BOARD OF ZONING MEETING
JULY 15, 2008
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.
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 wont 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 Citys 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 isnt 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 dont 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. Cassidys 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 fašade 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 didnt 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 didnt have another structure out there that shed there, I dont 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 doesnt 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 doesnt 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 wasnt 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, were 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 dont 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 persons 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 didnt say that. Mr. Danbury read from the Code what a structure was. Were 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 cant 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 wont 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 Boards 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 dont 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 dont 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 didnt 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 dont see any other lights lit and it is our responsibility to render a decision based upon the motion. Again, I dont think that there is a member of this Board that is not sympathetic. Mr. Diehl, I dont totally disagree and I dont 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 doesnt make a whole lot of sense to me sometimes, because it is in the ground and nobodys 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, Im 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 Im 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. Emersons 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 hes 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 didnt 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.
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 dont 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, Ill accept a motion for adjournment.
Mrs. Huber moved to adjourn and the Board of Zoning Appeals adjourned at 8:38 p.m.
Chairman Dave Okum
Secretary Jane Huber