BOARD OF ZONING APPEALS MEETING MINUTES

16 JULY 1996

7:30 P.M.

 

I. CALL MEETING TO ORDER

The meting was called to order at 7:38 p.m. by Chairman Barry Tiffany.

II. ROLL CALL

Members Present: Chairman Barry Tiffany, William Mitchell, Councilwomen

Marge Boice and Kathy McNear, James Squires, and

Barbara Ewing

Members Absent: Thomas Schecker

III. MINUTES OF REGULAR MEETING OF 18 JUNE 1996

Mr. Squires moved for adoption and Mrs. McNear seconded the motion. By

voice vote, all present voted aye, and the Minutes were adopted with six

affirmative votes.

IV. CORRESPONDENCE

A. Zoning Bulletin Volume 44 No. 6A - June 15, 1996

B. Zoning Bulletin Volume 44 Number 7 - July 1996

C. Planning Commission Meeting Minutes - 11 June 1996

V. REPORTS

A. Report on Council Activities - Marge Boice - no report

B. Report on Planning Commission - Barry Tiffany

Mr. Tiffany stated I was absent at the last meeting, so I have no report

this evening. If there was anything at the meeting for this Board, I will

bring it to your attention at the next meeting.

VI. OLD BUSINESS

. A. Reconsideration of variance granted Karen M. Kidd, 11493 Bernhart Court to allow extension of driveway into back yard. Said variance was granted from Section 153.038(E) "Driveways shall be permitted in any yard that is not less than 10 feet wide."

(at the request of Board Member Marge Boice)

Mr. Tiffany stated there has been some discussion with the City Law Director in regards to this and some case law research done. He called on Law Director Ken Schneider for his report.

Mr. Schneider stated I want to clarify the opinion expressed at the last meeting as to what the law might be regarding the permission given or lack of objection by a member of the Building Department for Ms. Kidd to move ahead on the improvement. At that time, and after a brief conversation with me and an indication that we were discussing it and I needed further time to review the legal aspects, we did do that subsequent to my advising the chairman that it looked like we had a tough route because the permission was given. After actually researching it, we found the most recent case on the subject, which states in spite of a building official giving an assent or indicating there was no problem, the property owner was still responsible to see that the law was adhered to.

 

Board of Zoning Appeals Meeting Minutes

16 July 1996

Page Two

VI A RECONSIDERATION OF VARIANCE-KAREN KIDD 11493 BERNHART COURT

Mr. Schneider continued it seemed like a rather harsh position from a property ownerís standpoint, but that is the law, the specific case. I believe each member of the Board got a copy of that, pointing out that persons dealing with municipal corporations are charged with notice of all statutory limitations on the power of such corporations and their agents, and must at their peril ascertain whether all necessary statutory formalities have been met. Accordingly, such persons are not entitled to rely upon actions of municipal corporations or their agents when pertinent statutory requirements are not met. That in essence puts the onus on the property owner, even if a mistake is made by a building inspector as happened in this case. My understanding is the facts are that one of the building inspectors indicated he saw no problem with the construction of this driveway. He was not aware of the 10 foot width, of the side yard limitation. We checked, and that is the law. It is not one we would expect. If this permission had been granted or this okay had been given, that we would have to allow the property owner to go ahead or face some consequences on the part of the city. That does not appear to be that way at all, but in fact the property owner is still responsible to ascertain what the real law is. That is the problem we had the last time; the misstatement of what the law was, and that is my understanding as to why Mrs. Boice has asked for reconsideration of this matter. When I made it clear to the people on the Board, that was the issue brought forth.

Mr. Schneider continued if the motion for reconsideration is granted, it needs a motion and a second and a majority before it is reconsidered. If it were to be reconsidered, there are seven criteria this Board must use based on the most recent case law on that subject in determining whether or not a property owner should be granted a variance. Since this is an area variance a side yard setback as opposed to a use variance, the criteria to be considered in whether the variance should be granted or not are:

(1) Whether the property in question will yield a reasonable return or whether there can be a beneficial use of the property without the variance. In other words, can it continue to be used without the variance.

(2) Whether the variance is substantial.

(3) Whether the essential character of the neighborhood will be

substantially altered, or whether adjoining properties would

suffer a substantial detriment as a result of the variance;

(4) Whether the variance would adversely affect the delivery of

governmental services (thatís not an issue here at all);

(5) Whether the property owner purchased the property with

knowledge of the zoning restriction;

(6) Whether the property ownerís predicament feasibly can be

obviated through some method other than granting a variance;

(7) Whether the spirit and intent behind the zoning requirement would be observed, and substantial justice done by

granting the variance.

Mr. Schneider stated those are the measures your body has in considering a variance of this nature. This is a practical difficulties measure as opposed to undue hardship, and those are things you would have to answer. Based on those seven elements the first issue is whether it should be reconsidered.

 

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16 July 1996

Page Three

VI A RECONSIDERATION OF VARIANCE-KAREN KIDD-11493 BERNHART COURT

Mr. Tiffany stated at this time I will entertain a motion to reconsider. This motion would have to come from a member of the Board who voted for the variance last month. Mrs. McNear moved to reconsider the variance and Mr. Mitchell seconded the motion. Voting aye were Mrs. McNear, Mr. Mitchell, Mr. Squires, Mrs. Ewing, Mr. Tiffany and Mrs. Boice. The motion to reconsider the variance was adopted with six affirmative votes.

Mrs. Boice stated when I left the meeting last month, I was very disturbed about this issue. Number one, I had requested at the June meeting that we have legal representation that night, which we did not. Also, I am fully aware that a mistake was made by the City, but I think our going ahead and granting this variance because we were more or less advised, with no written opinion in front of us, that we had no other choice was a mistake; I have never been a believer that another mistake will correct the first one. As you look at that property, and I think we all have been over there and looked at it, I donít think there is one of us here that would drive our car up that strip of cement and use that as a driveway.

Mrs. Boice continued there were some problems brought out where it would be very easy to have encroachment on the next door property owner. We are not sure what the situation was there; it would have put the neighbor in a position of paying the money to get the survey to see if there is by chance any encroachment as it is right now.

Mrs. Boice said I understand that Mrs. Kidd has some money involved there, of course she does. I have no idea what amount of money was spent before this came to light and the City said we have to check this out, or what amount has been spent since the variance was granted. As I said, the City made a mistake, and I think the City has to pay for that mistake to a certain extent. With a variance granted, the City is not paying for that mistake; the neighborhood will pay for that mistake. It certainly is not within the realm of this Board. That would have to come from the administration and consultation with City Council. If there has been undue hardship caused by our misinformation causing the Kidds to expend some amount of dollars, I would certainly in all decency feel that the City would have to bear some responsibility to either restore or repair what has been done because we told them they could do it. What has been done previous to that of course would not be the Cityís responsibility. I just feel to grant a variance here only adds another mistake to the first one made.

Mr. Tiffany asked Mr. Schneider if he felt that the City has any monetary obligation or any obligation to restore the property? Mr. Schneider reported based on the law there is no legal obligation. It would be up to Council if there was some moral obligation that Council chose to consider. A member of Council, such as Mrs. Boice or Mrs. McNear could bring that up and ask for legislation accordingly. It would take a majority vote of the City Council to provide for any consideration on a moral obligation basis. There is no legal obligation, based on the latest court law as we understand it.

Mr. Tiffany continued you mentioned that this is a variance for area use not hardship. I do see some hardship here because of the conditions in which this came about and the dollars that have been spent. Would you not agree with that?

 

Board of Zoning Appeals Meeting Minutes

16 April 1996

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VI A RECONSIDERATION OF VARIANCE-KAREN KIDD 11493 BERNHART COURT

Mr. Schneider responded undue hardship is the requirement of practical difficulty. Undue hardship is a requirement that must be met in a situation where there is a change of use. This is not a change of use; this is a variance of area. An area variance is practical difficulty, and the elements of measuring practical difficulty are the seven statements I made earlier. You have to look at those and determine if in fact any of those are in effect that would create a practical difficulty. If none of those are in effect or some are, it is a weighing process that this Board in its quasi-judiciary capacity is doing here. In that regard, we probably ought to hear from the property owner at some point this evening. As far as legal obligation, there is none. On moral obligation, if this Board were to take a position and recommend that, I am sure it would go before City Council for their consideration. The City in the past under other circumstances and other situations has determined moral obligations and made payments accordingly. That would be the determination of the majority of City Council.

Mrs. McNear commented any business will try to correct the problems of its customers, and this City is a business and the residents are our customers. It may not be a legal requirement, but I definitely think it is an ethical and moral problem that we need to correct and we need to have some compensation should this be turned over. If it is required that we have a recommendation from someone from this Board on Council to make that motion, I would be glad to do so.

Mr. Tiffany asked Mrs. Kidd if she would like to address the Board. Mrs. Kidd stated basically I was not prepared and I did not bring my lawyer to the meeting. I was told that this was going to be a discussion based on the variance. I had not completed the driveway due to the fact that after the last meeting, I was waiting on the letter, which is a big issue because I never would have started the driveway in the beginning. That is one of the reasons why I came to the meeting three months ago, because I didnít get a permit. Mr. Tiffany said I understand you received a letter. Mrs. Kidd responded it was delivered to my house last Thursday and then I received a certified letter yesterday. Mr. Tiffany continued and that referenced in the letter that it was going to be reconsidered. Mrs. Kidd answered right.

Addressing Mrs. Kidd, Mrs. Boice asked if she were stating or implying that because your attorney is not here, you are not feeling comfortable with that? Mrs. Kidd responded basically my attorney being here last time didnít do anything either, because the variance is being reconsidered. My attorney brought in some good points, but tonight you are going to reconsider something that was approved a long time ago. Iím just uncomfortable, because to me it seems like more of a personal issue with the lady who brought it up a long time ago that I was degrading the property of Springdale. Iím not degrading; when I bought the house, it was like a shack, and I have upgraded it 20%.

Mrs. Boice stated I do not get the impression that anyone feels it is a matter of degrading. Granted, as it is laid out, in my estimation it is almost an impassable driveway. You have the right to put cement to your property line; we are aware of that. What you would use it for to that line and that amount that you have, I have no idea, but to use it as a driveway is what the question is. The width of it is just very very questionable.

 

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16 July 1996

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VI A RECONSIDERATION OF VARIANCE-KAREN KIDD-11493 BERNHART COURT

Mrs. Boice continued it certainly does not add to the ambiance of the property or the aesthetics; I would have to be very truthful. I think anyone looking at it would feel that it, number one, it doesnít look like a driveway. Mrs. Kidd commented it isnít completed. Mrs. Boice responded but it isnít ever going to get any wider; we are aware of that.

Mr. Squires asked Mrs. Kidd or Mr. Henderson if they have any concept of the expense incurred thus far? Mr. Henderson responded for the driveway on the side of the house, $1,500.

Speaking to Mrs. Kidd, Mr. Tiffany said I think Mrs. Boice hit on something, and I want to continue on that. Are you uncomfortable not having an attorney here this evening? Mrs. Kidd indicated that she was. Mr. Tiffany continued would you like to wait on this and have your attorney present? Mrs. Kidd responded at this time, I probably will spend about $10,000 with attorney fees. I turn around and bring an attorney, that is more money. If you are going to make the decision, go ahead and make the decision and be comfortable with that, and then I have to do what I have to do. This is my fourth time here. I donít want to have to keep coming back to these meetings. Everything gets hashed out and hashed out and nothing gets done. When I was at the last one I assumed it was over. Had I not waited for the letter and went ahead and got the driveway poured, where would I be? When I was told that I could cement my whole back yard, that is not what I was going to do, but after coming up here I found out 35% of your yard can be covered, and thatís it. To keep coming back and spending the money is ridiculous. Mr. Tiffany responded I canít disagree with you.

Addressing Mrs. Kidd, Mr. Mitchell commented as you said, this is the fourth time appearing before us and I do sympathize with you, being that at the time you were first starting this work, the inspector not being informed somewhat misled you. At that point of time, the cost that you had incurred was x amount of dollars. Was any other work done after the first meeting with Mr. King at the property? Mrs. Kidd responded the first meeting was in 1995. Mr. Mitchell continued so you have worked from 1995 until what time? Mrs. Kidd answered then Mr. Lohbeck came two or three weeks later when they were getting ready to lay boards and said it was fine to go ahead and do the job. This is not something that I just went ahead and did and then later asked if it was okay.

Mr. Mitchell said going back to the point that Mrs. Boice made earlier, to sum it all up, she said two wrongs donít make a right. What is your opinion and feeling about that? She was saying you were misinformed and for us to grant the variance for you to go on and do something that by law was not correct, what is your opinion of that? Mrs. Kidd answered my opinion is that the building inspector said that you can do it, and he had no knowledge that it was 10 feet. The property owner should not be responsible for that, nor should the building inspector be responsible if the books arenít right.

Mr. Mitchell stated my whole point is that Mrs. Kiddís decision to proceed with the project was based on a representative of the city giving her authorization. How many people in he City of Springdale know all the rules and regulations; I would say very very few. How many people have the books and rules; very very few. Just applying common sense and everyday knowledge, very few people have that information.

 

Board of Zoning Appeals Meeting Minutes

16 July 1996

Page Six

VI A RECONSIDERATION OF VARIANCE-KAREN KIDD-11493 BERNHART COURT

Mr. Mitchell continued but then there is the law that says that we are not responsible for any cost incurred by the Kidds. In good faith the Kidds proceeded under the direction of the City of Springdale inspector, upon whom they probably relied solely. They probably didnít come to City Hall to research the matter, and a cost has been incurred. I would hope that if the variance is denied, in some way the City of Springdale will deal with Mrs. Kidd on this issue. Mrs. Kidd added also the information in the Code was not in the driveway section. Even if he knew about it, it wouldnít ring a bell; she wants a driveway, so let me look it up under fences. It wasnít even in the right place in the Code.

Mr.Schneider commented I would have to call on Mr. McErlane for those specific references, but it is my understanding that this was not within the normal variance section. Mr. McErlane report unfortunately the section that applies to the 10 foot minimum width is grouped in with fences and landscape features and a few other things that are arbitrarily placed in the Code. That was what Mrs. Kidd was referring to.

Speaking to Mrs. Kidd, Mrs. McNear said you spoke earlier about being here four times, and that is unfortunate that this has happened, because it does take a lot of time. In an effort to make sure we do this correctly, unfortunately we have had to bring you back several times. Mr. Tiffany has asked you, and Iíll ask you again too. If it is in your best interests to have your attorney present, I feel you should ask that this be tabled, because we want to make sure that we do this right, and we want to make sure that you are comfortable, that everybody here is comfortable, and we do not want to proceed with this without your feeling that your best interests will be looked out for by your attorney, so Iíll ask you again, are you interested in having this tabled? Mrs. Kidd answered no.

Mrs. Boice commented I would like to follow up on what Mr. Mitchell said. As I said, a mistake was made by the City and our attorney has stated very openly that legally we are not responsible. Right now, legally letís put that aside; there are some ethics and morals here. We are not setting a precedent. This happened a number of years ago where a mistake was made and it was necessary for the City to go on to private property and rectify that mistake. I assure you that if the variance is reversed, I would imagine there will be a running struggle as to who will speak to Council about this first, Mrs. McNear or myself. I feel very strongly that we would have to work with the Kidds to find out what their expenditure was that was caused by our mistake, what was done before and what was done after. I have no doubt in my mind, and I will go out on the limb on this one, but I feel the City Council would work very closely with us on this, and I feel comfortable saying that.

Mrs. Tiffany, addressing Mrs. Kidd said we have the figure of $1,500 that you have incurred on the driveway so far. Is that inclusive of the gravel that you put in the back? Mr. Henderson stated just the driveway. Mr. Tiffany asked the amount of the attorney fees and Mrs. Kidd responded I do not know up to this date. He is working on the back yard. Mr. Tiffany responded we would need to know in reference to the driveway, what the attorneyís fees are.

 

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16 July 1996

Page Seven

VI A RECONSIDERATION OF VARIANCE-KAREN KIDD-11493 BERNHART COURT

Mr. Tiffany continued I also share Mrs. Boiceís sentiment that the City has some obligation here. We also have some obligation to the neighbors. We acted last time based on the opinion that we had received and after further review, we have received a second opinion. The opinion is probably legally more correct and definitely from the standpoint of the neighborhood and things like that, it is something we have to reconsider. If this gets reversed, I would encourage you to work closely with your two councilmembers here. I am sure they will do everything they can to help out and to see a means to an end to this thing.

Mr. Mitchell added I would be a little bit hesitant to vote on the issue saying that hopefully if this is denied Council would in turn morally act. I do not want to bring this into the picture, that our vote would be nay against the Kidds, hopeful that City Council would compensate them for money that they have spent. We canít do that; we are going out of our boundaries if we try to bring that into the picture.

Mayor Webster from the audience stated I am not a voting member of Council, but the necessary legislation if passed does not become law until I sign it, so I can guarantee you that if four members of Council wish to reimburse the Kidds for the money they spent based on the error that we have made, I certainly would be more than happy to sign the legislation. To take that one step further, maybe Mrs. Boice and Mrs. McNear and myself will trip over one another in bringing this issue to Council. I certainly will make the recommendation based upon the error that we the administration has made, that we go back and draw a line in the sand at that point, whether it was 1995 or 1994, whenever it was, any money that they incurred based upon the erroneous information that they have gotten from the administration, that we reimburse or repair or make them whole in that regard. If there is money that they have spent on the project that they have not gotten a permit for, weíll have to take a look at the expenses and analyze that. If they will be totally happy with what we are going to reimburse or recommend to reimburse is another issue, but I am totally sympathetic to their cause. And, Mr. Mitchell you are exactly right; I donít think there is any citizen in this town that would research the issue further if a city official told them that they could do something. With something that did not require a permit, they would most likely proceed. So irrespective of what Mr. Schneider says about the law saying we are not liable, I concur that we certainly do have a moral obligation and I would recommend that to City Council.

Mrs. Ewing wondered what the City was doing to keep a problem like this from happening again? Mr. Webster responded when I left the meeting last month having listened to the debate and heard the vote, and believe me I wasnít a very happy camper, not with your decision necessarily, but with the fact that you had been put in that position that based on some verbal legal advice you had to make a vote. One of you voted no and another voted aye under protest but the first thing I did the next morning was sit down with the City Administrator and ask him to pull together a complete chronicle of events as to what led us to here and what we can do in the future to make sure no other citizen is put into a situation like the Kidds were put in. And, that no other Board of Zoning Appeals was put in the position that you were last month. That was absolutely deplorable.

 

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16 July 1996

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VI A RECONSIDERATION OF VARIANCE-KAREN KIDD-11493 BERNHART COURT

Mr. Webster continued in researching that to try to critique what we had done to make sure that it doesnít happen again, we found the recent case law which stated that you can go back and reverse that as long as you do it in certain time frames. Believe me, we are doing everything possible to make sure that this does not happen again. Iím not going to speak for Mr. King, but I would guess if you see him on the street tomorrow and ask him if you could put up a fence, I doubt if heíll give you an answer.

Mr. Tiffany added one thing we are doing in Planning Commission right now is we have recommended to have the Zoning Code brought up to date and restructured entirely and put everything together correctly in the right spots, so that should alleviate a lot of problems like this in the future.

Mrs. Ewing said the last thing I would like to say is when I sat here and listened to the dilemma that the Kidds are in, my heart also went out to their situation. Also Mrs. Kidd, we really have to look at the overall picture of the neighborhood. If you lived on an island alone, I would not have a problem with that. I did not go on your property, but I did drive past to look and see how I would feel if I lived around that. If it were just you and the other people were not faced with the situation, it might not be so much of a problem. I am not saying an eyesore; I donít want you to perceive that I am saying eyesore, but what I am saying is when you have the other neighbors around, it is affecting them, I would like for you to also consider them, and that is what I think we are trying to look at here this evening.

Mr. Squires asked if we were voting to reverse the variance granted at the last meeting. Mr. Tiffany reported we had a motion to reconsider so we are back to square one. Mr. Schneider stated the issue before the body is whether the variance should be granted or not. The motion will be that the variance be granted or that it be denied. One or the other should be the motion, a second would be needed and a majority vote will prevail. Mr. Squires said then I would move to deny the variance. There was no second and the motion died for lack of a second.

Mrs. McNear moved to grant the variance, and Mrs. Boice seconded the motion. Mr.Tiffany stated for clarification, if a motion is brought up in a negative fashion to be denied and someone votes yes, it may be misconstrued that they are voting for the issue and not for the motion. The way Mrs. McNear brought it out as a positive motion, it is always clear as to which way you are voting for the issue. No one voted aye, and Mrs. McNear, Mrs.Boice, Mr. Mitchell Mr. Squires, Mrs. Ewing and Mr. Tiffany voted no. The variance was not granted. Mr. Tiffany stated again I would strongly suggest you work closely with these two councilmembers and the mayor has made a commitment to work with you also. Mrs. Boice added I assure you this will be brought to Council tomorrow evening.

 

 

 

Board of Zoning Appeals Meeting Minutes

16 July 1996

Page Nine

 

VII. NEW BUSINESS

A. Laura Striker, 11869 Lawnview Avenue requests variance to allow the close off of a portion of her existing garage to construct a play room. Said variance is requested from Section 153.025(F) "A garage shall be not less than 240 square feet.."

Mr. Tiffany stated you are requesting a variance to close off part of your garage to construct a play room. Ms. Striker responded actually my intention is not to make a play room per se but more of a storage area for my sonís toys. The storage I have is inadequate, and my intention was to portion off six feet at the rear of my garage. This leaves sufficient room for my car. I want to hang some shelves on the wall and use it as a storage area.

Mr. Tiffany commented this leaves 19í 4" on the length of the garage. What is the typical parking lane? Mr. McErlane reported a typical parking stall in the parking lots is 19 feet, but for a typical garage, 20í is a minimum as far as depth, so we are fairly close in terms of depth. Mr. Tiffany added so we are not really cutting a whole lot out. Mr. McErlane responded no, we are looking at 206 square feet versus the 240 square feet required. Ms. Striker added I have made sure that it is not an issue of not being able to use my garage.

;

Mrs. Boice said I have the same garage myself and at the present time at the back part of my garage it is not partitioned off but I do have a four foot trunk. Next to that I set a big Weber grill in the winter plus a lot of other things. At that end of the garage at one point of time I had three bicycles and a motorcycle and lawn furniture. There is that space; those garages are very long. I personally have no problem with this presentation at all.

Mr. Mitchell asked about the construction of the partition to be installed; is it 5/8 inch dry wall on both sides and will all the two by fours be treated? Mr. McErlane responded it would only be the bottom plate that would be required to be treated, and if it were a playroom, it may be one thing but if it is a storage room, there wouldnít be a requirement for a separation. Mr. Mitchell said so we need to change this variance from a playroom to a storage room. Mr. McErlane stated only if that has some bearing in your decision on reducing the square footage of the garage. That would be something we would deal with from a building permit standpoint.

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

B. Sam Burns requests variance to allow the building at 11631 Walnut Street (General Business Zoning) to be used as a residence. Section 153. 083(A) "The main buildings and uses permitted in GB District are...."

Mr. Tiffany commented before we start with this item, we have three members of this Board who are new as of this year, and Mr. McErlane did put together a history on this issue, and I hope you have that before you.

 

Board of Zoning Appeals Meeting Minutes

16 July 1996

Page Ten

VII B SAM BURNS REQUEST TO USE 11631 WALNUT STREET AS RESIDENCE

Mr. Burns commented the house is beginning to deteriorate quite a bit and needs maintenance. If I can get a variance, I want to use the proceeds from the rent to restore the house. At present we have to pay for yard maintenance, taxes etc. It has been a dead weight ever since we lost our doctor many years ago. We would like a variance for two years if possible.

Mr. Burns continued in the near future we may tear down both of those houses and build a professional building there, but right now I need to do something about it. You are having a spruce up campaign and we painted the old two story and we anticipate doing something with the house with the proceeds on it. Then it would have better appeal for people who might want it for a business. Right now the house lends itself quite well for a residence; it is a residence really.

Mr. Mitchell commented I was on the Board in August of last year when you came before us requesting a variance to use this house as a residence. At that time, it was tabled because you said some person just moved in without your permission. We then asked you to have the house inspected to make sure it was fit for residential use. I donít see where that has been done.

Mrs. Burns said if Mr. McErlane had been here that night, he could have vouched for us that two years before, we had had everything done that needed to be done, and it had been inspected. It was still all there so it should have been all right and it still should be all right.

Mr. Burns added it has been inspected many times by your city people. We have had electrical checked out and we had them put grounds on some of the plugs to met the code and had put extensions on banisters so people could walk up and down.

Mr. Burns stated it lends itself quite well for a residence. Here is my pledge to you. If you will grant us a variance, we will put it in top notch condition before weíll rent it and you can inspect it. We donít want to put a lot of money in it and have it set there for another two or three years.

Mrs. McNear said I have been on this Board about seven of the last nine years. Quite frankly, I am tried of listening to this. I have circled a couple of items on this two page list of the activity that we have had on this property:

11/85 illegal occupancy

9/87 Illegal occupancy

11/87 denied variance for request to use as a residential home

1991 temporary variance granted

1992 illegal occupancy

1992 illegal occupancy

1992 variance denied again

It goes on and on for another seven or eight lines. I see this as a lack of respect for the laws of this city and I will be voting no on this again and again and every time this comes in, I will be voting no. You have lost the variance to use this as a residential home; it needs to be made into a business or the property sold or some other means of moving this property on to something else, but it is not suited, it is not fit for people to live in it.

 

 

Board of Zoning Appeals Meeting Minutes

16 July 1996

Page Eleven

VI B SAM BURNS REQUEST TO USE 11631 WALNUT STREET AS RESIDENCE

Addressing Mr. Burns, Mrs. Boice said I want to pick up on your statement about your giving us your word that if we granted a variance you would shore the property up. No one was more astounded than I when you stood before us last time and said that you didnít know that both ladies were in there using the residence. I asked you at the time who was handling your property. We really have tried to work with you on this, and this is the history on it; it just goes on and on. It is very frustrating, because you say you are going to shore it up, we grant a variance, and maybe next week the Building Department will go down and another lady will be in there and weíre going to be told that you donít know how they got in there. I just find it impossible to deal with. I feel much as Mrs. McNear has quite succinctly stated.

Mrs. Burns responded the last two came in under false pretenses. We are a long way away and when somebody wants to rent it, they call us. One girl said she wanted to put a boutique in there; that sounded okay and we said sure. It turned out that she just wanted to live there, and we didnít know that. They are taking advantage of our absence. Mr. Burns added we told her that she would have to get an occupancy license. Mrs. Burns continued later on this other woman said she wanted to put some kind of elderly care in there and I told her she would have to check with the city. We thought that was being done, but she moved in and we have a real hard time getting rid of them. It is a very unpleasant thing for someone to have to go through. We tried both times to get a business.

Mrs. Boice said I understand that, but when one owns property, you are the ones responsible to come to the city and say thatís what is going in there. I realize that managing property from a distance can be troublesome. I know several people who have property at distances, but they have a manager or an agent that handles it for them, someone to turn over the keys and be sure that someone is not just going in there. It is your ultimate responsibility. They can tell you they are going to do anything. Thatís not good business; we canít operate that way, because it puts you in a spot and it certainly puts the city in a spot.

Addressing Mr. & Mrs. Burns, Mrs. Ewing said when I served on Council, I also heard concerns with this piece of property. The property is zoned General Business (GB), and you are asking for a variance for a residential use. Is there a hardship situation as to the reason why you feel you need to rent it out to garner this income to help fix it up? Is that your concern? Will you elaborate?

Mrs. Burns responded that is true; we do need to rent it out because itís going down. We have even had storm doors carried off by who knows who; things disappear.

Mrs. Ewing continued you only want a variance for two years and after two years, you would like to tear it down and put a business in there; is that what you are saying?

Mr. Burns answered not necessarily. We would use the proceeds to enhance the looks of the building regardless of whether it rents out any more. I wouldnít want a variance for any more than two years and use the proceeds to spruce up the building, because it has really deteriorated. Mrs. Ewing said I agree, but my big concern here is we are wanting people to live in a General Business area. Are you sure you can get people to move in?

 

Board of Zoning Appeals Meeting Minutes

16 July 1996

Page Twelve

VI B SAM BURNS REQUEST TO USE 11631 WALNUT STREET AS RESIDENCE

Mr. Burns responded if we put siding on it. There is a lot of resin on the building, and the paint wonít stay on; we just painted two years ago. If we could put siding on it, repair the windows and replace the door. Someone stole the security door we had. Also someone broke through the back door and tore all the wooding away and took a stove and a lawnmower.

Mr. Squires commented I am a new member on this Board, and this is quite a history. You have known for some time that the property has been deteriorating, havenít you? Mr. Burns confirmed this. Mr. Squires continued obviously it did not happen over night. The point that I am making is as the owner of this property, donít you feel some obligation to keep it up? Mr. Burns responded we continuously have been doing things for it. Mr. Squires continued you still want this out as a residential; you want to get income from renting it. Mr. Burns reported that there is a couple that are custodians from the Princeton Board of Education and they want it. If I could get a variance for two years and let them move in there, I would let them use the proceeds themselves and whatever is necessary to enhance the beauty of the house.

Mr. Squires stated the point I want to make is that you know yourself that it is illegal to rent this, donít you; it is zoned Business. Mr. Burns responded I have never deliberately rented to anyone illegally myself. I have never rented it to anybody. One of my tenants gave somebody the key and they moved them in without any permission at all. Mr. Squires responded I donít understand how they can move in without permission. Mr. Burns stated Carl Baker had a key to the residence, and someone came to him crying with babies, etc. wanting to move in, and he let her move on in. We asked her to move and we almost never got her out, and then his daughter moved in saying she was going to put in a boutique. She was in there for several months before we could get her out. She didnít follow through with her boutique, and she wasnít supposed to be in there to begin with.

Mr. Squires commented I am beginning to take the side of several of my colleagues on this Board. It is not plausible to me how you as an owner could not know these things were going on. Mr. Burns responded I knew it was going on, but I knew it after it had happened.

Mr.Tiffany commented I donít want to belabor this any longer than necessary. When I first came to this Board as Chair almost five years ago, this was one of the first issues I had to deal with. I went to Mr. Schneider and asked for a legal opinion as to use of this as a residence in a General Business District. I got a written opinion and presented it to the members, and I think it sums it up. It is backwards in the direction that the property should go for this city. It is not in the proper direction for that property. It would be like putting a residence where the Precision Tune is now or where Provident Bank is now, converting those over. It is not in the best interests of the city. That was his legal opinion then; that would be his legal opinion now. That continues to be my opinion. As you folks have stated, I count six or seven times here where we have had illegal residential use of this property, and all six or seven times with the exception of maybe the first one when his daughter was using it, he had no idea that they were there.

 

 

 

Board of Zoning Appeals Meeting Minutes

16 July 1996

Page Thirteen

VI B SAM BURNS REQUEST TO USE 11631 WALNUT STREET AS RESIDENCE

Mr. Tiffany continued I would suggest strongly to you Mr. Burns that you do something with this from a business standpoint. You need to get in touch with your property and understand and know what is going on with it. With seizure laws nowadays in this country, if somebody does something illegal in that house, it is the governmentís property.

Mrs. Boice moved to grant the variance and Mrs. McNear seconded the motion. No one voted aye. Voting no were Mrs. Boice, Mrs. McNear, Mr. Mitchell, Mr.Squires, Mrs. Ewing and Mr. Tiffany. Variance was denied with six negative votes.

VIII. DISCUSSION

Mrs. Boice commented I have not been happy with our lack of promptness the last few meetings. We were 10 minutes off the mark tonight and five or seven the last meetings. When we have people in the audience who have been told to be here at 7:30, I would like very much for us to start very promptly.

Mrs. Ewing asked if the Burns can come back again and Mr. Tiffany responded that they could after six months. Mrs. Ewing wondered if the City could do anything and Mr. Squires asked if they could condemn it. Mr. Tiffany responded that it is not a condemnable building at this point, and I donít think we can discuss this now if it is not an issue before us.

Mr. Tiffany reported rules of order I try to stick to as closely as possible but I like to keep it casual. I would ask that you please use your call buttons to signal in so that I can take the people in the order they come in.

Mr. Tiffany continued the other thing is on some of the issues, I have had some concern whether or not people are removing themselves from issues that may be a little close to their heart. I would ask with each issue that you take a close look and ask yourself if it is an item that you should partake in the discussion on. Look at it and ask if you have a similar situation. Mrs. McNear perhaps for the next couple of meetings you can ask that question before we start the meeting. Mrs. Ewing wondered if you need to do this if the applicant is someone you know. Mr. Tiffany answered ths is a small town. If somebody lives in The Terrace and they have been here for a while, chances are Mrs. Boice knows them. Iím not asking that she remove herself from the issue. I did it on Planning Commission recently with an issue where a restaurant in town was coming in for an item and I have relatives who work for that chain and I removed myself from the discussion to alleviate any possibility that these people could misconstrue my vote one way or another. It is only proper that you do so. If youíve someone in the audience coming in for something who is a very close personal friend, chances are it wonít be an issue, but it is best to make sure that you donít give the appearance of a conflict of interest. Mrs. Boice added when my neighbors Mr. and Mrs. Dagget were in for a variance, I excused myself. If you have a business connection with something, you should remove yourself. I believe everyone of us can make an open clear and honest decision, but we are living in an age where we are putting ourselves in a position of doing it ethically correct. Mr. Mitchell added last month I excused myself from the discussion concerning the Waresí variance since my front yard looks into their back yard.

 

Board of Zoning Appeals Meeting Minutes

16 July 1996

Page Fourteen

VIII - DISCUSSION - continued

Mr. Tiffany added it is a must, and I ask that you take a close look at each issue, and itís not so much not to vote on it; you shouldnít participate in the discussion. Mrs. Boice added I think you should physically remove yourself.

Mr. Mitchell commented the issue with the Kidds and the decision that Mr. King made hopefully will not be reflected negatively towards Mr. King. I may be overstepping my bounds here, but I donít want to put the employees of Springdale in a position where they are scared to do their jobs. Hopefully we can get something positive out of this and not be totally negative. I want to say that for the record. Mr. Tiffany added I think it will rectify a lot of things. I donít think anyone holds Mr. King directly responsible; the Code was not put together well. The opinion of the Planning consultant is that the Code is horrible, as bad as they get. That is why we are redoing it.

IX. ADJOURNMENT

Mrs. Ewing moved to adjourn and Mrs. McNear seconded the motion. By voice vote, all present voted aye, and the Board of Zoning Appeals adjourned at 8:50 p.m.

Respectfully submitted,

 

 

_______________________,1996 _____________________

Barry Tiffany, Chairman

 

 

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Barbara Ewing, Secretary