BOARD OF ZONING APPEALS MEETING MINUTES

18 JUNE 1996

7:30 P.M.

 

I. CALL MEETING TO ORDER

The meeting was called to order at 7:32 p.m. by Chairman Barry Tiffany.

II. ROLL CALL

Members Present: William Mitchell, Chairman Tiffany, Councilwomen

Marge Boice and Kathy McNear, Thomas Schecker,

James Squires and Barbara Ewing

III. MINUTES OF REGULAR MEETING OF 21 MAY 1996

Mrs. Boice moved for adoption and Mrs. McNear seconded the motion. By

voice vote, all voted aye, and the Minutes were adopted unanimously.

IV. CORRESPONDENCE

A. 5/20/96 Thank You Letter from Janine Frank, CB Commercial re

temporary variance granted by BZA to allow the placement of three trailers on the east side of Executive Plaza II

B. 6/11 Letter to Mrs. Karen Kidd, 11493 Bernhart Ct. re Land Coverage

C. Zoning Bulletin Volume 44, No. 6 - June 1996

D. Planning Commission Meeting Minutes - 14 May 1996

V. REPORTS

A. Report on Council Activities - Marge Boice

Mrs. Boice stated the last meeting only lasted one hour and 10 minutes; Mr. Danbury was out of town and I chaired the meeting, so I assume that it why it went so rapidly. Tomorrow evening we do have an agenda that will go on a while because we are reviewing the 1997 budget. Any of you interested in where your tax dollar is going might want to come and sit in on our work session.

B. Report on Planning Commission - Barry Tiffany

Mr. Tiffany reported a couple of items that came up were Wal-Mart and Home Quarters Warehouse. Wal-Mart has been using the front of their store to merchandise, and it was merchandised to the point that if you were handicapped and tried to use the handicapped space, there was no sidewalk for you to use. You had to go back out into traffic. We told them to take that out and do away with it. We had a lot of concerns with Home Quarters also. I am bringing this up because we may see some appeals on some of these in the future. Those are both in PUD so that wonít affect this board, but Home Quarters is using the front of their building for merchandising, loading and unloading and the back of the building the same thing. We made some recommendations to them also. Before I spoke to you about the telecommunications towers and how they were all coming in, and we did send a proposal for new legislation to Council. I think the staff did a wonderful job in quickly preparing that, and came up with a good package for the City.

 

Board of Zoning Appeals Meeting Minutes

18 June 1996

Page Two

VI. OLD BUSINESS

A. William Swingle, 893 Yorkhaven Road requests variance to allow the construction of a 4í x 8í storage building against the house. Variance is requested from Section 153.025(C) "..shall be located not less than 5 feet from the main building.." (tabled 5/21/96)

Mr. Swingle said I want to construct a 4í x 8í storage building in back of my house to store swimming pool equipment. The only place I have to build it is at the back of the house; my yard is used up.

Mr. Tiffany showed a slide of the property. Mr. Swingle added I plan on building between the windows on this end and the bay window. In the wintertime, I have to store diving board, and yard equipment, and in the summertime I have to store other items.

Mr. Squires said you said there is not enough room to put it in your yard and stay within the five feet. Mr. Swingle confirmed this, adding that on the left side of the house, I have a 10 foot easement, and a 10 foot easement across the back of my house, and I have an 18í x 36í in ground pool in the back yard. There is not much room left over.

Mr. Squires asked if he had any plans to open a door from inside the home to that 4í x 8í shed? Mr. Swingle answered no, adding that it is strictly for pool equipment and lawn chairs, etc. Mr. Squires asked where the entrance to the shed would be; to the pool side? Mr. Swingle indicated that it was.

Mrs. Boice commented I see you have a 4í x 8í shed; you have no intention of going any larger than that? Mr. Swingle said no.

Mrs. McNear wondered if he would be storing any pool chemicals in that shed and Mr. Swingle stated that he would not be, adding that he keeps those in the garage.

Mr. Squires asked if there would be any hazardous materials such as gasoline stored in there, and Mr. Swingle stated that there would not be., adding that all he needs it for is pool equipment, chair cushions, solar blanket, diving board, etc.

Mr. Squires wondered if there would be ventilation for the shed. Mr. Swingle reported he probably will have screening of some sort. Mr. Squires continued the only reason I am bringing this up is it is adjacent to your house, and I would be very concerned about any spontaneous type combustion in there.

Mr. Tiffany asked if it would be similar in construction materials as your house in terms of siding, and Mr. Swingle answered no, I was planning on putting some kind of composition board on it and paint it the same color as the house. It probably wonít be seen by anybody. There is a six foot fence around the whole back side of the property, and many trees are in the back and on the side.

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

 

Board of Zoning Appeals Meeting Minutes

18 June 1996

Page Three

VI OLD BUSINESS - continued

B. Karen M. Kidd, 11493 Bernhart Court requests variance to allow extension of driveway into back yard. Said variance is requested from Section 153.038(E) "Driveways shall be permitted in any yard that is not less than 10 feet wide." - tabled 5/21/96

Charles Bartlett, Attorney for Mrs. Kidd approached the Board, adding I am in receipt of a recent memorandum dated June 4, 1996 by Building Inspector Gordon King.

Mr. Tiffany reported that since our last meeting, I had some discussion with Mr. King regarding the conversation he had with Mrs. Kiddís uncle, Mr. Henderson. It was my understanding in talking with Mr. King that he did tell them they were permitted to put the driveway along that side of the house. There is an obscure part of our Code that is not in driveways but is in fences that relates to the 10 foot requirement. Mr. King was not aware of it and he had given permission. After talking with Mr. King, I did discuss this with our law director, and he felt permission was pretty much granted by the City through Mr. King, and that it was in our best interest to grant the variance to that effect.

There is one thing we do need to talk about. Mr. McErlane had sent out a memo to you also, and our concern now is with the 35% lot usage for structures. Concrete is considered a structure because it is impervious to water. You should be aware of that, because if it is going to prohibit what you are planning to do in the back, and thatís the reason for the driveway, we wouldnít want you to go any further. To protect your interests, we want you to be aware of all the rules from this point on.

Mr. Bartlett reported that he had spoken to the gentleman you had referred to and I told him on behalf of Mrs. Kidd that we want to work closely with him to make sure that awe either stay within the 35% or that the necessary application for a variance with the appropriate showing of the necessity for that variance is applied for. Hopefully we will stay within the 35%. Mr. Tiffany commented that is key; that is very important. Mr. Henderson added I do not think so; the whole thing, the rocks and the driveway too all of it; I am saying that there was no 35% explained to either one of us.

Mr. Tiffany responded because you did not have a plan in writing, he had suggested that permits would be necessary for the garage in the back and that you needed to bring in a plan with the scope of everything you were discussing. Mr. Henderson said no, he said that I could put all the cement in, and then bring in the plans for the building itself. Mr. Tiffany responded that is not my understanding. As he stated, there were a lot of different things discussed. Mr. Bartlett added Mrs. Kidd is perfectly willing to work with this department. Mr. Tiffany stated it doesnít appear that there should be a big problem with some of the plans that we have seen, but we wanted to make you aware of it so there wouldnít be a problem in the future.

Mr. Tiffany continued also with the driveway going down the side, I understand that there are some trees that border the driveway on the neighborís property. Those can be trimmed on your side, but not to the extent where it damages the tree or would cause harm to the tree. Mr. Henderson commented I asked the lady next door if I could trim the side, and when she wrote the letter last month, she said I said cut her tree down. The reason I havenít trimmed it is because she said donít trim my side.

Board of Zoning Appeals Meeting Minutes

18 June 1996

Page Four

VI B KAREN KIDD, 11493 BERNHART COURT DRIVEWAY EXTENSION-cont.

Mrs. Boice said originally we were dealing with the driveway, and from what I am understanding it is your wish to build a two-car garage. What is the present garage used for? Mrs. Kidd answered I want to make the present garage into living space and extend my kitchen. Mrs. Boice wondered if she knew that requires a variance. Mrs. Kidd answered she did not know that, and Mr. King told her that she did not need one. Mr. Tiffany added as long as she has the garage in the back. Mrs. Boice wondered if the garage was being used now for living space and Mrs. Kidd answered that it was not. Mr. Tiffany stated the requirement would be to put the garage up in place of it, and in order to put the garage in the back, she would have to convert to living space, so the two are tied together. As you said, if she were to convert the garage without another garage, she would need the variance, but if she converts it to living space and puts the garage in the back, she doesnít need it. She canít do one without the other, either way and in essence she canít keep the garage and put an additional garage on the back.

Mrs. Boice said getting to the 35%; I assume you will be working closely with the Building Department. She asked Mr. Tiffany to explain again the recommendation of our attorney.

Mr. Tiffany stated that his recommendation was to grant the variance because of the conversation, that it was basically approved by the building official; they were told it was not a problem, and Gordon believed it was not a problem at the time. He was not aware of that obscure part of our Code where this section dealing with the setback for the driveway falls under fences and not driveways. That is one of the reasons that we are looking to spend the money to update the Code. Mrs. Boice commented it is rare that I go against an attorneyís recommendation, but I am really having some difficulty with this one. Mr. Tiffany added his feeling was that it would be very difficult to defend.

Mrs. Boice wondered if there had been any thought given to any type of privacy fencing. Mr. Tiffany commented I donít know if there is any space for it down the side. Mr. Bartlett added plus it is their front yard, and that might be a zoning problem. Mr. Tiffany said as I understand it, he did get a truck through on the side there, but he had to take the mirror off to get through there, so it will be very tight. Mr. Bartlett added putting the driveway alongside the house is permitted; it is a matter of the area, so if there had been 10 feet or seven feet, there still would be a driveway three and a privacy fence would not resolve that, and there are no requirements for a privacy fence. It is my understanding that you could put the driveway right up against the property line, even if it were 10 feet.

Mr. Squires commented you mentioned trees earlier, and at 11489, adjacent to that property, there is a very large honeysuckle bush. I explained to the gentleman that he certainly is allowed to cut that on the part that is hanging over the chain link fence there. There is a privacy fence a little further back from that honeysuckle bush. We are just talking an awful lot of concrete on that property. I was fortunate that I was invited there today to really walk all over the place. The legal staff of the City is just gong to have to be our guide on this I think. I donít know what else to do here. The driveway does go right up to the property line of 11489. There is no question about it; it goes right to it.

Mr. Bartlett said there is a large portion of that concrete will be under roof, and if we work with the Building Department on the 35%, hopefully we will be staying within that percentage.

Board of Zoning Appeals Meeting Minutes

18 June 1996

Page Five

VI B KAREN KIDD 11493 BERNHART COURT DRIVEWAY EXTENSION-cont.

Mr. Squires commented I didnít do a lot of measuring, but it is my general impression, and I told Mr. Henderson, that with scaled drawings brought to this committee and with some really hard work, they might be able to get within that 35%. I have a positive feeling that we could do that and reconcile this matter. Are you talking about removing part of the stone patio you made? Mr. Henderson said yes, and put one part of the garage up there and come to 24 feet behind the property which is one foot away from the line another below. We can go straight through with the cement and we can come all the way up to the line. Mr. Squires said as you are looking at that picture, the left part of the ribbon of that driveway is the property line of 11489, or within six inches of it; it is that close. You can look further back, and you can see the honeysuckle bush; as you drive back there, you definitely will have to trim it. Itís tight.

Mr. Schecker said I was on vacation at the last meeting, but initially the intent seems to have been to run that driveway all the way back. Do we have anything to look at in terms of firm plans about where the driveway will stop? Mr. Henderson reported that the driveway will be all the way back. It will only come to 24 feet behind the house and it will be about 27 feet or 20 feet away from their property. Mr. Schecker wondered if he would be turning into the proposed garage before he got to their house. Mr. Henderson indicated that he would, adding that there is plenty of room; both of us can do it with the truck and she can do it with the car, that is no problem. There will be no driveway past their house.

Mr. Squires commented that there is adequate room for him to turn there and there also is a fence back there. Mr. Henderson commented that will have to come down. Mr. Squires added he has adequate radius for a turn there.

Mrs. Boice asked how close the garage would be to their house and Mr. Henderson answered it will connect to the top of the house, but it will be four feet away from the house. Mr. Bartlett added that will be a matter for the permit issuance.

Mr. Mitchell said the issue before us tonight is to grant the variance for the driveway going to the back yard. They will have to apply for the permit for the garage prior to building it, and they also will have to apply for a permit to show that the landscaping in the back yard will not cover over 35%. Mr. McErlane said it is not so much landscaping as it is pavement. Mr. Mitchell continued at that point of time, if they would choose to go over the 35%, that is when that issue would come back before this board, but at this point of time, the only issue before us is to grant a variance for the driveway to the back yard. I donít think we need to discuss this too much longer. They need to get a scaled drawing, which this isnít, to show the true measurements of what they are planning to do.

Mr. Bartlett commented that is to our benefit also, because we do not want to build it without getting a variance and be faced with a situation that is more difficult to deal with.

Mr. Tiffany stated I think you need to look at your overall plan to see if that is going to fit with it before you go any further with the driveway. I would hate to see you put anything else back there before you figure it all out. I know you have a lot of money and he has a lot of time involved in this.

Board of Zoning Appeals Meeting Minutes

18 June 1996

Page Six

VI B KAREN KIDD, 11493 BERNHART COURT-DRIVEWAY EXTENSION-cont.

Mr. Tiffany continued I also would like you to consider one item that has not come up, and it is not an issue for this Board. I am only offering this as advice - and that is the salability of the house. I understand you can get the truck back there and she can get the car, but there are a lot of people that wonít want to try to get back through there, in and out every day. That is something I think you should consider also.

Mr. Tiffany stated I know your neighbors are here this evening. Would any of you like to speak about this?

Don and Becky Hacker, the next door neighbors and Barbara Larkins of 11485 Bernhart approached the Board. Mrs. Larkins said my front door faces their back door.

Mr. Hacker said on the bushes, we left them grow so we could not see the mess in the back yard. I do not want to walk out and see that in my back yard. As far as the driveway goes, I want to know if it was ever surveyed. Who knows that it is seven feet; who is to say where the line is? Mrs. Hacker added Walter has already told me that he went over onto our property by two inches. Mr. Hacker said how do you know two inches from a foot if it was never surveyed? Before I started this, donít you get a survey on where the property line is?

Mr. Tiffany responded that is up to the homeowner. Unfortunately, there is no permit required for the driveway so it would be to your discretion to call him on it. That would fall back to the other homeowner to say wait a minute, you are on my property, and ask for a copy of the survey.. Mr. Hacker wondered if it would be at his expense. Mrs. Hacker added surely we donít have to incur the expense for the survey when we are drug into this unwillingly. Mr. Hacker added basically by your mistake we are drug into this.

Mr. Tiffany commented they could put concrete down anyhow; that is the key to this whole thing. Mr. Hacker he understood that it was okay to do it, when it is not okay to do it. Mr. Tiffany responded he still could do it; he just couldnít use it as a driveway. Mrs. Hacker added our problem is exactly where is the property line. Mr. Tiffany said I would ask your neighbor for a copy of the survey. Mrs. Hacker asked Mr. Henderson for the copy of the survey, and Mr. Henderson stated that they do not have one.

Mr. Tiffany said I donít know that the City has any liability in this case. This is a civil matter between two property owners. Mr. McErlane added it is no different than placing a fence on what you think is the property line, and there is a dispute between two neighbors on where the property line exists.

Mrs. Boice wondered if they donít have any of the metal stakes on your property showing the property line? Mr. Henderson stated that they do not have them. Mr. Tiffany wondered if there would be underground stakes, and Mr. McErlane stated not necessarily. Initially when a subdivision is platted, it has pins in the corners of the subdivision itself, not in each of the lots. There were probably stakes put there when they built the lots, but there probably are no pins left. Mrs. Larkins said I built my house, and there are metal stakes, but they are down in the ground; you donít know where they are. Mr. Hacker said letís say we are six inches off, and suddenly we have a driveway that is six and one-half feet, and he is on my property driving to the back.

Board of Zoning Appeals Meeting Minutes

18 June 1996

Page Seven

VI B KAREN KIDD 11493 BERNHART COURT DRIVEWAY EXTENSION-cont.

Mr. Tiffany said thatís not permissible, but again, that is a civil matter. Mr. Hacker responded doesnít it relate back to you for giving them permission to do it? Mr. Tiffany answered we are not giving him permission to drive on your property. Mr. Hacker said you just gave him permission to pour concrete on my property. Mr. Tiffany said we are allowing him to pour to the property line. Mr. Hacker said what if he is beyond the property line, and Mr. Tiffany answered then you have a civil case against him. Mr. Mitchell added that is something you would have to verify. If he did not do a survey and you feel he is on your property, it is up to you to do the survey. Mr. Hacker said if you were going to pour a driveway in your back yard, wouldnít you get a survey before you started if you were on a seven foot tight area? Mr. Tiffany said what we have is an actuality, and if I were you, I would ask him to provide you with a survey; this is his project. Mr. Hacker asked who the building inspector was who gave him permission to do it. Mr. Tiffany responded you donít have to have a permit to pour concrete, and you can pour concrete up to your property line. Mr. Squires commented if there is a dispute between two people, that is why we have courts. Mr. Hacker said it is not a dispute. Mr. Squires continued if you think he is on your line, and if you think he is over there, you have the right as a citizen to challenge that and be the plaintiff. Mrs. Hacker said if and when he does pour the driveway, is he allowed to park his truck or car on the side of the house? Mr. Squires said as long as the surface is an improved surface, he can. He canít park it on an unimproved surface. Mr. Tiffany added we have lots of driveways on the sides of homes in Springdale where people park. Mrs. Boice said unfortunately he can park there as it is now. Do you have reason to believe that it may be on part of your property? Mr. Hacker said who knows? You start talking about a seven foot area. Mr. Mitchell asked if he had measured and Mr. Hacker answered I donít know what to measure off of.

Mrs. Hacker said can I request that he not trim the bushes, that I do it myself? His idea of trimming and mine are totally different. Mr. Tiffany answered I donít know that you can. It is his right; the property line goes from the ground straight up. He is not permitted to cause damage to the bush and cause it to die. We explained that to him and I think he understands that. I think if you are concerned about your property line, you should ask for a survey. Mr. Hacker responded letís say it is six and one-half feet. I can stop the whole deal. Mr. Tiffany said absolutely; he is on your property.

Mrs. Larkins said if this is approved, this is the view out my front door and several of my friends have commented on it since it has been going on for so long. Could I ask that a very privacy fence be installed professionally just at the side from the edge of the back of their house for as far as the Hackers would like it to be. Mr. Tiffany responded if he has the concrete to the property line, there is no space for a fence. If you can work it out where he is putting it on the Hackersí property, and that is something you may want to talk to him about. Mr. Hacker said the problem is that since the last meeting, he doesnít want to talk to us. Mrs. Hacker added all of a sudden we are the bad guys, the reason that he is not able to have this concrete. Mr. Tiffany said I think they heard things here last time that concerned them, not so much with you, but with the City, because he had been told something by a representative of the City and told another thing later on; I think that may be where that came from. You all have to live there for some time, and hopefully you can regain the communication and work things out to your satisfaction.

 

Board of Zoning Appeals Meeting Minutes

18 June 1996

Page Eight

VI B KAREN KIDD 11493 BERNHART COURT DRIVEWAY EXTENSION-cont.

Mrs. Larkins asked if there was ever a piece of paper initiated from the building inspector telling him that he could do this? Mr. Tiffany said no they had verbal communication. Mrs. Larkins wondered if there could have been a misunderstanding, and Mr. Tiffany responded that was our concern, and in talking with Mr. King, it was very clear as to what they were asking for at the time and what the conversation was.

Mrs. Boice said all I can say is if you feel there is that possibility, in fairness to yourself and to the Kidds, I think you need to pursue that by getting a surveyor. Mr. Hacker responded there is no way he can get it six inches or four inches or whatever. There is no way you can get it back otherwise. Mrs. Hacker added he scrapes his house when he pulls back. I hear him. Mr. Tiffany said that is why I think it is in your best interests to ask for the survey because if that is the case, then it is not a usable driveway for them and it would not be logical for them to proceed with the entire rest of the project. Mr. Hacker said it is out of your hands now. Mr. Tiffany said yes, basically. The property line dispute would be between the two of you.

Mrs. Larkins asked if there were any way that this could be postponed until the survey is made. It could be a matter of days. Mr. Tiffany responded it would be a month until our next meeting. Mr. Mitchell added this is the second postponement. Mrs. Boice said couldnít we make a decision based on the report of the survey? Mr. Tiffany answered I think the essence of Mr. Hendersonís discussion with Mr. King regarding this was that they could put a driveway on the side of the house. There was no discussion on setback requirements at that time. Even if it is at six and one-half feet, because of his commitment to them, they still could put a driveway across the side of the house. The difference at that point would be that it would not be a usable driveway for the Kidds and not to their advantage to put it in. It still eliminates water across the side of the house for them, and it could be a nice walkway. I think you are poured to the front corner of the house with the other ribbon; to fill that back in with grass, you would have a walkway across the side with a ribbon driveway out front for an extra vehicle. I donít see it as a total loss as to what they have done so far, with the exception of the money they have committed to the back with putting the gravel in for the future improvements. I donít see that the City has a responsibility in that regard.

Mr. Bartlett stated it also is my understanding that this was built both on the basis of a survey pin at the back of the property, and a privacy fence that belongs to the Hackers. I donít know if they had a survey done when they built their privacy fence. Mrs. Hacker stated we just put a new fence up. Mr. Bartlett wondered if they had a survey done when they put their new fence up. I think that is the same situation that we have here. Mrs. Hacker added we moved the fence in closer to our side when we put the new one up. Mr. Tiffany said I donít think that is an issue for this Board. That is an issue for the two parties to work out. Mrs. Hacker asked if the ribbon driveway were permitted in Springdale and Mr. Tiffany indicated that it is.

Mr.Squires commented Mrs. Larkins asked about a temporary solution to this. I donít think this Board is in a position to offer a temporary injunction type thing on this. I donít think we can do that. In essence, our task is to vote on the variance, and that concerns the driveway. We have had a lot of discussion in and about that, but that is where we have to focus at this point of time.

Baord ofZoning Appeals Meeting Minutes

18 June 1996

Page Nine

VI B KAREN KIDD 11493 BERNHART COURT DRIVEWAY EXTENSION-cont.

Mr. Tiffany stated it comes down to a commitment from the city official that they could put a driveway on the side of the house and no size requirements were discussed. Anything other than that would be an issue for the two parties to work out.

Mrs. Boice asked how they could vote on it if they were not clear on the property line at this point? Mr. Mitchell said you vote that it is within the property line. You wouldnít vote for it to be over the property line. Mr. Tiffany added that is an easement issue, a legal issue that they will have to settle. Mr. McErlane added this board would not have any legal right to say that a property owner can encroach on anyone elseís property anyway. Because you are giving permission, does not give them permission to be on someone elseís property.

Mr. Mitchell moved to grant the variance and Mr. Schecker seconded the motion.

Mrs. McNear said we have spent quite a bit of time on this over the last several meetings, and I think we are in a terrible quandary with it. Our legal counsel advises us to vote for this, and I personally have a big problem with this. In my opinion, in a situation like this where it is going to impede somebody elseís enjoyment of their property, we should say letís stick with the ordinances as they stand and not allow a variance. Obviously I have to vote yes for this because our legal counsel has told us this is the way we must go, but I will be voting aye under protest.

Mrs. Boice said I am not voting aye under protest. It will be a first time for me that I havenít taken legal advice but I have seen other issues before this Board where there were serious questions raised just as they were tonight and we waited until those issues were resolved and looked at it then. On the basis of that, I will be voting no.

Mr. Tiffany said the issue is whether or not they can have a driveway on the side of the house because it does not meet 10 feet. That is the only issue and Mr. King made a commitment to them that they could, and they started their work and put time and money in it which creates a commitment from the city, and a resulting hardship for the applicant. Personally I am not thrilled about this whole thing, but under what we are

voting on, we have hit it as hard as we can and the other issues need to be resolved between the two parties and, if those are resolved between the Kidds and the City for further construction in the back We have a lot of contingencies here on your part as to whether or not this will progress in your best interest and be a logical move; a lot of things have to be worked out.

Voting aye were Mr. Mitchell Mr. Schecker, Mr. Squires, Mr. McNear, Mrs. Ewing and Mr. Tiffany. Mrs. Boice voted no, and the variance was granted with six affirmative and one negative vote.

VII. NEW BUSINESS

A. Lloyd & Kathy McKinney, 12182 Benadir Road requests variance to allow them to park their travel trailer on improved extension. Said variance is requested from Section 153.044(C)(2) "but not closer than 5 fet to the nearest lot line or any right of way line" and (2)(b) "..must still leave two additional spaces on the existing driveway, or maintain the entire original driveway space if there originally existed less than two such spaces. Each such space shall not be less than 9 feet x 20 feet".

Board of Zoning Appeals Meeting Minutes

18 June 1996

Page 10

VII A LLOYD & KATHY MCKINNEY 12182 BENADIR PARK TRAVEL TRAILER-cont

Mr. Tiffany looking at the slide of their home, said I donít see a trailer there, and Mrs. McKinney said we had a request to remove it and we did, but we would like permission to have our trailer on our property. We had a pad improved and with our lot measurements, I donít think there is anyway in the world we can keep our trailer five feet away from the property line.

Mr. Mitchell commented I was there today, and I see that the trailer is back. Mrs. McKinney said yes, we are getting ready to leave on vacation. Mr. McKinney stated we have 72 hours per month that we can park it on our property. It is pretty hard to pick up the trailer, bring it home, load it and have it back out even with 72 hours per month, because we go camping at least three times a month.

Mrs. McKinney added it is very expensive to store, and we do not have access to it. I understand your concerns, and we talked to all neighbors to see if there were any problems. We even went on Ledro to see if there was a problem with our parking or safety concerns or not looking nice in the neighborhood. We do store it in the wintertime, and we need permission from April to the end of October when we camp.

Mrs. Boice commented my concern is that a variance goes with the property. Granted your neighbors there now have stated to you that they have no objection to it, but, if they sell their property someone else could move in who may have a problem with it. I am aware of the problem with the RVs and campers, and in all sincerity I would be uptight if I had this next door to me. I really have a great problem with these, and I have to be honest with you. Itís okay with these present neighbors, but that has to be looked at and I have to weigh that in my consideration.

Mrs. McKinney stated we have been here 17 years, and we have had a camper each year. The only thing we ever received was a question about parking it in the grass by the driveway, and that is when we had the pad installed, in 1987. Mr. McKinney that was right to the guideline; at the time, I didnít know I could pour the pad to the edge of my property line.

Mr. Squires said that was the question I had; I looked at it today, and that guideline is your property line, so you have some room to go that direction. Mr. Tiffany asked about an easement on their property, and Mr. McErlane reported that there is likely a small easement that runs back from the public right of way. They normally are about five feet wide, so it could be two and one-half feet on each side of the guidewire. Mr. Squires commented I noticed today that the leading edge of the trailer was right up to the sidewalk. Mr. McKinney stated I can go back two feet; the only reason I didnít today was because I didnít have anybody to guide me.

Mr. Squires wondered if it were a hazard to children riding bicycles on the sidewalk, and Mrs. McKinney answered that there is no problem with that. Mr. Squires continued my purpose in asking that question was to see if you were aware that it could be a problem.

Mr. Tiffany commented we have seen a few of these come in over the last several years and I think the City has taken a very good stance on it. I personally would hate to see us set a precedent regarding this issue. I know we look at everything on a case by case basis, but precedent is something to be considered.

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18 June 1996

Page Eleven

VII A LLOYD & KATHY MCKINNEY 12182 BENADIR RD. PARK TRAVEL TRAILER

Mrs. McNear stated I think you make a very good point about the precedent. I will move to grant the variance as requested. Mr. Mitchell seconded the motion.

Voting aye was Mr. Schecker. Voting no were Mrs. McNear, Mr. Mitchell, Mr. Squires, Mrs. Boice, Mrs. Ewing and Mr. Tiffany. Variance was denied with one affirmative and six negative votes.

Mr. Tiffany stated your request has been denied, and you will be required to keep it off the property. Mrs. McKinney wondered if there is a way to extend our 72 hours per month to load and unload, and how would I get that time? Mr. McErlane reported they are allowed 72 hours per calendar month. Mrs. Boice said I am sure there are times you need an extra eight to 10 hours. I would contact the City and explain the situation and ask for an extra number of hours. Mr. McErlane stated if you are talking about a one time or very seldom occasion extending beyond the 72 hours, we could probably work with that. Are you saying weekly you are about 72 hours? Mrs. McKinnney answered no. If we go out three times a month, the trailer will be there more than 72 hours. I donít want to do that against the law, but I must be honest with you. Mr. McErlane said so you are looking at 90 to 100 hours a month then instead of 72 hours. Mr. Tiffany commented I think as long as you are not storing it there, it will not be an issue. Mr. McErlane added when you have situations like that, you can call the Building Department.

B. George and Barbara Ware, 681 Yorkhaven Road requests variance to

allow them to screen in and put a roof on their existing deck. Said variance is requested from Section 1 53.023(D)(4)(c) "Rear yards must be at least 40 feet deep."

Mr. Tiffany stated Mr. Mitchell has informed me that he will be abstaining from this conversation.

Mr. Ware reported we have a deck on the rear of our house, and in order to get the maximum utilization out of it, we would like to put a roof on it and enclose it, but we need a variance to do this.

Mr. Squires stated the setback is 40 feet and it is 34 feet here, so it would be a six foot difference.

Tony Hamilton, the contractor for the project, reported it is six feet if the fence that faces the deck is the original property line; I donít know. I went by the fence that is there. Mr. Squires asked what was on the other side of the fence and Mr. Hamilton answered somebodyís home, and Mr. Squires said Iím sure itís the property line then.

Mrs. Boice wondered if they are intending to use it all year round or just summer screening? Mr. Hamilton answered it is just for summer. Mrs. Boice continued the six feet does not bother me. I have an addition right behind me that is a family room/bedroom and it is a lovely addition. I have a deck extending out also, and I do not feel any crowding from my neighbors so I donít have a problem with this. The deck is already there and it is just a matter of enclosing it.

Mr. Squires added I would agree with that and I would like to point out and reiterate that precedent is important to us and we have granted variances similar to this.

 

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18 June 1996

Page Twelve

VII GEORGE & BARBARA WARE 681 YORKHAVEN RD DECK ENCLOSURE-cont

Mrs. McNear moved to grant the variance as requested, and Mr. Squires seconded the motion.

Voting aye were Mrs. McNear, Mr. Squires, Mrs. Boice, Mr. Schecker, Mrs. Ewing and Mr. Tiffany. Variance was granted with six affirmative votes.

C. Jeanette Sturgill, 11986 Navona Court requests variance to allow the construction of a 10í x 12í wood shed 4í6" from her property line. Said variance is requested from Section 153.025(C) "..must be not less than 5 feet from any rear or side lot lines"

Mr. Tiffany stated that this came in late, and I was asked to add it to the agenda. That is at my discretion and I said it wouldnít be a problem, but asked that she bring a correct drawing with measurements because we did not have the benefit of seeing this ahead of time as we usually do.

Mrs. Boice commented looking at the drawing, I assume she is building a shed 10í x 12í, and we are talking about a four inch variance here. Mr. Tiffany said it is a five foot requirement from the property line, and she has two feet four inches on one side. Mr. Mitchell added on the one side we are looking at three feet eight inches on the other side.

Ms. Sturgill reported I took down the old shed and replaced it in the exact same sport. I thought since I was putting something in the same spot it would be okay. Mr. McErlane added the old shed was legal nonconforming until it came down, and then it needed a variance.

Mr. Tiffany stated this shed is up with the exception of the roof; she has a beautiful tarp on top. Mrs. Boice added the greatest differential in space there backs up to Chamberlin Park, so we are not talking about backing up to a neighbor.

Mr. Tiffany wondered if she could get a mower through there, between the shed and Chamberlin Park. The reason for the setback requirement is to maintain the property between the shed and the property line. Ms. Sturgill reported we moved it so I could mow.

Mrs. Boice moved to grant the variance to allow the 10í x 12í wood shed per attached illustration. Mr. Mitchell seconded the motion.

Voting aye were Mrs. Boice, Mr. Mitchell, Mr. Squires, Mr. Schecker, Mrs. McNear, Mrs. Ewing and Mr. Tiffany. Variance was granted with seven affirmative votes.

VIII. DISCUSSION

Mr. Mitchell commented concerning the Kidds, would we be out of

line within the Building Department if they took a quick survey for our benefit to see if he is within his property line? Mr. McErlane responded I donít know how we could determine where the property line is. We donít have survey equipment and we are not surveyors. Mr. Tiffany reported we are talking about adding a city surveyor possibly down the road. Mr. McErlane commented I would hate to be in that position if we got into a dispute. Mr. Tiffany responded the problem is the liability if we put ourselves out there in the middle of a civil suit between the two parties.

 

 

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18 June 1996

Page Thirteen

VIII - DISCUSSION - continued

Mrs. Boice commented again you see what is happening. The person who is being the most offended by this nonsense is now going to have to lay out money to defend it. Mr. Tiffany responded I think they have the right to ask for the survey. Mrs. Boice commented do you think they are going to get it, come on. Mrs. McNear added the other thing we would run into is if we went out and did the survey, the next time there is a property dispute, the residents would want us to do it for them. Mr. Mitchell said I am just saying it would be for our record, that is all, not for public information.

Mr. Tiffany stated I think we did our best given the circumstances, and in talking with Bill and Gordon and our law director. We had to approve it because of their discussion, but I think we needed to throw those wrenches in the works to say donít exceed the 35% coverage. It may mess up your whole plan and you may not even want to do this driveway. Now this neighbor came in with the idea that they hadnít done a survey. That may mess up the plan. It may work to his disadvantage if he finds out he has another eight inches to go across. Mrs. Boice said I would like for somebody to take a look at that garage that is there now. I understand there are mini blinds in the garage window; I would be interested to know what the garage is being used for. Mr. Squires said I would tend to agree with you; I looked at it as close as I could today and it looks like it is finished. Mrs. Boice added and they have no variance for that; I checked, and I am inclined to think the way Mr. Hendserson does things it is probably already converted. I would like the Building Department to go down and take a look at that. You have been looking at the property; you certainly can take a look at that. He is going to do what he wants to do when he wants to do it and how he wants to do it. Heís going to want it so he only has to leave 10% instead of 35%. Mr. Tiffany said even if that property line is down to say six feet, he can still concrete that whole side if he wants to. Mrs. Boice said I know, but to put a truck through there to begin with, and I have information that the garage door does not go up and has never gone up and I would suspect he is probably living in there. To Mr. McErlane, Mr. Tiffany said I think you have had a formal request from a member of this Board and a councilmember. Mr. McErlane said we will try to observe as much as we can. We cannot force our way in. Mr. Squires added Iím pretty sure the basement is finished. I donít know if he has plumbing in there or not; I didnít go in the house. In light of this discussion, I know I am a neophyte on this Board, but I did the best I could with this. By voting aye, donít think that I totally approve of what is going on there; I donít. Mrs. Boice said you were following rules by voting no, but I just couldnít.

Mrs. McNear commented under the circumstances with the legal advice, I think it would have been nice to know that before we were faced with an audience. Mr. Tiffany said because it is an appellate board it probably would have been in violation to discuss it ahead of time. Mrs. McNear wondered if it would have been in violation to have had the information. Iím not talking about discussing it, but it could have been in our packet. To have that thrown in our faces right here without time to think about it, I would have liked to have asked some questions about that opinion, but I did not want to ask that in front of an audience. Mr. Squires wondered if this Board ever goes into Executive Session? Mr. Tiffany answered no Mrs. Boice commented we had no problems with legal opinions on the Pauzar property. We had a raft of them, not ahead of time, but they were at least given to us. I do not think we were given a fair shot at it, and this isnít anything I wonít tell Ken tomorrow night.

 

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18 June 1996

Page Fourteen

VIII - DISCUSSION - continued

Mr. Tiffany responded I think with the discussion between Mr. McErlane, myself and Ken Schneider, we talked for a good bit on this, and as Ken said, it would be very difficult to defend in a court of law. Mrs. McNear stated I have a problem with having to vote aye for something that I donít agree to, but I did it because legal counsel said to do that. I donít know where it is a problem to know in advance that it is a done deal. Mrs. Boice added Ken Schneider used the exact same words for Shopco, it would be difficult to defend, so I donít buy into this. Mr. Tiffany added itís coming back to haunt us with Cellular I right now on Planning Commission; itís going to be difficult for him to defend that possibly. Mrs. Boice commented if you go in with that attitude, everything is difficult to defend.

Mr. Tiffany answered the issue of the property line is a civil issue between the two parties, as it would be with anybody on any instance. If your neighbor puts up a fence and you think itís on your property, it is a civil matter period. The City bears no responsibility in that. Mrs. Boice said Iím not saying Iím the worldís best driver, but I donít see how he can get that truck back there. Mr. Squires answered he canít; I was out there. He told me to get in the truck and do it and I said I wouldnít because I knew I couldnít do it.

Mr. Mitchell said I think the person to deal with in this situation is Ms. Kidd. She seems to have a level head. Mr. Henderson is a contractor and wants to build and thatís his livelihood. She might start thinking about getting a nice new car and scraping that door a couple of times. I donít know if it is worth it. Mr. Tiffany added that is why I brought up if she sells the property; I guarantee it will do away with a lot of possible clients to come into that house. Mrs. McNear said just wait until there is a couple of inches of snow or a patch of ice on the driveway too; theyíll be in their converted living space or their neighborís yard.

Mrs. Boice said one of the neighbors who was here this evening told me that months ago he had said to her he also wants to pour two parking pads in his front yard. Mr. Tiffany added the sad part is as long as he doesnít exceed 35% of the lot use, he can do it. Mrs. Boice said I will discuss this with Ken, because we did have memos on the Pauzar property. Mr. Tiffany said this is not Kenís fault. I would say it falls back on me. Because it was so cut and dried, done deal, I didnít see that it would be that big of an issue. I think there was a lot of discussion tonight on things that werenít relevant to this issue. Mrs. Boice responded they are relevant if you canít get anything around that driveway. Mr. Tiffany answered they are not; the issue is whether or not he can put the concrete down that side, and that is what he is doing. Mr. Mitchell added and you are assuming that he will park cars. The driveway doesnít say you have to drive a truck up it; it could be a motorcycle back there. I didnít see any surprise tonight because last month they said lawyer, and itís pretty obvious if we had given this gentleman permission to do this, you cannot go back on your word.

Mr.Tiffany asked if Council had discussed signs for the yards and Mrs. McNear said no that will be tomorrow night, adding she still needed prices on the signs. It wil be 15 signs at $60 and she asked to have a sketch of them to present to Council. Mr. Tiffany added it is basically a real estate sign size and will say Public Hearing Regarding Zoning Issues on this Property To Be Held Tuesday, and the date. Mr. McErlane added it would say something like Zoning Hearing on This Property, Springdale Board of Zoning Appeals and the date. Mr. Tiffany said I think it needs to say Public Hearing, I really do.

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18 June 1996

Page Fifteen

VII - DISCUSSION - continued

Mrs. Boice said I know on the Kidd property that the mistake was made and they were given the wrong information, but it depends on who you are dealing with. We had a situation two doors down from me; I walked out on my deck and the permitted shed was so high it had a second story. I called the Building Department, Gordon came down and I called the owner of the property and he came down and the next day that gentleman cut that down and went next door to the neighbor and apologized to them. He said he did not know about the height; nobody had mentioned this. Mrs. Boice said I told the neighbor that he had told the building Department that he was building a shed. There was a reasonable person. He didnít come in here and say that the Building Department didnít tell me. Mr. Tiffany said that is a different situation; the Building Department did tell him. Mrs. Boice said Iím trying to say there are some people who are reasonable, and that is why I canít buy into this completely because he was told. Mr. Tiffany responded Gordon agrees that they talked about it and it wasnít a problem. Now you have two issues. He was told he could do it, first of all, and secondly, after he was told he could do it he started the project and he has money and time tied up into it. Now you have created hardship on top of it. There was no way we were going to win that one. Mr. Mitchell commented we have to encourage the improvement of property, and you might not feel that what this guy is doing is a major improvement, but we have to encourage that. Mrs. Boice said I want to see how he hooks that garage onto that house. Mr. Mitchell it will need a permit. Mr. Tiffany wondered if it could be detached in that neighborhood, adding he is talking about creating a four foot space between the two. I guess thatíll be concrete also. Mr. Squires added he has pipes sticking up in the ground for drainage. Mr. Mitchell commented me it looks like it could be something pretty nice or something pretty crappy but it looks like it could be something pretty nice really. Mr. Squires added he has potential, but heís going to have to lose part of that rock patio.

VIII. ADJOURNMENT

Mr. Squires moved for adjournment and Mrs. McNear seconded the motion. By voice vote, all voted aye, and the Board of Zoning Appeals adjourned at 9:12 p.m.

Respectfully submitted,

 

 

__________________________,1996 _____________________

Barry Tiffany, Chairman

 

 

__________________________,1996 ______________________

Barbara Ewing, Secretary