16 MAY 2006

7:00 P.M.


I.                     CALL MEETING TO ORDER


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


II.                   ROLL CALL


Members Present:             Robert Emerson, Marjorie Pollitt, William Reichert, Jim Squires, Bob Weidlich

                                             Jane Huber and Chairman Okum


Others Present:                  Richard G. Lohbeck, Inspection supervisor


III.                  PLEDGE OF ALLEGIANCE




Mr. Squires moved to approve and Mrs. Huber seconded the motion.  By voice vote, all voted aye and the Minutes were approved unanimously.


V.                 CORRESPONDENCE


A.          Zoning Bulletin – April 10, 2006

B.          Zoning Bulletin – April 25, 2006

C.          Planning Commission Meeting Minutes – April 11, 2006



VI.               REPORTS


A.          Report on Council – Jim Squires


Mr. Squires reported on the upcoming Springdale Bicentennial from August 23rd to September 23rd.  He also reported that there would be a Memorial Day program on May 23rd.   Phase III of the East Kemper Road project (widening of the bridge near Sears) will be about a $5 million project.  The City’s share of that is $1-1.2 million. 


B.          Report on Planning – David Okum


Mr. Okum reported Planning reviewed Glenmary Missioner’s request to modify their approval for a driveway which we tabled until June so there could be a public hearing.  The Springdale Plaza signage was approved.  Planning voted for David Okum to continue as a member of Hamilton County Regional Planning Commission, and the petition to change the organization was referred to Council recommending a negative vote






IX.               NEW BUSINESS


A      Approval of variance to allow the construction of a fence exceeding 6 feet and to allow fence supports to be on the outside of the fence enclosure at 774 Ledro Street.  Said variance is requested from Section 153.482(B) “..shall not exceed 6’ in height..” and (C)(4) “All structural supports shall be erected with such supports on the inside of the area to be enclosed.


16 MAY 2006





Gregory Beatty, owner of 774 Ledro Street said the fence will not be over six feet high all the way around, just on one side.  My neighbor Al is here.  The property actually dips down 1 to 1 ½ feet in that area (showed pictures).  I will be putting gutters on the back of my house and all the water will drain on Al’s side of the property, so I was going to run a drainage line to the swale so the water would drain off.   Bill McErlane came over and took a look at it and agreed that it would work fine.  That is the only area where the fence would be over six feet high.


Mr. Lohbeck reported that the applicant is requesting to erect a fence higher than six feet for a portion of its length, and to erect it with supports located on the outside of its enclosure.


Section 153.482(B) limits the height of a fence to six feet.  Section 153.482(C)(4) requires fence structural supports to be erected on the inside of the fence enclosure. 


The applicant has indicated that the grade drops on the 780 Ledro (south) side of his rear yard, and he would like to run a down spout line through this area and fill over it.  When the fence is constructed from the fill, it will be higher than six feet on the neighbor’s side.


The applicant plans to place lumber at the bottom of the fence visible only from the neighbor’s side to fill against.


The sketch provided on page 2 of the applicant’s drawings is a fair representation of a cross section of the lot facing the rear property line.  There is an extreme drop right at the south property line for a portion of its length.  It is not clear how much of the length of the fence will be greater than six feet high.


The applicant has also indicated that he would like to construct support posts on the outside of the enclosure.   The applicant has indicated that his neighbor prefers the posts on his side, because he hangs baskets on them.   It is not clear if the request for relief from this section of the code is for the entire perimeter of the enclosure or only for the south property line.


There is a provision in Section 153.482(C)(4)(b) which allows the supports to be erected on the outside along a side or rear lot line if the applicant obtains a notarized letter from the adjacent property owners, agreeing to this configuration.  This option should be considered before granting a variance for relief from this requirement.  Mr. Okum asked if we have a copy of the notarized statement from the neighbor.  Mr. Lohbeck indicated that we did not.


Mr. Okum opened the public hearing. 


Alfred Atkisson, 780 Ledro Street said I have been there for 20 years.  It is true that the property adjacent to mine even now has some drainage into my property that causes me to have several weeks of pretty mushy soil, especially during the spring. 




16 MAY 2006





Mr. Atkisson added when he does get his gutters up if he puts that drainage line to the swale in the back of our properties, which will alleviate a lot of the problem that I have.  This fence has been there close to 18 years in the same configuration that it is now, except it was at the six-foot level.    The posts have always been to my side, and I do hang some flower baskets so I have no objection at all to those posts being on my side.   I also don’t object to the height of it, as the six-foot height even now doesn’t allow us privacy on our side because the height of his yard is approximately 1½  to 2 feet higher in most areas. 


I have lived there almost 20 years; I am a tenant and I have pretty much taken care of the property the whole time I have been there, and I have no problem at all with what Greg is going to do.


Mr. Okum said for clarity, are you the owner of the property?  Mr. Atkisson answered no, I am the tenant.  I have leased that house for 20 years. 


Tony Renfro of 985 Pilgrim Place said I don’t have any issues with the fence going up.  There is a very large tree at the property line, and I am concerned about the fence posts going in, where they would be located in relation to this tree and the possibility of the tree’s stability being compromised.  I have photographs if you would like to see the tree (passed them around the dais).


Mr. Beatty showed the drawing to Mr. Renfro indicating that the tree would not be bothered.  Mr. Renfro said then he had no problem with the fence.


No one else came forward, and he closed the public hearing.


Mrs. Huber moved to grant the variance to allow the construction of a fence exceeding six feet and to allow the fence supports to be on the outside of the fence.  Mr. Squires seconded the motion. 


Mrs. Pollitt said I looked at the property and there is nothing you can see driving by.  His wife was out cutting the grass and I went into the back yard and see what he was talking about. 


The neighbor’s property is probably a good two feet lower.  The neighbor said he plans on building a rock retaining area to have a planting area.  Not only would the drainage tile help his yard, it also would keep the fence from looking so tall on his section of the property. 


I don’t have a problem with the posts being on the outside.  My only concern is this is the tenant, not the homeowner.  I understand he has been there for 20 years, but I would feel more comfortable if the homeowner had said in a notarized letter that he had no problem with this. 


Mr. Beatty reported Al has sent a letter to his landlord with all the copies of everything, but hasn’t had any response.  He has only spoken with his landlord about three times in the last five years. 



16 MAY 2006





Mrs. Pollitt responded so you are a good tenant and he doesn’t have any reason to contact you.  I understand that, but in this situation the variance goes with the land.  Mr. Beatty added I have no problem with that at all; I would feel much more comfortable with a notarized letter myself.  She simply will not respond. I will drive to her house, go to the bank and get a notarized letter, whatever it takes.    Mr. Atkisson added I can try to reach her again.


Mrs. Pollitt added the only reason I am saying that is because the variance stays with that piece of property.  Mr. Beatty responded I understand that completely, and I would feel much more comfortable if it was done also.   Rather than wait another whole month and if it’s okay with you, I would like to get approval and get the notarized letter.  I would drive to her house, no problem.


Mrs. Pollitt answered I don’t have a problem with this at all, and I understand what you are saying about the elevations.  My issue is that the permission should come from the person who actually owns the property.  


Mr. Beatty responded I understand, and to be honest with you, I really need to get moving on it and would like to save as much time as I can doing it.  Al knows what his landlord’s thinking is; Al takes care of things.  If a roof is needed, Al puts it on.  If it needs a concrete driveway, Al does it.  The landlord has no reason to show up, and Al has no intentions of ever moving. 


Mr. Beatty added on my side there will be nothing over six feet tall.  The only thing I am trying to do is make up the difference from the drainage line, nothing more.    Bill McErlane walked the whole area and suggested the drain off the swale and has no problem with it.


Addressing Mr. Lohbeck, Mr. Okum said if this fence is entirely on his property, the only place that it would exceed the six feet is back at that swale?


Mr. Beatty showed pictures, saying that not on Al’s side but on the opposite side, the property from my neighbor sets up here and drains down and I get dumped on.  Then it goes over and goes down again, and Al gets dumped on.  This is the picture of the opposite side, and it does not show very well how much this dips down in there; it is almost a two-foot drop. 


Mr. Okum commented I think what you are saying is that you want to get the fence so it is not setting in the tapered area.  Mr. Beatty responded it tapers, but the biggest issue is that I am trying to drain all this water.  I just bought this house in 2005, and it is a total rehab on the inside.  When the gutters go in here, there will be a downspout running down and Al will get all the water on top of everything he is already getting.  Forget the fact that it is not dumping right now; he is two weeks from being able to cut his grass just from natural water draining off.  When I run these downspouts, it will be that much worse.  What I want to do is run drainage all the way down the side of the fence that runs into a swale in the back of all the neighbors’ yards.




16 MAY 2006





Mr. Okum said let the record show that the applicant is presenting a number of photos depicting the existing fence that is being replaced with a new fence.  The new fence elevation-wise will be six to eight inches higher than it is now.


Mr. Beatty responded what will happen is this fence will be raised up.  I will be putting boarding down the very bottom before I start my six-foot boards.  The drainage lines will run into here.  Mr. Okum asked if they were pressure treated timbers.  Mr. Beatty said yes, it will be a first-class fence. 


Mr. Squires said you say nothing will exceed six feet on your property.  As I am looking at this picture, I see a shed.  Is that a part of it that will be over six feet?

Mr. Beatty answered no.  I am going up to the corner of my shed, because this area stays wet constantly.  I am not asking to go over six feet high on the inside of my yard.   The only thing I am trying to do is when I put the drain line on this side, it still will be six feet on my side of the property.  The problem is where the property drops down like this into Al’s yard.  This is where the fence sets, and I am trying to put a drainage system on my side of the property, back the post up with a board so when I backfill it, I will start with the six-foot boards.


Mr. Okum wondered if the top of the fence would be approximately the same height as it is now.  I’m not talking about your neighbor’s side.  If you take that slope that drops down and fill it in, you have a retaining wall and your grade becomes that line.  Will the top of your fence be at six feet above that new grade line?  Mr. Beatty said yes.  Mr. Okum continued and that is all on your property.


Mr. Beatty responded on my side, it will not be over six feet.  Mr. Okum said if you would put a stone wall and change the grade of your property to be all flat eliminating that dip that would be your grade.  That would be the base point of the fence. 


The code reads that the fence on your property (because the variance is for your property) does not exceed six feet on your property.  So if this gentleman would go in put his retaining wall in and fill in that area and put his drain tile in, etc. that would be the base for the fence.   So I don’t see the need for a variance because the fence is on his property.  We can’t regulate the height of a fence on the adjoining property when the variance is for this property. 


Mrs. Pollitt said with the area of your neighbor’s yard being so much lower than yours, it is such an unusual piece of property there, if you were looking at it from the neighbor’s yard, because of the difference in elevation between his flat piece of property and your higher piece of property, it will look like a taller structure than it really is.  But with him coming in and doing the rockwork that he wants to do on his side to build that up to the bottom of your fence,

it won’t be noticed. 




16 MAY 2006





Mrs. Pollitt added that is not the issue here.  If you did need a variance it would be issued on your property at your elevation.  It has nothing to do with your neighbor and his elevation.  


Mr. Okum responded that how I am reading the code.  The code applies to a particular lot in a particular zoning district.  Mrs. Pollitt commented so the only thing that we would have on the table for discussion is the placement of the posts.  Are they on the inside of the fence or the outside?  And if your neighbors are in agreement for you to put them on the outside, you would need a notarized letter from all three of your neighbors that your property abuts.


Addressing the applicant, Mr. Okum said there are two parcels attached to the back of your property, and in essence if you would have those four notarized statements of non objection, if you get those statements on the placement of the posts, I don’t see the need for a variance. 


Mr. Lohbeck reported that according to the Zoning Code, “fences and walls shall not exceed six feet in height in the required rear and side yards.”  It doesn’t say anything else.


Mr. Squires said so since that fence on your property will not exceed six feet, you will not need a variance.  Am I correct?  Mr. Okum responded that is my understanding.  Mr. Squires continued the only thing in question is where to put those fence posts.  If you were to put this fence up with those posts facing to the inside, you wouldn’t need a variance. 


Mr. Okum suggested that he get the four signatures.  Mr. Beatty responded I would have a problem with the neighbors on the other side.   Not that they are good neighbors or bad neighbors; they just don’t say hi or do anything.  Mr. Okum asked if this was germane to the variance, or a problem you have.  Mr. Beatty responded it is a problem.  Mr. Okum said this is not the forum for that.  You might call the building department about this.


Mr. Okum commented the other option would be to put the posts on the inside and you wouldn’t have an issue. 


Mr. Okum said is there anyone on the board that feels we need to consider this for a variance on the issue of the height of the fence when the applicant indicates that the height of the fence on his property will not exceed six feet?  No one had a problem.


Mr. Okum continued if the applicant wants to pursue the issue of a variance for the fence posts being on the outside, this board can hear that.  I will say to you that it would be better for you to try to get those signatures so it wouldn’t need a variance.


Mr. Beatty said so I would have to hold off for another month?  Mr. Okum answered no.  Get your notarized signatures, take them to the Building Department and apply for the permit.





16 MAY 2006





Mr. Okum said I have to say that I am not the Building Official, but at this point this board does not see a need for a variance on the height of the fence.  If the Building Official interprets it differently, we’d have to act on it.   Mr. Lohbeck commented I think he’ll go with the board’s decision that a variance is not required.


Mr. Beatty said so if I get my notarized signatures, I am good to go.  Mr. Okum asked if he wanted a vote from this board on allowing you to put the posts on the outside.  Mr. Beatty responded absolutely.  If you vote on it and say yes, do I need the signatures?  Mr. Okum said if we vote yes, you would not need the signatures.


Mr. Beatty continued I’d like to say one thing.  The property opposite Al’s property is the one where I am having all the problems with the trees growing in.   From my fence line approximately 10 feet over is nothing but shrubs and bushes and he can’t see that fence anyway.


Mr. Okum said we have the request by the applicant for the posts to be on the outside of the fence.  The motion was made by Mrs. Huber and seconded by Mr. Squires.  Do you want to amend your motion to just include the outside posts?  Mrs. Huber so amended her motion and Mr. Squires amended his second.


Mrs. Pollitt said should the board vote no, does the applicant have the opportunity to get the signatures and bring them in to the Building Department?  Mr. Okum said yes.  Mrs. Pollitt wondered if the other neighbors were notified by letter and staff confirmed that they were.


Mr. Reichert said the only other alternative would be to wait for another month or put the posts on the inside so you wouldn’t need the variance.


Mr. Beatty responded I am spending thousands of dollars and to have to look at the posts on the inside of my yard when I have two neighbors here who it doesn’t bother and one who actually wants it that way.  The neighbor on the other side can’t possibly see it because they have 10 feet of shrubs and brush in there. 


Mr. Atkisson said you stated that the variance stayed with that property.  If you’ll notice in the pictures, the posts are already on that side so there had to have been a variance at one time.  Mr. Okum said there was not a post requirement earlier; this is a relatively new regulation in the code. 


Mr. Renfro said he has two votes for putting his fence the way he wants.  The neighbor living next to me, which would be the third neighbor, is selling his house.  He has already moved into the Michigan area.  The fence that is there now is already in that position with the posts on the outside.  As far as the fourth neighbor is concerned, he would just be replacing the fence that is already there, if that helps.





16 MAY 2006





Mr. Okum asked if he considered different types of fence.  Mr. Beatty answered I am not certain at this point.  After calling some of the really big fencing companies, because of termite damage and the fact that the western cedar just lasts so much longer, I’m thinking I will go with the western cedar.  It is considerably more expensive than putting up the regular tree lumber, but it lasts much longer and I won’t have termite damage.  I also want everyone to be aware that the companies told me that cedar does not do very well on 2 x 4 rails.  It does excellently on the fencing panels themselves. 


Addressing the applicant, Mr. Okum said if there were conditions on the variance that the material of the fence be constructed of western red cedar allowing for the pressure-treated posts and support members, would that be acceptable to you?


Mr. Beatty answered that’s the reason I want everyone to know.  I don’t want there to be any surprises at the last minute.  Mr. Okum continued the reason I am asking is because that would make the decision in my mind as to the appearance of the fence.


Mr. Beatty commented I don’t disagree with you one bit and that is the reason that I say if I have to change gears and go with the treated dog eared panels, I am going by what the fence companies are telling me are the best types of materials to use, I don’t know that I would like looking at it from my neighbor’s side. That is the reason I am bringing it up here; if someone has a problem, this is the best time to find out about it.  If I need to change that and make it all cedar, if that is what Al wants to look at, I’m fine with it.  I’m not trying to be hard to get along with; I just want to get my fence up and do it right.


Mr. Okum said the board can place conditions on a variance that specifies type of material and quality.  If Mr. Beatty wishes to have his posts on the opposite side away from his property, my recommendation would be that the fence be constructed of a quality material, similar to western red cedar. 


Mrs. Pollitt stated I don’t have a problem supporting his request to have the posts on the outside, given the fact that we have two neighbors here who have said that it doesn’t bother them.  The one neighbor on his side received a letter and apparently did not care enough to come or send any correspondence to this board, and the other neighbor has moved from our area, so he is no longer vested in this community.   I have no problem with that, and as long as it is done tastefully and a good job, I think that is fine.  My thinking is if my neighbor was doing something to their property and I had been sent a letter and I had a concern or question, I would make a point to find out about that.  Judging from that neighbor’s back yard, he’s not going to be able to see anything until he clears his brush away.


Mr. Okum said so are we leaving the motion as stated, for the fence posts to be on the outside and the material of the fence to be what the applicant chooses to put there. 




16 MAY 2006





On the motion, Mrs. Huber, Mr. Squires, Mr. Emerson, Mrs. Pollitt and Mr. Reichert voted aye.  Mr. Weidlich and Chairman Okum voted no, and the variance was granted with five affirmative votes.


X.                 DISCUSSION



XI.               ADJOURNMENT


Mrs. Pollitt moved for adjournment, and the Board of Zoning Appeals adjourned at 8:15 p.m.


                                                                     Respectfully submitted,




_________________________,2006   __________________________

                                                                     David Okum, Chairman




_________________________,2006   __________________________

                                                                     Jane Huber, Secretary