21 MAY 2002

7:00 P.M.


  2. The meeting was called to order at 7:02 p.m. by Chairman David Okum.

  4. Members Present: Robert Apke, Fred Borden, Councilwoman

    Marjorie Pollitt, Councilman Jim Squires,

    Robert Weidlich, David Okum and Jane Huber

    Others Present: Bill McErlane, Building Official

    Christy Holmes, Legal Counsel

  7. Mrs. Huber said on Page 2 it was daughter and not daughter in law, and

    The lady has fibromyalgia. With those corrections, Mr. Borden moved to adopt and Mr. Squires seconded the motion, and all voted aye.

    1. Planning Commission Meeting Minutes Ė 9 April 2002
    2. Zoning Bulletin Ė April 10, 2002
    3. Zoning Bulletin Ė April 25, 2002
    4. The Critical Role of Local Governments in Community COMPASS
    1. Report on Council Activities Ė no report
    2. Report on Planning Commission

Mr. Okum reported that it appeared that the owner of Globe Furniture Galleries had made a pretty serious attempt at bringing forward all the information that was required under the PUD. Unfortunately the architect/engineer working for him didnít have it all together and there were a lot of things outstanding. The owner asked that it be tabled for the items could be brought together at the next meeting.

We also reviewed the Springdale Comprehensive Land Use Plan and referred it to Council for their consideration. Also David Whitaker, Secretary of Planning is moving out of Springdale, and has submitted his letter of resignation. The June 11th meeting will be his last, and Council will need to appoint someone to that position.


    1. Lykins Oil request for a clarification of approval of the band around the canopy of the Exxon Station at 11444 Springfield Pike




21 MAY 2002



Tom Tepe of Keating Muething and Klekamp came forward representing Lykins Oil, and introduced Tim Martz of Lykins Oil.

We have been before this board and Planning, and would like to get a clarification. There is one issue that is unresolved, whether or not the red band that was approved by this board can be backlit. We submit to you for a number of reasons that it can be. We base this on what was approved by this board as well as photos that show that it makes sense. Without the backlighting, it doesnít look right; it looks dirty. We didnít ask for anything more than what was existing. All we did was change the color of the band.

I have reviewed in detail this boardís minutes from the February 19, 2002 appeal and have concluded that Lykins is permitted to have this red band backlit. When we first appeared before this board, it was the result of Planing Commissionís failure to act on our request within the required two meeting provision. It was thus constituted a denial, and we took an appeal to try to preserve whatever rights that we had which resulted in a hearing before this board.

Under your code, and reflected in the February 19th minutes, as instructed and confirmed by your legal counsel, you had a couple of options. You could have confirmed what the Planning Commission did. You could have reversed what the Planning Commission did, or you could have reversed with conditions. Your third option was what you engaged in and what you approved for us.

Throughout the entire hearing on February 19th, there were only three issues that were discussed. They were the red band, whether it would be eight inches or 24 inches. This board decided that it should be eight and we agreed with that. The second issue was the canopy over the gas pumps and the canopy lights, the ones that drop down. There was a concern with their spilling out too far, and the representatives here presented some fancy light fixtures that diminished the spillage and were directed down so people could see exactly what they were doing at the gas pump.

Nowhere in the February 19, 2002 minutes can I find any reference or any statement that says that the red band was not to be backlit. In fact, a review of the minutes reflects that specifically when Mr. Borden asked if the canopy was to be illuminated, it was specifically stated that it would be. I believe it was also stated that what is existing is backlit, and all that is being done is that the color is changing.

There are other references on page 18, page 25, and page 26 of the minutes which indicate that the issue was asked and answered, and you have to assume that this board knew that this issue was out there. When everything was discussed, there were two motions made on the advice of your counsel. One was with regard to Option 1, in which you upheld the Planning Commissionís denial. The second motion was made to overturn the Planning Commissionís denial of Option 2, or the eight inch red band, and you imposed conditions.


21 MAY 2002



Mr. Tepe stated the conditions are located on page 26 and referenced on page 25. There were four conditions imposed by motion which was carried by all members that were present. Those conditions were that you reversed the Planning Commissionís denial. You imposed the condition that it only be an eight inch red band. You allowed the existing red canopy over the doorway. The entire building was to be painted gray (it has been done), and the lighting was to be changed out to a non-glare to prevent any issues with the public right of way. All of those conditions have been complied.

There were no conditions limiting the backlighting of the red band. There may have been a statement by a representative at a Planning Commission hearing when we were trying to decide which plan to go with, that said that it wasnít going to be illuminated. However, that changed, and when we took the appeal you had the ability to impose conditions. I know for a fact that you were aware of this issue because it was mentioned on several occasions. All I ask is for a clarification from this board to allow what we think we are already allowed to do Ė to go ahead and backlight this canopy.

It is not a novel idea in Springdale. He showed a photograph of the White Castle Restaurant on Springfield Pike. I understand what the City and this board attempts to do to make sure that you donít have something that isnít pleasing to the eye and isnít what this community should expect, a top quality property and ongoing concern.

I also would like to present to you a photo of the Exxon station as it exists currently. I would ask that you look at the side canopy, which is backlit. The one facing you, the darker one, is not backlit. Iím not an architect, but I would say that it looks a lot better; it looks cleaner. It is not a bright light that would shine in anyoneís eyes. It just brings out the white and red accent color as well as the nationally trademarked Exxon logo.

Mr. McErlane said I hesitate to go through the entire history on this, but I donít think things were as clear cut as the applicant indicates, in terms of what was going to be lit and what wasnít going to be lit.

This is primarily because Option 2 was never presented by the applicant in any kind of picture or drawing form at the Board of Zoning Appeals meeting. We actually furnished a copy of what Option 2 was, which was only one drawing .that was presented to Planning Commission the second time around, and at Planning Commission meeting, it was specifically indicated that it wouldnít be lit.

There was other discussion that occurred at the Board of Zoning Appeals meeting, that would lead you to believe that the red band was a modification of this type of design, which is not what has been installed. If you look at this type of design, it has a red face and clearplex sheet at the bottom of the red face that allows light to glow down out of that sign box.




21 MAY 2002



Mr. McErlane showed the drawing of the crossection that was submitted on the screen, the top portion of the sign, on the left-hand side of that sign is the red face. At the bottom of that red face there is a clearplex panel that allows the light to shine down on a white surface that is not lit. So the white surface was never intended to be lit in this particular design. This is what was submitted to Planning Commission at the second meeting, with no other details to it. As part of our staff comments, we asked if the band were going to be lit. At the beginning of the second Planning Commission meeting, the applicant specifically said that it was not. At Planning Commission, we knew that Option 1 was lit and Option 2 was not lit.

In the Board of Zoning Appeals meeting, on page 17 of the minutes, the second last paragraph, Mr. Trauth indicated that in both options, the red band is lit, but he only specifically said that the red band was lit.

On the following page, there is some discussion about changing out panels. What we have today is both the red and white are backlit. What we need to do is hopefully have this board clarify what they actually approved, or what they intended to approve.

Addressing the applicant, Mr. Okum asked if he understood this report. I heard Mr. McErlane state a few moments ago that the red band is to be backlit and I heard you state in your presentation that your request was for the red band to be backlit.

Mr. Marx said I would like to clarify this. If you can go back to the first picture originally submitted, once we could not do the 24-inch band, it was an impossible task to make that same thing with an eight-inch band. I wold like to read something from page 18 in the middle of the page. "Mr. Thacker said we are talking about reducing the glare from underneath the canopy. Mr. Borden asked about the canopy itself and Mr. Thacker answered, the canopy that is there right now is backlit. We are going to put the same thing up there, but we are going to change the color. Mr. Trauth added that the canopy you see there now, is already backlit. It is just a replacement of one brand for another, Shell to Exxon."

Mr. Marx said it seemed completely clear to me that the appeals board members knew that we were just going to replace out the facing itself. The facing itself is made out of some kind of a canvas material. Mr. Thacker is in Florida and couldnít be here, but the basic point of it is to take the edge off it. If someone is coming down the road, it is to make it look clean at night as they are coming in. It doesnít produce a tremendous amount of light. I think if you look at the picture, you will see what I am talking about. We have not added any lights to that canopy that were not already there. We also agreed to cut down on the glare from the lights on the bottom.






21 MAY 2002



Mr. Squires said I am looking at the picture that was presented to us, and I am wondering how we got to this point. I see part of that fascia is not lit, and Mr. McErlane said it was never intended to be lit. Mr. Marx responded that is lit on three sides. It was always lit on three sides. It is not lit facing the building. It would have been my preference to light all four sides, but we agreed to leave the lighting as it was. Initially when that was put up as a shell, it had three sides backlit and one side not backlit.

Mr. Squires wondered what the applicant was requesting and Mr. Marx responded we want you to confirm the fact that you understood that we were not going to take down any of the existing back lighting that was there. I thought that was clear. That is it. We are not asking for any additional lighting at all. In fact as you know, we agreed to cut back on using those other lights.

Mr. Squires said you say take down any of the additional backlighting. What is the backlighting in this picture? Mr. Marx answered if you look at the right side of the picture that says Exxon, that is what is called backlit. If you are looking at the long side, that is not lit. Backlighting is just lights that are behind the canopy that come through the canvas type material. They are fluorescent type lights. I believe Mr. McErlane would have the wattage on those if you want it. It is the same as what was there. Jim Thacker is in Florida but he told me he had submitted the wattage of those lights at a previous meeting. They are the same lights. We just took the Shell out and put the Exxon up.

Mr. Squires said you are asking us to clarify that this is what was approved. Mr. Marx responded when we left the meeting, what was decided that we would go ahead and get the permit since we had the variance. Our man filed for the permit, and I was shocked when it was denied because I knew what was agreed to at that meeting. So we then had to submit for an unlighted canopy. Our attorney worked something out to light the thing so pictures could be taken. I also found out Saturday when I was taking the pictures that there was one switch.

Ms. Holmes said to clarify for the board what has happened since we were here, I want to begin by saying I have no opinion for you whatsoever as to what you approved. We are here asking you to please clarify what you approved. Did you feel that you were approving something lit or unlit? This came to my attention after the board meeting when a permit request was made and denied because it had backlighting. The understanding of Mr. McErlane was that you had approved something that was not backlit. After that time I had some conversations with the applicantís attorney and we decided that we would come back to you for clarification. In the meantime, we would allow them to apply for and receive a permit for an unlit canopy until we got clarification. The canopy would have the ability to be lit, but they agreed that they would not light it until we came back here for clarification, except for the purpose of taking pictures.




21 MAY 2002



Ms. Holmes added we are just here for you to tell us if you thought you were approving something that was lit, or not. I know that you all werenít privy to everything that happened at Planning Commission and weíre not asking you to be privy to that. We are only asking you to review the minutes and your recollection and tell us whether you thought you were approving something that was backlit.

Mr. McErlane added I still donít think it was clear cut as to what was being requested. If you turn back a page in the minutes, apparently Mr. Thacker didnít inform Mr. Trauth as to what the sign they were requesting was, because he specifically says "The red band is back lit". When Mr. Borden asked if the Exxon name was listed also, Mr. Trauth answered "It is not backlit, but it is actually letters on the sign," which is not what you have. In the next paragraph, Mr. Thacker said "they protrude out approximately four inches and they are flush with the red band" which is what was shown on the original plan. I donít think anybody knew exactly what you were planning to do.

Mr. Marx responded at Lykins Oil we have gone to the attorneys for legal advice and help, and they have done an excellent job. Occasionally when you get into these canopy and technical questions, things like that happen. But when we actually talked to Mr. Borden and the other members of the board, we made it clear what we were going to do. We could not take that 24-inch red band canopy and It isnít a situation where you can call a company up to make the 24-inch red band to an eight-inch. We didnít have any options on that in terms of how we were going to make it. Once we could not use the standard Exxon canopy, we were pretty much locked into a situation where we had to go with the canvas variety, the canopy. I thought and still do believe that the board understood that we were going to continue to use the existing backlighting that was there.

Mr. Borden said it was my understanding that it would be backlit and it would be a flat panel and the red band would be lit along with the Exxon letters and the white. They were just swapping out the panels.

Mr. Squires said I thought it was going to be backlit. I am referring to page 25 where it says "Mr. Okum said these conditions are: an eight inch red band, allowing the existing red canopy over the doorway, that the entire building is to be painted out gray, and that the lighting shall be changed out to non-glare to prevent issues for the public right of way. Mr. Borden said I will make that motion and affirm what you said, and Mr. Apke seconded it." When I supported the motion, I thought it would be backlit.

Mr. Weidlich commented I have to agree with the applicant that it was my interpretation also, that it would be backlit like the previous canopy was.





21 MAY 2002



Mr. Okum said I didnít even realize that the other canopy was backlit because of the gray finish, and it had a silver gray look to it pretty much all of the time.

I did understand clearly that the red band was going to be backlit, and you said it this evening. You also indicated, and there was quite a bit of discussion regarding the Exxon letters being individual letters. At one point I recall (in either Planning or this board) that the Exxon sign was an individual unit that came out even with that face and that those were reverse lit with an aura of white around those that went against the flat panel behind it. What is up there is considerably different from that, and I guess that is by virtue of necessity.

Mr. Okum asked if there were any reason why the white could not have been opaqued out and the red reversed? Mr. Marx answered I donít know how that is possible in the construction. Mr. Okum commented I understand that we had a hard time determining that this was a building element and not a sign. Mr. Marx responded I donít know that you can make eight inches of canvas and mold that to 24 inches. Mr. Okum answered I donít think that would be the case. I think you have opaque areas on all signs. There are reverse lit signs all over the place. I know The Great Indoor sign has a stripe down the center that is a blue that is opaqued out. That is one huge stretch piece of canvas that covers that 24í x 24í sign.

I honestly believe that I felt we were talking about an illuminated red stripe of eight inches versus 24 inches. Quite frankly I didnít even consider the white. I have seen it the past week or so and the illumination for photographic purposes.

Mr. Marx commented I found out Saturday night that there is one switch for all controls.

Mrs. Pollitt said I also thought it was backlit, and I thought that a lot of the discussion on the non-glare lights was coming from underneath the canopy.

Mr. Apke said in reviewing the testimony and trying to remember what went on, I agree with Chairman Okum. I thought that only the red would be illuminated or backlit, and that the white was not going to be, although I do see further testimony where he does talk about changing out the entire fascia. I know there is a way that you can put a divider in there and just have the red part lit, and that is kind of where I thought we were going with this. I donít have an objection to what you are presenting, but that was my understanding at the time.

Mrs. Huber said I understood it as it being totally backlit.

Mr. Okum said without going to a vote, I think we are faced with a situation where we currently have five out of seven members who have indicated that an illuminated panel on the sign was their understanding.


21 MAY 2002



Mr. Okum said so based on that, our interpretation would go with the majority. Do we need to vote? Mr. McErlane indicated that they did. Ms. Holmes added that the motion should be to clarify that the board intended that three sides of the canopy would be backlit.

Mr. Squires so moved and Mr. Borden seconded the motion. All voted aye.

    1. Edward Shaffer, 1080 Castro Lane (corner lot) requests variance to allow a privacy fence to extend into his front yard. Said variance is requested from Section 153.482(A)(1) "No fence..shall project past the front building lineÖ"

Mr. Shaffer reported that at the beginning of February, I called the Building Department to make sure I didnít need a permit. The lady that answered the phone referred me to a gentleman. I told him exactly where lived and that I was on a corner lot. He said I didnít need a permit, not to go over six foot in height, stay 20 feet away from the street, and donít go past the front of your house.

I got to the point where there were probably four panels left to put up when Gordon King stopped by. He asked me if I had called anybody on this, and I told him that I had called in the beginning of February and told him exactly what I was told. He said that he would check up on this. I proceeded with the project. This was maybe a month after I started, maybe mid-March. About three weeks later, I have one panel left to put up and I see a note on my door stating that I need to get a variance because I couldnít put the fence into the front yard. I called Gordon right away, and told him that I wasnít putting the fence in the front of my house, and he said with you being on the corner lot, if you go to the left side of the house, that is going into your front yard. I didnít know that, because that is my side yard and I said whoever I talked to told me to stay 20 feet away from the street and I am 25 feet. Gordon said that it was considered my front yard and I would need a variance. Even though I called and they told me what to do and I did exactly what they told me, he said nobody owns up to telling me. I didnít get a name and I screwed up.

It doesnít go to the sidewalk. It doesnít block anybodyís view when they turn. I had a rotted old fence up and tore it down trying to make the place look better. The old fence was 10 feet off my house in this direction, and I just added an additional six feet to it. It looks 100% better than what it did. As far as the phone call I made in the first part of February, they told me exactly what to do and that is what I did, but evidently I was told wrong. I have had a few of the neighbors tell me how good it looks, and then they got the letter stating that they could come tonight to voice their opinion, and one guy said "I donít know why they are messing with you; it looks 100% better than what it did, especially for somebody that has never done it before." I have lived in Springdale for 27 years and I know that before you do anything you had better call the Building Department.


21 MAY 2002



Mr. McErlane said the applicant is requesting a variance from Section 153.482(A)(1) to allow a privacy fence in the front yard. According to the definitions for front yard in the Zoning Code, any yard that abuts the street is considered a front yard for application of the code. The applicant has constructed a six-foot privacy fence 13 feet from the public right of way and it projects 16 feet into the front yard of the house toward the side street.

The owner was contacted by Gordon King about the violation of the Zoning Code when the fence was fairly well underway. The side projecting toward the street was already up and maybe the end wall was not up yet. Mr. King had indicated that at that time the applicant informed him that he did contact the Building Department, and someone had given him some information, Gordon said 16 feet from the street. Mr. King indicated that he didnít think it sounded correct and suggested that he not do any more work until he heard back from him. At a later date, Mr. King stopped by and the fence was almost complete. Since no one was home, he left a door hanger indicating that a variance would be required and the homeowner contacted him and talked to him about that.

With respect to the fence that was there previously, there was a variance granted in 1983 to allow a split rail fence to project in that same front yard, nine and Ĺ feet. This variance request would ask for another five and Ĺ feet towards the side street line, as well as it being a privacy fence instead of a split rail.

Mr. Shaffer said when Gordon came by the first time, he didnít tell me to stop working on it. He just said Iíll check into it. I hadnít heard from him for three weeks or whatever it was, and then he left a letter. He said that it takes a while, which I understand, but I am just saying that he didnít tell me to stop working on it. Plus, I was 100% confident because I had called the Building Department and they told me to stay 20 feet away from the street which is what I did. I knew because I had talked to them; I didnít think anybody would tell me the wrong information. I thought Gordon would check on it and find that I was right.

Mr. Squires if he had gotten a permit for the fence and Mr. Shaffer answered that he did not need one. I was just told to keep it under six foot. Mr. McErlane reported that they have not been required to have a permit for a privacy fence since 1997. If it exceeds six feet, it would require a variance.

Mr. Okum said facing the house, is the fence to the right of the home? Mr. Shaffer answered no, it is to the left; on the right, there is a house. Mr. Okum said so there is 28 feet from your home to that home. Mr. Shaffer answered oh yeah; I didnít measure it, but I didnít get any further than where the last fence was. The only place I added any fence was right there, six feet out this way.

Mr. Squires said for clarification, on this drawing, we are looking at the left-hand side arenít we? Mr. Shaffer confirmed this. Mr. Squires said I would like to point out that this house on Castro is one of the older homes in Springdale. At the time it was built, we had 30-foot setbacks.


21 MAY 2002



Mr. Squires added that the previous owner would have had to have a variance to go out that 16 feet. Mr. Shaffer said he had a split rail fence that came 10 feet off the house, and I went six feet more. Mr. Squires said so basically you are asking for a variance for six feet, not 16 feet.

Mr. Shaffer added that it doesnít block anybodyís view when they turn. There are three reasons I did it. One is because the fence that was there was rotted and falling apart. It looked like garbage. I have two little kids and I donít have a very deep back yard. I figured that extending the fence out as far as I could would give them some more yard to play in. Also, I have a Great Dane, and that little fence wouldnít hold her in.

Mrs. Pollitt said I drove by and looked at your property and I didnít like what I saw; I saw a fort. I didnít like the part on the right hand side that comes out from the edge of the house and going east, but that is not an issue here. I understand that you are allowed to have that part. It seems like it is an awful lot of wood around there. I donít care for it at all. I understand the reasons that you have it and I understand with a large dog that you have a definite liability there and you have to make sure that the neighborhood children stay safe from the dog. I appreciate that very much because dog bites are on the increase. Aesthetically it comes way too far out in the yard. When I looked at it, in my mind I saw a fort.

Mr. Squires said that fence is six feet high? Mr. Shaffer answered that it was, six foot by eight-foot wide sheets. I got it from Loweís; I guess it is probably standard.

Mr. Okum said I have to agree with Mrs. Pollitt. I think the reason that you have side yard setbacks and front yard setbacks is to have some straight lines across the properties. Maybe this next door neighbor doesnít necessarily complain, but if they look out that window down the street, they see a fence and everything that goes on behind it.

I am looking at this drawing, and for a back yard area Ė just this 16í x 25í is 400 s.f., which is about 25% the size of your home. Mr. Shaffer commented I have a big back porch, probably 8í x 24í. So in terms of the width this way, without that big back porch, from here to the windows is about all deep it is. Mr. Okum responded but you have 28í x 56í on the right side, the east side.

Mr. Shaffer answered the biggest thing is that I called and this is what they told me I could do. I have lived in Springdale my whole life, and my dad has too, and I know that I need to call and get permission before I do anything.

Mr. Okum responded I understand, and you have to understand that there was a variance granted for a 9í-6" invasion into that front yard setback that was approved for a split rail fence. That Board of Zoning Appeals made it specific that it was to be a split rail fence. I think they were sensitive to light and air and space.



21 MAY 2002



Mr. Okum said that this fence looks absolutely great today. I have seen these fences for the past 20 years that they have been building them. Frankly, it wonít look that nice in five years, and itís not going to look that nice in three years. It will continue to age because it is not a material that is conducive to long term appearance. It has a great look when it is first put up, but after time it starts to age. Youíll either have to stain it or deal with it in a different finish, but it will get darker. Usually it gets very dark along the bottom edge. I think it is an invasion into that space on your neighbor, and it is overwhelming from that view.

Mrs. Pollitt was very correct; a 28í x 56í area on the right side is your area, and the code doesnít restrict you from using that. I donít see in any way that there is a hardship that this 400 s.f. is needed when you have 80í x 25í plus the area on the right side of your home for recreational space.

Iím sorry that you took down a fence and built it closer to the street than you were approved. Mr. Shaffer said thatís what they told me to do, though. I was approved to do that until Gordon came by and told me that all of a sudden there was a question on it. That is the whole thing, I called, and if I had written the guyís name down, Iíd be able to get him in here.

Mr. Okum responded I understand, but at this point I believe it is an invasion into that front yard and based on that, I cannot support leaving it on that side.

Mr. Shaffer said I drove around the neighborhood and I left the photos sat home. There are a ton of fences, some of them go all the way to the sidewalk. Maybe they have had variances on them because I was telling Mr. McErlane about them and he said that they may have had variances or they may have been so old they were before the regulation. I understand that, but there are a ton of fences and some that go all the way to the sidewalk. Just around the corner from me there is one, and actually there are three on Castro between Tivoli and Chesterdale.

Mr. Okum said I Iived in Heritage Hill for 17 years so I am very familiar with the neighborhood. Indeed there are a number of chain link fences that do that. Mr. Shaffer added that there are actually a couple of privacy fences that go past the house too.

Mr. Okum said I think this brings the issue to light, that possibly a permit for fencing should be in our code so that this situation would be less likely to occur.

I canít correct all the ills and oversights, but in this case, I think it would be inappropriate to do that to this neighbor or any future neighbor who would live in that home. There are other people who will be living in that area that would be impacted by this, and I couldnít support it.




21 MAY 2002



Mr. Weidlich said I stopped by your property yesterday and was looking at your fence. I had to make a couple of trips a round there because all of us walk out our front door and look up and down the street and have an unobstructed view in both directions. If I was your neighbor behind you on Tivoli, they walk out in their front yard and all they see is this big wall of fencing,. They donít have the pleasure of looking down and seeing Castro Lane; all they would see would be your fence.

Mr. Shaffer responded I talked to them if that matters; I called them before I did it.

Mr. Weidlich said I understand, and you did a nice job on putting it up, but I canít support that fence being out in the side yard like that.

Mr. Apke asked Mr. McErlane said if this variance was to be denied, and the applicant wanted to put his fence where the former fence was with a variance, would it have to be a split rail fence or could it be a privacy fence?

Mr. McErlane responded that the variance was specific to the type of fence that was applied for, a split rail. Certainly the Board of Zoning Appeals could consider a privacy fence at the same location as the previous variance.

Mr. Borden said I canít disagree with the previous comments. I think the fence is overwhelming for that area; it just looks big. I donít know if I could support putting a privacy fence that big where the existing variance is.

Mr. Okum said I did not open the public hearing for comments from the audience because there was no one here to comment.

Mr. Okum said we have a situation where there was quite a bit of effort and time for this gentleman had to go into this. I personally have taken those fences up and down, and it is a lot of work. There will be a loss of posts. The sections of fence usually can be relocated and reused. If the motion is to deny the variance, I would encourage the board to give him ample time to make that adjustment to his property. Addressing Mr. McErlane, Mr. Okum asked what a typical time period would be for this. Mr. McErlane answered typically it would be 30days, but if the board feels it is necessary to extend that, itís up to them. Mr. Okum said I would encourage the board to give him extra time in order to make the adjustment.

Mrs. Pollitt wondered if he could take this fence back to where the original split rail fence was located. Mr. Shaffer said yes, but I would like to make a comment. How are five and Ĺ feet going to make a difference if nobody likes it? If it is going to be granted, I would ask to please grant it so I donít have to take this down. It is extremely hard doing this by yourself. I am a single parent raising two kids by myself, and I put a lot of time in it that I really donít have. If you were thinking of doing something like that, I would ask for the extra 5-Ĺ feet.


21 MAY 2002



Mrs. Pollitt said I appreciate the work you have put into it. I am a handy woman around the house myself, and I know any project you start is always more than you think it is going to be. I am truly sorry you were given incorrect information if that is the case. I too thought, I was told that we had to have a permit for a backyard fence and I thought that was unusual because we had put one up before and never had to have one.

Mr. Shaffer said my dad lives on Tivoli and the first thing he told me was to call the Building Department and make sure that you donít need a permit. Mrs. Pollitt said I had a discussion with someone about that at the last Board of Zoning Appeals meeting, and I was told that you did have to have one. I am really sorry that information was relayed incorrectly. Again, I think I have as much of a problem with the front part on the left side of your house as I do on the right side. I know that side is not an issue, but it is just because of the appearance of it from the street.

Mr. Shaffer asked if she had seen the old fence and Mrs. Pollitt indicated that she had not. Mr. Shaffer said it was rotted and falling down. The chicken wire that was on it was coming off, and nobody ever said a thing to me about it. I drive around and see houses. There is a house on Benadir with grass about this high. There are a lot of houses in the neighborhood that really look bad, and I spend $1,000 to try to make it look better and Gordon stops.

Mr. Okum said we understand. The issue of the variance that was on the property is a little difficult to understand, because it was probably granted before you purchased the property. Mr. Shaffer commented I bought it three or four years ago. Mr. Okum wondered if there was any notice of information provided property owners; is the variance recorded? Mr. McErlane answered no, only what might be in the previous property ownerís records that they might give the new owner. Mr. Okum commented that puts the property owner at somewhat of a disadvantage. Mr. Borden added he wouldnít have known that there was a variance. It is not a part of the home buying record.

Mr. Shaffer commented I figured it was my side yard.

Addressing the applicant, Mr. Squires said one of the things that this board is struggling with is that a variance goes with your property. It is true that you have neighbors right now who are not objecting to that, but in the future you might have neighbors who object to that whether you live there or not. We struggle with these types of variances. I donít want you to take this personally; it is difficult for us.

Mr. Okum said we are ready for a motion, and I would encourage at least some direction in regards to a time line for the applicant if it is a motion to deny.

Mr. Borden moved to deny the request to allow a privacy fence to extend into the front yard at 1080 Castro Lane and to allow the applicant 45 days to remove the fence. Mr. Okum seconded the motion.


21 MAY 2002



Mr. Squires said I think we will have to amend the motion a little bit, because he already has a variance to allow him 9 Ĺ feet there. Mr. Borden responded I am just making a motion to deny the privacy fence to extend into the front yard. That is my motion.

Mr. Okum said for clarity, the existing variance will remain in force, so the split rail fence that was approved to extend 9í-6" is still in force. This is not an amendment or cancellation of the existing variance. He could put a split rail fence 9í-6" into the yard.

Mr. Borden added we are just denying this request for a privacy fence into the front yard. Mr. Squires said does that mean that he will have to take down the entire fence? Mr. Borden answered just that section.

Mr. Shaffer asked if he could put a split rail up there, and Mr. Okum said you could put a split rail up because you have a variance for that. Mr. Bordenís motion would remove your fence from the front yard, so it would have to go even with the edge of the house to your rear lot line. Mr. Shaffer said so I can come out with the privacy fence, and then put a split rail fence this way 9-Ĺ foot out? Mr. Okum said you couldnít put a privacy fence into your front yard. Mr. Shaffer said so I have to stop it right here, put a split rail here and split rail there. Mr. Borden said you donít need a split rail. Mr. Shaffer said so the variance is for 9 Ĺ feet out for a split rail fence and not my privacy fence. Mr. Okum confirmed this.

Mr. Shaffer continued so I could stop my privacy fence at the house and add a split rail? Mr. Okum said you could. You have a variance on your property currently for a 9í-6" projection into the front yard setback for a split rail fence. Mr. Shaffer said and that would look better than what I have now? Mr. Okum responded it is not a matter of looking better; it is a mater of what has been approved by the Board of Zoning Appeals of the City of Springdale. That is an approved variance. If you want to carry your privacy fence straight back from the corner of your home to the rear lot line, straight across that back, that is permittable according to the existing zoning, and you would not need a variance for that.

Mr. Shaffer commented thereís a lot of money in that, with those panels. Mr. Okum said I disagree with that. Mr. Shaffer responded Iím going to lose these and these but these can be reused. Mr. Okum commented you are going to lose four panels. Mr. Shaffer said about $100.

Mrs. Pollitt said I would like to ask the board to consider giving him more time than 45 days to remove the fence, if he is a single parent with two children. I would request that we give him 60 days or 90 days to complete this project. I would like to move to amend the motion to have the work completed by August 21st. Mr. Apke seconded the amended motion. By voice vote, all voted aye.







21 MAY 2002



Mr. Squires said for clarification, would someone read the amended motion so we know exactly what we are voting on? Mrs. Webb, Recording Secretary read the motion: "Mr. Borden moved to deny the request for the privacy fence to be in the front yard and to allow Mr. Shaffer until August 21, 2002 to remove the fence and Mr. Okum seconded the motion.

Mr. Squires asked if the applicant understood what he is allowed to do. Mr. Shaffer answered yes. Mr. Squires added that would be to extend your privacy fence from the edge of your house to the rear property line with no variance. And you have until August 21st. Is that a reasonable time for you? Mr. Shaffer answered yes, that is great.

On the amended motion to deny, all voted aye, and the variance request was denied with seven votes. Mr. Okum reported that the request for variance was denied with the condition to allow the applicant until August 21st to remove the fence that projects into the front yard.

Mr. Shaffer asked what happens if I decide not to do this. What do I need to do, because itís a lot of work.

Mr. Okum responded you have the right to appeal the decision of this board to the Court of Commons Pleas.

  2. Mr. Borden asked if anyone noticed that the sign went up at the Northtown Plaza? I thought we denied that. Mr. McErlane reported that the board denied an additional square footage over and above what they were permitted to have, and they downsized the sign.

    Mrs. Pollitt said speaking of signs, when Ford came in and there was such discussion on the new oval signage and how they wanted it to be seen from Kemper Road closer to the S.R. 747 intersection. They have placed their sign on an angle so that if you are coming west, you canít see it. We went through two hours of discussion that night and they angled the sign so what difference did it make after all? Mr. McErlane said the existing sign was angled. They just used the same steel and mounted it the same way on the existing pole.

    Addressing Mr. McErlane, Mr. Squires asked if the fencing requirements we have require a line survey. Mr. McErlane responded that they do not. Mr. Squires asked if the Building Department had considered anything in that nature? Mr. McErlane responded that when people ask about fences, we advise them that it is highly recommended that they get a survey done, unless they know fairly surely where their property line is so they are not placing their fence on someone elseís property. Most people donít want to spend the several hundred dollars it takes to do that. Mr. Squires commented it is around $250.



    21 MAY 2002


  3. DISCUSSION Ė continued
  4. Mr. Squires asked Mr. McErlane if it were advisable from his standpoint that we consider asking for permits for fences to avoid things like this.

    Mr. McErlane responded that there are other municipalities that issue zoning permit because there isnít much to inspect from a building code standpoint. The zoning permit verifies that it is in its proper place. Prior to 1997, we only issued permits for fences over four feet high, so you still had fences under four feet high that did not have permits and we still struggled with this type of problem.

    With respect to who he might have talked to, when he brought it up, we looked through the Zoning Code trying to figure out where 20 feet or previously someone had mentioned 16 feet came from. There is no section in that area of the Zoning Code that even comes close to 16 or 20 feet. We only did that because maybe somebody misconstrued something, but we couldnít even figure out where that would have come from.

    Mr. Squires commented that communication certainly can get lost in phone calls. You might be considering the right side of the house when he is talking about the left. That can happen. Mrs. Huber added because he really didnít think it was his front yard. Mr. Squires added my concern is that we try to save applicants as much pain as possible. It will be painful for him to have to do this. If we could get to them before the event, everybody wins.

    Mr. McErlane commented even in this instance, he was pretty far along before Gordon even saw it. Mr. Squires said permits with drawings would help. Mr. McErlane responded if they knew to call or if they knew they had to have a permit, but if they didnít, we still would have been in the position where Gordon first stopped.

    Mr. Squires commented I am not in favor of putting extra burdens on the Building Department; you people do a wonderful job as it is. I just hate to see citizens caught up in this.

    Mrs. Huber said the construction looks very shoddy to me. Itís got stones under one section and it rises up with big gaps by a gate. Mr. McErlane commented that he had to work with a slope.

    Mr. Okum said the problem is basically would you want a house built in that location with a six foot fence. For a single story home, the wall of the house is 8í-6" maximum, and many of the homes in Heritage Hill arenít much taller than that.

    Mr. Squires commented that in one of those pictures, it looked like the fence was more than six feet tall, and that is why I asked the question.

    Mr. Okum said I think this brings about some issues for the City in regards to permits for fencing. We did do something on fencing that we forwarded to Council regarding the placement of fences. Mr. McErlane reported that it was the finished side of fences.




    21 MAY 2002


  5. DISCUSSION Ė continued
  6. Mr. Borden said I notice some work going on at Steak Ďn Shake on S.R. 747. Are they still operating under our variance, or has that expired. Mr. McErlane answered we are close to bringing that back again. It will expire in June. We have been trying to get hold of somebody to find out exactly what their alterations are that they are undergoing. Mr. Okum said their canopies are laying in the parking lot.

    Mr. Squires said my congratulations about the signs at the entrances and exits to our city. They look fine. Mr. McErlane said Iíll relay that to Public Works Department.

    Mr. Okum wondered how often a fence is built in the wrong place. Mr. McErlane responded the last one I can remember was at the corner of Cloverdale or Smiley and Kenn Road, but it was not a privacy fence.

    Mr. Borden commented a fence that high in that neighborhood seems too big. Six feet is almost to the roof. We might want to impose a four-foot limit in that neighborhood.

    Mrs. Pollitt said looking at it at the left side which wasnít the issue makes the right side even worse. If it wasnít so far out in the front, and so invading there Ė it looks like a fort.

    Mr. Okum said the applicant has a clear direction on this. He has the right to take it to the Court of Common Pleas if he chooses to do that.

    Mr. Okum asked if anyone would be absent at the next meeting, June 18th. All plan to be present.


Mrs. Huber moved to adjourn and Mr. Apke seconded the motion. By voice vote all voted aye and the Board of Zoning Appeals adjourned at 8:28 p.m.

Respectfully submitted,



________________________,2002 _____________________

David Okum, Chairman



________________________,2002 _____________________

Jane Huber, Secretary