BOARD OF ZONING MEETING
MAY 20, 2008
7:00 P.M.



I. CALL MEETING TO ORDER

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

II. ROLL CALL

Members Present: Mr. Emerson, Mr. Diehl, Mr. Danbury, Mr. Weidlich,
Chairman Okum, Mrs. Huber, Mr. Reichert

Others Present: Mr. Campion, Inspection Supervisor,
Jeff Tulloch, Economic Development Director

III. PLEDGE OF ALLEGIANCE

IV. MINUTES OF THE REGULAR MEETING OF 15 APRIL 2008

Mrs. Huber moved to approve the Board of Zoning Meeting Minutes as submitted from April 15, 2008, Mr. Danbury seconded the motion, all Board of Zoning Members voted aye and the Minutes were adopted.

V. CORRESPONDENCE

a. Zoning Bulletin – April 25, 2008
b. Zoning Bulletin – May 10, 2008
c. Updated BZA Contact List
d. Ordinance Number 16-2008


VI. REPORT ON COUNCIL

Mr. Danbury: reported concerning the Memorial Golf Outing on June 11, 2008.
At the last Council meeting we had one Ordinance and that was dealing with a contract for fuel with BP. The meeting prior to that dealt with Ordinance #16 – it deals with size of structures based upon the size of a lot. Council also dealt with Ordinance #20 and #21.
All of these Ordinances passed with seven affirmative votes.


VII. PLANNING COMMISSION REPORT

Chairman Okum reported that at the May 13th Planning Commission Meeting there was one item on the agenda – Modification of the Preliminary Plan for the Tri-County Commons. The project was presented to us as Burbanks.


VIII. CHAIRMAN’S STATEMENT AND SWEARING IN OF APPLICANTS


IX. OLD BUSINESS

Chairman Okum reported no items of old business.

X. NEW BUSINESS

A. 12065 GREENCASTLE – NEW RESIDENCE
Chairman Okum: First item on the agenda is for approval of a variance to allow the owner of 12065 Greencastle to construct a residence 22’ from the rear property line. Said variance is from Section 153.072 (A) Single household dwellings…shall have a minimum rear yard setback of 40 feet.”
Could a representative from the property please step forward and present your case.

(At this time the first item was deferred until later in the meeting as one of the representatives had not arrived.)

B. 1079 LEDRO STREET – FENCE POST TO REMAIN ON OUTSIDE
Chairman Okum: Approval of a variance to allow the owner of 1079 Ledro Street to keep the fence posts to the outside of the fence located on the property. Said variance is requested from Section 153.482(C)(4) “All structural supports of any fence shall be erected with supports on the inside of the area to be enclosed…”
Would the representative for the property please step forward.

Marianne Harper: Mills Fence was asked if they would take care of permits; they said “Yes”. They did not take care of the permit. We just replaced the fence as it was, with the posts outside.

Randy Campion read the Staff report: The applicant is requesting a variance to allow the supporting structure of her 6 foot privacy fence to remain on the outside of the enclosure. Section 153.482 (C)(4) requires that the fence supports be erected on the inside of the area to be enclosed.
The owner had the fence erected without a permit: Notice was sent by Gordon King, Building Inspector, on March 11, 2008 advising her to obtain a permit.
Section 153.482 (C)(4) gives an alternative to the requirement for post location by allowing the owner to obtain notarized statements from the adjacent property owners attesting to their approval to the support location. The applicant has obtained such a statement from the property owner to her west. On the east side, the adjacent property owner has installed a finished side to her posts such that both sides are finished. The applicant has not indicated if an attempt was made to obtain a notarized statement from the neighbor to the south. Should a variance be granted, it would be for the fence on the south property line only.

Chairman Okum opened the floor to the audience and no one stepped forward.

Mrs. Huber moved to grant a variance from Section 153.482(C)(4) so as to allow the fence posts to remain to the outside of the property located at 1079 Ledro Street, this would be on the south property line only. Mr. Weidlich seconded the motion.

Mr. Danbury: Many people say they didn’t know that they needed a building permit, but it is up to everybody to get a building permit; we give building permits on most residential items for free and it is the responsibility of the homeowner.
We did approve her neighbor at 1081 Ledro for the same issues, so I don’t have a problem with it myself.

Chairman Okum: I will be supporting your request for a variance; I would prefer that fences were double-sided.

Mrs. Huber polled the Board and with a unanimous “aye” vote the variance was granted.

C. 141 RUSKIN LANE – PATIO COVER 5’ FROM REAR LOT LINE
Chairman Okum: Next item on the agenda, approval of a setback variance to allow the owner of 141 Ruskin Lane to erect a patio cover 5’ from the rear lot line. Section 153.087(A) “An…open but roofed porch may project…not more than 50% into a required rear yard.”
Could a representative from 141 Ruskin please step forward.

Mr. Donald W. Behymer: We are just trying to replace our falling down awning and we requested a variance because our backyard is only 20’ deep. The awning will be the same size as the original and manufactured by Champion and it is not a do-it-yourself, it is a $4,000. awning. It is just unfortunate that we do not have any back lot.

Mrs. Huber: How many feet is the back lot exactly?

Mr. Behymer: Twenty feet.

Mr. Campion read the Staff comments: The applicant is requesting a variance to allow him to replace an existing patio roof with a 5 feet setback from the rear line. Section 153.580 (D) allows an open but roofed porch to project into a required rear yard by 50%. The required rear yard for this Zoning District (RSH-M) is 40 feet per 153.087(A). Therefore, the required setback to the patio roof is 20 feet.
The building on the property is legal non-conforming and only has rear yard depth of approximately 20 feet. A variance would be necessary to construct any size patio roof.

Chairman Okum opened the floor to the audience and no one stepped forward.

Mr. Weidlich: I would like to make a motion to approve an awning that will create a 5’ setback from the rear property line at 141 Ruskin from Section 153.580(D) and 153.087(A) of our Zoning Code. Mrs. Huber seconded the motion.

Chairman Okum: Considering that your home is less than 20’ from your rear property line you would be in a hard position to try to put an awning anywhere else on your property, at least on the rear of your property.

Mr. Behymer: It is 24’ X 10’. It only projects out 10’ from the house.

Mr. Reichert: Does the fence run the whole property line in the back yard?

Mr. Behymer: No, sir.

Chairman Okum: Again, the Board has considered the factors in 153.710 of our Code.

Mrs. Huber polled the Board and with a unanimous “aye” vote the variance was granted.

A. 12065 GREENCASTLE – NEW RESIDENCE
Chairman Okum: At this time we will bounce back to “A”, an approval of a variance to allow the owner of 12065 Greencastle to construct a residence 22’ from the rear property line. Said variance is from Section 153.072(A) Single household dwellings…shall have a minimum rear yard setback of 40 feet.

Mr. Derrick Parham: I am the Assistant City Administrator at City of Springdale, where the property owner for the property located at 12065 Greencastle Drive, approximately in 2005 the City purchased the property from the current owner and over the last two years we have at various times placed the property out on the market to be sold. We have at this point reached an agreement with Mr. Teague to sell the property, as part of that there are stipulations placed on the buyer. The first part of the process when we placed it out for bid is that the buyers would present to us a design, the City would then make a decision as to whether we agree with that design or not, and if we did agree with that design we would then proceed and open the financial part of the bid. If we did not agree with that design we would not receive the financial part of that bid. In this particular case with Mr. Teague, we found that the proposal that he submitted was appropriate for the site. I believe you have a copy of the floor plan, the site plan and the square footage for the home. The plan that he proposes is 3200 square feet and it is 38’-3” deep on the garage side of the property. As I understand the setback for the rear yard is 40’, there is currently a variance on the property that is 29.33’, but based on the square footage and the size of the home that he is proposing to construct he is in need of a variance for a setback of 22’. With that I would ask for the Board’s approval.

Chairman Okum: There are conditions set in your contract for purchase?

Mr. Parham: Yes. There were two conditions; one is that the property owner or prospective buyer would begin the construction of the property, I believe within a 12 month period from the time of purchase. The other is that in trying to insure that the property would remain as owner occupied and to resist that it turn into a rental property, that the owner of the property would have to reside in the home a minimum of 5 years.

Randy Campion read the Staff report: The applicant is requesting a variance to construct a new single household residence on a corner lot with a 22’ rear yard. Section 153.072(A) of the Zoning Code requires a 40 foot minimum rear yard.
The property was formerly occupied by a residence which has been demolished. A variance was granted on April 20, 1976 to allow a 29’ – 4” rear yard in order to construct the prior residence. The prior residence was a split-level home of 1804 s.f. and was 26’ – 8” deep. The proposed residence is 3200 s.f. and is 38’ – 3” deep on the garage side.
As with most corner lots the challenge is to provide 2 front yard setbacks, a required rear yard and have adequate room left to build a structure of reasonable size. Such is the case on this lot.



Should the Board choose to grant this variance it should be conditioned upon the following:
1) The driveway shall be accessed from Harcourt Drive.
2) The front elevation shall have a brick finish.
3) The Harcourt Drive side elevation shall have a brick finish on at least 50% of the surface.
4) The roof covering shall be dimensional asphalt shingles.

These conditions are part of the City’s conditions for sale of the property.

Shaun Teague, the planned purchaser of the property, arrived at the proceedings (after being sworn in, stepped forward to comment). We do realize that the variances; the property does have a short back yard, for the type of property and home that we need this is necessary. This is our request.

Chairman Okum opened the floor to the audience and no one stepped forward.

Mrs. Huber made a motion to grant a variance from Section 153.072 (A) so as to allow for a rear yard to be 22’ from property line. The property is located at 12065 Greencastle Drive.
Mr. Reichert seconded the motion.

Chairman Okum: We do understand that it is a corner lot and that makes it very difficult to achieve a balance and to place a dwelling on it. I do have a slight concern; I have had the opportunity to look at the plan, The Somerset, it has the option of an opportunity to put a sunroom on the home, because you are already in the setback area that would make it very difficult to put that in there.

Mr. Teague: We have opted not to go with the sunroom just for the various facts that you just mentioned.

Chairman Okum: The other option would be to reconfigure you fireplace in your family room and have something with that 55’ on that other side, and maybe utilize that other side of the house; at a later time if you decided to. And I would make that suggestion to you now because I don’t want to have to see you back in here in a year and a half when you decide you want to have that sunroom back off the back of the house.

Mr. Teague: That would be great.

Chairman Okum: Staff has recommended that there are four conditions be added, which tie to your agreement.

Mr. Emerson: If your garage is going out to Harcourt, what is going to take the place of the garage door from the front, is there any plans to put windows in there?

Mr. Teague: There will be two windows on the side.
The builder and I actually had concern with the garage facing Harcourt, will we still have the Greencastle address?

Mr. Campion: Usually it is the front door, the way the door faces.

Mr. Reichert: I make a motion to amend to include the four points, as recommended by Staff as part of the variance.
Mrs. Huber seconded the motion.

Mrs. Huber polled the Board on the amendment and with a unanimous “aye” vote the motion was accepted.

Mrs. Huber then polled the Board on the motion as amended, and with a unanimous “aye” vote the requested variance as amended was granted.

C. 762 TIVOLI LANE – TO PLACE AN ACCESSORY STRUCTURE CLOSER THAN 5’ FROM THE REAR AND SIDE LOT LINES
Chairman Okum: The owner of 762 Tivoli Lane is requesting a variance to place an accessory structure closer than 5’ from the rear and side lot lines; said variance is requested from Section 153.097(B)(4) “All structures…must be not less than 5’ from any rear or side lot lines.”

Would the representative for the property please step forward.

Mr. Carrender: I live in Sharonville, this is rental property in Springdale. Previously I had a shed, it was an eye sore so I tore it down and I have checked where I want to put the shed and there has been a brick and stone patio under a good portion of where this shed would sit. I have checked around and I can put crushed limestone in the rest of the area up to the fence corners and all around the perimeter of the shed.

Mr. Okum: So I clearly understand this, is your request to place the shed the 2’ from the fence or 2’ from your property line?

Mr. Carrender: From the fence. The fence has been there ever since I owned the property, which has probably 20 years and I bought the property at a foreclosure, but I took the shed down, I don’t know three or four years ago and when I got a new tenant a few months ago they want more storage space because they come from a big house and they have got the garage full of boxes and they want storage space. Plus, I need to leave a couple things there myself like ladders and lawnmowers for in between tenants. But by putting this crushed rock around the outer perimeter of the existing patio there is no way that there would be any grass growing up because I have already checked it out and the Amish people they did four inches deep and put the crushed rock and they tell me that you never see anything growing through it.

Randy Campion read the Staff comments: The applicant is requesting to erect a 10’ X 12’ utility building 2 feet from the side and rear lot lines. Section 153.097 (B)(4) requires that all accessory structures be not less than 5 feet from the rear and side lot lines.
The applicant has not presented an unusual circumstance about his property which makes it impractical to locate the structure 5 feet from the lot line.
The applicant requested this same variance at the April 15, 2008 meeting. The request was not approved with a vote of 3 to 3. Much of the discussion at this meeting was related to the location of the property lines. Nothing has been submitted to clarify this issue.

I just want to add that I went out to the site and took the picture before you and the last picture and second to last picture are the Cagis fly-over and it shows the property line and then it shows some bushes and this is just my opinion, because we haven’t had it surveyed, but it looks like when they set the fence up around the pool, it looks like the property line was the bushes. The front corner of the fence that faces the street is on the property line is over about 4’ to miss the bushes, so it looks like – I drew a dotted line where I think the property line is, without having it surveyed – but it looks like the bushes are the property line, and not the fence. It is our policy that we don’t do surveys and we take the fence as the property line, so without a survey if we went to that location we would measure 5’ off the existing fence, but it is my opinion that the bushes are actually the property line.

Chairman Okum: I appreciate those observations, I too had that same consideration that if we would allow the 2’ setback from the fence, literally if there were a survey done based upon Cagis, this shed would be sitting on his neighbor’s property and that would be alarming and therefore I am having a hard time supporting placing it on the property line or even close to the property line, that is one of the reasons that you have a 5’, for variance for adjustments so that you can deal with situations and you can get behind them and maintain them.

Chairman Okum opened the floor to the audience and no one stepped forward.

Mr. Weidlich made a motion to approve the setback of 2’ from the rear and side property lines at 762 Tivoli Lane. These are relative to our Code, Section 153.097(B)(4) that requires a 5’ setback from rear and side property lines.
Mr. Danbury seconded the motion.

Chairman Okum: Mr. Weidlich, just for purposes of understanding, you said specifically from the property line, not the fence line?

Mr. Weidlich: Yes.

Chairman Okum: Does everyone understand that conditions can be placed on a variance that can require a survey be done by the applicant? If that is the motion that comes forward, I would probably support a 2’ setback from the surveyed property line; but I would not support possibly placing that shed on the property line. So, Mr. Weidlich is strictly for the property and if we do want to add conditions, we can.
I am suggesting to the Board that if you want to put your shed 2’ off the property line that there would be a condition set that you would be permitted to do that but it would be requiring you to get a survey of the property stating and establishing where your property line truly is. Then you could submit that to the City and the City can approve the shed 2’ off that property line. That is what Mr. Weidlich has made the motion for. He has disregarded the issue of where the fence is at. Mr. Campion has stated that in his report that is it highly probable that the fence has been jogged around the bushes and your property line is not truly where you think it is; but that is up to you. If you want us to carry it forward to a vote, we will, but I think that would be the prudent thing for this Board to do considering there is clearly a variable in where that property line is in the fence and it would be inappropriate for us to allow a shed or any structure be placed on the property line or someone else’s property.

Mr. Reichert: In your picture, where the shed is located, it is sort of like on an angle 45 in the corner, is that your intention, or is it going to be square?

Mr. Carrender: No, it is going to be square.

Mr. Reichert: It is going to be parallel to the side?

Mr. Carrender: Right. Those fences have been there ever since I have owned the property. It was erected – it was the old one came down and the new one was put up within the past three years and I have talked with and got a statement from the people in the east and they said everything is good and put it against the fence if I want to. The other people said, “No problem with them”, but I didn’t get their statement because they have been on vacation. Now hypothetically, let’s say that the survey says that the fence is over on my property and not the other property. I am not going to ask them to take that fence down.

Chairman Okum: You wouldn’t have to, sir, I think the City would. But, I think the situation…

Mr. Carrender: You mean to tell me that the City would ask someone to take down a fence that has been there for twenty years?

Mr. Campion: I don’t know that we would in practicality unless somebody complained about it.

Mr. Carrender: Within ten doors of where I live I can take a picture of a building this side that is within 1’ of the fence, not 2’, within ten doors from where I am asking.

Chairman Okum: Yes, sir. We will go and see what the other Board Members have to say.

Mr. Emerson: Mr. Carrender, I think my question would be is if my neighbor built a fence and it wound up being on my yard or on my property, ten years down the road when the fence is falling apart, the City comes to me because it is on my property that makes it my fence, and I think that would have to be the answer to your question, if your neighbor wound up building a fence on your property, the City comes to you because it is falling apart and you say, “Well, that is my neighbor’s fence, he is the one who built it”; well, but then they are going to hold you responsible.

Mr. Carrender: He built it before I owned the property.

Mr. Emerson: No, I understand that. But I am saying and I am playing the devil’s advocate on the other side, if you put your barn up and it winds up being on your neighbor’s property, it would be pretty expensive tearing that barn down and having to move it 3’ or 4’ to the other side.

Mr. Carrender: No, this gentleman right here explained that you can roll them over; in other words, people all the time, I am sure you guys know they roll these barns around and put them where they want them.

Mr. Emerson: If it were my barn and my property, I would want to know if it was sitting on my property, that is my personal opinion.

Mr. Carrender: Well, I think it is a waste of money to spend a few hundred bucks to get a survey, when I really don’t care where the line is at. Quite frankly, I don’t care.

Chairman Okum: We are dealing with it legally and we are the Board that has to pass or deny a variance. That variance stays with the property and it represents property rights for all the residents, not only you, sir. It doesn’t only include the people that live next to you or live next to that property, it includes the people that will live there 10, 20, 30 years from now, so what we do today stays with the property. So, when we are imposing a variance we are affecting property rights of the adjoining property owners, as well as yours, sir. And that is the reason that this hearing is heard and that is the reason that there is a judicial, fair system to allow testimony and allow presentation of evidence in these proceedings. It may not be something you like, but it is something that is legally proper and it is required, so this is not simple and it is very difficult for us. We are all residents of this community. This is truly the hardest Board to sit on. It would be a lot easier to say that anybody can do anything they want on all of their property, but that does not give fair rights to all the residents of the community, and that is the reason that this Board has been established.

Mr. Carrender: O.K. The position I am in, my tenant, I told her that I have to move it out; she said that takes up yard space that I want, and she said that you are saying that they won’t do it within 2’? And go down the street, 10 doors and they have got one within one foot, now.

Chairman Okum: I can’t state what is right and what is wrong, I can tell you that what is right is that if this Board decides to allow a variance of 2’ instead of 5’ from the legal property line, then that would be the variance. That is giving a 3’ variance from our Code; our Code requires 5’.

Mr. Danbury: You look at me and there are problems all over, and I don’t like seeing people incur costs that they don’t need to incur and that is why Mr. Okum made the motion that you get a survey. If you were to build this and if your immediate neighbor were to tear down the fence, and he wants to sell it for whatever reason, he or she wants to have it surveyed and if you were to build it partly on their property then you are going to have to move it. It is just like if you have a tree in your yard and all of a sudden all of the branches go in my side, I have a right to cut that off. You may have a neighbor that doesn’t like it and they may take a saw and go right down the middle and say, “I want to get rid of this, it is on my property.” If you were to get it surveyed it would take care of everything, or if you just want to go without this, because you are looking at investing $2,100. instead of going for a variance of 2’ just move it over 3’.

Mr. Carrender: It is more that $2,100. because now I am going to stain it exactly like the fence, the neighbor next door is going to do it and the patio that is sitting under it, I am going to extend all around the perimeter, like this, with the crushed rock 4” deep so you don’t have a grass problem.

Mr. Danbury: As I stated at our last meeting, I was in favor of at least giving this to you, as long as there is a stipulation that you did put crushed rock or something that would not allow grass to come in, but Chairman did bring up a very valid point in that we don’t know for sure and the pictures appear that this is not the actual property line.

Mr. Carrender: As I have stated, if all this happens further down the road, all you do is put rollers under it and roll it over. But, I am hard pressed to believe that I am not on their property line because Dusty Rhode sent me 77’ X 212’. I measured the front of 77’ and if I start at the fence one side, those people are over on my property with a privacy fence. Then when I get back to the back of the lot, it is 12’ more narrow cause it went on an angle than the front, so if they come over 12’ and I have the only house facing that street on that entire block. Now you would think that those two streets wouldn’t be running together and they gave all the property to the other two people – you would think that mine would be closer than 12’ difference from front to back.

Chairman Okum: We understand, sir. And you are entitled to do what you are entitled to do and it is up to this Board to deliberate and make a decision. Just for the record, you do have an irregular lot, it is wider in the front and narrower in the back.

Mr. Carrender: It does not say that.

Chairman Okum: It shows that on Cagis; all I can do is go by what Cagis shows on the drawings, I do not have the Auditor’s report, but I believe that it calls for an irregular lot, is that right, Mr. Campion?

Mr. Campion: Cagis says that it is 58.98’ in the back.

Mr. Carrender: What does it say the front is?

Mr. Campion: That is the only measurement I didn’t right down, the front is bigger than the back.

Chairman Okum: I thought the front was 70’ –something and 776 faces Tivoli, as well.

Mr. Carrender: It is the only house on the block that faces that street.

Chairman Okum: You are incorrect; my mother-in-law owned 776 for over 20 years and 776 faces the same way as that house.

Mr. Carrender: Opposite side of the street.

Chairman Okum: No, sir.

Mr. Carrender: I tell you what buddy, you have got some wires crossed because that house faces Tivoli, Barb and Tom face Crescentville, and the other house faces Ledro.

Chairman Okum: Then I went to the wrong house for 20 years.

Mr. Carrender: Who went and looked at the house?

Mr. Campion: I did.

Mr. Emerson: Are we set that the back line is true?

Chairman Okum: We are not set on any of this.

Mr. Campion: According to Cagis the back line appears to be the true property line. I think the back page of that hand-out shows the aerial photo and a drawn line.

Chairman Okum: At this time, the Board is going to consider your request.
Frankly, I don’t see the applicant’s willingness to do a survey so I will find it of futility to incorporate that into the motion or to amend the motion, so my suggestion to have a survey done – we gave that opportunity and I don’t believe that that would be accepted, so we are based on the motion as requested, I have stated my position that without a survey there is no way of knowing where that shed would be placed and to place the shed on someone else’s property, I believe is not in the interest of the future property owners that join those properties.

Mr. Diehl: Thank you; I have a question for the Chair, in the event that we gave them this variance and the shed turned out to be on somebody else’s property based on a survey, what happens to that shed at that time?

Chairman Okum: The next door neighbor, if they decided to act on it, would have to go to the Court and request action be taken on their behalf, they would incur costs to accomplish that, I believe.

Mr. Campion: You would also be granting a variance for a shed to be put there.

Chairman Okum: And we would have a variance on the record that we granted a variance...
no, not necessarily, because the motion was strictly to allow the shed to be 2’ from the property line. So the motion was specific, it wasn’t to the fence line, it was to the property line and that would hold, so it would be up to the neighbor next door to exercise their rights. And the only way that those could be exercised, I believe is to action of court.

Mr. Emerson: Concerning this, Mr. Campion if you were going to do a professional opinion, looking at this, how far off would you say the fence is from where you think the property line is in the back?

Mr. Campion: It looked like it scaled out, the fence is about 3’. Sir, would you say that the fence is about 3’ from the bushes?

Mr. Carrender: As a matter of fact, I trimmed the bushes yesterday. They were against the fence and I cut them back about 2’. But, as far as moving it, if someone would complain…it is just like the fence that is there, I would never ask those people to move the fence if I surveyed it. I would complain if the City wanted them to move it. So, I think that this is literally nonsense, and we’ve got enough of that to go around.

Mr. Emerson: I was just wondering and would be almost half tempted to support 5’ off the north fence and 2’ off the back fence.

Mr. Campion: Our policy, since we don’t survey things, is to go 5’ off the fence. So if he put his shed 5’ off the existing fence, without a survey we would have to say that that is o.k.

Mr. Emerson: I was saying 5’ off the north fence and then it would need a variance for the 2’ off the back fence so he could utilize most of his yard.

Mr. Campion: And, based on my educated guess, I would say that 5’ is probably 2’ or 3’ off the property line.

Chairman Okum: Staff has indicated that they would base their decision on placement of the shed as the fence, not the property line; so by essence if you were to grant the variance you would be placing the shed closer to the fence and possibly on the property line.

Mr. Emerson: If we take the fence as the property line, do we put it in and word it that way?

Chairman Okum: Yes, but I’m not quite sure the applicant has shown a steadfastness through the discussion that he is insistent on 2’ setback from the fence. Unless the applicant has changed his mind it would be inappropriate for us to say this is where you have to put it unless he agrees to placing it there, otherwise it is a fruitless motion and it’s a variance that has not even been accepted by the applicant. It is not part of the applicant’s request. You are altering his requested variance by doing it that way.

Mr. Campion: If I could ask something of the applicant, are you suggesting, if you say the fence is 3’ from the bushes and you want 2’ and you want the shed to be 2’ from the fence, does that mean you are going to cut the bushes down?

Mr. Carrender: The bushes, if you are out there, they do not go back to that fence.
Did you see the construction I have been doing back there to get Brother Danbury’s wishes I already have crushed gravel back there. Now if I have to sit this someplace else, I can put up a $300. shed that will rust out in about a year or two and then you have an eye-sore; and I am buying a $2000. shed that is going to make the place look good and it has a 40 year warranty.
So do you want the place to look good, or do you want it to look good for a year or two and then have a rust bin back there which I just took out 2 or 3 years ago. Those old metal sheds rust and regardless, if anyone wants to go inside that house and you have one that looks any better – you’ve got a nice one. Because all the bathrooms the kitchen, everything is updated.

Chairman Okum: We have to deal with property rights and that is where it becomes very difficult. Without a survey on this property we have to base it upon what staff sees. Staff has clearly stated in their report that your fence and the property line based upon what Cagis provides to us, and Cagis is an aerial survey that was done that shows the property lines overlaying the land and the homes throughout Hamilton County and that survey shows where your property line is, that is in conflict with where your neighbor’s fence is. So, when we are talking property rights we are talking the rights of the neighbors. Not this neighbor, not tomorrow, and I appreciate what you want to do with your property, but you are not going to be the owner is 20, 30 years. And those rights have to be carried forward because this is not a temporary situation; this is a permanent situation when we deal with a variance. And that is the reason that I have stated to you several times that it is permanent, it is not short term and although you’re willingness to move the shed doesn’t eliminate our obligation to allow the
placement of a shed on somebody else’s property. If it is potentially on somebody else’s property, it is not in our rights to do that.
We would be more than willing to open this up again, if you want to carry this forward and have us not vote on it this evening– we will be happy to not vote on it this evening and give you an opportunity to prove different.

Mr. Carrender: I am not going to waste money if I have a survey that is meaningless.
I am not going to ask anyone to move their fence because I find out that they put it on my property.

Chairman Okum: That is not what I said, sir and that is not correct. What I said to you was, if that fence is truly your property line then I would not have a problem with the 2’ from the fence. My concern is that the fence is not your property line. We have two points of evidence that were presented to us by staff and that is photos – aerial drawings and Cagis;
the Cagis drawing showing the property lines. That is where the confusion is. You are the applicant, you need to present evidence to us why you need to be able to justify why you need that shed that close to your property line. So far I haven’t heard any reason why that shed should not be 5’ from your property line, but I would be willing to even grant the extra 3’.

Mr. Carrender: Because it is a small yard and the tenant needs all the space they can get, plus they need storage space.

Mr. Diehl: A comment, on behalf of the City we always are looking for good landlords and you are certainly one of them and we thank you for that. Based on the motion that we are going to tie this to the property line, I happen to be going to vote in favor of this, only that if the property line determined in the future – tomorrow or ten years from now – that it does meet someone is going to have to take this shed down or move it.

Mr. Emerson: Mr. Diehl, what we have run into in the past on this Board is that somebody put up a fence and then they move and they wind up the fence is in violation and then the new owner comes in front of us and they are like “hey, I just bought the house and the fence was already there”. They are looking at the expense of having to have the fence moved or the barn moved because it was put up in violation. If we vote this barn in 2’ off the property line and that is the wording “2’ off the property line”, he goes moves or sells the property and then the neighbor finds out that it is only a foot or it is in the neighbor’s yard, then they are going to be back here in front of us again wanting us to have a variance for a 1’ off the property line, or to not move the shed. We don’t know where the property line is.

Mr. Reichert: I too think that the fence is on your neighbor’s property, not on the line inside his property. He may have it 2’ from the property line, which is his right to do that, he doesn’t have to put it on the property line. He could move it 5’ from the property line and put up a fence, not knowing exactly where that is, I don’t think I can support 2’ from the fence, at all. My suggestion last time was to move it 5’ from there.

Mrs. Huber polled the Board and with a 6-no and 1-aye vote the request for a variance was denied.

D. 207 DISTON – TO PLACE THE STRUCTURAL SUPPORTS ON THE OUTSIDE OF FENCE ENCLOSURE
Chairman Okum: The variance is requested form Section 153.482(C)(4) so as to allow the structural supports of a fence to be located on the outside of a fence enclosure.
Would a representative please step forward.

Mrs. Popplewell: I want to replace an existing privacy fence on the rear and east side of the property and extend the fence on the east side to the corner of my yard; and I gave you a letter from my next door neighbor, Gene Berger, I didn’t have it notarized. I also brought a letter from the neighbor on the other side of me and it is notarized.
My daughter, Sheri D. Harvey, who is here tonight, is the owner of the property.

Chairman Okum: Letters have been submitted from neighbors at 211 Diston and 11705 Lawnview.

Mr. Campion read the Staff report: The applicant is requesting to replace an existing privacy fence on the rear and east side of the property and extend the fence on the east side. Section 153.482(C)(4) requires that the fence supports be erected on the inside of the area to be enclosed. The owner has not indicated any difficulty that makes it impractical to install the fence in conformance with the code. The owner has indicated that the installation will occur with the permission of the neighbors. Section 153.482 (C)(4) provides an alternative to the required post location by obtaining a notarized statement from the adjacent property owners attesting to the approval of the support location. If the applicant is proposing to obtain such statements, then a variance is not necessary. The applicant submitted such a statement from her neighbor to the east, but it is not notarized. This evening the applicant submitted a statement from the property on the south-(notarized) and east-(signed) side of 207 Diston Lane.

Chairman Okum opened the floor to the audience and no one stepped forward.

Mrs. Huber: I move to grant a variance from Section 153.482(C)(4) so as to allow the structural supports of a fence to be located on the outside of the fence enclosure at 207 Diston

Mr. Danbury: I second the motion.

Mr. Diehl: Are you taking the whole fence down and putting up a new fence?

Mrs. Popplewell: Yes

Mr. Diehl: Are you taking the poles down, too?

Mrs. Popplewell: I am not sure they are in concrete.

Mr. Diehl: Is there any reason why you can’t put the fence on the other side and have the poles facing in?

Mrs. Popplewell: There isn’t room. It is too close to the chain-link fence.

Chairman Okum: You are adding about 40’ of new 8’ sheets of new fence. So, you are going to utilize the old post. So would you say that about 1/3 of the fence will be new?
And you indicated that there would be a hardship of fitting a finished face on the fence because there is a chain-link fence prohibiting that.

Mrs. Popplewell: I hate to take the chain-link fence down because it is new.
I will have the wood fence stained before I put it up.

Mrs. Huber polled the Board and with a 6-aye and 1-no vote the request for a variance was granted.
       
E. 881 E. CRESCENTVILLE – CONSTRUCTION OF A NEW RESIDENCE 24’6” FROM THE STREET RIGHT OF WAY LINE
Chairman Okum: Approval of a variance to allow the owner to construct a new residence 24’6” from the street right of way line, said variance is from Section 153.100(A) “Single household dwellings…shall have a minimum front yard setback of 30 feet.”

Scott Madden 8920 Montgomery Road, Cincinnati stepped forward to represent the owner. I am a friend of the Finlaw’s and the house burned down and we would like to rebuild and bump it closer, maybe 6’ to the street to get a bigger garage.

Chairman Okum: Are you going to build on the existing slab?

Scott Madden: Yes, sir.

Mr. Campion read the Staff report: The applicant is requesting to construct a new residence with a 24’-6” front yard setback from the right of way on E. Crescentville. Section 153.100 (A) requires a minimum front yard setback of 30 feet. The right of way line is 27.5 feet from the curb on Crescentville. This is 15 feet larger than most subdivision streets. There was a residence on the property previously which was demolished after a fire. The previous structure was set back 30.5 feet in compliance with the Zoning Code. The applicant is proposing to construct the garage 6 feet further forward. The applicant has not indicated that there are any unusual characteristics about the property which make it impractical to comply with the code. There is sufficient room to expand to the rear of the lot. The rear yard setback requirement is 35 feet. The prior residence appears to be approximately 47 feet from the rear lot line.

Scott Madden: It will look nicer than a square box.

Chairman Okum opened the floor to the audience and no one stepped forward.

Mr. Reichert: I make a motion from Section 153.100 (A) so that the resident at 881 E. Crescentville Road may construct a resident with a 24’6” front yard setback from the right of way.

Mr. Emerson: I second the motion
Are you using the same slab, the same type home?

Scott Madden: Yes.

Mr. Chairman: If you bring the garage out further, you have a unique situation in the fact that the public right of way is really in the middle of your front yard because Crescentville Road was never expanded to the width that it was potentially going to.

Mr. Danbury: The fact that there aren’t any two car garage units unless you go down to Pilgrim, so this would be unique. I think it will be a good addition to the community.

Mrs. Huber polled the Board and with a unanimous 7 aye vote the request for the variance was granted.

XI. DISCUSSION

There were no items of discussion.

XII. ADJOURNMENT

Mrs. Huber moved to adjourn and the Board of Zoning adjourned at 9:06 p.m.


Respectfully submitted,


________________________,2008 ___________________________________
        Vice –Chairman Mr. Weidlich



________________________,2008 ___________________________________
            Secretary Jane Huber