BOARD OF ZONING APPEALS MEETING MINUTES

18 NOVEMBER 2003

7:00 P.M.

  1. CALL MEETING TO ORDER
  2. The meeting was called to order at 7:03 p.m. by Chairman David Okum.

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

    James Squires, Robert Weidlich and Chairman

    Okum

    Members Absent: Jane Huber

    Others Present Richard G. Lohbeck, Inspection Supervisor

    Mr. Okum stated that Mrs. Huber called me on Sunday and she is still going through some medical procedures. Hopefully things will be turning around and she will be back next month.

  5. PLEDGE OF ALLEGIANCE
  6. MINUTES OF REGULAR MEETING OF 21 OCTOBER 2003
  7. Mr. Squires moved to approve and Mr. Apke seconded the motion. By voice vote all present voted aye, and the Minutes were adopted with six affirmative votes.

  8. CORRESPONDENCE
    1. Planning Commission Meeting Minutes Ė October 14, 2003
    2. Zoning Bulletin - October 25, 2003
    3. Zoning Bulletin Ė November 10, 2003

    Mr. Okum said I suggest you pay attention to page 5 in the November 10th bulletin. . The decision on the board was reversed due to findings of facts, which is a very key ingredient to a motion. Possibly we could generate some boiler plate beginnings when we start with the Zoning Code review and come up with some wording that would make sure that the findings and facts are included in the motion. We would want findings and facts in information or expressions of concern or approval in the discussion to be a part of the minutes.

  9. REPORTS
    1. Report on Council Activities Ė James Squires

    Mr. Squires said Council passed an ordinance to extend the Rumpke waste collection contract for a period of one year. After that we intend to put that up for bids.

    We authorized an Enterprise Zone agreement between the Hamilton County Commissioners and Poster Service USA/Frame USA. The property on Northland Boulevard (previously NAPA) will be occupied by a Frame USA, Inc. which makes parts of picture frames. They will be shipping these all over the United States. The building will be remodeled and repainted.

    BOARD OF ZONING APPEALS MEETING MINUTES

    18 NOVEMBER 2003

    PAGE TWO

    REPORT ON COUNCIL ACTIVITIES Ė continued

    Mr. Squires stated that Council also had the second reading of Resolution No. 16-2003 to increase the income tax to 1 Ĺ% from the present 1%. One resident spoke in opposition to that. We are scheduling district meetings. District 1 is November 25th; District 3 and District 4 are January 14th and 15th. I invite members of this board and our citizens to attend these meetings. We need input from all the people on this.

    The OPWC loan program has loans at 0% interest, and the City borrowed to fix the streets in the Springdale park subdivision. We also wanted to include Northland Boulevard in that as well, but we received a letter that we could not include Northland in that program because the streets were not contiguous. Therefore, we will have to put off the repair of Northland Boulevard.

    B. Report on Planning Commission Ė David Okum

    Mr. Okum reported that the Best Western was purchased from the bank that had held it for a number of years. The applicant wanted to put a storage trailer in the rear of the property nestled up against one of the dock areas. The applicant agreed to a one-year use for that trailer to be there to store his tables and chairs until he can afford to put an addition on the building or make adjustments internally. He currently is renting them and bringing them in for each event. Since it was a modification to the PUD, we pointed out that the exterior lights did not conform to the original PUD and that he must bring those in conformance (there was a problem with glare).

    We reviewed the redevelopment of a portion of the old Roberds site. The main entryway would remain, and it will be an Ashley Furniture Store. The existing sign box will be reused and the existing pole sign on l275 will be utilized and there will be an individually lit sign on the east side of Commons Drive. There was some concern that the applicant was not doing an adequate job of screening that east side of Commons. They will have a double truck dock, a dumpster container and compactor and a ramp area with a double garage door. Staff will deal with screening the mechanical units on the roof. The yellow band will be eliminated, and it is going to be a dark beige or taupe.

    We discussed the Zoning Code review. The chairman of Planning put it in my hands to put together a small committee. We will have a member of the Board of Zoning Appeals, myself and an alternate, the same with Planning Commission with alternate, council representative, administration, the city planner and the law directorís offices will review the final submission.

    Mr. Squires commented I have not heard from the President of Council on appointments to the boards, but some of us have terms that are expiring at the end of this month. I would appreciate your letting me or Mrs. Pollitt know if you wish to continue on this board so we can report that to council president. Mrs. Pollitt added that the mayor and I talked about that after the last council meeting. Mr. Weidlich has expressed an interest in continuing on the board, and I have put his name forward.

    BOARD OF ZONING APPEALS MEETING MINUTES

    18 NOVEMBER 2003

    PAGE THREE

    REPORT ON COUNCIL ACTIVITIES Ė continued

    Mr. Okum said I am a council appointment for Planning Commission. Mrs. Pollitt added that you are a Planning Commission appointment to this board. The mayorís appointment is Jane Huber, and I believe he has spoken to her. Mr. Apke is a Mayorís Appointment and he has talked to the mayor and Mr. Squires is term of office, and his term is up this month. I think we are going to discuss this tomorrow evening. My understanding is we have to have a decision before November 30th. We will have a special meeting on December 1st for the swearing in of the elected officials. Mr. Okum said I hope I see everybody here next month.

  10. CHAIRMANíS STATEMENT AND SWEARING IN OF APPLICANTS
  11.  

  12. OLD BUSINESS
    1. Approval of variance to allow the construction of a wood utility building to be located three feet from the south property line, and four feet from the west property line at 695 Cloverdale Avenue. Said variance is requested from Section 153.067(B) ".must not be less than five feet from any rear or side lot line." Ė tabled 10/21/03

Les Blankenship said we purchased our property 36 years ago this month, and have been fairly happy there. I would like to talk about my first request from the Building Department. Had I known a little more then, we probably wouldnít be here tonight. The only request I made previous to this was to build a garage on the back of the lot. At that time I was told by someone in the Building Department, he isnít here tonight, that since I had an attached garage, the only thing I could do was to add to that garage. I could not build a detached garage. So, I rented a garage over the years and spent thousands of dollars. I didnít build a garage or question it. Down the street a few years later a house was built with a two car garage and some years later there appeared a detached garage on that lot. So the next time I was at the city building, I asked someone in the Building Department how they did that, and he said with a variance. I was never told that there was a variance possible for something like that.

So this is the first variance that I have asked for. I have talked to all my neighbors and no one has a problem with what I am asking for. It is not going to obstruct anybodyís vision. I am asking for less than one foot from the west line and less than two feet from the south line.

The base where the old building stood is a lot better and closer to the corner. The further out I go the more fill I would need and the more expense it would be, so I would like to get it there to minimize expenses. It is a firmer base because there is less fill that would be required.

I had a survey done, and the building on the property that was owned by Mrs. Huber is approximately one foot from my property line. The overhang is eight inches, which means that when it rains the water runs into my yard. That has never been a problem to me and still is not, and Look at it every day.

BOARD OF ZONING APPEALS MEETING MINUTES

18 NOVEMBER 2003

PAGE FOUR

  1. UTILITY BUILDING Ė 695 CLOVERDALE AVENUE
  2. Mr. Blankenship added I am not asking for a foot; I donít want a foot; I want room to go around the building and keep it nice. It probably is less than a foot variance to the west, and less than two feet to the south, if this variance is granted. And, if it isnít granted, there probably wonít be a building there.

    Mr. Okum said for clarification, you had asked for a garage earlier, but your request tonight is for a storage shed. Mr. Blankenship confirmed this.

    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 construct a 10í x `12í utility building three feet from the rear lot line and four feet from the side (west) lot line. Section 153.067(B) requires a five foot setback from side and rear lot lines.

    The applicantís responses to the questions on the reason for variance form do not provide any reason for this request. The applicant does not indicate any unusual circumstances with regard to topography, trees or shape on his property that causes the proposed location to be the only location possible.

    Denial of the variance would not prevent the applicant from erecting a utility building in compliance with the code.

    The applicant indicates that the fence is located two feet inside of his property to the rear and one foot inside the property to the west.

    The applicant must provide a survey drawing or show survey markers to establish the setback of the proposed utility building regardless of his securing the variance. Lacking the furnishing of a survey or survey markers in the field, the fence line will be presumed to be the property line.

    The applicantís property consists of four 35í wide parcels, a total of 140 feet in width. Staff recommends denial of this request because there is no practical difficulty in complying with the required five foot setbacks.

    Mr. Blankenship presented copies of the survey of his property. Mr. Okum said so the unit would appear closer to the fence, because your property line is actually on the other side of the fence. Mr. Blankenship answered the property line tapers down to the corner on the south side. On the west side, the property line is west of the fence. I would have the fence 3+ feet from the south line, and 4+ feet from the west line.

    Mr. Okum said so there is a chance that you could accomplish the five-foot setback on the west. Mr. Blankenship said possibly, but I would like to not be locked into that if possible. There is a tree in the corner so I might want to move the shed further away and leave the tree and its shade. I donít like to cut down trees.

     

     

    BOARD OF ZONING APPEALS MEETING MINUTES

    18 NOVEMBER 2003

    PAGE FIVE

  3. UTILITY BUILDING Ė 695 CLOVERDALE AVENUE
  4. Mr. Blankenship added that this is old Springdale, and there are a lot of sheds that are closer than five feet to the property line.

    Mr. Borden wondered if the tree you mentioned was between the property line and the proposed shed, and Mr. Blankenship answered that it would be.

    Mrs. Pollittt asked the type of flooring he would put in the shed, adding that she had a concern about the area being level.. Mr. Blankenship answered I would want pressure treated two by fours, a good quality. I would put in whatever the builder requires.

    Mrs. Pollitt asked how many feet out from the west does your lot stay level? Mr. Blankenship answered probably 10 feet out from the corner it is fairly level. Mrs. Pollitt wondered about from the south property line and Mr. Blankenship responded about eight feet, and then it slopes down.

    Mr. Okum said so we understand, no matter what you will need to do some fill work to get it on a level grade.

    Mr. Squires said you are talking about the rear and side lot lines. You are not using the fence as your reference point. Mr. Blankenship said no, I am talking about property lines only.

    Mr. Okum said the survey shows that the fence is approximately halfway between the drawn in shed and the property line. According to that survey there would be 1í-6" on one side of the fence, and the shed would be 1í-6" from the other side of the fence.

    Mr. Weidlich said you said you would have to put in additional fill to meet code. Mr. Blankenship responded to the best of my knowledge. Until I talk to a professional, I am not positive about this. Mr. Weidlich asked the depth of the fill he thought he would need, and Mr. Blankenship answered six inches. Mr. Weidlich commented so you would need fill regardless, or up to six inches to meet code.

    Mr. Okum said so we understand this clearly, it is not a code issue; it is a matter of having a level floor. Mr. Blankenship responded having it level and the appearance. I donít think it is a code issue; it is an expense issue when you start putting fill in.

    Mr. Weidlich commented what I was getting at is that the amount of fill to put it where Mr. Blankenship is asking versus meeting code requirement wouldnít be much different.

    Mrs. Pollitt said our lot is not level, and we put up an excellent shed on pressure-treated runners, which is very strong and looks very nice. I think that would be a better way to go than to put fill in, because you donít know that it will stay and it also may change the way the water flows on the rest of your property.

     

     

     

    BOARD OF ZONING APPEALS MEETING MINUTES

    18 NOVEMBER 2003

    PAGE SIX

  5. UTILITY BUILDING Ė 695 CLOVERDALE AVENUE
  6. Addressing the applicant, Mrs. Pollitt said I feel that you have enough property there that you can stay at five feet on each side without needing a variance and still be able to construct a shed that will serve you very well.

    Mr. Blankenship said I want to save as much of my yard as possible; I like green space.

    Mr. Squires said on the staff comments it indicated that you did not show any unusual circumstances (topography, trees etc.) that would cause the proposed location to be the only location possible. The second question is, "Denial of the variance would not prevent the applicant from erecting the utility building in compliance with the code." Will you comment on that? If the variance was denied, could you still put the shed up and be in compliance?

    Mr. Blankenship responded I would put up a cheaper shed that would be temporary, so that when and if we move or have to leave, we would be able to tear it down. I wouldnít want to put up an expensive wood barn. I would try to get a permit for something cheaper. There are a lot of cheaper buildings out there.

    Mr. Squires said even if it were in compliance, do you see that detracting from your property; even the expensive shed? Mr. Blankenship answered if I have to put it up out in the middle of the yard, I probably would put up something less expensive, a temporary shed that could be torn down. Mr. Squires commented we are not talking about the middle of the yard; we are only talking about a couple of feet each way.

    Mr. Blankenship answered I understand. We are only talking about less than one foot one way and less than two feet the other way. I know there have been variances given all over town for things such as this. If I had been properly informed many years ago, I wouldnít be here tonight; I would have space.

    Mr. Squires said I donít want to belabor the point, but I still would like some more comment from you. Letís assume that the worst case scenario; you were denied the variance. Would that prevent you from erecting the same utility building, the expensive one, and be in compliance? Why would you want to erect a less expensive one?

    Mr. Blankenship answered I donít think I would put one up; I would have to think about it. Like the garage down the street, I was told I couldnít build one, and there is a two and one-half car garage behind the house that has a two car garage, and 105 foot lot as opposed to 140 foot lot. There was a variance granted for that garage I am sure.

    Mr. Blankenship added first of all I donít understand the code, why the 5 feet from the property line rule exists. It is property I bought and paid taxes on and I am denied the use of that much. I donít understand it, and I would like an explanation.

     

    BOARD OF ZONING APPEALS MEETING MINUTES

    18 NOVEMBER 2003

    PAGE SEVEN

  7. UTILITY BUILDING Ė 695 CLOVERDALE AVENUE
  8. Mr. Okum said codes are typically written for the public peace health safety and welfare. We are not the authors of the code. Mr. Blankenship responded someone is. Mr. Okum continued that there have been setback requirements on sheds on lots, as long as I can recall. There are instances where trees are in the way, and I think that is what the board has tried to do, try to find reasons that would justify a variance to the code. There is a set of rules that the board is sworn to try to live with, and those rules say if it can work elsewhere, and you have an elsewhere that it could work, there is no reason to approve a variance.

    I personally have a problem with the issue of the distance between the fence and the shed in terms of serviceability and maintenance. The closer the shed is to the fence the less room you have to maintain and care for it. That works for the rear of your lot as well as the side of your lot. If you look at the survey that was done, your fence is not on your property line on the rear or on the side, which brings the fence closer to the shed and gives even more reason for you should try to make every effort that you can to make this shed work at the setback requirements.

    I cannot come up with any reasons why I would support a motion to vary this because of those issues in themselves. I didnít build this the way it is; the fence is there. If the shed were put at five feet, you would have 3í-6" on the west side to go between the fence and the shed for maintenance. On the back side you would have approximately four feet to go between the shed and the fence for maintenance.

    Mr. Blankenship responded I assure you that this property probably is one of the best if not the best maintained property on Cloverdale Avenue.

    Mr. Okum said I have gone by your home and I understand that. The concern is for maintaining the shed itself. What typically happens is when there is space between the shed and the fence, maybe five or 10 years from now if you decide to sell the house, it becomes a very good collection point for rubbish to fall between those two points. I think part of the intent of the authors of the code was to eliminate the rubbish that typically gets piled against sheds on the property lines. This is very very common.

    Mr. Blankenship responded next door there is a shed that is well within code. Piled around it is rotting lumber, weeds, brush, rats, raccoons, possums Ė there is everything under that shed. It has been there for years. Directly behind that on Smiley is the miniature Rumpke Dump that has been there for a year and one-half. It is a vacant lot with debris in the yard. .

    Mrs. Pollitt said I would have a problem supporting that also. You made a comment why canít you use that piece of your property up to the property line. If you wanted to build a shed right on your property line, and your neighbor wanted to build a shed in the same spot in his yard right on the property line, that would present a problem.

    BOARD OF ZONING APPEALS MEETING MINUTES

    18 NOVEMBER 2003

    PAGE EIGHT

  9. UTILITY BUILDING Ė 695 CLOVERDALE AVENUE
  10. Mr. Blankenship said it hasnít been a problem behind me. Mrs. Pollitt responded I am sure that shed was built before the code came into being. The lady that lived behind me had roosters, and I found out that the roosters were grandfathered in because he had lived there longer than I had and he was allowed to stay.

    That is like your shed; it has been there probably longer than you have. Mr. Blankenship answered it was rebuilt several years ago. Mrs. Pollitt responded when they rebuilt it they would have had to come in for a permit. I know the person behind me was building a shed of some type; I donít think he had a permit or a variance and needed both, and the City came in and made him take it down.

    Mr. Blankenship commented if I had wanted to build it five feet from the property line, I wouldnít have had to come to you at all. What are the limitations on where I can build it in terms of setbacks. Mr. Lohbeck reported that it would need to be five feet from the property lines and no further than the front of your house.

    Addressing the applicant, Mr. Squires said if a resident comes before us with a variance request, it is by law up to that resident to prove to us beyond any doubt that a denial of the request would present undue hardships to the resident. I have listened to the testimony tonight, and I still wonder why the denial of this variance would present undue hardships that you couldnít live with. That is what we are trying to get at, and as unfair as it may seem, that is the way it has to work.

    Mr. Blankenship commented if that is the way it has to work, I guess you donít have any choice, do you. Now if I had a tree planted. Mr. Squires said yes, that would be an undue hardship or something like that. Mr. Blankenship responded if I come back next year with a tree there, it would be an undue hardship. Is that correct?

    Mr. Okum responded anything dealing with topography or a tree, that would generate an exception or one reason for granting the variance, but just one reason wouldnít justify a variance.

    Mr. Blankenship said I feel that the topography of the yard is one reason that I have. Mr. Okum responded we understand that, but there are methods for dealing with that. The board canít govern their decision based on the quality of the shed that you want to build there. Maintenance and upkeep is handled by our property maintenance code. If it meets code, we donít govern that. Mr. Blankenship asked about metal buildings, and Mr. Okum said as long as you get your permit, that would be fine.

    Addressing the applicant, Mr. Squires said if we deny your request, we have to have a legitimate reason, because you can appeal this to the Court of Common Pleas. We have to state why we 0ould deny that variance. The point is it is really up to you to show us why the denial of this variance would cause you some undue hardship.

     

    BOARD OF ZONING APPEALS MEETING MINUTES

    18 NOVEMBER 2003

    PAGE NINE

  11. UTILITY BUILDING Ė 695 CLOVERDALE AVENUE
  12. Mr. Blankenship responded I canít see any undue hardship, but there would be undue expense. Iíve gone to enough expense. Had I known this, I wouldnít have had my place surveyed. I wouldnít have had to.

    Mr. Squires commented I would hate for you to put up a cheaper shed. You have a beautiful piece of property there; I have been by there and admired it. Mr. Blankenship said we get awards every year for the yard. Mr. Squires added to put something up that is not up to your standards is not you. Mr. Blankenship said I worked in quality control all my life, and I donít buy any junk. Maybe temporarily I would. Mr. Squires said I donít even see you doing it temporarily.

    Addressing the applicant, Mr. Okum said had you not done the survey, the fence line would have been your property line and the shed would have had to have been five feet from there if this variance were denied. So at least you get that extra foot and one-half to two feet closer to the fence.

    Mr. Squires moved to deny the variance because the applicant has not shown us why erecting the utility building in compliance with the code would cause any undue hardship. Mr. Apke seconded the motion. .

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

    Addressing the applicant, Mrs. Pollitt said if you have someone come out and talk with you about building on site, I think you will be really impressed with what they are able to do.

    Mr. Blankenship responded I will be perfectly frank. I donít like sheds but at this point in my life I need help in the yard. I have a riding tractor and I need somewhere to put it. Thatís the only reason.

    Mr. Okum suggested that after the meeting Mrs. Pollitt could share the name of the contractor that did their shed.

    B. Approval of a variance to allow a fence to be constructed in the right of way at 479 Dimmick Avenue. 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." Ė tabled 10/21/03

    Mr. Okum reported we have a letter from the applicant stating that due to a work conflict, he would like this to be tabled to next month. Mr. Apke moved to table to December and Mr. Squires seconded the motion. All present voted aye, and this was tabled to December 16th.

  13. NEW BUSINESS
  14.  

     

    BOARD OF ZONING APPEALS MEETING MINUTES

    18 NOVEMBER 2003

    PAGE TEN

  15. DISCUSSION
    1. Mr. Lohbeck reported that on September 16th, we had a request to convert a garage on Van Camp Lane that was tabled for 90 days. That is supposed to come up next month.

    Mr. Okum said we will have to have it on the agenda, and give notice to the applicant that there have been no changes to the Zoning Code at this time. If they want to attend that meeting, it will have to be on the agenda. We canít say what action will be taken, but it will have to be on that agenda.

    Mr. Lohbeck responded the thing is we need to do something; that space is being utilized without a permit. Mr. Okum agreed that we have to take action. The Zoning Code issue will not be resolved by December, because you have 90 days after a motion of consideration. In all likelihood, they will have to come forward, because it is not fair to the Building Department to carry it forward. I will talk to the administration and see how they feel about it, but we do need to bring it back on the agenda for the next meeting.

    Mrs. Webb asked about writing a letter to the owner of the property, and Mr. Okum responded to tell her that there has been no action on the code but that it has to be on the agenda.

    Mrs. Pollitt said I started thinking about the last couple of meetings where we have had people representing businesses here. These people have already been through administration and the Planning Commission and are here for a variance. Planning and the administration have dotted the iís and crossed the tís. Would it be possible to move them to the front of the agenda, so they donít have to sit here until 9:30 p.m. to have a five-minute discussion?

    Mr. Okum said I understand what you are saying. You canít change the rotation of when they made their application, but as chairman, if any board member asks for an item to be moved forward on the agenda, we can do that. You have to remember that there might be a resident out there that may be pushed off as well to give benefit to the business representative. You have to weigh those things. If you do bring it to the chairís attention, I have no problem entertaining the consideration of the board to make that adjustment. Mrs. Pollitt added I know those are paid consultants there. Mr. Okum responded as professional people they go to other board meetings in other cities that are much more intense. We donít want to inconvenience the general public any more than we need to.

    Mr. Okum said the Planning Commission, the City Planner and staff do a phenomenal job of packaging changes and revisions in projects. On the other hand, the Code is written the way it is for la very important reason. I donít want to have this board ever make the assumption that just because Planning Commission approved it, it is a rubber stamp that this board should approve. It shouldnít be. If it comes to this board with a recommendation from Planning, it still is at this boardís discretion whether we accept that or not. We need as much information from the applicants as to why those variances are necessary. We are seven additional ayes involved in that process, and that is important to the City of Springdale.

    BOARD OF ZONING APPEALS MEETING MINUTES

    18 NOVEMBER 2003

    PAGE ELEVEN

    DISCUSSION Ė continued

    Mrs. Pollitt said I would like to see a lot more participation from all members of the board. I looked back through some of the minutes, and I do quite often and Mr. Squires speaks up quite a lot, but I think we all should be more vocal so it doesnít always fall on a few. I think Jim and I are representatives from Council and this board belongs to Mr. Weidlich and Mr. Borden and Mr. Apke and Mrs. Huber. We are here because we sit on Council and we are here to complement the board.

    Mr. Okum said it is important that the applicant knows that each of the board members understands their request. That does take comment and communication and questions from the board members. I rarely gavel down questions because I want to make sure that everybody is clear and that the applicant has the opportunity for a perfectly fair hearing. There is never a question from this board that the applicant wasnít given an opportunity to speak. Tonight I thought we had good discussion.

  16. ADJOURNMENT

Mr. Squires moved to adjourn and Mrs. Pollitt seconded the motion. Board of Zoning Appeals adjourned at 8:17 p.m.

Respectfully submitted,

 

______________________,2003 _________________________

David Okum, Chairman

 

 

_____________________,2003 __________________________

Fred Borden, Acting Secretary