BOARD OF ZONING APPEALS MINUTES

SPECIAL MEETING

OCTOBER 16, 1995

7:00 P.M.

 

I. CALL MEETING TO ORDER

The special meeting was called to order by Chairman Ralph Nadaud at

7:01 p.m.

II. ROLL CALL

Members Present: Councilwomen Kathy McNear and Marge Boice, William

Mitchell, Ralph Nadaud, Thomas Schecker, James Young

and Wilton Blake.

III. OLD BUSINESS

A. Frank A. Pauzar, Sr. Appeal of Decision by William K. McErlane, Building Official Regarding Use of Property at 11614 Rose Lane

(continued in progress 9/19/95)

Mr. Nadaud said before we go much further, I have some information

that was made available to the members of the Board, and I would trust it is being made available to Mr. Pauzar and his representatives.

Mr. Pauzar stated he had not received any materials, and Mr. Nadaud reported that Mr. Kenworthy, the attorney representing the city has such documents that he will give you.

Mr. Nadaud reported there is an affidavit from Mr. Gordon King which has been submitted for review dated 10/12/95. I will not read these, but they will be available for your review. Secondly, there is an affidavit from Mr. Robert Treinen, dated 10/16/95. I also have a letter which was sent to each member of the Board from Martin Kenworthy of Wood & Lamping concerning procedure for an appeal before the BZA. Also, I have another document, a memorandum from Mr. Martin Kenworthy.

Mrs. Boice said if I may interrupt, I would like to check something with Mr. Kenworthy. Those are direct procedural memorandums to this Board; I donít know if they would be given to the Pauzar appeal. Those are private memorandums to the Board; am I correct on that? Mr. Kenworthy responded I think you are partly, and I did discuss that with the chairman beforehand. At least part of the initial letter does relate directly to this hearing, so part of it is probably open to be admitted into the record here. The balance is general hearing procedure, but I did get into some specifics, beginning with Subsection D related to the Pauzar appeal. I guess Iíll leave it up to the Board whether you want to admit the whole document or any part of it. The other memorandum, the one I presented to the members tonight, probably should be admitted into the record. It is directly related to the issues in this case, and I certainly have copies to give to Mr. Rimedio once he arrives. Mr. Pauzar stated Mr. Rimedio will not be here tonight; I have no counsel here tonight. Mr. Kenworthy responded so you are here on behalf of the applicant, and I have copies of everything for you.

Mr. Nadaud stated the last document he referred to was a memorandum dated October 16, which involves other non-conforming use cases that were presented before court. Does the Board want to consider how much of this reference letter that we received should be made available to the appellant?

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Mr. Blake stated since arriving, we have had two affidavits and a memorandum from Mr. Kenworthy. Would it be permissible to take about 10 minutes or so to read this before we make this decision? I have not had an opportunity to read it. Mr. Nadaud said letís break for 10 minutes, and give the members who have not had an opportunity to review this to do so. The Board took a break at 7:07 P.M. and reconvened at 7:11 P.M.

Mr. Nadaud said before we go any further, I would like to ask the representative for Mr. Pauzar if they are willing to proceed with this without Mr. Rimedio, and Mr. Fred Pauzar indicated that he was. Mr. Nadaud continued and are you willing to represent Mr. Pauzar tonight, and Mr. Fred Pauzar indicated that he was.

Mr. Frederick Pauzar said I am Frank Pauzarís youngest son, and I appreciate your taking the time to listen to our situation and try to help us come to some resolution of this problem that we are facing. I donít know what the format you would like to use for this, if you would like to ask me questions or if you want me to go ahead and speak first, but I am prepared to do either.

Mr. Nadaud responded I donít think you were here at the last session, and to continue in progress makes it a little difficult for you since you are not aware of the conversations or the witnesses who were asked to speak. Maybe you are pretty well informed. Mr. Pauzar responded I was informed by Mr. Rimedio and also by Mr. Ron Stickelman who is here this evening. Iím not sure that Iím well informed, but I did listen.

Mr. Nadaud stated it was the decision of the Board to call another meeting so that we could have other representation here tonight to enlighten us and inform us of the situations that have taken place within

past eight or nine months. In that light, do you have any questions that you would like to address to the Board?

Mr. Pauzar answered not questions, but perhaps some statements to some issues that were raised that you might like to hear something about. Some of this material refers to things that involved discussions with me. Also, I am referred to in an affidavit by Rob Treinen as Rick Pauzar; that is because when I lived in Springdale I was called Rick; it is a nickname, and my name is Frederick.

Mr. Pauzar stated Rob Treinen in his affidavit pretty accurately states how things started out. He had bought a business from my brother Scott, and operated the business out of a structure that he rented from my mother and father, who lived at 44 West Kemper, which is a residential structure on the same parcel of land as 11614 Rose Lane.

Mr. Pauzar continued Rob had operated the business to the best of his ability over the course of those years, and we had a generally good relationship. I always had a good degree of respect for Rob during that time. Rob, as sometimes happens with businesses and thatís the way we viewed it, had some trouble on several occasions, six or seven, of writing a check that would not be a good check (I have copies of those in my file). We understood over the course of time that those are business difficulties, and we let it go. Finally as time went on, the payment became more and more important to my father, who is on a fixed income. This income source from this building is his predominant source of income, other than a very very small pension and Social Security, he had nothing else.

 

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Mr. Pauzar continued finally, I believe it was in 1992, Rob was significantly late with the rent payment and we did get another bad check which caused a great deal of concern for my father. My mother at this point had Alzheimers, and she passed away last year.

Mr. Pauzar stated Rob had suggested in the course of his tenancy that he would like the opportunity some day to buy that building from us and to buy that house, to buy that parcel of land, and he would like an option on it. My mother never wanted to sell it, and she always said as long as Iím living, donít sell this piece of property. If any of you knew her, you would understand that. He was aware of her illness, and at the same time, 1991-1992, had begun serious discussions with me that he initiated, to have an option to buy the house and the store building. He had developed a catering business, and it was his desire at the time to move his wife into the house and to use the house as a kitchen facility for his catering business, to live there and operate the grocery store out of the g grocery building. I told him I couldnít do anything because of the commitment my father had to my mother, but down the road if the situation changed, we could.

Mr. Pauzar stated when we had for the sixth or seventh time a bad check, a late payment, difficulty, it was very stressful on my father, and I said I donít know what our alternatives are. I think we can tell Rob that he is in violation of the lease, and if he wants to stay there, we have to come to some different agreement. That different agreement can be that we do a different lease, that we enter into some sort of agreement where he puts a personal guarantee on the payments, so we know it is not just his corporation, something that gives you a little more protection, and that is what I advised Rob that we wanted to do. In our opinion, he had violated the old lease, because of the repeated problems.

Rob said I do not have any problem doing a new lease, but if we do, Iíd like an option to buy the real estate. I said you can either have your attorney draw up a draft of a lease or I can have a lease drawn up, and we can look at it and maybe we can come up with something that works for us, but I would like your name on there personally, not just the corporation, because my father is too concerned. You are writing him a check on a corporation with our familyís name on it, and he knows it is just a corporate shell. Rob said fine, I have an attorney, and if you can get it drawn up, draw up a draft, and Iíll let him look at it. I did, gave him a draft and didnít hear anything for 30 days, and Iím in Florida and he is up here. So I contacted him by phone and asked for his response. He said his attorney had a lot of things he didnít like, and I said send me a letter. I did get a written communication from his attorney, probably another two months later stating what they would like to have changed. We had those changes made in the lease agreement, and sent it back up. We then had another round of changes; we went through seven versions of the lease document and it became sort of a seasonal event. With my wife and my son and my father (my father has lived with me for four years), I would come up here in the summer to visit family and at Christmastime, so twice a year I would go see Rob and say where are we with this lease agreement? He said I would like to try to arrange financing for this but I donítí know if I can afford to buy the house and buy the store right now; thatís definitely my intent - I would like to own the property. That was the way we had left it.

Mr. Pauzar continued my last contact with him in person was a day or two before Christmas, and I went by to see him; he was not as outgoing and friendly to me as he normally was, and I didnít know why and I still donít know why, but I asked him the situation with the lease. My father is asking about it every month; heís 80 now and it worries him.

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Mr. Pauzar reported Rob said Iíve had a lot of things going on, but my catering business is going real well; Iím not doing as much grocery business. I understood that, and part of that is because he had lost his relationship with IGA; he advised me that was because he had given them a bad check and they had closed his account. He bought from other suppliers for a while and eventually stopped selling canned goods and things of that nature. I said I need to be able to tell my father something. If you are really interested in an option to buy the house, we can do that now, but let me know so I know what I can tell Dad he can do. Rob said he would after the first of the year, and turned around and walked away, without saying Merry Christmas or good-bye or anything. So I followed him and asked if everything was okay. If you are having financial difficulties, if something is going on, talk to us. He said no, a lot of business things are going on.

Mr. Pauzar stated the next thing I knew my sister who lives in Montgomery called me and said she had heard from a fellow from the Springdale area, Bobby Gardner, who had gone by and said there is no one in the store building; it is closed. So I called Rob to see what was going on, and he said I moved out. I asked him why he didnít tell us, and he said I just didnít. I planned to; I was going to write or call you. Mr. Pauzar said I told him youíve been in there for 17 years and we have been talking for three years about another lease. What happened to the liquor license and all the equipment, and Rob said he sold it. Mr. Pauzar said I told him that if we had known that he was going to move out, maybe we would have bought it from you. Why didnít you discuss it with us? Rob responded that he didnít; I had too much pressure; I couldnít deal with it. Iím doing my catering business and thatís all and thatís doing great. Iím sorry; I just felt I didnít have any choice; I had to move out. I said okay, but why didnít you talk to us; why didnít you let us know?

Mr. Pauzar continued I got off the phone and didnít know what to think. I called and spoke to several people; I spoke to Ron, (Stickelman), who is a real estate appraiser and a cousin of ours, who I knew was very active in this area, and I spoke to my brother and to Jeff Hermann and tried to come to a conclusion as to what to do next. My father suggested I call the attorney who originally did the lease, Jim Rimedio, and thatís how he got involved at the last meeting since I couldnít be here. My father indicated I should discuss this with him, because I donít think Rob can just do that. I called Jim, and he said I needed to find out the condition of the store. I didnít have a key to it; we had not had possession of the premises for almost two decades. Jim Rimedio advised me that I couldnít get a locksmith and go in, stating I needed to get something from Rob Treinen in writing that says it is okay for you to enter the premises, that he has vacated the premises and you have permission to do that. I called Rob telling him that I canít go into the property because you are still our tenant until you tell me you are not, and then I can go in and try to protect our assets. He indicated he would send me a key and a letter, and he did.

Mr. Pauzar continued I asked Ron Stickelman to enter the building and he discovered that literally everything was gone. The rest room at the lower level was destroyed; the porcelain fixtures were inoperative. The stainless steel kitchen sink was taken; the walk in cooler was removed and holes were left in the roof; we could look up and see the sky. Rain had come in and collected on the main floor of the building and the power was off. It was nightmare. Mr. Pauzar stated I tried to decide what to do; sue Rob for damage to the place? I decided not to, mainly because I understood that would not be fruitful even if I won.

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Mr. Pauzar said he considered trying to preserve and protect what was left, and I decided that was the right course. I figured I needed a realtor, and I asked my brother who we knew that was a realtor, and he suggested Ron Pitman. I called Ron and told him our problem. He indicated he would list it for us, and added that we were a non-conforming use, but that we had some time; we had two years to do something with it. Mr. Pauzar said I indicated that it was fine that I had two years, but that I didnít think I had to wait two years; we could get somebody to go in there. I really didnít care so much what the income level was, even though I cared for the sake of my father that there be some, I would rather take it out of my pocket and put it in an envelope and have him think it came from the business, than have him worry about it being unoccupied; isolate him from the troubles.

Mr. Pauzar stated we listed it, with the understanding that we were flexible on what the rent would be, and on his advice, we made the needed repairs to protect the building, seal the roof and close things up and make sure the building was secure, to stabilize the property. At this time my cousin Ron was very involved in helping me, and he was occupying some executive space in Blue Ash. He said Iím going to move out of this space and want to get some other space; maybe I can be your tenant. I thought thatís fine, but you canít pay me what I would like to get, but that is better than nothing and at least we would have a tenant and my father would be comfortable because a member of the family would be occupying the space.

Mr. Pauzar continued this was toward the end of April, and we entered into a lease agreement that said he would take the premises, which we had thought was one parcel, because the electricity and the foundation and a lot of the facilities are joint (the light switches in the house turn on the lights in the store, and vice versa). We thought we had a single structure there. I understand that the city has interpreted it that the house is purely a house and can only be a house forever, and that the store building is the commercial portion of the parcel. At the time I didnít understand that, and I donít think Ron Pitman understood that; certainly none of us understood it at that time. So I thought we have a tenant, and we can make the necessary repairs for his sake, which included replacing the bathroom on the lower level, putting a sink fixture in, painting, new lights, etc. When this walk in box was torn out, we were literally missing a ceiling. We began that process. In the meantime, when he signed the lease Ron (Stickelman) moved out of his space in Blue Ash and moved onto the property, put his desks. The statement by Mr. King refers to some racks and boxes; I think what it was were desks and files and other materials, because we donít have any racks. But, there were things from his business in Blue Ash that were brought in and put in the store building that were not in the way of what they were doing and could be kept there. He got his phone number assigned, set up and began to operate out of the residence dwelling. We didnít understand that was a violation; we thought it was an interim step to his physically being in the store property. We also had an understanding, and it is in our lease, that if we got a better tenant, he could either match the rent or move out and we would pay something for his moving expenses, and Ron had no difficulty with that. We also had an agreement that if he paid for the repairs that had to be made, (we are 1100 miles away), we would take that as an offset against rent, up to a certain amount. In fact the expenses are significant; I think they are $10,000, and we have the receipts with us.

 

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Mr. Pauzar continued there were a lot of things going on here. There was no voluntary abandonment of the property, or any effort by us to give up its use. We literally were caught by surprise. Rob may say in his affidavit, erroneously and incorrectly, that I gave him an ultimatum that in 30 days he either had to sign a lease with me or I would throw him out. Iím not insane, stupid or retarded, and I would never throw out a tenant who is paying me rent and has been for 17 years even if he has been late a few times, particularly when, frankly I think Rob was paying too much for this space. Because of escalators, it had grown to $1200 to $1400 a month. I would never evict a tenant without having somebody to replace him. The thought that I would take a non-conforming piece of property that my father depends on for peace of mind, and throw out the person who is writing the checks and have no idea what I am going to do with it next... If I had been planning on having him move out in 30 days, I would not have been caught by surprise at the end of January. It is insane. I understand Robís attitude, because he doesnít want me to sue him for what happened to the building, and I have every right to do that, but I donít have a strong desire to do it because I donít think that winning would accomplish a great deal in terms of the financial side of it, and I donít have any desire to be punitive against him.

Mr. Pauzar stated I have only one desire out of this, and that is something that I think is compatible with what is good for the City of Springdale. I think having that building set there boarded up doesnít do the city any good at all. Arguing about it doesnít do any good at all. It certainly doesnít do my father any good, and I think it is horribly unfair. My mother and father moved here in the 1940ís; they built a little business in their back yard out of a garage before this was a city. They were able to build a larger building out of the money they saved from running that very small two car garage grocery store and rent the building out. To think that after all the time and all of the years that we would find ourselves through misinformation, maybe through stupidity, but certainly because of a surprise of something we had no knowledge of, to find ourselves in a position where the city says weíre not going to let you use that building any more; it is obsolete and of no value, and weíre sorry but thatís too bad. I donít understand how anyone wins in that situation. Certainly not Rob Treinen, and not the city, and not my father, not anyone.

Mr. Pauzar continued what I am asking for is compassion and understanding and fairness to prevail. That is all I would like. We have no desire to be obnoxious neighbors to anyone living in the community. If it is wrong for us to use the house for commercial, and Iíve been told that. In fact, Jim Rimedio says that he questions whether it is correct for us to use that or not, and knowing Jim, if he questions it, it must be unwise. We have no argument about that; the house is a house forever; thatís fine; I understand. We didnít intend to step over the line and do anything wrong and weíre sorry however that came out. At the same time, I donít want to be left with a very large building in the back yard that is of no use to anyone, and I donít want to have to deal with the anguish and the trouble that causes for my father. That is my biggest concern. I donít know what else to tell you, but I will be happy to answer any questions that I can.

Mr. Kenworthy said to go back, I want to make sure what we have in the record, since I was in and out at the beginning. As far as the October 10th letter, what did you decide as a Board in terms of what if anything can be introduced into the record? I have not given a copy of that to the appellant. Some of it pertains specifically to this hearing, and some of it is general procedural information.

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Mr. Nadaud commented I donít think the Board has reached a decision. Mrs. Boice added my feeling would be that the procedure for appeal is a procedural letter and is not necessary; I think that much of what you have said in there is covered in the memorandum that we have submitted. Mr. Nadaud asked if that were the consensus of the Board, and they indicated that it was, and Mr. Nadaud stated I would say that this would not be submitted as a matter of record. Mr. Kenworthy responded that is fine; I just wanted to clear that up for the record.

Mr. Blake said to Mr. Pauzar, first of all I want to thank you for the manner in which you came before the Board. Your presentation was not antagonistic and very well presented. I have three questions. First you talked about Rob Treinen giving some checks that were insufficient funds. Can I assume that those checks were made good? Mr. Pauzar said yes, after contact. For a while there, he said Iím sorry and I promise this will never happen again. He said he would take care of it, and probably for seven or eight or nine months he sent everything by Federal Express and sent a cashierís check. Iím not here to battle Rob; if heís having troubles, I feel for him, but he had written six or seven, and I have them in my folder if you would like copies of them.

Mr. Blake continued you talked about the equipment[ missing, and I heard in our previous meeting the cooler and other things that were taken from the property. My question was who was the purchaser?

Mr. Pauzar responded he owned the cooler; thereís no question about that, because the way the lease was written, it referred to the cooler as being part of his property. What was also part of the agreement, was anything he would remove he would have to restore the building to good condition. If he took something out, like the cooler, he couldnít leave us missing a wall or part of the roof or flooring. That is in fact what happened; everything was stripped out, but no repairs were made to the remaining structure. Mr. Blake said so it was his property; Mr. Pauzar responded the cooler that he removed was. The sink Iím not so sure about, because that is not addressed in the lease agreement, and normally a sink goes with a building.

` Mr. Blake commented my last question is you stated that you started negotiating for a new lease over a period of years. Mr. Pauzar reported we were talking about it for three years. Mr. Blake continued and you were going back and forth. Do you have any correspondence to show this process? Mr. Pauzar said I do; I have copies of all those draft leases. Each time we had this meaningful discussion, he would say I donít want a 20-year lease. The original lease was a 20 year lease, so the idea was to make the new lease a 20-year lease because it would be easier to finance it. I said if you want a 10-year lease or a five-year lease that is fine; figure out what is best for you. You and your attorney talk and come back, so we have a version that is five years, I have a version that is 15 years and a version that is 20 years. I have one with the right of first refusal if we ever wanted to sell the property to somebody else. I have one with an option to buy; several of them have options to buy because that is the key thing he wanted, to buy the whole parcel, not just the store building.

Mr. Nadaud said I have a question that pertains to the house. Prior to the dissolvement of the lease, how was the house being used? Mr. Pauzar responded it was not. If we go back in time, before my mother became sick, my mother and father were here three, four, five or six months out of the year and the rest of the time they had a small apartment in the Fort Myers area of Florida. After that, it was not being used; it was basically empty.

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Mr. Pauzar continued Rob had a key to it for access. As I said there even were electric switches inside that would influence the outside lighting within the store that are wired into the house, because it is two different buildings that were built at two different times, but it was put together as an add-on to the first structure. Mr. Nadaud asked who maintained the house during that period of time? Mr. Pauzar responded it wasnít maintained the way it should have been. Once or twice a year I would go into the house and check it out. Rob advised us when we had a break in years ago, and he went in and tried to help us with it. It was not utilized for any purpose, residential or commercial for a number of years. Mr. Nadaud asked if it were possible that Rob used it for storage? Mr. Pauzar answered sure, his barbecue grills and a lot of his cookware were there. He didnít use the kitchen to cook, but a lot of items were stored there.

Mr. Nadaud said depending on the decision of the Board on your appeal, what would be your future plans for that house? Mr. Pauzar responded if it is the desire of the Board to agree that it would never be used for a commercial purpose of any type, nothing but as a dwelling, I would maintain it the way it is. When my father passes away, I donít know. What I mean by that is rent it out to someone or whatever, but right now there are too many memories attached to it that I couldnít do that.

Mr. Nadaud asked if there were any consideration given to the income that the house could have generated through rental? Mr. Pauzar said yes, clearly. We know we could rent the house out , and we had talked about that over the years, but it really wasnít his desire. He has a $300 and some dollar a month pension; that is it. He has Social Security, but for four years he has lived with me, and all of his expenses are taken care of by me. My father was not a poor man; he wasnít wealthy, but he had several hundred thousand dollars which he exhausted fully with my motherís Alzheimers, literally wiped themselves out, one of those typical stories. We had given some thought to that, but my mother was a great person and also a little funny in her ways, and she did not want to think of someone else living in her house. We could let someone stay there, but we didnít think of renting it out.

Mr. Nadaud said if that building behind the house was going to be used as an office, would it be interruptive to that business to have that house occupied as a residence? Mr. Pauzar answered no. The house has a driveway that comes off Kemper, and the building in the back has parking spaces that are off Rose Lane. Even though it is one parcel, we intentionally had a different address on it so all the business mail could go to one place and all the house mail would go to the house. It was a convenient way to operate it for tax reasons years ago. The only thing we would have to do if we rented it out is the light switches that are inside that control the electricity on some of the things out there would have to be changed. l

Mr. Mitchell commented at the last meeting, Mr. Rimedio was here representing you, and at that time he was bringing in people to be sworn in, to state that the building had been occupied during the six month period; he took a strong hand approach. I am wondering why we are changing the strategy now..

Mr. Pauzar responded it is a good question, a fair question. I couldnít be here, and I didnít know what was going on. Also, not only did I feel we had a tenant that we had signed on a lease for the property, and money was being spent to make repairs and make things happen.

 

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Mr. Pauzar continued we also had a realty agent looking to see if there were a better tenant out there, and if there were, Ron will step aside for us, which may not be the best business sense but is because of his relationship to my family and my father. Mr. Rimedio was here acting the way he did or taking the tone that he did not at my direction. I needed someone to come here and represent me. My father said Jim Rimedio wrote the original lease; why not call him and I did asking him to look into it and represent me because I couldnít come up right then. I spoke to Mr. Rimedio as recently as today, because he called again to offer his services to come tonight, and I said I didnít want him to go. I didnít because my cousin said Mr. Rimedio was a bull dog; he was like a bull in a china shop, acting like it was a tribunal. He said it was terrible. I didnít plan that, and I wasnít there to stop him, but I can keep him from going again. I can go on my own and tell it like it is and let the Board decide what it wants to do.

Mr. Mitchell asked what do you think would be the fair market rental price you could get for the property on Kemper Road? Mr. Pauzar responded I would think probably not more than about $500. Ron is a better person to judge this. Mr. Stickelman said I would say between $450 and $500 rent. Residentially that busy road hurts the rental of that property. Mr. Pauzar added realistically, to be quite honest with you, if it were rented as a residence, I would think that would be optimistic and my guess is it would be $350 to $400. Mr. Stickelman added in its present condition, maybe $350. There have been a lot of things done to the property, but nothing cosmetically inside. Mr. Mitchell said but it could be repaired, and Mr. Stickelman said absolutely.

Mr. Blake commented in your time line, you became aware that the property was vacant in February? Mr. Pauzar answered either the very last of January, or February 1st; I donít know which. I t was one or two days before I called back Rob Treinen. I believe the first of February. Mr. .Blake continued within a reasonable time within that period, you had knowledge that the property was vacant. Mr. Pauzar indicated that by February 1st he did. Mr. Blake continued I wanted to make sure, because if you had knowledge of that, it would be the ownerís responsibility to do whatever is necessary with regards to putting another pony keg or deli in. I wanted to make sure you had some knowledge. Mr. Pauzar stated we did, and that is really why we listed it and why we did what we did, and also why we signed the lease with Ron in April.

Mrs. McNear said thank you for your comments; I appreciate the history that you can bring us from your point of view. What I would like to do is ask Mr. McErlane to give his rendition the situation, because we are here this evening to judge whether or not he made the appropriate decision in this matter.

Mr. Pauzar added I never met with Mr. McErlane about this matter. Weíve had one phone conversation of five minutes.

Mdr. McErlane commented I donít know how far back the Board wants to go on this. The original discussions I had were with Mr. Stickelman and started March 7th. He contacted me about the use of the residence on the property, and talked about the possibility of using it as an office. We talked for a short period of time about what qualifies as a home occupation, and what the parameters are. There may have been a little discussion about the building, but most of it centered on the residence.

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Mr. McErlane stated the next activity on the property occurred May 1st. I was contacted by Barry Tiffany, indicating that about two weeks prior to May 1st he noticed three truckloads of office equipment and files being moved into the house. At that time I asked Gordon King to begin making observations as to what was going on on the property at that time, and also contacted Mr. Stickelman again. We went over the parameters of home occupation again, and I think at that time we discussed in a little more detail how he was planning to use the property, which included independent contractors coming at periods of time to drop off information or download information, which deviates somewhat from a home occupation from the standpoint that only members of the family that reside at the residence can work in the business. We discussed at some length that there were only periodic visits and it wouldnít be a whole lot different if a customer was coming to a regular home occupation,

Mr. McErlane reported over the next couple of weeks, Mr. King recorded the number of cars at the residence, how many and what cars were there. On a number of occasions there were four cars there at any one point of time. I have to point out that they were parked on the deli property; they were not parked in the driveway to the residence. Our concern was that they were there for a prolonged period of time; it wasnít like a customer coming to a regular home occupation. They were there for prolonged periods of time. Mr. King also indicated that during these periods of time he looked in the store, and didnít see any activity. That was during the period of May 16 through May 30th.

Mr. McErlane continued also during that same period, about the first week of May I received a call from Mr. Palishin, who lives at 487 West Kemper and is the neighbor across the street. He had some concerns as well about the truckloads of office equipment being unloaded in the property. I explained to him a little bit about home occupations; he had some concerns about the property surrounding him becoming a business use. I told him we were investigating it. Our only concern up to the August letter to Mr. Pauzar was relative to the home occupation.

Mr. McErlane added when I talked to Mr. Stickelman on May 1st, he had indicated he would send me a letter outlining what his use would be in that building, so we could get a better feel as to how it would comply with the home occupation requirements. He had told us that his daughter or niece would operate it. Mr. Stickelman commented it was my daughter, but she got sick and my niece took over. Mr. McErlane continued his niece was going to live at the property and operate the business. Independent contractors would come in and down load information or drop off information. He had indicated that he would send me a letter outlining what these would be.

Mr. McErlane reported on June 12th, I faxed him a letter, again outlining the limitations of home occupations and reminded him about the letter he had indicated he would send to me.

On August 14, we sent a letter to Frank Pauzar, Sr. advising him of the observations of the number of cars at the residence and the possibility that there was an illegal home occupation occurring in the residence. At the same time we indicated that we were aware that the building had not been used as a business for a six month period and had lost its legal non-conforming use. On the 18th of August, Mr. Fred Pauzar called me and talked to me briefly about the use and his concerns about his father being upset about losing the non-conforming use and said Mr. Stickelman would be contacting me about that use.

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Mr. McErlane stated on August 22nd Mr. Stickelman called to set up a meeting to talk about the use, and we met on the 25th of August. At that time, I discussed the variance proceedings. Mr. Stickelman informed me about the condition of the deli building, and that there were repairs that needed to be made, holes in the roof, painting and that type of thing.

Mr. McErlane reported he had mentioned a court decision or a legal decision or an agreement that might have been made in the early to mid-70ís, and I told him that I had found some variance information, but I couldnít find any kind of a legal decision. I said I would check into that. Mr. Stickelman had indicated that he wanted to do something with the store building, but I suggested to him that he not spend large amounts of money on it until the issue of the variance was taken care of. I told him I would look into any files we might have on a court decision, and get back with him. Mr. McErlane reported on the 5th of September, I sent him a letter indicating that I had not found anything, and again advised him what the variance procedures were.

Mr. McErlane continued on the 12th of September, I received a call from Mr. Rimedio. We had some discussions as to the variances that were granted in 1972 and 1973, and he again indicated that there was a court decision. He had a little more detail of the court decision being an appeal from the Board of Building Appeals in the State of Ohio, which was a building code issue. He indicated that Pauzars and Mr. Stickelman had decided they would appeal my decision instead of applying for a variance to the six-month time period.

Mr. McErlane stated from the standpoint of discontinuation of the use, Mr. King did the majority of the observations. I drove past on two or three occasions, and so no indication of activity on the property during that time.

Mr. Pauzar commented one thing I have been puzzled about is that it appears there was a lot of attention paid to the property, and I appreciate your doing your job so diligently. On the one hand you see files and other equipment going into the store building as well as into the house, and thatís documented; you see cars parked at the store property as well as by the house, and thatís documented. You have warnings going to Mr. Stickelman that he may be using the house improperly, and those are repeated. And then you have, boom, a letter going out that says you canít use the store building any more; youíve lost your use of it. You had a whole sequence of events, where you had a lot of attention and inspection, focus, everything, and then on a date, August 14, the date the letter was written, saying you have lost your use of the store building; it has expired. Of course I called on the 18th, as soon as I got the letter because that was a complete shock. I believed that we had two years, but more importantly, if the city was focused on the property and paying attention to it, and was going to the trouble to try to warn Mr. Stickelman about his use, which was believed to be improper at the residence, and if the vehicles are parked at both properties, and furniture and equipment are going into both, whether you have people sitting there with suits on typing and using phones or not, or you have customers or clients coming in and out, there is activity, but there was no attempt by the city to warn us or to notify us or give us any advance indication that there was a six month a time clock running. We were led to believe, and Iím not saying by this Board, something quite different.

 

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Mr. Pauzar continued we also knew that we had activity going on because we have the bills. We have checks that we have written; there are over $10,000 worth of expense to make repairs and do things to that property. If someone moves out and damages your building, you canít occupy instantly. Mr. King was diligently looking and watching, and a neighbor across the street was, and other people were; a lot of people were focused on the property. No one tried to say by the way are you aware that you have six months? That when the store went up years ago, we allowed two years, but back in the Ď80ís, we changed it and it became six months; are you aware of that, and secondly, are you aware that your six months are almost up by our reckoning? Are you aware of any of these things? None of that notice was given to my father. No one argues that fact, so instead a letter after what the city believed was the expiration date came that said you lost your use; it is over. In fact, thatís a debatable point, and I am surprised by that, and I donít understand it. I donít understand the spirit of that. When you have someone from the city going to a property nearly every day or multiple times per week, and youíre documenting activity, and things are happening, but you are defining that in a certain way. Plenty of notice is being given about one thing, but no notice whatsoever is being given to the property owner about the potentially valuable loss of something that he owns. I just donít understand that.

Mr. Nadaud commented I can appreciate your confusion. If we overlook the fact that the six months had elapsed, there is still the question in the code that states the non-conforming business shall remain the type of business that was in there previously. There is a double issue here; the six month time period had elapsed, and also the non-conforming business that was going to go in there was entirely different from what was allowed to be there in the first place, which is a violation of the code.

Mr. Pauzar stated that I didnít know. I didnít understand that, and I admit that to you.

Mrs. Boice commented in responding to your question as to why you were not told, at one point there was a For Sale sign in the window. Mr. Pauzar said no maíam, there was a For Rent sign. Mrs. Boice responded you are saying For Rent; Mr. King is saying For Sale. I drove by the property, and I did see a For Sale sign. Mr. Pauzar said excuse me, but we never signed a For Sale listing agreement. We only signed a rental listing agreement. So if he put a For Sale sign in there, I donít know. Mrs. Boice commented then perhaps you need to speak to Mr. Pitman, because he has been quoted by you and Mr. Rimedio both as being involved in the property. Iím not anywhere near the delicatessen, but I also have received a number of calls. Several people on Kemper Road, not in that area, but because we have held so strongly to keeping Kemper residential, people were getting antsy about this, with the idea of moving a business into that home. When I circled by and saw the signing that I saw, I was working under the assumption that you were attempting to sell that property. Iíll have to state it very clearly. If you are connected with the city in any manner, all of us deal with these codes, whether we be council people, committee people, mayor, clerk-treasurer or whatever it might be. Non-conforming use is something that I canít imagine any elected official seated not knowing what that means. Very clearly, you have to keep the same business. So, there has been some miscommunication, also with the people who have been representing you.

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Mr. Pauzar commented even last week when Mr. Stickelman and I met with Mr. Pitman in his office and went through this, he said there shouldnít be any problem with using that as a real estate appraisal office. Mrs. Boice commented well he needs to read his code then, as chief officer of the city.

Mr. Pauzar responded I understand that, and I donít disagree with you. All I am saying is I feel like we are caught between a rock and a hard place. I would like to try to come out of this with some opportunity for my father to end up with an economic use of the building. Thatís all I want out of this. I donít want to grind an ax or do anything; I just want to end up with some economic use for the building, and if it means we have to say weíll take down signs or weíll do whatever, I donít care. Itís open; I just want to end up with an economic use, so we donít have a very large empty shell setting there.

Mr. Pauzar continued the situations that have occurred here, I take a lot of responsibility for where I am today and what has happened, but I also believe that perhaps there could have been a more fair effort on both sides. Not this Boardís side, but the Cityís side as well as my own in terms of notification and communication and so on. I had no idea; I didnít know what we could or could not do, and I was relying to some degree upon a realtor who also is your mayor. And yes, maybe that was a mistake. I donít deny that, but please donít punish my father because of that.

Mr. Nadaud said in considering the reversal of this decision, this Board would have to adopt another set of rules which would apply to another non-conforming use. If this Board would reverse that decision to allow an office space to occupy that non-conforming building, it would have to remain an office building. Mr. Pauzar commented I understand that. Mr. Nadaud continued and you made a remark earlier that if a better offer comes along...Mdr. Pauzar responded I will tell you right now that I would be very willing to agree in writing with the City that if you permit it to be used as an office, it would never be used as anything but an office. That I think is a better use, and a less onerous one for a neighborhood than a pony keg. That may be something that the neighbors might have something to say about, but I donít think it would be more troublesome for them to have that there than to have the pony keg continue on. I think it would be better to have an office there. It appears to me that the City has offices in retail areas, that this is commonly done. But I always thought, and I was led to believe, again by your mayor and my realtor, that this was not a problem. Going down in the use was not a problem; it was going up that was the problem. So if we wanted to have someone come in with a real estate operation or an appraisal operation, that is fine if it was an appraisal office. If we wanted to go to a pony keg, that would be a problem. If I was stupid and I was wrong, I apologize for that, and I take the blame for that. Again, we will agree to anything that is fair and reasonable; thatís all we want. I donít want my father to end up with an empty shell that is not being put to any use whatsoever, and I if we have to rent that building for any amount and have it be as an office, that is fine. I donít care. Iíll sign off on any future possible use of it for retail purposes, if thatís what it takes.

Mr. Young commented so during that period after you talked to Mr. Pitman, that occurred in March, that you asked him to start looking for a possible renter? Mr. Pauzar responded it was actually still in February. Mr. Young continued can you tell the Board how many opportunities were presented to you and what types of businesses they were?

 

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Mr. Pauzar responded there were several prospective ones, a Gold Star Chili operation, another pony keg operator, but it never got to the stage of anyone...frankly, it was shown a couple of times, but the condition was so dismal inside, I was told that it was such a negative. Mr. Young continued so then chronologically what occurred during that time was you decided you needed to remodel and Iím assuming thatís to help rent or find someone to sign a contract with you. That was approximately one month before this gentleman rented the space. Mr. Pauzar indicted that was correct, and Mr. Young continued so the marketing effort was a little more than a month, and then you were done with it. Mr. Pauzar answered no, even after he rented it, we kept the listing agreement going. The lease agreement allows that if ERA Realty wanted to go in, and they would pay $900 a month, and he was paying $500 a month, then he could either pay $900 or he could move out. Mr. Young said so the period after April, or when this gentleman moved in, how many times did you get a call from Mr. Pitman saying he had prospective people looking at the property, and what kind of businesses were they? Mr. Pauzar answered four or five, and most of them were retail. I think there was one real estate office possibility. Mr. Young asked if that was the period from April to August, or April to when? Mr. Pauzar answered Iím not sure; I would say April, May June; Iím not sure. Mr. Young said then a couple of months. Mr. Pauzar said yes, and we did not give up on the marketing of it until after we were told that we had lost the use of the space. Then we could no longer keep it listed, but it remained listed. In theory, it is still listed.

Mr. Young said if there were a chance for you to get an extension on the non-conforming issue, would you then be agreeable to still try to find a delicatessen person that would rent that facility? Mr. Pauzar responded if that is the cityís desire, yes. I have really only one objective; I am an easy person to negotiate with on this. I just want something to be in there; I donít want it to be empty. Thatís very symbolic; that was their careers, their lives. I donít want my father to think all of that is setting there in decay. I donít care; if you say an office use is a less onerous use, and we will let you do that, but you can never go back to retail, fine. I have a general power of attorney for him, and weíll sign off on this. He would sign off as well, and we would agree to that. If you say no, not office, but weíll give you so much time to get another pony keg deli in there, thatís what we will do. The office will move out; weíll get everything out of there right away and be gone. Whatever you tell us to do in that regard, we will do. I just would like to end up with some use for the building.

Mr. Kenworthy commented I have a few comments I want to make concerning the legal standpoint of some of the statements that have been made. From a general standpoint, the way the Springdale Code is written as far as non-conforming use, it is pretty much in line with the law of the State of Ohio, and pretty much across the country. It is generally said that the law abhors a non-conforming use, and the way the codes are drafted, they are to be eliminated at a reasonable pace. Sometimes they are even declared to be nuisances and you are given two years to get rid of your non-conforming use. From a starting point, I donít think there is anything unique or special about the Springdale Code as far as its treatment of non-conforming uses is concerned. The zoning in the area where the property in question is has been determined to be residential; that is a decision that the City has made, and anything outside of that is not generally permitted. This non-conforming use was because it had been there prior to the zoning.

 

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Page Fifteen

Mr. Kenworthy continued a point on the comments that Mr. Pauzar was given some direction that you had two years or whatever the time period was, and maybe you think it is fair or maybe you think it is unfair, but generally the law would provide that you are proceeding at your own risk. An employee or an official of the City canít bind the City to something that is contrary to the Cityís own ordinances or to state law. You have to do your due diligence, and like you say, you might find it unfair, but thatís just the way it is, whether it is the mayor, or a building official or anybody that you just call on the phone. What the law is is what it is, and they canít change that by telling you something. As an example, say that Ron Pitman had told you yes, but you only have three months. That would be unfair the other way. We canít change what the law is because there is a misrepresentation or a misstatement. Mr. Pauzar commented at least we agree that it is unfair. Mr. Kenworthy responded I said you may find it is unfair. I wanted to make those comments. You have my legal opinion; I donít want to rehash that, so if you have any questions, Iíll be happy to answer those.

Mrs. Boice stated Mr. Pauzar, I know you have throughout your discussion and explanation to us stressed the fact that your mother never wanted to sell the property. I was not clear that your father felt that way. Have you not given consideration to selling the property?

Mr. Pauzar responded I donít know what we would do. When we got that notice from the City, I think I gave consideration to everything. Mrs. Boice continued as I said the For Sale sign that I had observed ..Mr. Pauzar said if it was there, I wish Mr. Pitman were here tonight. In fact, last week I asked him if he could be here. I wish he were here so he could say why there was a For Sale sign. Itís easy to check the multiple listing records and see whether it was listed For Sale or For Rent. It was listed For Rent; if he had a For Sale sign in there, okay. Maybe he had a sign with the name of his real estate company on it and thatís what he put in there. If someone came to me and made us an offer for it, oh yes. I would be delighted to go to my father and say I know you never wanted to do this, but at least this puts it to rest. It is not our desire to sell it. My desire is to keep the property and have somebody in there until my father passes away, and after that, I donít care what my brother and sister want to do with it; it doesnít matter.

Mr. Mitchell commented I have heard you say a couple of times tonight what you want and what your father wants. Have you ever gone out into the community, into the neighborhood and asked what they would like to see in this building? When it was a convenience store, they probably went there for the newspaper or whatever. Have you asked if they want another business in their neighborhood? I drove through the area a couple of times when it was a pony keg, and it was kind of troublesome to get through the area. I would see little kids playing out in the streets and almost getting run over by cars, so I guess I am not so interested in what you want, but what is good for the community; what is good for the neighborhood and the area.

Mr. Pauzar responded I donít disagree with you. I donít know that is a bad way to look at it. I didnít go door to door or do a survey or check with neighbors. At one point, we had a little notice form with papers to sign for an earlier meeting, and I know that was taken around to let people know. Mrs. Boice commented I asked Mr. Rimedio about that and he quite succinctly told me that it was not necessary, that this was not a variance being granted, that it was an appeal.

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Mr. Pauzar commented maybe Mr. Rimedio as an attorney said that; I am disagreeing with my attorney; maybe he doesnít want to officially say that the Pauzars took any steps to do that, because he doesnít want to prejudice something as an attorney, I donít know. Iím just telling you the way things are, and I do know that someone from Ronís office actually did go around and talked to the neighbors; there was an effort made to talk to some of the neighbors. I didnít actually survey anyone. I did talk to a few people here in town. I talked to not only Ron Pitman, I talked to Doyle Webster, his opponent, because I knew Doyle years ago when I was here in the city. My father-in-law and mother-in-law are friends of his and said you ought to call him and talk to him and see what he thinks. I communicated with him, only casually to see what he thought about this, and he said I know that a lot of people were happy that the store was there, but when it closed, I think some people were happy that it was closed, because they felt there was so much traffic with the store. It doesnít help me to tell you that, but Iím telling you what he actually said to me. So, I donít disagree with you on that point at all. Frankly, it is not an ideal spot to have a grocery store from a community standpoint, and I donít argue that. What I argue is fairness and being able to have some use of the structure and the building and the space, and what I argue is what I perceive, from the standpoint of one person only, the owner of the property, as a very confused and unfair outcome, and Iím trying to prevent that. Thatís all.

Mr. Pauzar continued I donít think it benefits any of the neighbors, the people across the street or anyone else to have the building vacant either, and have nothing happen there. I donít know that is necessarily a positive for them. There has to be some use to it, and I believe that use may be what we are talking about now, which is possibly to keep it as an office service type property, and I would have no problem agreeing with that and never putting retail back.

Mr. Blake commented I think I would like to say to Mr. Pauzar that even though I have heard what you said, I want to be sure that you understand that the Board has to deal with the law, and that is the bottom line. I can understand if it were my father I would want to see his investment utilized, but I think we have to do it in terms of case law, and whatever the ruling is, you will have to make the necessary appeals for an extension or whatever you can do. Within this context now, we have to decide based on the ordinances, and I hope you will understand that. I am sure we can come back and you can get with the city officials and you all can work out something outside of what we have to deal with now. You are asking us to make a ruling on Mr. McErlaneís decision, and we have to make that ruling based on the ordinances. When that is made, maybe we can go to something else. I wanted to make sure you understood that, and to thank you for your presentation. If you are finished, I think we can try to make our decision.

Mr. McErlane said I wanted to bring something up for discussion. I think everyone recognizes that the decision to say that its former use has been continued is probably not an issue any more. From the case law that has been presented, it needs to be the same use. An item of discussion for the Board would be is there a feeling that a variance could be granted to give an extension to the six-month period and possibly modify the use, and this probably will take advice from the legal counsel, to allow an office use without giving up the non-conforming status.

 

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Mrs. Boice commented before we go any further, I hesitate to open cans of worms. Iíll be honest with you; we are getting so much of this in-house business, and some that to me are a little sketchy as to whether they are occupied. This is a constant thing; I am averaging at least two calls a month from people in this city that are getting very uptight about the encroachment on the residential area. I think if we start fooling around with this very clear section in our code. I would be very nervous about this.

Mr. McErlane responded I am not suggesting doing anything with home occupations. Mrs. Boice said Iím talking about this in general. If we start extending non-conforming uses; we had a situation years ago where a variance was extended on a residential use, and it cost the City some big bucks in the end, because this variance kept going and going and going. Thatís very problematic, I think.

Mr. McErlane stated my only concern is that we will have a building there that obviously is not suited for residential use and unless it is demolished will have no function and probably will become a maintenance item more than anything else.

Mr. Stickelman added if that building is left vacant and deteriorating, it will have a negative impact on the residential values. That has been proven quite clearly, time and time again. If the building is let go, and minimum maintenance is done to maintain it and it looks abandoned, it will have a direct negative impact on the residential values.

Mr. Nadaud stated I am going to call on Mr. Schecker at this time, and after that I would like to ask the members of the community that are present here tonight if they have something they would like to say.

Mr. Schecker asked if we made a decision on the issue of the current non-conformance, can the owner come back to us at a later date for the variance to use it as some other use, the current use that he has for example? Does he have the option to come back to us for a different use of the building?

Mr. Kenworthy responded I will answer in two parts. First, the decision you make tonight is based on the appeal. If you affirm the appeal, you are affirming his decision that non-conforming use was voluntarily discontinued, and under the Code, it could not be revived. That is part one. The second part, it sounded like you were asking if they could come in at some point of time for a variance. I would say probably, and I hesitate with that, because what you are getting into is almost a zoning change. This is a residential district, and while a valid non-conforming use is permitted, to go to any other type of commercial use is a use change and that is pretty much seen as a zone change. I donít want to completely rule out that it is a possibility, but my reaction is there is s some hesitation and I think it could be problematic.

Mr. Bert Volker stated he represents his sister, his brother and himself. We own the 90 acres adjacent to the Pauzars to the north and to the east. I became interested in Springdale in general about three months ago, because we have plans to develop our property. It is strictly residential, and our big concern is the traffic, no matter what goes in there. I think when the Eades property was approved for development, it was brought up that night that Smiley and not Route 4, and maybe the adjacent street parallel to it and somebody brought up the Volker property as well.

 

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Mr. Volker continued we do intend to develop that, and we are very very interested in what goes on in this little piece of property, because their attorney, three weeks ago said what we donít want is that extra two or three hundred cars a day, which was there before. Iím telling you nobody in this room is more familiar with that area than I. I go by there once and usually twice a day; I pick up the Enquirer right in front of the store, I look in the windows every day, and nothing has happened there, believe me. There was a sign, "For Sale or Lease".

Mr. Volker continued I can remember when the store was there and my mother would get calls from Springdale to go clean up the garbage at the corner of Smiley and Rose Lane. I would do that; these were beer bottles, 650 feet from my motherís house, but it was from that store. The traffic through there was horrible. The children and not so young children smoking in our area and when that store was closed, it was a whole new ball game. You can drive by there - itís residential now, and thatís what it needs to stay, residential. Believe me. I agree with you. It is an eyesore, and if I would have known that you had only six months, I sure wouldnít have told you. I think it always has been an eyesore.

Mr. Volker said speaking to the man that was in that store, I know him quite well. I used to stop by there all the time. It took him over a month to move out and I questioned him as to why y he was moving out. He said I got an ultimatum; I have 30 days. I asked when he got the ultimatum, and he said it was on Christmas Eve, 1994. I wanted to tell you that; it may be hearsay, but that is what I was told. The midnight express which we were told three weeks ago did not occur at all. This is a residential area; we plan to beautify this with residential homes and we do not want to see that thing there.

Mr. Nadaud asked if any other residents wished to speak or if there were any other questions or comments from the Board.

Mrs. McNear asked Mr. Volker if he had considered purchasing the Pauzar property and take care of both of your problems at one time. Mr. Volker answered that could solve everything.

Mr. Nadaud stated I would entertain a motion either to affirm the decision, reverse the decision or modify said decision.

Mr. Nadaud stated the question was asked that if a motion were made, how it should be voiced. Mr. Kenworthy, will you answer that?

Mr. Kenworthy stated I think you had it right when you said motion to affirm, deny or modify in some fashion. That is the question before you. Mr. Nadaud said if a motion was made to affirm, we would be supporting the decision made by the building official? Mr. Kenworthy confirmed this if it is stated in that fashion. Sometimes the motion is made to grant the appeal, but if you say to affirm the decision of the building official, then that would be supporting the decision.

Mr. Schecker moved to affirm the decision made by the building official and Mr. Mitchell seconded the motion.

Voting aye were Mr. Schecker, Mr. Mitchell, Mr. Young, Mrs. McNear, Mrs. Boice, Mr. Nadaud and Mr. Blake.

The Board of Zoning Appeals upheld the decision of the building official with seven affirmative votes.

 

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Mr. Nadaud commented I wish you good luck and hope you can resolve your problems. Mr. Pauzar said thank you for your time.

ADJOURNMENT

Mr. Blake moved for adjournment and Mr. Mitchell seconded the motion. By voice vote, all voted aye, and the Board of Zoning Appeals adjourned at 8:45 P.M.

Respectfully submitted,

 

 

______________________,1995 ______________________

Ralph Nadaud, Chairman

 

 

______________________,1995 ______________________

Wilton Blake, Secretary