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
cant display their building very well, and on the east portion the trees are
obstructing cars from view. Thats 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 Penneys 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. Sams 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. CHAIRMANS 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 13 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 13. The other item that wasnt
alluded to in the applicants 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. Were
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 13 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
13 setback. I think Mrs. Harlows reason for the motion would be to be in
some symmetry to the existing setback of the other sign.
Mr. Okum said Im not sure how wide this lot is.
Mr. Keller said its the old Barleycorns/Max &
Ermas. The parking is closer to 10 feet or theres not much buffer there
between the street and parking lot. Theres not much grass so I think thats
where the law firm became 13 and split the difference. Were 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
didnt 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
theyre 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, its 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 its 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 theres 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, its 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 were basically dealing with a setback issue.
Mr. McErlane said the sign face area is only 11 ¼ square feet.
Mr. Okum asked if the sign face was larger, could the applicant put a
larger one there?
Mr. McErlane stated wed have to evaluate it but Im sure
with 11 ¼ square feet they would be permitted to have a larger sign.
Mr. Okum asked they cant work within the 13 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
theres no reason why they couldnt hold to the 13.
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 couldnt stay at the
13?
Mr. Keller replied I dont see a problem with that but Id
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. Its a little hard for us to hear it because you are
representing the builder, not the owner, not the tenant, and you cant make any
decisions.
Mr. Keller said Im part of the tenant.
Mr. Emerson said the signs are the same size. Dont you think it
would look better if they were uniform at the same distance from the road?
Mr. Keller said I would say the 13, if that would make it
uniform, yes.
Mr. Okum said Im 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 its approximately 12 ½ feet.
Mr. Okum said it seems, based on the number of members here, that the
13 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. Im 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 Im trying to figure
how Im 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 4s 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 wouldnt have to do anything over there but once we
cleared out all that growth, with that drop off and wire fence, theres 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 dont 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.
Thats 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 youre 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
its 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 its 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 cant see is that there is a rock wall
back there too but there is a two to three foot gap. It wont 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 were going to be dealing
with a double fence with some area in-between the fences thats not going to be able
to be maintained. It wont be Mr. Shuttes. It will be the other guys 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. Im surprised
that the neighbors havent 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 dont 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 Sheriffs sale well 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. Ill pretty well
take it upon myself to keep that stuff sprayed and killed so its 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 homeowners 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. Theres no verification that that is the individual on phone messages.
Mrs. Harlow said Im 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 dont see any problem with the side
fence meeting there.
Mr. Shutte said it shouldnt 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 cant 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 its presented to us. If there are things in the Code that need to be
changed because they are out of proportion, then lets make the recommendation to
Planning so that it doesnt 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 doesnt hold to the same setbacks as their neighbors on the street. They
dont 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 todays code it basically says you have two front yards.
Mr. Okum said Mrs. Harlow, so you are saying theres a softening
of the non-dominant side yard.
Mrs. Harlow said no, I dont think theres any softening. I
think this board has held pretty firm that there are two front yards. Im saying in
my mind its 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 dont 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 thats fare, but maybe thats 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. Weve had some where if people had to come off the end of
their house, theyd 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. Well put
together a laundry list of issues and then the next meeting well 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