We would like to give you a little information before we get started relative to procedures. If you have your cell phones on you, we would ask that you please put them on silent or turn them off or where only you can hear it. And if it rings and you have to go outside, please excuse yourself. And we would also ask that all of you who plan to testify on behalf of the positive or the negative, please stand and raise your right hand, please. and do you solemnly swear to tell the truth the whole truth and nothing but the truth i do thank you we would ask that if there are those of you here who are in opposition to any of the cases that are on the agenda and if you and that the appellant can step outside if If you feel like you can solve the concern outside without hurting each other, we would ask that you step outside and discuss it before your case comes up. If you don't feel like that is possible, then we will hear your case as it comes to us. In the order we will sound the agenda, Those cases who have no opposition will be the first in order. Those cases that have opposition will be moved to the back of the agenda. Also, before we sound the cases, we would ask the staff if there are any withdrawals or if there have been any requests for moving their cases to another time, please. One applicant is here to request a withdrawal. The staff has also received a withdrawal letter by email and a postponement request. We'll let the applicant go first, if you don't mind. Before we take, what case is that? The case that he's going to do is at the end of your agenda on page 5, case A, 2011-71 for Ballin-Rike Capital Holdings. the board has not started a hearing on this one ever so it can just be withdrawn without any action of the board is there anyone here relative to this review in opposition thank you then we will hear from the representative please mr chairman i'm dick murphy i do represent ball and right capital holdings in case a 2011-71 and we are withdrawing that case i've already submitted a letter to the staff to that effect. Are there any questions from the board? If not, do I hear a motion that this be approved? We don't have to do that only if it draws open. So move. Case is withdrawn. Thank you. Next case. The staff has received an e-mail for the first item on your agenda on page 1, item V, 2012-22, Dr. Pinkish Patel. This is a variance request for a front yard setback on 2529 Pascoe Place. The staff has received an email request withdrawing this request. They will change their lot around to be compliant with the zoning ordinance. Is there anyone here in opposition to this request? Sir, do you understand he's withdrawing it? I just wanted to be asked if I could just clarify that. I was here in opposition to make sure that that's in opposition to the trust that it's withdrawn. All right. Thank you, sir. That case, V2012-22, Dr. Mattel has been withdrawn. Any other cases you need? Yes, sir. On page two, item number three in the middle of the page, V2012-27, Ball Homes, LLC, This is a request for a variance to the floodplain setback on property at 3829 Castle Bridge Lane. The staff has received an email request requesting a one-month postponement to your May 18th meeting. Anyone here in opposition to Ball Holmes' request? Do I hear a motion by the Board that we permit this postponement until May 18th, 2012? So moved. Do I have a second? Second. All in favor signify by saying aye. Aye. All opposed. Postponement granted. All right, we will sound the cases. Those of you who are here, if we ask you here, just say here, and we will call you in order as they come. Case V2012-24, Crown Castle, PT Company. Here. Where are you? Is anyone here in opposition? We have no opposition. The next case. Ball Homes is postponed. We have a supplemental staff report together. CV2012-11 Towns Entertainment LLC. Is there anyone here in opposition? We have three in opposition. That case will be moved to the back somewhere. KC 2012-14, Tom Cheek. Is there anyone here in opposition? Tom Cheek. No opposition. KC 2012-23, Providence Montessori School, Inc. Is there anyone here in opposition? No opposition. The next case is C2012-25, Roode and Riddle Equine Hospital. Roode and Riddle. Thank you. Is there anyone here in opposition? No opposition. The next case is C2012-26, Linda Derossett. Here. Anyone here in opposition? No opposition. The next case is C2012-21, Jersey Street, LLC. Here. Anyone here in opposition? That's the last one? Yes, sir. All right. That's the staff. Any other comments you have before we get started? We don't have any minutes or anything like that to approve, I gather. I do not believe so. Okay. Yes, sir. So we will take the first case here, which is V2012-24 Crown Castle PT Company. Please come forward. Tell us who you are. Good afternoon. I'm Cindy Schaefer of Crown Castle. Well, and give me your name again. Cindy Schaefer. That's Ms. Schaefer. The staff has recommended approval subject to two conditions. Have you read and do you understand those conditions? Yes, sir. I do. Do you have questions regarding the conditions? No, sir. I do not. Do you agree to abide by those conditions? Yes, sir. I do. Are there any questions from the staff or questions from the board? Chair, I have a question maybe for the staff. What's the notification area for this as far as neighbors? It was a variant, so it had a 200-foot notice area. I can look and see how many properties that entailed. Well, it's a pretty insignificant distance considering the height of the tower, and I wonder, since the land's rolling out there, how many thousands of properties are going to be affected by. I guess there's a strobe on the top of this? There's just a beacon at the top. What does a beacon mean? It's to let aircraft know that it's there. Is it red? It's required by the FCC. It's red. And blinking? Yes. Are there ever studies done about how disruptive that is to people's night sky in neighborhoods for probably miles around? It's not that, it doesn't get out that far as enough to disturb because it is red. Red light does not affect people the way white light does. That's why your brake lights are red. So there have been studies done on it. I don't have them with me right now. I have read them. But it doesn't emulate as far and as brightly enough to where the human eye actually does not react to a red light the way it does to a white light. It's not directed only upwards, though. It's directed horizontally and down? Not down. more horizontally and up. They're deflectors so that it's not angled down? It's the way the light is set inside the lens. The light is set at an angle so that it's not down. It actually has an azimuth that's a little more tilted. Well, I know this is not a significant increase in the height, but I hate to do something that might disturb people. Actually, the light, even with the increase in height, is not going to travel any further than it does now. It is what it is, and that's as far as it's going to go. What do you mean, Bill? We have one of these in our area where I live, and we don't even know it's there unless you just look up in the sky. You don't see anything coming down to the ground on them. Well, if there are no other board members that have a concern about this, I'll let it go. But it was worrisome to me. I understand, and I thank you for your concern. I have a question, Mr. Chairman. Ms. Schaefer, are you all regulated by the FAA as well as the FCC? Yes, sir, we are. Is that a lighter requirement of the FAA? Yes, it is. Size and the strength and all that stuff? It's all required, and we have to. I don't know the exact specifics on it. That's a regulatory issue. but we are regulated by the FCC and the FAA, and we have to meet those requirements regardless of where the tower is located or its height. The only thing we don't have to do with this tower is light it because it's below 200 feet. Any tower 200 feet or over has to be lit. Okay. If it falls down, who will it hurt? Power plant. I mean, they're no residential? They're not nearby, and a tower doesn't just fall over. It's engineered to crumble in on itself as it comes over, so it actually decreases its length. I just doubled my knowledge of cell towers. Believe me, I've learned a lot in the last 10 years. Thank you. Are there any other questions? Mr. Chairman, to answer the questions about the notice that was sent out, 42 first-class letters went out for notice to the surrounding property owners, and the staff notified two neighborhood associations, the two nearest neighborhood associations, the South Point Neighborhood Association and the Pickway Corner Neighborhood Association, in addition to the required notice. And there was no feedback from any of those neighbors or associations? No, the staff has not received any phone calls or any correspondence on this application. Well, that's good enough for me. Any other questions? Not out here. Vote, please. Or motion. I'd just like to say before I vote for this, it just makes a lot of sense to me to, rather than have another poll, to be able to add to an existing poll. So having said that, I move to approve V2012-24 Crown Castle Point Company appeals for a variance to reduce the required setback one-to-one height-to-yard ratio for an existing cell tower to zero feet in order to extend its height from 160 feet to 185 feet in a planned neighborhood residential R3 zone on property located at 370 Waveland Museum Lane, Council District 9. as recommended by staff and subject to the two conditions provided by staff. Do I have a second? Second. All in favor signify by saying aye. Aye. All opposed? Motion passes. The next case, Ball Holmes, has been postponed for one month. We will move to case number C2012-14, Tom Cheek. You come forward, Mr. Cheek. Thank you, ma'am. Thank you, sir. Is there anyone in here in opposition to Mr. Tom Cheek's request? All right, Mr. Cheek, you might tell us who you are. I'm Tom Cheek. I'm the architect and the contractor for the project. The staff has recommended approval subject to two conditions. Have you read and understand those conditions, sir? Yes. Do you agree to follow by the conditions? Yes. Are there any questions from staff or from the board? If not, I'll hear a motion. Mr. Chair, I'll move that C-2012-14 Town Cheek appeals for a conditional use permit to occupy an existing building as a rehabilitation indoor athletic facility in a wholesale and warehouse business zone on property located at 1868 Plot at Place be approved with the conditions as set forth by the staff. Do I have a second? Second. All in favor, signify by saying aye, please. Aye. All opposed, motion passes. Thank you. Case number 2012-23, Providence Montessori School, Inc. Hi, my name is Pam Clements, and I'm with Lucas Schwering Architects. Is anyone here in opposition? No one is in opposition. The staff has recommended approval subject to five conditions. Have you read those conditions? Do you understand them? Do you agree to go by them? Yes. Staff, do you have any questions? Yes, sir. Board, questions, comments? I'm not out of your motion, please. Mr. Chair, on C-2012-23 Providence Montessori School, Inc., appeal for a conditional use permit to expand the existing school, covering an existing garage to classroom space, in expanding the toddler program in a single family residential and planned neighborhood residential zone on property located at 1209 Texaco Road be approved as recommended by staff subject to the conditions as recommended by staff. Do I have a second? Second. All in favor signify by saying aye. Aye. All opposed? Motion passes. Case number 2012-25, Rood and Riddle Equine Hospital. I'm Roger Laydenberger for Rood and Riddle Equine Hospital. Yes, sir. The staff has recommended approval subject to three conditions. Have you read those conditions? Yes. You understand those conditions? Yes. You agree to abide by those conditions? Any questions from staff? Yes, sir. Any questions, comments from the board? If not out here, motion, please. Mr. Chairman, I move for the approval of C-2012-25 Roode and Riddle Equine Hospital's appeal for a conditional use permit to expand the existing equine hospital facility and add parking in an agricultural urban zone on property located at 2150 Georgetown Road. For the reasons recommended by staff and subject to those three conditions indicated. I will tell you that is one good-looking facility you've got out there. I'm sorry? It's a good-looking facility you've got out there. Thank you. Very nice to look at. Do I have a second? I'll second. All in favor signify by saying aye. Aye. Motion passes. Thank you. Thank you. KC-2012-26, Linda DeRossett. I'm Linda Derossett for Village Montessori. Ms. Derossett, the staff has recommended approval subject to three conditions. Have you read those conditions? Yes. Do you have any questions about the conditions? No. Do you agree to abide by those conditions? Yes, sir. Staff, do you have any questions? Yes, sir. Any comments, questions from the board? I just have one question. The definition of school usually talks about classroom instruction. Is it principally classroom instruction? Part of the day will be classroom instruction with a Montessori curriculum, and the rest of the day will be spent in individual study and also creative playtime. So if this had been a daycare, since it's inside a church, it would be equally acceptable as a conditional use, right? Yes. Okay. It would be. Any other questions? If we have no other questions, I'll hear a motion, please. Mr. Chair? I move that we approve Linda DeRossett's appeal for a conditional use permit to establish a Montessori school in the existing church in a two-story family residential slash historic district zone on property located at 530 East High Street, based on the staff's recommendation and subject to the three conditions. Do I hear a second? Second. All in favor signify with saying aye. Aye. All opposed? Motion passes. Thank you. Thank you. 2011-71 has been withdrawn. We go to A-2012-21, Jersey Street, LLC. Good afternoon. My name is John Brueger. I'm here on behalf of Jersey Street, LLC. And you're John who, sir? Brueger. Brueger? Brueger. The staff has recommended approval subject to two conditions. Have you read those conditions? Yes, sir. You agree to abide by them? Yes, sir. And you understand them? Yes, sir. Staff, do you have any questions? Yes, sir. Questions or concerns from the board, please? I have one other question for staff. So when it talks about it being a less intensive use and where it's first permitted, can you explain how you got there? Absolutely. The property is essentially a nonconforming B4 use in the R2 zone. The B4 zone is our warehouse and wholesale zone, and it allows more intense uses than those uses that are first allowed in the B1 zone, which is a neighborhood business zone. The applicant's proposed retail is, from a zoning intensity standpoint, it's allowed in a zone that is considered a less intense zone. The staff also, whenever we looked at this, we looked at potential disturbances to the neighborhood. We looked at the intensity of the use. their proposed facility will actually only have a small amount of retail space and a large amount of uses for storage and things like that that are not changing. So the staff felt comfortable that this change and one nonconforming use to another will not present any additional burden on the neighborhood. Because I just am curious, it seems to me that if it's retail, there are more people coming in and out and there are greater parking requirements. The staff has looked at that. There are multiple ways in which to determine that, but the first thing to look at is the schedule of the zones. The zones get more intense as you work your way from the AR zone all the way to the heavy industrial I-2 zone, and they're in the zoning ordinance essentially in the order of their intensity. Any other questions? Any other concerns? I have a question about when at some point this retail sale should cease. Does the conditional use cease? If another retail sales establishment that was similar enough to this application, they could go in under this particular one. My example is this is a Nike retail establishment that is wanting to go here. If an Adidas retail establishment wanted to go in there, the staff would have no problem doing that. If there was another use such as a nightclub or a restaurant or something that wanted to go in, the staff would say that that is not similar enough to what the board is approving today and would send that request back to the board for your approval. Any other questions? I'll hear a motion, please. Mr. Chair, I'll move that item 2012-21, Jersey Street, LLC, appeals for administrative review to allow a change in legal nonconforming use in a high-density apartment historic district overlay zone on property located at 431 Jersey Street be approved with the conditions as set forth by the staff. Do I hear a second? Second. All in favor signify by saying aye. Aye. All opposed. Thank you, sir. To you. Motion passes. That brings us to case CV2012-11, Towns Entertainment, LLC, Inc. This is dealing with a staff report case, so you all want to start this off. We've got, I think, those of you in opposition, let's see your hands. Would you move up front here where we can know where you are, please? Move up front here so you don't have so far to walk. Before we hear the opposition, we will allow the staff to give us some information relative to this report, please. To first get this out of the way, we've placed at your seat a supplemental staff report that you've just received today. We have additional copies of this supplemental staff report in the back near the agendas, if anyone in the audience would also like to get that. This supplemental staff report is intended to work in concert with the original staff report that you received in your mail packet for Towns Entertainment. This request is a two-fold request for a conditional use and variance request for a restaurant with live entertainment, which is the conditional use request. There are also two variances that are requested, a variance to the 100-foot setback from the live entertainment to a residential zone, and also a 50% reduction in the required parking. There have been no changes in the staff report related to the variances on the required parking or the variance to the distance. The staff is recommending approval of both of those, just as we were. At question was the conditional use for the live entertainment. The staff is recommending approval of the live entertainment subject to five conditions. Condition number three was that the building shall be soundproofed to the maximum extent feasible using existing technology with noise or other emissions, not creating a nuisance to the surrounding neighborhood. As this condition that's in the zoning ordinance sometimes sparks controversy, controversy, the staff did some additional research since we finished our staff report on that relating to that. The supplemental staff report over the last week, actually ever since this original application came in, the staff has been doing research on what does it mean for noise disturbances, especially associated with live entertainment and surrounding neighborhoods. We have tried to summarize our research as clearly and concisely as we can in the supplemental staff report. The first thing that we would like to note, that not just this use, but any use that the board approves, the approval of any live entertainment establishment does not negate the LFUCG code of ordinances for the noise ordinance. We have been in discussions with the police department. And so as it goes in, the entire noise ordinance, as we said, is too lengthy. We have a copy of it in the file if there are any questions about it. But we've got in there generally that noises cannot go out into the public right away. The Division of Police has the responsibility of enforcing the noise ordinance. and an individual officer who is responding to a noise disturbance will have the, after they've investigated and if they do find that there is a noise disturbance, they have the option of either telling the person to abate the noise, you know, stop it, stop the noise disturbance, or to also write a citation on this. That is up to the officer. As far as looking into soundproofing technologies, the staff also looked into a lot of different sound technologies that are out there. And based off of the complicated nature of the physics of how sound travels, some of those soundproofing technologies are better than others. but really what it comes down to is that what we found in our research is oftentimes there is not one particular technology that fixes everything in every circumstance. You have to really look at the proposed use at the proposed location and under what circumstances that it would be. The staff found that generally those items that are often the simplest are usually the most effective. The staff is recommending for this particular site, the live entertainment is being proposed indoors in a portion of the building. The staff is recommending additional conditions in this staff report that would be in addition to number three, that where the live entertainment is proposed indoors, it opens out onto a patio area. Everything about the staff's recommendation is to keep the live entertainment inside and not have it spill out into the patio area. We are recommending that the doors to the patio area not be propped open during any type of performance. That speakers that are set up for the live entertainment uses, whether they're in-house speakers or whether it's a performer bringing in their own sound system, that they not be directed towards South Upper Street, towards the patio. And finally, that the applicant shall inform our Division of Planning, our zoning enforcement section, if there are any additional soundproofing technologies that they have employed after they get their certificate of occupancy, so that we can take those into account as we look to see on this particular site on whether there were any complaints or anything, any noise disturbances, we would be able to kind of match up dates. If we do get noise disturbances and then they put in a new soundproofing technology, did it work, are we still getting the same number of complaints, things of that nature. Once you get beyond condition number three and back to the original conditions that are on the staff report, The staff is further recommending that they not have any outdoor speakers for the live entertainment in the patio area and that the Division of Planning and our Zoning Enforcement section would report back to the board at a minimum of six months from the board's approval and one year from the board's approval regarding compliance of this use with the conditions of approval. This does not negate our zoning enforcement's ability that if there are a large number of complaints or extremely grievous complaints, or if they feel at any time that the applicant is not following the conditions that the board puts on it, they can bring that back to you just as they can with any other application. This just sets a six-month and one-year checkup, if you will, on this application to ensure that it's looked at again. I can show you some pictures of the site. I also forgot to pass out. The staff has received two letters related to this. Bill is passing those out to the board right now. My apologies for not passing those out at the beginning. The subject property has an address of 122 West Maxwell Street. I think most people will know this site more by the surrounding uses. On this aerial photograph, we have South Upper Street, Maxwell Street, and then Jersey Street. At the corner of Jersey Street and Maxwell Street is Joe Bologna's, the Italian restaurant. Attached in the same building and on the same property is where the currently vacant building is that the applicant wishes to do their restaurant with live entertainment. At the very corner of this block and not a part of this application is a two-story building with clothing stores in it. Are we looking southwest in that photo? Yes. This is looking southeast. There is also a very large parking lot in the rear of the subject property that has about 64 parking spaces in it. Looking at it to the north, looking at the back of the property, you can see. I should have turned the lights down. Looking at the back of the property to orient everybody, we have Upper Street, Maxwell. This is the building that the restaurant would be in, and in particular the area with the white roof is where the live entertainment would be requested. This is the patio area that faces South Upper Street, and this is the parking lot that is to there. The variance request to the 100-foot distance from a residential zone is, the request is from 100 feet to zero because this parking lot is in a residential zone. The zone line goes right at the backs of the buildings. So right at the back, right on the property line, not property line, but right at the edge of the building is where the residential zone begins. The staff did look at the distances on the variance, not necessarily because it's quite understandable 100 feet to 0 feet on the distance requirement because the parking lot is zoned residential. The staff actually looked at measuring the distances from the proposed building where the live entertainment is being proposed to the nearest residential uses that are all around this. And what the staff found is that where the live entertainment is proposed is over 100 feet to the nearest residential structure in any direction. However, if that live entertainment were to move out onto the patio area outside on South Upper Street, that distance drops down to 60 feet, which is just the width of South Upper Street's right-of-way. So it would literally be across the street at that point. That led the staff to our proposed recommendation, our recommendation for proposed conditions that would limit the indoor use, would limit the live entertainment use to an indoor area as is proposed in the application. After all of our research, the staff felt comfortable recommending approval of both of the variances and the conditional use for this application. And if there are further questions for the staff, I would be happy to try and answer them. I have a question before we bring anyone up here. Relative to the business that was there before Gambino's? Yes. Was that approved by the Board of Adjustments? No, they never brought an application for live entertainment to the Board of Adjustments. They were doing those uses without any approvals. So you're saying they were in violation? They were in violation of the zoning ordinance. Now, let me ask of those out there who are in opposition, who are the ones appealing to this case? Who are they? The appealants, let me see. Okay. And the other people here, all of you, 3, 4, 5, 6, 7, 8, are all in opposition. Is that correct? I'm representing as president of the Historical South Hill Neighborhood Association, and we're not necessarily an opposition. Okay. All right. We're going to hear the opposition first. If you don't mind, any one of you want to come up and voice your reasons and rationale as to why this case should not be granted? The staff has recommended approval with several conditions, and we do understand that you are in opposition to it, so we will hear you first. Yes, sir. My name is Mike Kovash. I live at 371 South Upper Street. It's about 300 feet from the corner of the building there. I've lived there for 12 years. I'm a member of the association's board, and I've taken part in the discussions that the board has had. I'm also a member of one of your sister commissions. I'm on the Historic Preservation Commission, but I'm not representing them here today. Let me ask you a question before you go. How many neighborhood associations are represented in that area? One. One? Yes, sir. Are both of you all members of the same association? Yes. Go ahead, sir. Okay, and I personally, this is going to take about five minutes. I apologize to make my argument. I've written it down, so I'm going to read it, if you don't mind me doing that. The location, as you can see on the photograph, this is Historic South Hill. One of my colleagues calls this a fragile historic neighborhood. It's right between the campus and the downtown area. It's a wonderful mix of residential homeowners and renters, and it covers all age groups in here. I walk to work, and I enjoy living here very much. There are a number of historic properties here, all within shouting distance of this proposed bar. My house is over 200 years old, and the neighbor's log cabin is even older than that. Across from the proposed bar is the rebuilt cigar company building and other old, very well-maintained homes. So I'd like to say something about the history of this property as I know it. Again, I've been there for 12 years. The previous bars, Gambino's and Gusto's on this site, they were both student bars. Lots and lots of noise, primarily from music from those bars until 1 and then 2 in the morning. The police were generally unresponsive to our many, many complaints about this. And the noise problem continued for many years until the bars closed. Not until the noise was stopped, but until the bars closed. Since I've seen the turnover rate here, it looks like the average lifespan of a bar here is three to four years. About a year and a half ago, there was another request from a potential tenant in this property for a bar with live music asking for a variance, and it was unanimously rejected by the board of the Historic South Hill Neighborhood Association, and it was denied by this particular commission at that time. The present request for a variance for live music is the focus of what I'd like to talk about today. These new tenants, you may hear from them later, seem to be committed to working with the neighborhood. However, and this is very important to us, any variance granted today stands for all future tenants. Therefore, the variants must be bulletproof and be equally protective of neighborhood rights with future less accommodating tenants. So you have the job of evaluating this request for live music. The City Planning Office recommends approval primarily based on a set of conditions which, if enforced, would keep the sound inside the building. And the historic South Hill Neighborhood Association Board has also developed a set of conditions which are similar and aim to accomplish the same thing, that is, minimizing the noise that escapes into the surrounding homes. Clearly, both the city and the Neighborhood Association recognize the potential for a significant noise disturbance and both want to use conditions as a way to lessen this problem. Also, enforcement is an explicit component of both sets of conditions. I know that the manner in which the city can and will enforce the conditions figured heavily into our association's discussions of this proposal. So now I'd like to pass out. This is Kentucky Revised Statute, number 100.243, Findings Necessary for Granting Variances. And I'm going to read the first sentence. Before any variance is granted, the Board must find that the granting of the variance will not adversely affect the public health, safety, or welfare, will not alter the essential character of the general vicinity, will not cause a hazard or a nuisance to the public, and will not allow an unreasonable circumvention of the requirements of the zoning regulations. So I've underlined, the board must find that the granting of the variance will not cause a nuisance. That's unequivocal. There's no may, there's no might, there's a must there. The board must, you must be able to certify that this will not cause a nuisance. And of course the nuisance that I and the residents most fear is noise in the wee hours of the night. So the question becomes, can the BOA meet the necessary findings standards of the statute, that the variance will not cause a nuisance? So consider a business which wants to build a factory next to a residential neighborhood. The residents are most concerned about the soot emitted by the factory and require a condition to the variants to build the factory, that is, that no soot would fall on the neighborhood. Note that the burden of proof for a violation of this condition is now held by the residents, but this is not too bad since they can simply collect any soot they find and report it to the enforcement officials. In the case of this potential noise nuisance at 122 West Maxwell, the BOA is relying on adherence to the written conditions to guarantee that the variance will not lead to a nuisance. You're relying on that. According to the requirements of KRS, this is essential. It's an essential element, will not cause a nuisance. and the conditions must be enforceable. Are they? Unlike soot, local residents must demonstrate that the problem exists at 1 in the morning. And the problem is not material, but more ethereal. It's the thump of a baseline that permeates the vicinity. It's also not quantifiable. The LFUCG noise ordinance offers no quantifiable measure of what constitutes a noise disturbance. What is a disturbance to me or to my neighbors may not be a disturbance to a policeman or to the planning group charged with enforcing the conditions for approval. You have a copy of the noise ordinance. Shall I read that? I hope not. Thank you. Therefore, not only are the conditions which planning has proposed vague, they are essentially undefined. So now the residents of South Hill, for these and all future tenants of this property, are obliged to show that the conditions are not satisfied when those conditions have no quantifiable definition and therefore are unenforceable. So again, there's a long history of noise from bars at this location. The city government has not demonstrated that it is capable of enforcing the noise disturbance ordinance, due at least in part to its vagueness. But the planning office is asking the BOA to rely on enforcement of a set of conditions limiting late-night noise to satisfy the requirements of this statute right here. The board must find that the granting of the variance will not cause a nuisance. How can you possibly certify that to be the case? And how can the nearby residents of South Hill exercise their rights of due process when that process is based upon such ill-defined standards? We are not talking about roof overhangs or asphalt versus gravel driveways or other easily quantifiable measures which might reasonably be evaluated. And so we respectfully suggest that the standards of necessary findings in KRS has not been met, and the variants, therefore, must be denied. Thanks for your time. Anyone else? Okay, well, I want to talk about the parking issue. I'm Joe Mowonian. I've been on that corner for 39 years now. Parking has always been a problem, even from my original place that I always had a parking lot attendant and somebody to secure parking and safety for customers. they talk about parking in the area and if you take the central parking lot there are 71 spaces that are already out to 9 different businesses that are already paid for all day long and up to 5 o'clock and UK parking takes up the rest and after five there's still 71 spaces and whatever's left is what people are left to use there. In the parking at Lex Park it says two blocks away but it's really about three or four. And my responsibility, my customer is to make the most convenient parking and telling them they have to go three or four blocks down the street to park would be difficult for me. and I'm probably unusual for an on-campus restaurant because 90% of my business is non-college and comes from all over the city and they have to drive and park. So, and I've always been willing, whoever runs the other side, that we share the parking work together. And I'd like to make one other comment that when they put the parking meters in, It was really a good thing because the city did a good job on that and that the people, instead of parking there and tying it up for days, come and go and it helps all businesses. And I think it actually should even be done at night because it would help the turnover rather than somebody parking there and staying there all night long. Thank you. Thank you, sir. John Long, 419 South Upper Street. I live right across from Joby's parking lot. I see this really as being an issue of enforcement as well. Staff recommends a common sense approach. Why should it be the obligation of the residents in the neighborhood to enforce these noise levels when the ordinance is really not that clear? There is technology that we've been told that would help mitigate part of this problem. decibel measuring devices that could go onto the sound system that would turn the sound system off if it exceeded a level that was agreed and that would stay off for a while until the band was able to start playing again. I would also say that we've had a number of conversations with the developers, and they have been reasonable. We've had good sessions. We did a sound test last week, I think on Tuesday night. They paid for a sound engineer to come out, and we put a sound system inside the space, and we measured the decibel levels inside and outside across the street to the closest residents and agreed to what we thought would be a reasonable level. But what we don't understand how we'll get resolved is how it will be remediated. Now, the developers have said that they will put materials inside and outside of the existing windows, but there's no way of knowing whether and when that is all done that it will really mitigate the sound problems which are clearly going to happen coming out of that facility. One approach, because I think, at least for myself, and I'm not speaking on behalf of the ownership association, I wouldn't mind having that place opened up. I wouldn't mind having another really good restaurant in the area. It's the live entertainment that I'm really, really worried about. But if there was a way that we could make that work by doing two things. One, that the certificate of occupancy not be issued until the remediation on the sound had been deemed to be fair and equitable by everybody concerned. and secondly, if there were three opportunities where the police had to be called out, not three opportunities, but three situations where the police had to be called out because of excessive noise, it would be like three strikes and you're out and this variance would be pulled if it was decided to be approved today. So from my perspective, I'd be interested in working forward and trying to find a resolution that would work with those two considerations. And then with tongue-in-cheek, I have to say this is interesting because of the way this neighborhood works with its historic designation. A year ago, I didn't even know that Mike served on this board. A year ago, I went to see if I could put bricks in my front yard. And these bricks came from one of the buildings downtown. The bricks were over 100 years old. and I was told that I couldn't put bricks in my front yard, in my very small front yard, because they weren't historical. And yet we're having this discussion, a mere few feet across the street from Upper Street, that is going to allow live entertainment without any enforcement and using a common sense approach to measure the noise. It simply doesn't make sense that we're that far apart in two different ways in which we live in our city across this piece of pavement. Thank you very much. Hi, my name is Kerry Cawthon. I live probably the, I think I am the closest neighbor to the establishment that's being proposed. I'm 415 South Upper Street. I'm the Bluegrass Cigar Building. I have spent too much money in that place, but I have a very strong investment in the neighborhood. I actually have renovated John's house, which is 419, and the house in between 417. So I've been in the neighborhood for, I think, 12 or 14 years now. And like a lot of the neighbors, I've seen good places and bad places come and go. One of the best establishments for that neighborhood was the Holy Grail because it was a nice eatery that had a good vibe, but it didn't survive. There have been some of the worst were Gambinos, which, as everyone has pointed out, was literally a nightmare. I have two small children, four and a half and two and a half, and when they wake up at two in the morning, it's bad. So I do think that this has got to be approached with an extreme measure of consideration for the neighborhood. I think, as John does, that the developers have made every effort to come forward with reasonable plans and tried to work with the Neighborhood Association and myself, John. I think, and I'm not certain about the neighborhood's, the board's decision, but I think it would probably at some level mirror mine, which is I don't think this establishment is the right place for live entertainment. Having said that, with the correct and serious approach to enforcement, I think people can live together. One of the things that came out, and I haven't heard yet as far as a condition, was that during the sound test, there was a measurement of approximately 72 decibels outside of my front door. I think it was basically used as the marker. And that that was deemed to be not terrible. It was not terribly disturbing. And I would like to see that written into the conditional use. I would like to see, as John said, three strikes and you're out in terms of how you judge those. I would say a citation, no more than one per evening. If you've got three in one night, I don't think that really is the point. The point is that continued abuse of our neighborhood is what we're concerned about, along with all of the remediation efforts that I'd like to see those put into writing. They have put forth the window remediation, curtains, the soundstage being aimed away from South Upper Street, the doors not being propped open. I think it was pointed out that maybe there would be emergency doors so that that wouldn't be a place where the band stepped outside to have a smoke and the band was playing on. because all of those are the issues that generally affect the neighborhood and quite a few neighbors that aren't here. I guess to sum up, the things that I would like, the most important things are a quantifiable measure of what is not acceptable. I think it's been agreed that 72 decibels at that point was the agreed-upon point. And then the second thing is, what does enforcement mean? What is too much? Again, I actually believe in the good faith of the gentleman here, but this goes beyond them. Towns Entertainment, LLC, gets sold to somebody else because it's very successful, and I can name a few people that I can imagine being buyers, and we wouldn't have the same group in front of us, and we'd have a lot of problems. Thank you very much. I'm Lee Thomas. I'm the president of the Historic South Hill Neighborhood Association, and I guess I'm representing the Neighborhood Association as such. And we went through a lot of discussion over the concept going into the building. Obviously, the neighbors and the association would prefer a non-music venue to use this space, but we're dealing with Towns Entertainment application, so that's where we'll stay. The board voted, finally finished voting this morning on whether to approve or support or oppose Towns Entertainment. And the reason it took so long is because the sound test was an important portion of our decision making. The board voted 7 to 1 with one absentee for approval of towns, but there were some conditions. What we voted on was that the restaurant with music is acceptable with the following conditions. No music, speakers, or entertainment on the patio. The music would remain inside the building. The stage and speakers must face away from Upper Street. the doors behind the bandstand facing the patio would be emergency exit only. Not something where it's just a general agreed that it would be an emergency exit, but it would actually have barriers on it where alarms would go off and be an emergency exit. If you didn't do that, then anybody walking out those doors during the band's playing would spill sound immediately into the neighborhood. So just saying these will only be used. Mr. Thomas? Yes, sir. Is the patio not to be used as additional seating for the restaurant? Would they lose that seating then? After, what, 10 o'clock, the serving, Towns will explain this to you, but as we understand it, the serving meals out on the patio will terminate at 10 o'clock. and there will be so that's where that ends. The music will start do you mind if we open discussion a little bit here and ask? The music will start and it probably should be specific after the patio closes. The idea is after dinner service then the live entertainment will start. Sometimes we would add Sir, we will allow you to come up here right after he gets through, please. Okay. So it's important to have the doors to the patio specifically designated as emergency only. The acoustical modifications include sound dampening, plexiglass to the windows along south upper and the rear parking. It must be installed to bring any outdoor decibel level to 72 decibels. and you've heard the reason why. It was jointly agreed upon by towns and the neighbors who were present at this decibel check that 72 was tolerable. It is a measurable level, threshold, of which our noise ordinance does not have. I don't want to be facetious, but let's say a hard-of-hearing police officer was called in at a specific time and the noise was not a nuisance to him, but if a decibel meter says, hey, it's 92 decibels, it is measurable. I've been informed that the city and the planning commission does not have a decibel meter. I think we could probably take up a contribution and buy you one. That can be solved. The reason why the Neighborhood Association feels these specific thresholds should be in the variance, if you grant it, it's now something that we all can agree to. Let me go back to the other points of what we voted for. If more than three neighborhood complaints are turned into the police or the planning department, A BOA hearing will be scheduled for Towns to explain their efforts to eliminate the problems, and it could be someone after Towns working under the same name. All the above conditions will be attached to the conditional use request by Towns Entertainment, LLC. I want to move over to the staff's number one condition. The addition of live entertainment and dancing shall be undertaken in accordance with submitted application and site plan. Does the application include dancing? The reason why I ask is at 10 o'clock, can the applicant, in theory, take the tables and chairs and move them out, increasing the occupancy, where you now have, I think, the square footage. It was estimated at one of our meetings that over 300 people could be packed into that space. That changes the dynamics of the entire space. That's why I bring that up when it comes to parking, when it comes to noise, when it comes to a lot of things. That's why I ask about the dancing and the removal of dining tables and seats. the only other two things I wanted to address the building shall be sound proof to the maximum extent feasible with the noise or other emissions not creating a nuisance we've already touched on this 72 decibels is not subjective it is something we can hang our hat on The staff suggests that outdoor speakers are acceptable. And it says outdoor speakers designed and used to allow ambient music on the patio area would be acceptable, just as it would be for any restaurant use without live entertainment or dancing. Again, a specific sound level needs to be established. to allow it to be subjective puts the neighborhood at risk. Do we know about dancing? Dancing. We'll have what? To answer the question about the dancing, we'll have to ask the applicants. The word dancing is not specifically mentioned in their application. However, we've always looked at live entertainment and or dancing, But the word dancing is not specifically mentioned in their application. Does occupancy, I guess I'll throw this question out there again. What's the occupancy set at now? As far as the number of people that can be? They have the available parking for about 150 seats. 150 seats. depending on how the parking calculations for the number of seats varied depending on whether it's an indoor seating, outdoor seating, and also whether it's during the times that they have the live entertainment or if it's part of their building that is just devoted to the restaurant use. So it does get a little bit complicated to figure out, but we would have to do all of those complicated parking calculations prior to the issuance of any zoning compliance report. And that's why I bring up if seating can be removed, if the tables and chairs, which would free up space for standing room, that's another issue that needs to be considered. The importance to the neighborhood association, and I think to the neighbors, is specifics need to be written into this. When it's too general, then it's hard to control. and I know it sounds like certain things I'm saying are opposing towns but in effect we voted for approval of towns with these caveats so that's pretty much what I have to say. Thank you. Thank you, Mr. Thomas. And we will hear from the applicants. Well, I'm Josh Brown. I'm Doug Welch. How are you two doing today? Doing good. Doing all right. How are you? Good. I don't know if I'd be doing all right or not. But go ahead. Well, first off, we want to address the concerns dealing with the place. And I think looking over some of these things that we have and talking about the sound test that we did do, that some of these things will come into light, that there should be no worries and concerns, that we will address them and take care of any problems. If we want to start off with parking, that will kind of show, I think what was given to all of you all is a site plan. This includes part of that site plan and a parking lot. Okay. And I'll show you a breakdown, too, here in a minute that shows from the timeline of being open from lunch to the time of live music, how the parking fluctuates. But we have, with Kauffman, 14 spots allocated to us, and that's in that parking lot. with street parking to include it or not included in that number um at five o'clock we get an additional 12 spaces here bringing that up to uh 26 um at uh 10 o'clock on weekdays when joe balonis closes and 11 o'clock that whole parking lot becomes ours so uh there's concerns about uh the occupancy at 11 o'clock, the parking lot becomes three times as large as the parking that we have. Other things that, as far as parking goes, we have a lot of pedestrian traffic. We want to really push bicyclists, putting in a bike rack, a colt trolley stops right there. We want to do a discount program with them, doing like 10% off lunch and dinner. If you use show verification that you rode that taxi cab service. Hopefully that would kind of alleviate. I mean, we're only given a certain amount of space for parking in that area, working the best that we can with that space. But let's see. This is also a breakdown of time. And this shows the number of parking spaces here and the time from lunch to 2 o'clock at night here. And this is without dealing with street parking whatsoever. That's the space that's given to us in the timeline of how they increase as the number of people coming to the restaurant increases. Just a small lunch crowd, a lot of business people coming from downtown walking up to the spot. Then dinner time, extra space there, still a pedestrian crowd. And then that whole parking lot of ours at 10 o'clock. Let's see. What else? You want to talk about the sound test? Yeah. Yeah. On Tuesday, Doug and I did conduct a sound test, and I believe John was there, and you might have been the only one there. You were there for a short period of time, right? Yeah. We played some really terrible music. I think we can all agree on that. It was really loud. The bass level was ridiculous to the point where it was shaking the tiles inside. Just to see a worst-case scenario. even for us. The idea behind it is I don't want to have his wife coming across the street angry at me every night. I don't want to deal with that. And if we're to establish regular walk-up clientele, it is important for us to establish a relationship with the Neighborhood Association, hence the reason we've met with them four times and really tried to get on the same page with them. As far as the 72 decibel levels that was agreed on with no street noise, and it was 72 decibel levels in front of his house, not inside. I think it's important to define that. We're basically, we don't want to break any noise ordinance laws. We just want to operate a business. The concept behind it is similar to a restaurant that you would find in Austin, Texas, or in Nashville, Tennessee. We're not trying to put in a dance club. We have a background. We've both been managing restaurants for a number of years now. In restaurants is what we're good at. We're operations. This is a first for us to kind of go through these steps. we're passionate about music though we really love going to see live entertainment we don't think what we're asking is that crazy for the neighborhood when you have a block away another place that has live music like literally right across the street so what we're asking for isn't outside the realm of of what already exists in that neighborhood It is a university area, but you do have these really neat homeowners that live over there, too. And as far as the conditions set in here for live music, I think that they're all reasonable. And I think that if we do the maximum amount of soundproofing, I don't see us having an issue. We talked to Philip Osborne at DW Sound. He was the guy that came in on Tuesday. and he was pleasantly surprised with the tests, thinking that at first it was going to be a problem, but at the end of the evening he was extremely surprised. He said the work that we will put in by double-painting the windows, the heavy curtain, dampening the ceiling, there's a spray that you can put up there that dampens sound, putting the speakers on ground level, and they were up above during the test. He said that would work too. He said about 85% of the sound at that point would be omitted. And this test was done, 72 decibel levels. We are fine with that. I think as far as purchasing a reader, we'll do that ourselves, and we'll give it to the homeowners association. we don't mind being cited if we go over 72 I see it not being a problem at all I think we're going to get in there and have these people as our customers Let me ask you a question when were you thinking about opening this place? Well, the reason for us going ahead with this conditional use was in order to get the financing for it. The people on board with financing want to make sure that the concept can be achieved at this location. So if we get it passed, we sit down and talk to them and get the financing in order and go forward there. But hopefully sometime by next year, this time. I'm right here. Does your business model require the live music to be successful? and you know that if you agree to what these homeowners are suggesting, the three strikes and you're out, this conditional use could be jerked, and then would that leave you with this big investment and no way to succeed? As much as they want some hard definitions, I think that I would like a little bit more clarification on the three strikes you're out. Is it three strikes the entirety of the business, three strikes in a year? I think we're talking about the conditional use for the live music. So I don't believe they have a problem with you being in a restaurant. They'd like to have you there. Yeah, I understand that the music is the issue. We could probably make a restaurant successful without live music, but that's not what we want to do. Like, this is our concept. Like, this is what we want to invest our money in and what we're passionate about. As far as the three strikes, I'm not opposed to being cited after three strikes, but I would just want all that defined. Is it three strikes in a night, three strikes in a week, three strikes in a year, three strikes in the length of the business? Well, do you think that you and the neighborhood need to sit down and talk about what you both agree on? Because it doesn't sound like you're agreeing with what they want. And then it starts over. Would you agree? Yeah, a calendar year, and then it revolves over. Would you agree with that? I think that's fair. Let me say a couple of things to you, and I'm sure some of our other board members will want to express their opinions. First of all, I want to applaud both of you for both groups. Because it seems to me like you attempted to work together in trying to find a solution for your situation and a livable solution for theirs. Absolutely. And we want to compliment you for that. We've seen worse. but by the same token I think before you want to step into this with verbal do this and do that I'm going to make a suggestion to you I'm going to suggest and the board can make their comments it's my suggestion to you that you continue this for another meeting until you all have had the opportunity to sit down and put things in writing relative to what the conditions they want that you will agree to and conditions that you don't mind but you want to lengthen or that you want some parameters involved in that. I just think it's best for you rather than trying to sit here and to have us to add conditions to conditions to conditions, and then you not get your problem solved. I have no problem with what you want to do, and I don't know if any of the board members do or not. A couple of them I know don't, but I think you would be better served, since you are waiting a year out anyway, to continue this for another hearing before us, and then hopefully you seem to have a congenial faction between both groups, I would say I think you need to sit down at the table again and you all work out these conditions relative to what you want and what they would like to see you have. And that's my suggestion to you. You don't have to take that. You can ask us to move on today. And my suggestion would be to you for you to continue this case. Can we continue it until next month? You can continue it next month or the month after. You've got time here. I think you do because you're talking 12 months out here. Yeah. And I don't think anybody wants to see you not have your business. Yeah. I just think they want to see you have your business without so many restrictions that you cannot operate. Yeah, that was our concern. So I think that's what you, common sense, that's what I would suggest you do. Okay. Mr. Chairman, any other comments here? Thank you. I have a question, either of staff or of legal. What is our authority? I'm looking at condition number five, for example, looks like review and report to the board six months and one year from approval of the application. What is our authority if, for example, there are found to be violations of the conditions, for example, or something like that? Are we limited to violations of the conditions, or what is our authority? I think the purpose of that recommendation is just to allow the Board to review whether or not the conditions have been adhered to, and if not, the extent of any that may not have been met. Certainly, if there are conditions that have not been met, the board could then schedule a revocation hearing, in my opinion. In light of the fact that they don't plan to open a business for a year, should we change that to a certificate of occupancy? That would certainly make sense. any other questions or concerns we will it's in your hands if you want to sit down and think about it you can't can i ask these guys would you guys like to sit down and talk on it or would you prefer to to move on it today from my perspective i think i would take the advice that we would be better I'm sure we want to talk premises and set down and see if we can negotiate this and not take up everybody's time. Agreed. Mr. Chairman, I have a question first. Yes, sir. Mr. Thomas? I agree with everything that's being said. I'd like to know if we can get clarification on occupancy, if this or a future business who takes over the LLC can remove chairs and increase their occupancy. If the, what is it, 4,000 square feet, how large is this? I think that's something you would have to check with the staff when you all are working with this. We'd certainly be glad to help. I think from the staff perspective, the conditional use would be tied to the live entertainment portion. I think if they wanted to increase seats in the restaurant, that's a permitted use. It would just be a matter of demonstrating parking compliance. But decreasing the seats for live entertainment would change the occupancy? He's asking about the occupant load. Oh, the fire. The fire marshal. Every 15 square foot is the fire. I have to admit, I don't know that we've heard from the fire marshal about their occupancy load. We were thinking of it more in terms of the conditional use permit and the zoning component. The restaurant level, and all that's fine, but just if they chose to diminish the size of the restaurant, increase the size of the dance floor or that type, that changes the occupancy. Yes, I think that type of change is one that would require a review by the board to go in the opposite direction, to decrease. Can you help us with that? I think so. Okay. And just are there two other things you might want to think about when you're talking? If you're really concerned about limiting it to town's entertainment and they're willing to limit it, sometimes we have conditional use applications that are limited. Can we do that for conditional use? You can. We discussed this at some length, and our primary concern was if something happens and the LLC reorganizes, at what point is it really a different owner or if someone buys the LLC and it's actually being managed by someone else? We had some problems in terms of when we're going to know that it's really different and becomes null and void. And I think really a lot of times there are some legal issues on that null and void without a hearing, too. We kind of felt like the best thing would be what the neighbors have been talking about is trying to make the conditions clear enough that they would make sure that anyone who comes in and is managing this business in the future would still manage it in a way that would not be disruptive to the neighborhood. I think that's easier than trying to look at the legal makeup of whatever entity is running it. Mr. Chair, I'd like to ask the applicants if a continuance of 30 days, and the opposition as well, if a continuance of 30 days is enough time. Because I want to say something here regarding Mr. Long and Mr. Thomas, Mr. Cawthon's comments, as well as the applicants, and Mr. Stout alluded to it. Very rarely do we have an applicant come before this board that works as well with the opposition and vice versa. And, I mean, it sounds like you're very, very close, and I think everyone on this panel would probably agree to a continuance, as I would advise you to do as well. And I would suggest that 30 days may not be enough. I think that there are now other issues, Mr. Selle, regarding occupancy, but certainly the issues regarding additional solutions, abating noise, the sound levels, and so forth, and bring back to this board some final recommendations after the two of your groups have had an opportunity to sit down at the table once again. Mr. Stumbo, to your point, the board's next meeting is only three weeks from today due to the holiday. Well, that won't be enough. I don't think that would be enough because we meet May the 18th, and that's not 30 days. So you probably want to come back at the June meeting. And if you have a problem with that, you can notify the board. And whenever you feel like you're ready to come back, the meeting will be continued. I think you are, from what we've said, I think it's to your advantage that you all continue to work with the people over there. They've shown they're not trying to blackball you. All they're trying to do is make it comfortable for them and comfortable for you. So you want to suggest that we continue this? Yeah, perfect. Ask for continuance? Yes, sir. So do I have a second? Second. All in favor signify by saying aye. Aye. Thank you. Thank you. Thank you. I think that's all of this. Staff, do you have anything else for us? Yes, sir. There are two staff items. The first staff item is that the staff would like to point out that Rochelle Boland has been the attorney for the Board of Adjustment for 16 years, which is quite impressive considering that today is her 25th birthday. But in all seriousness, the staff would like to wish happy birthday to Ms. Rochelle Boland. Ms. Rochelle, if I wasn't always about to say happy birthday to you, but happy birthday. There is a second staff item that I would like to turn over to Mr. Marks to present to the board today. Good afternoon, Mr. Chairman and other board members. It's my role at the end of your hearing today to bring to your attention some activities that have been taking place at 824 Winchester Road. It's a property right at the corner of Dayton Avenue. Some of you might know it as the old location for the What's a Futon store. Some of you might recall that about two years ago the board granted a conditional use for a small church facility at that location. That was approved March 26, 2010. The applicant at that time was Inner City Breakthrough Ministries, so the conditional use was granted to them in that name. Less than a year after that approval, that particular church abandoned the property, and we have a letter in the file indicating that at that time they were disassociating themselves with all activities taking place at 824 Winchester Road. Very shortly after that, the Emanuel Apostolic Church, in partnership with the Catholic Action Center, took over operation of the facility and at that time began, under the name of the Community Inn, to provide overnight accommodations for persons in need. The Board's original approval did not have a null and void condition, so it was perfectly acceptable for another entity to come in and take over the conditional use, provided they complied with all of the conditions that the Board originally imposed. Hopefully you've all had a chance to look at the report that we submitted to you with your regular packet. Those conditions have been laid out word for word in your report. Condition number one required that they conduct activities as represented in the application. I'd like to read that part to you just for emphasis. That the activities would be Sunday morning services at 8 a.m. and 11.30 a.m., Thursday morning transforming the mind classes at 9.30 a.m. and 11.30 a.m., Thursday evening Bible study at 6 p.m., and bus service for 75% of members. So there was no indication at all in any way, shape, or form that the facility was intended to be used to provide overnight accommodations for persons in need. There is really no dispute about what's been taking place there. The Catholic Action Center, along with the Emanuel Apostolic Church, has been very open about their intentions to continue operation of a homeless shelter at that location. This has been confirmed by numerous staff observations. It's also been confirmed by activities involving the Department of Fire and Emergency Services, Division of Police. There have been meetings with building inspection in an effort to try to work out ways where they can actually expand the overnight accommodations from the first floor of the building to the second floor of the building. So all of that has been taking place. So there's really no dispute about what's going on at the subject property. You might note that conditions number one and number five in your packet, number one, relates to the activities that were authorized. Condition number five relates to the requirement that they maintain a parking agreement for at least four spaces on the adjoining lot at 9-11 Dayton Avenue. The parking issue was important for a small church because this is a very small property. It was approved for only 30 sanctuary seats in the small building. The minimum number of required parking spaces was six. We worked very hard with them to try to get to that six. They have two on site and the four at the next-door property where they had an agreement. That agreement was discontinued when the city breakthrough ministries abandoned the property. The property owners decided not to renew that agreement with the subsequent occupants. It's clear to staff at this point that this facility is not operating in compliance with, in particular, those two conditions, conditions number one and number five. It's our recommendation that the Board proceed with scheduling a revocation hearing. We don't make that recommendation lightly. We've spent a lot of time trying to figure out if there was other options that could be pursued. Unfortunately, in this particular case, the nature of the change in use is so substantial that we didn't figure there was even a remote possibility that they could amend their conditional use to comply or that we could work with them simply to come into compliance, which we do typically with other facilities when they're determined to be out of compliance. To kind of put this in perspective a little bit, because I know you're going to be struggling with issue, is this significant or not significant or what should we do? To give all that some perspective, it's really important to understand that providing this type of ministry can be done in this community. There are zones that allow overnight accommodations to be provided in certain zones, either as a principal permitted use or as a conditional use. So that opportunity is available for those types of ministries at other locations. This particular property is a B4 zone, which, unfortunately, from their perspective, does not allow overnight accommodations because they're typically considered as part of a community center. One example of a recent case was from 2009 on Loudon Avenue, where the board approved homeless accommodations for men in an I1 zone that was a conditional use. the other part of this that led us to the conclusion that we really have no option but other than to recommend to you that you do the revocation hearing is that this has really widespread implications for how churches are regulated throughout the county and also has implications for how you all use the process of notifying surrounding property owners for this particular application when inner city breakthrough ministry was the applicant. When the notice went out, the neighborhood had concerns about what it was going to be used for, and they specifically had heard that it might be used as a homeless shelter of some sort. We had conversations with the pastor of Inner City Breakthrough Ministries at that time. On at least two occasions, he assured the staff that they had no plans to establish any type of a facility to accommodate homeless persons on an overnight basis. we passed that assurance along to the neighborhood. And that's all changed now. So there's a big issue here with the integrity of the public notification process, giving neighborhoods their fair shake to comment on these things. So it's another big issue that I just wanted to put on the plate for you. There's a lot of other details in the report that we submitted to you, but I think at this time I'd like to answer any questions that you might have. Have they been cited? No, they have not. Typically with an issue involving a conditional use, this is the approach that you take, is to go through that process. Does the Board have to take action before they're cited if they're in violation? Generally, there is not a citation process for violation of a condition placed on a conditional use permit. The initial step under the zoning ordinance is to come back to this body and report what the enforcement officer has found upon his inspection and then to request this body to agree to schedule a revocation hearing. That is the enforcement process for a violation of a condition in a conditional use permit. So notification notices have to go out before this? Technically, the only people that have to be notified is the person that has the conditional use and any other directly affected parties, but I think since this has been a neighborhood issue that we would take the step of notifying all the properties within 400 feet. Is this an extension of the Hope Center or what? It is a freestanding entity operating under the conditional use permit that was granted to inner-city Breakthrough Ministries, as far as I'm aware. It is not connected to the Hope Center. So do you need a motion by this board for the revocation hearing, or what do you need? If this board agrees that there has been sufficient information presented by the enforcement officer that would support a revocation hearing, which means an opportunity to hear both sides of the issue at that point to determine whether, in fact, revocation is justified, then the board would make a motion to that effect. This motion would not be to determine whether they're in violation, but in fact to determine whether there is enough concern there to hold a hearing and look at the facts of the situation. I know you didn't walk up front here just to see us. No, I'm James McDonald, pastor of Emanuel Apostolic Church, as I am. The Emanuel Apostolic Church in which you issued the permit to. and I was unaware that we were to operate under the conditions under this other entity. As far as we have services at that location, but not during these times, because it wouldn't be relevant for us to have services there, because our entire purpose is to reach the homeless people. And they're not available. We're not even open during these times. And what we do, we take the gospel to them as opposed to having a church and they coming to us. I have a church at 1422 North Forbes Road. I also have ministries in Garrett County, Boyle County. We stretch out. We go out to the people as it's site. Rev, I do understand what you're trying to tell us, but the issue here right now is whether or not this board should hear this case. And I don't want you to give us the case right now, and we haven't voted to hear it or not to hear it. So I would suggest that you withhold your and hold on to your comments until we decide what we're going to do. If we are going to hear this case in May, then you'll have to come back and present your case. So don't present it today. Okay. Okay? All right. Mr. Chen, I would like to point out for the record that when the transfer was made, there was a certificate of occupancy issued to Emanuel Aposelic Church for, quote, church remodeling, but it was specifically conditioned on compliance with the original conditions that you all, the case number was referenced, so it was there. And I would ask the recommendation of this board as in a motion if we should hear this case. We have a motion. Do I have a second? Second. All in favor signify by saying aye. Aye. And we will hear this case May 18th. Thank you. I would ask the board to make sure that we get all the information we need to have regarding this particular case so that we don't come in here stumbling around as to what's going on, and particularly me. If you don't mind, sir. And, Rev, you will get a notice. Thank you for coming. Yes, sir. Staff, anything else we got on the agenda today? No, sir. That concludes all the staff items. Do I have a motion to adjourn? So moved. All in favor? Thank you. Thank you, staff. Thank you. Thank you.