BOARD OF ZONING APPEALS MEETING
JULY 19, 2011
I CALL MEETING TO ORDER
The meeting was called to order at 7:00 p.m.
II ROLL CALL
Members Present: Jim Squires, Lawrence Hawkins III, Robert Weidlich,
Robert Emerson, William Reichert, Jane Huber
Members Absent: Dave Okum
Others Present: William McErlane, Building Official
III PLEDGE OF ALLEGIANCE
IV MINUTES OF THE REGULAR MEETING OF JUNE 21, 2011
Mrs. Huber moved for adoption as written the June 21, 2011 Board of Zoning Appeals Meeting minutes, Mr. Hawkins seconded the motion and the Board of Zoning Appeals minutes were adopted.
Vice-Chairman Weidlich: No correspondence this month.
VI REPORT ON COUNCIL
Mr. Hawkins: No report.
VII REPORT ON PLANNING COMMISSION
Vice-Chairman Weidlich: Our Planning Commission Member is out tonight, so we have no report for Planning Commission.
VIII CHAIRMANS STATEMENT AND SWEARING IN OF APPLICANTS
IX OLD BUSINESS
A. Vice-Chairman Weidlich: The owner of 534 West Kemper Road has applied for a variance to erect a 157 square foot utility building. Said variance is requested from Section 153.492(B)(3) Detached accessory buildings other than garages shall not exceed 2.0% of the lot area, or 12% of the area of the dwelling unit, whichever is less.
Mr. McErlane: We received a verbal withdrawal from the applicant today but we havent received anything in writing. We have asked them to follow up with an
email acknowledging that, so it is at your discretion whether or not you will accept the verbal withdrawal.
Vice-Chairman Weidlich: I will accept the verbal withdrawal.
B. Vice-Chairman Weidlich: The owner of 12 134 Kenn Road has applied for a variance to erect a 432 square foot utility building. Said variance is requested from Section 153.492(B)(3) Detached accessory buildings other than garages shall not exceed 2.0% of the lot area, or 12% of the area of the dwelling unit, whichever is less; also a variance request to keep chickens at 12134 Kenn Road as referenced in Section 153.496(C) Fowl, rabbits, or bees may be raised or kept for a resident owners use on a lot of not less than three acres of area, provided the structure containing such use shall be located not less than 100 feet from all adjoining residential lot lines.
Mr. Aaron Schmits: My wife and I live at 12134 Kenn Road. I am coming before you because my house is significantly smaller than our lot; our lot is 2.1 acres and as far as the building the structure that we want to build is 12 X 36 and it would match the same width of our garden. We, by law could build a 12 X 24 building but we thought if we bumped it up 12 more to make it the same width it wouldnt make that big of a difference. It will not infringe on anybodys property because we have such an expansive amount of space. As far as the fowl go, we wanted to have three Road Island Reds, it is a type of hen and they produce about one egg a day. A chicken technically needs about 4 s.f. of space to live comfortable; it is more humane than a lot of stuff that is going on at the big poultry places and we would know what the chickens are eating. We are very self-sustaining people, we have a massive garden and we can and freeze. Since it would be only three hens and no roosters, so there wouldnt be any squawking or anything like that, we thought that it wouldnt impede on anybodys happiness around our house. Our lot is 2.1 acres, so we are .9 acres short and also where we would like to put it would be about 90 from my neighbor Kevins fence line. Chickens need light and they need shade, so we wouldnt want to stick them right out in the middle of the yard because they would die. They are not going to be running around the yard; the only other place they would be is their coop which would be 12 X 4 wide and that is for them to sleep in or my garden which is completely fenced to essentially free-graze and eat worms and peck out small weeds. It would be a completely contained system and wouldnt give anybody any trouble. We moved from Daly Road where we had three quarters of an acre in Springfield Township and when we moved into the house there was a chicken coop there and the guy kept a goat, as well. We did not keep chickens there and this is something that we have thought about, we dont want to do this on a large scale it would always be small and it would be very much in control. I have done a lot of research.
Mr. Hawkins: I just wanted to announce again, as I did at the last meeting, I had a conversation with Mr. Schmits a couple of months ago and I indicated and disclosed that and again I thought I could be fair and impartial but I wanted to reiterate that again, now that the applicant it present; if anyone has any issues with regard to me sitting and making a decision on this. No one indicated that they had an issue before but I dont think Mr. Reichert was here when we addressed that last month.
Vice-Chairman Weidlich: Does anyone have any objections to Mr. Hawkins involvement in this issue?
(No one objected, so the meeting continued.)
Vice-Chairman Weidlich: We will open the meeting up to communications from the public. Does anybody in the audience care to speak on this issue?
Mr. David Stewart: We live at 722 Yorkhaven Road. We have three small children; our backyard runs into their backyard slightly. We have concerns about the safety of the children, and also the diminishing of the property value with a structure erected like that. If we had any desire to sell or anything like that I am not sure that would be feasible for us, under those circumstances. Also, with the safety issues, we do have concerns about chickens with regard to the coyotes that have been sited in the Springdale area and we want that stuff as far away from our home as possible.
Ms. Carol Simms: I live a 12174 Greencastle Drive. I grew up in Louisiana, so I am kind of familiar with chickens being raised. I was pleased to hear that we were only talking about three. I have some of the same concerns as the gentleman before, property value and coyotes, odor and even sanitation. Three chickens does take that concern down, but do we have his word that he is only, ever going to have three chickens? That is a pretty big structure so for me it is very much about, is this something that is going to stay contained in his yard. There is runoff that could be an issue for some of the neighbors but for me it is coyotes, it is odor and it is property value. I am glad we are not talking a rooster. That is where my husband and I are coming from. I can tell you that I did talk to my neighbors, the Mitchells, and they did have some of the same concerns.
Ms. Lataska Gibson: I live at 718 Yorkhaven Road. I just wanted to reiterate some of the same concerns. Where we are located we get a pretty clear view of the back of this gentlemans back yard and he has already built a very large garden and I know he has plans for other things and he has a right to do that. My concern is the size of the building and just hearing the number of hens that he is planning on raising in there, my number one concern is why such a large building and how is that going to be governed to know that is all. I dont want to dispute what he is saying today as being the facts, but going forward the concern is if that would only be three hens; secondly the concern about the property value because it is visible when I go out in my backyard, for company and family gatherings, or if you are just out there yourself. I personally feel that a lot of the back of his yard has become somewhat of an eyesore; he may have a vision down the road that would eliminate that.
Vice-Chairman Weidlich: We have a letter that I believe is from you that we received last month?
Ms. Gibson: Yes.
Vice-Chairman Weidlich: We will not read that into the minutes since you just spoke your concerns.
Mr. Greg Gibson: I live at 718 Yorkhaven Road; my wife just spoke. I want a little more detail about what the variance is and what it states.
Vice-Chairman Weidlich: We will be getting to the Staff Comments in a few minutes, sir, and you will be able to get that information.
Mr. Gibson: It says 435, I was in construction and to hear the size of the structure, but if there was some kind of drawing I could look at to see how it is attached to his home, or not, so I can see the size of it.
Vice-Chairman Weidlich: We have been provided that it is a free-standing building in the backyard parallel to the garden.
Mr. Gibson: My other question concerning this is, has any other things such as this nature come up prior, and if so how were they handled?
Ms. Angela Stewart: I live at 722 Yorkhaven Road. I want to address the concerns about the wildlife; we have a lot of deer in our area, we have had as much 11 to 13 deer in our yard in the back area, at any one point and time. Our kids are here today and I want them to be able to go in the back yard to the swing set and play in the pool and not be concerned of these animals around. My husband stated that we have seen coyotes and foxes and I think that the land that he was supposed to have to support this is at least 3 acres and he has already stated that he does not have three acres. The other concern is who is going to control and monitor the fact that he has stated there will only be three chickens.
Mr. George Patrick: I live a 730 Yorkhaven Road. I would like to welcome
Mr. Schmits to the community and I am glad that you want to use the community effectively, however some of the concerns that I do have at this point is in regard to the property value and varmints and noise. I am pleased that it is not forty chickens, however in the event of three chickens, varmints are drawn to the neighborhood such as raccoons, skunks, and all different types of wildlife. I am living just behind him and it is more than what is required to have a permit to be there; where my house sits is at the bottom of the runoff and all the water from his property ends up on my property and I am concerned about that. I grew up in the Virgin Islands around chickens and they do get very excited before they lay eggs and they get very excited after they lay eggs; these types of chickens I am not sure what this type of breed is about. My property value can start decreasing because people may not want to purchase my property for the value.
(No other audience members came forward to speak concerning this item and this portion of the meeting was closed.)
(Mr. McErlane read his Staff comments.)
Mr. Aaron Schmits: I wasnt building a building for chickens, it is for our lawn equipment and things like that. The chickens would be in a 4 X 12 pen and it would be like raising pigeons or doves. They would not be out and about in the yard. I am not trying to start a farm and I dont want the chickens in your yards; I put the fence in to make sure my dog doesnt run in your backyard; I want everybody to be happy and it seems like there are enough people here that dont want it and I can understand and I appreciate that. I hope that in the future we can all talk as neighbors and that we can clarify things.
Mr. McErlane: Can you clarify for us where the chickens will be housed?
Mr. Schmits: On the aerial photo it shows the garden in the upper right hand corner, which would be the northeast area; there is a spot where it would be partial shade during the day and then it would get some sun. If I stuck them in the middle of the yard it would look tacky and this would be back in a honeysuckle section and you wouldnt see it. There is a drainage pipe that runs through my backyard, an old clay drainage tile and it would be up from that. It is the farthest away I can be from anybody; I cant emphasize enough that this can only be 4 X 12, which is really small. The building that I would like to build to keep my stuff in is at the north end of my garden; I want to keep tractors in there. If I were to put a separate structure it would be akin to a dog house and it would be separate from that metal structure.
Vice-Chairman Weidlich: We will move on to getting a motion from the Board. I would like to do as Mr. McErlane suggested and split this up into the shed structure and the chicken issue as two separate variances. We will start with the shed variance first.
Mrs. Huber: I move to grant a variance from Section 153.492(B)(3), so as to allow a 432 s.f. utility building 15 from the property line at the property located at 12134 Kenn Road.
Mr. Reichert seconded the motion.
Mr. Hawkins: Mr. McErlane, have we had any applications like this before?
Mr. McErlane: We have had applications for larger accessory structures in the past; most of which have been for larger garages, not free standing accessory structures.
Mr. Hawkins: Have you had any request for something like this in terms of the chickens?
Mr. McErlane: Not in 25 years.
Vice-Chairman Weidlich: We did have an issue with goats at one time; and we denied it.
Mr. Reichert: What kind of flooring will it be?
Mr. Schmits: It will be a poured concrete pad.
Mr. Emerson: Mr. McErlane: Are there measurements separating when we leave a category of a shed versus a garage?
Mr. McErlane: By definition of garages, it is for housing of vehicles; if it were intended to be a garage it would require him to pave a driveway back to that location, as well.
Mr. Emerson: Why wouldnt you consider housing the chickens in the 30 long structure that you are building versus across your lot in another corner?
Mr. Schmits: For light, for air and for general health of them; they are animals and they are supposed to have some access to the outdoors and they need some protection from the elements but I really dont want a bunch of chickens in my structure that I am going to be keeping all of my equipment in because they crap all over it.
Mr. Emerson: Yeah, but you could box part of it off, with a doggie door to let them in and out.
Mr. Schmits: I was just assuming that having a smaller pen, a smaller structure and it would smell in there, too. At least the air
Mr. Emerson: So, hold on a second you are bringing out points that they just brought out.
Mr. Schmits: It is just three chickens. If I walk out of here and you say no and the neighbors are happy, that is fine. I dont want to make my neighbors mad and I want to live peacefully with the people I live around.
Vice-Chairman Weidlich: Realistically, I have a problem with the size of your building because it is 145% of what the code allows; that is a pretty large increase over the allowance. Is there something that you can get by with, that is less square footage, to house what you have? A 12 X 36 is big enough to put two cars in and still have plenty of room.
Mr. Schmits: I work on mopeds during the summer; I am a schoolteacher for nine months out of the year and I do need areas to store other things. My garage is very short. My wife wants to be able to park the car in the garage and I need some more space to store these projects. For me it is a matter of aesthetics, an extra 12 in length I am not sure how that would affect anybody. This is the size structure I want and it would compliment what is going on at my house.
Vice-Chairman Weidlich: A variance goes with the property forever; it is not just while you own the property but it is for you and the next fifteen owners after you. That is why I am asking if you could do what you need with a smaller structure,
300 s.f. or something like that, we would be pretty much at Code limit.
Mr. Schmits: The way I understood it was the reason that Code was put in place was so that you didnt have a small house and a giant structure behind your house because it would look kind of bizarre. If it was based on the size of my lot, I could have a 1,800 s.f. building.
Vice-Chairman Weidlich: But it is based on whichever is less of the two, sir.
Mr. Schmits: Exactly, right. But in the spirit of what the Code is trying to put forth, at least the way I understood it, you dont want to put this massive building next to a tiny house. My house is only 2,200 s.f. and obviously there is such a massive difference in what the Code would allow. All I am asking is for a little bit more than the figure that is less; I am just asking for twelve extra lengths of feet.
Mr. Squires: What type of projects are you going to do?
Mr. Schmits: I am an art teacher, sometimes I teach pottery, I teach guitar lessons and I work on motorcycles and farming equipment, I will work on my tractor and snowplow; I work on lots and lots of mopeds. It would be easier for me to bring a moped in and lift it up to work on it and put it back down to sell it later. I am a woodworker and above my garage I have a full wood shop and it would be a great place for me to store wood.
Mr. Squires: Are you going to do this as a business?
Mr. Schmits: No, not as a business. It is just my interest, my hobby.
Mr. Squires: You mentioned 6 to 8 mopeds; do you fix these up and sell them?
Mr. Schmits: On occasion, yes.
Mr. Squires: Then, that is a business.
Mrs. Huber: The cars that are sometimes parked in your grass and on your drive, are those all yours?
Mr. Schmits: I have parties; my family comes over.
Mr. Hawkins: The height of this building would be approximately 10 inside; the apex maybe another 2?
Mr. Schmits: Yes.
Mr. Emerson: Are there going to be any windows in this building and is there going to be electricity?
Mr. Schmits: No electricity but I am going to have four skylights and I would like to put in solar powered flood lamps to avoid running wire; and I would probably have a solar powered attic vent.
Vice-Chairman Weidlich: There are no further questions; the Board Members based on the facts presented and the rules of the Board of Zoning Appeals, has all the test of this variance as required by law been considered in your deliberations and findings.
And so that everybody is aware that we have six members present tonight and if it is a tie vote, it is considered a denial.
(Mrs. Huber polled the Board of Zoning Appeals Member on the building request only and with three aye votes and three no votes (one member absent) the request was denied.)
Vice-Chairman Weidlich: We are moving on the request to have chickens on the property. We have already heard Staff comments and heard from the audience on this issue. Can we have a motion?
Mr. Reichert: I make a motion for a variance requested at 12134 Kenn Road in reference to Section 153.496(C) Fowl, rabbits, or bees may be raised or kept for a resident owners use on a lot of not less than three acres of area, provided the structure containing such use shall be located not less than 100 feet from all adjoining residential lot lines.
Mr. Emerson seconded the motion.
Mrs. Huber: Having lived in Springdale most of my 79 years, along Kemper Road where the houses are 70 to 80 years old, everybody had a chicken house. My dear grandfather said that everybody came out from the City and the valley and wanted to raise chickens. My grandpa said they were so dumb that they didnt realize that you have to feed and water them and not just collect the eggs. We are now in a different era and we have subdivisions here. When I was growing up we had a thousand people and now we have over ten thousand. The complex now is different and I admire your wanting chickens they are fun and I wouldnt even mind you having a rooster but where you live you just cant do that, in my opinion.
Mr. Squires: On your application on item #5, you admit that you have too small of a lot size for chickens.
Mr. Schmits: Would you read it for me, sir?
Mr. Squires: Are there ways that you could use the property as desired in compliance with the Zoning Code?, and you answered No, we need a larger shed to store the family tools and equipment and our garage is very small. Our lot is too small to have chickens.
Mr. Schmits: It is .9 acres too small to have chickens.
Mr. McErlane: Based on what the applicant proposed in terms of the location of where he wanted to house the chickens, it indicated somewhere in the neighborhood of 90 from the south property line, as Mr. Reichert phrased the motion it holds him to the 100 and just offering up if someone would want to make an amendment.
Vice-Chairman Weidlich: If you would put some sort of a structure for the hens to be housed in that would be considered another accessory structure on your property when you are only allowed one accessory structure.
Mr. Schmits: There are a lot of people in Springdale that you could be bringing the hammer down on.
Vice-Chairman Weidlich: Board Members, based on the facts presented and the rules of the Board of Zoning Appeals, has the entire test for this variance as required by law been considered in your deliberations and findings?
(At this time Mrs. Huber polled the Board of Zoning Appeals Members present and with 6 no votes the request to allow chickens on the property was denied.)
Mr. Schmits: I didnt know that Springdale had all these regulations, when I moved in and I know that it has no bearing on your decision but I actually regret moving here now; this is really kind of sad. I am sorry.
X. NEW BUSINESS
A. Vice-Chairman Weidlich: We will move along to our first item on the agenda for New Business which happens to be not a variance request but an Administrative Appeal from the decision of the City of Springdale for Richard Benhase, automotive use in a General district, 11741 Chesterdale.
(At this time Vice-Chairman Weidlich did swear in Mr. Dennis Deters, Attorney representing Mr. Richard Benhase.)
Mr. Deter: My point of procedure, I do not intend to present any testimony; I have no first hand knowledge, aside from what I know of the business. I do want to inquire as to Mr. Benhase, so I want to do that to the satisfaction of the Board; is it appropriate for me to bring him up and ask questions?
Vice-Chairman Weidlich: I dont have a problem with that.
Mr. Hawkins: I wanted to, as a point of disclosure I had spoken with Mr. Deters a couple months ago while this matter was going through Mayors Court and if anyone would want me to recuse myself, I will but otherwise I think I can be fair or if
Mr. Deters wants me to recuse myself.
(Mr. Deters indicated that he did not have a problem with Mr. Hawkins participation with the appeal request.)
Mr. Deters: Just as a point of order, was this case brought as a variance at one point, and denied?
Mr. McErlane: A variance application was submitted and the Law Director determined that The Board of Zoning Appeals could not hear a use variance under a Zoning Code and the applicant was informed that they could not act on it.
Mr. Richard Benhase: I have property at 11741 Chesterdale.
Mr. Deters: You have provided me with documents that represent aerial map and some photographs of your premises; are those true and accurate representations?
Mr. Benhase: Yes, they are.
(At this time Mr. Deters handed copies of the aerial map and photographs to the Board of Zoning Appeals Members.)
Mr. Deters: How long have you owned the property in question?
Mr. Benhase: Roughly sixteen years.
Mr. Deters: For the lion-share of that time what has the nature of the business been?
Mr. Benhase: I typically ran a cabinet shop.
Mr. Deters: How long during that fifteen year period did you run the business as a cabinet shop?
Mr. Benhase: The whole time.
Mr. Deters: At some point did you change direction on your business, is that correct?
Mr. Benhase: We started working on classic automobiles.
Mr. Deters: Give the Board the reason why you changed course in your business.
Mr. Benhase: In 2008 the building business fell off and I am a car enthusiast, I have twenty-something cars of my own and people asked me if I would start working on theirs so I started to do that since we were no longer very busy in the cabinet shop.
Mr. Deters: What kind of clientele do you have in this car restoration business?
Mr. Benhase: Almost all the people we work with are car collectors. We dont look at anything that is new. The cars we work on are over 30 years old. The cars are to take to shows or they take out in parades; not your normal everyday cars.
Mr. Deters: Are these vehicles, vehicles that are often kept off the road?
Mr. Benhase: Most of the vehicles that we have are private collectors who take them out to shows, any type of car events or community parades and functions.
Mr. Deters: At some time during the course of your business you had a conversation with the members of the Citys Administration, the Building Department advising you that you were not compliant with their Zoning Code, is that correct?
Mr. Benhase: Yes.
Mr. Deters: What were those conversations?
Mr. Benhase: They kept making reference over running a garage service, it has nothing to do with that at all.
Mr. Deters: What do you do?
Mr. Benhase: Most of the cars that come to us have been sitting and they need to be restored. We disassemble them and we send parts off to have them rebuilt. We dont do any engine rebuild; we send the engines off and have them rebuilt. We send off all of the components and pretty much have things remanufactured or reconditioned and then we prep the cars. We have people re-do our painting for us; most of it, we are taking the cars apart and sending the parts off and have them come back and we are re-manufacturing the car.
Mr. Deters: Is most of what you do assembly?
Mr. Benhase: Disassembly and assembly.
Mr. Deters: And that is reflected in the pictures of some of the cars that you presented to me and that the Board has?
Mr. Benhase: Yes. Most of the cars that we work on are not something that is done in a period of months. It takes, most of the time, a couple of years or longer to do these restorations.
Mr. Deters: How many cars are you working on at one time, on average?
Mr. Benhase: Currently, we have about six cars that we are working on at this point and we have other people that are wanting us to do restoration on their cars, as well. At this point we are not sure where we are going; depending on what happens with this meeting.
Mr. Deters: What is the average life-span of a standard rebuild that you do on one of these cars?
Mr. Benhase: When we get done restoring the car, it might last long; indefinite if people take care of them.
Mr. Deters: How long does it take you to rebuild one of these cars, on average?
Mr. Benhase: To do a frame-off restoration, we work almost four weeks on it and we can have the thing done probably in two years.
Mr. Deters: And that is on average?
Mr. Benhase: On average.
Mr. Deters: Do you have any outside storage of these vehicles?
Mr. Benhase: No.
Mr. Deters: Is everything that you do inside your building?
Mr. Benhase: Yes, it is.
Mr. Deters: How big is your building?
Mr. Benhase: The building is 3,500 feet.
Mr. Deters: How tall are the ceilings?
Mr. Benhase: Roughly 18 feet.
Mr. Deters: During most of the time your activity is going on, do you keep your doors closed?
Mr. Benhase: The majority of the time the doors are closed.
Mr. Deters: Do you have any grease traps in there?
Mr. Benhase: No, we dont have a grease issue.
Mr. Deters: Do you have any gas pumps?
Mr. Benhase: No, we dont.
Mr. Deters: As far as the by-product of your remanufactured, comparing it to what you did with the cabinets; the glues, the adhesives, chemicals, how would you compare the impact on the environment of your building?
Mr. Benhase: We are probably using less hazardous products in refurbishing cars than we did manufacturing cabinets.
Mr. Deters: And you made a determination, based upon your conversation with the Board that you are not going to do any engine repair, per say, correct?
Mr. Benhase: No.
Mr. Deters: All of that is outsourced?
Mr. Benhase: We outsource engine overhaul, transmission overhaul; a majority of all of that stuff, we send it out.
Mr. Deters: You were cited with a violation, a minor misdemeanor violation in Mayors Court based upon the finding of the City of Springdales Building Department, is that correct?
Mr. Benhase: Yes, it is.
Mr. Deters: What is the nature of the vehicle traffic in the vicinity; do you have a lot of cars coming in and out?
Mr. Benhase: No.
Mr. Deters: Give me an average of how many cars would come in and out of your lot on an average day?
Mr. Benhase: We probably have four or five cars a week.
Mr. Deters: And are those cars that you work on or people that come to see you?
Mr. Benhase: People coming to see us.
Mr. Deters: Over a year, how many cars are coming in and out of your building that you work on?
Mr. Benhase: Maybe ten or twelve.
Mr. Deters: You dont do any tune-ups of any of these vehicles?
Mr. Benhase: We tune the vehicle when we get the engine back; finishing up the car before we fire it up, we do a typical tune up on it.
Mr. Deters: That is at the end of your two-year process?
Mr. Benhase: That is at the end of the restoration. When the car is finished, people want to turn the key and drive out of there.
Mr. Deters: You dont have any intention to put any cars for sale on the vicinity of your property?
Mr. Benhase: No.
Mr. Deters: You dont sell cars out of that building?
Mr. Benhase: No.
Mr. Deters: This is the kind of a case that this Board is made for, from my perspective; we have a gentleman who is doing what, at first flush, would be considered motor service. If you want to paint it with a broad brush everybody that works on a car is involved in motor service. I think that if we get below the surface on this and you look at the specifics of the adverse impact that he has had on it, the number of customers that he has, the intent of the Motor Service Section which is to provide for the general population, Joe Public driving down the street wants to be able to find a gas station, wants to be able to find a motel, wants to be able to maybe go car shopping and that is what the intent is for. I would pause it to this Board that Mr. Benhase is properly zoned: General Industrial. The business that he conducts, as he testified under oath today, is frankly right down the middle as far as what General Industrial desires for that use. It is all enclosed, there is little to no adverse impact, in fact less adverse impact than what he was doing before. I think that he was very clear in his testimony that his intent and the Building Inspector had said that there was some engine work done on before, he testified under oath today that there will be no engine work done at this facility. I think that there is a practical consideration, the economy has hit everybody pretty hard and he has had to sort of switch gears on his business and I think frankly that is the American Way, making a decision how to change gears and I think he has done that appropriately under the Zoning Code. Based upon that and the lack of adverse impact, I think it is appropriate for this Board to permit him or to overturn this citation that was issued against him finding him in violation of the Code. Thanks for your time tonight.
Vice-Chairman Weidlich: We will have the Staff comments next.
(At this time Mr. McErlane read his Staff report.)
Mr. McErlane: Just a comment on the application that was submitted; I havent seen what was distributed tonight; the applicant has actually submitted an appeal, not a variance as the application indicates on it. The wrong application was used. What the applicant is appealing is the Building Officials determination that the owners current use of the property as an automotive repair service facility is not a permitted use within the Zoning District. The applicant indicated in his application that the operations conducted on the property consist of welding, sanding and painting. They do not include engine repair or environmentally intrusive operations; Mr. Benhase did indicate to us that he does not do engine rebuilds, that he sends them out to be rebuilt however engine rebuilds are not the total extent of engine repairs and during one site visit it was observed that engines were in the process of being repaired. I included some advertisements that appeared in a couple of publications; one that was in a registration form for 2009 British Car Day from July 2009 and then also one that was included in a publication called the Exhaust in August of 2010, which is the British Car Club of Greater Cincinnati News Letter, both of which included advertisements that his business would do spring tune-ups, would do oil changes, does lubrication, engine service; but a number of other things that are engine repairs, engine service.
(At this time Mr. McErlane read the Springdale Law Directors, Mr. Jeff Forbes comments.)
(Vice-Chairman Weidlich opened the floor to communications from the audience. No one came forward and this portion of the hearing was closed.)
Mr. Squires: Mr. Chairman, I would make a motion that the Board overturn the decision of the Building Official in relating to Mr. Rick Benhase, at BW Properties, Incorporated at 11741 Chesterdale Road, Springdale Ohio.
Mr. Hawkins seconded the motion.
Mr. Hawkins: How long have you been at this location conducting this type of business?
Mr. Benhase: I ran the cabinet shop in there for the last fifteen, sixteen years and we started working on cars, I think mid-09.
Mr. Hawkins: And when you started working on vehicles, as you indicated, assembling and disassembling vehicles were you aware of any issues in terms of zoning, potentially?
Mr. Benhase: No, I wasnt.
Mr. Hawkins: I wanted to confirm, is it your position that you are currently not doing auto service repair?
Mr. Benhase: We are not doing auto service repair. When we started this up, I hired a couple of mechanics and we advertised that we were doing service work. When this whole thing came up they left and went and found employment elsewhere, so right now I am doing the work myself and I have a couple people come in and help me. We are focusing typically on the restoration part of it.
Mr. Hawkins: Mr. McErlane, do you have a definition of the appropriate uses for the Motor Service District; just like for the General Industrial?
Mr. McErlane: Principally permitted uses in Motor Service are as follows: automotive repair facilities, hotels and motels, restaurants, fast-food restaurants, automotive filling stations, car washes, convenience retail including fuel pumps, taverns, bus passenger stations, bus repair and storage garages, automotive motorcycle recreational vehicle and truck rental lease and sales, any used motor vehicle sales can only be on the same lot or adjacent to a new motor vehicle sales lot, offices, personal services, commercial recreation, financial institutions, sexually oriented businesses, religious places of worship 153.480 through 153.498, facilities providing post-secondary education in fields of studies related to any principally permitted use in this district and similar principal uses as approved in accordance with the similar use Section 153.709.
Mr. Hawkins: So, there is some overlap from General Industrial versus the Motor Service, with regard to religious places worship and sexually oriented business.
Mr. McErlane: Which are iterated in every Zoning District in the Zoning Code.
Mr. Hawkins: Do we have any further definition of repair?
Mr. McErlane: I dont believe that we would have something that broad in our Zoning Code.
Mr. Deters: I will point Mr. Hawkins to the purpose of Motor Service, which I think is pretty telling in this case; the purpose of the Motor Service, (MS) District, to provide appropriate and convenient locations for the service convenience goods and personal needs of motorist and provide facilities for the servicing of vehicles in proximity to intersections of major arterial streets and freeway interchanges; I think deposits some necessity to have the general public engage these businesses. That is not what we have here, we have a very niche business that is contacting Mr. Benhase mostly from word of mouth to do special projects and with all due deference to your Law Director, it is not the zoning itself that is problematic, it is the decision of the Building Department, their interpretation which is problematic. I think that is what the Board needs to consider relative to the Law.
Mr. Hawkins: My last question, have you got to see the ads that were referenced?
(Applicant and Board indicated they had seen the ads.)
In regards to those ads, are those ads of the past or are they still things that are being utilized or taken care of?
Mr. Benhase: We had a website that we closed down and the ads, if there are any floating out there we are not currently promoting advertising, waiting for the outcome of what happens here. The business that has been coming in, has been refer work.
Mr. Deters: And frankly, Mr. Hawkins, based upon his testimony today which is very clear that he does not do any of that. A lot of this had to do with my counsel with the way he operated his business and the appropriateness of doing those things under the current zoning. He has changed his course of conduct at his business. I think he is happy with what he is doing now. He has no intention to proceed with some of the things that were advertised initially. If you look at some of the dates on those ads we have January 2010 and one of them and 2009; that is ancient history as far as his business is concerned and he has testified under oath to that.
Mr. Reichert: You have been conducting business there for fifteen to sixteen years, and in that capacity are you renting or owner occupied during that entire time?
Mr. Benhase: I and another man are in the process of buying the building.
Mr. Reichert: So, for these fifteen years you have been renting?
Mr. Benhase: No, I have been buying it; we are purchasing the building.
Mr. Deters: He purchased the building and the bank owns the building.
Mr. Reichert: When was that purchased?
Mr. Benhase: When we moved in about sixteen years ago and at that point we ran the cabinet shop when the economy was doing well and building was up.
Mr. Squires: Do you do painting in there?
Mr. Benhase: We had a spray booth on the cabinet side and we have finished cabinets since we moved in.
Mr. Squires: But how about the automobiles?
Mr. Benhase: I contract that out right now.
Mr. Squires: You dont do any painting in the facility at all?
Mr. Benhase: Minimum painting; but we dont do the full painting at this point, no.
Mr. Squires: You have a spray booth?
Mr. Benhase: There is a spray booth in the building.
Mr. Squires: Has it been approved?
Mr. Benhase: Yes; it has been inspected and approved, when we put it in sixteen years ago.
Vice-Chairman Weidlich: You indicated earlier that when you get the engine back from the shop and you reinstall it into the vehicle, you have to make adjustments, is there any time that you have to disassemble the carburetor, for instance and reset it, set the float levels and that sort of thing?
Mr. Benhase: There are times that we had to open them up and reset the float levels. I send the carburetion out to have them rebuilt.
Vice-Chairman Weidlich: What about as far as changing the oil in the vehicle or tune-ups and that sort of thing?
Mr. Benhase: We tune the cars up when we put them back together; outside of that, if we do a car for you and you would take it home and we just did a two year restoration and you go home and have a couple of hick-ups and you brought it back, we adjust it for you; we are not going after that type of business.
Vice-Chairman Weidlich: I am just reiterating to these publications, but you are saying that those are discontinued?
Mr. Benhase: We started working on cars, I brought some mechanics in and we were going after a full range of work. Those guys are no longer with me and I enjoy the restoration part of it and I always have, that is why our focus is on restoration and now the word is out that we have been doing that so we have been finding more of that business; it is finding us.
Mr. Emerson: Do you have any lifts, auto lifts?
Mr. Benhase: One lift in the building.
Mr. Emerson: So, when you disassemble a car you take it all the way down to the frame?
Mr. Benhase: Yes, we have.
Mr. Emerson: Do you send it out for sand-blasting, or do you do that there?
Mr. Benhase: We have a small sand-blast cabinet that we have put things in. There is a place that is not too far from us that actually does metal prep where they dip it. We send things off and have them dipped and then there is also an outfit that will come and they do soda blasting, which is environmentally friendly.
Mr. Emerson: Have you run into any situation, in the process of restoring a car that your building didnt accommodate you, and consider moving somewhere else to find a taller building, a longer building, a building with a grease pit underneath, alignment shop?
Mr. Benhase: We dont have any problem with the grease pit because most of the stuff we work on, all the oil has come out. We have an outfit that comes and picks them up and recycles. Most of the stuff we are working on, once it is finished the oil is out of it. We dont have those issues. The building actually is larger than we need it to be; we do automobile storage for people, as well. A lot of people that collect cars have two or three car garages and a lot of them have four and five cars.
Mr. Emerson: So how many cars do you keep in that building at one time?
Mr. Benhase: The building currently probably has somewhere between sixty and seventy cars. Again, about twenty or so are mine.
Mr. Emerson: You are working on maybe six at one time?
Mr. Benhase: We have six that we are actively working on, yes.
Mr. Emerson: And you have sixty in the building?
Mr. Benhase: Yes. A lot of them are just stored there for people who collect cars and they come and get the thing and take it out for a few days and bring it back. Kind of like people who enjoy their boating, which we also have a couple boats we warehouse for people.
Vice-Chairman Weidlich: Mr. McErlane, you stated earlier that the Building Department noticed some engine work, do you know what date that was?
Mr. McErlane: No, I dont have a specific date; it would have been early on when we first walked through the facility. It would have been in the neighborhood of February or March of 2010.
Mr. Hawkins: Mr. McErlane, to be clear because it looks like there has been an evolution of different things the applicant has done in the building over time; it is the Building Departments position that the actions that the applicant is doing right now, not doing oil changes or putting together engines or carburetors or anything like that, the actions that the applicant is indicating right now that they are doing in terms of assembling and disassembling vehicles, would constitute automotive repair; is that the Citys position?
Mr. McErlane: Based on what was presented tonight?
Mr. Hawkins: Yes. I just want to be clear because obviously there are some things on their advertisements that were done in the past and the applicant has indicated in the past there were some things that he was in the business of doing that he is no longer doing, I want to make sure we are clear in terms of what we addressing with regard to this appeal and this issue and so we are making sure that this is a decision that is up to date on what is actually taking place opposed to just saying, yeah, you cant do engine work, or what have you. Is what the applicant has testified to this evening, in terms of assembling and disassembling vehicles constitute auto repair?
Mr. McErlane: We would still consider it to be auto repair and auto service.
With regard to the motion that has already been made, the decision, I think that it is important for the Board to make it clear whichever way they decide the reasons for their decision, principally to help both parties involved in this. I think the applicant needs to know reasons for denial or approval and the Building Department would also need to know reasons for denial or approval and particularly with regard to approval to that we can make some distinction should another user come along that is an automotive type user; is it a permitted use or not a permitted use. If the Board decides that this is a permitted use, we need to clearly determine if there is something different about this use than every other automotive service use; why it would be permitted in an Industrial District as opposed to a Motor Service District.
Vice-Chairman Weidlich: Are you asking each of us to reiterate our reason for our decision at the end?
Mr. McErlane: I dont know that each of you needs to, but I think it needs to be clearly pointed out as to why the decision is made, whether that is done by one or several of you, or all of you.
Vice-Chairman Weidlich: I think we all have our own opinions, just like we have different votes at times.
Mr. Squires: Before we take this vote, for clarity, can we have the motion re-read?
Mrs. Huber: It was moved to overturn the decision of the Building Official for the property located at 11741 Chesterdale Road.
Vice-Chairman Weidlich: Board Members, based on the facts presented and the rules of the Board of Zoning Appeals, has all the tests for this variance as required by Law been considered in your deliberations and findings?
Do we have any motions for an amendment?
Mrs. Huber polled the Board of Zoning Appeals Members:
Mr. Squires: I do not wish to overturn the Building Officials decision, so my vote would be no.
Mr. Hawkins: I wrestle with the definition that we have in terms of the General Industrial District, specifically the subsection C with production operations and subsection D with regard to warehousing. The applicant is indicating that at this time he is storing some vehicles there, in terms of production; some of this is in terms of what you argue that you are doing to produce. You could argue that through the means of refurbishing, producing a vehicle, however in terms of automotive service and repair, I think, what the applicant has indicated would constitute automotive service and repair and so I think that despite (subsections) C & D I could see how you could argue maybe for that. I dont think that it is clearly allowed in the Zoning Code for General Industrial, so I vote no. I wrestle with it because of those items in there.
Mr. Weidlich: Mine is a no vote also; basically the same reasoning because of the restoration of the vehicles and the storing and so forth, seems like automotive service industry type of position; and that is the reason for my vote.
Mr. Emerson: I am really struggling with it because if you assemble cabinets and you are assembling cars: that is assembly, manufacturing, putting together, storing. My problem is definition of repair, if somebody brings you an old car and you make it look like new, is that repair; that is restoration in my book. I would really like to see it modified a little bit. They brought you in here and made you look like you were going to be a mechanic and in some ways you are because it is car repair; does Maaco do car repairs, yes, when it is involved in an accident and that is basically what you do, body work. Chairman, am I allowed to vote to modify?
Vice-Chairman Weidlich: We are voting whether to uphold the Staff
Mr. Emerson: It says to affirm, overturn or modify.
Mr. McErlane: You are in the middle of a motion; I dont know that you can modify it.
Vice-Chairman Weidlich: No, I dont think so; there wasnt any amendment to it.
Mr. Emerson: Well, I have to vote no then.
Mr. Reichert: No; I choose not to vote against the findings of the Building Department.
Mrs. Huber: I will vote no, too.
Vice-Chairman Weidlich: It looks like you lost by six no votes, sir.
Mr. Deters: May I inquire as to the record for tonight, how do I obtain that?
Vice-Chairman Weidlich: You need to contact the Building Department.
A. Vice-Chairman Weidlich: Any items for discussion?
Mr. Squires: This is close, this is real close; he could do this in a different business district but even modifying what he had there, may have made it a little easier for him.
Vice-Chairman Weidlich: But nobody amended the motion.
Mr. Squires: Yes, you couldnt do it in the middle of a vote.
Mr. Emerson: I just think car repair is too general.
Vice-Chairman Weidlich: It sounds like he may be coming back with something, since he wants a copy of the proceedings.
Mr. Emerson: I hope he does; because I would hate to think of chasing someone out of town.
Mr. Squires: I do too.
Mr. Emerson: I think there is a big difference between cars being worked on and restoring cars; that is an art and not everybody can do that.
Vice-Chairman Weidlich: Yes, it is but we have to go by the Code.
Mr. Reichert moved to adjourn, Mr. Squires seconded the motion and the Board of Zoning Appeals meeting adjourned at 8:38 p.m.
Chairman Dave Okum
Secretary Jane Huber