Board of Zoning Appeals Meeting Minutes

21 October 2003

7:00 p.m.


  2. The meeting was called to order at 7:05 p.m. by Chairman David Okum.

  4. Members Present: Robert Apke, Fred Borden, Marjorie Pollitt,

    James Squires, Robert Weidlich, and Chairman Okum.

    Members Absent: Jane Huber Ė Mr. Okum stated that Mrs. Huber

    Contacted me last Friday and told me that she is getting some medical treatments and would not be able to attend this meeting. We are thinking about her and hoping that things are going good for her.

    Others Present: Richard G. Lohbeck, Inspection Supervisor

  7. Mr. Okum said I believe there is a typo in the fifth paragraph on Page 6. It says the "Building Department has the discrimination to "slay" the execution", and I believe it should read "stay". Mr. Squires moved to adopt and Mr. Borden seconded the motion. All present voted aye, and the minutes were approved with six affirmative votes.

    1. Planning Commission Meting Minutes Ė September 9, 2003
    2. Zoning Bulletin Ė September 25, 2003
    3. October 1 Memorandum from Ken Schneider Ė Time Limitations on Variances and Conditional Uses
    1. Report on Council Activities

    Mr. Squires stated that Council met October 15th and extended the waste collection contract with Rumpke for one year.

    Resolution R16 is before Council proposing an increase in the income tax from 1 to 1 Ĺ%. This will be read four times and will go before the electorate. We are inviting all interested parties to attend Council meetings to voice their concerns about it. We have had the 1% income tax since 1972, and there are things happening to our city over which we have no control. The money coming into the city treasury is down significantly. Businesses that left Springdale were replaced in a short period of time, and that isnít happening any more. We are at a point that in order to do the projects that Council wants to do, we need additional income. For example, the Fire Department is coed and our facilities are not, so that is high on our list of things to do. Also, the Police Department is tremendously overcrowded.


    21 OCTOBER 2003


    VI REPORTS Ė Report on Council Activities Ė continued

    Mr. Squires stated that the Glensprings ditch is on hold; the bridge on the creek at Ross Park is on hold. We had to borrow money for the street repairs on Cloverdale and Smiley. All of these things are adding up, and the mayor and administration showed council the need for this increase. It is not something that we want to do but it is something that we have to do. No one wants to cut services, and already department heads have been asked to reduce their budgets significantly. This budget for 2003-2004 is probably $1.2 million less than what we had in revenues in previous years. I hope council chambers are full because we need to hear from our residents. It will go on the March 2004 ballot and go into effect July 1, 2004.

    Mrs. Pollitt said I was speaking with the mayor today and we felt that since we do have some time, we are going to try to schedule some district meetings and have the city administration, the mayor and council people here, so if people have questions, we can answer them.

    Mr. Okum said you might want to consider neighborhood meetings, since the districts are so spread out; you might get a bigger attendance. It is not a political issue; it is a community issue.


    B. Report on Planning Commission

    Mr. Okum said we considered the Christmas Tree Lot at Tri-County Mall which is the same as last year and was approved. The landscape plan and building colors for Dunkin Donuts was approved with the applicant working out the landscaping details with our city planner and landscape architect. We approved the Kentucky Fried Chicken redevelopment plan with the condition that the applicant also provides 2,600 cubic feet of water detention. The drive through addition for Kemba Credit Union was granted and they are here this evening for a setback variance. Exterior elevations for Postal Service Inc. at the old NAPA building were reviewed and approved; it is a major improvement to that building.


    1. Approval of variance to allow the construction of a wood utility building to be located four feet from the south property line and three feet from the west property line at 695 Cloverdale Avenue. Said variance is requested from Section 153.067(B) "Ömust not be less than five feet from any rear or side lot line." Tabled 9/16/03

    Mr. Okum reported that the applicant has sent us a note requesting that we table this one more time, because they are going to be out of town. "Please table my request for the barn at 695 Cloverdale Avenue. My wife and I will be out of the state from 10/18/03 to 10/25/03. P.S. Still waiting for a surveyor to call with a date to survey the property. Thank you for your consideration. Leslie Blankenship"


    21 OCTOBER 2003


    Mr. Squires based on this note, I would move that we table this until the November meeting. Mr. Apke seconded the motion. All present voted aye and the item was tabled until November 8, 2003.

    1. Approval of a variance for a fence on a corner lot at 676 Glensprings Drive to be 17í from the right of way line. Said variance is requested from Section 1543.482(A)(3) "Fences on corner lots shall not be located in the required setback for the building from the side street line."

    Castella Saturday the owner of 676 Glensprings Drive said you have pictures of my fence and I have more pictures (passed them around the dais). She said it is not really a privacy fence; it is more like a decorative fence that you can see over, through and around. I saved up money to get that fence; it cost me $2,000 and I would love to keep it.

    At its highest point it is only 48 inches tall so it is not like it blocks anybodyís view. It is just a little decorative fence. It makes me feel good to go out there and look at it, because it reminds me of a past era. No one has complained about it; all the neighbors say that they like it.

    I have been on that corner for 26 years. It does something for my health to look at that fence, and I would love to keep it as is if I can.

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

    Mr. Lohbeck reported that the owner is requesting a variance to allow a vinyl picket fence along the rear property line to project into the setback of the side street (Glenfalls). Section 153.482(3) requires a fence to be set back a minimum of 35 feet from the right of way of Glenfalls, and 36 feet from the sidewalk. The fence has been erected 17í-2" from the right of way line. The Building Department issued a permit for the fence on August 12, 2003. The site plan submitted with the application (Exhibit A attached) was a generic site plan which indicated that the fence would be in line with the face of the residence. Before the permit was issued, we developed a site plan from CAGIS data (Exhibit B attached), which shows that the right of way on the side street (Glenfalls) curves. When the permit was issued, it included the CAGIS plan with a note indicating that the fence could be no closer to the sidewalk than 36 feet. Unfortunately the fence was erected without this information.

    Mr. Lohbeck said the generic site plan (Exhibit A) was submitted by the applicant, which is part of the document for the permit. We developed the CAGIS plan (Exhibit B), which shows it a little differently.

    Mr. Squires said it should be entered into the record that we have a letter from Robert and Peggy Mooney at 11828 Glenfalls Court supporting Mrs. Saturday and her fence as it is now erected.



    21 OCTOBER 2003



    Mr. Squires said if this Exhibit A was submitted when you applied for the permit, it clearly states that it is 35 feet minimum from the property line.

    Mrs. Saturday responded when I erected the fence, I really didnít know I needed a permit. They were out there putting it up, and the man told me that someone had come by and said that I needed a permit. While they were in the process of doing this, I came down here and applied for the permit. The person who was supposed to give it to me was out, and they told me that they thought it would be all right. Since the people were already there, they started installing it. That lot goes in a curve and the man did it visually from the end of that house. Maybe he could have put one panel a little too far over. Iím thinking that is what happened.

    The fence was up about a month before I got the notice from down here that I was not in compliance. I thought everything was all right. That is why I came down here to see what the problem was, and I called the fence man back and told him that I might have to take some of the fence down. If I have to take too much of the fence down, it wouldnít look right. It would be in the middle of the house from the back, because it is on the back line. I know you have to stay in compliance, whatever the rules are. Someone told me that if I came down and stated my case, maybe they might let you keep the fence as is. I thought it would be worth it since I paid so much to get it installed.

    It was a matter of miscommunication about the fence. If I had known up front that I would have to be in compliance at a certain point on that property, that is what I would have done, and I wouldnít have to be here, since I was going to invest that kind of money to have that fence installed out there. The fence had been up four to six weeks before I got the letter saying that I was not in compliance.

    Mr. Squires asked if they were six foot sections, and Ms. Saturday indicated that they were, adding if I lose three of those sections, the fence wouldnít look right. Mr. Squires asked if it was imbedded in concrete and Ms. Saturday confirmed that.

    Mrs. Pollitt said this is considered a rear fence, and up until this summer, we did not have to have a building permit to install a rear fence. I am wondering if Ms. Saturday was caught in the gap. Mr. Lohbeck reported that it became effective in June, and the permit was issued August 12, 2003.

    Mr. Okum said it shows here on Exhibit A there was a 35 foot minimum from the property line indicated. They already were in the process of installing the fence when the applicant got the permit. The fence company did not have Exhibit A in hand when they were digging the holes.

    Mr. Okum said I think the purpose of fences are to have enclosures. Sometimes you have landscape features, hedges, trellises and stone walls, and I place this more in that category, even though the legal description is for a fence.


    21 OCTOBER 2003



    Mr. Okum said there are different purposes for fencing, and this purpose is for a landscape feature, and not an enclosure. I donít have any problem whatsoever, considering that it is an irregular shaped lot, a corner lot placed on a radius. It does not project into the property owner to the northís front yard to any noticeable effect. I will be supporting a motion to grant the variance. If it became in disrepair, our property maintenance code would address this. I would encourage that the motion be specific and state the length of the existing fence and the existing setback and that it be phrased in terms of a decorative landscape fence.

    Mr. Squires moved to grant the variance to allow the fence to stand as erected, which is only 17í-2" from the right of way line. It is to be noted that this is by definition a fence, but it is more of a decorative or landscaping feature fence than anything else. This is a corner lot; Glenfalls curves at that point, and there was some miscommunication between the applicant and the building department.

    Mr. Okum said I think it should include the distance and length of the fence. Mr. Weidlich said I counted nine sections and Mr. Okum said so if there are nine six-foot sections, it would be 54 feet. Mr. Weidlich commented you have the five inch posts. Mr. Okum said 54 feet plus or minus. The reason I am encouraging that is because it sets a limit to that fence, and it doesnít become an enclosure. It stays a landscape element. I would not want it to return.

    Mr. Lohbeck stated that she could not come any further in the front, but she could in the back if she wanted to. I think the 17í-2" from the right of way line would take care of anything that would go out in the front.

    Mr. Okum said my concern is an L return coming down the property line and extension across, which could happen unless the motion is phrased accurately. Mr. Squires said I did state in the motion "as erected". Mr. Okum said that should be okay then.

    Mr. Borden seconded the motion.

    Mrs. Webb reread the motion, "Mr. Squires moved to grant a variance to allow the fence to stand as erected at 676 Glensprings Drive , 17í-2" from the right of way. This is by definition a fence, but it is a decorative landscaping feature.

    All present voted aye, and the variance was granted with six affirmative votes.

    B. Approval of a variance to allow a fence to be constructed along the full length of the property at Princeton Pike and Tri-County Parkway, 11200 Princeton Road (Oak Hill Cemetery). Said variance is requested from Section 153.482(A)(1) & (3) "No fence or wall..shall project past the front building line of any..structure" and "Fences on corner lots shall not be located in the required setback for the building from the side street line."


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    Jose Castrejon of McGill Smith & Punshon said I am the landscape architect and I represent Oak Hill Cemetery with this request.

    You have the document that shows our request graphically and the reasons for our request. There is an existing 6í high wrought iron fence along the right of way of 747 along the main entry point coming from the south to the second gate. In the past there was a chain link fence that went from that area along Princeton Road and turned into Tri-County Parkway. This fence was removed for aesthetic reasons and as well as the fact that it was falling apart.

    As part of the cemetery business, their job is to keep loved ones in a setting that is also for the people visiting. The fence is there now to provide safety of enclosure and to stop vandalism and people driving in at times when they are not supposed to.

    Now, knowing that the fence north of that second entrance has been removed, there is some concern by the cemetery that vandalism could happen because of the great differential between the street and the cemetery. There could be easy access into the property.

    Therefore we are requesting an extension of the existing wrought iron fence to the south northward and along the Tri-County Parkway into the entrance of the Tri-County Golf Ranch Golf Course. In 30 years, it will be back into cemetery property and will become an additional entrance to the cemetery.

    Currently they feel that a 100 foot section north of that second entrance would be sufficient to stop anybody coming through into the property at off hours and cause problems. The reason we are going for the entire section is because in the future they would like to extend that wrought iron fence all the way along both right of ways to keep that existing character. We feel that the character of the cemetery along that right of way is a great greenbelt into the community from the south and that the fence adds to the character along with the nice trees and the nice green setting as you head northbound.

    For Tri-County Parkway, we are requesting a three-rail vinyl fence along the main entrance to the golf ranch to accent that entrance and give it more visibility, and still stop people from coming around the corners if needed. When that lease goes away, the intent is for the entire property to have a wrought iron-like fence.







    21 OCTOBER 2003



    Mr. Castrejon said because of the cost and the rust issue with true wrought iron, we would have either an aluminum or painted steel fence.

    For that fence to continue all the way through until it passes the curve behind Loweís and be tucked into the landscaping, the intent is to keep vehicles from driving in but still keep the aesthetic value.

    Based on the reasons that I mentioned and answering the questions that you had for us, we feel that in order for the cemetery to secure their property and keep loved ones in the cemetery safe from vandalism, we feel it is important to have some kind of enclosure and still have the ability to provide greenery and burials along this area without having the fence so far back that it would pretty much eliminate some of their growth areas for burials.

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

    Mr. Lohbeck reported that the applicant is requesting a variance to allow them to erect six foot wrought iron aluminum or steel fence and vinyl board type fence up to the right of way on Princeton Pike and East Tri-County Parkway. Sections 153.482(A)(1) and (3) prohibit the fence from being erected in the front yard setback. The applicant is requesting a variance to erect a wrought iron type fence along the entire right of way of the two streets. However it is their intention at this time to only erect approximately 100 feet of wrought iron like fence on the north side of their north Princeton Pike driveway, and approximately 100 feet total of vinyl board fence on each side of the golf ranch entrance on Tri-County Parkway. They would like the ability to erect the wrought iron like fence along the entire frontage in the future. There had been a six foot high non conforming chain link fence along Tri-county Parkway and part of Princeton Pike that was removed previously.

    Addressing the applicant, Mr. Okum said you are requesting the entire variance for all of the fencing now, but you intend to only construct a portion of the fence at this time. Mr. Castrejon confirmed this. It would be in two spots, the north entrance and by the golf course entrance.

    Mr. Okum said so the question is, where is the security issue, if you are only doing part of the fence. Mr. Castrejon said based on the experience of the cemetery staff, people enter cemeteries off hours close to the main entry points. So we felt by providing that little buffer along the north side because of the grade, people want to get back into the driveway as soon as possible. Then if we get into a problem of vandalism, we would extend that fence as soon as we could without having to go through a variance at that time. Part of that variance takes into consideration the existing wrought iron fence.


    21 OCTOBER 2003



    Mr. Castrejon added that it is a way to move forward to try to stop vandalism. Obviously cost is an issue but that is something we would like to do in the future if needed.

    Mr. Squires asked how far the wrought iron fence is from the right of way and Mr. Castrejon said it is only a couple of feet behind the right of way. The intent is to extend it without having it jog back. There are burials planned along the south side of the north entrance which go relatively close to the fence. The Master Plan includes burials close to that fence and as part of their future cemetery growth.

    Mr. Squires said then you would like to extend the fence line two feet all the way around Tri-County Parkway and back to the golf course. Mr. Castrejon responded we want to keep the same distance away from the right of way and keep the same character.

    Mr. Castrejon said we are going to do the wrought iron like fence approximately 100 feet right now. The blue line indicates the future wrought iron as needed. Weíll do 100 feet and there will be nothing and then if needed because of issues, we will extend the wrought iron. Ultimately the vinyl will be completely gone and the entire cemetery will be enclosed by wrought iron like fencing.

    Mr. Squires asked if you are not going to do it now, where is the security issue that we have heard so much about? Mr. Castrejon responded the cemetery staff feels that the security issue is primarily at the main entry points. By extending that 100 foot section, they feel that will eliminate a lot of people going around the gate. It would give us a little extra security, and in time if that doesnít become a deterrent, they will go forward and make the additional extension of that fence, without having to come back.

    Mr. Squires said I certainly applaud you for the wrought iron fence instead of the chain link fence that was there. It will add a great deal to the aesthetics of the property.

    the required setback on Princeton Pike and Mr. Lohbeck answered that it is 50 feet.

    Mr. Okum asked if this section of the cemetery would ultimately be built out similar to the rest of it? Mr. Castrejon answered that the intent is to mimic the historic portion to the south by also adding landscaping to keep that context all the way through. In future plans, some of the other sections will have potential for cremation, etc. but along the north side of the north entrance the intent

    Mr. Okum asked if there were a fence separation between the golf course and the cemetery and Mr. Castrejon answered that there is not. If somebody wants to get in there, there are many ways, but we felt that we could handle the vehicle a lot easier with the fencing. The pedestrian can jump the fence relatively easy.


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    Mr. Okum said personally I donít have a problem with the 100 feet. I do have a problem going back. The reason that the code was written to hold the fences back was to eliminate the similar situation that we have on 747. This is a cemetery which has been there longer than any of us, but on the other hand do I want to see that wrapping that corner and going all the way around and down Tri-County Parkway Ė not necessarily.

    I can understand the applicantís need to extend the fence 100 feet to the north by that driveway gate, but at this time, I donít see any evidence that would justify approving a variance to allow that setback infringement along the entire property. I thought the old fence coming down was a real asset to the development, but it is overgrown and is not being maintained as well as it was at first, and that is something for you to deal with. It looked pretty weedy today.

    I donít see a major issue with the ranch and the vinyl fence to gives it some character of entrance. This would be more of a feature element or landscaping element to the ranch. But to grant a variance at this time for a 6-foot wrought iron-like fence to be that close to the public right of way is pretty much the same as what we have on 747. I think the difference is the width of 747 from the existing businesses and properties, versus what you have at Tri-County Parkway. I would not be in favor of encroachment against that public right of way area. I think we can wait on that. Possibly things would change and the cemetery might want to do something different in that area. Have they begun to sell in that area?

    Mr. Castrejon responded I canít answer that but I do know that the lease line that was established for the golf course was based on the 20 year buildout of the existing campus and that is what set that line. So in 20 years theoretically this area will be full.

    Mr. Borden asked if there is a plan to expand to widen Tri-county Parkway or 747. Mr. Okum responded that I recall those meetings with the engineers and there was no intent to widen Tri-County Parkway.

    Mrs. Pollitt commented that there was some talk about that when we were trying to lessen the traffic on Kemper Road and 747. One of the ideas was to extend Tri-County Parkway going over the railroad tracks behind the John Morrell plant and hooking into Chester Road. The cost estimates were way out of line; it is something we probably would never be able to afford, and we donít have anything on the books for expanding Tri-county Parkway.






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    Mr. Squires said that while it may be true that there is nothing on the books to expand Tri-County Parkway, that doesnít mean that in the future it might be necessary to do that. Having said that, if we allow this fence to be only two feet from the right of way, wouldnít that handicap the city if they find it necessary to do that?

    Mr. Okum said it would be wrong for us to deal with that, because it would be almost a take of property in our decision making process, and Iím not alluding to that at all. I am just saying that we set the code at 35 feet for Tri-County Parkway, and for the ranch fence to be 35 feet back would not be difficult. That would be conforming and they wouldnít need a variance.

    Mr. Borden asked if it was a closed in fence and Mr. Castrejon reported that there is an existing gate that closes. Our intent was to add to the ends of that and knowing that there is a hillside where trucks and cars canít go through, this would be more decorative to add more ambiance to the entrance. Mr. Okum said so you would prefer to keep that as close to the right of way as possible.

    Mr. Castrejon said to clarify some of your comments, what you are stating is that you donít have a problem with the 100 foot fence. The future is where the problem lies.

    Mr. Okum said yes, I would like to see what happens in the future and then have you come back if needed. It may be scaling it down to a lower profile fence, like the city has been placing with more setbacks developed into that. I donít know the rules for placement of graves; can they be in the front yard setback area or not.

    Mr. Castrejon said one of the things that we struggled with was if this was a normal business and we had a box with the property, there would be a real line where we could say that this is the front yard, and we donít block our views or create issues with our neighbors. In this case, we donít have those neighbors and that wrought iron is more of a character fence. You can see right through it, and the intent was for it to be the character without any jogs in it.

    I can see where from Tri-County Parkway down and knowing that there are woods here that will stay, we could incorporate that into the woods a little more. We feel that our front door, that setting that was created, should be extended to that intersection. We also felt it valuable to extend it along Tri-County Parkway. We feel that this is an important element to keep in line.

    I can see your point along Tri-County Parkway, and maybe you can consider going to the intersection of Tri-County and at that point, consider additional setbacks or at least an additional study to determine whether that just goes to where it starts to drop and therefore no fence would be.


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    Mr. Castrejon added we could incorporate some landscaping or shrubbery and leave the woods the way they are and continue some wrought iron fence from the golf course at this entrance to show identity and entry, that it belongs as part of the cemetery. That is something that makes sense to me as a designer, and may satisfy.

    Mr. Okum commented what you are describing is to set a transition point and certainly I wouldnít want that transition point to infringe on that side yard setback distance. So, if the side yard at that corner would be 50í or 35í, the encroachment of that end point would have to be set at that legal limit.

    Mr. Castrejon said so if we come up along the right of way, we would stop before we get to the encroachment into Tri-County Parkway, and wherever that turn is, we stay at that right of way.

    Mr. Okum commented if the fence were set to the corner, it would be 35 feet from the corner and 50 feet from the front, one or the other and if we are right on those numbers.

    Instead of just the 100 feet for now, the applicant is asking to be allowed the encroachment into the setback area along Princeton Pike to a point to be determined at Tri-County Parkway and to keep continuity along Princeton Pike. The fence would be a similar dimension to the existing. Mr. Castrejon added that it will be as close as we can get to it. It wonít be wrought iron, but it will be aluminum to look like wrought iron.

    Mrs. Pollitt added we also would want to keep that conforming to the existing fence along 747 to a certain point. Isnít there an existing landscape mound close to that intersection? Mr. Castrejon answered that it is not really a mounding; it is to raise the sign.

    Mrs. Pollitt said I would agree to keep the fence going the way it is here up to a certain point in the intersection, so they have conformity along their front property line, and deal with the rest of this at another time when it is needed, so it doesnít tie their hands or the cityís hands.

    Mr. Okum commented I think if we used the term "to the legal setback boundary of Tri-County Parkway" that might tie it down. Mr. Borden asked if that would be 35 feet. Mr. Okum said if 50 feet were the legal setback boundary for Tri-County Parkway, then it would be 50 feet. Mr. Lohbeck reported that it would be 50 feet for Tri-county Parkway. Mr. Okum said so the legal setback boundary at Tri-county Parkway is 50 feet, and that would be your modified request.





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    Mr. Castrejon responded that, and that we would be able to deal with that at a future date by either putting a fence along the 50 foot or a combination of landscaping and fencing. Is that something that we would come back to you with? Mr. Okum said yes. Mr. Castrejon said so if in 10 years we need to come back to extend it, we will do that.

    Mr. Okum said we need a discussion on the placement of that item, and the other item is the setback of the ranch vinyl split rail type fence.

    Mr. Squires suggested that they consider the wrought iron-like fence as one issue and the vinyl fence separately, possibly as a conditional use permit, because that will be a permanent fence later.

    Mr. Okum responded as long as the applicant wants to place that into the non-approved setback area, there is no method within our code for us to give them conditional placement of that fence.

    Mrs. Pollitt said you are looking for 35 feet along Tri-County Parkway and 15 feet on an angle, and Mr. Castrejon added and equal on the other side. Is there room for a truck or vehicle to get between the rock posts there to the left?

    Mr. Castrejon answered there is room. What we have done in that case was put some landscape boulders to stop that. The intent of the vinyl fence was more visual, knowing that a lot of people have indicated that they do not know where we are. This is not like the wrought iron. It is more like a decorative element and a part of the landscaping.

    Mrs. Pollitt asked what setback they were requesting. Mr. Castrejon answered because of the way the hill comes down, we want to put it three or four feet behind the existing right of way as part of the hill. If we went all the way in the 35 feet, it would be in the woods and you couldnít see it. If it doesnít serve the purpose, why do the fence. So the intent is to show 35 feet of vinyl fence as part of the entry feature. It would be more decorative than a security issue at that point, because the hillside and trees keep people out. The gate and landscape boulders would keep the cars from skipping around the post.

    Mrs. Pollitt asked if there was a lot of problem with vandalism. Mr. Castrejon responded in the past they have, but recently they havenít. This question came up with the maintenance people when they removed the chain link fence, and we donít want to give anybody any ideas now that it is gone. It is more of a preventative thing as well as an aesthetic thing.





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    Mrs. Pollitt said many of the cemeteries that I know of are fully fenced in. Mr. Castrejon added that the owners of Oak Hill are Spring Grove Cemetery, one of the renowned cemeteries in the world, and they have a combination of wrought iron and stone wall that is eight to 10 feet tall. It is the character; it is the issue of making it appear nice and protecting the assets of the cemetery.

    Mr. Okum said the city is considering some changes in the code that would allow for some conditional use variances where deterioration or aging could be a factor. The split rail could be subject to that consideration. The code is going through some review, and you could ask that we set it aside

    until the conditional use situations are dealt with.

    Mr. Castrejon said so you are saying to take the issue of the vinyl off the table now and reapply as a conditional use. Mr. Okum responded it is not currently part of the code, but there is discussion going on. Mr. Castrejon asked about a time line, and Mr. Okum answered that it is pretty active. We just got the report back from the law directorís office and we are going to be bringing it to Planning Commission for assigning of the committee to review the code. The administration, Planning Commission and the Board of Zoning Appeals are all concerned about it.

    Mr. Castrejon commented so the intent of the conditional use would be to allow in certain zones certain uses like ornamental fencing within the building setback for exhibiting an entrance to the property. Mr. Okum responded I can Ďt tell you for sure, but that is a possibility. It will go through committee, law directorís office, Planning and ultimately Council.

    Mr. Castrejon asked if it would be possible as part of the variance that the existence of the vinyl fence be limited to the lease of that golf course. Mr. Okum said those are the type of conditions that currently we donít have in our power to do.

    Mr. Okum said it is your decision. If you want us to act on it tonight we can.

    Mr. Squires said I am reading from my report from Ken Schneider, and the last paragraph under Conditional Uses says, "Thus placing durational limitations on conditional uses is not a legally sound way to accomplish the cityís goal of being able to grant land uses with time limitations." However, it goes on to say that there are alternatives that the city can work on and the city is presently engaged in those alternatives. "In conclusion the City of Springdale wishes to allow individual land owners to use their land in a manner not provided for in the Zoning Code for a certain length of time, the creation of a new category in the Zoning Code should be contemplated."


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    Mr. Castrejon said I wish somebody from the cemetery could have been here tonight. If my feel is correct, maybe that part of it wouldnít be granted tonight as part of this variance. It is something we would like to do in the future and we would gladly come back and go through that effort and hopefully have the support of staff to move forward in that direction.. Obviously the key is the front right now, and I think that is something I can talk to the people from the cemetery and discuss future endeavors as we move forward. Hopefully it is sooner than later, knowing the golf course people want this sooner than later and they are wiling to pay for it too.

    Mr. Squires said so you want us to consider that 100 foot wrought-iron like fence tonight. Mr. Castrejon answered yes and also the extension of that. Mr. Squires asked how many feet that would be, and Mr. Okum said it would be to the legal setback boundary of Tri-County Parkway.

    Mr. Apke said I am in agreement with approving the extension to the legal setback on Tri-County Parkway for the wrought iron, and although I think that the vinyl fence would be kind of nice, I think a lot of us here would like for it to run with the lease. I donít think I would want to issue a variance because that runs with the land forever. I think that is where a lot of us are.

    Mr. Castrejon commented I understand your concern and your position, and that is something you have to deal with. I am okay with coming back for the vinyl at a later date as a separate issue.

    Mrs. Pollitt moved to grant a variance to allow a wrought iron like fence to be placed on Princeton Pike up to the legal setback boundary of Tri-County Parkway. This would allow them to extend their existing fence line. Mr. Apke seconded the motion.

    Mr. Squires asked if the motion extended to the legal non-conforming setback along Princeton Pike. Mrs. Pollitt answered that is part of the motion. All present voted aye, and the variance was granted with six affirmative votes.

    C. Approval of a variance to allow a fence to be constructed at 479 Dimmick Avenue in the right of way. Said variance is requested from Section 153.482(A)(3) "Fences on corner lots shall not be located in the required setback for the building from the side street line."

    Jeff Martin, 479 DImmick Avenue said I took the chain link fence down and want to put the vinyl fence in the same place. Nothing is changing.

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



    21 OCTOBER 2003



    Mr. Lohbeck reported that the applicant is requesting to place a vinyl fence in the setback of the side street (Rose Lane). The proposed fence is to be located at the right of way line of Rose Lane and extend from the corner of the house along the driveway to the right of way line. It will then extend south along the Rose Lane right of way to the rear property line and then along the new property line.

    Section 153.482(A)(3) requires the fence to be placed 35 feet back from the right of way line. A non-conforming chain link fence had been located in this proposed location previously and a neighboring property to the south has a non-conforming fence there currently. Once a non-conforming use is discontinued or removed, it can only be replaced in compliance with the code. There are no existing variances granted for this property.

    Addressing Mr. Lohbeck, Mr. Okum said if the existing chain link fence on the adjacent property fabric were replaced and the poles were left in place, would they need a variance to maintain that fence? Mr. Lohbeck indicated that they would.

    Mr. Okum said the reason I brought that up is because the fence next to the property is atrocious. It is in an extremely deteriorated condition, beyond the point of painting. I want the board to be aware that this fence is going to be up to that fence. Will that fence that runs back between your properties remain? Mr. Martin said yes.

    Mr. Okum said I drove by your party and observed the poles that had been started. Is there any reason why you could not make it go even with the front of your house?

    Mr. Martin answered if I bring it back to the garage and take it across, I have a brick wall that guards a pine tree that has been there ever since I bought the house and it probably would have to come down. Iím not sure, but the fence probably would come right up to the tree, and its roots would be damaged.

    Mr. Okum said that is if we were matching the corner. The code says 35 feet and it would call for the fence to be back past the corner of your home. The CAGIS drawing shows 35 feet. Mr. Martin said if it goes 35 feet that would be right where the pine tree is setting. I didnít know about the 35 feet coming back, so I didnít look to see how the tree is located, plus the wall that comes around another existing tree.

    Mr. Okum commented that the reason that the new code is written as it is was to eliminate fences on the public right of way line. I would like to see the fence brought back, because ultimately something will happen to that ugly fence next to yours, and that affects the value of your home.




    21 OCTOBER 2003



    Mr. Martin said I look at it as Springdale wanting their residents to keep up their residences, I was going to stay a step ahead and upgrade my fence in the same place.

    Mr. Okum said we saw a white vinyl fence earlier this evening and they are very attractive. I donít know how they will look 10 years from now, but they are very nice. I still would encourage the placement of your fence closer to your building elevation line. Hopefully that would encourage the same thing to occur when the property owner next to you replaces their fence.

    Mr. Martin said I donít know about the pine tree, and it would cut my yard in half as well. Mr. Okum said I donít want to see you cut down the pine tree, but you live on a double lot and there is a lot of space back there in the back. You have a lay area on the west side of your home, and if you brought it back, I donít think you would lose that much yard.

    I am sorry to see that you are trying to improve your property and are faced with this, but on the other hand,

    I see the same situation going on with your neighborís property when that fence needs to be replaced. That is my concern because although you do a spectacular job and put up a nice looking fence, they could want to put a six foot high stockade fence at that same line. All they would have to do is come to the board and say you approved my neighborís fence on the right of way line Ė why wonít you approve mine? I know that a lot of thought went into why they wanted to hold fences back out of the front yard.

    Mr. Martin asked why that is considered frontage on that side? My mailing address is Dimmick; wouldnít my front yard be Dimmick Avenue?

    Mr. Lohbeck reported that is because you are on the corner lot. Mr. Okum added that your house is actually on two lots. I would hope that you could make it work, and I donít want you to take out the tree either, but I donít want to see the fence up against the right of way line and we would ultimately have the same situation next door.

    We see what happened to the chain link fence after 30+ years, and we donít know what the vinyl fence will look like in 10 years. It looks great now, but it may not in five or 10 years.

    Mr. Squires asked the applicant if he had a lot survey and if it were possible that the chain link fence was on his property, and if so he could take it d54own. Mr. Martin said he had not had the lot surveyed. Mr. Okum said for the record, these little tís are typically fairly close to what CAGIS has seen from the aerial surveys that were done, but we donít know that for sure. Mr. Squires comment is valid; although this drawing shows that fence on their property doesnít necessarily mean that it is.


    21 OCTOBER 2003



    Mr. Okum asked if there was another fence that encloses the yard on the other side by the play area. Mr. Martin responded that there is a chain link fence there. Mr. Okum commented that on the CAGIS drawing, it shows it going to a certain point and then stopping. Mr. Martin added that it connects with the other fence that runs along that property line. Mr. Okum said that doesnít project out past the front of the house, and Mr. Martin answered no; it is in the back.

    Mr. Weidlich suggested giving Mr. Martin the opportunity to table this and see where that tree falls relative to coming off the edge of his home before any decision is made. The city stresses planting trees, and I would hate to see a healthy one taken down.

    Mr. Okum responded I would not be opposed to that. That is definitely an issue of topography that would sway my decision on placement.

    Addressing the applicant, Mr. Okum said that would give you the opportunity to physically measure and plot out on a CAGIS drawing exactly where that is. You can bring back or staff could provide us with some photos so that while we are deliberating we can see the physical characteristics of your property that are affecting your request. Would you like to do that?

    Mr. Martin indicated that he would. Mr. Squires moved to table and Mrs. Pollitt seconded the motion. All present voted aye, and the item was tabled to November 18th.

    Mr. Weidlich asked if we are speaking of the 35 foot setback, or off the corner of his home. Mr. Okum answered we have an existing home, and that corner is less than 35 feet. My feeling is that the intent is to go to the corner of the existing home. I think that is a reasonable interpretation. Mr. Weidlich commented I wanted that to be clear to Mr. Martin, going off the corner of his home instead of the 35 foot setback. Mr. Okum added it is truly up to the board. The opportunity is to give justification for why you need your variance to be less than the 35-foot requirement, and help the board with its deliberation by giving us pertinent information.

    D. Approval of variance for the front yard setback from Tri-County Parkway Ė Kemba, 211 Northland Boulevard (GB District). Said variance is requested from Section153.220 which requires the building setback to be 50í.

    William Hub, Architect representing Kemba said Kemba has been doing very well and basically there is a traffic problem in that they canít get enough people in there. Their solution is to add drive through lanes because they can get the customers through quicker rather than having the parking problem outside and having them come in.


    21 OCTOBER 2003



    Mr. Hub added that there really is no place to put additional drives through lanes other than where they are located now. The request is for a variance for the canopy itself, which is about 3 Ĺ feet high and projects 13 feet into the right of way area.

    Mr. Okum opened the public hearing. No one was present, and he closed the public hearing.

    Mr. Okum said this went through Planning Commission and staff review. As a plus, the applicant is moving the driveway further down on Tri-County Parkway. The canopy only is infringing into this setback area. There is a pretty heavy growth of trees along that side as well. The presentation that they made before Planning should help this business to continue. It is a beautiful site; the building is well kept. Tri-County Parkway is the secondary street to its primary frontage. They are not placing something directly on the right of way, and I will be supporting this request.

    Mr. Squires said this will then give you four canopies, and from this drawing it looks like the exit from the fourth one is fairly easy onto Tri-County Parkway.

    Mr. Hub commented that is why we moved the curb cut further away from the intersection and it makes that turn easier. We spent a lot of money to do that; they could have left it the way it was and it would have worked, but not as nice. I have no problem with it.

    Mr. Borden asked if the request was for the overhang of the canopy or the additional drive through. Mr. Hub answered that it is the canopy itself, to keep the weather off the cars.

    Mr. Squires moved to grant the variance to allow an additional drive through canopy to be constructed 36í-6" from the right of way on Tri-County Parkway. Mr. Apke seconded the motion. All present voted aye, and the variance was granted with six affirmative votes.

  15. Mr. Okum said we have a memorandum from the law directorís office. I think the simple way to deal with this is to refer it to Planning Commission and staff. Since Planning Commission generates code changes, a committee would be established. My recommendation would be that it be made up of a Planning Commission member, council member administration, BZA member and staff.

    Where those issues would be determined on conditional uses could be split between Planning Commission and the Board of Zoning Appeals. It could be a referral process, one to the other.



    21 OCTOBER 2003


    X Ė DISCUSSION - continued

    Mr. Borden asked if this proposal would apply to all districts and Mr. Okum said I certainly would hope so. Conditional use permits typically apply to commercial districts. I think there are issues within all districts that are impacted by these types of situations. It does not prevent this board from putting conditions on a variance. It does not say that you canít put conditions on a variance. They are saying that setting a time limit is not an approved method of dealing with it, and this body has done that in the past.

    Mr. Borden said given that, is what we have done in the past enforceable? Mr. Okum responded I would rather say that it has not been challenged.

    We have a lot of work ahead of us this next month. Iím going to get with the chairman of Planning and the administration and see how they want it to work.

    Mr. Squires said the Mayor would like me to announce that Halloween is October 31st from 6 to 8 p.m.


Mr. Squires moved to adjourn and the Board of Zoning Appeals adjourned at 9:17 p.m.

Respectfully submitted,



____________, 2003 _____________________

David Okum, Chairman



______________,2003 ________________________

Fred Borden, Acting Secretary