Board of Zoning Appeals Meeting Minutes

15 June 2004

7:00 p.m.



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

    3. ROLL CALL
    4. Members Present: Fred Borden, Jane Huber, Marge Pollitt

      Robert Weidlich and Chairman Okum

      Members Absent: Jim Squires and Robert Emerson

      Mr. Okum reported that Mr. Squires contacted me early in the week and indicated he would be out of town. Mr. Emerson is our new member, replacing Mr. Apke who went to Planning Commission, and he is on a previously planned family vacation.

      Others Present: Richard G. Lohbeck, Inspection Supervisor


    8. Mrs. Huber moved to adopt and Mr. Borden seconded the motion. By voice vote, all present voted aye, and the Minutes were adopted with five affirmative votes.

      1. Planning Commission Meeting Minutes – May 11, 2004
      2. Zoning Bulletin – May 10, 2004
      3. 5/19/04 Letter to Greg Bullock, Community Management Corporation re pet boarding, 241 Northland Boulevard
      4. 5/28/04 Letter to Greg Bullock re opinions on pet boarding, 241 Northland Boulevard
      5. 5/19/04 letter to David Osterman, 607 Smiley Avenue
      6. 5/19/04 letter to ATM Properties, 12123 Princeton Pike
      7. Zoning Code Amendments – Section 153.014 & Section 153.531(D)
    10. REPORTS
      1. Report on Council Activities – Marge Pollitt
      2. Mrs. Pollitt reported on the Council meeting held June 2nd. We passed the Zoning Code Amendments governing signs which you received in your packet. We passed the ordinance raising the Springdale income tax from 1% to 1.5%. We passed an ordinance for engineering and design of the East Kemper Road Phase III improvement project. Seventy-five percent of the money will be from state and federal funds.




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        PAGE TWO

      3. Report on Planning Commission – David Okum

      Mr. Okum reported on the Planning Commission meeting of June 8th. The approval of the Tri-County Mall regional identification sign was tabled at their request. The request to waive the water retention requirement for Kentucky Fried Chicken was tabled at their request. Pappadeaux Restaurant wanted to add a courtyard waiting area (passed around pictures) and Planning approved this. The zoning changes for Springdale Elementary School and Heritage Hill Elementary School were granted, from residential zoning to PF-L (Public Facility Low Density). Tri-County Mall requested approval of the addition of the Carabbas and Cheeseburger in Paradise restaurants at their western entrance areas and an out parcel bank on the southwest corner of the site. We approved this with the condition that they accommodate the parking increases and issues associated with adding these, since they already have parking issues.

      1. Community Management Corporation requests variance to allow pet boarding suites in a Support Services Zoning District (241 Northland Boulevard). Said variance is requested from Section 153.246 Principally Permitted Uses. – tabled 5/18/04
      2. Addressing the board members, Mr. Okum said this has been tabled twice, and asked if they wished to act on the information or withdraw it from the agenda. If you act and deny this, the applicant would have to wait six months before they can reapply. I prefer to act whenever possible because it is a public hearing and it has been tabled twice. The applicant hasn’t contacted us, so it is at your discretion.

        Mrs. Huber moved to withdraw the item from the agenda and 0Mr. Borden seconded the motion.

        Mrs. Pollitt said if it is withdrawn, would the applicant have the opportunity to go to the Planning Commission for a similar use permit? Mr. Okum said yes, they would be able to whether it is denied or not. Mr. Borden commented I didn’t want to deny it.

        On the motion to withdraw, all present voted aye except Mr. Okum who voted no. The item was withdrawn with a vote of four to one.

      3. Tri-County Pontiac Buick GMC requests variance to allow the "Buick" sign on building at 169 Northland Boulevard. Said variance is requested from Section 153.531(C) (1) (b) "The maximum gross area of all permanent signs..(W x 1.5) + 40 s.f." (22" letters approved 5/1804 – now requesting 28" letters)

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        PAGE THREE


        Karl Mueller of Tri-County Pontiac Buick reported that at the last meeting, I had just been appointed to my position, and the approval was for 22 inch letters, which was incorrect. I didn’t know the size of the letters on the building and we wanted it uniform, the same size all the way across the building, which would have been 28 inch, and I am here to request the 28 inch letters.

        Mr. Okum opened the public hearing, asking if anyone wished to speak. No one came forward, and he closed the public hearing.

        Mr. Okum said if the board were to make a motion on this, I would suggest that you reference the existing limitation of total signage allowed and that this will amend the variance granted last month, to make clear that it is not additional to that, it is inclusive of that.

        Mr. Borden said with 28" letters, it would be 39 s.f. or 16 s.f. more than what we approved last month. I will move to approve the request to allow the Buick sign to increase 16 s.f. to allow for the 28 inch letters. Mr. Weidlich seconded the motion.

        Mr. Lohbeck commented I don’t see a problem with just saying 28 inch letters, and we will figure the square footage.

        Mrs. Pollitt asked the applicant if he anticipated any other requests for signs, and the applicant said no. Mrs. Pollitt said I would like to have the motion amended to include that. Mr. Borden said I don’t think you can do that; it is not enforceable. Mr. Lohbeck added they have the right to come back before us.

        Mr. Mueller commented I would say that the only way we would ask for any more signs if we ended up with another dealership, and I don’t think that will happen.

        Mrs. Pollitt reported that the original variance took them to 319 s.f. Last month they requested 322 s.f. and now it will be 338 s.f, Their allowable square footage is 265 s.f. so we are going from 265 to 338 s.f.

        Mr. Okum said if the applicant were to come back in, the comment that the applicant has made is a part of the public record, but it is still the company’s right to request a variance to the Zoning Code. You as a member of this board have an opportunity to discuss that as a part of the public forum.

        I accept this variance is necessary for balance across the front, and I will be supporting it for balance and continuity across the front of the building. In my opinion, the amount of signage for that site is pretty much maxed out.

        On the motion to grant the variance, all voted aye and the variance was granted with five affirmative votes.


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        PAGE FOUR

      5. Gateway Mortgage, 12123 Princeton Pike requests variance to allow an expanded parking lot. Said variance is requested from Section 153.502 (C) "In no case however shall the parking area or access drives be located closer than..10 feet from any non-residential property line" and from Section 153.244 "No use in the GB District shall exceed an impervious surface ratio of 0.75" – tabled 5/18/04

      Mr. Okum said you have a copy of the letter that went to the applicant. I have the same position on this, but what is your pleasure? Do you want to continue on this? I believe we had correspondence from this applicant, requesting that this be withdrawn.

      Mr. Borden moved to withdraw and Mr. Weidlich seconded the motion. By voice vote, all except Mr. Okum who voted no, voted aye and the withdrawal was approved 4-1.

      D. David Osterman requests variance to allow a 720 s.f. garage to be constructed on his property at 607 Smiley Avenue. Said variance is requested from Section 153.075(B) "A single two-car required. The garage shall have a minimum floor area of 400 s.f. and a maximum floor area of 700 s.f." - tabled 5/18/04

      David Osterman said I would like to request a variance to increase my existing garage to a three-car garage (720 s.f.) on the back property.

      Mr. Lohbeck reported that the applicant proposes to construct a 720 s.f. detached garage five feet from his rear and side property lines. Section 153.075(B) permits a maximum floor area of 700 s.f. for a garage.

      It is assumed that the existing detached garage will be demolished, since the proposed driveway extension will go through the existing garage. The applicant indicates that the concrete driveway will be extended back to a concrete pad in the front of the garage doors.

      On 7/15/03 the Board granted a variance until 10/01/08 for the placement of an above-ground pool. The site plan does not indicate the location of the above-ground pool or the impact of the proposed improvements on this location.

      Mr. Okum opened the public hearing. No one came forward, and he closed the public hearing.

      Mr. Osterman reported that the existing garage got blown down late last month and has been removed as a safety precaution for my four-year-old. The pool has been dismantled and destroyed, so we no longer need the variance for the swimming pool. It was a timed variance, until 2008.

      Mr. Weidlich asked the applicant if he had an outdoor shed on the property, and Mr. Osterman responded that he did not.


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      Mr. Weidlich asked if this board granted you this larger garage, would you be in agreement that you wouldn’t need a shed for any other storage? Mr. Osterman agreed that he wouldn’t.

      Mr. Borden said you indicated that you no longer require your above-ground pool. Where was it placed? Mr. Osterman answered it was setting eight to 10 feet from the right rear corner of the property, in the middle of a concrete pad that is being proposed. Mr. Borden said so you could put the pool back in that same location, and Mr. Osterman answered no, it will replace the concrete and be the parking pad and part of the driveway. Mr. Borden asked if he had space to put the pool elsewhere on his property if he wanted to put it back up again. Mr. Osterman answered it probably would require another variance because the only place left would be all the way up towards the house, but the pool was carried out to Rumpke yesterday.

      Mrs. Huber asked the number of vehicles he owns, and Mr. Osterman answered three automobiles, one boat and two lawn tractors. Mrs. Huber asked if he could get by with the 700 s.f. allowed by code, and Mr. Osterman answered I could if I left one of the vehicles parked outside.

      Addressing the applicant, Mr. Okum said contingent on your agreement, would it be appropriate for the board to include as conditions of this variance that a pool and a shed not be constructed? Mr. Osterman said that would be agreeable.

      Mr. Okum said although our code limits garages to 700 s.f., if you are building in four-foot increments, which is common, 720 s.f. is more accurate for a standard building without wasting materials. If the conditions I outlined are agreeable with the applicant, my feeling would be to allow the 720 square feet.

      Mr. Weidlich moved to approve the construction of a 720 s.f. detached garage at 607 Smiley Avenue with the conditions that the applicant has agreed that he no longer needs the swimming pool variance granted 7/15/03 and he also has agreed that he will not need an additional storage shed on his property. Mr. Borden seconded the motion.

      Mr. Okum asked Mr. Osterman if he understood the conditions of the motion and he indicated that he did. Mr. Okum said let the record show that Mr. Osterman has accepted the conditions of the motion.

      On the motion, all present voted aye and the variance was granted with five affirmative votes.






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      PAGE SIX

      E. Sally Cutter, 444 Dimmick Avenue requests variance to allow the consolidation of parcels in order to build residence. Said variance is requested from Section 153.069(A) "single household dwellings..shall have a minimum lot area of 12,000 square feet and a lot width of no less than 80 feet".

      Mr. Okum reported that the applicant has phoned and requested that this be withdrawn from the agenda. Mr. Borden moved to withdraw and Mrs. Pollitt seconded the motion. Mr. Okum said I feel a request for withdrawal should be in writing from now on so we at least have a formal record in the city rather than verbal. ON the motion to withdraw, all voted aye, and the item was withdrawn with five affirmative votes.

      1. Harry Debruyn, 257 West Kemper Road requests variance to allow the construction of a 24’ x 24’ utility building on his property. Said variance is requested from Section 153.492(B)(3) "..shall not exceed 120 s.f."

      Harry and Diana Debruyn approached the board. Mr. Debruyn said we were pretty much thrown out of our property by the school district (eminent domain). We had our photography business there for 18 years. In order to continue my business, we need to build this building. We were able to photograph up to 30 people at 440 West Kemper. Mrs. Debruyn added that we had a barn so we had indoor and outdoor facilities, and now we have no business. We are turning down customers because we have no place to shoot.

      Mr. Debruyn added that the building will be mainly used as a shooting area. There would be no water facilities, just electricity. The power required to run studio lights is no more than two amps per light which is not very much.

      Mr. Lohbeck reported that the applicant is requesting a variance from Section 153.492(B)(3) which limits the maximum area of a detached accessory building, other than a garage, to 120 s.f.

      The applicant is proposing to construct a 24’ x 24’ accessory building (576 square feet). There is currently a 22’ x 22’ detached garage on the property which is assumed to remain.

      The applicant has indicated that the proposed building will be used as a photographic studio for his home occupation. Section 153.486 of the Zoning Code outlines specific parameters regulating home occupations. The purpose of these regulations is to allow gainful employment by a resident of the home, without creating an imposition on neighboring properties and the community as a whole. Additionally it is emphasized the need for the residential character of the property to be maintained.


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      Mr. Lohbeck continued that it goes against this concept to allow an accessory building to be constructed 4.8 times larger than permitted for re0sidential properties for a commercial use.

      The applicant indicates that he was able to photograph up to 30 people in his previous studio. The applicant needs to be aware that home occupations are only permitted to attract a maximum of two vehicles to the premises at one time.

      The applicant also should be made aware that other restrictions of 153.486 must be complied with, such as: the business must be clearly incidental to the residential use of the property. Only persons residing at the property may work at the property. The business must be conducted wholly within a building. Only one unlit sign not more than two square feet, 12" x 24" or 17" x 17" may be displayed. No outside storage or display is permitted. No expansion of off-street parking is permitted.

      Of the three questions on the reasons for variance form, number two asks if denial of the request would prevent the applicant from reasonable use of the property, such as the neighbors are able to enjoy. The applicant did not answer this question. The answer given has nothing to do with being deprived of the use that his neighbors enjoy. There are no prior variances granted for this property.

      Mr. Okum asked the applicants if they were aware of the comments and the conditions in the Zoning Code regarding home occupations?

      Mr. Debruyn answered I am not fully familiar with it. I have been running my business for 18 years and never had a problem or caused problems. We kept the property clean. We had probably the best landscaping in the area. Mrs. Debruyn added that our business is by appointment only, so there is not constant cars coming and going. Mr. Debruyn commented it is not a retail business. We might have 30 -people there for a family reunion picture for example, but most of the time it is five, six sometimes eight people. Thirty people is a rare thing.

      Mr. Okum opened the public hearing. No one came forward and he closed the public hearing.

      Mrs. Huber said my being a life long resident of Springdale, and having lived in the home that Mr. Debruyn lived in when I was a little girl, and having to be deposed by your home by the school which I am not in favor of either, I really see no problem. He has a very very deep lot. I go by his former residence and where he is moving out of right now, and there has never been a great amount of traffic or anything like that. I really think the man deserves to be able to do what he has been doing.


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      Mr. Okum asked if the properties to the east and west of the property he just purchased are single family residential. Mr. Debruyn answered that they are. Mr. Okum continued when you were located at your other location, were there other residential properties on both sides of yours. Mr. Debruyn answered that there were.

      Mr. Okum commented that the difficulty is that your request for variance is really for a large outdoor storage building. The difficult part of it is that based on the information I am reading here in 153.486, I don’t feel that your business would even be able to be there. I haves a very big concern that if we passed a variance on the property to allow you to build the accessory building that you are requesting when you may not even be able to operate your business the way you previously did.

      There are parts and parcels in the Springdale that appear to have been grandfathered within the community. I know your business has been in there, and unfortunately this is difficult to deal with when you have a Zoning Code and residences along a thoroughfare like Kemper Road. I see Nilles Road in Fairfield as a good example of what happens with residences that become somewhat commercialized and evolve. If that were the case, it is a zoning issue that Council would have to deal with, and I don’t think we should be dealing with zoning.

      Mr. Debruyn commented we were never zoned commercial to begin with. The reason why we were able to operate it was because it was a business by appointment, and not retail.

      Mr. Okum responded I understand, but based on 153.483, I don’t know how you could conform to several of those restrictions. Truly the hardship for allowing this accessory building, is not for the purposes of business but for the purposes of an accessory building. Whatever you do with that accessory building is unique.

      We do have some very large garages along Kemper Road. Mr. Debruyn responded there is one along side us in the back, and one two doors over that is a four-car garage with a second floor.

      Mr. Okum said we are talking a second building on your site. What you do with your property and what is allowed by the Zoning Code is up to you and the City to deal with under what is legally allowed to be done. However, I would not want to be considering approval for a variance to allow a 24’ x 24’ accessory building for the purposes of the business. The business is not germane to the board. Mr. Debruyn responded the business is my livelihood; it is what I do. I have been doing this, and I am nearly 62.



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      Mr. Okum said I understand, but your variance carries with the land and stays there forever. If we were to approve a 24’ x 24’ utility building, I’m not sure that would be an approved use under 153.486. Have you talked to the Building Department about those restrictions? Mr. Debruyn answered no, we talked with Gordon about constructing the building.

      Mr. Okum said personally I think the question as to whether you will be able to operate your business there needs to be resolved. I would prefer to do that before we even consider the 24’ x 24’ building. It is at your discretion. If you want the board to vote on it, we can vote on the need for the accessory building in addition to your existing 22’ x 22’ garage, but I think these issues need to be clarified and resolved prior to the vote.

      Mrs. Debruyn said even though we have been recognized as a business all these years? Mr. Okum responded unfortunately it was on a different property which doesn’t apply to this property. Mrs. Debruyn said what are we supposed to do? We have no money coming in right now.

      Mr. Okum said I totally understand because I had to relocate my business and had to go outside Springdale. Mrs. Debruyn responded the problem we have is we can’t do that because we took such a loss on our property when they took our house from us, we had to buy something a lot cheaper and we took a giant step backwards financially. There is no way we could go outside the City and rent something. That is one of the reasons why we stayed on Kemper Road. Our customers were upset that we were moving.

      Mr. Borden said I agree; the issue of the business must be resolved first. It is not fair to go through the possible approval of this shed and then not be able to use it for your business. I don’t think that is fair.

      Addressing the applicant, Mr. Borden asked if their business was within the building or is it ever outside? Mr. Debruyn answered we would be shooting outside like we did at the other address. The only reason for the building is to have backdrops. Mr. Borden responded then you don’t meet the requirement in item C, your business has to be totally within the building.

      Mr. Debruyn responded it’s not inside all the time. Mrs. Debruyn added we shoot in our house, in our barn and in our yard.

      Mr. Borden asked about signage and Mr. Debruyn answered I had a sign before which was a pretty good size. Nothing was ever said about it, and I just made a new sign. I don’t know what to do.



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      PAGE TEN


      Mrs. Pollitt said I really badly that you are in this situation

      I would suggest that you ask for this to be tabled and meet with Beth Stiles, the economic development director to see if there isn’t something that could be worked out to find a location for you, or to see if administration might have some suggestions for you. I would hate to see this go to a vote tonight and be turned down because you would not be able to reapply for six months.

      Mrs. Pollitt said when you relocated, did the Board of Education give you any assistance in trying to locate a property appropriate for your business?

      Mr. Debruyn answered are you kidding? They low balled us to begin with. With what they offered us the first time, we couldn’t have afforded to move. Then they sued us because we wouldn’t accept their offer. We had to pay a lawyer, and we still only got $40,000 less than what the property was appraised for by two appraisers. Mrs. Debruyn added it could have burned down and we would have gotten more money; that is how little we got. That is why we had to get something a lot smaller and cheaper and fix it up. Our customers are calling and we’re telling them to hold off; we can’t take anybody because we don’t have any room.

      Mrs. Pollitt said that is a shame because your place was beautifully landscaped. Mrs. Debruyn added in 2000 we spent $77,000 remodeling, and lost every bit of it.

      Mr. Okum asked if they had any problem with resolving the use issue first before this board takes action on the requested variance. It would be 30 days at least, because it will go to the next board meeting. I think we have heard from two of our members who felt this issue needs to be resolved before the accessory building issue needs to be considered.

      Mrs. Pollitt commented I think I am on a different page, because I truly empathize with you. Your business was going along just fine, you weren’t bothering anybody and we have never had any issues with that business. So, I really have an issue with your not being able to continue your livelihood in Springdale. That is why I would like to see it tabled. I know that the timing is a terrible constraint for you, but if you could meet with the economic developer, Beth Stiles, maybe administration could come up with something that we don’t know about. I feel terrible that you can’t conduct your business the way you want to. You have such a huge lot there that I don’t think the actual variance for the shed will be an issue. I think it is the issue of being allowed to conduct your business under the Zoning Code.

      Mr. Okum asked the applicants if they wanted the board to table this, adding that the variance would require a majority vote. I can’t tell you how the board will vote, but at this point I would have to vote no without knowing about this issue.


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      Mr. Okum added I can’t tell you how I would vote after the use issue is resolved, but I do think it is important that it is resolved first.

      Mr. Debruyn responded then we’ll table it.

      Mrs. Pollitt moved to table and Mr. Weidlich seconded the motion. By voice vote, all voted aye, and the item was tabled to next month. Mr. Okum said you will be on the agenda on July 13th. Mrs. Pollitt told the applicants to contact Beth Stiles, and I will talk to the administration about this tomorrow.

      B. James Elkins, 12159 Marwood Lane requests variances to allow a second 12’ x 16’ shed on his property. Said variances are requested from Section 153.492(B)(1) and (3) "There shall be no more than a Residential Zoning District" and "..shall not exceed 120 s.f.."

      Mr. Elkins reported I am asking for a variance for the number of sheds and the size of the shed I am replacing. I received a notice from the Building Department about not having a permit for putting up the shed, and it’s all done except for the roof. I came down to the Building Department to pay my fine and get the permit and found out I was in violation with the number of sheds and the size of the shed.

      I then wrote a letter to the Building Department and the zoning board to try to give you some background information. I have lived in Springdale for 24 years and have had numerous things done and have never applied for a permit. It is not that I am trying to challenge the Springdale city rules, it just never occurred to me that I needed permits.

      I sent the letter explaining the background along with pictures to show that I have always had two sheds there. There were two sheds when I moved in. I sent in my plans for a 12’ x 16’ shed and I got the letter on the 18th and the shed was constructed, except for the roof on the 15th. Since then I have stopped work, and with all the rain we have had, it’s not doing it any good and I would like the zoning board to approve my variance request. I am the last house on a dead end street. Facing my house, the church lot is on the right and there is one neighbor on the left. It doesn’t interfere with him, because he is helping me build the shed, so it shouldn’t be detrimental to any surrounding neighbors.

      Mr. Lohbeck reported the applicant is requesting a variance to allow a second accessory building to remain, that it was recently constructed and to allow it to be 12’ x 16’ in floor area (192 s.f.).

      Section 153.492(B) (1) permits only one accessory building and Section 153.492(B)(3) restricts accessory buildings to a maximum of 120 s.f. in area.



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      Mr. Lohbeck reported that the applicant has indicated that there have been two sheds on the property for 24 years and this shed is a replacement of one of those, only larger. The present limitation of one accessory building has been in the Springdale Zoning Code for 33 years and we have no record of permits issued for any sheds on this property in our files.

      One variance was granted on 7/19/94 on this property, to allow a privacy fence in the front yard adjacent to the church property.

      The applicant is encouraged to call the Building Department when there may be a question of the need for a permit. There are several items listed in his letter of June 2, 2004 which require permits for which we have no record, reroof, shed and furnace replacement.

      The applicant should clarify the setback of the accessory building from the property lines.

      Mr. Okum opened the public hearing. No one came forward, and he closed the public hearing.

      Mr. Okum asked the size of the existing shed that is remaining in the northwest corner of the property. Mr. Elkins responded that it is 10’ x 12’. Mr. Okum added you have constructed a 12’ x 16’ shed. What size shed did that replace? Mr. Elkins answered it probably was 10’ x 10’. I don’t know the exact size.

      Mr. Weidlich asked how far the new shed is set back from the property line.. Mr. Elkins answered it s probably four to five feet. Mr. Weidlich commented the code requires it to be five feet from the property line.

      Mr. Okum said this puts the board in a terrible position. There is nothing specifically unique about your property that would justify two sheds. In fact, one additional shed is 192 s.f. The 120 s.f. shed that you currently have meets the code and setbacks.

      I totally understand that your next door neighbor has assisted you in constructing the larger shed, but he may not be living there 10 years from now. A variance stays with the land, and the law director has instructed us that given that, we cannot set time limits to allow variances for a period of time.

      You already have two sheds on your property. Mr. Elkins answered I have always had two sheds on my property. Mr. Okum said but now the one shed size has been increased from approximately 10’ x 10’ to 12’x 16’.




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      Mr. Elkins responded not knowing Springdale’s code, we have always said that when we replaced that shed, we would make it bigger. We bought a glider with a sunscreen on top, a couple of park benches to set by the pool, all of these things anticipating replacing the shed with a larger one. Being on a dead end street, and having nobody except a neighbor on one side, it won’t be a problem for anybody else.

      Mrs. Huber asked if he had gotten a permit on the swimming pool, and Mr. Elkins responded that it was there when we bought the property 24 years ago.

      Mr. Elkins added it is something that I became accustomed to and didn’t think that I was doing anything that would violate any rules or regulations. I have lived here 24 years and have always had two sheds. It has never been a problem. I rebuilt one last year because it was deteriorating. This one was so bad that I couldn’t rebuild it, so our plans were to replace it with a bigger one, not knowing that it had to be a certain size or we couldn’t do it at all.

      Mr. Okum said let the record show that the applicant has presented color photographs of the property, the shed in question, the existing shed and the pool.

      Mr. Borden asked Mr. Elkins about the existing shed. Did you indicate that you rebuilt it and was it to the same dimensions as it was before? Mr. Elkins answered yes, and the floor was still in pretty good shape and the walls had deteriorated, so I replaced the walls, added windows and put some lights outside. It was the same size.

      The other one I want to replace was probably 10’ x 10’ but it wasn’t very tall and you had to duck your head to get in.

      Mr. Borden asked if he absolutely required two sheds. Mr. Elkins said I never knew it to be a problem until now, and you become accustomed to it. We have the pool, the filter, the ladders, diving boards, lawn mowers, all of which have to be stored. I have a motorcycle which I keep in the one shed.

      Mr. Borden said I have a pool also, and I have one shed. That is why I asked you if you needed two sheds. Mr. Elkins added especially in the winter time when I keep my bicycles and motorcycle in there; there is not enough room.

      Mr. Borden asked about keeping his motorcycle inside the garage and Mr. Elkins answered no, it is a one-car garage.

      Mrs. Pollitt asked the lot size and if it is irregular. Mr. Elkins said I don’t know the size, but I would think it is irregular since it is the last house on the dead end street.




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      Mrs. Pollitt asked if the shed he was constructing was being placed next to the parking lot side. Mr. Elkins answered no, on the pictures it is right where the diving board was. Mrs. Pollitt looked at the pictures.

      Mr. Okum said we were provided with an aerial photo of the site from CAGIS, and it shows the house and the pool. Based on the lot sizes in Heritage Hill, I would say this is a little larger than most of the lots. Most of the lots are 60’ x 120’ and this lot appears to be 80 across the front and 120’ but it widens out at the back. It may be 100 feet in the rear. Mr. Borden commented that it is not too irregular. Mr. Okum said it is a little wider than most of the lots. Mr. Borden said the corners are cut off.

      Mr. Okum said we have a request for two variances. One an increased square footage for the shed and a variance to allow two sheds on the property rather than the one allowed.

      Mr. Lohbeck added that there should be a clarification on the setback from the adjoining residence. It appears to be less than the 20 feet required, and the applicant needs to clarify that. Mr. Elkins said I can make sure that happens. Mr. Okum said you would have to move your shed. Mr. Elkins said it will happen. Mr. Okum asked if he could move his shed, and Mr. Elkins indicated that he could.

      Mr. Okum commented I have a couple of problems with this. One is that 192 square feet is a pretty decent size shed but its proximity to the adjacent property is even more of a major issue, as well as the two sheds. You basically are requesting 312 square feet of accessory buildings on your site, which is already very dense. There is a lot on it. It is a very difficult situation to be in. You already have a shed and you have indicated that you could relocate the shed. I would be inclined to approve 192 square foot maximum total shed on the property, because I believe you could accommodate the needs of a single family residence with 192 square feet.

      However, I would not be inclined to approve a total of 312 square feet, and it definitely would be very difficult for me to deal with allowing a 192 s.f. shed on the south property line. If it were on the northwest property line next to the church it wouldn’t be a problem because of your testimony concerning your need. Personally I can’t support 312 square feet in two accessory buildings and the shed being that close to the adjoining property owner.

      Mr. Borden said I could support one over sized shed, but not two.

      Mr. Elkins said it is 312 s.f. total, so we are only increasing by 100 and some. Mr. Okum responded the code allows for 120 s.f. Mr. Elkins repeated it is what I have had for 24 years and it is only increasing by 62 or 72 feet.


      15 JUNE 2004



      Mr. Okum responded I understand that, but the code still only allows 120 s.f. We have property owners who have to justify increasing over the 120. You already are at 312 s.f. We understand that it has been that way for 20-some years, but the code has been the same for shed size for 33 years.

      Mr. Elkins said you said that ignorance of the law is no excuse, but when you don’t deal with it, you tend to get in bad habits. It is not something I just thought up one day.

      Mr. Okum responded I understand what you are saying. Based on the photos you submitted, you have a beautiful back yard which is very well groomed and taken care of. However, 120 s.f. for a shed is the law. It was adopted by Council many years ago and reaffirmed in numerous variations to the Zoning Code.

      I am open to allowing the one 192 s.f. shed if it were to be relocated to where your current shed is, on the northwest portion of the site. Mr. Lohbeck has given testimony that there is a question about the proximity of the neighboring residence. That is a health and safety issue. I am not hearing from many members of the board that they want to allow two sheds totaling 312 s.f. on that site. We’ll have to take some action because the Building Department is at a point where they would have to cite you and I don’t want you to have to go through that.

      Mr. Elkins said so your suggestion is keeping the larger shed if I relocated it and dismantled the smaller shed. Mr. Okum said I can’t speak for the rest of the board, but based on my feelings and the oversized nature of your lot and proximity to a public facility on the northwest property line, I would have a tendency to support 192 square feet.

      Mr. Okum added it is either that or we will take action on your requested variance for the two sheds totaling 312 s.f. with one shed being closer than 20 feet to the nearest structure. Frankly, I don’t think you will get support from this board for that.

      It appears that you can accommodate the board’s request to relocate the 12’ x 16’ shed to the northwest corner. Mr. Elkins said yes I can. Mr. Okum said it appears your existing shed is there, but it can’t be any closer than five feet from all property lines.

      Mrs. Pollitt moved to grant the variance to allow the construction of one 12’ x 16’ shed (192 s.f.) with the stipulation that the existing 10’ x 12’ shed be removed and that the 12’ x 16’ shed be relocated to the northwest corner, at least five feet from all property lines. Mr. Borden seconded the motion. On the motion, all voted aye, and the variance was granted with five affirmative votes.




      15 JUNE 2004


    15. Mrs. Pollitt said I want to go back to Mr. Osterman’s variance for the 720 s.f. garage. When we talked before about Tri-County Pontiac and I suggested the variance include that they could not have any further signage. I was told we couldn’t do that. With Mr. Osterman, we did put stipulations on his variance. I need clarification to understand the difference between those two applicants.

      Mr. Okum reported that you can’t tell a business enterprise that they can’t exercise their right. That’s due process. Mr. Osterman as landowner of the property accepted the conditions in order to have a 720 s.f. garage, that he would not have a second accessory structure on his property. He basically limited his site by increasing the garage to 720 s.f. Mrs. Pollitt said it is 20 s.f. more than what is allowed, and he basically gave up the right to ever have a pool or shed there. Mr. Borden added you can’t tell an applicant "you can’t come here any more". It is not enforceable.

      Mr. Okum added that doesn’t mean that a new property owner who would purchase Mr. Osterman’s property would be prohibited from exercising their rights to make a presentation to the board for a variance. They would have that right as a resident.

      Mr. Borden asked about the timing for the planning and zoning workshop and Mrs. Webb indicated that the best date for most of the members was Monday evening, August 30th. Ms. McBride will officially inform the members of Planning and BZA.

      Mr. Okum commented a good question would be when you are placing conditions on a variance, where do those conditions go? We have to realize that the record of the variance is kept in this city building; it isn’t attached to the deed or anywhere else.


Mr. Borden moved to adjourn and Mr. Weidlich seconded the motion. By voice vote, all present voted aye, and the Board of Zoning Appeals adjourned at 8:42 p.m.

Respectfully submitted,



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David Okum, Chairman



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Jane Huber, Secretary