7:00 P.M.



I.                     CALL MEETING TO ORDER


The meeting was called to order at 7:00 p.m. by Chairman David Okum.  Mr. Okum added an item on the Agenda prior to Old and New Business, Procedure Discussion.


II.                   ROLL CALL


Members Present:             Robert Emerson, Fred Borden, Marjorie Pollitt,

                                             James Squires, Robert Weidlich, Jane Huber

                                             and Chairman Okum


Others Present:                  Richard Lohbeck, Inspection Supervisor


III.                  PLEDGE OF ALLEGIANCE




Mr. Squires moved for adoption and Mrs. Huber seconded the motion.  By voice vote all voted aye, and the Minutes were adopted unanimously.


V.                 CORRESPONDENCE


A.          Zoning Bulletin – August 10, 2004

B.          Zoning Bulletin – August 24, 2004

C.          Planning Commission Meeting Minutes – July 13, 2004


VI.               REPORTS


A.          Report on Council Activities – James Squires – no report


B.          Report on Planning Commission


Mr. Okum reported on the September 14th meeting.  Approval was granted for the Kemper Pond sign package (monument signs on Kemper Road and the building signs for the IHOP and shopping center buildings).  By agreement with Planning, TGI Friday’s was permitted to have a ground mounted sign in front of the restaurant in exchange for keeping a 36 inch tree.  They moved the sign down to the center of the parking field, and Planning Commission approved it.  Planning approved the extension of a storage trailer at Springdale Hotel (former Best Western) until May 30, 2004.   There was much discussion of changing the name and the use of the banners to cover the Best Western signs in the meantime.   Planning was concerned about the permanency and look of the banners on the building.  They agreed to remove the Best Western sign from the penthouse, and they were allowed to keep their banner there for 30 days.  After that time, they would be erecting a rigid sign in that location.  Planning also agreed to allow them to continue to have the banner wrap on the Best Western identity emblem on the side of the building. At the time this was approved it appeared to be stretched tight.  Two days after that, things started coming undone.  I don’t know how we will deal with that, but I think it has to be in a better condition.   We also approved the sale of Christmas trees in the Tri-County Mall parking lot as they have the past two years.  The only difference is that the vendor will not have an inside store in the mall. 







Mr. Okum added we discussed the proposed exterior changes at Staples.  They want to change the main entrance to the north side of the building, leaving the west side of the building just a façade.  We were concerned as to how that would appear from the main roadway.  The reconfiguration of 747 and the reconfiguration of the parking fields dictates a better parking field in the north segment of the building.  After some discussion, we moved to give them approval to allow them to relocate the entrance to the north side, change the configuration of the roadway so the customer will not have to walk across the traffic flow going to Rhodes but will park in a safe area.    We approved a Halloween banner for Party City; they requested a 30’ x 6’ and reduced it down to 20’ x 6’ approximately. 







Mr. Okum passed out a handout which was sent to the law director’s office.  He was out of town and we don’t have his response.  This is based on our training session August 30th.  There were recommendations by our law director that we change a little bit of the format of how a presentation is brought forward and how a motion is made.  I wanted to give everyone the opportunity to take a look at this and see if it is the law director’s recommendation.  The real difference is after the public portion of the proceedings are completed, there would be a need for a motion to approve the requested variance, a second, and then we would have deliberation and discussion, findings and facts and conclusions of those findings and any motions to amend if needed.  Those motions should include conditions on the motions and limitations on the request (excluding a time limitation).  We would vote on the amendments and then have a motion to call the question, and a vote.  Do you see any changes or is this what the law director recommended.  Mr. Borden responded it is pretty close; we’ll see how it goes tonight. 


Mr. Squires said the motion to approve should be stated in a positive manner.  If you make the motion to approve, it doesn’t mean that you are required to vote in the affirmative.   


Mrs. Pollitt asked if this could be laminated, and Mr. Okum responded that it is a method of handling the hearings.  I don’t know if we need to make it a part of our rules but we need input from the law director before we work through it and if we chose to we could adopt it into our rules.


IX.               OLD BUSINESS



X.                 NEW BUSINESS


A.          Margaret Lape, 28 Nelson Lane requests a variance to allow an 8’ x 8’ shed to be located three feet from the side and rear lot lines.  Said variance is requested from Section 13.067(B) “..must not be less than five feet from any rear or side lot line.”







Mrs. Margaret Lape, 258 Nelson Lane said I already had put the shed up when Mr. King came out and I didn’t know it had to be five feet from the fence because the other one wasn’t.  It had been there many many years, and I replaced it with the new one in the same spot. 


Mr. Lohbeck reported that the applicant is requesting a variance from Section 153.067 (B) which requires accessory buildings to be five feet from the rear and side lot lines.  The applicant is requesting that her 8’ x 8’ utility building remain in its current location, three feet from the side and rear lot lines.


On May 25, 2004 a permit was issued to construct an 8’ x 8’ utility building and sections of a six-foot high vinyl privacy fence.  The site plan provided by the owner when applying for the permit, indicated five foot setbacks from both side and rear lot lines (copy attached). While making an inspection of the installation on 08/05/04,  it was discovered that the utility building was placed less than five feet from both the rear and side property lines in violation of the Zoning Code.


The property owner has not indicated that there are any unusual aspects of her lot which would preclude the placement of an accessory building in compliance with the Code.


The applicant has indicated that she placed the utility building right where the old one was located.  Aerial photos from 1994 and 2000 show that the shed was located at the east property line, approximately 56 feet from the rear property line.  (You have copies of the photos).


Mr. Okum asked the applicant if she had any other comments, and Mrs. Lape indicated that she had photos of the shed, which she passed around.


Mr. Okum opened the public hearing.


Steven Bretz, 11283 Lockport, Forest Park OH said I have worked with Mrs. Lape occasionally.  On the photos you have, there is an existing shed approximately 1-1 ˝ feet from the same property line that Mrs. Lape’s shed is three feet from. 


Mr. Okum closed the public hearing.


Mrs. Pollitt moved to approve the request for the shed to be here feet from the side and rear lot lines.  Mr. Borden seconded the motion. 


Mr. Squires asked if the shed were on a slab, and Mr. Bretz answered no, it has the ground support that you buy as a part of the wooden decking.  It is on a wooden support, but there is concrete in the ground to support it, even up off the ground.


Mr. Squires stated that the five-foot requirement is to maintain the shed.  Will three feet allow you to get back there and paint it? 








Mr. Bretz answered it is quite adequate.  I have been all the way around the shed doing work in that area.  You can put a lawnmower through there with no problem. 


Addressing the applicant, Mrs. Pollitt said a permit was issued, and on the permit it indicated that you needed to stay five feet from the property lines.  On the copy of the permit, it does show that there is a five-foot requirement on both sides of the fences. 


Mr. Okum asked Mrs. Lape if this site plan was the one you submitted and signed.   Mrs. Lape indicated that it was.


Mr. Okum asked if the shed was constructed by a professional contractor and Mrs. Lape said no,  He works for the City of Fairfield, and it is a very good, well made shed. 


Is there any reason why that shed could not be shifted two feet?  Mr. Bretz answered there is quite a bit of vegetation and growth, and we have huge flowers that would be difficult if not impossible to relocate because of their size.  It would take quite a bit of excavation.  Mrs. Lape added probably there would have to be some big machinery in there.  Mr. Bretz commented that it would be hard to get the machine in there.


Mr. Okum said so there is currently landscaping to the right of the shed.  It appears that there is a tree five to six feet to the right of the shed.  If the shed  were moved two feet over, would that tree be in jeopardy of needing to be cropped on the one side? 


Mrs. Lape said I went to the Building Department five times before I ever got a permit, so I have been dealing with this stress since May.


Mr. Okum said the setback requirement is set in the code. Whether there is a shed on another parcel that happens to be closer to the property line than hour shed, doesn’t drive the decision – if it’s okay for them it’s okay for me.  There may have been other circumstances that might have caused that to have been approved, or maybe it was not caught. 


Addressing the applicant, Mr. Squires asked if he was saying that there may be landscaping problems with moving the shed to get it within the code.    Mr. Bretz answered definitely.  The flowers are right under the edge of the right side of the shed.  Mr. Squires said the reason I ask is because the first question on the application is “Are there exceptional circumstances or conditions (topography, location of existing structures, etc.) and she answered no, but I am hearing now that there may be.   Would the tree prevent you from getting the five-foot setback?  Mr. Bretz answered I believe so; I would have to measure it.  It certainly would cause the tree to be cropped if not taken out.


Mr. Okum said I am having some difficulty, because I look at one picture of the shed and see the landscaping and the flowers to the right of it.  I look at the other picture and see the tree. 








Mr. Okum said you are indicating that there is vegetation and a tree that would be impacted by moving the shed.   Mrs. Lape said yes.  I have heart trouble and a pacemaker and I am getting ready to go on dialysis.  I can’t go on like this any longer.  I’ll just pay a fine or whatever.


Mr. Okum said we understand, and we have to live by the rules.  The difficulty of this situation is that these things occur frequently, and when this happens, and if a variance is granted, it stays with your property forever.


Mr. Borden commented I really can’t tell where the tree is.  Mr. Bretz stated that it sets back further, and the photo doesn’t show it very well.   I didn’t take these pictures to show the vegetation.  Mr. Lape said the flowers can be replanted.  Mr. Borden agreed, but added that the tree is permanent.   Mr. Okum added and if you moved the shed you would have to crop that whole side off the tree. 


                        Mr. Emerson asked if the fences was right on the property line and

Mr. Bretz answered without an actual survey, I don’t know but I would say it is very close.  Mrs. Lape said the fence is actually eight inches inside the property line.  Mr. Okum said so based on this testimony, the shed is actually 3’-8” from the property line. 


Mrs. Pollitt said given the fact that she does have a tree there that does present a problem.  I also note that the five-foot setback is listed on the copy of her permit.  But given the fact that she does have an issue with a tree, I would be more inclined to vote to grant the variance.  The tree limbs would always have to be trimmed because they would be brushing up on the shingles and destroying the roof. 


Mr. Borden said the tree appears to be an issue, and that could be sufficient for a variance. 


Mr. Okum stated we have heard testimony that if the shed were moved it would move directly towards the tree, and we have to take that as testimony.  Since we don’t have a site survey, we have to assume it is based on the evidence that was presented to us. 


Mr. Squires said I am wondering if Mrs. Lape answered this question incorrectly.  When asked if “denial of this request would prevent you from reasonable use of your property”.    I assume you do need the shed, and that would be a reasonable use of your property, but you answered no.  I think you meant yes, didn’t you?    Mrs. Lape responded I probably did. 


Mr. Squires continued you did answer the last question correctly, that the granting of the variance would not be detrimental to the surrounding properties.  So, it looks like there are exceptional circumstances there and other criteria that we use to grant variances.


Mr. Weidlich asked if the tree had been pruned before or after the sheds was erected.  Mr. Bretz answered I have worked on her whole yard, but whether I actually trimmed that I could not say. 







Mr. Borden asked if it were an apple tree and fruit bearing.  Mrs. Lape indicated that it was, and Mr. Borden commented so there is some maintenance involved in terms of picking up the apples.  So if you were required to move the shed, it probably would be maintenance nightmares to have the apples fall on the shed.


Mr. Okum said I would also concur with the comments.  I am familiar with apple trees; I have had to prune my mother in law’s on a number of occasions and if you had to trim that whole side out of that tree, I can assure you either the tree will die or it will rotate and lean dramatically to the other side.   Additionally, if the shed were moved closer to it, I can guarantee you that the wind blowing that tree would damage the shed and its roof. 


Based on the testimony presented, the tree would definitely be an issue that would prevent the relocation of the shed, so I will be endorsing the motion to allow the variance for a 3’-8” side yard setback. 


                        Mrs. Huber commented I agree with everything that has been said.


Mr. Squires moved to call the question and Mr. Borden seconded the motion.  All voted aye.


On the motion to approve, all voted aye, and the variance was granted with seven affirmative votes.


B.   Jim and Debra Harlow, 12189 Audie Court requests a variance to allow the construction of a patio room with a 26-foot rear yard setback. Said variance is requested from Section 153.102(A) “…minimum rear yard setback of 35 feet.”


Mr. Harlow said we decided to have Champion build a room for us on the back of our home (we are on a cul de sac).  There is an existing patio there and we wanted the room to be the size of the patio.  Off the left end as you step out the kitchen door it will be unscreened and unglassed where we will put the barbecue grill.  The reason why we chose that far was because the air compressor sets there.  We had no idea that there was a zoning problem until Champion found out about it.   The way the house is set on the lot, the left side is 29 feet from the fence and the other side is 54 feet.  We were going that way so that we would have more yard on the right side.


Mr. Okum asked the construction of the enclosure, and Mr. Harlow answered that it is a Champion three-season room but it will be used all seasons with heating and cooling and glass and screening. 


Mr. Okum asked if it would be a shingled roof, and Mr. Harlow answered it will have the Champion roof, insulated and the shingled line of the house will go straight across from where it is now.  In other words, you won’t see the Champion roof underneath the shingles.  The rest of it will be a white insulated vinyl room.










Mr. Lohbeck reported that the applicant is requesting a variance from Section 153.102(A) to allow the construction of an 11’ x 26’ patio room on the rear of the house at 26 feet from the property line. 


The Zoning Code requires a rear yard of 35 feet minimum.  The applicant has indicated that the rear yard setback will be 28 feet.  The site plan does not show the setback to the proposed enclosure.  We have estimated it to be approximately 26 feet.  The rear property line is angled as it relates to the rear wall of the house.  It appears that the existing house is non-conforming where the property line appears to be approximately 31 feet from the southeast corner of the house.  The west corner of the proposed patio enclosure is approximately 37 feet from the rear property line. 


The owner cannot build an 11’ x 26’ patio room addition and comply with the setback requirements.  The maximum size addition that could be built would be approximately 10 feet wide by 11 feet deep, and only if placed at the extreme west end of the house.


Mr. Okum opened the public hearing.


Barry Roberts of Champion Enclosures said we will do the four inch Styrofoam roof and cut two feet off the overhang.  We will shingle back the roof to the existing state, pouring all concrete slabs.  Off the right hand side as you look at the back of the room, there will be a 6’ x 11’ open slab underneath our four inch roof.  It is the angle of the lot that causes the problem.  It would not hinder the view of the neighbors, and I think the appearance of this enclosure will be a vital asset to the neighborhood.


Mr. Harlow added our neighbors around us are very supportive of it, because they see it as an increase in our home’s value and therefore hope that it increases the value of theirs.


Mr. Okum reported that the notice goes out to everyone within 200 feet of your home and they have the opportunity to come here and present their opinions.


No one else came before the board, and Mr. Okum closed the public hearing.


Mr. Squires moved to approve the variance and Mr. Weidlich seconded the motion.


Mrs. Pollitt asked about the 26 foot dimension on the drawing.  Mr. Okum reported that it was an approximated measurement provided by staff stating the depth from the closest point on a 90-degree angle to the property line.


Mr. Squires said it seems to me that with this odd-shaped lot, almost anything you would want to do would not be in compliance.











Mr. Okum said they do have an oversized rear yard, substantially larger than most in that neighborhood, and this is a low in the amount of density to the property.  They also are holding it to the west side of the property.


Mr. Squires said so we do have the first criterion to grant a variance, exceptional circumstances are met.  This lot would not allow anything else.


Mr. Okum said I think staff’s comments indicated that it would allow a 10’ x 11’ room addition.  On the other hand, there is a lot of space on his lot.  If they were to build this 11’ x 26’ addition out there where that 54 foot area is, that would be in line sight to the adjacent property, where this is not.  We have to be concerned about the property to the rear of your property.  Is there a residence there?  Mr. Harlow said yes, and there is a privacy fence on their property.  Are they on a pie-shaped lot as well?  Mrs. Harlow answered that they are basically the same, but the opposite of ours.  Mr. Okum responded so their home is further away and narrower at that point as well.


Mr. Borden asked if the addition would contain any lighting on the outside.  Mr. Roberts answered we will do everything according to code.   There will be egress lighting outside the door.  Mr. Borden wondered if the lighting would flood over to the neighboring property, and Mr. Roberts said no; it would just be regular exterior light.


Mr. Squires said if this were built in that 54-foot area, would the neighbor to the right be unhappy?  Mr. Harlow answered it would obstruct all of our views. It would take away from the view from our back doors and windows.  We would lose that park effect.  Mr. Squires said so that would be somewhat of a detriment to the properties surrounding it.


Mr. Okum said if they wanted it to conform to the Zoning Code, they could move it to the right and be 10-12 feet from the side yard property line, but that is not what I would like to see, even though they would be legal.  I would prefer it nestled in behind the house just the way it is. 


Mr. Borden asked why they couldn’t move it to the edge of the house, and Mr. Okum asked if it couldn’t be moved a little further toward that home, asking how far it was held from the corner.


Mr. Harlow answered that in the kitchen there is a window and a door we go out.    We were going to install a patio door replacing that exit door and window, so there will be two patio doors on the back of the home to give it a nice flow.  That was the main reason for setting the room there.  At the other end of the house that you are inquiring about, we are only four to five feet from that corner anyway.  If you wanted us to shift it we could, but you could see that side of the yard when you came around the cul de sac, and we felt that would not be so good.









Mr. Okum responded so you held it back for the appearance and to give it some offset as well.  I agree that it shouldn’t be on the edge of the home.  Mr. Harlow commented it would look too much like an add-on. 


Mr. Okum asked how the addition would be heated and cooled and Mr. Harlow responded with a GE heat and cool unit.  Mr. Okum, wondered where it would be placed, and Mr. Harlow answered we were thinking dead center of the back wall.  Mr. Okum responded so it would be the furthest spot away from the adjacent property owners and within the 35-foot setback area. 


Mr. Weidlich asked if the single door from the kitchen would come out onto the open slab, and Mr. Harlow answered that it would come into the room addition.  Actually the door, the slider will be where the window is and it will be the wall of the room.  ..


Mrs. Pollitt stated I am in favor of granting the request, due to the unusual shape of their lot.  They could be asking for something a lot wider than the 11 feet.  When you started talking about bringing it out more to the west, I wanted to let you know that I was opposed to that.  I think this looks much nicer on an offset; it is more aesthetically pleasing, and I will be voting in favor of this. 


Mr. Okum commented I didn’t support the idea of bringing the addition out more to the west, but as chair I felt I had to demonstrate to the board that they could build a 26’ x 11’ room addition, possibly in conformance with the Zoning Code, but not necessarily to the intent or purpose of it.    I will be supporting this request because of the massive size of the back yard, and because topography-wise, this is definitely the right location on this site, and I do not see any reason why we shouldn’t approve this variance.


Mr. Squires added that there definitely would be some detriment to the surrounding property if it were built in a legal location according to the Zoning Code. 


Mr. Borden moved to call the question and Mr. Squires seconded the motion.  All voted aye.


On the motion to grant the variance, all voted aye and the variance was granted with seven affirmative votes.


XI.               DISCUSSION


Mr. Okum said we had new procedures this evening.  Any comment?  Mrs. Pollitt answered it may take a little while to become accustomed to it, but I think it is fine.  Mr. Borden said when we are closing the public portion of the meeting, is that closed for the members of the board also?  Mr. Okum responded you are closing the public portion of the proceedings in order to have a closing of their presentation to you.  I would not want to curtail the board in any way from asking the applicant questions, but in terms of asking other people in the audience, I would say that would be inappropriate.  Mr. Borden said tonight was a good test.






X DISCUSSION – continued


Mr. Okum added that the law director wanted to see a closure to public input and a point of deliberation and what we would call findings of fact to be a part of our deliberation excluding the applicant.  That is why I put a closure to communication from the applicant, but it is really the board’s decision as to whether we want to end that in put portion.


Mrs. Pollitt commented I think it will give us more control.    I think it will shorten our time because we are giving them an opportunity to present all the information they need to and then they go sit down and there won’t be so much volleying back and forth.


Mrs. Pollitt said we can’t put time limits on a variance, and it stays with the property.  Could the variance be worded so that if there would need to be a replacement in the future, the location would be required to be changed to meet code?  Mr. Okum said I would love to see that, but no.


Mrs. Pollitt said we put limitations on other variances such as landscaping and cleaning.  Mr. Okum responded that is an attachment to the variance; those are conditions like an all masonry home or high pitched roofs.  The reason for the time restriction is if it is okay for today, then it‘s okay all the time.


Mrs. Pollitt said when I put my family room on, a letter was sent to the people to the north of me and they are renters.  I don’t think renters should receive such letters.  It should go to the owners.  Mrs. Webb said we do.  We send the letters to the owners of record in the Hamilton County Auditor’s files.


Mr. Okum said one of the things we need to do in terms of procedures in our meetings, is to insert the interactive discussion with the applicant.  Then there should be deliberation based on the evidence presented.  So I will insert “Interactive Discussion with the Applicant” after “Motion to Approve Request” and see if that helps.  Mr. Borden commented I think that would create a good flow.  Mr. Okum said I’ll make that change and send it down to the law director’s office to see if we can get comment back.  If we get comment back, we will get it laminated. 


We need to carry forward the discussion on Duncan’s Factors.   I think everybody needs to spend some time looking at this because they are important.   The law director referred to the Duncan’s Factors as practical difficulties.  They apply to area and dimensional variances, not use variances.   


This is not a part of our Zoning Code, but the law says we have to consider it.  I don’t know how they all work together, so I have to get with our planner and see how that all blends.  I personally think that when you put these together, it all has to work.  My perspective is that your findings by the board need to be based upon a preponderance of evidence that apply to these items, and not just that it is hammered in stone.  If it is hammered in stone, you might as well tell everybody that applies for a variance that it won’t be granted.






X DISCUSSION – continued


Mr. Okum commented that tonight we had a very good situation where we had an applicant that could literally build a room addition within 12 feet of the property line but is that entirely what the Zoning Code is intended for?  No.  They received a setback variance that put it in the center of the property that did not take away the value of the adjoining property.  I think that was a positive to the community.   Mr. Borden said if you get this laminated, could you reduce the size of it.


Mr. Borden said I received in the mail the information about the Certified Planners Course.  Is that open to the members; is the City paying for that?   I may be interested.  Mr. Okum responded I don’t know what the administration would say, but I would encourage attending.   I don’t know the cost, but it is definitely worth the time.  You would hear a broad base of ways to deal with zoning issues.  Mr. Borden said if you are a Planning Partnership member it is $100, and if you are not, it is $200. 


Mr. Okum asked how many people who have not been to the course would be interested in going on October 28 and 29th from 8 a.m. to 4 p.m.   Mr. Borden, Mrs. Huber and Mr. Emerson are interested.  Mr. Lohbeck reported that this comes out of the Building Department budget, so you need to run that by Bill McErlane.   Mr. Borden, Mrs. Huber and Mr. Emerson are interested.


XII.              ADJOURNMENT


Mr. Squires moved to adjourn.  All voted aye, and the Board of Zoning Appeals adjourned at 8:30 p.m.


                                                            Respectfully submitted,




__________________,2004          __________________________

                                                            David Okum, Chairman




__________________,2004          __________________________

                                                            Jane Huber, Secretary