17 DECEMBER 2002

7:00 P.M.


  2. Chairman Okum called the meeting to order at 7:00 p.m.

  4. Members Present: Robert Apke, Fred Borden, Councilwoman Marjorie

    Pollitt, Councilman James Squires, Robert Weidlich, Jane Huber and Chairman David Okum.

    Others Present: Richard G. Lohbeck, Inspection Supervisor

  7. Chairman - Mr. Squires nominated Mr. Okum and Mrs. Huber seconded the motion. No one else was nominated, and Mr. Okum was elected by acclamation.

    Vice Chairman Ė Mr. Weidlich nominated Fred Borden and Mrs. Huber seconded the motion. No one else was nominated, and Mr. Borden was elected by acclamation.

    Secretary Ė Mr. Squires nominated Mrs. Huber and Mr. Apke seconded the motion. No one else was nominated, and Mrs. Huber was elected by acclamation.

  9. Mr. Squires moved to approve and Mr. Borden seconded the motion. By voice vote, all but Mrs. Pollitt who abstained voted aye, and the Minutes were approved with six affirmative votes.

    1. Zoning Bulletin Ė November 10, 2002
    2. Zoning Bulletin Ė November 25, 2002
    3. Guidelines Ė Board of Zoning Appeals
    4. 11/20/02 notification letter to Rosemary Chandler, 11657 Van Cleve Avenue re rescinding of variance to allow the construction of 10í x 18í shed 3 Ĺ feet from the south property line.
    5. 11/20/02 notification letter to William Wade, 12000 Lawnview Avenue re rescinding of variance to allow construction of new residence at 11485 Walnut Street.
    1. Report on Council Activities Ė James Squires Ė no report
    2. Report on Planning Commission Ė Dave Okum Ė no report



    17 DECEMBER 2002


    1. Kevin Benton, 335 West Kemper Road requests approval to tear down existing 2-car garage and not replace it for 19 months. Said variance is requested from Section 153.075(B) "A single 2-car required."

Mr. Benton stated this has been going on for a couple of months. It started out with some siding repairs on the old garage. The garage is cedar, and is about 50 years old. I bought some cedar with the intention of repairing and painting it, and the more I looked at it, I could see that it needs structural repairs. The foundation in one corner is sinking into the dirt.

I have never been able to park in the garage; the openings are too small. I had a contractor look at it and he said I would be better off replacing it. I had Bill McErlane look at it and he said it probably could be fixed but wasnít the required two-car garage.

I believe it would be better to tear it down and replace it. I have been through bankruptcy and talked to Provident Bank, and they said that two years from the discharge (June 2004) there would be no problem with getting a loan I would need to replace the garage. So I am asking for the time span to tear this down and replace it down the road.

Mr. Okum opened the public hearing. No one was in the audience, and he closed the public hearing.

Mr. Lohbeck reported that the applicant is requesting that he be allowed to eliminate his garage for a 19-month period. The applicantís reasons are purely financial in nature. On October 1, 2002 the applicant was issued a notice to repair deteriorated boards on the garage and repaint. A copy of the letter is attached.

The applicant responded that he would like to tear down the existing garage and rebuild next summer. After further discussion, the applicant clarified that he was requesting to delay the rebuilding until the summer of 2004.

The north side of the existing garage has structural damage due to decay and insect damage. Bottoms of most studs on this side are deteriorated. Siding on the north, west and south sides are in differing stages of disrepair.

Although the applicant is only asking for a delay in complying with the code requirements for a garage, his drawing shows a proposed garage at 768 s.f. with a 240 s.f. awning. The applicant needs to be aware that garages may not exceed 700 s.f. and other than a detached garage, only a 120 s.f. accessory structure may be placed on the lot.

Addressing the applicant, Mr. Squires said that the garage you want to build is 24í x 32í, and the Code maximum is 700 s.f. Mr. Benton responded I was told that I had to have a two-car garage. That could be reduced to 700 s.f. I have no problem with a 24í x 24í or something like that.


17 DECEMBER 2002



Mr. Squires said you have been cited for property code violations because of the deteriorating garage and the old tires behind it. In your investigation, you find it would be much more economical to tear the garage down, but you wouldnít be able to start construction for 19 months.

Mr. Benson answered I talked to my bank advisor, and because of my bankruptcy, I have to wait two years from the discharge, which would be June of 2004.

Mr. Squires asked if he used the garage now, and Mr. Benson answered just for storage and as a workshop. I donít park in it; I have one vehicle.

Mr. Okum asked if the awning was counted in the square footage, and Mr. Lohbeck answered that it did. Mr. Okum commented that on a residence it doesnít count but on a detached building it does. He asked what he would do with all his things until the storage shed is constructed. Mr. Benson answered that he had been moving a lot of it. I have a storage locker, Iím putting some of the smaller things in the basement and have been throwing away a lot of stuff. Iíll have a yard sale this spring.

Mrs. Pollitt said I was under the impression that if you added any type of porch or awning to the storage shed it was counted in the square footage. I wasnít allowed to have my porch because of the total square footage.

Mr. Okum said obviously this is urban blight, with the termite infestation. I canít see any reason to keep that garage there in the condition it is in.

Addressing Mr. Lohbeck, Mr. Okum said if we granted the variance, what would happen if the property is sold in the interim? What protection would the city have that the new purchaser would know that they have to build the garage there? Mr. Lohbeck answered we would notify them. Mr. Benson added that he would have to disclose that.

Mr. Squires asked if there was a slab under the existing building, and Mr. Benson answered that there is a concrete floor. Mr. Squires said if this building is taken down, will all the material be taken away, including the tires? Mr. Benson confirmed that everything would be removed.

Mr. Squires commented this is definitely blight, and I have no problem with taking the garage down. I donít know how the board will feel about 19 months.

Addressing the applicant, Mr. Borden said I have no problem with your request. If this was approved, how much time would you need to tear down the garage? Mr. Benson answered until the end of January. I was prepared to do it in November, but I didnít realize that I had to replace the garage right away.



17 DECEMBER 2002



Mrs. Pollitt said I donít have a problem with granting the 19-month extension so that you can get it built. That is an expensive project and a major improvement to your property.

Mr. Benson commented I am looking at it as long term because I am planning to stay here for a long time. I hope to get more use out of the newer buildings. Mrs. Pollitt added it should add to your property value as well.

Mr. Squires said I am prepared to make a motion to allow Mr. Benson to remove the existing garage and within 19 months build the required 2-car garage according to city specifications (a maximum of 700 s.f.) and all debris to be removed from your property by the end of January.

Mr. Borden seconded the motion.

Mr. Okum said I would add that if we are extending it 19 months, it must be completed. I think that is important, instead of partially done in the 19 months since we have had some garages started and not completed. Mr. Squires said I am willing to amend my motion.

Mr. Benson said the bank told me that in the middle of June 2004 I shouldnít have any problem getting the loan I need. I donít think it would take very long for the contractor to put it up.

Mr. Okum said the variance is on the land and not you personally . That is the reason why the conditions are placed on the land.

Mr. Benson said so I understand, 700 s.f. maximum would include the awning on the back of the garage? Mr. Okum responded that the garage must not exceed 700 s.f., and you must build a two-car garage. Your awning would add to your square footage, which inevitably would put you over the maximum 700 s.f. Your option would be to request a variance to this, and I would suggest you do that closer to the time that you will do your work.

Mrs. Pollitt asked the construction materials? Mr. Benson answered it will be a wood garage with vinyl siding. There probably would be double doors on the front, one for each car.

Mr. Weidlich said I donít have a problem with Mr. Bensonís request, but he will be able to get a loan in 19 months, and do in 19 months, he canít have it constructed. He would need extra time to get it constructed after he gets his loan. I would say 20 or 21 months to allow him time to get it built.

Mr. Okum said letís make it simple: the garage is to be completed within 21 months. Mr. Squires agreed to amend his motion,.

The motion was reread, - move to allow him to remove the existing garage and within 21 months (August 2004) build and complete the required 2-car garage according to city specs, 700 s.f. and all demolition debris is to be removed from the property by the end of January 2003.


17 DECEMBER 2002



All voted aye, and the variance was granted with seven affirmative votes.


A. Review of Board of Zoning Appeals Guidelines

Under Item C, on special meetings, the personal notice of 24 hours shall be changed to 72 hours.

Under Item D concerning a memberís absence, Mrs. Pollitt stated that Council looked at this, and determined it should be two consecutive absences by a member within a one-year period rather than three. Members agreed that it should be the same as Council, and changed it to two consecutive absences. Mr. Okum added that it should also state "This will follow Councilís approved attendance protocol" so that if it ever changes, we wonít have to deal with that.

Under Item F, the Secretary of the Board shall be changed to "Recording Secretary of the Board", since that is who handles it.

Under Item G, Mr. Okum questioned the use of the word associates stating that it is a very broad term. Does it mean a business client associate? Mr. Apke answered I would think it would be a member of the same firm. Mrs. Pollitt agreed. Mr. Borden said I like the broad definition, because it is inclusive. If you narrowed it down you would exclude people. Mr. Okum said I understand, but what does it truly mean? Is there any real need for it to be there? Mrs. Pollitt answered I think so. Mr. Okum said it borders on conflict of interest. Mr. Bolrden responded that is exactly what it is. Mrs. Pollitt said it says that we should not participate in any appeal in which we have someone whom we have a professional association with. Mr. Borden wondered if professional relationship was better.

Mr. Squires said I think "professional associates" is okay. Mr. Borden added I like it the way it is, but if you want to change it to relationship I could agree with that.

Mr. Apke commented I see that as much broader. Mr. Okum said associates means a member of your firm. Mr. Apke continued and relationship could be the guy who pours the cement for the foundations, the framers or the electrician. Mr. Borden commented but it is narrowed down to monetary interests. Mr. Squires said as long as you are talking monetary interests, "professional associates" is fine, isnít it? Mrs. Pollitt said I donít think "relationships" sounds professional. Mr. Borden said I like the way it is now. Mr. Okum said we should change "he" or "his" to "they" or their". The members agreed with that change.

The Board read Item H "All variances should be kept in a file readily accessible to the officials of the city." Mr. Okum said isnít it true that everything is available as public record? So it would be accessible to anyone, not just the city officials.




17 DECEMBER 2002



Mr. Borden suggested archiving all this material to CD-ROM or something like that. Mr. Okum responded I believe the City is looking at that and the audio system in here. Mrs. Pollitt answered that will be quite some time due to budget restraints. Mr. Borden added keep in mind that the audiotapes are going to break down.

Mr. Okum said that the pictures the Board received for tonightís meeting were really good.

Mr. Okum said there are more to the variances; there are Minutes of the meeting and documents pertaining to the hearing, exhibits and so forth, so that wording should be strengthened to more than just a variance. The Board agreed that it should read "All variances and associated documents should be kept in a file and readily accessible."

Item I "A separate record of requested limited variances should be maintained for a monthly review at the regular meeting of the Board" was read. I think this refers to a conditional or limited time variance. I donít see us doing a monthly review. Mr. Borden commented that a limited variance implies to me that the variance expires, it is temporary. Mrs. Huber agreed, citing the temporary banners. After more discussion, the Board agreed that Item I should read, "A record of requested limited variances should be maintained for a monthly review by Staff."

After a lengthy discussion of who would determine that the conditions have substantially changed, the Board decided that staff should have that responsibility, and Item J shall stay the same. Mr. Squires added that he had no problem with the way it is written; staff reports inform us of this.

In Item K, "matter" should be changed to "matters". Mr. Okum wondered if that could be legally done any more. Mr. Borden commented that he had brought up the issue with Mr. Dale, and he indicated that it was up to us; we could go into Executive Session to discuss possible litigation. Mr. Okum said I wonder if Mr. Dale really looked at that, because you are pulling from the public forum and going into an Executive Session behind closed doors. Mr. Squires said you canít vote.

Mr. Lohbeck said this says to handle "pending or possible litigation". It is not to vote on a variance in Executive Session. Mr. Borden added I would suggest if there was possible litigation that counsel should be present to advise us.

The Board reviewed Guides for Granting Variances

Under Section A, Mr. Okum said I would like Ms. McBride and Mr. Dale to compare the two. Mr. Lohbeck suggested replacing the four questions with the three developed by Ms. McBride to use in considering the granting of a variance. These three questions were developed long after the original four (see attached). Board members agreed.



17 DECEMBER 2002



Mr. Apke added that Ms. McBride probably should review them to make sure. Mr. Okum said I think she needs to review them and it might need to be reviewed by Mr. Dale as well since he deals with the legal aspect of variances.

Under Section B, the words "and code" should be inserted after ordinances.

Section C should be changed to read as follows:

"Prior to consideration of a variance that would alter the nature of the residential area or violate setback or size requirements, the Building Department shall send letters informing the residents within 200 feet of said property of the date and time of the public hearing to consider the variance if they wished to attend and voice their opinion."

Section D remains the same.

Mr. Okum stated that he would like to see the City Planner involved more with commercial variance requests. Mr. Borden added I would like to be able to consult Planning Commission also. Mr. Okum said so you are saying we should be able to refer something back to Planning. We have done that in the past. That is outlined in the procedures in the Code which indicates who hears what when. After discussion about the Loweís project, and when the Board of Zoning Appeals should or shouldnít refer something to Planning, Mr. Okum suggested that this also be referred to the City Planner and Staff to determine the flow.

Mr. Lohbeck said regarding Loweís, Mr. McErlane determined that it should come before BZA for the variance for outside storage, because Planning Commission had nothing to do with it. Mr. Okum said and he was absolutely correct. The applicant wanted outside storage for seasonal items, and staff referred it to BZA who heard it and granted the variance with conditions. If it had been more signficant, it could have been sent back to Planning. I think your question is what sets the flow and how we would know what to refer back to Planning Commission. I think that needs to be in our guide. Mr. Borden said it should be on a case by case basis.

Under Section E, "the Architectural Review Board" should be changed to "the City Planner".

The Board considered LAPSE OF VARIANCES

Under Section A, the final sentence, "The City Law Director should be consulted to ascertain if the City will incur any liability in the revocation of the variance" should be omitted.

Under Section B a minimum of 30 days should be changed to 15 days, to be realistic and reflect the actual time frame.





17 DECEMBER 2002



In Section C, "requested limited variances" should be changed to "variances".

The suggested changes will be incorporated in the Guidelines, and the Board will review it at the next meeting.

Mr. Okum said there are items that we need from staff that should be standardized. Are there special items that you want staff to provide us? Tonight we had some great photos of that garage that were very helpful to our deliberations.

The items I thought of were:

    1. Site plans showing adjoining properties and structures;
    2. Photos of the site as observed from the adjoining parcels and the public right of way;
    3. Staffís interpretation of the requested variance with comments;
    4. A completed application from the applicant;
    5. Staffís recommendations as they apply to the requested variance (not only comments but recommendations);
    6. Documents as they are pertinent to the subject property.

I would like to know that they have been cited if the work has already been completed.

Mr. Borden commented that the photos are important, especially for projects on Kemper Road, because you canít get on the property. You canít even pull over to look.

Mr. Squires said I really appreciate the photographs. I have seen a lot of the staff reports and this was an exceptionally good one. When I go to observe, I observe from the street; I donít go on the property. Can staff get on the property? Mr. Lohbeck indicated that they can, and Mr. Squires added then staff reports would be a tremendous help.

Mr. Lohbeck said I donít think staff should recommend. Mrs. Pollitt agreed adding that we should rely on the Building Department for their expertise, but their recommendations might give us a preconceived notion or idea.

Mr. Okum said I think information is important. Mrs. Pollitt agreed, adding that he could put anything he wants in the report but Iím not sure we would want recommendations.

Mr. Okum said if the City Planner would look at every variance request, based on the information only provided to her, there would be a recommendation to deny nine out of 10 requests.

Mr. Borden commented I donít look at those as recommendations from staff; I look at them as alternatives.




17 DECEMBER 2002



Mr. Okum said we should encourage staff to give us the physical evidence. Mrs. Huber said I think what they have provided us is adequate.

Mr. Lohbeck said I could look at the sites myself, and if you have questions, you could ask me and I could tell you what IL saw. Basically in our staff comments, we might point out things that are obvious to us.

Mrs. Pollitt answered as long as it is in the form of a comment or a fact, and not a recommendation, that is fine. When it comes down to a recommendation, it adds too much of a predetermined feel to it and the applicant thinks that between the staff, the Building Department and the Board, that he doesnít have a chance.

Mr. Okum said all the evidentiary information that you can provide is very important. The property owner canít always express everything, and it would be to their advantage to have that in the report.

Mr. Squires said staff members could get on the property where we as board members should not. Mr. Okum said Tim Burke said you have the right to investigate or analyze or visit, but you do not have the right to have ad hoc discussions with the property owner

Mr. Borden said you set yourself up for that by visiting the site. Mr. Okum commented that some Boards go out in a bus as a group so they all see the same thing at the same time. The problem with that is that you become a quasi-quorum inside an enclosed space where you are deliberating and discussing outside the public forum. Mr. Dale indicated that it gives the applicant the impression that there have been deliberations outside the public hearing.

The Board agreed that the staff reports should include comments and information so that a better decision can be made, but no recommendations.

Mr. Borden asked how diligent staff was in screening the applications. We get a lot of yes or no answers; should we discard those applications? Mrs. Webb answered that when they are turned in, we check that page of questions and tell them that they need to say more than just yes or no, that this page is the most important part of the application that they should be as complete as they can be.

Mr. Lohbeck commented that I donít think that the people donít really realize what they are reading there to answer it. Mr. Squires commented we just went through those questions. Mr. Borden wondered if there was anything that could be done to help the applicant. Mr. Okum said I am sure staff does what they can to get the applicants to give more complete answers but they donít understand that those answers plus the evidence drive the decision.


17 DECEMBER 2002



Mrs. Huber moved to adjourn and Mr. Apke seconded the motion. By voice vote all voted aye, and the Board of Zoning Appeals adjourned at 8:40 p.m.

Respectfully submitted,



___________________,2003 _____________________

David Okum, Chairman



___________________,2003 _____________________

Jane Huber, Secretary