BOARD OF ZONING APPEALS MEETING
MARCH 20, 2012
7:00 P.M.


I CALL MEETING TO ORDER

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


II ROLL CALL

Members Present: Joe Ramirez, Carolyn Ghantous, William Reichert, Ed Knox, Robert Weidlich, Lawrence Hawkins III, Jane Huber

Others Present: Randy Campion, Building Inspector

   
III PLEDGE OF ALLEGIANCE


IV MINUTES OF THE REGULAR MEETING OF JANUARY 17, 2012

(Mr. Knox made a motion to adopt the January 17, 2012 Board of Zoning Appeals minutes; Mr. Hawkins seconded the motion and the minutes were approved as written.)


V CORRESPONDENCE

Chairman Weidlich: Everybody should have received, in the correspondence, the City of Springdale Zoning and Street Map and the City of Springdale Procedures for the Board of Zoning Appeals.


VI REPORT ON COUNCIL
   
(Mr. Hawkins presented a summary report of the January 18th, 2012 Springdale City Council meeting, followed by a report from the February 1st and the
February 15th, 2012 City Council meetings.)
   

VII REPORT ON PLANNING COMMISSION

(No report presented at this meeting for Planning Commission.)


VIII CHAIRMAN’S STATEMENT AND SWEARING IN OF APPLICANTS


IX OLD BUSINESS

(No Old Business presented at this meeting.)
   

X NEW BUSINESS

A. Chairman Weidlich: The owner of 876 Tivoli Lane has applied for a variance to keep a utility building less than 5’ from the side lot line. Said variance is from Section 153.097(B)(4) “All other structures… must not be less than five feet from any rear or side lot lines.”

Mr. Matt Hendricks: I live at 876 Tivoli Lane. I put a shed up and I was recently told that it was too close to the property line. I didn’t know of that ordinance or I wouldn’t have let it happen. It is the only spot that I can set the shed because my whole yard slants to the center. In the instructions it specifically said the shed needs to lie on a flat area, and that is the only flat area in the yard. My neighbor says he doesn’t have a problem with it and he told me last night that there was one there before with the previous owner. I am asking that it stay there because the shed has already settled and there is nowhere else in the yard that I can put it.

(At this time Mr. Campion read the Building Official’s comments.)

(Chairman Weidlich opened the floor to the audience for comment, no one came forward and this portion of the meeting was closed.)

Chairman Weidlich: What is your shed resting on?

Mr. Hendricks: Pressure treated wood, so that it doesn’t get moldy; we set a flat board on top to hold the weight of the structure. We did everything to the directions of the shed. We went above and beyond what the directions said.

Chairman Weidlich: What would be the difference in height if you pulled it forward about four feet, to comply with code?

Mr. Hendricks: Two feet.

Chairman Weidlich: It drops that much from the front of the shed?

Mr. Hendricks: Yes, sir.

Mr. Hawkins: With regard to Staff’s comments, if you did come forward toward the house, yet away from the fence line, do you agree that land is fairly flat? I know from where it is now, if you would move it over toward the center I understand you are saying it continues to dip down and that is where rain and water catch; but if you came up toward the house a little bit more, is that area there a little flatter?

Mr. Hendricks: Yes. It is a little bit flatter but it like a bowl. The whole yard basically on the parameter is the highest point and then it goes gradually in toward the center. Every time it rains it is like a swamp; if we get a day’s rain you walk back there and your feet sink.

Mr. Hawkins: Is that you neighbors fence?

Mr. Hendricks: Yes.

Mr. Hawkins: There is not much room around there in terms of maintenance for the shed, how are you going to maintain that?

Mr. Hendricks: He told me last night that if I had to go over into his yard and lean over, I am more than welcome. I told him I would upkeep it the best of my ability from my yard but if there needed to be anything in the main center of the back of that shed then I could go over into his yard to maintain it.

Mr. Hawkins: You understand that when you are here for a variance, this is something that is going to go on forever; so this is something that we have to consider even beyond you and your neighbor. Fifty years from now, if someone else is living there they may not get along with their neighbor and they might not have that agreement to maintain the aesthetics. Do you have anywhere else in your backyard that is level enough where you can place that?

Mr. Hendricks: Me and my father put the shed together and we spent two plus hours looking around the yard to see if there was a level place to put it and there wasn’t an area that was flat enough anywhere else in the yard. The directions with the shed said that it had to be flat because there is a chance of it tipping.

Mr. Hawkins: Did you consider building up the land to make it flat, putting dirt down or something like that?

Mr. Hendricks: We did, but that was the only area.

Mr. Knox: Right now that shed is oriented with the door pointing parallel to your house; is there any possibility of rotating it around to get the 5’ away from the fence and still say on flat terrain?

Mr. Hendricks: There is an area about 5’ X 6’ right in front of that, that dips down. I have gotten dirt from people and put it in there and it washes away.

Mr. Knox: How far is the back of the shed from the fence right now?

Mr. Hendricks: It is about a foot, a little over a foot. And I thought about putting on the back part of the property, but I have a five foot drop right on the side of where it is right now, there is a five foot drop that goes down into a fence.

Mrs. Huber: Mr. Hendricks, I have a comment about something other than your shed; I would ask for you to put a house number on your residence; there is no house number and where it was stenciled sometime ago, it has faded away. That is a suggestion, that you do put a house number on your home in case of an emergency you would want them to be able to find you quickly.

Mr. Hendricks: I didn’t know whose responsibility that was; I didn’t want to go ahead and paint something on the curb and have the City come after me.

Chairman Weidlich: How much of a drop off would you possibly have if you moved it two feet forward; if we split the difference?

Mr. Hendrix: About a foot and a half, almost two foot.

Chairman Weidlich: Like Mr. Hawkins said, the variance stays with the property forever.

Mr. Hendrix: I can’t go the full five feet. If you need me to go one foot or up to two feet then I can go with that; that is something that I am willing to compromise with. I am not saying it will be perfect.

Chairman Weidlich: You were saying that the structure underneath is pretty sturdy so you would probably be able to support the shed structure to where it will stay level.

Mr. Hendrix: I have pea-gravel underneath it so that water doesn’t sit underneath.

Chairman Weidlich: If your neighbor’s fence needs to be replaced or repaired or if you would have to get to the back of your shed then somebody would need to get in between them. I would be willing to go two feet and have three foot off from the fence, if you would consider that.

Mr. Hendrix: I am open to consideration; I just can’t do the full five feet without it going very haywire.

Mr. Hawkins: I agree with what the Chairman is saying. I personally wouldn’t have a problem if you had the three foot setback off of the property line and the five feet maintained from the rear; I wouldn’t have a problem with a variance of two feet. That would give you plenty of room to take care of the shed and to take care of the property. I think with where it is right now it would be a substantial variance, so I wouldn’t support it as it stands right now. But I would split the difference and if you give it a three foot setback from that side lot line, then I would support that.

Mr. Reichert: I, too, did not like the idea of being so close to the fence line and I am very grateful for you to compromise because that would be my amendment to your proposal. If we could get three feet then we have some room to get back there and clean out stuff. I would support it at three feet.

Mr. Ramirez: Staff, do we know if the fence is on the neighbor’s property line?

Mr. Campion: No. We don’t measure property lines; we go by the fences and it appears to be a foot off.

Mr. Ramirez: With knowing that, I would also agree if he would make some concession and move the shed.

Mr. Reichert: I would like to make a motion that we grant a variance to the applicant’s request with an amendment that it remain three feet from the side property line. The variance is from Section 153.097(B)(4) which requires five foot from the side and rear property lines; with the amended three foot allotment at this point.

Mr. Hawkins: I would ask that it is clear that it still maintains a five foot setback from the rear, but just the three foot from the side lot line.
(Mr. Knox seconded the amended motion.)

Mr. Hendrix: That is fine with me, sir.

(Mrs. Huber polled the Board of Zoning Appeals Members and with a unanimous affirmative vote the amended motion was approved.)

Mr. Hendrix: I want to do it as soon as possible but what is the time frame?

Mr. Campion: You don’t have to do it right away. You will still have to get a permit for the shed. We will apply the variance to the shed when you come in to get the permit and I believe a permit is good for six months before you do work on it. So, that will allow you time with the weather.


B. Chairman Weidlich: The owner of 11824 Neuss Avenue has applied for a variance to erect a 48” tall fence on the property within the setback of a side street of a corner lot. Said variance is from Section 153.482(A)(3) “Fences on corner lots shall not be located in the required setback for the building from the side street line.”

Mrs. Sharon Cardona: My address is 11824 Neuss Avenue. We are asking you to please consider the request for the variance to erect a fence with a 1’ setback from the sidewalk of Silverwood Circle; that is the street that borders our lot on Neuss Avenue. We purchased the property with the hopes of having a large yard for our children to play in, as well as having a small garden. When we moved in we noticed neighboring children playing in our yard and pedestrians walking through our yard to get to Value City and the Dollar Store. On September 11th of last year, we had brand new gutters on the property to be installed the next day; they were stolen from our yard and they were taken to our back field behind the bowling alley where they were mangled beyond repair and abandoned. We did include a police report with our application since that was the incident that began the talk of erecting a fence. We spoke with the Building Department at that time and that is when we learned of the zoning code requiring the setback. For the next five months we attempted to use our yard space to comply with the code but we were continuously concerned when we frequently saw unknown persons, not only using the foot path but loitering on our property. Fearing the safety of our children and our property we began again to consider applying for this variance. I do consider the curb appeal and I would like for it to be aesthetically pleasing to our neighbors yet keeping it efficient in its usefulness. Our neighbors at 70 Silverwood Circle, which is on the corner of Neuss and Silverwood, they have the same dead-in street view as we do and they have a split-rail fence with less than 1’ setback from their sidewalk; yet he enjoys 84’ of yard space. Also, the owners at 11657 VanCleve Avenue who is on the corner, have a chain-link fence with a 1’ setback; they currently have 101’ of yard space. Our yard is on a corner lot but it is cornered with a street that mainly serves as a driveway for our neighbor and access for pedestrians to walk through the backfield of Value City. We do not plan to deter pedestrians on the footpath beyond the sidewalk but we do hope to keep our children safe, maintain the curb appeal for Springdale, while using that yard for a play area and gardening. Please allow us to have a yard of 86’ and not just 56’.

(At this time Mr. Campion read the Building Official’s comments.)

(Chairman Weidlich opened the floor to the audience for comment, no one came forward and this portion of the meeting was closed.)

Mr. Knox: In relation to the end of the footpath, is that in line with the end of your property line?

Mrs. Cardona: I believe it crosses into the property line. We would have the fence next to it; we would not put it on top of the footpath.

Mr. Knox: You have several trees in the back of the area, according to the photograph. Are all of those trees going to be inside your fence or outside your fence?

Mrs. Cardona: We would do a survey and we were hoping to comply with the survey of the property line; I believe most of those trees are inside the property line.

Mr. Hawkins: At the back of your property line there is an increase elevation; is that still your property?

Mrs. Cardona: That is our property.

Mr. Hawkins: Would the fence be before that increase?

Mrs. Cardona: The fence would include that increase because we would like to extend it to the back property line. If we get this variance passed we would contact a surveyor and make sure that we comply with the property lines of Value City, as well.

Mr. Reichert: Will your fence go beyond the road barrier?

Mrs. Cardona: Yes, maybe two or three feet.

Chairman Weidlich: Where are the people cutting across your property when they come across?

Mrs. Cardona: There is a footpath beyond the sidewalk and then they go around the bushes through the property. What we would like to do is allow that footpath and yet still have the yard space.

Chairman Weidlich: I have a problem with that fence coming off the front corner of the house; have you considered coming off the back corner to the sidewalk?

Mrs. Cardona: That is where it would be the 56’. That is only a few feet from where the back corner ends to where the hilly terrain begins. That doesn’t give much usable space that is not hilly; from where you are talking about going back there is maybe only 10’ or 5’ that is flat.

Chairman Weidlich: Along the sidewalk up to your house looks pretty flat.

Mrs. Cardona: It is still not a whole lot of useable space.

(At this time Chairman Weidlich did swear in Mr. Cardona, who expressed a desire to speak on behalf of the variance request.)

Mr. Cardona: There is maybe 3’ to 4’ of flat space then it becomes that hilly terrain. That is why we want to extend it toward the front of the house so that we would have that flat area to be the play area for our kids.

Chairman Weidlich: When I drove around the neighborhood I did see properties that had fences coming out to the sidewalk but they were from the back corner of the house. This variance would stay with the property forever, like your room addition from the 1970’s, so I am concerned about coming off of the front corner with a 4’ high picket fence.

Mr. Cardona: What is your concern?

Chairman Weidlich: I am concerned because it is not within code and we are setting a precedent by granting a variance like that.

Mrs. Cardona: However a precedent was already set when we see that houses already have that with the same dead-end property. We did attempt to go without it for the last five or six months that we have been living here. We are not trying to erect a huge privacy fence we just want to contain our kids and keep people off of our property.

Chairman Weidlich: I am also considering what is going to happen to Silverwood, someday that barrier could be taken down and something built back there.

Mrs. Cardona: We don’t know what is going to happen with the Silverwood Circle. We wanted to be accommodating by putting a 4’ high fence and not a large fence blocking the view.

Mr. Reichert: The variance is from the street, not from the front of the house?

Chairman Weidlich: Yes.

Mr. Reichert: Have you considered a taller fence, like a 5’ fence?

Mrs. Cardona: We did, but we were just trying to compromise with the code.

Mr. Cardona: It is at least enough for the kids not to run out into the street and to get hit by a car.

Mr. Knox: I had occasion to have a meeting with the City Administrator on a different subject and since I was there I did ask the question of what the long term and short term plans for Silverwood Court were and he told me that they had absolutely no plans to extend Silverwood at anytime in the foreseeable future.

Mr. Hawkins: I want to put on the record, as Staff indicated, I think there is some exceptional circumstances whenever you have individuals at the corner lots where they essentially are cut back with their useable rear yards and end up with two front yards. Staff had indicated Silverwood, since it has 56’ of useable space back there, typically they found that most neighborhood interior lots had 70’, so I was just putting that in for the sake of the record.

Chairman Weidlich: Thank you. Would anybody care to make a motion?


Mr. Hawkins: I move to grant a variance for the owner of 11824 Neuss Avenue to erect a 48” tall fence on the property within the setback of the side street of a corner lot. Said variance comes from Section 153.482(A)(3); and that the fence erected would be at least 2’ from the sidewalk.
(Mr. Reichert seconded the motion.)

Mrs. Cardona: The plans are for the fence to be built 2’ from the sidewalk.

(At this time Mrs. Huber polled the Board of Zoning Appeals Members and with a unanimous affirmative vote the request for a variance at 11824 Neuss Avenue was granted.)

Mr. Campion: I just want to remind you to come in and get a permit for the fence.


XI DISCUSSION

Chairman Weidlich: I am confident everybody read the note that Mr. McErlane sent about why we approve or deny the variance request. A lot of times we don’t tell the applicant why we are denying the variance.

Mrs. Huber: You would think that they would know.

Mr. Hawkins: It is my interpretation that would be something that we would discuss and make those findings during the deliberation and discussion process, so that it is in the record in case there is an issue and someone wants to go to Commons Pleas Court.

Mr. Ramirez: On the deliberation or discussion of how we determine the “yes” or “no” vote, is that before we give our vote?

Chairman Weidlich: It is during your questioning or discussion with the applicant.

Mr. Ramirez: I think that is a good idea because the applicant may want to change his request when he finds out the reasons.

Mr. Hawkins: I think that if we are going through the Procedures for BZA, I think it is fine for it to come out and I think it will naturally come out during the interaction with the applicant. I think that if we are going off of the sheet for
#5: interaction with the applicant, in situations where that may not be evident in subsection #6: for deliberation and discussion, I think that is the opportunity to proffer for the record so that it is clear; and you have your opportunity for saying why. Obviously there is an advantage during the interaction because maybe the applicant will make some kind of compromise that will make a difference.

Chairman Weidlich: That is a good point; we could do it either in item #5 or #6.

Mr. Knox: By compromising with someone, are we upholding the ordinances or are setting a new precedent; or both? I kind of view it as upholding the ordinances but allowing a one time exception, so therefore we are not creating a new precedent.

Chairman Weidlich: I like your way of looking at it.

Mr. Knox: That type of thing, we could handle in discussion that we are not creating a precedent we are just making a minor exception because as the Building Department often points out too many things that don’t go exactly with the ordinance, you create a new precedent and the whole thing begins to fall apart.

Mr. Hawkins: I think along those lines, instances where we are looking deep into that specific situation and we find some kind of compromise, I think it makes it more defensible for whatever standpoint we are taking if it goes to Common Pleas Court and they are arguing that it wasn’t arbitrary and capricious decision, that the Board looked deep within and said that it is still a variance, not compliant with the code, but it says that we have given enough thought to say that we are not going to go where you are asking in terms of your initial request but at the same time we think there is some leeway there, it is just not as much leeway as what you were initially asking for.

Chairman Weidlich: Thank you.


XII ADJOURNMENT

Mr. Hawkins moved to adjourn, Mr. Reichert seconded the motion and the Board of Zoning Appeals meeting adjourned at 8:05 p.m.

Respectfully submitted,

________________________,2012 ___________________________________
            Chairman Robert Weidlich



________________________,2012 ___________________________________
            Secretary Jane Huber