BOARD OF ZONING APPEALS MINUTES
18 MARCH 2003
The meeting was called to order at 7:05 p.m. by Chairman David Okum.
Members Present: Robert Apke, Fred Borden, Marge Pollitt, James Squires, Robert Weidlich, Jane Huber, and David Okum
Others present: Dick Lohbeck, Inspections Supervisor
Mr. Borden said on page 5 second to last paragraph, it says "Mr. Dale wondered if the recording was public record." Mr. Borden said it should have said "Mr. Borden wondered . . ."
Mrs. Huber made a motion to adopt the minutes and Mr. Squires seconded. The minutes were approved unanimously.
There was a concept discussion with proposed condominiums at 309 West Kemper Road. This was between residential properties. It had no favorable comments. There were issues such as density, spot zoning. The third item was a zone map amendment for 1311 East Kemper Road from GB. There was a fire there a few years ago. The owner of the property, who is also the owner of the office buildings zoned OB wanted to consolidate the two parcels into a retail use. The applicant agreed to move it into a PUD consideration.
Another item was a proposed drive-thru at Dunkin Donuts. The architect was making the presentation but the City had not received the documents of correct ownership and authorization for us to hear it. The conditional use permit in progress was continued until the next meeting.
There was some discussion on the zoning map amendment to post secondary education uses and the chairmanís report on Don Pabloís painted signs.
Mr. Squires said congratulations on being named vice-chairman of Planning, Mr. Okum.
The applicants were sworn in.
VIII. OLD BUSINESS - none
Kenneth Turner, Safety Director at Ampac said I would like to point out one correction on my application. The last page, description of request and reasons for variance, on question number 1, I answered that there is a steep elevation change on the south side of the building. Itís actually the north side of the building.
Mr. Turner submitted two color photographs of the facility. On the second of the two they superimposed the elevation where the two silos are requested to be placed.
Mr. Turner said on the first picture, 130 Progress Place is on the left and Flo-Turn is on the right. You can see the transformer alongside the building. On the second page the silos are superimposed. They will be 12 feet in diameter and 31 feet high. The roof at that point is 35 feet high. The silos are exactly like the ones installed at 12025 Tri-Con Road. We have started moving some production equipment into 130 Progress Place and need to be able to put silos up in order to economically produce our product. If we purchase that with 1,0000 pound boxes, we will go through a lot of boxes and you get a price break when you buy in bulk. There is a limitation as to how far a tanker truck can pump that resin. You canít put it just anywhere. The vacuuming systems will only go so far. This is about the only place we can put the silos and get use out of them. There is an elevation problem on the back side and elevation pumping problems. The front is a parking lot and on the other side is the water retention pond. Weíll be back from the property line 16 feet. We do realize that the zoning law requires a setback of 25 feet so weíll be 9 feet beyond that limit.
Mr. Okum asked is there a safety issue that the silos couldnít be placed inside the building? Mr. Turner replied space, primarily.
Mrs. Huber asked are they filled from the inside and Mr. Turner replied they would be filled by a tanker truck in the parking lot. There would be a pump along the building to pump it into the silos. From there it would be vacuumed out of the silos into the building and the products produced from that point.
Mr. Okum asked does Ampac own this property to which Mr. Turner replied it is owned by Tri-Con Properties. I have the ownerís affidavit.
Mr. Okum asked if you were to vacate the property, what would you do with the silos? Mr. Turner replied I canít imagine that but if they needed to be taken down, Iím sure we could take them down.Mr. Okum asked are they typically painted. Mr. Turner responded they are galvanized, no they are painted. I actually took pictures of the silos on the other side of the building and those are identical to the ones we are purchasing. We are only purchasing one right now, but would like a variance for two so we can add another one at a later date.
Mr. Lohbeck read the staff comments. The applicant is requesting a variance for the 25 foot minimum side yard setback to construct two 33.5 feet tall silos on the east side of the property. The applicant has indicated that the silos will hold polyurethane pellets. The Zoning Code does not provide an allowance for encroachments for equipment except for HVAC equipment. Staff recommends that the variance be conditioned on only the encroachment of the 2 silos proposed.
Mr. Okum asked are the pellets flammable. Mr. Turner answered if they are heated sufficiently, they will burn but they have no flash point. If you are familiar with the NFPA codes, the rating is a 1.
Mr. Okum asked if you changed processes or products, could a different product be used in the silos? Mr. Turner answered certainly, but we donít have anything that goes in a silo that is flammable.
Mr. Borden asked the life expectancy of the silos and Mr. Turner stated they are virtually the same construction of some that were there when he started there 25 years ago. The ones there now have been there four years.
Mr. Borden asked what is the distance from the front of the building to where you will put the first silo? Mr. Turner estimated 50-100 feet. In response to Mr. Bordenís next question, Mr. Turner stated you need virtually no distance between the building and silo.
The application says 31 feet and the staff report says 33.5 feet high. In answer to Mr. Apke, Mr. Lohbeck said there is no height restriction on the silos.
Mr. Apke said you stated that buying bulk resin is much more cost effective than buying 1,000 pound boxes. Could you give us an estimate on a price per pound of pellets that come in 1,000 pound boxes versus price per pound on bulk resin? Mr. Turner responded itís about 55 cents per pound on the boxes and about 20 cents less for bulk.
Mr. Apke asked is it possible to use the parking lot for this? Mr. Turner replied itís a very small parking lot. It wouldnít be totally impossible but we donít want to use parking space for that if we donít have to. Plus, itís farther away from the machinery. The farther away from the machinery the silo is, the more pumping equipment you have to install. We would probably have to have a secondary pump.
Ms. Pollitt asked is there a variance granted for the existing silo? Mr. Turner replied no, because it is entirely on our property. We donít have the same issues on the other side. Mr. Turner said some of the silos are 54 feet tall.
Mrs. Huber made a motion to grant the variance to the property at 130 Progress Place for the installation of two 31 feet tall silos on the east side of the property located 16 feet from the property line. This is conditioned upon only two silos being constructed, one in the very near future and one at some later date, and they have a NFPA flame rating of 1 with non-flammable material in the silos. Ms. Pollitt seconded.
The variance was granted with conditions with a 7-0 vote.
Bevery Kittaneh, 12027 Benadir Road, said I request a variance for my backyard. It says no more than 35 feet but the patio already exists, nothing else is going to extend farther than the fifteen feet. Itís basically just a patio with walls, a door, siding and four windows on the existing roof and patio. I submitted some pictures. I donít think it will look bad at all for the neighborhood. It will actually improve it, along with my property.
Mr. Lohbeck read the staff comments. "The applicant is requesting a variance to construct an enclosed addition at the rear of the residence, 15 feet from the rear property line. Section 153.102(A) requires the rear yard set back to be 35 feet. The existing main residence is approximately 25 feet from the rear property line and is legal, non-conforming. The current Zoning Code requires 35 feet. A patio cover has existed in the current location of the addition for some period of time but the Building Department has no record of a permit. Under the current code, an open patio cover may project Ĺ of the distance of the required rear yard 17.5 feet set back. An enclosed structure must comply with the minimum rear yard setback. Enclosing the patio for a room addition was first observed in October 2002 and a STOP WORK order issued on November 4, 2002. No attempt was made to acquire the permit and second notice of violation was sent on January 3, 2003. An application for permit was filed on January 29, 2003. On January 31, 2003, the applicant was advised to file for a variance no later than March 7, 2003. The variance application was received on March 7, 2003. Our records do not show existing variances for the house or patio cover. Variances were granted in 1973 and again 1979 for a fence in the front yard. Should the Board of Zoning Appeals grant the variance, several Building Code issues will need to be resolved; lack of foundation, inadequate roof framing, improper roof covering, and adequate ceiling height, etc.
Mr. Lohbeck said Iíd also like to point out that we found out the existing utility shed is closer than five feet and we have no variance on that.
Mr. Okum asked where is the existing storage shed? Ms. Kittaneh showed that is six inches inside the property line next to the fence.
Mr. Okum said we have an e-mail from Jane Nickel sent to Mr. McErlane on Tuesday afternoon regarding the variance at 12027 Benadir Road. Mr. Okum said I will not read it because it is a public hearing and without any evidence I canít accept it, unless the board wants me to.
Ms. Pollitt stated Council often receives e-mails and as long as they are signed they are read into the record.
Mr. Okum replied I agree with that but this is a public hearing, a legal action. I donít know if that could be considered evidence. Ms. Pollitt asked how is this any different than the resident being here?
Mr. Okum said I donít know if this resident is this resident. Ms. Pollitt said her e-mail address has her first name, last name and she has signed it.
The board asked that it be read into the record. "Pursuant to our telephone conversation this morning, Iím sending you this e-mail regarding the requested variance to allow the construction of a patio enclosure 15 feet from the property line at 12027 Benadir Road. As I had mentioned to you I am unable to attend the public hearing scheduled for this evening but wanted to voice my concern regarding the request. My concern is that the size of the lot is too small to accommodate the construction of an enclosed patio without it looking cramped. Because of the location of the property this will be quite visible even by those passing on the street or sidewalk. I have been a resident of Heritage Hill and have owned my house at 1048 Terrytown Court for over 25 years.
I am very concerned about the community maintaining high standards in regard to the upkeep of properties in this area. Thank you for your consideration. Sincerely, Jane Nickel"
Mrs. Huber asked are you the owner of that property? Ms. Kittaneh replied yes, we have owned it since 1999. Mrs. Huber asked who is Dennis Hall? Ms. Kittaneh answered he is my nephew. He did the work.
Mrs. Huber asked how are you going to address the building violations? Mrs. Kittaneh asked what do those apply to? We have lived there since 1999 and I had no idea.
Mrs. Huber asked you didnít know a permit was required? Ms. Kittaneh responded no and we didnít build the shed.
Mr. Okum asked did Staff discuss the issues with you of lack of foundation, inadequate roof framing, improper roof covering, inadequate ceiling height? Mrs. Kittaneh replied no.
Mr. Okum stated Staff has reported in their comments that the structure that has been placed on your site is constructed on the existing patio. A patio is not a structural element that supports a room and this is a room. We can call it a porch but basically itís a room addition. As a person who works in the building trade I understand that foundations, footers, etc. are required for these types of structures. There would be significant hardship on you to meet the code standards for this structure. There is rarely any foundation under those slabs. Therefore, to have a room built onto your home would be very difficult. It may mean that in order for you to comply, even if a variance were granted, would be demolition of that structure.
Ms. Kittaneh asked and then a foundation would have to be built up?
Mr. Okum replied yes, a foundation would have to be placed under the exterior wall of the structure and the support to carry the roof load and the structure itself.
Ms. Kittaneh stated we dug down beside it and it was over thirty inches. Thatís what the paper had called for. Itís all concrete under the structure.
Mr. Okum said if you have a footer, then there are other issues that you would have to resolve. Those issues would be ceiling height and roof construction.
Ms. Kittaneh said one picture I submitted shows the roof over the patio is the same roof that is on the house. Are you saying itís too small to be enclosed?
Mr. Okum responded no, Iím not the building inspector or building official. Iím just trying to understand your situation and what youíve got here. If the board denies the variance you will have to remove it. The second option is if they approve the variance you will have to meet all the Building Code requirements set for that structure, which includes ceiling height which is difficult to achieve.
Ms. Kittaneh asked what is the minimum height?
Mr. Lohbeck answered 7í6" from floor to ceiling.
Mr. Okum asked what was the ceiling height inside this structure?
Mr. Lohbeck said I donít have decent drawings to give her a definite answer on anything.
Ms. Kittaneh said the outside is ten feet but I didnít measure the inside.
Mr. Lohbeck said if you look at the picture with the roof sloping down on the outside by the door, the standard door is 6í 8". There is no way you can get 7í6" there by the door. Plus, there are sleepers in the floor installed over the concrete slab.
Mr. Borden asked Mr. Lohbeck, does Staff consider this structure safe?
Mr. Lohbeck replied no, it doesnít meet code.
Mr. Borden asked is there a way to bring this structure into code without demolition.
Mr. Lohbeck replied probably not. The roof will have to come off. According to the drawing, thereís a comment on 2 íx 4í on the roof. You cannot span the 2í x 4í that far to carry the roof load. Plus with the slope of the roof, it should be a built up roof, not shingles.
Mr. Squires said the patio enclosure is 10 feet deep. How wide is it?
Mrs. Huber said her notes show 21 feet.
Mr. Squires said there are a lot of building codes that have to be addressed. If there is a way to do this without tearing it down, I am all for it.
Mr. Lohbeck says there isnít. Who has done the construction for you?
Ms. Kittaneh answered her nephew did.
Mr. Squires said the record shows you did not acquire a permit for this. If you had gotten a permit all this would have been spelled out, which is the reason for the permit.
Ms. Pollitt asked what is a built up roof?
Mr. Lohbeck replied itís an asphalt roof instead of shingles. You canít have shingles on a pitched roof that shallow.
Ms. Pollitt asked what kind of opening do you have between this room and the existing house?
Ms. Kittaneh replied itís the original patio door.
Ms. Pollitt said there is a temporary floor on top of the patio floor.
Ms. Kittaneh responded itís a temporary floor. We had to stop construction.
Ms. Pollitt asked is it built up?
Ms. Kttaneh stated there are 2í x 4ís on the concrete and then plywood on top of the 2í x 4ís. You mentioned the roof and shingles. Shouldnít that have been caught when the house was put up for sale or before?
Mr. Okum replied I canít comment to that. It appears that you had a wood roof system over your patio that was supported by columns that were made of wood. It appears from what you have provided to us that it had a shingle roof on it before you started the enclosure. From the drawings it appeared that you decided to enclose that space between the columns. At no time did you touch the roof?
Ms. Kittaneh replied just on the inside. Thereís separated siding that we took off.
Mr. Okum stated it may be a case where, as Mr. Lohbeck indicated, you did not meet building standards with the size of the roof supports, but it was an existing structure on your site.
Mr. Lohbeck said we have no permit for the work.
Mr. Okum said it appears someone placed this structure on the site and you bought it the way it was, not right. The difficulty is that you have to be prepared to tear apart pretty much everything you have done in order to meet building code for the structure. I think the board has to make a decision on whether they want to allow a room addition Ė Iím not going to call it a patio enclosure, this is a room addition Ė 21í x 10í to be within 15 feet of your rear property line. Thatís really the issues. You will basically have to rebuild everything that is put there. If that is not your anticipation, then you have to weigh whether the variance is necessary or not. I think from the testimony that has been given that the board is ready to make a decision on your request for a variance. Are you prepared to meet all the Building Code requirements for a room addition?
Ms. Kittaneh asked if it runs into too much money, can I just demolish the whole thing?
Mr. Okum replied you would be ordered to if you werenít granted the variance. I donít know how Staff would take the situation with the existing porch roof. That was there before you started closing underneath it. Itís not an improved structure on your property.
Ms. Pollitt asked if she might want to table this in order to meet with a contractor to at least have someone look at her property and see what sheís looking at in trying to bring it up to code so that she might make a better informed decision. I would prefer any applicant be as informed as she possibly could be on what the options were and what the costs might be to go either way with what you are looking at, and maybe even working with staff to try to figure out how some of the violations could be remedied as opposed to making a decision tonight that you have to live with that you might regret making because you havenít researched all the avenues that maybe you need to. Would the board be agreeable?
Mr. Okum stated that is up to the applicant but I donít see the board members having any problem not voting on it.
Ms. Kittaneh asked to have it tabled.
Mr. Okum said you have a STOP WORK order on it so you canít work on it at all and you canít use the space.
Mr. Lohbeck said we need more detailed drawings.
Mr. Borden made a motion to table until the next meeting. Ms. Pollitt seconded. The request was tabled until next month.
Mr. Okum said please get all your stuff into staff as quickly as possible. Otherwise I donít know what will happen at the next meeting.
Mrs. Huber asked what about the shed? Mr. Okum replied we will address it at the next meeting. I want to see where it is on the site plan submitted. If there is a variance for that, it should be stated in Staffís comments. I think the application has to be amended to cover the shed also.
David Fraser said I am requesting a variance permitting me to put up a utility building 12í x 14í.
Mr. Lohbeck read the staff comments: "Variance for a 12í x 14í accessory building, 687 Cloverdale Avenue. The applicant is requesting a variance to place a 12í x 14í, 168 square foot utility building on the property. The maximum allowable area of an accessory building is 120 square feet per Section 153.492. The location shown on the proposed site plan complies with the Zoning Code. The property consists of four 135í x 120í parcels. A variance was granted on 10/3/1997 for a 28í rear yard set back for a building addition."
Mr. Fraser said I have a two-car garage. The place I moved from in Kenwood had a two-car garage and also a carport that held two other cars. Presently I have two cars and a truck which I use for work. Itís parked in the road. In addition to that, I have quite a lot of yard equipment. I am accustomed to keeping my premises in a very fine state, and the equipment includes a leaf vac, snow blower. I have two vacuums, two grass cutters, 2 wet vacs and two carpet extractors. I have three slow-speed varnishers, two high-speed varnishers and these would need a little more space than 120 square feet. The whole idea is that you donít want to jump over items when you go to take out another one. Where I came from I used the fourth carport to store this equipment and to a great extent it was quite adequate. The premise is quite large.
Mr. Okum said your home occupies three parcels. There is a current variance on your property for a room addition.
Mr. Fraser said there is a porch.
Mr. Apke asked is there any unusual topography where you want to site the shed?
Mr. Fraser answered not particularly.
Mr. Apke said you talked about some of the equipment you have like carpet extractors.
Mr. Fraser said I have a small business. I do carpet extracting and floor care.
Mr. Apke asked so thatís business related equipment and Mr. Fraser answered yes.
Ms. Pollitt stated the only thing we are looking at are two feet onto the side of the storage unit and you have four parcels of property. I have no problem with granting the gentleman an additional two feet with the size of his property.
Mr. Squires asked is the location where you have sketched in your proposed shed, could it be on one of the other parcels?
Mrs. Huber said you canít put it on an undeveloped lot.
Mr. Squires said I have no problem with the request.
Mr. Apke asked do you have a basement and would there be any space to store any of these items down there?
Mr. Fraser replied no, not really. The basement is primarily living area and wash room.
Ms. Pollitt asked why canít Mr. Fraser put the shed on parcel one? He owns all four pieces of property.
Mrs. Huber replied because they are not one unit. They are four separate parcels and you canít put it on an undeveloped site.
Mr. Okum asked if you took your business related equipment out of that building would you have more space?
Mr. Fraser replied perhaps just a little more. The leaf vac alone takes up about 8 to 10 feet.
Ms. Pollitt made a motion to grant a variance to the property at 687 Cloverdale Avenue for a 12í x 14í accessory building. Mr. Squires seconded. The motion passed with seven affirmative votes.
A. Final Approval of Board of Zoning Appeals Guidelines
Mr. Apke made a motion to adopt and Mr. Squires seconded.
Mr. Borden asked is the code text change part of this?
Mr. Okum replied thatís a code text amendment to the Zoning Code but that didnít involve our guidelines. I am very pleased with the outcome of this. It pretty well addresses all of our concerns and definitely updates to 2003.
The guidelines were adopted unanimously.
Mr. Apke said I would like to bring up the letter from Ken Schneider to Bill McErlane. What was presented over and over again is that the variance runs with the land. Our standard stock saying that if work hasnít begun in six months that the variance would be revoked, we now know is not good. In part B of the memorandum, if we do want to include something of that sort, t it might be possible that we could add that kind of clause in the body of a motion. Mr. Schneider says "however, the City can require that the property owner remain within the bounds of the original terms of the variance." If that would be incorporated in the motion of the variance, would that then be a valid clause?
Mr. Okum stated I was thinking the same thing about incorporating a deadline clause in the motion, but frankly, if thereís justification for a variance, then that justification should continue throughout time. I think there are conditional variances, timed conditions that we can set, but I think itís important that if we grant a variance, it will stay there forever. You approve it based on information provided, testimony provided that made it a just reason to approve. Whether they act on it in six months or they donít, it doesnít matter.
Mrs. Huber asked what about that house on Church that we sent a letter and said the variance was null and void, and Margeís neighbor with her shed?
Mr. Okum said thatís in the past. I guess if those people who were sent those letters by the City were to challenge the issue, I think they would have that opportunity. The City documents all their correspondence with each variance.
Mr. Weidlich asked what assurance do we have that someone doesnít start a project and then just leave it sitting? Could the variance be revoked?
Mr. Okum said thatís a building code requirement. The permit would be revoked but not the variance.
Mr. Lohbeck stated that a permit can be revoked but it can also be extended.
Mr. Okum said Mrs. Huber indicated that we granted a variance for the removal of a garage on Hickory.
Mr. Lohbeck said we sent them a letter.
The board adjourned at 8:40 p.m.
David Okum, Chairman
Jane Huber, Secretary