Board of Zoning Appeals Meeting Minutes

19 August 1997

7:00 p.m.



The meeting was called to order at 7:00 p.m. by Vice Chairman James Squires.


Members Present: Councilwomen Kathy McNear and Marge Boice, Barbara

Ewing and James Squires

Members Absent: David Okum (arrived at 7:05) and Thomas Schecker

Others Present Bill McErlane, Building Official

Mr. Squires stated that Mr. Okum had called and will be late. We havenít heard from Mr. Schecker, and Mr. Mitchell has resigned from the Board because he has moved to North Carolina.


Mrs. Boice nominated James Squires and Mrs. McNear seconded the

motion. Mrs. Boice moved to close the nominations. All present voted

aye, and Mr. Squires was elected Chairman of the Board of Zoning


Mrs. Boice commented now we need a vice chairman. Mrs. McNear said I nominate Mr. Okum. Mr. Okum was not present and the Board decided to hold that until later in the meeting.

Mrs. Boice stated I do wish to discuss the approach to filling the empty

position on the board because it would only be for three months and

then a new Council would be seated December 1st. Mr. Squires stated

that this would be discussed later in the meeting under Discussion.


Mrs. Boice moved to adopt and Mrs. McNear seconded the motion. By voice vote, all present voted aye, and the Minutes were adopted with five affirmative votes.


A. Planning Commission Meeting Minutes - 8 July 1997

B. 8/7 Letter of Resignation from William Mitchell, Chairman

C. 8/14/97 Notice of Appeal re Hunterís Glen, et al. vs. City of

Springdale Zoning Inspector, et al.


A. Report on Council Activities - Marge Boice

Mrs. Boice stated that tomorrow evening Council has a public hearing on the rezoning of property at Kemper Road and Century Boulevard from R-1-A to PUD. There will be a presentation by Target Stores who are looking at that property, so if anyone is interested, this will be done tomorrow evening.

I see that Mr. Okum has arrived so we can go back to the election of Vice Chairman.


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19 August 1997

Page Two

Mrs. McNear nominated Dave Okum as Vice Chairman and Mrs. Boice seconded the motion. Mrs. Boice moved to close nominations, and by voice vote all present voted aye, and Mr. Okum as elected vice chairman.

B. Report on Planning Commission - David Okum

Mr. Okum stated since I was out of town I did not get to Planning Commission meeting and there were a number of issues on the agenda. The existing Swallenís property was being considered, and the Target project. Mrs. Boice asked about the Swallenís property, and Mr. Okum answered they are proposing additional buildings going over the creek area and tying that one parcel into it.

Mr. McErlane reported they have it split up into three separate users and they are fairly good sized. They told me early on that they couldnít disclose the details because of leasing reasons. By the time they get to final plan submittal, they may be able to. Mrs. Boice commented I would hope so.

Mr. McErlane continued the fortunate thing is there is one overall architectural theme to the center, not three prototypes stuck together.

Mr. Okum said I wondered if that project wouldnít fall into PUD zoning. Mr. McErlane answered the total square footage for all the buildings on the property is less than 100,000 square feet, so it doesnít automatically go PUD. Mrs. Boice said it sounds like it might have some parking problems and might end up right here. Mr. McErlane reported the most difficult section of the site is the part on the other side of the creek. It is narrow and difficult to work with. Mrs. Boice commented I would love to see something develop there. Mr. Okum stated concept wise the use of the land as retail is pretty well expected; how they are using it, how dense it is, ingress and egress by the Star Bank is very difficult. To increase that we will have concerns with the width of that opening. They did not incorporate Star Bankís property into their plan and I had some real concerns about the parking and flow of traffic there.


A. A variance once granted will be referred back to the Board of Zoning Appeals if after the expiration of six months no construction is done in accordance with the terms and conditions of the variance.

If a variance appeal is denied, the applicant may resubmit the appeal six months after the denial.



Mr. Squires stated all testimony given in cases pending before this Board are to be made part of the permanent record. We ask that applicants please take the stand. There is a microphone, and everything you say is recorded. From this recording we obtain the minutes of our meeting.

A. BP ProCare, 11725 Princeton Pike requests variance to allow the construction of a ground sign 1í from right of way line. Said variance is requested from Section 153.092(E)(5) "...A ground sign..shall be 10 feet from a street right of way line..."

Bob Carpenter of CSS Sign Company said I am an agent for BP and we are asking for a variance to the setback requirements. I have photos here that I would like to pass out.

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19 August 1997

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Mr. Carpenter continued in order to comply with your standard setback, the sign would lose total visibility. I have tried to put these photos in order to present our case. Photo #1 is looking south from the base of the sign, and you can see Princeton Bowl sign and very little else of the traffic. The two signs are basically in conflict with each other. With Photo #2 looking south, you have no change in visibility. One sign blocks another and blocks another.

Moving on to Photo #3, when you drive south on 747, that photo was taken from the very first point where you can begin to see the BP sign that is there now, and you have little or no visibility. Going higher or bigger with the sign does not work.

The landlord would like to have it lowered, and has approved the drawings that we submitted to your board because it would eliminate the conflict between the Princeton Bowl sign and the BP sign. The sign we are proposing is two square feet less than what is there now.

Photo #4 shows the tree in the foreground. We intend to remove those trees in that island that parallels 747 because they are taller than the sign itself would be. We would take the gravel out, put some compost in and plant some low lying things, because there is an expressed desire to keep this entire structure under seven feet. On Photo #1 when you are looking south with the Frischís sign on the building, we did a site survey and determined that a seven foot high sign would not block the Frischís sign or the Princeton Bowl sign. An eight foot sign starts barely coming into it. We are trying to keep the sign as low as possible. There is nothing out of the ordinary about the design of the sign. Our primary problem is with the setback, and the next photos address that problem.

Photo #7 is a northbound look. The bush in front of the green pickup truck is just about where the sign would have to be to comply with your 10 foot setback. That is all parking area and Photo #8 demonstrates the same looking south. There are cars parking on both sides of the site where the City would have us put the sign to be legal.

Mrs. Boice said I am still not clear when you are talking about the bush; isnít that a tree? Mr. Carpenter responded that may well be . It is 10 feet back, so that is where the sign would have to be. You can see what the parked vehicles do to the visibility of that tree or bush. The setback is normally presented to keep people from being too close to the road and impairing vision of traffic pulling out into the highway, but there is more than a full car length of grass area from the right of way to the road, so that there is no danger of that even happening. I donít feel we would be creating a hazard in traffic in any way, and the parked vehicles virtually obliterate the sign. By decreasing the size of the sign, we would automatically be another foot back, because this sign is shorter by two feet.

Mr. Okum said this City has expensed an enormous amount of money over the years in tree placement. You are indicating removal along the corridor area that is already very commercial. What do you intend to do about replacement? I see a plan with your sign and somewhat of a site plan but there is no landscaping plan whatsoever. If we are removing trees, before I would consider acting on this, I would like to see a complete landscape plan in respect to this. If you are removing trees for sign visibility and you are encroaching into the setback requirements, my consideration would be based upon how you treat that entire area.


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19 August 1997

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Mr. Okum continued the other concern I have is how the other businesses along 747 would react to the setback requirement being adjusted for you. I certainly agree that a ground mounted sign is a favorable change to pole signs, and we are encouraging that in the City, but on the other hand you are getting very close to the right of way line. Furthermore I would be concerned how that sign would be impacted if there were future plans by the City to widen 747 by an additional lane. Those are the considerations I would need answers on before I would feel comfortable acting on your request.

Mr. Jones, Manager of BP Procare said the reason for going to the ground mounted sign is all the signs piled up at the same level donít look very good. I want to put topsoil and flowers and make it bright and pretty. The tree removal is only for the purpose of planting flowers. I just started as manager July 1st; I have been with ProCare 10 years and have been very involved in the store. Whatever you want, I would be happy to do.

Mrs. Boice said for clarification, what trees are we removing? Using the photograph, Mr. Jones showed the front column of trees and bushes in Photo 4. Mr. Okum asked how many trees would be taken out and Mr. Jones answered two. Mr. Okum wondered how many caliper inches, and Mr. Jones estimated four to seven inches ; they are eight to 10 feet high. We want to get rid of the gravel and add mulch and top soil.

Mr. Okum asked if under the tree preservation ordinance if they would be responsible to replace the trees they remove. Mr. McErlane answered I assume they are ornamentals, and they would be required to replace one-half of the caliper inches removed. Mr. Carpenter commented there might be room for them at the north end of the property where they wouldnít be in direct view of the sign. Mr. Jones added we could remove the gravel in the middle and plant them in the center area and plant flowers there. Mr. Carpenter said there would be no problem with replanting those trees.

Mr. Squires said if you replant the trees wonít you obscure the sign? Mr. Carpenter said they would be behind the sign towards the building. There is plenty of room for them there because that was planted kind of sparsely. Addressing the applicant, Mr. Squires asked if they felt the present signature is inadequate for your business or is it a matter of aesthetics to improve it? Mr. Jones answered both. Mr. Squires commented I noticed that the pole sign is very visible, but the monument sign would be much closer to the right of way. Mr. Jones stated the pole sign gets blocked by the other signs. They kind of blend in.

Mr. Carpenter stated Mr. Gilhart was very receptive to this idea of having less congestion in that area. On the sign design itself, the whole concept started with the BP program. Virtually all the Procares have a reader board under it where they can promote specials.

Mr. Carpenter added BP first sent me out there over a year ago, and when I first came to see Mr. McErlane he said we would need a variance, because then they wanted to make the present sign bigger by adding a two foot reader board under it. When I went to Mr. Gilhart for approval, he said no, that his sign was already obliterated by it for southbound reading. He said there was no way he would give us something to impair the vision.

Mr. Okum wondered if the applicant would have a problem with requesting this be tabled and present this board an accurate landscaping plan so we can consider the way it will be. You would be required to replace 50% of the trees, or save and relocate them.

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19 August 1997

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Mr. Carpenter responded I think we probably would be better off to do that. I also would appreciate it if the board had any particular recommendations concerning the landscaping. I am not a landscape person. Mr. Okum said it might be to your advantage to contact a landscape architect and have them draw up some landscape

plans that will be maintainable.

Mr. Squires said I would ask that you keep in mind that the one foot setback is very close to S.R. 747 and as Mr. Okum has suggested, if the City widens 747 in the future, that sign would either have to be removed or it would b extremely close to the right of way. Maybe an alternate plan would be good; this is just a suggestion, nothing more than that.

Mr. Carpenter commented that probably would be something they could address when it happens.

Mrs. Boice commented the reason we are suggesting that you think about tabling and regroup and readdress this is from the comments you have heard, there probably would be some difficulty at granting a variance this evening. If that would happen, you would not be able to apply again for six months. Mr. Carpenter responded I agree; I was just trying to get all the things in order so that when I went back, I could come up with what you wanted. Mrs. Boice answered we as a Board cannot suggest landscaping, but hearing what I have heard, IL would move to table and Mr. Okum seconded the motion. By voice vote, all present voted aye, and this was tabled to the September 16 meeting, adding we appreciate your efforts in trying to work with us.

B. Tom Fogus, 1223 Castro Lane requests variance to allow a pool to be 11í4" from the property line. Said variance is requested from Section 153.047(B)(1)(a)"...shall not be located within 15 feet from any lot line..."

Mr. Fogus stated I would like to locate a swimming pool 11í4" from the property line instead of the 15í required. The pool has been erected

and the current location is not visible from the street, an provides maximum supervision from my family room kitchen patio. WE put it in that location so our two eight year olds could have some yard, and I wasnít aware of the 15 foot minimum at the time.

Mr. Okum said I donít see a problem with the location you are requesting. I would have a concern regarding what side of the pool the deck goes on. Mr. Fogus responded the deck is on the other side, the 40 foot side to the rear of the pool. Mr. Okum continued so the deck wonít encroach into that 11í4" area. Mr. Fogus said we put the deck in that place so we can see upon the deck; our maximum concern is we have two eight year olds, and we want to watch them every second.

Mr. Squires said when I drove by, you canít see the pool from Castro but you can see it f from Wainwright. There is some wood construction; is that part of your deck? Mr. Fogus said the deck is by the pool and there also is a swing set. Mr. Squires wondered if he had complied with the construction of the deck from the Building Department, and Mr. Fogus answered I havenít received anything from the Building Department approving my deck plans; Iím not sure this is part of this proceedings or not. Mr. Squires commented we are approving only the setback from the property line tonight. You have another situation regarding the construction of the deck. Mr. Fogus answered I gave them new plans, and IL guess they are attached to this. Mr. Squires repeated we are dealing only with the pool and the setback from the property line, not with the deck.

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19 August 1997

Page Six


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

C. Karen Day, 11843 Neuss Avenue requests variance to allow a10í X 12í shed 4í-7" from the property line. Said variance is requested from Section 153.047(B)(1)(a) "..shall not be located within 15 feet from any lot line."

Mrs. McNear stated I need to abstain since we have been friends of the family for a long time.

Mrs. Boice commented before we put Mrs. Day through all this presentation, we are talking about 5 inches difference, and it is a replacement shed. If we were talking 2í-5", I think I would be inclined to want to listen to a long presentation, and maybe she wants to make one, but I frankly think this is one of the easiest ones we will look at for the next couple of years. I would move that the variance be granted and Mr. Okum seconded the motion. Voting aye were Mrs. Boice, Mr. Okum, Mrs. Ewing and Mr. Squires. Mrs. McNear abstained and the variance was granted with four affirmative votes.

D. George Hayward, 389 Cameron Road requests variances to allow a 12í x 16í wooden shed on his property and the demolition of the garage. Said variances are requested from Section 153.036 "A separate accessory building..other than a garage, shall not exceed 1120 s.f. in area", and Section 153.023(F) "Each single family dwelling..shall have 2 or more car garage."

Mr. Hayward said we took down the garage and built a shed to put things in. The garage was in bad shape, so we took it down several years ago. We have children now and need to put the bicycles in the shed and keep things cleaned up. We have no problem with the neighbors. It is a very good looking shed. The clearance is six feet on each side from the property lines. My neighbor Shawn Randolph is a remodeler and he recommended that I get a permit; as I was building it, I was unaware that I needed one, and I apologize for that.

Mrs. Boice wondered how long ago the garage was taken down, and Mr. Hayward answered about two years; it was dangerous to park anything in it and an eyesore. Mrs. Boice asked if the shed had been placed approximately where the garage was and Mr. Hayward answered it was back further.

Mr. Squires commented it is 192 square feet, and 60% over the allowed square footage.

Mrs. Boice asked how deep the lot is and Mr. Hayward said there is a site plan submitted, and the shed is setting on the left side corner. You cannot see it from anybody elseís area. There are several trees around it too. From the park you might see a little bit of the roof.

Mr. Okum wondered if the shed were painted, and Mr. Hayward answered yes that they matched lit with the house. Mr. Okum asked if it had an overhead door or swing doors. Mr. Hayward answered I was going with swing doors, but I thought it looked nicer with an overhead door. Mr. Okum said so it has an overhead garage door on it. Is it built on an improved surface? Mr. Hayward answered it is on a concrete slab. Mr. Okum commented so it is essentially a short garage. Are short garages prohibited in this district?

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19 August 1997

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Mr. McErlane answered there are a couple of things that make it not comply as a garage. One is that it needs to be 400 square feet minimum. The other would be that it doesnít have a driveway that leads back to it.

Mr. Okum commented you indicated you will be landscaping around it. How will you do that? Mr. Hayward answered we will be putting short shrubs around it, grass and a walkway to the shed of decorative stone. We have been in the house for a year, and I have been in the neighborhood for five years. This house was halfway done and I slowly have been building it up, and a lot of the neighbors really appreciate that.

Mrs. Boice wondered how soon he anticipated starting on his landscaping and Mr. Hayward answered I heard you need to plant seeds grass and shrubbery in the fall.

Mrs. McNear moved to grant the variances and Mrs. Boice seconded the motion. Voting aye were Mrs. McNear, Mrs. Boice, Mr. Okum, Mrs. Ewing and Mr. Squires. Variances were granted with five affirmative votes.


Mrs. Boice commented the letter to Mr. Osborn on Mr. Mitchellís resignation caught me by surprise. I would have loved to have had the opportunity to thank William and wish him well. His remaining term is only three months and it is a Council appointment.

Mr. Danbury called me and asked how the Board felt about it. What it amounts to is anyone that Council would appoint now would only be for three months, with no assurance that they would be reappointed. There definitely will be at least one seat changing in Council and there may be other changes; there are four district seats open. If we were to appoint someone with no previous experience, three months is barely a break-in period. I am asking if you would prefer to operate with six members and wait until then Council is seated in December before you have a replacement member?

Mrs. McNear added it takes too long to learn this with no hope of knowing that they would be back on the board. Mrs. Boice said I think it would be unfair unless you drew from somebody with experience on the board who would be willing to fill in for the short term.

Mrs. Ewing commented I am agreeing with what you are saying, and so far we have not had any situations where we have had a tie vote. We can never tell what will come forth and with a 3-3 tie, what happens? Mrs. McNear commented you had four members voting tonight when I abstained.

Mrs. Boice added I think we need to stress the rules and regulations of this board concerning absence. Mr. Squires responded as chairman I would appreciate a phone call if you are not going to be here. I think we are talking about one individual right now, and I havenít heard from him at all. Did Tom call anybody? The members indicated he did not, and Mrs. Boice added this is his third absence this year, and that is something that needs to be addressed.

Mrs. Boice asked how the members felt about filling Mr. Mitchellís position. Mrs. Ewing answered personally I agree that we should not do it at this time. Mrs. McNear added how long has it been since we had a full complement anyway? We have had seven members present maybe once all year, and I think for three months we can squeak by.

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19 August 1997

Page Eight

IX DISCUSSION - continued

Mr. Okum said by the time Council would consider qualified applicants would be unfair to bring someone on for the short haul. We can function with six members. Mrs. Boice said traditionally the first meeting in December you elect your president and vice president of Council and your board members. The December meeting of Council would fall before Board of Zoning Appeals so we would have a member at the December meeting. The board members concurred that the applicant should not be appointed at this time and Mrs.Boice will report that to Council.

Mrs. Ewing commented it did surprise me to see Mr. Mitchellís house go up for sale. I am not sure how much notice he had, bur he did do a good job. Mrs. McNear suggested a resolution for him. Mrs. Boice added he was a very good member, and I enjoyed working with him.

Mr. Squires wondered about Golden Tanning and their window signs. Mr. McErlane reported they are in compliance. They sent me accurate dimensions and their existing wall sign was not the size they assumed it to be.

Mr. Okum commented it seems like signage is increasing near the Springdale Cleaners again. You may want to have our sign patrol look at that. Also Levitz and Roberds are using truck mounted signs on the weekends consistently for mattress sales. Roberds had two Serta tractor trailers in the front of the parking lot two or three weekends ago and Levitz is doing banners on a panel truck for mattress sales.

Mr. Okum wondered if we have a limit on the number of people per square feet of house in a residence? Mrs. Boice responded you canít what if someone has 13 children? Mr. McErlane answered no, the BOCA National Property Maintenance Code does have limits but we decided not to because of that point. If you have a new arrival in your family, whoís going to tell them to build an addition? Mr. Okum said there is a ranch house on Ledro that has 12 people living in it. Mrs. Boice added you really canít; we are changing that in the Code right now. To be politically correct, you canít use the term family any more, you say single household unit.

Mrs. Boice asked Mr. Okum the main complaints from that home, and Mr. Okum answered a lot of noise, children constantly out in the middle of the street, too many people outside and shooting fireworks constantly. Mr. McErlane stated shooting fireworks is illegal.

Mr. Okum said on the signage issue, I know you are doing everything you can but itís almost like the bite of the penalty should be enough to justify the employment of a person to maintain it, because it seems to be an ongoing thing. Mr. McErlane commented things have gotten better since we have a magistrate that handles our court cases.

Mr. .Squires said I have not read the complete transcript that we received, but apparently we are in court with Hunterís Glen. Can you bring us up to date?

Mr. McErlane reported I talked with Brisbenís attorney several times, and if you have noticed, recently they reduced the size of the sign. Within the past couple of days, they actually lowered it. It seemed like every time they told me they were going to do something it ended up a little bit different than what they talked about. The most recent was when they did reduce the size of the sign, they told me they would lower it at the same time. They reduced the size of the sign and their sign contractor did not lower it.

Mr. McErlane added subsequently they fired the sign contractor that they said caused all the problem in the first place and they have a new sign contractor. They have lowered it in the past couple of days. I think what they intend to do is come back in next month for a variance on the overall sign height. The reason they filed the suit was that they did not want to lose the opportunity to appeal their last denial. I would think if things work out they will drop their suit.

Mr. Okum said I think the cited issues are a little bit ridiculous. They say we were restricting the freedom of expression. I thought we were very tolerant and listened and it was a shame to see that. I am happy to hear that our building department is so actively working to resolve it without litigation.

Mr. McErlane added what I told the attorney was that if the applicant had modified his application and hadnít left it on the table the way it was, there might have been a chance that it would have been approved. He didnít do that so the vote was on what he had originally proposed.


Mrs. Boice moved to adjourn and Mr. Okum seconded the motion. By voice vote, all present voted aye, and the meeting was adjourned at 8:16 p.m.

Respectfully submitted,



__________________________,1997 _____________________

James Squires, Chairman



___________________________,1997 _______________________

Barbara Ewing, Secretary