Board of Zoning Appeals Meeting Minutes

16 May 2000

7:00 p.m.

  2. The meeting was called to order at 7:00 p.m. by Chairman David Okum.

  4. Members Present: Chairman David Okum, Councilman James Squires, Bob Weidlich, Bob Apke, Frederick Borden, Councilman Bob Wilson and Jane Huber

    Others Present: Richard Lohbeck, Inspection Supervisor

  6. Mr. Squires moved for approval and Mr. Borden seconded the motion. All voted aye, except Mr. Okum who abstained, and the Minutes were approved with six affirmative votes.

    1. Zoning Bulletin Ė April 10, 2000
    2. Zoning Bulletin Ė April 25, 2000
    3. April 19, 2000 Letter to Michael Murdock, 12172 Greencastle Drive
    1. Report on Council Activities

Mr. Squires stated that the first reading of Ordinance 39-2000 was held May 3rd, public hearing will be June 7th, and concerns corrections to the Springdale Zoning Code.

Report on Planning Commission

Mr. Okum reported that Chi Chiís requested approval of exterior façade changes and color changes. They had submitted a photocolor pallet and came in with the true color pallet, and the colors were dramatically different. The exterior façade was approved without the color changes and they will be back with the colors. The final approval for Sofa Express (previously Champion Windows) was granted after a lengthy discussion. The applicant worked very closely with our planner and the Planning Commission to bring about a revitalization and change from a commercial property into a blended property; it will be a Sofa Express, Leather Express and Outlet. They have landscaped it beautifully, broken the building down and given it a very unique and attractive appearance on the 275 corridor. They had requested a 36-foot high monument sign, and at Planningís request reduced it to 24 feet. All members present voted in favor, and I believe the project will be a very important feature on the 275 corridor. Covenants need to be finalized that tied the quantity of retail down for that entire development, because it is a limited retail area. The City was very concerned that the covenants be adopted so calculations would be appropriate for that use.




16 MAY 2000



Mr. Okum said the final item was a discussion on buffer lighting. The new code came out and we felt the glare issue was pretty well addressed, but we are finding that there are still issues with overlighting and bleed of lighting into other properties. The planner checked nationwide and presented suggestions. In addition to this, we added no bleed or a limited bleed onto adjacent properties. We also are prohibiting the lens from hanging below the fixture so it will project straight down. The planner will make the final draft and bring it back to Planning.

    1. A variance once granted would be referred back to the Board of Zoning Appeals if after the expiration of six months no construction is done in accordance with the terms and conditions of the variances.

If a variance appeal is denied, the applicant may resubmit the appeal six months after the denial.

B. Chairmanís Statement

Ladies and gentlemen, this is a Public Hearing, and all testimony given in cases pending before this board is to be made part of the public record. As such, each citizen testifying before this board is directed to sign in, take his place at the podium and state his name, address and the nature of the variances. Be advised that all testimony and discussion relative to said variance is recorded. It is from this recording that our minutes are taken.



    1. Stan & Anna Witowski, 654 Park Avenue requests variance to construct an eight-foot high wooden fences. Said variance is requested from Section 153.482(B) "Fences..shall not exceed 6 feet in heightÖ"

Mrs. Witowski said we moved in a little more than a year ago and our next door neighbor repairs cars, and the other neighbors tell me that for years he has been doing this. I donít know if it is a business or not; itís probably his hobby but he does this almost every day all day long and even sometimes at one oíclock in the morning. It is not such a big noise, but it is garage noises. Our deck is very close to his yard, probably 20-25 feet. He also keeps a lot of cars in his yard. Even if it isnít against the law, we live so close and I think he should be considerate and not interfere with our lives. The noise sometimes is really loud because he has a racecar in his garage. I know the eight-foot fence wonít solve the problem, but at least it will block the view from my deck.




16 MAY 2000



Mrs. Witowski said we have a six-foot chain link fence now. Our property is a little bit higher so I am asking for an eight-foot fence.

A few nights ago at almost 11 oíclock there was a loud noise and I called the police. They came over and didnít hear anything. Then Sunday evening he came to my house and was threatening to sue me for false police report. He was very loud, rude and impolite and I had to ask him to leave. I am glad my daughter was with me. He never answers when I say hello, which is his style of life, he doesnít have to, but this is the reason why I didnít even talk to him in person before. I understand that maybe this isnít against the law, but it is not how we should live next to each other.

Mr. Okum asked Mr. Lohbeck about the situation. Mr. Lohbeck reported that he went back through the file today. In 1989 there were some complaints and we checked them out, and he was not running a garage out of there; he was working on his own cars. Mr. Okum said and that is the Building Department record, not the Police Department.

Mr. George Bond, 650 Park Avenue said I have lived there since 1991. It is a terrible noise. If we are on our front porch, we have to go in the house. Many times in our living room, we have to turn the TV up real loud; they work on racecars and they are so loud. The neighbor across the street tells me that they hear the same thing. It is very disturbing. Not only one of them; theyíll have two or three of them going at the same time. I would like to see the noise stopped.

Ms. Huber said I donít know if this is a home occupation or hobby, but it sounds like 660 Park Avenue is doing something that is not supposed to be per our code. The code says home occupations shall not include auto repair, and he must be an awfully wealthy man to have six vehicles at one time.

Mr. Bond added his sons bring them in and they work on them. Sometimes there are three or four of them. The whole back yard is full of cars.

Mr. Squires commented I want to thank Mrs. Witowski. She invited me into her home and I walked out onto the deck with her. I have no problem with the eight-foot fence; it will help, but itís not going to solve the problem.

Addressing the applicant, he said you told me you would not take down the chain link fence, that you would put the wooden fence up on the inside of it. Is that correct? Mrs. Witowski answered I would like to if the chain link fence is mine. I called everywhere, and nobody can tell me if the fence is on my property or not. Mr. Squires commented it would take a lot survey to determine that, and those cost about $250. If it were yours, you would leave it there? Mrs. Witowski responded I would like to; there is no reason for me to take it down.




16 MAY 2000



Mr. Wilson said if the fence will remain there, will your eight foot fence be in front of the chain link or behind it? Mrs. Witowski answered it would be on our side of the chain link fence. Mr. Wilson commented all this will do is give you privacy; it wonít solve the problem with the noise. Are you willing to expend whatever dollars necessary to have the privacy?

Mrs. Witowski answered it is not a pretty view; it is not only cars but he keeps trailer and tarpaulins. We are in the process of improving our yard, and even if I put plants or flowers in, it will not look nice. It is probably 60-70 feet long, and you can see everything.

Mr. Bond added sometimes this happens late in the night, when we are in bed and it wakes us up. Mr. Wilson wondered if they had called the police, and Mr. Bond indicated that they had not.

Mrs. Witowski said the problem is that if the police donít witness this, they canít do anything about it. Mr. Wilson added so you are saying the noise lasts two or three minutes and then stops. Mr. Bond responded Iíve heard it go on for half an hour. Mr. Wilson said the next time this happens after 10, you should immediately notify the police. I would not be concerned about the neighbor filing a complaint or threatening, because you are clearly within your rights to complain if the noise disturbs you. I also would suggest you speak with your district councilperson. You are in my district, and before you leave, I will give you my card. You call me or page me whatever time of night it is and also notify the police. Iíll guarantee that if you wake me up, the police will be there very shortly, and I will probably be there with them to make certain that this problem is corrected.

Mrs. Witowski said I talked with the police officer, and he waited five minutes and didnít hear anything, so there was nothing he could do. Mr. Wilson responded right, unless they hear the noise. But, I think if we make it a point that this is a problem and they perhaps could cruise that area or be in that area on certain evenings. You call, and if it lasts one half-hour, a policeman should be there.

Mr. Bond added this has been going on for many years. Other people have called the police there and they have come down and made them move the cars out. For about a year, there were no cars in there. He had another garage where he worked on them, but heís moved them back in this last couple of years.

Mr. Wilson said I assume it is the same six cars that come in and out plus racing cars. They are probably the sonís vehicles that come to dadís house for repairs. Mr. Bond agreed. Mrs. Witowski added six cars always are there. Mr. Okum wondered if other cars were coming in that were strange to the property, and Mrs. Witowski answered last week there was a big truck there for two days. There are always five or six cars there. I donít think they are driving those cars. Mr. Okum asked if they were not operable, and Mrs. Witowski answered that she did not know.



16 MAY 2000



Mrs. Huber commented I have no problem with her adding the eight-foot fence, even though it probably wonít solve her problem. The thing I question is if you place another fence behind the cyclone fence, there is a maintenance problem if they are not abutting, and then youíll get a letter from the Building Department saying cut your weeds between the fences.

Addressing the applicant, Mr. Okum said I think what the board members are recommending is that you get a professional survey done on your property, so that your fence can be constructed in the appropriate location. Can the fence be on the property line or does it need to be one foot back? Mr. Lohbeck stated that it should be on the property line.

Mr. Okum commented I think the City needs to do some aggressive monitoring of this property. In addition, I feel it is really a shame when a resident has to put up an enclosure around their property to give them some serenity and a normal life when we have a nuisance situation such as this appears to be.

It looks like they have blacktopped a good percentage of their back yard. It appears that there is a business operation going on here along with a hobby and home use. I would encourage some softness in breaking the fence line up along your side of the property.

Mr. Wilson wondering if the board was suggesting that the applicant do a survey, find out if she owns the existing chain link fence and if she does, remove it and put up the eight foot wooden fence? Mr. Squires answered that is the way I am reading it. Addressing the applicant, I think it is to your benefit to do that.

Mr. Okum said I think we have had plenty of discussion. Obviously our Building Department and Police Department need to do some policing on this instance.

Mr. Squires moved to grant the variance and Mr. Wilson seconded the motion.

From the audience, Mr. Bond asked if anyone was allowed to bring cars in every day and work on them. Mr. Okum responded that is something for our Building Department to discuss with you, and Mr. Lohbeck or someone else from the Building Department definitely will discuss that with you. Mr. Bond added it is a continuous thing; hardly a day goes by that you donít see them. Mr. Okum answered we understand that, and it will be handled as an administrative issue separate from the zoning issue.

Voting aye were Mr. Squires, Mr. Wilson, Mr. Borden, M4s. Huber, Mr. Apke, Mr. Weidlich and Chairman Okum. Variance was granted with seven affirmative votes.






16 MAY 2000


  2. Mr. Wilson said you sent a letter to Mrs. Poop at 660 Park Avenue on which they wrote "We have no objection to the 8 foot high fence". Is she the homeowner? According to the Hamilton County Auditorís Office, she is the homeowner. Mr. Wilson continued we donít know who she is relative to the individual fixing the cars. We are going to pursue this, and if he is a resident of the home, that is one issue. If he is just staying there to do his repair work and going someplace else in the evening, that is another issue. Mr. Okum commented it sounds like he is there most hours of the day and night.

    Mr. Squires said as long as we are on the subject of investigating the activities at 660 Park Avenue, IL would like to insert the word aggressive into that. I would like the City to use all of its resources to determine exactly what is going on there. That lady invited me into her home, took me out onto her deck, and quite frankly I was stunned at what I observed next door The pictures donít tell the entire story. What she has to put up with is almost beyond description.

    Mr. Apke wondered if there is something in the code that has a maximum number of vehicles allowed in a residential neighborhood, in the driveway area or off street. I am looking at Page 112, Section 153.80(A) and although it doesnít specify a maximum, in the interest of trying to give some relief to the homeowner at 654, it does say they shall be "roadworthy and currently licensed at all times". It goes on further to say they can have mlnor repairs, but they must be made within 72 hours. If there isnít a maximum I would suggest it be written into the code so this doesnít happen again, at least in the residential district. Maybe it isnít a Building Department matter; maybe the police could check the licensing on these vehicles the next time a noise complaint is called in.

    Mr. Okum commented the number of vehicles on a property was discussed to some extent and this was about the strongest wording we could get on that issue, because you canít regulate the number of cars owned by a single household unit.

    Mr. Apke said I would like to reopen an issue of our ruling last week on the Suermann case. It is more of a matter of clarification. In the plans submitted by the Suermanns originally, they showed a shed with a front porch, and I consider that an unenclosed front porch. In definitions in the Zoning Code, on area of the building, it states that the area of ground level of the main building and all accessory buildings excluding unenclosed porches; for future cases and to keep our terminology straight, I think we need clarification on what an unenclosed porch would be.

    Mr. Squires commented what we approved was allowing Mr. and Mrs. Suermann to construct the shed without a porch. Yet, it appears we were in error and that they could have constructed it with the porch. Mr. Apke responded that is my contention. Mr. Squires continued and yet there were no dissenting votes on that so from a standpoint of legality, are we stuck with our decision even though it is wrong?


    16 MAY 2000


  3. DISCUSSION - continued
  4. Mr. Okum answered I would have to check Roberts Rules to verify it. Typically a person with the dissenting vote needs to move to bring it back on the table. We could move to waive the rules, but I would recommend against that until we get a clarification from the Building Department or from our legal counsel on what an area of a building refers to and the fact that we do not have the applicants here before us. To have the discussion this evening is quite important, because we do need to give direction to our city officials to go back to our legal counsel for definition clarification regarding porches and roofs. I think Mr. Lohbeck understands very clearly now that there is some misunderstanding on what that means and how the Building Department interprets it, and how those on this zoning board interpreted it after they had the opportunity to think it over. Mr. Lohbeck responded are you saying that the interpretation is wrong the way we interpret it?

    Mr. Okum responded I say based upon definition, it could be interpreted both ways, and because it is ambiguous I feel it needs to be clarified so this issue does not present itself again. I think the board could have gone in either direction in this case, which means that it could have considered y our position as correct. Or your position as incorrect. They have that right according to the Charter. The purpose of the Board of zoning Appeals is the opportunity for an applicant to request relief from the administrative action of our building department. The administrative action of our Building Department was they interpreted the porch roof being an enclosure on that building. As a zoning board member, you can give relief to that. In that case, the Building Department gave their opinion and your task was to give relief if you wished to, and that was the purpose of the applicantsí request. So, you could have overruled on the Building Officialís position or stayed with that position. I still feel we need to get clarification in that regard because this is an issue that needs to be resolved so everybody is on the same page and we donít have this come up again, and the Building Official interprets it the way that it was intended. I think this came out of the original definitions of the original Zoning Code; it is not verbiage. It is the way it always has been done.

    This is a very good point, and I will open this up to the rest of the members to express themselves and I would like this to be carried forward and these Minutes to be transferred to the law directorís office for their interpretation.

    Mr. Wilson commented this was a square footage issue. If it had been a smaller building with the front porch and in compliance, the porch would not have been an issue. They eliminated the front porch to lower the square footage and we approved it. That was the issue, not the diagram of the building. What we were trying to do was get the lower square footage. Itís not that we didnít pay attention to the definitions; it is just that we were trying to find a way to lower the square footage and make it more acceptable to the board. The porch became an issue when we considered it as part of the square footage




    16 MAY 2000


  5. DISCUSSION - continued
  6. Mr. Wilson added I donít think we should have to go back and readdress this and open up a can of worms. We made a decision; it was a concession. It had to do with their agreeing to go with a lower square footage.

    Mr. Squires commented I will agree with Mr. Wilson. We did vote on square footage, and yet the board was under the impression that the square footage had to include the front porch. That was a tough decision for this board. I tend to agree; we may open a can of worms, and yet all of us want to be fair. We are almost in a Catch 22 situation. Mr. Squires wondered if the applicants had applied for the building permit, and Mr. Lohbeck reported that they had and it had been issued. Mrs. Webb added it may have been started; they planned on starting it shortly after they picked it up. Mr. Squires commented then we may be better off ignoring this and learn from our error.

    Mr. Wilson said it wasnít an error. They made a concession to lower the square footage, whether it was the porch or to tear down the other building or redesign that one.

    Mr. Okum responded it was a square footage issue, but the question is do you utilize the square footage of a porch to justify that adjustment? According to Mr. Apkeís question, square footage of the porch is not part of that square footage adjustment, so you are using the wrong base line for your adjustment in square footage. It truly is an issue. Whether you want to revisit it or not comes up to an issue of it will be complicated because we would have to get a decision from legal counsel regarding the decisions that were made. I think it would be a courtesy by the City to inform the applicant that there was discussion on the issue, that it has been referred to our legal counsel for review and if they wish to revisit the porch issue only, they can request so after a determination has come forward from the legal counsel. I donít think the Board has made a terrible error here. Itís just a matter of interpretation of the Code. I said it could go either way, which means you could err on either side of the Code, be more restrictive or less restrictive.

    Mr. Borden said I tend to agree with Mr. Wilson and Mr. Squires on this. I think we did vote on the square footage. I donít know if it is appropriate or not to contact the Suermanns at this point, but I do think we need clarification. In the future, what will we consider as the area of a building?

    Mr. Wilson said our resident came in for a variance, so they are asking for something over and above what is allowed. What we did as a board was made a concession and they made a concession. They still are not in compliance. That is what we did. Every time an applicant comes here it is for a variance, which we either approve or deny. This was a tremendous request. When you consider both sheds, it is a total of 440 square feet, and you are allowed 120 square feet. We worked out something that both they and we were satisfied with.



    16 MAY 2000


  7. DISCUSSION - continued

Mr. Wilson added If another applicant comes in with the same issue, according to the code, we canít consider the front porch. We are going to come up with some other type of concession, because I for one am not going to vote on another 400+ square feet of storage space in anybodyís back yard.

Mr. Okum commented everything everyone has said here is not incorrect. Everyone is absolutely correct, and I donít think there was an injustice done here because they are requesting a variance to an existing limitation. I would rather that porch not have been the consideration in the square footage issue. But, you still made the adjustment, you gave a variance to an applicant so they could construct the principal building for their need. Their purpose was not to have a porch to sit on, but to have additional enclosed space on their property to allow for whatever their need was.

Mr. Wilson commented this is why I was in favor of not having a porch. They have a deck; how often would they use that porch? To me it was more decorative than useful.

Mr. Okum said I think we have had enough discussion on this issue. I certainly would like to get a ruling back from the law directorís office with some recommended wording. We want it to be clear and concise regarding interpretation. If our Building Department has been doing it in a particular way for 20 years at least, I would think the interpretation of the Code needs to represent the direction that the City has gone. The definition needs clarity.

Mr. Lohbeck said we are working on that now. We will give it to our planner and see what she comes up with. Iíll give you an example. If someone wanted a 20í x 20í gazebo, that is a structure which is enclosed, and it would not be allowed without a variance. It has never been questioned before.

Mr. Okum agreed, adding that the way the code reads currently, we need to have it clarified to have it correct.

Mr. Okum asked the members to turn in their preferred dates for the proposed training session.

Mr. Okum stated that as chairman, I have been directed to inform you that effective with Ordinance 27, board members can miss two meetings in any calendar year and receive their paycheck. Any absences more than that in a calendar year will not be paid for. Mr. Wilson commented that is not a problem with this board; it was in previous years, and it is something that I have been concerned about for a long time and Iím glad itís done. Mr. Okum responded I donít have any problem with it at all. I agree with you Mr. Wilson. Having served on boards and commissions for so many years, I am very much aware of those who have abused the situation. In many communities, if you donít show up, you donít get paid. I am confident that most board members donít serve because of the paycheck.



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Mr. Squires moved to adjourn and Mr. Borden seconded the motion. By voice vote, all voted aye, and the Board of Zoning Appeals adjourned at 8:15 pm.

Respectfully submitted,



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David Okum, Chairman


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Jane Huber, Secretary