BOARD OF ZONING MEETING
NOVEMBER 18, 2008
7:00 P.M.



I. CALL MEETING TO ORDER

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

II. ROLL CALL

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

Others Present: Randy Campion, Commercial Building Inspector

III. PLEDGE OF ALLEGIANCE

IV. MINUTES OF THE REGULAR MEETING OF 21 OCTOBER 2008

Mrs. Huber moved for acceptance, the October 21, 2008 Board of Zoning Meeting minutes as written, Mr. Weidlich seconded the motion and with a unanimous vote from the Members the October Board of Zoning Appeals minutes were adopted.

V. CORRESPONDENCE

a. Zoning Bulletin – October 10, 2008
b. Zoning Bulletin – October 25, 2008

VI. REPORT ON COUNCIL

Mr. Danbury gave the report on Council: We really did not have anything that we voted on. Tomorrow night we have a resolution that we are going to be approving the Tri-County retail district plan for retail revitalization.

VII. REPORT ON PLANNING COMMISSION

Planning Commission had a joint meeting with Board of Zoning Appeals Members, with nothing on the agenda except the purpose of a training session and a handout; it was conducted by Greg Dale of McBride Dale and Clarion.

VIII. CHAIRMAN’S STATEMENT

IX. OLD BUSINESS

A. The owner of 426 West Kemper Road requests a variance 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…”

Chairman Okum: The representative for this property contacted the Building Department this past week and requested that they be removed from the agenda and that they are not going to proceed. I was contacted by the office and we asked that they send a formal notice in writing saying that they are not going to proceed; we have received that.

Mrs. Huber: I make a motion to remove from the agenda the request of President LLC, Dick Wellman for a gravel driveway at 426 West Kemper Road.

Mr. Emerson: I will second the motion.

Chairman Okum: Is there any discussion on that matter? For the record, there is no one in the audience that came to speak to that matter.

Mrs. Huber polled the Board Members and with a unanimous 7 “aye” vote, item (A) was removed from the agenda based upon vote and request of the applicant.

X. NEW BUSINESS

A. Request for approval of a variance to allow the owner of 11893 Ventura Court to eliminate the garage at the residence, said variance is from Section 153.105(B) “A single two-car garage and related parking area is required.”

(No representatives were present for this request. The request was moved to the end of the discussion.)

XI. DISCUSSION

Chairman Okum: We had a planning workshop last Tuesday and I received a very interesting email from Mr. Diehl that we time these things wrong.

Mr. Diehl: Basically what I said is that I enjoyed the workshop and learned a lot, but I couldn’t help thinking it would have been so much better if I would have had that information prior to coming on the Board. We get our training here by on-the-job training and it would be nice to have some type of orientation before we begin.

Chairman Okum: I agree. We need to look at the things that Greg brought to us in regards to the findings and fact and the one thing that I got out of the meeting is that the law does not allow for financial problems to be justification for a land variance; in any way, whether it will cost them more money or they can’t afford it. There is so much law that would go against the City if we would grant variances based upon that.

Mr. Emerson: I think we have; how many times have we had people say, “Well, that will cost me thousand of dollars; that will cost me more than what I have in the project.”?

Chairman Okum: Bill McErlane is going to work with Anne McBride and I am going to get involved in the process of working on a new application that will say on the very first entry line that financial hardship is not evidence and shall not be presented as part of the case.

Mrs. Huber: What about the driveway, if we would have heard that, he said that it would be move expensive?

Chairman Okum: According to law, and that is the law we sort of have to follow, that does not apply. They should not be able to use that as leverage on this Board. As Board Members we have to make it clear that is not part of the consideration for a variance.

Mr. Danbury: If you think back to the springtime, we had about four or five different people come in and they had fences put up and they had the posts on the outside which is not in our code and then some of these people have limited funds available; I understand that we can’t look at that but to me I can justify it because it will cost somebody a couple thousand dollars even though they had a contractor that didn’t adhere to our standards, our regulations.

Chairman Okum: That cost factor should not be a consideration of your deliberation on that case; it is practical difficulty and practical difficulty is the eight items that we have on our list and that is not one of those. This is the hardest Board in this City to work on. Our Building Department is at a bad position because they are telling people, “I can’t tell you whether you would get a variance or not.” If they make a decision we have to basically stand behind them and support them. If an applicant comes in and out of those eight items they don’t have one item that they could say “yes” on, the Building Department should have the latitude to say to those people, in my opinion at least, they should be able to tell those people there is no chance that you are going to get a variance, but you can still submit it; they have a right to be heard.
The written findings of fact, I am going to need some understanding of how to do that because in Planning Commission I pretty well make most of the motions; I have a set form and I have a process to do that. Some Planning Commissions, some Board of Zoning Appeals the motions are phrased by staff or by a consultant. We are a small city and we have about fifty cases a year, or less that we handle.

Mr. Reichert: If they are granted a variance do they still pay that $50.00 penalty, if a permit was not acquired before the work began?

Mr. Campion: Yes.

Mr. Emerson: After the fact when construction is already done and they find out they are in violation and the resident says, “Well, I hired a professional carpenter and he said he would get all the permits.” I know it is the owner of the property’s responsibility to make sure they get the permit but there is a gap between the person who gets the building permit and the builder.

Mr. Campion: Zoning law is City wide; the reason for this Board is to grant variances for those instances where not everybody fits in the same box, such as a corner lot. If somebody comes in and says, “We put up a shed and it is too close to the property line”, that is not a reason to grant a variance. That is not fair to everybody else in the City.

Mr. Weidlich: In reference to a corner lot, for a fence; just like that young couple that wanted a fence on a corner lot at Kemper and Observatory, in a situation like that they are losing about 30% of their usable yard, by having that fence pulled in. They should not be penalized for having a corner lot.

Mr. Campion: That is one of the conditions, when you look at something you have to look at, “Is this individual being judged harsher than the rest of the City?” And that is when you give your finding of facts and you say in this particular instance we are going to grant a variance because we think that this should be allowed. If you grant enough variances then you have a high percentage of variances it devalues your Zoning Code. If anyone can have a shed wherever they want it essentially you don’t really have an ordinance that deals with sheds. So you have to be careful with what you grant but you should be granting variances in instances where they are deserved, like a corner lot.

Mr. Danbury: One thing you have to look at is Springdale is a very mature community. We have a lot of homes that have been here for sixty, seventy years and in some of the areas the people may not use a builder or a contractor; they may do the work themselves. I am not saying to give a rubber stamp on a lot of things but we have a lot of people that would rather do it themselves and they just may not know that they need to get a building permit. I am not making any excuses for them but we have a lot of areas that are becoming older and the residents don’t have the money to go out and hire a contractor.

Chairman Okum: My recommendation is that we should not give vindication to those variances here, those requests for garage conversions. I think that should be through legislative action, a check through an administrative appeal of the zoning code. Basically we are saying to everyone in the community that if you want to convert your garage it doesn’t matter – we have not established any findings of fact why that person on Wainwright should be approved and the other person on Wainwright shouldn’t, or one person on Summerfield should be approved and another person on Summerfield should not.

Mr. Emerson: I think that the applicant coming in needs to know up front; if they say “I need a variance, because I want it.” Come 2009 when the Board is supposed to be getting tougher, they need to know up front; they should come in here thinking that if they don’t have hardship they are not going to get it.

Chairman Okum: It is not going to be pleasant, there are going to be people that you are going to say “no” to that you don’t really want to say “no” to. Randy and Bob you are Council representatives, your feeling is that that person has been a resident and they are part of the community and I feel the same way. You don’t want to lose residents but you want to give that person that has a rectangular lot – he shouldn’t be penalized.

Chairman Okum: We are now going back to item “A”.

A. Request for approval of a variance to allow the owner of 11893 Ventura Court to eliminate the garage at the residence, said variance is from Section 153.105(B) “A single two-car garage and related parking area is required.”

Chairman Okum: Let the record show that the applicant has not arrived. Can we have a motion?

Mrs. Huber: I move that we grant a continuance until the December meeting for the request to have a garage conversion at 11893 Ventura Court.

Chairman Okum: And at such time action will be taken.

Mr. Weidlich: I second the motion.

All Board Members voted “aye” and the request was tabled to the December meeting.

Mr. Danbury: I just wanted to mention that the gentleman that came in and wanted to have the wood burning stove, it is my understanding that he has black plastic up again.

Randy Campion: He was going to appeal it to a higher court and chose not to. We will have Gordon King look at it and if he is in violation we will cite him. I believe he came back in and was going to get a permit to change it to an addition.

XII. ADJOURNMENT

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

Mrs. Huber moved to adjourn and Mr. Emerson seconded the motion, the Board of Zoning Appeals adjourned at 8:03 p.m.

Respectfully submitted,


________________________,2008 ___________________________________
            Chairman Dave Okum



________________________,2008 ___________________________________
            Secretary Jane Huber