BOARD OF ZONING MEETING
JULY 15, 2008
7:00 P.M.
I. CALL MEETING TO ORDER
The meeting was called to order at 7:00 p.m.
II. ROLL CALL
Members Present: Randy Danbury, Robert Diehl, Robert Weidlich, Robert Emerson, Jane Huber,
David Okum
Members Absent: William Reichert
Chairman Okum thanked Mr. Weidlich for taking on the responsibility of Chair at the last
meeting, everybody said that it was a very well run meeting and I want to compliment you
on that.
III. MINUTES OF THE REGULAR MEETING OF 17 JUNE 2008
Mrs. Huber moved for adoption the June 17, 2008 Board of Zoning Meeting Minutes as
submitted, Mr. Danbury seconded the motion, six Board of Zoning Members voted aye with
Chairman Okum abstaining and the June 2008 Minutes were adopted.
IV. REPORT ON COUNCIL
There was no Council report presented.
V. CORRESPONDENCE
a. Approved Planning Minutes - June 10, 2008
b. Zoning Bulletin – June 25, 2008
VI. SWEARING IN OF APPLICANT(S)
VII. OLD BUSINESS
No items of Old Business were presented.
VIII. NEW BUSINESS
A. Administrative Appeal of the interpretation of the Building Official as it relates to
an accessory structure on his property at 507 Dimmick Avenue.
Chairman Okum: This is an administrative review hearing and it is not a variance hearing;
there is a slight difference. This is a decision of, this is an interpretation of the
Building Code by the Building Administrator or the Chief Building Official as to an
accessory structure for a particular zoning request. It has not been advertised for a
variance, therefore there won’t be a variance discussion. What we are discussing and
what was given to the applicant, an opportunity to challenge the decision by the Building
Official as to an accessory structure or a secondary accessory structure on his property.
So everyone is clear on that that this is not a variance hearing, and there is no variance
involved. It is an interpretation of Code in regards to our City Code, what the Building
Official interpreted and the use that is being applied for this property. At this time
will the applicant for the appeal please come to the podium?
Mr. Cassidy: My name is William Cassidy, I live at 507 Dimmick Avenue here in Springdale.
The reason for the appeal is that an overly generalized application of the Building Code
was applied toward a passive solar heater / log dryer which I have on my property and in
essence it is a device or a piece of equipment. It is bigger than an air conditioning heat
exchanger, as most of us have in our homes, but it provides the same basic principle only
in reverse. You would find the same principle on the heat absorption cycle of a heat
exchanger, in that it absorbs heat it stores that heat and it redistributes that heat to a
two-car garage workshop that I have on my property. In researching this I found no
reference to solar heaters in the Building Code of Springdale and felt that I could then
erect this device without running foul of any regulations. That having been said, there is
a consideration for those who live around me. And I have always attempted to ensure that
anything that I do on my property meets not only the City’s Code but the approval of
my neighbors. As I say, the usage of the device is a dual purpose, it is a passive solar
heater and in the packet you have there are references to the application of a passive
solar heater in several different aspects – a window unit, a storage facility using a
medium such as oil, water or rock. In my case I chose to use wood because a secondary
purpose for this device is to accelerate the curing or seasoning time of my primary fuel
source for my home, which is wood. The application of alternative energy sources
isn’t really any longer something that is relegated to groups or individuals who
espouse green-power or ideals; it is a fact of life and we live in a community where, its
not a bedroom community it is full of individuals such as yourself, such as the people
here in the audience which are struggling, in a lot of cases, to make ends meet. They are
trying to find ways to afford $4.00 plus gallon of gasoline to get to and from work. I
simply took the initiative to develop something that I have had in the past; and this is
the third device that I have constructed so it is well engineered – it holds up to
adverse weather conditions without any ill effect and I think what the City of Springdale
would serve its citizens and itself to embrace the alternative energy sources, whether it
be a passive/solar heater on my property or solar panels on an individuals roof,
photoelectric systems employed, but the whole point of this is that this device is a piece
of equipment. It serves a function in several different aspects and that is why I feel the
application of an accessory structure in the Springdale Building Code has been misapplied
or too broadly applied when they don’t have a specific means by which to make a
determination of what this thing is, then a generalized definition was applied to it,
which put it out of the actuality of what the device is. Now where do we go?
Chairman Okum: If you have any other information you would like to present as evidence
that would be fine. And then we will give Staff an opportunity to report and comment and
then we will open it up to the public.
Mr. Cassidy: I have and I realize that there is a determination of what you can do. As I
mentioned I have made every effort to ensure that the aesthetics and the appearance of
this device is as pleasing to my neighbors and the general public, as possible. And, if I
may while you have some inserts in there, I would like to distribute these.
Chairman Okum: For the record the applicant has submitted some photographs for the Board.
Mr. Cassidy: These are to show that I have landscaped the front of the device that is
facing the street, to provide, even though it is probably 100’ away, as aesthetically
pleasing as possible. And as I mentioned in the letter that I have submitted we have a lot
of foot traffic that walks through our area and not one person has ever commented
negatively about the device and for those few people that have commented on it, when I
explained what it is and what it does they are overwhelmingly in favor of it. Mr. Okum, I
do have one thing to ask you; I have a notarized letter from one of my neighbors because
of his inability to be at this meeting, he would like to have this letter read into the
record.
Chairman Okum: If it pertains to the hearing that is before us I personally do not have a
problem. Do any of the Board Members have an objection to that?
(No Board of Zoning Members objected to reading the letter from Mr. Cassidy’s
neighbor.)
Mr. Cassidy: 497 Dimmick, Mr. Kenneth Zinnecker – dated July 9th, 2008. Springdale
Board of Zoning Appeals – “I am writing to you on behalf of Mr. William (Bill)
Cassidy in concerning the difficulties he has encountered due to development of his wood
drying apparatus built on his property located at 507 Dimmick Avenue. There are two points
I wish to make at this time, and I would do so in person were I not away on vacation at
the time of this proceeding; first I find nothing at all aesthetically displeasing about
the device Mr. Cassidy has constructed. It has a very low angle of visibility from the
street, even as I have the opportunity to scan it carefully as I walk the neighborhood.
Bill has covered the façade of the dryer with a decorative lattice upon which he is
training plant growth. I find the effect to be more pleasant than denigrating to the
appearance of the property. There are certainly other properties in the general area,
which are not attempting such strides in the area of beautification. Second, I find it
ironic with the economic climate in which we are all mired, a member of our community;
involved in innovatively developing a system that promotes both passive heating and the
utilization of alternative heating fuel sources is being thwarted in his endeavors rather
than encouraged or even guided. Please understand that I realize and applied the role of
the Board in maintaining the standards of the community. I just feel that the wood drying
device that Bill has constructed by design, purpose and neighborhood aesthetic should
stand as the kind of innovation that we as a community promote rather than impede.
Sincerely, Kenneth R. Zinnecker.”
Chairman Okum: That way it is in the record. O.K. Do you have anything else you would like
to add before we go to staff comments? You will still have an opportunity to speak.
Mr. Cassidy: Thank you, no not at this time.
(At this time Mr. Campion read the Staff comments.)
Chairman Okum: O.K. At this point we will open it up to comments from the audience. Again,
just so you are aware this is an appeal of that decision by the Building Official. It is
not whether the variance should be granted for a second accessory structure. That hearing
has already been closed and been heard. This is strictly on the decision that this unit
that Mr. Cassidy has presented is a structure and should be considered as such, so I know
it is complicated but we have got to treat everything exactly the same and fairly and that
is exactly what our position is in this. We serve two roles as this body; we hear variance
requests, we hear appeals of the administrative decision by the Building Official and this
hearing is for that purpose.
I want to give you an opportunity to comment on it though, because you people took time to
come here.
Mr. Grant Brookover: 525 Dimmick Avenue, right next door; when he brought it up or the
first time I saw him bringing this thing up, I looked at it and I thought, hmmm. At first
it kind of peaked my curiosity and I thought this is pretty cool. After I saw it going up
and then watched it after awhile I thought this guy is probably quite clever and I like
the idea. Since I probably have the best view of it right now I didn’t even notice he
was putting it up at first, I actually had to walk over and look at it. As far as from the
street, it is just something else off the side of the garage and with the lattice work and
stuff there and the plant, it is going to look pretty nice. That is about as much as I
have to say.
Mr. John Scott: I live behind Bill on 512 Cloverdale, and Bill mentioned to me what he was
doing and I was real excited about it. I have a very plain view of it from my back yard
and it is not a problem for me whatsoever. I have no problem with the structure being
there and I support Bill who hopefully you guys will grant him the right to have it there
because I think that what he is doing is a positive step for energy and cost-savings and
obviously everyone is looking for that at this point. I totally see no problem with it
being behind my house.
Mrs. Sharon Ray-Cassidy: I reside at 507 Dimmick, I live with William Cassidy, I am not a
big person on buildings and things like that and when he was describing what he was doing
it definitely did not come across to me as a building structure, it was as it was stated
here, it is a device. I am a big environmental person and I think anything that anybody
can construct that is going to save in any way should be viewed in a positive way instead
of shooting it down. And as we were sitting here talking I was listening to, “was
considered a building” and I am thinking I would like to have a grape arbor built. It
has top, sides, would that possible be considered a structure, but possible other people
perceive that as that and somebody else would perceive it as something else. I have no
problem with it, like I said I see it as a device. I see it as something that is going to
save money in the long run. So, I totally back what he has done, I think it is wonderful.
And I guess my last but little bit would be I too walk around the neighborhood and I see
many things that I think to me is an eye-sore especially down our street. And I just wish
things like that would be addressed instead of something where somebody is trying to do
something good.
Chairman Okum: Does anyone on the Board have any questions of those who have spoken to us.
Mrs. Huber, your motion please.
Mrs. Huber: I move that the Board of Zoning Appeals affirm the Building Officials
determination that this is an accessory structure.
Mr. Weidlich seconded the motion.
Chairman Okum: Are there any questions for Mr. Cassidy?
Mr. Danbury: As Mr. Okum alluded to earlier we are not here to go back on our decision; we
already made that and so you are appealing our Building Official,
Mr. McErlane, his determination that this is a structure and that is the only thing that
we can do, and believe me I know everybody is getting hit hard with the price of fuel and
everything. The big issue right here is you already have a secondary structure on your
lot, that is why you had to come to us and that was the determination that we said that is
too many buildings on there. So the only thing that we have before us is to consider, is
Mr. McErlane correct in his assumption that this qualifies as a building in structure so
that is the only thing that we can legally look at and I look at the Zoning Code
information that says a building is a structure which is permanently affixed to the land
having one or more floors, a roof, being bounded by open space or lot lines and uses a
shelter, or enclosure for persons, animals or is an enclosure for property. Buildings
shall be constructed to include structures as defined in this section unless otherwise
noted. It has a floor, it has rafters, it has a roof, it has sides – if you
didn’t have another structure out there that shed there, I don’t even think we
would have a problem. That is the only thing we have to look at and each of us have to
make the determination; does this qualify as a building structure?
Mr. Cassidy: May I comment? Mr. Danbury, a lot of things have sides, floor and a top, you
could call it a roof. It doesn’t necessarily qualify it as a structure. If you have a
heat exchanger for an air conditioning unit, it is permanently mounted to the ground, has
sides and has a top, yet it doesn’t meet the qualifications that the Building
Commission has applied to my passive/solar heater. My heater is definitely bigger than
that heat exchanger, I agree, but it also houses six cords of hand split wood that is by
no means an easy feat because it wasn’t done with mechanical means. It takes one home
of my size about six cords of standard wood per year to heat and I combined that into a
piece of equipment, into a device that would serve both purposes providing the heat for my
workshop and garage and to season the firewood. That device will augment the heat or
actually supply all necessary heat for that garage.
Chairman Okum: Mr. Cassidy, we’re strictly on not the merits of your device, whether
the Building Official interpreted it as a structure; that is what your testimony needs to
be centered around. I think Mr. Danbury was addressing that and your comments are to the
benefits of. We understand that there are benefits. There are a lot of benefits to driving
a fuel efficient car. There are a lot of benefits to doing a lot of things environmentally
green today. But that is not the issue. The issue is strictly “a structure” or
“not a structure.” We have to determine if the Building Official interpreted
appropriately for the device, the structure, the element; whatever you want to call it on
your property. I would appreciate if you would keep your comments to that specifically. We
are not the legislators of this City; there are two legislators on this Board – Mr.
Diehl and Mr. Danbury. If we want to bring about change to Code those are the legislators
that could bring about changes to the Code. We don’t have authority over the
legislative decision that one accessory structure, in addition to a garage, is limited on
a property.
Do you have other comments that you can present to us that would persuade us to understand
that this is not a structure?
Mr. Cassidy: It is a piece of functioning equipment. Now if by the termination that makes
it a structure then it is indeed a structure, but then again so would that functioning
equipment on every other person’s property qualify as a structure and as such you
would find the entire community in violation of the interpretation of what a structure is.
The current definition of the Building Code as to what constitutes a structure can be, if
I understand you correctly, interpreted differently. Am I correct in that?
Chairman Okum: No. I didn’t say that. Mr. Danbury read from the Code what a structure
was. We’re only making a decision whether the Chief Building Official for the City of
Springdale interpreted that Section of the Code appropriately for the element that you
have wished to place on your property or have placed on your property.
Mr. Cassidy: And that is why we are having this meeting, is that my view is that he
misinterpreted that definition as applicable to this device.
Chairman Okum: And we needed testimony and we have given an opportunity for testimony to
support that.
Mr. Danbury: Mr. Cassidy, you can take a look at this, this is what we have to go by. They
say justice is blind. This is a tough Board to be on – to look at neighbors and
stuff. But we can’t look at the uses of what you want to do with it because someone
could say “you let him do this, because he is going to do greenhouse, but you
won’t let me do this.” The only thing that we can go by is the Zoning Code.
Mr. Emerson: I just have a couple simple questions; is it attached to the garage?
Mr. Cassidy: No, it is not. I halted production until I could get the front aesthetically
pleasing. I also had the reality factor come into play when I looked at the cost to appeal
the Board’s original decision back in February; which would have cost me $285.00 just
to file for the appeal. The building cost me $300.00. It would be connected to the garage
by a duct-work which would be seasonal, in that I don’t need hot air being pumped
into a garage during the summer. So, as part of the devices function it would exhaust that
air into the outside air when it is not necessary and into the garage when it is.
Mr. Emerson: So, technically it is an independent standing element.
Hopefully, this is going to be a long term thing for you. Did you possibly look into
putting an addition on your garage and having it as part of the structure of the garage,
instead of separate from the garage.
Mr. Cassidy: No, I did not do that to allow for adequate air movement.
Mr. Emerson: I just don’t think it would have been an issue if it would have been an
addition to your garage; then submit for a building permit for a garage addition.
Mr. Diehl: Mr. Cassidy, you may find this hard to believe, but I agree with you. I have an
air conditioner in my home and it sits outside and it is connected to my house; just like
this device. If I heated my house with oil, I would have an oil tank out back and that
would be connected to my house in a similar way. When you were here before one of the main
problems that most of the people have with this device beside the attachment was that it
didn’t look good. Would you consider doing more to change that?
Mr. Cassidy: I would do that. This is a compromise between myself and the Board. I have
come before you with what I got that the Board can say, we need things just a little bit
different and that is how you do things.
It is time, I think, that this community and others realistically look at the fact that
the days of heating oil, natural gas, electrical heating are coming to – not an end,
but have had their peak and it is now time to look at those things which are alternative
in nature. My device is that such type of a thing.
Chairman Okum: Thank you for your comments, Mr. Cassidy. At this point I don’t see
any other lights lit and it is our responsibility to render a decision based upon the
motion. Again, I don’t think that there is a member of this Board that is not
sympathetic. Mr. Diehl, I don’t totally disagree and I don’t totally agree with
what you said, but on the other hand I do know that we regulate and Council approved
regulating the wood burning units in the rear yards this past year and that was a Council
issue. I do know that A/C units as you have indicated and mentioned to this Board are
regulated under our Zoning Code as far as side yard placement and they must be screened
and surrounded so there are regulations that apply to pretty much anything you put on your
property, including a swimming pool which goes in the ground. That doesn’t make a
whole lot of sense to me sometimes, because it is in the ground and nobody’s sees it
from above the ground except the fence that goes around it, but it is still regulated by
our City and our Zoning Code. There are a lot of things that are regulated. I think in
this particular case, I believe the Building Official interpreted personally I think he
interpreted it exactly the way that same Code is used and pretty much every community in
this region, if not the whole United States. Is it wrong or right, I’m not one to say
but I think at this point from the words that Mr. Danbury described from the description
of your device I cannot find any other reason in a reasonable way of looking at it and
I’m not going to address whether air conditioning units are proper or not. We are
talking about your device that you have placed there. I believe that it is a structure and
I think that our Building Official interpreted the Code properly in that determination. I
think Mr. Emerson’s comment regarding “why not a larger garage” and those
kind of things; those are things that you need to consider as an owner that are options.
That may end up eliminating some of this issue but at this point I will be supporting the
motion.
Mrs. Huber: This is probably off the subject, but you were talking about
“green-this” and “green-that” and he’s using wood, cutting down
trees – we need our trees; it is well and good. I heat with oil and I know what that
cost but again we are using wood; we are cutting down trees to provide that wood. I just
wanted to say that.
(At this time Mrs. Cassidy was given permission to speak to the Board.)
Mrs. Cassidy: You said he is cutting down trees; you have to also take in mind that the
trees that he is using, the wood that we have in our log dryer are dead trees. He
didn’t go out and cut down live trees, he cut down dead trees. It is not harming the
environment. I just wanted to clarify that.
Mrs. Huber polled the Board and with a 5-1 vote the administrative decision by the
Building Official has been affirmed.
Chairman Okum: Mr. Cassidy, you have a right to carry it further if you wish. I believe
for your benefit, Sir, Mr. McErlane gave you alternate choices and I am not going to say
that those alternate choices cannot be optioned out by you. You have three choices:
1. Remove the structure.
2. Apply again for a variance from the Board of Zoning Appeals for an additional accessory
structure now that the plastic has been removed from both sides.
3. Appeal to the Board of Zoning Appeals for my interpretation that the structure
constitutes an accessory structure under the Zoning Code.
Mr. Cassidy: I thank you.
Chairman Okum: So, you have those options and you may want to take that and I believe
Staff here would provide you with what allowable garage size you are allowed on your lot
by Code in addition to the accessory structure that you have on there now.
IX. DISCUSSION
VARIANCE FEES
I would like to add one item to the agenda and that item happens to be variance fees.
Recently there was some discussion regarding Building Permit fees in Springdale that we
currently do not have and I think that is great because I don’t think we need to
charge for Building Permits. But on the other hand there is an administrative expense
along with a reality check on variances. The Building Department looked at various
variances fees in local communities. For the record, those have been presented to you. I
spoke to Mr. Galster and Mr. Vanover after the Planning Commission meeting and their
comment to me was bring it to BZA and then make a recommendation to Council, so Council
can act on it if they are going to. If we ran the real cost of variances, $250.-$300. per
variance; with OPERS, with benefits, employees time, driving over to the job site.
(Chairman Okum polled the Board and 5 Board of Zoning Members agreed that a fee should be
charged and one member not wanting to charge a fee for variances; with the majority of BZA
Members wanting a $50.00 fee per residential variance and $100.00 per commercial
variance.)
The City, in one newsletter every year there is a big section on how important it is to
get a building permit, and we still have maybe 30% of residents who do not get building
permits.
AUGUST BOARD OF ZONING APPEALS MEETING
Next month the Planning Meeting will be moved to 6:00 p.m. on August 19th, 2008,
prior to the Board of Zoning Meeting that will begin immediately following
the Planning Commission Meeting, which only has one item on the agenda.
So, with that, I’ll accept a motion for adjournment.
X. ADJOURNMENT
Mrs. Huber moved to adjourn and the Board of Zoning Appeals adjourned at 8:38 p.m.
Respectfully submitted,
________________________,2008 ___________________________________
Chairman Dave Okum
________________________,2008 ___________________________________
Secretary Jane Huber