# Board of Adjustment Meeting - June 28, 2013 > Auto-transcribed civic record · June 28, 2013 - **Permalink**: https://meetings.lexingtonky.news/meeting/3065 - **Source video**: https://lfucg.granicus.com/player/clip/3065?view_id=14&redirect=true - **Date**: 2013-06-28 - **Last revised**: July 15, 2026 - **Length**: 9,543 words > ⚠️ **Auto-generated content.** Audio from the official Granicus video was auto-transcribed with OpenAI's open-source Whisper large-v3-turbo model, run locally by The Lexington Times. Structured facts were extracted with GPT-4o; the narrative summary was written by Anthropic Claude. Verbatim wording may contain errors. See [methodology](https://meetings.lexingtonky.news/about/methodology) or [report a correction](mailto:editor@lexingtonky.news). --- ## Meeting Overview The Board of Adjustment met on June 28, 2013, at 1:30 p.m. in the Council Chambers at 200 East Main Street, Lexington, Kentucky, with Barry Stumbo presiding. The board considered seven agenda items and took eight votes during the meeting. The board heard four public comments and approved all seven matters brought before it. The approved items included five variance requests: Michael D. Childers' request to reduce a side yard from 8 feet to 2.1 feet; Anna Deer Thakur's variances to reduce front and side yards for a replacement residence; Lexington Habitat for Humanity's variance to allow front yard parking; Churchill McGee's variance to reduce front yard for two buildings; and Anderson Communities' variance to lower wall sign height. The board also approved a conditional use permit for Baker Iron and Metal to operate an automobile wrecking facility and approved enforcement of a Notice of Violation at 8291 Old Richmond Road. ## Attendance **Present:** Barry Stumbo, Noel White, Kathryn Moore, Joseph Smith, James Griggs, Thomas Glover, Chuck Saylor, Jeff Neal, Jim Marx, Tracy Jones, Mike Sanner, Jimmy Emmons, Bill Sallee, Denice Bullock, Michael D. Childers, Anna Deer Thakur, Rachael Smith Childress, John McClelland, Sharon Woorum, Andrew Moore, and John Walters. **Absent:** Janice Meyer. **Late:** None. ## Votes and Decisions The Board of Adjustment held eight votes during this meeting, all of which passed unanimously with no opposing votes or abstentions. **Variance Approvals** V-2013-31: Approval of a variance to reduce the required side yard from 8 feet to 2.1 feet for a detached garage at 435 Henry Clay Boulevard. Motion by Kathryn Moore, seconded by Thomas Glover. All six board members voted in favor: Barry Stumbo, Noel White, Kathryn Moore, Joseph Smith, James Griggs, and Thomas Glover. A building permit from the Division of Building Inspection must be obtained prior to construction. [timestamp: 00:07:54] V-2013-37: Approval of variances to reduce the front yard from 20 feet to 8.4 feet and side yards from 4.1 feet to 3 feet for a replacement residence at 146 Colfax Street. Motion by James Griggs, seconded by Thomas Glover. All six members voted in favor. The dwelling must be constructed according to the submitted application and site plan, with demolition and building permits obtained prior to construction. [timestamp: 00:09:00] V-2013-38: Approval of a variance to reduce the required front yard from 20 feet to 0 feet to allow front yard parking at 631 Breckenridge Street. Motion by Noel White, seconded by Thomas Glover. All six members voted in favor. Conditions include obtaining applicable permits, constructing the driveway from durable and dustless material, ensuring vehicles do not obstruct the public sidewalk, and obtaining approval of an administrative action minor subdivision plat from the Division of Planning. [timestamp: 00:14:04] V-2013-39: Approval of a variance to reduce the required front yard from 20 feet to 10 feet for two buildings at 1317 & 1325 West Main Street. Motion by Noel White, seconded by James Griggs. All six members voted in favor. Development must comply with the submitted site plan and application, with zoning compliance and building permits obtained prior to construction. [timestamp: 00:15:42] V-2013-40: Approval of a variance to allow a wall sign at 18 feet instead of the required 50 feet at 120 East Main Street. Motion by Kathryn Moore, seconded by Thomas Glover. All six members voted in favor. The sign must be installed per the submitted application and building elevation, with a sign permit obtained prior to installation. Further structural changes require approval from the Courthouse Area Design Review Board. [timestamp: 00:18:57] **Conditional Use Permit** C-2013-36: Approval of a conditional use permit for an automobile wrecking facility at 1550–1558 Old Frankfort Pike. Motion by Thomas Glover, seconded by Noel White. All six members voted in favor. The facility may dismantle and crush cars but cannot include a car shredder without an amended application approval. [timestamp: 00:22:11] **Administrative Actions** A motion to direct the Division of Planning not to accept a conditional use application for property at 8291 Old Richmond Road and to direct the Department of Law not to agree to an advance of a 2012 Board of Adjustment decision appeal passed unanimously. Motion by Thomas Glover, seconded by James Griggs. [timestamp: 01:16:49] A motion to authorize legal counsel to pursue an injunction against Boone Creek Properties, LLC, to enforce a notice of violation passed unanimously. Motion by James Griggs, seconded by Noel White. [timestamp: 01:56:03] ## Public Comment Four speakers provided comments during the meeting: **Mr. Hamilton** [timestamp: 00:10:11] submitted a letter opposing a variance for Lexington Habitat for Humanity. He initially referenced 631 Jackson Street but clarified his concern was actually regarding 631 Breckenridge Street. Staff confirmed the correct address and noted that the concern was resolved. **Mr. Griggs** [timestamp: 00:11:50] raised questions about the driveway requirements for the Lexington Habitat for Humanity project. He asked whether the driveway could be non-permanent or constructed using stone pavers. Staff clarified that the apron must be permanent and concrete, though the surface could be pavers if approved. **Andrew Moore** [timestamp: 00:16:45] sought clarification regarding signage for Anderson Communities. He requested confirmation that the sign's wording could be changed as long as the lettering size remained within ordinance limits. Staff confirmed there was no restriction on the sign's verbiage. **Mr. Griggs** [timestamp: 01:42:06] also addressed concerns about enforcement of a violation at 8291 Old Richmond Road. He asked whether a revocation hearing should be considered given the long history of violations at the property. Staff noted a lack of documented adverse impacts compared to past cases. ## Contested Items **Enforcement of Violation at 8291 Old Richmond Road** The Board engaged in heated discussion regarding enforcement action at 8291 Old Richmond Road. The central disagreement concerned which enforcement approach to pursue: an injunction, revocation, or holding the matter in abeyance. Board members debated whether documented adverse impacts at the property were sufficient to justify revocation. Staff noted that the available evidence was lacking compared to similar cases handled in the past, which complicated the Board's decision-making process regarding the appropriate level of enforcement action. **Driveway Permanence and Surface for Lexington Habitat for Humanity** A split vote occurred over driveway specifications for a Lexington Habitat for Humanity project. A Board member questioned whether the driveway could be constructed as non-permanent or utilize stone pavers as the surface material. Staff clarified the requirements, explaining that while the apron must be permanent and concrete, the surface itself could be constructed with pavers if approved by the Board. This distinction between the structural base and surface material was central to resolving the disagreement. ## Michael D. Childers - Variance to reduce side yard from 8 feet to 2.1 feet **Case Number:** V-2013-31 **Request:** Michael D. Childers sought a variance to reduce the required side yard setback from 8 feet to 2.1 feet in order to construct a detached garage on a single-family residential property. [timestamp: 00:07:22] **Staff Recommendation:** Staff recommended approval of the variance. The recommendation was based on several factors, including the historical development patterns of the area, compatibility with the surrounding neighborhood, and the determination that no willful violation had occurred. **Outcome:** The variance was approved. **Public Opposition:** No opposition was raised during the hearing. ## Anna Deer Thakur - Variances to reduce front and side yards for replacement resi **Case Number:** V-2013-37 **Applicant:** Anna Deer Thakur **Request:** Variances to reduce front and side yard setbacks for a replacement single-family residence on a narrow infill lot. **Discussion:** [timestamp: 00:08:30] Anna Deer Thakur requested approval for variances that would allow reduced setbacks from the standard requirements for front and side yards. The proposal involved replacing an existing single-family residence on a lot characterized as narrow and located within an infill area. Staff analysis supported the variance request based on several factors: - The lot size constraints made strict compliance with standard setback requirements impractical - An existing non-conforming structure was already present on the property - The applicant would not face undue hardship from strict compliance with setback regulations **Outcome:** Approved The variance request was approved, allowing the applicant to proceed with the replacement residence using the reduced setback dimensions. ## Lexington Habitat for Humanity - Variance to allow front yard parking **Identifier:** V-2013-38 Lexington Habitat for Humanity requested a variance to allow front yard parking for a handicapped individual. [timestamp: 00:09:36] **Staff Recommendation and Rationale** Staff recommended approval of the variance based on several factors: the wide right-of-way in the area, safety concerns, and the hardship that would result from removing a temporary driveway currently in use. **Key Discussion Points** The discussion between Rachael Smith Childress and John McClelland included consideration of the driveway material and the permanence of the proposed parking arrangement. These details were examined as part of the variance review process. **Outcome** The variance was approved. ## Churchill McGee - Variance to reduce front yard for two buildings **Case Number:** V-2013-39 **Outcome:** Approved Sharon Woorum presented this variance request, which sought to reduce the front yard setback for two buildings in a strip center to align with adjacent structures [timestamp: 00:15:12]. **Project Details** The applicant requested a variance to reduce front yard requirements for two buildings within a strip center development. The proposal aimed to align the front yards of these buildings with existing adjacent buildings in the center. **Staff Recommendation** Staff recommended approval of the variance based on two key factors: - The unique parking layout of the strip center created a hardship that made strict adherence to standard setback requirements impractical - The reduced setback would create visual and functional consistency with adjacent buildings already established in the center **Approval** The variance was approved as presented. ## Anderson Communities - Variance to lower wall sign height **Identifier:** V-2013-40 **Request:** Anderson Communities requested a variance to lower the wall sign height to improve architectural compatibility with an adjacent building. **Presentation:** Andrew Moore presented this agenda item [timestamp: 00:16:13]. **Staff Recommendation:** Staff recommended approval of the variance. The recommendation was based on two key factors: the unique building design of the project and the potential for light pollution issues that could result from strict compliance with standard sign height requirements. **Outcome:** The variance was approved. ## Baker Iron and Metal - Conditional use permit for automobile wrecking facility **Agenda Item:** C-2013-36 Baker Iron and Metal requested a conditional use permit to operate an automobile wrecking facility in a heavy industrial zone. [timestamp: 00:19:38] **Presentation and Recommendation** John Walters presented the proposal to the board. Staff recommended approval of the conditional use permit based on two primary factors: the proposed facility's distance from residential areas and the availability of public services to support the operation. **Outcome** The conditional use permit was approved. ## Enforcement of Notice of Violation at 8291 Old Richmond Road [timestamp: 01:18:13] The Board discussed enforcement options following its decision to uphold a notice of violation at 8291 Old Richmond Road. The discussion involved Tracy Jones, Jimmy Emmons, Chris King, James Griggs, and Thomas Glover. The Board considered multiple enforcement approaches: * Civil penalties * Referral to the county attorney * Pursuit of an injunction * Revocation of conditional use * Holding the matter in abeyance After deliberating on these options, the Board authorized legal counsel to pursue an injunction as the enforcement mechanism for the violation. The outcome was approved. --- ## Decisions - **V-2013-31** — passed: Approval of variance to reduce required side yard from 8 feet to 2.1 feet for detached garage at 435 Henry Clay Boulevard - **V-2013-37** — passed: Approval of variances to reduce front yard from 20 feet to 8.4 feet and side yards from 4.1 feet to 3 feet for replacement residence at 146 Colfax Street - **V-2013-38** — passed: Approval of variance to reduce required front yard from 20 feet to 0 feet to allow front yard parking at 631 Breckenridge Street - **V-2013-39** — passed: Approval of variance to reduce required front yard from 20 feet to 10 feet for two buildings at 1317 & 1325 West Main Street - **V-2013-40** — passed: Approval of variance to allow wall sign at 18 feet instead of required 50 feet at 120 East Main Street - **C-2013-36** — passed: Approval of conditional use permit for automobile wrecking facility at 1550–1558 Old Frankfort Pike - **Motion** — passed: Direct Division of Planning not to accept conditional use application for property at 8291 Old Richmond Road and direct Department of Law not to agree to advance of 2012 Board of Adjustment decision appeal - **Motion** — passed: Authorize legal counsel to pursue injunction against Boone Creek Properties, LLC, to enforce notice of violation --- ## Full transcript Thank you. If you would, please turn off all cell phones, and if you do need to take a call, please do so outside. Anyone who is going to be speaking today during our agenda, would you please stand and raise your right hand? Do you swear to tell the truth and nothing but the truth? I do. Thank you. Before I read the agenda, Mr. Emmons, are there any withdrawals? The staff has not received any written request for postponement or withdrawal. Very good. Thank you. I'm going to go ahead and read the agenda and ask if the applicant is present. Staff has recommended approval on all six items today, So there doesn't seem to be any opposition because we would normally hear them first and ask those folks to step into the hallway if there is opposition, but that is not going to be the case today. So I'd like to start with item V, 2013-31, Michael Childers. Is the applicant here? Thank you, Mr. Childers. Is there any opposition? Any opposition to Mr. Childers? Okay. The second item is Anna Deer Thacker. Is she here? Very good. Is there any opposition to item V201337? Okay. Item three is Lexington Habitat for Humanity. Is the applicant here? Is there any opposition to item 201338? Okay. uh church hill mcgee item 2013-39 is the applicant here is there any opposition anderson communities item v2440 is the applicant here very good is there any opposition to anderson communities okay Baker Iron and Metal, are they present today? Very good. Is there any opposition to Baker Iron and Metal? Very good. Well, we will go ahead and read the first case and ask the applicant to step forward, Michael Childers. Mr. Childers, you have an appeal for a variance to reduce the required side yard from 8 feet to 2.1 feet in order to construct a detached garage and single-family residential at 435 Henry Clay Boulevard. Staff has recommended approval subject to the one condition. Do you agree to abide by that condition? Yes, I do. does the Board of Adjustment have any questions for Mr. Childers? If not, we'll entertain a motion. Mr. Chair, I move that V. 2013-31 Michael D. Childers appeal for a variance to reduce the required side yard from 8 feet to 2.1 feet in order to construct a detached garage in a single-family residential zone at 435 Henry Clay Boulevard be approved for the reasons recommended by the staff and subject to the one condition recommended by the staff. Thank you, Ms. Moore. Do I hear a second? Second. Second. All in favor, say aye. Aye. Any opposed? Thank you. Good luck. Thank you very much. Item number two is Anna Deer Thakur. If you would come forward, and I've probably not done a very good name. Very good job in enunciating your last name. Would you state your name for the record? Anna Deer Thakur. Thank you very much. You've got appeals for the variance to reduce the required front yard from 20 feet to 8.4 feet, reduce the required side yard from each side of the property from 4.1 feet to 3 feet in order to replace a single-family residence with a larger residence in a single-family residential zone within the defined infill and redevelopment area at 146 Colfax Street. The staff has recommended approval subject to two conditions. Do you agree to abide by those conditions? Yes. Does the staff have any questions? If not, the Chair will entertain a motion. Mr. Chair, I recommend we approve V2013-37's appeal for the variances based on the staff's recommendation of approval and subject to the two conditions. Thank you, Mr. Griggs. Second? I'll second. Thank you, Mr. Glover. All in favor signify by saying aye. Aye. Any opposed? Thank you very much. It's been approved. Good luck. Lexington Habitat for Humanity. Mr. Chairman? Yes. As the applicants are coming to the microphone, the staff has received two letters on this, one in opposition and one in support. I've run enough copies for each member. I'll pass those out to the board now. Okay. Thank you, sir. You have an appeals for variance to reduce the required front yard from 20 to 0 feet in order to allow parking in the front yard of a planned neighborhood at 631 Breckenridge Street. Would you state your name for the record? Rachel Smith Childress. Ms. Childress. Don McClelland. Mr. McClelland. Give us just a second to take a look at these, if you would, please. for the record the letter from mr. Hamilton references 631 Jackson Street I do believe that he meant the subject property 631 Breckenridge Street I talked with him on the phone at length before he sent in that letter Steph just wanted to get that so this should should read Breckenridge instead of the subject property address is 631 Breckenridge Street and after talking with him in at length. I'm positive this is the property he sent the letter in on. Okay. Thank you. staff has recommended approval must children subject to subject to five conditions do you agree to abide by those five conditions yes we do i'd like to ask the board if they've got any questions for the applicant i was wondering sorry it's been a while since i read this staff report but But the person that's confined to a wheelchair, I can't recall the particulars. Is this an elderly person or a child? She has cerebral palsy. I mean, she's a 30, 40-year-old woman. What I'm wondering about is whether this driveway could be constructed in a way that it might not be permanent, but be allowed during the time that this family lives there. I'll let you address that. I think the requirements require that it be a surface that is non-dust type surface, which would generally be concrete. It could be removed at a later time if it had to be, but we sell the house to the family so it becomes their house. Right. This variance goes with the property forever. The terms of our mortgage go up to 40 years, and it's very rare that families vacate earlier than that. Is it required to be a concrete driveway? Gravel driveways are illegal now in town? That's correct. only in historic districts or gravel parking areas even a possibility, and that's with the approval of the Board of Architects for Review. The board could consider something like a stone paver driveway. The only problem with that would be an apron that would meet city specs, would have to be a permanent apron. I'm just exploring if we have any options. I'm not opposed to this to a great degree. Our goal is ease of use of the wheelchair, and anything other than a relatively smooth, even surface is going to make that difficult, given the other people in the family. I think that's logical as well. You're right. That's all I had, Chair. Thank you, Mr. Griggs. Does anybody have any other questions? Ms. Childress, Mr. McClellan, welcome back. Thank you, sir. That's all. Thank you, Tommy. on that personal note. Well, if there's no other questions, the Chair will entertain a motion. Mr. Chairman, I move to approve V. 2013-38 Lexington Habitat for Humanities appeal for a variance to reduce the required front yard from 20 feet to 0 feet in order to allow parking in the front yard in a planned neighborhood residential zone at 631 Breckenridge Street as recommended by staff and subject to the conditions as recommended by staff. Thank you, Ms. White. Do we have a second? Second. All in favor, signify by saying aye. Aye. Any opposed? Good luck. Thank you. Thank you very much. Item V-2013-39, Churchill McGee. The applicant is present. Appeals for variance to reduce the required front yard from 20 to 10 feet in order to construct two buildings at 1317 and 1325 West Main Street. Would you state your name for the record? Sharon Woodrum. Ms. Woodrum, staff has actually recommended approval of the request subject to two conditions. Do you agree to abide by those conditions? Yes, I do. Very good. Does anybody on the board have a question? If not, the board will entertain a motion. Mr. Chairman, I move to approve 2013-39 Churchill McGee's appeal for a variance to reduce the required front yard from 20 feet to 10 feet in order to construct two buildings in a neighborhood business zone at 1317 and 1325. West Main Street as recommended by staff and subject to the two conditions as recommended by staff. Thank you, Ms. White. Do we have a second? I'll second. Thank you, Mr. Griggs. All in favor say aye. Aye. Any opposed? Thank you. Thank you. And communities, come forward please. appeals for variance to reduce, to allow a wall sign to be located at 18 feet rather than the required 50 feet on Lexington Center Business Zone at 120 East Main. Would you state your name for the record? Andrew Moore with the EOP Architects. Mr. Moore, staff has recommended approval subject to three conditions. Do you and your client agree to abide by those three conditions? I would just ask for one clarification. When it talks about the actual case review. It says specific words Park Plaza. The actual lettering could potentially change as far as the square footage and mounting heights and all those things. We're agreeable to those, but potentially the actual verbiage could potentially change. The verbiage may change. Mr. Emmons, do you have any comment to that? The ordinance actually has a limit on the size of the lettering, but the staff did not have any intention of saying what those words should be. So if there is a change in words, that's okay, and we can work with the applicant to look at future applications if it's different than what was proposed and evaluate that. As far as the mounting of the sign and the height and all those things were completely agreeable. Just if the owner decided to rename the property or something, and he's still going through all that process. I just wanted to make sure that went a restriction on that. The sign on the application that you have in your packets, the lettering of that sign meets the limitations of the ordinance. We, as staff, saw an earlier version that had part of the sign that did not comply. So our issue is not so much the wording on the sign as the possibility that some of the lettering would exceed the size limit of the ordinance. So that's our only concern in a change in the sign. Mr. Griggs? I wasn't able to tell from the staff report if this sign wraps around the corner, so is it a two-faced sign? It's attached to an architectural element. We're adding some screening to the building on the facade, and it's actually attached to the screen. So the screen itself wraps the building, but the signage itself is only attached on the Main Street elevation. Okay. Thank you. Any other members have any questions for Mr. Moore? If not, we'll entertain a motion. Mr. Chair, I move that B2013-40 Anderson Communities appeal for a variance to allow a wall sign to be located at 18 feet rather than at the required minimum of 50 foot height in a Lexington Center business zone at 120 East Main Street be approved for the reasons recommended by the staff and subject to the three conditions recommended by the staff. Thank you, Ms. Moore. Do we have a second? A second. Mr. Glover got in first there. All in favor say aye. Aye. Any opposed? Motion carries. Thank you, Mr. Moore. Thank you. Baker, Iron, and Metal. Mr. Chairman, as the appellant approaches the podium, the staff would state for the record that we did post the required notice sign on the property advertising your meeting on this conditional use permit two weeks ago today. Thank you. Thank you, Mr. Salee. Would you state your name for the record? Yes. Good afternoon. John Walters here on behalf of Baker Iron and Metal. Thank you, Mr. Walters. Mr. Walters, staff has recommended approval subject to three conditions. Do you agree to abide by those conditions? Yes, we do. Very good. Members of the Board, any questions for Mr. Walters? I have a question related to notice. Did any individual neighbors actually get notice, or is it too far for individual neighbors? The answer to your question is yes, and Mr. Emmons will give you those details. We are putting on the overhead the notice map, and you can see the 500-foot distance did actually extend into the neighborhood that is across the railroad tracks. In addition, I did talk to the neighborhood president of the Cardinal Valley Neighborhood Association on the phone about the subject property. You can see it hits essentially two streets, about three properties deep into the Cardinal Valley neighborhood. Very good. Does anybody else have any questions for Ms. Walts and Ms. Griggs? I was wondering if you'll be selling parts out of this location or the cars come in rolling or drug in and you just scrap them with no parts selling? Correct. There's not going to be any sales. The only thing that will be done is the liquids will be removed from the vehicles, the vehicles will be crushed, and then they'll be picked up to be recycled. So there won't be any sale of parts from our location. Thank you. Anything else for Mr. Walters? Well, the Chair will entertain a motion. Mr. Chairman, I move that we approve the appeal of C. 2013-36 Baker Iron and Metals appeal for a conditional use permit to operate an automobile wrecking facility as part of the existing scrap metal dealership in a heavy industrial zone at 1550 to 1558 Old Frankfurt Pike, as recommended by staff and subject to the three conditions listed. Thank you, Mr. Glover. Is there a second? Second. Ms. White, second. All in favor say aye. Aye. Any opposed? Thank you, Mr. Walters. Thank you. That concludes our agenda. For today, we have had a request from the Department of Law that the Board of Adjustment go into closed session to discuss two matters pending litigation. So with that said, I would like to ask for everybody to step out of the room with the exception of staff. Mr. Chair, we're doing that. Two items, I noticed. Thank you. guitar solo guitar solo I'm sorry. guitar solo guitar solo Thank you. Thank you. Thank you. Thank you. I'm going to go to the next video. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. guitar solo guitar solo I'm going to go to the next video. Thank you. guitar solo Thank you. Thank you. Thank you. Thank you. I'm sorry. Thank you. Thank you. guitar solo guitar solo guitar solo Thank you. do Thank you. Thank you. Thank you. Thank you. Thank you. guitar solo guitar solo Thank you. I'm going to go ahead and put it in the middle of the middle of the middle of the middle. 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Is there a second? I'll second. All in favor, signify by saying aye. Aye. Any opposed? Thank you very much. Thank you, Ms. Moore. Ms. Jones, we want to hear from our Department of Law and Division of Planning. So, let's go. you asked us at your meeting last month in relationship to the property located at 8291 and the notice of violation which jimmy's going to be passing out to come back to you all with some information about potential enforcement actions and what and what would be available. So that's what we're going to do. I'm going to just give you a summary legally of what we've looked at and what we think is available to you. We can try to answer any questions. And we've been meeting both in the Law Department and with the Division of Planning on several occasions to talk about this. So if you have any questions, anyone or all of us might be able to answer, we hope, for you. The notice of violation that you're looking at is the one that was issued by Chris King, who is the director of the Division of Planning and who's in charge of being the enforcement officer for the zoning ordinance. As you know, last month at your meeting, this notice of violation was appealed to you. It was allowed under the Code of Ordinances and the zoning ordinance by the owner of this property that was cited because he felt like that this decision didn't properly interpret the ordinance you all had a full hearing last month you heard both sides at length on that and at the end of that hearing you made a decision to deny that appeal and find that this notice of violation did properly interpret the zoning ordinance and it was properly a notice of violation at that time at the end of that meeting is when you ask us to come back. So I've provided you some sections within our zoning ordinance and also some sections of the Kentucky revised statutes about what enforcement actions are possible. I am also going to not specifically tell you make or tell you what we think you should do but I am going to tell you what we've learned and what's the ups and downs of sides of all of these so that you all can make a decision if you so choose about how you want to go forward or if you do one of the one of the things that and we looked at both we looked at all sides that we thought would be pertinent in regard to this particular situation recognizing that zoning enforcement is sort of a new concept in the Division of Planning and also not new in that zoning ordinances should be followed, but new in that Mr. King has become the enforcement officer and also new in the circumstances of this case is a little unusual and different from things we've faced in the past. So those were part of the things we looked at. The first thing, if you look on the first page, the numbers at the bottom are what I will try to go by, except I will tell you that Kentucky Revised Statutes don't have numbers on them, so when we get to those, I'll identify them appropriately. The section 5.9, you should have a highlighted copy, is civil penalties. Those can be issued by the government, and they can be issued at any time once, you know, the violation has been issued. However, as you can note, it carries on over to the next page. It's really just fines. And they are dependent on how many times you issue the violation as to what the amount is, how much it can go up to within a 12-month period. And I will tell you, I don't think that this section is included in here specifically, but a party who is fined under this section due to a notice of violation that is not remedied can in fact appeal that fine if they don't think it's appropriate to not to this board, not to circuit court, not to the planning commission, but to the infrastructure hearing board. So another board. That's what the ordinance says. So that's where this comes down. So I wanted you to understand that and know what civil penalties in terms of fines were. I think you can probably gather that if your goal is compliance, that may not be the most effective means, but it certainly is a means that's available and could be recommended for the government to use. There was a question at the last hearing raised about abatement. In other words, the government going in and resolving or hiring someone to go in for them and resolve the potential violation. I'm not recommending that. I don't think it's appropriate. And the reason why, if you look on page 5-4, it talks about when there is a reason to believe that a violation poses a serious threat to the public health, safety, or welfare. I don't know that we heard what would be considered valid evidence of something like that. We heard lots of discussion about people's opinions, but that's a pretty high standard. But it is in there, but I don't think that would be the right option here. also and you don't have anything on this in here because it's not within the purview of the urban county government to prosecute on this we don't have prosecutors in our office the urban county government does not employ prosecutors but the county attorney's office does when we have code violations of all different sorts we do have an option available to us to forward on that violation as a complaint to the county attorney's office and ask them to prosecute that as they believe is appropriate under the more than likely not misdemeanor statutes in Fayette District Court. We don't have any role in that because we're not prosecutors. We have talked with the Fayette County Attorney's Office. They have indicated they would certainly explore this with us. However, they had some concern that because there are matters relating to this, not the specific notice of violation, at least not as of yet, but other matters that are related to this property and to the context of the notice of violation that are on appeal in Fayette Circuit Court, They were somewhat concerned about taking up a criminal action, but they did not say they would not, but that's where that one is. I will tell you that our experience with that has been that, and I personally don't handle this kind of thing normally, so it's not my experience but other people in the law department, that very often the district court judges like to refer these things to mediation. and being a governmental entity with boards and commissions that act for it, that sometimes is a somewhat difficult position to be in. And so I'm not saying they would or they wouldn't, but that does seem to be a fairly normal course of action. If you look, now I'm going on to what would be under KRS 100.237. And the only reason that I gave you this is because I want you to understand the logic I'm going to follow here in this next option. The other option that would be available to you is to seek an injunction in Fayette Circuit Court asking for some type of order from the court to enforce this violation and bring that property into compliance. There was some thought that as a board that you all could direct us as legal staff to do that, and I think that you can. However, if you look at this specific section, it talks about in the first paragraph, which is numerical one, right at the very end, and it also should be highlighted, that the board has a right of action. It doesn't go any further, you know, to explain what those rights of action might be. If you turn over to the next page, which is, well, actually it's two pages, KRS 100.337. This is under the miscellaneous sections in the KRS 100 chapter, which is about zoning. It says that the commission shall have a cause of action for all appropriate relief, and it specifically says including injunctions, you know, for anyone who violates the chapter or the regulations here under. That's for the planning commission? It is the planning commission our concern was because the condition the the section that applies to you all doesn't specifically say that but the um section for the commission does that there may be a requirement that the you'd have to have the planning commission's blessing or their authorization for you all to direct that action to in order to address a violation of the zoning ordinance or anything in the chapter. And because of that, and because we did not know if you were going to take action or not, because you meet once a month at the Planning Commission's meeting, which lasted until quite some time last night into the evening, we explained to them that you all had asked us to report on these, that you might be taking some form of action today. We weren't sure, but they did authorize that if the injunctive relief is what is directed by this board, that they would authorize that to go forward. So there shouldn't be any question about whether or not, if that's an option to be taken, it's been authorized. I'm not saying it is or it isn't, but I think the statute's unclear, and we didn't want to get caught in an unclear interpretation of the statute. So that has been done. If we seek an injunction, there's a couple of ways to do that, and the law department would assess the best way to do it, but it would be filed in circuit court. There would be a hearing in front of a judge, and he would issue whatever orders he thought were appropriate. The standard for injunctions is typically high. When I say high, they're looking for things like irreparable harm and things like that, but since we do have a notice of violation that's been upheld by this board, I think we could go forward in that vein if that's how you choose to do. The other thing that I was asked to talk to you all about today is revocation of a conditional use permit. If you look at, it's on page 7-2 in this handout that I gave to you. It should also be highlighted it's under section 6 or subsection 6. The board is authorized to do that, but you have to meet certain requirements in order to do that. It does not have to be done in every case where there is a violation. and that is a choice for the board based on each circumstance in each case. But as you can see, it does set out what has to be required, and obviously the chairman has to be notified that was done in this case. The board, if the violation obviously was heard and upheld last week, so there is an existing violation in place. The board, if you choose that route, you have to schedule a hearing. The hearing is specifically about revoking a conditional use permit. It has to meet all the same requirements for any kind of hearing that every other hearing does, which is the notice provisions and all those things. And then you have to make a decision after you hear the evidence at that hearing. So, just to be clear, you can't just make the decision without a hearing. Should it be noted that the revocation is a different issue than the violation? Right. I mean, there seems to be some confusion, and that's why I was asked to address that revocation and violation are really, you know, what we do to enforce a violation and whether or not you schedule revocation are not really exactly the same thing. They are different. You do have the authority once you receive notice of a violation to make a decision as to whether or not you want to have a revocation hearing, but I'm not necessarily telling you that that is a remedy or an enforcement action. It hasn't been the course in the past of an enforcement action, and it certainly can't go forward without the criteria set forth here in this ordinance. So it would require a separate hearing should you desire to do that now that you are on notice about the violation. So, I'll be glad to answer any questions if I can. The staff is here. If you have factual questions about any specifics, they're probably better at that than I am because they deal with that more than I do. But that's what we wanted to present to you today so you all could have a discussion about it. And, you know, we wanted to respond to your request. So, Ms. Jones, just to be clear, the first option you mentioned was the county attorney, and fines could be administered. That's one option. Obviously, pursuing the injunction and asking you all to do that at the board's request, that's another option. scheduling a revocation hearing. I assume that would be at our July meeting if the board decided to do that. Those are primarily the three options that we have available to us? Well, there's three options and then the revocation issue. The three options were fines, referring to the county attorney, or seeking an injunction in terms of enforcement that we are reporting to you we think are the most best fit this circumstance. The revocation issue is really... Is a separate. You all, the initial things in 7.6.A.6, in terms of you all being notified there's a violation, I think have occurred. So we were asked today to make sure that you all were aware, because there seemed to be some confusion at the last hearing, that once a violation was upheld that there could be revocation, and we wanted to be sure everybody understood that it doesn't work that way. Very good. Thank you, Ms. Jones. Does anybody have any questions for Ms. Jones? I guess I had a question about something I hadn't heard before. You said that the appeal of any fines or civil penalties that are imposed are to an infrastructure hearing board. I don't know what that is. I'm going to let Mr. King explain that. I'm not their counsel, and I don't really know how to explain it to you either. All right. This is the civil citation is the newest tool that has been put in the enforcement toolbox. Basically, it allows us a fairly expedited, rather than getting tied up into the court system, to levy fines, issue a citation, and have it paid. frankly it's a tool more effective on what i would call small scale kinds of violations involving single family properties things like that where a 75 fine is something that's significant and perhaps escalating fines we've had fairly good luck with those on violations someone's just stubborn and then they pay it. They know that if they violate again and we come back, it's going to get more progressive. We've had a case where we had to two different citations and then still wouldn't stop doing what they were doing and we've had to then now go to the court system in addition. But it's our personal feeling that what we're really looking for in this case is compliance and we don't think starting down the civil 75 fine then 150 fine then that kind of thing really will be likely be effective in trying to get compliance with the noci violation in the case at hand i agree what i heard actually five different options which you said they're four, and I agree with you. My next question is about the second option when you talked about abatement. Abatement is where we would apply to the, we, the board, I guess, would apply to the county attorney to, what, enforce our order? I think, and I don't. Before you answer, is it a civil or a criminal process? this? Well, I think as it's written in the stack, let me first say that's not an option we're recommending at all. But I wanted you to be aware of it because it was discussed, not aware of it as an option. I wanted you to be aware of what it says for information because I think there was some confusion about that at the last hearing. And I wasn't here last month, so this is. Yeah, there was some discussion at the end of the hearing that I thought raised a lot of questions. So let me say, but abatement here is only in the instance where there's a serious threat to public health, safety, or welfare. And what I think we would be doing would be either sending our, and I don't know who we'd send in the government, so we probably have to hire somebody, to physically go down there and take down what we're saying is in violation and then charge it back to them. And, you know, I think that's a remedy that's set aside for exactly what it says, serious threats to public health, safety, or welfare. So that's why we're not recommending that. But the county attorney option is a separate option in that it is in criminal court and district court. And it's prosecuted by the county attorney's office. It's a code violation, more or less. We don't do that very often. Okay, so that's a separate? It's separate from abatement. Okay. And what is that process? Basically, we more or less give the county attorney the information about this violation. They would term it when it comes into their office as a complaint, and then they take over, and they prosecute it in the district court. So it's all handled out of their office. Under the criminal statutes? Yes. A violation of the code, which is, I didn't provide this section, but it's in KRS 109-91. Gives them authority to do that. But it's not, once we provide that information to them, they take over and handle it. Anyone else? You're not making any recommendation to us just explaining what our options are, except you were discouraging us on some of these first. Well, we wanted to, our understanding, and to be honest with you, we went back and looked at the minutes because we were, that aren't finalized yet, but we looked at what had just to, and I think even Jimmy might have listened to the tape, to be sure we understood what you requested. And we believe that you wanted a report from us as to what options you would have for enforcement. You know, I think it's a decision that's up to you, but we wanted you to have the information, and we also wanted you to have what we know about each of the options, either from our experience or otherwise. But no, we're not making a specific recommendation. You heard what Mr. King had to say in his experience with the fining situation, what we know about the county attorney and what they told us when we talked with them in that type of situation. I don't really understand the process of the injunction that the Planning Commission would agree to cooperate with us on. How does that work? It's just really a technical thing. In the law, and Mr. Glover may understand what I'm saying if I say it clearly enough in terms of he's probably seen this before. In the law, when there's two statutes that talk about rights of action or any particular issue, sometimes the one that's more specific, which the KRS 337 that talks about the Planning Commission specifically has rights to file injunctions in order to enforce this zoning chapter, override the less specific statute. And we aren't sure that we could proceed without more or less their blessing, that it's okay with them if we take that route because of the way the statutes are written. But, Tracy, I was wondering, if we get past all that, what does an injunction do to stop the illegal activity? It gets us an order from the circuit court, from the judge, that says it has to be stopped. And if it's not, if that order's not followed, then the party not following it's subject to contempt of court. That sounds serious. It could be, yes. Okay. That was my question. I have one other about revocation, but I don't know if we're there yet. But that seems like a separate issue from these enforcement possibilities. I think that it is just because I think it requires a hearing. It requires, there's nothing other than, and again, I'm not advocating one way or the other here, but there's nothing other than you all saying you want to schedule a hearing that you can do with that today, because you have to have a hearing. Well, if we can talk about that just for a moment. I'm thinking back to when Con Robinson was doing his mining operation out on Georgetown Street, And you folks came to us asking for us to schedule a revocation hearing because you thought that he was so blatantly in violation of his conditional use permit for composting. So what is the difference in that and the evidence that we have for this property where we know from the hearing last month that they've been out of compliance for their fishing camp conditional use for 10 years? And why would you not be recommending that we schedule a revocation hearing given their history and even in the past months still continuing on? I'm going to let Mr. Marks address that because he has worked on both these cases, and then if there's anything else that I need to add, I will. Before you turn it over to Mr. Marks, I thought I understood you to say that in order to seek an injunction, we as a board would have to show irreparable harm. And that's the difference between the, as I understood, the revocation hearing that we held for Conn Robinson and the one that was heard last month, I think. Well, there is a difference. The revocation hearing is governed by. I'm not talking about revocation hearing. I'm talking about the injunction. The injunction is going to be governed by all the laws that apply to getting an injunction for any reason, and the standard for that is irreparable harm. So we're going to have to show that if we file an injunction to the judge to get any kind of order to stop this violation. I'm not saying we can't do that. We do have a violation that's been upheld by the Board of Adjustment, but I wanted you all to be aware that we're going to have to meet a legal standard in court if we seek an injunction. Is another option that you haven't mentioned so far to hold all of this in abeyance pending the action in circuit court? I mean, I understand that our denial of the appeal is in court, so couldn't we as a board decide to hold everything in abeyance pending the circuit court's decision? Yes, you could as a board. I mean, what we did in our motion earlier was to direct the Division of Planning not to accept the amended application and not to agree to any abeyance in that lawsuit so that lawsuit could go forward and that decision be made. Isn't that what we agreed to as a board when we first came back from closed session? Yes, that's what you agreed to in regard to that. um i mean that that's certainly an option i think mr king might have a comment about that certainly i i understand that is one of your options but i would be concerned about that we issued a notice of violation this board upheld that and if merely the litigation would keep us from trying to pursue compliance with that notice of violation i would hope that that would not be the case i would hope that we would be able to seek to enforce that and have it complied. So while the issue was being mitigated or litigated, excuse me, not mitigated, the activity would not be going on. Rather than having it go on for years, potentially, while the litigation works its way through the courts. I mean, we did the same with the community in. We held everything in abeyance pending. I mean, that's being held in abeyance, isn't it? Am I understanding this wrong? I mean, I'm trying to apply the law evenly or understand the law equally and evenly. So I'm asking for your... The community inn situation is similar. That was initially held in abeyance. because my understanding is because there was an indication from community in that they were going to try to relocate and they wanted to have time to do that. And we agreed for them to do that. As you know now, that court action is proceeding, and the reason it's currently in abeyance is because the judge has ordered it. So that's what I'm saying. And because we agreed not to accept the amended application from Boone Creek and allow the legal process to continue, isn't that the appropriate forum now that the circuit court has jurisdiction of those issues? I think the question is whether or not you want to try to achieve compliance and enforce the violation as on the parallel track of that decision going forward. I think as Tracy hit on, the difference now is the community end. The judge has told us to not force those people out on the street. But while the litigation is going on, you know, again, there's two things that could be happening. They could just shut down the operation while it's being determined whether or not they could do it. And the same situation is true here. You know, while it's being decided whether or not they can continue to run the zip line application, we would prefer that they not run the zip line, that they not violate the ordinance, which we found and which you supported. Sure, and that issue, I mean, and that decision, like I say, is now out of our hands. It's before the circuit court that the circuit court has jurisdiction of the issue of whether the appeal was appropriately denied by this board. So since the court has jurisdiction, both this board and the court can't have jurisdiction of the same issue. So I'm just trying to fit. I don't want to step on the court's toes if the court wants to shut them down. It seems like the court has, now that the court has a case, they could issue a temporary injunction. They could do whatever they wanted to in that forum. The court currently only has the jurisdiction they have, and the only thing that's before them, is the appeal of the decision in 2012 on that conditional use permit. and the standard that they'll be deciding that by is whether or not the board's decision in denying that conditional use permit was arbitrary. They don't have in front of them anything in regard to this notice of violation because the notice of violation was issued in regard to violations of an existing conditional use on that property that was placed on it in 2001, 2000. so that issue that there is a conditional use on that property for a fishing club that was issued in 2000 by by the board of adjustment the notice of violation and the things that um that mr king investigated that he determined were in violation were in violation of that permit and the hearing that this board had last month um was about the conditions in that permit and whether or not the actions that are going on on the property were in violation of that permit. So that issue is not currently, as of right now, as of yet, in front of the circuit court. So technically, I don't believe that the court is going to issue anything in regard to the violation under the guise of that appeal. so you know i think that that that's why if you choose an injunction would be necessary i'm told okay i'm told that there has been a notice i mean an appeal filed of this board's decision on the notice of violation so that is now in front of the court i don't know which division or which judge but thank you miss jones i think we've got a i don't mean to interrupt but mr griggs asked the question did you get your answer no i think that mr marks was cut off and i would like to know why given the evidence that's part of the record about the violations of the fishing camp why we're not considering a hearing to revoke that conditional use Well, there's major differences between both the Conn Robinson case, which you just mentioned, and the Community End case, which has been talked about here in a different context, but also in other communications came up as, you know, why we weren't handling this in terms of revocation the same way we did Community End. Well, Mr. Marks, let's just eliminate those two things. Let's just talk about the fishing camp and the history of its compliance with its conditions. Well, I've been asked two different things here, but the history of compliance is we didn't receive a single complaint about the Boone Creek English Club until February of this year. That was the first complaint. And although there was a lot of allegations of noncompliance, the only thing that's been documented from our perspective is the notice of violation that Chris King issued. But as far as why we're not more aggressive now in recommending revocation, I think part of it is both the Conn Robinson case and the community-end case both involved well-documented adverse impacts to the surrounding properties. In the community-end case, we had groups of people residing there that were blocking sidewalks, that were trespassing, that on occasion was documented by police, were drunk, and actually called physical damage to an immediately adjoining property. All of that was very well documented in terms of adverse impact. Con Robinson case, we had very well documented adverse impact to surrounding properties. The adjoining property owner had damage to a foundation from blasting. We had documentation of respiratory illnesses in horses from dust from the quarrying operation. And also had evidence, based on the testimony, of a very elaborate and expensive landscaping dying because of dust from the quarrying operations. operations. Maybe it hasn't come out yet for the Boone Creek case, but the initial 40-page complaint, numerous editorials in the newspaper, and subsequent communications, partly because it wasn't part of the legalistic approach, but there hasn't been hardly anything about how the zip line and the canopy tour has adversely impacted anything, the environment, surrounding property owners, et cetera. So I think that's one of the things that caused us to be very reluctant about handling this case the same way Community Inn and Con Robinson's quarry were handled in terms of revocation. Thank you, Mr. Marks. Before us, Ms. Jones, thank you very much. And Chris, in looking at the options that we have before us, and I don't know what the pleasure of the board is, but I think that it's been made very clear as to what our options are. And first of all, my personal opinion is I would like to embrace and endorse the Planning Commission's recommendation that we pursue an injunction to have Mr. Carey cease and desist. And I know that there are other issues affecting this issue and allowable in other areas and so forth. But, you know, from my position, I'd like to see us pursue an injunction against, authorize our legal counsel to pursue that. I think right now that that is the clearest and cleanest and fairest option that we have before us. It's a very complex issue from a legal standpoint. I think a revocation hearing is a separate issue. And from my personal opinion, I would like to see us move toward authorizing an injunction for our law staff. Does anyone have... I assume if we decide to go that route, we would need a motion to do so. Mr. Stumbo, of the options they laid out, that seems like the most logical enforcement route. Although the standard is so high, if it fails, how do we stop this activity? I think there should be some way that we would have more confidence in meeting success. Well, I think, too, as it's been explained to us, Mr. Griggs, that obviously the court rendering this decision, obviously we would have to have faith in that. But considering what has been before this board and the actions that we've taken, I would hope that they would look upon this favorably. Once it's there, obviously it is out of our hands. I'm with you, and I'll make that motion if there's a chance that it'll be seconded. I think there probably would. Would you like to make that motion, Mr. Griggs? I'd like to make the motion that we try to obtain some enforcement results on this case via the injunction option. I don't know if I need to. Do you need to have language like authorizing? Okay. So that would be my motion. Thank you, Mr. Griggs. Do we have a second? Second. All in favor, say aye. I guess I'd like a little bit of discussion before, and I'm not sure we have all the information that we need to vote on the motion. I'm not saying one way or the other, But I understand from Boone Creek's counsel that an appeal was filed of the Board of Adjustments action on the notice of violation that was issued last month. And if that's the case, then another option is to hold it in advance pending the resolution of that matter. If the circuit court has jurisdiction of this, then if we keep piling on order after order, we're going to keep piling on action after action in the circuit court. So my opinion is that we should let the legal processes work as they are in the circuit court. That's just my opinion. Thank you, Mr. Glover. and i think that the emotion is premature well we have a motion we have a second can i see by raise of hands all in favor raise your right hand those that oppose mr glover opposes thank you you have that authorization is there is there any other is there any other issues that need to be discuss? I was so bothered by the testimony last month of the ongoing over a decade of the violations of the fishing camp permit that I'd like to have the staff establish to their satisfaction that these violations are ongoing and if it's since February when you're first notified but it's ongoing since then I'd like you to accumulate additional evidence so that this the issues other than the zip line the motel use or or five bedrooms being used as a as a hotel and the the other activities that have been going on down there this conventions or social parties that are outside of the conditional use, that they be put into evidence so that if they continue indefinitely, that we would have the information we need to have a revocation hearing in the future. Mr. Griggs, I think if I understand what you're saying, but such evidence could only be secondhand. the information that was reported to us in the initial complaint alleged a number of things occurring over time of which enforcement staff had no firsthand visibility we don't dispute that it happened okay but you know there were a whole lot of things i don't know if you would call it hearsay but it was certainly not observed by enforcement staff you know the enforcement staff Certainly, when we went out and investigated, we observed the zip line operation being constructed. We asked it to be ceased. They didn't. We issued the notice of violation. They appealed that. You upheld it. So really, that's the violations that have occurred that have been documented. Well, I think that there was a lot of evidence about using it as a social club. It was advertised on various social media sites over many, many years. So that's documented. Well, that's been provided by third party. We will gladly compile anything that is brought to us, but for us to try to trace 10 years of history before we were even the enforcement staff, I don't know that we could do that, just to be honest with you. Well, I just think you should be on notice that there's activities going down there that are outside of the conditional use. I understand, too, but I understand we have a limited staff. I'm not making excuses. but we can't put people down there 24-7 to see what's going on at that location. I think you understand that. But we have done our best. We've been there weekends. We've been there evenings. But you understand. Thank you, Mr. King. I just want to be realistic in terms of your request and your expectations of what we can and can't do. We will compile, gladly compile what information there is. We will gladly compile our observations. but I'm not sure yet. Have you asked, are you asking that that be evidence brought and that there would be a hearing advertised or that you would consider that information before you? Well, I'm just reading this paragraph six, which describes our responsibility when there's evidence brought to us of a conditional use that's not in compliance. It's our responsibility to look at that evidence and decide if it can be brought into compliance or it should have its conditional use revoked. That's what it says we're responsible for doing, and I'm just wanting us to be able to do that with your assistance. Thank you, Mr. Griggs. I'd like to ask if any of the other board members wish to present any other items. Staff, do you have anything? Thank you, Mr. Chairman, but there are no staff items today. Very good. Our next meeting will be July 26th. This meeting stands adjourned. Thank you. Thank you.