19 AUGUST 2003

7:00 P.M.

  2. The meeting was called to order at 7:04 p.m. by Chairman David Okum.

  4. Members Present: Bob Weidlich, Jim Squires, Marge Pollitt

    Fred Borden, Bob Apke, Jane Huber and

    Chairman Okum

    Others Present: Richard Lohbeck, Inspection Supervisor

  7. Mr. Squires moved to approve and Mr. Apke seconded the motion, adding that he had a correction. On Page 18 in the second paragraph and the second line, the company in question was Kinkoís, not Kimco. Mrs. Huber added that on Page 3 near the top, Mr. Johnson should be Mr. Randolph. All voted aye for the minutes as modified.

    1. Zoning Bulletin Ė July 1, 2003
    2. Zoning Bulletin Ė July 25, 2003
    3. Planning Commission Meeting Minutes Ė July 8, 2003
    1. Report on Council Activities Ė Jim Squires

    Mr. Squires reported that Council has not met except for the second Wednesday in July, so there is no report.

    B. Report on Planning Commission Ė David Okum

    Mr. Okum reported that the Dunkin Donuts was on the agenda, and the applicant asked that it be tabled until he could get the color pallet and landscaping together so it was tabled. The condominium project at 309 West Kemper was removed from the agenda. Alexander Patterson Group requested a 50 s.f. sign to be on the south side of the building which was approved. We had concept discussion of redevelopment of Kentucky Fried Chicken in Princeton Plaza and they propose to tear down the existing building and build a new building to the west side where the parking lot currently is and put a drive through in. They need to do lane configurations and deal with issues with that, and there are parking issues. They originally submitted over 300 s.f. of signage and have brought it down to 167. They want to retain their pylon sign, which is off the main road but gives them identification. It will not change but will be relocated. Because it is off the main road, Planning didnít have a major problem with it since they reduced their signage so significantly.




    19 AUGUST 2003



    Mr. Okum added that Provident Bank requested approval of exterior color change and signs at 495 East Kemper Road. They were approved for their sign change, but wanted to change their white band to a dark blue all the way around and that did not match with the PUD that was submitted, so it was denied.

    There was a request to allow banners for an extended period of time on Commons Drive (Sam Ash) which was approved, and Bahama Breeze requested that the time for their banner on luncheon hours to be extended.

    Mr. Okum stated I had three signage approvals while the chairman was out of town. Cookers is changing their signs along with a face lift, and Tuesday Mornings is now open in Springdale Plaza and their signage was approved Sam Ashís wall signs were approved; they are reducing their signage from the original PUD.

  12. A. Approval of an above-ground pool 5 feet from the property line at

    607 Smiley Avenue. Said variance is requested from Section 153.488( C ) (1) "..shall be located 15 feet from the side or rear lot line." Tabled 7/15/03

    David Osterman of 607 Smiley Avenue said I am requesting a variance so that my swimming pool can be five feet from the property line.

    Mr. Lohbeck reported that the applicant is requesting a variance from Section 153.488(C)(1) which requires pools to be set back a minimum of 15 feet from the side and rear lot lines. The pool has already been placed 5 feet from the west side lot line without a permit. The applicant has indicated that the pool was placed in this location because of the trees on the lot, which would shade the pool. The attached aerial photo shows trees located on the east side of the lot and on the adjacent property in the southwest corner. Because the lot is 60 feet wide, to comply with the code, the 24 foot diameter pool would be required to be located in the middle 30 foot of the lot width.

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

    Addressing the applicant, Mr. Okum said you had indicated that you really needed this pool for a certain period of time. Mr. Osterman said I need it for five years. My plan is to knock it down in a few years and move the garage back that way.

    Mr. Squires asked how long the pool has been there, and Mr. Osterman said two months.

    Mrs. Pollitt said your mother was here at the last meeting, and the pool sets closest to her property line and she doesnít have any objections, is that correct? Mr. Osterman confirmed this.


    19 AUGUST 2003



    Mr. Okum asked if the pool was in the ground or on the surface, and Mr. Osterman answered that it is 6-8 inches into the ground.

    Mr. Borden asked if the board had received a legal opinion regarding temporary variances and Mr. Okum reported that the only thing we have is from staff and the administration that we currently grant variances that have conditions of time on them, banners, Conditional Use Permits that modify the Zoning Code by Planning Commission action that involve time and conditional uses with limits.

    Mr. Borden responded so in the applicantís case, he indicated three to five years. Would that apply? Mr. Okum answered that it is at this boardís discretion. We also have existing situations where time conditions have been placed on variances for as long as I have been in the City of Springdale and before that. It is up to the board.

    Mr. Squires commented those conditions to which you are referring have a lot to do with signage, is that correct? Mr. Okum responded mostly, yes. Mr. Squires added so in other words we have been granting temporary signage to a company for a specific period, and that is permitted. The administration is okay with that. So in this case, we could modify a variance for two or three years. Mr. Osterman said three to five is what I was asking for.

    Mr. Okum said my position is that conditions can be placed on the variance. We issue conditional use permits through Planning Commission that involve the Zoning Code on a pretty regular basis. In PUD Districts, we allow variances to the Zoning Code requiring parking, site placement and a number of other issues. Do those PUDís get modified? Yes. Do those Conditional Use Permits end at a certain period of time? Yes they do, and when a business stops doing business as a conditional use, does that allow another type of business to go in there that is totally different? No.

    My position is if the applicant is a wiling contributor, and there is testimony given that the applicant is willing to set a condition on his own request for a three to five year period, it should be this boardís decision to go along with the applicantís request for a limited variance for the time. It is up to you.

    Mrs. Pollitt asked the applicant if he would be putting a fence up once the board determines where the pool will go. Mr. Osterman responded that the fencing already has been started. Mrs. Pollitt said and it will be secured with a gate so it is totally safe? Mr. Osterman confirmed this.

    Mrs. Pollitt stated I cannot approve the position of the pool unless there is some type of a time limit put on it, because if his mother were no longer next door, and someone came in opposed to the pool being that close to the property line, that would be a problem. If we didnít set a time limit, he would have the right to always have the pool there, and that would be infringing on somebody elseís property line. If there is a time limit put on it, I wouldnít have a problem with it, because eventually it will come down.


    19 AUGUST 2003



    Mr. Weidlich said I assume your mother is along time resident of Springdale, and she has no plans to move in the near future. Mr. Osterman said over 40 years, and she intends to stay. Mr. Weidlich added I would be in favor of a time limit also.

    Mr. Squires said with Mr. Ostermanís testimony that he will no longer need this pool past the year 2008, I would move that we grant the variance for this pool to be five feet from the property line at 607 Smiley Avenue, with the understanding that by August 2008 this pool will be removed and the variance will no longer apply. Mr. Squires commented that is a conditional variance, and if the administration of this city is fine with that, I will be happy to make that motion. Mr. Okum said I canít comment on the administrationís position on this.

    Mrs. Huber seconded the motion.

    Mr. Weidlich said instead of August, why donít we extend it for the summer period so his family could enjoy it through the summer of 2008? Mr. Squires amended his motion to change the date to October 1, 2008 and Mrs. Huber seconded the amended motion. All voted aye, and the variance was granted with seven affirmative votes.

    B. Approval of recycling dumpster to be located on the edge of the rear parking lot at Tri-County Promenade, Tri-County Parkway. Said variance is requested from Section 153.489(A) "On corner lots, it shall be set back from the side street not less than the required setback for the adjacent main building on the butt lot plus an additional five feet." Tabled 7/15/03

    Mr. Lohbeck reported that staff recommends that the board vote in denial of this since they have moved the dumpster and they are in compliance. Mr. Squires moved to deny and Mr. Apke seconded the motion. All voted aye, and the variance was denied with seven affirmative votes.

    1. Approval of variance to allow the construction of a fence to be constructed in front yard (corner lot) of home at 595 Lafayette Avenue. Said variance is requested from Section 153.482(3) "Fences on corner lots shall not be located in the required setback for the building from the side street line."

    Jose Acosta of 595 Lafayette Avenue and Ramon Acosta of Fairfield Ohio approached the board.

    Mr. Ramon Acosta reported that Mr. Jose Acosta wants to put a fence around his grass for his kids because he doesnít feel that it is safe up there by the street. They drive by very fast, and he is afraid that something will happen to his three kids, from one to six years old.





    19 AUGUST 2003



    Mr. Acosta added that he can only get a permit for a fence right by the garage, and he feels that it is too small a space for the kids. He would like to extend it a little bit more on the side.

    Mr. Okum said so your request is to enclose and fence that entire area.

    Mr. Lohbeck reported that the applicant is requesting a variance to allow the erection of a fence in the front yard on a side street (Observatory Drive). The property is on the southeast corner of Observatory and Lafayette.

    Although there were two different site plans submitted, we have chosen to comment on the one drawn on ruled paper because the description in the application best fits the site plan.

    It appears that the applicant is requesting a variance to allow a fence to enclose his yard to the south of the residence and extend it to the right of way line on Observatory Drive (see the attached sheet).

    The house is legal non-conforming with an approximate 20-foot setback from Observatory. By code, the fence could not be placed within 30 feet of the observatory right of way line (153.100 (A). Placing the fence 30 feet from Observatory would not leave a useful area (see the attached sheet).

    The applicant should clarify the height and type of fence to be erected. One site plan indicates wood, and the other indicates chain link.

    Mr. Okum asked the applicant what type of fence he planned to construct, and Mr. Acosta answered chain link.

    Mr. Okum opened the public hearing.

    Carol Herzog said Jose is my motherís neighbor. She resides at 591 Lafayette, and he is requesting a variance for the fence to extend closer to Observatory. If you went by code, it would leave a very small play area, and there is already a storage shed in that area. If you constructed the fence according to code, the swing set would have to be outside the fence. It is a small area; if the swing set were moved, the children swinging would probably knock each other down. So he has a predicament.

    He is requesting that it go to the right of way, or as close as possible to the right of way on Observatory, starting at one corner of his garage, going to the back property line, coming up parallel to Observatory on the right of way, and over to the other corner of the garage. It would be a four-foot high chain link fence. My mom has no problems with this.






    19 AUGUST 2003



    Ms. Herzog commented I am here to help him clarify his request. We are not sure what the right of way is, if it is 12 Ĺ feet from the curb of one street, but there are two trees there that are parallel to Observatory so he probably will need clarification. Mr. Okum said there were a couple of lines on the cut sheet that we have; is that 12 Ĺ feet to his property line just green space along Observatory? Mr. Lohbeck indicated that he did not know, adding that he would have to look at our maps to see what we have.

    Mr. Okum asked what the hash marks on the drawing represented, and Mr. Lohbeck responded that it looks like it was a fence at one time. Ms. Herzog responded that it was his driveway. Mr. Okum commented we are seeing tís and Iím not sure what they are. Mr. Lohbeck reported that generally on the CAGIS system that is what fences show up as. Mr. Okum wondered if a fence had been there at one time and then removed. If it was, it probably was erected on the city right of way.

    Ms. Herzog reported that there is one fence post in the back corner of the lot (closest to Observatory), which looks like it was part of a chain link fence at one time.

    Mrs. Pollitt said I know your mom has lived there forever. Does she know if there was a fence surrounding both of those properties, the back and side of hers as well as this gentlemanís?

    Mrs. Herzog answered there was never a fence to the back of my momís property, and there are a lot of trees there now. She has never had a fence. There is a chain link fence on the other side. Mrs. Pollitt indicated that it is shown there. Mrs. Herzog commented I never recall a chain link fence across the back of the property. She never put one there. If it were there, it would have been from the people whose side yard buts up against her back yard, but there are remnants of that post on his property.

    Mr. Okum said so there currently is no fence between your motherís and his properties. Mrs. Herzog answered no.

    Mr. Okum said we have a highlighted copy on the CAGIS, which represents what staff has interpreted the request is, based on the two submittals. We have had clarification by the applicant that the request is for a four-foot high chain link fence.

    I personally have a problem with it being that close to the public right of way and its proximity to the main street. I realize there is a wide public right of way there, and if it were held back from that, I can understand the reasoning for the fence, but at this point, I could not support the fence being on the property line against Observatory. I would support something held back to accommodate that. I think the applicant would be able to gain enough area for his children to play if it were reduced down. I donít think it necessarily needs to be that large of an area.




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    Mr. Weidlich said I noticed that you have a car parked on the side of the garage. Will you put a gate there so that your car can drive through also? Mr. Acosta answered that he would put a gate there.

    Mr. Weidlich commented I sympathize with you; your yard is a tough one for kids to play in.

    Addressing Mr. Okum, Mrs. Pollitt said you are asking him to scale back his width. What would be acceptable to you? Mr. Okum responded I think if he stayed where the garage corner is, and comes maybe 20 feet out and goes back on an angle perpendicular to Observatory, there still would be adequate area. Mrs. Pollitt asked what that width would be, and Mr. Okum answered from the street line. Mr. Lohbeck said that is not a street line. The dark area is a sewer line and right underneath it is the curb line. Mr. Okum said it would be approximately 25 feet from the curb line. That would give adequate area for play and activities, and would keep it fairly close to the corner of the garage.

    Addressing Mr. Okum, Mrs. Pollitt said I donít know; I think that is not giving them much room since there is a shed back there that takes up part of that. Mr. Okum responded but from that corner there is probably 60 to 70 feet across there. It would average out to about a 60-foot by 25-foot area. Mr. Borden commented it is smaller than that. Mrs. Pollitt and Mrs. Huber agreed. Mr. Okum said the garage is at least 20 feet deep.

    Mrs. Pollitt asked the applicant about the trees and bushes. After he showed them on the drawing, Mrs. Pollitt told the board that the applicant indicated that on the Observatory side, there are two trees that he will have to work around one way or another. On the south of his property there is a line of bushes back through there. Is your drive on the south side of the property? Mr. Acosta responded that it did. Mrs. Pollitt asked if he would continue to use that area for parking, or would you continue to pull up on the south side of your garage for parking or chain link that and use it as a total play area? Mr. Acosta responded, and Mrs. Pollitt told the board that the applicant has a driveway that goes off to the right of his garage (on the south side) that also would be part of the area that would be fenced in for a play area. But he would have a large gate on there so if he wanted to put a vehicle there, he could do that. There is no parking on that side of Observatory Avenue. I also noticed that on the west side of Observatory the houses are really shielded from the street with landscaping, bushes and trees. I backed up to see what the neighbors would be looking at if they looked at a fence on Observatory and they are pretty secluded with their landscaping.

    Mr. Weidlich said I sympathize with this gentleman. His yard is small, he has three children and they need some room to play. I agree with the highlighted area that we have on the sketch. My only comment was maybe instead of a four foot high fence, go to a three-foot which would not be quite as visible. Three feet is an adequate fence for children to stay within. I agree with the area that he is asking to fence in, as long as he gets the lot surveyed and he is on his property line with it.


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    Mr. Okum asked if there were other chain link fences along Observatory that are on the right of way line. The members did not recall any, and Mr. Weidlich added that we have had other applicants in here on corner lots with fences in a similar fashion on their property, and I have seen them around the community.

    Mr. Okum said I think the purpose of the Zoning Code is to hold fences back to the face of the house if at all possible. You would need a hardship to the fact that there is no reason why they canít make a fence work at the edge of the home, or a situation where it is not possible, something physically or topographically that prevents.

    Mr. Squires commented I drove by this property twice, and other than the edge of the house, I donít see a lot of room for compromise here. I can support a three-foot chain link fence more than a four-foot, but he will have to have a fence there. His yard is unique; there is not another one like it over there. He has the corner lot phenomenon and unless the board wants to go to the corner of the house and then come back, I donít see much room for compromise other than that.

    Mr. Weidlich moved to approve this variance but I also would suggest, if the applicant is in agreement, to go with a three-foot high fence rather than a four-foot high fence. Would you be willing to o with a three-foot high fence?

    Mr. Acosta asked if he could use a three-foot high in the front (on Observatory) and four-foot high on the side. Mr. Squires responded I donít think that would be good.

    Mr. Okum said we have a motion for a three foot high fence based on the request of the applicant. Mr. Borden seconded the motion.

    Addressing the applicant, Mr. Okum reported that the motion is for a three-foot high chain link fence as outlined on the CAGIS drawing that staff submitted as exhibit #1 we have here for the entire requested area. We can ask for an amendment from one of the board members to raise it to four feet on two sides as you suggested, but it does not appear that will come. Are you familiar with this being the area that you are requesting? (Mr. Okum showed the applicant the highlighted area). Mr. Acosta indicated that he was.

    Mr. Okum said the applicant has a building permit for a four-foot fence along the back of his house. Mr. Weidlichís motion is for a three-foot fence in the area that is highlighted orange. Mr. Weidlich said that his motion is for a three-foot fence for the whole area. Mr. Okum said unless this is amended by any member to allow the back of the property to be four feet. He currently has a permit for a four-foot fence on the back.

    Mr. Weidlich commented we could amend it to go all the way around the whole property line. Mrs. Pollitt added he also wants a four-foot between the neighborís house.


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    Mr. Okum said you already have a permit for this side. Your variance is actually just for the two sides.

    Mrs. Pollitt requested to amend the variance to allow a four-foot fence on the south side of the property, and a three-foot fence on the Observatory Street side of the property. Mr. Borden seconded the motion.

    Mr. Weidlich suggested that this be clarified more by saying that the four-foot fence is to extend on the east side all the way to the south corner, since he already has the permit for the fence behind his house. Mr. Okum responded that area is not a part of the variance request. It is actually the fence on the south side and the west side, and it would be the return section of the fence on the north side.

    Mrs. Pollitt has made a motion to amend that the south side fence be increased from three feet to four feet. Mr. Borden seconded the motion.

    On the motion to amend, all voted ay except Mr. Okum who voted no. The motion was amended.

    Mr. Okum said I would assume that the Observatory section and the section that returns back to the house would remain three feet in your motion. Mr. Weidlich indicated that it would.

    Mr. Squires said am I to understand that part of this fence is to be three feet and the remainder of it will be four feet? Mr. Okum responded it is my understanding that the south side and the east side fence would be four feet, and the remaining fence that would be erected, the west and north return back to the garage, would be three feet.

    On the motion, six members voted aye and Mr. Okum voted no.

    The variance was granted.

    B. Approval of variance to allow the construction of a wood utility building to be located four feet from the south property line and three feet from the west property line at 695 Cloverdale Avenue. Said variance is requested from Section 153.067(B) "..must not be less than five feet from any rear or side lot line."

    Mr. Les Blankenship, 695 Cloverdale Avenue said I am requesting to build a building on the same location as the previous building, except further away from the fence. The other building was tight in the corner. The rear fence is approximately two feet inside our property line. Directly behind our property line, there is a shed that is right on the property line, so we had to move the fence in to install it.

    Mr. Lohbeck reported that the applicant is requesting a variance to construct a 10í x 12í utility building four feet from the rear lot line, and three feet from the side (west) lot line. Section 153.067(B) requires a five foot setback from side and rear lot lines.


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    Mr. Lohbeck reported that the applicantís response to the questions on the reasons for variance form did not provide any reason for this request. The applicant does not indicate any unusual circumstances (topographic, tree shape) on his property that causes the proposed location to be the only location possible. Denial of the variance would not prevent the applicant from erecting a utility building in compliance with the code.

    The applicant indicates that the fence is located two feet inside his property to the rear, and one foot inside his property to the west. The applicant must provide a surveyed drawing or show survey markers to establish the setback of the proposed utility building regardless of his securing this variance. Lacking the furnishing of a survey or survey markers in the field, the fence line will be presumed to be the property line.

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

    Mr. Blankenship stated that the location I am asking for is near trees and shrubbery in the corner of the lot. The house is to the west side of the lot and the building would be on the southwest corner. Just recently I cut some of the foliage away to paint the fence, which will grow back. The building will be more or less secluded. The people on the west side canít even see it from their house. Their garage is on the east side, plus they have a building and a lot of vines and greenery, so that would not be a problem.

    That area is level and is a good location for the building, because a building was there before. Mr. Okum asked if there is a concrete pad there, and Mr. Blankenship answered that there is not. Mr. Okum asked about footers and foundation for the old shed and Mr. Blankenship reported that he pulled the foundation out last year.

    Mr. Weidlich asked if he had the property surveyed to know where the lot lines are. Mr. Blankenship answered no. Mr. Weidlich commented when I drove by your home, it didnít look like there was any reason not to conform to the code for the setbacks for that location, as long as you know where your property line is.

    Mr. Blankenship responded we pretty much know. They havenít moved in the last 35 years. Mr. Weidlich commented I have been in my home for 30 years, and I just had mine surveyed last year, and it was a little bit off from what I thought it was.

    Mr. Blankenship reported that the property on the east side was surveyed, and the fence is well inside the back line on the east side.

    Mr. Weidlich commented my suggestion would be a property survey and meet the code requirement of five feet.

    Mr. Okum asked the applicant if there were any reason why he couldnít put this five feet from your property line once it is surveyed.



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    Mr. Blankenship responded I would like it as close to the trees as possible. Mr. Okum said everyone wants it as far away as they can, but the Zoning Code says five feet on each side unless there is something specific or unique that wonít make that work.

    Mr. Blankenship said and you never give variances for that? Mr. Okum answered yes there are variances given for unusual circumstances. Mr. Blankenship commented I look around the neighborhood and I see a lot of buildings right on the line. Mr. Okum said you have had one on your property line for 35 years, and Mr. Blankenship responded some have not been there for that long. We donít have too much yard, and I want to conserve as much as possible. I want enough room to get around the building if I want to put a vent in it or window, but I donít want a lot of area to mow around behind it.

    Mr. Okum said if you want that, you probably want to go to zero setback then and have it right on the property line. Mr. Blankenship answered I had zero before with the other building, and I donít want that. I want it at least 2 Ĺ feet inside the fence.

    Mr. Okum responded that this drawing shows three and four feet, is that correct? Mr. Blankenship answered yes, it is from the line. The fence is approximately two feet from the south line and one foot on the west line. Mr. Okum commented so it will look like it is on the line because of the fence, but it is really three feet from the line.

    Mr. Borden said I agree with Mr. Weidlich. We would need a survey first before we can determine where to place the shed.

    Mr. Okum asked Mr. Blankenship to come forward and verify that the drawing the members have is correct, and Mr. Blankenship indicated that it was. Mr. Okum stated that this drawing shows three feet from the property line on the right side of the shed and four feet from the property line on the rear of the shed, ignoring the fence location.

    Mrs. Huber said you would only need to move the shed one foot toward your house and two feet to the east. Mr. Blankenship responded if I move it to the east, I am getting close to a big tree. I want the 12 foot side to run parallel to the fence, and there is a large tree there, which might hinder access a little bit.

    Mr. Okum asked how close it would be to the large tree, and Mr. Blankenship indicated that he hadnít measured it so he didnít know.

    Mrs. Huber moved to approve the construction of a utility building to be located four feet from the south property line and three feet from the west property line as per Exhibit 1. After several moments, Mrs. Pollitt seconded the motion.

    Addressing the applicant, Mr. Okum said we are having trouble getting a motion and a second. Typically when that happens that means we are not going to get a positive answer to your request.



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    Mr. Okum said do you want us to vote on it, or do you want to withdraw your request? Mr. Blankenship responded I would like for you to consider it.

    Mrs. Pollitt said I drove by the residence and I did see the shed that backs up to your yard and your white fence. It appears that you have a very large area. I did not notice the big tree that you are talking about. If the tree is going to hinder the placement of the shed where you want it, I would suggest that you ask that we table this and go and do some measuring and come back and give us a reason that we can use to allow the variance. If itís going to present a hardship to work around this tree, that gives the board something to use to make up their minds.

    Mr. Blankenship responded it might not; I just know that it is there. I never measured that. Mr. Okum commented you probably would need to measure if you measured from the property line 17 feet to the root structure of that tree. If it is further than that, it wouldnít be an obstacle. If it less than that it would be an obstacle and would dictate a physical situation that would generate a variance. Would you like to check that, or do you want us to go ahead and consider the request?

    Mr. Blankenship said I would like for you to consider it as is, yay or nay.

    Mrs. Pollitt said would that prevent him from coming back in and requesting a similar variance, if he finds out that the tree is truly in the way? Mr. Okum said it would. Addressing the applicant, Mrs. Pollitt said if we vote on it tonight and you go home and measure and find out that the tree truly is in the way of your building, you would be prevented from coming before this board asking for another variance for this shed for six months. The other option would be to table it, go back home and look at your topography to make sure that you are okay there, and to check on the distance from the tree.

    Mr. Blankenship responded I might be able to get around the tree and into the shed; I am not sure it would be a problem.

    Mr. Okum said the other issue you have is where your property line really is, and youíll need a survey for that. Youíll need that no matter what. Mr. Blankenship said you mean the entire property. Mr. Okum said you could get a limited survey where they only do portions. It is your decision.

    Addressing the applicants Mr. Squires said I want to make sure that you understand the moratorium. Six months is a long time before you are allowed to come back. Secondly, because this is a fence, your property will require a property line survey. Mr. Okum said there is no fence on his request; it is just the placement of a shed next to a fence. Mr. Squires said I just want to make sure that they understand this. I donít want to vote on this and have them caught unawares on it.



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    Mrs. Pollitt said the fence is more of a decorative corner type fence; it is not a boundary type fence. It is a white wooden fence that sets in the corner. Mr. Blankenship responded it goes across the back and down one side.

    Addressing the applicant, Mr. Okum said you understand the ramifications of your request. Mr. Blankenship said if you table it, what is the procedure? Mr. Okum answered you would come back next month, hopefully with a survey and be able to give more evidence for the reason why you need this variance. Mr. Blankenship commented either that, or just forget the whole thing. Mr. Okum commented you could build it five feet from the property lines and forget the request. Mr. Blankenship said you still would have to have the survey. Mr. Okum responded if you are saying your property line is where it is on this drawing, yes. Otherwise the Building Department has to go based on their observation, and the observance would say that the fence is your property line. Mr. Blankenship said no, the fence is not the property line.

    Mr. Blankenship said the only thing I have is the southeast corner. There is a surveyorís stake there. There is nothing on the southwest corner. I would have to have that corner surveyed. Mr. Okum said you probably would want to locate that corner, the back line and the west side, the two corners.

    Mr. Okum said would you like to request us to table, and Mr. Blankenship said letís do that, yes.

    Mrs. Huber withdrew her motion to grant the variance and Mrs. Pollitt withdrew her second.

    Mr. Squires moved to table and Mrs. Pollitt seconded the motion. All voted aye and the item was tabled to September 16th.

    C. Approval of variance to allow a basement remodel at 11475 Walnut Street. Said variance is requested from Section 153.096 "Principally permitted uses shall be as follows: (A) Single Household dwellings.."

    Lennell Wade said I am the daughter of Reverend Harvey who just had surgery and couldnít be here. If there are any questions, you can give him a call.

    Mr. Okum said you are not a legal representative of that property; you are not the owner. We can hear your testimony, but it would be to the benefit of your father that he physically attends and makes the presentation to the board. Otherwise, I donít think he would have due process unless we had an affidavit stating that you are his representative. What I am saying is that it would be best to table this until your father can attend and represent himself or have a legal representative of him.






    19 AUGUST 2003



    Mrs. Wade said I need this done. Can I go and bring him while you consider the next item on the agenda? Mr. Okum said we probably will be less than 30 minutes on that issue. Mrs. Wade responded he is right down the street. Mr. Okum added if you are not back here by the time we conclude business on this other issue, this issue will be tabled and we will have to adjourn the meeting. Mrs. Wade asked how long it would have to be tabled, and Mr. Okum answered until next month, September 16th. Mrs. Wade said she wanted to get her father, and Mr. Okum stated that we will move this to the bottom of the agenda and place it after Item X, Discussion, to give you a little more time.

    D. Approval of variance to allow the conversion of a garage into a family room at 1041 Ledro Street. Said variance is requested from Section 153.105(B) "A single family 2-car required. The garage shall have a minimum floor area of 400s.f. and a maximum floor area of 600 s.f."

    Daniel & Katalin Justes, 1041 Ledro Street approached the board. Mr. Justes said we would like to convert our garage into additional living space due to the fact that we have four adolescent kids at home and itís starting to get a little cramped. The houses on Ledro Street in the Heritage Hill area are pretty small.

    Mr. Lohbeck reported that the applicant is requesting to convert his existing single car garage into a family room and storage. Section 153.105(B) requires a two-car garage at 400 s.f. minimum. The existing garage is a legal non-conforming one-car garage. There are no existing variances for this property.

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

    Mr. Squires said this is a request similar to many we have had, and it is not without precedent that we do this, and in our discussion of this, you might want to keep that in mind.

    Mr. Okum said carrying that a little bit further, there are precedents that have been established. Some that I recall are adequate off street parking, if the garage was to be replaced and the door removed it should be bricked in to match the existing, or the garage door to remain for access to the storage area. Those are items that were conditions on the variances.

    Mrs. Huber said I have no opposition to this because everyone else either legally or illegally have done it. Currently you have four teenagers and one car. In how many years are those children going to want cars and where are they going to park them?

    Mr. Justes said the oldest is 17 and due to a heart condition, she does not drive. The next is 14 and he probably wonít drive for at least two years. Mrs. Huber said that is my only concern, the parking on the street. Mr. Justes commented that it would be at least two years before any of the kids got a car for themselves and even then our driveway has ample enough space for them to park.


    19 AUGUST 2003



    Mrs. Huber said so you can park two cars in your driveway; I would like to see that happen if and when you get that additional car. Mrs. Justes added we used to have two cars and both cars were on the driveway. Mr. Justes said we had a mini van and a big Chevy and they both fit nicely on the driveway.

    Mr. Squires asked if they were going to keep the existing garage door. Mr. Justes answered that all our options are open, but we were hoping to do a French door or an entry door with a couple of sidelights. It would be really hard to match the brick to the existing since it is about 40-50 years old. We would like to go with a single entry unit, so we wouldnít have to add in any additional brick. It is only a nine-foot area.

    Mr. Squires said if this is approved, you will have to get a building permit and you will have to submit detailed drawings.

    Mr. Weidlich said you show a storage area in the back. Do you have a walk through door in the back and will you be able to get your lawnmower and other equipment through that door? Mr. Justes answered yes. Mr. Weidlich said I wondered if you wanted to put the living space in the rear and keep the garage door with your storage in the front. Mr. Justes said I considered that and I want to have that door in the back as their entrance.

    Mr. Borden commented I have no opposition to this request.

    Mr. Okum said one option would be to have it bricked in to look like the rest of the brick, the second option would be to leave the overhead door and you commented that you would rather have that access way into your home. Could that access way be put into the side through the brick?

    Mr. Justes answered that probably due to expense and the fact that there is only three or four feet from there to the property line, I personally would not find that practical.

    Mr. Okum said I have a problem with changing the architectural design. When you do that and put that entryway in, you are creating the clear obvious opening that indicates that it is no longer a garage. In addition to that, cars are driving directly towards that entryway. There are no bumper blocks or stop bar to keep them from wanting to drive into the family room area.

    I would prefer that you keep your storage to the front where your garage would continue to look like a garage and your family room to the rear and give yourself a side entrance into that family room space if you want the kids to be able to get into the space. I donít feel comfortable with a nine-foot wide door. A door with side lights nine foot wide will cost you $1500 in itself so if you leave the garage door there, you would save $1500 and that $1500 could easily give you that side entrance and it wouldnít have the appearance of a conversion. Mr. Justes responded our plans arenít set in stone; we just need the space and storage.



    19 AUGUST 2003



    Mr. Okum said based on the information you have provided, and your driveway being adequate to accommodate more than one car, I would be encouraged to support your request, provided that the storage and the garage door remain in the front. The other option would be to change it out to all brick and change that front look so it doesnít look like a conversion.

    Mr. Justes said so you would prefer a standard wall with maybe a window. Mr. Okum responded if it were a brick wall with a window and something like landscaping in front to prevent the access of the driveway going straight into what used to be the garage. You would have to take part of the slab out and put something in there to separate that.

    Mr. Justes said for clarification, if we were to make sure to end the driveway before it got to the house, would that be acceptable? Mr. Okum said yes, like a three-foot landscaped area. If you are looking at cost, if you leave the garage door there and put a side entrance into the space and put your family room into the back that would be a savings to you.

    Mr. Borden said if you are requiring a three-foot section of landscaping, wouldnít that take some of the parking area? Mr. Okum said yes, but based on the drawing we have, they certainly have adequate space to handle two cars, even if they lose three feet. Mr. Justes confirmed this, and Mrs. Justes added that actually we can park three cars there.

    Addressing the applicant, Mr. Okum said you have indicated that you are willing to move your storage to the front. What would you like to do; it is your variance request?

    Mr. Justes responded we will do whatever you request. Mrs. Justes said we can keep the storage in the front and have the family room in the back.

    Mr. Okum said the applicant has requested that we consider a variance to allow the storage in the front and family room in the back, and that the garage door is to remain.

    Mr. Squires moved to grant the variance to convert the existing garage to living space with the storage area in the front, the garage door to remain with the family room to the back. Mrs. Huber seconded the motion.

    Mr. Okum said the applicant and the owner of 11475 Walnut Street have returned. Weíll go on to discussion and come back to you.

  15. Mr. Okum said I see a hand in the audience. It would be up to the board whether or not we open up the meeting for communication from the audience. Does it have anything to do with a particular variance on the agenda?


    19 AUGUST 2003



    Mr. Randolph said no. I was told by Bill that it would be discussed. I was here last month, and I waited all night to find out why it wasnít on the agenda. I thought it would be under Discussion; that is why I have sat here almost two hours. Bill told me I should come down here tonight. I donít know where it stands, the downsizing of the deck on the side of the house at 516 Smiley. It would be 30 days from tonight that she would have to make the correction.

    Mr. Okum asked Mr. Lohbeck if there is anything we are missing here? That certainly is not action that this board would take. Mr. Lohbeck answered that is correct. The variance was granted with the stipulation that the deck be put back to certain dimensions. The variance was approved that way.

    Mr. Randolph said where do I find out more about that and when it is supposed to be done?. Bill told me to come down here. He said it would be 30 days from not last month, but from this meeting, like September 17th or 18th.

    Mr. Okum asked Mr. Lohbeck the purpose of the boardís involvement in this? Mr. Lohbeck answered I have no idea. Bill told the gentleman that he has 30 days to appeal it to the Court of Common Pleas.

    Mr. Borden said it is not his variance. Mr. Okum said the applicant who had the variance granted with conditions, had 30 days to appeal the decision of this board. That would go to the Court of Common Pleas.

    Addressing Mr. Randolph, Mr. Okum said that the 30 days you are referring to is 30 days from the date of our decision. The applicant for the variance has a right by law to go to the Court of Common Pleas and appeal a variance granted or denied by this board. That 30-day period has now expired. We donít know if an appeal to the Court of Common Pleas has been made.

    Mr. Randolph said can I find out? What about my rights? I wasnít real happy with the decision anyway. Where do I stand in all this? Is somebody supposed to notify me?

    Mr. Okum responded I never had a situation where a resident has a person speaking in opposition or in approval of the variance.

    Mr. Randolph said I am the one who complained because I was offended.

    Mr. Okum answered I understand that, but the issue of the variance was a zoning issue, strictly a nuts and bolts zoning issue on the placement of the deck. Your bringing it to the attention of the city is not a matter that would apply to this board. The issue of the variance was considered by this board.







    19 AUGUST 2003



    Mr. Okum said I canít say this for sure, but donít believe there would be a situation of appeal to the Court of Common Pleas of a board decision by a person that is not a party to the action. You werenít a party to the action. You gave testimony and this board took your testimony and acted upon the requested variance by the applicant. That action has now occurred. That applicant by law has 30 days to appeal a decision. You can check with the Court of Common Pleas to see if there has been an appeal of our decision.

    Mr. Randolph responded if I am not happy myself, can I appeal your decision in terms of what you have allowed? Mr. Okum answered quite frankly, I donít know. Mr. Randolph said I just wondered, because I brought pictures; it was a three-foot deck. I kept saying it was not a four-foot and I have proof now. I have some old pictures and compared them with the new pictures of the deck. I couldnít prove it at the time but I can prove it now.

    Mr. Okum said that case has been heard and the decision has been rendered by the board. The 30 days that Mr. McErlane was referring to is an appeals process that the landowner has on our decision. That would go to the Court of Common Pleas. If that person has not filed an appeal with the Court of Common Pleas within 30 days, action will be taken by the City with orders to make corrections.

    Mr. Randolph said it has been over 30 days now. Mr. Okum said the applicant has 30 days by law to make an appeal on our decision. So, in my opinion, it would be inappropriate for the Building Department to take action on that person when they still have legal rights to make an appeal.

    Mr. Randolph said maybe Iíll try to call down there and see if an appeal has been made. Mr. Okum responded I think that probably would be best because if there has been no appeal made, then the person who owns this property will be given orders by the City to take action to correct the situation and abide by the variance granted.

    Mr. Randolph said that is what Bill said, probably by September 16th or 17th it would have to be done, but he made it sound like it would be discussed at this meeting. That is the reason why I came down here.

    Mr. Okum said I hope the information that I have given you is adequate. Mr. Randolph said I appreciate it; Iíll call down there tomorrow to see if there has been an appeal.

    Mr. Okum responded that the City definitely will get a written notice from the court of any action of an appeal.

    Mr. Squires said I am trying to recall that testimony. You are the neighbor adjacent to the applicant. She had that deck built and the decision of this board was that part of that deck has to come down. Mr. Randolph responded that she is supposed to cut it in half but she hasnít yet.


    19 AUGUST 2003



    Mr. Squires responded what Mr. Okum advised you of is the best course of action on this. The City does take action if the resident isnít in compliance with the variance.

    From the audience, Mrs. Wade indicated that she had returned and brought her father, Reverend Harvey who is the owner of the property. Reverend Harvey reported that he just had prostate surgery. Mr. Okum said I understand; we encouraged her to table it to the next meeting, and her decision was to go get you. Mrs. Wade said you said that there wouldnít be enough time for me to get back, and then you took another person.

    Mr. Okum responded we took Discussion. Let me make this very clear. By moving you after Discussion we gave you the latitude to get back here in time. You are the next item on our agenda.

    Mr. Okum said we have a microphone on the end of the dais, and if you could walk around the upper level, we could record your comments. If you would speak very loud and clear..Mr. Borden said he could relate it to his daughter and she could speak into the microphone.

    Mr. Lohbeck suggested that he give authorization to his daughter to speak for him as the owner. Mr. Okum swore in Reverend Harvey, and asked him if he had given his daughter, Lennell Wade permission to speak on his behalf, and he confirmed that he had.

    Mr. Okum reported that this variance is requested to allow a basement remodel at 11475 Walnut Street.

    Mrs. Wade said my husband I have the lot next door, and we were going to build a home. We got a variance to do that, but we are now divorced. I want to live in the basement because my mother is sick and my father had this surgery so I can be there to help take care of my father and my mother.

    We want to remodel the basement including doors so we both have our privacy. The variance is to allow a stove in the basement.

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

    Mr. Lohbeck reported that the applicant is requesting to remodel the basement of the existing residence into an additional dwelling unit. The applicants wish to furnish the basement to allow their daughter to live with them to care for them. The basement would be finished to include two bedrooms one and one-half baths, living room, family room kitchen and an outside entrance.

    Section 153.096(A) allows single household dwellings in an RSH-H Zoning District. The definition of a single household dwelling is a building consisting of a single dwelling unit only. The definition of a dwelling unit is a space within a dwelling comprising living, dining, sleeping room or rooms, storage closets as well as space and equipment for cooking, bathing and toilet facilities all used by one household.


    19 AUGUST 2003



    Mr. Lohbeck stated that the proposed improvements would by definition create an additional dwelling unit and the building would become a two household dwelling.

    The concern in granting this variance is the potential for the floors to be rented separately as apartments should conditions change or the property be sold.

    Addressing the applicant, Mr. Okum said you have heard the comments regarding the Cityís position on this request. Do you have any responses?

    Mrs. Wade stated it would not be rented out. If they were both to pass, we would just dismantle the kitchen, if that is the issue. Is that the issue?

    Mr. Okum responded if I understand it correctly, the kitchen does drive it. Mr. Borden asked if it would be the separate entry also. Mr. Okum answered no, you could have multiple entries into your dwelling unit. Is it physically possible for this space to be converted, considering ingress and egress and light and air and requirements for emergency exit for living space, window wise?

    Mr. Lohbeck reported that the contractor came over and talked to me about it. The only thing we talked about was the egress from the bedrooms. He showed me a device that goes down into the ground and allows the escape through the window 44 inches off the floor. Thatís the only item we really addressed. Mr. Okum added and whether there was a kitchen or not, that would be required for a living space placed below grade.

    Mrs. Wade added that he also would do the fireproofing to keep it contained in the kitchen area.

    Mr. Okum said I think the issue is strictly the kitchen. You could convert that lower space into bedrooms and baths without a variance. The variance is for the kitchen, and I would have a problem with that because you would basically be turning a single family home into a two family home in a single family zoning district. The functionality of what you are using it for is enlarging the family with the second kitchen, and that becomes the difficulty, because you are basically circumventing the code. If this were an issue of turning this into multi family that would be an action Council would take.

    Reverend Harley asked if that would go for the handicapped. Mr. Okum said not really. Accessibility issues are not dictated on single family residences. It wouldnít even be a consideration for the Building Department because it is a single household unit.

    Reverend Harley said so you are saying that we could not have a kitchen, but everything else we could. Mr. Okum said that is correct, and you could have that without a zoning variance. It is up to this board to make a decision whether to grant the variance for the kitchen.


    19 AUGUST 2003



    Mrs. Wade said I thought it was based on a hardship, and if the kitchen were contained, like with fireproofing in the area, it would be just a stove. Mr. Okum said you would have kitchen sink and cabinets you have the functionality of a kitchen. Mrs. Wade responded but just a stove. Mr. Okum commented personally I would have a problem with that because I would have a separation of units. Literally it could be considered a two-household unit, or a multi-family unit.

    Mrs. Wade responded only because of taking care of them, but once that is over, you take it out for the next person. I would be moving and it wouldnít be a two-family any more. I am asking for a variance to take care of my parents. It is a question of their privacy and my privacy, and once it is over, it would be taken down. So I am requesting a variance for this period, and after that, I would have it taken down. Also we have it fireproofed so any fire would be contained, have a door and two windows already there plus two more escape windows.

    Mr. Lohbeck said concerning the kitchen being fireproofed, that is irrelevant. Generally they do that anyway. Basically what determines the kitchen is that you have a stove and refrigerator. You could use a microwave or you could go to a bar type refrigerator and that would not constitute a two family.

    Mr. Lohbeck stated Bill and I discussed this quite a bit, and he said if you have a kitchen, you have cabinets and you have a refrigerator in there and you have a stove, that constitutes a dwelling. If you get rid of the refrigerator and put it under the counter, and put in a microwave, we wouldnít have a problem with it.

    Mr. Okum asked if they could have a dishwasher; I see a dishwasher on the drawing. Mrs. Pollitt said I donít think the dishwasher is really relevant to whether it is a kitchen or not. My son is building a bar in his basement and he is putting a dishwasher down there for his bar glasses. I see the stove, refrigerator and sink making a kitchen.

    Addressing the applicant, Mr. Okum said I think the difficulty that we are having is that you area creating by \your own testimony regarding privacy and separation, two single household units.

    Mrs. Wade said temporarily. It would not be rented out afterwards or anything like that.

    Mr. Okum said letís say this were constructed and they did have this kitchen there. Could they rent that out? Mr. Lohbeck answered how would we know that? Mrs. Wade answered we wouldnít do that.

    Mrs. Pollitt said I do recall when this property was in for a variance previously. Mr. Okum said that was next door. Mrs. Pollitt said it was on the same parcel of land. Mrs. Wade said it was on the same parcel of land that we were going to split the parcel so we could build.


    19 AUGUST 2003



    Mrs. Pollitt said so someone still could come up on that piece of property and build a home there. Mr. Lohbeck reported that the variance was rescinded because of inactivity.

    Addressing the applicant, Mr. Apke said if this were to go forward, are there any plans to get your own phone line? Mrs. Wade said yes. Mr. Apke continued what about separate utilities? Mrs. Wade said no. Mr. Lohbeck commented even if you donít have a division of utilities, it could be included in rent.

    Mr. Borden said when you say temporary, what kind of time frame are you talking about? Mrs. Wade answered I am talking about time of death. If they were both to die, I would have to get rid of the kitchen so it wouldnít be a two-family dwelling for whomever. It would just be for special conditions of taking care of my parents.

    Mr. Borden said we canít give a temporary variance because we donít know the time frame.

    Mr. Okum said this almost leads me to believe that a conditional use variance through the Planning Commission might be an option for us. Mr. Lohbeck said I donít think that Planning Commission is an option because it is a zoning issue that the Board of Zoning Appeals needs to hear. Mr. Okum said because it is residential and not commercial, and Mr. Lohbeck said right, nor is it a PUD. Mr. Okum said we handle conditional use variances in business districts. We have a day care center on Route 4 that we allowed in a commercial district with conditions.

    We have two council members who would like to have a timed issue or variance issue researched by our law directorís office. That can drive a decision before this board. Addressing the applicant, he said that based on the concerns that this board has, I donít think you would get a positive vote from this board.

    Reverend Harley asked if the main thing the stove? Mr. Okum answered it is the kitchen. Mrs. Wade commented basically it is just the stove. Mr. Okum continued if you submit your plan to the City with the kitchen in there, it will be turned down. Mrs. Wade said cabinets, sink and refrigerator can be there; the issue is the stove.

    Mr. Okum responded that according to staff, it would need to be an under cabinet refrigerator. Reverend Harley said most people with basements have a deep freeze. Mrs. Wade added and they have refrigerators.

    Mr. Lohbeck responded that is what we discussed. If you have a refrigerator and a stove in a kitchen, that constitutes a dwelling unit. Mrs. Wade said forget the stove; what if you have a refrigerator. If you have a kitchen, and have a refrigerator and stove, that constitutes a dwelling unit. Mrs. Wade said but without the stove, just cabinets and a refrigerator. I am eliminating the stove which is the issue, and still have the refrigerator. I am asking for a variance for a refrigerator.



    19 AUGUST 2003



    Mr. Okum responded I think it would be the Building Departmentís determination what would constitute a kitchen which would cause this to be a separate dwelling unit. That is an issue outside of this Board. I donít think we should determine what constitutes a second dwelling unit. It is up to the head of the Building Department to make that determination.

    You have a pretty decent plan here and you have shown that you can accommodate your egress issues. The only question is whether or not you are going to have the kitchen down there, because the rest of it doesnít apply to this board

    Reverend Harley said I agree with everything you have said. I am asking about the deep freeze. Is there anything wrong with having a deep freeze down there? Mr. Okum said that is a Building Department issue. You can go to the Building Department tomorrow and discuss that. My recommendation to you is that you request to table this, or you can have us act on it. If it doesnít have a kitchen in it, there is no action we need to take, because it is not a living unit.

    Addressing the applicant, Mrs. Huber said I would think that if you are taking care of your parents and they are not physically able, you would be using their kitchen, wouldnít you? I would think for family cohesiveness to have meals together would be beneficial to you and your parents. Mrs. Wade answered I agree, but I would prepare the food in my time and in my place with my privacy.

    Mr. Okum said that is your request, and if you want to pursue it weíll act on your request this evening. However, I am not hearing favorable comments to this consideration. It is your decision. We have two members of Council who want a clear-cut direction, a legal opinion on your requested time.

    Reverend Harley said in other words, we can have everything in the basement but the refrigerator and stove. Mr. Okum said my understanding is that is correct. I am not the Building Official and I am not the one who interprets the code for variance requests, but based on the report that was given to us, that drives this issue to bring it before this board.

    Mrs. Wade said may I move ahead on the other issue and continue to pursue the kitchen? Mr. Okum responded I canít tell you yes or no, but if it is a legal application to the Building Department, they will process it for you.

    Mrs. Wade said what do you suggest I do then? Are you requesting that I table it and then where do I go and who do I talk to? Mr. Okum said you would table it and modify your permit application to not include a kitchen, and if you take out the kitchen, you will not need this variance.

    Mrs. Wade said I would still like to proceed, and continue to see if I can get the kitchen. What should I do then?


    19 AUGUST 2003



    Mr. Okum responded make an application to the Building Department and take off the kitchen area. Mrs. Wade responded I still would like to continue. What do I do then?

    Mr. Apke responded it sounds like you would want to table this. You want to do it for the lifetime of your parents and then dismantle the kitchen. We want to make sure that we can put that time restriction on it legally, and we are waiting to get a legal opinion. You could table it, and we have a month to get our legal opinion together, and give you further direction. You could go ahead and apply for the permit, leaving the kitchen out.

    Addressing the applicant, Mrs. Pollitt said I am not in opposition; I am sympathetic with what you are trying to do for your parents, and I applaud you for that. I was sympathetic to you when you came in before wanting to build a house close by so you could help them. My only concern is that if we allow you to do this, it constitutes a separate dwelling and if you were to inherit this property and decided you wanted your niece. to live down there, that would not be the way we intended it to be used. Also I need to know what we can say are conditions. That sets a precedent for anybody else in that neighborhood that wants to have a second dwelling in their original dwelling. That whole neighborhood is not set up for multi-family dwellings.

    Mrs. Wade said I understand, but this is a separate hardship condition. With your concerns, you can modify or add to the variance so it would not happen.

    Mrs. Pollitt said if you were to sell the property, and the kitchen wasnít there and it was set up for bedrooms, it would be very easy for someone to put that kitchen back in and that would be a concern.

    Mrs. Wade responded you can put a condition on there that it would be dismantled, and I would have it dismantled.

    .Mrs. Pollitt said my concern is the legal aspect on it, because we have been cautioned by Council before on this.

    Mr. Squires said this variance if it includes that kitchen may have to require a legal document that you would have to sign that would say you would dismantle that kitchen. Iím not sure that can be done; Mr. Okum said that is contract zoning and I donít think we can do that.

    Mr. Squires said the other item is if you eliminate the kitchen all together, you could go ahead and do it. Mrs. Wade said I understand that.

    Mr. Okum said it doesnít conform to the Zoning Code and we are a board that hears variance requests.






    19 AUGUST 2003



    Addressing the applicant, Mr. Apke said at this time and with your permission, I would move to table this to next month so we can get the legal answer. Mrs. Wade answered yes. We can go ahead with the construction but table the kitchen part. Mr. Okum added that there are no assurances whatsoever that you would be granted that variance. You may end up building the living space down there and not have a kitchen.

    Mr. Apke said I will move to table and Mrs. Huber seconded the motion. All voted aye, and the matter was tabled to September 16th.


  17. A. Mrs. Pollitt said my understanding from Mr. Schneider was that we could not place a time limit on a variance. Mr. Squires confirmed that was his understanding as well. Mrs. Pollitt said we were revoking the variances if after six months nothing was done, and we were told we couldnít do that. So how can we put other time limits on a variance, if we canít put that one on it? Mr. Apke said we canít revoke it because it goes with the land. Mrs. Pollitt continued so can we put a time limit on a variance like we did earlier this evening with the swimming pool?

    Mr. Okum responded that it was the construction or action on the variance that set a time, and they said we couldnít do that. This is one of those instances that the variance expired. Mr. Okum said in the Zoning Code from City of Cincinnati, June 2003 Page 282 it says "subject to an extension of time granted under Chapter 1443 Zoning Hearing Examiner Procedures, a variance, special exception or conditional use expires two years after issuance in accordance with Section 1443.09."

    Mrs. Pollitt said so if we gave her a conditional use, she would have to come back in every two years to have her variance continued? Mr. Borden commented I donít know what this means. I donít understand this variance. There is not enough there to help us make a decision. There is not enough information there. Mr. Okum said we have to go to 1443.09 and see what that section is. It is on the internet.

    Mr. Apke commented that the basic nuts and bolts though are that it does show that there is a time limit, and some variances could expire after two years.

    Mrs. Pollitt said so if the parents are alive after two years, she would come back in? Mr. Okum said yes, we do that with a pet grooming business. I believe that years ago we had a garage conversion in Springdale Crossings that went through a change of ownership. They were notified that it was on a variance with conditions and the garage was no longer allowed to be used in that manner.



    19 AUGUST 2003


    X. DISCUSSION - continued

    Mr. Okum said if you review our list of variances over the last 25 years, you will see variances with conditions and limits of time.

    Mr. Okum said if you grant variances for a sign, it is still a variance to the Zoning Code with a time. To state that the entire code is limited to only signs is incorrect and would be improper. What makes a sign any different? Mr. Lohbeck commented that we have temporary banners in there which sometimes need extensions or variances. Mr. Borden added that we also have seasonal items.

    Mr. Okum commented that we hear mostly the temporary banner issue. So you are saying that things that already have time limits may make it eligible for a variance for extension of the time limit.

    Mr. Borden added that still doesnít address the issue of multi-family. Mr. Okum said there was a case outlined in the Zoning Bulletin that was a multi-family use in a single family area where the Building Department approved the construction. Their position was because it was approved by the Building Department, it was an implied multi-family and she decided to rent rooms. The Building Official said she couldnít do that and they challenged it and the court ruled in behalf of the City. Mr. Apke added that they were specifically keying on the cooking facilities as one of the big factors, which is what we are looking at this evening.

    Mrs. Pollitt asked if the Building Department was wrong in granting the permit for that type of a structure with two units in it. Mr. Okum responded I donít know. My experience in the building industry is that there are some families that build new homes with two kitchens in them. That is very common. Does that make those homes two family homes?

    Mr. Borden said what about when they use the phrase mother-daughter suite, or mother-in-law suite. There is a house for sale in Springdale like that right now I donít know what that means. Maybe we need to address the definition of multi-family. Mr. Okum said we did that in the new code, and I thought we had tied it down fairly well. The Building Department has interpreted it that way. I can understand the Building Departmentís apprehension, because they have to enforce the Zoning Code. If they have a number of homes that are constructed with two kitchens, you can actually create that multi-family environment within a single household residential use. Maybe it is the composition of the area and the space; if you put bedrooms, bath and kitchen all together, it becomes a living unit, separated by floors.

    As far as our council representatives are concerned, I donít want to push the City into a position where we are getting a 10-page report back from the law directorís office that you canít read anyway. Give me the syllabus of it. As chairman of this board, it is a little difficult for me to put that burden on the City with the other constraints that the City is under right now.

    Mr. Borden said what is the likelihood of this happening again? This is unique; that is a huge basement.



    19 AUGUST 2003


    X. DISCUSSION - continued

    Mrs. Pollitt commented that the board is here because of unique situations. Mr. Borden added that we are here not to set precedents also.

    Mrs. Pollitt said you said that the Council would be driving the decision whether staff goes to the law director for a position. What is your recommendation? Mr. Okum said I think it has to come from Council saying that the board needs this to clarify and resolve this. Give them the authority to get it done.

    Mr. Lohbeck commented I thought we had done that on the temporary variance issue, years ago. Mr. Okum responded that the law has changed many times since you have been here. Mr. Lohbeck answered they still give the same answers. Mr. Okum said I am hearing it differently from different areas. It is different in the Cincinnati Zoning Code.

    Mrs. Pollitt said maybe the attorney isnít the one we should ask. Maybe it should be the city planner. Mr. Okum said I think the city planner would be afraid to step on the attorneyís toes. Mrs. Pollitt continued that she probably has much more experience with this type situation than the attorney would.

    Mr. Squires said I can tell you right now what their answer would be because we have attended seminars and he will say donít do it. Mr. Okum responded I disagree with that. If you heard Tim Burks, that would not be his position, and he is in a legal firm that does zoning.

    Mr. Lohbeck reported that we surveyed five communities. Blue Ash issues no temporary variances. Fairfield grants temporary variances occasionally, and the law director attends the BZA meetings. Forest Park hears appeals but Planning Commission handles variances. Montgomery does not grant temporary variances and there is a $250 filing fee. Sharonville grants temporary variances occasionally.

    Mr. Borden commented this just indicates that it is all different. Mr. Okum said we have to get this resolved, and we have to do it before next month. If Council can give us the power to resolve it, that would be good. Mrs. Pollitt said we will bring it up to council tomorrow night.

    Mr. Okum said I donít mind going down to meet in the law directorís office and review what we have and the situations to help us through this process, but donít spend a lot of time on it.

    Mr. Squires said what do we want to ask Ken, temporary variances? Mr. Okum said no, conditional variances that involve time.

    Mrs. Pollitt asked if it would be improper to discuss in Council what precipitated our need to get this direction. Mr. Okum said the testimony given this evening is public record.




    19 AUGUST 2003


    X. DISCUSSION - continued

    Mr. Squires said we are concerned about that extra living space involving the kitchen, because the kitchen would make this a multi-family dwelling. Mr. Okum added that the applicant has said that she is willing to put conditions on that variance.

    Mr. Lohbeck said how do you police that? Mr. Borden commented that it is not enforceable. Mr. Okum added the only way to police it is if every two years they would come back in. Mrs. Pollitt said that is such a hassle for the Building Department to keep up with. Mr. Squires said if you allow that, look what precedent you would set there.

    Mr. Borden said the definition of multi-family is not clear, at least to me.

    Mr. Borden said with something that came up tonight, with the neighbor of the property where we granted a variance last meeting, Iím not sure if it was a case where he had any recourse. Mr. Lohbeck reported that he can file suit himself.

    Mr. Okum asked everyone to share their e-mail addresses so he can copy the members. It would be of value to me to be able to communicate with you.


Mr. Apke moved to adjourn and by voice vote all voted aye, and the Board of Zoning Appeals adjourned at 9:52 p.m.

Respectfully submitted,



_________________, 2003 ________________________

David Okum, Chairman



_________________, 2003 _________________________

Jane Huber, Secretary