The ¶¶ ¶¶ A couple housekeeping items. if you have your cell phones on you, would you please turn them off? If you do have to take a phone call, please do it out in the lobby. I'd like to ask anyone who's going to speak today, if you'd please stand and raise your right hand. Do you agree to tell the truth and nothing but the truth? I do. Thank you very much. Before I read the agenda, I'm going to ask if there are any withdrawals or postponements. State your name for the record. Okay. Mr. Chairman, members of the board, I'm Mark McIntosh with HDR Engineering. On page three of today's agenda, under the Conditional Use Appeals No. 2, it's Conditional Use 2015-9 DMK Development, we request a one month postponement to the March 27th. Is there anyone in opposition to item 2015-9 DMK development? Very good. I'd like to ask if there is a motion to postpone for 30 days. So moved. Thank you, Ms. Moore. Is there a second? Second. Thank you, Ms. Meyer. You've got your 30 days. We'll see you in March. Thanks so much. Oh, I'm sorry. We should take a vote on that, shouldn't we? All in favor, signify by saying aye. Aye. Any opposed? Thank you. I want to go ahead and read the agenda, and we will hear those cases with no opposition first. And I would ask if there's any opposition to any of our cases today, if you all would stand outside and try to work things out before you come back in and your case is called. First case we've got is item V, 2015, Big Blue Rentals. Is the applicant here? Is there any opposition to, there is opposition, okay. The second item is item 2015-13, Melville Park. Is the applicant here? Very good. Is there any opposition? Okay. However, I know the staff is disapproving the first part of the height variant, So there is opposition from staff. So we'll hear that case. I have no objections. I'm sorry, sir. I know you don't have any, but staff does. So anything with any objection, we hear those cases a second. He doesn't object to their change. Oh, I'm. Excuse me, you're not in disagreement with their. I agree completely. Okay. Well, thank you. Item V, 2015-14, Hugh and Kim Bloomfield. Is the applicant here? Is there any opposition? Mr. Chairman, the staff will have some additional information that has come up recently on this application. We're not changing our recommendation of approval, but we will have a little bit of information to provide to the board. Okay. Just wanted to let you know. Thank you, Mr. Emmons. Lewis and Corey Davis, is the applicant here? Is there any opposition to item 2015-15? No opposition, okay. Lexington Universal Academy, 2015-8, is the applicant here? Lexington Universal Academy, are they represented? Have we heard anything from them that they would not be here today? I was in contact with their architect and contact person, Mr. Jack Stewart, and he did indicate that he would be here today. Perhaps we can wait until this comes up later on the agenda. We will do that, Mr. Evans. Thank you. Item 2015-10, Transylvania University. Is the applicant here? Very good. Is there any opposition? Okay. Thank you. Sine Tronics, Administrative Appeal, applicant is here and I know that the staff recommends disapproval so we will hear that later on. Very good. I'm sorry, Bluegrass Bayou Catering, the applicant is here. I know that there's going to be a staff report on that as well so we will hear that case in a little bit. I believe the first item with no opposition is Big Blue Reynolds. The applicant would they please come forward? Oh, I'm sorry, excuse me. There is opposition to Big Blue Reynolds. Melville Park. Would the applicant please come forward and state their name for the record? Hello, I'm John Withers. Hello, Mr. Withers. Mr. Withers, you've asked for appeal for a fence height variance from 4 feet to 6 feet. The staff has recommended disapproval on the height variance for the fence in the front yard, but they've recommended approval of the height variance on the side street. and they've got two conditions on the recommended for approval. Do you agree with those conditions? I agree with those. I'd like to ask the Board of Adjustment if they have any questions for the applicant. So you're not going to object to the recommendation of disapproval? You're willing to accept that? Right. We will reduce the height of the fence that runs between the two houses in the front if we can keep the height in the back so my great-granddaughter can play back there, who's about to turn two without anybody seeing her. Very good. Thank you, Mr. Withers. Is there a motion to approve? Mr. Chair, I move that V2015-13 Melville Parks LLC appeal for a fence height variance from four feet to six feet in the front and side street side yards in a planned neighborhood residential zone at 527 Wiley Street be disapproved with respect to the request for the front yard and approved with respect to the request for the side yard for the reasons recommended by the staff and subject to the two conditions recommended by the staff. Thank you, Ms. Moore. Is there a second? Second. Thank you, Mr. Glover. All in favor signify by saying aye. Aye. Any opposed? Thank you, Mr. Withers. I believe the next item with no opposition is item 2015-14 Hugh and Kim Bloomfield. State your name for the record. Hugh Bloomfield. Mr. Bloomfield, the staff has recommended approval of your request with three recommendations. Do you agree to abide by those recommendations? Yes. I'd like to ask the board if they have any questions for Mr. Bloomfield. Mr. Chair, I think the staff wanted to report on some new findings. During the drafting of the staff report, it was the staff's understanding that the eight parking spaces that are requested on the subject property would be three in the historic garage, three in the new garage, and two outdoor spaces. The staff has come to learn just recently that the existing historic garage, which we have up on pictometry, does accommodate four parking spaces, and the proposed garage will accommodate four spaces. with the additional two spaces outdoor. That would be a total of 10 spaces on the applicant's site plan. The request was to eight. The staff does recommend, still recommend approval of eight, whether those parking spaces are in a garage or out of a garage. in light of this new information and also speaking with the Division of Historic Preservation. When the Board of Architectural Review approved the new proposed garage, they also did so with a recommendation that the amount of paving in the property be tightened up, the staff reduced, and that the staff would recommend at this point that if this application wanted to go forward today to remove the area in pink on the, that's the two outside parking spaces. I believe except for, you know, the logic of the staff report recommending approval of eight parking spaces on this subject property is still valid logic. the staff would. There's also the technical issue of approving 10 today whenever notice went out for 8. The staff believes that there is a simple wording change that you could do to remove the area indicated, removing the outdoor parking. And if this is acceptable to the applicant, This would not prevent him from applying in the future to apply a new application to increase it later, but it would be more in line with what historic preservation has previously approved, and it would allow this to go forward today if he so chose to. At this point, that's the new information that I have to present. So, Mr. Chairman, to clarify, did you add a next recommendation to that approval? No, I believe that if all that you simply need to do to keep the wording simple is the first condition of approval is that the property shall be developed in accordance with the submitted application and site plan. If we put as amended and have it on the record that the area that we are showing with the outdoor parking spaces is to be removed, I believe that that would make this an approvable variance request today. if Mr. Bloomfield agreed. Mr. Bloomfield, do you agree? Yeah, I can do that. I can come back later and apply for those other two spots. Very good. Any questions? So he will agree to remove the two, going back to the original eight that we had approved or that you all had recommended from approval. Well, very good. If that's the case and all parties agree, I'd... But let me just make clear, we're not at this point saying that you would definitely get the two. Right. Okay. Very good. Anybody have any other questions, concerns? If not, the chair will entertain a motion. Mr. Chair, I move that V2015-14 Hugh and Kim Bloomfield's appeal for a variance to increase the maximum number of parking spaces from 2 to 8 for single-family residential use and to increase the acquired setback for detached accessory structure from 18 feet to 0 feet in order to align the new garage with an existing historic garage and a two-family residential use. residential R2 zone at 436 West 3rd Street be approved for the reasons recommended by the staff and subject to the two conditions recommended by the staff with the modification that are the three conditions recommended by the staff with the first condition being amended to say as amended after the words site plan at the end of the first condition. Is that correct Mr. Emmons? Yes. Very good. Thank you Ms. Moore. We've got a we've got a motion. Is there a second? I'll second. Mr. Mr. Griggs second. All in favor signify by saying aye. Aye. Any opposed? Good luck, Mr. Bloomfield. Thank you. I think the next case we have without opposition is Lewis and Cora. Mr. Chairman, I do have some handouts for you. Go ahead, Mr. Emmons. In fairness to the process, I do need to make a presentation on that. That will take a little bit of time even though we have no opposition because we differ with the staff recommendation a little bit. So I don't want you to think it's going to be a quick hearing. in fairness to the other people here, I'd be happy to go back now. But I don't want to get in front of your other people who can... Well, Mr. Murphy, with that situation, why don't we hold back this for a little bit, and we'll... We will continue. Well, since we have no other that... Since we have no other cases without opposition, We go back to Big Blue Rentals. Would the applicant please step forward? State your name for the record. Matt Jones. Mr. Jones. Mr. Jones, the staff has actually recommended approval subject to three conditions. Do you agree to abide by those conditions? Yes, sir. I know that we have some opposition to this, And I'd like to ask the opposition if they would come forward and state their name and their opposition to your case. If you could stand back, Mr. Jones, for a minute. Thank you. My name is Amy Clark and I live at 628 Castle Road. And we did speak out in the hall and Mr. Jones clarified that he's not that Big Blue Reynolds. So apparently there's, Big Blue is a familiar name of student rental in our neighborhood, and he's telling me he's a different company that has holdings. Well, he can tell you, but apparently he has holdings only in the hospital area. I do agree that the hospital is likely sooner rather than later to want to acquire this property, maybe not 30 years down the road as for some areas. What I want to say is you can't just take a residential property and pave your yard and hire it out for parking, public parking. I believe a residential property may not offer parking for pay. It's an accessory use for the people who reside in the dwellings. And could I have the first image? This image is a piece of the applicant's application. I don't know if you can read it. My eyesight's quite poor. I would draw your attention to the red bracket at the bottom where the applicant says, our current desire is to rent out parking spaces because UK does not have enough parking spaces for itself. These spaces are not for the apartments. And just above that in four, he says at the conclusion there, the highest and best short-term use is the needed parking of University of Kentucky students. And up at number two, the top one there, it concludes with parking is highly desired as a rental since UKY does not have enough parking. There is, in R3, as I understand it, and we can have the other slide, there is a provision for parking as a conditional use if you want to lease out a bunch of spots, and then I think it has to be to a neighboring P1 or B1 use, be use. And it has to be an adjacent zone, actually abutting. So what I would ask is that you not grant a variance that would enable circumvention or violation of the zoning ordinance in enabling a party with the express intent of parking all and sundry who don't live at the residence on that lot. This is, I would like to see this an object for zoning enforcement to really address. I'm aware that it's pretty difficult to address how is zoning enforcement going to go in the city and say this car lives here and this car doesn't. But one thing you can at least begin by doing is not making land use decisions that make that opportunity so easy. So beyond that, I can simply say that I live in the UK, larger UK area, and this paving of lots for parking, both for the parking of residents, but also for the parking of their friends and for pay parking, is, it's just pernicious. We have stormwater problems. We're just losing green space. It's just gobbled up. And as a matter of principle to uphold the zoning ordinance in this regard and not lose even another few square feet of grass that are going to be gobbled up by UK anyway, I think it's important to just stick to the rules here. I just don't think it's a good enough argument to say everybody else is doing it all around, and UK is going to eat us up in the end anyway. It's our quality of life as residents in the area. I think that's all I have to say. Does anybody have any questions for Ms. Clark? Any response, Ms. Remens, that this is in somehow violation of the ordinance? I would agree that you cannot in this zone you cannot rent out parking spaces individually I believe that that was overlooked in our staff report assumes that the requested additional parking spaces are for the apartments I believe that whenever I was reading this that there was what went through my head as the reviewer was that it would be a situation when you were renting your parking would you rented your apartment you either paid for renting a parking space also or not I do believe that we should get some clarification because a pay parking lot is not allowed in this zone miss Clark is correct and but I can tell you our staff recommendation of approval on the variance was in mind of that this parking would be accessory to the the apartment complex that is there and the only thing I would add is I believe there's actually a property at the corner of Woodland and Euclid that has a sign that offers pay parking and it's a multifamily residence I think it's a problem and I'd appreciate anything the Board of Adjustment can do to address it Thank you. Thank you, Ms. Clark. I'd like to have the applicant step forward. Mr. Jones, would you like to respond? Yeah, I guess. With respect to who's going to be using the spaces, it was about probably, I can't give you a certain breakdown, but it's mainly for paid parking, but also I've got residents there at Will. I've got a lot of foreign students that it's not just one person per apartment. Sometimes I'll have two people in there. And so it's, and I got people screaming for me all sides. I got faculty members at the pharmacy building, college of medicine folks. I got researchers in the pharmacy building just screaming, can you help us out? Can you give us a space? And I've got my students, my residents that live with me. Where are my friends going to park? I don't have any spots. What's going on? Just for example, when we had this great snow, I had many residents displaced because there wasn't any place to push the snow. So they can't get in their lots. It's just a big mess. So that's how it kind of all came about. There's a section there that I thought would be pretty good for extra parking spots. And UK's, like I said, I've been told within five or ten years, they're just going to say, okay, get lost. We want your land, and there you go. So we're trying to do it the right way with respect to stormwater. We're going to make sure that's where it needs to be, getting the right folks in there doing the job. And that was the whole initial. When I pointed to Jimmy early on, I said, hey, can we do this? Like, oh, wait a minute. It looks like a storm kind of basin or birdbath or what have you. So we had to address that, which I think we have sufficiently at this point. So I can see where she's coming from with respect to the paid parking in residential areas. I don't know how you police that, though. I mean, there's a lot of folks all around me that do that kind of thing. Sometimes it varies from year to year because some people may not have a car. And if they're not, then you've got people knocking on your door, hey, can I park over here, please? I mean, you know, we've got high-level folks over in these colleges. They're having a truck all the way from Commonwealth on a bus and zero-degree weather, and they would certainly appreciate this. I mean, if it's about quality of life, it's about quality of life for those folks, too. I had a guy the other day said, just can you put it? I mean, he worked at the College of Medicine. He was just begging me. He calls me every month, you know, so. So I think it's a good thing. Let me stop you there for a second. The issue is that some of these parking spaces are going to be for sale, and that is not allowed. Is that correct? That's what the staff has heard today. Certainly there's not an issue in renting some of these spaces to residents of the apartments. That probably is fairly common in the university area. I think the issue is that the ordinance does not allow the rentals, say, for faculty and staff at the university who are not living on this property. Given the discussion today, I might suggest that the board continue this case to your next meeting. That will allow us time to meet with the applicant, try and hone in on just how much parking is proposed for residents and how much is anticipated for non-residents, and then we can report back to the board at your next meeting. Sounds like a good idea to me, Mr. Salee, because I don't feel comfortable moving on with this case the way it is. I can't speak for the board. But Mr. Jones, would you be willing to have a continuance for 30 days? Sure, that's fine. Very good. Mr. Griggs? I'd also like to suggest that some of these problems that are apparently not worked out even still after a month's postponement last meeting with regard to engineering, traffic, solid waste, fire, there's really, I don't like approving a development plan that has all these unknowns remaining. And with all this time, we should be not rubber stamping something and putting the burden on these other groups. I think that they should get that worked out and then we'd approve a final plan. And in your statement saying that you want to know how many are rented by residents and how many are rented by outside residents, shouldn't that be based on the zoning? zero for non-residents? Right. That would be what the ordinance would allow is zero. Thank you. Is there a motion to continue? I would like to ask a question. How many apartments do you have at this location? In that building, that particular lot? 22. 22. Okay. Thank you. Mr. Chairman, I move we postpone it. Thank you, Mr. Glover. Do we have a second? I'm sorry. Continue the case. Continue. Started it. There's a motion to continue. Is there a second? Second. Thank you, Ms. Meyer. All in favor, sign five of saying aye. Aye. Aye. Any opposed? We'll see you in 30 days. The next case I'm going to call is Transylvania. Would the representative please step forward for Transylvania University? Good afternoon. I'm Chris Westover. I represent Transylvania University. We've read the staff report and we agree with the conditions. Earlier we went out in the hallway and spoke with a neighbor, and I believe we have addressed her concerns. Is that correct, ma'am? I believe so. You're fine with all that? Okay. Very good. That's democracy in action right there. We love to see when we have a little difference of opinion that we come to consensus and able to resolve these things. Well, as you said, Ms. Westover, staff has recommended approval. You've agreed to the five conditions. I'd like to ask the board if they have any questions for the applicant. If there's no questions for the applicant, the chair will entertain a motion. Mr. Chair, I move we approve C2015-10 Transylvania University's appeal for a conditional use permit to amend a previously approved site plan and a high-density apartment R4 zone at 331-333-345 North Broadway and 456 West 4th Street for the reasons recommended by staff and subject to the five conditions outlined by staff. Thank you, Ms. Meyer. Is there a second? I seconded. Thank you, Ms. Whitman. All in favor? We are signified by saying aye. Aye. Any opposed? Thank you, Ms. Westover. Thank you. I'd like to ask if we had a couple applicants that were not here. Lexington Universal Academy, have they shown up? They are not here. Can we call them or anything, Mr. Salee, to see if they're... We'll be glad to try, yes, sir. Because, all right, I appreciate that. Something that we might need to postpone. And also, the Iglesia Evangelica Christiana Spiritual Church, are they here? I'm going to say, the owner of the property, my daughter, we expected them to be here today. I don't know why they're not here. Sir, could you come up to the microphone and state your name for the record? Yes, my name is Grover Hibbard, and I'm the father of the owner of the property of 3696 Hurricane Hall Road. I've been in communication and discussion with the church, and it's their desire to purchase that based on the outcome of this hearing. I fully expected them to be here today. I've called the real estate agent, and he's trying to track them down. But that's all I can say right now. My daughter is at a bid opening. She's an architect. This is what we're going to do. We'll go ahead and give a few more minutes. We're going to go ahead and hear the other cases. And if they don't show up, we're going to ask you to ask for a postponement for 30 days. Okay. But we generally like for people when they say that they're going to be here to be here. I can agree with that. If you'll have a seat, we'll get to you shortly. Mr. Emmons, Mr. Salee, do we have to, I know that there's no opposition with Lewis and Corey Davis. I know that that's going to take a little while, but I believe we hear those before we hear the appeals. Is that correct? That would be fine. Do you have any materials to pass out? Yes, sir, I do. Okay. Mr. Chair, I'm going to recuse myself on this case. Very good. Thank you. Thank you, Mr. Griggs. We'll try to remember to come get you. I'll keep an eye on it. Mr. Griggs, I assume you signed your document. I don't forget. What's that? You signed your document. I'll take it with you. Okay. Make sure that our secretary gets that, if you would, please. We're just referring to the written disclosure of conflict of interest. Thank you, Mr. Moore. Mr. Murphy, would you step forward, please? Mr. Murphy, I know that staff has recommended approval subject to three conditions, but they also, I think, disagree with the glass enclosure. So I'd like to, before you begin, I'd like to ask Mr. Emmons if he'd like to make any comments. Thank you, sir. I'll be brief and get straight to the point. This particular property on Bruce Street was approved for dimensional variances, and in particular, one in particular was to a zero-foot front yard because this is a very small infill lot. As such, we could not find any way in which a proposed garage at that time would be able to meet the site distance requirements and the staff recommended and the board approved the requested variances with a condition that there be no parking on the subject property. The applicants have come back. It is a new owner of the property now. They have come back and they are proposing an architectural solution to the parking on the subject property. Their solution is a garage with glass that does not inhibit the site triangle. In short, the staff questions the functionality of this solution, realizing, and as we said at the first hearing, that there might be an architectural solution to the problem. The only architectural solution that the staff can see that would not be a glass garage would be an open parking area, We do recognize that in such a essentially a house on stilts or or an area on stilts over top of an open parking area. The staff does feel that that would be in a reasonable accommodation to allow parking on here. Still knowing that it would not be at the glass garage. In short, in questioning the functionality of approving the glass windows, they will be there once it gets built. Something as simple as putting up a curtain could be, would go, would negate the benefit that you would get with the glass. Or if stacking boxes up in front of it, things of that nature that would be difficult to do. And that's the essence of the staff recommendation. And so we are recommending an accommodation that would allow some parking on the property, just not as the applicant has proposed it. Thank you, Mr. Emmons. Mr. Murphy, I assume that you don't want a carport on stilts or a house two stories on stilts and want this enclosure. And we received something, a re-justification dated February 10th. So we'll let you have the floor. Do you have a couple handouts and something I'll show on the overhead. So I'll walk around and give you all the handouts. And most of my exhibits I'm going to put on the overhead is, I'm Dick Murphy, of course, representing the applicants, and with me today are Lewis and Carrie Davis on the second row, And John DeHart, their architect, is on the third row. Chaz Height, who's a professional planner, works with me, is on the third row as well. I want to emphasize that everybody on this side of your podium is different from what you had April. Ms. Whitman, I don't think you were here for the April hearing. You weren't on the board, but an applicant came to you in April with a proposal for the variances, which you all granted. I've read the minutes there was a lot of discussion about whether or not there should be a garage and reading the minutes as my clients did before when after they purchased the property there was discussion that if there it was the problem was the walls and the visibility so they felt that through creative design they could tackle that problem in a way which did not present a safety hazard to people in the area. That's why they engaged Mr. DeHart, who's a very creative architect here in Lexington who does residential work, and I think he's come up with a design that is both functional and safe and meets the objectives that everybody has. The issue is really whether this area would be open or whether it would have glass walls around it which would allow visibility. I want to give you a little more background on this. I do have some photographs. As I said, Mr. and Mrs. Davis bought this property in August, and they want to live downtown. Ms. Davis works downtown in Gratz Park, is familiar with the downtown area. As you all know, there are pluses and minuses living downtown. Right here is right near Rupp Arena, a major plus. It's near the Opera House. It's near the Civic Center and the Square. Minuses are groceries, general retail. You still have to have a car to get those things. And there are some negatives. Ms. Davis's brother lives a block away, and unfortunately his car has been broken into a number of times to the extent that when he parks now he just leaves his car unlocked so that there will not be damage made to the car. So she's aware of that as well and she's aware of issues in having unenclosed places where she works on Gratz Park that sometimes those attract people who may want to sleep overnight or do other things in the area. So they're very concerned about that. Coupled with the medical situation Ms. Davis has, we have a letter in the handout, which I think is on page 3, from her doctor, which details her arthritic situation in her legs, ankles, feet, and hands, which makes it difficult for her to walk long distances. That's why she initially didn't tell me about that and asked me to make the petition without that. Told me about it later, and she said I don't want to have special treatment because of that, but I had to tell her as her lawyer that she does have a right under the Fair Housing Amendments Act to request reasonable accommodations of local regulations so that she can enjoy a house to the same degree a person without her condition would enjoy the house. So I want to show you a few things about this. This is the Google Maps on it, and their property is located on Bruce Street. This is Bruce Street. Here is Short Street. This is the Opera House Square right here, and there's a big six or eight-foot-high brick wall going along the entire back of Opera House Square, so you can't get from here to Bruce Street. You have to come out to Short Street right here. The wall goes on up. Here is Harrison Elementary just to the north of us. Bruce Street goes up and tees into 2nd Street. This shows Jefferson Street coming off over here. And here's Harrison. What it doesn't show on Harrison is that Harrison Elementary, and I know there was concern about this at the last meeting because we're down the street from an elementary school. Harrison has an entrance on Jefferson Street. Ms. Davis checked with the people at Harrison Elementary, and this wasn't told to you at your last hearing. Their walkers come to the Jefferson Street entrance. There's an entrance off of Jefferson Street. There's crossing guards up there. They don't even have a crossing guard on Bruce Street because they don't have walkers coming on Bruce Street. The kids who walk to school, if there are any, come in on Jefferson Street. Another item is that kids don't walk to school anymore unaccompanied. I live across the street from an elementary school, which has the same architectural style as this, as a twin. It's Julius Marks Elementary. And from living there 27 years, kids don't walk unaccompanied to elementary school. They did when I was going to school. That was a few years ago, though. They don't now. What people do is the closest they get is if they're within 20 feet, they may let the child out if they can see the child into the school. If they walk half a block away, I can't tell you how many parents I've seen in pajamas getting out of the car, walking their kid up to the school. pajamas or sweats or whatever they have at 7.30 in the morning when the school starts. Kids don't walk unaccompanied to school anymore. But in this location, if they do, they come to the Jefferson Street entrance of Harrison Elementary, not the Bruce Street entrance. As I mentioned here, there's a big wall along this side, and you can't get, you can't walk from here to there. On the other hand, there's a sidewalk up there, so there's a fully protected sidewalk on on the other side of Bruce Street. If we can go to the next picture on here, just a little couple pictures of the area. I need to turn that around. This is our lot and the, yeah, if you can see, I want to show you a couple things. This sidewalk here, this is Bruce Street. This is our lot. It's bounded by a garage with no windows, six foot privacy fence, and this is a six foot privacy fence on this side, we have about a seven foot wide sidewalk, a very wide sidewalk which is actually wider than our neighbor's. This is about a two foot jut in that the neighbor has here so it's about a seven foot wide sidewalk right here. And the Harrison is up the street, you can see that's Harrison Elementary up there. And the, I want you to notice the garage there and this, this is a piece of a wood fence which you'll see in another picture. If you could go to the next picture, this is just another picture of our lot. I took that before there was snow on the ground. This is looking the other direction. You can see the privacy fence right here looking toward Short Street on there. And I'll notice this. I've got another picture of this gate. I'll show you in a minute here. I do want to show you this. That's a no parking sign. and there's no parking on our side of Bruce Street. It's a relatively narrow street, so there's no parking there. And if you could go to the next picture. This picture was taken about 10 a.m. on a weekday morning. I took it. Our property's right here, just off to the left. I took this to show you that Bruce Street is totally parked during the day when the schools open from 7.30 a.m. to when the teachers leave about 5.30. For other downtown parkers, there's no parking meters, so downtown workers can park there all day for free, which is great for downtown workers, but it's not great if you have a house right here and you need parking. So that's a typical situation. If you put up the next photograph, I just had the same view looking the other way back down to Short Street. It's parked all the way down to Short Street. That car parked on the other side shouldn't be there. That's my car. I had to hop out to take a picture because there was no place to park down there, so I was only there for one minute anyway. But the next photograph shows the garage to the north. There was some discussion of that at your last meeting. That's been there a while. It was recently remodeled. But my point is they back out. They don't have any window or anything right there. It's a safe situation. It works. If you can look at the next. Before you leave that slide, Dick, is that garage part of this property? No, no. That's a neighbor's garage. Our property line comes up to a couple feet away, this side of the garage. That's the neighbor's garage. That's the neighbor's garage. There's a house on the other side of that which that garage belongs to. If you can show the next one, this is looking the other way. This is the fence I told you about just to our south side. That fence was permitted in 2011 in building inspection, and we have no objection to that. It's a good parking arrangement. They have a space back there. but I want to point out that our proposal to you has much better, much better visibility than this right here because this is an opaque six-foot-tall privacy fence. And as I said, this fence was permitted in 2011. I think that's my last photograph. We have a solution we have. these are the same exhibits that Mr. Emmons passed out to you. We are proposing a situation, a solution, in which we have glass walls coming out. The one you had in April, your applicant came in and said he could meet the site triangle, but it apparently, from the minutes, it apparently depended upon backing into the garage at all times. And there was some discussion, I know, before you, about maybe some other solutions, but the applicant didn't want to budge on what they wanted to do. So we tried to come up with something that would solve that and this is the garage portion right here. This is, I asked John to give us a site triangle where the bumper crosses the garage door line when the garage is up. And this is the site triangle coming out. If we have a glass wall here and a glass wall here, that gives you a very good site triangle coming out and it goes on down further here, down Bruce Street, either way. Bearing in mind this is a very wide sidewalk, it's even two feet wider than our neighbor has it down here. And if you could go to the next one, The other car has a very good site triangle as well coming out here, again where the bumper crosses the garage door line coming out there and coming down this way. That's going to be the same site triangle whether we have a, whether we're open or closed. The question is, the concern I've heard, we've discussed this with the staff as well, what if you stack boxes up in front of it? What if you have your lawn mowers and weed eaters and that kind of stuff there? Or I heard what, and I understand, what if you have a curtain there today? Well, we won't be having lawn equipment there because there is no lawn. You can take a pair of scissors. That's your lawn care equipment, and you can do it faster than any of the rest of us can mow our lawn today. So there's not going to be lawn equipment. How about boxes, you know, stuff you accumulate? What John's design is going to be is that in this area here, there will be an enclosed storage area. So anything you want to store, boxes and the old table with three legs instead of four or whatever we put down and the places we want to store, would be stored inside here behind walls, not out in the garage, not blocking that glass window. What if you put curtains on it? That's a new one today. This will be the easiest condition to enforce of any you've imposed that I've heard of. If there's a problem, an inspector, all the inspector needs to do is drive down the street and look because it's a glass wall. You'll be able to see right in and see if the view is blocked, if there's curtains or boxes or anything like that that blocks it. They won't do it. They know better than that. I know the concern is what if they sell it. We can put deed restrictions on the property that they won't do it, but the ultimate thing is anybody can see if there's a violation without even getting out of a car. You can see whether there's a block of that glass wall here and the glass wall here. So it's very easy to enforce on there. We talked about that we could put a beeper on this door as well. I've seen a lot of those around where you have beepers where walls go up and down. We don't want to be a pest to neighbors. Chaz pointed out that you can put that on a timer so it beeps during the daylight and doesn't beep after dark so you don't bother your neighbors if they're trying to sleep. So that's a possibility as well. A couple of other things I wanted to point out to you in the Fair Housing Amendments Act. And like I said, Ms. Davis was very hesitant to raise this issue, but I think it's relevant on the fact that she cannot walk long distances and has trouble carrying things. And when you have a bit of a disability and an issue with your mobility, you get concerned about the time it takes you to get in and out of a car and that sort of thing and get your packages in and out of a car. Security is important everywhere you go, and it's important here. She does have a disability, as I pointed out, which is a disability recognized in the Fair Housing Amendments Act. And in that act, it says that local governments do have a responsibility to make reasonable accommodations to ordinances to accommodate people with disabilities so that they can enjoy their homes just as any other citizen can. And this will not cause an impact on the city because normally parking is required. It's population density will not be increased by this. There will be no burden imposed on the municipality because most houses do have off-street parking. We think that this accommodation for her is very reasonable in light of the lack of impact on others or upon the city in doing it. And I want to point out the comprehensive plan too, which is page one and two of my handout. I've put a number of excerpts there. I'm not going to put you to sleep by reading them all. But there's two main themes that jump out at you. And the things I put in bold are things I've emphasized. One is the need for infill, the need to encourage people to live downtown. And it uses the word encourage. It doesn't use the word let's let people live downtown. It uses the word encourage people. And the other thing is about accessibility. It talks about accessible housing and on the excerpt 9 I've put in there, it says that the plan states without question Lexington will strive to be a city that is accessible to all people in all areas of our community. While we achieve the standards set by federal regulations, such as the Americans with Disabilities Act and any other related regulations, we also value and intend to accommodate all of our citizens beyond what is required and set Lexington apart as one that welcomes all people to our city. And I just wanted to show you a couple other instances. If you could go to the other pictures, just we have a much safer traffic situation. And I got thinking about when I drive home from my parking place this afternoon, I park in a garage here downtown, the Financial Center garage, and many of you may be parking in a parking garage. That's the, I'll go, that's, there we go, that's where I wanted to be. This is the entrance out of the BB&T Bank building, the main entrance out of the parking garage on the Mill Street. I'm just pointing that out because there are walls on either side. There's no glass walls or openings for visibility whatsoever. Very high traffic. If you go to the next one, that's the, there's, there we go. Yeah, that's the main exit from the Kincade Towers parking garage. I parked there for two years when I worked in that building. That's the way you get out of the underground parking garage. And again, we have a much safer egress situation than that is. Next one is the federal government building down the street. They have a door there, same situation, walls, no visibility. And if you can go to the next picture, this is just a situation we have. This is where Bruce Street intersects Short Street. We have a building going up the zero lot line here, and you inch out and watch for traffic coming down Short Street and then looking the other way where the last picture is looking the other way where we intersect with Bruce Street and Short Street if there's one more picture under there. Okay, good. And I'm not pointing those out to say that those are bad situations because they're not. When we're downtown, downtown is designed that way. But my point is we are downtown. And we have a situation here which Mr. DeHart, I think, has addressed very creatively where you can have the visibility when you're backing out using glass walls to be able to see down the sidewalk. We have a very wide sidewalk. We have very low pedestrian use here. Even though we have an elementary school up the road, we have very low pedestrian use here. And we have a very low traffic street. And I think from what you're seeing, I think it's a very safe situation. I know their situation where they're the ones using their garage continuously and familiar with it. They're going to have a safer situation than I am this afternoon when I leave my parking garage, which has a wall looking right on the main street, very high traffic situation. So I think it's a very good solution. I think John has done an excellent job in trying to design for this situation so that we have something that's secure for the owners and safe for the people here in Lexington. And again, the visibility would be the same whether we're enclosed or not enclosed here, but it's a matter of having the additional, it's as much psychological security as anything in having an enclosure where you can put your cars and go and know that they've been in an enclosed situation before you leave for the street there. And I think our, this is an excellent solution, and we understand you've heard this before. We appreciate you very much hearing this again, But we do have a different design, very creative solution on this, which we think will work for this property and allow this couple to live here in downtown. And thank you very much. Really appreciate your hearing this. Thank you, Mr. Murphy. I'd like to ask if anybody has any questions for Mr. Murphy. Mr. Murphy, would you just clarify the diagram for me? You've got two vehicles parking, and what kind of width are we talking about? You know, that these are, you know, while there's no width, well, there is width, but there's a zero line. Yeah. A typical car, these are just sort of generic cars drawn in here. A typical parking space is 18 by 9, just for a parking space if you're doing a parking lot. This has 25 feet of depth there, so we have sufficient depth. This is, I think, a 24-foot width there, John? It's a 16-foot garage door, which is a typical width for a double garage door. on here a 16-foot garage door here to get in and out so that's the width right there and would you um you've just touched on it briefly you know the the staff has recommended an open and unclosed parking area and essentially a you know carport with the house on stilts and But could you talk about the opposition or the lack of desire to consider that, or has it been considered by your client? Yeah, and I don't know if you all want to comment or not, talking to the Davises, but I've talked to them about that. And part of this is familiarity with downtown. And like I said, Miss Davis has a brother living a block away who's had to resort to leaving his car unlocked. In an unenclosed area, that's the same thing. You know, parking on the street or parking in an unenclosed area off the street presents no deterrent to people who want to get in your car for whatever reason. Ms. Davis works at a house on Gratz Park and is familiar also with situations where there's unenclosed open parking areas. And I, as much as anybody, know that people have to sleep somewhere and we have homeless people in the city. But finding a more secluded open area to sleep in, she's encountered that a number of times at her employment. She's the only person who works in the house there and has to deal with that. and finding people who have slept overnight or relieved themselves in the open area is something which is not appealing and does not contribute to one's sense of security in your surroundings. So that's what's driving this. You know, on the flip side of that question, Ms. Meyer, I'd like to ask staff and Mr. Emmons, why you're opposed to the glass enclosure? Staff is concerned about the long-term. Once it's built, it's built, and we just see that there could be too many possible ways that it could be obstructed by the actions of, if not these applicants, future owners. And that's our primary concern. When we were looking at this one, we had two very high standards, the site triangle and the safety of the pedestrians on the sidewalk and the reasonable accommodation for parking under the Fair Housing Act. Those are two very high standards. What we've attempted to do is we've looked at that. In order, we had the one concern about the long-term solution of the glass garage, and so we came up with the alternative solution of an open and unenclosed carport area. No matter what, we do recognize that the corner of the structure will likely to have to have a structural post. That's not a single post holding up the structure, whether it's in a glass garage or in an open and unenclosed area. We don't see that as a major obstruction in the site triangle. But that was the staff recommendation is our attempt to balance both of those very high goals of safety and reasonable accommodation. the staff definitely applauds the applicant and Mr. DeHart on coming up with the solution of a glass garage we're not arguing that that's an innovative solution it definitely is we're also not even arguing that the site triangles that they provided they appear obviously prior to a building permit we would need to have traffic engineering sign off on the exact nature of those but they appear to meet the site triangles too. So we are down to open and unenclosed or a glass wall. Should you choose to go with the applicant's recommendation, he has presented in his justification the conditions that they wish to have. If you choose to go with the staff recommendation, that's listed in your staff report and on the agenda. So, can I ask? Ms. Bessmore. Mr. Evans, I have a question. For the ADA accommodation, would it be possible to accommodate simply by providing a handicapped parking spot across the street? I mean, I know that wouldn't address the safety concerns, but it's my understanding. I know in the past, people have gotten designated handicapped spots by their house. The one thing that you can do, well, I ought to let traffic engineering answer that one. I think I know the answer, but I ought to let Casey answer it. You can apply for a handicapped parking space adjacent to your house. It's usually granted. We just require a doctor's note. It is a handicapped spot in the right-of-way. So it's not the property owner's parking spot. It is a handicapped spot in front of your house. So if somebody else was to park in it with a handicap tag, that is not something that's illegal, I guess, is the only thing I'd want to clarify there. Thank you. Have there been other thoughts about how you could secure the property and have an open garage? Have there been discussions? I know that there's a lot of broad iron fencing in the area. Well, the other discussion has been along the lines of having it open with like a chain link fence around it or something like that, which would secure it. But again, I'm not sure that's what you want downtown architecturally. the visual situation of this with the surrounding houses, that if we have some kind of fence there, it's going to, we think, detract from the neighborhood on this and will not be architecturally contributing to it. Again, on the handicapped spot on the street, we understand that, but with the school down the street and the number of staff they have, I would wager that you have probably two or three people who qualify for handicap tags working at the school who would be eligible to use that same handicap parking space. I was talking to Ms. Davis in the interim for a moment, and she works at the Bodley Bullock House, and we're thinking of what impact our request has on the city, and the impact on the city for having something open, what happens when she finds somebody? She calls the police. The police come and take a person away, and that happens fairly often. I think that's a call to the city. It's not a call to the division of planning, but it's a call to the city and an expenditure of city resources. We think that, yes, if you have a condition that we have an unobstructed view, perhaps that could result, it would not result with them, but it would be a condition that would go with the house. An inspector would have to go drive by and look every once in a while. But I think even when you compare, not looking at their side of it, but the city's side of it, The burden on the city is much less in having the glass enclosed area than it would be having an open area here. Mr. Murphy, I've got a couple things for you. You had mentioned that the door would have a beeper on it. We could if you all felt you wanted to. What about some type of a convex mirror or something like that? because I think that that could be a condition if the board decided to go forward. I just have a couple thoughts. And number one, I think that first of all, I think it's extremely creative, and it's nice to see innovative things happening downtown, such as Mr. DeHart has drawn. And to me, it would be much safer to have an enclosure, a glass enclosure, than it would be an open air. And I'm just thinking I would certainly feel much safer, and I think it would also look much better to have an enclosed glass enclosure than it would be to have a house on stilts and an open air carport. I think that that would detract a little bit. I think sometimes you have to do things out of the box and do things creatively, And I'm not opposed to going forward with the glass enclosure. I think it would look nicer. I think it would be safer. I think that it is really not that much different from the staff's recommendation. As a matter of fact, in my personal opinion, and I'm certainly not speaking for the board, but I think that there might be some conditions that could ensure. And the convex mirror has come up in conversation, and I just wanted to see if things like that could be considered. My clients were nodding their head yes when you said about the mirror, yes. Ms. Whitman? I agree with you almost word for word. I was sitting here thinking that thinking about the aesthetic look of it I think would be much nicer than having the open space, and I do think the open space is very conducive for people who need a home, and we do have them. We don't like to admit it sometimes, but we sure do. And they look for places like that and the open air. And I think I'm just sitting here kind of marveling at somebody thinking of putting the glass in and having the triangle the way it is. And I think you could have a deed restriction that might take care of some of the concerns that we have. and hopefully our closing attorneys point that out to the new owners that there is that restriction on the property. But I think it's a very clever design, and I think it would be much more pleasing than the open stilts concept. Does anybody else? Ms. Glover. Is there anything you can do to make this lot bigger? This is awfully small. This is such a small lot. I thought there were some kind of minimum standards. I see the ordinance 8.12, print 0, print 4, print D, has what I presume are minimum lot sizes in residential areas. And, of course, this lot doesn't meet those minimum requirements. So how do you – and have we addressed that in previous requests? I'm just concerned about how small this lot is for new construction. And I suppose that the way of accommodating a small footprint is to build it higher. So I'm assuming there's going to be three stories at least in this particular – on this particular spot. With today's application, we didn't go over much of the history from the original report, but this is a very small lot. It's about 60 feet wide and about 30 feet deep. It's pretty obvious when you look at the overall area map that it was, at once upon a time, the backyard of the lot up on the corner. It's almost a remnant. It is a legal, non-conforming lot. It was obviously created before our zoning ordinance said it could not be created. It was the extremely small size and the existing use of the property that led the staff to recommend approval of the original variances on the subject property. There was a duplex on this property that was very nearly built from property line to property line all the way around. It did not have any parking. So you had two dwelling units with no parking, essentially built from property line to property line on this entire lot. When the applicant changed from a duplex to a single-family use, that was a change in use, which kicked in meeting the setback regulations. They also wanted to have a building that was volumetrically bigger than the duplex that was on the subject property. And it is the extremely small size and existing nonconformity of this lot that led the staff to recommend approval of this in the first place. At that time, our one and only objection was the parking spaces, and that's still coming back before you today. The other, the other, my only other comment really is that I'm familiar with the financial center parking and the other parking, commercial parking examples that you showed. But, of course, in those examples, you're going to drive in, park, turn around, and nose out. You're not going to be backing out onto Main Street from the financial center or any of the other places. And so the concern I understand primarily about the site triangle is backing out onto Bruce Street. And so that's the, I think that was our concern the first time we, this property came before us in my recollection. I don't think it's the, to me that's not the major concern. I mean there are other concerns but I agree that it's a creative design and I don't have strong objections to it thank you mr. Glover anyone else miss by can this board put a condition that a deed restriction be put in that because I think the staff's point is well taken about you know once once this house sells to a different party. No, we really shouldn't be venturing into private deed restrictions. You know, it's up to them if they voluntarily want to do that, but I don't think you'd want to make that a condition. We can assure you we will do that whether you make it a condition or not. We will put a deed restriction on this property. Thank you, Mr. Murphy. Anybody have any other comments, questions for the applicant or staff? Well, as we go forward, it seems to be like there may be some, a couple of us I know are not in opposition of this new created design. and I'd like to be able to move forward, but to do that, we would need a motion and a second and obviously a majority of approval. I believe if we have a tie vote, Mr. Emmons, the motion is defeated if we actually vote to support the applicant. And also, looking at the findings, and I'd like to ask Ms. Jones, Mr. Murphy has proposed findings for approving the garage. And have you had a chance to take a look at those? Are those acceptable? And do there need to be any other condition? We talked about a convex mirror possibly. I don't know if we can put in as part of the motion or, as Ms. Jones has used to say, that we really have no jurisdiction over a deed restriction, although Mr. Murphy has indicated that they would include that, and I don't know how we would verify that to make sure that that condition would be, well, it wouldn't be a condition. So as we go forward. And also a beeper. I beg your pardon? The beeper. And the beeper also. You had mentioned the beeper. So I think that if we could add a condition to include the convex mirror and the beeper with the door, Mr. Marks, you're looking kind of skeptical. I know that's kind of a little bit different. I know that this is a very creative design and kind of a little different from the norm, from what we normally review. Can I comment on that? I mean, the idea of a convex mirror and a beeper and all are to solve a problem with backing out of the garage. Correct. And I think if we satisfy the site triangle, then we've done that. And while it may be nice to have a convex mirror, even though they're ugly as sin, and a beeper, even though the neighbors might object at 6 o'clock in the morning when you open the door, those are things that I suggest we leave to the property owner to do in their practical approach to building the structure. So that's just my suggestion. Very good, Mr. Glover. Well, I think that we're – does anyone have anything else to say before we move forward? I have a question of staff. It says the number one conditions mentions a modified site plan. Is that which modification is that? Is that the one that came with our package, or is that the I just need some clarification about that? Let me make sure I've got the correct answer for you before. Sir, the reason why it says a modified site plan is because their site plan as submitted had the glass garage, and the staff is recommending the open and unenclosed. So that's the amendment to the site plan that the staff was referring to. So the staff recommendation is to the open garage, and that's what you mean by modified? Yes, because the... And so if we approve the glass wall proposal by applicant, we would have to approve some other language than is in the staff report. Is that right? I believe you. I think you could just delete the words unmodified and just the application and site plan. Delete in the language on the second line. The ordinary language would be developed in accordance with submitted application and site plan. Okay. Let me suggest if that's the direction you're thinking of going. Mr. Murphy's findings are okay with me, but it might be more simple to do what Mr. Salee just suggested on the conditions to make number one read that the property should be developed in accordance with the submitted application and site plan. And then I think you would also have to address number three, you know, where the underlining starts and say unless such parking area is designed in such a way that it does not interfere with the site triangles of park vehicles. And that would delete the unenclosed space portion, if that makes sense. It might even be even simpler to just simply delete condition number three in totality. Well, yeah, because you have the site plan. Yes, because it would have the site plan. Yeah, that might be easy. So that would be the, from a wordsmithing standpoint, the easiest modification would be to remove the words and a modified, so it would be the submitted application and site plan, and then delete condition number three that was previously placed on the subject property. That's a lot of additions and deletions. Can we have somebody, Ms. Jones, can you, because I think that we might want to move forward. and I'd like to get language clarification and what would be deleted and what would be added from... I think I understand it. There's really no added language. You're just going to, on the three conditions, you're going to delete number three, and from condition number one, you're going to strike A-modified. and then would we would we then include mr. Murphy's item one and two as proposed action for finding for approving a graduate I don't think you need to but if you use everything else that the staff so we would be talking about deleting number three we're talking about about changing condition number one, taking out modified. Mr. Glover, does that look correct to you? Yes. Mr. Murphy? yes we agree with it the way it's up on the board that also on one you take out that removes the proposed garage on there that has shown on the on the overhead there Is that Ms. Jones? If your intention is going to be to approve this, I think that that language with the deletions shown in red is acceptable. I beg your pardon? If your all's intent is to approve this, as we've discussed today, I think that what has been deleted that's shown marked through in red up there is acceptable. Is acceptable. Okay. Well, I think we've heard, asked many questions, heard from staff and board and certainly the applicant. As we move forward, is there a motion? Mr. Glover. Mr. Chairman, I move that we approve V. 2015-15. Lewis and Corey Davis' request to amend conditions required for a previous BOA case, 2014-23, to allow garage and off-street parking within the defined infill and redevelopment area in a high-density apartment R4 zone at 139 Bruce Street for the reasons recommended by staff and as articulated by Mr. Murphy in the hearing and subject to the two conditions that are shown on the overhead. Is that, Ms. Jones, that motion is correct? We've got a motion to approve with the modifications. Is there a second? I second. Mr. Forrester seconds all in favor signify by saying aye aye any opposed this more opposed the the motion carries and good luck mr. Murphy and thank you very much I just want to know for the record miss Davis name is Carrie C-A-R-Y not CO of RY, just so it's in there. Thank you all for it. Very good. Thank you. Good luck. I'm going to go back. Is Lexington Universal Academy, have they ever showed up? Yes, sir. Lexington Universal Academy. Lexington. Lexington. Oh, sorry. Sir. I'm sorry. I called the contact information for Election Universal Academy and spoke with not the contact that's listed on your application, but a co-worker. He was not aware of Mr. Stewart's whereabouts or whether he was coming to the meeting. So I did not speak with the representative personally. But my understanding was he was going to try and contact him and explain that the board was waiting to consider this application. So who does this gentleman represent? I believe he's the other applicant that wasn't here earlier in the day. Very good. Okay. So Lexington Universal Academy, what do we do with something where somebody doesn't show up? Can we postpone it for 30 days? Typically, that's what the board will do. I'd like to ask for a motion to postpone Lexington Universal Academy for 30 days. So moved. Ms. Meyer moves. Is there a second? Second. Mr. Forrester seconds. All in favor signify by saying aye. Aye. Aye. Any opposed? Very good. All right. Sir, would you, I've said this now for about the fifth time today, and I know that I've misenunciated every time, but the Christianity Spiritual Church, are you representing that? State your name for the record. Pardon me? Your name for the record. Louis Kostein. So the staff has recommended approval subject to four conditions. Do you all agree to abide by those conditions? Mm-hmm. Any questions from the board? If not, we'll entertain a motion. Mr. Chair, I move that C-2015-11 Iglesia Evangelica Christiania Espiritual appeal for a conditional use permit to construct a church in the agricultural AR zone at 3696 Hurricane Hall Road be approved for the reasons recommended by the staff and subject to the four conditions recommended by the staff. Thank you, Ms. Moore. Is there a second? Second. Second. All in favor, signify by saying aye. Aye. Any opposed? Your motion has been approved. I'd just like to add, if you ever come back to us again, we'd love for you to show up on time. This hearing starts at 1.30, and we like to have our applicants here, and hopefully there was no emergency that prohibited you from being here at 1.30. I'm sorry for that, but I never do like this. It's the first time. All right. Well, thank you very much, and good luck. the first time and I make some mistake for that. That's all right. Thanks very much and good luck with the project. I believe that we are back to our first administrative review and that's SineTronics, if I've followed this agenda correctly. And Mr. Marks, I know that I'm going to ask the applicant if he would introduce himself. My name is Seth McNeil. Seth, your administrative appeal to staff has actually recommended disapproval. We'd like to hear from Mr. Marks before we begin. So if you'd have a seat. Good afternoon, Mr. Chairman, board members. This appeal is all about a notice of violation that was issued for the placement of an electronic sign in a window of the Bryant's Rent-All building at 875 South Broadway. There's not really a lot about the site or the property or the actual window that's relevant to the case, so I'm not going to get into any of that. But the zoning of the property is a critical aspect of the case. It's in a wholesaling warehouse B4 zone, so I'd like to put up on the overhead, just for the record, the official zoning map for that area. This site is very close to the intersection of Red Mile Road and South Broadway. Red Mile Road is here, South Broadway along here. The B4 zone in this area is right in here. You can see the 875 South Broadway. So all of the property is indeed located in a B4 zone. The staff considers the sign that's been installed at this location to be considered as both a flashing or blinking sign as well as an electronic message display system sign. Both of those terms are defined in Article 17 of the zoning ordinance. Before getting into those, I think it would help to actually see a video clip of the actual sign that's been installed. So, Mr. Emmons, if you can get that going. Then we'll get back into the definitions, and then we'll show this clip again to kind of get you a feel for what we're talking about. Thank you. Thank you. Let's look briefly at the definitions of those two terms. They're both included in Article 17, the sign ordinance, under the definitions about different design types of signs and we'll get that up on the overhead. Okay, flashing or blinking sign. The important part of this here is it says the illumination of which is not kept constant and which contains an intermittent or sequential flashing light source. So I think from what we just saw in our minds, it's clear that it does have those features. Electronic message display system sign. There's a lot of technology here that I can't begin to explain to you, but I can tell you that in this particular case, the technology is light emitting diodes, commonly referred to as LEDs. They're small, and the appellant can explain this much better than me, very small light emitting bulbs of sorts. There's an array of those within the sign, and they're programmed to come on and off at certain times to create the message that appears to be moving but it's not. And also the other features in that video clip that you just saw. The idea here that you need to be most aware of here is that in order for that sign that you just saw to do those things, it has to have this technology to be programmed for those diodes to come on and off as they're programmed. And I don't know if you want to see the clip again now that you've seen the definitions or not, or you're ready to move on. So up to you all. That was a little longer than I thought, but. Okay, we're ready to move on. The critical thing to do at this point is to say, well, what does the zoning ordinance say about those two particular types of signs? And I could just read you a bunch of provisions in the ordinance. I don't think that's the best way to do this. So I'm going to ask you to kind of go along here and imagine just for a few minutes that you're a business owner. This will hopefully get you a little more engaged in this. Imagine you're a business owner that's in a B4 zone and you want to put one of these types of signs up in your storefront window. You don't know much about the signage regulations, so what's a reasonable process that that kind of person would go through to make a determination about whether or not it's okay or not? You're probably not going to read all of Article 17 right off the bat once you find that that's the sign ordinance. You're probably going to be somewhat anxious to kind of jump ahead to see what signs are permitted by zone. So I'm going to put that up on the overhead here. Once you flip through the ordinance a little bit, you finally come to Article 17-7, which is permitted signs by zone. And right there in this first paragraph, second sentence, there's a really critical statement. Any sign not specifically permitted shall be deemed as prohibited. If you go on from there, as you're anxious to find out what does it say about B4, you'll find the section in there where B4 is described along with a couple of other zones. That term is not used at all in that description of what's allowable signage in the B4 zone. I'd put that up, but we'd just be reading a bunch of stuff where that is not even mentioned at all. Now, you're probably going to pop in your mind at that point, well, Now, is it mentioned anywhere in other zones? And the answer is yes. As you flip through the zoning ordinance and look for that term, you will find four other zones where electronic message display system is specifically mentioned in this Article 17-7. There's three downtown business zones, B2, B2A, and B2B, and the B3 zone where that term is specifically mentioned. And it's mentioned in a lot of detail about exactly what you can and can't put up. Bill might be able to explain a lot better the history of why those provisions got in there the way they did, but in general it was to accommodate what I would call a compelling public need for a certain amount of information to be provided to the public via this system. On very large facilities like the convention center, outdoor stadiums like the Lexington Legends Ballpark, which was the B3 zone part of all this. So in my mind, this provision in Article 17-7, where it says any sign not specifically permitted shall be deemed as prohibited, not being able to find that type of sign listed anywhere in the B4 zone, to me that's the first big red flag about whether or not you can put this type of sign up in your storefront window in this B4 zone. Let's put that red flag aside just for a moment and move on. The next big question that comes up with the typical business owner is, well, if I do put a sign up, do I need to get a permit? So let's take a look at what they'd find with that question. As you flip through the ordinance, you'll come across a section, 17-4C, which is titled Signs Exempt from Permit Requirements. And indeed, you'll find there number six, window signs. And there's no dispute with the appellant about this. window signs are exempt from the need to get a permit. But once again, in that first paragraph of this description, the second sentence, however, such signs are subject to applicable restrictions contained within this article. So in my mind, this is the second big red flag that you're confronted with. At this point, you have a big decision to make. Am I going to call staff to find out what the applicable restrictions are that are relevant to this type of sign? or am I going to have to read the entire ordinance to find out what the applicable restrictions are? Now, for whatever case or whatever reason, let's just assume that a decision was made not to call staff but to read the entire ordinance. What are some of the other things you might find? Well, you'll come across Article 17-5, which says prohibited signs in all zones. and right there number three flashing or blinking signs prohibited in all zones now electronic message display signs are not listed here because they're not prohibited in all zones there are several exceptions so i've kind of gone through it this way just to kind of give you all i think what's a reasonable approach to understanding what the ordinance says about this type of signage. I think it's clear if you look at the totality of the ordinance, Article 17, that this type of sign is not permitted in the B-4 zone. We have three findings for disapproval of the appeal. They're listed at the end of the staff report, of course, and also on your agenda. Finding A gets at the aspect of this related to flashing or blinking signs. The finding B gets at the part of this addressing electronic message display system signs. And then finding C attempts to get at this idea that, hey, if you're going to be making really important business decisions about installing this kind of signage, investing a lot in a business, it's really incumbent upon you to look at the totality of the ordinance before you make a decision. You can't just take a selected part of it to make a decision. You've got to look at what the whole package says. So those are our findings for disapproval. Before closing out my part of this, three kind of words of caution that I'd help you think about real carefully. The first is this is a really important appeal. This is not just an appeal about this one relatively small sign in this one window of this one building. and this is an appeal that is about how this particular sign is going to be regulated throughout Lexington-Fayette County. There's major implications to what your decision is going to be today. For those of you that are most interested in that part of this, I have a couple of examples I can give you later that I think will, in a very convincing way, illustrate the seriousness of that and what the potential impacts might be that you might not think of. Secondly, please be cautious about being persuaded that somehow Article 17 is constructed with some sort of a flaw, because it doesn't specifically say right there in that section where window signs are allowed in B4 zone. It doesn't have all this other stuff right there. I mean, it's tempting to say, well, if all these regulations apply to that type of sign in the B4 zone, Why expect someone to have to move around everywhere? Why don't you just put it all right there? Well, that sounds good on the surface, but the practical implication of that is if you do it for window signs in a B4 zone, you've got to do it for all the other types of signs in the B4 zone. If you do it in the B4 zone, you're going to have to do that for signs in all of the other zones. And if you do that, it's going to be incredibly redundant. All this stuff you repeat, what's prohibited, what needs permits, a lot of other things, What has to be maintained a certain way? What if the signs are totally exempt, not just exempt from permit, but totally exempt from any regulations at all? Can you imagine what the ordinance would look like if you repeated all that stuff under every section like where it says window signs are allowed if they don't take up more than 25% of the window area? If we did that, the first thing someone would say when they went through it is, why are you repeating all this stuff? It's incredibly redundant. just take all that stuff out that applies to everywhere or most other places, and put it in a separate section. And that's exactly how the ordinance is constructed. So be careful about being convinced somehow that Article 17 is flawed in its construction. Lastly, at the end of all this, when you've heard both sides or whatever, if you're inclined to have a lot of sympathy with the appellant, or if you're inclined to believe for whatever reason that it's just too restrictive. You know, you get in a lot of opinions. People think some people like certain kinds of signs and people don't. It gets to be subjective at a certain point. But those things are not the appropriate things to consider with this type of appeal. If those issues and concerns are important to you, the right avenue to take is for a text amendment, something that would be reviewed by the Planning Commission, and they would make a recommendation to the Urban County Council. So I encourage you to be real careful about thinking that things like being sympathetic with a certain person's business situation or concerns about, you know, what the criteria are in the ordinance about electronic message display system signs, whether it's too restrictive or whatever, that's not part of this appeal process or shouldn't be. It should be a text amendment process that's gone through. And I'm not recommending by any means the opponent does that. I think personally, in my opinion, it would be a very difficult challenge for them to be successful at, but it's an option for them to consider. So that's all I've got for now. I'd be happy to answer your questions. I would like the chance to respond to some of their comments later if we have a chance. Thank you, Mr. Marks. Does anyone have any questions for Mr. Marks? Mr. Marks, this is complicated to me. so you went through it pretty quickly i know it's not complicated for you because you've been been through it but am i to understand then that there's that there are there are no flashing or blinking signs permitted in any zone first of all that's correct okay so but there are electronic message signs permitted in a B3 zone only if it's an indoor or outdoor stadium. Right. Is that the way I'm interpreting it? That's correct. This seems like micromanaging the sign ordinance to me. Am I just saying, I mean, it seems There's a lot of history there with the B3 zone. Bill can correct me if I'm wrong, but I think that provision was put in there specifically for the Lexington Legends Ballpark. Is that right, Bill? They were the applicant for that provision in the B3 zone, and obviously it was approved. Yeah, well, I mean, I'm not, they're not here today, so what signs are permitted in the B4 zone? Well, there's all kinds of window signs that are allowed. Okay, but not the flashing and blinking, not the electronic message. Correct, in our opinion, yeah. I may have other questions later, thanks. Anybody else? Thank you, Mr. Marks. You. We'll hear from the applicant. Afternoon. I have a handout. Please do. First off, I'd just like to state who I am and what my relation to this is. I work for the sign company that manufactures and sells these types of signs. and so I'm a district manager for them, I sold the sign to Mr. Bryant at Bryant's Rent-All for any clarification. And what I just handed out, the first page was the original notice of violation. And Mr. Glover, you already caught on to this, that they're defining it both as a flashing and blinking sign and as an electronic message display sign. And in the original thing that was issued, it said, remove electronic sign from window. But then under what was marked, why they just need to remove it was because it was a flashing or blinking sign. So it contradicted itself in the original violation. And all that my customer was told was to remove the sign within a week or receive a $75 fine. This sign is not a flashing or blinking sign. I can show you that on the next page. If there was a flashing or blinking sign, as you see up on the overhead, flashing or blinking signs are prohibited in all zones. And the definition of that, I apologize, it's actually on the page after that, under 17.3.d, we see sign types by design features. and the important he was talking about the importance of the definition of flashing or blinking signs the important sentence is actually the last sentence for the purpose of either attracting attention to the sign or as a method of changing copy what that would refer to as a strobe light effect so when it's changing copy it's changing like this flashing that's actually not a function that our signs even offer they offer the same functions as the signs at the conference center in Rupp Arena for that. This is my first time being in front of a board like this, by the way, so I'll let you know if I'm a little jittery. You're doing just fine. The second confusion regarding the definition, I, first off, you talked about what the business owner, from the business owner's perspective, and I feel like that is the very important perspective to think about if you had a business and you wanted to sign like this. The confusion is under the definition section. I'd like to point that out. In 17.3.c, we see sign types by means of mounting or erecting. And item 13 is window sign, a sign which is painted on or applied to attach to the interior of a window or located within three feet of the interior of a window, and which can be seen through the window from the exterior structure. Merchandise located in window display shall not be part of a window sign. Now, moving on to the next section, we see 17.3.D. These are sign types by design features. So to say that a window sign cannot be an electronic message display sign, as we see in the next item, not only is it two different definitions, they're in two different categories. Window signs are by where they're mounted. electronic signs is by the means of what the sign can do. And you can see on the next page, which is referring to that particular zone, and I do agree with Mr. Marks that it is important to look through the ordinance. That's what my job is. I've been here, actually, when I walked in today, the guy said, you look a little younger on your picture. That was about three years ago when I came to the building, I got this ordinance and looked at it where it says under 17.7G in that zone, what I've highlighted on your handouts, window signs shall be permitted, limited to no more than 25% of the total window area. So to say that a business owner could not hang back to the definitions by sign features, to say that they couldn't hang an electronic message display system sign would also lead you to believe they couldn't hang a directly illuminated sign, an indirectly illuminated sign, or any type of sign. Half a block from here, Barney Millers has two LED TVs facing the street. They're no different than what our sign is. Every open sign in the city. I mean, this isn't just two or three businesses. I agree with Mr. Marks. It's hundreds of businesses if they're going to enforce their interpretation of it. I'd also like to note that from our perspective, we weren't trying to do something illegal. We sell signs just as big as Rupp Arena, what they put up on Nicholasville Road, billboards. I didn't come into Lexington and start putting those signs up everywhere. We followed by what the code was. As long as it doesn't cover more than 25% of the window, window signs are exempt. and I don't have this on the handouts, I didn't know you were going to address it, but where it said signs exempt from permit requirements and window signs were there as number six, but number seven, if we could put that up. This is something that is exempt from permit and that is the changing of copy on a billboard, a traction board, marquee, informational sign, or electronic message display system. So number six was where it said exempt from permit is a window sign. Number seven says exempt from permit, the changing of copy on an electronic message display system. That, not only to me, who I've been in the sign industry for nine years, and this is a very, very common wording of a code that says window signs are exempt and they can't cover more than 25% of the window. I've seen that across the country. In 40 different states, I've sold these signs in. And whenever we see window signs are exempt, don't cover more than, sometimes it's 20%, sometimes it's 40% of the window. We abide by what those rules are. Get back to, I actually had notes to read here. I just kind of got off. The small business owners of Lexington, they're able to look at this ordinance and believe these signs are allowed. And with our company alone, we have business owners who have spent over a million dollars on these types of signs in Lexington because of the way the ordinance says it is allowed. If a business owner were to read this ordinance, read the definition of window signs, read their exempt, if they were to do what Mr. Mark said and read the whole ordinance, They could go to our website and click on a link marked window signs and begin the process of ordering this sign, believing, hey, I don't need a permit, don't have to pay the city money, don't have to do anything. In closing, I want to note that I believe this board has the business owner's best interests at heart. Mr. Bryant, one of their reasons, they have an old marquee where you change the letters with a big pole out on their pole sign by the road. They always put up happy birthday. They wanted to be able to put up happy birthday to their customers. It was something Mr. Bryant's father started doing in 1953 when he started the company. I have other business owners in Lexington that have told me they've seen a 60% to 70% increase in their walk-in traffic because of this type of sign. And I don't think it would be fair to have to go to all those and say, well, you have to move it 36 inches back from the window. because that's ultimately what we were getting to if we were to enforce this citywide. It would be everyone who has a sign needs to move it 36 inches back from their window because of some ambiguous rule they're enforcing the sign ordinance. I had a meeting with Mr. Marks in the beginning of January. I had hoped we'd be able to just sit down and resolve it at that point. That didn't happen. During that meeting, Mr. Marks admitted to me that he felt the ordinance was confusing and unclear regarding this specific type of sign in a window. Then at the end of the meeting, I met Mr. Emmons. I was trying to get some clarification on the Board of Appeals process, and I asked him, what's the difference between the 76D administrative review and the 76E, all other appeals? He jokingly told me that you can either appeal yourself and we'll tell you no, or you can pay us $300 to tell you no. In the January meeting, Mr. Stumbo, I heard you say that you're a volunteer board. You handle difficult and emotionally charged situations. This is a difficult and emotionally charged situation. Not so much for me as it is for all the business owners here in Lexington. But I hope that you'll take that into consideration. I feel that small business owners really are the heartbeat of not only this city, but of our whole country. So I'd hope you take that into consideration. That's about all I have to say if there are any questions. Thank you very much, Mr. McNeil. Does anyone have any questions? I have a question. Mr. Greggs? So Mr. Bryant didn't order this sign through your website. You gave him the confidence with your knowledge of our zoning codes that it was a legal sign. You sold it to him. Yes, sir. Well, and how that process starts is, when I said they could order it, you can't actually order a sign through our website. When you go to our website, it sends me an email. These signs cost, on average, anywhere from $4,000 to $10,000. So it's not something you go click a few buttons, add to cart, and check out with. I go to his business. But the biggest thing, our number one source for customers are referrals. And I've had, since we had this on the agenda and we had this meeting, I've had probably half a dozen customers that would call and say, my neighbor wants one of these signs. And I've actually said, hold on, I'm not going to sell any more of these signs until we figure out what this board is going to do. But to answer your question, what I do with business owners, because number one, I don't know if it's just with signs, but I've met several business owners in Lexington that are kind of just terrified of having anything to do with the city, especially with signs. And this is a solution to that problem. And so if it ever does come up with a business owner, I would personally say, yeah, here's the code. This, this, and this is where it says that you are allowed to have the sign. And I'm not doing that to, you know, falsely say anything. The code does say these signs are allowed. So you've sold many of these signs in Lexington, and this notice of violation for Mr. Bryant's sign is the first time that you've been aware that there may be a problem. and you've never gotten permits for any of these other signs. No, and not only me. I moved to Lexington about two years ago. I found out when you marry a Kentucky girl, you get moved to Kentucky. But I moved here two years ago, and I saw signs from our company, as well as other companies, that have been up for going on 10 years. So when I got this call from Mr. Bryant saying, hey, I got a letter in the mail. I thought you said these signs were loud. I said that's the first letter I've seen. I think I did my first signs in Lexington around three to four years ago, and now we have almost 100 of them with our company alone. There are other companies as well, not only selling but distributing these signs. Thank you. Thank you. Anybody else? Any other questions before I come up? My name's Tim McNeil, Seth's dad. I'm the regional manager for the Kentucky Triple Crowns. We opened a region here two years ago, and Seth used to live close to Florissant, Missouri, so he's glad he's here in Lexington from some of the upheaval that's taken place there. Today I'm here on behalf of Bryant's Rental, but also on behalf of the small business owner. She's worked hard in her craft and became distinguished in her field and perhaps worked two jobs. And her hardworking husband spent years laboring, too, to develop their small business. They were like ships passing in the night for years, working hard for their dreams. And here's this woman that would stand outside of her business, her window, and see thousands and thousands of cars passing by and thinking to herself, if they could see me and walk through my door and make my cash register ring, that's what the American dream is about. I take up her cause today as well as Bryant's rental and all the businesses that we're talking about here today. My dad's name was Murray David McNeil. He's been gone since July 4th, nine years ago. My dad was a man who volunteered to fight for our great nation in the Navy in World War II, volunteered to protect the American dream. After getting out of the Navy, he joined the Air Force to fight the Korean War. So his children and his children's children would be able to work hard and have these freedoms that we're enjoying this afternoon right here. Well, I'm really proud of my dad, and I'm really proud of the small business owners that are fighting for their dreams every day, and they work very, very hard. I spend most of my days with them. In the case review, in the second paragraph, I quote, this was written by the staff, the appeal filed by the appealant contains very little detail as to why it is believed the notice of violation was issued in error. It simply raises the possibility that the regulation pertaining to window signage is unclear. Well, I believe that something needs to be clear. It's very important if it's clear. For instance, if I said to you, a home is on fire, or if I said to you, your home is on fire, one word makes a big difference in something. And so it's nice to have things that are well defined, that are clear. And being clear shouldn't be trivialized. And we'd like to recommend four reasons to the board why we believe the code of ordinance is unclear and very, very difficult for the business owner to understand when pertaining to electronic message displays in windows in town. Number one, and this has already been talked about, but in Section 17.5C, it says, prohibited signs in all zones. Okay? So they're prohibited in all zones. Alright? But then Mr. Marks said, but there are some exceptions. There's several exceptions. Okay? So, you know, I scratch my head and I think, okay, well they're prohibited in all zones, but but for civic centers, but for arenas and athletic and cultural events, for motels and hotels with conference centers, restaurants, for television studios, for radio studios, for banks, for security and commodity brokers, for credit institutions, savings and loan investment companies, and for investment companies. And then also 17.5i allows electronic message center flashing and blinking signs to be 200 square feet. That's a 10 by 20 flashing and blinking sign that's being allowed. But they were prohibited in all zones. So I really appreciate Mr. Glover bringing that point out because my whole point here is that it's not clear. There's confusion as we look at these. And my son is not an idiot. I'm very proud of him. He's worked hard in this industry, and I have two. And we look at codes. The first thing we do is we want to be totally within all the sign codes of any city. number two is for many many years electronic message displays window signs have been used in small businesses and have been allowed here in lexington in salons in barber shops tire discounters has them in every one of their businesses and for hundreds of businesses And so I wonder if I'm coming in to sell these signs and I see them allowed and have been allowed for over a decade in the city and then see that window signs are exempt, then do I really need to try to mull through and decipher a very difficult code to understand to find out that they're not allowed? and why are they allowed in all these other places all around town? And so it's just confusing to me. The third thing is, in the code itself, and this is my feeling, it seems to say that it's unclear. And here's what it says, 17-3 says, The following definitions unique to this article are listed below. the terms to be defined having been grouped together in specific aspects of sign control to which they pertain in order to provide a clearer understanding in the regulations contained later in this article. And so it says we're going to separate these signs into different categories so that we can provide a clearer understanding of how we're regulating things. And that's what Seth brought up, is that one's under how the sign is mounted, the other's under how it's designed. And there are other types in which categories fall into signs as well. And that is found just for reference. Types by means of mounting or erection, 17-3C. That's window signs are categorized and defined there. and then types by means of design features, 17-3D, and it categorizes electronic message display systems. I will say this also is, and this is just a side note, it needs to be updated. Electronic message centers are not controlled by central computers or by videos anymore. I think this was written back in 1987. I can use a quasar centery system, and I can change an electronic message center all over the country from anywhere in the world that I have internet access. And so the code itself in defining electronic message center, if we were to press the law on this, that doesn't even fit what these signs are because they're not controlled by a central computer or by video. Just a side note, and I think that was written maybe in 87 or something. I'm not sure when. Number four, a business owner in Lexington could go to Lowe's, Costco, Sam's, and buy electronic message displays for their windows that flash and blink. Now, I know that's not a super strong reason, but it is an interesting point. so just in conclusion number one electronic message centers even though they said they're not allowed are allowed in some places number two for many years it's not been enforced here in lexington to my knowledge because we see them all over the place number three the code itself seems to admit a lack of clarity and number four electronic message signs can be sold here by Costco, Lowe's, and Sam's, and any business owner can go and buy one. My wife and I have been married for 30 years in March. We've raised nine children. Between the ages of 28, Seth is the oldest of nine. He's had to grow up fast. All the way down to age 13, TJ, my youngest boy. In raising children, I've learned one thing. It's important to draw clear lines on what's right and wrong. And especially when these young people become teenagers, they start talking about, well, gray areas. Well, let's be reasonable, Dad. There are some things that may fall under the category of that. And to raise children these days, as many of you know, you need the patience of Job and the wisdom of Solomon. But I would say to you that I feel that an electronic sign in the window for a business owner falls into the category of a gray area. I thank you for listening to me. And especially if we could allow these, I want to thank you on behalf of hundreds and hundreds of business owners that work hard in this city to provide for their families and would like to have more people seeing them and walking through the doors and ringing their cash registers. Thank you. Thank you. Does anybody have any questions for Mr. McNeil? Mr. McNeil, I have maybe a question but certainly a comment. I'm not sure what the board is going to do with this administrative appeal, but it's clear to me from reading what ordinances that we have looked at today, and ordinances are legislative, are legislation passed by the city council, signed by the mayor and such. It seems to me that the signed ordinances have been the subject of selective legislation. And it may be that your business, your company, and your customers are the victims of that selective legislation. it's not selective enforcement that I'm talking about, but the selective legislation. You can drive east on Vine Street, and when you get to Broadway and look up on the right, on the side of the Hyatt, see a big flashing, moving sign on the side of Rupp Arena that advertises all kinds of coming events and things like that. I think that's not fair for discrimination to be made against your company and your business while similar things are happening a few blocks away. So I have some sympathy for your appeal. I don't have any particular question for you, but I think your argument is well taken. And if you don't get past this board, you might look at other methods of seeking relief. Thanks. Thank you, Mr. Glover. Anybody? I have one further. Mr. Marks said, you know, don't be convinced to be sympathetic. I'm not. I don't know. My dad might be here looking for sympathy today, but I'm not looking for sympathy. I'm looking for logic. There are two clear definitions, sign types by means of mounting and sign types by design features. To confuse those two and say that they're the same thing, that a window sign can't be an illuminated sign or any other design features, including electronic message center, doesn't make logical or legal sense. So we're not looking for sympathy. We're looking for logic. That's my last thing. Mr. McNeil. Mr. Marks. Oh, I'm sorry. this morning? Did you have a question? Can I just respond to them? The way I would read it is a window sign can be of these various forms, but if it is of one of those forms, it is not permitted. So I think a window sign can at the same time be an LED sign. It can be an illuminated sign. It can be a non-illuminated sign, so that the particular types of signs can be prohibited, so that you're allowed a window sign of certain types, but not other types. Yes, but that definition isn't made anywhere in the code. It only says window signs are allowed as long as they don't cover more than 25% of the window. It doesn't say window signs are allowed as long as they're not an electronic message display center. It doesn't make that distinction. Ms. Whitton? I'm curious, since we're here today talking about this, why, and you all are aware of this, why you didn't contact someone in planning to discuss this before you got started with installing these signs. If you see the, I mean, there's a very definite statement that says they are not permitted. Well, first off, I'd say these aren't the only type of signs we do. We do four-foot by eight-foot signs that a business owner puts up on a pole. I'm talking about this particular sign. This particular sign, it doesn't say that it's prohibited. I think that's where the confusion is. It says flashing or blinking signs are prohibited, but our sign is not a flashing or blinking sign. It's an electronic message display sign, and those are not prohibited anywhere. Well, I think that's really up to the individual's interpretation because I tend to side with Mr. Glover that there's a lot of things that are very unclear regarding a lot of ambiguity, I think, regarding the ordinance. And I'd like to ask Mr. Marks if you've heard the testimony of these gentlemen and some of the questions by Mr. Glover and I'd like for you to respond. Board Chair, can I ask one question? And before we proceed, can we see another example of that video again of the signs? Sure. Just to kind of get, I want to refresh my memory to see. I didn't see it flashing either, but it seemed like the definition is kind of confusing the folks. Very good. We can see that again. I think what the video showed, just before we show it, let me test my recollection as well. It may be something in the sign industry called a crawling sign, where the lights are sequentially turned off and on as the message appears to crawl across the face of the window. Is that right? Yeah, and our signs have about 30 or 40 different functions. That scrolling is just one of those functions. What most cities have done, and we sell signs all over the country, there are some cities that have said, okay, these are allowed. but you have to have a five or a ten second hold on the message. And I know that you all aren't going to rewrite this sign ordinance today. I understand that part of this meeting. Georgetown, for example, you're supposed to have a 60 second hold, but they don't even attempt to enforce it. Lexington is the only city I've ever found that was specific. I mean, like you said, I forget the word you said, favoring certain places to say. there's one part where it says unless you have a stadium seating 5,000 people or more, you can't have an, that's an outdoor electronic sign. So therefore business owners say, oh, the only thing I can do is put it in my window because I'm not Rupp Arena or the Lexington Legends. I have to put the sign in the window. I have a question for you. Seth. These signs, you say, are $4,000 to $10,000, I guess, in that size. That's a huge purchase. When you are talking to a potential customer and you've seen how our ordinance is written and it's complicated and you notice that there's rules change from zone to zone, what I'm going to add is, do you check and see what zone the Bryants were in before you sold them that sign? Why wouldn't you, given the complication of our zone, our zoning ordinances, and knowing there's 12 different zones and all of this thickness, why wouldn't for a $1,000 sign, why wouldn't you make a call to building inspection and find out whether a permit's needed or whether it's legal? If you don't know what zone you're in when you're selling it, I don't think you've done your due diligence. Well, I appreciate that, and I also have you know every business zone says window signs are allowed as long as they don't cover more than 25% of the window. I have done my due diligence with it, but it's just a blanket. If you're in a business, B1, B2, B3, downtown, any of the zones, it says, number one, signs exempt from permit, window signs. Mr. Marks took us through his logic on that, and it wasn't hard to follow. It leads you from one thing to the next until finally you should have some red flags raised. And because it's easier for you or there has been no enforcement, but you have taken the stance that you will assume some things about our ordinances, which I believe there wasn't enough justification to assume it. The first assumption is I'd have to look it up. I know of one that's 10 years old. And so when we come into a city and the codes are written like that, And like I said, Lexington didn't invent that window signs are exempt and 25% rule. I'm sure they adopted it from some other city. They've adopted the sign ones when they did it. But my point is, because it hasn't been enforced, and because if they were going to enforce this with this business, it is discrimination. Because what about all the businesses that have open signs? What about all the businesses that have TVs two doors down from here and their windows? It's the exact same thing. There's no difference between that. That's not an excuse. That's just the history. It's no, it's not an excuse. It's saying that that's why they are there. They're there because the code allows it. And what I've found, I don't work for the city, but I've found sometimes like the gentleman who issued this notice of violation. He doesn't even understand the difference between a flashing or blinking sign and electronic message display sign. They don't understand what the code actually says because it was written the year I was born, 1987. Flash-in signs was for strobe lights and arrow signs. It's not for what our signs do. If that answers your question, it probably doesn't, but thank you. I think that Mr. Marks said there was a spot in the code that said if it's not specifically allowed, it is disallowed. So if there's a problem with the definition, this obscure difference between a strobe and your flashing sign, I think it might be covered in that. But I'm not an expert, and I understand that this is a complicated issue and the code is complicated. But I think some of the heartstrings that your father was trying to pull about the lady and her small business, if everybody has one of these flashing signs, then her sign is no longer special and it won't draw you. So she would start lighting off M80s, and we would have explosions to draw people's attention to her place. And then everybody would do that. And the quality of life and the distraction to the drivers and the city's aesthetics would go down the tubes. So it needs to be controlled. And number one, the distraction to drivers. When I asked in the meeting with Mr. Marks, I asked, is it because they're a distraction? because we have a study done by University of Cincinnati, done by Texas A&M, looking at 50 locations installing these signs, and there was no impact on traffic. The traffic person probably knows some of those statistics. It wasn't about that. But, I mean, to answer your question, it does say the sign is specifically permitted. In that section, in the B4 zone, it says window signs are allowed as long as they don't cover more than 25% of the window. And there's no distinction as to whether that window sign is any of those signs by design features. That would mean every beer neon sign in Lexington would need to come down if we were to enforce this across the board. Thank you, Mr. McNeil. Mr. Marks? Got a bit of a long list here. I apologize for that, but it is important to get all this straight. The NOV that was originally issued did not fully address all of the two components of the problem here, being flashing and blinking sign and an electronic message display system sign. That NOV was amended by letter, which is included in your package there, and it was very clear with the appellant that both issues were on the table. There was no contradiction in the original NOV. The part about changing the copy, do we still have 17-4C in one of the lower heads there, Bill? Well, actually, it's not going to show up, but go ahead and put that up there because it will put you in the right place. There is a number seven. Number six is where it says window signs are exempt from permit. And then number seven, which was not, for a reason I didn't want to get into this because it's a little bit ridiculous. Number seven says the changing of copy, blah, blah, blah, including an electronic message display system sign doesn't need a permit. Well, obviously there's a presumption here that you're talking about a legally constructed sign. If you have a legally constructed sign, yes, you can change the copy on it without having to get a permit. That's why number seven is there. Seven has nothing to do with the original installation of a certain type of sign. So to suggest that the original installation of an electronic message display system sign is included within this exemption is ridiculous. We're talking about the changing of copy on a legally constructed sign. Really important point, a lot of stuff is convoluted here and I don't want to be redundant, But a really important point of all this, if you accept the notion that this is unclear for window signs based on the logic, quote, unquote, that's been presented, it's not just window signs, folks. The exact same argument can be made for wall signs and for freestanding signs because look at the ordinance right here. This is the section where it talks about window signs shall be permitted, limited to no more than 25% of this total window area. I didn't bring my pointer back up, but it's on the right-hand side there. Per-endee. Okay. Well, did you all find it? Per-endee. Look straight above there. Wall-mounted business signs. It doesn't say anything in there about electronic message display system signs being prohibited. Okay. It's confusing. We're going to have these things all over the walls, all over Lexington, Fayette County. Move one up. If you can move the overhead up a little bit. Freestanding business signs. It doesn't say right there that electronic message display system signs are prohibited. Okay. It's unclear. Let's put these all over freestanding signs. Can you imagine the implication of this, folks? I'm not trying to be overly dramatic here. This is the reality of approving this appeal based on the logic that it's unclear is going to apply to all these signs, not just window signs. Let me give you an example to illustrate that. New Circle Road, all these new car dealerships that have very large buildings, Lots of window area along the street front. Several thousand square feet of window area. Twenty-five percent of that is going to be several hundred square feet. The sign we're talking about in the Bryant's window is probably less than 10 square feet. Multiply that by about 20 in size, and that's the size of an electronic message display system sign that can be put up in the window area of one of these new auto dealerships. That's what we're talking about here. So don't be deceived that we're talking about little signs and little windows. This exact same logic, if accepted, applies everywhere. Seth brought up, Mr. McNeil brought up the meeting we had before the notice of violation was appealed. I didn't want to get into this stuff, but he brought it up. So I'm going to rung it up. I don't recall ever saying that it was unclear and confusing. I might have said something like, well, it's not perfect, and it could be better, and that's true. It can always be better. The reality is the sign companies scour these zoning ordinances looking for loopholes, and that's exactly the words that Mr. McNeil used when we met. They look for loopholes. Now, isn't it a little odd that these signs that are starting to pop up around here, Maybe it's the last three years. Maybe it's longer than that. Our perception is the number of them has increased pretty rapidly over the last year or so. But isn't it a little bit odd that you don't see these on the walls or as freestanding signs, that it seems to be confined right now more or less to the windows? Isn't that a little odd? Why is that? Well, those other ones require permits. And guess what? When you have to get a permit, you have to interact with staff, and you get the answer. They're not allowable. They're prohibited. And I suspect, and I'm glad at least two of the board members here asked that question, why didn't you make one single phone call to clear this up if you're confused? Well, the answer is they probably knew what the answer would be. And they didn't want to hear that answer. They took a gamble. And here we are. Mr. Glover, you brought up the issue of these very large signs in some other areas and there seem to be some, I don't know if confusion is the right word, but some, like, hard to understand why all these very large signs could be allowed in one area and totally prohibited somewhere else. Well, that's just the reality of how the zoning ordinance right now is constructed and whether or not you think that's fair or unfair, that's the way it is right now. This is the section from the Lexington Center Business Zone, B2B, which is one of the zones that does allow electronic message display systems. And right there is the detailed criteria that allows those large signs to be installed. So that's why you see those there. They're totally legal. That's just the way it is. A lot of talk was about, well, this has been in place so many years. Why are we starting to enforce it now? Well, I'm not sure about the numbers over the years. We've just started to notice an increase in these. Again, like I said, it's a little odd that they're mostly appearing in the window areas, and that's probably because the sign company perceived that to be a possible loophole. But like I said, it was a gamble. It doesn't appear to be a loophole to us. If we had been right there the first time one of these went up to do enforcement, that would have been great. But as far as timing goes, these aren't all over the place right now. The suggestion was that they're all over the place. This is kind of an emotional issue. People tend to think because they see them here and there in pockets that they're all over the place. I've done a number of surveys, and I don't have numbers to give you, of major corridors around time and around town. There's a lot of areas where you don't see these at all, and there are areas where you see pockets. But to say that they're all over the place is very misleading. There are pockets, but in terms of timing, we think the enforcement is fairly timely. We're catching this maybe nipping in the bud. It's not quite accurate, but I think we're catching it at a pretty good time where it's not like 90% of the storefronts have these kind of windows because they don't. While you're on this topic, could I ask you about the open signs that go open, open, open, O-P-E-N? And that's probably the type of sign you can buy at Sam's. Are they legal? Because they are all over the place. They are, and no, I don't think they're legal, but there are some exceptions that you need to be aware of. Those are relatively small, and clearly they are visible from public streets in many cases, but in many cases they aren't. There is an exemption in the ordinance right on the first page, Article 17, and when I say exemption, I don't mean exempt from just getting a permit. I mean totally exempt. The restrictions don't apply at all. and one of those exemptions is if you can't see the sign from a public street, it's exempt. So a lot of those ones that are in like little shopping centers off the street that you can't really see when you're driving by, you can see them when you pull in the shopping center. But if you can't really see them when you're just driving by, they're exempt. So there's a fair number of those that are just exempt. And Mr. Griggs, if I could also address your question, many of those signs that you buy in the store also have a switch on the back that enables you to turn them on without flashing or blinking. Thank you. Can I ask a question? So I'm convinced about the second part of it, where it's an electronic message display system. That's what it seems like to me. But if it's actually a flashing and blinking sign as well, it seems to me it's no different than stuff you see at the baseball stadium or sometimes at the convention center? I mean, it's basically the same technology, and they use that. So are you saying that those are violating the ordinance? I'm not saying that, and I understand your question. Yeah, because I understand what you're saying is that the electronic display signs are okay in the convention center. The blinking signs are not okay anywhere at all. So if they blink, then it seems they're a blinking sign, and there's a violation. of those signs? I don't have an answer for that. That issue fortunately hasn't come up yet. In some cases, there's specific language in there about exactly what that can do. Like at the Legends Ballpark, there's some specifics. But fortunately, that's not an issue for right now. But it is a potential issue for the future. Basically, your question is, can electronic message display system sign, in an area where it's permitted, be programmed to have flashing or blinking? Right, because, I mean, that's what it seems to me that you're saying. I totally agree with the second part that it's an electronic display, but then I think if it's flashing, and I'm no expert on all the electronics, but if it's flashing and it's an electronic display, if it's flashing and blinking and not permitted, then we are saying that those are violating the ordinance. That is to say the legends and... Well, let me partially answer it this way. you can program it to where it's not flashing or blinking. That's the thing about this type of technology. It can be programmed to do lots of different things. So if we agree with this first one, are we then saying that you should go to Legends and tell them that they need to change their sign? If it came to that, yes, we could do that. Thank you, Mr. Marks. Thank you. Mr. Forrester had asked a few minutes ago to look at the sign, and I'd like for you to put it up there if you would. Before you leave, Mr. Marks, I just want to make a point that you said that when you were talking about the Lexington Center Business Zone and the regulations were what they were, the ordinance is what it is, is what you said. But, of course, this board is constituted for the very purpose of giving relief to the unfair application of zoning ordinances. and so this is not a board of law. This is a board of equity in a sense. So you're not saying that we don't have the authority to grant the applicant. You're just saying that you'd like to persuade us that we shouldn't. Not at all. You do have the authority. That's why you're here. The legal challenge in exercising that authority is that you would have to, if you wanted to approve the appeal, you would have to make a specific finding that this type of sign is specifically allowed in the B4 zone. I don't know how you could get there, but that's the legal challenge that you'd be faced with. All right, I understand. Which is to say we're not entitled to grant a variance. We don't have the power to grant a variance for the sign. I don't think you have the power to approve the appeal absent a finding that said what I just said. Thank you, Mr. Marks. Thank you. Thank you. Thank you. Thank you. is a very confusing issue and I think that I think that I certainly see the your plight and I think that there's there's a lot of there's a lot of things that could be improved upon I think as we've all agreed but one of the things that I think that that is pointed out is that there's no specific finding to grant this, and as difficult as this may be, that would specifically allow us to do this. Now, I'm not speaking for the board, but after hearing all the testimony back and forth, I'd like to ask the board to weigh in and how you'd like to proceed. Can I ask a question? If we were to say we grant this and we can't allow these signs, what about the other signs in the city? How is that going to affect the other business owners out there? I assume that this, Mr. Marks, is going to be one of many appeals of a notice of violation for this kind of electronic sign. Is that correct? I suspect once the word gets out about a certain decision that's been made that that will decrease. Initially, there might be, but of course a lot depends on the specifics of the finding. Stephanie? Well, I'd just like to make a comment, too, that I think that it's incumbent upon the business owner to know what the regs are and what, you know, when this owner is looking to buy this, you know, to get this sign, that rather than look to the people he's buying the sign from, that he or she might want to talk to the city as well. And I'd like to have that just put out there for the business owners to, you know, they have some responsibility here as well. Thank you, Ms. Myers. Anyone else? I would like to entertain a motion. Mr. Chair, I move that we disapprove A2015-6, Sintronics, administrative appeal of the issuance of a notice of violation concerning signage in a wholesale and warehouse business B4 zone at 875 South Broadway based on the staff's three recommendations or three conclude their conclude their three recommendations of just three reasons for disapproval excuse me. Thank you Mr. Griggs there's been a motion. Is there a second? Second. Meyer second all in favor signify by saying aye any opposed no mr. Forrester votes no and mr. Glover votes no so the year your appeal has been denied and I would say before before they leave the next You can appeal, but our decisions are final, Mr. McNeil, and so you would have to appeal to circuit court, I believe. And I think that as we proceed, you know, with these difficult issues that are very complex, I think that there's certainly some things that the business owner can do, but I think that there's some things that we probably need to address as well regarding our sign ordinance. And so it is clear because it's been a very difficult decision. And we wish you all the very best. Thank you for being here. Just to know, the signs aren't going to come down. They're just going to go 36 inches back from the window, just to let everyone know. Don't expect to see them coming down because we certainly aren't going to refund anything. I just want to let the city know that because the way it says anything that's not 36 inches from the window. So I understand your decision. So thank you very much. Thank you very much. Our last case, and you gentlemen have been very patient sitting back there. We'd like to take a five-minute break, if we could, please. Please. Please. Thank you. with me Mr. Falcone who is the property owner as well as the managing member of the LLC Bayou Bluegrass Catering LLC who is going to be the occupant of the property. Very good. Thank you, Mr. Rivard. I know that before we hear you, we'd like to hear from Mr. Emmons regarding the appeal and then you'll have an opportunity to have to respond and state your case. Mr. Emmons? Thank you, sir. during the during the break the staff passed out three handouts to you the first is the is the applicants packet which was submitted by the applicant it's states at the top regard law group LLC these are the done by the applicant we did pass that out then we have a white piece of paper that says a staff exhibits for the Bayou Bluegrass Catering, and this will be the essence of my presentation today. And then we also passed out a previous staff report. Did you get everything? We passed out a previous staff report from 2006 for Ms. Judith Bacorn, because that was an appeal that has some bearing on today's discussion regarding the catering use. What is being appealed is the Division of Planning's decision to deny the applicant a permit for a catering service of property located at 861 South Broadway. This is a property that is located in a highway service business zone. It's a B3 zone. Where the property is located is not, in essence, what today's appeal about, but the uses that were being proposed at the counter, as you can imagine, we get a lot of people every day coming in and asking for zoning compliance permits. And as we were going through and discussing this application for a permit, the Division of Planning determined that the requested use was not a permitted use in the B-3 zone, and we denied their application. And it's that denial of the application for the zoning compliance permit that is before you today. On the staff exhibits, the very first one starts off with definitions, because the definitions in this particular case are very important. At first, we show you the definitions as they are derived directly from Article 1-11 of the zoning ordinance. So when the zoning ordinance specifically defines a use, that for the purposes of enforcing the zoning ordinance, that is the definition that we need to go by. When a use is not specifically defined in Article 1-11, then we're to use the most common definition. In this particular instance, some of the related businesses to catering, there is a banquet facility, brew pub, which is a special type of restaurant, which is half restaurant, half microbrewery, A commissary, which is somebody who prepares food for sale to restaurants. A restaurant in and of itself. And then a restaurant drive-in, which is a drive-in restaurant. Finally, catering as a use is not specifically defined in Article 1-11. And so I provided the dictionary.com definition just as a, but that's to provide food service for a party or a wedding. So at issue here is the difference between a commissary and a catering. For caterers, you provide food for clients such as weddings and parties and your catering and event. whereas a commissary prepares food on a regular basis to sell to restaurants. Also kind of in this is that where does the line get gray? Where are the differences? There are a lot of restaurants now that have expanded their uses to provide catering on the side of their businesses. You can see that in many different restaurants that say, we also cater, and they might have a single van and sell their food to a wedding party or other type of event. This is the reason why we passed out the Baycorn case from 2006. In that particular instance, that's where the board did decide and kind of set the interpretation that as long as that catering is accessory to the restaurant, it's an allowable accessory use. You don't have to say that that's catering, but it definitely has to have the restaurant in that case. So why are we here today? The property is Zone B3, and as the applicants came in to request their use, with everyone when they come to the counter, We don't just flat out, you know, just kind of give out the zoning compliance permits. They have to fill out their application form. We tend to have conversations with people across the counter to understand what it is that they're asking for and how does it apply to our zoning ordinance. And in this particular instance, as they were explaining their business and their business use, it became clear that it was a catering use. And so that is what we have denied. The rest of my staff exhibits, I want to walk you through the other appropriate zones very quickly. The B1 zone, which is a neighborhood business zone, is the first zone that allows restaurants and brew pubs. It also allows banquet facilities. The B3 zone is the Highway Service Business Zone, and that's the zone that the subject property is. As you can tell, the uses that are in the B1 zone do not carry forward into the B3 zone. The B3 zone is a separate zone, so there's a break there in those uses. Restaurants are allowed, and commissaries are allowed. Banquet facilities are not allowed, and neither are catering as a principal permitted use. In the I-1 zone is the first zone in which the catering is an allowed principal permitted use. That's our light industrial zone. It is also allowed in our P-2, which is our office industry and research park zone. And as the applicant and theirs pointed out, there is also one other zone that allows it as a principal permitted use, and that is the ED zone, an economic development zone, which is also an industry-related, an industrial-related zone. The last page of the staff's handout is the official letter that we gave to the applicant when we were denying their zoning compliance permit. And you can see the logic that the staff has presented when we said no. First, at first they came in asking for a commissary use, and I said, well, are you going to be paying, per our definition of the zoning ordinance, will you be preparing food for a restaurant? No, they're going to be more of a caterer. They're going to do events and other things. We also discussed at the counter the possibility because the applicant wants to take over an existing, what is currently a vacant restaurant use. They want to take over the building and use the catering use. We even discussed the possibility of a banquet facility in, you know, adaptively reusing this restaurant as a banquet facility. However, this property is zone B3, and a banquet facility is not a principal permitted use or a conditional use or an accessory use in here, with the thought being that, okay, they'll use the kitchen to prepare their foods, and they can also rent out the dining room as their banquet facility. That is not a permitted use in the B3 zone either. finally as we kind of came down to it we looked at what what were the applicants options I told them right then and there and I still will do this today that if they want to open up a restaurant per the zoning ordinance definition of a restaurant then we could issue a zoning compliance permit for a restaurant it's an allowable use it was the previous use the building is there, the parking is there, there's no reason why a restaurant cannot go back into this subject property. Thus far, they have not chosen to change their business model or their business plan to take that step. Additionally, we pointed out that if they thought that the zoning ordinance needed changes that they could do like other applicants and they could file for a zoning ordinance text amendment. We just heard in the other one that if you think that the zoning ordinance should be changed, we have the ability in Fayette County that they can apply for and make their pitch that they need to be able to add catering as an allowable use in the B3 zone should they wish. finally, as with all administrative decisions that the Division of Planning or Building Inspection makes, they can appeal the decision to do so to the Board of Adjustment. On that particular case, you're not really making the decision on whether his catering use should be allowed at that location. What you're really asking, what the real appeal is, did the staff appropriately apply the zoning ordinance when we denied the zoning compliance permit? And I do believe that we did because when you have a use that is specifically defined and uses that are specifically allowed in some zones rather than others, that is the interpretation that we need to go with. One of the essences of the applicant's appeal is that a commissary is substantially similar to a catering use. And my reply to that is that the substantially similar clause, that is to be used whenever the use is not mentioned somewhere in the zoning ordinance. because there's just no way that you can think of every possible use and write them all in the zoning ordinance. So what you do is if you get a use that comes to us at the counter and that use is not listed anywhere in the zoning ordinance, our options are to, you know, look for what uses are. Is it substantially similar to? And in this particular case, catering, although not specifically defined, is specifically principally permitted in the I1, P2, and ED zones. It is not allowed as a conditional use or a principal use in the B3 or the B1 zones. We do have the interpretation that we go with that it is allowed if it's accessory to a restaurant, but that's not been proposed thus far. The final thing that the staff looked at, and I don't have this for you, it's in the applicant's packet, but last year in 2014, there was a similar case that came before you, an administrative appeal. It was for the Boquez Perez property. It was a use that they were proposing to do a banquet facility in a B3 zone. And in that particular case, that applicant had made a case that their use was substantially similar to other uses that were allowed in the B3 zone. The board did approve that case, but some of the specific language that was put into that approval was that you found it appropriate for that particular case because that B3 use was surrounded by B1 zones which did allow a banquet facility. In this particular case, those same circumstances that apply to the Boquez Perez case do not apply to this case. So the staff did not feel that we could use that interpretation because it didn't have the same set of facts that you have here today. I believe that that concludes my prepared remarks. the staff does stand by our recommendation, I mean our original decision to deny the zoning compliance permit for a catering use in a B3 zone, and we'll be happy to answer questions or anything of that nature. Of course, we would also like the ability to respond to any specific comments that are made by the applicant. Thank you, Mr. Emmons. Any questions from Mr. Emmons? Mr. Emmons, one of the things that you said in your presentation was that the application was denied and that you all and the staff properly applied the zoning ordinance to deny the application. But in every decision that's made that comes before us for an appeal, the staff has properly applied the zoning application. So that's not a unique argument for this particular application, like it's not unique for any, because we're here, as I said earlier, to grant relief from the unfair application of zoning in certain cases if the case warrants relief. The other thing you said, and I want to make sure I understand it, you said that the fact that catering is not included in the B1 or B3 zones, and it's not, but it is included in the two industrial zones that you mentioned and another E zone that I wasn't familiar with. But are you saying that is your logical argument that the inclusion in catering specifically in a zone, because it's mentioned means that it is excluded in another zone where it's not mentioned? Yes, because where you have those principal permitted uses first allowed, they are first allowed in our industrial zones. And I'm talking about catering as a principal permitted use in that zone, not accessory. But where it's first allowed, once again, it's just like you cannot have a manufacturing plant in a neighborhood business B1 zone because that is first allowed in an I1 zone. It's allowed in a different zone. The way that the zoning ordinance is set up, it's got the principal permitted uses, and it says other uses substantially similar to. Then it also goes into accessory, conditional, and then finally prohibited uses, and it says the first part is all other uses that are not specifically allowed are prohibited. And then it goes on to list some specific prohibited uses that are used to illustrate those prohibited uses. So the idea of what is specifically prohibited. Well, we're – and I didn't mean in my presentation, if it came off that way, that the staff is right. But obviously, we believe that our interpretation is correct, and that's the reason why we issued the letter to deny the zoning compliance permit. We do recognize the board's authority, and the reason why we're here today, you all are the interpreting body. And did we interpret it correctly? Well, I want to make sure we interpret it correctly as well. So can we agree on a couple of things? But catering is not defined. Catering is not a defined use in the zoning ordinance, according to Article 1-11. And it's not a defined term in the ordinance either, is it? Or is it? No. Catering does not have a specific definition in the zoning ordinance. That is correct. And so the examples that are used like commissary, for example, which is the, I agree it's the closest at least from the materials that you gave us, that it could be, it could be, it's as close to a commissary. And the difference between a catering business and a commissary, according to the definitions that you provided, are that a commissary is a premises used for preparation of food for restaurant use, while a catering business might be premises used in preparation of food for residential use, for example, or for light business use or something like that. I'm always baffled by these cases where it appears that in a light business zone, more intensity of activities may be permitted and less intensive permitted, less intensive uses may not be permitted. I'm always baffled by that kind of thing, and this is a good example of that because a commissary, for example, would be a higher intensity use, it seems to me, than a catering business. Now, maybe that's just a judgment call or something on my part, but it seems like that if we're restricting activities, a commissary activity would be a higher intensity of use than a catering business. A catering business has a principle-permitted use. The reason why it's first allowed in our industrial zones is that it shares a lot of those characteristics. They tend to have a fleet of vehicles. You don't have customers coming in and out. You mostly have employees coming into and out of your business. You have a fleet of commercial vehicles with most catering uses as a principal permitted use versus catering as an accessory use to a restaurant where you tend to have, like, you know, the restaurant has one van and one person assigned to setting up the catering and use on that. So you still have those regular customers coming in, and it's very much more like a business use. But that seems counterintuitive because it seems like if you were growing a business, you would start out in your own kitchen making food. It becomes popular, you start catering. You become more popular, and you find a brick and maybe a food truck, and then you become more popular and you find a restaurant. That seems to be the progression. So it seems like the catering business, especially a mom-and-pop catering business, would be a less intrusive use than a restaurant. So it's just odd to me. Understood. Okay. Any other questions from Mr. Emmons? Thank you, Mr. Emmons. Thank you very much. Mr. Regard. Thank you. I see that you have the written materials that we put together. I thought you were going to get him a little earlier because there's quite a lot of information there. But basically, Mr. Falcone has operated a catering business in Lexington for approximately 13 years, excuse me, since 1988, but for the last 13 years has been located at the Red Mile, which is an adjacent property to this property. And as part of his business at the Red Mile, he operated out of the clubhouse of the Red Mile, which is not a restaurant that's open year-round. It's open for special events and during the race meet. He also has a lease on what's known as the Round Barn. A lot of people don't realize that the Round Barn is a separate property from the Red Mile. That's the beautiful barn when you first drive into the Red Mile. It's a historical property, and they've entrusted with Mr. Falcone the ability to cater into that facility and use that facility for events. Due to the restructuring of the Red Mile, and I know this board is familiar with Keeneland and the Red Mile bringing in what we call historical racing, They've restructured the facilities there, and now Mr. Falcone has relocated his business. And he's relocated his business into an adjacent property, which is currently B3 zoned. Our interpretation of B3 zoning is that it is a very permissive zone. The actual intent of the B3 zone is to encourage economic fatality. And one of the reasons I want to mention that is because the specific property that we are discussing here is a property that has actually been a failed use. The property next door has also been a failed use. It's a gas station that actually failed. This was a restaurant that actually failed. So Mr. Falcone has taken it upon himself to purchase this property, to move his business, to create a viable business that is part of our tax base. Now, part of his business model for many years, based on how he operated at the Red Mile, was not only do they cater into other locations, they also have always had a seating area for people who wanted to have smaller functions, business meetings, so on and so forth, where they could cater into that. So it's not a restaurant in the sense of a public accommodation to whoever wants to walk in the door, and it's not really a banquet facility. This discussion has been mentioned because it's not something that's going to be rented to a third party. Dupree's catering is not going to be allowed to call Mr. Falcone and lease that area of his building to have a function. So he's got this area where he's going to be able to have a function, and then he has the catering kitchen. So that's basically what we're doing here. So if we go back to B3, the intent of B3 is very specific about it being an extremely permissive code. And I think that's important because when you then read about principal uses and accessory uses, they both mention substantially similar. So when you have the argument that the word catering exists in the code, and it's only allowed in three places, if you're not one of those three places, you can't have it. One, there's no justification in law that I could find about that, that says in a statute, if something is specifically listed somewhere else, it means it's prohibited somewhere else. That just doesn't exist. Furthermore, if you actually look at the prohibited uses of B3, it specifically says that you're not going to prohibit those things that are substantially similar uses to your principal or your accessory uses. So that's very important because even the prohibited section allows for a more expansive interpretation of the code. So prohibited uses. All uses other than those listed as principal, accessory, or conditional are substantially similar to principal, accessory, or conditional. shall be prohibited. So it doesn't say you're prohibited if you're not a principal or accessory or conditional. It allows the similar language. So then as we get further into it, we can look at a few actions that this particular board has taken. Mr. Emmons has presented for your review the staff case report from 2006 involving this idea that a catering business is an allowable accessory use. Well, catering is not listed as an accessory use. Catering is only listed three places in the code. So by the logic that's been used by the Division of Planning and zoning, it is impossible for it to be an accessory use if you follow their logic. But they actually didn't do that. In this particular instance, they used the proper logic, which is let's look at what's really happening here. Let's look at what these people are using their property for, and let's find a way to allow this restaurant to have a catering business. So even though catering isn't allowed, in this instance, they said let's allow it as an accessory use. So the logic that you're excluded from using it because it's mentioned somewhere else clearly doesn't apply because in this case, catering was clearly used. And it was used in this particular instance as an accessory. But if you turn to the second page of their own report, it discusses the investment that a caterer has to take on when they want to establish their kitchen. It talks about the fact that catering, and this addresses the light industrial zoning, catering often does not involve large-scale industrial processing and packaging of foods as is done in light industrial zones. So even though we do allow catering in an I-1 zone, the staff specifically looked at it and said, you know, it's really not like industrial business. It's really different. So when you put all of that together, the idea of a caterer not being substantially similar to a restaurant, a commissary, they can have nightclubs, you can have alcoholic beverages in a B3 zone, clearly is not applicable in this case. Mr. Falcone is here. I know he wanted to speak to the board as well, so I'd like to let him make a couple of comments. Before you sit down, I'd like to ask the board if there's any questions for Mr. Revard. This is just your opening statement that the B3 zone is a permissive zone. How did you phrase that exactly? I believe it's a permissive zone. If you look at the intent of the B3 zone, it specifically says intent. This zone is intended to provide for retail and other uses which are necessary to the economic vitality of the community, the vitality of the community, but may be inappropriate in other zones. So the first sentence is saying we want to provide for economic opportunities that may actually not even be allowed in other zones. I interpret that as being permissive and expansive rather than restrictive. Thank you. Any other questions? You can have a seat. Thank you, sir. Hello, my name is Matthew Falcone. I'm at 861 South Broadway. And I just want to let you guys know that as a caterer and a chef, what we do is we prepare stuff, custom stuff. We don't do high volume things. We're a small business. I have been blessed with the opportunity to Red Mile for the last 13 years, done very well there, and allowed me a chance to grab onto a piece of real estate that had failed as a restaurant. I knew that. I was aware of the risk there. But I felt like because of the business I had at Red Mile, at the Round Barn specifically, the historic building, which we took over when we came there it was infested with pigeons and it had dirt floors and if you go in there today you'll see something that Fayette County can be pretty proud of. We have totally helped to fund the remodeling of that building. It's the oldest building and structure left on Red Mile. It's over 140 years old and we're proud to do events there. It's in high demand for private events. We're known for our food and that's why we got to go to Red Mile. We're not in the yellow pages. You can't even find our phone number in the phone book. I learned to stray from, you know, my grandparents were Sicilians from, you know, I'm third generation. We know how to cook. That's our job stability. And although I went to college and that never get in the food business. It's serving well, and we've done well with it. We are a custom caterer, and I want to point out that I'm a farmer. I own a farm in Fayette County. I'm in the restricted area of the PDR where we have 259 acres that can never be developed. We raise chickens, pigs, cows, and some of our vegetables for our business. and we chose to do that because we wanted to have the quality of producing a heirloom product and you know i have everything invested here but i don't want you to think we're producing this massive catering business with vans and trucks and trailers we have two vans i want to make sure you mentioned that there were multiple vans and multiple employees our intersection is limited there to get out and if you haven't experienced it you should because it is limited i have five full-time employees and two vans so we have 40 40 spaces for parking and i think the staff and the two vans and the cumulative wouldn't wouldn't amount to 10 cars coming and going as a restaurant that we're operating lunch and dinner i would think we'd have a couple hundred coming in and out so i just want to make sure that that's understood catering and commissary is very loosely in the in the food business in the commissary world in the in the the world of chefs we all come from commissaries most restaurants now are offering catering i'd like to show if i could the one example of my neighbor one of my two neighbors the marriott who offers catering and my next door neighbor the Waffle House who offers catering and has so when you come and go from my b3 we run right on side of this that we're going to display there that's that's my truck exiting my parking lot and I don't see how I can be denied this opportunity to serve my customers that are just around the corner at the round barn and then my next neighbor behind me the Marriott does banquets and weddings and small groups and private dining and catering as you can see circled there so the last thing is one of my competitors is in a b3 like myself and has operated and been granted an opportunity to do what i'm trying to do just down the street on bursell's road which is right around redmont road as you know so i know it is uh maybe a flaw i'm not sure why it reads this way, but that in fact shows it's a B3. I pointed this out to Mr. Emmons, and he seemed to be somewhat surprised when I pointed this out to him and then later said, well, we'll call you back and let you know what our thoughts are, and that's why we're here today. So thank you for your time, and I hope that we can continue to do business. Thank you, Mr. Falcone. Does anyone have, Mr. Griggs? I have a question for you before you sit down. Mr. Falcone? Over here. Mr. Falcone, come on back up to the podium, please. I'm always curious how someone gets in this pickle that you're in, and you've purchased this building with the idea of putting catering into it, and you had a lawyer, and you'd... Why didn't you check to make sure that it was a breeze to get this permit that you need? That's a great point. And I did three specific things to make sure because this is a big investment. I'll have over a million dollars out on this investment. But when I spoke to the gentleman that owned the business, he said he did catering there. He had a restaurant and did catering. At the closing, my bank brought up that point, and the attorney that represented the gentleman said, no, that is catering and commissaries are approved in that B3. It's okay. And Andre and I discussed it, and we all thought that it was clear. The reason that this happened was I was attempting to get a catering liquor license when I asked for the signatures that you have to have to apply is when this point came up. but I had already closed the property. But I think it's still a great point, and I can take the easy way out and open a restaurant and go that direction, but it is really confusing as to what is the difference between a commissary and catering. A commissary is a place that chefs work in to prepare food. He brought up this point to prepare food for sale. Well, we are selling that food. Then later he said that it was to sell food to a restaurant. Well, hardly any commissary sell food to other restaurants. They may prepare it for their restaurant, but I'm only selling my food to specific customers that have a menu design custom for their event. But I did do some due diligence. Unfortunately, I think the people I've entrusted in that, the attorneys were the same opinion, that commissary, catering, and restaurant are allowed there to be three. Thank you very much. Mr. Irwin, is catering prohibited in B3? it would be the staff's position that as a principal permitted use it is and what documentation or what ordinance does that fall under because catering is not defined and because it's not defined and because it no I'm sorry I apologize I It's not because the use is not defined. The use is not listed in the permitted use section of the B3 zone. The language that I'm drawn to, Mr. Ammons, in your exhibit is, well, it's in both exhibits. It's 8-20, the B3 zone itself. 8-20B, principal uses, parentheses, other uses substantially similar to those listed herein shall also be deemed permitted. So the exercise in trying to fit a catering business or trying to determine whether a catering business is similar to a commissary seems to be why we're, that seems to be the justification for us trying to juxtapose catering to a commissary. Am I reading that right? That is correct. The staff does not see those two uses as substantially similar as it's applied to the zoning ordinance because of how the zoning ordinance is constructed. And that interpretation is because catering is permitted in the light industrial zone, and it's not mentioned in the B3 zone. So like my earlier point was the inclusion in one means the exclusion in another. Yes. That's what your conclusion is. So with respect to this process, what is the board being asked to decide? the applicant has appealed the decision to deny a zoning compliance permit so if you agree with the applicant then you would be essentially telling the division of planning to issue a zoning compliance permit for a catering use on the subject property because the board finds it because of whatever findings the board provides. Because if it's, you know, that's kind of the because there. So that's the part that I can't really tell you. Well, let me ask you this. There are, in the B3 zone and other zones, there are principal uses, there are accessory uses, and there are conditional uses. if this doesn't fit, for example, if this doesn't fit in as a principal use, if we conclude that, and it doesn't fit in as an accessory use because he's not operating a restaurant, would it be appropriate to consider this as a conditional use? I'm just asking the question because I don't know. I'm unaware of any of the existing listed conditional uses that this use would be similar to. From a technical standpoint, if you chose to do that, you would want to say that it was similar to one of the listed conditional uses. And if that were the case, then the applicants would need to come back in with another application for that conditional use on this particular property. So the interpretation there is what is it substantially similar to? Let me ask you another question. And this is probably more of a legal question, but what's the precedential value of us deciding to allow this appeal? It would be in just the – it depends on any – the particular wording of any findings that the board may or may not come up with. But in its simplest fashion, that if you decided that a catering is substantially similar to a commissary, then that would be the interpretation that the division of planning would go with. And we would allow catering and commissaries in a B3 zone, not just for the applicant, but for all applicants. some of our concern with that is that as I mentioned earlier some of the some catering uses are very industrial in nature and so if the board does want to to to go down that route one of the things that I would caution the board to think about would be kind of based off of the testimony that you had today where does the catering use kind of what's more of a retail catering use that's more appropriate in the B3 zone and what's more of an industrial use? What's the scale of the use? How many vehicles, how many commercial fleet vehicles do they have? Those types of issues for you to think about. And that kind of, those kinds of findings or that kind of finding would be specific to this particular case just like in the case that you've presented to us historical reference had had the board in 2014 determined that banquet facilities were substantially similar to other uses we probably would not in the b3 zone we would probably not be here today but when the board did make those findings on that particular use, the findings had some very specific facts associated with that banquet facility in the B3 zone, and those facts were not present in this case. So we said no. Can I add something to that just to be a little more lawyerly probably in what I would look at? What Jimmy's saying is that in terms of precedential value, if another case came before you that was somewhat like this or an appeal like this, you would have to look at the facts and circumstances of that case, and they'd have to be largely similar to this case for you to make the same findings. In other words, if a different type of business came in and wanted to be a catering operation in a B3 zone, just because you've granted this one doesn't mean you're going to grant all others. If your findings are specific to this case and like they were in the other case, if that makes sense. So in other words, there is some precedential value in that if another situation very similar to this comes along, then your precedential decision may apply. But if another case comes along that's largely dissimilar to this, it doesn't mean you're going to have to do the same thing every time. I understand. We'd have to find that this applicant is distinct from other applications. Or just that a subsequent one may be different from whatever you find here. So we would need to make specific findings of fact that characterize the nature of this particular business with this particular applicant. Or specific findings as to what you think is similar about this particular operation. Similar to a commissary? Yes, or whatever you're going to base it on. Okay. Ms. Griggs? that's still up on the screen. Did you ever come up with any conclusions about that, Jimmy? And I can't really read it, but it says it's doing business as commissary. What is that? Yes. There is for the full flavoring and doing business as catering by Donna Potter. We did look at that particular instance as a comparable use in a B3 zone. And you can see on that application, it was doing business as a commissary. There is one other piece of paper that was also in that file that was an affidavit by Ms. Potter that said that she is doing, further stating that she is doing her work as a commissary preparing food for restaurants as well as catering for other parties. And that was the, once again, the catering was accessory that played into our not using the Ms. Potter as a decision that we could base a zoning compliance permit off of. While I have the floor, if I can, there are two, unless there are additional questions from the board, there are two clarification points that I would like to make. The first is that the board did receive the applicant's original application in your mailing last Friday. On February 23rd, he submitted some supplemental justification, which has some more justification and more exhibits. The basic argument of the applicant was in his original letter, and that did go out to you last week in your mailing. What I passed out to you today was the additional materials that the staff received on February 23rd, which helped bolster his case. The other clarification that I wanted to make was the second page of the Ms. Potter. Thank you, Mr. Emmons. I can't speak for the board, but I will make this comment. I'd like to see, I know Ms. Jones has come up with some language. I believe that we do have some language that can be applicable to approve this applicant's appeal. And particularly with the documentation that we've seen up there today, I think we've heard from the applicant, we've heard from staff, we've had our opportunity to ask questions. And with that, I'd like to ask if anyone has anything else to add. I guess I just have one question. So my sense is the commissary, you think, is different from general catering because the potential of having many vans deliver and have people pick up? Is that the distinction? And so what's different here is that there'll just be a couple vans they will deliver. And are you saying you just do it at Red Mile, or do you also do additional other parties? I'm open to everyone. I do food all over the city. Probably 50% of my business has been at Red Mile and around Warren. I have maybe 38 of the men's booked there this year. But I have UK football tonight, for instance, at Coach Stoops' home. So it's whoever has a specific need, we do custom catering for all the men's. Okay. At this time, the chair will entertain a motion. Mr. Chair, I move to approve the applicant's appeal, A-2015-12, Bayou Bluegrass Catering, LLC, and permit a catering service based on the following findings. findings one that the zoning ordinance section 8-20 parentheses e allows for uses substantially similar to principal accessory or conditional uses in the b3 zone and number two that bayou bluegrass catering llc is a use substantially similar to permitted uses in this b3 zone such such as restaurants, commissaries, and or microbreweries. And number three, that pursuant to the intent of B3, the relationship of this use to other existing uses in the zone appears to be compatible with those immediately surrounding this property, and further hereby authorize the Division of Planning to issue a zoning compliance permit for the use of a retail catering business as described in this hearing at this location, which appears more as a retail catering business than as an industrial catering business. Thank you, Ms. Meyer. Is there a second? I'll second it. Ms. Whitman seconds. All in favor of granting the appeal, signify by saying aye. Aye. Aye. Any opposed? Unanimous. You've got your appeal. Good luck, Mr. Falcone. Thank you for your time. And thank you, gentlemen, for your patience today as well. I'd like to ask if, is there any other items that any of the board members, sir, would you come up? No, Ms. Revard, you're... Yes, sir. I'm Jack Stewart. I'm here on behalf of the Lexington Universal Academy. and I'm embarrassed that I mistook the time of this event and would have hoped that we could proceed to have their approval for their activity. Well, I know that we postponed this event or postponed this case earlier because no one showed up. And I hope there was no emergency because we actually put it back on the agenda several times, as we called your name. I asked the board if they would like to hear. We've not had anyone that we've asked since I've been the chair that we postponed and then they showed up. So what's the procedure here, Mr. Salee? Mr. Chair, I told Mr. Stewart the exact words you just used, and I've been coming to these meetings longer than you. We did talk to Ms. Jones, and she may have a suggestion. Ms. Jones? The board might consider this. If the board is so inclined, I think you would have to vote to rescind your postponement and to hear this at this time. Otherwise, the postponement would stand. Well, I would like to ask the board's pleasure if there is a motion to rescind the postponement and hear the case. Mr. Chairman, I move that we rescind our action to postpone this case. Is there a second? I second. Ms. Whitman seconds. All in favor signify by saying aye. Aye. Thank you. Any opposed? Mr. Stewart, you've got the floor. We've got your conditional use to expand the school building gymnasium at 4580 Nicholasville Road. The staff has recommended approval subject to three conditions. Do you agree to abide by those conditions? Yes, we do. Does anyone have any questions for Mr. Stewart? That being said, the chair will entertain a motion. Mr. Chair, our motion will approve C-2015-8 Lexington Universal Academy appeals for a conditional use permit to expand the school building, gymnasium, and agricultural urban AU zone at 4580 Nicholasville Road, based on the staff recommendations and the three conditions. Thank you, Mr. Forrester. Is there a second? Second. Mr. Glover, second. So all in favor signify by saying aye. Aye. Aye. Any opposed? Thank you so much. I appreciate it. Thank you. We'll see you on time the next time, Mr. Forrester. Yes, sir. I skipped over early on in the meeting. We had our board minutes from January 30th of 2015 to approve. You all have had an opportunity to look over the minutes. Is there a motion? Mr. Chairman, I move that we approve the minutes of the Board of Adjustment meeting of January 30, 2015. Thank you, Mr. Glover. Is there a second? Second. Second, Ms. Whitman. Everyone in favor signify by saying aye. Aye. Any opposed? Very good. I'd like to ask if any board member wishes to be present, to be heard. I'd like to ask the staff if there's anything else. Mr. Salee. Thank you, Mr. Chairman. We have nothing to add. Very good. I'd like to announce, Mr. Glover, that our next meeting will be March 27th, 2015. Thank you, Mr. Chairman. I will not be here at that meeting. I already know that in advance. You will be missed, Mr. Glover. I will not be here either. All right, Ms. Moore, you will be missed as well. Just don't talk about us. Hopefully we will have a quorum. I'm sure we will. If there's no further business, I'll declare this meeting adjourned. Thank you all very much. Thank you, Mr. Chair.