Sailing on the cool and bright clear water There's lots of those friendly people They're showing me ways to go But I never want to lose their inspiration Time for a cool change I know that it's time for a cool change. And now that my life is so prearranged, I know that it's time for a cool change. Ladies and gentlemen, if I could have your attention, please. I'd like to go ahead and call the March Board of Adjustment meeting to order. A couple of housekeeping items. I'd like to ask you all to please turn off your cell phones. And if you need to take a call, please do so outside. I'd like to swear in everyone that is going to speak. So if you plan on speaking, would you stand up, please? Raise your right hand. Do you agree to tell the truth and nothing but the truth? I do. Thank you. You can have a seat. I don't think we have any minutes, do we, Mr. Emmons, to approve? No, sir. They were not. Do we have any withdrawals? Or postponements Very good if not I'll read the agenda First item is big blue rentals is the applicant here Very good you can have a seat. I'm going to read the agenda and if there's no opposition We'll hear those cases first if there's opposition will hear those cases those cases last We also have an administrative appeal and I know the attorney for that has got another hearing at 3 o'clock so if we need to move them up on the agenda we'll make that determination. Is there any opposition to Big Blue Rental? Any opposition? Okay. The next item is Sydney Van Ness. Ms. Westover is here. Is there any opposition? Is there any opposition to Sydney Van Ness? Item 2015-19. No opposition? Very good. Murillo Commercial Properties, are they represented? Very good. Is there any opposition? Is there any opposition to Murillo Commercial Properties? Okay. DMK Development? Mr. Nicholson is here. Is there any opposition to DMK Development Group? Any opposition? Mount Olivet Baptist Church. Mr. Stewart, is there any opposition to Mount Olivet Baptist Church? All right. And then our last item is our administrative appeal. We'll go ahead and start with the first applicant. Big Blue Reynolds, would you please come forward? State your name for the record. Abby Jones, 1022 Fontaine Road, and my client Matt Jones. We're here to, for a continued hearing, I believe, with regard to Leader Avenue. That's a parking lot. And we have been able to work with all of the different staff and have copies of those different staff approval letters for the technical design of the parking lot expansion. And Jimmy has those in the folder. So staff has worked with us, and we have resolved all of the different technical questions that were left at the last meeting. Very good. Staff has recommended approval subject to three conditions, and you agree to abide by those, correct? That is correct. Mr. Emmons, did you have something? Mr. Salee? Yes, Mr. Chairman. We have an objector that's arrived since you first called the item just a few minutes ago. There is an objector here for this item. All right. Well, we've already called the case, so we'll go ahead and if you all will have a seat. Are you in objection to? Okay. Why don't you all have a seat for a minute and let's listen to the objection. Please come up and state your name for the record. My name is Amy Clark and I live at 628 Castle Road. Okay. I have materials to give into the record. For the sake of brevity, I'll make my remarks as quickly as can be. I have two objections to the proposed parking lot enlargement. It appears to render the lot nonconforming with respect to open space, a 20% of the lot area requirement, and also nonconforming with respect to the required side yard. There's a provision in the zoning ordinance that if, as here, the building has its entrances not on the front but to the side, the side yard is required to be 30 feet wide, and it may not include parking. The open space requirement is 20% of the lot area, And I believe that once the additional parking paves over what grassy patch there is, they will be non-conforming with respect to furnishing that minimum lot area. I would add that in my view, the applicant has not demonstrated a needless hardship in the uniform application of the zoning ordinance, no needless hardship in not being able to furnish sufficient parking. By the testimony that is part of this hearing from its continuance last month, he is furnishing sufficient parking to his own tenants. and his lease available publicly online, and I will give that into the record, indicates that company policy with his properties is to furnish one parking space per bedroom and it must go to the resident to obtain a parking permit and they're apportioned and permitted individually, I believe with numbered spaces. these parking spaces, the resident must demonstrate their ownership of the vehicle and so on. So it would seem there's not a company acknowledged or provided for need to have more than one parking space per bedroom for the 21-unit apartment building. I believe all the units are a single bedroom each. So those are my concerns. I'd like to ask the staff, she mentioned parking issues and nonconforming side yard requirements and so forth. Mr. Evans, can you respond to that? The side yard requirement, I do believe that this building probably predates that, the 30 foot side yard requirement. The, I don't know when that was put in, but I highly suspect. I'm not familiar with the 30-foot side yard requirement just without a citation of the ordinance. I mean, we'd be glad to look at that, but there's nothing that comes to mind outside of Article 9, and this is not an Article 9 type of development. The other issue that was just brought up was on open space. And the usable open space on a lot, one of the things that can actually be counted is the outdoor balconies and from the picture on the thing you can see that there's a second and a third floor balcony so that does count towards their usable open space. I couldn't tell from the plan submitted, it didn't have all the dimensions recorded, whether those outdoor balconies were in fact five feet minimum width. It looked to me as though they weren't. Okay, thank you, Ms. Clark. Ms. Clark, before you take a seat, does anybody have any questions for Ms. Clark? i'd like to you can have a seat i'd like to have the applicant come back up we would confirm that they are five foot minimum balconies and we have worked hard since the original since the last meeting our site plan was revised to meet with the different staff comments including open space and so there are additional open space areas on our revised site plan that Jimmy does have. It is worth noting that the parking lot expansion that we're proposing utilizes permeable pavers which do not count as pavement. They count as grass in the water quality section of the codes. So we are actually providing for that and also some additional detainment volume within that the design for that parking lot paver that it has extra rock underneath it to count as detention space which is totally above and beyond the the minimum of what is required here and I believe Matt would speak to the need and the desire of the residency has for additional parking state your name for the record? Matt Jones. And I've got a lot of residents over there that, you know, every year they want extra parking spots for their visitors or friends. They have no place to park when they come in. There are several units that are double occupied. Students are always looking to save money at school, especially with rising tuition costs every year. And so they're all one bedrooms, but they're not all occupied by one person. So every year that fluctuates, but there's always people wanting extra parking. Plus I have vendors come in. There's nowhere for them to park. A lot of times it's like, where are we going to park, Matt? So, you know, it's a big issue. I mean, you might not realize it, but if you're managing it and living it every day, I guarantee you there's an issue. The last item I think might be worthwhile to mention is that the one reason why we're before this board is to ask for permission for variance for the front yard setback to be within five feet of the back of the sidewalk. And most of the other parking lots in this area are already at that dimension. so we are asking for the same treatment as the other parking lots that are in this general area. We are able to enlarge the existing parking lot somewhat, but we wanted to square it up and make it the most efficient design and to make it acceptable to the fire trucks so that they can get around the parking lot as easy as possible. So that's the one reason why we're here today. we would be doing a smaller permeable paver situation if we weren't coming before you today. But we believe that this is the best design and we have the approval of all the different staff saying that the final design that we've come up with does meet all of the criteria, including those that were mentioned earlier today. Any member of the board have any questions for the applicant? Mr. Griggs? It says in your application, and I remember last month you said that these parking spaces will be rented out individually, and the staff was going to look into whether that's a legal use. And that was a misunderstanding on the part of my client. We have a letter, and Jimmy had been sent a copy of it, and we have it right here in front of us saying that my client does agree to limit the parking lot spaces exclusively for the benefit. of the residents of the property, and so we're clarifying that. That was a misunderstanding, and so we are making that very clear that these parking lot spaces are for the use of this building only. It wasn't a misunderstanding. Are you changing your business practices? Originally, I thought I would sell a majority of them, but that's not going to happen, I guess. You have been selling them, though. That's what you said last month. That is correct, yes. And so you're changing your business practices, and there was no misunderstanding. Is that correct? Not on my part, no. So why would you need these additional parking spaces if you have 21 apartments and you've got nearly twice that number of spaces? Right now I've got like 28, I believe, and for reasons I just mentioned. Some of these spots are double-occupied in terms of the apartments themselves, visitors. There's no place for visitors to park, and vendors as well. Those are the main reasons. And I have pledged in the letter that Jimmy has a copy of that they'll be exclusively for the residents. This is a big investment in this piece of property to take care of vendors' parking and the occasional doubling up in a one-bedroom apartment. I'm skeptical about your intentions. Thank you. I mean, all I can say is I promise. Mr. Emmons, did you have anything that you wanted to add? I was simply going to add, based off of the letter that the applicant has submitted and the testimony that he gave, it might be that the board could consider a fourth condition and just simply put that the parking shall be used as accessory to the residents on the subject property. Just simply put into a fourth condition. Okay. Ms. Clark, did you have anything you wanted to add? Yes, thank you. A couple of things. First of all, I wonder why that condition would be necessary since that zoning actually requires that the parking be solely for the resident's benefit. More importantly, I want to say that I had corresponded with the manager of planning services and also the staff member for the board of adjustment today. and asked for any updates. And I received the information that division staff had in great part or altogether signed off on the problems that were raised last month, including the width of the driving aisle. And I was told that there were no new application materials or plan or supplemental information that had been furnished by the applicant. I want to say that it's very hard for citizens to participate in the process of upholding the zoning ordinance. When we cannot have timely information of cases that come before you, it's also difficult for you to weigh them in any very fair way. it looks to me as though there's a competing request for a variance on the side yard requirement I believe that when you change a lot you have to bring it up to current code to current zoning ordinance which would require that side yard even if it was legally non-conforming before the enlargement was made. And if the open space is there in the balconies, I can have no objection in that regard. However, apparently that green space serves as its flood control now. It serves as its detention basin. To me, it doesn't look like progress in environmental stewardship here to pave that and put underground water retention in. And I would also add that the university is really very aggressively working on furnishing additional parking and also furnishing transit options to encourage both employees and students not to need to bring their car to this already heavily paved area. I was at a meeting yesterday. They held two meetings yesterday. And there are also, I believe, over 200 spots, 260-some spots that will very shortly become available, already authorized by the Board of Trustees, where the Reynolds Warehouse is at present on Scott Avenue. Thank you. Thank you, Ms. Clark. To Mr. Griggs' comment, the issue that has cleared up for me is obviously the selling of the parking spaces and knowing that they are going to be exclusively for the residents. I'm not opposed to the fourth condition, and I assume that you all would not be either. I know that, obviously, you know, it's a very dense situation around the university. Parking is always a problem and is always an issue at a major institution. But one of the things that I think has been very important is that the applicant has gone back with staff and has worked with fire and emergency services, solid waste traffic engineering, and staff appears to be satisfied, and quite frankly, so am I. Does anybody have any other questions for the applicant? Mr. Slee? Not a question so much to Mr. Chairman, but Mr. Emmons did remember the citation that Ms. Clark was making about the side yard issue, and we can put that up on the overhead if you'd like to look at that. Okay. I'll let Mr. Emmons explain this section. The section is that if you do have a multifamily structure turned on its side on any given lot, there is the increased side yard of the 30 feet. In this particular case, if they were applying for a new building, this section would definitely apply. I do believe that this building was very likely, this whole area was built out in this fashion a very long time ago, and I do believe that that building probably precedes that section of the ordinance. Otherwise, it would not have been able to be legally permitted to build the way it was. adding to the existing parking does not, in my opinion, does not go against this or make it any worse. It's not, if they were applying for a new building, obviously this section would definitely apply. But the staff does not see a conflict between Article 15 2B3 and the proponents increase in their extension of their existing parking lot. Thank you, Mr. Emmons. Mr. Griggs, any questions? Good. Okay. Very good. Thank you. Did you want to add something, Ms. Clark, something that hasn't been mentioned? Yes. I would just ask Mr. Emmons, by way of rebuttal or whatever, whether some of the green area intended to be paved over by the proposed enlargement in parking doesn't actually count toward the side yard open space that is required. They may not be fully furnishing it, but wouldn't that be over on the side of the yard in the western direction that's required, and doesn't that pave it over so it would constitute increasing a nonconformity? I think the date of the building is 1979, and I'm not in a position to tell you the date of that ordinance. Mr. Emmons, can you answer that? I don't have anything other to, I mean, my response is the same as I gave earlier, is that I do believe that the application before you today is compliant because of the building is predated the regulation. Does anybody else have any other questions? If there's no other questions, the chair will entertain a motion. A motion we approve V-2015-5 Big Blue Rentals LLC appeals for a variance to reduce the required front setback from 20 feet to 5 feet in order to install parking and drive aisles in a planned neighborhood residential R3 zone at 178 Leader Avenue based on the staff recommendations and the four conditions, which was the fourth item. Parking should be used as an accessory to the residents only. So do property. Thank you, Mr. Forrester. There's a motion. Is there a second? There's not a second? If there's not a second, I'd make a motion in the reverse. All right. Obviously, correct me if I'm wrong, staff, but if there is a motion and there's a lack of second, then we will ask for a motion to, is that correct, Ms. Jones? Would we ask for a motion then to deny? You're going to move to just a motion to disapprove, but you're going to need findings. I'll wait for a minute or two while you create some. Thank you. We need to allow Ms. Jones a couple minutes to find findings. So if you all will bear with us. Thank you. okay it that was after We're not going to talk to you right now. Thank you. Okay. Mr. Chair, I'd like to make a motion. Mr. Griggs. That we deny the 2015-5 Big Blue Rentals appeal for a variance to reduce the required front yard front setback from 20 feet to 5 feet in order to install parking and drive aisles in the planned neighborhood residential zone at 178 Leder Avenue for the following reasons. The strict application of the zoning ordinance will not create an unnecessary hardship on the applicant as he has already been operating without the requested variance. And two, granting the requested variance will adversely affect surrounding properties by creating an unnecessarily more dense parking and traffic flow situation in an already congested area. Mr. Griggs has made a motion to deny. Is there a second? Second. All those in favor signify by saying aye. Aye. Any opposed? No. I'm afraid your variance has been denied. And of course our decisions are final as a quasi-judicial body. And I believe Mr. Saleem, Mr. Emmons, they will have to go to circuit court to, would be your next step. if you wanted to try to overturn this decision. Thank you all very much. I'd like to ask Sidney Van Ness, the applicant, please come forward. Good afternoon. I'm Chris Westover, the attorney for Sidney Van Ness, who is here also present. hi miss westover the staff has actually recommended approval subject to three conditions do your client agree to abide by those yes sir yes any questions from the board of adjustment if there's no questions the chair will entertain a motion mr chair i move to approve the 2015 19 sydney van ness's appeal for a variance to reduce the required side setback from eight feet to one foot for a new garage construction and a single family residential and neighborhood design character overlay zone at 225 Chenault Road for reasons outlined by staff and subject to the three conditions outlined by staff. Thank you, Ms. Meyer. Is there a second? I have a second or a motion. Thank you, Mr. Forrester. All in favor signify by saying aye. Aye. Any opposed? Good luck. Thank you. Thank you very much. Marilla Commercial Properties, would the applicant please come forward. As the applicant is coming forward, staff has received one letter in support of this application. I'll pass that out to the board now. Thank you, Mr. Emmons. Did you state your name for the record? I'm Billy Mott with Element Design and I'm Raven Mars with Marilla Design and Construction. Very good. The staff has recommended approval subject to two conditions. Do you agree to abide by those conditions? We do. Yes. Very good. Give us just a minute to look over this letter that Mr. Emmons has just passed out. I'd like to ask the Board of Adjustments if they have any questions for the applicant. Hearing none, the Chair will entertain a motion. Mr. Griggs? Mr. Chair, I move that we approve the Board of Adjustments. Approved V2015-20, Marielle is commercial properties appeal for variances to reduce the required side street side yard setback from 20 feet to 6 feet and reduce the distance for an overhead door from 100 feet to 20 feet in an order to construct a new warehouse slash office building in a light industrial zone at 974 Manchester Street. based on the staff's recommendation of approval and the two conditions. Thank you, Mr. Griggs. Do we have a second? I second the motion. Ms. Whitman seconds. All in favor signify by saying aye. Aye. Any opposed? Good luck with the project. Thank you. DMK Development Group. Mr. Chairman, as the applicant is coming up, the staff has received two letters in opposition on this one. We received them last month. Okay. Would you like to pass those out to us? Nick Nicholson here on behalf of DMK Development. The letters that you are being passed out right now were from parishioners of the Pox Christi Church that are the direct adjacent neighbor. The month postponement that we had was in order to meet with the church in order to work out any issues. we have come to an agreement and the church is actually here to be represented here today and in support of this project so you have taught mr. Nicholson you have talked to the folks that yes and they are now in basically in the project I do want to point out that this the development plan was approved by the planning commission yesterday and it was amended slightly from when our application originally was put forth and it went from 251 beds to 253 beds and only an increase in two beds but I do want to make sure that I specifically brought that to your all's attention and we have discussed that with the staff and it does not change their recommendation of approval and we are also are in agreement with the staff's conditions for approval very good those those three conditions. Mr. Irmonds, anything to add? I did put on the board, I apologize it's not up on the screen, but on the board we put the color up of this particular case. That is the final, that is the development plan that the planning commission approved at yesterday's hearing. you can see that it's got the the two the two structures on on the property the the primary difference and it was mentioned in our staff report that access was one of the major concerns on the subject property the the primary difference is is that instead of having access to Nicholasville Road the development plan has access to man-of-war Boulevard with a right in write out it also shows an access through the pox christy access easement over to victoria way and that has not changed since the original application the the staff report recommends approval of the use with the with the development of the property subject to the Planning Commission approval of the final development plan the one thing that and part of the reason why it was important for mr. Nicholson to get on the record today is that the staff is recommending in condition number one that the that the site constructed and operated according with the application and site plan except as amended by the Planning Commission but we pointed out that if there were further expansion of the number of beds that were needed or desired that that would require further Board of Adjustment approval because that really gets to the intensity of the use not just the built environment and so the staff has no problem with the additional two beds it does not make a significant difference in our in our staff report to have a total of 253 beds I believe that this site has about 80 additional parking spaces and the two extra beds would not even require an extra parking space thank you mr. Evans does any member of the board have a question for mr. Nicholson I just like the letters seem to speak to access into the would you tell us how you resolve that sure it was it was kind of twofold and it was one of the reasons why we needed to go to the Planning Commission first as you all are aware I'm sure access to man-of-war is very restricted and it requires a specific Planning Commission action to do so the way that we were originally having to essentially put forth the development plan was only with a right in right out on Nicholasville Road I'm sure you can imagine anyone coming from Lexington would not be able to access this site but for going through the church parking lot the shifting of that right in right out to man or significantly reduced the amount of traffic that would go across the church parking lot and they actually reduced it in half and the agreement with the church basically is in order to we are now going to work together with the church in order to have access to Toronto later Toronto Road which is just south of the property it involves essentially an expansion of the church's conditional use acquisition of property and kind of a development plan that will have to one the the conditional use will have to come back before you all the development plan would also have to go back before the planning commission but we've worked out that access agreement thank you mr. Nicholson any other questions did we talk about before you left last month or two months ago about whether there'd be a emergency generator on this site we did not but I have basically I was conveyed that that concern that actually is going to be in the facility it not be near any residential units at all and i understand that the concern there was about noise the testing of it weekly yeah and so that we we made sure that that would be a internal issue not affecting any uh properties outside marvelous thank you thank you mr nicholson any other questions if not that you'll entertain a motion i just have a question for jimmy um so the the number one condition can stands as it reads that the further expansion of the number of beds is needed or desired it will require board of adjustment approval do we we keep that verbiage in there to be clear on the record it might be since they're since we have a number you might want to insert that number into that condition so if the if the further expansion of the number of beds beyond two more than 253 i believe bill is working on some insert that language to put can we insert can we insert that language yet it's acceptable okay miss my sure okay All right, we've included the language of the 253 beds, and you and your client have agreed to abide by those. I'll ask again, is there a motion? Mr. Chair, I move to approve C-2015-9 DMK Development Groups, LLC, appeals for a conditional use permit to construct a nursing home in an assisted living facility in an agricultural AU zone at 4210 Nicholasville Road for the reasons outlined by staff for approval and subject to the three conditions with the amendment to condition number one, naming the 253 beds. Thank you, Ms. Meyer. Is there a second? I second. Mr. Forster, seconds. All in favor, signify by saying aye. Aye. Any opposed? Good luck, Mr. Nicholson. Mount Olivet Baptist Church would the applicant please come forward state your name for the record Jack Stewart good morning or good afternoon Mr. Stewart Mr. Stewart the staff has recommended approval subject to the three conditions do you agree to abide by those? Yes we do I'd like to ask the Board of Adjustment if they have any questions for the applicant if not the chair will entertain a motion mr chair i move to approve 2015-18 mount olivet baptist church's appeal for a conditional use permit to construct a building addition to an existing church in a light industrial i1 zone at 1008 delaware avenue for the reasons recommended by staff and subject to the three conditions outlined by staff thank you miss meyer we have a motion is there a second a second miss whitman seconds all in favor signify by saying aye aye any opposed thank you mr stewart good luck thank you all very much appreciate it i believe the last item on the agenda is elvis lee simmons with the applicant please come forward state your name for the record Andre Regard here on behalf of Mr. Elvis Simmons. And I'm Elvis Simmons. And with me are Ms. Brenda Mack and Mr. William Clay, Senator Clay, who will also be speaking on this matter. Very good. I'd like to hear from staff first. Mr. Chairman, members of the board, this particular case is for a, it's an appeal of the decision to deny a zoning compliance permit application for a property at 400 Chestnut Street. This property is located at Chestnut Street at the corner of East 4th Street and Chestnut Street. I've got just three very quick just kind of set up in your notebooks at the end. You'll notice that there is not a staff report on this. You'll have two packets of information, a letter from Mr. Regard, which is their appeal, and then the letter from me on the letterhead that explains the reasons why we were denying the zoning compliance permit. The property is zoned R3, and that's a neighborhood residential zone. And this particular property does have a history of having nonconforming uses on it, but the zoning has always been R3. Currently, this is the 2015 current zoning map showing that the property is zoned R3. We can flip back. Going back to the 1968 adoption of the zoning map at least, You can see that the corner property there of Chestnut Street and East 4th Street was also zoned R3 back then, so it has consistently been zoned R3. And if we can turn to the last image, this is just using Google Maps street view. This shows the property as the picture was taken in May 2012. You can see it was originally built as a commercial structure. The request for a zoning compliance permit was for a pool hall in the subject property. As we came in and looked at the history on the subject property, the last documented piece of paper that we have, oh, thank you, Bill, The last documented use that we have on the property is that in 2000, Rashida's House of Style, which was a beauty salon, did come to the Board of Adjustment and request change of one non-conforming use to another. And the Board did approve that beauty salon as a use in 2000. According to our records, the Rashida's House of Style moved away over to Georgetown Street in 2009, and that we believed that this site, that they ceased to exist as a beauty parlor at that site in 2009. In talking with the applicants at the counter, whenever I was asking what were the uses, since there wasn't anything in the record about what the uses were, I was, what is this use? Because it's, our information is that there's not been anything there since 2009. And based on the testimony provided by the applicants at that time, that there have been one or more churches that have occupied this structure. Churches are an allowable conditional use in the R3 zone, but we could not find that those churches had ever come to the Board of Adjustment to request approval for that use in the subject property. In the end, the staff determined that the applicants had lost the nonconforming use on the subject property because Article 4-3C is that once a nonconforming use is discontinued or abandoned for one year or more, that nonconforming use status is lost. Furthermore, according to the next section down in Article 4-3D, whenever one nonconforming use is replaced by a permitted use, then it says that the non-conforming use shall not be resumed. That one was kind of a little bit of a hard one because the churches that were reportedly in the property in between the beauty salon and today, they never came to the Board of Adjustment for approval. I can't see that they were ever in there legally, but they were uses that could have possibly have been approved in that case. In the end, based off of the information that I had available to me, we determined that the applicants had lost the nonconforming use status in this particular case. there was about three days between the time that they came in first to the counter to request the zoning compliance permit until we issued this letter that you have before you today because I wanted to give the applicants additional opportunity to bring more information to the staff. the staff did not give them an application to the Board of Adjustment to change one non-conforming use to another because we could not get over the hump that the non-conforming use was lost. Therefore, there was not a valid non-conforming use of the property for you to have an application to change one non-conforming use to another. and that was our staff position. But with that being said, one of the things, because you can't get to that next regulatory step, but once you've lost, if you can't come to a conclusion on the first part of that, the staff does recognize that the requested use of a pool hall for the subject property is first permitted in the B3 zone, which is the highway service business zone, and whereas the last documented use for the subject property was the beauty salon, which is first allowed in the neighborhood business, the B1 zone. So even if it can be established that the applicants have not lost their nonconforming use, Staff still questions and would have a hard time recommending the requested use of a pool hall because that is a more intense use than the previous nonconforming use. So we wanted to keep that in mind as you're looking at this possible use today. The applicant has hired an attorney. They've submitted their appeal and their exhibits, and staff wouldn't like the opportunity at the end to either rebut or answer any further questions. Thank you, Mr. Emmons. I can close my remarks. Does anybody have any questions for Mr. Emmons? Okay. Mr. Rivard, do you want to come back? Mr. Rivard, I'd like to ask, too, what is currently in the building, and when has the building last been occupied? The building is currently, well, as we speak, I believe the proposed tenant has moved in some of their equipment, but the building is not operational as anything. Its last use was a gratuitous use to a church group to use the property. Mr. Simmons can explain that to the board. They used it as a meeting place and whatnot. The last paid tenant was in 2009, right before the economic crash, and that was the beauty salon that Mr. Emmons mentioned. When was the last tenant? 2009. paid or unpaid? Well, the church, he's had a for rent sign on it the whole time. But the last person to be in there, when did the church leave, Mr. Simmons? Probably 2012. 2012, sir. 2012. Okay, thank you. I do have a little bit of additional material, which I would like to give to the board. As Mr. Emmons pointed out, there are two particular issues in front of the board currently as it deals with the property. The first issue is the issue of non-conforming use and what does it mean to discontinue being a non-conforming use. I think it's important that the board realize that this property was built in the 1930s. and it was built as a commercial structure. You can clearly look at the structure on the exhibit that Mr. Inman's put up there and tell it is a commercial structure. It's not a residential structure that is being retrofitted as a commercial use. Furthermore, if you look at what the PVA's office has done, is they have clearly identified the property as a retail location and as a commercial structure. I know it's in the papers I gave you also as one of the exhibits. It was attached to our original letter of appeal as exhibit B to the letter of appeal. Land use code, retail, property class, commercial, clearly an R3. So this property has been built and constructed as a commercial use. It has been taxed as a commercial use and has been taxed in that way for many, many years. As a way of an example, if you look at Exhibit D of the letter, there is a house that is adjacent. Same size lot. It's taxed on a $14,000 value, while this piece of property is taxed on a $42,000 value. Those taxes are current and they are being paid by Mr. Simmons. So that's sort of some of the background of the property. My understanding, Mr. Simmons will testify about this, that over the last 70 or 80 years, the property has been used for a variety of commercial uses. It is clear that when this neighborhood was built, this property was intended to be a mixed-use commercial use within the neighborhood. And I highlight that because we live in a day and age when mixed use is what we're trying to do. As a matter of fact, as you're well aware, we have an infill plan in Lexington, which is to encourage the mixed use and infill of our properties. And this is a classic example of a piece of property that has no use other than a commercial use. It's built as a commercial use. To use it as a residential use is basically impossible. It's not built as a residential property. and its best use is commercial. When you look at the regulation as it applies to nonconforming uses, which was Section 4-3C, I really don't believe that's a particularly well-written provision. When a nonconforming use is discontinued or abandoned, showing a gross lack of diligence in use for a year or more. So then you have to question, what does it mean to show a gross diligence in use for a year or more? Mr. Simmons will testify that he has attempted to make the property available. He has a foreign rent sign on it. He can't control the economic situation that exists within our city. But we're now in a situation when we do have a tenant who's willing to rent the property and use the property in a commercially viable manner to produce more taxes for the city and to provide a location for members of the community to gather, to socialize, to share each other's company. And Ms. Mack is prepared to testify about that and also present to the council a petition that has over 35 signatures on it from the community. So I would say showing a gross lack of diligence in use for a year or more is not the situation here. The property has not been allowed to decay. The taxes have been paid. The utilities have been paid. It currently has utilities. It just is vacant. So we believe that the loss of nonconformity is not applicable in this situation. So now we're in a R3 zone. We have a nonconforming property. It's been nonconforming since it was built. It was nonconforming in 1968 when they put in the code. So then the question becomes what are the nonconforming uses that are applicable? And the most previous paid tenant was a beauty salon. A beauty salon does appear in B1. It also appears in B3. One of the problems we have here is pool hall. So Ms. Mack and Mr. Clay want to open up a small pool hall. It has three pool tables. It doesn't have six, seven, or eight pool tables. Three pool tables. They're also going to have TVs to watch sports events, games, tables to play cards, dominoes, just a gathering place for members in the community, and they may want to apply for a malt beverage license at some point in the future, and I want to bring that up now so that we can address it now rather than have to come before the board again at some point in the future. Obviously not asking you to grant it, but just putting it as an allowable condition that they can apply for that license, and if members of the community object, they can do so in accordance with the ABC rules. But when you look at the different uses, you look at B3, you look at B1. A beauty salon is also in B3. It's in B1 and B3. And a pool hall is in B3. Also in B3 are a variety of other uses. In a B3, you can have a beauty salon, which is what it was before. You can also have a restaurant or brew pub, which can also be in B1. A restaurant or brew pub can also have one or two pool tables without having to come before the board of adjustments. in this situation, they would like to have three pool tables. You can also have the sale of malt liquor, wine, or alcoholic beverages, which is also contemplated under B1. Furthermore, B1 also contemplates as a conditional use a cocktail lounge or a place where alcoholic beverages are served. So I believe when you look at the entirety of the planning and zoning ordinance and you look at B1 and B3, the general use that they want to use the property for as a non-conforming use is generally acceptable under B1 and under B3. And it previously was a beauty salon, which is under B1 and B3. So we don't think it's a more intensive use. We don't think it's a use that is outside of the parameters of what are already contemplated underneath the B1 and B3 zoning that the property has used in the past as a non-conforming use. If the board would allow, I would like to bring Mr. Simmons up, and I just have a couple of questions to ask him to make sure we hit the right points, and I would like for him to provide some responses. Yes, sir. Any questions for him? Can you remind me what is the name of the B1 zone and the B3 zone? Are one of those the neighborhood? B1 is a neighborhood, and B3 is highway access. That's correct. Okay. And that's why I have the highlights about B1. So B1 is your A16. So A16 allows a beauty shop is under A16. Also under A16 is your cocktail lounges, which can be allowed as conditional use. You can also have up to two pool tables as an accessory use. I do realize we're asking for three, and if for some reason, as part of the condition, the board said, you know, let's go with two tables, we could certainly do that. But we're going to ask for what we would like to do, and we certainly understand there may be conditions that are put on that by the Board of Adjustments. Are pool halls listed in any of the business zones separately, not connected to taverns? A pool hall is listed under both a defined term and a listed use. It's a listed use under B3. It's defined term as three or more pool tables or billiards tables. And so are the intensities of the uses as you proceed through the business zones more intense as you go to B4 and B6? In other words, sometimes to determine intensity, they look at the first zone that it was allowable in. So one might make an argument that a pool hall is more intense than a beauty parlor because one shows up at B1 and the other shows up at B3. My personal opinion on that is the zoning laws are politically written for what people think are appropriate use. It's not necessarily for the intensiveness because a restaurant is allowed under B1 and B3. And a restaurant has the same intensity of a use. A church is allowed under B1 and under R3. And you arguably could say that on a Sunday or a Wednesday or whatever day of service you have, a Saturday, that you have a certain intensity of use. This is a fairly small location. It's not 5,000, 6,000, 8,000 square feet. It's 1,000 square feet. There is not a location directly within the vicinity of that community for members of the community to gather and to socialize, which I think is very important, and I believe as we go into all these mixed uses, we've realized there are very important considerations for our communities. I think what we're struggling with here, if we get past the hump of having lost the nonconforming use, is the intensity, because I believe there's another ordinance that says if you have a nonconforming use and you change it, it needs to be the same or less intense. So we might need to look at the hours of operation that the beauty parlor was open and the number of patrons that visited it compared to a pool hall and the number of people there and the hours of operation and maybe the amount of noise. I think those are fair conditions that we could put on, Mr. Griggs, as far as hours. if there are certain hours that are appropriate. But as I said earlier, you do allow a restaurant and brew pub under B1. And so if you're just looking at the intensity of the use and you say, well, a beauty salon was a first use, and it's a first use under B1, I think it's appropriate to look at what the other uses under B1 are. And since a restaurant or a brew pub is an appropriate use, and a banquet facility is an appropriate use under B1, you could certainly argue those are very intense uses. But this is not a straight-up B1 zone. This is a nonconforming use, and there's lots of permitted uses in a B1. Some are much more intense than the other, and I'm putting to you that the beauty parlor is much less intense than a pool hall with liquor license, and that's what I think is going to be the problem for me if we get over the loss of the use. Thank you. Any other questions for Mr. Rivard? You said that Mr. Simmons wanted to— Mr. Simmons had a few comments, and I had a couple of questions. I thought it might be the best way to relay the information. Mr. Simmons, could you tell the board a bit about the historical use of the property to the best of your knowledge? I'm not going to go into a year-by-year blow of how it's been used. Can you step up to the mic? I'm not going to go into a year-by-year description of how the building has been used. prior to my a partner and i purchased it in 79 and it had been by that time an operating laundromat we operated it as a laundromat for probably four or five years then water and sewer rates went up drastically and my business partner married and i bought his interest out and sold the equipment out of the building and converted it to just remodel the inside of the building and started seeking tenants. And I'm aware of the fact or the comment that ignorance of the law is no excuse. But in all the years that I've owned this building, And it's been used as church groups, but not necessarily in succession. There have been church groups in and out. There have been, there was a Muslim group that rented it for a while. There was a used furniture store there. There was a used clothing store there. And there was a video rental store there. And these have come and gone over the years. And in that period of time, as the staff pointed out, they have no record of this, but in that period of time, the various people who rented the building apparently did not pursue requests from whoever they were supposed to secure it from, and I certainly never did either. I wasn't aware that we needed to. There's nothing, I don't think the urban county government can produce any correspondence which indicates that how I used the building from 85 on was nonconforming or illegal or forbidden or whatever the terminology is. when Mrs. Thompson rented the building for a beauty shop, she came to me and her primary concern was not the building, not how it was zoned or anything else, but she was concerned about the stringent requirements that, according to her, the State Board of Cosmetologists has in terms of when they come in, they want all these things addressed and so on. So she asked me if it would be okay if she went through all of the steps to support, went through all the steps to get the proper zoning. And I gave my permission, and she did. So basically, it's been used for a lot of variety over the year, and with little or no objection from anyone that I can recall. Mr. Simmons, have you, just so the board gets your testimony, have you attempted to get tenants over the last four years? Yes. I mean, there are a finite number of churches that are looking for a 1,000-square-foot building. you know, trying to build up a congregation or whatever and so on. And I was approached by someone who thought they might put a barbershop in there since there had been a beauty shop, but it didn't work out. I was approached by another group who were interested in putting a grocery store in there. They even went so far as to put down a deposit and so on. But then whatever, looking into their business plan or whatever they did, they decided against it. So that's the reason it has been vacant, but it's not for lack of an effort. And the actual property, can you tell the board a little bit about if it's not used for commercial use, is it eligible for residential use? This building consists of one large room with a bathroom at the back, half bath really, divided by wall. Otherwise, a large room, ceilings probably as high as they are in this room. I'd say this is probably 14 or 16, and the ceiling in that building is equally as high. As you can see from a side view of the window, windows up high, much higher than probably where these decorative things are over the door. So, you know, short of tearing it down and starting over, I don't think it's going to be a residential building. Thank you. And I had Ms. Mack is here as well. She's the prospective tenant, and she would like to say a few words, please. Did anybody have any questions for Mr. Simmons? Okay. Ms. Mack, can you please tell the Board of Adjustments? I'm sorry, Mr. Rivera, would you state your name for the record? Yes, Brenda Mack. Thank you, Ms. Mack. Ms. Mack, can you tell the board how you intend to use the property if you're able to get a conditional permit to use the property? I would like the community to come together, and we're going to have televisions, we're going to play dominoes, We're going to play cards, and we can do things like that, have social events among each other so they can socialize and stay out the way a little bit, you know, trying to do something positive. And do you believe it's going to benefit the community to have that resource available? Yes, with no doubt. The community is for it too. And have you received any complaints at this point from anyone about the proposed use? Not one. No, I really haven't. And have you had any comments about community support for the proposed use? Nothing but good. And Ms. Mack had a petition which I'd like to give to the board that were signed by various members of the community about the proposed use of poverty. Ms. Mack, do you live in the vicinity of this building? No, I do not. I have before though. I was just wondering if you knew the area really well. I got family. Okay, thank you. You're welcome. Any questions for Ms. Mack? Any other questions? Any questions for Ms. Mack? Thank you, Ms. Mack. Thank you. Mr. Griggs, I would like to address the issue that you brought up earlier about intensity of use because I think we have to look somewhat at the zoning regulation. The zoning regulation doesn't say intensity of use. It says, provided the proposed use is the same or a more restrictive classification than the previous use. So I would argue that classification is B1, B2, B3, or whatever appropriate Bs we're looking at. In this case, the restrictive use of the property is no more, a beauty shop is no more restrictive because it is part of a B1, just as it is part of a B3. So I would offer that up as an answer, and I apologize for my delay in being able to answer it. I knew it was somewhere in there. In closing, I think we would add that this facility is going to be a positive economic and social improvement for the community. The building has no other use, and we would ask that the board go ahead and approve it. I have attached as the last page of my documents to you a proposed resolution. It is the ideal resolution for the prospective tenant, but if there are conditions that the board would like to discuss with us, we'll be happy to discuss those conditions and see if we can come up with a resolution. I do have one other question. If we're really considering this pool hall and would we be giving the final approval for it, do we need to look at things like parking? I just don't know what all the details. And we've talked about hours of operation and that type of stuff. Well, my response to that would be that if we look at the zoning ordinances as a whole and we look at things like B2B and the business zones and what's happening in this specific area, and Mr. Simmons could add, you know, there is a grocery store down the street. There's two small grocery stores One's further down Ohio Street And one's fourth in Ohio In talking to Ms. Mack We don't really anticipate parking being a major issue Because the whole idea is that it's creating a place for people to be able to walk to They anticipate the majority of the clientele being people that would walk to their facility But there may be parking required by the zoning ordinances That's what I'm talking about. You need a variance. I think the parking required is for 1,000 feet would be four spots. And I haven't gone out and looked at the sidewalk and whether or not there are four spots between the front and the two lengths, but for 1,000 feet, I don't believe you only need four parking spots. I'm just saying that there's some details that we ought to look at before we go too far too fast. If we can get over the non-conforming issue, Mr. Griggs, and, you know, if we can do this in steps, If the board feels that this is a continuation of a nonconforming use and as a conditional use, it will allow the use that's being petitioned for, then we'll be happy to go back to the planning and the division of planning and answer the questions about parking. We hadn't gotten that far yet, but that's a very fair question. I have a question for staff. As an alternate, does the Mr. Simmons have the, can he apply to have this property zoned, B1? That, of course, any property owner can apply for any zoning which they would like to request. Some of the issues on this particular property, because the property is built out from essentially property line to property line, and without parking, any zone change to a new zone might run into some difficulties on meeting the parking unless there was off-site parking agreements. The question is, can they apply for a zone change to a B-1? Yes, they can. And I cannot tell you whether that would be successful or not or what types of issues would or would not come out during that type of a zone change. I do have some other closing remarks that I would like to make to kind of finish everything up, but I'll wait until the appropriate time for that. Is there any other questions? Just in closing, obviously the parking issue is certainly a very fair issue, but even under the nonconforming use of the church and the beauty salon, to the extent there were parking issues that would have existed, they were allowed at the time, and it wasn't a prohibitive issue to the use of the property. Thank you. Thank you, Mr. Rivarn. Does anybody, Mr. Griggs? I was wondering if legal has any opinion about this puzzle that we're facing. Well, we've been looking at the ordinance on nonconforming uses and it is sort of a puzzle, but I guess we're having a hard time trying to find some rationale as to how it would be a continuation of a nonconforming use, which seems to me to be the first hurdle to get over. I mean, it's not zoned, it's not a business zone. You know, it may or may not be appropriate as it's zoned, but that is what it's zoned. So if you're going to deal with it as it currently exists, you're going to have to fit it in the hole of fitting in a nonconforming use. And the nonconforming use has to be the same or very similar to what was there. So, you know, that's a determination that you all would have to make in terms of what you've heard today about what you believe exists there and whether or not what's being proposed there can fit in the same, you know, the same spot in terms of not extending or enlarging a nonconforming use. I mean, there's no question whatever use was there was a nonconforming use, And there's also, but I think, you know, and it's up to you all to determine, but there is a question about whether or not that nonconforming use has been lost. If it has, then you can't use a nonconforming, you know, you can't put another nonconforming use in there if the existing one prior has been lost. You know, I don't know if Bill or Jimmy might have any thoughts on that as well, but they've dealt with different situations of nonconforming uses in the past, but this one is a little bit unusual just because the use doesn't seem to fit the zone, but it is what the zone is. Anything to add, Ms. Simmons? My first kind of overarching, my first overarching comment, and this may or may not add some clarity to your decision making today, but what is really at issue today is whether or not the subject property has or has not lost their nonconforming use status. That is the reason why we denied the zoning compliance permit. That's the reason why we denied them an application to change one nonconforming use to a new nonconforming use for a decision for you today. In a very technical sense, I would be a little bit concerned today if the board made a decision to allow the use today because of the type of appeal that the applicant has made on this zoning compliance permit. that had a different type of notification than would be required if they were asking to change one non-conforming use to another. So if the board is inclined to approve anything today, I encourage you to look at the issue at hand of whether or not the applicant has made a case on allowing the application for one non-conforming use to another non-conforming use to be filed. And then you could get into the determinations on the specifics of the use on whether it is or is not appropriate in that case. But as we have been talking about, the first hurdle on that is determining whether or not the nonconforming use has been discontinued or abandoned for more than a year. And as you know, the staff will, not in my time as the Board of Adjustment Planner, but I do know that since I've been in the Division of Planning, it has been, especially in those cases where something has been vacant for more than a year, sometimes those applicants have come back to the board just to simply make the case that they have not lost their nonconforming use status. discontinued, that's an action. It's either there or it's not there. The abandoned, that's more of an intent. And so what the board should really kind of look at is, has the applicant made a convincing enough case today and through the facts that they have submitted to you that they do have a legal nonconforming use status, that they could make a new application for a new, to change one nonconforming use to another. Anything else that I would say just kind of is subsequent to that. So I'll leave it at that. Let me say, while Jimmy's here, that I would agree with that as well procedurally. You know, this appeal is really because they denied a zoning compliance permit and said they couldn't find, you know, existing nonconforming use to give them an application to apply for conditional use to change it to another nonconforming use. So I don't think you can grant this use today. I think you can, if you're so inclined and you believe from what you've heard that there's enough evidence that there wasn't a discontinuance or abandonment of a nonconforming use, I guess you can direct the planning staff to accept a conditional use application to change it from one nonconforming use to another. and then you would have to have a subsequent hearing on that application, which would probably include some more details about things that aren't subject to this because this is really an appeal of saying you won't let me apply for a conditional use because you say there's not an existing nonconformity on the property. I understand what she's saying. Mr. Jones, I understand what you're saying, and quite frankly, you know, in looking at the language, just from my opinion, I don't think that the nonconforming use has been discontinued. I don't think, you know, from hearing Mr. Simmons, and Mr. Simmons, believe me, we try to work things out as well as we can with property owners because we want you to have the best use of your property. But under the circumstances and from what we've heard today and the use that you want to apply for, you know, in this R3 zone, I just can't, from my perspective, you know, support this appeal. I'd like to try to work something out, but according to Ms. Jones, obviously I'm not convinced that you continue this non-conforming use. I mean, the building has been vacant for three years, and so I don't see how as a board we can approve your request today. I don't know how the other board members feel. Well, Mr. Griggs, I'd like to hear how the other board members feel, but for myself, I feel differently than you, Barry, in that I think having a for rent sign up there and always intending to have a tenant, wishing to have a tenant there, you don't want to hold on to it without a tenant, that his intent was to put another commercial use in there when he found one. And I don't. So maybe I need to look at the exact wording of that text again, but I don't feel like he abandoned the property. I want to make this clear. I never said that the property has been abandoned. I did not use that. When you look at this, it says when a nonconforming use is discontinued or abandoned. And I'm saying that I feel the nonconforming use is discontinued. You have tried, Mr. Simmons, to rent this property. You have not abandoned this property. at all. And I did not say that, and I'm not inferring that. But obviously, it's nonconforming use, in my opinion, has been discontinued because the building has been vacant, even though you have tried to rent it. And looking at the staff's report, the proposed pool hall, which again, and Ms. Mack, I agree with you, you know, to have a gathering place for people to come, and it's just this is a very difficult issue, and I'm not comfortable in approving your appeal today because I think we've got too many questions unanswered. But I'm not opposed to trying to do something with the property, but I think that we're very limited as to what we can do today. I reluctantly agree with Mary. I think that, you know, the use, you know, the nonconforming use has been clearly discontinued, you know, and we have documentation for that. And quite frankly, another thing, excuse me, Ms. Whitman, but, and we're talking about the B, what's allowable in B1 and B3, and Mr. Brevard, you made a great case, but, you know, the use of this pool hall is not allowable in the R3 zone. And there are several reasons that I just don't feel comfortable supporting this appeal today. Although, you know, I certainly have empathy for Mr. Simmons and Ms. Mack and the others that want to try to do something with this property. Because we're here to try to help. We're not here to hinder the process. But under the law and under the ordinance and under the recommendations of legal counsel, I don't think that we can do that today. I agree with Mr. Stumbo. I think the issue is whether it has continued as a nonconformity, and it has not. I understand the intent, but it just has not, and that's the issue for today. Yes, I agree with that as well. I do have to give some, I guess, credence to him trying to lease the property. It's not, I guess it's not his fault that he couldn't get the property leased. But the pool hall, if it's not in the regs for us to do, I don't think we should look at doing that as well. So I would agree with the board chair. I'm listening. an apology to Barry for misstating his intent and also my need to see the wording on this part of the zoning ordinance and looking at it I really feel like you can read it both ways because they certainly haven't shown a gross lack of diligence and so maybe it's where the commas are in the sentence. I don't know. But that building won't be converted into a residence. And if it's left vacant, that's a problem for the neighborhood, too. I'm not in any way in favor of a pool hall that can morph into a loud draw for trouble in the wee hours of the morning. But I think if that building had a barbershop in it or some kind of an office where a business office of some kind with normal hours that it could be a benefit to the neighborhood. And I hate to be party to seeing it deteriorate because it's truly abandoned. But I don't know how to fix this. But going beyond finding it acceptable to have another nonconforming use in it today, that's, I think, as far as we could possibly go. And I don't see much support. but I would have a big problem with it as a pool hall. So that's where I stand. There's a need to speak. Yes, Ms. Mack. We've been talking to the community, and it's just something really, really positive for these kids and the neighborhood to do this and have somewhere to go and something to do. And for us, the intent of what y'all are talking about, the police officers, they are for us. They're glad that we're trying to get something positive for people to get off the streets and do something. So they have came through and talked to us. I can't even get it out. Talk to us about this. and they thought it was a good idea. And they are willing to be right there for us if we need them for anything. We got, you know, we're going to put no lottery in. We're going to do everything that we're supposed to do. We're trying to please let us have this. We will appreciate it so much. This is for the community. I think it's wonderful what you're trying to do. And I don't know if there's something in the R3 zone that, you know, you could somehow fit it in, you know, what the model, what you want it to be, you know, not a pool hall. But, you know, I'm not a, you know, talk to the people, you know, the planning staff and see what, you know, what kind of, if you want it for the children, what, you know. I want it to be a community gathering. It doesn't have to be a pool hall, but does it have to be a pool hall? Can it be, I don't know, a gathering spot? You know, a community center or something. You know, take the pool hall aspect out of it and put something, and work with the staff and the R3 zone and see what you can come up with. I was thinking more like what you're saying there, community, just a little community property for people to come in, like I said. And what you said about the pool hall, it don't have to be called a pool hall. It don't have to be a pool hall. I just want us to be able to, if you would let us allow us to have a couple of pool tables for the community to come in and do something positive. It don't have to be called a pool hall. a community action place, you know. But a rec center or something like that. But, you know, I just can't, I can't personally get past, you know, we've got to me, we've got a nonconforming use that has been discontinued. Okay. And I know that Mr. Simmons has tried, but for me, I can't support. Thank you. I just want to ask a question. I'm sorry. I'm sorry. Go ahead, Mr. Forst. Have you talked, I know the area really well as well. Have you talked with some of the nonprofits in the area? I know the Urban League of Lexington, they go in and buy some of those dilapidated houses, rebuild them. You know, making affordable housings in that area. Actually, some are on Chestnut. Have you got some of the Urban League support or some of the other nonprofits in the community to support what you're trying to do? Basically, everyone that I've talked to in the community is supporting us with this. Yes. Okay, because now I know that they're a big part of that Chestnut area in Ohio. If you notice the petition, that's where it's coming from, right in the area, right there. Everybody is supporting me, sir. Thank you. Thank you, Ms. Mack. Thank you. Ms. Jones? One thing I'm hearing that you all might be able to do in terms of how to handle this situation, it would be your decision, is you could, based on the or language in the nonconforming use statute, if you so believe, based on what you've heard, find that there was not an intent to abandon the nonconforming use. and there's facts in what you've been provided by Mr. Regard about what those would be and I've tried to pull out specific ones that may satisfy that. And I still, though, think what you would be doing procedurally would just be allowing them to file some kind of an application with the staff, which would allow some additional time for discussion about what it could be and what kind of restrictions you would need. You know, if you believe that there is some latitude in there to find that there wasn't an intent to try to abandon or to discontinue, in other words, just, you know, drop the ball altogether on that, that might get you over that hump, and then you could, but I don't think you can find or grant a certain use today. I don't think that's what we're here for, and that would allow everybody some more time to consider. It doesn't guarantee a conditional use would be granted when you come back, but it would certainly allow you to have the discussion about it more than you really can with nothing else in the record today. I saw this gentleman behind you. Did you want to say something, sir? Well, may we have, like— Did you state your name for the record? Mr. Clay. Mr. Clay. We have, like, we're going to be putting on, like, things for the homeless, feed them, you know, because he asked that question, this gentleman here. And, you know, we're going to be doing positive things there. I mean, we got the police walking the beat every day, every night. I mean, he talked about the intensity, you know. They're not going to allow nothing to go down in that neighborhood, and they're not going to be on top of it. I mean, he's familiar with that neighborhood. It's just something real. This is good for them. It's good for the young kids that's there. It's good for the neighborhood, period. And that's all we're trying to do is uplift the neighborhood. It's not drugs, no drug relations. There's no violence, none of that. The police stay on the beat, whether it's on foot or whether it's riding. Ain't nothing illegally going on there. It's all fun, and it's all positive. I just want you to take that under consideration. Mr. Clay, I appreciate that. I think that we've heard from you and we've heard from Ms. Mack, and I think that we certainly agree with your statements. What's before us today are not those things. They're not about being a community center and a gathering place and so forth. Again, I don't think that there's been any intent to abandon this. I don't think anybody on this board thinks that. and listening to Ms. Jones' comments, I'd like to try to reach something. You know, Ms. Jones, if we have to, is it possibly, would you advise us to continue this and let the applicant and let the staff see if there might be another resolution? Well, you can do that. But I think if they want to, and they may have to advise you on this, if they want to file something with the staff as to what they might want to do to open up that discussion, I think you all would have to authorize that today because the staff has already taken action saying they're not going to accept such a file. So would we vote to deny this appeal but include language? I'm a little confused. No, I don't think you'd be voting to deny the appeal. I think you would be moving to make a specific finding about whether or not you believe that the nonconforming use has been abandoned and authorizing or directing the staff to accept some type of application from them. That will set up on its own time frame a subsequent hearing so you all can discuss this further, if that makes sense. Would that be, do we have language to that effect? Yes. I agree that there are two aspects to this appeal, and I think based on what I've heard, what I would suggest is that we would withdraw what our use is at this point. If we could please have the board address the issue of it being a, not a discontinued or abandoned non-conforming property, and if the board could vote on that, and hopefully in our favor that, in fact, the nonconforming use has not been abandoned. That way we will have an opportunity to go back to the planning and zoning, the division of planning, and present a conditional use permit. And if that, if we can do one that gets approved, that would be great. And if not, then we could address that issue at some later point. But right now, let's just address the issue. Jimmy, are you willing to? I can put it up there, but I don't know if there's support for it. Well, I think that, yes, Ms. Whitman. A question of legal. If we turn down this appeal, they can still come back with a revised application, or can they? I guess that's my question. I don't think they can because what the staff has said is not, the staff really hasn't commented on what the nature of a use might be. What the staff has said is we're not going to accept an application from you because based on what we were told, we don't feel like there is an existing nonconforming use. So if you make a finding different than that, based on what you've heard today, then the staff, and direct the staff to take something, then they can take something, and then the discussion about what it's going to be and what would be proper and what would be consistent with whatever has been on that property can be discussed. That discussion wasn't had with your planning staff at all because their determination just was, we don't think we can give you an application to file. I have a problem with the malt beverages and a place for children. Don't quite seem to go together. And maybe this is not the time to talk about that, but I guess my thought was if we turned down this appeal and then that they would come back with something that would fit into the R3 zoning? Well, if you turn down this appeal, they won't be able to come back. But if you base it on findings that they can file something because you found, based on what you've heard today, that there wasn't an intent to abandon a nonconforming use, then you can have those kinds of discussions. Anything they would file subsequently, you would certainly be able to consider in light of, you know, is it appropriate? Does it fit within what was there? What does the staff have to say? And it would also give the staff an opportunity to talk with them and discuss what they're considering or proposing. I mean, I'm not saying one way or another they may still propose something and it may still be problematic. But if I'm not mistaken, I don't really think that discussion has been had at this point. I think that's true. I would like to clarify the two different types of applications that the board has been considering over the past few minutes the staff has no trepidation accepting an application for an allowable conditional use in the R3 zone at this location however much of the testimony you've heard today are more intense uses than what are allowed as those And once you get to those category of uses, whether it be the pool hall or other commercial uses, that's where you're really considering perhaps a change in one nonconforming use to another. So I think your decision on this appeal informs whether or not they can file that particular application, not an application for a conditional use permit. And that will also, I mean, the applicant may have a change of heart about what they want to file or not. I mean, but at least it allows the door to open for some more discussion to be had about this. And then for you all to reconsider that when it comes back, or to consider it. Well, it would give us an opportunity to reconsider it. And I think that what we're hearing from the board members is that we'd like to try to reach some kind of a compromise. and I think that this language might get us to where we need to be because if not, if we don't adopt something like this, I think we would have to deny the appeal and I would much rather try to reach some type of compromise, some kind of middle ground so we can come back and have you all reapply and work with staff and come back before this board. That's something that might be more acceptable. to us. I'd like to ask just so I understand so because I think Mr. Simmons is correct. The disapproval was as Ms. Jones has said was you have lost your nonconforming use and I agree we probably have gotten too much at this point into what would be a conditional nonconforming use. So as I said earlier if the board could address the issue on whether or not the non-conforming use was lost, because I think that's important because that affects the second discussion. We're either going to go to the board, I mean to the Division of Planning and discuss another non-conforming use, or we're going to go and discuss what's allowable under R3, and those are two different discussions. I think that's what we're trying to do here, Mr. Revard. Mr. Griggs? I've got a motion that's been prepared by the legal staff, and I'll put it out in front of us and see if anybody wants to second it. Regarding this administrative appeal 2015-17, Elvis Lee Simmons, I move to find that the appellant has not intended to discontinue or abandon the nonconforming use of the property based on facts supplied by the applicant and numbered. Number 10, the economic depression of 2009 made the rental of the property difficult. Number 13, the owner has not acted with gross lack of diligence in continuing the eligibility of the property for a nonconforming use. Number 14, the property taxes and assessments have been kept up to date. Number 15, it is a benefit to the community to have a taxpaying business use the property. And number 16, by not allowing a continued commercial use, the property will become worthless. So we want to use those facts to direct the planning staff to accept a conditional use application to further discuss the nonconforming uses that may be allowable on this property. Is there a second? Mr. Marks? Just so we don't get any more confusion, that type of application would not be a conditional use application. It would be an administrative appeal application to change one nonconforming use to another. So that we're going to direct the planning staff to accept an application for a nonconforming use to further discuss this nonconforming uses that may be allowable on this property. Thank you, Jim. Thank you, Mr. Marks. Is there a second? Second. All in favor signify by saying aye. Aye. Aye. Any opposed? We've got the language. Hopefully you can come back before us and we can reach some type of a resolution that's good for the owner and good for the neighborhood and something that obviously we can support. Again, I've mentioned this many times. We're a volunteer board up here, and we listen to the applicant. We listen to the opposition. We listen to the staff. And we try to make a fair and impartial decision on the facts that we have. And sometimes they're extremely difficult for us to make. And so I think that today I think we've reached, hopefully, an acceptable compromise for you. and certainly we would like to be able to see that be a vibrant part of the community and wish you well and I assume that you'll be back before us. Thank you. I'd like to ask if any members of the Board of Adjustment have anything else. Do you want to take, Mr. Rivard, do you want to take your petition? We can keep that for the record, please. Oh, we keep that for the record? Thank you. Does the board have any other information they'd like to share? I'd like to announce that the next meeting date will be April 24th. With that said, I'll declare the meeting adjourned. Thank you all very much. Thank you. Thank you.