16 OCTOBER 2001

7:00 P.M.

  2. The meeting was called to order at 7:00 p.m. by Chairman David Okum.

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

    Apke, Councilman James Squires, Fred Borden, Chairman Okum and Jane Huber

    Others Present: William K. McErlane, Building Official

  6. Mrs. Huber moved to approve and Mr. Apke seconded the motion. By voice vote all voted aye, and the Minutes were approved unanimously.

    1. Planning Commission Meeting Minutes – 11 September 2001
    2. Zoning Bulletin – September 10, 2001
    3. Zoning Bulletin – September 25, 2001
    1. Report on Council Activities
    2. Mr. Okum said I do understand that there were a couple of zoning issues that were approved recently. Mr. Squires stated that banners and flags was approved on September 19th and it will be 30 days before it is final.

      Chairman Okum said before I report on the Planning Commission, I believe it would be appropriate to begin the meeting with the Pledge of Allegiance and I would like to do that now. Pledge of Allegiance recited by the board members and those in attendance.

    3. Report on Planning Commission

Mr. Okum reported on the October 9 meeting. Approval of proposed warehouse addition to Service Parts Corp, 11345 Century Circle West was granted. We also reviewed the final plan for Karlo’s Bistro Italia at Pictoria Island. There was a lot of discussion; the developer had made changes and ignored some of the earlier suggestions. It was pulled off the floor and they are reworking it again. Approval of the proposed exterior color changes at Famous Dave's, 12183 Springfield Pike. They had repainted the roof bright red and changed the trim color as well. The color pallet they presented was more of an earthtone look, a brownish red for the roof and a light brown trim. We also had another item on the agenda (Hobby Lobby at 11360 Princeton) did not attend and the item was tabled. We discussed renaming two streets and determined that they would be Olde Commons Drive and Connector Way.





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    1. James and Mary Metzmeier, 438 West Sharon Road requests variances to allow a 10’ x 16’ shed to be constructed 2’-6" from the side property line. Said variances are requested from Section 153.492(D) "shall be at least 5 feet from the side and rear lot lines" and (B)(3) "shall not exceed 120 square feet in area." (tabled 9/18/01).

Mr. Apke excused himself from the discussion.

Mr. and Mrs. Metzmeier approached the board. Mr. Metzmeier passed out a paper with statistics pertaining to the shed, and read the statistics to the board.

The existing building is approximately 11’ x 14’, or 156 s.f. The existing building is 2’-6" from the property line and the existing building is 2’-6" from the sewer line. We want to replace it with a 10’ x 16’ or 160 s.f. building. The replacement building would be located with the rear and east walls at the same locations as the existing building. This location would keep it in line with the neighbor’s building and not destroy the beauty of the parklike setting. The front of the existing building is 30’-8" from the rear of the house. The replacement building would be 28’-8" from the rear of the house. To follow the guideline of 7’-6" from the sewer line would place the replacement building either 21’-2" or 57’-2" from the rear of the house. Neither location would enhance only detract from the beauty.

He said that they are requesting a 10’ x 16’ building, which was not certain at the last meeting, and the building would be 2’-6" from the property line. Mr. Okum said and that is based on a survey, and Mr. Metzmeier confirmed this.

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

Mr. Squires asked the recommendation from the MSD, and Mr. McErlane reported that they require a 15-foot easement for the sanitary sewers. Typically that is 7 ½ feet on either side of the sewer. We don’t really have an authority to enforce their easement. However, because there is an easement there if they have to replace or repair the sewer line, they can request Mr. and Mrs. Metzmeier to remove their shed to accommodate that. Mr. Squires asked the applicants if they were aware of that, and Mr. Metzmeier indicated that they were. Mr. Okum asked if the damage to the shed would be at their expense and not the MSD. Mr. McErlane responded that legally it would be Mr. and Mrs. Metzmeier’s responsibility. The easement itself probably indicates that no structures can be built on it; that would be typical. Mr. Okum asked if the Board was the authoritative body of the City over those easements? Mr. McErlane said no, but in essence, MSD has the right to come in and request them to remove their shed. Addressing the applicants, Mr. Okum made sure that they understood that the cost would be theirs.


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Mr. Weidlich said because of the size of your yard, I do not see a problem with the size of the shed, but I do have a problem with the setback. Because of your lot, you could set it in five feet from the property line. We have had people come in here with 50-foot lots that are a lot shallower than yours that have set it in five feet. Would you be willing to consider pulling it in to meet the five-foot setback?

Mr. Metzmeier said the original building is 2 ½ feet from the property line, and it has been there for 30 years. The replacement building would be a foot narrower, so that would put it at 3 ½ feet from the property line. Having to move it that far and having set there so long, it would be a lot of work to put the land to use, plus the fact that it would be intruding on the yard for our purposes.

Mr. Weidlich commented that this is a different code from when that shed was constructed. My only problem with your request is the five-foot setback. I think that is easily obtainable on your property, and as you said you would only have to move it another foot and one-half to meet that requirement.

Mr. Metzmeier said I have measured staked and spent countless hours trying to come up with a different arrangement, and this is the arrangement that would be satisfactory. Mr. Weidlich responded I am letting you know where I stand.

Mr. Wilson said last month I indicated that I felt uncomfortable with the 12’ x 16’ and would feel more comfortable with 12’ x 14’. You are going with a 10’ x 16’ so you are bending with us a bit and we are at 160 s.f., which is still 40 s.f. over the allowed. I would feel more comfortable with a five foot setback. If you are tearing down the building with a wooden floor, I don’t see a problem with your putting it 5 feet from the property line. My vote would be to allow the 10’ x 16’ to give you a bigger space, but I would want you to reconsider placing it 5 feet from the property line. You must understand that if we do this, we set a precedence, and although we judge each issue separately, we have to look at it collectively. We want to bend with you, but we need you to help us on this.

Mr. Metzmeier said for the 25 years we have lived there, there have been no problems or complaints with the 2-½ foot distance from the property line. I don’t like to be hard headed, but it seems to me that something that has been in a position for 25 or more years and hasn’t created a problem, would not create a problem from this point on.

Mr. Wilson responded I understand, but understand that as long as that building remained there it is grandfathered. When you tear it down and start with new construction, you fall under the code in place. We have these codes that we must adhere to. There are rare exceptions, and while we are bending on the square footage and giving you an additional 40 s.f.





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Mr. Metzmeier responded we are here to request a variance, and you seem hard set against granting it. Mr. Wilson answered you are asking for two variances. I personally feel comfortable with giving you one. I am willing to work with you because of the size and depth of your lot, its beauty and how well it is maintained.

Mr. Okum asked the applicant if there were any reason or exceptional circumstance that makes it unique that you would need to maintain the 3 ½ foot setback rather than the required five? Mrs. Metzmeier answered when you sit out on the back porch on Sunday morning and are having coffee and you are used to seeing a building located in a certain spot and you see all the yards all around you, to move it over is to block the view.

Mr. Okum said I can sympathize with that, but I can also look at your lot and say there is a lot of depth behind that and it could go further away. Things that are closer seem to block more of the view and the further away, the less view is blocked. So if it were on the other side of the sewer line, that issue would be lessened, as a matter of fact you might not even notice the foot and one-half.

Mr. Metzmeier said we discussed that last month and the distance is presently 34’-8" from the rear of the house. To put it behind the sewer line would make it 57’-2". As a 70-year old man, that adds a whole lot of steps and makes a difference.

Mr. Okum responded I can understand that, but it is an option that you have that would adapt to the issue of the view blockage. I tend to agree with the other board members concerning the setback request. If we were dealing with an existing foundation or slab and you were adding to it, it would be a situation of some type of burden on you. On the other hand, I feel there is nothing exceptional that prohibits that placement. I also understand your comments, that had you not wanted to replace the old shed and put a new shed there, you wouldn't be before us. However, the reason the building codes are the way they are is because certain things that worked 30 years ago don’t work the same today and are looked at differently. Setback requirements are set for the entire community, not just your site. In this case, I can’t support the extra 1-½ feet; I think 5 feet is reasonable.

Mr. Squires said you have indicated that there is nothing unique about your property that would apply. Would denial of this request prevent you from reasonable use of your property? Mr. Metzmeier answered that it would require us to rebuild the existing structure. Mr. Squires said will it keep you from reasonable use of the property, and Mrs. Metzmeier answered no it wouldn’t.

Addressing the applicants, Mr. Wilson said are you saying you would accept the 5-foot setback if we allowed the 160 s.f. on the shed? Mr. Metzmeier said no, we did not say that.







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Mr. Wilson moved to deny the request. Mr. Squires seconded the motion, but I would ask Mr. Wilson to amend his motion to deny, based on the fact that there are no exceptional circumstances or conditions on that lot, and that the denial of the request would not keep Mr. and Mrs. Metzmeier from a reasonable use of that property. Mr. Wilson so amended his motion and Mr. Squires seconded the amended motion.

Mr. Wilson said I feel that the five-foot setback can be accomplished and would not deny the reasonable use of the property and would not be detrimental to the surrounding properties.

Mr. Okum said I would concur with the discussion and feel that the board has shown an opportunity for the applicant to adjust to some conditions. I believe there are no exceptional circumstances and will be supporting the motion to deny.

On the motion, all voted aye except Mr. Apke who abstained, and the request was denied by six votes.

    1. Catherine Kauffman, 11831 Ramsdale Court requests extension of Variance 27-1999, which allows a dog-grooming business in a residential area. Said variance is requested from Section 153.486(C) "home occupations..shall not include barber shops..beauty shops.."

Catherine Kauffman said I have run a dog grooming business out of my parents’ home for nine years, and every two years I have to come up and get a variance. After the board sent their letters out to my neighbors, several of them came to me wondering what was going on and said if I needed them to come up and answer questions, they would be glad to. Several of them are here tonight to answer any questions you might have about the business. I would like to add that I would love a five-year or eight-year extension if possible.

Mr. Okum opened the public hearing.

Kim Jordan, 11825 Ramsdale Court said I live right next door. I am here on Cathy’s behalf. My bedroom window is 10 feet from Cathy’s grooming business, and it has never bothered or disturbed us in any way. In fact, when we moved in two years ago I had no clue that she even ran a business out of her home.

Shirley Flynn, 11828 Ramsdale Court said this business bothers nobody. Everybody on the street is content. Everything is cleaned up properly and every dog is on a leash or is carried in. It is a very well run business and should be allowed.

Mr. Okum closed the public hearing.




16 OCTOBER 2001



Mr. McErlane said the board first granted a variance in 1992 and subsequently in 1993, 1995, 1997 and 1999. We haven’t received any complaints about the business, nor do we have any current health or sanitation concerns about the business. We encourage the continued use of the temporary variances only to be able to review complaints on a regular basis. Also, it allows for the expiration of the business should it be discontinued or the operator move out.

Mr. Okum said I understand that we are using the temporary variance to handle a unique situation. I would have a hard time granting a permanent variance if someone else would take over this property with another type of business. Is there another avenue except for Ms. Kauffman getting another location? Mr. McErlane responded only if she found a commercial property to operate the business out of.

Mrs. Huber said I was recording secretary on this board when Ms. Kauffman came here for her first variance. I admire her work, especially when she cited in her reasons to be able to help the senior citizens. I think that is very admirable. Her neighbors speak well of her and her business and I see no reason for not granting another temporary variance, and I would suggest a three-year period.

Mr. Squires said due to personal knowledge of this applicant and the fact that she has done so much work for our family over the years that in fairness I should abstain from these proceedings.

Mr. Borden asked if this shouldn’t be a conditional use rather than a temporary variance? Mr. McErlane responded that conditional uses are spelled out in the code, and normally they are within a district in the code. For example, auto repair facilities in certain districts are conditional uses that require a public hearing to accommodate them. What you look at are the circumstances as they may impact the property or impact traffic from that standpoint. Unless it is specifically called out as a conditional use in the district, a conditional use wouldn’t be appropriate.

The section we are talking about a variance from is for home occupations, and there are particular home occupations that are permitted in residential zoning districts, but there are specifically some that are prohibited, primarily of potential health concerns. When the application initially came through, there was nothing in the code that said anything about pet grooming; today there is, and it is a prohibited use. This one falls into the health area, but we don’t object to the operation that she is operating under, only because she has shown a history of keeping on top of those types of things. Also it’s not a concern from a noise standpoint, because the neighbors haven’t complained about it.






16 OCTOBER 2001



Mr. Okum said what I see is that it is not the entire property use; it is a very small portion of that property. Mr. McErlane reported that it is an accessory use to the property. The property is primarily a residential use. Conditional uses are typically the primary use of the property.

Mr. Okum asked if her business had increased. Ms. Kauffman answered yes, I keep busy. Mr. Okum asked if she had a staff, and Ms. Kauffman answered there is not room for a staff. Mr. Okum said your business has not accelerated to the point that you can’t handle it on your own. Ms. Kauffman answered I have a waiting list. It is the back seven feet of the garage We can still get two cars in the garage. Mr. Okum asked if there were any outdoor storage areas for the dogs, and Ms. Kauffman answered no.

Mr. Wilson moved to grant the temporary variance for a period not to exceed three years. Mr. Apke seconded the motion.

Mr. Borden asked if we should add the condition that should the owner of this business move out that the variance would expire? Mr. McErlane responded you really can’t condition a variance based on the operator; it is a use type variance. That is part of the reason for trying to bring it up on a regular basis, to evaluate whether or not it needs to be continued should the business discontinue or the occupant move out

Mr. Borden asked if the Building or Health Department had the ability to inspect the building. Mr. McErlane answered that they haven’t since they went in and probably wouldn’t do it unless there would be a complaint. Mr. Borden said but you do have the ability to inspect, and Mr. McErlane answered with the occupant’s permission.

Ms. Kauffman said in the questionnaire that was sent to me for this application, I invited every one of you to come and see the property at any time. Mr. Squires told me to call Mr. Winfough for a health inspection that Mr. Okum brought up two years ago brought up, and he pretty much laughed at me and said I am not allowed to without a complaint, so I have done everything that I can.

On the motion, all except Mr. Squires who abstained, voted aye and the variance was extended for three years.

B. William R. Brewer, Jr., 11771 Lawnview Avenue requests variance to allow a swimming pool to be located 11’-6" from the property line. Said variance is requested from Section 153.488(C)(1) "..shall be located 15’ from the rear or side lot line."

Mr. Brewer said you have a layout of our property, shaped like a pie, and it is very hard to get a reasonable use out of this property. We intended to have it further from the property line, and we got a smaller pool than we wanted to get. I was gone the week that my wife filled out the paperwork, and she measured it out using her feet instead of measuring tool so it wasn’t totally correct.



16 OCTOBER 2001



Mr. .Brewer added that when our friend put the pool in, he centered it in the yard, so it is 11 ½’ from the property line, 10 feet from the house and 10 feet from the shed. If you moved it closer to the house or shed you would run into the bushes and there would be no way to get around the pool.

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

Mr. McErlane said the applicant is requesting a variance so his 20 foot swimming pool can remain at 11’-6" from the south property line instead of the 15 feet required by code. We issued a permit for the pool on July 17, 2001. The generic site plan submitted with the application actually showed the pool to be placed more than 20 feet from the property line. When the inspector arrived to inspect, he found it was closer than the 15 feet required. It looks like if you placed the pool on the property where it would meet the code, there is one location where it would be approximately 7 feet from the house and 5 feet from the shed.

Mr. Brewer said there is a wire that comes from the chimney to the shed and we wanted that away from that electrical wire. It was there when we bought the house. There also is a chimney that projects outward, so if you pushed the pool back, it would be closer than it shows, and there are bushes all along the side.

Mr. Okum commented that putting a pool seven feet from the rear of your home is awfully close, but five feet from a chimney is even closer. The shed and placement and odd shape of your lot does dictate some variance need.

Mr. Wilson said when the pool was installed did you take any measurements or look to see that it would not be in compliance? Mr. Brewer answered I didn’t know we were failing. When my wife filled out the paperwork, she came up with three kids and she had to guess the measurements. We didn’t intend to not follow the code; it was the way it was centered in the yard, fit away from the wire, away from the house and away from the shed.

Mr. Wilson asked the age of the shed and Mr. Brewer guessed five or 10 years old. Mr. Wilson asked if he planned to keep it, and Mr. Brewer answered that it is on a concrete block and has a pathway.

Mr. Wilson asked if he could have gotten by with a smaller pool, and Mr. Brewer answered we could have had an 18-foot, but we wanted something a little bit bigger for the kids. I didn’t think it was going to be a problem. I didn’t know that there were restrictions like this.

Mr. Borden asked if these type drawings are accepted by the Building Department? Mr. McErlane said yes, we provide that generic site plan to people. On odd shaped lots it doesn’t exactly apply real well. Hopefully we go by legitimate dimensions from the property lines. In a lot of cases the lots are a lot larger than what is being requested and we’ll see more than 20 feet.



16 OCTOBER 2001



Mr. Borden said I would have to agree with you that any attempt to move your pool probably would cause your pool to fail; you probably would need a new lining.

Mr. Apke said you mentioned that there were bushes along the chimney. Mr. Brewer said not on the chimney, but on the sides, and they stick out probably six feet from the pool, and they are as tall as I am.

Mr. Okum said the applicant has taken time to be complete in answering the questions. I think because it is unique, and 20 foot is not an overly large pool and if the pool were relocated to a conforming location, it would bring it too close to the home and cause a safety issue. I would be more comfortable with it where it is, and I will be supporting the request for variance.

Mr. Borden moved to grant the variance to allow the swimming pool to remain 11’-6" from the property line, due to the exceptional circumstances and conditions of the applicant’s rear yard (pie shape) and the fact that trying to move that pool would cause the pool to fail.

Mr. Weidlich seconded the motion. All voted aye and the variance was granted with seven affirmative votes.

C. Harry Arcaro requests variances to allow the construction of a 1,300 s.f. single family residence at 447 Dimmick Avenue 6’ from the side yard property lines. Said variance is requested from Section 153.075(A) "..shall be a minimum 2,000 s.f." and Section 153.071(A) "..minimum side yard setback of 10 feet each side with a minimum total of 22 feet."

Mr. Arcaro said I am here asking for a variance on a 50-foot lot to build a 1300 s.f. bi-level, which I have built on a few lots in Springdale. The other lots were 75 footers and we had a 2,000 s.f. home, which I am building now on Cloverdale.

Mr. Okum opened the public hearing.

Gary Neu, 6831 Parklake said as I look at that 50-foot lot and the 2,000 s.f. minimum with 10-foot sidelines, that house would have to be 30 foot wide and the garage wold be 20 feet, so you would have 10 feet for a front door and a window. I don’t think that a 2,000 s.f. house can be put on that 50-foot lot. I’m sure this isn’t the only 50-foot lot; I am sure this will come up again. We have an owner that has paid taxes forever and if he can’t use it the value is one-third.

Harry has done excellent houses back there. There is one going up now on a 50 foot lot and it is squatted in there, and it’s not Harry’s house. I am sure everybody has seen h is houses, and he does a great job. Aesthetically it will be a nice house. I can give you addresses of other houses that he has built here. I think to put a 2,000 s.f. house on a 50-foot lot can hardly be done, and if it were, it would be a case of overbuilding in an area



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Mr. Neu said I think my seller is not the only person who owns a 50 foot lot back there, and he’s not the only person who has paid taxes on these lots, and they can’t do anything with them, unless that is changed or if there is a lot next to it. I think it is a little bit unreasonable to say that you could put a 2,000 s.f. house in there. I wish you would consider it.

Kenneth Boehm, 439 Dimmick Avenue said I have owned the lot for 35 years and have never missed a tax payment. I own the home adjoining this lot, and had it deeded separately. When I bought the lot I made sure that it had water and sewerage, so I knew I had a lot that was approved by the county at that time. Now I can see that you people have changed the building code. All around me over the years people have been getting variances. Also, if you do the math on my lot, you have to have 40 feet in back, 35 feet in front and 10 feet on one side and 12 feet on the other. You would end up with 1400 s.f., a one floor plan and that does not include a two-car garage. If I don’t get the variances, I would like guidance as to what I can do with the lot.

Mr. Okum closed the public hearing.

Mr. McErlane reported that the applicant has requested to construct a 1300 s.f. residence with six-foot side lot lines on both sides of the residence, and the Zoning Code requires a 2,000 s.f. residence with 10-foot side yard setbacks and a minimum total of 22 feet.

In the past several months, the board has seen how difficult it is to try to come up with a 2,000 s.f. house plan on 50 foot lots and still maintain all the required setbacks. The applicant is asking for a variance from the 2,000 s.f. and the setbacks. Realistically if you wanted 6-foot setbacks, you could fit more than a 2,000 s.f. house on the property. If you were to maintain the setbacks, it would be difficult to fit a 2,000 s.f. house there, but not totally impossible.

With respect to the limitations, if you maintain the side yard setbacks, there are limitations on what the house would look like. This is primarily because the Code requires a two-car garage. A 50-foiot lot with 22 feet of total side yard dimensions gives you 28 feet to build with. Typically a two car garage would be 20 feet minimum, and that leaves you eight feet of additional area on the front of the house to try and make it look like something other than a garage door. I am not trying to throw my support towards this application, but there are some difficulties with building on the 50-foot undersized lots. The lot is a legal non-conforming lot because it was platted prior to the Zoning Code changes.

With respect to the comments that Mr. Arcaro has built this house previously on lots prior to the Zoning Code change. In March of 2000 the minimum livable area for this zoning district was 1200 s.f. Also there were some provisions in the code for undersized lots that allowed you to reduce side yard setbacks and they are not in the present code.



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Mr. Arcaro said in this home I could give a double car garage, three bedrooms, two full baths, a family room living room and dining room. The people who live in these homes that I have built are all happy with them. There is no problem with selling them.

Mr. Okum said in a previous request you modified your plans somewhat to adapt to a larger square footage. Mr. Arcaro said that was for two 75-foot lots. I am building one now, and am going in for a permit on the second one. Mr. Okum asked the square footage of the homes on those lots, and Mr. Arcaro responded 2,000 s.f. At the meeting, I agreed to make it 2,000 s.f.

Mr. McErlane asked the width of the building he is constructing, and Mr. Arcaro answered that it is 45 feet. Mr. McErlane commented that to build it on this lot would make those side yard setbacks that much less. Mr. Borden commented that the width of the lot is 50 feet and the width of the house is 38 feet.

Mr. Okum said the problem I have is that you try to make the Zoning Code to address the multitude of the properties, and some thing end up unique. In Lexington I saw a subdivision with 2 ½ story homes with side yard setbacks of about six feet. They looked like dominoes, and I don’t think we want to see that.

It is very unfortunate that we have unusual lot sizes in this district that require such unique applications. On the other hand, I still think that 1300 s.f. compared with the code requirements of 2,000 are quite a difference and quite an exception. On that alone, I could not support your request. I saw a smaller lot accomplish 2,000 s.f.

Mr. Arcaro commented that if you put enough terrace in the front with a 3’-8" wall is off the family room, if you build that up and your steps come down, it doesn’t stand out like a house on stilts. The one I am building now has a planter out front and a grade that comes across and the brick work comes down into there on the front. The one I just finished on Cloverdale stands out; everybody admires it that comes through the house.

Mr. Okum asked if he had another plan that he could present to the board. Frankly we have seen it accomplished. I’m not saying 2,000 s.f. is right, and I am not saying that 10 feet is right on the side yard setbacks, but it is a 125 foot depth lot. Mr. Okum wondered if the adjoining lot was open and Mr. Boehm indicated that it was, and that his neighbor to the west owned it.

Mr. Borden asked the room sizes. Mr. Arcaro reported that the master bedroom is 13’-6" x 11’-1", the 2nd bedroom is 11’-10 ½" x 9’-4", the 3rd bedroom is 10 ½’ x 9’-2 ½". That is the top level. The dining room is off the kitchen and from the sink wall to the outer wall of the dining room is 17’-11 ½". The total length from the dining room back wall to the front wall of the living room is 28’.





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Mr. Borden asked if he had a buyer for the home, and Mr. Arcaro indicated that he didn’t, adding that he doesn’t put a home on the market until they are dry walled.

Mr. Borden commented that it seems like the 9’ x 10’ is an awfully small bedroom. Mr. Arcaro said I am building a house in Western Hills that is 1500 s.f. and the master bedroom is bigger than this one and the other two bedrooms are approximately the same, and everybody seems to like it.

Mr. Borden asked about the lower level and Mr. Arcaro answered that there is family room and utility room downstairs. The family room is front to back and you have the stairwell and a half bath and the laundry room in the rear and the double car garage goes from front to back.

Mr. Squires asked Mr. Boehm the square footage of his residence and Mr. Boehm answered that it is 1,500 s.f.

Mr. Okum said in today’s market it seems unusual to build a three-bedroom home with a single bathroom on the main level. Mr. Arcaro answered this house could have a bath and a half on the second floor and the bottom level cold have a shower stall with no problem. You could make a two full bathroom house here with no problem at all.

Mr. Okum said one of the reasons that Council adopted a new Zoning Code was to try to bring about some type of residential housing standards which would market differently than what this markets at. When you go to a 2,000 s.f. house, you end up with a little more flexibility.

Mr. Arcaro said there has never been a complaint from any buyer on this home. Mr. Okum said I wouldn’t complain either if I could get the best value for the money and move into the neighborhood that I wanted. That is not the issue. It is a matter of land use and zoning. You have not exhibited an exceptional circumstance on this property that you can’t build within the Zoning Code.

Mr. Arcaro said you are telling me that I cannot build a home less than 2,000 s.f.

Mr. Okum said I am not going to tell you that, and I am not gong to design it for you. Mr. Arcaro said I am not asking you to. I am asking about the square footage. If I go to the expense of having a plan drawn for 1,500 s.f. would you permit it?

Mr. Okum responded I don’t know what a 1,500 s.f. house would do. I saw a plan on a 45-foot lot that was almost 2,000 s.f. and it worked. Mr. Arcaro said I have been building for 45 years, and I can’t see this. Mr. Okum said there is a Zoning Code and it is established for a reason. It is your responsibility as the developer, the owner and the real estate representative that you conform to the Zoning Code or show a reason why it is not possible for you to do so.



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Mr. Okum said now you have a 1,300 s.f. request, and I am not going to rubber stamp it and approve it, and I am not going to design it for you.

Mr. Arcaro said I’m not asking you to design it; that is what we have architects for. The thing is you are telling me to put a 2,000 s.f. house on a 50-foot lot. Mr. Okum responded I am telling you that the request I see before me at 1,300 s.f. does not come near to our existing Zoning Code for that property in that district. Mr. Boehm said the house on the opposite side of my home is a two bedroom built exactly that way. That is the beauty of having different homes. They do not all look the same.

Mr. Okum said I understand, but there are other homes in your neighborhood that are larger than that. This set back issue is six feet versus 10 feet and my comment concerned the narrowness of the property lines between each other. I see another open parcel next to this one that could have a development on it, and if we allow six feet on this one and six one on that one, we would end up with two houses 12 feet apart. That is why you have a 10-foot setback requirement on the side yards.

Mr. Arcaro said with the house on Kenn Road, a 1,200 s.f. ranch on a slab, and the 2,000 s.f. house I am building down the street at $150,000, do you think that person will buy my house? Mr. Okum said I can’t comment in terms of dollar value.

Mr. Neu said maybe you have already driven by these homes. He has built this house and a couple of other ones, and it is the same exact house in Old Springdale. It is a house for a young couple. If you talk about taking those 50-foot lots and trying to put a 2,000 s.f. home on it, who’s going to buy it? If you put $80 a square foot plus the lot, it will be over $100,000. If you haven’t driven by Harry’s house, you have to drive by it because he builds a nice house and tries to keep the price down for the younger couple market. With 30-foot frontage on the house, 20 feet is a garage. I don’ t know what we would do with it unless we put steps up somewhere. The aesthetics would be terrible. I think it is unreasonable to think that you can put a 2,000 s.f. home there. You want a house that will look right in the area.

Mr. Okum said I can’t change the Code. There is nothing exceptional that has been presented to me that would make me say that the 1,300 s.f. house is acceptable for that site. I’m not going to tell him what the square footage should be. There have been other applicants in here, and it is not at this board’s level to do that.

Mr. Neu said what are you going to tell these other owners that have these 50-foot lots that they can’t do anything with? They pay taxes on it. Mr. Okum responded we turned down a 45-foot lot with a 2,000 s.f. home on it because of setbacks. Mr. Neu added that these people pay taxes on this lot but they can’t do anything with it. I’m not saying 2,000 s.f. is wrong, but I think you should take another look at the 2,000 s.f.



16 OCTOBER 2001



Mr. Okum responded that would be an issue for Council to decide. The zoning that was approved is out of character with what can be built in that neighborhood. I’m not a council representative. As a board member, I have to look for exceptional circumstances that are on that site that would prohibit a 2,000 s.f. home. Mr. Neu said a 30-foot frontage. Mr. Okum continued I have an applicant in here that wants to build a 1,300 s.f. home. Mr. Neu said just close your eyes and envision this 30-foot house with a two-car garage; it is all garage.

Mr. Okum said your comments are taken, and we are differing with this opinion. On a 50-foot site, there is certainly room to build something larger than a 1,300 s.f. home. What has been presented to this board is a request for two variances, one is a side yard setback going to six feet and the other is the size of the home (1,300 s.f.) when the code calls for 2,000 s.f.

Mr. Neu responded that the only reason that Harry doesn’t put them on the market until drywall is because if he does it before then, he is bothered to death by people wanting to buy it.

Addressing the applicant, Mr. Squires commented that this plan is for a bi-level. Have you considered any other type of design? Mr. Arcaro answered that a ranch is about 1,500 s.f., but there would have to be some modifications with the basement. I have a plan that would work perfectly but with the 50-foot lot we would be a little short on the side yards; I would be seven feet on each side. It is a nice plan that is built in this area. I would love to build it, but it is 1,500 s.f. I can see the 2,000 s.f. home on a 75-foot lot but the appearance of the house wouldn’t stand out on a 50-foot lot. It wouldn’t look right.

Mr. Squires asked if he could move the house back towards the rear property line with a bigger house. Mr. Arcaro answered that you would have to bring the width of it in and have to add on to the depth. Mr. Squires responded then the side yard setbacks would be increased. Mr. Arcaro said so we are talking about 1,500 s.f. Mr. Squires responded I’m going to agree with Mr. Okum in that we are not telling you what square footage must be, but I am getting comments from the board members that the side yard setbacks are a concern.

Mr. Apke asked Mr. McErlane if the two-car garage had to be side by side or could it be a tandem garage and meet the requirement. Mr. McErlane reported that the only thing the Code requires is that it be a two-car garage and a minimum 400 s.f. It would be an oddity to do a tandem, but it would meet the requirements.

Mr. Apke said this is one possibility. You obviously have about 21 feet to go back and you could make the garage go back and probably satisfy the side yard setbacks and the square footage. You would be able to make the house more aesthetically pleasing from the front and still be able to satisfy the side yard setbacks, or at least come closer.


16 OCTOBER 2001



Mr. Arcaro responded that if you would put a ranch on this lot, you could put the garage in the basement, because the lot rises three feet from the sidewalk.

Mr. Apke said it is just one more possible solution. To met 1,300 s.f. is awfully far from 2,000. I wouldn’t specify a square footage, but it isn’t even close. This is a little unusual because the parcel next to this is empty, and the owner isn’t here so obviously he doesn’t care about the side yard setbacks. On the 45-foot lot case, we had a lot of angry neighbors in that commented about houses being on top of each other.

Mr. Arcaro said I understand, but what you are saying is that you can put the garage in the basement. The house right now with the attached garage is 1,500 square feet. So if you took the garage out of it, you would pick up another 350 s.f. which would bring you up to 1850. Mr. Apke commented that certainly would be closer.

Mr. Weidlich said I cannot support this request for a variance for all the reasons Mr. Okum stated, because of this small of a lot and this size of a house. I want to let you know where I stand.

Mr. Okum said it does not appear that there is a lot of support for this variance. Instead of having this go any further, would you like to request that it be withdrawn or tabled?

Mr. Arcaro said I would like to submit a ranch at a later date, so I would like to withdraw my request.

  2. Mr. Okum said we have a copy of the questionnaire for zoning variance requests, and we want to finalize it. I know you have been working with the staff to come up with some wording. We are trying to get more information, and the questionnaire Ms. McBride provided us made it difficult to compare this to the way the applicants were answering the questions.

    Mr. McErlane said what Ms. McBride provided you is text out of the Zoning Code. Unfortunately the common lay person can’t understand it, so what we had up to this point was my attempt to clarify what those questions were asking.

    The intent of the first question is for the applicant to show how there are unusual circumstances on their property to make them have to get a variance.

    The second one is to ask the applicant that if they were denied the variance, would they be unable to use their property reasonably. For example, if it was impossible to meet all the Zoning Code requirements and be able to develop anything on that lot in the last application, they could say they couldn’t use their lot. They may have had some valid points in the last discussion, but I don’t think they proved that.


    16 OCTOBER 2001



    The third question is obvious – will the granting of this variance be detrimental to adjacent properties. That should be obvious to most people. In most instances you will get a no, but that is the reason why we advise the rest of the adjacent property owners.

    The fourth one is intended for the applicant to say how he could modify his request to comply with the code. Obviously if he was satisfied with how he could modify it, he wouldn’t be before you. An example of what the swimming pool application could have done was to show how it could comply like I did on the one drawing with the darkened swimming pool on it. That may hot be the optimum thing that he wants, and it may not be the best thing, but that is the intent of that question. They could expand on it saying this is how I could comply with the code, but it not a desirable thing.

    Mrs. Huber said in our Zoning Code they list the 2,000 s.f. and the side yards. Knowing that there are so many 50-foot lots in that particular subdivision from Route 4 to Kenn Road, why did they do that?

    Mr. McErlane responded one thing you have to keep in mind is that it is the old R-1-B, and there are other zoning areas that have larger lots. The unfortunate thing is that somewhere in our forefather’s wisdom, they classified that subdivision as R-1-B or today as RSH-L and the lots are way undersized for that. They always have been. I don’t know why that was chosen for that zoning district, but when the Zoning Code was amended, we were looking at the legitimate lot size, which is 80 feet wide, with a 2,000 square foot residence. There aren’t any in that area, and it is unfortunate that it is labeled that zoning district.

    I had brought up the idea of assigning a different zoning district for that area when we were reviewing the Zoning Code, and Ms. McBride suggested that we not tie up the rezoning in the process of adopting a new Zoning Code, which is what that would do. You would have to notify all those individual property owners that you are rezoning their property.

    Ms. Huber commented I understand that we want to upgrade and upgrade, but when we have so many 50-foot lots that haven’t been developed, it is a real problem. Mr. Okum said you look at how many developable parcels there are, and how many could be consolidated into a larger parcel. I believe one of the applicants indicated that he had three lots that he consolidated into two for the 75-foot lots.

    Mr. Okum said so question #4 is not in the Zoning Code. 4. The variance (the condition or use of the property) is not of a general or recurrent nature so as to revise the Code to provide for such situations." Mr. McErlane said we deleted that question on this questionnaire because it made no sense to ask the applicant that. What you are asking the applicant is if this happens enough that it should be in the Zoning Code. Mr. Okum said and everybody will say yes. Mr. McErlane responded but how would the applicant know that in the first place?



    16 OCTOBER 2001



    Mr. Okum said we need to consider that item as a guideline. So it is a review item, but not a questionnaire item. Mr. McErlane said #4 is for the board’s use..

    Mr. Squires said we attended a workshop and a representative of McBride Dale Clarion said that we are granting an awful lot of variances when perhaps we should take a look at what we are doing. I tried a little bit of that tonight in the denial of the request for the shed, because to me they did not satisfy #1 and #2. Not satisfying any of those 5 would be enough for us to deny that. I think that when we are going to deny a variance that should be a part of our denial.

    Mr. McErlane said as long as you can formulate it in a way that it relates to the application. Certainly if you make a denial, you should give the reasons why. Typically what you are really supposed to do is advise the applicant in writing that they have been denied and the reasons for the denial. The next step for them, if they wanted to take it further would be the Court of Common Pleas. If you don’t give reasons for denial, it makes you open for making arbitrary decisions.

    Mr. Squires said that is something we have to be extremely careful of. Mr. Okum added that the Court of Common Pleas hears the base merit of the case on the testimony given and reasons for denial. It is not a testimony issue. It is a review of the court procedures. Mr. Squires said the court wants to see if we allowed them due process, and if it was denied why we denied it.

    Mr. Okum said tonight was a real good example of board members expressing themselves in the Minutes their opposition or opinion in regards to the issues, which becomes part of the record. It also is quite credible in the appeal process. It doesn’t necessarily have to be formulated in the motion, but it would be better if it were in the motion. The expression should be part of the hearing.

    Mr. McErlane responded it is more important to phrase it at the time you make the motion, because that is where they look. Mr. Okum said according to Ms. McBride and Mr. Dale and our law director’s office, they encourage all board members to express their opinion in regards to a request in the deliberation stage so it is part of the record.

    Mr. McErlane stated it is not necessary, but it is necessary in a denial to give the reasons for the denial. Certainly a board member could say for all the reasons previously stated or all the reasons stated by the person making the motion, and that is probably sufficient.

    Mr. Okum said are there any changes to Question #1? The only thing I thought was locations of existing structures should be added in that, because it came up in the shed request this evening. Any other suggestions that would make it easier for us to look at.




    16 OCTOBER 2001



    Mr. McErlane said what Ms. McBride added in the first question doesn’t clarify anything. I would suggest scratching "do not apply to other" and put "differs from". If you read it it says "unusual shape of the property that does not apply to other properties that make the variance necessary". Is that clear to you? My suggestion is that it read "unusual shape of the property that differs from other properties that makes the variance necessary?"

    Mr. Okum read back the final question:

    "Are there exceptional circumstances or conditions, i.e. topography, location of existing structures, vegetation, narrowness, shallowness or unusual shape of the property that differs from other properties that make the variances necessary? (Yes) (No) If the answer is yes, explain in detail." Members agreed with that.

    On #2, Ms. McBride had no changes. Mr. Okum suggested that "properties" be changed to "property". That would make it "Would denial of your request prevent you from reasonable use of your property such as your neighbors are able to enjoy with their property? Please explain." Members agreed with that.

    On #3, "Would the granting of the variance be in any way detrimental to surrounding properties? Please explain. If yes, explain the ways that the impact could be lessened."

    Mr. Okum said I thought that should be a little larger to give them more room for them to explain, give them more writing space. Mrs. Webb said that please explain and If yes, explain would be redundant. Mr. Borden said "please explain" should be deleted.

    Mr. Okum said I think #4 should be set out differently. They are making a conditional suggestion. Mr. Squires said that might frighten them a little bit, if they could modify it to comply with the code, they might think why even bother? I would recommend we add something to that, "Note: Meeting zoning requirements may not be the best solution."

    Mr. Borden suggested that we head it "For Information Purposes Only". If you let the applicant know that this was just for information, he would be more inclined to answer the question.

    Mr. Okum commented I was thinking of something more like "Are there conditional modifications that you the applicant could make which would lessen the impact of this variance request?" That would soften it.

    Mr. Squires said I would say "For Information Only" – that is all that is for. I wouldn’t want to scare them with #4. Mr. Borden agreed that it should say "For Information Only" and keep the question as it is.

    Mr. Okum said if somebody has a pool there, is there something he could have done to lessen the impact of that variance, i.e. trees, gazebo, fountain.


    16 OCTOBER 2001



    Mr. McErlane suggested instead of just explain, say "Explain and how and why this is undesirable." Mr. Squires agreed, adding to say how by actually meeting the zoning code would make it an undesirable solution.

    Mr. Okum said what I am looking at in #4 is something different. I am looking at how to soften the impact of the variance.

    Mr. Borden commented you aren’t going to get any answers to that question. I understand what you are after, but I don’t think you are going to get it.

    Mr. Okum said "How could you modify the proposed request to make it comply with the Zoning Code requirements? They are going to say there are no ways. Mrs. Webb suggested "more closely comply".

    Mr. McErlane commented I took Mr. Arcaro’s application and showed how it could comply. I certainly could take the first application and show how it could comply. I already showed you how the swimming pool could comply. The only thing missing there is why they don’t want to do that.

    Mr. Okum said I am trying to get at something we could do that instead of us telling them to plant a tree between your neighbor’s house and theirs, what they can do to soften the impact of the variance.

    Mr. Borden said I think that will come out in the deliberations. I don’t know if we can word that.

    Mr. Okum said if it is a definite no answer, why have it? Mr. McErlane responded it is not a definite no. We already saw applications tonight that are not definite no answers. Mr. Squires said meeting the zoning requirements might not be the best thing for the City or them. How about this, "How could you modify the proposed request to make it comply with the Zoning Code requirements? What other issues are now involved?" You have modified it to meet the code requirements; now you may have created a monster.

    Mr. Borden stated this question has no use at all. Mr. McErlane said the only purpose is to make them think twice about how they could modify it. What could really make them twice would be if we charged a fee for a variance request. Mr. Borden said I agree. Mr. Okum said we all agree with that, and Mr. McErlane said somebody didn’t agree that when they decided not to put an application fee on it. We discussed that at length. Mr. Wilson said it probably was Council. Mr. Okum commented I can understand that for home improvements. Mr. McErlane added I think you would cut out a lot of trivial variances if you did have an application fee. Mr. Borden commented that part of what we are trying to do with the questionnaire is weed out people who do not need variances.





    16 OCTOBER 2001



    Mr. Borden said I am in favor of scrapping question #4.

    Mr. Okum said I am not quite sure it should be scrapped. I think two words added to it, "more closely comply" with the zoning requirements. Mr. Borden said and then they would say no. Mr. Wilson commented in both cases we tried to negotiate, and maybe this would give them the chance to be more flexible with the variance.

    Mr. Squires said I still think we should keep #4 but I think we should amend it. Mr. Okum commented I also think it should be there, but it needs some work. Mr. Squires said it says now "How could you modify the proposed request to make it comply with the Zoning Code requirements?" I would add "What conditions if any now exist that make this unreasonable?" (or undesirable).

    Mr. Borden commented you aren’t going to get answers to those questions. Mr. Okum commented that is why I think it should say more closely comply with the zoning code. It may make them think that they could change it, but sometimes you would have an albatross by the changes required under the code, and those are exceptional circumstances. I would like to have them start thinking about ways before they get to the meeting.

    Mr. Borden commented this is like the question we had before, what alternatives do you have to your request, and they would say none.

    Mr. Weidlich said a lot of people don’t think that way.

    Mr. Wilson said the one applicant said twice that the unusual shape of the lot made it difficult for him. Mr. Borden added that he answered the same question twice. That is a repeat of number 1.

    Mr. McErlane said I am certainly amenable to removing #4. Staff can show how it could comply if you want us to do that. I don’t think you are going to get what you are trying to get, because nobody is going to come in here and show you everything that you want.

    Mr. Apke agreed to remove it. Mrs. Huber said it doesn’t matter. Mr. Squires said he reluctantly agreed to remove it. Mr. Borden agreed that it should be removed, Mr. Weidlich said remove and Mr. Okum said I’ll go along with removing it provided that staff provides us with a way to comply if there is. I think that would be important. Mr. Borden agreed, adding that what you did tonight was good.

    Mr. Okum said the other thing we probably will need and hopefully we can get is the audiovisual thing. Is that going to happen? Mr. McErlane responded we can’t use the screen any more.





    16 OCTOBER 2001



    Mr. Okum asked about digital photos and Mr. McErlane said we can do that. Mr. Okum added I would really like to see the board members attempting not to have interaction with the applicants prior to the public hearing.

    Mr. McErlane commented that there is really not a problem with going by the properties. Mr. Okum said discussion with the applicant puts the board member in a position where they are getting information that other board members are not privy to. It is an unfair advantage on a hearing issue for you to hear information that I am not privy to.

    Mr. McErlane stated I don’t think it’s a good idea to have discussions with the applicant.

    Mr. Wilson said you would have to make your comments that you discussed something with the applicant. I try to go during the day when I think nobody is home, and I listen to what they have to say and tell them that I can ‘t comment any more.

    Mr. Okum said you are a councilman and you need to be open to comments from all residents at all times. I think that could be looked at a little differently than the other board members that are not council representatives. It is still a public hearing, and a public hearing is all information. If you hear information from the applicant that I don’t hear in the text of the public hearing, you are privy to information that I am not privy to. Possibly a letter to the resident saying that board members would be visiting the property and, because of the public hearing being in process, we would appreciate that you not comment or discuss the matter. This could be given to them as part of their application process.

    Mrs. Huber said we are actually trespassing. Mr. Squires said in that workshop, it was explained that we are in a quasi-judicial manner, and we have to act in a way that the applicants must prove to us that their variance must be granted. The entire burden of proof is on them and if we have any prior contact, it is almost like a judge having contact with a defendant before a trial. You have to be careful of that. That was the one thing that came out of that.

    Mr. Okum said the difficulty is that information is needed, and that is why photos from staff are so important to us. That is the only way that we are going to get that information.

    Mr. McErlane said we can get pictures, but I wouldn’t discourage members from going by the properties and seeing what you can see. What they consider to be in plain view is everything from the public right of way and approaching the front door. You are not allowed to go in their back yard without their permission.

    Mr. Weidlich suggested that the board members have plastic ID cards saying we are members of the Board of Zoning Appeals incase we do get questioned.





    16 OCTOBER 2001



    Mr. Okum responded I think that is important, but I also think that the notification of the property owner that photos are going to be taken of the property and the board members may visit to inspect and comments should be refrained from. I think the property owner should sign that release. It is like a release form that says I hereby approve that inspection. It is unfair to anyone in the audiences who are commenting on it as well, because they were not privy to the conversation either. Anything that staff can do to help us will be appreciated.

    There is another item on here, question #5. Mr. Apke said 5 is the same as #1. Mr. McErlane said I agree. I think it should be eliminated. Board members agreed.

    Mr. Wilson said Mr. Weidlich suggested ID cards for board members. Did we decide we would think about that? Mr. Okum said it wouldn’t be bad to have one of those that hang on your neck and says who you are Mrs. Huber suggested an identification card that would go on your windshield.


Mrs. Huber moved to adjourn and Mr. Apke seconded the motion. All voted aye, and the Board of Zoning Appeals adjourned at 9:34 p.m.

Respectfully submitted,



____________________,2001 ______________________

David Okum, President



____________________,2001 ______________________

Jane Huber, Secretary