21 AUGUST 2001

7:00 P.M.


  2. The meeting was called to order at 7:03 p.m. by Chairman David Okum.


  4. Members Present: Councilman Robert Wilson, Robert Weidlich,

    Robert Apke, Councilman James Squires,

    Fred Borden, Jane Huber and David Okum.

    Others Present: Richard G. Lohbeck, Inspection Supervisor

  6. Mr. Squires moved to adopt and Mr. Borden seconded the motion. All voted aye, except Mr. Okum who abstained, and the Minutes were adopted with six affirmative votes.

    1. Planning Commission Meeting Minutes Ė 10 July 2001
    2. Zoning Bulletin Ė July 10, 2001
    3. Zoning Bulletin Ė July 25, 2001
    1. Report on Council Activities Ė Jim Squires

Mr. Squires reported that there was an ordinance authorizing a additional funds for the DARE Program. There also was a resolution authorizing the city to cooperate with the Hamilton County Park District to cull the deer herd in Winton Woods. There was a long discussion about the sound system in these chambers. NORCOM installed it and we have had considerable problems with it. Council wants to consider completely redoing it, and Mr. Parham will look into that for us.

Mr. Okum said one suggestion I would have is to upgrade the unit and also go to small LCD screens on the dais for the members of the boards, commissions and council. There are a lot of applications that can be utilized there with those, and other communities are currently using them. Mr. Squires said I will pass that on.

B. Report on Planning Commission Ė David Okum

Mr. Okum reported that there was a public hearing to reconsider a Conditional Use Permit to allow a day care center at 11285 Springfield Pike. There was some discussion as to what had been done to alleviate the sound problem. The applicant had planted trees, placed a sound deadening wall and plantings around the play area as originally presented. The one item discussed was the fact that there were children outside the play area playing. Planning decided to allow the day care business to operate. They are very aware things have to change or they will use their Conditional Use Permit.


21 AUGUST 2001



Tires Plus at 11700 Princeton Pike had painted the roof, door rails and band around the top of the building to a bright red, which wasnít a part of the original PUD, nor was it approved. They presented a number of colors and will be changing it to a terra cotte color.

Alexander Patterson Group at 12075 Northwest Blvd Requested approval to places a trailer on the property that was tabled last month and was withdrawn from the agenda since they no longer needed it.

Globe Furniture is moving into 50,000 s.f. on the east side of the former Roberds and are removing the black and yellow band case, reducing it down to a 2 foot red stripe and changing the entryway.

Approval of the revised plat of proposed Pappadeaux Restaurant at Pictoria Island. It is a matter of switching lots around so that they can accommodate four restaurants. They had discussed it at an earlier meeting, and they were going to try to spin off part of the lake into part of those plots. It turned out that they are going to have to balance it among the properties. There is only one of the three lots (Bahama Breeze) that will not, but the other two will share ownership, and there are deed restrictions to make everybody in the development to be responsible for lake maintenance. The lake setting there on its own was not a good idea, and that was a part of the replot direction. That was approved with the conditions that our planner and our city engineer and staff approve those replot locations, because they didnít have the numbers down exactly because of the changes.

Approval of the pylon sign for Pictoria Island. The sign was originally on the PUD submittal; it is a 50-foot sign with four 100-foot sign faces for the four restaurants.



    1. David Nguyen, 83 Silverwood Circle requests a variance to allow the construction of a shed 4.3í and 4í from the side and rear lot lines. Said variance is requested from Section 153.492(D) ".shall be at least 5 feet from the side and rear lot lines."
    2. Mr. Nguyen said I have a small back yard and the sidelines are not very square, so I need more room there to build something in the future..

      Mr. Okum opened the public hearing asking if anyone wished to speak. No one wished to speak on this matter, and Mr. Okum closed the public hearing.





      21 AUGUST 2001




      Mr. Lohbeck reported that the applicant is requesting a variance for his shed to remain 4.3í to the side property line and 4í from the rear property line in lieu of the 56í setback requirement of 153.492(D.

      The applicant constructed the utility building without first acquiring a permit. A letter was sent on May 14, 2001 informing him that he needed to obtain a permit.

      The site plan submitted with the permit application on May 22, 2001 indicated that the building was 5í from both properties. An inspection of the property showed it to be closer than 5í to both property lines.

      Addressing the applicant, Mr. Okum commented that the shed already was constructed, and Mr. Nguyen said yes, I did it by myself.

      Mr. Okum said we have a plot plan showing Lot 83, with an x in the lower left-hand corner (northwest corner of the property).

      Mr. Wilson said you are saying your property line is not like this but is more on an angle. Mr. Nguyen answered yes. I tried to have the shed five feet here, but it wasnít possible.

      Mr. Wilson wondered what he wanted to construct in the future, stating that he could only have one utility shed on the property. Mr. Nguyen answered that he wanted to build an addition on his house.

      Mr. Wilson asked if he had been aware that he needed a permit to build the shed, and Mr. Nguyen answered that this was his first house, and he really didnít know. He asked his friend who lived in Colerain Township, and was told that if he had a concrete floor, he needed a permit, but with a wood floor, he didnít need one. I looked around my neighborhood and the sheds seem to be about four feet from the property lines, so I thought that four feet was right. I tried to make it four feet, but I couldnít because the fence is not straight.

      Mr. Wilson said my concern is not that the property line is not a 90-degree line. I can understand your wanting to move it out to comply. Your comment about not needing a permit because it was a wooden floor. That may be particular to Colerain Township, but not to Springdale.

      Mr. Nguyen said this is my first house, so I really didnít know anything. Mr. Wilson asked how much of an inconvenience would it be for you to move the shed forward and to the left, since it is a wooden floor and not a concrete slab? What costs would you incur by doing that? Mr. Nguyen answered it would take three hours and over $1,000.





      21 AUGUST 2001




      Mr. Squires wondered if he would have to dismantle the shed to move it. Mr. Nguyen answered yes because it is vinyl and it would not be that easy to do.

      Looking at the applicant, Mr. Squires quoted question #1 Ė "What exceptional or extraordinary circumstances or conditions apply to the property in question that differ from other properties in the same zoning district which makes this variance request necessary? You answered, "Something different, to be five feet from fence to shed so I did four feet." Did you just choose four feet? How did you come up with putting it where you did?

      Mr. Nguyen answered because I had no idea how far from the fence it had to be, and I asked somebody and he told me four feet. I looked around my neighborhood and some are very close to the fence. I didnít know, so I did it.

      Mr. Squires said I have two site plans,. The second one shows 4í and 4í3 with the 5í dimensions obliterated. Mr. Lohbeck said I have the site plan, which he submitted for the permit, which shows 5í. When Mr. Smith inspected it, he wrote down the exact dimensions from the property lines. The other one is the printout from CAGIS to show the exact property lines. When Mr. Smith inspected it, he wrote down the exact dimensions from the property lines.

      Mr. Okum asked if the shed had a permanent foundation under it, any anchors or fastening devices holding it in its place, and Mr. Nguyen answered I have concrete pads outside the shed. Mr. Okum asked if the shed was resting on them, and Mr. Nguyen indicated that they were.

      Mr. Okum asked if there were a variance for the parcel next door that would give the applicant an indication that four feet is normal. There is a corner that appears to be closer; it is at an odd angle.

      Addressing the applicant, Mr. Okum asked if he could relocate the shed to the proper distance from the property lines. Mr. Nguyen answered no, because it is all vinyl. Mr. Okum asked if there were any way he could push it shove it roll it, raise it up on top of pipes and roll it? Iíve seen sheds moved with pipes. If you were to lift that shed up on pipes, could you move it forward into your yard and away from your property line? Mr. Nguyen answered I donít have anything to move it. Mr. Okum said so you donít have any means to get it moved.

      Mr. Wilson said in view of the fact that the rear yard setback is not a 90-degree angle, I move to grant the variance, and Mr. Apke seconded the motion.

      Mr. Okum commented I understand the applicant has given testimony that he has an odd shaped lot, but the plot plan here doesnít show that, and Iím not quite sure it is that way. Maybe we can have clarification from Mr. Lohbeck on this before we vote.


      21 AUGUST 2001




      Mr. Wilson commented that I made the motion because of the irregularity in terms of the angle of the rear lot. If it were not, I would have to withdraw. Mr. Okum responded you could keep your motion on the floor and we could still consider it.

      Mr. Lohbeck, is this an out of square lot? Mr. Lohbeck answered I have no idea without going down to look at it. Mr. Okum said we have the CAGIS information and it shows a square lot. He showed it to the applicant and asked if this were a fair representation of his lot. Mr. Nguyen answered that it was.

      Addressing the applicant, Mr. Borden said what we are trying to determine here is whether or not the rear corner is 90 degrees or if it is something like your neighborís.

      Mr. Okum added that he did not understand the placement of the neighborís shed, unless there was a tree there. Mr. Huber commented that there was a row of trees, and Mr. Okum said maybe he put it where he could and that is why it is at the angle it is.

      Based on the CAGIS information, the lot is rectangular, and not out of square. Mr. Lohbeck pointed out that the shed on the other property could be five feet from the back property line because it is a 20-foot scale. The way I am looking at it, I would say it is a 90-degree angle. Mr. Squires added that it looked to him that it was 90 degrees. Mr. Okum commented that fences sometimes donít follow the true property line, and CAGIS can be a little more accurate.

      Mr. Borden wondered if the plot is correct. Mr. Okum responded based on the information presented to the board, I would say that we are looking at a rectangular lot with a 90 degree angle, and our building official has indicated that in his opinion it is.

      Addressing the applicant, Mr. Okum said I would be voting in opposition to your requests because the building is not permanently anchored, and there is no foundation system that would keep the building from being relocated to its proper distance from the property line.

      Mr. Borden asked to hear the motion again. Mr. Wilson moved to grant the variances based on the fact that there is no 90-degree angle at the property line.

      On the motion, voting aye were Mr. Weidlich, Mr. Apke, Mr. Borden and Mrs. Huber. Mr. Wilson, Mr. Squires and Mr. Okum voted no, and the variance was granted by a vote of 4 to 3.

    3. Hukkam Shteiwi, 11647 Lawnview Avenue requests variance to allow the construction of a 10í x 14íutility shed. Said variance is requested from Section 153.492(3) "Detached accessory buildings other than garages shall not exceed 120 s.f."





21 AUGUST 2001



Mr. Okum opened the public hearing, asking anyone present to speak. No one came forward, and he closed the public hearing.

Mr. Lohbeck stated that the applicant is requesting a variance from Section 153.492(B)(1), which permits accessory buildings to be no more than 120 s.f. A 140 s.f. Utility building is being requested.

The application for permit stated that the applicant was building a 120 s.f. utility shed. Drawings indicated a 10í x 14í shed, which was overlooked during the review process. The Building Department issued a permit for a 120 s.f. utility shed, and when the inspection was made, it was determined that a 10í x 14íutility building had been constructed.

Mr. Shteiwi said I bought the shed and thought it was 10í x 12í. We got the permit before we started, and after it was done, they came out and inspected it and it was a 10í x 14í. It would be hard to undo it; there are probably 1,200 screws in it.

Mr. Squires asked if they are being asked to correct our own mistake? Mr. Lohbeck responded I went off the permit application, and didnít catch the size on the drawings. Mr. Squires asked if the shed was permanently attached, and Mr. Shteiwi answered that it was.

Mr. Wilson said you said when you purchased this from Loweís, you asked for a 10í x 12í shed, but when you got it home it was 10í x 14í. Mr. Shteiwi confirmed this, and Mr. Wilson asked if he had a receipt or bill of sale showing it as 10í x 12í? Mr. Shteiwi answered I have it at home, but I am sure that I paid for a 10í x 12í shed.

Mr. Borden asked if the setbacks are met and Mr. Lohbeck indicated that they were.

Mr. Okum commented that considering that there was an oversight at plan review, and Mr. Shteiwi got the permit prior to constructing the shed, an error occurred. Mr. Shteiwi does have a very deep lot and meets the setback requirements. Considering the situation, I will be voting in favor of this request.

Mr. Borden moved to grant the variance and Mr. Squires seconded the motion. All voted aye, and the variance was granted with seven affirmative votes.

C. Randall C. Hughes, 1751 Van Camp Lane requests variances to allow 2 utility sheds on his property. Said variance is requested from Section153.492(B)(1) "There shall be no more than one detached accessory building..on a lot in a Residential Zoning District.

Mr. Wilson stated that because of a professional relationship with the applicantís wife, I will be abstaining from this matter.





21 AUGUST 2001



Mr. Hughes said I phoned the building commission and asked for the requirements for building a new shed. When I got those, it didnít say anything about a second shed, so I submitted my plans, they were approved and I built the shed. Iíd like to keep the old shed for the storage space since we donít have a basement.

Brenda Hughes added that it is a very small shed. There are two bicycles and Christmas ornaments in there. Since he is not able to cut the grass with a push mower, we had to get him a riding mower and when you put it in the garage, that is it; you canít get a car in there since it is only a one-car garage. We had to turn the existing garage into a master bedroom because he can no longer go up and down the steps, and I didnít want to leave Springdale. We didnít know the two shed rule; he got the building permit and we started building it.

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

Mr. Lohbeck reported that the variance is to allow a second accessory utility building on the property. The applicant has an old existing 8í x 1í utility building and an 18í x 24í detached garage in his rear yard. On 7/17/01 the Building Department issued a permit for a 10í x 12í utility building. The site plan attached to the permit application showed the residence, the detached garage and the proposed 10í x 12í utility building. There was no indication that an old 8í x 10í utility building existed on the site.

A building inspector found the violation when visiting the site as the new utility building was being constructed. At this point, the new utility building is all but finished. The old utility building is closer than 5í to the property lines, and we have no record of a permit for it.

There is one existing variance on the property for the location of an above-ground pool, which has subsequently been removed. The file copy with this variance does show the old shed on the property.

Addressing the applicant, Mr. Okum asked if it was an oversight when the drawings were submitted, and Mr. Hughes indicated that it was.

Mr. Borden asked if he had two garages. Mr. Hughes answered no. The old garage used to be part of the house, but when I got the plans together and the permit to build the detached garage, they told me couldnít have two garages so I turned it into a bedroom and master bath.

Mr. Weidlich said your wife stated that it is a one-car garage, but the dimensions say that it is 18í x 24í. To me thatís about 1 1/3 to 1 Ĺ car garage, and you have quite a bit of space on the right side of the garage door for storage. Mr. Hughes answered that he didnít. I have table saws and drill press and a work bench on that side.




21 AUGUST 2001



Mr. Weidlich added you stated that the old shed only has a couple of bicycles and Christmas ornaments in it. Isnít that something that could go into the new shed? It sounds like it is just housing a riding lawnmower. Mr. Hughes answered that there will be a riding lawnmower, a sidewalk edger, a bush mower, my grandchildrenís toys and all the shovels, picks pick ax, rakes, etc. Mr. Weidlich commented that it sounded like you would have quite a bit of storage, and Mr. Hughes answered that it would be if he didnít have so many tools.

Mr. Okum asked if he had storage above the ceiling line of the garage and Mr. Hughes indicated that there was a little, but it is difficult to get there; you need a ladder.

Mr. Okum asked if the old shed is permanently installed with a foundation, and Mr. Hughes answered that it is on a concrete pad with a concrete footer around it four to six inches high. If I would have to tear it down, I would have to take all of that out.

Mrs. Hughes added itís not that w want to keep the shed. It is the cost of tearing that old one down. It is a piece of junk, and he put siding around it to match the garage and make it look better. This was built before we bought the home, and is built on cement footers, a huge pad of cement with a sidewalk going all the way around. All of that would have to come out if we tore the shed down. The cement even goes along both property lines in the back, so we are talking a lot of time and expense and tearing the yard up to get that out of there. I would be more than happy to get it out of there, but we donít have the money to do that. That is the problem right now.

Mr. Squires asked if the new shed is on a concrete pad, and Mr. Hughes answered that it is a wood floor, but I have it on concrete blocks that are set into concrete in the ground. Also I have four anchors about 20 inches from each corner.

Mr. Borden wondered how much it would cost for them to tear down the old shed. Mr. Hughes answered that he hadnít looked into that yet, but it would be a lot of jackhammering. Mr. Borden wondered if he would do the work himself, and Mrs. Hughes answered that he couldnít, his stepson would do it.

Mr. Borden said but you really donít have any use for the shed. Mr. Hughes answered to some degree. Iíve done some work on it to make it look decent and I would hate to have to tear it down and lose that space. It would be an expense and a lot of work. Mr. Borden asked if it would be a hardship for him and Mr. Hughes answered to some degree.

Mr. Okum said if you were required to remove one of the two sheds, the old shed if allowed to stay would require a variance, because it is closer than 5 feet to the property line. So the variance we are considering tonight is for two sheds on the property, not for the fact that the other shed is nonconforming.



21 AUGUST 2001



If the other shed were permitted to stay, there would have to be another application by the applicant to allow that shed to stay less than five feet from the property line.

Mr. Borden thought it would make sense to handle all of that tonight. Mr. Okum responded that they couldnít because the variance request is advertised as a public hearing and there is no record for that request for the second shed.

Addressing the applicant, Mr. Okum said if that shed were made to be removed as a result of this hearing, what would you do with that area? Mr. Hughes answered take all the concrete out, grow grass and put up three more pieces of privacy fence. The privacy fence runs up to the edge of where the concrete is. Mr. Okum asked how far the shed is to his property line and Mr. Hughes guessed 20 inches. Mrs. Hughes added it is as wide as the sidewalk.

Mr. Okum commented that is for information only. We do have a two shed issue, and you do understand that you would be required to come back for another variance on the second shed for setback variance, even if it were approved this evening. Mr. Hughes indicated that he understood it.

Mr. Borden said so if the request is approved tonight and he comes back again next month and it is denied, the shed would have to be removed. Mr. Okum confirmed this, adding that if two sheds were approved this evening, a new shed cold be constructed within code.

Addressing the applicant, Mr. Borden said if you were denied your request this evening, how much time would you need to remove one shed? Mr. Hughes answered I donít know exactly. If I would have to remove it, I would like to wait until late winter or spring. Mrs. Hughes added that you have to realize that there is a lot of cement that would have to be broken up. You saw the property, and I just spent thousands of dollars getting that yard back in shape. There is no way that a truck can get behind that garage to get all that cement out there, and it is deep. I would love to have that space for my yard; I think it would be great, but the work involved to get all that cement out would be unreal.

Addressing Mr. Lohbeck, Mr. Borden asked if the cement would be required to be removed when he removed the shed, and Mr. Lohbeck answered that you wouldnít have to. Mrs. Hughes added said it would be ridiculous to have all that old cement. Mr. Squires added that it would detract from their property.

Mr. Apke said going back to the staff notes, it says there is one existing variance on the property for an above-ground pool which has been removed, but that the file copy does show this old shed on the property. I am wondering why we didnít catch this, or if the code had changed. Mr. Okum said the applicant has indicated that the variance for the pool goes back to 1987. Mr. Apke wondered if there was a five foot setback requirement at that time, and Mr. Lohbeck indicated that there was.


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Mr. Okum asked if it would be possible to put dirt over the concrete rather than taking it out, put maybe two inches of soil and some sod on top of it? Mr. Hughes answered I donít think the grass would live that way. Two inches would dry out. Mrs. Hughes added we cannot raise it that high because of the way the water runs there. I think it is already higher than the yard behind us.

Mr. Okum said since we have a situation and the potential of another public hearing, and a situation where two sheds are directly in conflict with our zoning code and the other building is old and there are other sources of use for the site, I would be in favor of allowing the two sheds to continue until May of 2002. That would give you ample time to make adjustments and that would be my recommendation to the board.

Mr. Hughes said one of the building inspectors came out and took pictures which shows that the shed is in good shape now. It is just too small for lawnmowers and other tools. (The pictures were passed around the dais).

Addressing the applicant, Mr. Borden said there was a suggestion that the old shed be allowed to remain until May of 2002 at which time it would have to be removed. The concrete would not have to be removed, but the shed would. Would that be okay with you?

Mr. Hughes answered it would have to be. Mrs. Hughes said if it would happen, could we have more time than that? He is not in the best of health. Winter is hard on him, and I do not know how he will be after winter.

Mr. Squires asked what a fair time would be for them and Mrs. Hughes suggested September, which would give him the summer. Mr. Borden commented that a year would be August 31st. Mr. Squires asked if August would be more reasonable and Mr. and Mrs. Hughes indicated that it would be fine.

Mr. Apke asked how high the new shed is and Mr. Hughes answered that there are eight foot walls and it is setting on block to make it level. The walls are two inches less than eight feet or 7í-10".

Mr. Squires moved to grant the variance to allow both sheds with the proviso that the 8í x 10í shed that is now non conforming will be removed by August 31, 2001. Mr. Borden said to be clear when you say by August 31, 2001, is that on or before? Mr. Squires responded I would like to amend the motion to say by September 1, 2002.

Mr. Okum said for future boards and this boardís information, if you do request an extension on that in 2,002, my personal position is I think May is a much better time and it is ample time. So I will vote in favor of this motion, but I would be very reluctant to extend it next year.




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Mr. Okum said although it may be approved, there still would be a requirement that you would have to submit for your setback for the smaller shed for the next meeting. Mr. Lohbeck stated that he would check with the building official to see if they would have to come back, since it will be removed next year. Addressing the applicants, Mr. Okum said that will be an administrative decision, and they will let you know.

All present voted aye, except Mr. Wilson who abstained, and the variance with conditions was granted with six affirmative votes.

    1. Presentation by Gale Dale

Greg Dale of McBride Dale Clarion said that about a year ago we came out and gave a training session to both the Planning Commission and the Board of Zoning Appeals. We have been asked by the city administration to give a little refresher course on that. I would like to spend a few minutes hitting some highlights and perhaps opening this up to questions or comments from the board. I think that after a year, the training tends to fade in the memory and we want to reinforce some of the principles.

Anne McBride provided me with a copy of some of the minutes of the last couple of meetings, and it was helpful for me tonight to observe the proceedings tonight.

I would like to hit the highlights and then have some discussion as to whether or not you are doing some of the things and how well you are doing them, whether or not there are things you think you might do better.

In a lot of ways the job of the Board of Zoning Appeals is one of the hardest jobs in the process. The reason is because you are acting in a quasi judicial capacity. Your decision making is an adjudicatory role, which means that your job is to hear evidence, specifically evidences associated with whether or not standards in the zoning code are being met. You are not policy makers; the only policy makers are City Council themselves. Planningís role is largely advisory in nature, although there are instances when they act in a final decision making capacity.

You have a unique role, to take factual testimony and determine whether or not that testimony allows you to determine whether or not standards are met.

One of the things that are interesting to look at are the implications of this. What it means is that you are the final decision maker. If someone disagrees with your decision, there is no recourse to city council or planning. The only recourse would be to go to the Hamilton County Court of Common Pleas, which acts like a court of appeals.




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Mr. Dale said you produce a record of the proceedings, a full transcript and the court doesnít take new testimony. It reviews the case on the record and may hear arguments by the attorneys, but there are no depositions or testimony. That is the way it works, unless your record isnít a good record.

I will read you some language, which I think is very instructive. "The court shall be confined to the transcript, unless it appears that one of the following applies:

If the transcript canít be produced (and I assume you have the ability to hire a court reporter to listen to the tape and produce an actual verbatim transcript of the proceedings). You donít do it for every meeting, but if you have to, you can do that. The appellant would not be permitted to appear and be heard in person. You would have to swear in witnesses and you would have to allow for the cross examination of witnesses. If there were somebody here tonight who had opposed one of these variance requests, they did have the right to ask that person questions; to actually cross examine that person.

Here is what is key. If the body fails to file with the transcript conclusions of facts supporting the final order. What they are saying is that if your decisions arenít supported by conclusions of fact, then you are susceptible to having the court say that you didnít do it right and we will have to start over at the Court of Common Pleas. We are going to take witnesses and hear testimony and go through an evidentiary process. What that means is that there is a requirement that you have findings of fact, and they are documented. The court can look at them and see the factual reasons in support of the decision you made. If you donít have that, what the court is liable to do is start it over at the Court of Common Pleas.

I would argue as a planner that aside from the legal issue that may exist, there is just a good government, good decision making process reason to have findings of fact. In mind that is a discipline process. The body needs the discipline to say we are making a decision and we articulate the reasons for making that decision. Findings of fact is the core of what makes for good decision making by boards of zoning appeals.

You have standards in your Zoning Code. Section 153.170 of your code says very clearly that "no variance shall be granted unless All of the following facts and conditions exist:", and there are four things stated there.

You need to be able to demonstrate that you have explicitly considered all of those four conditions in making a decision. I am emphasizing that because in sitting here tonight, you run a very orderly meeting. You do a whole lot of things right. You listen very carefully; you are very deliberate and considerate. You go out of your way to make sure that people have the opportunity to speak. With all due respect, what I am not seeing here, is reference to the questionnaire and any exceptional circumstances.


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Mr. Dale said the one exception was when Mr. Squires pulled out the questionnaire and talked about exceptional circumstances, but that was the only time in all three cases where I heard anybody say anything about those standards.

You may have them implied in your mind. You may be getting the right information. In fact, you may be making the right decisions. I am not saying that the results that you are getting here are good or bad. That is not my job. I am saying that as an observer to this, as I look at your minutes and see motions to approve or motions to deny without any reasons stated, and I listen to a meeting and no one, with one minor exception, has said anything about what the standards are let alone try to work with someone who is doing the testimony to present evidence of that, I have a hard time honestly concluding that you are making conclusions of fact related to those standards.

You may be getting the right information and going in the right direction in your own mind. Ultimately you may be making the right decisions, but what I donít see you making is a record of how each of those four criteria are or are not met by the factual testimony that is presented here before you.

There are some things that you can do. I am not suggesting that you be a difficult cold bureaucratic body. There is absolutely nothing wrong with saying here are the four standards that we have. Can you tell us anything. You started with the issue of the property being 90 degrees or not; that is going to one of those standards, the issue of whether or not there is a unique circumstance. You might think about being more explicit, and having those standards in front of you on every one of them, and being able to say here is a factual circumstance that we can cite for each of those issues.

Mr. Okum said there is a difference in wording between the questions we refer to and the questions that the applicants fill out. It says "What exceptional or extraordinary circumstances or conditions apply to the property in question that differ from other properties in the same zoning district which make this variance request necessary?" The types of answers that this board are given is "Having two sheds where only one is allowed." In my opinion that is not an answer. Another answer was "So I did four".

The board wants to be fair, but we have to make sure that the public can articulate their case before this case fairly and in a manner that would address these questions.

Mr. Dale said I agree and I have urged communities to do exactly that, to start with the application process and ask those questions. It is obviously not enough, because you will get a lot of self-serving answers, but it starts to send the signal that here are the things we will be looking at.







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Mr. Dale said one of the questions I have for you tonight is what else you need to be able to do your job better and deal with these issues better. I have also urged, maybe on the back of the agenda, that there be instructions for people. Be prepared to present testimony on these following four points. When you start the meeting you can reinforce that and have a prepared statement that says we are a fact-finding body. We are obligated under the laws adopted by City Council to make sure that there is evidence on these four issues. If there arenít, we canít approve it. If you do this every step of the way from filling out the application to the presentation before the board. Frankly even then it wonít be enough, so what you need to be prepared to do, in a very helpful friendly way, is to say something like "That is very helpful testimony, but I didnít hear you say anything about this one. Can you give us some testimony on this one?"

You have a tough job, because one of the things that you have to gird yourself to do in a lot of cases is say no to very good people in your community. One of the things you need to think a little bit about is the idea that variances are the exception to the rule. Variances are really only supposed to apply in extraordinary circumstances. One of the things you always need to be thinking about with variances is the precedent setting nature of them. If there is not something unique about a piece of property, if you canít find specific factual circumstances that each of these standards are met then one of the things you will run into is their saying that you approved this down the street with the same circumstances and you an'í deny it for me. Lawyers will tell you under equal protection that you do have a hard time saying yes to one person and no to another person where there are not good explicit factual documented reasons why they are different.

I say this to a lot of Board of Zoning Appeals. If you find yourself approving the vast majority of the variances that come before you, then one of two things are wrong. Either you are not tight enough in terms of requiring the factual standards to be met, or your standards arenít right. Thatís always a possibility. I donít know if it is a coincidence that all three of these variances tonight had to do with storage sheds, but if that is the case, somebody should be looking at whether or not the regulations for storage sheds are getting it done for you. If every storage shed that is built needs a variances, and you are approving them all, that is saying something.

The hard truth is if you have, and the response has been no we like the regulations the way they are, then your job is to administer the regulations whether you like them or not. I know that is a tough thing; you hear heartbreaking stories. Whether or not there are health problems that necessitate a variance or whether or not there are alternative locations for storage, those are not criteria in here. I realize that you are trying to find a way to solve this.




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Mr. Dale said I have no problem with the idea that intuitively you think this should be approved. There is nothing wrong with that if you can then find the facts to meet the standards. You have to take that final step. If you are sitting up there saying this should be approved, you need to take the next step and determine the exceptional circumstances, see if it is something that is necessary for the preservation of a property right that other people in the area enjoy that this person doesnít enjoy. Letís try to find those factual circumstances that would allow us to support this.

They are pretty high standards; they are not standards that are designed to be easy to meet, and that is one of the things you need to be aware of. The basic essence of a variance is that there is something unique about the property that is not shared by other properties in the vicinity, wherein the application of the regulations is unfair to them. That is the classic variance.

Zoning codes are written for square and rectangular pieces of property and not all property is that so we have unusual circumstances, unusual topography, and funny angles with old sites. If there is something unique about a piece of property that is not shared by everybody else in the district, then it wouldnít be fair for that particular piece of property to have these regulations applied. That language is pretty high language, exceptional or extraordinary circumstances. The idea is that you have a regulation that is depriving me of a property right that other people in the district around me are able to enjoy.

Absence of detriment is not a substantial detriment to an adjacent property, or will not materially impair the purposes of this code. I think in all cases tonight you probably were thinking that so you are already hearing the testimony associated with that. That is one where the factual circumstances should be fairly easy to document one way or the other.

The fourth standard is not of a general nature. The condition or situation of the property is not of so general or recurrent a nature as to make reasonably practical the formulation of a general regulation. That is a long-winded way of saying the same kind of thing; if there is some unique circumstance. If it is a square piece of property and the properties are all of the same size and circumstance, it is of a general nature. You are not the Board of Zoning Pity. You are the Board of Zoning Appeals. The whole idea of a variance is it is a safety valve in those few cases where in applying the regulations, you have created an unfair situation to a single property that is unusual or has extraordinary circumstances.

Variances are not the rule; variances are the exception to the rule. Boards of Zoning Appeals need to hear this. It is the hardest job there is, because in most cases Boards of Zoning Appeals probably should be saying no, because by definition for it to be an exceptional circumstance, it needs to be the minority of the cases.




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Mr. Okum said the only thing is when precedent has been established. Where in the zoning district has precedent has been established that would prohibit us from making a decision based on these four rules?

Mr. Dale responded if somebody comes in and points to that precedent ÖMr. Okum asked if it were their responsibility to identify it, or is it the boardís knowledge of it. That is why I quite often ask if there is a variance on an adjoining lot. Mr. Dale said the follow up question should be what was unique about that property, and that is all the more reason why you need to have factual findings. If a year from now someone points to a decision, you want to be able to say that if you read the factual findings you will see that there were unique circumstances there that donít apply to your property. Honestly, if they do, that is the danger of approving variances that otherwise look harmless.

Mr. Dale said I am not suggesting that you turn into a bunch of difficult people to deal with. My experience has been that when you have these kind of circumstances and you are thinking we really should be approving this, in a lot of cases you can work with the applicant and find the factual reasons to do that. What you need to be careful of are the ones that are cookie cutter lots like every other lot. When you start approving those, that is when you run into problems with precedence.

You can be kind of creative with these things. The presence of a concrete pad that was not the doing of the people that bought it, that the absence of shed would be a safety hazard Ė if that is the only lot in the area that has a concrete pad on it, maybe that is a unique circumstance, and it is not of their doing. There are ways, but you have to think about each of these explicitly and make sure there is some factual basis for it.

What you also need to be able to do is to state better reasons for your decisions. When you make the motion, somebody needs to make the motion that has the because in it, and it has to be more than because exceptional circumstances are met, you have to say a little bit what they are. Boards say that the reasons are in the discussion, but that doesnít do it. Even somebody saying Iím going to vote in favor of this because doesnít do it. If you can make that a collective factual finding, you are there. It needs to be a board finding. Youíre getting close; you are doing a lot of things right. It is just tying it up and explicitly leaving a record behind you. I look at your Minoltas and I donít see it. It may be implied in your thought process, but it is not there explicitly.

Mr. Okum said I think there are two things occurring. One is that there is the recorded record, and then there are the minutes. The minutes are an overview; it is not a verbatim discussion of what occurred in the meeting or an exact representation. We do keep tapes, so the tapes are truly the deliberations pertaining to the issues. Your looking at the minutes doesnít give a true overview, but having an opportunity to be here this evening, you say I think a pretty classic Board of Zoning Appeals meeting.


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Mr. Okum said the one thing that is very difficult is for an applicant to meet all four of these standards, and you are saying that all four are necessary. Mr. Dale added and somebody made it very clear, because in your code the all is in all caps.

Mrs. Huber commented if we have to meet all four of those, then we would never issue a variance. Mr. Dale said I have worked in enough communities to know that these things can be met. It may be true that of the variances that have come through this office over the past year, none of them would have qualified. I donít know. I wonít pretend to say you have an easy job. If you really say that if you have to meet all these standards that you would have a lot of unhappy citizens, then Council needs to hear that and that language needs to be changed, if that is in fact the case. The fact of the matter is you donít have the discretion to say weíre not going to follow those standards.

Mr. Okum said precedence is not on this list, and we all know that precedence exists. Mr. Dale said this may be a question for your lawyer, but I heard a lawyer say once that communities are like people; they are allowed to get smarter as they get older. You can get to a point where you can say whatever we have done in the past, starting now, here is how we are going to begin interpreting these consistently in the future. I understand what you are saying. If the conclusion really is that none of these variances we have been approving would have been approved if we had required them to meet all these standards, you have an issue that needs to be raised somewhere along the line and ultimately with City Council.

Mr. Okum responded that it goes all the way back to what you said in the very beginning. The applicant needs to understand that these are the rules. Mr. Borden said I would take this language here and put it on the application, to help the applicant prepare their case. Mr. Okum said but this language is very difficult for an applicant to understand. Mrs. Huber commented that they would never understand it. Mr. Okum said it would mean fewer cases to hear, because they would see the criteria and say there is no way I would meet those, and we wouldnít hear them.

Mr. Dale said that is an interesting comment, because when we make it clear that the Board of Zoning Appeals will not approve this unless you meet all these four standards, a lot of them would go away and solve their problem without getting a variance. Almost by definition the ones who stick it out would have the better cases.

Mr. Wilson said in the years I have been on the Board of Zoning Appeals as opposed to Planning, I find that the Board of Zoning Appeals tends to be more human when it comes to dealing with the residents than perhaps we should. If they are only off a little bit, we tend to approve them. Sometimes as a board we tend to bend to public pressure, as opposed to dealing with the facts, and we are setting precedents.





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Mr. Okum commented you lower the bar in many instances to be accommodating, but I see this board also make a lot of variances conditioned on certain things being done. I think that is a positive. It is not rubber stamp approved. There are considerations and conditions that are put on certain variances.

I think Mrs. Huber was absolutely correct. If this specific wording were on the application, our residents would have even more difficulty in filling it out than they do now. On the other hand, I think our application needs to be clear enough so they clearly understand the facts that we need in order to grant the variance. As long as the game plan is laid out to them at the podium, it puts us in a position where we feel they were informed and given an opportunity to properly prepare them selves to present their case. Mrs. Huber commented that number five should be bring your attorney with you.

Mr. Dale said a lot of Boards of Zoning Appeals encourage that. A lot of clients will say that because it is a Board of Zoning Appeals and because it is an adjudicatory process I want my attorney here. That is not as far out as it might sound. Most communities consider BZAs as being that serious of business.

One of the questions I have for you is what can the staff or administration do to help this long? I am wondering if you could use some sort of citizens/users guide a more user-friendly set of instructions that go with variances.

Mr. Lohbeck reported that the staff is in the process of looking at that and altering this form. When a person submits this form, if they donít answer all the questions, should we accept them? Mr. Dale answered that generally speaking if an application is not complete, you shouldnít be accepting it.

Mr. Wilson commented that a lot of these things have already been constructed. If you said this application isnít complete and you will have to come back next month when it is completed, and he still doesnít complete it and three or four months passes and he says itís been up for four months.

Mr. Dale responded there are two different issues there. If somebody comes in and an application is not complete, I sit down with them and tell go over the application. You donít have to send them away and say come back in a month with a new application. The more troublesome issue is those who come in having already put it up. We find that a lot on the boards I am involved with, and that is really a tough issue. It is very difficult to tell somebody, particularly if you think they are being honest and they just didnít know, you are going to have to take it down. But, that is the law.

Mr. Okum said we do realize that the variance stays with the land and is permanent unless it is conditioned with time. Mr. Dale responded that is a tough issue. You made the statement that seemed to imply that you thought the applicant would not be able to fix the problem more easily, you would be more inclined to vote for it, but since you thought he could fix it, you werenít going to.


21 AUGUST 2001



Mr. Dale said that is a good warm-hearted response, but it has nothing to do with the standards. The ease with which you can cure the problem that you created by violating the law is not one of the standards. And that is a tough one.

I donít know about the citizens of Springdale but in our case more often than not I donít believe them when they say they didnít know that they needed a permit. A lot of people realize that it is a lot easier to beg forgiveness than it is approval, and they know more than you think they do. We run into that a lot.

Mr. Dale commented that maybe there is a public education process needed here. Mrs. Huber responded it wouldnít help; they donít know they even need a permit to do anything. Mr. Lohbeck said they donít read anything. Mr. Okum said the City sends out notices; I think it is on our city web page that permits are needed and they donít cost you anything.

Mr. Okum said what happens when the applicant presents evidence showing precedence? Mr. Dale responded from a legal standpoint, under the equal protection and principles involved, the question is whether or not you are going to be subjecting yourself to being accused of violating it. The principle is that I have the right to the same treatment that somebody else has in like circumstance. It is not one of your standards, but it is perhaps one of the flaws in the historic decision making process.

Mr. Wilson said if one guy built his shed a year ago and we didnít catch it, that allows everybody else. Mr. Dale responded that the fact that they built it in violation is not a precedent. If you had approved it, then you would have a problem. But in that case I would say honestly is you are presenting us with evidence that we need to research. Weíll have to take a look at that, and I would look very hard at what there is that is unique to distinguish that. If somebody starts talking about a precedent, you should immediately start thinking about distinguishing that one from this case. And ultimately if you canít you probably need to talk to your legal counsel because they probably have a pretty good point.

Mr. Borden said that would mean tabling that request, and Mr. Dale agreed, adding that you as a board are not equipped tonight to say that it is just like it or it isnít. There is nothing wrong with saying we will need more information, and ask the staff to research it and determine if it is really a precedent or if it only looks like a precedent but it really isnít when you get into the details.

Mr. Okum said it is two fold. One is public education and the application and the decision making on our part. I have to agree with Mrs. Huber. I think if we are expecting the people who live and work and prosper in the community to meet these standards, they need to know it before they get here. That probably would lower our agenda, but I think it is necessary. Frankly it is very hard to meet all four, and I canít argue that because our code says that.





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Mr. Dale said the standards you have here are not unusual for variance standards. Variances are designed to be the exception, the unique circumstance.

Mr. Okum said if the public is not educated on the front end, it would be unfair for this board to be the heavy when the public is not informed properly. It is a dual responsibility. It goes all the way through the process.

Mr. Dale responded I would actually flip that around. It is primarily the duty of the applicants to present the evidence. The burden is on the person asking for relief. You are going out of your way to be a good community board by helping people. You could legally sit up there, take testimony, not ask questions and say you failed to meet the test. Anything you can do to help people, to educate them and draw them out and walk them through the process is going above and beyond. The burden is ultimately on them, and if they donítí meet the standards, they donít meet them.

Mrs. Huber said we have so many people who come before us who maybe recently or within a year or two bought this thing and didnít know that the things that they h ad in their back yard, or the garage that was converted already was illegal. Mr. Dale answered those are factual circumstances that you can help draw out and put into this framework. Iím not saying donít help the people. You just need to know what framework you are hanging the facts on. You can cite these things in your motion, but do it explicitly.

Mr. Borden asked how far along the staff was in the process of developing the application. Mrs. Webb answered we have developed one that is ready to go. We looked at the four standards and tried to put them in simpler language so that people could understand them. Mr. Borden asked that the board review it, and it will be distributed at the next meeting.

Mr. Dale said it sounds like sheds are a big part of this, and you might think of something that does a little more public education, i.e. these things need permits. If you are able to say it is on our web site, it was in the city newsletter, etc. you feel a lot more comfortable with saying you had reason to know that you needed a permit for that. Mrs. Huber said maybe its time for that booklet to be mailed out again. Mr. Apke suggested gong to all the hardware stores and informing them of the maximum size allowed in the city. Mr. Dale said you could have something on the board at Loweís so when these guys are selling the sheds, they have the information.

Mr. Okum said since our planner is somewhat involved, we could run the application through them and any comments would be helpful. It is very difficult to get the answers we need. Information is valuable and it is very difficult for us to deliberate. We put ourselves in jeopardy of being non-biased by communicating with the resident and going out there and discussing their variance request.



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Mr. Okum said that our legal counsel has recommended that we not discuss it before the public hearing. The adjacent property owner wonders what I am doing looking through his back yard to see the applicantís property, and the property owners always want to communicate. This is inappropriate because this is a public hearing issue and I canít discuss it with them. The problem is I am getting information that the other six members of the board are not privy to. I try to avoid that contact, and it is very difficult.

That is where a non-biased party, a photographer for the city can visit the four parcels where you can observe the shed that needs the variance. Mrs. Huber said years ago the applicant would take the application to their immediate neighbors. Wasnít that more successful than what you are getting now?

Mrs. Webb indicated not necessarily because you donít really know who is signing and when they are signing, what does that mean? Do they have a problem or do they not? Now we send letters to all property owners within 200 feet of the applicantís property, saying that the owner is asking for a variance and a public hearing will be held if you would like to attend.

Mr. Okum commented that the 200 feet is a good perimeter. For our benefit, we need to know what the people within that 200 feet see. How can we gather that information for all seven of us to hear without being biased or influenced by comments that we are only privy to. It is a tough situation.

Mr. Dale said what some communities have done is videotape it. A series of still photographs is one thing, but to actually walk around the yard and see the view from adjacent properties may be more effective, and frankly easier for staff to go out and do.

Mr. Okum said I feel that staff is the one to do that. I know that it is Councilís decision that we not charge for a permit, but we do charge for variance. Mr. Lohbeck indicated that we do not, and Mr. Okum said that there are costs incurred. We have three inspectors; who is going to do that? But we need the information, and we donít want to jeapordize a public hearing process by making a contact.

Mrs. Huber suggested that photographs be required of the applicant with the submission. Mr. Dale responded you could do that, but my concern with photographs is you get a wide range of quality and perspectives and selective shots. I think you would want to have a more objective observer.

Mr. Okum said I hope all this information can get back to the administration that are working to provide us with information. I agree with you Mr. Dale and I appreciate your comments.

Mr. Borden asked if this board could deliberate in private and Mr. Okum said no. It is a public meeting under the sunshine law, and it is a public hearing.




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Mr. Dale said if you are serious about pursuing that question, you might talk to your legal counsel. My understanding is that there are some new interpretations about that, specifically a new attorney generalís opinion that directly addresses the Board of Zoning Appeals and goes contrary to what I have always been taught about open meetings. Whether or not you can do it legally, I have always argued that in terms of public perception and good decision making, there is no reason not to have everything in public. Mr. Borden commented that he brought it up because he had heard about this.

Mr. Okum said I asked Ms. McBride to look at these four criteria for clarification. I think our staff is also working to get the application to be similar.

Mr. Okum thanked Mr. Dale for his input, and Mr.. Squires added that it had been worthwhile.


Mrs. Huber moved to adjourn and Mr. Squires seconded the motion. All voted aye and the Board of Zoning Appeals adjourned at 9:20 p.m.

Respectfully submitted,



______________________,2001 _________________________

David Okum, Chairman



______________________,2001 __________________________

Jane Huber, Secretary