squires responded I was thinking that if that lot was sold to someone else, they could put a 2,000 s.f. house on there and go up two or three stories if they had to, and as long as they are within Code, there is nothing we can do about it.

Mr. McErlane responded even if you do grant the variance, anybody who would want to build according to the code would not have to comply with the conditions of the variance.

Mr. Okum said I think Mr. Burnett has brought to the table several items that would allow relief in this case. I think they should all be noted as reasons for conditions. He intends to use a plan similar to what was presented to us. Additionally he intends to have masonry on all four elevations, excluding the gables, and the home is to be constructed with a full basement. These should be noted in the motion and should be required as part of that variance.

Mrs. Pollitt moved to grant the variance for the 1,700 s.f. single family residence to be built at 1649 Greenlawn Avenue with brick on all four sides, vinyl gabled ends, full basement and the plans similar to the ones submitted here tonight. Mr. Squires seconded the motion.

All voted aye, except Mr. Borden who voted no, and the variance was granted with six affirmative votes.

D. Vincenzoís Restaurant, 11085 Springfield Pike requests variance to allow the placement of a ground sign to be located 0í from the right of way. Said variance is requested from Section 153.423(B)(3) "..no closer to the public right of way than 10í."

Vincenzo Mazzocca, owner said there was a sign before, and a truck knocked it down. I want to replace the sign, the same color and same size, 4í x 6í and not lighted. The original sign was there 16-17 years.

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

 

BOARD OF ZONING APPEALS

19 FEBRUARY 2002

PAGE THIRTY-ONE

IX. D VINCENZOíS RESTAURANT 11085 SPRINGFIELD PK ĖGROUND SIGN

Mr. McErlane stated that the previous sign was a legal non-conforming sign. The Route 4 Corridor District prohibits pole signs today. There are a number of pole signs that pre-existed the corridor standards. What the applicant is requesting is to place a 4í x 6í sign on the existing pole, which would put it at a 0 setback from the right of way line. My understanding is that the maximum height would meet the 7-foot requirement for monument signs.

I met with Mr. Mazzocca and his sign installer at the site previously, and we looked an alternate location that would place it 10 feet back from the right of way. If you place it that far back with the parking being as close as it is to the right of way line, it ends up obscuring the sign. The day we were down there, there were two vans parked in those locations that would totally obscure the sign.

The drive lane is actually 19 feet from the right of way line, so there shouldnít be any sight distance issues with respect to seeing around the sign.

Mr. Okum asked if there were any right of way expansion anticipated along Route 4, and Mr. McErlane answered that there is in the future, but it will affect more than just the sign. It will affect parking and access and a number of other things that will need to be addressed at that point of time. This is the existing sign refurbished, so we are not talking about a big investment.

Mr. Okum said my only concern is that if the sign is wider than the planter is, it tends to want to get hit. It overhangs a foot, and that is probably why the truck clipped it. I go to your restaurant, and Iíll guarantee that I will walk into it. I appreciate your bringing it down to the seven feet but I really feel uncomfortable about it overhanging t he planter. Is there anyway we can make some adjustments to that sign face to bring it in? I am not worried so much about the street side, but on your parking side I am.

Mr. McErlane reported that the planter is actually stacked up railroad ties. What would it take to expand the planter another foot on either side? Mr. Mazzocca said maybe we can do that.

Mr. Okum said I think if he would bring the planter out to the width of the sign it would certainly help. Mr. Borden asked if he meant expanding it toward the street, and Mr. Okum responded probably a foot each way. If it goes back, it is better. Itís not going to make any difference if it goes back, because you canít park in that space anyway. Mr. Borden commented if the sign is not centered, it is almost like a flag. Mr. Okum said youíre not going to see that much of the pole anyway, are you? Mr. Mazzocca said no, and Mr. Okum said it could be offset a foot. I agree that it is awkward.

Mr. Borden asked Mr. McErlane how far along the Route 4 Expansion project is. Mr. McErlane answered as far as I know, we havenít even started right of way negotiations. I donít know that there is much together in terms of drawings either.

 

 

BOARD OF ZONING APPEALS

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PAGE THIRTY-TWO

IX. D VINCENZOíS RESTAURANT 11085 SPRINGFIELD PK ĖGROUND SIGN

Mr. Okum said Planning Commission reviewed the Church of the Nazarene, and that involved that corridor section. At that meeting Mr. Shvegzda indicated that there were no setback points of reference set.

Mr. Borden commented I certainly see a hardship here, no question about that. Actually, taking it up higher might not be bad. I know we are trying to bring pole signs down, but lowering it could be a hazard. Mr. Okum said if the planter is enlarged to six feet it wouldnít be. Mr. Borden said it would take up the whole parking space there. Mr. Okum reponded it pretty well eats it up anyway. It doesnít need to be wider towards the south; it just needs to be wider east and west. Mr. Borden said that could work; I could support that.

Mr. Mazzocca indicated that he could do that. Mr. Borden asked how much bigger the planter needed to be, and Mr. Okum said it only needs to be six feet on the long way of the sign. It doesnít need to be deeper. Mr. Borden said so will the sign be off center, and Mr. Okum responded I donít think it will make a lot of difference.

Mr. Squires moved to grant the variance to replace the damaged sign to be placed 0 feet from the right of way. The sign shall be the same size shape and color, but changed to 7 feet high and the size of the planter (now 4í x 4í) is to be increased to 4í x 6í. Mr. Borden seconded the motion.

All voted aye and the variance was granted with seven affirmative votes.

D. Loweís Home Improvement Warehouse, 505 East Kemper Road requests variance to allow seasonal bulk storage on the south side of the building. Said variance is requested from Section 153.491(B) "Outdoor storage...shall not be permitted."

Joe Madrigal, Store Manager said I am here to ask for a temporary variance. The actual length from the building to the curb is 35 feet, and we propose three pallets not to exceed 12 feet coming out from the building, and not to exceed 7 feet in height.

Our company was very aggressive in securing this particular location; it is a terrific location, but in comparison to other Loweís, there were some compromises made. The compromise was the actual garden center is about half the size of the other seven stores that I have worked in throughout four states.

They fit this Loweís into the space, but they give us store managers the same budget they would give a store manager who has a garden center twice that size. Herein lies the problem. We are coming into March and the period March through the end of July to mid-August, we sell 70% of our seasonal categories. It is common practice throughout the Loweís to use outside storage. Typically we are able to build corrals in the front of the store and warehouse merchandise merchandise out there and have bulk storage. I understand that different zonings restrict this, and I understand that it is your job to protect the integrity and aesthetics of the community. I would ask for some consideration in allowing us to have a temporary variance so that we may house the necessary goods to supply the needs of the community.

 

 

BOARD OF ZONING APPEALS

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PAGE THIRTY-THREE

IX.E. LOWEíS 505 EAST KEMPER ROAD Ė SEASONAL BULK STORAGE

Mr. Okum opened the public hearing. No one was in the audience, and he closed the public hearing.

Mr. McErlane reported that he is requesting storage 12 feet deep (from the face to the back side of the bagged goods, seven feet high and I scaled what appears to be 500 feet along the back of the building. It works out to approximately 6,000 s.f. and he asking to place it from March 1st through July 30th of this year.

Section 153.491(B) prohibits storage outside of the fenced enclosed areas. There was a previous request that came before Planning in April of 2000 that was for display of products in the corral that they place out in the parking field. That was primarily for display for sale, and I assume this is more for either pickup or staging.

Planning Commission denied that particular request, and one of the concerns was the fact that Loweís was using up a chunk of their necessary parking to accommodate a display of goods in the parking lot.

From the standpoint of outside storage, you can see that there is already some outside storage that is occurring there now. Hopefully that is just staging temporarily until you get it moved. There are also some further down in the cul de sac.

As was pointed out, there is a garden area that is fenced in, but it appears to be smaller than some of the other home improvement stores that you see.

If you look at the plan submitted, the building is pretty much squeezed east and west on that site, so you couldnít enlarge the garden area, at least to the west any further.

Mr. Okum asked if the section with the circle on their property. Mr. McErlane indicated that it was and added dthat the only property the City has in the vicinity is the right of way for Tri-County Parkway. We own an easement down the south property line for storm sewer that drailns to the street. Mr. Okum said if the Tri-County Parkway extension would ever happen, it would not be where this is. Mr. McErlane reported tdhat there is a detention basin there and some additional trees that are still in place.

Mr. Okum commented I donít think the outside storage of that pipe is good, but on the other hand I can understand the situation. I have been in their garden center, and it is fairly tight. I donít have a major problem. I have a problem with the pallets being held outside without being n an enclosed area. Those need to be placed in an enclosure, similar to what HQ had. I think there needs to be some type of screen to create a separation between that 12 foot deep storage and that 500 feet of stuff that goes along there. There needs to be a break, maybe a masonry wall element that would be like 8 feet high that would project 14 feet from the building.

 

 

 

BOARD OF ZONING APPEALS

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PAGE THIRTY-FOUR

IX.E. LOWEíS 505 EAST KEMPER ROAD Ė SEASONAL BULK STORAGE

Mrs. Pollitt said this is a request for a temporary variance. A masonry wall wouldnít be temporary would it? Mr. Okum answered no, but I think you have a pallet issue that needs to be resolved and that could be a part of that pallet corral and would give that separation. Then, they could have their storage there this year and see how it goes.

Addressing the applicant, Mrs. Pollitt asked if he anticipated that he would want this variance every year, and Mr. Madrigal answered that he would.

Mr. Okum said I would not encourage the board to approve any more than a one-year variance, due to the fact that we want to see how it is maintained.

Mrs. Pollitt commented you are talking about a masonry area for the pallets. What kind of screening are you talking about for the rest of it? Mr. Okum answered that if there was a vertical element coming out where that person is standing, at least when you come down Tri-County Parkway and look back there, you would see the masonry element, and have a point of reference. Mrs. Pollitt asked if the other 500 feet would be enclosed in some type of screening, and Mr. Okum answered I donít think that it could be because they will have a forklift pulling those pallets out all the way across there all the time. You would have to have a chain link fence or something; I donít know how physically that could be accomplished, but I donít think you can see that angle of the building from Tri-County Parkway. Mr. Madrigal said you canít.

Mr. Okum continued that at least where that person is standing there should be some type of vertical element that would take care of the screening of the pallet area as well. Maybe even on the other side of the emergency exit doorway. Mr. Madrigal asked if it should be a separate submittal, and Mr. Okum answered that if it were approved, it would be a condition of the variance, and that there be an enclosure constructed for the pallets.

Mr. Apke asked how wide the roadway is, and Mr. Madrigal answered that it is 35 feet. Mr. Apke asked if along the length of that back building there was any egress. Mr. Madrigal answered there is one fire exit. Mr. Apke asked how that would be treated, and Mr. Madrigal answered dthat it would be wide open. Mr. Apke asked if there were any fire hydrants, Mr. Mr. Madrigal answered that there is afire hydrant on one side, and Mr. Apke commented that there is none against the building that would be blocked. Mr. Apke said I could be in favor of this variance with the restrictions that Mr. Okum was suggesting.

Mr. Borden asked where the deliveries come in, and Mr. Madrigal answered that behind us is a dock, an inlet with three loading bays. Mr. Borden said so you wouldnít have any trucks going back along this road. Mr. Madrigal answered that occasionally we will have a lumber truck, which will pull all the way down to the end, and there is a large rolling gate to the left that we unload and bring them in. That is why you have the alcove on the right hand side, a turning area.

 

 

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19 FEBRUARY 2002

PAGE THIRTY- FIVE

IX.E. LOWEíS 505 EAST KEMPER ROAD Ė SEASONAL BULK STORAGE

Mr. Okum asked about the recess, and Mr. Madrigal answered that there is a sliding door that rolls open. Our delivery trucks pull in there, but a semi canít fit.

Mr. Okum asked if the 500 feet would go from the person down to that area, or would it continue all the way down? Mr. Madrigal said it would continue down until you hit the fire exit, and the fire exit would remain open and there probably would be another 30 to 40 feet of usable space. The proposed area is the highlighted area, and he indicated it on the drawing. Mr. Okum commented so it would be directly against the fence and not in the circle. If that is packed out 12 feet, would those trucks be able to negotiate that radius? Mr. Madrigal answered yes, the actual diameter of that alcove is 55 feet. Mr. Okum added tdhat his recommendation was that they put a pallet container area in the front if that is where they are going to keep their pallets.

Mr. McErlane commented that 12 feet on that scale of a plan doesnít come out as far as you may think, and the drive is 35 feet wide.

Mr. Borden asked what they had done in the past in terms of storage. Mr. Madrigal answered that I only have been in charge since November, and they had stuff packed back there. I was raised to do things by the book, and I am a responsible member of the community and Iím going to get permission before I do anything.

Mr. Weidlich asked if that the storage area will stop at the end of the building and will not continue around the circle like this diagram shows. Mr. Madrigal confirmed this, and Mr. Weidlich asked how many feet of storage that would create lengthwise and Mr. Madrigal answered in the neighborhood of 500 feet. Mr. Weidlich commented that the site was pretty obscured from any other business or house. Mr. Madrigal answered dthat the golf ranch is behind us, and there is a whole line of trees; once they bear leaves, you wonít see anything.

Mr. Apke moved to approve the temporary storage along the back of the building from 3/1/02 through 7/30/02 provided that he puts up the screening wall and the pallet enclosure. Mr. Weidlich seconded the motion.

Mr. Borden asked if the board needed to be concerned about the type of storage that is back there. Mr. McErlane reported that the specific request was for seasonal bulk storage. The only thing involved in the variance is the fact that you are requiring the pallet enclosure as part of it. Mr. Borden said so the storage would not include pipes or things like that. Mr. McErlane responded they are talking seasonal bagged goods, mulch, and soil

On the motion to grant the variance, all voted aye, and the variance was granted with seven affirmative votes.

 

 

 

 

 

 

BOARD OF ZONING APPEALS

19 FEBRUARY 2002

PAGE THIRTY- SIX

 

  1. DISCUSSION

XI. ADJOURNMENT

Mr. Squires moved to adjourn and Mr. Weidlich seconded the motion. By voice vote, all voted aye, and the Board of Zoning Appeals adjourned at 11:05 p.m.

Respectfully submitted,

 

 

_______________________,2002 __________________________

David Okum, Chairman

 

 

_______________________,2002 __________________________

Jane Huber, Secretary