BOARD OF ZONING APPEALS MEETING
SEPTEMBER 21, 2010
I CALL MEETING TO ORDER
The meeting was called to order at 7:00 p.m.
II ROLL CALL
Members Present: Jim Squires, Lawrence Hawkins III, Robert Weidlich,
Robert Emerson, William Reichert, Jane Huber, Chairman Dave Okum
Others Present: Randy Campion, Building Inspection Supervisor
III PLEDGE OF ALLEGIANCE
IV MINUTES OF THE REGULAR MEETING OF 20 JULY, 2010
Mr. Squires moved for acceptance the July 20, 2010 Board of Zoning Appeals Meeting minutes, Mr. Hawkins seconded the motion and with a unanimous aye vote from the Board of Zoning Appeals Members, the minutes were adopted.
Chairman Okum: You received the updated Zoning District Map and
Ordinance No. 23 2010, which was the housekeeping items that have been forwarded to Council and Council acted on some of it, being definitions.
VI REPORT ON COUNCIL
Mr. Squires gave a summary report of the September 15, 2010 City Council meeting: Committee Reports were presented at the past Council meeting and a presentation from the Greater Cincinnati USA Partnership. The City commemorated the service of Officer Dave Buschmann, who will be retiring from the Springdale Police Department effective September 30th of this year; Officer Buschmann has served in law enforcement for 32 years.
VII REPORT ON PLANNING COMMISSION
Chairman Okum gave a summary report of the August 10, 2010 Planning Commission meeting.
VIII CHAIRMANS STATEMENT AND SWEARING IN OF APPLICANTS
IX OLD BUSINESS
A. Chairman Okum: The first item on the agenda is for Old Business, the owner of 85 West Kemper Road requests a variance to erect a tent for 20 days. Said variance is from Section 153.490 (E)(3)(b) Tent sales may be permitted for promotion of special activities in the Office Building, General Business, Motorist Service, and Support Service Districts The duration of such sales shall be limited in duration, which in no event shall exceed two consecutive weeks.
We have a letter from the applicant: This is a formal written request from Sweeney Chevrolet, Chrysler, Dodge, Jeep - 85 West Kemper Road to withdraw a variance request submitted on July 6, 2010 for an extended length of time for a sales tent to remain on the property an additional six days (7/12/2010 through 7/25/2010). The dates have past, therefore this is officially removed and we will keep this on record for the next time that they decide to do a tent sale and bridge the date.
X NEW BUSINESS
A. Chairman Okum: The first item on the agenda, the owner of 203 Harter Avenue requests a variance for a fence to remain on the property closer than 31 from the public sidewalk. Said variance is from Section 153.482(A)(3) Fences on corner lots shall not be located in the required setback for the building from the side street line.
Mrs. Marlin Shteiwi: I live at 203 Harter Avenue. I have been a resident there for 30 years and the fence that we are talking about tonight is a pre-existing fence. The fence was located there from 1983. I had some trees removed about two years ago that were located in front of my house and on the side of my home; we had those removed because of plumbing problems. One of the trees was located on my back porch that was also doing some damage to my porch. I honestly didnt think I needed a permit to put up an existing fence and I do apologize for that and we did take care of the penalty. I am asking you if we can please keep that fence; that is my only peace to sit on my back porch. I have some of my lovely neighbors here that really care enough to come out this evening and speak on our behalf in order to keep our fence up. There is 5 from the end of the fence to my neighbors fence and I believe that was one of the requirements. I didnt know of any new zoning restrictions, if I had any prior knowledge of that I would have definitely met those requirements. We have a Gold Star Chili down the street and we have been there for over 30 years. I love the City and I love the way it keeps everything clean and everything nice. I have had seven plaques offered from the Board Members due to my landscaping and the way I take care of my home and I will continue to take care of my home.
(At this time Mr. Randy Campion read the Staff comments.)
Chairman Okum: At this time we are going to open up to communication from the audience.
Mr. James Howell: I live at 11640 Lawnview, approximately one house south removed from the corner, right across the street from Marlins home. There has been a fence there for several years until they removed it to get a tree out. There has been some time lapsed between that, and the new fence being erected. I would like for the fence to stay there because I think it looks much prettier than what was there before, I think it improves the look of the home and I think it improves the look of the neighborhood.
Mr. Clay Schmittou: I live next door to Mrs. Shteiwi (11637 Lawnview). I have been here since 1959 and as Jim said what she has done to her property, it doesnt bother me at all. It may be that you have codes and things but I am not up on your codes. When she asked for permission to do this and she got a permit, I believe, was the code explained to her?
Mr. Campion: When we issue a permit there is a site drawing so that the fence and the house and everything that you are going to do would be on that drawing. I dont know if a permit was issued for this fence, I think that we observed that the fence was put up.
Mrs. Pricilla Howell: I live across the street from Marlin. I dont have any problem at all with her having the fence, if you will allow it.
Chairman Okum: I thank all of you for your comments.
Seeing there is no one else from the audience that would like to address the Board, we will close this portion of the proceedings and we will open the floor up to bringing a motion to the floor for discussion.
Mrs. Huber: I move to grant a variance from Section 153.482(A)(3), so as to allow an existing fence to remain 21 from right of way on Lawnview Avenue. The propertys address is 203 Harter Avenue and the Section of the Code is the required setback for the building from the side street line is 30 from the public right of way. The fence is located 21.
Mr. Reichert seconded the motion.
Chairman Okum: We have a lot of history here. Like you, a lot of us have been Springdale residents for a long time. We have a picture that was taken from Google Maps provided by Staff, a 2010 picture and it shows a fence; is the fence in this photo in the same location as your request?
Mrs. Shteiwi: Yes, sir.
Chairman Okum: How long was the old fence in that location?
Mrs. Shteiwi: Since 1983.
Mr. Squires: Is the Section of the Code 153.100(A) or 153.482(A)(3)?
Chairman Okum: Staff report references 153.100(A) and the title of the request is 153.482(A)(3).
Mr. Campion: 153.482(A)(3) is the setback requirement.
Mr. Emerson: The fence that is in the picture, is it 12 from the corner of your house?
Mrs. Shteiwi: The fence was not pushed out any further than what it was in the picture.
Mr. Emerson: Was the old deck up against the old fence?
Mrs. Shteiwi: Yes, sir. Prior to them putting up that fence in 1983, when we pulled up the wood on the deck, we had concrete and dirt and I didnt have enough money to finish it off with concrete so I did landscaping there, so that it would look nice.
Mr. Squires: This request is not without precedence. My property, 150 Ruskin Drive, I dont have a deck there but both Mrs. Shteiwi and I have corner lots. I had to get a variance to allow the fence to go 31 from the right of way. The Board granted that to me; one difference is I did not have to get a permit, that has changed since then and now permits are required.
Mrs. Shteiwi: If this was denied and if you would have me remove the fence or whatever the case is with your zoning, I would lose six feet into my back porch; I would have nothing to look at but the front of that fence and nothing else. I have landscaping and a fountain there; I do not have a backyard and I have never had a backyard ever since I have lived in that home.
Chairman Okum: I think that there is no doubt from the photos that you have presented and from the testimony given by the residents that you are a good caregiver to your property. The unfortunate part that this Board is faced with is, it is not a single owner issue but it is a forever owner issue when a variance is granted, and this has gone through the Courts for 175 years and actually the first zoning codes were written in Cincinnati, Ohio.
Lets say that someone who purchased the property after you decided not to take care of the property, and lets say a variance was granted for this screen and I think this is more of a screen than a fence because it doesnt enclose an area; the code calls it a fence so we will call it a fence, I am concerned about 10, 15, 20 years from now.
If you were to take and put arborvitaes or verbenas, those shrubs that grow 12 tall, and if you were to stack them like soldiers where this fence would be then you would get privacy; those could go out to the sidewalk.
Mr. Campion: Hedges are not permitted in the front yard; since this is a corner lot it essentially has two front yards.
Mr. Emerson: You are talking about a screen, if it is a screen it has to stay 5 from the fence. If it is a fence, which the code says that it is a fence, then you could enclose it all the way to the fence and you could put up a gate. The screen would have to be attached to the deck. If you had a deck built on the back of your house then you are allowed to put a privacy screen up so that you can sit on your deck, but it has to be in association with the deck. If it is separated from the deck which it is now, it is not a screen and it is a fence.
Mr. Campion: Your fence could go to the property line at the rear of the property, but the area we are talking about is actually in the front yard setback even though it is the side of your house. If you were going to run this fence along the back of your property or even with the back of the house then that would be the area we would call the back yard.
Mr. Reichert: If we grant a variance for a fence then she could extend it to the chain link fence?
Mr. Campion: You could make that part of the variance, if you are going to consider that. The area where this fence is that we are talking about actually projects out from the front of the house; it is not the same as a fence that is in the rear of the property.
Chairman Okum: When the fence is going perpendicular to the front yard, the issue is that distance from the sidewalk. The application is specifically for the configuration, it is not to expand it any bigger. The Board can put conditions on any variance; if they feel this is a reasonable consideration because of property topography restrictions, the conditions that are set forth in our code that we are to follow, the Board can put whatever conditions that are reasonable on the applicant. If the applicant is not happy with those conditions, the applicant can either remove the item or appeal to the Court of Common Pleas.
Mr. Weidlich: I think if the fence only came out 6 to the first post from your house, that would put you approximately even with your neighbors house. My thought was to take out that one section and move the two sections facing Lawnview back by 6 and that would put you at 28 from the sidewalk.
Mrs. Shteiwi: If I took that out, what is the point of having a privacy fence?
Mr. Weidlich: I am just throwing another little wrinkle out there.
Chairman Okum: Mr. Weidlich has indicated that if you were to move back to the 6 posts, you would be in symmetry with the front of the next property and that would be considered like the front lawn parallel to Lawnview Avenue; that would visually have a similar effect to your neighbor to the south.
Mrs. Shteiwi: If I do that then I will have people looking this way and that way; when people are walking down the street, either direction, then they are going to see what I have there.
Chairman Okum: Mr. Campion, is there a reason that she could not extend it to the chain link fence?
Mr. Campion: Because the present location that is proposed is in the front yard.
Chairman Okum: If she would bring it back where Mr. Weidlich indicated that would narrow that visual.
Mrs. Shteiwi: I dont want to lose that 6 because all of that landscaping and the fountain will all go to waste.
Chairman Okum: I see no more lights, so this Board is going to make a decision based upon comments.
Mrs. Shteiwi: Thank you for listening tonight.
Mr. Squires: The letter of the law versus the spirit of the law; I understand what the letter of the law is however I see an undo hardship for Mrs. Shteiwi to lose something that is already there to comply with the letter of the law. I realize that mistakes have been made but it is not a mistake that we cant live with. I have driven by there and I do agree with the comments of the audience and I think it has improved her property significantly. I see no reason to impose additional hardship on the resident.
Mr. Hawkins: The situation the applicant finds herself in is a unique one in that it is somewhat of a hardship, as Mr. Squires indicated. Any folks who have a corner lot have these issues to deal with in terms of these setbacks. I want the record to reflect that the drawing would indicate that the southern most part of Mrs. Shteiwis residence is approximately 5 from the property line of her neighbor; just showing how close she is and the lack of yard space back there; that unique situation combined with the fact that this screen was attached to a deck and now a fence where there is no deck, all that lends itself to me being in favor of the applicants request for a variance.
Chairman Okum: My preference would be to see this fence moved back, as Mr. Weidlich indicated; my preference would be to expand the length of the fence over to the chain link fence, considering the applicant has denied that as an option then my feeling is that I will hold to exactly where the fence is currently as the motion was presented. I would not support extending the fence that is there now to the chain link fence. I will consider this as a landscape screen in my mind and considering the little bit of yard that this property somehow managed to accommodate, I will be supporting the motion based upon those reasons.
Mr. Reichert: I was also trying to get a compromise to run that fence all the way to the screen to give you more privacy and to maybe cut down the view from the neighbors and make it a little better situation for you. I am tossed between the two and I probably will vote with just keeping the 12 in that area.
Mrs. Huber poled the Board of Zoning Appeals Members and with a unanimous aye vote the request for a variance at 203 Harter Avenue was granted.
No items of discussion were presented at this meeting.
Mr. Squires moved to adjourn, and with a unanimous aye vote from all of the
Board of Zoning Appeals Members the meeting adjourned at 8:17p.m.
Chairman Dave Okum
Secretary Jane Huber