OCTOBER 21, 2008
7:00 P.M.


The meeting was called to order at 7:00 p.m.


Members Present: Randy Danbury, Robert Diehl, Robert Weidlich, Jane Huber, Dave Okum, William Reichert

Members Absent: Robert Emerson

Staff Members Present: Randy Campion, Commercial Building Inspector



Mrs. Huber moved for adoption the regular Board of Zoning Appeals meeting minutes of September 16, 2008; Mr. Reichert seconded the motion and the September Board of Zoning minutes were adopted.


Zoning Bulletin - October 10, 2008
        Zoning Bulletin - October 25, 2008


Mr. Danbury gave a report on the Council meeting.


Chairman Okum presented a report on the Planning Commission meeting.


(At this time, Chairman Okum did swear in all applicants present.)


No items of Old Business were presented.


A. Request for a variance at 1 Sheakley Way (100 Merchant) to locate 2 ground signs less than 25 feet from an adjacent lot line. Said variance is from Section 153.531(D)(5) ”…A ground sign shall not be less than 25 feet from another business lot line…”

Kirk Gregory: My name is Kirk Gregory and I am with the Sheakley Group, the address is 1 Sheakley Way. The sign contractor had placed the sign locations on the plot plan and those were not the areas we were looking to locate the signs. We are asking for those signs to be placed in the location of the site plan submitted.

(At this time, Mr. Campion read the staff report.)

(The floor was open to the audience for comments; no one came forward.)

Mr. Weidlich made a motion to grant the variance for 1 Sheakley Way for 2 ground signs, 6’ tall X 12’ 8”, the south sign approximately 11’ from the east property line, the north sign approximately 0’ from the east property line and 1’ from the north property line.
Mrs. Huber seconded the motion.

Chairman Okum: This is still quite a distance from the right of way?

Kirk Gregory: Yes. We do own the adjacent property on the south end; however the north end is around 200’ from the Tri-County Parkway which is the main road off of 1 Sheakley Way, or the old 100 Merchant Street.

Chairman Okum: Based upon the facts that were presented, Board Members, have all the tests for a variance required by law been considered in your deliberations and findings.

(All Board of Zoning Appeals Members indicated “Yes”.)

Mrs. Huber poled the Board and with 6 “aye” votes, (one member absent) the request for the variance was approved.

B. Request for a variance at 426 West Kemper Road to allow a gravel driveway. Said variance is from Section 153.502(E) ”…Parking areas and access driveways shall be improved with an asphaltic or concrete surface…”
(At this time, no one was present to represent 426 West Kemper and this item was moved to a later time in the meeting.)

C. Request for a variance at 12090 Mallet Drive to allow the
elimination of the garage. Said variance is from Section 153.105(B)
”A single two-car garage and related parking area is required…”

Richard Schmidt: I own the property at 12090 Mallet Drive, I purchased the property approximately 20 years ago, at that time it had already been turned into a family room. I thought they had followed the proper procedures.

(Randy Campion read the staff comments.)

(The floor was open to the audience for comments; no one came forward.)

Mrs. Huber: This was done before you bought the property?

Richard Schmidt: Yes. It is rental property.

Mrs. Huber: And the reason you are here is because of the rental inspections?

Richard Schmidt: That is correct; the rental permit.

Mrs. Huber made a motion to grant a variance from Section 153.105(B); so as to allow an existing garage to remain as living space at 12090 Mallet Drive. Code requires that residence have a garage.
Mr. Danbury seconded the motion.

Mr. Danbury: You have a storage space of 96 s.f.?

Richard Schmidt: Yes.

Mr. Danbury: Based on our code, if you choose to put in a storage unit, please contact the City of Springdale, Building Department and they can tell you where you can build it because that is not a lot of storage space there. There is no charge for most building permits; but if you build it and you don’t get one then you will be charged.

Mr. Weidlich: Is the garage door still functional and are you going to leave it in place?

Richard Schmidt: Yes.

Mr. Diehl: What is your opinion of Springdale’s Rental Program?

Richard Schmidt: My initial opinion was, I was kind of uncertain whether this was something put into place to create jobs, but after talking with the inspector I have a much better feeling about the purpose of this and trying to clean Heritage Hill up.

Chairman Okum: Based upon the facts that were presented, Board Members, have all the tests for a variance required by law been considered in your deliberations and findings.

(All Board of Zoning Appeals Members indicated “Yes”.)

Mrs. Huber polled the Board and with 5 “aye” votes and 1 “no” vote (one member absent) the variance was granted.

D. Request for a variance for 11580 Princeton Pike to allow an impervious surface ratio of 0.856. Said variance is from Section 153.224 “No use in a GB district shall exceed an impervious surface ratio of 0.75.”

Jeff Kanable: I am here representing Thompson Thrift development. Last week we made a presentation to the Planning Commission about our redevelopment for our southeast corner of 747 and East Kemper Road, formerly known as the former BP site; it is also known as the Cassinelli PUD adjoined by three other parcels, the Chili parcel to the east, the Tiffany Glass parcel to the east and the Ponderosa parcel to the south. We were in front of the Planning Commission last week and I am in front of you this week for the corner site only; we are asking for a variance on the impervious surface ratio of 0.856. I have shown a site plan for the corner only and a site plan that represents the overall redevelopment for the entire four parcels and as that site plan represents the impervious surface ratio of 0.75 can be achieved on the entire redevelopment site.

(At this time Randy Campion read the staff comments.)

(The floor was open to the public for comments; no one came forward.)

Mr. Danbury: I would like to make a motion that we grant the applicant at 11580 Princeton Pike a variance under Section 153.224 to allow an impervious surface ratio of 0.856.
Mr. Diehl seconded the motion.

Chairman Okum: Technically they are only building the one site first and then expanding it to the other adjacent properties over time. Based upon that if you were to take this site on its own they are short on their impervious surface ratio. Granting a variance with conditions, as staff has recommended, that they satisfy the maximum impervious surface ratio of 0.75 as presented by the applicant, will put a condition upon the applicant that once they expand out they are going to meet the standard; then the zoning variance would go away because there is a condition on it once change is made.

Mr. Danbury: That would include the Tiffany’s Glass building?

Mr. Kanable: That would not. Phase II would be an expansion of this building and that would include the Tiffany’s building site.

Chairman Okum: A final plan was not submitted to Planning Commission because it is still in final design, so we don’t have a final plan. There are long term leases on the Skyline Chili and the Ponderosa site; I believe another ten years additionally from this date. I would think that they don’t have tenants interested in the Tiffany’s space yet. I am speaking pro to this request because I know that we are only talking a minor amount of the adjustment. It is appropriate for us to put a condition on the variance, that way when it builds out 0.75 they will achieve it and they can go ahead and get their development started.

Mr. Reichert: I am assuming the Phase II would be removing the old Tiffany and adding that on, and are you eliminating one of the entrances.

Mr. Kanable: That is correct. We would eliminate one entrance along Kemper.

Mr. Campion: Staff just wanted to point out that a single owner owns all four of these parcels.

Mr. Diehl: What is your best guess timing on the Phase II?

Mr. Kanable: Spring – 2010, to Summer – 2010 for the developer to deliver those spaces to a tenant who would then come in and build out their space and open the store but we do not have leases in place for that Phase II or that Tiffany Art Glass area, at this time. We have tenants in mind and we are speaking with a variety of tenants but we have not signed any leases.

Chairman Okum: It is critical that the 0.75 is applied as a condition on the variance as they would not be required to reach the standard that is pretty much standard in the City of Springdale and has been for years for this parcel. I think the applicant has done a phenomenal job of making this work. I believe we had six potential variances on the previous request.

Mr. Reichert: Is it necessary to have a condition or is that automatically placed?

Chairman Okum: No. If you are going to put a condition of 0.75 there has to be a motion to amend to incorporate that into the motion. If a variance is warranted it should be conditioned on satisfying the maximum impervious surface ratio of 0.75 when the balance of the property is developed.

Mr. Reichert: I move that the applicant has the condition be placed on the Phase II.
Seconded by Mr. Diehl.

Mrs. Huber polled the Board just on the amendment and with 5 “aye” votes and 1 “no” vote the motion was amended.

Chairman Okum: Based upon the facts that were presented, Board Members, have all the tests for a variance required by law been considered in your deliberations and findings.

(All Board of Zoning Appeals Members indicated “Yes”.)

Mr. Danbury: I have a question. When you are looking at the loading zone at the very end it doesn’t appear that you would have enough room to move a garbage truck or a semi. Is there going to be an easy egress?

Mr. Kanable: We did reposition the dumpster location and we actually clipped a corner of the building to allow for an easier turn radius behind that building for the Phase I only.

Mr. Danbury: O.K. Thank you.

Mrs. Huber polled the Board and with 5 “aye” votes and 1 “no” (one member absent) vote the variance was granted.

B. Chairman Okum: Back on the agenda, we have an item (B) Request for a variance at 426 West Kemper Road to allow a gravel driveway. Said variance is from Section 153.502(E)”…Parking areas and access driveways shall be improved with an asphaltic or concrete surface…”

(At this time, no one was present to represent 426 West Kemper.)

Mr. Danbury made a motion to table the request for variance – item (B).
Mr. Weidlich seconded the motion.
All Board of Zoning Appeal Members signified by “aye” to table item (B) to the next Board of Zoning Appeals meeting to be held November 18th.

Chairman Okum: I believe we need to send a letter to this individual that whether they are here or not we will take action on the request.

(Mayor Webster was present in the audience to speak to the Board concerning the property at 426 West Kemper Road.)

Chairman Okum: Mayor Webster, you could send us a letter and we would certainly appreciate that; we have done that before and would take that into consideration, we do not ever leave a comment from a resident out of the hearing and it will be part of the public record. I appreciate you coming here for this.


Mr. Weidlich: These garage conversions that are ancient, let’s say twenty or thirty years old, is there anything in the works that will allow the resident to not come before this Board?

Mr. Campion: The zoning code doesn’t have any statute of limitation. If it is a violation of the zoning code then it is a violation forever. It is up to the Board how they want to deal with it. If you didn’t want to require them to come in, are you going to grant these every time?

Mr. Diehl: I brought this up at Council and the comment was that they need to get it on the record; the Zoning Committee must approve the variance.

Chairman Okum: You have to give today’s property owner the same rights as a 20 year old resident or a 40 year old resident. You can’t differentiate because they just didn’t know. In the past 12 years I don’t believe we have ordered one dismantling or removing of an item.

Mr. Weidlich: Yes. One gentleman we told him that he had to move his shed a couple of feet; and another gentleman had two sheds on a rental property and we said he had to get rid of one.

Chairman Okum: So there are two. The simplest thing for Council to do is change the zoning code. There are two Council Members that feel that we need to make a change, obviously there must be situations or conditions that drive a decision to approve it. That is the reason Council representation is here, you are the legislators, we are the acting Board on your legislation. We are supposed to be the decision makers on the hardship, but we don’t write the code.
I personally lead toward life safety issues, such as smoke alarms if it is a bedroom space; no dead-ends so there is a way a person can get out in case there is a fire.

Mr. Campion: This problem is going to keep coming up. It is really up to the City what their zoning code reads; what they could do is similar to what you did with the sheds, they could go back and have a ruling that something that was older than “so many” years old as long as you kept the door on the front and you didn’t make it look like it was converted, then maybe staff could approve it under certain conditions and then it wouldn’t have to come before the Board but it still would be a zoning code change.

Chairman Okum: And I would encourage that. If that is the feeling of Council, then they should come up with a game plan and a zoning change that would be appropriate.

Mr. Danbury: I brought this up to Council and it is the general feeling that we need to have some types of checks and balances because some people may go and there is one house right around the corner from me, there are people living in there with no drywall on the walls. It is not a safe condition, we don’t even know if the garage door opens. Council was really reluctant to address this issue. I can bring it up again, but a lot of people said we need to have at least some kind of inspector in there because if we just give this to anybody they can do whatever they want; they can expand their housing space, they can add more bedrooms and this was an issue we dealt with especially with the rentals. There is one on Allen Road and there are at least nine children there. They own the property; they have children living in the garage and children living in the basement.

Chairman Okum: The person who owned a house 25 to 30 years ago or today has the same property rights, whether it was then or now. If we, as the City, do not think that we should allow this then we should change our zoning code. The zoning code has not been updated for ten years – it needs some housekeeping.

Mr. Danbury: I have another item. A gentleman that lives around the corner from me, when we got hit with the storm, my neighborhood was without power for eight days and it just so happened that the telephone pole was right in front of this gentleman’s house and I was going around knocking on everyone’s door saying Duke is going to be here tomorrow night. My neighbor was there and he showed me the fence that he wanted to put up with a gate in front of the house and he said he wanted to take a lawyer and appeal it. I told him he could do whatever he wants; it is his prerogative; if it is in our code that you cannot do that then all you are doing is giving money to the lawyer. He just wants a gate and two panels in his front yard. He may be coming back in.


Chairman Okum: So, with that, I’ll accept a motion for adjournment.

Mrs. Huber moved to adjourn and Mr. Reichert seconded the motion, the Board of Zoning Appeals adjourned at 8:20 p.m.

Respectfully submitted,

________________________,2008 ___________________________________
            Chairman Dave Okum

________________________,2008 ___________________________________
            Secretary Jane Huber