BOARD OF ZONING APPEALS
NOVEMBER 21, 2006

I.    CALL MEETING TO ORDER

    The meeting was called to order at 7:00 p.m. by Chairman David Okum

II.    ROLL CALL
   
    Members Present:    Robert Emerson, Marjorie Harlow, Bob Weidlich, Bill
                Reichert, and David Okum

    Members Absent:    Jane Huber, Jim Squires

III.    PLEDGE OF ALLEGIANCE

IV.    MINUTES OF REGULAR MEETING OF 15 AUGUST 2006

Mr. Weidlich made a motion to adopt and Mr. Reichert seconded. The minutes were approved with five affirmative votes.

V.    CORRESPONDENCE

    A. Zoning Bulletin - October 10, 2006
    B. Zoning Bulletin – October 25, 2006
    C. Planning Commission Meeting Minutes – October 10, 2006

VI.    REPORTS

A.     Report on Council – Marjorie Harlow

Mrs. Harlow said at the last meeting there was a public hearing for rezoning to transitional overlay the corner of Sharon Road and SR 4 for a medical building. The Police Department will be doing the Food for Fines program again. Two cars, a police car and a confiscated car, are going to be sold, possibly on e-bay. A reception was held last Wednesday night for those who volunteered for the bicentennial celebration. Awards were presented at Council.

B.     Report on Planning – David Okum

Mr. Okum reported there was a request from Jake Sweeney Automotive Dodge, 1280 East Kemper Road, to remove trees and redo landscaping along Kemper Road. This was continued in progress. We put them in touch with our City Planner to work out the dynamics. The view of their building is blocked by some unusual trees. The trees are bushed out and they can’t display their building very well, and on the east portion the trees are obstructing cars from view. That’s not typically an approval by Planning Commission to just remove trees for the purpose of seeing a business.

Mr. Okum continued there was a minor revision to the approved development plan for Tri-County Mall, 11700 Princeton Pike. Tri-County started the renovation and changes to the main entrance at the mall, splitting the Penney’s building in half. There were a few items that were hurting the project and potentially jeopardizing the project from continuing. The items in question were some decorative ornamentation on the exterior of the building and changing the walkways outside from a geometric patterned concrete that was colored to a geometric patterned concrete and asphalt. They also wanted to change out the crosswalks and go to a striping system. Their request was approved. Mr. Okum said the Wal-Mart super center was presented to Council. They will have a full grocery.

Mr. McErlane said they are going from 125,000 square feet to 186,000 square feet.

Mr. Okum said the project will take about a year. Sam’s will stay. It will be good for other businesses. The entrance changes will be significant.

Mr. Okum said the approval of a T-district at West Sharon Road was tabled.

Mr. McErlane stated to accommodate the parking they need for Wal-Mart and the reconfiguration of the parking lot, they have reconfigured the property lines to match up with those.

VII.    CHAIRMAN’S STATEMENT AND SWEARING IN OF APPLICANTS
   
VIII.    OLD BUSINESS

IX.    NEW BUSINESS

A.    Approval of variance to allow sign to be placed 0’ setback from the right of way at 125 Boggs Lane. Said variance is requested from Section 153.531(D)(5) which requires ground signs to be set back 10’ minimum from the right of way.

    Thomas Keller, represented Steve Shulholz, the contractor, said I will be the business partner with Keeho Financial Services, located at 125 Boggs Lane. A law firm is at 123 Boggs Lane. We are asking for a sign identical to theirs just a little ways down from their sign.

    Mr. McErlane said back in July Board of Zoning Appeals granted a similar variance for the same property for a ground sound. At that time the Board of Zoning Appeals agreed to a 1’3” setback from the driveway which split the difference between the right-of-way line and the area that remained behind the sign in the parking lot. This request is asking for 0’ setback from the right-of-way line. It would be our recommendation that if Board of Zoning Appeals agrees with the variance, that it make it consistent with the other at 1’3”. The other item that wasn’t alluded to in the applicant’s request is a requirement in the Zoning Code in the same section that the sign be located a minimum of 25’ from a side lot line. We’re not exactly sure what that dimension is based on the drawing that we have. It would be our estimate that it is ten to twelve feet from the side property line. That would need to be considered also in any variance extended by BZA.

    No public participation

    Mrs. Harlow said I make a motion to approve the request at 125 Boggs Lane for construction of a second ground sign 1’3” setback from the right-of-way and to determine side setback.

    Mr. Reichert seconded.

    Mr. McErlane said I might suggest that the motion be amended to suggest a minimum setback from the side property line.

    Mr. Okum said their request was at 0’ setback. There is already a 1’3” setback. I think Mrs. Harlow’s reason for the motion would be to be in some symmetry to the existing setback of the other sign.

    Mr. Okum said I’m not sure how wide this lot is.

    Mr. Keller said it’s the old Barleycorn’s/Max & Erma’s. The parking is closer to 10 feet or there’s not much buffer there between the street and parking lot. There’s not much grass so I think that’s where the law firm became 1’3” and split the difference. We’re moving north and I think the grass cuts in a little bit.

    Mr. Okum asked, so the physical distance from that and the curb would be the same as the other sign?

    Mr. Keller replied it would be close.

    Mr. Okum asked how much of the building space do you occupy?

    Mr. Keller replied 30%. The law firm occupies the other 70%.

    Mr. Okum a lot of businesses want to put signs up. I guess the law firm didn’t take into consideration that if they wanted to lease that space out they certainly should have allowed for expansion for lease space for that extra 3,000 square feet. On the other hand, I understand that you need people to be able to locate you when they’re looking for you. Right now, I guess the only way you would be located would be by the identification of the law firm. Do you have a separate entrance into your business?

    Mr. Keller responded yes, it’s on the side of the building. The law firm is in the front.

    Mr. Okum asked Mr. McErlane, does this building only have one frontage? Mr. McErlane replied yes.

    Mr. Okum asked did you talk to the law firm about additional space on their existing sign?

    Mr. Keller replied we did but it’s etched limestone so to get that redone costs quite a bit.

    Mr. Okum stated but the construction of a new sign is costly too.

    The law firm was trying to separate them as one entity and us as another so there’s not a conflict of business interest between the law firm and our financial planning business.

    Mr. Okum said when the law firm was here they did indicate that the additional space would be potentially leased out to a financial firm. It would have been a lot easier for us to have the foresight to at least understand that that business would need signage at the same time that we heard the first variance. Mr. McErlane, what is the width of the frontage?

    Mr. McErlane replied, it’s 185 feet along the back with a little offset so I estimate it in the neighborhood of 200 feet.

    Mr. Okum asked do we have other businesses in Springdale, if there was not a setback issue, would the second monument sign be approved?

    Mr. Erlane replied two ground signs are permitted for a commercial property.

    Mr. Okum said so we’re basically dealing with a setback issue.

    Mr. McErlane said the sign face area is only 11 square feet.

    Mr. Okum asked if the sign face was larger, could the applicant put a larger one there?

    Mr. McErlane stated we’d have to evaluate it but I’m sure with 11 square feet they would be permitted to have a larger sign.

    Mr. Okum asked they can’t work within the 1’3” setback?

    Mr. McErlane stated, if you look at the site plan, if the site plan is accurate, there is more room on the sides from the street line to the paved area than there is where the other sign was located. The other sign was directly in front of the building where the parking area is actually closer to the right-of-way line. So there’s no reason why they couldn’t hold to the 1’3”.

    Mr. Okum asked is it practically impossible for them to meet the full setback?

    Mr. McErlane replied yes, because the parking field directly in front of the building is at 10 feet from the right-of-way line.

    Mr. Okum said if a motion were to be approved I would like to see some items in the motion addressed to the type of sign being masonry construction similar to the other sign that is on the site. How will this be illuminated?

    Mr. Keller replied from the ground. It will be the same signage as the law firm.

    Mr. Okum said certainly set a limit on it to the square footage that the applicant has requested.

    Mrs. Harlow asked will there be a new curb cut?

    Mr. Keller replied no.

    Mr. Okum asked is there any reason why you couldn’t stay at the 1’3”?

    Mr. Keller replied I don’t see a problem with that but I’d have to go back to the general contractor.

    Mr. Okum said I think the distance from the curb should be no closer than the existing sign is on the other area. In this case it could actually be back further. We are talking about a tenant that is only 30% of the building versus 70% of the building. The signs are pretty much the same size. If we could just reference the stone craft design in the motion. It’s a little hard for us to hear it because you are representing the builder, not the owner, not the tenant, and you can’t make any decisions.

    Mr. Keller said I’m part of the tenant.

    Mr. Emerson said the signs are the same size. Don’t you think it would look better if they were uniform at the same distance from the road?

    Mr. Keller said I would say the 1’3”, if that would make it uniform, yes.

    Mr. Okum said I’m looking at clear view sight for exiting on Boggs Lane. How much right-of-way space do we have in front of there?

    Mr. McErlane replied it’s approximately 12 feet.

    Mr. Okum said it seems, based on the number of members here, that the 1’3” setback would be part of the motion.

    Mr. McErlane said the sign is approximately 10 feet from the property line which would be a reasonable distance that they could construct it without running into some difficulty due to existing pavement.

    Mr. Okum said I think a 10 foot setback from the side yard should be part of the motion and also that it is a sign similar in construction and size to the other sign on the property.

    Mrs. Harlow made a motion to amend the motion to include stone craft design, side yard set back approximately 10 feet from the property line and be similar in construction to the other sign on the property.

    Mr. Weidlich seconded the amendment.

    Mr. Reichert asked that it read a minimum of 10 feet from the property line.

    The amendment passed with five affirmative votes.

    The motion has passed. Get your building application in and move forward on your project.

B.    Approval of variance to allow the construction of a 24’ x 40’ detached garage at 514 Lafayette Avenue. Said variance is granted from Section 153.105(B) “The garage shall have . . . a maximum floor area of 600 s.f.

    Mr. Okum asked Mr. McErlane, was the applicant notified of the meeting?

    Mr. McErlane replied the applicant and adjacent property owners within 200 feet of the property were notified, and the applicant was also mailed the comments you received from staff as well.

    Mr. Okum reported we had two items submitted

    Mr. Okum asked do you notify the residents of the change of date?

    Mr. McErlane replied no, if they had an interest in speaking for or against they would be here tonight. We can advise the one property owner who had a written statement.

    Mr. Reichert made a motion to table and Mr. Emerson seconded. The motion passed with five affirmative votes.

C.    Approval of variance to allow a fence to be constructed with posts on the outside at 1059 Ledro Street. Said variance is requested from Section 153.482(A)(4) “All structural supports of any fence shall be erected with such supports on the inside of the area to be enclosed . . .”

    Phil Shutte said I live at 1054 Ledro. This house is across the street and I bought it in August. I’m renting it to my daughter. There is a rock wall by the trees. In order to put the fence up with the posts on my side I’m trying to figure how I’m going to get in-between that stuff to put the fence up. The wire fence is sunk down right in front of the rock wall. You would have to get in-between the wire fence and on top of the rock wall which is crumbling to erect that fence. If I could put the post on the other side, I could put the posts up and then the 2 x 4’s on my side and then go down through there with the picket boards. I wanted to build a board fence so you can stagger the boards individually to make it look right because it goes up hill. There was probably 20 years of growth in the back yard. There is a privacy fence across the back and other side. I had hoped we wouldn’t have to do anything over there but once we cleared out all that growth, with that drop off and wire fence, there’s no way. It drops a foot, maybe two feet. The house next door is in foreclosure. The people are gone. Mr. McErlane suggested sending a letter to that address in hopes that it would get forwarded. I did that. About three weeks ago there was a notice that it is in foreclosure. Those trees and the fence are his. The rock wall is behind the trees. I don’t see how I can put the posts up and get the fence up. The ground is not even solid there. The neighbor on the other side has a privacy fence and it is on top of the rock wall. That’s what it would look like if whoever buys this house would clear this stuff out.

    Mr. Okum said let the record show that Mr. Shutte has provided a number of color photographs for the board to view.

    Mr. Okum said it looks to me like you’re going to have to hold the fence inside the tree line.

    Mr. McErlane said the applicant is requesting to erect a 6 foot wood privacy fence along the east property line with the posts located on the outside of the fence. The Zoning Codes states that the structural supports be erected to the inside of the enclosure. The applicant did indicate that he would have difficulty erecting the fence because of the wall and existing fence and trees located along the property line. We have issued a permit to erect the fence but the permit was issued on the condition that it’s erected in conformance with the code. I do recall talking with the applicant about alternatives to that. You may be aware that there is a provision in that section of the Code that allows a property owner to obtain written approval from the adjacent property owner to allow them to put the posts to the outside of the fence. He attempted to do that but it is difficult to do when the adjacent property owner has left the property and it’s in foreclosure.

    Mr. Okum said I recall the old basket weave fences that a lot of the homes in Heritage Hill had that the posts were right in the middle. Some of those new vinyl fences are like that also. I understand the purpose of the Code and this is definitely a blight. I would want to have something up to screen myself from that mess. This is only on this side of the property.

    Mr. Shutte replied there is actually one across the back but we are going to replace it with the exact same thing.

    Mr. Okum said you did notice that that fence has the facing of the opposite way.

    Mr. Shutte said what you can’t see is that there is a rock wall back there too but there is a two to three foot gap. It won’t be a problem back there.

    Mr. Okum said your position is that it is a physical difficulty to construct the fence based on the Code because you cannot physically nail portions of the fence from that low side where you are working against the wire fence and metal. Because of physical constraints on building the wall and getting the posts in, you would have to hold your fence at least the length of the wall internally to get your posts in.

    Mr. Shutte said if I built it the way the Code says I would really have to kick it in in order to be able to stand on solid ground and put the fence up between the posts.

Mr. Okum asked if you were standing on top of the wall could you not physically be able to nail those boards in place?

Mr. Shutte replied to do it the way the Code says I would have to get in-between that and the posts and put the fence up.

Mr. Okum said I could physically do that.

Mr. Shutte said to do it the way you are talking about I will have to come more inside my yard to give me room to work.

Mr. Emerson asked is that white post between the two trees leaning up against the rock wall or is the rock wall to the left of the trees?

Mr. Shutte responded the wall is to the left of the trees.

Mr. Emerson asked is this one of those situations where we’re going to be dealing with a double fence with some area in-between the fences that’s not going to be able to be maintained. It won’t be Mr. Shutte’s. It will be the other guy’s to maintain.

Mr. Shutte said it would look the same as the other side if whoever bought this would take that stuff down.

Mrs. Harlow said I am appalled at this piece of property next door. I’m surprised that the neighbors haven’t been calling and complaining. Can anything be done to make the foreclosure company come in and take care of this mess?

Mr. McErlane replied we are issuing a notice. Unfortunately, it has to go to the owner of record. I had Al Winkle take a look at it. I don’t know if there was any contact information on the foreclosure stuff on the door. If that is the case we will also copy them as well. If it goes to Sheriff’s sale we’ll get in touch with the real estate agent as well and hopefully it gets cleaned up.

Mr. Shutte said I am trying to get that stuff out roots and all. I’ll pretty well take it upon myself to keep that stuff sprayed and killed so it’s not growing up in-between the fences once the fence is up.

Mr. Weidlich made a motion to approve the fence for 1059 Ledro for posts to be erected on the homeowner’s side of the property line and the fence boards put facing the neighboring property. Mr. Reichert seconded.

Mr. Okum said Mr. Shutte, you indicated that you plan to change the fence in the back also.

Mr. Shutte said I have no problem putting that up the way it is now.

Mr. Weidlich said I would assume that when somebody buys that property next door that they would take their fence down and would be looking at yours, which would be to their benefit.

Mr. McErlane said the motion is not limited to the east side.

Mr. Weidlich made a motion to amend the motion to say 6 foot privacy fence on the east property line. Mr. Reichert seconded.

Mrs. Harlow said I notice we have a communication from Tom and Helen Kolde, 1072 Ledro Street. They phoned on November 17 and said they felt the resident should follow the rule so that the fence covers the post in both directions. I think 1072 is pretty far away.

Mr. Okum said I prefer that residents attend the meeting and present their comments in person. There’s no verification that that is the individual on phone messages.

Mrs. Harlow said I’m surprised that they would be so lackadaisical about the property next door to this house but they have strong feelings about posts.

Mr. Reichert said you are going to repair the back fence with the posts on the inside and the side fence with the posts on the outside. You don’t see any problem with the side fence meeting there.

Mr. Shutte said it shouldn’t be a problem.

The motion passed with five affirmative votes.

X.    DISCUSSION

A.        Mr. Okum introduced Randy Campion, the new building inspector.

    Mr. Campion said I have been a building inspector for sixteen years. Before that I was a general contractor.

B.    Mr. Okum said at Planning Commission last week one of the Council representatives requested through the Chair of Planning Commission that the Board of Zoning Appeals look into issues that are in our existing code that are frequently causing difficulty for the board and to identify them and bring them forward with a recommendation to Planning Commission for a change to the code. We all the know the large lot issues with pole barns and garages. We also know that there is a rule issue that involves absolute presentation of the applicant that all the conditions are not able to be obtained in their questionnaire and our deliberation. I have always felt the preponderance of the evidence presented, and it must be presented by the applicant, should support the reason for a variance. It should not be up to us to present that.

    Mr. Okum said Items 1, 2 and 3 in our questionnaire, according to rules we are bound to follow, have to be absolute. My personal feeling is absolute is almost an impossibility. The evidence presented by the applicant should support the reason for the variance and not just basically be “I need it”, or “I know the person personally.” This is the hardest, most difficult board to sit on. Ninety-eight percent of the time we are dealing with residents and residents’ issues. Mr. McErlane and staff are going to put together a history of the past three years. We will need parcel size in that review so we can consider size of dwellings in that district. One thing that is very clear in all the trainings I have been through is that there has to be a practical difficulty that the applicant can’t conform to the Zoning Code and that cannot be a self-imposed practical difficulty. Our code is not perfect. Zoning Codes vary and are changed every several years. Our Zoning Code went through a major overhaul six years ago. We should not be approving variances because we did it before. It should be based on this issue and how it’s presented to us. If there are things in the Code that need to be changed because they are out of proportion, then let’s make the recommendation to Planning so that it doesn’t come onto our agenda. I feel very uncomfortable sometimes when we make some decisions but everyone has a right to come before the board.

    Mr. Okum asked to have the information from staff the week before packets come out.

    Mrs. Harlow said one of my dilemmas is a fence on a corner lot because it doesn’t hold to the same setbacks as their neighbors on the street. They don’t have the same right.

    Mr. Emerson said the corner lot could be dominant address for that street.

    Mr. McErlane said it would be unusual for the setbacks to be different on corner lots. Under today’s code it basically says you have two front yards.

    Mr. Okum said Mrs. Harlow, so you are saying there’s a softening of the non-dominant side yard.

    Mrs. Harlow said no, I don’t think there’s any softening. I think this board has held pretty firm that there are two front yards. I’m saying in my mind it’s always an issue. I think we should look at it.

    Mr. Emerson said two of my friends own corner lots. One of them was taking down an old rusty, chain-link fence and putting up a really nice fence. He had to back it up and it changed the whole view of his house and his backyard.

    Mr. Okum says if you already have a 3’ high existing chain-link fence and somebody wants to put up a nice fence, but I don’t want to see somebody put up a six foot high stockade fence on the corner either. There has to be a weighing of the two that’s fare, but maybe that’s an area that may be an issue of allowing a certain height

    Mr. Weidlich said I have a corner lot too. I think we have to decide each one on its merits. We’ve had some where if people had to come off the end of their house, they’d lose 1/3 to 1/2 of their yard.

    Mrs. Harlow said the other issue is consistency. Recently we had the gentleman in with a shed and there was a picture of another shed. Nothing was said in staff comments about that other shed until Mr. Squires brought it up.

    Mr. Okum said clearly we need a definition in the Code of what is a portable out building or a portable utility pod. Sycamore Township brought forth a change to their code to prevent pods.

    Mrs. Harlow said there is a big difference between a Rubbermaid utility building for your patio cushions and a shed.

    Mr. Okum said a structure is a structure. The Code describes what a structure is. Typically it requires a foundation. Those pods can be pretty significant. The other week a gentleman was building a storage shed built of PVC material.

    Mr. Okum said everybody will get information from staff, go through the Code, identify items you find in the Zoning Code that are issues first. We’ll put together a laundry list of issues and then the next meeting we’ll try to deal with a resolution to the issues.

   
XI.    Mrs. Harlow made a motion to adjourn and Mr. Emerson seconded. The meeting adjourned at 8:30 p.m.

                            Respectfully submitted,



                                               
Date                     David Okum, Chairman



                                       
Date                     Bob Weidlich, Acting Secretary
   

   




Board of Zoning Appeals    November 21, 2006    Page 8