Music Thank you. Music Start time today because there's some question as to which of our cases were advertised so we're going to wait till mr. Salee gets back with the Advertisement that ran in the paper so we can go forward with cases That were properly advertised and it'll just be another five or so minutes until he returns Thank you for your patience The End Thank you. Welcome to the September meeting of the Fayette County Board of Adjustments. We're still trying to check the ad to see which cases were advertised. Okay. Okay. Thank you, Ms. Racker. So, first of all, I'd like to ask anyone with a cell phone to please turn it off or at least turn it to silent mode. Those of you in the audience today that expect to testify, I'd ask you to raise your right hand and swear affirm that the truth you give here today will are the testimony give here today will be the truth thank you well let's see we have some minutes from our March meeting of this year that's that if everyone's had a chance to review those and have any comments and if not I'll entertain a motion to approve the minutes for the Board of Adjustments meeting March 27th 2009 excuse me second let's see we have a motion to approve those minutes and a second all those in favor please signify by saying aye all those opposed all right minutes are approved. So now I'll ask for anyone who wants to postpone or withdraw their item please come forward. Mr. Simpson good afternoon to you. Good afternoon Mr. Chairman, members of the board I'm Bruce Simpson. On page 4 item number 2 under administrative review we'd like to request a one-month postponement. As to that matter my clients are trying to look at some options try to resolve the science situation and see where we can go and we need 30 days to do that are there any objectors here for that case it's the a 2009-60 RB HV Lexington LLC case all right any discussion motion I move we postponed for 30 days. I'll second. Okay all those of in favor of Ms. Myers motion to postpone the R.B.H.V. Lexington case to our October meeting please signify by saying aye. Aye. All those opposed. I'm opposed. See you next month, Mr. Simpson. Mr. Murphy, good afternoon. Good afternoon. I'm Dick Murphy on page 3, item 1, C-2005-53, Fender Funeral Directors. I represent Fender Funeral Directors and James Fender is here with me today. This board has been patient with us in the past on this and we are asking for one more month postponement. The circumstances are that it has taken Mr. Fender some time to get the money together to do this paving. He has done that and he has signed a contract with G&G Paving and Construction Incorporated to do the work. After he got the money lined up they were scheduled to do this this week and due to the rain we've had this week and last week they've had to postpone until next week, I do have a letter which I can pass out or put up on the overhead from G&G Construction to tell you about that. That'd be good. Thank you. It's a letter I received this morning from the owner of G&G. I understand they have commenced staking the property and have equipment out at the site this morning, but in case you can't read that, I'll just read it to you from G&G Paving and Construction, Inc. To him it may concern, G&G Paving and Construction has a contract with Fender Funeral Parlor and is in the process of constructing a driveway and parking area as per Board of Adjustment Development plans. Due to weather conditions, the completion of this project has been delayed but should be completed within seven working days of this date and of course it's dated today. Mr. Fender in the last two months has complied with the conditions from two months ago that he not have any funerals, not have any visitations at this site until this paving is done. So he's essentially shut down, essentially, until this can be done. And obviously, of course, he would wish to continue to comply with that until this paving is completed. And again, we understand this board has been patient with Mr. Fender, and we truly, truly appreciate that. he has worked hard to get his money together in this economy and he's done it and he's hopefully within a week of getting the paving done out there and so with that we would ask for one more month postponement under the same conditions you all had before no funeral services, no visitations at this site Thank you Mr. Murphy my understanding we were on terms to have this completed today and I've heard your discussion make sense to me. I'd like to hear from Mr. Hume. I've talked to Mr. Murphy about this, and I think based on the fact that they do have a contract signed and all that, I'm willing to go along with it, but I would want all the landscape and everything in by the time we meet next time because you can put landscape in at this time of year, and I like it lock, stock, and barrel when he comes back. The entire project to be complete. I think we've given him enough rope on that. Mr. Murphy, do you think you'll have any problem with your client? No, no, he will have no problem. All right, so even though we were on terms today, do I hear any motions concerning Mr. Murphy's request? I'm going to accept. Okay. Do I have a second? Second. All right, thank you, Mr. Tumbo. All those in favor of Mr. Stout's motion to postpone the C-2005-53 Fender Funeral Director's Case to our October meeting, please signify by saying aye. Aye. All those opposed? See you next month. Thank you very much. Any other postponements or withdrawals? So now I'm going to run through the agenda to determine if there are any objectors here. First case is V, 2009-61 Fork Bank. Is the applicant here? Okay. The applicant's here. Okay. Are there any objectors here for that case? Okay. Let's see. Next case is B 2009-62 Bruce Properties. Any objectives here for that case? Is the applicant here? Okay. Mr. Murphy. The next case, I have a C2009-50 Robert H. Douglas. That's a recommended postponement. Is the applicant here? Staff have any? Just have not heard anything from them. Okay. So I guess we'll just take it up when we get to them on the docket. Okay. Next case, C-2009-57, Crestwood Christian Church Child Care. Are there any objectives here for that case? For the applicant, sir. Okay. You're with the applicant? All right. Thank you. C 2009-58 Brett Setzer, Setzer Investment Co. Are there any objectives here? You're the applicant? All right. Thank you, sir. So there are no objectors. Final case is A 2009-59 John Kemper. Are you Mr. Kemper? Are there any objectors here? Mr. Salee are we are we ready to go forward? Are we still waiting? Chairman Brown could you ask again if there's anyone here for Forked Bank? Okay. I had my engineers okay are you an objector are you here for the applicant okay thank you mr. salini chairman we've provided the ad that was sent to the newspaper there okay miss howard has gone to get the published ad and i'd like to check that first you could proceed either with the first item or beyond that other than Bruce properties I think is the only one where the issue is. Okay. All right. Apologize for the confusion. Okay. Thank you. Okay. Then I'll call B2009-61 Fort Bank. Sir, would you come forward please? sir would you state your name please my name is Andrew toy representing Allen engineering all right and it's mr. toy cat toy okay would you spell it for me c a t t o i All right. Thank you, sir. So the staff has recommended approval subject to two conditions. Have you reviewed those conditions with your client? We have and are in agreement with those conditions. And your client's willing to abide by those? Yes. The only question I had was, and this might be for staff, will the buffer, number two, the buffer shall be in place prior to the issuance of the occupancy permit. Will the sidewalk have to be in place as well? Yes, it will. That's an improvement that's going to be shown on the plat, record plat for the property. Okay. All right. Thank you. Now, any other questions for the applicant or any discussion? If not, then I'll entertain a motion. Mr. Chairman, I'll move that V-2009-61, Forch Bank, N.A. appeals for variance to reduce the width of the required landscape buffer for a vehicular use area from 5 feet to 1.5 feet in the neighborhood business V-1 zone on property located at 140-144, Southland Drive Council District 10 be approved as recommended by the staff and subject to the two conditions. Thank You Mr. Stout. I'll second that Mr. Chair. Thank you Mr. Stumbo. All those in favor of Mr. Stout's motion please signify by saying aye. Aye. All those opposed? Motion passes. Good luck to you sir. Mr. Chairman, we have checked the published ad and all eight items on your agenda did appear in the published ad. Okay. Thank you for allowing us to check that. All right. Thank you for your assistance staff. I appreciate it. The next case is V2009-62 Bruce Properties, Inc. Mr. Murphy, good afternoon. Thank you, Mr. Chairman. I'm Dick Murphy representing Bruce Properties. We were very glad to hear that the legal ad was proper because I understand it was our case that was the issue, so we're very happy to be here. We do agree with the staff reasons and conditions on this, and the main reason for this variance is we're trying to accommodate future uses, especially on either side, the west side and the east side. Todd's Road which is going to be raised in elevation when the state does it. We were required and wanted to coordinate our development with what Todd's Road will be in the future. On the east side is vacant land owned by Ball Homes which is also zoned R3 and which we anticipate will be regraded as well. So the wall on that side has been done to comply with what we think will be future development on the property so things don't have to be redone once the road or the development is done. And I have all the background and details on this I can give you. I don't know how much you all want to hear on it, but we do have the full history and exactly what we're doing and where. And before I took up your time with that, I just wanted to see how far you wanted me to go. Mr. Murphy, I have a question for you right now. That last statement you made that this wall was built at the elevation above that that's allowed because of anticipated elevation changes surrounding it? Well, we're required to plan the – well, most of these elevation changes are very small. We have – I think there may be a couple places where it's a foot. and one of those, and it depends on whether you measure it at the post or three feet away. My real question is, they knew there was a rule about the height of this fence. I mean, setting aside the fact that they did all of this without a permit, but they built it above the allowable height on purpose. Well, it was built, let me first say that the vast majority of this wall is not above the height. Well, let's forget about that. Let's just talk about the part that they built on purpose above the allowable height. Well, I want to first point out that our wall was shown on our preliminary subdivision plat, which was approved by the Planning Commission. It was shown on our construction plans, which were submitted to the city and approved by the Division of Engineering. And construction plans include all infrastructure, including roads, sidewalks, curbs, sewers and Mr. Bruce felt the wall which was shown and considered that part of the infrastructure and built it off the construction plans. It was shown on our final subdivision plat which has been approved and recorded and has been seen by many, especially engineering inspectors who were out in the field during the construction of all these improvements. And this was built at, designed to be at the height it was supposed to be. I think most of the places where it's higher is where the column is accommodating elevation changes on there. As you know, the bricks have to go in a straight line, and unlike a wood privacy fence, which sort of follows the contour of the land, bricks have to be straight in order to be supported. They come into a column, and then it drops down. And most of the places we have the issue are with a couple inches at the top of the column there, which is to accommodate that elevation change. And I understand what you're saying. I disagree with perhaps some of the assumption behind it is that my client didn't go out and say, well, I'm going to build a fence over eight feet. And he was going to build the wall as shown, an eight-foot wall along the property. and it turned out that when it was being built there was an assumption, perhaps obviously wrong assumption, that some of the columns could be a few inches above and still be conforming to the requirements of the wall. I mean, there's nothing sinister here. There was no premeditation to let's see what I can get away with because if you've been out to that site and seen it, I think you'll probably have to agree My feeling is that's the cleanest development site I've ever seen in Fayette County. He has been, Mr. Bruce is here, and has been meticulous in seeding the property, keeping the silt finches up, doing all the drainage that he's supposed to do. He's gone above, over and above. And he donated the land for the widening of Todd's Road, even though the Planning Commission at its hearing said he didn't have to donate it, that he could just reserve it for future purchase. He donated the land. He cut down the hill so that there would be better visibility. And I know that what he's done, he has not on anything out here set out to intentionally violate the ordinance. Did he violate it? Perhaps he did. But it was shown on all our plans. and the violations are that a few of these columns are above the elevation of left. And, you know, I can't deny that, but at the same time, I don't agree that there was premeditation here or anything sinister going on because he has gone the extra mile to go over and above city requirements on everything he's done here. And I know that you have to get a permit for a fence or a wall. And probably that's one of the things that people least often observe as far as getting permits. People don't do that. And a lot of people building these walls don't stop to think that one is required over and above what was already shown on his construction plans that were there. What we're talking about here is a wall that's built, a part of it, on the setback, at the wrong height and without a permit by a professional developer and home builder. This isn't a subdivision, a residential home builder. I really think that this set of, the way this is developed, it disturbs me greatly. And I think to protect the citizens and these zoning laws, somebody ought to be held accountable. Well, Mr. Bruce is a professional builder. He has built a number of homes on single-family lots. This is his first development. And as far as the location is concerned, the location was approved three times, twice by the Planning Commission and once by the Division of Engineering on the building line. And let me talk about that variance. Matt, if you could come up and show us our plant, the setback variance, the three feet on the west side. Matt's holding here. Let me, we're, we don't, maybe we can put that up. Will this go on the overhead? Okay. Okay. Start off. Start off. Oh, the other end. Okay. This is the west end up here. and this is the recorded final record plan which is approved by the Planning Commission and Division of Engineering all agencies of the urban county government and this is Santa Belle Drive we don't as you all know we don't have access to Todd's Road or to McFarland Lane that's up here our access is off of Santa Belle Drive this is the wall that's coming is on the east side and as As you can see, that was approved on the property line. There was no notation on the plant that we needed a variance of that. The three-foot rule in R3 is designed, came in a number of years ago. As you all know, I think there were a couple fires of where there were houses that were each three feet off the line, but in that space between, you had air conditioning units, storage sheds, chain link fences, lawn mowers and stuff, and they had a case where the fire department couldn't get in there to work a fire, and the fire melt the vinyl on the neighboring house before they were able to get to it. So the ordinance says that in R3 you have to have a three-foot side yard, and it has to be unobstructed by any air conditioning units or dumpsters or walls or fences. Now in this property here, this is the one place where it is a side yard issue. It would be from this setback to wherever the back of the house is. This stretch right through here is where that three foot would apply. As you can see on our plat, we are showing a building envelope here and we have a six-foot setback along this property line so that there can be no obstructions. We've got six feet of no obstructions between our house and the wall. Now you may say, well, what's going to happen on the undeveloped property on the other side? If you could just move that over a little bit to show that easement. There you go. This is owned by Ball Homes right here. It's undeveloped. It's zoned R3, but you can see they have a 15-foot sanitary sewer easement coming through here, which will prevent any building on that. So any house or structure would have to be on the other side of this sanitary sewer easement. So this area as well will be unobstructed as well. I don't know if they plan on putting multifamily or what in there, but this area would be unobstructed as well. So we're meeting the intent of that ordinance. We have not three feet on our side, but six feet unobstructed for fire department operations to get in there, and we have it on the other side as well. And I think, I assume that's why when it was reviewed through the planning process that that was not brought up at that point because we have that six-foot side yard through there. Let me tell you a little bit about the property. if I can. When this was zoned, if you could go back to the other corner there, the one along Todd's Road, this is the last vacant piece of property on this stretch of Todd's Road, and this is McFarland Lane. This is Todd's Road. As you know, McFarland Lane is a country road. The other side is the Endover Golf Course, and logically the houses would have had access off of McFarland Lane here, but the McFarland Lane is planned to be closed by the urban county government. There's only apparently one house back there that has access off of that, so we didn't object to that. They said that the access would have to come off a new road, So we had to build a new road on this, which would result in these properties, which front on Destin Circle and Cavanaugh Lane would become double frontage lots. In other words, they had a street in the front and a street right in the back. So through the zone change process, the developer agreed to build the wall. Now that helps his development, but it also helped the neighboring properties because it screened them from the noise, lights, and traffic from having a road right outside the back of their property. So he agreed to do the brick screening wall, and if you've been out there, it looks as good on one side as it does on the other. He built it six feet off the property line to give the people on Destin Court and Kavanaugh Lane additional rooms. So they, in essence, have an additional six feet out there. Through the process, they were seen what was going on and agreed to that. So I think the wall has a benefit to all citizens around here, not just this property that they've seen it and know what's going on. We've had to re-notify them about this, and obviously there's no objectors down here about it. So the wall through here is screening them. The wall up here is built under a note on this development plan which I'll hand out, which we were required to coordinate this with the development of the Todd's Road. That's a very short set of handouts, but all I did was reproduce node 11 off this plant, which required the Matt Carter of Vision Engineering, our engineer, to coordinate this with the future plans for the widening of Todd's Road. The result is that at the very end of this wall, there's a grade drop down to McFarland Lane and at the very end we do exceed the height through there. But the road is going to be raised up and it will be done so that it's at a proper height for after Todd's road is done. And we were required to, I mean Mr. Bruce wanted to and voluntarily would have anyway, He was required to coordinate this with future widening plans for the state of Kentucky. And on the other end, as I mentioned to you, we anticipate that Ball Holmes will be re-rating that property, and he wanted to do the right thing and do it right the first time. Our other variance, as I mentioned to you, is the three-foot on the side yard on that lot 10, which is at the end of the property. So again, we get in this situation because with the wall, with the columns, as they accommodate the height, you have to have a wall drop a foot or two in some places to accommodate the roll of the land, and we have a post in there and we think that the columns make this much more attractive than it would be without the columns, plus they add structural support to this, but at some point those columns do go above 8 feet. and knowing a little bit about how bricklayers work and that sort of thing, they assume that eight feet means average of eight feet, and it's eight feet for the wall, and we meet that, and we do meet that throughout. We're much lower than that in most places. I want to make sure I tell you everything I wanted to tell you on this. On the east side, if you can go back to the east side again, the wall over here has three purposes. It is the screening wall, as we discussed, but it's also a retaining wall due to grade elevations, which we anticipate they're going to grade against us. And it's also a head wall, because again, if you've been out there, there is a large inlet pipe right here, which we've had to construct. The land slopes down on either side to that, and the pipe takes water, which actually comes off of Andover Golf Course. It's in a big pipe under McFarland Lane. It dumps onto the Ball Homes property at about this point and flows down Ball Homes property to here and is collected here in a pipe, which comes down to here, which again there's another pipe going I think down this way and take the water away. But we have to have this as a head wall for that as well and at that point there is a variance issue on that as well. But the wall accommodates a number of different functions there. And he did not get a permit for this. Again, I've mentioned to you that this is his first development. He felt that after getting the approval from the government for his construction plans, which we have the signed copy right here, which shows the wall. It shows all the sewers and sanitary and storm sewers, the roads, the curbs, the gutters, that because he could build everything else that's shown on those plans off the plans without a separate specific permit that he could build that screening wall off those plans without a separate specific permit for that. There is a permit requirement for that because the wall is classified as a fence. He should have gotten the fence permit, but I would anticipate that even if a permit had been granted, we may still be here today. But I try to look at this as what if this wall didn't exist? Should we approve this knowing that the wall would end up as it is actually on the property today? And I think it should because I think he's doing the right thing here. I think by accommodating Todd's Road and building the wall as it should be for Todd's Road, he's doing the right thing. I think that by building a wall on the east side, which serves the three purposes which I discussed, again, he accommodates development on the other property. He gets it built once. He doesn't have to come back in and change it. Another way to solve this problem would be to grade up against the bases of those walls and make them all less than eight feet tall, which would be a possibility as well, I suppose. but Randall Bruce has always wanted to do everything the right way on here, and he wants to do it the right way and did this to accommodate future development and wants to let that future development come in and do it. But again, in going through my file, I worked some on this two and a half or three years ago So when the question was raised about the existence of this street up against those properties which front the neighboring properties, these are the backyards. You can see they front on this street and back right up to this street. And at that time, Mr. Bruce had gone around to get a petition from the neighboring property owner, showing what he was doing, and had a petition in support from the neighbors who were there at that time. So they're all well aware of the wall before it went in. It's obviously there now. They know what it's like after it's in. They were notified before it went in through the Platt process. They've been notified through this process that they have a right to come in and comment to you if they don't like the way this is looking. I think the only thing that would happen is we'd have to, this wall would not look as good, it would not look as aesthetically pleasing if he were required to go in and saw off four inches on some of these. Some of these there's a post in one of these here where we're one third of it. We've gone back and measured them precisely. We're one third of an inch off. I assume building inspection probably wouldn't make us do anything there, but in cases where we're four inches off or whatever, I don't think it would do any service to the aesthetics of this area are the property values of either of these properties or more important the ones that are in front of us to make them go and cut that wall down. I can't stand here and tell you that we got a permit because we didn't. But I think that what I've tried to show you is that number one, this was not an intentional or malicious act because truly Randall has done everything else by the book out here and really more than by the book. He's tried to do something that a wall that will look as good or better for the neighbors than it will for his property, and he's tried to do what the city wanted to to accommodate Todd's Road. And I understand there's some issues about that, but especially in this fact with the circumstances of this case that we have no objectors and that the wall is where we have showed that wall being on officially approved plans, we think there is very good legal justification for granting the variance on this property. And I've talked enough here, and we appreciate your hearing this, and we do hope that you will vote in favor of granting the variance. Thank you, Mr. Murphy. I'd like to ask the staff a question, please. In listening to what's been said and listening to the comments made by Mr. Griggs over here, I find it difficult to understand why, first of all, a permit was not sought. That's the first thing. And I've been out there. I think the place looks fantastic. And looking at it from a naked eye, you probably would not visualize everything that we're talking about. But I guess my question to the staff is, why would you want to approve this? Why did you approve this? Why did you recommend the approval of this? I think a big thing is that the scope of the variance that's been requested is very minor in our opinion. I walked that entire wall myself. It's hard to find a place where it's taller than 8 feet. The bulk of the actual wall is 6 to 7 feet in almost all locations. The only place where there's a few inches off is the top of the columns. and even most of those columns comply with the eight feet. I can show you at the entrance features from Todd's Road and from the court where the private road connects to some of those columns. There's very few, maybe three or four. It would be very easy to regrade adjacent to those columns in a reasonable way to get rid of that few inches of discrepancy. So I guess that's our take on it, Mr. Stout. Mr. Stout, I also agree that given the proximity to the assumed problems, being on the very ends of this development and budding up either to a highway or another development, made this problem minor. And I don't know that even, and I agree with what Mr. Murphy said, that had they even got a permit up front, I don't know that that would have solved this problem anyhow. I think this was a mere oversight and would have happened regardless of a bureaucratic move. So we actually looked at this very hard and analyzed a lot of things that aren't even mentioned here to make sure there weren't problems. And the best we could do is to make sure we just cleaned up some of the side yards. So I feel very supportive of this. Okay, see, that was my question for you. You support the request? Absolutely. Okay, the relief that's being suggested and requested. Anyone else? I just have a question on the, I understand the eight versus nine feet is minor, wasn't expected. But what about on the side, the side yard where there's from three feet to zero feet? When the Planning Commission reviews these and the Urban County Council, do they actually take into account, I mean, do they just look and say a fence is fine or do they actually think about that's on the edge and violates the ordinance? Ms. Moore, I think the fence or the wall that you're looking at here, I checked the original submission of the plat that went to the Planning Commission. I don't believe that wall was on the plat when it was first filed. I think it was added in part of the certification process. That may have been also a result of the engineering department's desire that it also serve as a head wall. Ordinarily, head walls are shown on plats when they're recorded. I think the three-foot issue was just missed because the height of that wall isn't identified, whether it's one foot, three foot, or, you know, something close to the ground, more of a head wall type of situation. So if it had just been a one-foot fence, it could be on the property line? Well, ordinarily head walls are not treated the same way as screening or fencing walls, and they're also usually closer to the ground as well. Do you know what he means when he says head wall? Well, it would be the head wall that you would like to say the properties are two different elevations and so this would be a wall right here that you bring the dirt to. It provides the transition from one level to another I think is what it is. You guys can correct me if I'm wrong. That's correct. I apologize for the jargon. I'm an expert at that. Okay. I wasn't sure you knew and I thought it might be helpful. I have a question. All right. Ms. Edwards. staff knowing that this gentleman was a home builder prior to becoming a developer and this is his first development according to mr. Murphy when they submit a development plan and they show you what's on it do you give them a list of what they are going to be required to get permits for they'll go through the technical review committee to determine what needs to be physically on that document, but until they make application for a permit, then we don't make any suggestions or recommendations or requirements until that time. We assume if it comes out of the Planning Commission that those items are at least documented, but the specifics, whether it's a building or a fence or a wall, will be analyzed after that. Thank you. Any other questions or discussion? I'd just like to ask a question about this permitting process. It seems to me in my short time here on the board is that we have a lot of occasion where we have cases who come who didn't seek permits. And it's troublesome to me. And I – what recourse is there? I mean, obviously you get a permit after the fact, but is there any sort of fining process to kind of get the word out that, I mean, if we, if there's no vehicle in place to help these people, I mean, you know, this just seems to be happening all the time and I just would like to know if there's anything after the fact that would be in place to discourage people from doing this so that they go through the proper channels initially? In the event we have this problem, somebody, we get a complaint on something, we go out and investigate it and find that a fence or wall has been erected. We'll give notice and give them the option to comply, get a permit, make sure everything's fine. If there's a problem with the site, come to the Board of Adjustment and try to get those things worked out. If they refuse to comply at all, I have the ability to take them to district court for a criminal charge. At that point, sometimes we get a conviction, which is a fine. Now that doesn't, it's rare that we can get a court order to fix something because the court system doesn't have an enforcement over that. If push comes to shove, we can turn it over to the law department to file a civil suit. But for the most part, it's been my experience with the courts that if we get a defendant in the system and they seem to be attempting resolution, the courts will allow us time to work those situations out. Ms. Meyer, I was also talking with Mr. Murphy. There may be a committee of the Urban County Council that's discussing that very issue at the present time. are no increased filing fees for Board of Adjustment or Planning Commission that you were asking about. Ms. Bowlin? I think that this situation has come to the attention of counsel, and I think they are currently working with the Law Department. One of the ideas that is being researched is the concept of if a building permit has not been timely obtained and it comes to the attention of building inspection, the cost of obtaining the building permit after the fact may be doubled. So that may be something that will help discourage and try to get people to inquire as to the need of a permit beforehand to avoid running into that increased fee. I don't know whether that's actually going to go into place, but I know it is being researched at this time. Thank you, Ms. Bowling. Any other questions or discussion? Now, just as a bookkeeping matter, Mr. Murphy, the staff's recommended approval subject to three conditions. I don't think I asked you this previously, but does your client review those conditions? Yes, and agrees to those and agrees to abide by those. Okay. I just want to, I don't know, I just can't recall, so I want to double check that. Okay. If there's nothing else, I'll entertain a motion. Mr. Chairman, I'm going to move to approve this, but I do so reluctantly. I think it's inexcusable not to have a building permit pulled. But I have been out to the property. It's a nice buffer, and I think Mr. Bruce has done a nice job on it. I just wish that he would have followed proper procedures to do so. With that said, item V-2009-62, Bruce Properties, appeals for variance to increase the allowable height of a screening wall from 6 feet to 9 feet at certain front yard locations and from 8 to 9 feet at other locations and to decrease the required side yard from 3 feet to 0 feet on lot 10 at the east end of the development in a planned neighborhood residential R3 zone on property located at 3401 McFarland Lane be approved with the conditions as set forth by the staff. Second. All right. Thank you. Stumbo, Ms. Edwards. Any other discussion? Okay. I'd just like to say that I agree with Mr. Stumbo. I think that the relief is reasonable, but I don't like the way it came about. I think if he had obtained a permit initially, this would be a matter that wouldn't even required discussion at all and I think that personally I'm going to consider this this is one gimme so if he comes back to the board in a similar circumstances where he did some work without a permit I won't look upon it favorably okay so any other discussion all those in favor of mr. Stumbo's motion please signify by saying aye aye all those opposed nay so it's five to two motion passes Next case is the C2009-50 Robert H. Douglas is the applicant here in that matter. Okay. Does the staff have any recommendations maybe postponing it? Yeah, our recommendation is still for postponement. We never got any of the revised information that we wanted, so. Is it possible that the applicant just assumed it would be postponed without an appearance? I can't say. I've just kind of gone off the radar screen. So I'll get in touch with them and see what their plans are. So for now, one month postponement would be fine. For one month, you suggest? Okay. So moved. All right. Thank you, Mr. Stout. Do I have a second? Second. Ms. Meyer, thank you. All those in favor of Mr. Stout's motion to postpone the C2009-50 Robert A. Douglas case to our October meeting, please signify by saying aye. Aye. All those opposed? Okay, motion passes. C2009 57 Crestwood Christian Church Child Care. Good afternoon. Good afternoon. I'm Adrian Mendiondo here on behalf of Crestwood Christian Church. Okay. Now, the staff has recommended approval subject to four conditions. Have you reviewed those four conditions with your client? We've reviewed the conditions and we certainly have no objections and agree to comply. And there were no objectors to this case. Any questions or discussion? Uh-oh, here's a letter. Have you had a chance to see this? I have. I just had an opportunity to read it just before the hearing started. The church has had an opportunity to read it as well. Okay, thank you. Now, one thing I want to make clear is that sometimes folks have already increased their enrollment prior to coming to us. And that's not the way it's supposed to happen. You're supposed to ask for permission first and then if we approve it, then they increase it. And it doesn't look like that's happened here. It doesn't look like they've already increased enrollment, but I want to make sure that they understand that they have to obtain the occupancy permit if we grant the relief before they increase to the 138. And we understand we've applied obviously with the Division of Health and Family Services for the child care permit for the 138 and that's the number that we've based on coming here to you and I've explained to them that they will need next to go to the Division of Occupancy and get that permit as well. Okay. All right, thank you. If there's no other questions or discussion, I'll entertain a motion. Mr. Chairman, I move item 2957 Crestwood Christian Church. Childcare appeals for a conditional use permit to increase the allowable number of children from 99 to 138 in a single-family residential R1C zone and property located at 1882 Belafonte Drive be approved with the conditions as set forth by the staff. Second. All right, Mr. Stout. Thank you very much. Ms. Meyer and Mr. Griggs, if you had a chance to review that letter. Okay. Do you have any? I'd like to ask you, since you say you've read this and the church has read it, do you think there's any substance to it, or especially the visual barriers from the dumpsters or scheduling the times when the dumpsters are emptied from such early morning hours? I'll say the dumpsters have really nothing to do with the daycare itself. They're actually located, I believe, in the only part of the property where they can be located. I can bring, if you'd like, the Reverend Colette Hensley up here to explain how it goes. I also have a map of the – a small map of the property if you'd like me to show you where those dumpsters are, but they're not – No, I don't need that. I just wondered if, as a neighbor, you would take these complaints seriously and see if you can work something out. I think so. I mean, absolutely. As you can see in the letter, it does note that the person who wrote it had never actually said anything to the church in the past. That's true. It is certainly the first we've heard of it today. Well, it'd be nice if you contacted them at least. Absolutely. I don't disagree with that at all. So we're not making that a condition. We're just encouraging you. Well, and I think the church certainly wants very much to be a part of the community where it's located, so I don't think that's a problem at all. Great. All right. We have a motion that's been seconded. All those in favor of Mr. Stumbo's motion, please signify by saying aye. Aye. All those opposed? Motion passes. Thank you for being here. Thank you. Yes, sir. Okay. Okay. Okay. Great. Thank you. That will prevent some business coming our way. Oh, I wish. Let's see. Okay. C2009-58, Brett Setzer. Good afternoon. Good afternoon. I'm Tom Lambden with Midwest Engineering representing the applicant. Okay. Okay. The staff has recommended approval subject to non-conditions. I want to point out number six, what states you're going to have to get a permit for your fence. Just want to make sure that you're aware of that. Yes. Yes, we will definitely get a permit. You've already endured one hearing and it wasn't even your case. So I'm trying to point that out. Oh, yes. Save you a little pain. So have you reviewed those nine conditions with your client? Yes, we have, and we are in agreement with them. Okay. Mr. Stutzer and his investment company are all okay with that? Yes. Okay. Any questions by the staff or by the board or any discussion? I have one question. All right. This indoor shooting range is for handguns? I'm not really clear on that. I assume that it will be probably 99% handguns, but I can't say definitively that there won't be any long guns. Need some target practice with your AK? Yeah, that's what I was thinking, just given what target practice is meant for. Okay. Okay. All right. Thank you. Any other discussion? If not, I'll entertain a motion. Go ahead, sir. Mr. Chair, I move that we approve C-2009-58 Brett Setzer's appeal for conditional use permit to establish an indoor shooting range in the light industrial I-1 zone located on property at 1105 Industry Road, based on the staff's recommendations and subject to the nine conditions. Thank you, Mr. Griggs. Second. All right. Thank you, Mr. Stump. All those in favor of Mr. Griggs' motion, please signify by saying aye. Aye. All those opposed? Motion passes. Thank you all very much. All right. Have a good weekend, Mr. Wendt. Thank you. Last man standing. All right, final case of the day, A2009-59, John Kemper. Now, Mr. Kemper, the staff recommended disapproval, so you would have been last either way. That's fine. Okay. I just looked back and nobody was following me. I'm sorry? I looked back and nobody was following me. Okay. Well, first thing I want to do is, I don't know that we'll grant the relief you're seeking, but I want to praise you for coming and getting a permit. You've witnessed some things today, and I've had to scold some folks, but I wanted to praise you for doing it in the right order. Well, thank you. Now, since this is a case where it's been recommended that the recommendation is disapproval, we'll hear from the staff first, and then you'll be allowed to respond. So I don't know who wants to address this, maybe Mr. Marks. We've got some photos to pull up here. This administrative appeal is a request to increase the allowable size of a proposed one-and-a-half-story detached garage to be located behind the existing residence. You see here it's on Della Drive. It's a single-family residential R1C zone. the zoning ordinance in that particular zone allows accessory buildings to have a total size of 625 square feet or up to 50% of the size of the residence whichever is greater in this case the residence is I think 1544 square feet which calculates out to about 772 square feet of allowable size for the detached structure what they're proposing is a 28 by 24 building footprint but with the second floor that'll be partially finished total size would come to like 946 square feet which is about 174 square feet over the maximum size so that's what they're requesting is that additional 174 square feet okay evaluating this particular court request was somewhat challenging because it's a relatively small increase they've asked for but at the same time really no unique circumstances or unique features of the property were identified in the application and we weren't able to really find as we did our evaluation of the application that might tend to justify even a small increase so that's the major issue that we have with it. Of course we went back as you noticed in the in the staff report and did a pretty detailed evaluation of all the prior cases at least over the last nine or so years which is roughly the time frame from when the ordinance was changed in the late 1990s to be more restrictive with regard to how big accessory buildings can be. Over that nine years only three requests that were presented to you all were actually approved to give some relief with regard to size all those cases had some unique circumstances or special property features that played a significant role in your all's recommendation or finding or approval of course the character of the neighborhood plays a big role in looking at these kind of requests this is the property just to the right you can see the accessory building which is actually one of probably one of the larger ones in this neighborhood for that dwelling you will note that it's just a one-story accessory building with a roof pitch that's much reduced compared to the principal dwelling so it does appear accessory in that sense to the dwelling on the other side to the left of the property there you see the accessory building there again a one story structure maybe a slightly less steep roof pitch than the principal dwelling moving on down Della Drive a little bit further just to give you a kind of a feel for the kind of stuff that you see there typically what you see is smaller accessory buildings in many cases with a reduced roof pitch compared to the principal dwelling there are exceptions there's no question about that but this is pretty much generally what you see here's another shot carport with an enclosed building behind that and this last one here. Absent any unique features, special circumstances, it's just real difficult for staff to feel comfortable with allowing a size increase, however small it might be. Our suggestion in this case is just to modify the second floor. That's really the main issue here is how they're designing that second floor. With the building footprint they proposed at 28 by 24, they could have finished floor area of about 100 square feet and by finished floor area on a second floor that would be area that had a floor to ceiling height of seven feet or more. That's I think generally the criteria that building inspections uses. So they could have a second floor as attic type storage. That wouldn't count at all if all of it was at a less than seven feet clearance, which is not what they want in this particular case. They want. He's a tall guy. I understand. Mr. Kimmerer is actually the builder. I don't know if the owners are as tall as John. So that's our suggestion, is to modify that second floor a little bit. I know that's not ideally what they want, but it's an option. Okay. Thank you, Mr. Marks. In looking at what's going on in the neighborhood, what is going on in the neighborhood relative to the size of the garages, the buildings in the back of the homes, why wouldn't you go along with the suggestion of the staff well first let me say that I'm not only here as the builder but these are personal friends of mine that's the reason I'm involved in this so I am building the structure but anyway can we put some things up that's this let me show you this garage that started this whole process for this young lady She's getting married in October, and I don't know. She's giving me permission to talk about what's going on in personal life, that kind of stuff. Is that going to be the doghouse for the husband? Well, there's been some discussion about that already. My wife's going to want one. I'll give you a card before we leave. This is located down on Beacon Hill. Yorktown. You're right. Thank you. I'm glad I brought him. Yorktown. They're getting married in October. He's moving in from Frankfurt where he lives now. They're going to be combining their two households. They have, she has a historical or a classical vehicle that she has, want to, inherited from her father. She's trying to get it out of the weather. There is no garage existing on this property currently. It's an 80s model Blazer. This is her personal car that she drives. He has a car. He has a motorcycle, which is another seasonal vehicle. So they're trying to get these things in off the street, and they've got a nine-foot driveway past the house. Well, they can park the cars in the back, but they're constantly going to be doing that in-and-out deal. So I brought the four vehicles, just so you show you they do have four vehicles. So combining this, they're going to have two households full of stuff, and they're not sure what they want to keep, you know, what they want to get rid of first. her house would do 14 15 44 something like that so it's not a large house and she's been living in it for many years and accumulated some things and so does he and she can we put that garage back up she saw this garage it's on yorktown which is three four streets over from runs perpendicular to Della. This is 30 by 24 I believe, two car garage with some storage on the ground level for the motorcycle. Get two of the cars off the street and they have some additional space to be able to pass the two vehicles. We can build this structure just like you see it right here without a variance or anything else if we don't do that upstairs. The roof pitch and everything else is less than the pitch of the existing house which is fine with code. The only thing they're wanting to do is have that additional space to store things and it needs to be floored because it's furniture, various things that they're going to try to decide what to do with. So this is the criminal that started this whole process for us. She saw this and she said she liked the design and that kind of thing. So that's what started it. You've seen the garage to the west of us. garage over on Lynn which is backs up to Della and under construction this is a picture of it when it's complete if I could just interrupt before he gets going there that Yorktown garage was permitted priorities of construction as a one story detached garage of legal size and was noted in the inspection report that the storage above the garage only so just keep in mind that that is the legal performing building in that area. The garage it says right here from PVA is 720 square feet. That's exactly right. The house is 1,365 so that's more than 50% of the square footage of the primary residence isn't it? I don't have the existing square footage we go by what the application was I was going by what PVA has well I don't know if I trust that either so all right well I just wanted the panel to know it was legally permitted legally inspected and we find it conforming so what's the permit say the square footage is on the primary residence it does not say sir PVA says it's 1356 the garage is 720 so 1440 would be 50% or 100, 200% whatever of the garage space this structure was permitted in 2006 on Lynn put up the little house that's behind there's no stairs there's the house can we put the garage back up this one is i want to tell you wrong here i believe it's 30 30 by 24 on the first floor you see the access door to the second floor and you see the full dormers running the width of the house on the front and the back you know potentially you're looking at uh oh that's 30 by 30 garage so it's 900 square feet on the first floor you're looking at a possible 1800 square feet permitted in 2006 and i've got the square footage from pba on the house i don't have anything else on that in one of these stacks but these are all in that you know walking distance of the subject property and the fact that we can build the structure the way it looks and the only difference is whether we have some extra storage upstairs versus no storage it's not going to look any different to the outside to anybody whether it's got storage or not just like here we can't tell how much of that's finished or floored for storage or how they're even using it so out of the eight cases that were cited and i won't run through each one of them i think four of them were not permitted before the structure was built so they had to come back and ask for permission to leave the structures as they were constructed uh let's see two of them one of them was an a an ar which really didn't have to come before you except for a height variance request. So that's we're down to three and out of those three, two of them were approved. So we're at 66% of the ones that made it to you through the permitting process and in your zoning requirements were approved. So I don't know. I see their reasons, but if I can build the structure and it looks the same to the guy driving down the street, you know, does it matter that there's storage upstairs? It seems like your question, I'm right here, is asking whether the zoning laws as the written matter or not. You act like the specifics of the zoning laws should not matter because you found an example where the exterior is unaffected. You're asking us to ignore the specifics of the zoning law. Well, no, we're understanding the zoning laws. why we're here asking for this it's not like we I mean I sit and listen to the fence deal and we're not trying to go around that we're just asking what it was a hundred and something square feet that we were over but you're right you're asking us to without any special circumstances to ignore the zoning laws in some ways just circumvent them or set a precedent against the zoning laws as they're written with no special circumstances is that basically your argument no I don't know that's not my argument argument is that you asked for a specific reason why we were needing the additional space and its storage the combining of these two households the four vehicles I mean we're always up talking about parking vehicles off streets well we got four vehicles coming this nine foot wide driveway and being able to put two of them in the garage and two of them in the rear of the house seems to be a plus for the neighborhood. There's a picture of one of these units where there's, you know, cars parked outside. In the back they're parked on the street up and down Della Drive and these folks are trying to get their vehicles off the street, out of the weather, in storage. They're trying to combine these two households and what we're asking for is if there's no cosmetic difference on the outside of the structure why would you not allow the storage upstairs be floored and you know protect the items from just sitting in a garage mr. chairman yes sir the recommendation that the staff has offered will that take care of his concern relative to the vehicles that he wants off the street in your experience. I'm not sure about the vehicles. The only play on the vehicles might be if they reduce the footprint of the garage, reduce the first floor area so they could have more in their terms usable storage space upstairs. But I think with the storage issue what you need to focus on is the height, the clearance. It's not a question of storage or no storage. a question of how much storage do you need where you have a height clearance of more than seven feet so i think we need to maybe focus a little bit on that right i agree the way i hear staff is that if the ceiling was seven feet then there wouldn't be a need for variance at all or or not a variance but relief and your client doesn't want to have a seven-foot ceiling that is correct until you come here and ask for permission right all right uh any other questions or discussion okay all right then i'll uh i'll entertain a motion then i move that a 2009-59 john kemper's appeal for administrative review to allow a one-and-a-half-story detached garage to be more than 50% of the size of the principal residence in a single-family residential zone on property located at 816 Della Drive be disapproved for the reasons recommended by the staff. Thank you, Ms. Moore. Do we have a second? Second. Any discussion? all those in favor of mr moore's motion please signify by saying aye aye all those opposed aye aye five to two motion passes thank you thank you for being here all right any items that the board would like to present not mr. Silly give any items the only thing we have on your agenda listed the first of the fall audio conferences offered by the American Planning Association there will be one in two weeks Wednesday afternoon October 14th division planning conference room this does count to your state required training over two year period we cordially invite you to attend if your schedules allow all right thank you thank you the next meeting date are there any other board item I mean staff items I'm sorry no sir thank you all right then next meeting today is October 30th and there's no other business I'll declare the meeting Thank you, everyone. The End Thank you.