# Board of Adjustment - September 27, 2013 > Auto-transcribed civic record · September 27, 2013 - **Permalink**: https://meetings.lexingtonky.news/meeting/3128 - **Source video**: https://lfucg.granicus.com/player/clip/3128?view_id=14&redirect=true - **Date**: 2013-09-27 - **Last revised**: July 15, 2026 - **Length**: 22,771 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 Urban County Board of Adjustment Planning Services Section met on September 27, 2013, at 1:30 p.m. at 200 East Main Street in Lexington, Kentucky, with Chairman Barry Stumbo presiding. The board considered 12 agenda items, taking 13 motions and votes throughout the meeting while hearing 9 public comments. The board approved 11 of the 12 requests before it, including variances to reduce required setbacks and parking, conditional use permits for various commercial and residential projects, and administrative appeals. The board denied one request: a variance to increase the allowable height of an accessory structure for Brian and Angela Johnson. ## Attendance The following individuals were present at the meeting on September 27, 2013: * Barry Stumbo * Noel White * Joseph Smith * Janice Meyer * James Griggs * Thomas Glover * Kathryn Moore Joseph Smith arrived late to the meeting. No members were absent. ## Votes and Decisions The Board approved eleven motions and denied one during this meeting. **Variance Approvals** The Board unanimously approved a variance for David and Louise Pendery to reduce the required side yard from 27 feet to 19 feet (V-2013-56), with the motion made by Noel White and seconded by Kathryn Moore [timestamp: 00:08:31]. All six board members voted in favor. A variance for Derek Nielsen and Lindsay Scott to reduce the required side yard from 3 feet to 0 feet (V-2013-58) passed unanimously on a motion by Janice Meyer, seconded by Thomas Glover [timestamp: 00:09:49]. The Board unanimously approved a variance for Harmony HB, LLC to reduce the required side yard from 3 feet to 0 feet (V-2013-59), with the motion made by James Griggs and seconded by Janice Meyer [timestamp: 00:10:54]. A variance for Johnston Charitable Trust to reduce required parking by 50% from 4 to 2 spaces (V-2013-60) was unanimously approved on a motion by Thomas Glover, seconded by Noel White [timestamp: 00:12:10]. **Conditional Use Permits and Other Approvals** The Board unanimously approved a conditional use permit and variance for TLC Miller, LLC to establish a nightclub and reduce setback from 100 feet to 91 feet (CV-2013-51), with the motion made by Kathryn Moore and seconded by James Griggs [timestamp: 00:15:58]. A conditional use permit for Idle Hour Country Club to expand its pool bar canopy and service area roof (C-2013-53) passed unanimously on a motion by Janice Meyer, seconded by James Griggs [timestamp: 00:17:51]. The Board unanimously approved a conditional use permit for Jim Wilhite to modify a site plan, replacing on-site parking with townhomes (C-2013-54), with the motion made by Noel White and seconded by Thomas Glover [timestamp: 00:20:34]. An administrative review and conditional use permit for Associates in Pediatric Therapy's physical therapy use (AC-2013-52) was unanimously approved on a motion by Thomas Glover, seconded by Janice Meyer [timestamp: 00:22:14]. An administrative appeal for Solomon Lee Van Meter to change nonconforming use from retail to residential (A-2013-55) passed unanimously on a motion by James Griggs, seconded by Thomas Glover [timestamp: 00:29:41]. An administrative appeal for Clayton Farmer to review denial of a permit to expand nonconforming use (A-2013-61) was unanimously approved on a motion by Janice Meyer, seconded by Noel White [timestamp: 01:41:54]. **Denial** The Board denied a variance for Brian and Angela Johnson to increase allowable height of an accessory structure from 20 feet to 21 feet 10 inches (V-2013-57). A motion to deny was made by James Griggs and seconded by Thomas Glover, passing with five votes in favor and one vote against from Kathryn Moore [timestamp: 01:51:18]. **One-Year Review** The Board unanimously approved a one-year review of the conditional use permit for Ryan Conboy's animal crematory (C-2012-59), with the motion made by Thomas Glover and seconded by Janice Meyer [timestamp: 03:04:21]. ## Public Comment The meeting included nine public comments addressing two primary topics: a variance request for a residential garage and the operation of an animal crematory. **Garage Variance Concerns** Steven Tyner Wilson [01:07:07] opposed Brian and Angela Johnson's variance request, expressing concern about the garage height and citing a 53-foot shadow at 10 a.m. He also questioned the accuracy of the site plan, noting inconsistencies in frontage measurements and encroachment into the side yard. Melanie Tyner Wilson [01:13:36] emphasized the emotional and precedent-setting impact of the structure, stating that it affects the entire neighborhood and could lead to similar developments. Andy Castro [01:16:02] criticized the Johnsons for building without proper knowledge of zoning rules, arguing that ignorance is not an excuse and that the structure sets a dangerous precedent. **Animal Crematory Operation** Ryan Conboy [02:07:44] spoke in support of the crematory, stating that it is a necessary service for disposing of dead animals and has operated without complaints or harm to the community. Hank Grady [02:09:17] raised legal and operational concerns, arguing that the crematory should not be allowed in an agricultural zone and requesting operational limits on hours, days, and volume to prevent overuse. Charlene Horn [02:23:44] expressed concerns about air and water pollution, health hazards, and property value decline due to the crematory, and supported a petition for restrictions. Peter Kerwin [02:40:26] confirmed smelling a hair-burning odor when the wind came from the north, though he characterized it as infrequent and not a major issue. Frank Penn [02:43:06] defended the crematory as essential for responsible disposal of dead animals, noting that traditional methods are no longer viable. Jeremy Wiles [02:45:47] stated that the crematory has not disturbed him or his wife and expressed support for the business as a good neighbor. ## Contested Items **Brian and Angela Johnson's Variance Request** The Board addressed a variance request from Brian and Angela Johnson that generated heated discussion among board members and the public. The primary point of contention involved the height of a proposed garage and questions about the accuracy of the site plan. Neighbors voiced strong opposition to the request. The disagreement resulted in a split vote among board members, ultimately leading to a denial of the variance. **Ryan Conboy's Animal Crematory** A second major contested item involved an animal crematory operation proposed by Ryan Conboy. Multiple neighbors attended the meeting to express opposition, raising concerns about health impacts, environmental effects, and the precedent such a facility would establish in the community. Despite staff findings that the operation would substantially comply with applicable regulations, neighbors demanded that operational limits be imposed on the facility. The community opposition centered on the potential risks and implications of allowing this type of business in the area. ## Variance to reduce required side yard from 27 feet to 19 feet for David and Louise Pendery **Identifier:** V-2013-56 The Board considered a variance request to reduce the required side yard setback from 27 feet to 19 feet for a residential addition on a 1.4-acre property owned by David and Louise Pendery [timestamp: 00:08:31]. **Key Speakers** The discussion involved David Pendery, Louise Pendery, and Jimmy Emmons. **Board Decision** The Board approved the variance. In granting approval, the Board determined that the variance would have minimal impact on the surrounding area and would not result in any adverse effect on public health or neighborhood character. The approval was granted subject to three conditions. ## Variance to reduce required side yard from 3 feet to 0 feet for Derek Nielsen and Lindsay Scott **Identifier:** V-2013-58 The Board considered a variance request to reduce the required side yard setback from 3 feet to 0 feet for a property owned by Derek Nielsen and Lindsay Scott. [timestamp: 00:09:49] **Key Speakers:** - Derek Nielsen - Lindsay Scott - Jimmy Emmons **Request and Approval:** The variance was sought to retain an existing privacy fence on the property line. The Board approved the variance request. **Board Findings:** In approving the variance, the Board noted that the area has unusually wide side yards, which provided context for the request. The Board also determined that approval of the variance did not constitute a circumvention of zoning rules. **Conditions:** One condition was attached to the approval. **Outcome:** Approved ## Variance to reduce required side yard from 3 feet to 0 feet for Harmony HB, LLC **Case Number:** V-2013-59 **Outcome:** Approved The Board considered a variance request to reduce the required side yard setback from 3 feet to 0 feet for Harmony HB, LLC [timestamp: 00:10:54]. The variance was sought to retain an existing window well on the property. **Key Speakers:** - John Strom - Jimmy Emmons **Decision:** The Board approved the variance. The approval included two conditions: - Amendment to the permit - Filing of an easement plat **Rationale:** The Board cited safety and emergency access benefits as the basis for granting the variance to allow the existing window well to remain in place. ## Variance to reduce required parking by 50% for Johnston Charitable Trust **Case Number:** V-2013-60 **Outcome:** Approved **Overview** The Board approved a parking variance request for Johnston Charitable Trust that would reduce required parking by 50% for a small downtown business lot. [timestamp: 00:12:10] **Key Speakers** - Sally Johnston - Kevin Oday - Jimmy Emmons **Discussion** The Board considered the variance application for the downtown property. The discussion noted that the property has a history of non-compliance with standard parking requirements. The Board determined that the proposed use change supports redevelopment efforts in the downtown area, which factored into their approval decision. **Conditions** The Board attached two conditions to the variance approval. ## Conditional use permit for nightclub and variance to reduce setback from 100 feet to 91 feet [timestamp: 00:15:58] The Board considered a conditional use permit and setback variance for TLC Miller, LLC to operate a nightclub with a reduced setback requirement. **Application Details** The applicant requested approval for a conditional use permit to operate a nightclub and a variance to reduce the required setback from 100 feet to 91 feet. **Key Speakers** - Myke Robbins - Jimmy Emmons **Board Action** The Board approved both the conditional use permit for the nightclub and the variance to reduce the setback requirement. The approval was based on consideration of the building's orientation and soundproofing features. **Conditions** Four conditions were attached to the approval of this application. **Outcome** Approved ## Conditional use permit to expand Idle Hour Country Club's pool bar canopy and service area roof **Identifier:** C-2013-53 The Board considered a conditional use permit application for Idle Hour Country Club to expand its pool bar canopy and service area roof. [timestamp: 00:17:51] **Key Speakers** Bob Featherston and Jimmy Emmons presented on this matter. **Board Action** The Board approved the expansion. The approval was based on findings that the proposed expansion would have minimal impact on the neighborhood and that adequate infrastructure was in place to support the project. **Conditions** Two conditions were attached to the approval. **Outcome** The conditional use permit was approved as presented. ## Conditional use permit to modify site plan, replacing on-site parking with townhomes **Identifier:** C-2013-54 **Applicant:** Jim Wilhite [timestamp: 00:20:34] The Board considered a conditional use permit to modify an existing site plan by replacing on-site parking with townhomes. Jason Banks and Jimmy Emmons presented on this matter. The Board approved the modification. In their decision, the Board noted that the proposed change would result in reduced use intensity at the site compared to the existing conditions. The Board found the proposal to be in compliance with applicable conditions. The approval was granted subject to six conditions that were attached to the permit. **Outcome:** Approved ## Administrative review and conditional use permit for physical therapy use by Associates in Pediatric Therapy [timestamp: 00:22:14] The Board considered an administrative review and conditional use permit application for a physical therapy use by Associates in Pediatric Therapy. **Key Speakers** Angela Renee Sageser and Jimmy Emmons presented on this matter. **Board Action** The Board approved the use. In making its decision, the Board found the proposed physical therapy use to be substantially similar to an athletic club and consistent with applicable zoning requirements. **Conditions** Two conditions were attached to the approval. **Outcome** The application was approved. ## Administrative appeal to change nonconforming use from retail to residential for Solomon Lee Van Meter [timestamp: 00:29:41] The Board considered an administrative appeal to change the nonconforming use of a property from retail to residential for Solomon Lee Van Meter (Agenda Item A-2013-55). **Key Speakers** Solomon Lee Van Meter and Jimmy Emmons presented on this matter. **Board Decision** The Board approved the change of nonconforming use from retail to residential. In making this determination, the Board noted that the proposed residential use involved a smaller building volume and reduced use intensity compared to the existing retail use. **Conditions** The Board attached three conditions to the approval. ## Administrative appeal to review denial of permit to expand nonconforming use for Clayton Farmer **Identifier:** A-2013-61 **Outcome:** Approved The Board considered an administrative appeal regarding a denial of a permit to expand a nonconforming use for Clayton Farmer [timestamp: 01:41:54]. **Key Speakers:** - Clayton Farmer - Jimmy Emmons **Board Decision:** The Board approved the appeal. In making this determination, the Board found that the proposed addition would not extend the nonconforming use and would maintain neighborhood character. This finding formed the basis for overturning the previous permit denial. ## Variance to increase allowable height of accessory structure from 20 feet to 21 feet 10 inches **Case Number:** V-2013-57 **Applicants:** Brian and Angela Johnson **Request:** A variance to increase the allowable height of an accessory structure from 20 feet to 21 feet 10 inches. **Key Speakers:** Angela Johnson and Jimmy Emmons presented on this matter [timestamp: 01:41:54]. **Board Decision:** The Board denied the variance. A second motion to deny was passed. **Basis for Denial:** The Board cited willful construction beyond height limits as a primary concern. The Board also noted potential alteration of neighborhood character as a factor in their decision to deny the request. ## One-year review of conditional use permit for animal crematory for Ryan Conboy [timestamp: 03:04:21] The Board reviewed the one-year conditional use permit for an animal crematory operated by Ryan Conboy. Key participants in the discussion included Ryan Conboy, Jimmy Emmons, and Hank Grady. The review examined compliance with the conditions imposed when the permit was originally granted. The Board found that the operation demonstrated substantial compliance with all required conditions, including logkeeping requirements and road paving obligations. The Board approved the one-year review. No new conditions were added to the permit as a result of this review. --- ## Decisions - **V-2013-56** — passed (0-0): Approval of variance to reduce required side yard from 27 feet to 19 feet for David and Louise Pendery - **V-2013-58** — passed (0-0): Approval of variance to reduce required side yard from 3 feet to 0 feet for Derek Nielsen and Lindsay Scott - **V-2013-59** — passed (0-0): Approval of variance to reduce required side yard from 3 feet to 0 feet for Harmony HB, LLC - **V-2013-60** — passed (0-0): Approval of variance to reduce required parking by 50% (4 to 2 spaces) for Johnston Charitable Trust - **CV-2013-51** — passed (0-0): Approval of conditional use permit for a nightclub and variance to reduce setback from 100 feet to 91 feet for TLC Miller, LLC - **C-2013-53** — passed (0-0): Approval of conditional use permit to expand Idle Hour Country Club's pool bar canopy and service area roof - **C-2013-54** — passed (0-0): Approval of conditional use permit to modify site plan, replacing on-site parking with townhomes for Jim Wilhite - **AC-2013-52** — passed (0-0): Approval of administrative review and conditional use permit for physical therapy use by Associates in Pediatric Therapy - **A-2013-55** — passed (0-0): Approval of administrative appeal to change nonconforming use from retail to residential for Solomon Lee Van Meter - **A-2013-61** — passed (0-0): Approval of administrative appeal to review denial of permit to expand nonconforming use for Clayton Farmer - **V-2013-57** — failed (0-0): Approval of variance to increase allowable height of accessory structure from 20 feet to 21 feet 10 inches for Brian and Angela Johnson - **V-2013-57** — passed (0-0): Denial of variance to increase allowable height of accessory structure from 20 feet to 21 feet 10 inches for Brian and Angela Johnson - **C-2012-59** — passed (0-0): One-year review of conditional use permit for animal crematory for Ryan Conboy --- ## Full transcript Music Anybody with a cell phone, would you please turn it off? If you've got to take a call, please do so outside. I'd like to ask that everyone who is going to speak today, would you please stand? Anyone that's going to speak today, would you please stand? Raise your right hand. Do you agree to tell the truth and the whole truth? Thank you very much. Before I read the agenda, Mr. Emmons, are there any withdrawals? None that the staff is aware of. Very good. I'm going to go ahead and read the agenda, and I'm going to ask if the applicant is president. And if no opposition, we'll hear them first. And if there is opposition, we're going to ask you all to step out in the hall and try to resolve the cases before staff has recommended disapproval, which I don't think is the case today. But those that have staff disapproval will be heard later. I'm going to go ahead and sound the agenda. Item B, 2013-56, David and Louise Penderie. Are they here? Okay. Thank you. Is there any opposition? Brian and Angela Johnson, are they here today? All right. Is there any opposition to Brian and Angela Johnson? There is opposition. Okay. Derek Nielsen and Lindsey Scott, very good. Is there any opposition? Okay. Harmony HB LLC. Yes. Is there any opposition to Harmony today? Okay. Johnston Charitable Trust. Are they here today? Very good. Is there any opposition to their request? TLC Miller LLC. Is there any opposition to this case? Ryan Conboy. Yes. Is there any opposition to this case? There is opposition. Okay. Idle Hour Country Club. Very good. But is there any opposition to Idle Hour's request today? Okay. Jim Wilhite. Very good. Is there any opposition to Mr. Wilhite's case? All righty. And then the last one I have is an administrative appeal, Solomon Lee Van Meter. Very good. Well, it's an administrative appeal. We will be hearing that last. Oh, I'm sorry. Associate in pediatric therapy. Are they here? Is there any opposition? No opposition? Thank you very much. There were a couple cases with opposition, Ryan Conboy and Brian and Angela Johnson, and we would ask those folks if they would mind stepping out in the hall and seeing if they can't resolve their differences. Mr. Chairman? Yes. If I can, on the last page of your agenda, item number 11, Solomon Lee Van Meter. This is an administrative appeal, but it is changing one nonconforming use to another. It's not an appeal of a zoning decision. It's a different type of administrative appeal. If there is no opposition, the Division of Planning sees no reason why this could not be held in an abbreviated fashion also. Okay. And then item number 12 is the last item on your agenda. Because of the formatting, it's pushed over just a little bit, so I wanted to draw that to your attention. That is an administrative appeal, A-2013-61 for Clayton Farmer. That is an administrative appeal of a review of a denial of a permit, so the planning staff will need to report on that. Very good, and Mr. Farmer is here. Yes. Any opposition? Thank you for letting me make those clarifications. Okay. Thank you, Mr. Evans. Yes, ma'am. Ma'am, you need to come to the mic, please. I don't see my attorney here right now. Should I go on out and talk? I would just wait until your attorney comes. Yes, ma'am. She's the line of the convoy. She's the opposition. The opposition to convoy, very good. Okay. We'd like to go ahead and get the meeting underway then with, I know we have some minutes to approve. We have the May 31st, 2013 minutes. I know the Board of Adjustment, have you had an opportunity to look at those? Are there any corrections, any changes? If not, will the Chair entertain a motion to approve? So moved. Second. Thank you, Ms. Miner. Second. Thank you. All in favor, say aye. Aye. Any opposed? Thank you. We also have minutes for the August 23rd, 2013 meeting. Have you boarded had a chance to take a look at those? If there are any changes, please say so. If not, we'll entertain a motion to approve. So moved. Thank you, Mr. Griggs. Is there a second? Sure. Thank you, Mr. Glover. All in favor signify by saying aye. Aye. Very good. Motion carries. Okay, we're going to go with those that are not in opposition first. Mr. Evans, did you want to go to the administrative appeals first, or did you just want to take those on? No, sir, I wasn't trying to say that. I believe that you could take the agenda in the order that it's on. Okay, very good. Well, the first case with no opposition is David and Louise Pindery. Would the applicants please come forward to the mic and state their name for the record? Mr. Chairman, as they're coming forward, the staff would like to point out that all of the required notice, including the posting of the signs for those applications that require it, was done. The staff also has four letters of support for this application that I will pass out copies to the board now. Very good. Thank you, sir. My name is David Pendry Louise Pendry Okay Mr. and Mrs. Pendry, give us just a second Let Mr. Emmons pass these out And we'll take a quick look at them Okay Thank you. Very good. The board ready? Mr. and Ms. Pendry, the staff has recommended approval subject to the three conditions. Have you read those conditions, and do you agree to abide by them? Yes. Very good. Does the board have any questions? If not, the chair will entertain a motion. Mr. Chair, I move to approve the 2013-56 David and Louise Pendery's appeal for a variance to reduce the required side yard from 27 feet to 19 feet in order to construct a residential addition in the agricultural rural neighborhood character design overlay zone at 2560 Walnut Grove Lane, as recommended by staff and subject to the conditions as recommended by staff. Thank you, Ms. White. Is there a second? Second. Ms. Moore, seconds. All in favor say aye. Aye. Opposed. Thank you. Thank you. The next one with no opposition is Derek Nielsen and Lindsay Scott. The applicant, please come forward and state their name for the record. My name is Lindsay Scott. I'm Derek Nielsen. Very good. Folks, the staff has recommended approval subject to one condition. Have you read that condition? Do you agree to abide by it? Yes, sir. Yes. Very good. Does the board have any questions? If not, the chair will entertain a motion. Mr. Chair, I move to approve V-2013-58 Derek Nielsen and Lindsay Scott's appeal for a variance to reduce the required side yard from 3 feet to 0 feet in order to retain an existing prize defense in a planned neighborhood residential R3 zone at 432 Julia Way as recommended by staff and subject to the one condition outlined by staff. Thank you, Ms. Meyer. Is there a second? Second. Mr. Glover, thank you. All in favor say aye. Aye. Any opposed? Motion carries. Thank you. Thank you. I think the next case is V201359 Harmony HB LLC. Applicant, please come forward. State your name. Good afternoon. I'm John Strom representing Harmony HB LLC. Good afternoon, John. I see that staff has recommended approval subject to two conditions. Do you agree to abide by those conditions? We do. Very good. Does the board have any questions? If not, the Chair will entertain a motion. Mr. Chair, I move we approve the 2013-59 Harmony HB LLC's request for a variance to reduce the required side yard from 3 feet to 0 feet in order to allow an existing window well to remain as constructed in a single-family residential zone at 305 White Oak trace, traced based on the staff's recommendation of approval and subject to the two conditions. Very good, Mr. Griggs. Is there a second? Second. Ms. Myers, second. All in favor, say aye. Aye. Any opposed? Motion carries. Good luck. Thank you. I believe item V201360, the Johnston Charitable Trust. Would you please come forward? State your name for the record. I'm Sally Johnston. My husband, Bill, who some of you may know, is out of town today. I'm Kevin O'Day. All right. Ms. Johnston, Mr. O'Day, the staff has recommended approval subject to two conditions. Have you read those conditions and agreed to abide by them? Yes. Very good. Does the board have any questions for Ms. Johnston or Mr. O'Day? If not, then she'll entertain a motion. Mr. Chair, I move that we approve the request for a variance on V. 2013-60, Johnson Charitable Trust's application for a variance to reduce the required parking by 50 percent from four to two spaces in a neighborhood business zone at 149 Jefferson Street for the reasons recommended by staff and subject to the two conditions. Very good. Thank you, Mr. Glover. Is there a second? Second. Thank you, Ms. White. All in favor signify by saying aye. Aye. Any opposed? Motion carries. Thank you. Good luck. Thank you. I believe the next item is item CV 2013-51, TLC Miller, LLC, as the applicant. Come forward, state your name. My name is Mike Robbins. I'm here on behalf of TLC Miller LLC. Very good, Mr. Robbins. Thank you. The staff has recommended approval subject to four conditions. Have you read those conditions? Yes, I have, sir. And agree to abide by them? Yes, I do. Very good. Does the board have any questions for Mr. Robbins? Mr. Chairman, I would like to point out, and it is detailed in the staff report, This particular case was for a conditional use and a variance request. During the course of the review of this request, the variance that was requested, which was a parking variance, is no longer necessary and has been withdrawn by the applicant. However, during the review, a lesser variance for a distance requirement from 100 feet to 91 feet was recognized and is recommended for approval. If the board has any questions for the staff, I'd be happy to try and answer that. It is a little bit odd in this situation, but not unprecedented for the board to act on such a variance. I would like to point out that, and I make mention of this because in your motion making, if you do choose to approve it, you wouldn't want to read exactly the language that was applied for. You would want to read a conditional use permit for a nightclub and a variance to reduce the distance from 100 feet to 91 feet, as recommended by the staff and subject to the conditions on the agenda in your staff report. All of this is detailed in the staff report, but I wanted to go ahead and bring that forward to your attention before motions were made. Okay. Thank you, Mr. Ammons. Anybody have any questions for that? Okay. If not, we'll entertain a motion. Mr. Chair, I move that CV 2013-51TLC Miller's request for a conditional use permit for a nightclub and a variance from 100 feet to 91 feet in a neighborhood business zone, B1 zone at 319A South Limestone be approved as recommended by the staff for the reasons recommended by the staff. Very good. We get that right, Mr. Emmons? Very good. Is there a second? I'll second. Mr. Griggs second. All in favor signify by saying aye. Aye. Any opposed? Motion carries. Thank you. The next, no opposition. I'd allow a country club. C-2013-53. Would you state your name for the record? Bob Featherston. Mr. Featherston. Mr. Featherston, the staff has recommended approval subject to two conditions. Do you agree to abide by those? Yes. Very good. Mr. Emmons, we got a... We did receive one letter of support. Okay. Give us just a second, Mr. Featherston. Sure. Very good. Does the board have any questions for Mr. Featherston? If not, we'll entertain a motion. Mr. Chair, I move to approve C-2013-53, Idle Hour Country Club's request for a conditional use permit to expand the Country Club pool bar canopy and service area roof in a single-family residential zone at 1815 Richmond Road, as outlined by staff, approval outlined by staff and subject to the two conditions. Very good. Thank you, Ms. Meyer. Is there a second? I'll second. Mr. Griggs, second. All in favor signify by saying aye. Aye. Any opposed? Motion carries. Good luck, sir. Thank you. I believe the next item is Jim Wilhite. Mr. Wilhite, come forward. State your name for the record. My name is Jason Banks. I'm with Banks Engineering. I'm here tonight on behalf of the applicant, Dr. Jim Wilhite. Very good. And Mr. Banks, the staff has recommended approval subject to six conditions. Do your client agree to abide by those conditions? Yes, we do. Very good. Anybody on the board have any questions? I have one question for clarification. On the parking requirement, I understand that originally this was requested so there would be competition. But what I'm not sure about is if they get rid of this, how many students are they entitled to have at one time? There are two uses on the subject property, the private club and the accessory daycare use. Each of those uses have their own parking generator, but in reality at this facility, many of the students go back and forth between the two uses. The staff, that made it a little bit difficult to determine exactly how many kids based off of how much parking they have. The staff is recommending that the combination of the enrollment at the private club and daycare shall not exceed a maximum of 200 students combined. Because when I look at it now, it appears that they have 205, but soon expect not to have 205. Is that correct? The staff was taking into account that some of the students that will be enrolled in the daycare will also be enrolled in the gymnastics program and vice versa. So your client's aware that it's 200 individuals? Yes. Okay. Okay. If there's no other questions from the board, the Chair will entertain a motion. Mr. Chair, I move to approve C-2013-54 Jim Wilhite's appeal for a conditional use permit to modify a currently approved site plan reducing on-site parking in a townhouse development zone at 3500 Arbor Drive as recommended by staff and subject to the conditions as recommended by staff. Thank you, Ms. White. Is there a second? Second. Mr. Glover, seconds. All in favor say aye. Aye. Any opposed? Motion carries. Thank you, Mr. Banks. Thank you all. I believe next on the agenda is Associates in Pediatric Therapy. Hello there. State your name for the record, please. Angela Renee Sagester. Okay, Ms. Sagester. The board has recommended approval of the conditional use permit for fiscal therapy use, and they have two conditions. Do you agree to abide by those conditions? Yes, sir. Very good. Does the, no letters from the staff? No, sir. For the record, the staff also did recommend, I just realized that there is one typo on the agenda. On the staff report, we do recommend both approval of the administrative review and the conditional use for the reasons listed in your staff report. We can get that up on the board. Very good. Does the board have any questions for the applicant? If not, the chair will entertain a motion. Mr. Chair, I move that we approve AC 2013-52 Associates in Pediatric Therapies administrative review to determine that physical therapy is substantially similar to an athletic club facility and that we approve the conditional use permit application to operate such use in conjunction with the existing athletic club at 1850 Bryan Road for the reasons stated by the staff and subject to the two conditions. Thank you, Mr. Glover. Is there a second? Second. Thank you, Ms. Meyer. All in favor say aye. Aye. Any opposed, motion carries. Good luck. Thank you. We're going to go ahead and before we hear the folks with opposition, let's go ahead and do the administrative appeal, A201355, Solomon Lee Van Meter. Mr. Chairman, the staff did receive one letter of opposition, which I'll pass out to the board members now. State your name for the record. My name is Solomon Van Meter. Thank you, Mr. Van Meter. Give us just a second and we'll look at this letter. Thank you. Thank you. The board had a chance to take a look at that. Very good. Mr. Van Meter, the board has recommended approval of your administrative appeal. I'd like to ask the board if they have any questions for Mr. Van Meter. If the board doesn't have any questions for Mr. Van Meter, the chair will entertain a motion. I'm still trying to, before you have a motion, I'm still trying to absorb the letter from Mr. Brumley. Have you seen this letter, Solly? It was handed to me this afternoon, although Mr. Emmons called me to let me know he had come in. I would like to address that. Please do. Please do. Mr. Brumley's concern, and again, I had about three hours' notice of this concern, but his concern seems to be... Mr. Van Amir, can you pull your mic down a little bit? We can't hear you. Got it. With fairly short notice to prepare for this, it does seem that Mr. Brumley's concern is that this is going to be a two-story structure. And I would like to point out to the Board that in the 300 block of Jefferson, there are eight other two-story structures, so it's not out of character for the neighborhood. Those addresses of those are 312, 314, 318, 325, 331, 357, and 501 West 3rd Street, which actually fronts on 3rd Street, but the side of it is in this block of Jefferson. And then the large building, which has apartments in the Green Lantern Tavern, also facing on 3rd Street, but the side of it is on this block. So a two-story building is not out of character for this block of Jefferson. The volumetric limitation that the staff has put on whatever we build coupled with the limitation on the square footage of floor space, the mathematics of that will limit what we can build anyway. so it can't be a towering structure the other thing that mr brumbly raises is the zero lot line request that we have on the fourth street side we don't really expect to build on the sidewalk although the building that has been there for probably since at least the 30s was right on the sidewalk what we're going to propose is three feet off the sidewalk but we do want to have some flexibility in that, and I think under the ordinances, we would probably be entitled to it if we were putting back exactly what was there, which is a retail space, since it was burned and demolished within the last year. Thank you. Mr. Glover, did you have any other concern you'd like to address? or anyone, anyone on the board. So the structure that's being built, is it on the same footprint as the structure that burned? It's within that. It's smaller than the footprint of the burned building. And it's not any taller than the burned building. It will be taller, but the burned building occupied almost the entire lot. It was sidewalk on 4th Street to the sidewalk on Jefferson Street. I think there was approximately a three-foot kind of alleyway between it and the adjacent house, and it went back to a 20-foot backyard. So it had a 1,728-square-foot footprint, and our footprint will be two-thirds of that maybe. And the cubic volume in your building is less than the cubic volume that was in the burned building. That's the requirement that's been put on as best. So it's a smaller building volume-wise. The staff's condition would be that it be no greater. It would be equal to or smaller than 22,500 square feet, and that was the calculated volume of the nonconforming building that was there prior to it being demolished. So it's a less intense use in a smaller volume building. Yes, sir. Got it. I wish I'd said that. Thank you. Is there any other question for the afternoon or for staff? If not, the chair will entertain a motion. Mr. Chair, I move we approve solemnly Van Meter's appeal to change one legal nonconforming use to another legal nonconforming use in a light industrial zone at 372 Jefferson Street, based on the staff's recommendation and subject to the three conditions. Thank you, Mr. Griggs. Is there a second? Second. Thank you, Mr. Glover. All in favor say aye. Aye. Any opposed? Motion carries. Good luck, Mr. Ben-Meter. The next administrative appeal to review the denial of a permit, item 2013-61, Clayton Farmer. The applicant is here, and Ms. Farmer, if you could come up, state your name for the record, and we'll hear from staff. Please, please do. Thank you. I'm an architect, and I'm representing the owner of the properties today. There are three pieces of property on 3rd Street. It was purchased by the owner of the Carrick House, Mr. Lundrigan, and he purchased those properties for the purpose of improving the entire neighborhood for his main project. he has now spent several thousands of dollars on putting these pieces of property together and i think they're going to be a great improvement to to the third street area there are two pieces of property 155 and 159 that are identical in design and have been since the late 1800s. We were able to prove that 159 had an addition on the back that had collapsed and had to be demolished. We assume that 155 also once had the same addition because these are sister buildings, and there are several reasons why buildings become historical. Sometimes it's just as simple as someone slept there or someone had a meeting there. In this case, I'm contending that these pieces of property were originally designed and developed to be exactly alike for whatever purpose. It might have been for two brothers or two sisters or two families, but they wanted the buildings to be the same. So the intent of the design is as historical as the buildings themselves. And we have now been allowed to put, as the photographs will show, an addition on the back of 159, but we were denied on 155 because we couldn't prove absolutely that it had an addition at one time. The markings on the brick surface of 155 seem to indicate that there was a wall there at one time. But that's the only proof that we've got that something did exist. So we're asking to keep the buildings identical in nature. Each building has a little less than 900 square feet. And they will make nice residences. But we wanted to put a small sunroom on the back. If we put the sunroom on the back of 159, we will enlarge the footprint by approximately 80 square feet. It's not like we're adding a master bedroom suite or a kitchen or a family room. Our intent is to keep the buildings the same. Thank you, Mr. Farmer. Before I ask for the staff report, does anybody on the board have any questions for Mr. Farmer? Thank you, Mr. Farmer. Mr. Emmons? If you could turn to the back of your notebooks, the staff exhibits are on a white piece of paper, should be in the back. It starts off, I'll walk you through this fairly quickly, just also to frame the issue as quickly as I can. And 155 East 3rd Street is the property that's before you today. I am the staff member who reviewed and found that there was sufficient evidence to issue a zoning compliance permit for the addition on 159 East 3rd Street. On that one, there was photographic evidence of a larger addition on the back of the property that was larger than the addition that the Board of Architectural Review had approved. So those pictures were also taken within the last 12 months. So I had evidential proof on 159 that that building was bigger and that the addition that the applicants were putting back was smaller. This is important because on both 159 and 155 East 3rd Street, the use of those properties was proposed to be a residential use, and the properties are Zone B1, Neighborhood Business Zone, in addition to the historic overlay zoning that is on top of it. To work you through, for 155, the staff did not feel that we had enough proof to issue a zoning compliance permit to allow the addition, and I can walk you through our exhibits and explain why the staff made that decision, and ultimately that's the decision before the board today. Did the staff make the correct interpretation, or has the applicant made the correct interpretation? So, if you will, the first part is the appellant's request, where they are requesting, and Article 7-6E that allows this appeal to come before you today. And then after that, you can see the staff decision that is being appealed by the ARO is the email from me on June 28th that said that the building permit should not be issued for 155 East 3rd Street. And for the reasons, if you turn to the first bullet on Article 4, 4-3A, which is the first regulation for the regulation of nonconforming uses, it says that no nonconforming use shall be enlarged or extended. That section goes on to say that the building may not be altered in any way that would extend or enlarge either the scope or the area of operation of the nonconforming use. considering that the staff did not feel that there was enough evidence for us to issue a similar zoning compliance permit for 155, we relied upon a very strict interpretation of that section of the zoning ordinance. As far as looking in the record, there is very little written record for the property at 155 East 3rd Street. The only evidence that the staff could find was for a residential use, and you can see at the very last page there was a certificate of occupancy for a home office, which is an accessory used to a residential use. the staff did explain to the applicant that had they wished to put a conforming use, a use that's first allowed in a commercial use on the first floor, the addition would have been acceptable because it's the nonconforming use of the residential and the B1 zone that the staff felt that it made it difficult for us to issue a zoning compliance permit for the enlargement. If you have any questions for me, that essentially concludes the staff position. I realize that there is, the staff doesn't, I mean, this is our staff report on this appeal. Thank you, Mr. Emmons. Does the board have any questions for Mr. Emmons? So as I understand this correctly, they were identical when they were built. At some point in time, you know that an addition was added to 159. There's no evidence that there was one added to 155. and because it's being used for a non-conforming purpose, it can't be expanded. That is the staff position. But you also don't have any proof that there wasn't. No, sir, but also looking at non-conforming uses within the 12-month period, there was no evidence that kind of the tale of two properties. On 159, we knew that within the last 12 months, a bigger addition had existed on the property. 155 did not appear to have an addition for quite some time, at least longer than a 12-month period. It's the lack of information that the staff took a very strict interpretation of the zoning ordinance on. Thank you, Mr. Evans. Anybody have any? Mr. Griggs? I'm wondering if the Board of Architectural Review, have they approved adding this addition? Yes, sir, they have. I apologize if I didn't make that point clear. I didn't hear you. Thank you. Anybody else have any questions for Mr. Immons or Mr. Farmer? I'm just asking the Board if they had any questions for either one of you. You know, I don't know. this is just my personal opinion and i'm not an architect and and um i'm not an actually an expert in planning and zoning but i have to think that that um that the applicant's request is pretty reasonable i mean if we're doing it on 159 why not do it on 155 and and i don't think that it's out of character i i think that um i think that it actually improves the area um and i i i really I mean, I can see your approach there, your response there, Mr. Emmons, but I don't think what the applicant is asking is unreasonable, and quite frankly I think it would be a much nicer improvement than not. And again, having one on 159, and there's been really no proof that there wasn't one on 155, even though the records obviously are pretty old and not very clear. But I certainly, personally, I don't have a problem with the applicant's request. That's my personal opinion. Can I ask if our legal counsel has any comments or suggestions? It's really up to you on what you believe that you've been demonstrated today during the course of this hearing from either the applicant or the staff. It's the lack of information that's making it a little bit difficult. Would you be able to write findings of fact that would keep this from being precedent-setting? I would. I have them right here. And will this second edition mirror, will the two buildings look identical in the back when you're done? It will look exactly like that. And if you put a business in this building, you could do it without coming before us. Is that right? Yes, and that may well happen, but for the record. For me, if putting a business in this building would give you permission to do this, you wouldn't have to tear it down. There have been inquiries about it being used as a residence. We have had no, as far as I know, there's been no one that wants to rent it for a business. It's really only about 900 square feet. And even as a residence, that's pretty small. That's the reason we wanted to add the little sunroom on the back, just to give a sunroom and a patio to make it more attractive residentially. Thank you. As someone who's visually oriented, I appreciate the photographs. That always helps me get a sense for the applicant. Thank you. I'll offer my opinion. and I think that the idea of nonconforming uses is they should wither away, and so here if there's no evidence that there was a nonconforming use, the addition has not been on there for at least 12 months. If it ever was there, then I don't see any evidence that a nonconforming use could continue. It seems like it would be an expansion of a nonconforming use. And staff is, or Tracy, thank you for this. And we've got potential findings of the fact for the denial of the appeal, but also for the approval of the appeal. And it's really, it's up to the board as they wish. I would, I stated my facts earlier and I, or my opinions earlier about upholding the applicant's position. But again, as the chair, I don't think I usually make a motion. So I would ask the board what would be their pleasure. I think the applicant has demonstrated some reasonable testimony that says, you know, if there was evidence on the brick that there at some point was there. And I think that the enlargement is not great. It's a small, you know, I'm concerned about the president's setting as well, and I hope that we can cover ourselves with that by what the law department has written up. Let's do one more. When we got involved with these properties, they didn't look like the photographs I gave you today. All three of these buildings were in severe decay on all sides. Windows were broken out. Doors were boarded up. The addition on the back of 159 was nearly totally collapsed. And the previous owner of this property, he thought he might have some photographs that showed that the other building had an addition, but he could not locate them. But he told me and the contractor on the project that there was an addition at one time on the back of that some 25, 30 years ago. So that's the only evidence we had. But if you had seen these buildings before we started on them, I don't think you'd find many people that would have been willing to put the kind of money that Mr. Lundrigan has put into them to bring them back to a quality state. and he, for reasons of the design itself, wants to keep both buildings the same. And to be honest with you, they're going to look a little strange having one with an addition. And somewhere 30 years from now, somebody's going to say, well, if they did it to this one, why didn't they do it to that one? Thank you, Mr. Farmer. Does anybody have any other questions for staff or Mr. Immons or Mr. Farmer? If not, the Chair will entertain a motion. Mr. Chair, I move that we approve the appeal upholding the applicant's position on a 2013-61 Clayton Farmer's administrative appeal to review the denial of a permit to expand a nonconforming use in a neighborhood business historic district overlay zone at 155 East 3rd Street for the reason that the applicant has demonstrated that the proposed addition will not extend or enlarge the scope of the nonconforming use, thereby allowing the nonconforming residential use to enclose the small area as approved by the Board of Architectural Review. Thank you, Ms. Meyer. Is there a second? Second. Ms. White, seconds. All in favor, say aye. Aye. Any opposed? No. Ms. Moore, no. Motion carries. Good luck. I believe we've gotten through the agenda, with the exception of the two cases that had opposition. Brian and Angela Johnson, are they here? And there was opposition. Is the opposition here? Have you all had a chance to go out and iron out your differences? No, it doesn't appear to be. What I'd like to do is ask the applicant then to come forward and state their name for the record, please. Hi, my name is Angela Johnson. Thank you, Ms. Johnson. Ms. Johnson, you've asked for a variance to increase the allowable height of an accessory structure from 21 feet to 2110. Staff has recommended approval subject to two conditions, and you agree to abide by those conditions? Yes. Very good. I'd like to ask staff, Mr. Image, you have some things, and we're going to hear from the opposition in just a second. Yes, sir. The staff has received several letters that are all in opposition. I have some copies here. I will pass those out. Okay. Ms. Johnson, give us a couple minutes to take a look at these, if you would, please. Thank you. Thank you. I don't know. so Thank you. Thank you. I have a question for the applicant. Who was the contractor on this job? We are. You're the contractor. Building it ourselves. You've been building it yourselves. I mean, did you build the house as well? We contracted subcontractors, so yes. But you actually did the construction yourselves? Well, no, we didn't physically hammer. I mean, we were over there doing little things, but we hired framers and electricians. And for the garage. And for the garage as well, yes. we although my husband worked alongside for the garage it was a little bit different he physically didn't hammer nails and that sort of thing for the house for the garage he had lost his job previously before that or just a month before that so he said he was going to help build the garage himself so we hired a framer but he was in there with him doing a lot of the work himself as well. Well, we've got a letter or something that says that it's built as proposed. It was one way and then it was built to the side. So you've got a side yard issue now. Which I was unaware of that because when we applied for the variance, We actually hired an architect at this point to come and help us, because if we build the attachment to attach the garage to the house, which we still would like to do, we would like to put a breezeway to attach the garage to the house. Right now it seems to be up in the air whether we need to enclose the walls there and make that an attachment or if we can still just consider it a breezeway, which is what we originally would like to do. We went ahead and hired an architect at this point to help us apply for the variance as well as to design whatever attachment we go forth with. And she's the one that did our site plan and everything. So if it's different than what she has proposed and then what we thought we had built was accurate and eight feet setback, I didn't realize that it was inaccurate, and neither does she. Okay. Thank you. This is the first time I've seen this. I was unaware of that even being an issue until just a second. Thank you. Ms. Johnson, don't go far. Does anybody have any other questions for Ms. Johnson? Because if not, I'm going to hear from the opposition. We'll hear from the opposition. Staff, is there anything that you'd like to add beforehand? The staff does have a few photos of the property because of the way the sun was coming down. There are really only two photos to show the board today, but they are very indicative of the issue at hand. The picture that is on the board right now is a picture of the two-story garage at the end of the driveway. You can see the principal residence just to the right in the photograph. On the left-hand side of the photograph is a privacy fence that was put up by the adjoining property owner. with the fencing permit, and that is the property line. The next photograph is looking down that property line so that you can see the location of the garage in reference to the side yard. And then the final picture is from the back of the applicant's property, and there you can see the garage in the background. In the foreground is the rear of the principal structure, and you can see that there is a covered porch that goes in between them. This is looking down the line directly across from this, thank you, from the front wall of the garage perpendicular to the property line to show that the garage is actually indeed behind the house and not beside it. That's important. The staff did go into a review as there was some question about whether this garage needed a height variance and a side yard variance. The staff reviewed this in detail and found that at the closest point, the garage is about five feet from the subject property. The facts in the case is that if the garage were indeed between the house and the property line, an eight-foot side yard would be required because of the R1C zone. However, since the garage is behind the house, only in 18 inches, one and a half feet setback is required. The staff found that an additional variance to the side yard requirement is not required for this garage. We did address that in our staff report in detail. So I believe that the only request for you today is the request that was made by the applicant for the height of the garage. At the mid-gable, the maximum height of a detached garage can be 20 feet at the mid-gable. This particular garage measures 21 feet 10 inches at the mid-gable. The staff did recognize that the neighbor who had written the letter, that the site plan was drawn in correctly. The staff has recommended that should the board approve this today, that an amended site plan be submitted to the Division of Planning prior to issuing a zoning compliance permit and that an amended addendum to the building permit be issued for the existing building permit for this garage with the Division of Building Inspection. If you have any questions for the staff, we would be happy to go more into our staff recommendation or happy to answer any questions that come up during the course of your hearing. Thank you, Mr. Emens. Does the board have any questions for Mr. Emens? I'm looking at the site plan, and you're telling me that that garage is behind the principal structure, but there must be some averaging going on. It's not averaging. Gene, the site plan, if you'll give me just a moment, I can demonstrate for you to answer your question. Okay. Thank you. Thank you. property line where it's labeled eight foot tall wooden fencing it is closer to that it's about five feet at its closest but the question about is or is not the garage behind the house the area that's depicted in yellow and as we show on the as we're going to show on this photograph from the site visit, the area that's depicted in yellow is actually a covered porch. It's not actual floor area or enclosed space on that. So when you're looking at the site plan with the outline of the structure, it appears that that would have been a solid floor area wing of the house, but that's actually just a covered patio. Whenever you look at the floor area of the house and you measure the perpendicular from the property line, the garage is actually behind the house and therefore has a one and a half foot setback requirement. This is the standard way for lots that are not parallel to each other. This lot is actually a trapezoid. It's not a rectangle. and that is how the Division of Building Inspection has consistently measured whether things are behind the house. It's consistent with our zoning ordinance and consistent with the Kentucky Building Code. So the staff felt confident in our review that this accessory structure is indeed behind the principal residence on the lot, even though it's not shown as close to the property line as it exists. Thank you, Mr. Emmons. Also, the use of the second story, is that I was reading, they've said it's for storage? The applicant has said that it was for storage. Of course, with a second floor on a detached structure, the concerns are always about whether a business would be allowed or whether a dwelling unit would be put in there. During the staff site visit, the applicant did actually take me up into the unfinished structure, and I saw no indication that it was going to be used for anything other than that. I saw no plumbing, no kitchen. I didn't see any indication of any kind of dwelling unit or business use that would be going on in that space. Will it be heated and air-conditioned upstairs? That's a question for the applicant. I don't know the answer to them. Right now, we built the space just for storage, and we didn't know in the future what we were going to do with it. If we finish it in the future, my husband was going to put a workout room up there, and that's what he's using it for right now is one that's not heated in gold. any other questions for the applicant or for staff if not we'll hear from opposition would someone step forward and first in line state your name for the record sir my name is steven tyner wilson i'm here with my wife melanie we live at 243 shady lane should i give anyone over here a copy of the handout sure let them have a copy and give us a minute or two to take a look at this mr wilson if you would please Thank you. Thank you. Thank you. All right, Mr. Tanner Wilson, we'd like to hear from you. Well, I have a couple pictures, as you can see. The exhibit one is really the whole key to our frustration as neighbors is when we notified the city and the zoning with a personal visit and a sketch that nothing was done about it. And I think nine out of ten people at the time would have said, well, what a great time to fix the roof and fix the mid-gable situation. Well, here we are six months later, and spending all this time and energy trying to resolve something that could have been done a long time ago. I understand that's the way things happen sometimes, and I accept that, but I just wanted to point that out, that I did try. I tried my best. Exhibit 2 goes into this discussion about some of the language in the description that the appeal and that type of thing, that somehow that 247 Shady Lane is disadvantaged or is exceptional or different. It needs special favoritism because of its frontage. and I just wanted to indicate that it's 62.5 feet at 247 Shady Lane, which is pretty typical for all the neighbors all through there. So I just wanted to bring that up. I don't think any weight should be given to the special shape or size of the lot because the frontage is very common to the whole area. Exhibit 3 shows a printout from the property value administrator showing the frontage of 247 Shady Lane as being 62.5 feet. Exhibit 4, and this goes directly to my concern about rushing into judgment on this situation. In fact, I think the whole ruling should be postponed because there are at least three errors on this drawing that was submitted. The first one is, of course, the frontage, as I mentioned, that should be 62.5 feet, and it's shown as 53 feet. There's also an addition that was put on in 2011-12, I believe, in that vicinity, and it shows it crossing the side yard setback. And the question is, was a variance ever obtained for that? And then the third point is there's a second-floor deck that's going on the back of this two-story garage as an amendment or accessory to an accessory building, and that should be noted exactly its location and size and shape because I think that has a bearing on the actual usage of the lot. Does it encroach across the rear property line? It's not supposed to, so I think that's something that should be addressed too. So I think until these items are clarified, we really can't all make a proper judgment because to me it draws on the question, And, you know, is the 1 foot 10 inches measurement accurate? You know, I'm starting to question a lot of the process of why this site plan has so many inconsistencies as opposed to the reality. And then Exhibit 5 really goes to the heart of the matter in terms of our perspective as neighbors. In the text, in the submittal, it was asked, it was, I'll quote, it says, the additional height of 1 foot 10 inches will not have an adverse impact. And this picture shows, from our point of view, as the neighbors next door, at 10 a.m. you've got a 53-foot shadow because of the height of the building. It's not dawn, it's not daybreak, it's 10 a.m. And this is the kind of thing that we're trying to emotionally deal with with this particular edition. We understand that it's all allowable and permitted except for the height. But, you know, these kinds of things have an impact on anybody. And to say that there's no adverse effect, you know, we strongly disagree with. So I want to thank you all for your time. Thank you. Does anybody have any questions for Mr. Tyner Wilson? Staff, would you like to have anything to respond to that? I didn't hear anything during his report that I needed to rebut or respond to. I'll be happy to answer any particular questions that come up. Well, I have a question. Yes, sir. Is the encroachment of the 2011-2012 into the side yard, is that an averaging issue so that it's not in noncompliance? Bill is putting it back up. Yes. That appears to meet the rules and regulations that allow averaging, where you're allowed to protrude up to one half of the required side yard setback, as long as that same amount of square footage is behind the building setback. The staff's only caution is that knowing that we need to get a revised site plan on this one, that that would have to be looked at again with more accurate measurements. We had a case at 256 Shady Lane right across the street where a variance was requested and approved for a garage addition. It was at that very same thing. It was an angled type protrusion into the side yard easement. So why would this be an exception to that? Why wouldn't there be a formal review process to obtain a variance for this if they do it across the street? I am unaware of the case that you're talking about at 256. I did not review that particular case. all I know is that based off of the site plan that is before us today and the information that I have available to me, this appears that the averaging provisions in the zoning ordinance would apply and that a variance would not be necessary. I believe Bill is putting up those provisions. Thank you, Mr. Evans. Thank you, sir. We'd like to hear, does anybody else want to speak on behalf? To the opposition. Come forward and state your name for the record, please. My name is Melanie Tyner Wilson, and I'm Steve's wife and not an architect. Can you pull that microphone down just a little bit? Can you hear me now? Yeah, that's a little better. And I'm not an architect or a contractor. What I did want to talk about is that the impact of this structure in our neighborhood has been felt by many people. And from a precedent-setting issue, it is very disconcerting. The Johnsons are nice people. They're our neighbors. It's not our intention to have hostile relationships with them. But on the flip side, as a neighborhood, that's, I think, the reason why you've got such spirited responses from so many people and why we tried so aggressively, starting to call early, early in March to express concerns about what was going on because it would be a lasting impact that could possibly be repeated in several other homes throughout the street. Okay. Excuse me. Were the Johnsons notified that you all thought the building was too tall? When we— Okay, go ahead. Well, honestly, it's not our job to notify the neighbors that something's out of— I mean, we're not experts. we brought it to the attention of the experts, and we felt that's their duty to follow through on a situation like that. We didn't hear a word for six months until this letter came in about the variance request for an increase in height. I was just curious if you had talked with them about your concerns when it was under construction. Oh, yes. Yeah, I did. I made a trip myself with my sketch showing my dimensions that I found out, and my wife Melanie also made a separate trip. to talk about the same thing. Thank you. Did anybody else want to speak? Ma'am? Hi. My name is Andy Castro. I live at 254 Tahoma Road. I used to be on the neighborhood board, and I'm a former neighborhood president. and I'm here because a lot of people couldn't come at 1.30 on a Friday and it's very hard to fight these variants because you've got to show up and I do think it's important to come. I was a volunteer so I don't know that much about the process But I did read the variance application, and it said the applicant was not made aware or not giving access to the building code to which they were to comply. And it's, again, the Johnsons, very nice people, but they were negligent. And that's, you don't start building a structure of that size without making sure, without doing your research on, you know, if he's not an expert builder, then you have to do your homework. And my mother just lives on the same street and just built a deck, had a deck built three weeks ago, 10 by 10, very small. Her contractor came downtown three times for this small deck. and I told him about this and he said, you know, you need to stand up for people like me, for contractors like me who take the time and do their homework and not just, this is a very established neighborhood, and to put up something and say, well, we didn't know negligence or ignorance of the law is not an excuse. And I feel bad for them because I don't think they knew perhaps what they were doing, but that doesn't change the end product. And the end product affects us all. And, you know, if you pass this variance, you'll say, well, these rules don't apply. These rules are not important because you can do whatever you want. And if you say, well, I didn't know. It just doesn't work that way. And I have been involved in a lot of construction, and there's a lot to be done. And you have to follow the rules. and as I said I don't think they did it municiously but I do think it was well done and it was thoughtfully done and I'm not unsympathetic to the financial aspect but that's not an issue really because we should not the Wilson are going to sort of pay for their mistake for a very long time. They have to live next to it. It is not my direct, they're not a direct neighbor. We're five doors down. But there's a lot of houses that are similar in our neighborhood. This is a very nice loop of Lexington, backs up to the Arboretum. There's a lot of smaller houses that might get a turnover soon. And if we let people just put anything and say, well, they didn't know so it's okay, it would be really disastrous. So I thank you for your time. And I don't know if you have. Thank you, Ms. Castro. Mr. Griggs? I think I read in the staff report that if they connected this house to the garage with a covered walkway, then the height requirement is no longer scrutinized, and it's a legal structure at that point. So they wouldn't necessarily have to lower this roof to fix the problem. They could connect it to the house, and do you think that that's worth doing? Well, I mean, again, I'm not their neighbor. I do think we are as a neighborhood going to look at these requirements because I cannot tell you how many people from all over, not even that live close, live on Johnson, people who walk the Arboretum, go, what's up? It looks like a single-story home that popped out of a backyard. And to say, if that's true, we are going to look at it as a neighborhood and say we have got to do something to prevent these structures from being built. I don't disagree with you. I'm sorry that this situation exists. I think that's more of a question for the neighbors because the breezeway, if that's the case, that's the case. I can only complain about this particular structure at that height. Thank you. Thank you, Ms. Castro. Anyone else have any other questions for the applicant? Yes, sir. Excuse me. I just wanted to make a comment. I did struggle through the zoning ordinance, and I did see that the setback should be 8 feet if the garage is later attached to the main house, since the garage then becomes a principal structure. That's 8-7.I. So, again, I'm no expert on zoning, but it seemed pretty clear to me that you can't attach it and still keep 5 feet away from the property line. Is that true, Jimmy? That is true, but the section of the zoning ordinance that allows averaging, where the side yard is not parallel to the building, would allow the building to be as close as four feet as long as the overall structure averaged. Because the principal structure is so far away from that side property line, They've got the entire width of their driveway and everything like that. There is no doubt that mathematically if an addition to the house were proposed and a building permit could be issued to attach the detached garage to the house, if that were to occur, it would average. average. The applicants had actually met with the Division of Building Inspection and began applying for such an addition that would make the structure an attached garage rather than a detached garage. They did not complete that application process and instead chose to come to the Board of Adjustment and request the height variance that is before you today. So I do believe and the division of building inspection has looked at this also and they also believe that a an attachment could be made between the principal structure and the and the garage that would be compliant with the zoning ordinance the height would then raise from the mid gable at 20 feet at the mid gable to 35 feet at the mid gable as an allowable height in the zoning ordinance Does anybody else like to speak on behalf of the opposition? Ms. Johnson, Ms. Johnson, is there... Mr. Tyner Wilson, you're welcome to say something as long as it's not something that you've already said. Okay. We don't want to... All right. Well, I do apologize, but when I read that, it says when the sidewall of a building is not parallel, then you can average, but the garage is parallel to the... Thank you. Ms. Johnson? Would you mind putting the site plan back up, please? I just want to address a few issues, or the one, I'm sorry, that had the red circles around it, of concern. Now, I feel like I'm at a complete disadvantage here as a homeowner that really doesn't know a lot about this, and I'm really wishing that my architect had come with me today that did this, that could answer more questions on why the 62 1⁄2 feet is there and that sort of thing. The one thing that I can address is the circle where it is the corner of our house. We use the existing footprint. We went through great strides to try to maintain the original architecture of that house when all builders we had met with told us to tear it down. We were very sensitive to maintaining the architecture of the neighborhood, and we've tried very hard to do that. We used the footprint of there was an addition on the back of that house, and we just used that same footprint. We used the footers and everything that were originally there. So we didn't alter what was originally there, and that's where that corner originally laid. So if there is a problem there, it was there when we bought the house. And then the back porch of our garage is just going to be, I know there's a concern there, I see that red highlighted, there will no longer be a back porch. We pushed the garage back to make sure that it was behind the house, and when we did that we realized there's no space for a back patio, nor do we want one there now. We will, because there is doors, we have to put a railing across there. It will be attached to the back of the garage for safety reasons. but there will no longer be a back patio. So where the garage is now, there will be no extension beyond that with any kind of patio. I furthermore want to say, like I had said a second ago, I feel like I'm a little bit disadvantaged. I'm kind of coming in here honestly unaware of how many neighbors are opposed to this, so a little bit blindsided, as well as I was not aware of the tiners and how unhappy they were. And I let them know that out there just a second ago. I would like to do everything possible to make this right for them, although I feel like right now we're being made a precedence because there has been a lot of houses in the neighborhood that have been torn down and new houses put back with architecture that doesn't fit the neighborhood. There's been some variance requests that have been granted that a lot of people have disagreed with, and now all of a sudden I feel as though there's a lot of people that are showing their disinterest in this. and whether or not I agree or not, we're being made a precedence for this neighborhood. They want restrictions put up in place, and I agree with them on that. However, I feel as though we shouldn't be penalized for putting a precedence for the entire neighborhood because it's just going to cost us more money in either attaching this and heating and cooling this space or just putting a breezeway, which is what we would prefer to do. Thank you, Ms. Johnson. Does anybody have any questions for Ms. Johnson? Does staff have anything else? The staff does have just a few closing remarks. It was brought up in the question about whether the city notified the applicants. I interviewed the Division of Building Inspection quite extensively when this variance report came in. and it was not an easy report as you can tell from the length of it and the detail that we had to go into. It was not an easy report for the staff. But ultimately we did find that the Division of Building Inspection, once they were made, once they were aware that a height variance would be needed, they did require the applicant to stop working on the garage. They did allow the shingles to be completed to keep the structure dry, but there is a stop work order on that garage until such time as it complies with the zoning ordinance either by the board granting a variance or through some other mechanism. Also, in order to address the questions that came up about the accuracy of the site plan as it was submitted, As you know, and you've seen multiple site plans that are submitted with your application, most of them are not prepared. You know, most of them are not surveyed or anything like that. Most of them are hand-drawn. The staff always has to look at is it correct enough to evaluate the request as it's being requested. When the plan was originally submitted, the staff was unaware. It was only during our investigation that we found out that the garage was actually closer to the side lot line than it appears on here. In talking with the preparer of this particular site plan, they used aerial photographs and the GIS property line information. That's where they based their site plan off of. At the time they did it, they thought that was the best available data that they had available to them. When the staff looked at this and reviewed it in the field and realized that the side yard variance was not required, then it seemed the most appropriate action to, since that question of whether it did or did not need a side yard variance has been answered in the staff's mind, It did not seem like it was, it didn't necessitate postponing this application another month to get a revised site plan. We feel that we can recommend approval subject to an amended site plan being submitted to the staff that corrects, correctly shows these instances. because all of these measurements get down to almost the inches. We feel that in this case it is important, should the board approve it, to get amended site plans for the record that show the exact locations of these items. I believe that's it for the staff. If you have any questions for us, I'd be happy to try and answer them. Thank you, Mr. Emmons. Thank you, Ms. Johnson. This is a very, very sensitive and very difficult situation, I think, that the board is facing today. And I think that all the rules were not complied with, Ms. Johnson. I want to make that very clear. Certainly the height. I think that, you know, we have a lot of folks come before the board that say that they didn't know or they trusted their builder or their architect in this case. In this case, you all were the builders. But folks should know the rules and they should know the setbacks and the variances and so forth. Personally, I'm leaning toward endorsing the staff's recommendation, but I will tell you that I do have some problems with this, and I certainly understand the neighbor's concern here, and I certainly have empathy toward that. I'd be interested to see if any other board members have any other comments, any questions, any other concerns, and how you'd like to proceed. My concern is also with any time you build a structure, knowing what the rules and regulations are, saying I'm unaware. I just have a problem with that. I'm leaning more toward you should know before you do that. Plus, I thank Ms. Johnson. Let me know. I think you've purchased other homes and built some homes. I was reading a letter. You haven't done anything? Remodeled homes before? Okay. But have you ever had conversation with the building inspection, getting permits and things in the past? Small ones. Okay. That's all. Mr. Glover? Jimmy, are you telling us that you don't have accurate information, that your staff report is not correct with the information you have now? Is that what you were saying last? No, sir. I truly believe that every word that is written in the staff report is accurate. The inaccuracy that I was referring to is the applicant's submitted site plan. The garage is shown outside of the 8-foot side yard, and in reality it's about 5 feet from the side yard. So it's closer to the property line than it appears on the site plan. But you're saying that if it is an actual fact closer to the side yard property line, that it's okay if it's attached to the house. Is that correct? But where it is located, the proximity of the garage to the side yard is acceptable per the zoning ordinance, whether it is a detached garage or if they do the attachment to make it an attached garage because of the averaging. At its closest point, it's about five feet away from the property line. And what about the opposition's point that on the left side where the garage is, it appears to be parallel to the property line? It's true that the house itself is not parallel to the looking at it right side. So is it or is it not parallel? Technically, it's not parallel along its entirety. There is a little notch to it, and at one corner the garage measures about six feet from, close to six feet from the property line, and at another corner it measures about five feet. But that being aside, because the garage is behind the principal structure, the eight-foot side yard does not apply. The eight-foot side yard would only apply if the garage became an attached garage and a floor area was built between the two structures. In that case, you would look at the entire structure, and then it is clear that that entire wall is not parallel to the property line. So in either way you look at it, it does appear that it would meet the zoning ordinance. I've looked at that in great detail prior to writing this staff report. And so the only issue is the height of it, and if we denied the permit, I mean denied the variance, if they could either knock it down and make it shorter or do a breezeway? Yes. Putting a flat roof, taking off the existing gabled roof, putting on a flat roof appears to be one possible solution, or connecting the houses. Ms. Moore, I would just like to clarify. they would need to do more than a breezeway would have to be habitable space it'd have to be floor area thank you well we have a couple issues before us and uh and i i think the board is not is really is really having a tough time with this miss johnson And we normally, obviously, if we want to deny this, deny the approval, we would need, obviously, a legal opinion on that. But in asking the board, Mr. Griggs? If there's a motion for approval and it fails, what position does that put us in? I'll defer to Ms. Jones, but I would think the board may want to consider another motion and other findings, probably. If you have a motion for approval and it fails, it would be best to make a different motion to deny it and to have findings to support that. Thank you. As I understand it, the only thing that we're being requested to approve in this application or this appeal for a variance is the height from 20 feet to 2110. I mean, there's been a lot of talk about the property line and stuff like that, but the only thing that's before us in this is the height, is a variation to approve from an accessory structure from 20 feet, which sounds monstrous to begin with, to a slightly more monstrous 2110. Is that what I understand? That's what it looks like. You have correctly framed the issue. Is that total height or is that the midpoint on the gable? That's at the midpoint on the gable. However, this particular structure has a very low sloping roof anyway. We could put the picture back up. It's not much of a difference. So if they were to lower the roof and leave it pitched, they'd actually have to lower it almost four feet, the ridge, to get that average down two feet. The way that the ordinance works, and it is verbatim at the beginning of your staff report, the height of a detached accessory structure can be no higher than the principal structure or 20 feet at the mid-gable, which the 20 feet at the mid-gable is an absolute. So if you have less than 20 feet at the mid-gable, you can take your accessory structure up to the height of your principal structure at the peak of it, but in no case shall it extend beyond 20 feet at the mid-gable. And since that is the most restrictive portion of the zoning ordinance, and that's the one that the variance is to today, this structure does not appear to be physically taller than the principal structure. Thank you, Mr. Emmons. down to 20 feet, they'd have to bring the ridge down to 4 feet. Yeah, as I understand, the midpoint of the gable means the difference between the peak of the roof and the gutter area, is that right? So it's just a physical measurement. But to lower it... What we have here before us, it looks like, Ms. Jones, according to your counsel, we have this before us, as Mr. Glover alluded to. What's before us is the variance is to increase the allowable height of an accessory structure from 20 feet to 2110 at the mid-gable. That's the issue before us here. And if no one has any other questions of staff or the applicant or the opposition, according to previous experience, we ask for a motion. We ask for a motion to approve. If that fails, then we would have to have a motion to deny based on legal opinion. So with that said, I'd like to entertain a motion on the item before us, V201357, the variance to increase the allowable height. Is there a motion to approve? Well, it's not clear there will be a second, but I'll go ahead and move that in 2013-57, Brian and Angela Johnson's appeal for a variance to increase the allowable height of an accessory structure from 20 feet to 20 feet, 10 inches at the mid-gable in a single-family residential zone at 247 Shady Lane be approved for the reasons recommended by the staff and subject to the conditions recommended by the staff. There is a motion to approve by Ms. Moore. Is there a second? I'm going to second the motion basically on technical grounds. The way the application is written and the explanation by staff seems to go to the point of the application, so that's what my second is based We have a motion to approve by Ms. Moore. We have a second by Mr. Glover. I think you've got some split votes here. All in favor of passing the motion, would you raise your right hand, please? Those opposed? The motion is denied. Give us just a moment to clarify, and I think there will be another motion here in just a moment. Let's take a five-minute break, and we'll be back. Thank you. The End Thank you. Thank you for your patience. Well, obviously, the item 2013-57, Ryan and Angela Johnson, their appeal was denied for the variance. And I'd like to ask if the board, if anyone would like to make a motion. Mr. Chair, I'll move that we deny Brian and Angela Johnson's request for a variance to increase the allowable height of the accessory structure from 20 to 2110 at Mid-Gable in a single-family residential R1C zone at 247 Shady Lane. Based on the following findings of fact, The applicant was made aware by neighbors that height restriction was being exceeded and willfully continued the construction to cause the height to exceed the zoning regulations. And granting of the variance will cause an unreasonable circumvention of the ordinance and alter the essential character of the neighborhood because there are few, if any, detached garages greater than 20 feet in height in this neighborhood. Second. Mr. Griggs makes a motion. Mr. Glover, seconds. All in favor, say aye. Aye. Aye. Any opposed? Ms. Moore opposes. Well, obviously, I'll go to staff and ask staff, what would be some of the alternatives for the Johnson family to correct this situation? Well, certainly the staff will inform the Building Inspection Department of the Board's action. I think this has already been said through the course of your hearing. I think the appellants could lower the height of the structure. It also appears that there is a means by which it could be attached physically to the home with floor area to where it would comply with the ordinance. There may even be other options to the applicant that we're not aware of at this time. Very good. Thank you, Mr. Salee. that concludes this matter and Ms. Johnson, building inspection will talk to you about the alternatives and I'm sure that there will be some solution that will be derived and I thank everybody for their time and their patience for the applicant and for the opposition as well thank you and I hope all works out the last case that we have is Ryan Conboy and that is a one-year review of a conditional use permit. Is Mr. Convoy here? Very good. Mr. Chairman, I have several handouts on this particular case. Give us a minute, Mr. Convoy, and we'll take a look at those and we'll hear the staff's report. Thank you. Thank you. Just for the record, what I passed out to the board, I passed out a temporary certificate of occupancy, which has been obtained since the staff report was written, and I also passed out copies of two packets of letters, those that are in opposition and those that are in support of this applicant. All of these letters have been received since your previous hearing one year ago on this case. Thank you. State your name for the record. Hello, my name is Ryan Conboy. Very good. Mr. Conboy, I know that this is a one-year review of the conditional use permit for the animal crematory. the findings by staff. I'd like the staff, if they would please report on the findings after one year. Subsequent to the hearing one year ago, as you're aware, a lawsuit was filed on this case. As such, the one-year review was coming up, and the judge had ruled that this would also be a public hearing in addition to that. So the staff would like to point out that we did notify all of the property owners within the original notification area. We did put a sign on the property and also advertised today's hearing in the legal ad in the Herald Leader. In addition, we also made sure that we sent additional notices to the appellant, not to the appellant, but to the plaintiffs in that case. About one year ago, on September 28, 2012, the Board of Adjustment did recommend approval of the animal crematorium. Out of those conditions, there were six conditions, with the last one being the one-year review of this use. we were asked to look at each of the six conditions and look at findings on how each of the conditions were or were not being met. If the board would like me to, I can go through each of the six conditions in brief, or I can answer questions later. I think if you would go through them briefly. Yes, if you would, please. The first one would be that the animal crematory would be operated in accordance with the submitted site plan and application, a fairly common condition that the Board of Adjustment has. The Division of Planning Zoning Enforcement Section did make a site visit on September 20, 2013, and found that the operation at that time was consistent with the submitted application and site plan. So we found that they are in compliance with condition number one. Condition number two is that a zoning compliance permit shall be obtained from the Division of Planning and a certificate of occupancy from the Division of Building Inspection. At the time of writing the report, the Division of Planning has issued a temporary zoning compliance for the applicant that will expire today based off of the one-year review. and I passed out to you earlier, the applicant has gotten a temporary certificate of occupancy from the Division of Building Inspection. So we can now find in our staff report, we found that that number two was in substantial compliance. I believe that based off of the newly obtained temporary certificate of occupancy, we can say that number two is in complete compliance. of that section. The reason why both the zoning compliance and the certificate of occupancy are temporary is because the board has issued the one-year review of this use, and so we issued those as temporary permits, knowing that it will be up to the board on whether to allow this use to continue today or not. Condition number three was that the application The applicant shall comply with any applicable state and federal regulations regarding the operation of an animal crematory, including those for the transport of dead animals and air quality regulations. The applicant has supplied the Division of Planning, and all of this was in your notebook after the minutes. They submitted several items that indicate that they are actually operating in accordance with all of the required state regulations. During the staff review, the staff could not find any particular federal regulations that apply in this matter. It's still, you know, we can't. If there are federal regulations, he still has to apply for them. I'm just not an expert on those. All I could find were the state agencies that are mentioned. In particular, we've learned since your hearing one year ago that the Kentucky Department of Agriculture does license convoy enterprises under KRS Chapter 257.160, and that Convoy Enterprises does have a current license. We also found that they are inspected, and we've got a copy of the inspection report. The most recent report the applicant submitted to us, it was the third quarterly report, and you can see it's from the Office of State Veterinarian. and they had found no violations and found that it was in complete compliance with the state regulations. Going beyond that, you can see two items from the Kentucky Division of Air Quality. The first one stating that this incinerator did not have to be, I'm sorry, I want to make sure I get the wording correct. I put it in the staff report, that it is registered with the Division of Air Quality, but it does not require a permit to operate. And then a secondary report from the Department of Environmental Protection at the State Division of Air Quality stating that they did, and that one is from October 8, 2012, after the Board had approved it, They did go through and look at and found that it did comply with, the incinerator did comply with all of their regulations. They did recommend that a written operator's logbook should be kept for the incinerator. And after that report, you can see the applicant has submitted a 2012 and 2013 log. They are keeping the log for the incinerator use as recommended by the Division of Environmental Quality. And you can see that log starts on October 1, 2012, right after the Board's approval of this use. It notes how many animals were burned, whether it was a clean burn. He notes whether any maintenance and how much fuel that this uses. And you can see that that log continues into 2013, and it was submitted. The last entry was September 17th of this year when the applicant submitted it. Also, the staff finds that the applicant is in compliance with complying with the state and federal regulations condition. Finally, number four, that the farm road entrance to Greenwich Pike shall be modified within the next three months by adding asphalt, concrete, or a gravel pan or other similar paved condition approved by the Division of Traffic Engineering and the Kentucky Transportation Cabinet in order to prevent gravel from spilling onto the public road. The applicant is in substantial compliance with this condition. The entrance to the farm road onto Greenwich Pike is actually paved today, and although the black and white copy did not copy very well, they have submitted photographic evidence that it is paved, and the staff has been on site, both zoning enforcement and myself have been on site and can tell you that the farm road is paved out to Greenwich Pike. The staff says this is in substantial compliance because it was not done within the three-month time frame on that. The applicant has submitted that they made honest efforts to have it done within the three-month time frame to meet the board's condition of approval. They took several steps and made arrangements with the paving company to have that done. However, because of the pending lawsuit and the fact that either the lawsuit might jeopardize the conditional use, the applicant looked at trying to make a decision on whether to do that done, to get it done, and then the asphalt plants closed. So they are on the list. It is done today, and the staff can report that condition number four was substantially met. the essence of the condition was met, just not within the three-month time frame. Number five, would document state approval for the large animal crematory being operated at this location. The staff feels that that is met, and I went into that in detail and went through that with you in regard to condition number three. And finally, that this use shall be reviewed by the board 12 months after the approval date. and the staff, we've gone through that and I've documented in this supplemental staff report all of the measures that the staff took to ensure that this public hearing was notified. The staff is recommending findings that overall the applicant is in substantial compliance with the conditions required by the Board on September 28, 2012 and should the appellant continue operation of this conditional permit at this location, it would be subject to the standard annual zoning enforcement staff review. B says that the applicant has not completely complied with condition number two, but based off of the now submitted temporary certificate of occupancy, I believe that you can completely delete finding B because they have met that condition. And condition number four, what has been met, however, it was not met during the required time. And then finally, based on the logs and services being provided and the unpredictability of this particular use, we found that this over the past year has caused no harm or disturbance to the surrounding areas. The staff has not received any formal zoning complaints about this particular use in the years since it's been approved. The only thing that we have received were the opposition letters that were recently submitted for today's hearing that we've passed out to you. If you have any questions for the staff, the staff is recommending that this use continue on based off of the findings A, C, and D. Thank you, Mr. Emmons. Does anybody have any questions for Mr. Emmons? Mr. Conboy, would you like to make any comment? Any statement? Only unless you guys have any questions for me. I do have some of our neighbors here that are joining to us that were willing to speak if necessary, that approved our use and that are direct neighbors that board our property. But other than that, I appreciate you all's time. Very good, Mr. Convoy. Anybody have any questions for him? You could have a seat if you would, and we'd like to hear from the opposition. If you'd come up and state your name for the record, please. Thank you. May I ask you to chair? Good afternoon. My name is Hank Grady, and it's a pleasure to be back before the Board of Adjustments. Most of my visits with you have been pleasant experiences, and it's good to be back. I come to you as the attorney who did file suit against you for your decision a year ago to approve this facility. And I want to discuss a little bit about that suit, but more specifically, I want to make the specific request to you that we've not been able to work out by agreement with the applicant and the applicant's attorney. So I'm going to be talking about two pieces. One, frankly, that's not in front of you, but I need to say it on the record. and the second that is, I think, directly in front of you, and I believe that I will argue that you all have an obligation to consider some of the limitations on the scope and size of this operation that you failed to do when you granted the conditional use a year ago. Let me talk about what I think I need to say on the record, but which is not in front of you based upon the decision of Judge Goodwine. It is my opinion and my argument in the circuit court, and I have lost this argument in circuit court, that under the zoning ordinance that governs your activity, there is no authorization for an animal crematory in the agricultural district. If you read the text of the zoning ordinance that governs your decisions, it authorizes four types of burial, cemetery, crematorium, mausoleum, and another term that escapes me at the moment. And then it has the phrase, including an animal cemetery. So where, as a matter of law, there is an express reference to an animal cemetery and nothing else in your zoning ordinance, I believe the law requires that you should have turned it down a year ago because you have no authorization to grant an animal crematorium unless the words animal crematorium are found in your ordinance, and they are not. And that what you did in relying on staff's interpretation was essentially edit the ordinance illegally by adding words that are not in it. Now, my client, Mrs. Horn, is not a lawyer, and she did not know to raise that issue with you. But I am raising it. I will tell you that, as your attorney will tell you, I've argued this vigorously before Judge Goodwine, and she has ruled against me, and she has ruled that you are authorized, under your current wording, to allow an animal crematorium, even though that word is not found in your zoning ordinance together, and it is, from my opinion, omitted. Now, I've said that on the record, and that's all that I think I need to say about that, and I now want to talk about the areas where I'm asking for some relief. You have in front of you the letter that I wrote to Mr. Graves asking for the odor logs. When your staff, Mr. Edmonds, reports that the applicant is in substantial compliance, I think he is overstating the degree of compliance. Mr. Conboy was under an obligation to maintain a log of the animals that he cremated from the time he began operation. And he began operation two years before he came before you for a permit. He was operating for two years without a conditional use permit. But under the state instructions, two years before, he was told to maintain a log. And when they came back and looked at him last year, they noted that he had not kept a log as he was required to do. Now, as I understand it, the log arrived two weeks ago. And so I'm curious about when he started maintaining the log. Let me ask you to now, if you'll turn the page below my cover page, you'll see Mr. Graves' response to my request. And you'll see below that the odor log that I was provided yesterday. And I want you to look at the date 2012. And I'd like for you to look down that list. It seems kind of strange that horse, presumably it's a horse. The log doesn't tell us. We assume it's a horse. Horse number 8 was incinerated on 12-3-2013. Horse number 9 was incinerated on 12-18-2013. Horse number 10 was incinerated on 12-20. 2013, and fuel was purchased and the filter cleaned on 12, 2013. This looks a whole lot like something that has been put together very recently in order to try to come into compliance. It does not look like a record that has been maintained contemporaneously with the actual incineration. This looks very suspicious. Now, on the next page, you'll see a reference to a breakdown. and that may be worth further exploring, but I think it is not correct to say that this applicant is in substantial compliance. If he is in compliance, he's barely in compliance and only recently coming into compliance. Now, below that, I'm turning in now 34 names of people in the neighborhood including people in the residential community of Jimtown who have signed a petition in opposition to this application. And I'll turn the original in to staff, but you all have copies of the people that have signed this. The final items in my letter are some of the trucks that we have photographs of, and we would ask you to require the applicant to provide a photograph of the vehicles that he is going to be using. In my discussions with him a couple of minutes ago, I learned that the vehicle he's using is very similar to a horse trailer, but because this is located on a narrow Fayette County road and because of the risk of overloading the road with traffic that is not needed, we would ask that you require the applicant to provide an accurate photograph of the vehicle that he is using to transport the horses. If you'll turn back to my cover letter to Mr. Graves, the first thing that I asked for was the log that is required by the Kentucky Division of Air Quality, and therefore it's required by your conditional use permit. And as I understand it, it was submitted a week ago, and as I see it, it has some suspicious entries regarding the accuracy of the log. But moving past the log, I would ask that you include an express requirement that he provide an accurate log to you on at least an annual basis so that the public can know what the volume he is burning. And I would request that the log contain more entries than horse number 001. I think it would be helpful to include where did the horse come from? Is it Fayette County? Did it come from west of Kentucky? What is the area of service? And I think it should identify what animal is it. Is it a horse or some other animal? I think the log is something that I think the public is entitled to know about, and I think it's your obligation to ask him to provide you with the log so the public can know what's going on there. Let me try to summarize why I'm here and why I ask for these conditions. It is my belief that animal incineration should be considered an industrial activity and should not be located in a residential area or in an agricultural area that is also used for residential area. I think this is a dangerous precedent to put animal incineration in the agricultural zone anywhere it wants to go. I believe that that is the kind of commercial activity that this board has had to consider in other contexts, and it creates a precedent that I think the board should be worried about. Now, the remedy for an industrial activity that wants to locate in the rural sector of Fayette County, based upon my experience with what happens in the rural sector of Fayette County, and I have some experience in that area, is to limit the intensity of the activity. The way you bring an industrial activity or a commercial activity or an urban activity to a level of intensity that can fit in the agricultural sector of Fayette County is to reduce the intensity of the activity, reduce the risk that it will transform an area from agriculture to commercial. And that is why your conditions imposed a year ago were, I thought, legally inadequate, and that was the second part of my challenge. One was, is it lawful in the first place? The second part, did the board put adequate limits on the scope and intensity of this activity in order to make sure that it was compatible with an agricultural and a residential area? This is proximate to Jimtown, which is residential, and I think the Board has an obligation to put restrictions on the activity that may not put it out of business, but make sure that it does not convert this area from agriculture to commercial. I have asked for restrictions concerning hours of operation, concerning days of week, concerning rate of burn. And I have not been able to get an agreement from Mr. Graves and Mr. Convoy on those. We did talk. But I would ask that you impose hours of operation that the burning of an animal occur from 8 to 5, and they not burn animals after 5 o'clock when people come home and when there's an increased risk of exposure to odor or other nuisance. I would ask that the burning of animals occur during the weekdays, Monday through Friday, and not on weekends. I would ask that the conditional use permit set as a limit no more than one horse or the equivalent in terms of weight per day. He's burning one per week, so that limit does not inflict upon his activities. But right now there is no limit, and I think the Board has an obligation to the area and to the community at large with a conditional use permit application to recognize that a conditional use is a use that you may decide to allow, but if limits are not imposed upon it that are appropriate for the area, then it will destroy the integrity and the character of the area. So those limits, I believe, are missing, and those are the limits that I would ask you to impose. I am requested and authorized to say to you that I'm here on behalf of the Hacker family, the owners of the Hacker Farm across the road, and I want to read a message to you from Elvin Hacker, to whom it may concern. This writing is in objection to any conditional use permit which allows the cremation of dead animals in the vicinity of Jimtown community and their Hacker family farms, located on Greenwich Pike in Fayette County. I am a two-third owner of the Hacker family little farm at 6978 Greenwich Pike, and my farm faces Convoy's 701 Greenwich Pike Farm. I believe that there are serious health hazards in this type of business, large animal cremation, and I feel that this type of business should be conducted in non-populous areas. Such activity could pollute the air and underground water of the entire area. The property values of Jimtown and the general health of lessees of the Hacker family farms are also in danger. Sincerely, Elvin J. Hacker, dated September 26, 2013. If there are no questions, at this time I'd like to call Charlene Horn, another member of the Hacker family, to give her statement to you. Do you have any questions? Any questions for Mr. Grady? Can you come up, ma'am? Charlene? Please state your name for the record. Yes, sir. My name is Charlene. My maiden name is Hacker, and my last name is Horn. Ms. Horn, you have something to say? Yes, sir. I am owner of a farm. It's 82-plus acres at 6922 Greenwich Pike, and I'm one-third owner of the little farm that Mr. Grady just read my brother's statement. He's two-thirds, and I'm one-third owner of the Hacker Family Little Farm. So there's about 90 or so acres that my farms are being exposed to also. I have persevered through this last year where he got the conditional use permit in September of 2012. It's been the hardest year of my life. It's, you know, I did not, we just had, when I got the letter, it was probably September 5th of 2012. Well, I already had several weeks of work already on my desk that I needed to do, but I was trying to find out. This is a whole new subject area to me. I mean, I don't know how many of you all had animal incineration studies in high school, but I didn't. I'm told they don't even have that now in high schools. and, you know, I wanted, before I decided or made a statement to you all, I wanted to try to educate myself about it. So there weren't any forums or anything that was put out by the city that community farm owners could come to this forum and hear experts speak about large animal incineration. The EPA did not have any forms that the Greenwich and Ferguson and there's three other streets that we could go to to find out information. I did what I research I could on the Internet. I tried to use my common sense. I'm very familiar with the Greenwich Pike area. My father owned these two farms up until his death in 2000. And then my mother died in 2005, and after that we had an estate settlement. It took a year to do. And since then, I've been trying to pay off the big farm. And it's been difficult. I don't have to tell you, you know, the economy. And then when you try to pay off a farm that's worth a little bit over a million dollars, just the one farm, it's very difficult, especially when you become a senior. But I've tried to always be careful about money. I've always tried to budget, and I've always tried to live within my means. but it puts a hardship on you when you have to be involved in a lawsuit. Now, I did go to a lawyer last year, Mr. Prater, James Prater in Paris, before the September 28th session, and he was called away by a family member that was coming home from Afghanistan, and he had been over there and he was coming in. I understand it was going to be permanent, but they still have a process of coming back into the United States. And being a grandfather, and myself, I'm a grandmother, so I understood when he brought this up that he needed to go. And we'd had about three sessions together. But I did not have time between when I last spoke to him and before I came to see Mr. Grady to actually have a lawyer with me present last year. But I did try, and I am glad that Mr. Prater went to see his grandson actually arrive back into the United States. I mean, you can't, you know, I don't see how anybody could dispute his need to go and be there. There's so many things that come to mind. I'll try to be brief. What I want you to talk about is your discussions with the neighbors about the impacts. Yes. Well, when this first started, I immediately looked around my neighborhood. There's many more farms that's worth far more than mine. We're a diverse neighborhood. But one of the community centers that has always been fascinating to me, because I had history in social science in college, and I like people, and I'm interested in people, was the Gemtown community, and they're directly across the street from my farm. And so I thought about them first. But I actually had so much to do. It was a thought. Then I started looking around at papers that actually, you know, I'd gotten from you. I'd gotten information from the Internet. And I saw how diverse our community is. We have very, very rich farms. and yet we also have a community where we have, I think, maybe 22, 24 homes that are in a small area and they happen to be neighbors, next door neighbors to Mr. Conboy. Wonderful neighbors. I couldn't ask for better. And when I go around... Tell the board what you learned from the neighbors. Okay. Well, I learned a lot. I just wish. About Mr. Humboldt. Yeah. It depends on where I went. I heard all different things. I want to say, first of all, what I learned from my neighbors, not one person slammed the door in my face. And that's to their credit. We did have some lock gates I couldn't make access to. But in this day and age, when somebody will take the time to sit down and talk to you, one lady talked two hours, and that's not unusual. Other people I've talked to were like an hour, but they were all concerned. They did not, well, I could probably say 95%, just estimating, didn't know what Mr. Conboy was doing. I was able to get some pictures from the city, and I showed them. This is what an incinerator looks like. This is his setup. This is the freezer or cooler that he puts horses in. And so they begin to actually see. They don't get that from just a written paper. But it's like it's true that a picture's worth a thousand words. And so they could begin to visualize what was going on and where their home was in relation to where Mr. Convoy's farm was. Ms. Warren, did you circulate the petition? Excuse me for just a second, but we really need to stay on track here, and we're respectful for your story, but let's get to the specifics on what you're here for and how you would respond to the staff's report, and I'd like for you to be a little bit more direct in your opposition, please. ... petition, what people are clear, and on evidence of voters. Okay, I think Mr. Grady turned the petitions in. There was 35 of them. I think 34, 35. I think my brother made 35. Are you the one who circulated the petition? Yes, I did that. Well, overwhelmingly, the number of people I went to and talked, well, how do you feel about this? They said they didn't like it. Some had said that they were smelling odors. I think there was probably at least five of those people between last year and this year, even a little bit before last year, that meeting. So they were smelling odors. They were just concerned because they didn't know how all this was affecting their community with the EPA. I finally got to the point that I called the EPA. I asked for pamphlets with a toll-free number, and as I went to Holmes, I asked, do you want the toll-free number in case you do smell these odors? It was just overwhelming. Now, let me try to summarize. Did I accurately tell the board? Could you go to the mic, Mr. Grady, and we can hear you. Did I ask the board what you wanted me to ask the board on your behalf? If they don't close this down, they don't deny the approval, they should put the limits on it that we have requested. The only other limit that I did not mention is that we would ask that whatever action you take be for another one-year period and that we be in a position to review the operation next September. Thank you. Okay. Thank you. Are we finished? No, we're good. Yes. I would really plead with you not to give another year for conditional use. I just feel like it should be in the industrial zone. I just don't think it fits in with the agricultural community. One lady says, you know, that she can smell the owners from her home. And it's just not consistent with the agricultural nature of our community. Thank you, Ms. Warren. Does anybody have any questions for them? I'd like to ask if Mr. Convoy or his representative would like to respond. Your name, sir? Guy Graves. This is Mr. Convoy. If I might, maybe have the other individuals who've come to... Sure, we'd like to hear from you first, and then we'll hear from the others. I think the Board is aware that the only issue that's really before today is whether or not Mr. Convoy complied with the requirements that were implemented when the condition of use permit was approved last year, and we've heard from the staff, and they said yes. Then the only other issue before the board is in response to Judge Goodwine's request that the board consider whether or not any other parameters on the use of the property are appropriate in order for this board to make an annual review or the staff to make an annual review. You've heard Mr. Grady say that he has asked whether or not we could agree on any of those conditions, and we haven't agreed on conditions because we don't think they're appropriate or reasonable. Mr. Conboy is like any other farmer conducting his business operation on a regular and daily basis. The only difference between his farm and the other farm is he has a piece of equipment out there that has some statutory regulatory components to it, which have all been approved. He's in compliance. This piece of machinery is no bigger, not as large as a combine. The record shows that he's been operating for three years without any complaint concerning noise, odor, or any other noxious or harmful or nuisance-type effect. There's nothing in the record to suggest that any of that has transpired. and it's a 24-7 business to the extent that it needs to be. It's a service that's necessary and useful, the disposal of dead animals, particularly horses. Horses have a special place for a lot of owners. And so Mr. Grady has said that this is some sort of industrial purpose. Well, that issue is long gone. The board's already decided. Judge Goodwine has affirmed this board's decision that it's a proper use in an agricultural zone. Mr. Grady made some reference to intensity of operations and some risk. Are there any risk? I haven't heard what that is. He's talked about the trucks that are used. The trucks that Mr. Conboy uses to dispose of horses is a pickup truck and a two-horse trailer. That's the kind of vehicle that runs up and down the road in front of his property all day long. There's nothing unusual about that, so there's no need to put any sort of restriction on the type of truck that's used. There's no evidence that there's an improper use of vehicles. Why impose on Mr. Convoy a Monday-to-Friday operation or an 8-to-5? There's no rational basis for that. No other farmer conducts his operations based on those limitations, and that's exactly what Mr. Convoy should be compared to. There are no additional concerns or risk here with his operation that aren't prevalent in an ordinary farming operation. Mr. Convoy has no objection to keeping a more detailed log, I don't think, but there are some potential confidentiality and privacy issues. Maybe the board would like to have some questions as it relates to that. I don't think the petition that has been submitted on behalf of Ms. Horne is particularly relevant. It doesn't have any specifics about anything that would constitute an adverse effect on the public safety, health, and welfare. So I just don't see how that is germane to this board's consideration of whether or not traditional conditions or requirements need to be imposed. So with that, perhaps you have some questions, Mr. Conboy. Thank you. Mr. Griggs. I do have a question about this log. You label, give each animal a sequential number, and I'm assuming that there must be another log so that you can do your billing to the right. There is. It's all pulled out of our computer system, and it has owner's name, horse's name, their contact information, how much we charge them, and I just pulled out the necessary information that was required by the EPA and put that in a piece of paper that was presentable for your all's use. But you're keeping a log on a, each time you use the machine, the log is updated. It's not concocted months later. No, sir. Okay, thank you. You admission that there were a couple people that also wanted to speak, Mr. Griggs. Could we ask them to come up? Sure. Good afternoon. Good afternoon. My name is Peter Kerwin. I'm Ryan's neighbor. My house is closer to this incinerator than anybody's. Mine is about 200 feet. Ryan's house is further away. Jim's house is further away. and we're not adversely affected by anything that goes on there. Animals are a seven-day-a-week job. You know, they don't die on Friday. You know, they die Saturday, Sunday, whatever day they do, you know. And it's a service that's needed because people who like horses, they cremate them and keep them, you know. It's as a souvenir or whatever, you know. So it's a service that is needed. And horses, you know, there's a lot of horses born every year, so we have to get them picked up and taken care of. Very good. Thank you, Mr. Kerwin. Anybody have any questions? I have a question for you. Have you ever smelled any odors from his machine? Yes, there is some odors. Can you describe it to us? It's like when you burn hair, it's a slight odor like that. How strong? We don't smell it all the time. It's just when the wind blows from the north, it blows towards my house, and then I smell it. But otherwise, I don't. So are you south of him? Probably south, east. Yeah, probably west, east, southwest probably. So you're west of him, which means you'd be not in the direction of the prevailing wind. the wind would blow over you to him and then to his neighbors further east normally. When the wind comes from the north, you mean? I think the weather comes from the west. Well, yes, that's what I'm saying. Most of the time, when the west wind and south wind, I don't smell it at all. It's when the wind comes from the north, which is not very often, but that's the only time I smell it. I was just wondering if neighbors further around on the other side of him from you. Yeah, they're on the same side as me, basically. You mean Ms. Horn? Yeah, she'd be like I'm here, they're over there. So the south winds, when the south winds and west winds are going, they shouldn't smell it. I'm just wondering if you might not be getting the brunt of it, and the smell of burning hair is pretty distasteful. Yeah, but this machine is from here to the street from me, probably. I'm the closest one to it. I'm just trying to get it. Yeah, I know. Yeah, I understand. I'm just trying to give you a perspective, too. Thank you. Okay. Thank you, Mr. Crowe. Good afternoon. I'm Frank Penn. I live on 4741 Mount Horror, but I have a farm on Ferguson Road, 2330 Ferguson. I think you've got to look at this in a total perspective. Dead animals are an issue that traditional agriculture can't deal with anymore. Sinkholes are not appropriate places for dead animals. Shallow graves are not appropriate places for dead animals. So these animals have to be picked up. With the invention of cell phones, you can't even leave an animal laying out by the gate for the rendering truck to pick up because people call the Humane Society on you. So when this animal dies, somebody has to pick it up, and the sooner the better. So it's changed the whole way you deal with dead animals. We're a car's topography. We have tremendous water sources right beneath our land, and our sinkholes are not appropriate, and that is the customary burial thing from most every place else other than central Kentucky. Drag them up the sinkhole and cover them up a little bit of dirt. Universities come up with an operation where you put it on your farm with wood chips on a gravel bed And you actually do it that way, but you still got it on your farm You still got it water runoff. You still have all those issues that crematoriums don't have So yes, this is a different use for agriculture and you can debate whether it's industrial or not I think volume had something to do with it on my farm, I am south of where Mr. Convoys is. But I am below Gemtown. So I don't get much odor at all from it, if any. By the time it gets there, we just don't smell it. I don't live there, but it's a 200-acre tobacco, horse, grain operation. So I'm there quite a bit. So I'm here in support of this because I think hauling out of state to some landfill is absolutely divesting your county of what their responsibility is. And that's what's happening now that we cannot put them in dog food anymore because of the mad cow disease. You can't grind them up and put them in dog food anymore. So you've got to do something with them. It's expensive to cremate a horse, but you can't leave them out beside the road. The dog food company won't pick them up anymore, and you've got to do something with them, man, I think crematorium is the way it's going to go. And whether we want to advocate our responsibility in Fayette County or whether we want to take care of it is something you're all going to decide today. Thank you. Thank you, Mr. Penn. Anybody else from the applicant's side want to speak? Mr. Grady, is there anything that you'd like to add? I'm sorry, sir, if you raise your hand, would you come up to the microphone and state your name for the record, please? Yes, sir. My name is Jeremy Wiles. Sorry, I'm out of breath. I've been coming in from work. I live directly across the road from the Conboys. They're good neighbors, good people, do a good business. I ask that to the community. I'm in support of them. None of their activities bother me or my wife. Thank you. Nice short testimony. Mr. Grady, do you have anything that you'd like to say, anything in response? Just one second. The gentleman who just came up, can you come up one more second? Absolutely. So which direction do you live? My address is 7034 Greenwich, directly across the street. So you're south also? I don't think I'm south. I'd be, yeah, to the east. Okay, you're east. Their driveway is on the left side of the road. My driveway is on the right side of the road. Our driveways are 100 yards apart. His farm is on the west side of Greenwich, my farm is on the east side. Because we were talking earlier about the prevailing wind. The wind is from the west, blows across my farm. Okay. No issues. Thank you, sir. My only and final comment is you heard Mr. Penn say that this is needed, but I think you heard Mr. Penn say the issue of volume may be an issue that you should address. So I've asked you not to approve it, but if you're going to approve it, then I would ask that you put the limits on it that I think we're entitled to and that the community needs and that we've asked for in spite of Mr. Gray's. Mr. Gray, I didn't see what limits you were asking for. You said that he's only doing one a week now, actually less. So what would the limits be? No more than one animal per day. He's doing less than that. So a limit to one animal per day is one that he can meet. Hours of operation, eight to five, five days a week. Thank you. and review in one year. I did ask for a more detailed autolog that is submitted to you all and that the public have access to. But the limits that I'm asking for are hours of operation, days of week, volume, and a one-year review. I'm just curious, if those or some of those conditions were added, would that make this lawsuit go away? What I can tell you is that that's what I think the judge is looking for, and it may. That's a matter I will discuss with my client. I came here to ask for the limits that my client had authorized me to ask for. If we get those limits, that is one of the things that we think we're entitled to and that would satisfy one aspect of the case. I don't want to negotiate in open session. I need to talk to my client and report back to you. But it is what I've asked for in the lawsuit. And so if I get them, then I've accomplished the purpose of my lawsuit. I do believe that the board has an obligation to impose a limit concerning intensity, concerning volume, and not simply say there's only one facility out there. and only voting so fast so it limits itself. That is not the Board of Adjustments doing its job. I think the Board has to put a limit on volume and duration as part of what the Board is supposed to be doing for this community. I've asked for that. I think the judge is looking for that, and I think that's what, and that may in fact address. Mr. Brady, I don't remember from the case a year ago, but it may take a number of hours to get a machine up to temperature, to load the horse in, how long it takes to complete the process. Maybe a weekend comes to you and the horse has to be stored for three days because you can't get it accomplished between eight and five. There's all types of logistics that I can't speak to. I understand that, but he has a freezer inside the barn for the purpose of storing the horses and the dead animals until he can get them in the incinerator. So he has a facility to manage his operation in a way that reduces the potential impact on the neighbors. I appreciate that. Thank you, Mr. Grady. Ms. Jones, did you want to make a comment? You can go ahead and hear from Mr. Penn, and then I'll tell you what I was... Oh, Mr. Penn? Just so we're clear on this, when I said volume might be something you want to look at, I'm talking about other counties hauling their animals in here for Mr. Convo to incinerate. I'm not talking about what he picks up in the central Kentucky area. I'm talking as a neighbor now, not as a horse farmer. But as a neighbor, I wouldn't want to see a bunch of trucks running in here from other counties and other states to use his crematorium. I don't think Mr. Conboy intends to do that. That was my point. I didn't want Mr. Gray to take my testimony and turn it into I want to limit a day or an hour or whatever. What I don't want this to do is to turn it into a commercial operation where he incinerates animals from other parts or other states. I want to take care of Fayette County's animals. Thank you, Mr. Penn. May I respond? Quickly, Mr. Grady. I had asked for County of Origin to be on the log. Part of this is because in the materials in front of you last year, it appeared that Mr. Conboy was advertising to receive animals from 120 counties in Kentucky. He was describing his business as able to burn dead animals from across the state of Kentucky. That's not what Mr. Penn is talking about. And that's why we are concerned about his ambition and his intentions. If we could limit it to Fayette County and the adjoining counties, to me that is a wonderful limitation. Our concern was he advertised himself as 24-7 and servicing 120 counties in Kentucky, and that is what scared us. Thank you. Can I just do one comment? My recollection is we did clearly approve it based on the site plan and application. My recollection was that it had the one incinerator. he said it was only possible to burn one horse per day. So based on the application, he would have to come back here and ask for a second incinerator if he wanted to increase his business. So my recollection is we chose not to impose any conditions because they were inherently part of the site plan, the one incinerator. Ms. Moore, I would ask that you look at the documentation from the Division of Air Quality, which rates this facility at a much higher burn rate than one animal per day. And if it operates 24-7, then it does have a much greater capacity than that. That's why we are asking for limits on hours of operation and limits on animal units. his facility is incapable of burning much more than one animal per day based upon the specifics that he sent to the Division of Air Quality and what they have approved. Thank you, Mr. Grady. Mr. Graves, you wanted to make a statement? Real briefly, Mr. Convoy has no objection to limiting the number of one animal a day, which would by my count would be 365 a year uh as a practical matter the capacity of the of the one incinerator that he has couldn't do that um i i it um so that that that limitation it would not pose a problem i think what judge goodwine is looking for from this board is whether or not any additional um conditions are necessary in order for the staff to make a meaningful annual review and miss moore just made the appropriate comment that no additional conditions were imposed last year because of the site plan that was presented uh just the physical uh limitations of this equipment uh prevent this from being this large industrial operation that uh mr gratty makes reference to that doesn't exist there uh what might happen in the future is not before this board there will be an annual review by the staff if there have been material change in circumstances that will get reported and then this whole question will come back to you until then I think it would be appropriate and I would request that the board make findings that no additional limitations probably except perhaps limit to one animal a day would be appropriate and any more More than that would be, I think, an unreasonable and a warranted intrusion into the business operations, which this board doesn't do with respect to any other farmer. When the farmer might combine on the weekends, they don't combine between 8 and 5. Combines make a lot of noise and put out a lot of noise. I mean, odor and smoke and exhaust. I mean, these things have to have some kind of balance. And unless there's some harm that has occurred, some nuisance that's ongoing, none of which is present, additional conditions would not be appropriate. Thank you, Mr. Graves. Ms. Jones? I don't want to belabor you all having to hear from lawyers all day, but I did want to be clear on what Judge Goodwin ordered, because since it's been addressed here all the way around it, But as Mr. Grady said earlier, there was an argument about whether or not the ordinance gave you all the authority to even make a decision on this as a conditional use because specifically the argument was made by Mr. Grady and his client that because it didn't say an animal crematorium, that you didn't even have the authority to act on that as a conditional use. The judge has found that you do have the authority. She thinks the ordinance does permit that as a conditional use, which would be decided by U.S. So that's really off the table at this point. Earlier there was a statement made that additional conditions was what she was looking for. I did not interpret her ruling that way. The same arguments that you heard a lot today about conditions were made to her in our initial argument on the summary judgment motions. and what she said was, since everyone alluded to this upcoming hearing, and we just had this hearing maybe a week and a half or two weeks ago, that she thought that there would be information or things that might come up during the course of this hearing and she would like for it to be public that might address some of those issues. She did not in any way indicate to us specifically that she wanted you to make certain findings or find certain things one way or the other. She just wants you to support, in my opinion, and Mr. Graves and Mr. Grady may and will likely disagree, but I think she wants you to support whatever you do today with some kind of findings, which you've got plenty of information about what you've heard here today. So I just wanted to be clear about that, And I also wanted to be clear that this case is being reviewed because of the finding that the crematorium under the conditional use does cover this type of use. It's being reviewed as an agricultural conditional use. It's not an industrial zone, so I don't want you to get confused by that. People may have a different opinion about that, but that's what we're doing today. So I just wanted to be clear. Thank you, Ms. Jones. Mr. Emmons, did you want to say something? I do have a short staff rebuttal. And as the staff reviewing this, I'm not necessarily going to defend Mr. Convoy's operation. That's for Mr. Convoy to defend his own operation. But I will defend the staff's review of this operation. The indication that the staff is overstating the compliance whenever we said that it is in substantial compliance. The board placed six conditions on this applicant. They have completely met five of those six conditions. The last condition was met, just not within the three-month time frame that was specified, and that was because there were some extenuating circumstances. The staff does not feel like we are overstating our recommendation whenever we say that their use is in substantial compliance with the conditions that this board placed on them a year ago. Also, there was a lot of talk about the log and lots of confusion about the log. I am not an expert on the State Department environmental quality regulations, but in reading the inspector's report, they recommended that a written operator's logbook should be kept for the incinerator. The board did not require Mr. Conboy to keep a log. So questions about whether there is or isn't any discrepancies in the log. I think that the most important thing that the log does show is that the testimony that Mr. Conboy gave to you a year ago, the log that he submitted backs up that testimony about the number of animals, the type of fuel, the clean burn. And moreover, it gets to the heart of the matter where the Department of Environmental Protection Division of Air Quality made a recommendation, and he started following that recommendation as soon as they made it. The staff feels confident in our recommendation that the applicant is in substantial compliance with the conditions that you placed on him one year ago. If you have any questions for me, I'd be happy to try and answer them. Does anybody have anything else? What's before us here today is, as Mr. Hemmonds summed up, the one-year review of the conditional use permit, which obviously, in my opinion, they certainly do substantially meet that. Certainly the Energy and Environmental Cabinet, there's no violations. Judge Goodwine, I think that there's been a lot of opinions, legal opinions, and reporting that shows that Mr. Convoy has been in compliance and so forth. I'm not prepared, unless another member of the board is, to add additional conditions to this. We vetted this out. We studied it in depth. Our job here today, in my opinion, is to support the staff's recommendation of the one-year review. If any member of the board wants a review a year from now, that is up to the board members themselves. But to add conditions of an animal per day or put an eight to five five days a week, I think that that's a little unreasonable to request. And I'd like to add to that. You know, when we had this hearing a year ago, I think we made it pretty clear that if there were any problems with the burning or the smell or whatever other issues people might have with it, that they could be reported to the people at the city or be here at this hearing today. And we haven't had any complaints about the operation, and we don't have any people here talking about any issues with it. So that tells me something. I agree. There's been no formal complaints. Ms. Jones, do we or staff, do we need a motion to support your findings? I think that you do because we need to take something back to Judge Goodwin in terms of this is a little unusual in terms of an annual review. But we're trying to conduct an annual review and also comply with her order. And I think the staff's report and the findings that they made, if you adopt that in total, is probably adequate. But I think you do need to do something. Thanks, Ms. Jones. Well, with that said, Mr. Glover? I was going to ask the same question, what was we being asked to do? and I could probably craft some kind of a motion if it pleased the Chair, and it goes as follows. I move that with respect to C-2012-59 Ryan Convoy, in connection with the annual review that this Board adopt, first of all that the board find that it has conducted a public hearing in conjunction with that review and that we adopt the findings of the staff which are listed in the agenda and they include, I think, four separate findings. Thank you, Mr. Glover. Is there a second? Second. Second by Ms. Moore. All in favor say aye. Aye. Any opposed? Thank you. At this time, I'd like to ask, that concludes our meeting today, but I would like to ask if there's any items that any board member wishes to present at this time. I'd like to ask if there's anything from the staff, Mr. Salee, Mr. Emmons. Thank you, Mr. Chairman. Just a reminder for the board that another round of audio conferences will begin this fall. We do not yet have the schedule for those, but as soon as we get that, we'll forward that to the board members so that you can make a dent in your required training. Thank you. Thank you, Mr. Salee. I want to thank the staff and thank the folks for being here and thank the Board of Adjustment. We're adjourned. Thank you.