Thank you. Thank you. guitar solo Thank you. Thank you. Thank you. Thank you. guitar solo guitar solo guitar solo guitar solo Good afternoon and welcome to the August meeting of the Fayette County Board of Adjustments. I'd ask those of you with cell phones to please turn them to silent or to turn them off. And anyone who anticipates giving testimony today, I'd ask you to raise your right hand and that you swear or affirm that the testimony you give over today will be the truth. All right, thank you. Let's see, we have some minutes from the September 28, 2007 meeting. I'd ask if the board members have reviewed those minutes and if there's any comments or I'll entertain a motion Second all right all those in favor of mr. Stout's Motion to approve the minutes they signify by saying aye aye all those opposed Motion Mencer approved First, I'll ask if there's any matters that are going to be postponed or withdrawn. You come to the podium, please, ma'am. I'm closer now. Thank you, Sandra Shriver. I'm here with the permit issued at 2717 Chelsea Woods Court. I'd like to at this time ask for an indefinite postponement as I'm still trying to reach a settlement and have not done so yet. All right. That is... All right. So let me ask the staff a question. If an indefinite postponement, would that be the same effect as a withdrawal? No, it's just kind of on hold. and if when she's ready to come back if that happens then she would just advise us and in this case since it's a third party appeal we would just make sure that the the other property owner knows that it's coming back to you all so she wouldn't have to send out notice again no okay all right thank you all right uh is uh there a motion uh concerning miss shriver's request mr chair um i wonder if there's anyone else here for that case that would want to speak okay uh so So we're talking about A2009-47, the Sandra Shriver case. Is there anyone else here on that matter? Yes, sir, would you come forward, please? Good afternoon. Could you state your name, please, sir? Paul Dubose. I'm the property owner at 2717 Chelsea Woods. Okay. My building permit. Okay. Now, Ms. Shriver has asked for an indefinite postponement. Are you opposed to that, sir? No, not at this time. attorneys are still hashing out a deal. Okay so that you're you're agreeable. I agree with it. Not necessarily the appeal but the postponement is fine. All right all right thank you. I apologize to you all for taking your time I know this is something kind of sticky. That's part of our job. Thank you. So Mr. Griggs do you have a motion? I'd move that we postpone this indefinitely. Okay Do we have a second? Second. All right. All those in favor of Mr. Griggs' motion, please signify by saying aye. Aye. All those opposed? All right. Good luck to both. Thank you. Thank you very much. Any other postponements or withdrawals? Okay, I'm going to run through the agenda. The determinative parties are here and if there are any objectors. First case is V2009-53, Michael Hudson. Mr. Hudson, are there any objectors here for that case? Second case is V2009-54, Showprop, Lexington. Are there any objectors here for that case? V2009-55, Dennis Anderson, Trailside and McConnells, LLC. Are you the applicant, sir? Okay. Are there any objectors here? Next case is V2009-56 Lisa Barrett. Okay. Are there any objectors here for that case? Okay. Next case is C. 2009-48, the Baha Rathya Temple and Cultural Center. Are you the applicants? Are there any objectors here? And that case is also staff's recommended disapproval so it will be heard towards the end of the docket. C 2009-49, Ray and Kelly Van Meter, Monkey Joes. Are you the applicant? Are there any objectors? C 2009-50, Robert H. Douglas. Is the applicant here? I spoke with the attorney recently, and he had recommended that this case get delayed until September. Staff's recommending postponement, so he's agreeable to that. The only thing I forewarned him about is if somebody did show up that got their letter that there would be a hearing today, that he should be here, but apparently he's not here yet. But I guess if there's no objectors. Are there any objectors for the Robert Douglas case? Do you want a motion to postpone it until September? Yeah, I guess we can entertain a motion and then if someone, an objector does show up, then we can take it back up at that time. Mr. Chairman, I'll move that C-2009 50 Robert Douglas appeal for a conditional use permit to establish a bed and breakfast facility and agricultural rural property I'm located at 4417 Dry Branch Road be postponed. Mr. Marks until September. Until September. Second. All those in favor of Mr. Stumbo's motion, please signify by saying aye. Aye. All those opposed? It's postponed until September. A 2009-51 coffee times are you the applicant? Are there any objectors here? The staff recommended disapproval of this case so it will be heard towards the end of the document. A2009-52, Karen Payne. Are you Ms. Payne? Are there any objectors here for that case? Are there any cases which people are here that I did not call? All right. The first case is V2009-53, Michael Hudson. Good afternoon. How are you? Would you state your name, please? Mike Hudson. Mr. Hudson, the staff has recommended approval of your request subject to three conditions. Have you reviewed those conditions? Yes. Do you agree to abide by them? Sure. Are there any questions for Mr. Hudson? No. Questions from the Board for you. Mr. Hudson, I was curious about when the sunroom was built I'm going to say early 80s maybe well, middle 80s I think that garage was built in the early 80s so you've owned the property only since those were well, no, I've only owned the property since 99 my parents have we've owned the house since it was built, more or less Thank you. I wonder if the staff could put the photographs up. Mr. Hudson, maybe I didn't see this in the report, I just don't know so I'm going to ask. print of this of your garage be for the room addition be enlarged at all? The base? Right at the... No, no. What we're doing the little... This little part here right there that'll be taken off and then a gable roof will come out over the entire garage there, over the entire part all the way up. Now it's about halfway. What it was that was put up is like a sunroom type deal it wasn't enclosed then it got enclosed and now it leaks it's just it's a mess. What we're wanting to do is extend the roof out but like I guess it's a gable roof and make more of just a room there where it would be like part of the house instead of a center room. So it won't extend I guess the white wall there is that your garage door? Right. So it won't extend out past that? No. I have some other pictures that you can see a little bit better of what's going on. Well does the board have any other questions? Okay. Well I don't think we need to see them. Any other questions or discussion by the board? If not, I'll entertain a motion. Mr. Chairman, I move that D-2009-53, Michael Hudson's appeal for variance to reduce the required side street yard from 30 feet to 17 feet for a room addition over an existing garage in a single family residential R1C zone. On property located at 1900 Appomattox Road, Council District 11 be approved. as recommended by the staff and subject to the three conditions. Thank you, Mr. Stout. Do we have a second? Second. All right. All those in favor of Mr. Stout's motion, please signify by saying aye. Aye. All those opposed? Motion passes. Good luck, sir. Thank you. You're welcome. B 2009-54, Showprop Lexington, LLC. Good afternoon. I'm Chris Westover. I'm the attorney for the applicant. We've read the report. We understand the conditions and agree to abide by them, and we respectfully request that you approve the variance as submitted. All right. Thank you, Ms. Westover. I have a couple questions for you. There's going to be a bridge over, is it South Broadway? No, sir. It's going to be over the railroad tracks. Okay. And when do you anticipate that being completed? We expect that to be completed probably in conjunction with the construction of Newtown Pike Extended. That is going to go, can you hear me very well? It's going to go on the other side of the railroad tracks, the Newtown Pike extension. And one of the feet for the pedestrian bridge is going to be on the corner by the restaurant at Angliana and South Broadway. It will go over the railroad tracks, and there will be another foot on the other side of the tracks that will provide that connectivity with pedestrian bridge across in conjunction with Newtown Pike. Okay. So would your client have any problem with, I guess, having a recommendation being that the certificate of occupancy be withheld until the bridge was complete? Well, there could be some problems with that because our project, Phase 1, will be the movie theater building, the bowling center, and so forth. And it's possible that it will be open before Newtown Pike comes in. It's also possible that we might be able to do the pedestrian bridge prior to that, but we really don't know at that time. I can tell you, Chairman Brown, that this will be an issue to be discussed at the Planning Commission when we get final development plan approval. Anyone else have any other questions? I've got a couple more for you. I'm unclear as to why the variance is needed. I don't know if it's for the purposes of the movie theater or the purposes of having a structure that shows up high enough for people from South Broadway to see it. So do you have any three-dimensional drawings or renderings? Anything of that sort? I have some drawings and I also have some photographs of some of this developer's other projects in Southern California. This is a type of signature architect for this particular developer. He does really unique types of structures and he likes to have soaring lobbies and mezzanines. In addition, he has in some of his projects and he's considering it here, an oversized screen. It's not an IMAX screen, but I have here something that shows that it's a six-story tall screen. I'll put a couple of these up to show you this is indicative of the type of architecture he does and the type of product he does. I'm not certain how well you can read that. I'm having trouble reading it, but it says that it is the largest screen in the San Gabriel Valley, and the screen is six stories tall. So he does incorporate really large screens within his movie theater. And it's for that reason, too, that we have only asked for a variance on a portion of the movie theater building. So it's in combination with that. And there are some other photographs as well. I think you can see some of the lobby shots, for example. that the blue at the top, that's still within the lobby itself. He has these very large lobby-type areas. It's the whole product that he does. It's not just your garden variety movie theater. And if he wants to do a project similar to what he's done and done very successfully in Southern California, he needs to have the ability to go up to do the height, to be able to have the large screens that he likes to do. He uses 3D screens, and he really has a very unique type of presentation. All right. Well, those are photographs of the exterior. Do you have any drawings or anything of that sort that would show the plans or layout of the interior? Yes, I have a rendering of the movie theater that's proposed. And this is a concept sketch. And it may be subject to change, but this is the drawing that was submitted along with the final development plan, the preliminary development plan, and it will be considered as part of the tax increment financing application that's also being submitted. I have a question for staff related to the height. It's my understanding if it's not a readaptive use it would be a 75-foot maximum, and because Because it's a readaptive use, in the absence of a variance, it's 48 feet. What is the reason for the much lower height limit for readaptive uses? Adaptive reuse provisions that you're looking at in the industrial zone are very new. They have only been adopted within the last five years. I think it was thought that generally existing buildings in industrial areas were more warehouse type and in fact there is a warehouse as part of this project that is proposed to be adaptively reused for other purposes and it is about 40 or 45 feet in height i can't recall whether that was specifically discussed by the planning commission and that number agreed to or whether it was modeled after another ordinance, to be honest with you. Respectfully, coincidentally, on behalf of another client, I submitted the original text amendment for the industrial adaptive reuse project provisions that were subsequently adopted. And I don't think that there was a great deal of thought given to that it's when we write new legislation any time. sometimes it needs to be adjusted. For example, in the mixed-use project category, there have been numerous text amendments to that after it was originally adopted. It's part of the process of fine-tuning it. What I'm going to show you next is it's in the same development. It's not the movie theater, but it's the restaurant that's by the pedestrian bridge that you mentioned, Mr. Brown. But this developer has, for a period of 25 years, in all of his developments, he does these signature architectural pieces and he feels that this is essential to the success of his project because he has this unique type of development and that's why the 80-foot variance is so important to him. Ms. Westover, right here. I've been looking at these photographs and I don't see, and that one that mentioned a six-story screen, I haven't seen a three-dimensional building that seems to be six stories. In this photograph, it looks like the seven stories with a pole on the top is mostly attention-getter. There's no volume inside that tower that I can see. We do not have a three-dimensional sketch at this time of the building. These are concept sketches that were submitted as far as what is being proposed. But if this is approved, and I would request that you approve it, at the time of the final development plan and later, those will all be nailed down. This developer, George Krikorian, requires the flexibility, knowing that he's got that variance, to submit something that will be in conformity with his other developments and will be successful the same way they were in his other developments. Well, at first I thought you were saying that he had a standard plan that he was trying to replicate here, but now it looks like each of his projects is different from the other. So you're asking us to give you an 80-foot limit without knowing whether it's a large building or just an attention-getting tower that you're going to hang neon on. This tower is not part of the movie theater. This tower is going to be public art, and it is at a different location. The movie theater is the first photograph that I showed. What this developer wants is some certainty coming in that he will be able to do the type of movie theater that has been so successful in the past with him at the other locations throughout Southern California. Well, my worry is that he's asking us to trust him and I feel like he should submit something with substance so we know what we're allowing to be billed. The difficulty for this developer is until the final development plan is approved, until the TIF application is approved, that he will not have that final plan. Would it be possible to put a condition of approval that this comes back to you for final review? And that way that will give him the certainty that he can design a building that fits and that the final architectural details can be submitted to you for final approval. There's also the additional assurance with the Planning Commission having to approve a final development plan as well. Mr. Chair, I'd like to hear the staff's comments relative to this. I know you have recommended that it be approved, I guess, and from what I read here, I'd like to hear your opinion relative to the comments that have been made by not only the attorney but also by the board we are recommending approval of the requested variance I think the points about it that we thought were real important and should be emphasized are it's a large development I think what 17 acres or so Chris so it's gonna be multiple buildings the variance is only requested for one of the buildings and even within that building it's just a portion of the footprint 50% of the theater portion of one of the buildings so the past type of variances that this board has approved tend to rely heavily on height variation as part of the justification for example some of the larger developments it's just one corner of a building where they wanted a height variance that kind of thing so we thought that was an important feature of it those prior approvals have not been conditioned on any final design review so I'm I understand mr. Griggs concerns and some of your other concerns about not knowing exactly what it's going to look like, but if there's a way around that, we need to be cautious. Subjecting it to a final design review has a lot of potential complications. We did that with CVS because we basically had to. We didn't have a choice. So if there's any other option you all can consider that might get around that, we might need to explore that. factor that it's part of this, it doesn't address the specific building issue, but this particular structure is next to the railroad property and it is behind Angliana. Angliana is, I don't think you can see this very clearly, but this is a pedestrian walkway and there are other buildings that front on Angliana. So it's not possible to really see the movie Theater Building from Angliana Avenue. Okay. The movie theater portion of the building is in the middle there. And Angliana Avenue is much farther out. You can see where Angliana comes and curbs around. So it is behind the other buildings. It is behind the adaptive reuse area. Behind the movie theater is railroad property, including the active railroad tracks. So it's not visible from behind. It's not really visible from South Broadway, which is far to the side. It won't be very visible from Angliana. And on the other side is a student housing project. So it's not very visible whatsoever from any vantage point. And part of the concern of the developer is if it's too tucked away, if it's too hidden, nobody will be able to see it. Any other questions or discussion? Can I just ask one other question? What are the black dots between the three buildings that exist in the proposed building? Is that just empty space? I'm trying to see the black walk space. The pedestrian plaza from the three buildings that are on Angliana Avenue, it's the pedestrian plaza that was shown on the rendering. The three buildings in the front, the one on the far left is the adaptive reuse building for the tobacco warehouse. house and then the other two buildings are multi-use buildings with retail on the first floor and residential on the second floor and those three buildings up front both on Angliana and to the pedestrian plaza and then the movie theater and the bowling center is behind that and then it's parking where the hashed marks are on either side the parking is around to the sides and then there's also a parking structure across Angliana Avenue. So the variance is only for a small part of part of one of the buildings and that's to give it the additional visibility as well as to allow the movie theater to have the same type of amenities that has been a key to the success in Southern California. This is at least a $70 million project. There's going to be a great deal of public-private participation and it is really important to be able to allow this development to go forward as intended. There's a lot of money involved, there's a lot of risk involved, because part of the development will also include major relocation of transmission lines, putting in the pedestrian bridge, and so forth. So it's critical that this developer be able to do what has been a successful formula elsewhere, because there is so much money that's going to be invested in this project to make it work. Ms. Westover, I think you've turned to me. What you've said and what the staff has said is I'm okay with it. And we have somebody in the back. Would you like to come forward please, sir? Are you an objector, sir? No, sir, I'm not. I'm actually in support of this. I own the properties directly across the street on uptown hounds and it's called screech properties and also south broadway collision and sir what's your name sir steve robinson okay thank you and one comment that i think everyone's overlooked right now there's an existing probably 80 or 90 foot tower that exists on that property right now that i look at every day and i think what i saw i'm much more enthused about that than look at that tower and I'm just very thankful that we have people coming into Lexington and want to take existing land that needs to be reused to be used at something like this this is this is a great project thank you any other questions or discussion if not I'll entertain a motion Mr. Chairman, I'd like to move that V-2009-54 Showprop Lexington LLC appeals for a variance to increase the allowable height of a portion of the proposed theater building from 48 to 80 feet in heavy industrial zone on properties located at 475 and 497 Anglian Avenue be approved with the conditions as set forth by the staff. Second. All right. All those in favor of Mr. Stumbo's motion, please signify by saying aye. Aye. All those opposed? Nay. All right. Motion passes. Thank you very much. Thank you. the 2009-55 Dennis Anderson Trailside and McConnell's LLC Chairman, members of the board, I'm Tony Barrett, Barrett Partners, on behalf of Dennis Anderson, Trailside at McConnell's LLC. First, let me just say that we're in agreement with the staff report and the conditions for approval. Dennis Anderson is here, as well as Commander Mark Barnhart. He's one of the members from the police staff with the Safe by Design standards, and he'll give a little presentation as well about the concepts that we're proposing to implement here. The situation is such that this is a townhouse development in McConnell's Trace and there There are two different scenarios where you have townhouses that back up to the Greenway Trail, the path, it's an asphalt path. The townhouses front on the public street, McConnell's Trace, and they have a rear garage, one of an alley. That's one scenario. And then another scenario is where the townhouses are turned to face each other and are accessed front on a green, on a common green. And then they have rear garages as well with a drive that runs perpendicular to McConnell's Trace and kind of stubs dead ends at the trail. So where we have a parking lots, the alleys are referred to in the ordinance as vehicular use areas and where you have a vehicular use area that is adjoining the property line you have to screen it with a hedge, three foot hedge and trees every 40 feet. the circumstance that the pathway follows behind the townhouses and then beyond the pathway paralleling the pathway is the railroad track and the existing vegetation along the railroad track is very dense and it's basically not visible through the fence and plus it's railroad track which is not occupied so what's going to result if we were to follow the ordinance that strict application is as we would create a corridor of the existing vegetation on the railroad track side and the hedge on the townhouse side and essentially screen visibility of the of the path and and our intent is to make the path visible to the townhouses for security of both townhouses and the people on the path as well as the townhouses. I met earlier with a professor from Eastern Kentucky University who specializes in safe design standards, and he talked about terms that he used were natural surveillance which is basically what I refer to as eyes on the trail or at least a perception of eyes on the trail where you have the potential for passers-by to see the trail and also potential for people on the trail to see the townhouses and that provides a security for both scenarios and through his research he's discovered that a large part of crime is a result of what he refers to as negative landscaping and he defined this as a negative landscaping whereas the hedge would essentially block the townhouses and it would block the views to the trail and that lends itself to a potential for bad behavior or criminal activity and so our request is to eliminate the hedge and as a result of that to kind of improve the aesthetic of it we are proposing to increase the number of trees the trees required are 40 feet on center and we are proposing to increase the number of trees so that the average spacing along the trail where it is running along the vehicular use area increases from 40 feet on center to 25 and a half feet on center. So there was a little misunderstanding I think in the staff report where they said that was for the whole length of the trail but it was for where the driveways are particular. So if you look at the plan that was submitted with the application, there's a total length of vehicular use area that runs parallel to the bike path of 994 feet. If we were to plant the trees at 40 feet on center, we'd have 25 trees. we are proposing to have 39 trees and that mathematically comes out to the 25.5 feet on center for the tree so we've increased the number of trees along the whole townhouse development we're proposing 59 trees so that's the 39 where the part where the vehicular use area is plus 20 additional trees where the houses are So we'll use trees from the acceptable plant list. And what I'd like to do is have Commander Mark Barnard come and give you some of their concepts on the safe by design standards. Mr. Barrett, Mr. Barnett, I have a question for you. It's Barrett. Barrett, I'm sorry. the bike path is it going to be public the bike path yes sir it's part of the town branch trail system and it's a suburban bike trail through this part is suburban through the McConnell's trace neighborhood and extends on down to the other neighborhoods but it's a public it is public yes sir okay all right thank you good afternoon afternoon state your name please mark barnard barnett barrett and barnard okay barnard bar and a rd sorry i apologize to you uh just background uh i was contacted this morning and asked to look at go through the rails for trails area back through the mcconnell trace and look at it based on the criteria that we're implementing with a project called Safe by Design. Safe by Design is actually a project run in England, and it's been run in the Netherlands for several years, called Secure by Design. Chief Bastin asked us as commanders to go out and find ways with restricting budgets and everything else to help with initiating initiatives that would reduce crime. This started initially for me while getting my master's degree at Eastern Kentucky University and talking to them. And what we found out in being part of central sector as the commander there was environments affect crime. So we tried to help the neighborhood associations do things. Well what we found out was we were doing the same things that were kind of common sense, but was never put into a formal package. I was transferred at that time to another sector called East Sector and started working with other neighborhood associations, Woodhill Association, and did the same thing, a project for them. From that stage, Chief Bastin and a group of those went to meet with the initiators of the Secure by Design project in England, the London Metropolitan Police Department. This is a national program that Great Britain uses and the Netherlands currently uses. The Secure By or Safe By design initiative, which is the first in the United States that ever started to be implemented, which is beginning here in Lexington, looks at environments and how that affects crime. Part of that are, I guess what we're talking about today, are the environmental issues with shrubs and scenery outside. What I noticed in just going through here, and I guess we have to take some of the blame, because Mr. Anderson, we asked him for some expertise to go with us to London, got the initiatives of some of the things that we were talking about. We may be ahead of ourselves because we haven't brought it to a formal package, but that is site on trailways and paths. Since we've begun the Safe by Design initiative in Lexington, we've worked with Jay McCord and other council members and people of the scenic byways to talk to us about how we can make those safer. The issue that they're talking about today, I went out and I wasn't very sure, so I went out and they gave me a plot to go look at, I guess is the shrubs that are putting around a parking lot. Our opinion would be any time that you see something in the panopticon, if you remember that was a system that they were talking about where they put one person to watch all the prisoners in this panopticon. And what we found out was the one person can see all the prisoners, but all the prisoners can see the one person. So history shows us the more people that you have viewing something, the better off you are. So as a security and a safety issue, looking at sealing something off. And I wish that people had come to us or we had gotten this program before they were developed because you can walk along this pathway and you can see these eight-foot fences along here where people are saying, I don't want anything to do with it. The problem that creates is anybody can climb over the fence. It's not that hard. And the safety issue is that you can't see what's going on behind the fence. The same thing I would say for these shrubs is, I understand aesthetically you want something, and it's always in a state of compromise. But what the police department would appreciate is if people were walking, which I was encouraged that people were pushing children on the trail today, is that you can see what's going on in there. and that people from that area can see what's going on to the trail. So anything blocking those views really is kind of indifferent to the safety aspect of what we would encourage to happen. Secure by Design in London, and the reason we're so excited about it, is in some aspects of it where they initiated this project, they decreased crime since initiating this project by 45%. Now, 45% is a lot of victimization, it's a lot of city resources, it's a lot of state resources in responding to crime related issues. So that's why we're pretty excited about this package. We will be bringing it forward to the mayor and to the council soon. We're working in conjunction with several universities, other entities including Eastern Kentucky University. I can only tell you from my expertise in dealing with crime, dealing with environmental issues, and what I've learned from the gentleman in London, England that helped initiate this program. My expertise in the area. Anytime you have more surveillance on an area, the better off you're going to be. I read in the package, and I'm not familiar with this organization how it works, so I apologize, but they were talking about a three-foot shrub to however many shrubs. And I went out, and it's a three-foot area that's blocking one section of the parking lot. My suggestion, or my opinion would be, don't limit yourself to those, because what you're doing is creating a natural barrier for anyone, people, or something to hide behind. The more often that you can see something, the more that you know what's going on. That deters crime. We know it. Woodhill Neighborhood Association, and I'll stop after this and give you an opportunity to ask me questions, asked me to come in because they were having problems. We started affecting the area environmentally, bringing the community together. Church came in, helped do things. We built this wonderful, the church built this wonderful playground equipment set. And all of a sudden we came back and it was dismantled. The person said, you know what? I could hear people out there at night doing stuff, but I couldn't see anything. I didn't know what was going on. We had people in the community that wanted to be involved and know what was going on, but they were blocked by shrubs. The trees were low, undercut, never done. They cut the trees up. They put the shrubs out. They opened it up so that everybody could see the playground equipment and haven't had a problem since. That's just one example of kind of what we're talking about. It seems to be common sense, but it seems sometimes we don't put it into formal aspects. So I'm not for or against. I'm just trying to give you a little bit of history of what we go through and what we see. We're excited, one, to be able to be asked to come and give our opinion on something instead of having it done, then have to come back later on and be tasked with policing the area and saying here's what we'd like to see done. So this program's meant to be proactive, help you all, help the developers and everyone else. Any questions? Yes, I've got a question. And what we're talking about here is three or four hundred feet of two-car garage doors and then the asphalt behind those, and then there's a three-foot strip of grass before you get to this public trail that's called a greenway. Yes, sir. And Anderson has designed this so that there's all that asphalt next to the trail. And the ordinance requires a three-foot hedge. And there's plant species that would not grow taller than that. So do you think that a three-foot hedge would be enough of a barrier to a visual inspection of the trail that there'd be significant crime behind a three-foot hedge? Well, one, let me say, I don't know what the ordinance, I apologize, I'm ignorant of the ordinance. I can only tell you the safe by design concept would say no. and that's based on research, data, and actual crime statistics. I don't know what goes into deciding a three-foot hedge, if it's aesthetics, if there's research and data associated with that, or if it's just an aesthetic value. So I don't have that background, so I can't answer it. Now, a three-foot hedge, I assume, is about this high? Sure. Okay. Based on grade, and that one position doesn't have grade, but what I'm asking you is everything is individualistic but based on grade, if a grade comes up and then goes down then you add another three foot on top of that see what I'm saying? So each thing has to be and I saw the area that you're talking about the only thing I would say about a three foot grade is especially at night and where the people are out at night trying to catch people is people do lie down they do hide under cars, they do hide in there if somebody's walking on that trail at this grade and at three foot added up onto it and looking up into that parking lot. And that grade, I believe, is more like this. It's pretty level. Yeah. Once again, I can only tell you, for that one instance, you're doing two things. You're blocking people access to and from going through there onto that pathway, which is what we want, I assume, people to walk on that pathway. And then you're creating a visible barrier up into the parking lot. For me, for living in that parking lot, I want people actually on the trail because they're walking and seeing what's going on in my parking lot. I think there's garages for people, so I can see if people are up in and out of my parking lot. I don't know if that three-foot hedge serves as anything other than a barrier, but it is a hindrance in the public safety aspect of being able to do eyes onto the property. So I don't know what the purpose or the historical data behind or research is behind a three-foot barrier. So in England, I can tell you, they built walls, for instance, and they looked at it and they said, well, this wall, you know, is all right, but it blocked everything. So they dropped the wall down, but the code told them they had to add so much foot to the wall. So then they put fencing on the wall that aesthetically blended. The architects blended that in, but you could still see through so that you could have eyes onto the property, and they were at great. So I really don't know how to answer your question. I don't know the historical reference or data behind the three-foot hedge. I can only tell you about safe by design or secure by design standards. It would be in a negative impact other than a positive. Yes, sir. Any other questions I can help you all with? I don't have any. Thank you, all. All right. Thank you, Officer Barnard. Mr. Barrett, anything else? I've got some photographs that might help kind of demonstrate some of the situations along the trail that you have. Check. It was a dark day when I took these pictures. I took that picture, it would be pretty. That's somewhat better, but this is just to show what Officer was talking about. These are the townhouses along here, and this is the driveway here. This is the trail. Let me slide that over just a little bit so you can see the trail. And this is the grade he was talking about Here it starts to fall away It does level up at the other end a little bit But it undulates quite a bit And then just down from that Is another This is offsite But this is the character of the trail As you just passed the townhouses And this is a similar situation where you have the public street these houses are fronting the trail but there's no hedge and there's really no trees here either but we'd have a very similar situation to this but we'd have the addition of the trees so that's kind of a similar situation the other kind of character of the trail is where it just backs up to the neighbor And here's another just where you have single family homes backing up to the trail And this is probably a pretty good situation here where there is They haven't installed any fences and there's not any landscaping to speak of But they have clear visibility of the trail so it's a secure part of the path Those are just some I just wanted to kind of give a little characterization of what the trail itself. Thank you. Mr. Barrett I've got a question for you. Is your position the position of your client to place trees instead of the hedge is it primarily a safety issue? It's entirely a safety issue, yes. To eliminate, well, not to place the additional trees on there, but to eliminate the hedge is the safety issue. The additional trees is just to try to increase the aesthetic character of it and also just a little incentive to go along with it, basically. Okay. Thank you, Mr. Barrett. Any other questions or discussion? If not, I'll entertain a motion. Mr. Chair, I'd like to move that V2009-55 Dennis Anderson slash Trailside at McConnell's LLC appeal for a variance to eliminate the required hedge for a vehicular use area that adjourns a greenway and a townhouse residential R-1T zone on properties located at 372, 380 and 384 McConnell's Trace and a portion of 3000 Lees Town Road in Council District 2 be approved as recommended by the staff subject to the three conditions. Second. Thank you, Ms. Edwards. Now, Mr. Barrett, I'm not sure that I asked you if you'd reviewed the conditions. Yes, we're in agreement with the conditions. Okay, I just want to make sure I couldn't recall. Mr. Brown, could I just add one thing? Tony mentioned something about increasing the number of trees, and an average 25-foot on center for your trees. Do you want to make that a condition that the trees be put on 25-foot centers? I think it is. Okay, I'm sorry. He just gave a specific number. I didn't know if you wanted to make it that detailed or not. Okay, so are you okay with the language and recommendation number one? Yes, sir. Okay. All right. All right, we have a motion. Any other discussion? I'm seconded. All those in favor of Mrs. Edwards' motion, please signify by saying aye. Aye. All those opposed? Aye. Okay. Thank you. Motion passes. Thank you, sir. V 2009-56 Lisa Barrett. Good afternoon. Good afternoon. Can you state your name, please, sir? Mark Stel, S-T-E-L-L. I'm a contractor representing Ms. Barrett. All right. The staff's recommended approval subject to three conditions. Have you and your client reviewed those conditions? Yes, I'm in agreement. And will she agree to abide by those? Yes. Okay, thank you. Mr. Chair, we also have a letter from the next door neighbor that they state that they have no objection either. Okay. All right. Any questions or discussion? All right. Well, if there are none, then I'll entertain a motion. Mr. Chair. move that we approve B2009-56 Barrett's appeal for a variance to reduce the required side yard from eight to four feet in order to construct an attached carport in the single-family residential zone on property located at 1350 Bordeaux Drive subject to the staff's three conditions. Thank You Mr. Griggs. Second. Thank You Mr. Stout. All those in favor of Mr. Griggs motion please signify by saying aye aye all those opposed good luck to you mr still motion passes our next case where their staffs recommended approval and there's no objectors is c 2009-49 Ray and Kelly Van Meter, Monkey Joes. Good afternoon. Good afternoon. Would you state your name please? My name is Sean Collette. I'm a representative who's been working with Kelly and Ray Van Meter and has been working with the plane and zoning. okay Sean would you spell your last name for me C-L-L-E-T-T all right thank you sir and who are you sir I'm Ray Van Meter I'm the applicant okay all right now the staff has recommended approval subject to five conditions have you reviewed those conditions sir you agree to abide by those yes sir one question I had was for staff does there need to be a limitation in prohibiting a kitchen in this facility? I might need to defer to Mr. Yume as to how important that might be. No, I can't think of a prohibition on it. It's not living quarters. Okay. All right. Any other questions or discussion? Okay. If not, I'll entertain a motion. Mr. Chairman, item number C, 2009-49, Ray and Kelly Van Meter, Monkey Joe's appeal for a conditional use permit to establish a children's entertainment center and light industrial zone on a property located at 1850 Bryant Road. I move that that be approved, subject to the conditions as set forth by the staff. Second. One question I have. When do you anticipate opening? Hopefully January 1st around that time. All right. So you won't make it for my daughter's November birthday. No chance of that. Maybe Christmas. Okay. All right. Thank you. All those in favor of Mr. Stumbo's motion, please signify by saying aye. Aye. All those opposed? All right. Motion passes. Good luck to you. Thank you. Is there anyone here for the Robert Douglas case? like the last case of objectors is a 2009-52 Karen Payne good afternoon would you state your name please Karen Payne PAYNE now staffs recommended approval subject to two three conditions have you reviewed those conditions I wonder if the staff could get some photographs of this property. Mr. Brown? Yes, sir. While she's reviewing the conditions, I'll just remind the board that we did have a case similar to this two or three years ago concerning a second story on a detached garage that was built without a permit and this board actually voted to have that removed. Was that the Conrad? Wyatt Parkway. No it wasn't Conrad. I can't remember the applicant at the time but it's over on Wyatt Parkway. Okay all right. Yeah I do agree. Okay, you agree with those? Okay. Are you able to get a photograph? Now, Mr. Hume, I have a question for you. Is there any question as to whether a permit's necessary for a construction project such as this? Absolutely. There is. Okay. And the issue on the Wyatt Parkway was a complaint on the height of the structure. It was too high. I haven't seen this structure, haven't been on site, but it certainly exceeded the Wyatt Parkway site certainly exceeded its requirements and it was directed to be removed and lowered, which they did comply to. So it was also built without a permit, very similar to this. It's not higher than the main residence. It is not higher. Thank you. Okay. Now, Ms. Payne, I have a couple of questions for you. Your application gave an address of the 1535 Delaware Avenue. That's just my business where I get all my mail and everything. Okay, and what business are you in, ma'am? I have a cowgirl's attic. It's architectural salvage and antiques on Delaware Avenue. So, you don't reside at Delaware Avenue? No, no. I reside here. It's a farm. It's a farm. It's a five-acre farm. So you don't reside at the Huffman Mill property you own? No. It's a rental. Okay. All right. All right. Any other questions for Ms. Payne? Right here. Ms. Payne in front of you. I'm curious to know how this building got so far along without a permit. Well, what happened was I was outside, we had a storm, and it blew the, it had a rubber roof on it. It was already made for a second story when I bought the property, and it blew the rubber roof off, and I had all these tools and things stored in there, and we just did it in a weekend. I went and got the materials, and bam, it was up. So that was just why. How was it brought to the attention that you needed a permit? How did you discover that you were in error? Somebody came. I don't know how the complaint got there. I think it was a personal issue with somebody that had something against me. It wasn't a neighbor or anything. Because it's off the road, and when the trees drop their leaves, you cannot see back there. So in the fall, all the leaves dropped, and you could see it. But before that, you can't see it from the road. It's covered. You know, it's trees all around there and everything. Did you draw plans for this that you gave to a carpenter that started framing it? Just me and a couple of guys that worked for me. We did it on the weekend and threw it up there. Well, before you knew you needed a permit, I assume you were going to put a kitchen in this. It really isn't a big deal to me. I can use it as an artist studio. I don't have – it's not a living quarters. In the staff report, it says you're going to house your elderly mom. I want her to stay there when she comes over, but it's not, you know, I don't have to have a kitchen in there. It's not important to me. It's just, you know, the reason was to get it up and to cover my tools and everything. And if my mother comes over, I'd like for her to stay there, but, you know, it's not necessary. It doesn't have to be the living quarters. You own other rental property? Yes, a couple others, yes. but I live here. Well, it's so big, and it just looks like it lends itself to being a self-contained apartment, and I've been listening to these applications for five or six years, and typically that would turn into an apartment before long. Yeah, but my mother is going to move in with me eventually because she's older, and I'm probably going to sell the property too so I mean it's not I'm not going to make an apartment and rent it out well I'm not so in addition to the architectural salvage are you in the construction business at all well I had flipped houses before so I know about structure and you know walls and all that stuff so I've done some things like that so it'd be fair to say that you knew you knew that you needed to get a permit no I did not know I needed to get a permit no not at all or I would have done so I mean like I said it was a split second decision the the rubber roof went up in the air and split although you know it's getting ready to rain the next week you know the forecast and I had to do something and it was already meant for that so I just did it without thinking or even any kind of consequence all right thank you any other questions or discussion chairman yes sir mr. Stout I'd like to add another condition please is that this be reviewed within the next year relative to the use of this particular property. Mr. Stout, why don't we make a year review of it after the occupancy permit, 12 months after an occupancy permit. Mr. Hume, what do you think of that condition? I'll probably be retired by the time that happens. Really I have no desire, it's a five acre track, I have no desire to rent that. I live there, I don't want to have tenants there. It's a beautiful piece of property, it's right off the Ferris Pike. I have no desire to have somebody else living there besides my mother staying there or anything. You know it's a private area, it's way off the road, it's not something that I want. want to have renters out there. Any other questions or discussion? If not, I'll entertain a motion. Mr. Chairman, I move that A2009-52 Karen Payne appeals for an administrative review to allow a second story on a detached garage to remain, thereby exceeding the maximum square footage for all accessory buildings on the lot, 1,302 square feet in a single-family residential R1B zone on property located at 2445 Paris Pike council district 6 be approved as recommended by the staff and subject to the three conditions with the four additional condition the additional fourth yes I'm sorry miss miss Payne I didn't ask you if you're agreeable to the fourth condition which whatever it takes to leave it like it is I mean I'm a you know I don't have any problem I'm not good like I said I'm not gonna be running it out it's not it's a non-issue with me all right thank you we have a second we've taken a stab at the fourth condition on the overhead for you review by the board is required one year after occupancy all right do I have a second to mr. Stout's motion I second that mr. chairman all those in favor please signify by saying aye aye All those opposed? Nay. So there are three nays? Two nays. Okay, so three nays. All right, so we have a tie. We have a tie. Oh, great. Okay. So is there another motion? So Ms. Bowen, at 3-3, the motion fails? That's correct. The motion did not pass because it was a 3-3 vote, so the relief being requested by the applicant has, at this point, not been granted. All right. So are there any other motions? You know, even with me promising you that it's not a rental, I mean, you know, with the review and everything. Well, we've taken a vote, ma'am, and there's no other motions. So the motion ended at a tie, so there's no action taken by the board. Oh, okay. So I don't guess I don't know what that means. Okay. So it's approved or not? So it's not approved. Uh-huh. So your options are, I'm not qualified to tell you, Ms. Boland, you know? I think at this point there needs to be an order to remove and make it compliant. Because at some point I want to, the main house is really bad shape and I want to really expand that and sell the property at some point. You know, it's a million dollar piece of property. Well, I don't know what to tell you as far as options. We will issue an order to remove. Okay. I'd like to appeal it. certainly have a right to do that I suggest that probably go by Monday morning talk with building inspection so what is mr. Hume's a representative of building inspection thank you ma'am The next case is C2009-48, the Baja Ratia Temple and Cultural Center. Good afternoon. Good afternoon, Mr. Chair, board members. I'm John DeHart with ThoughtSpace Architects representing the client on this project. I'm sorry, what's your name, sir? John DeHart, D-E-H-A-R-T. All right. Thank you, Mr. DeHart. Now, the staff has recommended disapproval of this case because my understanding is their lot real estate is less than 20 acres and there's a limitation in the if the in the AR zone if the lot is less than 20 acres of 10,000 square feet which is currently being used my understanding so and then the third finding is that the Board of Adjustment is not authorized to grant an appeal or variance or anything concerning a numeric limit as far as square feet goes. Yeah, I guess our concern or what we are coming to you for some advice on is that whether this is considered building or not because it's an open canopy, currently there's an existing slab there that the client's using with temporary tents for outdoor activities when they have ceremonies that they hold outside. and the sole intent for this project is to offset the expense of renting these tents every few months by building a hard structure there we would certainly entertain deed restrictions or any kind of requirements that it can never be enclosed it's not meant to increase their membership of the temple it's solely so that they can offset the expense for renting tents every few months so we kind of see it as not being a building I think building department says well it's hard square footage but without any walls it's not enclosed it's an outdoor space well and let's see article 111 defines a building as any structure for the shelter or enclosure and with this you're not the first group to bring this before the board I guess I would probably since it's a recommendation of disapproval probably ought to hear from the staff and why they think what you propose is a shelter or enclosure okay if there's any like detaching it from the existing building if there's any way that we can construct it so that it's seen as being more of a shelter, we'd be open to any suggestion. All right. Very good. Do you want me to go ahead and focus on that specific issue, or did you want to run through with the slides? Well, maybe just run through your report and then focus on that. I'm sorry. Just run through your presentation and focus on the issues he's addressed. This first shot hopefully will be an aerial of the property. Mr. Marks, do you know how many acres there? It's a 10-acre lot, so they don't meet that 20-acre threshold for under some circumstances. you do have 20 acres you can get an additional 10,000 square feet but they don't qualify for that okay this is at the corner of North Cleveland Rhone and Winchester North Cleveland being along here Winchester being right here this is the 10 acre lot this was approved by the board in 2002 as a church facility it's been constructed you can see here the building that meets the maximum size of 10,000 square feet this is the paved pad that he was talking about where they wanted to expand and then put the outdoor pavilion over that as expanded this next area will just show a little more close-up of that pad area right in here that general area I think it's going to be an L-shaped pavilion but that general area will also include enclosed buildings restrooms and a storage area this is a rendering that they provided with the application showing a general idea of what this proposed structure would look like there you go the wording in the ordinance about the 10,000 square feet refers to all structures clearly that what they're proposing is a structure I don't think there can be any doubt about that so our hands were kind of tied as far as what we could do with this especially given the limitation of the board's authority not to vary what's called a numeric requirement as opposed to a dimensional requirement like a setback so given that there's no question it's a structure and the specific wording of the limit says all structures we just didn't have anywhere to go with it it was it was a dead end for us now that if they bought additional property and got into the 20 acres then they would have options wouldn't they I believe it's we can pull up the wording it's a little bit tricky how that wording I think they would have had to have owned the 20 acres prior to prior but just to be sure okay and then what about getting those if they got zoning zoning different than the agricultural rural well yeah that's that's always an option this is outside the the urban service area boundary that would be unlikely so it would be very unlikely to it would be contrary to the Comp plan recommendations. It's an option. We're certainly not recommending that, but it's an option. Any other options that would make this possible? Well, the key word to me was enclosure. If it's not enclosed, how can it be an enclosure? Well, I'll put up the definition of structure. Okay, we'll put that up when we're done here. That language scrolls to the top of the next page which continues with the date restriction of 1999. So they would have had to have the 20 acres, so even if they got 20 acres now they couldn't do it. So then my understanding would be a tenuous option of rezoning that would allow an increase above the 10,000 or they continue with temporary structures and what are the requirements for temporary structures on this I mean is that something that they can only stay up for a certain period yeah Mr. Hume would have to advise us on that temporary structures are limited to 180 days then they have to be removed I'm sorry Mr. Hume I didn't hear your response I'm sorry Temporary structures are limited to 180 days of erection and then they need to be removed. They'll need probably a location permit, if anything, inspections, depending on what it is, such as tents usually are when we give those kind of documents. Maybe that's helpful. Now, I think there's an objector here. I'd like to hear from them if they still want to present. Well, if you'd like to address the board, would you come to the podium, please? And Mr. Dehart, you'll have a chance to respond to them after they make a presentation. Thank you, Chairman Brown. My name is Knox Van Aughel, and I'm here on behalf of the Fayette Alliance. And we really have nothing further to add beyond what has been stated in detail by the staff's report. We have submitted a statement for the record in your packet, and you're welcome to read that. We just feel primarily for two main reasons. While we absolutely respect what the Temple stands for and their role in the community, we feel that if this were allowed, it would set a very dangerous land use precedent by which the 10,000 square foot limitation for non-conditional agricultural uses in the rural area can be overturned and then lead to potentially the widespread construction of churches and other non-agricultural disruptive uses in the rural area. And so for these reasons, in addition to which, we feel that it's questionable at best whether or not the Board of Adjustment even has the authority to rule and increase the numeric limits of a non-agricultural use in the rural area outside of the urban services boundary. In contravention to the comprehensive plan, we feel that that is questionable at best as well. So for those reasons, we respectfully are urging you to agree with the staff and the staff and disapprove the application. Thank you ma'am. Thank you. Are you here to object sir? Thank you Mr. Chair, members of the board, David Royce here on behalf of Soil, some of you know Save Our Irreplaceable Land which is comprised of Calumet Farm, Darley at Johnabelle, Winter Quarter Farm, Shadwell Farm, Mill Ridge, Keeneland, Kentucky Thoroughbred Association and we likewise echo the staff's recommendation here and request the Board of Adjustment to disapprove this request. As Fayette Alliance indicated it is nothing to do with the nature of this particular use. It is a use in the AR zone, however, that soil has been active in making sure that there is strict adherence to the zoning ordinance requirements of 10,000 feet. That 10,000 foot requirement came out of an extensive study that was done some 15 years ago. So there have been some lengthy battles in this very room, one or two of which I was involved in late until the night, that involved either zone changes or text amendments to try and circumvent the 10,000 square foot requirement. I have not ever seen an attempt to do it through a conditional use. And I think that with all due respect to this board, the staff is spot on when it suggests that this board does not have the authority to grant a conditional use that is in its nature what's called a use variance. I remember a professor at the University of Kentucky Law School teaching me in a zoning class a little longer ago than I would have liked to recall that in Kentucky there is no such thing as a use variance permitted. what is allowed as a dimensional variance. And present company excluded. That principle has stuck with me. That is still the law in Kentucky. It is regularly applied with the zoning ordinance here in Lexington, and it's one of the reasons that you can't grant variances on parking requirements. Because this is a use, a 10,000 square foot use, is a use that's permitted under certain circumstances. the Board of Adjustment is not authorized under KRS Chapter 100 to allow a use in contravention of what the ordinance provides. So we certainly wish these folks the best. It is nothing personal to them, but this is a huge issue in terms of the urban service boundary and the preservation of the AR zone in Fayette County. That is an extremely important issue to the constituency of soil, this state's signature horse industry. and for those reasons we would ask that you deny the request as it's been stated. Thanks sir. Are there any other objectors? So Mr. Dehart do you understand that we don't have the authority to grant the relief that you're requesting? Yeah I understand and we're not asking for a change in use we're asking for an understanding of what the definition of structure is and the fact that this isn't an enclosed part of the church so i guess i could work maybe with city council on what the definition of temporary structure is and that seems like that's an ordinary route if it's not a part of the comprehensive plan for rezoning that sounds like a long tenuous process that probably wouldn't go anywhere that i'm not familiar with that process so but i i think your assessment is probably correct I'm sorry, but I just don't think we have the authority to grant the relief you're requesting. Okay, I appreciate it. Thank you. All right, now, Stu, I guess we still need to have a vote. Are there any other questions or discussion? If not, I'll entertain a motion. Mr. Chairman, I move that C2009-48 Bariatia Temple and Cultural Center's appeal for a conditional use permit to construct an outdoor covered pavilion with storage space and restrooms in the agricultural rural AR zone on property located at 3050 North Cleveland Road, Council District 12, be disapproved for the reasons recommended by the staff. Second. Thank you, Mr. Griggs. All those in favor of Ms. Moore's motion, please signify by saying aye. Aye. All those opposed? Motion passes. So our final case is A2009-51 Coffee Times, Inc. Good afternoon. Hi. Would you state your name please? Terry Wood. Thank you. Thank you. Now, Ms. Wood, the staff recommended disapproval of your request, and that's why you had to wait till the end. Yes. Sorry about that, but that's the way we do things here. And I presume you've had the opportunity to read their reasoning behind their recommendation disapproval absolutely okay so when we have a recommendation of disapproval we generally the staff present why they think it's a bad idea and then we'll let you respond to that i appreciate that opportunity um because i would like to explain how i ended up there in the first place obviously i've been there for 26 years oh my goodness and had no idea that i was doing anything that was not acceptable and when these businesses started or actually were looking for a space to operate in 1983 we I was very young at the time and certainly did not know how to go about doing that and we went to the city knowing that we wanted to roast coffee we knew that there would be some requirements that would be that we would need to meet and so in doing so we went to the city and to try to find out what we needed to do to open a roasting plant where we would roast coffee and certainly it was a small business, and to have a coffee shop that would join that. Because the idea was to have the concept of the two work together so that we were roasting coffee on site. There was nobody doing that. It used to be done years and years ago. But in today's world, that wasn't happening in the 80s. And we kind of wanted to be a specialty roaster and offer fresh roasted coffee and then have a retail outlet to enjoy that coffee as well as sell that coffee by the pound. And we were told that we needed to be in an I-1 zone. and so I think that you know when we typically think of I1 zones you think of areas that are industrial type zones or neighborhoods where it's just buildings that are industry and obviously that would not have been appealing to us at the time to do that because I wouldn't have seen anybody coming to a plant in some industrial park to buy a coffee by the pound so when we learned that Regency Road and Moore Drive actually had buildings on that street that were I one zone that was obviously a very attractive place to be and back to the 80s it was not as attractive as it is today the street did not cut through so at the end of Regency Road it was dead end there was certainly more of a hodgepodge of more industry may be there at the time I've had I'm having trouble even remembering what was there that would have qualified for the type of I I1 zone that we needed which was to roast coffee and to have a roasting plant there so we felt like we certainly met that requirement that was asked for by an I1 zone and at no time did we ever not disclose exactly what we wanted to do in that space and we went and received all the business licenses that we were told to do because again like I said I certainly had no experience at the time to know where to go or what to do and what to ask for and we got guidance from these city departments that told us where we needed to go and we did receive a business license and permits and I was told that in order to serve coffee that I needed to go to the health department and when I went to the health department I just like it to be understood that it was never my intentions then or now to be a restaurant and even though i do serve some food and i serve a lot of beverages i do not consider myself to be a restaurant i do not operate a kitchen i've never operated a kitchen i don't want to operate a kitchen i don't cook at home i certainly didn't want to cook when i went to work so it was never really a part of the concept it was just that in order to sell coffee you needed to have that outlet to be able to sit and enjoy coffee and It was about the experience of it all, and it just seemed to work together. And in going to the health department, they required me to be permitted because I wanted to serve a cup of coffee in a mug. And in order to do that, I was treated like a restaurant and was given a health permit to do so. I was required by the health department to have two bathrooms to the public. I was required to have a dishwasher and a three-compartment sink, And I was treated like a restaurant because there is not a subcategory for somebody who's not operating a kitchen. If you're handling any sort of food or beverage, then you're treated like that, which is understandable. And I abided by those requirements that they ask of me. The only food that we started out doing and we still do today was prepared by someone else. We use, for instance, today we go down the street to Good Foods Co-op and they bake scones for us, as an example. and we pick those scones up and bring them in. I don't view that really any differently as selling a pound of coffee in that we scoop a pound of coffee, we weigh it, and we bag it, and we sell it to the customer. No different than, to me, taking a scone and putting it in a bag. So I understand that, according to these documents, that you're not allowed to have a restaurant in an I-1 zone. And the only thing that I really have to say about the I-1 zone is that if you look at the area that I'm sitting in, it is a hodgepodge of zones. and it was then and it is now more than ever. I am surrounded by all sorts of businesses doing all sorts of things, and I've lived there for 26 years, and learning that I'm not allowed to do something that I've been doing, you know, is shocking, first of all, because it was never my intention to break the law. I certainly went to try to do everything that was expected of me and thought that I had done that, and learning that I have not done that is slightly devastating. My customer obviously has supported me for 26 years, and they appreciate what we do, and we want to keep being able to do that. One of the reasons that I'm asking for this patio is because I am the only coffee shop in Lexington that doesn't have one, and I feel that in order to stay competitive, and it is tough today to do that, and it's no guarantee that just because I've been in business for 26 years, I'm going to stay there that I need to be progressive in having an outdoor space for people to sit and the other things that have been discussed in this from the staff is I think that I wasn't clear about the patio because I didn't realize that I should have been so I apologize for that but it certainly is my feeling when it comes to putting the patio in I perceive taking two parking spaces in the front of my store that I would pour concrete that it would be raised at least or roughly six inches around so that it would be elevated at least curb the parking lot is truly sloped and it would be difficult for it to be even all the way around but it would certainly be railed I would want it to be attractive and I would want it to be safe and I do not see that it aligns with the entrance to the parking lot I did not view that putting the patio in that slot would be any different than two vehicles sitting in that space i would not encroach anything outside of the two parking space area to pour the patio so i think i've answered everything okay well miss what i've read the materials differently than you did i the way i read it was that what you're doing now without the patio is permitted as part of your business the staff might correct me well I certainly did not view it that way so for the I1 zone we would consider just the tasting a tasting room much like a winery or something like that it has incidental tasting for coffee and this I1 setting would be fine but now that you add a few more items, whether it's through a kitchen or brought in from an outside source, you start to act more like a restaurant, which has nothing to do with the I1 zone at all. And the patio would be the same thing. They're just not incidental to the business roasting coffee, which is the principal use in the I1 zone. So it starts to stretch out a little bit further from the principal use than what's allowed. So from your perspective, what they're doing right now without any expansion is not appropriate? If there's food involved, like I said, if it was confined to tasting, we understand that. But selling a cup of coffee is different in your view? Well, yeah, it starts to get a little bit further beyond. Now you have scones, now you have a menu, now you have a patio. So you continue to creep further and further from the intention of the I-1 zone. And that was our line in the sand, so to say, that we wouldn't support this. It's my understanding what you said is you are actually being treated as a restaurant in that you have to have the drawers and the dishwasher and such. So the restaurant itself, the selling of the coffee and the other stuff would be a nonconforming use. So nobody's saying you can't do it, but this looks like you're asking for an expansion of a nonconforming use by adding a patio. I am. Seems like by default she was treated by the health department as a restaurant just because she was serving even her tasting in a cup. So that's where the health department by default treated her like a restaurant. The fact in our eyes that she's expanded that use into serving of foods, whether processed on the site or brought in from a vendor, expands that further down the road than what we are comfortable with. The patio is certainly beyond the scope of what we would allow in the I-1 zone. So it seems like what the health department is saying is different than their take on things is different than what building inspections. That's fine. We didn't treat it like a restaurant because they weren't actually serving foods and so forth like that and didn't meet the seating requirements and the parking requirements and those things because it was obviously a prohibited use in that zone. But it's not a prohibited use to have a retail store. which is a huge part of what we do. I understand that. Retail and restaurants are handled much differently in the building code and zoning ordinance. I understand. But I am combined. No, I understand. And you're allowed to be combined. Well, Mr. Pugh and I, I think, have different interpretations of the ordinance here. But I think as an accessory use of your coffee roasting business, you're allowed to sell the coffee at least as beans, I would think. Yes, sir. That's the way I'm reading it. Now, it starts to get a little murky when you start selling coffee by the cup. But the issue for me is that, you know, I understand now that that is a murky perspective, but I've been doing it for 26 years. And so I feel that it is unfair for me to be there now and not be allowed to compete in the same way that every other coffee shop in town is competing. and the fact that I am so surrounded by regular business, business, you know, I think there's B1, B2, B3 all around me, and it's not like I'm sitting in a real I1 zoned area. I believe that there's only two buildings left on my two streets that are actually I1 zoned, and so I feel penalized in not being able to do this. The staff on this side, is there anything you guys would like to add? Well we tried to hit this from several different angles. The one angle was the murkiness of the situation. The only thing I'd point out as far as the findings go is that we focused just on the expansion to the outdoor seating area. We didn't talk about what they're doing right now. The other angle we looked at was the actual location of where they want to put the patio. We had concerns about that and if you want to focus on that a little bit I can put up an aerial. Okay that would be helpful. And I'd like to say about that that I'm certainly not restricted to where I want to put that patio. I just need outdoor seating. And I'm willing to, I mean that's why I went for, to find out what I needed to do regarding that patio is because I'm certainly willing, I have some, I mean I think I have some movement within the space to put that at anywhere that you all would deem the appropriate place. Okay, just to get oriented a little bit, this is the subject property right in here. building here is broken up into I think four suites they are talking about this most north will be sweet right in here so the whole building is I1 yes this building is I1 and that each side is I1 also but there is a whole bunch of other zoning for example across Regency Road I think it's before and maybe some other stuff in there that's the intersection with Moore Drive this is Moore Drive okay this north of where Moore Drive comes in from Nicholasville Road and this is Regency here. Where they want to put the patio is right at this corner here adjacent to the one handicapped parking space right at the corner. This is the main access to that area right here so it's not directly in line but it's right where all the vehicle movements are coming in and out of here. People coming out of that parking space would be backing up right towards the patio. People backing out of this space here that's not taking up by the patio might have a sight distance issue or a visibility issue as they're backing out. so we had a lot of concerns with that particular area we understand why they chose that they don't have a lot of options about where they might be able to put an outdoor seating area there's nothing no options to the side it doesn't look like well there actually is a driveway that runs between the two buildings and originally when I was trying to consider what I could do to help my business I did consider that because it is pretty wide and certainly over the years we have lined off additional parking down the side there are six additional parking spaces that go down the side and there is our room for cars to sit there beside the building and still have trucks that need to deliver to get through with plenty of room and so I entertained that thought originally of using that space sort of in addition to the corner or but after thinking about it I felt like that that might be less safe being down that side than it would be in the front where you would be clearly visible and again I I would reduce that patio so that it would actually be small as at least as small as a vehicle would be sitting there and not larger than the actual space for the vehicle to park in. Let me try and I presume this is your first appearance at the Board of Adjustments. Absolutely. Okay let me see if I can try to translate what they're saying here to terms you can understand. I'll give it a shot. I'm sure I'll be corrected but the building inspection folks think that maybe you shouldn't be doing what you're doing currently maybe you shouldn't be selling coffee at all by the cup okay but I don't get the feeling that they're gonna come bust you for that I can't promise you anything but you know it's it's kind of it's murky as we said so I think you probably are be allowed to continue doing that but what you're asking to do is to take a situation that may not be permissible currently and make it larger by adding a patio yes sir that and that's you'd agree with that yes okay and we as a board we what the the term that that we would use here is called non-conforming use because at the I've one zone you're not supposed to have a restaurant you don't consider yourself a restaurant but reasonable people can differ on that yes okay and that so your use currently without the patio would be considered non-conforming by some we don't have the authority of the board to enlarge or expand a non-conforming use we can't allow you to make something that's not permissible we can allow you to make it worse than it already is we don't have the authority so who does well I don't know I think if anybody could it would be us well can I say related to that if if she wanted this is completely separate from the safety issue of where the patio is located but since their business districts around if she asked for a zone change to a B1 would the roasting the coffee be permissible in a B1 or would we now have a non-conforming now you're into a manufacturing process that put her in the I1 in the first place all she could do then would be retail sales and restaurants that's the problem is there's really no other place for me to be also I can't not that I would want to anyway but I couldn't have this business anywhere in the city well not the combination you could have a combination is necessary and I think I've proven that by being able to stay in business for 26 years that they were necessary and well there's but there's plenty of coffee shops that don't have the roasting operation I think it's the combination of the roasting operation understand but I started out a long time before them and there was no guarantee that I would still be here without that business operates in two of the suites and it may even be possible to separate the coffee serving and the food service part in essence a split zone facility but roasting could still be done perhaps and i won suite and the coffee and food and a b1 or b3 part of the suite that would be unusual wouldn't be unprecedented but it gets down to the level of detail that the staff mentioned in our report about 30% being a significant figure for accessory use as part of the EI one and so forth but they would have to get down probably to that level of detail to see if anything like that so is that true there are two suites there that you occupy both of them yes we do so do you understand what Mr. Salini is suggesting I think I do the only thing that I just want to make sure that it's clear that we do occupy two suites but we are divided I'm I believe that I'm coffee times is a little less than 30 percent of the of each suite and lexton coffee and tea occupies the remainder of both suites as well so it's not that one is occupying one and the other does that make sense but that we split it in the from front to back there was original 30 is the right answer less than 30 that's the right answer yeah i am i think i was aware of that part from early on i I just don't think that we were told or it was never expressed to us that you could not do any sort of food service that was related to, you know, to the coffee. And our food services are truly mostly desserts and things that do relate to coffee. Ms. Wood, right in front of you, the one option seems to be to get a zone change for the front part of your building so that it could be a restaurant. And that would be, probably require an attorney and it would be long and drawn out. another option that might be just as difficult would be a text amendment that recognizes that roasting coffee beans on a small scale doesn't necessarily need to be industrial. It seems to me that a small scale coffee roasting machine, which is hardly bigger than a stacked oven, could be in a B1 zone. But you'd have to get our zoning text amended to allow that. It might even be easier than getting a partial zone change on a couple thousand square feet of a building. I see. Mr. Sleeve, what are your thoughts on those two options? Well, I was thinking as Mr. Griggs was describing that, there is also a new use in the industrial zone called an industrial mixed use. I haven't looked at those provisions in the ordinance, but there may even be an opportunity for something like that to be done through a development plan process where a mixture of uses is allowed in the light industrial zone, some of which could be for the restaurant or food service part of this business. So there may be some other options. I think clearly the rezoning text amendment, a development plan with industrial mixed use, other than the application that you're facing today. okay well what it's either one of those three options would they come back for if she did that one of those would they they wouldn't come back before us would they I can't envision any of them coming back unless perhaps a dimensional variance was needed for some type of expansion so it probably wouldn't be helpful to continue this to allow her to explore those If the patio issue would still come before us and we'd need to talk about steel posts filled with concrete and so maybe you'd want to withdraw this so that you could bring it back without a time delay. Or maybe continue it generally and definitely. I don't know what we do. Rochelle, do you have any thoughts? I think what's before you is an administrative review to allow an expansion of a nonconforming use. If she goes back and, for instance, through a development plan, gets some kind of approval for mixed use within an I-1 zone, I mean, she's not going to be asking for the same thing. If she doesn't need a dimensional variance and it's approved by the Planning Commission on a development plan, however she sets up an outdoor area or whatever, it may well not come back here okay so I don't really see much benefit in keeping it on the record so I think where we are is that the the relief that you're requesting we can't grant and we'll take a vote here maybe we may we'll vote to approve I don't know I'm not sure that we can it sounds like there are some options for you there anything else you'd like to say to the I don't think so other than I'm gonna have a lot of very disappointed customers I don't know if it helps anybody asked my wife about your facility and she said it's the best coffee in 10. that's very nice thank you I appreciate that sir but before we vote may I ask the staff a question would it be advisable for her to have a vote from this body which is probably going to be denial or would she withdraw I think the only advantage would be if she needed to reappear before the board for some reason she could do so faster with withdrawal I believe. But if there was no case here then what would be prohibitive from coming back with a different case? I think your bylaws have a time period wait when an application is disapproved by the board versus withdrawn. We have to wait a year, I think. Disapproval is a year withdrawn is six months. That's assuming it's the same application. So if something's sufficiently different to not be the same application, then she could apply at any time. I think we probably ought to give her from a step because I can't I know we can't give her some direction as to how she can best solve her concern quickly as possible without having to worry about us now which direction would you recommend that she go to quickly for her did she meet with you mr. Salih to try to discuss her options certainly she can send with the planning staff and provide advice and just looking at the industrial mixed-use provisions it doesn't look like there's a residential use proposed I'm not sure that would qualify so I believe mr. Griggs earlier idea about rezoning looks like the obvious path that this would need to take that will take several months okay all right well all right so you miss would meet with the planning staff So do I any further discussion if not then I'll entertain a motion. Mr. Chair I move that A2009-51 Coffee Times Inc. appeal for an administrative review to allow an outdoor patio for coffee shop considered by the division of building inspection to be expansion of a non-conforming use in a light industrial I-1 zone on property located at 2571 Regency Road, Council District 10 be disapproved for the reasons recommended by the staff. Thank you, Ms. Moore. Do you have a second? Thank you, Mr. Griggs. All those in favor of Ms. Moore's motion, please signify by saying aye. aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye aye Okay. All right. Ms. Edwards. We have a paper like that. We have no authority to do. Why the property? Because that's the only avenue that you have. Well, no, that's the only avenue that you have. But we have no authority to do. Well. We rule. That's right. That's my point. Right. Edward's question is if we don't have authority to rule why is it brought to us but we're the only… They apply even though they're advised that they don't have a chance. Okay. It happens frequently. If I can answer that, I mean everyone is guaranteed by your ordinances and I believe this comes even from statute chapter 100, they have the right to appeal a decision of building inspection if they think it's wrong. I mean, as Jim said, we can tell them, you know, this is very clear, and we don't think you're going to get the relief you're asking for, but we cannot deny them the right to appeal it. I'm talking about if we have no authority to rule. You don't have authority to grant the relief asked. No. It was stated a while ago that we had no authority to rule on this. Well, I wouldn't agree with the wording necessarily. You don't have the authority to grant the relief being asked. So my question was if we have no authority to rule, but we do rule, it just seems weird. Well, if I said that, I misspoke. Of course, I know the law does seem weird, so that's okay. I mean, I think it's just a matter of, you know, the appropriate wording, yeah, the appropriate wording is just we don't have the authority to give you what you want so the only thing we can do is disapprove your appeal. Well that wasn't the way it was stated that is different the way it was stated is that we had no authority to rule and and yet I'm going well we are so. If I said that that I was wrong. No you didn't it said it here. Oh it said it in those letters. You didn't say it. First of all I want to let you all know that I've been reaffirmed so I'm back here for four more years so whether you all like it or not I'm here and I want to thank you all that supported me appreciate it and this brings up a point before that board before some of the city council members that's a new procedure they're going through now they have to reaffirm you or you have to go before them to to recommend approval to recommend the approval of the mayor's recommendation and in that meeting which lasts about I guess 20 minutes or so So they asked my concerns relative to the board and this, that, and the other. And then they brought up to me if this is a perfect case of what I'm going to say, is that their comment was to me was that if there is something or a case or a situation within the community that we feel that needs to be addressed by the council or by the zoning that we have the authority to write it up and present it relative to changes that would maybe assist some people more so than hamper them. I'm not saying this case hampers anybody because I don't agree with the little spot out there that she had for her outside set, but I never thought we had that authority to do that. but they have they told me sitting there in the room that if there's if there's something on the books that we feel as a board even though we can't do anything about it now but that needs to be observed by the council we have the authority to write it up and submit it to staff so staff can submit it to the board on our behalf I didn't know that and I've been around here now for a long time and I think that's a good advantage and a good educational advantage for us on this board but we've discussed and talked about a lot of things on this board that probably some of the things that should be changed to benefit you and also to benefit this board and most certainly the people that come before us with the cases so I would charge for us to you know and I'm going to start taking the notes particularly on this case not so much this case because you know I think she's been doing for 26 years and I applaud her but I think her application for what she wanted outside there was not safe I just think it's too close to people turning into that parking and this that and the other but by the same token it was good to hear them tell me that we could make recommendations through the staff to them relative to things that may need to be Thank you. Anything else? Any other board items? Any staff items? Not today, thank you, Mr. Chairman. All right. Well, our next meeting will occur on September 25, 2009. December. September. September. September. You said December. September. So if there's no other business to come before the board, I'll declare this meeting adjourned. Thank you. Thank you. Thank you. Thank you.