BOARD OF ZONING APPEALS MEETING MINUTES

16 DECEMBER 2003

7:00 P.M.

  1. CALL MEETING TO ORDER
  2. The meeting was called to order at 7:00 p.m. by Acting Chairman Fred Borden.

  3. ELECTION OF OFFICERS
  4. Chairman -Mr. Borden said that he talked to Mr. Okum, and he is interested in continuing to serve as chairman. Mr. Apke nominated David Okum and Mr. Squires seconded the nomination. There were no other nominations, and Mr. Okum was elected by acclamation.

    Vice Chairman – Mr. Squires asked Mr. Borden if he wished to continue, and Mr. Borden indicated that he did. Mr. Squires nominated Fred Borden and Mr. Weidlich seconded the nomination. There were no other nominations, and Mr. Borden was elected by acclamation.

    Secretary – Mr. Borden said Mr. Okum talked to Mrs. Huber, and she is interested in continuing as secretary. Mr. Squires nominated Jane Huber and Mr. Apke seconded the nomination. There were no other nominations, and Mrs. Huber was elected by acclamation.

  5. ROLL CALL
  6. Members Present: Bob Apke, Fred Borden, Marjorie Pollitt

    Jim Squires, and Bob Weidlich,

    Members Absent: Jane Huber and David Okum

    Others Present: Richard G. Lohbeck, Inspection Supervisor

    Mr. Borden said Mr. Okum is out with the flu and Mrs. Huber is still recovering from her medical treatments and she expects to be back next month.

  7. PLEDGE OF ALLEGIANCE
  8. MINUTES OF REGULAR MEETING OF 18 NOVEMBER 2003
  9. Mr. Squires moved for approval and Mr. Apke seconded the motion. All voted aye, and the Minutes were approved with five affirmative votes.

  10. CORRESPONDENCE
    1. Planning Commission Meeting Minutes – November 11, 2003
    2. 11/25/03 Letter to Mrs. Maymir re requested variance for property at 11720 Van Camp Lane
    3. 12/5/03 Letter to Mr. Martin re variance for property at 479 Dimmick Avenue
    4. Zoning Bulletin – November 25, 2003
  11. REPORTS
    1. Report on Council Activities – Jim Squires
    2. Mr. Squires reported that Council reappointed or approved the Mayor’s nominations for Planning Commission and this board.

      BOARD OF ZONING APPEALS MEETING MINUTES

      16 DECEMBER 2003

      PAGE TWO

      REPORT ON COUNCIL ACTIVITIES - CONTINUED

      Mr. Squires stated that Council accepted a permanent easement from Wimbledon Apartment for the veteran’s memorial site so that the memorial can be much bigger than originally planned. Council chose a preferred developer, Myers Y. Cooper Bergman Group to handle the redevelopment of the Springdale downtown.

    3. Report on Planning Commission – David Okum

    No Report

  12. CHAIRMAN’S STATEMENT AND SWEARING IN OF APPLICANTS
  13.  

  14. OLD BUSINESS
    1. Approval of variance to allow a fence to be constructed at 479 Dimmick Avenue in the right of way. 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." Tabled 11/18/03

    Jeff Martin, owner of the property said I want to thank you for tabling this last month. I am a teacher, and had a parent conference that night.

    I was able to take some photographs of the fence (passed them around the members). Last time, we discussed the fence possibly cutting into the existing pine tree. I propped the fence up to show you where it would come in relation to the pine tree. As you can see, it would come right into that pine tree and leave a 3-foot gap on the other side of the tree.

    Mr. Lohbeck reported that the applicant is requesting to place a vinyl fence in the setback of the side street (Rose Lane). The proposed fence is to be located at the right of way line of Rose Lane, and extend from the corner of the house along the driveway to the right of way line. It will then extend south along the Rose Lane right of way to the rear property line, and along the new property line. Section 153.482(A)(3) requires a fence to be placed 35 feet back from the right of way line.

    The non-conforming chain link fence had been located in this proposed location previously, and the neighboring property to the south has a non-conforming fence there currently, Once a non-conforming use is discontinued or removed, it can only be replaced in compliance with the code. There are no existing variances granted for this property.

    Mr. Borden opened the public hearing asking anyone present to speak. No one came forward, and he closed the public hearing.

    Mrs. Pollitt asked the applicant how far back into the building would the fence go if it was set as it is in this picture. Mr. Martin responded that the fence is set back 35 feet and goes past the corner of the house 2-2 ˝ feet. Mrs. Pollitt commented so that would comply but would put you in the middle of the pine tree.

    BOARD OF ZONING APPEALS MEETING MINUTES

    16 DECEMBER 2003

    PAGE THREE

    IX A FENCE IN RIGHT OF WAY AT 479 DIMMICK AVENUE – continued

    Mrs. Pollitt said we don’t want to ask you to cut down trees doing this project. Mr. Martin added I lost one maple in the back from disease, and I would hate to lose any more.

    Mr. Weidlich said if the fence was at the corner of the garage and went straight across, would that clear the two trees? Mr. Martin responded that there is a waist high wall at the corner straight across that encloses a tree. Eventually I would really like to take that wall down and put a new one in to keep that tree.

    Mr. Weidlich said if we compromised and said to come off the corner of your garage and straight across to the neighboring fence, would that clear both the trees? Mr. Martin responded I’m pretty sure it would come right to the half wall where the other tree is, and digging new posts, I would be into the roots.

    Mr. Squires stated that according to the application, you are going to take down a rusted chain link fence and put up this vinyl one. Mr. Martin responded that the chain link fence has been removed. Taking the fence that far back would cut into a lot of my back yard. It would be almost in the middle of my back yard, and there would be no sense for me to put a fence up through the middle of my back yard. It would cut my back yard in half, and I would have one half enclosed with not much room for anything, and the other half open. Bringing it out closer to Rose Lane would expand the back yard, and keep it enclosed for a play area, since I have children four and seven.

    Mr. Squires commented that a vinyl fence would certainly be an improvement. You mentioned safety; would the vinyl fence be as safe for your children? A chain link would give your children a little more protection.

    Mr. Martin said I was talking safety in terms of keeping the family and friends in an enclosed area, and keeping balls out of the street so the three year old wouldn’t run out into the street.

    Mr. Squires said I am a little concerned about going all the way to the right of way with it, and that is what you would have to do with this proposal. Mr. Martin responded I am coming off the neighbor’s fence and lining it up straight with theirs.

    Mr. Weidlich said the diagram shows your home is on two lots. What are the widths of those lots? Mr. Martin said I don’t know. I found that out at the last meeting, and that is why I was confused about the front yard, that when they said that the fence that was there was considered frontage. My address is Dimmick, and I wasn’t putting it on the Dimmick side. Mr. Weidlich commented I am going to guess that those lots are at least 50 feet in that area, so you would have approximately 100 feet of space across the back., plus the setback from the curb at 11 or 12 feet.

    Mr. Apke said I am referencing your photograph and you have some poles running along the edge of the garage. Is that where the chain link fence was? Mr. Martin said yes.

    BOARD OF ZONING APPEALS MEETING MINUTES

    16 DECEMBER 2003

    PAGE FOUR

    IX A FENCE IN RIGHT OF WAY AT 479 DIMMICK AVENUE – continued

    Mr. Apke added I am looking at the two that are closest to the garage and it almost looks like you have it set up to put a gate in. Mr. Martin said yes I would like to put a 42 inch wide gate in. Mr. Apke added it looks like what you would like to do is put that gate in there opening onto the garage, so you would be 3 ˝ feet from the corner of the house and come straight across. Mr. Martin responded it would come right along the drive, where the original chain link was.

    Mr. Apke asked the applicant if it would be acceptable if he put it 3 ˝ feet from the edge of the house and it probably would make it 3 ˝ to 5 feet from the tree (he showed it on the drawing). Mr. Martin said that would be where the wall is.

    Mr. Squires asked if the fence could be constructed on this side, be away from Rose Lane to give you the safety that you want, and be in compliance?

    Mr. Martin responded that would even cut it further. Mr. Squires said my point is that you have much more room on that side. Mr. Martin said that would take it even further back, and cut that yard even more.

    Mr. Squires said my question is could the fence be constructed between 483 and 479 and be in compliance?

    Mr. Borden stated that the issue is the 35 foot setback from Rose Lane. Mr. Weidlich commented that it would reduce it to about half the area.

    Addressing the applicant, Mr. Weidlich said getting back to what Mr. Apke said, and with his proposal, do you have a good feel as to where that would come with those two trees on the other side of your yard? Mr. Martin responded that he thinks that it would still come to that tree. Mr. Weidlich asked if anything could be worked out without damaging the tree. Mr. Martin answered I have the pine tree and the roots and the wall, and that would cut into that second tree.

    Mr. Weidlich commented one of my suggestions would be to take it four or five feet out from the corner, if that would be workable to give you your gate and fence in there, a compromise. Mr. Martin responded I don’t know the measurements, but I could try to do the exact measurements to take it past the wall. My guess would be maybe 10 feet.

    Mr. Borden commented it sounds like the 35-foot setback requirement will not work with the tree there, so we need to come up with a solution. There has been testimony given that we could bring it out a little more within the 35-foot setback, another five or six feet. I’m not sure where the root line would be.

    Addressing the applicant, Mr. Squires said you could construct that fence on the right hand side of your home, your safety issue wouldn’t be compromised and you wouldn’t have any setback requirements. Mr. Squires showed it on the drawing.

    BOARD OF ZONING APPEALS MEETING MINUTES

    16 DECEMBER 2003

    PAGE FIVE

    IX A FENCE IN RIGHT OF WAY AT 479 DIMMICK AVENUE – continued

    Mr. Martin responded there is a swing set on the corner, and then a shed on the other side of that as well that is not in that drawing.

    Addressing the applicant, Mr. Squires said a variance goes with the land so it is there forever. In the past, this board has been a little reluctant to go all the way to the right of way with a fence when other alternatives may be available. We have conditional use permits that we can issue also. How old is your child? Mr. Martin answered four and seven. Mr. Squires continued so you would be looking at this for eight to 10 years. What I am saying is that you won’t have a use for that fence forever, since safety is your main concern. Mr. Martin responded that was one, and we are talking about a pet down the road, so we could use the enclosure for that as well.

    Mr. Borden said a point of information, since we have five members present tonight, a simple majority is required for approval, three votes.

    Mr. Borden asked the applicant the diameter of the tree. I am trying to determine what kind of root system it has, and how far we can come off that tree without damaging the roots. Mrs. Pollitt said I heard on the radio that the root system goes out as far as the branches of the tree, to your drip line. Mr. Martin reported that some of the branches are almost to the house, to the garage side.

    Mrs. Pollitt commented I believe that you do need a fence of some type on that property for the safety of your children. Living on a corner, does present special challenges.

    I am a little concerned about doing a lot of conditional variances, because I know the board at some point of time will have to revisit that, which will add to the case load.

    Since you have those two trees with special problems, could you come off the end of the garage, go as far as you could on a straight line, and then bump out a small portion of the fence. That might allow you to get out towards Rose Lane and around those trees and back in to the back end of your property. So you would have a straight line and a zig zag.

    Mr. Martin commented I don’t know how that would look. I’m trying to get it out as far as I can and not waste a lot of back yard space.

    Mrs. Pollitt said in terms of safety, I think the vinyl fence, if it is installed properly, would be just as strong as a chain link fence for a four-year-old. My only concern would be to go out much further than one width of a gate post if you are not sure that will clear those trees.

    Mr. Weidlich asked if the tree closest to the neighbor’s property, with the half wall, is more than five feet out from the front of your garage. Mr. Martin answered I don’t think so. Mr. Weidlich responded I wondered if instead of bumping outward, you could bump back a few feet to get around that tree.

    BOARD OF ZONING APPEALS MEETING MINUTES

    16 DECEMBER 2003

    PAGE SIX

    IX A FENCE IN RIGHT OF WAY AT 479 DIMMICK AVENUE – continued

    Mr. Martin responded I am trying to envision that. If I had the measurements, if I knew where that wall was from going straight across the garage, I would be able to give you the exact number as to how far I could shoot straight across and avoid that wall. I was planning to box it in and make it straight across. Mr. Weidlich commented you have an odd situation with the two trees.

    Mr. Weidlich said if we granted him a variance with a jog and it wouldn’t work out, how would we handle it? Mr. Borden responded we could use some language, come out according to the root system there but not as far as Rose Lane. We should be specific.

    Mr. Borden asked how far the pine tree is from the rear of the property line and Mr. Martin answered that it is about three feet

    Mr. Apke said I have heard the comments suggesting taking the fence across and either jogging in front of or behind the tree. I also would agree that this might be our best solution.

    This is your variance application, and I wanted to ask you what you think might be the best solution.

    Mr. Martin responded I would prefer to box it in and come straight across to avoid both trees, and the wall without having to go into part of the yard and then jut in or out. Mr. Apke asked how far out he needed to come from the corner of the garage. Mr. Martin answered I didn’t think about that at all. Mr. Apke asked his best guess, and Mr. Martin said approximately eight to 10 feet straight up the drive.

    Mr. Borden said what we do know is that the 35-foot setback puts it somewhere near the middle of the yard, and that pretty much hits the pine tree. What we need to do is reduce that distance; I am looking at putting that tree inside the yard, and come in at such a distance so that it doesn’t affect the root system. We could back off maybe five or 10 feet; I could live with that. Let me do some calculations and try to get a number.

    Mr. Borden looked at the diagram, and indicated that the distance from the edge of the garage to Rose Lane is 28 feet, which would give us seven feet off the pine tree. Mr. Martin responded if I can get that to work, that would be fine. If it is a problem, I can either drop it or try again with something else. Mr. Borden said so you are in agreement with this, at least initially, 28 feet from the right of way. Mr. Martin responded yes.

    Mrs. Pollitt said if we come back 28 feet from the right of way, we will be more toward the middle of the yard and the driveway. Is that correct? Mr. Borden responded we are coming back towards Rose Lane. Mrs. Pollitt said earlier he said that the 35 foot line was about 2-2 ˝ feet in from the corner of the garage. So you would be looking at that, plus the width of a gate. Earlier he didn’t think bringing the fence out the width of the gate would give him enough clearance with the trees. I’m not so sure that will give him what he needs.

    BOARD OF ZONING APPEALS MEETING MINUTES

    16 DECEMBER 2003

    PAGE SEVEN

    IX A FENCE IN RIGHT OF WAY AT 479 DIMMICK AVENUE – continued

    Mrs. Pollitt added it is hard for us to make a decision when we don’t have specific numbers in front of us. Addressing the applicant, she asked if that would give him enough clearance on the trees on the other side. Mr. Martin answered that it might be close.

    Mrs. Pollitt said we have had people sitting in here for hours over an inch of land, so close isn’t good enough. We really need to nail something down so that the applicant is protected.

    Mr. Borden commented we have tabled this a couple of times, but I don’t have a problem with tabling it again to get some numbers.

    Mrs. Pollitt asked the applicant his timetable for doing this project, asking if he would be constructing in cold weather. Mr. Martin answered probably not. Mrs. Pollitt added I think it would help all of us to make a better informed decision and protect the City and you and your rights to know exactly where we stand on those trees and exactly what you can do. This was helpful, but it doesn’t take us over far enough. If you would take another picture and add it on to that and come back with a drawing that would show us exactly where it would go, we would appreciate it. Mr. Martin responded I can come back with some numbers. Mrs. Pollitt commented I think that would be a more satisfactory outcome for you.

    Mr. Weidlich said a few minutes ago Mr. Martin said he needed eight to 10 feet off his garage forward, which would cut the setback down to approximately 25 feet, and that was going to be my next suggestion to get the fence straight across.

    .Mr. Squires said we are really not sure, and we need the exact numbers. Addressing the applicant, he said I also would like you to examine the possibility of putting the fence on the other side. If there are tree stumps that prevent it, we need to know that.

    Mr. Squires asked if he wished to table it, and Mr. Martin indicated that he did and Mr. Squires moved to table. Mrs. Pollitt seconded the motion, and all present voted aye. The matter was tabled to January 20, 2004.

    Mr. Borden reported what we would like to see is some definitive numbers, and get a fix on the tree and where the root system is and what you can live with.

    B. Approval of a variance to allow the conversion of the majority of the garage at 11720 Van Camp Lane into office space. Said variance is requested from Section 153.090(B) "A single two-car garage..is required. The garage shall haves a minimum floor area of 400 s.f. and a maximum floor area of 600 s.f."

    Phyllis Maymir, 11844 Glenfalls Court, the owner of the property and Aaron Spiegel, the tenant of 11720 Van Camp Lane approached the board. Mrs. Maymir said when we were here last time, at first we were told that we needed to ask for a variance. Mayor Webster came in, and mentioned that a variance would be a more permanent thing, and we don’t really want that.

    BOARD OF ZONING APPEALS MEETING MINUTES

    16 DECEMBER 2003

    PAGE EIGHT

    IX B CONVERSION OF GARAGE INTO OFFICE SPACE 11720 VAN CAMP

    Mrs. Maymir stated we need a temporary thing., My tenant has a landscaping business, and he probably won’t be there for more than another year. I have a lease, and he has agreed to take the small wall down. It is just dry wall with no wiring. A hammer would knock it over.

    We are not asking for something permanent, so what we really need is a conditional use type situation. That’s all we need, just something very simple that would allow him to continue to have his home operating business. Nothing shows from the outside. The garage still looks like a garage. The neighbors aren’t affected. The wall is just to keep the air from the front of the garage from cutting through. We are back again to see whether or not that can be granted.

    Mr. Lohbeck reported that the applicant is requesting a variance to convert the majority of an existing one-car garage to create an office space. This is contrary to Section 153.090(B) of the Zoning Coded which requires a two-car garage, 400 s.f. to 600 s.f. in area.

    The existing one-car garage is legal non-conforming. During an inspection of the property, it was discovered that a large portion of the garage had recently been converted to office space without a variance of permits.

    Apparently the office space is used by the tenant of the residence for a landscaping business (home occupation). During the same inspection, a utility trailer was found in violation of Section 153.480(D)(1), which requires trailers to be located a minimum of five feet from lot line.

    Section 153.486 for home occupation allows only 20% of the building to be used for home occupation, and only household members may assist or work there.

    The applicant should demonstrate why the garage conversion is necessary, and how maintaining the garage is a hardship. It is staff’s recommendation that this request be denied.

    Mr. Borden opened the public hearing. No one came forward, and he closed the public hearing.

    Addressing the applicant, Mr. Apke said in light of what you just said, it sounds to me like you are in favor of removing this item from the agenda and pursuing it as a conditional use permit.

    Mrs. Maymir said I would like to let him have it while he lives there, and when he moves, take it down. I already have written proof that he will. Anyone here can come down when he leaves, and it will be down. It is not something that we want as a permanent thing in our garage; we don’t.

    Mr. Spiegel added if you are asking do we want it removed from this to pursue other avenues…Mr. Apke said do you want to pursue a variance, or would you rather pursue a conditional use?

    BOARD OF ZONING APPEALS MEETING MINUTES

    16 DECEMBER 2003

    PAGE NINE

    IX B CONVERSION OF GARAGE INTO OFFICE SPACE 11720 VAN CAMP

    Mrs. Maymir said a conditional use, and Mr. Spiegel added if that is what it takes. We want to do whatever we need to do from here to allow this temporarily.

    Mr. Apke responded in this case this board would be very uncomfortable granting a variance which would be permanent on the property. I am asking you if you would like to remove this item from our agenda. Do you want to come before this board for a permanent variance, or would you rather try to pursue a conditional use permit?

    Mr. Spiegel answered we would rather try to pursue a conditional use permit.

    Mr. Lohbeck reported that there is no conditional use permit for residences. Mr. Borden commented it is not a part of the code. Mr. Lohbeck added that staff would recommend that if you don’t want to deny it, you give it a temporary variance so it will be removed once the tenant moves.

    Mr. Borden commented that is contrary to what we have been told by the law director. Mr. Lohbeck responded nobody has challenged this, so if the board wishes to, staff recommends that you give the temporary variance.

    Addressing the applicant, Mr. Borden said we don’t have a conditional use permit to offer you at this moment, and what has been suggested is a temporary variance.

    Mr. Squires asked Mr. Lohbeck if Planning couldn’t issue a conditional use permit. Mr. Lohbeck reported that they cannot for residential projects.

    Mrs. Pollitt commented I think it is a matter of wordsmithing. Staff recommends we issue a temporary variance to allow the tenant to use the garage as part of his office. I don’t have a problem with that as long as none of the neighbors are being affected.

    We cannot issue a conditional variance, but it is in the process of being worked out so that people who need a variance for a limited period of time can seek that type of variance and it wouldn’t stay with the land.

    Mrs. Pollitt said we would issue the temporary variance for a period of time, after which the tenant would have to tear the wall down. Mr. Spiegel said I would like to ask for the time now. Since I can’t reapply for the variance, I would like it for five years. Mr. Squires stated if it is issued for only two years, you can still come before us and reapply.

    Mr. Lohbeck said when Mrs. Maymir gave her statement, she offered a one year and that is the reason we made the recommendation that we did, that it would be a temporary variance for one year. It is possible that by then something else will be in place so that a conditional use permit could be issued. Nothing has been worked out yet.

    BOARD OF ZONING APPEALS MEETING MINUTES

    16 DECEMBER 2003

    PAGE TEN

    IX B CONVERSION OF GARAGE INTO OFFICE SPACE 11720 VAN CAMP

    Mrs. Pollitt said I need clarification as to whether it can be renewed in a year or two years, because I don’t want to shut a door on somebody if we don’t have to. Mr. Lohbeck reported that he can reapply, but the staff recommendation is that this be denied, because it is a tenant situation. It is not a permanent resident, but if you feel you want to grant it, give it to them on a temporary basis for a year. That is what we would recommend.

    Mr. Borden said it is at the board’s discretion; we can either renew it or not renew it.

    Mr. Squires moved to grant a temporary variance for one year, to expire December 16, 2004, and Mr. Weidlich seconded the motion. All present voted aye, and the temporary variance was granted with five affirmative votes.

  15. NEW BUSINESS
    1. Approval of a variance to allow a shed to stay 3’ from the property line at 1169 Benedict Court. Said variance is requested from Section 153.097(B) "..must not be less than 5 feet from any rear or side lot line."

    Angela Wilkinson, owner of 1169 Benedict Court said I apologize for my contractor not getting the permit before he put the shed up. This is a new experience for me, and I am learning as I go. The decision was made to place the shed where it was because my back yard sets on an inclined plane. When it rains or the snow melts, if the shed is moved down, it would be right in the flood zone. It doesn’t inhibit the neighbor on my right or the neighbor on my left or the neighbor behind me. It is just three feet from the property line.

    Mr. Lohbeck reported that the applicant is requesting a variance from the setback requirements from Section 153.097(B) which requires accessory buildings to be set back not less than 5 feet from rear and side lot lines. The applicant is requesting that a 9’ x 10’ utility building be allowed to remain 3 feet from the rear (south) and side (west) lot lines. The utility building was erected without a permit (see Gordon King’s letter to the applicant dated 11/6/03 attached).

    The applicant has indicated that the utility building was placed on a high point in the yard to preclude water from entering the building. It appears that the yard drains from west to east across her rear yard. The concern about water may be a valid argument for reducing the setback from the rear property line, but it may not be a valid one for reduced setback from the side (west) lot line.

    You will note that the aforementioned letter to the applicant from Mr. King also addressed a fence that was constructed without a permit. The applicant has shown that the fence was constructed prior to the requirement for a permit effective 6/7/03.

     

     

    BOARD OF ZONING APPEALS MEETING MINUTES

    16 DECEMBER 2003

    PAGE ELEVEN

    X.A SHED 3 FEET FROM PROPERTY LINE – 1169 BENEDICT COURT

    Mr. Lohbeck added please note that Mr. King pointed out that the fence was constructed with the structural supports on the outside, which is contrary to Section 153.482(B) of the Zoning Code. This requirement has been in the Zoning Code since July 19, 2002.

    Although the applicant did not request a variance from this requirement, they have not yet changed the fence based on Mr. King’s notice.

    If the applicant wishes to request a variance from this fence requirement, BZA could consider this request as well. The two issues should properly be handled separately.

    Mr. Borden opened the public hearing.

    Donald Kohl, 12128 Benadir Road said my wife and have no objections to this shed.

    No one else came forward, and Mr. Borden closed the public hearing.

    Addressing the applicant, Mr. Borden said the problem with your fence is that the good side of the fence should be to the outside, instead of the inside as you have it.

    Ms. Wilkinson responded when I inquired about the permit, they didn’t make me aware that the fence needed to be reversed. I didn’t know.

    Mrs. Pollitt said I would like to see us take one issue at a time. Looking at the shed, this was erected without a permit and the variance is for the setback requirement.

    Addressing the applicant, Mrs. Pollitt said your back yard has a very low spot that would hinder the shed from being put somewhere else? Mrs. Wilkinson confirmed this. Mrs. Pollitt said give us a reason for us to say that it needs to stay there.

    Mrs. Wilkinson answered I wish you could come to my house right now. That would give you the best example because of all the rain. It is just like a little puddle right there all the way across my yard, and then on the other side there is a little hill where it drains down into my neighbor’s yard also. There is a standing puddle right there.

    Mrs. Pollitt asked if the water ever runs through like a stream. Mrs. Wilkinson answered no, but after it rains you can go out there and look and see the puddles and the mud from the water running down. Mrs. Pollitt asked if it was on a concrete slab, and Ms. Wilkinson answered that it was.

    Mr. Apke said the staff comments indicate that the concern about the water may be a valid argument for reducing the setback from the rear property line, and it also says that it may not be a valid argument for reduced setback from the side lot line. Do you need a setback variance from each direction or only from the rear lot line?

    BOARD OF ZONING APPEALS MEETING MINUTES

    16 DECEMBER 2003

    PAGE TWELVE

    X.A SHED 3 FEET FROM PROPERTY LINE – 1169 BENEDICT COURT

    Ms. Wilkinson answered it is needed from each direction. If you would go by my house right now, you would understand why the shed was placed where it was.

    Mr. Weidlich said we have a picture of your fence, and it shows a portion of your shed. Is the shed totally hidden from the street? Ms. Wilkinson answered if you are just driving past, you couldn’t see it. But if you stopped and came up my driveway and looked around, you could see it.

    Mr. Weidlich asked if the privacy fence was connected to the house, and Ms. Wilkinson answered it is down one side in the back. There is a chain link fence coming to the front.

    Mrs. Pollitt asked the size of the concrete slab, wondering if it would come out to allow the shed to be moved at all. Ms. Wilkinson answered that it wouldn’t.

    Mr. Apke said the issue of the shed, the applicant has basically satisfied the four conditions that we are supposed to consider prior to granting a variance, so I would like to move to approve the request for the reduced setbacks for the accessory building at 1169 Benadict Court. Mr. Squires seconded the motion. On the motion, all present voted aye, and the setback variance was granted with five affirmative votes.

    Mr. Borden said now we will consider the fence. He asked the applicant when the fence was erected, and Ms. Wilkinson answered two years ago. I called and asked if I needed a permit for a fence, because I have a seven year old, and my two neighbors behind me and beside me have dogs and I didn’t know how friendly the dogs were. I was told I didn’t need a permit, so I put up the privacy fence.

    Mrs. Pollitt stated that the requirement that the good side of the fence must face your neighbor has only been effect since July 19, 2002. When was that fence constructed? Ms. Wilkinson answered when I first moved there, in December of 2,000

    Mrs. Pollitt said I don’t want to go against staff, but in my opinion if the fence was put up in 2,000, this change wasn’t put into effect until July 19 of 2002, and the permit requirement wasn’t put into effect until June of this year. I don’t think this should be before us.

    Mr. Squires I agree. I think all of this is after the fact. The Zoning Code went into effect July 19, 2002 and the requirement for a permit went into effect in 2003, and you said that fence was constructed in 2000. I think it is a non-issue.

    Mrs. Pollitt said I would like to have staff comments on this, because I don’t want to overstep my bounds. Mr. Lohbeck said Bill wrote this; I don’t know that answer. He is the building official, and he must have a reason to do it. Mrs. Pollitt commented people indicated that privacy fences were installed with the bad side out. That was brought up enough times that it was looked at and changed.

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    X.A SHED 3 FEET FROM PROPERTY LINE – 1169 BENEDICT COURT

    Mrs. Pollitt added we had the issue of informing people about it; they weren’t aware of it, and they decided to require permits so that the resident would know that they must put the good side of the fence on the outside facing the neighbor.

    Addressing the applicant, Mrs. Pollitt asked if she had documentation of the fence being installed in 2000. She asked Mr. Lohbeck if we need that, and Mr. Lohbeck responded I would think that we would. We travel the neighborhoods every day and they have a pretty good handle as to what is going on. If they see something going up, they’ll bring it in.

    Addressing the applicant, Mr. Borden said you indicated that you moved into your house in the spring of 2000? Ms. Wilkinson responded it was the week of Christmas, 2000. Mr. Borden said how soon after you moved in did you erect your fence? Ms. Wilkinson answered I moved in Christmas Week of 2000, and the fence went up the spring of 2001.

    Mr. Squires said I would like to remind the board of the fact that this witness is testifying under oath.

    Mr. Borden asked her if she had documentation regarding her fence that she could produce. Ms. Wilkinson answered I may be able to find the receipts for the materials that were bought. I bought the material and my dad and his friend helped me put it up.

    Mr. Borden said as Mr. Squires has indicated, the applicant has been sworn in and she has testified under oath. We can take her word for it since she is under oath and drop it from the agenda or we can go ahead and vote on it, which seems to be after the fact.

    Mr. Squires said for the record I would like to indicate that this is a non-issue. It is post facto. This board is not empowered to deal with this. It was constructed prior to the Zoning Code change. I don’t think we have to vote on it. This witness has testified that the fence was erected in 2001 and she is under oath. She has said it was erected in 2001, and as far as I am concerned, it was 2001.

    Mr. Borden said taking the advice of Past Chairman Jim Squires, I would agree that this is a non-issue. No vote is required, and the matter of the fence is done. We can dispose of it. Addressing the applicant, he said you have your variance for the shed.

  16. DISCUSSION
  17. Mr. Weidlich said I am wondering if some of the key things might be put in the Springdale Newsletter. We are seeing an awful lot of shed issues. Can the requirements be publicized? Mr. Borden said we do. There was a nice article on fences. Mr. Weidlich added we get so many shed issues.

    Mr. Apke said I would like to go back to the temporary variance we granted. I would ask our two council members if we know if anything is in the works or a projected time so that we can have a new way of handling these type requests?

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    XI DISCUSSION - continued

    Mrs. Pollitt responded that the last I was informed was that it is in the law director’s hands. They wanted to do some legal research. Mr. Squires added they are dealing with it. In some cities, there is no such thing as a temporary variance. If the courts uphold that, we are in error with some of the temporary variances that we have issued, but we have not been challenged. As long as we have the testimony of why we are doing what we are doing, I think we are okay. The important thing is that if you are going to deny a variance, you have to indicate why you are denying it. There has to be a reason cited.

    Mr. Borden stated that at the last meeting, Mr. Okum reported that he has taken the lead in forming a committee to consider a conditional use permit, so that will be in the works, but it will be another 30, 60 or 90 days.

    Mrs. Pollitt added that there was some discussion on which board should hear that, the BZA or Planning. Mr. Lohbeck reported that presently there is no conditional use permit for residential properties. Mrs. Pollitt added that as I understood the conversation, the conditional variance might be considered by Planning Commission. Mr. Borden said that committee will have to work that out.

  18. ADJOURNMENT

Mr. Squires moved to adjourn and the Board of Zoning Appeals adjourned at 8:35 p.m.

Respectfully submitted,

 

 

_______________,2004 _____________________________

Frederick Borden, Acting Chairman

 

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Robert Apke, Acting Secretary