BOARD OF ZONING APPEALS MEETING MINUTES

16 SEPTEMBER 2003

7:00 P.M.

  1. CALL MEETING TO ORDER
  2. The meeting was called to order at 7:02 p.m. by Chairman David Okum.

  3. ROLL CALL
  4. Members Present: Robert Apke, Jane Huber, Robert Weidlich,

    Fred Borden, Jim Squires and Chairman Okum

    Members Absent: Marjorie Pollitt (arrived at 7:10 p.m.)

    Others Present: Doyle H. Webster, Mayor

    Richard G. Lohbeck, Inspection Supervisor

  5. PLEDGE OF ALLEGIANCE
  6. MINUTES OF REGULAR MEETING OF 19 AUGUST 2003
  7. Mr. Squires moved for adoption and Mrs. Huber seconded the motion. By voice vote, all present voted aye, and the Minutes were adopted with six affirmative votes.

  8. CORRESPONDENCE
    1. Zoning Bulletin – August 10, 2003
    2. Zoning Bulletin – August 25, 2003
    3. Planning Commission Meeting Minutes – August 12, 2003
  9. REPORTS
    1. Report on Council – James Squires – no report
    2. Report on Planning Commission – David Okum

    Mr. Okum reported on the September 9th meeting. The Dunkin Donuts item for approval of the color palette and landscaping was removed from the agenda. The proposed CMHA Senior Housing Project was approved, the Value City change in building elevations was approved and a temporary sign for Family Christian Store was extended until October 11, 2003.

    Mrs. Pollitt arrived at 7:10 p.m.

  10. CHAIRMAN’S STATEMENT AND SWEARING IN OF APPLICANTS
  11. OLD BUSINESS
    1. 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." – Tabled 8/19/03
    2. Mr. Okum stated that the applicant has requested that this be tabled to October 21. He has been out of town and needs more time to get his survey done. Mr. Squires moved to table and Mr. Borden seconded the motion. All voted aye, and the matter was tabled to October 21st.

       

      BOARD OF ZONING APPEALS

      16 SEPTEMBER 2003

      PAGE TWO

    3. Approval of variance to allow a basement remodel at 11475 Walnut Street. Said variance is requested from Section 153.j096 "Principally permitted uses shall be as follows: (A) Single Household dwellings.. Tabled 8/19/03

    Mr. Okum stated that at the last meeting the owner of the property and father of Mrs. Wade authorized her to speak for him. Mrs. Wade approached the board.

    Mr. Okum asked her if she had any more information to present on the variance appeal and she said that she did not.

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

    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 finish the basement to allow their daughter to live with them to care for them.

    Section 153.096(A) allows Single Household Dwellings in a 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 and sleeping room or rooms, storage closets, as well as spaces and equipment for cooking, bathing and toilet facilities, all used by one household.

    The existing dwelling is 2265 s.f. with 3 bedrooms, 2 ½ baths, living room, dining room, great room, kitchen, laundry room and sun room. (A copy of the floor plan is attached.) The applicant is proposing to construct, in the basement, 2 bedrooms, 2 baths, living room, pool room, kitchen, laundry room and an outside entrance, which meets the definition of a dwelling unit. The two floors definitely can stand alone as separate household units, creating a two-household dwelling. The applicant’s argument is to allow their daughter to occupy the basement independent of the upper floor (a separate household unit).

    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. The only hardship presented by the applicant for this request is to provide privacy to their daughter. It is staff’s recommendation that this request be denied.

    Mr. Squires asked Mrs. Wade if anything had substantially changed since last month, and Mrs. Wade said no. I still want to do what I wanted to last month, and I am here to hear your decision about the kitchen.

    Mr. Okum said the kitchen is what makes it a second housekeeping unit.

    Mrs. Pollitt said I have been thinking about this, and my concern is that we would be setting a precedent that would allow two-family homes in single family areas.

    BOARD OF ZONING APPEALS

    16 SEPTEMBER 2003

    PAGE THREE

    VIII B BASEMENT REMODEL AT 11475 WALNUT STREET

    There was an electrical fire in the council chambers and the Board of Zoning Appeals members left the building. The Board of Zoning Appeals reconvened at 7:40 p.m. in the conference room.

    Mr. Okum swore in Reverend Harvey, who had arrived after the general swearing in.

    Mrs. Pollitt stated I have been thinking about this quite a bit, and my concern is that once it is made into a separate dwelling, it could be rented out and the city would have no control over this. My concern is about the neighborhood in general. I don’t want to see anything happen that would change it from the quaint neighborhood that it is.

    I understand the needs of you and your wife to have someone there to assist you, and I think that can be done with the bedrooms and living room downstairs and sharing the kitchen upstairs.

    Mrs. Huber said I concur with Mrs. Pollitt.

    Addressing the applicants, Mr. Apke said on Question 2 of the application, it says, "Would denial prevent you from reasonable use of your property, and you answered no. We have a four-pronged test and you have to meet all of the conditions. If we denied the variance, you say that you still would have reasonable use of your property, so you have not shown a true hardship.

    Reverend Harley said I don’t understand that. Mr. Apke explained that if you need the variance in order to be able to use your property as your neighbors can use theirs that would be one reason for this board to grant the variance. Reverend Harley responded I did not understand that when we completed the form.

    Mr. Okum said the existing zoning on your property is single household. By denying your request, your property would remain as a single household unit. Granting the variance, your property could change use and become a two household unit. That would be an act of rezoning which is not this board’s prerogative.

    Reverend Harley said I thought the last time that we met, the kitchen was out. Mr. Okum said no, your request still was for a kitchen. If it did not have a kitchen, you would be able to remodel without a variance. Your request included the kitchen, which makes it a two household unit., Reverend Harley responded I was under the impression that we could not have a stove and refrigerator in the basement, and I thought we had taken that out. Mr. Okum answered that your daughter still wanted to hear the decision of the board based on her request including the kitchen.

    Mr. Okum stated that our hearing is based on your request for this property to be changed adding a lower level kitchen. If this is what you want to do, we can have a motion so you know how the board stands on your variance. Staff can tell you what you can have in that lower level that would be within code so you would not need a variance.

    BOARD OF ZONING APPEALS

    16 SEPTEMBER 2003

    PAGE FOUR

    VIII B BASEMENT REMODEL AT 11475 WALNUT STREET

    Mrs. Huber moved to deny the variance and Mr. Apke seconded the motion. All voted aye, and the variance was denied with seven votes.

  12. NEW BUSINESS
  13. A. Approval of variance to allow the conversion of the majority of the existing one-car garage to create an office space at 11720 Van Camp Lane. Said variance is requested from Section 153.090(B) "A single two-car garage..is required. The garage shall have a minimum floor area of 400 s.f. and a maximum floor area of 600 s.f."

    Phyllis Maymir, owner of the property explained that my tenant has a landscaping business, and works from home. He has four children and needs to use all four bedrooms in the house, and wanted to use the garage for office space . He built a simple wall to divide the front part of the garage from the back part of the garage, and to keep the drafts from coming in where the garage door is.

    As the owner of the property, it is fine with me.

    Aaron Spiegel, the tenant said I don’t see any real difference between putting an office in and using the garage for storage, since you cannot park in there anyway. I put dry wall and insulation up. In the front part where I store my tools, and I have my office behind there. We can park two vehicles in the driveway. I never have parked in a garage before, and I don’t think I would now. I don’t think this affects the city at all.

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

    Ms. Maymir said I lived in this house, and we used the garage for storage. From the exterior, you cannot tell there is anything but a garage there.

    Mr. Lohbeck reported that the applicant is requesting a variance to convert the majority of the existing one-car garage to create an office space. This is contrary to Section 153.090(B) of the Zoning Code, which requires a two-car garage, 400 s.f. to 600 s.f. in area. The existing one-car garage is legal non-conforming. During an inspection of the property, it was discovered that a large portion of the garage had recently been converted to office space without a variance or permit. Apparently, the office is used by the tenant of the residence for a landscaping business (home occupation). During the same inspection, a utility trailer was found in violation of Section 153.480(D)(1), which requires trailers to be located a minimum of 5 feet from the lot line.

    Section 153.486 for home occupations allows only 20% of the building to be used for the home occupation, and only household members may assist or work there. The applicant should demonstrate why the garage conversion is necessary and how maintaining the garage is a hardship. It is staff’s recommendation that this request be denied.

    BOARD OF ZONING APPEALS

    16 SEPTEMBER 2003

    PAGE FIVE

    IX A GARAGE CONVERSION INTO OFFICE SPACE 11720 VAN CAMP LANE

    Mrs. Huber said this is rental property. What if this person moved and the new tenant wanted to park his car in the garage; he could not do that because of this conversion. We see far too much of this, and I do not think it is necessary.

    Mayor Webster asked to address the board, and the board agreed to open the floor for comments.

    Mr. Webster commented as you know, we have had several discussions with the legal staff regarding variances, and this type of variance fits in.

    I want to reemphasize once again that the law director, as recently as last evening, feels that a variance is a variance, and you cannot put in stipulations or time frames. Once granted, it is granted in perpetuity. The law is explicit that you cannot put conditions on a variance.

    There are other ways to accommodate this, specifically through a conditional use permit.

    You are more expert with the Zoning Code than I am, but we may have to tweak the Zoning Code if nothing is in there to allow this.

    This is exactly the situation we have here. These folks presented a case for doing something that is perfectly fine for them, but if the business ceases, we don’t want a piece of property in a residential area with that variance on it in perpetuity.

    I think these could be accommodated for three or five years, after which the owner would come back for another conditional use permit. So the applicant enjoys the variance which is really a conditional use permit. My purposes for being here this evening was to address the board on this subject.

    Mr. Borden asked if the board could consider a conditional use permit, and Mr. Okum responded that the board could not. Mr. Lohbeck added that in the Zoning Code conditional use permits are for "non-commercial recreational uses, educational institutions and group homes and adult group homes." Home occupations are allowed using 20% of the area of the dwelling. However, he is using the garage and, according to the Zoning Code, he needs the garage.

    Mr. Okum said the mayor has made the point, and it is exactly the same point that I have been bringing to the board. We are seeing situations that are conditional uses, and not variances, and they are very difficult to deal with because they are short term.

    The use is needed for a short period of time. I cannot disagree with the law director, but there are very creative ways to handle this.

    Based n the applicant’s request and based on the Mayor’s recommendation, we have a situation that if a variance were granted, it would be in perpetuity, and I do not want to be there. I would much rather see us deal with that issue for a conditional use.

    BOARD OF ZONING APPEALS

    16 SEPTEMBER 2003

    PAGE SIX

    IX A GARAGE CONVERSION INTO OFFICE SPACE 11720 VAN CAMP LANE

    Mr. Okum said what is stated in the Zoning Code for conditional uses could be expanded to include these kinds of things.

    By granting this variance, we would be forcing the situation of changing the law, and that is not in the best interests of the applicant or the community. I would be voting against this, but I would be in favor of a conditional use for a limited period of time.

    I am opposed to granting the variance, but would be willing to have changes brought forward that would change how we interpret the way we look at conditional use permits. It is unfair to the neighbors to grant this variance.

    Mr. Squires asked what the applicant’s recourse would be. Mr. Okum answered at this time there is no recourse. Changes to the Zoning Code are usually recommended by Planning to City Council. I am the liaison with Planning Commission to bring that about.

    Mrs. Huber said I think it would be a good move to do that.

    Mrs. Pollitt commented think about past applicants that have been in here for a variance for a short period of time. They would have been better served with a conditional use permit.

    Mr. Okum said the conditional use permits could ultimately fall to this board if the Zoning Code were changed.

    Mayor Webster said these folks would have 60 days to cease their operation if their variance request is denied. Our plans are to push as quickly as possible, but it will take time with the public hearing and two readings etc. Therefore, we will not be able to get that done in 60 days. The Building Department has the discrimination to stay the execution of these rules and regulations for a reasonable period of time.

    We have two issues here. The home business, which they can have without a variance or conditional use permit. The issue before the board is the conversion of the garage into an office. As it stands now, that would not be covered by a conditional use permit.

    Mr. Okum wondered why it couldn’t be covered by a conditional use permit. Mr. Lohbeck reported that it cannot because it would be a variance to the requirement of a garage 400-600 s.f. in area. The Zoning Code calls for the garage.

    Mayor Webster said you could table this until next month, but we will not have an answer by that time. If you denied it, they would have to wait six months before they could reapply. I would suggest you table it and we will stay the execution until we can get this act together.

    Mr. Okum said we could table it for 90 days. Addressing the applicant, he aid it looks like we will have a motion to table for 90 days. I cannot tell you the outcome, but it would come back before the board in 90 days.

    BOARD OF ZONING APPEALS

    16 SEPTEMBER 2003

    PAGE SEVEN

    IX A GARAGE CONVERSION INTO OFFICE SPACE 11720 VAN CAMP LANE

    Mrs. Maymir said the wall that was erected is temporary. Part of his lease agreement is that he has to take it down when he leaves.

    Mr. Okum said I understand, but the City cannot be a party to the contract.

    Mr. Spiegel said what if you have dressers, boxes, play sets, extra clothes etc. in your garage so you couldn’t park your car. Mr. Okum responded those items are temporary and are not a building wall. Mr. Spiegel continued if I put up drapes, would that change it?

    Mr. Okum answered that Mr. Lohbeck can tell you what establishes a building unit and expansion. When you create those rooms, you create a separation of space.

    Mr. Spiegel said if this goes against us, it would be impeding on my rights.

    Mr. Okum said you can use 20% of your dwelling unit for a home occupation, but a garage is required. That is the reason why you need a variance.

    Mr. Apke moved to table this item for 90 days. All voted aye, and the request was tabled to the December meeting.

  14. DISCUSSION
  15. Mr. Okum said I have a Board of Zoning Appeals checklist based on comments and discussions about things you would like to see at the meetings, items that are consistent and applicable to all requests.

    Mr. Borden said that would apply to cases from Planning Commission also. Mr. Okum answered that those are items of collaboration. We will be working with the administration and staff to come up with the conditional use permit.

  16. ADJOURNMENT

Mr. Borden moved to adjourn and Mr. Squires seconded the motion. By voice vote all voted aye, and the Board of Zoning Appeals adjourned at 8:20 p.m.

Respectfully submitted,

 

 

___________________,2003 __________________________

David Okum, Chairman

 

 

___________________,2003 __________________________

Jane Huber, Secretary