BOARD OF ZONING APPEALS MEETING MINUTES
19 JUNE 2007
7:00 P.M.


I. CALL MEETING TO ORDER

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

II. ROLL CALL

Members Present:    Robert Weidlich, Bill Reichert, Jim Squires, Jane Huber, Marge Harlow, Robert Emerson
    And Chairman Okum

Others Present:    Randy Campion, Inspection Supervisor

III. PLEDGE OF ALLEGIANCE
IV. MINUTES OF REGULAR MEETING OF 15 MAY 2007

Mr. Squires moved to adopt and Mrs. Huber seconded the motion. All voted aye, and the minutes were adopted unanimously.

V. CORRESPONDENCE

A. Zoning Bulletin – April 15, 2007
B. Zoning Bulletin – May 1, 2007
C. Zoning Bulletin – May 15, 2007
D. Planning Commission Meeting Minutes May 8, 2007


VI. REPORTS

A. Report on Council

Mr. Squires reported that tomorrow evening Council will consider an ordinance amending Zoning Code violations and penalties from Minor Misdemeanor (which can be paid out) to 4th Degree Misdemeanor requiring a court appearance. Mrs. Harlow added it will give our Building Department some teeth to enforce the Code.

B. Report on Planning Commission

Mr. Okum reported on the June 12th Planning Commission Meting.
Planning approved an outdoor patio area for smokers for Bargo’s . Also approved was the change to the Tri-County Mall building (former JC Penney) for Ethan Allen.

VII. CHAIRMAN’S STATEMENT AND SWEARING IN OF APPICANTS


VIII. OLD BUSINESS


IX. NEW BUSINESS

A. Approval of Variance to allow the construction of a 10’ x 14’ (140 s.f.) utility building at 1271 East Crescentville Road. Said variance is requested from Section 153.492(B) “shall not exceed 120 s.f. in area.” Owner not present – placed at end of agenda



Board of Zoning Appeals Meeting Minutes
19 June 2007
Page Two

B. Approval of variance to allow the construction of a fence in the front yard at 640 Smiley Avenue (Corner lot). Said variance is requested from Section 153.482(A) (3) “Fences on corner lots shall not be located in the required setback for the building from the side street line.”

Mr. and Mr. Shanley approached the board. Mrs. Shandley said we would attach our fence next to the existing one behind us to make a square corner and protect our outdoor spigot that is accessible to anybody who walks down the side street. The spigot has been turned on and left on without our knowledge and flooded our basement. You have photos to show the existing back fence and where we would like to go with it, halfway up the side of the house.

Mr. Campion reported that the applicant is requesting to erect a fence within the side street setback on a corner lot. The side street setback is 35’ (approximately 45’ from the street curb).

The existing residence and fence are legal non-conforming. They were constructed prior to the Zoning Code requirements for the setbacks. Whenever a non-conforming use is removed or discontinued, any new construction must comply with today’s code.

The applicant is requesting to erect a 6’ vinyl privacy fence in the present non-conforming location on the west side and further encroach approximately 22’ along the west side of the residence. It appears that the applicant is requesting a 20’ setback from the Harmony Avenue right of way.

Mr. Okum opened the public hearing.

Linda Edrington, 639 Cloverdale Avenue said I have the fence this backs up to. It does not encroach the view of Harmony and turning radius and security. They have animals in their back yard and we have a lot of dog walkers in our neighborhood, and this would help keep their dogs in. I think the fence is a great idea and completely support this.

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

Mrs. Harlow moved to approve the variance for a fence set back approximately 35 feet from the street. Mr. Squires seconded the motion.

Mr. Okum said I need specifics on how far the fence will project from your home towards Harmony. Mr. Shanley answered approximately 11 feet. Mr. Okum asked the distance from the rear corner to the fence and Mr. Shanley answered about 15 to 17 feet. Mr. Okum said based on the 11 feet, how far from the curb, and Mrs. Shanley said approximately 22 feet.

Mr. Squires asked about the existing chain link fence, and Mrs. Shanley answered it will come down.




Board of Zoning Appeals Meeting Minutes
19 June 2007
Page Three

FENCE IN FRONT YARD AT 640 SMILEY AVENUE

Mrs. Harlow asked if the only reason they want to bring the fence up so far is because of the spigot. Mr. Shanley answered yes, the basement has been flooded three times. Mrs. .Harlow said wouldn’t it be cheaper to move the plumbing in the basement?

Mrs. Shanley answered it is not a full basement so we would have to have someone come in to run more plumbing. We can do the fence ourselves.

Mrs. Huber said the pictures indicate that the existing fence is in bad repair. Mrs. Shanley answered it will be removed. I would like to get the variance to protect the water spigot, but either way, we will be putting up a fence.

Mr. Okum said so we are talking about a fence going from the rear corner to the second chimney along Harmony Avenue. Any change to the fence would need a variance.

Addressing the applicant, Mrs. Huber asked if they got the variance would the fence be done by a professional. Mrs. Shanley answered no, we have the materials and will do it. Y husband is a licensed carpenter and he will supervise the work. Our son’s here to help.

Mr. Okum said I cannot see a reason of practical difficulty except that the home is two feet closer to the street than the 35 feet required, so would support a two-foot variance for the fence from Harmony Avenue. I also think Mrs. Harlow’s suggestion to change the plumbing is valid.

Mr. Okum said the house is two feet closer to the street than what is required, so it would be natural interpretation to allow the two-foot variance to go to the corner of the house.

Mr. Campion added the side street setback is 35 feet and the house is set at 32 feet.

Mr. Reichert said it appears that the fence of the owner behind them comes closer to Harmony than the 32 or 33 foot setback. It is a relatively new fence, so if you should go with the back of the corner of the house, you will have 11 feet of the back fence setting out towards Harmony

Mr. Shanley said if you look at the zoning for the fences, there is nothing that says your back fence having to be a certain distance from the right of way.

Mrs. Edrington said the fence was approved when we put it in and after that the variance request was made. You decided we needed a variance, so we will be back next month to discuss it. When we got the permit, the fence was approved along with our outbuilding and deck, and now they are saying we made a mistake and it should not have been approved.




Board of Zoning Appeals Meeting Minutes
19 June 2007
Page Four

FENCE IN FRONT YARD AT 640 SMILEY AVENUE

Mr. Okum said this is a practical irregularity. The problem is finalizing a decision when we have the situation on an adjacent property. Personally I would like to make the decision next month when we hear the appeal and allow more input.

Addressing the applicant, Mr. Okum asked if they minded tabling this to next month. Mrs. Shanley indicated that they did not mind it.

Mr. Squires moved to table and Mr. Reichert seconded the motion. All voted aye and the item was tabled to the July 17th meeting.

C. Approval of variance to allow the construction of a 132 s.f. utility building on the property at 171 Ruskin Drive. Said variance is requested from Section 153.492(B) “shall not exceed 120 s.f. in area.)

Linda Kiser owner of 171 Ruskin Drive said the shed is five feet over what we are allowed to have. You can get smaller sheds, but it would be less than 120 s.f., and I want to maximize my storage. Right now I have to park my car in the street because of my lack of storage.

Mr. Campion reported that the applicant is requesting to construct a 132 s.f. vinyl utility building. Section 153.492(B) limits the maximum area of accessory buildings to 120 s.f. The applicant has not indicated any unusual characteristics about the property which makes the variance necessary.

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

Mr. Squires moved to grant the variance for a 132 s.f. vinyl utility building and Mr. Reichert seconded the motion.

Mr. Squires said there seems to be accessory buildings already there. If this variance is granted, you will have to remove those. Ms. Kiser indicated that she would.

Mr. Okum said based on what I have heard, I will support the variance with the condition that there will be one shed only on the property.

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

D. Approval of variance to allow two utility buildings on the property at 11850 Glenfalls Court. Said variance is requested from Section 153.492(B) (1) “There shall be no more than one detached accessory building…”

Mr. Okum reported that the applicant has requested that this be tabled to the next meeting. The Board moved to table it to the July meeting. All voted aye, and the variance will be considered on July 17th.


Board of Zoning Appeals Meeting Minutes
19 June 2007
Page Five

E. Approval of variance to allow the construction of a 116’ wrought iron fence in front yard at 507 Dimmick Avenue. Said variance is requested from Section 153.482(A) (1) “No fence..shall project past the front building line..”

William Cassedy said the variance is more for the placement of an ornamental landscape feature. It is less of a fence than an ornamental landscaping feature.

Mr. Cassedy added it enhances the existing landscaping, and is a feature in the front of the property. I am a very big fan of Thomas Kinkade, and the landscaping of this property will be such that I could ask Mr. Kinkade to paint the house and property.

Mr. Campion reported that the request is to erect approximately 20 feet of fences in the front yard. Section153.482 (A) (1) does not permit a fence to project past the front building line. The applicant has not demonstrated that there are unusual characteristics about his property which warrant the variance,

Should the board determine that a variance is warranted, the fence will need to be set back a minimum of 11 feet from the street curb so that it will not be located in the public right of way.

Mr. Squires moved to grant the variance for a 16 foot wrought iron fence a minimum of 11 feet from the street curb. Mrs. Huber seconded the motion.

Mr. Emerson asked the height of the fence and Mr. Cassedy answered 36 inches raised three inches off the ground. The posts would be four feet high.

Mrs. Huber asked if they owned the adjoining lot. Mr. Cassedy answered we have a two-lot property, and the decorative fence will only be on the lot where the house is.

Mr. Okum commented creatively you are right stating that it is an architectural feature and not a fence, but the code is very specific in its definition of fences.

Mr. Cassedy said it is not intended to keep anybody out. We will be putting a sign on the front saying “Meanderers Welcome”.

Mr. Okum said we have had architectural features and landscape decorations brought before this board and it is tough to deal with because the code calls it a fence. Mrs. Huber commented a fence encloses.

Mr. Okum responded this is called a fence, and we would be allowing this type of element put in on anybody’s property

Mrs. Harlow said we are talking about an 11 foot setback and on the drawings you have a seven-foot setback and then a six-foot setback. Mr. Cassedy responded that is the distance from the telephone pole to the street. Mr. Okum said that means that the garden is in the public right of way. The telephone pole has property on each side.

Board of Zoning Appeals Meeting Minutes
19 June 2007
Page Six

WROUGHT IRON FENCE IN FRONT YARD AT 507 DIMMICK AVENUE

Mr. Okum said this is very difficult for me. I like the architectural accent and the landscaping done nicely. In that case I would be very much in favor of supporting this variance, but if we are to lok at any of the requirements and setbacks there is nothing that allows that setback variance.

There is no practical difficultly, and that is my problem. I think it is a neat idea, and hopefully the powers that be will come up with a decision to change the code to allow some of the architectural elements. Council members could bring that adaptation to the code to allow some of these ornamental features. However, I would be afraid of establishing that precedent in this case.

Mrs. Harlow said I am in the same boat. I think this is beautiful, and I would like to see this. I like its uniqueness, but at the same time we would get hammered because it is a fence, and we have denied other applicants who have wanted fences in their front yards. I am impressed with what you have done and I would hope the code could be changed to include ornamental work.

Mr. Okum said the sheds and fences are the two items this board has identified to be reviewed and some action be taken.

Mrs. Harlow said I would like to see us move this forward and get something done to get relief on this. Mr Okum said I will pass this on to Planning Commission at the next meeting.

Mr. Cassedy said there is a gentleman here who would like to speak on my behalf.

Mr. Okum opened the public hearing.

Ken Zinneger, 497 Dimmick Avenue said I have known Bill for several years, and I have seen what he has done in our neighborhood to his yard. Bill is an artisan. Everything he does is carefully planned tastefully designed and beautifully completed. This is going to be a showpiece, and I wanted to come in and let the board know that.

Addressing the applicant, Mr. Okum said I guess you understand I will be voting against this request because of the definition of fences in our code. It is not that I want to keep you from being able to continue with your dream. Time can bring about change, and change comes about by people like you making applications and residents commenting in support of the request.

I will vote against it, but I will also carry a strong motion forward to Planning Commission to address the architectural features to properties and get the definition of fence clarified so that a project like this can be accomplished.






Board of Zoning Appeals Meeting Minutes
19 June 2007
Page Seven

WROUGHT IRON FENCE IN FRONT YARD AT 507 DIMMICK AVENUE

Mr. Cassedy asked if it would be better to table this until July, and Mr. Okum answered no, because the law director has indicated that you could come back every month if you wished. There is no statute of limitations on these applications. Our action only states that at this point and at this time this board has rendered a decision.
   
Mrs. Harlow added I truly feel that this is definitely a distinction between a decorative fence and a fence that would be a containment fence. I would like to see this move forward to Planning and Council so you can proceed with this project. Unfortunately I have to vote no because of the way our ordinances are written. Otherwise I would be supporting this 100%.

Mr. Reichert said I welcome you bringing this to us; that is how change comes about. It is very nice.

On the motion to grant the variance, Mr. Squires, Mr. Emerson, Mr. Reichert, Mr. Weidlich, Chairman Okum and Mrs. Harlow voted no. Mrs. Huber voted yes, and the variance was denied by six negative votes.

F. Approval of variance to allow the construction of 77 feet of an 8’ high wood privacy fence on the property at 11684 Neuss Avenue. Said variance is requested from Section 153.482(B) “.shall not exceed six feet in height.”

Donna Mahan the owner of 11684 Neuss Avenue said that there are parts of the fence that will be six feet high where our land is level. If you go to the end there is a 14 inch drop so we would need the eight-foot variance (approximately 24 feet).

Mr. Campion reported that the fence is approximately 76 feet along the rear property line. The maximum fence height allowed is six feet, and the applicant has indicated that the purpose of the extra height is to screen the view of her neighbor’s property while overcoming a fall in grade from her residence down to the adjacent residence.

It appears that the residence behind the subject property, 141 Harter Avenue is approximately five feet lower than this residence. The rear property line appears to be approximately .four feet lower than the subject’s residence, and it is not clear what the applicant is attempting to screen.

Mr. Okum said there are two cross sections that were provided by the applicant.

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

Mr. Weidlich moved to approve the variance for 77 feet of an 8-foot high fence to go across the back of the property at 11684 Neuss Avenue. Mr. Reichert seconded the motion.


Board of Zoning Appeals Meeting Minutes
19 June 2007
Page Eight

CONSTRUCTION OF 77 FEET OF 8’ HIGH FENCE AT 11684 NEUSS AVENUE

Mr. Reichert said at the level part of your yard, you will make the fence six feet high. Should we say not to exceed eight feet, since you only want to make it eight feet where the land drops down?

Mr. Okum said I understand what you are saying, and I think what the applicant is showing that the top of the fence will be at six feet horizontally. It stays pretty flat all the way across the back where the fence is going. The applicant has indicated that the fence needs to be up to 77 feet long at eight feet high. Mr. Weidlich commented the last 24 feet would be around eight feet high.

Ms. Mahan said the high ground is very level. Mills Fencing came out and measured it, and there is between a 15 and 16 inch drop in the area.

Mr. Campion commented from the street it will appear to be a six foot fence because you won’t see where the grade falls off in the back yard. Mr. Okum responded I am thinking more of the Harter side, but there is large vegetation that won’t let you see very much of that.

Mr. Emerson asked if the eight foot section was at the end of the fence. Ms. Mahan confirmed that it is. We have a picket fence that this fence will meet up with it, but not touch it. Where the six-foot fence starts will meet up with our neighbor’s fence.

Mr. Okum said for the record, all neighbors within 200 feet of this property were informed of this public hearing and invited to come if they had any concerns.

Mr. Okum said staff has recommended that the motion should be that at the right corner near 120 Harter the fence shall be approximately eight feet high, and for 20-some feet we reduce it down to the six-foot height average. Mrs. Harlow so moved and Mr. Emerson seconded the motion. On the motion to amend, all voted aye.

Mr. Okum said so the motion is for 24 feet at eight feet and the rest will be six feet high. On the amended motion, all voted aye, and the variance was granted with seven affirmative votes.

G. Approval of variance to allow the construction of a 10’ x 16’ utility building (160 s.f.) on the property at 672 Cloverdale Avenue. Said variance is requested from Section 153.492(B) “shall not exceed 120 s.f. in area.”

Jim Skirvin owner of 672 Cloverdale Avenue passed around a picture of a 1953 Wizard motor bike replica, which is one of the items he needs to put in this shed. I have lots to put in it, a motor home and a large hitch which is very heavy. Our property runs downhill and every time I use it I have to haul it out and carry it up, plus chairs, grandkids’ bicycles, etc. I really need it.

The shed would be in the back of our property where there are no adjoining buildings. There is only a woods behind us

Board of Zoning Appeals Meeting Minutes
19 June 2007
Page Nine

CONSTRUCTION OF 10’ X 16’ UTILITY BULDING – 672 CLOVERDALE AVE.

Mr. Campion reported that the applicant has not demonstrated how there are unusual circumstances regarding the property that makes it necessary to construct the shed. A variance was granted by the Board of Zoning Appeals in 1999 to allow a 38 foot long recreational vehicle to be parked/stored on the property.

Mr. Skirvin added I own two pieces of property. It may be possible to build two sheds if I build them the standard size, but I really don’t want to do that. I’d rather build one shed.

Mr. Okum asked if code permitted a shed to be built on a vacant property, and Mr. Campion stated that a house would need to be on the property to build a shed.

Mr. Okum opened the public hearing.

Linda Edrington, 639 Cloverdale Avenue said I live on Cloverdale and you cannot see their mobile home from the street or where they would put the shed. The only thing you can see from the street is their landscaping and front porch and driveway.

Ms. Edrington said nothing is visible from the street that would be an eyesore for the community, because everything is very wooded. All of their property is wooded with a very natural landscaping. What they are requesting would not be an issue.

Mr. Okum closed the public hearing.

Mr. Squires moved to grant the variance and Mr. Weidlich seconded the motion.

Mr. Weidlich asked if the vegetation would stay where you will put the shed. Mr. Skirvin answered I am clearing out an area back there, some small trees and a wood pile, but there will still be trees.
Mr. Weidlich said so if you get this variance, will you be able to park your vehicles in your garage? Mr. Skirvin answered that he would be able to.

Mr. Okum said basically we have an oversize lot (two parcels) with a home and attached garage and he wants to build a 12’ x 16’ storage building. Ms. Harlow said so the 12’ x 16’ building falls within the ratio of the lot size that we discussed at the last meeting.

Mr. Okum said based on the information I have heard, and the fact that the property owner has a significantly large lot, I will be supporting a 12’ x 16’ accessory storage building.

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

Mr. Okum said we will go back to Item A.






Board of Zoning Appeals Meeting Minutes
19 June 2007
Page Ten

A. Approval of Variance to allow the construction of a 10’ x 14’ (140 s.f.) utility building at 1271 East Crescentville Road. Said variance is requested from Section 153.492(B) “shall not exceed 120 s.f. in area.”

Gwendolyn Carlisle owner of the property said I got a permit and Lowe’s built the shed. When it was inspected, it was too large and I was told I had to get a variance. I have a small house with no basement and this is where I store my lawn furniture and equipment and bikes. I really need the storage, and it is in the corner of the yard, five feet from the property line and there is still a lot of space. I don’t know anything about measurements.

Mr. Okum said so you got a building permit for a shed, bought the shed and they constructed it and it was bigger than you thought it would be.

Mr. Campion reported that the applicant is requesting to keep a 10’ x 16’ (160 s.f.) shed. A permit was issued on 6/2/2006 to construct an 8’ x 10’ utility building. When a recent inspection was conducted, the utility building was found to be 10’ x 16’ or 160 s.f. The discrepancy is size and must be resolved. The applicant has not indicated any unusual circumstances about her property which makes a variance necessary. The applicant had indicated that she has an unusually large lot. The property area is 7440 s.f. The rear yard is 35’ deep by 62’ wide.

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

Mr. Reichert moved to approve the variance to allow the 10’ x 16’ utility building. Mrs. Harlow seconded the motion.

Mr. Emerson asked how long ago the shed was constructed, and Ms. Carlisle said about a year.

Mr. Okum said this is very difficult. We have two alternatives, grant the variance or make the applicant tear it down. Based on that, although I think it is a little too large, it’s still not too far out of balance, and I will support this.

Mr. Campion reported that the Zoning Code says that detached accessory buildings can’t exceed 18% of the rear yard

Mr. Reichert said the shed is 160 s.f. and if we use the formula with that size lot it is .021, which isn’t that much out of line.

On the motion to grant the variance for a 10’ x 16’ shed, all voted aye and the variance was granted unanimously.








Board of Zoning Appeals Meeting Minutes
19 June 2007
Page Eleven

X. DISCUSSION

Mr. Okum said I do not want to discuss the percentages tonight. At the last Planning Commission meeting, I sent a letter from the BZA to Planning requesting a change to the Zoning Code regarding requirements about passing variances. They have referred it to the law director’s office, and it was presented to me that they might not agree with this. There are five tests presently, and we left one of them off. The City Planner reported that some municipalities are using all five exactly. Then you might as well not have a Board of Zoning Appeals and have an administrator who uses the five questions. Then the Board of Zoning Appeals could hear an appeal.

XI. ADJOURNMENT

Mrs. Harlow said she would not be at the July meeting.

Mr. Squires moved to adjourn and by voice vote, all voted aye and the Board of Zoning Appeals adjourned at 9:25 p.m.

                    Respectfully submitted,



_____________________,2007 _______________________
                    David L. Okum, Chairman



_____________________,2007    __________________________
                    Jane Huber, Secretary