Board of Zoning Appeals Meeting Minutes

17 June 1997

7:00 p.m.



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


Members Present: Thomas Schecker, James Squires, David Okum,

Councilwomen Marge Boice and Kathy McNear and

Chairman Mitchell

Members Absent: Barbara Ewing


Mr. Schecker m moved for adoption and Mr. Okum seconded the motion. By voice vote, all except Mrs. Boice and Mrs. McNear who abstained voted aye, and the Minutes were adopted with four affirmative votes.


A. Planning Commission Meeting Minutes - 13 May 1997


A. Report on Council Activities

Mrs. Boice said we have been busy working on legislation for engineering on the Crescentville project. We will be going into budget sessions very soon, and we have several public hearings tomorrow night, one on an update of the RV ordinance and on the property in the Bings area. I want to remind you that Spirit of Springdale will be July 3rd and 4th, with the parade at 6 p.m. on July 4th.

B. Report on Planning Commission

Mr. Okum stated Judith Muehlenhard of Pine Garden requested approval for screened in patios and decks. This was tabled from March and February; we had been waiting on final site plan submissions as well as corrections to the changes they had made to the development from what was approved by Planning Commission. Planning approved unanimously screened in patios for the internal units, Units 7 8 and 9. The next motion was to approve all the units for screened in patios, and it was defeated unanimously.

Mr. Okum continued Rebecca Crowe requested the transfer of variance to allow partial conversion of garage at 478 Maple Circle Drive. That issue had started in the Board of Zoning Appeals and then came to Planning since it was a PUD. This applicant went back to the Condo Association Board of Directors and got an approval while they live in that unit. Any time they would rent or sell the unit, it must be converted back as a final issue.

Mr. Okum stated on the concept discussion of the proposed new Showcase Cinemas at 12064 Springfield Pike, the plan calls for 20 cinemas and the demolition of the existing cinema. We were looking at a concept review. The footprint of the new facility will be back further from the interstate and Route 4; there will be changes in the traffic handling but the basic concept is to go to 20 cinemas. It will be stadium seating, offsetting seats, and a two-story building. This is a prototype for future major changes in their theaters.

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Mr. Okum added this was the prototype for Showcase cinemas all over the country and it is also one of their most successful cinemas and the owners made a major commitment to do a total overhaul. The total area including landscaping, parking aisles will be redone, so it is very positive. The City and Showcase have been working closely together on the traffic issues.

Mr. Okum reported that the proposed hotel at 12037 Sheraton Lane requested preliminary plan approval (previous Pizza Hut). Originally it was brought before Planning with 60 units; the final submission has 47 units, 25% open space. They are retaining the trees along both sides of the property; they have adequate dumpster screening in the rear and there will be one entrance off Sheraton Lane instead of two. It was approved and referred to Council.

Mr. Okum reported that the requested preliminary plan approval for proposed Target Store at Century Blvd. and East Kemper Road was requested to be tabled by the applicant. There are a lot of things going on with the adjoining properties that is influencing their bringing it forward. On the final plan approval for Calvary Pentecostal Church and School at 11970 Kenn Road, it also was tabled at the request of the applicant.


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

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


A. Brisben Development, Inc. for Hunterís Glen Apartments requests variance to allow a 192 square foot ground sign 22í high and 14í from the I-275 right-of-way on their property at 1235 Chesterdale Road. Said variance is requested from Section 153.049(A) "..In a multi-family district one permanent identification sign...not exceeding 335 s.f. in area and 10 feet in height shall be permitted facing each public street, but no less than 50 feet from a side lot line and 15 feet from any street right-of-way line."

Mike Bourke stated we are requesting a variance from the original application, which was 160 square feet. We have marked the posts every foot from the ground up to where the sign is so we could get a clear indication of how much we could lower the sign. Before the sign was up on a hill and now it is lower. From the drawing I showed you last time, it isnít that we really put the sign any higher in the air; it is that it is on higher land. We were going to look at these pictures this evening to see if we could work out a compromise with lowering the sign.

Mr. Mitchell wondered what his suggestion was, and Mr. Bourke answered based on the picture which I am seeing for the first time, I canít imagine lowering the sign and still being able to read it.

Mr. Squires asked if he had gotten the sign down to 8í x 20í as requested in the Minutes of the last meeting? You said you would make an attempt to do that. He read from the Minutes "If I can get it down to 8í x 20í, I will do everything I can to redo the overall impact." Mr. Squires asked the size of the sign that is there.

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Mr. Bourke answered that conversation was in reference to a final resolution and we had agreed to cut the sign down to 8í x 20í or

10í x 16í or whatever we came up with tonight, taking these pictures and looking at the possibilities of lowering the size of the sign. I am still agreeable to redoing the sign and making it 8 feet tall and 20 feet long to get to the 160 square feet we are allowed but we were going to try to see if there was a way to actually lower the sign. I am open for discussion on this, but it does not seem like you could put the sign any lower on the poles and still read it. It looks like it is lower than the fence at this point.

Mr. Squires said so that is the same sign weíve always had there; you have just lowered it some. Are the directions still on there? Mr. Bourke answered yes.

Mrs. Boice commented I was not at the last meeting. Would somebody clarify for me as to how much over they are on this sign? Am I reading correctly that this is 192 square feet and they are only allowed 35 square feet? Mr. Bourke answered we have 160 square feet approved under a previous variance. Mrs. Boice asked why the 192 square feet.

Mr. Bourke answered that is my question, but the best I can recreate from all this is when the sign company went out there, they counted the panels instead of taking an actual measurement, and they assumed that all the panels were the same size, and they were wrong. Mrs. Boice said I was a bit stunned because your company is familiar with with our stringent sign rules and it blows me away that we are in this position. It is not like this is the first time that Brisben has been in the City of Springdale. They should be fully aware; we shouldnít be in this position and you shouldnít be in this position but we are and we have to move forward from that point. It just canít be that big as far as I am concerned.

Mr. Bourke said to reduce it down to the 160 square feet we are allowed could be as simple as trimming off the words that show the directions, the silver gray portion around the edge of the sign. Mrs. Boice said then we have a height problem also. Mr. Bourke said originally the sign was on the hill. When we moved it down to make it more readable, we went into the parking lot area of the property. My contention is the actual height of the sign didnít change but this portion of the sign got longer to get back down to the ground. I would be happy to berm this or bring it back up with landscaping to this height if that is something you would prefer. Mrs. Boice said piling variance on top of variance is not healthy for the city. If you can get that back down to the 160 square feet that would be fine. Iíll let somebody else deal with the height problem.

Addressing Mr. McErlane, Mr. Mitchell said if he removed the portion of the sign to get it within 160 square feet what sort of height problem would we be dealing with? Mr.McErlane answered essentially the easiest method to get it within 160 square feet would be to cut two feet out of the height, because the current one is 12í x16í instead of the 10í x 16í that used to be up which would make it 20í instead of 22í. You can understand the problem with the berm in front of it. I met with Mr. Bourke at the site, and the one thing we had considered at the time and the reason remarked one foot increments on it is because at the time they did that the vegetation wasnít grown up in front of that fence. It looked as though you could cut three feet of height out of it and still read the sign even though you were reading it through the fence. Since that time the vegetation has grown up in the interstate right of way and itís not all that obvious that you could cut three feet of height out of it and still be able to read it. Even if you brought it down to that level, you would have 17 feet versus the 14 feet there previously.

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Mr. Mitchell wondered if you removed the gray portion on top, how much over would they be? Mr. McErlane responded you are dealing with an overall height of 21 feet.

Mr. Okum said the existing sign was 14 feet off and we didnít have a berm problem. Now we move the sign to a more visible location and we have to bring it up to 22 feet to get rid of the berm problem and the fence obstruction. If the sign would move back to where it was, we would not have the berm problem, is that correct? Mr. McErlane responded the reason it was moved to this location was because at its previous location you really didnít see it going eastbound until you were almost on top of it because it was so close to the overpass at Chesterdale.

Mr. Okum wondered if the board were considering two sides, and Mr. McErlane reported we consider a side at a time. Mr. Okum asked what angle that crowís foot had to be and Mr. McErlane answered when it gets to the point where you can read both sides fairly clearly at one location. In this location it is a pretty short time period that you can read two sides at one time; itís not safe either.

Addressing the applicant, Mr. Okum asked why your development went ahead and put lights and light packs on the sign when you knew that this board had not made its decision? Mr. Bourke answered because we had agreed we would not move the posts but would work with you. We had talked about the front post being not 15 but 14 feet from the fence, and that wasnít really the problem. The problem was the overall size of the sign. However big or small we make the sign, we would still like to light it, so the lighting will not change. Mr. Okum said what if this board says you bring it back down to 14 feet; what happens to the lighting you have installed? Mr. Bourke answered it gets modified when the sign gets modified.

Mr. Okum continued if you had kept it in the other location approved originally, we would have had a 14 foot sign; you were granted a variance up to 14 feet. So we are going from 10 feet allowed up to a 22 foot request and I have a problem with that. Instead of 10 feet, we are talking a 12 foot variance from what the Code allows.

Mr. Bourke responded you do not see anymore of the sign. It is only in the extension of the post to get to the ground because the ground dips down. Before when you needed short posts to get to the ground, to keep the sign at the same level and visible to the signs on the freeway, you just had to get the posts longer to get the ground. I would be happy to bring that back up with additional landscaping to make those posts shorter again if that would make you feel more comfortable.

Mr. Okum said so you are saying build a hill and put the sign on. You can bring it to 14 feet by bringing a mound of dirt up around the bottom of your sign. I understand what you are saying, but I donít think that was the intent of the variance originally. I donít think the intent of the Code that says 10 feet was that somebody could build a mountain and put a sign on top to meet the 10 foot regulation. Just because you already have the sign up there and have expensed this money out we are expected to allow 22 feet in height.

Mr. Bourke responded that is not what I am saying at all, and I hope you are not trying to speak for me. What I am saying is with no malice or deception or misrepresentation on our part, we are merely trying to take a failing property and improve it. One of the ways we felt would improve it was to move the sign to a location where it would have greater visibility.


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Mr. Bourke added in moving that down the property a little bit and to retain as many pine trees as we could along the road, we felt this was the best spot to put the sign. When we picked that spot to keep the 15 feet back from the fence we were in the parking lot as opposed to up on the grassy bermed area of the property. Yes, the sign is now taller than what it was before but in actuality because of the berm up and the way the land is to the public side of the sign, you donít see any more than what you saw before. Mr. Okum said I see more than what I saw before. Mr. Bourke responded you see more sign; we are all in agreement that we overshot the 160 square feet. Mr. Okum added 30 square feet is not the only issue; this sign is higher than it was before. Mr. Bourke responded it is just not.

Mrs. Boice said when it was decided to move the sign, didnít anyone check knowing this sign was under variance? I donít understand how you are in this position. Mr. Bourke responded I donít think anyone in a position of authority in the company except for Mr. Brisben is here that was there when Mallard Lake occurred. Mr. McErlane said I thought Mrs. Boice was asking about this particular sign. We had issued a permit to relocate the existing sign in this location. As it turned out it became a new sign, new size and new height. Mrs. Boice said but the Building Department was under the impression it would be the same sized. Mr. McErlane said actually we thought it would be the same sign. Mrs. Boice continued when the permit was issued were the measurements included on the permit? Mr. McErlane answered no, because our impression was the exact same sign would be moved to a different location on the site.

Mr. Okum asked Mr. McErlane if line of sight this sign is higher than it was before. Mr. McErlane answered obviously it is two feet higher than the previous one because the panels are that much larger. If you talk about visibility from the interstate it probably is not higher than the grade in front of it. You could see the posts at its previous location. You can barely see the posts at this location, from the interstate side. Mr. Okum continued so if the sign were reduced down to 160 square feet the way the old sign was, we wouldnít have a higher line of sight than we did previously. Mr. McErlane said you are talking about sitting in an automobile driving down the road, this is higher because the berm is higher from where it was previously. If you are talking about elevation wise from a position on the roadway, yes this is a higher location than lit was previously from the roadway.

Mrs. McNear moved to grant the variance as requested adding that she would be voting no. Mr. Okum seconded the motion.

Mr. Okum said if this is voted negatively, this applicant cannot reapply for six months. Does the applicant understand that? Mr. Bourke responded I was led to believe that we were coming here tonight to look at these pictures and find a solution to the problem. What I believe I am hearing is that when you vote on the proposal as it stands with no modifications I will be forced to remove the sign and will need to wait another six months before we can reapply or a variance. Mr. Mitchell confirmed this, adding that he could install the sign to within the guidelines of the permit that you received, 160 square feet. Mrs. Boice added and the four foot variance on height.

Mr. Shecker voted aye and voting no were Mrs. McNear, Mr. Okum, Mr. Squires, Mrs. Boice and Mr. Mitchell. Motion was denied with five negative votes.



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Mr. Mitchell stated that Item B will be moved to the end of the agenda at the request of the applicant.

A. Advanced Cellular 11439 Princeton Road requests variance to allow 150 s.f. wall sign. Said variance is requested from Section 153.j092(D)(1)(b) "..Maximum gross area of signs = W(W x 1.5) + 40 square feet."

Mrs. McNear stated she had to withdraw from the discussion and vote for competitive reasons.

Tim McDonald, a co-owner of the business stated we have been in the plaza for three years and moved to this location a year ago. Keeping with the theme of the signs in the plaza, we used the same sign company and I thought the sign manufacturer had gotten the Code information and attained a permit. I received notification from the Building Department that it had not been done and that the sign was larger than permitted. I am here to request a variance to keep this sign.

Mr. Squires said you have a 36 foot store front? Mr. McDonald responded it is 40 foot. Mr. Mitchell commented so it would be 100 square feet permitted. What recommendation did you have for this sign?

Mr. McDonald answered in keeping with the theme of the building, I donít see how my sign is any larger than the buildings that are the same width as ours. I also had a window painted sign which figures into this, but it was removed. I would like to keep the sign as it is if at all possible.

Mr. Squires said Iíll agree with you that they look comparable, and I am wondering if the other signs are in compliance. Mrs. Boice agreed, adding that there doesnít seem to be an apparent problem. Mr. McErlane stated to the best of my knowledge, they are. There are no variances granted for these other stores.

Mr. Okum said one of the things we are observing if this drawing is to scale and the gentlemanís storefront is 40 feet and the sign is 30 feet, the building is four feet short so there would be two feet additional on each side of that sign. We are looking at a drawing of a 36 foot building with a 30 foot sign on it, and we should be looking at a 40 foot building with a 30 foot sign on it, which gives him five feet on each side. Mr. Mitchell said the issue is if it is a 40 foot storefront that would give him 100 feet and he still is 50 feet over with his sign.

Mr. Schecker said recognizing that it is 50% over your allowed square footage, but the appearance of that sign is fully in concert with all the other signs in that plaza and it doesnít look at all objectionable in its current size.

Addressing the applicant, Mr. McErlane said when I talked with your sign company, Mr. Meyer indicated that 30 feet is the panel he puts in place on that awning. Did he remeasure the copy dimension? He said he thought the copy might not be as long as the panel itself. If you look at the drawing, it goes beyond the actual copy on the sign. Mr. McDonald answered that was my question also; I do not have the measurement.

Mrs. Boice moved to grant the variance and Mr. Schecker seconded the motion. Voting aye were Mrs. Boice, Mr. Schecker, Mr. Okum, Mr. Squires and Mr. Mitchell. Mrs. McNear abstained and the variance was granted with five affirmative votes.

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C. Tri-County Pontiac, 150 Northland Boulevard requests variance to allow a 255.5 s.f. painted window sign. Said variance is requested from Section 153.092(D)(1)(b) "Maximum gross area of signs = (W x 1.5) + 40 s.f."

(Existing signs = 535 s.f.: Allowable = 340 s.f. per Variance 22 1990)

No one from Tri-County Pontiac was present and Mrs. Boice moved to table and Mr. Squires seconded the motion. Mr. Okum said I canít discuss anything since there is a motion and second on the floor. Mrs. Boice and Mr. Squires withdrew their motion and second.

Mr. Okum said I want to make sure that Tri-County Pontiac was notified of this meeting. Mr. McErlane said you should have a copy of my letter to Mr. Fondong which says "Please note that the variance application must be received no later than 10 June 1997 and you or a representative must be in attendance at the Board of Zoning Appeals on l7 June 1997 at 7:00 p.m." We received it back, but I notice that the dates that were supposed to be filled in by the applicant were not on his application.

Mr. Okum added my point is that if he was duly notified to come and make a presentation and rejected that opportunity, my feeling we should not table it but we should consider it. Mrs. Boice commented that would be the chairmanís call.

Mr. Mitchell stated I think we have to table it. Without any representation here, I would hate for us to make a decision in his absence. Mr. Schecker stated we do have a letter dated June 9 from Tri-County Pontiac, "This letter is to notify you that Robert Fondong will be the representative for Tri-County Pontiac regarding the sign painted on the window..." Mr. Mitchell commented and I canít tell you right now where Mr. Fondong is.

Mrs. Boice moved to table and Mr. Squires seconded the motion. By voice vote all present voted aye and the matter was tabled.

D. Bob Valerius, 740 Cloverdale Avenue requests variance to allow his front porch to project more than six feet into his front yard. Said variance is requested from Section 153.037(D) "..may project six feet into a required front yard."

Mrs. Valerius stated this porch is approximately nine feet out from the house. We had it partially built and contacted Mr. McErlane and secured the boards on there to make it safe to get into our house. We are not finished with it yet; we still need to do the railing and landscaping. Our previous porch was approximately five and one-half to six feet from the house and was concrete and not secured, so the concrete slab buckled. We brought the new porch over the top of the concrete step. We contacted Hosea Construction and he said it goes so far underground we would need a jackhammer to get it out and would risk breaking out picture window, so we brought the porch out. If we had just brought it to cover the concrete step it would have come right in the middle of our sidewalk so we brought it out flush with the sidewalk. It looks nice and we would like to finish it and get the front of the house looking nice.

Mr. Mitchell wondered if the Building Department had looked at their construction to see that it was okay? Mr. McErlane answered in terms of the framing it is okay. We may have a concern about the support of the posts not being on foundations but Iím sure that is something that can be modified.


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Mr. Schecker said I would like to compliment you for stopping your work when you recognized you had a problem. Understanding your technical problem and looking at the proportions involved, what I saw didnít look inordinate in terms of being obtrusive in the neighborhood with the size and setback that you have.

Mr. Mitchell wondered if the neighbors adjacent and across from you reviewed your proposal and agreed with it? Mrs. Valerius reported that they had signatures from everyone that was required. There was one lady on Kenn Road whose husband had passed away who was out of the state but other than that, everyone was very much for it because our previous porch had collapsed.

Mr. Squires said is the drawing you submitted to be the finished look? Mrs. Valerius answered yes, that is our ultimate goal. I would like to do some landscaping to make the yard look nice but Iím waiting to do that until we can finish the porch so it wonít get trampled.

Mr. Okum moved to grant the variance and Mrs. Boice seconded the motion. Voting aye were Mr. Okum, Mrs. Boice, Mr. Squires, Mr. Schecker, Mrs. McNear and Mr. Mitchell. Variance was granted with six affirmative votes.

E. Mark Audretch 562 Grandin Avenue requests variance to allow the partial conversion of his garage into a living space. Said variance is requested from Section 153.025(F) "..A garage shall be not less than 240 s.f..."

Mrs. McNear stated I will abstain from this discussion and vote.

Mrs. Jan Audretch stated we want to put a family room in part of our garage; we donít use it now for our cars and our driveway is big enough to hold six cars so there would be no parking on the street. My husband submitted a drawing of what it will look like, and we have signatures from our neighbors, and nobody is disagreeing with us.

Mr. Mitchell wondered if the garage doors would be maintained, and Mrs. Audretch stated that the garage doors will stay the same. From the front of the house you wonít be able to notice that there is a family room back there.

Mr. Squires wondered what they intended to store in the 4í x 7í storage area, hoping it wasnít flammable materials. Mrs. Audretch answered no, the kidsí bikes hockey nets and roller blades. We have a shed in the back yard for the lawnmower and those types of iteMrs.

Mr. Okum wondered if there was any consideration to making the right side garage and the left side the family room along the length? Mrs. Audretch answered there are windows and a back garage door that everybody walks out so it would be better to go that way. Mr. Okum asked if there were other conversions of garages into family rooms that you are aware of and Mrs. Audretch said I donít know. There was somebody that did one but they brought their garage out a little bit more. Mrs. Boice wondered if they ever used the garage as a parking area and Mrs. Audretch answered no.

Mr. Squires moved to grant the variance and Mr. Schecker seconded the motion. Voting aye were Mr. Squires, Mr. Schecker, Mrs. Boice, Mr. Okum and Mr. Mitchell. Mrs. McNear abstained, and the variance was granted with five affirmative votes.


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F. Vineyard Community Church 1391 East Crescentville Road requests a 60-day extension of variance granted 8/15/96 to allow the placement of a temporary office trailer on their property. Said variance is requested from Section 153.046(A) "Temporary structures may be permitted..if such structures are deemed necessary for the construction of the dwelling and accessory buildings."

Ellen Mershon said I am here to thank you for considering our variance. we are requesting the extension; we are in the process of moving our offices to a new location called the Vineyard Resource Center located on East Century Boulevard. It is our goal to be in these offices by the 29th of July. However we have two variables; one will be the building inspections and the other is that there is no glitch with our office furniture manufacturer. Therefore we are requesting a 60 day extension to make sure we are in compliance and to assure a smooth transition.

Currently our information services is housed in the trailer on site. We have done improvements around there. We purchased five Colorado pines that surround the trailer trying to make it as unobtrusive as possible, and we would appreciate your consideration of a 60-day extension.

Mr. Mitchell said you indicated there might be a problem with t he furniture delivery. Will that be within the 60 days? Mrs. Mershon answered absolutely. We will have it no longer than 60 days, and I actually think we possibly could even do 30 days, but we want to make sure that we are in compliance. We are coming to you early and we are prepared for the worst. Mr. Mitchell responded so you think 60 days is enough, and Mrs. Mershon answered absolutely.

Mr. Okum asked if the trailer would be moved within a two or three day period after your move out of the offices? Mrs. Mershon answered yes. Mr. Okum continued and if you move and get a Certificate of Occupancy for your new building and it is less than 60 days, will the trailer be moved upon leaving the trailer? Mrs. Mershon answered yes, it is our intent to use the trailer just as long as necessary. The problem we have now is we have grown so rapidly; we have 92 people on staff who are all crammed into there. I would like to say yes and it is our hope we will be out of there before the 60 days. We just want to make sure that we have all our ducks in a row.

Mrs. McNear said originally when this came to the board I voted no so I will not be voting for an extension.

Mr. Okum moved to grant to extend the variance 60 days and that upon vacating, the trailer will be moved. Mr. Schecker seconded the motion. Voting aye were Mr. Okum, Mr. Schecker, Mr. Squires and Mr. Mitchell. Mrs. Boice and Mrs. McNear voted no, and the 60 day extension was granted with four affirmative and two negative votes.

B. James Squires, 150 Ruskin Drive requests variance to allow a privacy fence 30 feet from the property line. Said variance is requested from Section 153.038(B) "..shall be set back from the side street line not less than the required setback for the adjacent main building of the butt lot."

James Squires stated in light of my position on this board I will temporarily resign my seat and present my case. My lot is the corner lot of Ruskin and Mangrove, and the adjoining property is 11818 Mangrove. We have installed a privacy fence along the boundary line between those two properties.

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Mr. Squires continued the fence comes to the leading edge of 11818 Mangrove. The problem there is a setback requirement. These houses were built 30 years ago and at that time the setback requirement was 30 feet as best I can determine. Thirty years ago this would have been in compliance but current setback requirements are 35 feet. The fence is not to go any further towards Mangrove Lane than it is; I am just asking for a five foot variance in order for it to be where it is.

Mr. Okum wondered if he were replacing an existing fence at that same location and Mr. Squires indicated that he was.

Ramona DeMeyer of 11818 Mangrove Lane said my property adjoins the Squires. I have lived there for 28 years and 24 years of that there has been a fence there; there was a split rail fence before. Three years ago he put a privacy fence up 6í-5" tall. This year he put another privacy fence up. For 21 years there was a split rail fence. The one now is not exactly where the other one was; it is up toward the front of my house about a foot or more closer to my house than it was before.

Mrs. DeMeyer continued I really donít like the fact that when you have the butt end of the fence facing the other person, and they dig the hole for the fence all that clay is on my property. I went through this twice now. Three years ago I had landscaped the whole side and when they were done, all the big chunks of wood came over broke off and went way up to my house. It broke hundreds of dollars of my plants, and I had a rock path and there was clay all over it.

This time they dug the post holes so half of the hole was dug on my property and half on theirs. Then they would put the end of their pole against the string, but they made the hole bigger so I have I donít know how many inches of hole on my side. Then they put the concrete in. Iíve been sick for three weeks and when I came out there I was sick again that I had all this work to do again. I had finished my stone path last year and now it canít even be salvaged. Itís just a mess. I have thick clay around every one of the posts. I would think when you give somebody permission to put a fence up, you wouldnít let the person who doesnít have the fence have all the cleanup. Thank you for listening.

Mr. Mitchell said I believe your two points are that there is debris from the construction of the fence on your property, and potentially a portion of the fence is located on your property.

Mrs. DeMeyer responded when they put the posts in they made the holes two or three times bigger than the posts were so the clay is stacked up all the way around and with all that rain it is a real mess. When he put his split rail fence up years ago, there was no mess.

Mrs. Boice said I want to clarify that you have no objection to the fence itself? It is the fact that because of the installation you have some clean up on your side. Mrs. DeMeyer confirmed this.

Mr. Okum commented for the fence to be replaced within three or four years, the fence was somewhat deteriorated. Do you plant your plantings up against that fence? Mrs. DeMeyer answered three years ago they left the most terrible mess and nobody came to clean it up. I asked them several times to come over and clean it up. Therefore yes I did put plants near there but the first time those werenít the ones they broke. They broke plants all the way up to my house last time.

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Mr. Okum commented this time you said they did a much better job and your plants were not damaged. Do you utilize the fence as a border on your stone walkway? Mrs. DeMeyer answered no because there was no way I was going to leave that debris as it was last time. That is the reason why I planted my plants there to begin with, because it was such a mess. The walkway itself does not run against the fence.

Mr. Mitchell asked the applicant if he had any comments, and Mr. Squires said I take issue with some of the other comments, but they are somewhat irrelevant. The issue really is the variance.

Mr. Okum wondered if there was a variance when the fence was replaced three years ago and Mr. Squires indicated that there was not, adding that I really thought we were in compliance. I t was only when I measured it myself and saw the 30 foot setback that I called Gordon down to the site. It was on his recommendation that I requested this variance.

Mrs. McNear asked if he felt the contractor cleaned up the excess wood. Mr. Squires answered in my opinion yes. We took extreme precautions not to do any damage to the other side. Mrs. McNear asked if he had checked it once the fence was completed and Mr. Squires answered I have gone to the end and looked down there. There is a "No Trespassing" sign there so I canít go down there. Mrs. McNear asked if Mrs. DeMeyer had invited him to come and look at it and Mr. Squires indicated that she had not.

Mrs. DeMeyer stated I would have brought pictures of the area before and after; they are still in my camera. My son has a movie camera and took pictures of all the clay. There is a lot of work involved there. When they had the surveyor out, I had hired a surveyor and my surveyor called me two days before the fence went up. He was coming Wednesday and they put the fence up Monday and Tuesday so Wednesday was too late. As soon as the land was surveyed, my neighbors took it upon themselves to come on my property which I didnít think was right because I had flowers there that were stepped on, and my No Trespassing sign was taken down.

Mr. Mitchell asked the applicant if he had the property surveyed to verify that the fence was within his property. Mr. Squires confirmed that he did, adding that prior to that and the discussion of the plants and the statement about her own survey, for the record all of this work was done under the advice of an attorney. The attorney addressed a letter to Mrs. DeMeyer on April 28 1997 and in that letter she was informed that all items on the property belonging to Mr. and Mrs. Squires were to be removed. She had a 30-day notice to do that, and that 30-day notice was not completely adhered to. The day the fence was constructed was the date that the plants were to be removed. They were removed with great care by her own family.

Mr. Squires added the reason that the fence was replaced was because of the fact that there was a considerable error in its placement. The fence angled back towards our house a rather considerable amount. When I informed the neighbor that I was going to move the fence, I was told I couldnít do it, that it was her property, abandoned property. Rather than get into any discussion, I sought legal advice and the advice was that it was not abandoned property; it was ours and I was not only right to move the fence to it proper location but indeed I should do so.


Board of Zoning Appeals Meeting Minutes

17 June 1997

Page Twelve


Mr. Mitchell said letís stay focused on the issue at hand which is the fence. Mrs. DeMeyer noted earlier that she did not have any problem with the construction of the fence, so letís keep our comments in that area.

Mr. Okum wondered if the fence was held back from your property line and Mr. Squires indicated that the posts are about two inches from the property line. Mr. Okum said so the posts are two inches from the property line and the fence is mounted to your property side of the post which allows approximately five and one half inches. Mr. Squires commented it is closer to three to three and one half inches, and the fence is totally on our side. When it was installed we strung it on those markers and Mrs. DeMeyer and her family also inspected it.

Mr. Schecker moved to grant the variance and Mrs. McNear seconded the motion. Voting aye were Mr. Schecker, Mrs. McNear, Mr. Okum, Mrs. Boice and Mr. Mitchell. The variance was granted with five affirmative votes.


Mr. Okum said on the issue of the Tri-County Pontiac window signs, I had a problem with tabling this. The sign painted on the window depicts the 7th Anniversary celebration, and if we do not consider that issue this evening, our Building Department cannot take action on the sign. In 30 days the sale will be over, so I move to reconsider this issue. Mrs. Boice seconded the motion.

Mr. Mitchell commented I am not going to isolate this case and do it any differently from anyone else. I think we are taking the stance that the company didnít show up because they are maliciously figuring that in 30 days the sale will be over with. I donít think it is within our authority to make that assumption; that could be dangerous.

Mr. Squires said what is the alternative if this is brought up? If we do not take the vote and it is tabled, will Mr. Fondong be notified that if he doesnít show up at the next meeting then we have to drop it? Mrs. Boice commented that has been our standard procedure. Mr. Mitchell added at the same point of time, we denied a sign earlier this evening. Will the City go out tomorrow and cut down his sign and remove it - no. We are going to give due time for this man to take the necessary action to move and modify his sign. And if we are not going to do it to this individual, then why should we do this to Tri-county Pontiac? I think we have to be consistent here.

Mr. Schecker commented I would agree with you except for the fact that as I read Mr. McErlaneís letter it seems like they are going over and above what he indicated in his letter. He had given them the warning. Iíd like to hear what Mr. McErlane thinks about this.

Mr. McErlane stated my concern is when an applicant doesnít show up it buys him some time, and Iím sure that is what Mr. Okum is talking about. Mrs. Boice said his point is well taken but we are also setting a precedent because whenever someone has not been here, we have tabled. It does state very clearly in your letter that the sign must be removed on or before June 10 unless you come for a variance. Mrs. McNear added I think that is important because you say if you donít show up or notify us before the meeting, you forfeit, just like a baseball game.

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17 June 1997

Page Thirteen

VII - DISCUSSION - continued

Mrs. Boice commented maybe we need to add that to the letter; we have done that in Tax Review hearings. We request you be there, but if you donít show the board will make a decision whether you are there or not.

Mrs. McNear said we need to look beyond this 7th Anniversary Sale, because they will want to put additional painted window signs in there. They are getting one over on us this time but I think you have to swallow that and not create a new precedent. I think Dave has a perfect point on this; it is something we havenít looked at and need to correct now because every meeting since the law on window signs we have had at least one person in here about this type of sign.

Mrs. Boice added I would suggest that the letter state that a decision will be made whether you are here or not.

Mr. Okum commented I will bow to that considering the fact that if we do take action on it, it prohibits them from any window signage for six months. My feeling is by delaying this it gives them an opportunity but we have no other action. Youíve already given them notice that by June 10th it is supposed to be down and I drove by there today and it is still up. Mr. McErlane reported once they make application for a variance, all enforcement action stops until a decision is made. And when it is tabled, they have another month.

Mrs. McNear wondered if they should send this to Rules and Laws to look into for some other action that we can take? Mr. McErlane stated the tabling part of it is your procedure. You can act on a variance without representation. I think you have done this as a courtesy to the applicant. Mrs. McNear said so we can put that on the bottom of the application that should you fail to appear it is an automatic denial. Mr. McErlane responded I think you could say that the board would consider it without your representation. Mr. Schecker added perhaps the word may consider as opposed to absolutely would.

Mr. Okum said if they came in with a different number of square footage for window signage and it was defeated today are they prohibited from that application? Mr. McErlane reported they are prohibited from any window signage except for what falls in the perameters of temporary signs. Mr. Okum said so if we vote on this issue and denied it and they came in with a different number of square footage, would that be a new consideration? Mr. McErlane indicated that it would be. Mr. Okum continued so by acting on it this evening we would not prohibit them for the six months. Mrs. McNear said then that changes it, because if they can reapply in a couple of weeks for one square foot difference and itís a whole new game, I think we should act on it tonight.

Mr. Mitchell said I think there is a bigger issue here than just painting window signs because they can change these painted window signs every week. Who is controlling that? I think that is something this board canít deal with. Mrs. McNear commented maybe we need a newsletter to the businesses reinforcing the fact that this is our rule; if you deviate you must come in. Mr. McErlane responded it doesnít do any good; I had a mass mailing when the temporary sign ordinance went into effect to close to 200 businesses.

Mr. McErlane stated there may be another way to approach it, from a building code standpoint of not obtaining a permit for the sign prior to putting it up. That would be more of a case than just saying you donít comply with the Zoning Code. We can possibly cite them for installing the sign without obtaining a permit.

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17 June 1997

Page Fourteen

IX - DISCUSSION - continued

Mr. Okum said we did not have the situation with the temporary window signs until recently. These signs puts us in a position where we literally could have every month Tri-County Pontiac back with another application or another request for variance and a stay on Mr. McErlaneís order because they have the right to appeal to the Board of Zoning Appeals. He loses strength unless he uses the power of not having a permit to put the sign up and removing it.

Mr. Mitchell said if we vote to deny Tri-County Pontiac, tomorrow you could go out and remove the signs? Mr. McErlane indicated no, we would give them in this case a short period, a week at the most, to remove it. If it is not removed, we wouldnít physically remove it; we would cite them to Mayorís Court. Let me point out that the six month period is actually a part of the Boardís Rules and what it states is that the Board need not reconsider the same appeal if resubmitted within six months after the date of the decision unless the underlying conditions have substantially changed. The appeal is still for overage of signage for a window sign and even if the message changes, I donít have a problem with saying that is the same appeal.

Mr. Okum wondered if this means that if we table you could still by act of your office order that sign removed? Mr. McErlane answered no, not at this point.

Mr. Schecker said so if we were to deny the request tonight, it would in fact be interpreted that they would not be able to apply for other window signs for another six months?

Mr. McErlane confirmed this, adding they currently are several hundred square feet over their allowable signage for the site. Mr. Okum asked if they were informed of being over prior to their painting the sign and Mr. McErlane said no. There is a summary of what happened. They filed for a permit on the 21st and were told it wouldnít be reviewed until the 27th at the earliest because I was out of town. On the 28th or 29th before anyone even told them they had a problem they painted it. By the time Mr. Lohbeck had stopped by, it was almost complete.

On the motion to reconsider, Mr. Okum, Mr. Squires, Mrs. Boice Mrs. McNear and Mr. Mitchell voted aye and Mr. Schecker voted no.

Mr. Okum moved to bring the item from the table to the floor and Mr. Squires seconded the motion. Voting aye were Mr. Okum, Mr. Squires, Mrs. Boice, Mr. Schecker, Mrs. McNear and Mr. Mitchell.

Mr. Okum said what if we give the applicant 14 days from this date to remove their sign and grant the variance for 14 days. Mr. Schecker commented I think weíve been had, and it would be nice to get a message to him that they have gotten away with one but donít look for that to happen again. Mr. Mitchell added I think we should get him before us and let us deal with the situation. I think we have to professionally deal with this; we canít let anger control us here.

Mrs. Boice said can we just leave this on the table? Mr. Mitchell said we would need a motion to put it back on the table. Mrs. McNear moved to table. Mr. Okum suggested dropping it from the agenda; would Building Department have power to act on this? Mr. Mitchell said we have to be consistent; youíre not being consistent. Mrs. Boice commented we dropped Hauck from the agenda and they had to reapply. Mr. McErlane stated in Hauckís case they werenít in an existing violation.



Board of Zoning Appeals Meeting Minutes

17 June 1997

Page Fifteen

IX DISCUSSION - continued

Mrs. Boice said our standard is table and if they donít come the next time drop from the agenda and they must reapply. We have set that pattern and if we vary from that we could be attacked. In dealing with these signs, maybe the letter that goes out needs to state that your attendance to present your case is important but whether you are present or not the Review Board will make a decision. Mr. McErlane added I think in this case we probably should say may. If it is a situation where you think it is reasonable to table you can, but if it is an existing violation, personally I would rather see you act on it and then we the Building Department can act based on that. Mrs. Boice commented they will wash the sign off and drop it; theyíre not going to come back in.

Mrs. McNear commented I think we should err on the side of conservatism because we havenít had this situation before. We have to be consistent, so however we apply our rules tonight, we Ďwill have to do throughout. I have a motion on the floor to table. Mr. Squires seconded the motion. Voting aye were Mrs. McNear, Mr. Squires, Mrs. Boice, Mr. Okum, Mr. Schecker and Mr. Mitchell. ltem was tabled.

Mrs. Boice said we had an item on our April agenda on a satellite dish that was tabled and it was not on the agenda. Ms. Dodd chose a small satellite dish that does not need a variance.

Mrs. McNear said the tanning place on Northland Boulevard has done some alterations to their sign and painted out part of the window; are they in compliance now? Mr. McErlane reported that they are. What they represented to the Board of Zoning Appeals as far as their frontage and the size of the wall sign was inaccurate. Their wall sign is considerably smaller than what they said it was initially.

Mrs. Boice said on the letter to the applicant, the way that sentence can read is "The Board of Zoning Appeals prefers that you have a representative in attendance but in the event that you do not see fit to do this, the Board may make a decision. Mr. Mitchell suggested running this by legal counsel. Mr. McErlane stated in most of the appeal boards that I am familiar with, most of them say you canít table it; you can continue because typically it is a public hearing. They would only table it if the applicant asked for it. Otherwise they make a decision on the request whether you are there or not. Mrs. Boice commented I think we need to draw a line on these signs, and I think this is the way we have to handle it.


Mr. Schecker moved to adjourn and Mrs. Boice seconded the motion. By voice vote all present voted aye, and Board of Zoning Appeals adjourned at 9:00 p.m.

Respectfully submitted,



______________________,1997 ___________________________

William Mitchell, Chairman



______________________,1997 __________________________

Kathy McNear, Acting Secretary