thank you everybody. This is the mamp 31, 22017 board of adjustment meeting. I'm brandon gross, chair of the board and what I'm going to do first is go through the docket. We have a full house, I'm I'm assuming this will probably, I don't know how long we will be here. We will be here a while. What we are going to do is go through the agenda and for cases that need to be postponed or withdrawn we'll hear those first. Then we will go through cases that are uncontess said -- uncontested and then we'll go to the ones with the objections. I'll ask you if you have an objection that maybe the parties can work something out in the hallway when you go out to the hallway I ask that you close the door so we don't hear your deliberations. I also ask if you have a cellular telephone to please turn it off or put it on silent so it did us not go off during the middle of someone's presentation. First order of business is the approval of the minutes. I believe Miss Mcmillan sent them out on March 3. Has everybody has the opportunity to read them? Did anyone have any objections or changes to the minutes? Is there a motion to approve. >> I move approve. >> is there a second? All those in favor? Opposed? All right so the February minutes are approved unanimously. The next item I'm going to do. are there any parties who have a withdrawal or postponement? Please introduce yourself for the record Mr. Symptom. >> bruce simpson darby dan farm so pln-boa-17 darby dan farm. Anyone else here for the matter? >> we would like to request a one month postponement. Staff do you have any comment? The board any comment. Does anyone want to move? >> so moved. >> second? All those in favor? Passes unanimously. Anyone... See you next month greg thornton for emanuel baptist church. We would like to withdraw the part on tate's creek road and ask for a 30-day postponement on the rest. Mr. Swain? Several people. Is there any objection to a postponement or withdrawal? >> your honor, I'm not here on behalf of my neighbors but I am here on behalf of myself. Speaking for myself,... >> Mr. Swain please introduce yourself. >> douglas swain. I live in the neighborhood that is adjoining the property so I have no personal objection to it. I think there are some others that are here that May want to speak for themselves. >> what I'm going to do then is I'm going to pass the gavel to Mr. Glover for this portion of the hearing and then I will step aside and let you run on their request for a postponement and withdrawal. >> fair enough. Tell me again. i was half listening. You said you wanted to with hold a portion of it. >> we would like to withdraw the portion that concerns 3009, 3013 tate's creek road and postpone the rest to allow to us meet with the neighbors. >> the odd numbers are the, that's the piece of property that's across the road is that right? >> yes. >> and that's the portion that the staff had recommended disapproval on, as I understand. >> that's correct. >> okay. And Mr. Mcswain, you had, you said... >> speaking as to the postponement issue, on behalf of myself, I have no problem with the postponement because it is my understand that church wants to meet with the neighbors and discuss some of the issues and see if we can't iron these issues out. Again I think some of my neighbors are here. Others of them asked me to speak. I'm not really their attorney on this matter so I'm not going to speak but I don't think there is a general opposition to it although the ones who did show May want to speak. >> is there anybody in the audience opposed to postponing that portion of the church request to postpone that portion that is across the road and try to work it out with neighbors? Anybody who is opposed to postponing that? Hearing none I'll... Sorry. >> identify yourself please. >> john douglas. i live on 783 rebecca drive. I'm not sure about what is across the road so if we can just define what is across the road from what the what? >> depends on what you are talking about. >> we are withdrawing the part between the greek church and new hope church. >> the odd numbered... >> I'm assuming the odd numbered addresses are the portion that's across the road. >> across from tates creek. >> from the church. >> that's being withdrawn. But the postponement is the boundary. >> that's correct. >> I misunderstood it. So you are withdrawing... And I understand why everybody is confused because apparently I was, too. So the portion that is across the road is being withdrawn and the remainder of it, you want a postponement of 30 days is that correct? >> correct. >> you have your hand up sir. >> meaning it is no longer part of the appeal? >> yes. >> it needs to be on the record. >> come up to the microphone state your name and tell us what you understand? >> steven white representing the glenover neighborhood. >> are you an attorney? >> I am not. >> you are just the President Of the neighborhood association. >> I'm a board member at large, President And vice President Are here as well. >> and so what was your question and what was the answer. >> if near going to withdraw the parking lot. The parking lot is within the proposed parking lot is within our neighborhood association. If they're going to withdraw it I'm assuming because the staff recommended disapproval of it then we are fine with that because that's what we had the problem with was the parking lot going in our residential neighborhood. >> just so you know and although parts of the application are parking lots and so the only portion they're withdrawing or asking to be with dwrawn is that portion that's on the odd numbered side of tates creek road, the west side of tates creek I think as you go out of town on the right. And that's being withdrawn is that right? >> yes. We'll keep our tabs on what is going on. >> sure, okay. >> our neighborhoods. >> I've managed to make a simple issue fairly complicated. That's why I'm the temporary chair. So it's a two-part motion as I understand it. >> that's correct. >> y'all understand it? Good. I'll entertain a motion to postpone and withdraw. >> I make a motion we postpone and withdraw. >> fair enough. >> second. >> all those in favor? You're done. See you next month. Boy I'm glad to get rid of that gavel. >> if you could please leave the chambers quietly so we can move on with the hearing. Does anybody else have a withdrawal or a postponement today? Please sir, come up to the podium and if you could, if you could state your name for the record and let us know which case? >> yes, sir. Jihad filani and I request postponement on page 1 item under item 1 for board of adjustment-17-00013. >> we are now hearing a request to postpone. >> yes, sir. >> for how long? >> 30 days please. >> until the next hearing pln-boa-17-13 jake riordan. The property off harrodsburg road. Anyone else here for the hearing? Does the staff have any comments? The board? The chair will entertain a motion... >> we May have had one person raise their hand. >> I'm sorry, ma'am. Would you like to... Do you have an objection to a postponement for next month's hearing? In that case it appears we are okay. Thank you staff for pointing that out. I did not see her. I'll entertain a motion. >> so moved. >> so we have a motion on the floor to postpone pln-boa-17-13 all those in favor. Opposed. Okay sir we'll see you next month's hearing on April 28. One. >> one more case, please. >> on page 4, board of adjustment 17-00015 for southern oat located at 473 east main we also request postponement for 30 days. >> we have had a request for postponement of pln-boa-00015 with regards to 473 east main street. Anybody here on that matter? Mr. Wahlburn, do you have an objection to postponement? Please introduce yourself for the record. >> good afternoon. Jacob wahlburn representing kerr brothers funeral home, at -- adjacent property. We have asked the applicant and I want to ask the applicants if they would entertain a postponement. They declined our request and now are asking for a postponement after my clients made efforts to be here so I understand the board grants these generally as a matter of course. I would just like the objection noted and we'll be back next month. >> it is noted on the record that that they are objecting. Is there anybody else here today on that matter? In that case then... Sir. >> yes, Mr. Chairman, I'm kevin murphy. I live at 141 west bell court and was within the 500-foot notification area and I'm here to object to the appeal. >> okay. That is not before us currently. They've asked for a postponement until next month on April 28. and then we will hear the appeal at that time. So do you have an objection to them postponing? >> well, only in that and I did leave work to come here in that respect, but... Other than that, not a super objection, no. >> will you be able to make it back here on April 28? >> probably. >> okay. Thank you, sir. Does the staff have any comments? Anyone from the board have a comment Mr. Glover? >> I move we postpone it. >> do I have a second? So moved. All those in favor? Opposed? No opposed we'll hear pln-boa-17-15 southern oak on our docket April 28. Well these cases are dropping like flies today. Does anybody else... I'm going to try. Does anybody else have a postponement or does the staff have any comments before we begin? Having moved through all the postponements and withdrawals I'll go through the remaining cases and I'll call each case and I'll ask the applicant to stand up and if there is any objection, then we will move on to the next case and let you guyses talk until we get through all the cases so the first case is pln-17-17 kenneth barry. Is Mr. Barry present. You don't have to get up yet. There is anybody opposing Mr. Barry's application? We have one opposed. I would ask for you two gentlemen to go to the hallway and discuss any issues there May be and maybe we can come to a settlement before I call your case again and then what we'll do is I'll go through each case and call you guys back up in a few minutes. Thank you. >> the next case is pln-boa-17-37 kroger company. Is the applicant here? Mr. Simpson is here. Are there... Is there any opposition? Okay. Is there any reason to send you guys out to the hallway to discuss? All right then everyone sit and we'll hear your case coming up later on. Next case is number 2 on the docket pln-boa-17-07 grace church. Did we postpone that? You're on behalf of the church? Okay. >> we have some revised findings for that one. >> that's the one you emailed earlier? So we can hear this one today? >> yes, we can. >> is there anyone in opposition to this case? Well, sir... We have one in opposition do you don't mind chatting with each other in the hallway if you think that's fruitful, we'll appreciate that and call your case in a few minutes. If you would introduce yourself for the record. And then we'll hear your. Looks like the staff recommended postponement today. And so... You had recommended but no longer. >> we have some revised findings >> what I would ask is that the staff has revised the agenda. I was not able to read that carefully enough. They have asked for, they have recommended approval so what I would recommend is that what we will do is if you don't mind talking to the people to the church. >> you should have received my power point presentation. >> we have that as well and whenever the case comes up, the board members will be presented with the emails and opposition and presentation. >> could you introduce yourself for the record? State your name for the record? >> john horsley. >> we'll have an opportunity to hear the evidence when we call the case. Right now we just ask if you think there is a possibility of a settlement or something that you discuss it with them but if you don't think that would be fruitful, have a seat and we'll call you up one at a time later on. Mr. Marks if you haven't already, would you hand the new findings so he can look at those while we are going through the other cases? And then also if you have additional copies for the board to look at? >> yes. >> I say we look at those when we call the case. All right the next case is pln-boa-11 community montessori school. Is the applicant here? Is anyone in opposition here? Okay so was we will do then is we will probably hear you next when we actually get to cases. Darby dan has been withdrawn. The next case is postponed. I mean the next case is pln-boa-17 polo is there any opposition? We'll hear that case. >> we have one administrative review lisa gannoe and we'll hear that at the end of the regular docket. My recollection to not have opposition is pln-boa-1711 montessori school. Would you please come up to the podium and introduce yourself. >> Mr. Dunne, the staff has recommend add professional based on its recommendations and subject to the conditions 1-9. Have you had an opportunity to look at the conditions? >> yes, sir. >> and are you agreeable to abiding by those conditions? >> yes. >> does the staff have any comments? Do any board members have any comments? You want to take a second and let you guys look at it? >> I'm just trying to get a quick clarification on condition number 9. >> at one point in time back 10, 15 years ago whenever the master plan was done, I think it was a recommendation that if there was ever special events that they would have a parking lot on the backside of the property. It's not shown on the new conditional use request because in reality that's most likely never going to happen. So I think part what have number 9, the recommendation by whoever wrote this was that if that ever came back up, they would want the gates there and basically not a thoroughfare through that particular place. It's not on the conditional use now but has been submitted that you guys are looking to approve today. But that's what it addresses. >> the chair would entertain a motion. >> Mr. Chair I move that we approve pln-boa-17 hf 11 montessori school request to amend conditional ause modifying the existing building and using an existing house located on the property as classrooms in a single family residential r-1 b zone zone road for reasons recommended by staff sunt to the nine conditions. We have a second. All those in favor. I believe the next case with no opposition is pln-boa-17 polo 1 llc. Would the applicant please come to the podium. Please state your name for the record. >> yes, Mr. Chairman, my I am with vision engineering representing this project. Y we went through the staff report, in agreement with the condition and if there is any question I will be. Chad: to answer. >> staff. Do you have any comments? Does the board have any questions or comments? Hearing none, the chair will entertain a motion. I move we approve pln-boo-1714 based on staff's recommendations and subject to to the eight conditions. >> Mr. Clark second. all those in favor say aye. Opposed. Hearing none motion carries. Thank you, sir. See you next month. A here for a variance kenneth berry. We have to take a look at this so if you want to take a seat. >> in the meantime would I ask the staff that if they have anything to say about your recommendation for approval and that we have opposition. >> I guess I can explain this one a little bit. What has happened is there was an existing front porch which has been enclosed in addition to the house and there has been a deck protecting 12 feet into the front yard constructed. Our recommendation is based upon the setback has been affected by the porch enclosure. >> I went both to the google and the pba before the hearing and I couldn't find the property because the plans look so different from what it looked like before this occurred. >> we've got a now picture coming up. >> you can see where the porch has been enclosed and the window added and front door shifted to the front of the house and the 12-foot porch was constructedded as well. Our recommendation is to approve the variance to allow the enclosure to remain but knock four feet off the deck to bring it more into compliance. >> and then my understanding is in the infill redevelopment zone, we are allowed to approve a setback of a plin malof eight feet -- a minimal of eight feet, is that correct? is that why we are making him shave off... >> well, there's... There are three setback issues involved here. Setback for the main house, which complied with a 20-foot setback when the porch existed but when they enclosed the porch, that setback had to get reduced to 15 feet to accommodate that porch enclosure so that's one issue. There is an allowance in the ordinance for a deck or other type of projection to project eight feet into the required front yard. This one projects 12 feet. So that's another aspect of the variance that has been requested. Now to make things a little more complicated, the ordinance also requires even with a projection you can't go closer than 10 feet from the front edge of the right of way and this one extends into that 10-foot area. That's the third aspect of this. I don't know if that answered your question or not. >> I think it did. So what we have before us is number one a variance to allow the building setback to go to 15 feet to allow what was an open air porch be an enclosed portion of the house. The second item we have is the porch, we can authorize up to an eight-foot porch in the front yard. This one is 12 and then the lastly, technically is supposed to be 10 feet from the sidewalk and even after we approve it it would only be eight? >> it would be about four I believe. Three. >> three feet short? >> three feet from the property line so it would be, it's supposed to be at least 10 feet away. It would be three feet away. >> is that the side property line. >> the front. >> are there any questions for the staff before we hear opponent? >> I do of staff if you don't mind? I thought there were two issues with the porch. Maybe I'm missing something. >> it was one of those because of the interaction of the two issues related to the porch lithuania. >> might be. Kind of confusing on the best way to explain it. Before it was open but then enclosed. The once and future enclosure of the front portion of the house on the right as we look at it, is that correct. >> as far as I know it has always been an enclosed porch. >> I think it was an open porch. They enclosed it and that's what caused the violation. I was confused initially in reading the report. >> so okay. So that's one issue. The length of the porch extends into the front yard. It is a front yard, right? >> yes. >> and he built it at 12 feet. The only... The maximum permissible would be eight feet which would leave it how far from the front sidewalk? >> three feet. >> hold on. >> 12 feet. If they got the full 12-foot projection that they built, that would be three feet. >> so if we approved the full 12 feet which is what he is asking for, he would leave it three feet short of the front sidewalk. What the staff has recommended is reducing that projection from 12 to eight feet which would leave it. >> seven. >> seven feet from the sidewalk. >> is there a third issue I'm missing. >> I think we covered it all. >> was was the length of the covered porch prior to the enclosure? Do you know? There was no addition beyond the covered porch. I don't think I understand the question. >> what is the dimension of the porch? >> I don't know. >> I'm just curious. It appears to me the new deck clearly is bigger than the existing covered porch that has been enclosed. >> right. >> okay. Any other questions for staff? If the opponent bo like to come forward? Sir. >> please state your name for the record. >> my name is bill johnston. I live at 645 west short street. President Of the historic western suburb association and property owner on old georgetown street. Could you put the other one up? >> we want to go on record opposing a variance request for the property. This is the case of someone who got caught trying to beat the system and now after he has done the work without a permit he has to get a building permit which he cannot get unless he gets through the board of adjustment to go along with the violations he has committed. I did talk with the building inspection department and they said there was no building permit issued for it and that's why the owner is here. Some of the houses in this block date back to 1810. This particular house is about 1900. So if if you look at the way the house was before, if you can go back to, the before house. >> the period the house was built with that part of the neighborhood it has an open front porch as we've all talked about. It has grass in the front yard and shading tree and it was supposed to be reasonably well maintained. Now if you go to the second picture, please. You can see it has changed a lot. To me, it looks like a vinyl box you would find around the university of kentucky area, complete with a party deck built on the front. The front porch has been completely enclosed. The electrical service has been moved. A new roof has been put on that whole side of the house. The tree is gone, all the grass is gone and in fact they've black topped the front, a good portion of the front yard which will make it easy for people to park in the front yard which is against the zoning ordinance it's on here someplace. Against the zoning ordinance. So we have some real problems with what has happened to this house. The door is completely out of keeping with everything in the downtown area as far as I can tell. And these changes cannot have had a beneficial effect on the housing values, particularly ones on either side which are owner occupied. >> can I interested rupt you for a second -- can I interrupt you please. It is not clear but you said the front yard has been block topped? >> that's correct. >> is that what we are looking at on the right in. >> right. >> all the way to the sidewalk and back beyond the house looks like about 10, 15, 20 feet. Was this renovation done with a building permit, not according to the build than inspection and no building inspector made regular inspections inspections to ensure the proper supports were in place where the front door was cut or new roof was properly constructed. And installed. Or that the porch was properly framed and insulated. And the electrical service is obviously moved so there was a fair amount of rewiring that had to be done just for that. So this construction was done without going through the normal licensing procedures and to do it now and ask for forgiveness later approach. These variances should not be approved. The owner should not be rewarded for ignoring our laws and the neighbors should not be punished as a result. The damage to the property should be removed and I know that has been done in the past. Thank you. >> any questions? >> I don't have a question for Mr. Johnston but I do very staff. If the applicant were to make an application to make these changes before he actually made the changes, I assume that he would not have gotten permission for a 12-foot front porch. Would he have gotten permission for the rest of the changes that he made? >> excellent question but hard to predict what might have taken place with that kind of review. In our minds we thought there was a reasonable likelihood if it had just been enclosing the front porch given it was a fairly minor variance request and given some of the characteristics of the surrounding properties that there was a reasonable chance that that would have been approved but it's a judgment call and it's hard to predict. >> if he had asked for permission to pave the front yard, would the staff have approved that? I know I'm asking you hypothetical but we are faced with a practical situation here. >> I can tell you that we had two fairly recent cases on maryland avenue one of the streets that a add joins up to which has generated parking needs but we had two residential residents on maryland that lost their onstreet parking because of parking from business activity on jefferson street so they asked for variances to construct very short driveway additions to their propertyies for parking needs. So. >> any other questions from the board for staff? Or the opponent? In that case I'll request that the applicant come forward and present his case. Once again if you could put your name on the record. >> kenneth berry and I was here for a variance for the porch in front of the house and I'm here to see what the board now recommends. >> why did you not get a building permit before you started construction? >> that was a bad mistake on my part but I did get permits for a couple small things I had done to the house. I the roof has been changed. It was done not by me, by the owner prior to me when I bought the house. The porch was kind of dilapidated and it was a few other things going on. I don't have an excuse for not getting the permit. >> do you occupy the house? >> I'm going to move in the house. A few other things I need to do to it in the house. The other house I need to sell but yes, this is going to be my residence. >> you've read the staff report. >> yes. >> and do you agree with the condition about removing the portion of the constructed deck? >> I feel like that's fair. When they said that's pretty much the standard code in the neighborhood, the 12-foot was four feet over, yeah, I feel like that's fair. >> you could do that with no problem? >> yes, sir. >> Mr. Berry, I would like to ask, in this picture, it's just like a bare picture of a platform. What were your eventual plans? >> I was going to put rails around it but I stopped when I got the sticker on my door. You see the side step, a rail for your hand to go up so a child couldn't stumble on it. We stopped when I knew we had to have the hearing. I'm going to run railing about three and a half foot high, the normal size and you will enter it from the side right there to be a step. Hand rest. And spindles of course and that will be it. >> thank you. >> I'll concerned about the lack of green space in the front yard is there street park ago veilable? I realize looking from the aerials there was not a driveway there previously. I live next to lafayette high school. We've got a single driveway. If I come home at certain times there is no parking. I understand how that works. There have been many times I wish I could park in my front yard but unfortunately we cannot always do that. Is parking really an issue and do you need that second parking space in your front? >> well actually it's not a straight shot of it. It's just enough to get a car in and that much left. You couldn't park two in there it's just wide enough for a vehicle to go in and about the width of it, the trash can sitting in front of the window would be the access. You couldn't park a car there. >> do you know how wide the lot is? >> here's what it is. Supposed to have 20 feet in front of my house. This is another reason why I needed a variance. I heard you ask a question why I got confused. One end of the house is 17 feet, the shortened which is close to the driveway is 14 feet and it was the other part of the variance I didn't want to interrupt you but when you were saying there is a third part. I had to have a variance because I didn't have 20-foot of yard. Every yard should be 20 fight. Mine is 17 to 14. That also was going to make me have to have a variance no matter what I did. >> Mr. Marks, would there be other requirements for the deck as far as railing? >> I'm assuming there would be but that's a permitting question. I guess just to be safe not knowing exactly what would happen you could add that as a condition. >> I have a question. I have two photos here. one shows that the house has been wrapped in vinyl. The porch is still existing and there is no curb cut that has been added. There is no driveway added but the tree is down. At what point did you purchase this home? Did you do these repairs? >> I purchased it... All that stuff was on it when I got it. The prior owner had siding done to it when I purchased it. >> so the tree was cut when I purchased it? >> the tree was cut. >> but the howts looked like this? >> yes. >> I have a problem just with, I mean I'm a contractor so I have a problem with, you know, blatantly, I mean these are the key things you don't do. You don't cut a curb and put in a driveway without asking permission, you don't enclose a front porch without asking permission. It looks like the electric had been done prior. >> it was done. Someone had a pole put, had the roof put on. >> the deck and the front yard is a bit odd and to me I probably would have more opposition to the fact that the porch has been enclosed and I mean obviously the deck is strange. But the door position has been changed you need some kind of stoop. I can understand wanting to move forward but we all have to play by the same rules. So I probably can't in good faith approve this. >> I have some similar thoughts but I'm not sure how... I'm not sure that changing it would improve the situation changing it back would improve the situation, either so I'm kind of leaning towards the wremmation of the staff which is a compromise I agree you shouldn't have a 12-foot deck in front of the house. Whether there should be no deck is the question but I could live with an eight-foot deck and the enclosing of the porch I guess doesn't bother me that much but not getting permission also bothers me. Have you done, have you bought improved homes before? >> no.. >> it's a tough call for me. >> I'd like to add to that comment. What we see other than the deckings is basically a done deal. It's not something we as a board can change whether we like it or not, it is kind of beside the point. I think the issue is the deck itself so under those circumstances, I think I would go along with the staff recommendation that deck be changed as recommended and I think if you can finish the deck, it would not terribly affect the appearance. Frankly in some ways I think the house looks better than it did before whether you did it or someone else did it. It's a done deal. We cannot change anything unless we demand the driveway be changed back to grass or something. So I think we ought to be sure that we are talking just about the deck. >> as I understand Mr. Johnston's objection. This is a home, Mr. Berry that is close to the western suburb historic western suburb association but not in the neighborhood association. It's close by. >> about a block away. It's in the association but not in the historic district. >> thanks for correcting me. All these things go into my contemplation of it thanks. >> I would like to make my comment. I'll let Miss Myers make herself and then I'll make mine and then I would like us to make a decision. >> the deck bothers me even taking it back to eight feet. It's not in character with the neighborhood. If you could come up with something that is more in character. And you could have grass there with the pavement with the pavement, you know, I'd like to see some grass and a porch, something that is more in keeping with the neighborhood. And that's just... I'm with Mr. Needham in that, the whole thing bothers me and so that's my compromise. >> what do you see yourself doing? >> I was going to take the recommendation, cut it back four feet which is pretty much the width of the porches in the neighborhood and I was going to put spindle around it. That was it. >> do you see yourself spending time out there? >> I was going to live there. >> but using, you know,. >> I work all the time. I wish I was retired but I'm not, but.... >> m Mr. Berry, I want to ask you a couple of questions and then primarily I was asking the staff previously is what was the width of the... What is the width of the area that was enclosed? I can't tell. It looks like it May be five or six feet. >> yeah, that's about what it was. It was 6 x 8 something like that. >> which I think is probably historically more in tune with the neighborhood. I would like the board to think of a few things. Two doors down from this is a big huge commercial space. There is no green space there. There is no green space and then you got a small house next to this one and then you've got this house and then right past this house it looks to me from the aerial you have a house that's a bunch of shrubs and one more over is commercial space. Across the street is the park. I don't think there is a whole lot of neighborhood, you know, that this opposed and further down the aerial there is a huge apartment and big townhouses and the parking lot behind it. I mean I would, I personally I would not want my front yard to have that much asphalt about it it keeps it in line with some of the surrounding properties. I would be willing to granting this today but I know there is opposition. This May be a close vote. so unless anyone has anymore comments I say we put it to a vote and move on to the next case. I'll entertain a motion one way or the other. I spoke too soon. We have one more comment. >> I think the way you finish the eight-foot deck will make a big difference in the appearance of the house. It's too bad that had to go through this process. You should have gotten... >> learning process. Sure. >> and your permits which you still have to do. >> right, right. >> but hopefully you will comply with what has been said here and I am in favor. Of the approval. >> so you don't want any conditions on the decking? >> they have a condition... There is a condition on here to get a building permit and he will need to do that to finish the deck because that railing will come into effect and we would hate to have you tear that off and have to redo it. >> go over to the building codes to get my permit. That was in the package. >> so before we make our motion, I want to ask you, this is not on the record yet, the staff has recommended two conditions if the board does approve your application today. One in which you will obtain a building permit within 30 days and the second that you are going to reduce your deck from 12 to feet eight. Are you willing to agree to those conditions? >> yes, sir. >> in that case then we'll move on to, I'll ask once again to entertain a motion one way or the other. >> Mr. Chair, I move we approve pln-boa-17-17 kenneth berry's ask for a variance to reduce the required front yard from 20 feet to 15 for a porch enclosure. Increase the allowable projection of the deck from eight feet to 12 feet... Well, I'm not sure I understand that. That's a projex from the from the house. From eight feet to 12 feet and number three, reduce the mip mum front yard setback for the deck from 10 feet to three feet in high density apt r-4 zone within the defined infill redevelopment area 193 old georgetown street for the reasons recommended in the staff report and subject to the two conditions in the report. >> Mr. Chairman, I apologize for interrupting but with the removing the four feet be not necessary or at least the increase, we are not supporting that so the increase of the projection. >> you're right. Well I thought that would be taken care of by the conditions or should I restate that. I'll ask legal. >> you confused me. >> here is what I think Mr. Marks is saying the original application was to increase the deck to 12 feet but with the condition it would mean that it would increase it only eight feet. >> so no variance would be granted for the projection. the ordinance allows a projection of eight feet. >> so you don't need a projection at all because it's allowed by the variance so strike number two from my motion. >> Mr. Glover has moved that we approve this with one and three and his motion has deleted number two. Do I have a second for approval? Mr. Clark seconds. All those in favor say aye. Opposed no. Okay. So the approves have it. Thank you sir. Good luck with your project. >> thank you. Okay. That was supposed to be one of the easy ones. What I would like to do with Mr. Simpson's approval is to go ahead and jump to the church, if that's okay, Mr. Simpson. Thank you, sir. The next case I want to call is pln-boa-17 grace church. >> the staff is... And this is a post moment from last month. I know I was not here for last month's meeting. Was anyone else absent? Mr. Clark I know was not here. So, okay. So staff is passing out a couple letters that were passed out last month for us to review and also a power point presentation and is this one that has the alternative findings? Is that over here? And then we are going have alternative findings of fact. So if you could have a seat in the first row and give us five minutes to shuffle through the paperwork. , we'll are while we are looking through this, would you mind walking us through the application before I have the parties address us and Mr. Simpson, I I May have made a mistake when I leap frogged over you. There is a lot of materials here. I thought this would be a little quicker. , r-1 c wither if you're ready. >> okay. >> the applicant is total grace church requesting a total conditional use permit to expand the existing church and parking in. The withers 100 has been used as parking historical as well. The church has purchased 12131217 and 1317 north limestone and would like to pave those. They would adding a second access off north limestone for the small parking lot there. We are looking at a total of 72 spaces. >> and real quickly, it looks like in 1217 still, has that been demolished already? >> starts I know it has not. >> but 1317 appears to be an empty lot. >> correct. >> and then the withers street which is the north lot looking at the drawing, that's already historically been used as a parking lot. >> correct. >> and already paved? >> partially. >> I have a question. There was a question about better streetscape that this was an opportunity for landscaping. >> my understanding is the landscaping plan is not complete at this time but they do, they are allowing the appropriate land scape buffering areas. Beyond that I don't think there is a lot of landscaping planned. They are keeping the green space in front of the church, the sidewalk from north limestone up so they are at least keeping that green space but that's the extent I think. >> do you have a picture of that? That you could show us? >> the expanded space, is that before us or is that something that has already been approved? >> I'm sorry? >> the expansion? >> the building addition? That's something that's before you now. >> and what is its use going to be? >> community center. >> all right. >> May I ask the staff if you could tell me from the proposal that was, that you had some problems with what are those problems that have been resolved? >> the issues with the site plan were setback and landscape buffer issues, things that would have required variances. But they've gone back and taken another look at the site plan and made those compliant without a variance. >> what about the parking on 1317 that was indicated it was small and now it looks like it's pretty much the same as it was. >> it's not ideal but we've talked about traffic engineering and they're comfortable with the plan. >> is that parking due to the zoning regulations requiring them to have replacement parking for what the space, the building is taking away or additional parking for the congregation in. >> additional parking. They're exceeding the requirements. >> anyone else have questions for the staff right now. >> I'd like to ask also the entrance on withers, is that one way traffic and is that designated as one way traffic in the conditions. >> the surnt site plan does show the arrows proposed as one way. Hard to see if it is one way with angled parking. Have you to come in the correct direction to get into a parking space. Anywhere other questions for staff before we proceed? >> withers is a two-way street isn't it? >> I believe so. >> so it looks to me like the only exit from this expanded parking is going to be on north limestone. >> correct. >> so you won't be able to get back out on withers. >> right. >> okay, thanks. >> I would ask the applicant to come up briefly, introduce yourself for the record and then we'll have the opponent come up and then we'll have you finish up. Just so we have the record. >> my I'm here for total grace church and the application submitted before you now. >> thank you, sir. And so I'll have the opponent, sir if you would like to come up on the podium and if you would introduce yourself to the board and then proceed with your presentation. >> john horsley. Live on withers avenue. 105 withers avenue. In our conversation outside the forum, I was handed the revised findings and conditions for approval. I think it notes on here an updated storm water management plan and also it addresses parking areas regarding landscape in article 18 so let me begin here. So I think it clear up a couple of things I had questions regarding, let's see here. Hang on a second before I start this. Let me see where the old map is. The map was sent out was not really detailed. There are a lot of questions to be resolved from the last meeting let me see if I can work this. So basically here this is my approach. This is the old map I was referring to. Currently grace has two services. A 10:00 and a 12:00. And when we stepped outside on the forum, I raised my concern with the additional parking that you guys were taking. Are you going to go back to one service? I was told they would not. They're going to keep the 10 and 12. They're trying to make their case, and I understand that. They did a good job at it but if you flash back here to october 2010, back then that was six and a half years ago, they were asking for additional parking then. So now you fast forward again back and forth and now they're asking, they're going to build this up here, this gray area, 5,000 square feet and also they're asking for more additional parking. Six and a half years later so my point on the parking issue, this is my point is, most parking areas are designed to over capacity. They have additional parking. This is not the case. It is 76 parking spaces and it looks like when I go through my slide you will see the congestion just from having one service and it was on a google slide they do the arrow footage with the satellite and that was my concern, the congestion and getting in and out so right here, I've got the new map and talked with a young gentleman and he voiced concerns with long with me and said we are trying to be proactive. You can see what I'm presenting today. There is no visible water management plan and that's contingency on the revised findings and conditions for approval. So in here I just make a simple point. I even have some curb drains which are not visible even with the new plan or for the old plan. That was another concern. Right across from the church you see this vacant parking lot in the bottom picture right here. There is nothing for containment or relief. So here you have 1217 north limestone and I mentioned to the young gentleman there is the engineer who he brought along, existing 5% slope on that back lot. I wish this thing was a pointer but it's right between the 1217 building or the house right there and the existing church so that's a five degree slope so when you are going build this, you can be proactive and think to yourself, when you tear down that house and make that one big flat slope, it will probably be another 5% or 2% grade, you are going to dump all that water straight into the street. Now he said his engineer has geared toward a curb. I don't know. I can't see a curb on here but that's what he said. So you can see here by the picture right here in front of you, poor drainage causes severe pavement issues and that's, let's go to the next slide. That brings knee this slide right here. This is the ramifications of having poor drainage. This sign right here, that top left is total grace baptist church. Go back, total grace church and this that is from last night at 9:18. It was a drizzle not even a downpour. You can see the erosion. When I'm presenting this to you, I'm thinking about the issues with pedestrian and bicycle safety. I cannot imagine riding a bicycle that close to the sidewalk in between the cars because as I didn't get a good picture of it but there is a car coming down. I don't know if you can see it on the left-hand side where that big long puddle where that top arrow is pointing to and I can imagine trying to escape a car between the sidewalk, the car and that big rut. Here's standing water. I don't know, can you dim that a little bit for me, please? That's a convenient store that has been in business forever. As long as I've been there and I've lived with widthers almost 20 years as far as I know, that has been one big soup bowl. I'm coming out of the church parking lot looking straight across would. >> would the staff elaborate briefly on the updated water management plan, who issues that? Would it alleviate these concerns because some of these concerns clearly already in existence and will this... Would it be a better situation after the construction than currently? >> I believe the total grace's engineer has been in contact with our engineering division. It would have to meet the standards of the engineering manuals. Gh we've had some preliminary conversations but in general you are not allowed to make the situation worse. This is an older area of town so it has inadequate storm water management. But when they go to do this paving project, they're going to have to manage their storm water so they won't be able to have more runoff than they did when they started. >> what does that mean, manage the storm water? If there is a grade that ones towards the street coming off the property, does that mean diverting it toward the side or back of the property? >> it could mean that. There are a lot of ways to go about it. Whether they redirect it or use pervious pavers so you are not actually increasing the pervious area or the impervious area. >> but the goal would be for any additional runoff to be contained within the property total grace church. >> unless you can go into a system. >> correct. You May proceed. I just wanted to ask that before you went to the next issue. >> poor drainage. I'll be honest with you. I have nothing against the methodist baptist catholic nothing. This isn't personal. I live in this residential area. I have to drive it on a daily basis even on sundays. I mentioned before with the parking issues that I mentioned earlier, we had to have curbs painted yellow because their members didn't know the bound riz. It was hard to get out. I had to call police for towing. They're making an effort. It was very productive. It is all about communication. I wouldn't oppose it as much as I am today if you had told me a is a recreation center. We're going to help the homeless and so forth. i get that. My issue is the flooding. The erosion. You can see here another picture and this is right across from the house you see here. That's 1217 right here and that's the erosion. Do you see the standing water? This is off google from last year. You can see the erosion. I think you guys get that by now you guys showed a similar slide earlier, I think you popped it up this is one of the fses from last year. Withers avenue, again I wish this thing was a pointer. >> you can see withers avenue at the top. It was congested. It's a hard turn into withers. I know because I live right where that green truck is. I don't know if you see the funky green truck. I live next to that so when I back out, my cadillac is hard to turn. It's really tight but I back out and I head towards withers because it's easier to go down withers instead of broadway. Anyway, getting side tracked. It's congested. People have to be mindful of the curbs. A lot of times they aren't. Are we making things better or worse. Six and a half years ago we were talking about parking and tearing down houses and so where are we going to be in the future? There is no there is nothing given that hey, I'm going to keep with 10:00 service and 12:00 service. it's not profitable for me to keep the lights on during the day. I'm going to rebuke that and say let's have one standard service so you are going to triple the traffic. There are a lot of what ifs but that's reality. We live in a world of what ifs so anyway, so you see... What I call up here making for a soup bowl effect. That's what it's going to be. You have problems on broadway already where the bridge is non-stop. What is the resolution for that? Are we going to build another disaster waiting to happen because I already showed you this is a 5% slope. The jr.Ing, he said we are on top of it. Woo ill they're on top of it, let's leave one of the houses on north limestone in proximity of the church. The great building right here which is substantially big is right in the middle of the screen. I tried to get it. This house at 1020 north limestone and pretty much they're all, I cite this if you wanted to reference it. Home facts.Com. It reads flooding is possible due to severe rainfall and inadequate local drainage. Flood insurance is recommended in this area. But not required by federal regulation. And it probably should be because it is like a soup bowl. We've had friends on withers, you know and they've had flood damage. there's a reference page. >> thank you, sir. We appreciate your presentation. >> thank you for your time. My wife and son are here and I've never done this before. I thank you for your time listening to us and I appreciate you sending the newsletter out. A lot of us read it and had the mind set, we can't make an impact. We are insignificant. We are too small. And you know, the old adage is you are never too small. If you think you are too small, spend a night in a room with one mosquito. Daly lama. It makes sense show. >> if the applicant would come up. There were a lot of discussions especially with the rain water. We often, as a board, have to deal with issues with established church in the neighborhood and as the congregation grows, there is generally not any space left for it to continue to grow so it has to make due with what it has and expanding into buying neighborhood homes and such. But it sounds to me like the biggest issue is water runoff and I'm guessing even though it was not clear, traffic and parking control. So if you could make sure awe dress those two issues when you give your presentation. >> okay. Well, again, our engineer was here and he can better explain but I can explain basically even with the conditions, the conditional use that the staff recommended that the we address, our engineer has been in contact with the transportation and has been in contact with the engineer, I believe. He spoke to address those issues of flooding so talking about the permeable asphalt and those different things that are needed in order to control the water drainage. I can't speak to it because it's not my area but those areas and those concerns have been addressed and we crearly spoke to the things the gentleman just came up and expressed. Our engineer explained to him exactly what we were doing to address those issues. I can't speak to it clearly but they're being addressed and as far as the parking and controlling the parking, that's why we are asking for the additional parking space to help control the parking we are running up against now and that pretty much is why we are asking for this conditional use. >> I have a question. For the engineer. You can't make the situation any worse. But I mean is there some... There is some hope that it's going to be improved? I mean is there some expectation that it will be improved, the runoff? >> we don't have any requirements that would make them improve the situation. You can't increase the runoff from your site. They could do that at their own discretion but it wouldn't be enforced by the storm water manual. >> could we as a board have something in our approval in which essentially we make sure the water run off coming down the new expanded parking lot that runs to north lime has some kind of way not to make it into the street? Engineering wise is that even toes have a culvert or something? >> what they're likely going to have to do is put in some sort of pervious paver so it's like a grid system that lous the water to drain through it as opposed to running off. It might get complicated if we try to specify something. >> and that's exactly what our engineer is proposing what he is doing. Again it's not really, he is still going through that process and putting all that together as far as what that is really going look like and once we have those, then of course we will provide that information asy with. ... (Inaudible) >> what is your projected construction timeline? >> when do you want to start moving dirt? >> hopefully after today when you guy as profit we can start moving forward with it. >> are they going to be able to move dirt before they've gotten what you guys need? >> no, they would have to get permitted first before they would be allowed to start the site. >> and all that information would have to be presented before we get the permit so everything that is being asked from an engineering standpoint and answering the questions from daneage would have to be approved and get the permits to start building. >> there is a house there now at 1217. >> correct. >> do you own that property? >> yes. >> that house is going to be removed? >> yes, sir. >> I've seen the property and I'd like to address the water issue and I think the opponent has a really good point; that it is a significant problem along north lime there and I wish we could address that as a board, but seems like to me that what we are planning, what the plan here is would improve the situation and not make it worse for sure I little think expanding the width of that egress on 1217 is going to make a major difference. I would also like to just mention that it seems like to me that the fact that there are two services really actually relieves some of the traffic problems. So it seems like to me you are headed in the right direction. >> thank you, sir. I appreciate that. Could I ask my pastor, he is here as well and would like to come up? And we also utilized the church across the street, their parking as well. >> pastor please introduce yourself for the record. >> michael robinson. Pastor of the church. >> I want to address the church. The water runoff is the biggest issue and that's a problem for some. so working with the planning we are doing everything that they're going to ask us to do. So talking with the engineer, the goal is to make sure that no more runs off than already does. So this project will not at all increase the runoff. And if there is a possibility to make it better, we are definitely looking to do that. So again the concern is not a concern. We can't even get approval if it doesn't meet that standard so his concerns are already within the policies that we have to abide by. And again we are there for the community so anything that we can do to kind of make it better, that's what we are looking to do. So we are in our planning process, again, are there ways, more greenery, more trees, something we can add to reduce it so that we are in a better position then we are looking to do that just wanted to make sure that was clear. >> does the board have anymore questions regarding the applicant? >> I don't think so. I think my only concern when I saw this postponed, I thought it was addressing probably the one that everything looks I think keeping the driveway on the left side taking that for parking, although I would rather not see parking up front, I think there is already a driveway there. That's fine. It's the lot on the right of it I just would wonder is absolutely necessary. I think, you know, having that as permeable space would keep runoff, I mean would limit although I'm not, you know, I guess there will have to be a retention basin to catch all the water coming osm that parking lot as well. But if that parking lot is just necessarily needed but based on staff recommendations, if everything seems to work for them, it's probably fine with me. >> and the engineers can speak to this but I don't think if a developed plan is not being filed that retention basins would even be addressed. >> it would be did I to use a retention basin in this situation but it is not off the table. >> any additional questions. >> now that you said that, if it is not a retention basin, beside permeable pavers what are other options? >> permeable pavers are really the main thing they would have to get pretty creative otherwise to manage it because there is no storm water infrastructure in the area so there is no storm lines to connect on to so even if you put in a basin you don't have anywhere to outfall it. Essentially on 1217 and 1317 are going to be perm yaibl pavers. Concerns about the streetscape were brought up at one point and they have pushed their parking lots back in both locations where there is new parking to give extra space for something. There is a possibility for rain gardens in along there. >> yeah, that would be a possibility. Given the size of the area, I think it would be difficult to manage in appropriate volumes. >> when they get a cost estimate for the pavers they're going to... >> that May be a sticker shock. >> I understand you don't own 1213 or 1215 north limestone, do you? >> we do not. >> and I'm sorry, I have to go pick up my kids. >> sure. >> any additional questions? I have been to this property. Michael haskins is a friend of mine and has invited me to an I vent there. I have the general outlie of what the property looks like and you know, there is not a lot of options for this congregation to build and grow given the way just the neighborhood has grown around this church. I would be inclined to approve this application today and I would entertain a motion in either direction from the board. >> I move we approve pln-boa-17-0 total grace church request for conditional use permit to expand the existing church and parking in a planned neighborhood residential r-3 single family r-1 c zone at 1217, 1313 and 1317 north limestone and withers avenue based upon the staff report, the amended revised findings and conditions and the amended plan that we received today and subject to the six conditions in the proposed revised findings and conditions for approval. >> second. >> first and second. All those in favor say aye? Thank you, sir, I would ask as you move forward with the project, please keep the opponent apprised as much as you can of what you are doing. Maybe you can find ways to accommodate them in the same time while you are in the design process. Thank you, sir. >> thank you. >> the next case is thrn boa 17-the kroger company. >> I wonder if I could ask the board for one of our objectors one who has comments and concerns to speak first because he has an engagement and it wasn't as the agenda had promised if if you are willing to entertain that. >> I have flo objections to that if the board does not have an objection so the next case is the kroger company case. I do know that the applicant is here and I believe that the staff has apprised us a regular basis on what is going on. We received the new traffic report I believe we received updated findings from the staff earlier today. Did everyone receive a copy of those on the board? With all that being said I believe we can let the opponents present toarls and then we'll have Mr. Simpson and the staff bring their materials. >> actually I wasn't asking to yield rebuttal position. To the applicant but that the single member could have a brief remark at this point. It is your call. In general about the bylaws, it goes staff, presentation applicant presentation objector presentation. So just to clarify. >> okay Miss Clark. Well in that instance what we'll do is we'll do staff's presentation, applicant's presentation and then the objector presentation. I apologize that your objector will not be able to... >> I appreciate your considering it. >> so please if the staff would present the presentation. >> we have several letters support and in objection to pass out. If you give us a few minutes we'll review these. , would the board like me to continue waiting or let Mr. Marks begin his presentation. >> Mr. Marks if you don't mind. I think the best thing is to take a look at the most updated site plan to give you a little history. The original site plan that was submitted back in 2016 towards the end of 2016 had two access points proposed to south ashland. We weren't excited about that. We preferred one and they've changed that. The other two major concerns were the impact of another surface parking lot on the south ashland streetscape and urban area. Of course the preference is to have store fronts and not parking lots. They have revised that to the point that they pushed the new parking back a little bit. The third concern was the lack of significant pedestrian access from south ashland over to the existing kroger main parking lot. And they have reviseed the plan to accommodate that. we were hoping for something a little more dramatic with a wider plaza-like access but we got the five foot sidewalk to connect from south ashland over to the point where there is existing and pedestrian markings in the existing kroger surface parking lot. All things considered we got some sick improvements in the site plan this is the five foot sidewalk along here that connects up to here there is an existing marked pedestrian walk way here so that connects up pretty well there. So we are recommending approval at this point. The other thing to keep in mind and this is going to be recurring because it's confusing and a little awkward but the conditional use application that included the new parking lot as well as the access from existing kroger over to south ashland, at that time both the parking lot and the access were significant issues. Since then this access has been reopened. It was closed for approximately three years after the new kroger was built. >> it's reopened but it's a fairly narrow drive, driving lane basically single width. You have trouble getting traffic going both ways as it exists right now. So because there are parking on one side and the apartment housing on the other side. So this plan envisions the apartment house Mr.. >> Mr. Marks that currently reopened the narrow road way from our understanding has been in place since the late 60s whether we approve this or not, that will continue in the future whether the two parties agree or not. >> can you show me on the map? >> the access? >> on the southerly side right along here there used to be things in place that prevented the connection when the kroger was expanded. I think all of you have the revised findings and conditions for approval that we are recommending at this point. Back in January there was five conditions. Two conditions have been added reflected on your agenda today relating to a stop sign and a speed bump and then we also added a number, a third addition which is now number 8 so there are a total of three additions compared to what was originally presented back in January 27. I should probably go ahead and put this up on the overhead. >> at this point the conditional request is primarily for the parking lot although as you mention there May be design issues that indirectly relate to the access. >> Mr. Marks on the site plan, currently I believe that with the current road way, the parking spaces, aren't the parking spaces, I don't know how you describe them, they're not slanted. They're straight in. Wouldn't that alleviate that safety concern by making them angled now? >> might need to get casey to chime in on that. >> I know when I've driven down that road in the past, it is not easy to see. >> do you need the site plan back up overhead? >> that would help. I think the question relates to these existing straight in. >> what this plan does is it provides a wider drive all width because it's one way. It doesn't provide a wider but since it's one way circulation, and the angled spaces reinforce that one way. But you can ingress and egress out by the south ashland. >> when I said one way it's the drive all between the parking space the drive out is one way. >> a couple questions. The existing parking places that exist now are they, are they actually will they be reserved for kroger or is there, there is an apartment building is there not that uses that space? There are there are private agreements about all or some of the parking spaces for use by the office building. >> the arrow on the right side of the diagram there pointing which I think is probably east. What does that imply? >> well... >> there is another arrow that's blocked somewhat by some other markings but this is two way in here. >> so you can get to euclid from the passage way? Don't you go through another parking lot to get there? >> parking lot is over here f. You came out this way and turned down here you could get back to south ashland and your question is could you get back to euclid? >> what is the arrow pointing to? >> two way traffic. >> at the bottom right of the diagram following that arrow that driver would have to turn left and then turn right to get out of the parking area, right? >> there is no place for that to happen now. >> I don't know if that got reopened or not but at one point that was closed as well. >> it's still closed as far as I remember. That's why I'm asking the question. What happens to the space there? Is that for traffic or or maybe folks with the kroger can help? >> the applicant and I think the engineer consultants can help clarify that. >> and also one more question Mr. Marks if I could. Are we pretty certain that the landscaping on south ash land is going to not block the site line? >> we are very careful about addressing that in the conditions because it is an issue. Though I have to be very careful about the type of trees that are put this there we have made a note that it May have to be just ground cover but you are right, that is an important consideration that vehicles coming out of there have to have a good visibilty both directions >> one more question. >> the size of the entrance there, two-way traffic. How is that, how does that relate to the size as it exists now? >> talking about this point here, how wide is that? >> how wide is that? >> very narrow now. Is it going to be expanded I guess is my question. >> I'm not sure. Casey, do you have any details about that? >> I don't have details on the existing width but we have the minimum 24-foot. It will be constructed to accommodate. >> to that standard. Good, thank you. >> Mr. Marks before you leave, one of the reasons why this application has been postponed was the concern by the real concern by the residents about pedestrian traffic in and out of, from south ashland to kroger's and back again. And as I understand the guy diagram there is one single walk to the bottom of that parking area. >> from south ash lapd, the connection would be right here. >> right. And that horizontal line is a sidewalk. >> right along there. >> and there is nothing on the top of that diagram that allows for pedestrian traffic, is there? >> that's actually to the south but you are right, there is nothing there. >> just one more clarification. Can you explain how that stop sign is going to work. >> I think for reference the speed hump is here to keep people slowing down going down the one way section. That's one of the concerns with one way traffic people tend to go faster but the stop line would be somewhere in here just to ensure that vehicles stop to get a good look at what is going on with pedestrians crossing this access. >> there is also a stop sign at the other end of the lot, there is not? >> over this way? >> there is one labeled. I haven't actually seen it in person but it is labeled and proposed but that's off the property. >> anymore questions from the board for Mr. Marks? Then I would enviet the applicant to come up.. >> got a few presents to deliver before I begin. Mr. Simpson when you get back to you could introduce yourself for the record. Put your name on the record. Mr. Chairman members of the board, I'm bruce simpson pleased to be here on behalf of the kroger company which is the applicant for this conditional use permit. And we will respond to several of the questions that you have. I'll have bob corenet come up and he is the site planner that put it all together. As you know, we were here back in January and there were some folks that had some concerns about traffic and so we pledged to do a traffic study, actually an updated traffic study we had done one if 2013. And that, we sent that out last week and I provided each of you a copy today along with additional handout materials I'm going to go over quickly in connection with our application. As the chair alluded to in one of his questions, I think it would be important to understand a little bit about the history of this particular property as it relates to the kroger company and I've got a couple of illustrations here, photographs I want to have put up and then talk about them very briefly. I assume most of you have been out there. What you are looking at now since you are looking at this, I'll actually point to both. This is, as the chair mentioned since 1964, this is south ashland avenue here, the kroger store here. This is what it looked like for the most part starting in the 70s there was another grocery store here before that. But in 1964, an easement was created illustrated right here, to the kroger property and that's been in existence and exclusively open to traffic from 1964 up until 2014 when it was closed because of a dispute that arose between the owners of subject property 445 south ashland and the controllinger property and it has been barricaded or was barricaded right here for three years. But that dispute that resulted in that being barricaded was resolved in February and it has been open since February 20. In terms of the history of the use in terms of access to south ashland it has been in existence for more than 50 years except for the three-year interval from 2014-2017 so we are not opening up any new access point the other significant bit of history to understand is that this new story was the result of a very extensive planning and zoning process that took about three years. Today danny lefko is here from the kroger company as is joe rosen berg, one of the owners of 445, the subject property that we are seeking permission to have the parking lot on. John rice, his attorney is here. Diane zimmerman, traffic engineer is here, but danny met with the neighbors for a couple of years before this application was even filed and listening and changing plans and changing designs and if you happen to follow any of the "herald-leader" articles about it, you would appreciate this particular kroger store is very unusual. It's the first kroger store ever to be built with roof top parking. It's an urban grocery store. It is lexington's the only downtown grocery store. It incorporated a lot of design features that you don't find in grocery stores in a downtown setting. The point of that is that we have significant neighborhood involvement, significant neighborhood meetings design was looked at, traffic was looked at. A traffic study was done in 2013 before this zone change was even heard by the planning commission. It then went through the technical review committee of the urban county government. It went through the staff review of the urban county government, the traffic planner, went through the subdivision committee, zoning committee, it went through the planning commission and it went through the urban county council where traffic and access, all these features were discussed and they were all approved. In all of the plans submitted they all showed access to south ashland and the planning commission approved every single one of the plans, including the final plan. This is the final development plan and you can see in the red markings right here, the planning commission signed off on it approving access to south ashland reflecting its historical use for more than 50 years. So I say all that simply just to emphasize that we are not talking about any new access to south ashland, one that has been in existence. What we are talking about, of course, is the proposed property at 445 south ashland being converted from an apartment building containing 20 apartment units and 1600 square feet of retail space on the ground floor, being converted into a parking lot. The building is 50 some years old. The units are all one bedroom or efficiency units. They, Mr. Rosenberg can explain their justification for moving in a different direction. But I think it's fair to say and I think he would say that with university of kentucky creating a significant amount of new and innovative and much more upscale living accommodations for students nearby, that these units are no longer competitive. And think don't have enough room to create enough units to justify wholesale remodeling. It was their call and one of the reasons that resulted in the settlement is they wanted to move in a drircht direction with respect to their property and kroger had been working with them for some period of time and the decision was made to use it as a parking facility. The concern we heard shortly before last meeting was scheduled in January was that the neighbors would be concerned about increased traffic on the south ashland the traffic that was projected in 2013 and studied in 2017 is about what it was projected to be. About 10 to 13% of the traffic that leaves the kroger site uses the south ashland avenue exit. And the entrance and exits, 13% of traffic goes there. That's what was projected and we found that's what it will be. In terms of impact on the neighborhood, as most of you know, they grade the intersections a, b, c, b, f. The intersections south of the site toward sunset, up toward east high street or tates creek road, all level of service a. There is not a lot of wholesale traffic that uses that traffic and hasn't changed since February 20. The traffic itself does not support any adverse I am pack on the flaibs. In fact what you are going to find is because of the reduction in traffic generated from the 20-unit apt building and 1600 square feet of retail, you are going to have 245 motorcycle trips less per day. So there is going to be less traffic if you approve it. The other historical point if you look at the current site for the last 50 years, you will note that the access point for the trucks the loading dock was right here. so the tractor-trailer semis at least from the 70s until 2014, all of the semitractor-trailer trucks other service trucks came this direction. And during that 40-year period of time, there was no pedestrian provision, people just walked along the edges of the pavement. About the but the trucks came in that way because that's where the loading docks were. If you look at the next photograph, this is the new store. South ash land here. This is the access easement but the loading docks are now off of marquis. So the trucks come off marquis and back in this way. This is where all the deliveries are made. So you have, you are going to have less truck traffic than they had for decades on south ashland. That is no longer going to be the case. The truck traffic is now overhere. In addition to that we've added a condition of approval to the effect that even the box trucks, the other coca-cola trucks and delivery trucks would not use the south ashland exit so you are going to have less trips per day because the apartment building and retail stores will be gone. There won't be traffic generated there and you won't have any trucks. That's going to make it safer for pedestrians and people on bikes. We have a designated area for pedestrians and bikes that hasn't been there before. it's sected up to the existing pedestrian access point in the kroger parking lot to make it safer. The 2013 and 2017 traffic study, the design changes on the site plan you've seen, I'm going to have bob roberts come up and talk about, to respond to some of your questions but site plan itself went through 1 different iterations based upon neighborhood feedback and in particular with the aylesford neighborhood association. We wanted to incorporate the design features they wanted and we accomplished that outcome and they were pleased with the final product. Which is normal in these cases. Historically, I don't know anyone that would dispute that kroger has demonstrated over and above a serious commitment working with the neighbors and trying to respond. For good reason. That's their customers. They want to be thought of in a good way. They want to be neighborly, they want to have a good functioning store that's safe for the people that come to it. Students, people that walk, people that ride bikes. We have bike racks available close to the store. Historically has been used by students extensively because this location, of course. But the history of kroger and the neighbor is that krogers has always reached out. I've been involved in the meetings. Obviously we still have some folks that have a different view of what we are trying to do here today. What we believe, what we are asking for in terms of 36 parking spaces and a designated pedestrian connection that is not there now is a safer more desirable configuration for the neighbors for their safety, less traffic for the neighbors and it's a better option for everybody. And it provides 36 more parking spaces and a handsome design that the neighborhood leaders in terms of graham poe and graham gunther have signed off on. We have done all that we believe we can do. If there are some other changes that we can explore, we are certainly open do it but in terms of everything that we've heard from the people that we've been working with and been able to respond to, we believe we have a plan today that meets with the majority of folks approval including the staff, you know, which is recommended approval. In my handout material that I have disseminated in front of you. In addition to the photographs you've seen, I included a letter in the first tab which is a summary of basically what I've said so far today. The second tab is the staff report that addressed all the issues, including traffic, including design and all of the other land use issues during the planning commission's review of this as well as the urban county council's review, planning staff recommended approval of the zone change. Likewise the planning commission approved the zone change unanimously, went to the council. The council approved it. There are conditional zoning. There are a number of different provisions to doom with the detailings that we work out with the neighbors and staff and others that weighed in on this to come up with a very attractive store that was designed to meet an urban setting and to provide long-term sustainability for the people that are going to be living in and around the downtown area. This will be for the foreseeable future the only grocery store in downtown. I'll have Mr. Roberts come up and respond to the questions that you had about the traffic. Bob, if you want to come up here now. >> I'll put that site plan back up, jim. >> I name is bob cornet with the roberts group, the engineers on the kroger project and this project as well. There was a question about the arrow pointing down towards euclid. There is an access easement that serves the back of the bank or whatever bank is there right now, so that access easement, they can go to and from their parking lot to south ashland across the same access so we had to work in provisions to accommodate keeping their access easement open as well. >> are you saying there is access now or there will be? >> there is access now and there has been since '64 or whenever this access easement was created. >> okay. thanks. We met with casey and we intended to put a stop sign in. To be honest with you, it wasn't even thought about on this type of a presentation drawing but we have added a stop bar and stop sign at the back of the sidewalk at south ashland. Added a speed hump to slow any traffic that May look at this as a speedway thoroughfare so it will remind them that it's not just a thoroughfare. We have accommodated as many things as we could in the small area we had. It would have been nice to have done some of the other things had we been able to acquire an adjacent lot or something of that nature. But I think we've addressed everything that has been brought up to us by staff and zaire yaws apartments at lfucg. >> one of the questions had do with access. We have a fight foot sidewalk here and landscaping features close to the parking and close to the building over there, is that right that's about five feet total? >> at one time we had looked at a 10-foot wide bike pedestrian access path down through there but it would have been from the back of the parking spaces to an existing wall at the music store property. There would have been no green area and car overhang and sparking spaces two and a half feet. We are putting concrete that could have been green area and working with Mr. Marks, we came up with this type of an arrangement with the five-foot pedestrian path and some green strip on both sides to allow for the car overhang and not be right up against the short retaining wall. >> bob also this pedestrian access off of south ashland, before there wasn't anything. People just walked in the middle of the road? >> yes, they walked between that parking spaces. The 18-foot. >> that's what they would be doing now if they went that direction, right? >> yes. Now we have this designated access plus it connects up to the existing pedestrian access that is on the development plan for the kroger store over here on up to the store, isn't that right? >> yes. The actual pedestrian crossing, kroger will need to saw cut out about 18 feet of sidewalk to create the handicapped ramps, accessible ramps down to a flush sidewalk right there where it connects up to the existing sidewalk. >> and this is the area for the speed hump to tell people they need to show down. >> yes. To get on south ashland with the stop sign there and the landscaping defewers lk designed so they don't interfor with site distance for left or right turns coming utd of the there. >> that's correct. And then this access'ment that we talked about, the 64 recorded. This has been serving not only the more croat kroger property but always been serving this property. This can'ting shut off either. It has to be accommodated, right? >> right. >> any other questions y'all had about configuration on how it was going to work? >> not configurations but there is in I portion of the plans deal with any additional water runoff which is what we hear a lot from. >> this is one of those situations where you take a predeveloped post developed calculation, determine how much water is running off under the current conditions and how much will be running off under it's post development challenges. If you look at the area. This is all 100% except the front yard which we are remaining as landscape area. All of this is impervious. So when we are in the increasing the runoff. We are creating landscape balance so we are in a small percentage reducing the runoff. So there really shouldn't be, other than what Mr. Clements might require for water quality, I'm not sure that is required on this small of a development. >> any other questions about the site plan? >> let me play devil's advocate for a plint. For a minute. >> sure. >> what is the rationale that kroger is using why they need additional parking? Is the second story parking not adequate? Is it being used? >> danny do you want to come up here? >> danny is kroger. This has been his baby for a number of years. >> I'm danny, real estate manager for kroger for the louisville division. The you for your time today. The additional parking is because we are having some trouble educating the people to use the roof top parking. And people drive around and around and look for a parking space so that, with getting back the access and adding the additional parking we feel like it will enhance the store. We also are doing other things to at least to get people to park on the roof and use that and we are working with the store and everything to make that happen and make dropoffs at the second entrance versus the first entrance and that type thing. So it is an educational process, even after three years. People are creatures of habit so we are trying to create a better atmosphere for that. >> I can tell you that as a customer because I don't live that far away, that the roof top parking is a benefit. And if you know it's there and you plan to use it, you don't have to drive around looking for ar parking spot. The quickest one is on the roof. So for those listening at home... >> thank you for that commercial. >> thanks. >> let me ask you a question. Is there currently... And this is off what we are discussing today slightly but is this kroger have the pickup service that the other krogers have? Is there a plan to bring that to this area. Online ordering. >> it does not have it currently. No. They're working on, they've got a list of stores they're trying to do that at but I can't answer that. That's... I'm a real estate guy. That's not my part. I'm sorry. I don't have an answer for ow that. >> as a real estate guy, answer this for me so I have a clear understanding of where we are here. The property where the building is going to be removed and where the new parking lot is, that's being leased by kroger; is that correct? >> correct. >> Mr. Rosen berlg still ownses the property. >> is the lease done? >> signed last October. >> any other questions for the board? >> I think my question would be what, beside, I mean adding 36 spaces, whether this was approved three all the three years of approval process, it seems too me that there is an issue with the parking and how the roof top didn't address or maybe, you know, all those issues then we are having to now, you know, I think raise a building that in lexington we like infill so how does that get addressed if it even can be from a real estate standpoint or maybe from when this was developed? I mean you had a certain amount of cars you felt were going to come and shop at this place. Has it far exceeded that? Is that where we are here or you just can't, you know, teach and inform the roof top parking is viable? >> basically to address the parking issue, round numbers we have about 100 on the ground. 200 something on the roof. That would meet our customers needs. And again people, for preference or historically like sitting in the same pew at church, they just typically do the same thing and so it is more of an educational type thing and I don't really understand the students especially they should take to the roof just like that and if you take them up there, they get used to it and like it we want to add it for part of the access. The owners of the property are planning to demolish the apartment building anyway. So that's going to happen no matter what is decided today and so that's how we would like to go forward with that did I answer your question? Just real quick too on the landscaping issue. We did have some landscaping out on euclid that was blocking a little bit of visibilty and we removed that. So we will do that kind of thing as we get compliments or questions, we will address that very eesesly and that's our customers do not have any problem telling us what they do not like and so we try to address that. >> a couple closing points. As danny mentioned, the building is coming down. Mr. Rosenberg can fill in a few more details. There is a couple more steps, the demolition permit is aobtained. So what we are left with, when that happens is that people are still going to be walking on this property. If you turn this down, they're still going to be walking on the property. But they won't have a designated area that's safe to walk on. There won't be the configuration that we are showing here and it won't be connected up to the kroger pedestrian pads way. There won't be a stop sign or speed hump or the architectural esthetics. But with those things we think it is a better and safer and more compatible design recognizing that the building is coming down anyway, the cars are going through south ashland anyway and people are going to be walking through there somehow some way to get to the kroger store, that this approach is better, safer, more compatible for the neighborhood and the community. We want the store to succeed. Kroger has listened. They're willing to respond even now to any suggestions that would improve it. But as we stand here this afternoon we believe based on the input from the neighbors and the staff that this is something that is certainly worthy of favorable approval and that's what we ask. >> when we say there are 36 parking spaces being add, there are really only 21 new parking spaces. The 15 in front of the office already exist today. They would just be lined different. >> and those already leased is that correct? >> that's why it is called retained property on the plan. The owner is keeping that. >> I'm glad you corrected me. >> any additional questions from the board or Mr. Simpson? Any other proponents for the applicant? >> Mr. Rosenberg can respond to any questions but we can respond with any rebuttal but that's our case in chief. >> does anyone have if I questions for the property owner? Before I ask for the opponents to come forward? I would ask the opponent to keep the presentation to 30 minutes and then we'll have time for Mr. Simpson to rebutt. If you don't mind, introduce yourself and give us a couple minutes to breeze through what you've handed to us. >> I'm amy clark, President Of the euclid league whom I represent today. This is a civic association that came into being in 2012 over a number of issues, mostly in U.K. Area composed, the board is composed of neighborhood leaders and we are the ones who represented people who had signed a petition at the time of the zone change for the adjacent property in 2013. A petition requesting that it either be smaller or better or denied. I'm going to put in the record the letter of somebody who was present last time and asked me to hand it in and you have exhibits before you with an indid exat the front and I'm also putting into the record the C.D.S of all the pertinent hearings. There was a zone change hearing before planning commission, then one before council who took final action and thereafter the development plan, and each of those, of course, has quite a lot to discuss and decide about the traffic and the easement. >> Miss Clark, I think we've had enough time to go through the initial review so if you want to start your presentation and then like I said if we could keep in mind that we have one more after this, so I'm not sure if any of the other ladies planned on presenting but if we could make sure we have enough time for them to come up, too. Thank you. >> thank you for continuing to hear this today. I will say that we are at something of a disadvantage. I just want to put it into the record because of the postponement, we had to let our attorney go and I'm sure you'll suffer as much as we. He May have been both wiser and more succinct. You'll also notice there are fewer people here there. Was one person who left last time and said they would never be back to a hearing. So I'm discouraged that people have that kind of a response to that the promised traffic impact study as you know was very late in coming in. I got it four days before the hearing not four to six weeks, not within two or three weeks of the former hearing where it was promised. You heard from the staff and you know that they made initially a recommendation of denial and improvements were made and they changed their recommendation to approval. The staff is okay with the parking lot design and the landscaping traffic safety has been improved basically it complies with article 16 and in fact if you look at b-1 where it says parking is a conditional use, well, the condition articulated in the zoning ordinance for granting the use of the stand alone parking lot. It has to be a good parking lot. In fact every parking lot in the city, every new parking lot has to be developed in accordance with article 16 so that doesn't yet make it sufficient for you grant the conditional use permit on it. There is a reason that a stand alone parking lot is a conditional use. You've heard nothing but cases on parking. It's an unattractive use. It's an eye sore. It can have flooding problems doesn't contribute much, no jobs, no buildings no houses. It's a reason it is a not by right use. You need to make the judgment whether it's right here the zoning ordinance, on conditional uses which is not new to you, but what I would like to do is shape my remarks around its terms. A conditional use is suitable only at specific locations not everywhere throughout the zone and only if certain conditions are let and you have to make a finding that it won't have an adverse influence on either the development that has gone on for a century or more already; exting development or the promise of future development and in an area that's really redeveloping creatively and fast where the zoning ordinance establishes conditions, those are the minimum and your staff thinks they've done a good job of making a parking lot. I would say that is not enough. The board that will find that the public facilities and services are adequate to the use or that they're on the road to it and here I think where especially concerned about the road system, including as a service traffic control on management and safety. It is your job to think whether there will be adequate facilities in particular the road and traffic control and also averse influence or not. It's true that the owner, any owner can tear down the property today, tomorrow any time he wishes whenever he gets the demolition permit. What I'm asking is that you not grant incentive to that demolition by permitting the use of a surface parking lot and the associated access. And finally I would note that the granting of a conditional use permit does not comply with other laws. Here there are a lot of other zoning regulations that are implicated when talking with granting access. Under this common ownership and management. ite clear the applicants made it abundantly clear that what they want is to serve the shopping center with this lot. I'm going to say something. I'm going to say it once and quickly and I won't go further with it because it is beyond my capacity. I believe it is beyond your authority to grant a b-6 use shopping center access across a b-1 lot. That requires a zone change. It belongs to the pc, the planning commission. It's a de facto annexing and I believe that the owners and applicants themselves have affirmed and asserted. >> would you mind saying that again? >> I think it's beyond your authority to grant access to the right of way across the b-1 lot. >> thanks. I believe the owners and applicants themselves in the recent letter to you have affirmed and asserted that that use lapsed and it lapsed knew on three years ago, just two months short of three years ago what you are being asked to doings granted a new and enlarged access to the b-6. >> I would like to go back to this point. So just real quickly here so I understand I am going to have Mr. Simpson talk about this point but I'm interested in, you are saying that this, this parking lot isn't, we shouldn't allow a parking lot for an adjacent piece of property. I just want to make sure I understand it. >> okay. >> I believe it's not within your authority to make that annexation of a piece of land and run access to a shopping center from the right of way across it. That's what I believe. What I want to argue is not that. It's beyond my competency. You probably know that better than I. What I will argue is that it is your obligation in reviewing this conditional use to deny that access if these asilts are adequate whether the averse influence is significant both the existing development in the area both the subject in the adjacent properties and the farther area, the vicinity, the questions I want to pose to you are is the location right for this. A stand alone parking lot doesn't belong everywhere? Does it belong here in our chevy chase business district? And are the roads adequate to it. Or the public facilities adequate to it? Okay? And I believe they're not and I believe it is within your power to deny that use as something that's inappropriate as a conditional use. Okay. Does that make it clear? >> yes ma'am. >> okay. You have a black and white of that which won't be easy to see, I'm not sure this will be easy to see. Ashland, a street class local by the lfucg is inadequate to the increased traffic of shopping center access, particularly at peak hours. And there are some details that have to do with moving around on the roads. I'll try not to get too complicated there and there are other details that have to do with definitions in the zoning ordinance. First of all, it's introducing an uncontrolled left in and left out point of access at mid block. If you look on south ashland there, I've given the curb to curb width. South ashland is 40 feet here. Up here it is 23 feet so down here it has lanes of travel two lanes of travel and two lanes of parking. And it May have as many as two stacking spots as you approach euclid for turns and no stacking spots anywhere else. It is going across traffic without a center turn lane smght. >> does that not exist today? >> no. >> if I go over there today, it exists today and existed for 50 years. >> the question is should it be enlarged by the traffic of a shopping center? And I believe the zoning ordinance as well as the physical conditions here say no. There is a problem with congestion on euclid with ins and outs, left turns and rights. What we are saying is help euclid first. Euclid has a center turn lane, wide bike lanes, has adequate sidewalks. It's a minor arterial. South ashland is a local street. It was referred to in your traffic impact study as a highway. It's not a highway. It's classed local. It's local. There is a reason it's local. First of all it's facilities are pretty fraught. If you have ever been along there, you notice the curbs are all worn away and demolished. It's because people parking on both sides climb the curbs so their cars won't get side swiped. It's narrow all the way around. Up here it's not only narrow, you are missing a sidewalk, the dwrel owe line there is where there is no sidewalk at all. So I've put green dots to represent the perilous path and I will tell you there is a lady from ashland terrace who walks by my house every single day at 1:30 and she comes out of ashland terrace and she walks in the street with a walker I don't think it's right or prudent that she does that but I can tell you that I do it, too. Last time I was down at the starbucks I followed michael carp medical director of the university home with his wife and two golden retrievers and there they were walking along the perilous path where there is no sidewalk. The reason for that is you have this whole intersection which is a mess. It was never meant to be a proper intersection and it's fine when the use is less. But if it becomes a shopping center access point, then you get a different use all together. What the situation is the shortest distance between two points if you are coming from the starbucks is a straight line. That puts you in front of ashland terrace. You are probably headed that way anyway back into the neighborhoods here. There is a lot of foot traffic. There is a proposed enhancement, a pedestrian enhancement, the green dot there, which is going to cost eight to $12,000 and kroger, I am told, have made a generous offer to kick in there are 5,000 for that. It looks to me like one of those things that you have to sympathize with traffic engineers for because it offers you a safe way to walk if only you would be smart and do that. I think there will be pedestrian problems there. That yellow parenthesis backward is where there is a parking lot access directly into the middle of that intersection. Why is south ashland even in this lot classed as local and reclassed as local within the last few months? It's a local street because it has nowhere to go. It goes up to a neighborhood street that is narrow. It goes into a private road also narrow with a whole shopping center mess in there. It's skewed, so this is highly problematic. Now what I'm observing in the little time since the access has been open is cars coming straight up the roof ramp as kroger was quoted in the "herald-leader" as looking forward to and many, most of them, I would say a third, maybe half, when they turn this direction, they're headed down castle. And I'll say why. At rush hour, if I could have, if you could actually look in your packet to... The folded aerial. You'll see one that shows going all the way down one just shows you the beginning of it but the other carries you all the way down castle. Parallel to tates creek. >> Miss Clark do you think the other opponents will want to speak? I gl I think they will. Do they? No? >> okay. So let's try about another 10 minutes and then we'll have time for rebutal if you do not mind. And I will say one thing, I understand the concerns with the neighborhood cut throughs. I was born in lexington. I'm a king of a neighborhood cut throughs growing up but I will say of all the neighborhood cut throughs you cannot pay me to cut through the ashland terrace tolly wood neighborhood. The designers made it perfect to where there are so many stop signs and turns that you might as well sit in traffic. >> that actually is my next point. Hollywood has 10 and 15 year history of traffic calming to keep the traffic in check and what we've come to is commuters are welcome in our neighborhood, they have the right, public right of way but we would like them to slow down and watch where they're going and that's was we have attained and it hasn't been easy. Soming like this kroger traffic, this shopping center traffic on a local street and castle is also a local street, and remains a local street, threatens the safety of our neighborhood and the traffic calming, the desirability. >> my concern is that we have been presented with evidence from the traffic study that shows there should be a net effect by this expansion; that right now there is actually more traffic because of the retail shops and the apartment buildings than there will be after this development and the other thing is the sidewalks a couple blocks away, I understand that concern. That is really outside of I think we are... >> some of it will be addressed in modest ways. If you look at number 11 observations there is a sheet with euclid observations on the traffic study. And one of the, well let me go through it. The February data was gathered on a holiday weekend, a school holiday weekend. So there is under counting there. The after the access was reopened was gathered just fine full days after the access was reopened, notes enough time to see what it will be like. We are talking about enlarged access. We are talking about two lanes, two directions at the moint of access. We are talking about 17 feet circulation through that area. The study does not incorporate the full range of access points and intersections in particular marquis is left off. It refers to south ashland as a highway. It gives euclid daily traffic average as 16,300. That's the figure from 2007. I don't know if that was calculated to remain the same I. Was not in the elier study but it is here the same. Some two billion in building and enlargement at U.K. Has gone on, most of it since that date. And as far as the demolished apartment goes. That's an apartment with non-conforming parking. 20 units. It needs 30 spaces just for those plus 1600 and two retail shops. I don't even know what the calculation is there. But the adjacent office building retains most of those spaces, they use them now. So how are you going to have 345 cars a day coming out of a place where perhaps 5 or 6 of the spaces are actually granted to the apartment residents? So there is nothing there. And why not make a count rather than a calculation if you are counting? Basically the question the traffic study failed to answer for me is if everything was fine in 2012 and was projected to be fine in 2012 when the data was gathered, and it's fine now, why are we asking for this access point? What is that going to contribute? There is a lot going on on euclid in the corridor and I'm assuming the multi-traffic modal is part of what you hear today and know. Basically what we are talking about enlarges planning. We are talking about planned development, both the euclid road way, we don't want that preempted with changes arbitrary changes in traffic. For solutions to problems that May not exist, maybe the solution is better roof ramp education. That's a good thing to aim for and work for. So the public development of the entire euclid streetscape and it's commercial potential is impacted by this sending the euclid problem around the corner on south ashland. Moreover, what you are getting is shopping center creep. Now you have in their equity management advertisement for their newly developed strip mall which you heard a case on very recently it's this there and they say our strip mall, our facility is shadow anchored by the kroger. They're treating their property as part of the larger kroger shopping center as part of the larger center without it meeting the criteria that make it safe and right. If it's a zone change decision you are talking about planned development. It May be very welcome and appreciated property values but if it is not planned development it can compromise the public welfare. What I want to direct you to zoning ordinance article 12, number 5 what it says is you have something on the intent and so on. go to the occasional standards 12-7 and this I believe is exactly the best possible criteria design for you to evaluate this conditional use because you are asked to decide whether it is located in the right place that gives on to a local street with certain problems. 116 feet from a retirement home with ladies of the average age of 86 and they walk. Four of them go by my house daily. The locational standards, a neighborhood or community shopping center, this is a neighborhood one that has the three acre minimum shall abut shall front and shall have its principle access to and from a street designated basically as above a local what I would like to you to do is look at the whole of the plan and see whether it doesn't now by the addition of this parking lot which is under it's control by lease abut a local street could I have the two frontage ones? Does it front on euclid? Next or does it front facing south ashland and in tearing down the building they get visibilty on the street, you can see the marquis of the kroger there, the kroger sign in the night as far away as farmer's jewelers. You can see, you can't see it here but the kroger liquors which has already taken over the corner, you can see their sign as far away as the light at euclid and high and we all know that frontage is critical in fact in the transcripts... I mean in the hearings, a lot was made of how it is a miracle because it had no frontage and yet it had a grocery store. So what we are seeing is what lynn phillips in the zone change hearing called a cascading effect and I talked to a neighbor on the street, she said are you surprised they'll have the whole block before long. This is the third block front they're saying well, we have enough parking. We just can't get people to use the roof ramp. Get people to use the roof ramp. Put some conditions. Okay. It's against the zoning ordinance. The next one says the proposed shopping center should be a location where traffic congestion does not exist at present. On the streets to be utilized. Now what they're telling you is that this street is triefling. What they call there really is an access there and $984,000 assessed real estate controlled by a lease for the purpose of a parking lot and access tells you that kroger sets a value on it. A very significant val you auto on it. -- valg u on it. -- value. The other issue is whether it was already granted by planning commission and by council. Council in not choosing to attach a condition of use restricting that access, which they could have done, and planning commission when they reviewed the final development plan, in allowing two points of access from the shopping center to the easement that gives on the right of way, denoted on the plan. They were assured in the final transcript in there has the text of that. It went something like howmp traffic is going to use this. Not more than 10%. It's minimal bus it's not more than 10%. Well, for the I.R.S. It May be $100 annually. $984,000 as control of a piece of property in what is reputed to be a 99-year lease doesn't sound like it to me. If I were told I had a 10% risk of something involuntary surgery, I wouldn't do it. If I were told I don't have a problem furnishing enough parking spaces, I would not spend that kind of money. It's an access issue and they're sending the access, they're diverting it off euclid at rush hour to send it home through the neighborhoods to the south and mine is one of them, hollywood terrace and that second criterion says the there is congestion, it cannot be used as an access point, not the principal one. I'm arguing it May evolve into the principal exit at rush hour but any access where there is congestion, the congestion ratings were e and f. In this last count they were e understand they will probably tell you, well, I have been teaching for so many years, how many times have you heard well, it's kind of a high e. Isn't it a passing grade? Well, the tradition is that the passing grade is d. One of the reasons it's gotten to be a shorter way to delight which is how they measure congestion is because the guy who times the light is seeing such an enormous conjex on euclid he figured he would break it up and let a few through sideways. The problem is it is a congested place. It has very low facilities, public facilities road way to serve this use. It's not a permissible use and it is your obligation, I believe, that is why you sit on the fix it board that fixes things, that makes adjustments. It is your obligation to protect the public welfare by not granting it within 116 feet of a restroom, in this twisty road that doesn't have proper sidewalk, even the fact that there will be public expense whatever kroger doesn't pick up of the pedestrian enhancement. There are a lot of issues here. We think we should ask them, urge them to cure euclid first and I'll say one more thing. Every day there are tons of trucks clogging and cluttering the whole back, could I go back to the overhead of kroger's that one. By the roof ramp, that's like a 24-foot drive and trucks park all along the plastic wall next to the lady's house and they park all the way up right to where the roof ramp ends. You want firemen to eat at the kroger's and we want firemen in the neighborhood. Meanwhile the whole time there is a storage trailer using one of the three loading ramp docks. And they're not somehow getting any compliance at all with trucks loading and unloading and they're all over the lot back there. Makes it very hazardous and this is important. It makes it hazardous to use the marquis exit. So instead of having two fully functional exits you've got one lane in on euclid, one lane in on south ashland, why do we call euclid the main entrance? You might say well, euclid is the main entrance because it's on the main road. But that's exactly backwards. You are not allowed to granted the access to a local street if the whole store is designed, look at the design of it. Every kroger you have comparative ones at, in tab nine. Every kroger in the city, look at... >> you are about eight minutes over. If we could do a conclusion so that Mr. Simpson can rebutt and you'll have an opportunity to rebut I'm sure you would like to do. >> that's great. I will say one last thing. Where the front of the kroger? Where are the doors? The entrances. Where are the registers? Where are the carts? Where do people go in and out? That's the front of the kroger. It faces south ashland. You can't say south ashland is such a local little street and can't handle it therefore it isn't the main entrance. It is designed to be the main entrance if you grant this enlargement, remember it is an enlargement of the access point here, the easement. I do have concluding remarks. the cascading influence of a shopping center development that is not governed by development plan as a b-6 p is and a b-1 is not. And finally what if we're wrong here? What if we putted through this access point. It's supposed to solve some problems. It doesn't solve a problem. It doesn't make much of a difference? There never was a problem. What if we're wrong here. Then we've torn down a perfectly good building for nothing. And no one is asking that building to go on the national register of historic places. It's an old building. It's a useable building. It's an affordable building. It's exactly the kind of mosaic of mixed uses that we like to have in our neighborhood that we have developed over the last 100 years. Thank you. >> thank you Miss Clark. Mr. Simpson. >> I believe they passed it on to Miss Clark but any other opponents who would like to speak? But come on up. If we could keep our comments maybe to five minutes. If you could introduce yourself for the record. >> kate savage I live at 619 columbia avenue and I hadn't really attended -- intended to talk today. But a couple of things that sort of slipped through that I feel need to be maybe be kind of corrected because sometimes the way things are said can infer something that is not strictly the truth. I've sort of stuck with the kroger development. I live in the neighborhood, all the way through and I was a big activist initially and I've sort of lost heart frankly. We like the new kroger's but our main thrust always had been to get something slightly smaller that was manageable for the neighborhood and not the bo he muth store that it is when the traffic flow was designed by the same traffic engineer, Miss Zimmerman, the alley way as I always called it was part of the plan and it was intended and when Mr. Rosenberg who owns the property decided that the size of the store had changed and therefore he had the right to cancel the right of way that had existed since '64, I can remember specifically the traffic engineer was asked if this would impact the traffic flow and any of the other issues with it being closed and it was a vehement no. Well you can see we wouldn't be here today if that was, in fact the case. So it's been a mess and people don't shop there because it's a mess. And I just wanted that to be quite clear. In terms of sight lines, there are other issues, the bus shelter is in a sight line. It's right there at the exit and lextran don't like it. I've heard from them numerous times because I'm the chair of aim, who put in the public art shelters and piggy bank on the other side as one of our designs, they thought we had done the bus shelter at kroger's. We did not and they don't like the way that it object instructs that sight line. Infill. Infill is one of those nebulous moving target items that seems to work when it works for whoever is arguing and then it is conveniently stuck back in the bag when it doesn't work. Infill for the roof top parking was fantastic, but where is the infill with now putting in another surface parking lot. So we just use it when it works in our favor and then we dismiss it. As for apartments there was some comment about the apartments not being competitive anymore because of the new spiffy U.K. Housing and dormitories that are being put in. Those actually run about $900 a month and I don't know what joe charges for his 22 units, but seeing as they are efficiencies probably not 9 hundz a month they don't need to come down because they're redundant. I see them coming down the avenue. Most of them walk. The original parking was deemed adequate. Space numbers wise we went round and round the houses on that. So this is not an issue about needing more parking. This is just needing that access back that when it was closed, we were all told would have no impact whatsoever. And that is not the case. It's not about parking. It's about the squabble that has taken place over the last three years between kroger's and the owners of that access to get it reopened. Thank you. >> would anyone else like an opportunity to speak on behalf of the opponents? Come on up. >> I'm jamie peters and I live right at here. So I get a good view of what is happening between my house and kroger's. I'm not going to go through amy's things, what my concern is that this is a walking neighborhood. We've got lots of bikers. We've got lots of walkers. I know why kroger did it. But when people come from the hollywood areas and from mount vernon and some of them come every day to go to kroger's. We are the people who are going to get there by hook or crook. People from aylesford in the north are going to come down and they're going to go through the euclid entrance because that's from the north going down but those of us who are coming from way all these areas over here are going to come down here and we are walking or we are riding bikes. And we are going to come from here we are going to walk down the best we can this side of south ashland. We are going to come down to the place where there are three roads that come into it. There is no cross walk because why would we go to the other side of the road and try to get around. We are going to go illegally right there. There is no cross walk there. Those old ladies are 80 years old, are going to do the same thing. They're going to be illegal and it's dangerous because there are cars going that way, this way, this way. And then we are going to come down and the reason kroger's doesn't have a sidewalk here is because there isn't a sidewalk next to Mr. Rosenberg's property. And they've got cars along here. So we are going to weave in and out even when you have two-way traffic because we are not going to walk all the way around. People go the shortest route. >> I'm not going to cut into your time but I would point out that I believe that there is going to be a new sidewalk put in. >> from Mr. Rosenberg? >> across his property. See that white line? >> right here? No, no, that's from the north. Why would I come down here okay and then go all the way across here to go to the north because I'm not going to go past those two rows of traffic. When the cars are coming in and out of south ashland, you think I'm going to try to cross between them? Not a chance in your life because... >> I think safety officers would recommend that. >> not here. Because you have lots of traffic going in, lots of traffic coming out just like it is euclid now. That's dangerous. No, sir. We are not that stupid. We are going to come down here. Woo we are going to illegally cross here where there isn't a cross walk because it's the closest. We are going to come along here and then there will be Mr. Rosenberg's building, great. And then there is a little space this there but you really can't go it in there because all the cars are parked there. So we are going to wiggle the best we can between the cars and his sidewalk and then we are going get to the space where there are going to be cars coming up this way, cars coming down this way, cars coming down this way and there won't be a really good stop there because cars will be coming and we are going to wiggle around and take our chances. And I know we are because people take the shortest route. That's a beautiful pedestrian place right here but it's on the north side of that new driveway, okay. It's on the north side. Who is going to bother to come all the way down there from the north? They're going to try to get across catch as catch can. >> we have been told that that white line that sidewalk access leads directly into the back entrance of kroger's. >> right, but you are not going to get... I watch the people try to get through those in and out exit and access to get to the door of kroger's. It's dangerous. It's going to be as dangerous on south ashland. Cars coming in, cars coming out. That pedestrian walk will probably be used by a very few people because they won't come from the north. Why would they? They can cross somehow across kroger's; across euclid. You see what I'm trying to say? Great for cars. Kroger's problem with is cars. They're not thinking about the pedestrians. I mean I go to kroger's about once a day, okay. And it's really a walk. It's not easy. There are cars trying to go this way, cars trying to go this way rntion cars going this way and now you are going have cars coming down from above and coming down here cars going in from there and cars coming around like mine does and come this way when I take my car. It's dangerous. So it would seem to me, at least for the walkers and that's whom I am concerned about, walkers and bikers, they're going have trouble if they are here, if you had a cross walk here whenner people weren't taking a chance on ashland terrace and if there were some kind of sidewalk so we could get to the stop siep where they're going to have a speed bump? Is that right? Speed bump? And get across there so we can weave up to the front door of the front entrance of kroger's that is my concern. I'm going to do it because I'm not going to walk all the way around to get to their north beautiful pedestrian walk that people from the north aren't going to be using. And they really can't create a sidewalk here of that width and that's why they did it here because there are a line of cars and Mr. Rosenberg's building and it's pretty narrow I know because I've tried it. So the problem I'm concerned about. Different from amy's I'm worried about the many, many people that walk to kroger's. This is a walking neighborhood and there are many bikers. I'm not a biker but I can imagine that bikers going, that are trying to go down the kroger's side of this going either direction from the north or the left, May have a hard time seeing those cars and those cars getting out, psychologically treer trying to find their moment to get out and turn left. I'm concerned about the walkers and I'm very concerned about the bikers. And that's my main point. We're just going to have to catch as catch can and it is going to be a challenge. Thank you. >> anybody else like to speak please introduce yourself for the record. >> diane. I'll be very brief. I live near kroger's. I walk there several times a week. I'm very concerned about the traffic that jane was just mentioning and my main concern though is the destruction of the 20 affordable housing units or for 20ing parking spaces that weren't deemed necessary when the plan was first approved. I know that the building could be destroyed any time by the owner but of course if the incentive isn't there to put the parking lot there, the building wouldn't be destroyed. Where will these people go in these 20 affordable units? That's what I wanted to say. Thank you. >> thank you. Anybody else for the opponents? Them we'll have Mr. Simpson do a rebuttal and if we could keep, would you have any additional speakers? >> I will have our traffic engineer and danny speak very briefly based on some points that amy raised and I will cover them in general Mr. Chairman and will it me say this on behalf of kroger. We certainly appreciate the comments of the four women who testified. They testified similarly during the zone change review process. Most of Miss Clark's comments were stated during the same zone change process in 2013 about the design and where the building was oriented and all those issues, all of that was discussed in detail and evaluated in detail and neither the staff nor the law department or the planning commission or the urban county council found those to be persuasive and that's why they approved the rezoning and found that the location in the b-6 zone were in conformity with what kroger proposed. So much of what she said she said previously. But you know, we are not here to disparage them. One of the beautiful things of our country and forums like this and you all have to sit here and get no pay and listen to and make these hard decisions is it doesn't matter if there are 300 or 4, everybody has a voice. And ought to be listened to. We respect the right of these four women to come before you and say what they have to say. Proponents? Then if not we'll have comments from the opponents. Ms. Clark, I believe that you want to come up? >> appreciate you're hearing it. I would have to say that yesterday, I watched a school bus crossing helper, cross a child across that weird intersection. [Laughter] Not according to the crosswalks. What's at issue here is not whether there is an access, but whether it is enlarged. Whether the traffic that goes through it is greatly enlarged over what was there before, whether it is shopping center traffic. If it doesn't work, you really did tear down a useable building for nothing. And it would cost two and three times that to bring it back but more than that you tear the fabric of the neighborhood. There is really what Dr. Phillips referred to as a cascading influence, that krogerilla, the shopping center that keeps eating another lot. First the kroger liquors and then this one, reducing -- of national reputation to an outlot. This is not the way this neighborhood has developed. And become the very valuable neighborhood that it is both as a business district with four banks within spitting distance. but also, a place where extraordinary single entrepreneurs are that building that will be torn down has just this last year been an engine entrepreneurship. It housed a business with the national following. It is a business district that is stacked, and people live above in the apartments, and it's having an influence that there is a kroger and some of it is welcome and everybody thinks that it is great that your property would be worth more. But, we're thinking about people's quality of life and wages and jobs, professional is yielding to chain stores. Well, I need to stop. Enlarged access, in the record handed in of the planning commission, the final vote on the development plan, Mr. Penn asked very pointedly, am I right in assuming that the easement will be closed? Because I am reviewing this plan on the assumption that the easement will be closed the time was that the closer of the easement would not have an adverse impact on -- or it would have a bearable impact on the traffic on euclid but they were also saying, review this plan without any traffic to there. And then they were saying, well, it is I I I did diminimus I guess it is up to you. It is really there and the cost not just for developers of it and the gain to the owners, but, for the neighborhood is very great, of letting the kroger develop as a shopping center without a plan. Municipal simpson rightly mentioned conditions, you have the power to set conditions, remove conditions, revoke uses you will see in a few minutes is a long and torture us process. I would like to suggest conditions in the event that you grant the use, and one of them would be, the ones that have to do with traffic design would be subject to the approval of traffic engineering. Move the sidewalk to the southboundry of the property rather than to the north, just shift the whole thing. I don't know if that's possible. I think it would be a good condition. I think Mrs. Peters is right. No click list, no, I guess you call it drive-through facilities as a condition. That's very automobile oriented service in the middle of the very working neighborhood. Incentives and redesign to get the roof ramp better used, perhaps a space is available sign just as we have in lex park, what gary mains have introduced. As you're turning in, there is room up there. There is a second access. Is there a development plan slide there? There isn't, is there? You have the big development plan slide. Mr. Clark was asking why does the arrow go the other way? And I can tell you that when I was there on sunday, I noticed cars, if you're coming out of the back end of the kroger, you can go along that easement and go through the pnc drive-through to get out to euclid without going through the torturous exit process on to euclid per se. if you are trying to turn left, if you're coming from fontaine, you're trying to turn left into the kroger, and you see the mess up ahead and all that you have to cross, you could turn into the pnc bank instead. Trespass, if you will, across their lot. And you use that access easement to access the rear of the kroger, the roof ramp. Why why do we think it is going to be such an enlarged use? Because the roof ramp is out the easement because about two-thirds of the parking spaces, the surface lot parking spaces in addition, have their readiest and most convenient access, exit especially out that easement. What I haven't seen in the traffic study is, if it was projected to be fine in 2012, and has proven to be fine now, why are we even talking about this easement? Why do we want this access point? Let me see if there is other conditions. I would ask that you not allow a demolition or at least not construction before the pedestrian enhancements are completed. On the roadway. Make that a condition. Think it would be an enormous help if you did not allow the second entry on the the ease machine near pnc bank because people will readily see if they are at the second easement entrance. Do you know where I mean? Shall I point it out? Okay. I think they will see that there is easiest way is to take the easement and ride it out to pnc rather than going through the as far as trucks go, I don't mean a painted bar in road, you know the things that when so that you don't take the canopy off the gas pumps, they have a bar. Have you ever driven a rental truck and realized that you won't clear the gas pump bar. Do you know what I'm talking about? They have the bars to prevent you from going somewhere as a physical barrier. Think that I would be appropriate between the b-1 and the b-6p so delivery trucks don't go in and it is not a city compliance issue that goes around and around. You know there could be a long laundry list and there has been discussion already and there have been improvements already. I just think we have to say it is needless, and the cost to the public welfare is too great. And please, think about the locational standards in the zoning ordinance when you decide whether the location is right for this use, and finally, consider the findings of fact for the zone change which included its compact contiguous building, this exemplary kroger that is constant with the rest of the neighborhood. It does not set parking between the building and the street in suburban style. As is consumate with the rest of the neighborhood, the business district. And, finally, there was a third one. There was a third onen I thank you for your time. >> thank you, Ms. Clark. I believe that is there any other testimony? Does the board have anything that they would like to say? Comments, questions? Anybody? >>it is not my intent to prolong the hearing. We have a lot to consider. Ms. Clark made good points and things that I had not thought about and I appreciate her bringing those to our attention as well as the fairly impressive graphics that she presented in as her exhibits. I'm very familiar with the south, a large avenue and terrace intersection and in fact the entire area. I think it is problematic we have cars and pedestrians going the same or opposite directions and intending to cross. It is my considered opinion that the proposed plan is probably a better plan than what is there currently, and I was -- I was concerned as a resident in the area with pedestrian access to kroger, I think this one that's proposed improves it. I would have preferred to see pedestrian access on both sides of the newly proposed parking lot as well. But, we did not see that. So my comments are this is as good as we're going to get, and I'm going to be in favor of it. Thanks. >> >> for all of those people who made this possible, it is a very impressive document, and I appreciate the effort, appreciate the comments and frankly I don't disagree with most everything that's been presented here. There's some real problems, and I think that there are problems that need to be looked at and worked on. They May not be primarily kroger problems, however, and I think that a lot of what I have heard today and this is my first meeting with the board, a lot of what I have heard today are things that I have heard several years ago as as part of the problems with the kroger and I have heard the presentations and took great interest in them. And I really do understand the concerns that have been expressed today. On the other hand, I'm not convinced that what we're here to talk about today and make a decision about, really has to do with those issues as much as it simply does asking for approval for a conditional use as has been presented. And I think that probably this is a better solution that what we have, and the fact that there is a mingling of pedestrians and automobiles, is something that we have to -- we simply have to deal with. And I think there are problems in the neighborhood that need to be dealt with by the city and by the council. Because those problems are real, and in terms of quality of life, if you live in the area or the neighborhood and particularly if you're a pedestrian or a biker, these are serious problems and I agree with that 100%. And I appreciate being reminded of that in this particular area of town. On the other happened, I think this idea of making this change to make this egress a little more sustainable is probably not a bad idea. I do agree with some of the suggestions Ms. Clark has made and there are things that I think the kroger folks could look at, seriously, and consider. So that would be my comments, and I appreciate all of your efforts, and what you have said here. It has been very meaningful. >> >> I'm in agreement with the parking lot. I do have concerns like Mr. Clark had or has are with the mingling of cars and pedestrians. And the hollywood community has been a very unique community. I hope the traffic from kroger goes back out south ash ton and does not mingle through the subdivision. I think there needs to be some thought of preserving the community as it is with bikers and pedestrians and with the elderly home there on the corner which is right by it. I think it could be a good thing, but as I said, I hope that the traffic will not be encouraged to go out through the hollywood area. >> >> I appreciate both sides of this issue. The safety issue is huge with pedestrians and bicyclists. I just -- building another surface parking lot for 21 spaces, when there is already adequate parking existing, for this kroger store, I'm waiverring about supporting building this parking lot because, you paveed part of paradise and put up a parking lot. And this is what -- this is an issue that we hear all the time. And as Miss Clark rightfully pointed out, we've been dealing with cars all day long. And expanding the parking here, it goes back to, we have an urban store, we have parking on the roof which I think is -- that's where we have to move and think in those terms. And, so I'm leaning toward not supporting this petition today. >> >> I'm pro kroger, taking care of their customers and providing a better access for walkers and if they do feel like they need more parking, I lean that way and there is already enough parking spaces currently in an educational way to get people to park on the roof, seems to be a much better option financially, but again we don't make those decisions. The interest that the property owner has to make this happen, I think in kroger are real, but, in behind sight, I probably would lean more towards -- it is a tough one. I mean, there is no doubt. I would most likely lean toward -- I would much rather have Mr. Rosenberg just build an access and consider it done for the customers that are walking and then, you know, reeducation effort for the upstairs parking but I just don't -- that's not what we're making a decision on. So I would be leaning most likely to probably I'm going to probably lean towards the fact that, you will get better access for pedestrians in the building, although I would do not want to see it come down. It is -- it probably is it probably is a better -- probably a better plan. A little bit better. I'm not saying it is a lot. I'm leaning that way. >> are there any additional comments or questions from the board? If not, the chair will entertain a motion either oppose or approving -- approval of this application.Twy >> Mr. Chair, I move to get it on the table that we approve kroger company's request for a conditional use permit to construct a new parking lot and driveways in the defined in fill and redevelopment area at 445 south ashland avenue for the reasons -- for the -- based on the revised findings opposed and subject to the 8 conditions listed therein. >> thank you Mr. Glover. Do I have a second? Thank you, Ms. Whitman. We have a second and there is a vote on the floor for approval of the application. All in favor, say aye. Opposed? Ms. Might hear opposed the application has been approved. Thank you, everyone, for coming today. Exempt for those staying around for the next hearing. We'll take a short recess so that the board has opportunity to stretch its legs and then we'll hear the administrative review. Thank you. I I. >> would like to bring the hearing back into -- from recess. And we have one more case to hear and we'll pass these out for you. And let me get my agenda, and this is the administrative review, pln-boa-1708, lisa gannoe, an administrative appeal to determine that the division of planning erred and I will allow staff to give us an update. >> is that -- I believe that we have followed the same procedure as the other hearings? >> this is a different type of appeal there is no staff report per se. It might be better in this case to let the apel lent go first. But the only thing we have is to present the findings for disapproval. >> Ms. Jones, should I have the appellant proceed? >> yes, basically what has happened here is that Mr. Marks is one of our zoning officers and issued an an opinion to Ms. Gannoe and she disagrees with what he crate cited and she'sing can you all to review it and to determine if he was right in issuing that or not. So. Yes, usually in that instance, the apel lent does go first. >> and then, the staff -- not staff, sorry, the board, are you -- is everyone ready? Then I would ask the appellant to come forward and present her case and thereafter, she can bring additional persons up or however the order wants to go. Please introduce yourself for the record and then proceed. >> will do hi, I'm mary diane hannah, 6398 old richmond road, lexington, kentucky. The old richmond road association President. And I think that what has happened is there is a pretty big misunderstanding here because what Ms. Gannoe, she was not asking for what you all put down. There is a distinct difference between an appeal for a conditional use request, and a request for a conditional use revocation hearing. So we would like a request for a revoking conditional use permit that has been granted by the board of adjustment. And our request is for the board to revoke the permit at 7524 old richmond road. This request has been made several times. I think at least five times over the past two years. For the board of adjustment to please revoke the permit, granted to a property that has never come into compliance, has never met the required conditions placed on it, required by law. And evidence to verify this request previously been placed in the official record. We are not asking you to vote on whether or not to hold a hearing, but, in fact, to hold a hearing as prescribed by the law to hear the facts. What the law says, and this is -- I'm not going read these numbers all the time. Is that someone within the lfucg division of planning will review all conditional use permits, at least once annually, to determine if that property is actually abiding by the conditions placed on it. And this is something that Mr. Simpson spoke about saying, you know, you can always change it if it is not working out. It also says that the property is not meeting those conditions, the Chairman Of the board, and that is Mr. Gross, is that correct? Sorry. Didn't mean to surprise you there. The Chairman Of board of adjustment will be given a report in writing stating how the property is not in compliance. Have you ever been given a notice about how this is not in compliance ever? I know that you haven't been the Chairman That long, but, usually other people have heard this case over the fast few years. >> we have heard this case, I can't remember when it was first brought to our attention, maybe in December of '15? November. I can't recall, but -- October of '15 but I was on the board at that time. >> okay. So since you have been the Chairman, you have never received a notice saying this has -- this is not in compliance, is that correct? >> well, I -- >> unfortunately the questions come from us to you, not the other way around. You could -- feel free to ask Ms. Jones, our legal counsel if the appropriate procedure, but I don't think that is the appropriate steps in this kind of case. >> I don't think that you have -- Mr. Marks May be able to verify this, but you have not received a report from the planning staff telling you that they find the property is not in compliance and recommending that you should have a revocation hearing. I don't believe that you've heard that, but what he has -- he has done is issued a letter to the complainant in this issue saying that he doesn't think that that kind of a report is appropriate to you based on what he has done and there are reasons for that I'm sure he'll get into, so that's -- you know that is the response that he sent to Ms. Gannoe. >> that's correct. I have received a copy of that letter and also received his verbal testimony on many occasions before the board, before I was chair saying that he did not believe that a revocation hearing was appropriate. >> right. And he being Mr. Marks with the city. Yes. While the planning staff did not give the Chairman Anything in writing saying the property was not in compliance, the neighborhood and neighborhood association have formally reported the property was not in compliance, and have testified to that fact. It says, the board shall hold a hearing on a report within a reasonable amount of time, and notice of the time and place of the hearings shall be furnished to the land owner, at least one week prior to the hearing. and that's according to this ordinance. Again. And you have that in front of you. While the board did not hold a bonn that fid hear, a representative appeared about a year ago and stated that the property would be brought into compliance and conditions would be met. And this has not happened. Additionally, the ordinance states the board of adjustment May authorize the division of planning to invoke the conditional use permit, and to take the necessary legal action to cause the termination of the activity on the land, which the conditional use permit authorizes. Part of the problem is that this building has never had any legal activity on the land. The building has never been completed. It has never been inspected as required by law that we can tell, and it has never gotten an occupancy permit since it received the permit to exist 11 years ago. It is an eye sore. And it is just sitting there right up close to the road, looking ugly, doing nothing. So the second ordinance or second part of that ordinance also states the board shall have the power to revoke conditional use permits, for non-compliance with the condition thereof. Furthermore, the board shall have the right of action to compel offending structures or uses removed at the cost of the violater, and they have judgment in personam. so the procedures for any conditional use permit, if the board can, if the applicant doesn't follow all state, local and federal laws, they have to follow those laws. The inspections made, and they are supposed to be I think once a year, to see if they are following the law. And unless additional time is granted, the applicant is given one year to comply with all conditions. And it has been since 2060 and it has not ---- since 2006 and it has not complied with the condition. They should be reviewing the permit annually to verify the conditions of the permit are being met, and that they are not. If a complaint is being made by any entity, that they are not met, an inspection is to be made and we've, you know, complained over many years. The board gives the land owner one week to have a notice of a hearing, and the board has the power to authorize the staff to revoke the permit and to take necessary legal action to cause termination. The board has the power to compel offending structures or uses to be removed at the cost of the violater, and May have judgment in personum for such costs so that is what I am trying to explain that we would like you all to do, because the power to do it in and of yourselves as a body. It doesn't have to be a vote, you can just say we're going to have this revocation hearing, and have it at your meeting or any meeting coming up or a special meeting if you think it will take a long time. The neighborhoods and neighborhood association ask the conditional use permit be revoked as shown per all reasons presented in the past, and that the structure be removed at the cost of the owner. Thank you. Thank you for sitting here on a friday. >> thank you. >> >> and remember, simpson said that you can do this. >> oh, I remember. [Laughter] >> lisa gannoe. >> you're an expert already. >> I'm glad you think so. I think this is the easiest decision of the day. This is the sixth time that I have appeared before the board of adjustment regarding the property at 7524 old richmond road, and have asked that a revocation hearing be scheduled. I have presented several documents in testimony for the record previously that provide evidence for why revocation hearing is needed. After the February 2017 board of adjustment meeting, I received a letter stating that I could appeal the division of planning's decision not to recommend a revocation hearing be held. I found this confusing and have contacted the division of planning a few times to try to clarify this. It is my understanding that this decision to not hold a revocation hearing does not lie with the division of planning, according to state law, that the chair of the board of adjustment should have been given a report in writing from the administrative official as staff to the board stating how the property owner is not complying with all of the conditions listed on the conditional use permit. This should be evident based on annual inspections. Instead, I have been told that the annual inspections show the greenhouse is being out of business. When, in fact, the sod production wholesale business never commenced. I have requested an open records request previously for the inspections but have never received those. Nothing exists in the record showing that the conditions were met, and this is obvious when looking at the property. If the board of adjustment finds that the facts alleged in the report are true, and that the land owner has not taken steps to comply with the conditions, the board of adjustment May authorize the administrative official to revoke the conditional use permit and take the necessary legal action to cause termination. Since October 2015, I have reported many reasons as to how the land owner has not complied with the conditions, yet no action has been taken. There should be one meeting so both sides can be heard at the same time and presented for the findings. I little the board of adjustment fully believe the 10 conditions placed on this property would be met yet the land owners knowingly did not disclose information they gained from a survey of the lot yet a your later, nothing has been done. I believe as a member of the board of adjustment which allowed this conditional use permit you all are owed an explanation as to why your directives and conditions have not been met. A stated by the board of adjustment in 2006 when this was issued we will enforce it. There is an email up here and at the December 2015 meeting, the representative presented this email stating work supposedly taking place yet the property looks the same today and was placed for sale a few months after that appearance. I provided a copy of email for the record at the February meeting along with my previous letters to the city and support letters. I have provided a list of reasons why revocation hearing is necessary and you have that in a packet that you just passed out but this is not a complete or exhaustive list. The 20 items certainly should be enough evidence to schedule the revocation hearing. I'll only point out a few of the most important items items 1-4 are important. The conditions have not been maintain since 200 including screening and paving and many other things. There has never been a certificate of occupancy, no evidence of proper permits that all the proper permits were gathered for this project. The division of application with the division of building inspection and division of planning expired in 2007. The encroachment permit from the kentucky transportation expired in 2009 when the property owners failed to answer certified mail. Other important ones include 12, 13 and 14. There has been illegal signage on the property for a number of years. They never had a sign permit. This is when I went to code enforcement and reported this at the last meeting. There has been a sign up that does not meet the materials for signage, there has been a sign for the lawn company that was, I believe illegally allowed to lease the greenhouse. There has been a real at this sign there since July and was removed eight days after I sent my letter into the division of planning on March 8. The company listed as the contractorcontractor this building did not pull permits in 2006, 7 or 8 and the person listed for as the contractor did not do anything for the building. Also more important, the property owners even though I pay my taxes regularly have been city tax negligent for several years. I gained this information in 2015 and I just checked again this month to make sure and they are still tax negligent and I'm not sure how long they have been before 2015 but I think that's important because they obviously are not doing what they should be doing. I also included the letter that I sent to the difficult -- to the division of planning. i have other things listed there. I've provided the chronology of events for the greenhouse and provided a map for the property in question so will you have that as well. I believe that I have the proof and evidence to substantiate these 20 items and more. Please schedule the revocation today so that all of the evidence can be presented with the land owner present within the next month I have many documents to present and I believe a special meeting to be held. Conditions will never be met and where a sod production business will never commence. A conditional use permit should not have an an verse effect on the surrounding neighborhood and this bun certainly has. The property owners haven't been here since they gained arolf in 2006. I've spent many hours at this, as you all know and obviously care a great deal about this. I would ask that the documents that I passed out today to entered into the official record. Thank you. >> thank you. >> and furthermore. I'm charles martin. I live... Have any of you seen the greenhouse? Do you noah we are talking about? It's been there since '06. I just have one thing to put up. It was the only development plan I believe that was put up in '06 and it shows, I gave her one but you can have the last one. I was here that day for the board of adjustment and I wrote a letter because I didn't think I was going to be able to come. I'm going to read my letter. Dear board of adjustment members as a neighbor and land owner, the right to object to the proposed greenhouse plant nursery. This is an inappropriate commercial use in an area primarily agricultural with single family homes and this will negatively impact surrounding properties and the subject properties as it is too small for a plant nursery. It's too small for the proposed greenhouse building and it is in sight presently of a defunct greenhouse which has long been an eye sore. Now that should have been a letter written today because it's the same. That was written in '06. Now the other one finally fell completely down but this one is almost in as bad shape as that one. But what I really want to address are the variances that were not taken care of before. The greenhouse is a non-conforming lot in the ar zone. It's not 40 acres. It does not have 750 feet of frontage. It does not have 300 front yard and it has two front yards because it's on 25 and the interstate so it is required to have two front yards. It does not have a minimum side yard of 25 feet and the greenhouse has some specific requirements, a 20-foot wide landscape easement around it and you can't build a greenhouse structure within 300 feet of existing residential structures on other properties. The driveway has to be 100 feet from the property line and review access points, blah blah blah. He did request two variances, one for the reduction from 100 feet to zero feet for the driveway. So he put it smack against his neighbor's property line. And his second variance requested was to reduce from 300 feet to 242 feet from the greenhouse structure to the nearest residence. But he didn't have 300 feet. He needed more variances than that. The pba photographs the site plan and illustrate additional variances were required to construct the structure on a lot that is 157.47 feet deep. That is front to back. I wrote in 157 there. The 50-foot front yard setback on the east side falls within the building. The 50-foot yard setback on the west side falls within the building that was constructed without permits. It's clear that the 35 x 185 building surrounded by 20 feet of required landscape and on four sides and it required paved road and landscaping for the park and loading can't be located within the setbacks. When it's only 157 feet deep. I remember that meeting. And the the person who live add cross the street was a friend and I came with him. He didn't feel good that day. He was already sick. He didn't put much of a fight, none of us did. a busy day. We all go out and talk it over. We went out and they said okay, well there is a big hill in front so you won't be able to see it. That is not true. We are going to put some green confers all along the front. See the big row of them there. That is not true. We are going to landscape all the way around it. Bill said okay whatever I'm tired. Well, he didn't know then but he was dying of cancer and he subsequently did, but so this was a mistake to have given them that. I mean you guys, I have been watching the board of adjustment for years and it's a thankless job and I don't know how you get it right 9.9% of the time. I don't think it was is right this time. We put up with it a long time but now we are not asking you to take a vote or a quorum. All it takes is the Chairman To say we'll have a revocation hearing. Hard to see why we should not be allowed to do that. We are all available for questions. >> thank you. Staff? >> Mr. Marks? >> Miss Jones you'll probably have to weigh in once again because I think every time this comes before us every few months, it's so bogged down in the procedural mi nusha of our ordinance mi minutia. Part of the ordinance says if conditional use has not been exercised within a year we can have a hearing to revoke it so walk us through that process after Mr. Marks presentation. There's no dispute that they're not complying with conditions. Have not ever complied with conditions imposed by the board. Our position is that it is not relevant. The property has been vacant for the vast market of time since 2006. The grow building was built. We have no evidence that they actually conducted a wholesale business out of that building ever. We do have some anecdotal evidence that they did start to grow the sod inside the building but that activity in and of itself current require a conditional use. It happens all over the rural area in greenhouse buildings. People grow things. The only thing that kicks it into a conditional use category is how they use that product and if they use it on site for a wholesale business, that kicks in the conditional use requirement. I'm going to cut to the chase because you all have heard this so many times already. We have three findings for disapproval. The first one relates to what I just mentioned that the property has been vaik apartment. It's vacant right now. Vacant. The conditions applied are intended to ensure that the activity doesn't have an adverse impact when the activist activity is under way. It's not the that's the main thrust of finding number one. that the property is vacant and not actively being used. There is no relief or requirement that the conditions imposed by the board are complied with under those circumstances there are a lot of analogous conditions that we can chem up with that that is the case. Finding two gets at the question of when it is appropriate to proceed with a receive indication hearing? Number one, the activity needs to be actively under way that was approved as a conditional use and whoever got the conditional use is not making a reasonable effort to comply or there is just not been significant progress coming into compliance. When the activity that the board approved has a conditional use is under way, obviously there is an expectation and legal requirement that they comply with the conditions. That's just not happening in this case and we've said that over and over again and it's just not sinking in with some folks. But I don't know any other way to say it than that way. There is one thing here that they touched on that's really important and that gets to the whole idea of what is the intent of having a revocation hearing in the first place? The first speaker talked about the provision in the ordinance where it's number 7 the procedure going through staff reporting to the board, non-compliance and then making perhaps making a decision to have a revocation hearing. if you look at the bottom of that paragraph, number 7, you see just above 8, that gets to the intent of all this and I will quote it. May authorize the division of planning to revoke the conditional use permit and take the necessary legal action to cause the termination of the activity on the land which the conditional use permit authorizes. Well guess what? That's already happened. The activity is not under way. What more can you do? Now that leads to the question of the greenhouse building itself. That's really I think what the ultimate goal is here on the part of the appellant is to get the greenhouse building taken down. Well, the greenhouse buildings are common all over the rural area in fayette county. They're used for agricultural purposes. Revoking the conditional use permit is not going to result in any ability on our part to have that building taken down. Why? Because it can be retained as an agricultural structure and that's very clear in the ordinance. A farmer could come in and use it to grow tobacco seedlings. They can use it to grow other plants that they don't sell wholesale on site that they take somewhere else. And this is not pie in the sky. This is a very real possibility if the conditional use got revoked, the property owner or operator is not going to tear that building down. They're going to retain it for an agricultural use. It might limit the ability of them to market it. Property is for sale right now. >> I do not believe that any of us who are on the board in '06. We weren't here but my understanding or at least my recollection was the application for conditional use was to use the property for wholesale agricultural use. >> plant nursery and commercial greenhouse building for wholesale purposes. >> now my question is the wholesale... The current greenhouse building even if that conditional use, the only reason they had to get permission was for the wholesale. >> correct. >> they could have built the greenhouse anyway. >> exactly. >> as an agricultural. >> yes. >> building. In the ar zone? Right. >> it's not just how the building is built. It's how it is going to be used and that relates to safety issues and whether or not the building is going to have the public going in and out of it or if it is strictly a private use for example, a barn that a horse farmer uses or something else. There are no building code standards that apply to those structures. It's on the building. The property owner has to handle that. And if there is a problem, it falls on them, not the general public even as wholesale you have the public going in and out of there. We went through that in detail with building inspection. Miss Jones this building fall within the definition of agricultural, would this be an accessory of agricultural use? >> I would tell you that yes, for example, if a private property owner owns this property and they wanted to build a greenhouse on this property for their own personal use. They would be able to do that. It's when they engage in doing something like, in this case wanting to sell wholesale sod or something, that is not agricultural for their own purpose, that we get into, you know, whether or not it's conditional, whether or not its allowed, whether or not you have to weigh in on it. To to light what Mr. Marks is saying we had an issue with a barn on the ar zone in disrepair. Code enforcement tried to deal with that and force it to be repaired. It was just a private barn on a ag piece of property. In doing that, we got sued over it and we lost. Because it was an ag building on an ag piece of property. What Mr. Marks, and there are a couple different things going on here. What Mr. Marks is trying to tell you is that the conditional use section of our zoning ordinance is to regulate what we've determined in our ordinance is are conditional uses within our area. so just because someone comes in and asks for a conditional use, they May or May not do it. If they are not doing it, it becomes a difficult question as to how you go in and regulate or stop what they're not doing. And that's where we have ended up every time here. So, you know, the other thing that plays into this is your all's bylaws that requires that an administrative official, can would be Mr. Marks or someone from the staff that handles conditional uses, would come to you and in writing provide you a report that they think there is not... There is some problem with the conditions on that use and that you all should take a look at those and then you all can decide whether or not to have a revocation hearing. And you all can decide whether or not you think that should be revoked. But we have never gotten to that point in this case. That's your decision but you have not received something from Mr. Marks because he has been of the opinion that the property is vacant and not being utilized based on the conditional use permit that use is not being done on the property that was granted that he doesn't have a good basis to come in and say you need to revoke this permit to revoke the use because the use is not going on. The structure is there but the structure by itself could be an ag use. It is a very fine line in our juries did ix to start getting into private ag uses and you know, so that being said, this, you know, Mr. Marks wrote a letter hoo didn't feel it was necessary to write a written report to you all to advise you there was a problem with the use since there was not a use going on. But as you know, that there is Miss Gannoe feels there is a problem and that you all need to address a revocation hearing. Mr. Marks wrote her a letter and you've got it and said, you know, we obviously have a disagreement about the interpretation of how this applies and I'm not going to issue a written report to the board, you know, giving them a basis for reason why I think we need to hold this hearing. That is what is being appealed to you today in terms of because she doesn't agree with what he said. He said I'm not going to do that. So, you know, you can call it half dozen of one or six of the other, at the end of the day, if you don't agree with Mr. Marks you are going to grant her appeal and then you can determine whether or not you think you want to have a revocation hearing. If you agree with Mr. Marks then you are going say you agree with him and you are going to uphold what the decision he made was and advise them of and their course of action would be to appeal that decision made by this board to circuit court. So that's where you are today. But that's why you are not getting a written report from the administrative official who handles conditional uses which is what your bylaws say. Ultimately the decision the you think there should be a revocation hearing, there are provisions that have to take place because there is another land owner involved. We've never gotten to that vote because within your all's purview, you haven't chosen to go there in the past. You didn't want to do that or we didn't have a quorum to take a vote at all. So that's my recollection of you know, either you all have declined to take a vote on whether or not you want to hold a revocation hearing or we haven't had a quorum so you couldn't take a vote on anything. If that's makes sense. >> that makes sense. Hypothetically if we were to have a revocation hearing and decide to revoke the conditional use permit, it would be your recommendation to the board that we not order destruction of the building in that the building could still be used for other purposes even without the conditional use. >> I think that most likely would be the recommendation to you. It would be... >> hypothetically. >> it could be a dangerous decision to do that. And we've had that experience before. And code enforcement doesn't like to address these situations in the ag zone where there is not any kind of a, you know, commercial use going on because of that reason. >> can I make a statement Mr. Marks? I'd like to see how close I am to what we are talking about. It seems like to me if it's not being used for the approved conditional use there is nothing to revoke. >> well, there is a conditional use hanging out there. When this was approved in '06 there was no condition added that if the property changes hands that it be null and void so the conditional use can be passed on if somebody buys the property they would still have the right to pursue the conditional use if they agreed to abide by the conditions that were originally imposed by the board. >> I understand that. >> Mr. Clark the way I see it, as long as they use that property within the conditions that we have granted they can continue to use that property and if they stop using the property, the they continue to use the property for that reason but without following the conditions our ability to revoke, to penalize them back into compliance. In this situation no one is using the conditional use. There is no one to slaply hand because we cannot cajole them into doing the things for wholesale agricultural business because there is no business to be done. Our stick is revocation but there is nothing to really to revoke because no one is going to be punished by revocation because there is no use being used anyway. It's there but it's not being utilized. We've looked at it from the opposite perspective and we didn't have a finding about this but the person who holds the conditional use has legitimate rights. They've invested in the property based on what the board gave them in '06. You can't for lack of a better word, ash rarely take that away. Arbitrarily. >> wait, the gallery can calm down. >> since everything is focused on this one case, one circumstance that has unique characteristics so to speak, let me throw out one analogous situation that the board, I don't know if you remember it but it was a child care case where they got conditional use many years ago to have a child care center in a residential zone. And it went vacant for a number of years where it wasn't exercised and a new owner came in and said she wanted to redo the conditional use and she had to comply with the conditions originally imposed and that's what she tried to do and is still trying to do. That was a similar circumstance. >> are there anymore questions for Mr. Marks before he takes a seat? >> I think this is more for gracie. It seems to me that we have two interpretations here. We've got the planning staff interpretation that we have, there is no use on the property there is no activity on the property therefore the conditions don't have to be met. And we have Dr. Gannoe who is saying there is a conditional use on the property, therefore the conditions have to be met even though there is no activity and to me, and so we are, from where I'm sitting, that's what we are asked to determine is which one of these interpretations do we go with? >> I understand what you are saying. And in part you are, but the process laid out in your bylaws is that normally this kind of, you get a written report from the administrative official that handles conditional uses and you are not getting that in this instance. You've heard why. Then the question becomes when he issued this letter saying we are not going to recommend a written report to the board on this, then she is basically saying that I don't agree with that. I think you are in error in making that call. So at that point, that's what I think procedurally or technically this appeal is about is, you know, did Mr. Marks make that call incorrectly? Do you agree with her on that? If you were to, you would grant her appeal because her appeal is, you know, he should be making a report to you about this and it should say this. But you could approve her appeal in which you could say you thought it was unnecessary to make the report. At that point the question would then become what do you want to do next. In other words if you disagree and you think it should come to you to make a decision whether or not to have a revocation hearing, are you going to schedule one or not and if you are, there are procedural requirements that should be met the bigger issue we've heard multiple times is not the fact that what you all hear lots of times is this business is loud. This business is you know, dumping gravel all over my street. This business is croo eighting all this trash. This business is not closing on time. All those kinds of things and those are the things that are typically results of activity under a conditional use permit that is in violation of the conditions. Or not client with whatever those conditions are. This is different because what you are hearing is the conditional use was to do this business and in the context do all these things. They haven't done anything. There is nothing going on and so that's a little bit different than what you normally hear. The other thing I think that is driving this from a practical standpoint is that and you've heard them say that the building needs to come down. And you've also heard them quote to you parts of the ordinance that say, you know, that the board has the action to compel offending structures or uses to be removed. Well, if there is no use, you know, even if you have a revocation hearing and you revoke the conditional use, if there is no use going on there we are not going to be able to remove a use that is not there. In order to compel the structure to come down there would have to be a finding that it is an offending structure. Here is what would happen as a practical matter. If we compel the taking down of that structure and they said, which I expect they might since they're not doing anything on the property, we are not taking the structure down. First off I'm not sure that the government and we talk about in all different sorts of context, that we have the money set aside to go in and have a structure demolished whenever we think that there is a problem. We can do that, but then we have to put a lien on their property. Well, the chances, you know, those are decisions that are going to be made internal to the government about is this an offending structure? Is it worth diddy mol issuing, is it worth putting a lien on the property that we are not going to recover or seeking some kind of court action to force payment back at that abatement that if, you know you can't get blood out of a turnip. Just because you hold a revocation hearing if you were to choose to do that and and if you revoke the conditional use, it doesn't mean the structure is coming down as a practical matter because unless the land owner would step up and say it can be demolished at my expense, there on would have to be an internal discussion about how that is practically going to occur. >> you are saying that the board, we the board of adjustment cannot compel the land owner to take down that structure. We don't have the right to do that. >> well, I think the question is >> I think she said we better be sure we are correct. >> you need to be sure it is an offending structure to be client with the ordinance and then secondly, you know, you would have to evaluate how, you know, how physically are you going to demolish it if the land owner is not going to? And is it worth the expense of a legal action or a lien enforcement or something like that to make it happen. But the first question is is it an offending structure. Is a greenhouse that is not being used commercially for wholesale purpose in an ag zone an offending structure? That's a big question I think and it's a question that the government has had difficulty dealing with in the context of the ag zone frequently. >> is a conditional use... Does a conditional use ever expire if it's not being used? >> a conditional use, sometimes you all, you might recall you put time limits on them so if they don't... If they're not, if whatever conditions you put on them to be done about I a certain date aren't done, it will expire. Sometimes you put null and void conditions on it, in other words, if this owner, you know, abandons this use or sells the property, then the conditional use will be null and void. Neither one of those is on this conditional use so as a practical matter, it's been abandoned, I think we would agree to that, but you know, and so if someone else came in, they would have an argument that if they wanted to operate something with exactly the same cm use that is on there, as long as they were willing, as long as they comply with the conditions, they could. Then we get into issues and you might remember, you know, the community inn was one where if somebody else comes in and starts doing a whole bunch of things that are totally different from that conditional use the then you might get into a situation where and in fact you did in that case where you revoked the permit because they came in and said well we are assuming the conditional use but then they didn't do anything that was in that conditional use. >> I think... I mean we have the authority to revoke a conditional use that is not being used after the one-year period but what is the point? Because no one is using the conditional use? There is no violating offender we are trying to hit with the stick to get back in line. It's just out there and if someone wants to come in later and comply with all the existing conditions, there is no the a whole lot... There is not really really a point... >> the only thing that I would say about that, just so you have all the thought process going on is if you do revoke this conditional use, then someone else that would purchase that property or buy that property wouldn't have it available to them. but it doesn't mean the structure is going to come down necessarily and you know, you would still have to go through the required notice provisions to hold a revocation hearing. But you would eliminate the conditional use on that piece of property. >> so from now on somebody couldn't have a wholesale greenhouse in the future on this property. That's the only thing we would really be doing? >> unless they came back and reapplied. >> correct. That's right. Have a question for Mr. Marks or Miss Jones? All right. We know where to find you. The appellants, get in line whoever wants to get in line and talk. >> I tried to write as fast as I can. I'll try to make the points. As far as what he has invested in this property, I can point out to you that the property owners around there have investments also that have been hurt by this and we really don't know what his investment is because there is no paper trail on this. I reported last time from a greenhouse expert that it is falling apart. It is an offending structure in many ways and if somebody else were to buy this, they're definitely buying a lemon because it's fall ago part at every corner and edge and the roof line and everything and I'm sure the systems inside are not any good anymore. i think it's important, too, that this building is very questionable as to how it got there. There is no paper trail. There is no paper trail that the permits were obtained. The city did not get the money for these permits. It's not written down anywhere. I think the building itself is a real problem because there is no paper trail of how this building got there. I think, too, you know, a commercial greenhouse is definitely different. This greenhouse is 6,000 square feet. I have an email from Mr. Marks dating March 1 and I asked a question to council member plomin's office because at the last meeting you guys voted on some things to change from conditional use to permitted uses so I had a question with that because one of them was plant nurseries. He says in this email, as to greenhouses a commercial greenhouse as defined by the zoning ordinance is much different than the common greenhouses used for agricultural operations throughout fayette county. A commercial greenhouse does require a conditional use, which was approved for 7525 old richmond road as Dr. Gannoe has pointed out, a plant nursery requires a conditional use in the ar zone but only if on site sales, the requirements for commercial greenhouses will not change with the recommendations summarized in the attachment. I mean it cannot be true that you can transfer from one use to another. If this conditional use permit is revoked. It is in an ar zone however as I've reported many times, this is on 1.48 acres. It is not a five acre or more lot which means the definition of farm or agricultural. You cannot use it for any other agricultural use. It would be a different use to begin with. So I mean, I just am really not understanding this. I do think that you need to decide in a haring if they are meeting the conditions. If a permit has been given, you have to decide if they are meeting these conditions whether the activity is occurring or not. The permit was for the structure and the structure is vacant. If they could do this on their own, they would have, but the lot is the conditional use permit and that's what they needed. So I mean we've got issues with the building itself. We've got issues with it falling apart. We've got issues with you could only have a commercial greenhouse in an ar zone with the conditional use. I think there are so many things that needed to be decided at a revocation hearing and we need to decide whether it's vacant or not. Thank you. >> let me just say that Mr. Marks did write that letter and he listed how many things that were wrong that conditions were not met when you wrote the letter to Mr. Aaron jamieson or whoever it is who owns the property who, by the way, does business with lfucg just throwing that out. Everyone needs to know. It seems like like we are having a hearing right now. This is not give and take. This is not between the neighbors and the staff. You know, we are all on the same side here. The staff are not the bad guys. The guy that never met the conditions in the first place. There were a lot of conditions. We are going let you do what you want to do here under these conditions and he said okay, great. He didn't meet the conditions. He didn't even plant those little things he said he was going to plant out front. He did nothing. So I think he never got a conditional use permit. I don't think it was ever... You gave him the effort to do it but he didn't come up with his part so I think after a year it was gone and now I think that we don't need to have this discussion. This is something for the courts or more lawyers, at least let us have a lawyer. You got lots of lawyers helping so please just have a revocation hearing. Have Mr. Music or aaron jamieson's representative or whoever it is that wants to come, see what they have to say and decide but let's have a hearing. Let's not do this again. This is the sixth time that Dr. Gannoe has sat until the end of the board after justment meeting and every time it has been a lot of eye rolling oh yeah we got more neighbors out of control. We are not going to do that. The letter that Mr. Marks sent to the owner listing the things that you wanted done, all the things that he needed to get fixed before the next meeting and you gave him 30 days to do it, 30 days to do it. And at the end of that 30 days he came and he said well, we have what we got a water quality control something done. He did one thing. One thing. And then a year later he had not done anything else. He never took care of the driveway, the weeds, never paved. And the building by the way is almost worthless because that material has about a 10 or 15-year half life or a shorter half life than that. It's a special kind of material according to experts that deal with that. I don't know but it doesn't do it's job after a while so no one would want to buy it for a greenhouse now if they were building one. Okay. Thanks. Just have a hearing, tell us what day to come. >> so I have one more thing and you guys are the ones that know about conditional uses and all that but my understanding from the things that I've learned over the years would be my understanding is that when you have a cm use it is for that one use that one company, that one thing. it doesn't get to transfer from this person to that person or this conditional use to the next. So to me, that condition use is over just like the guy with the cars and he hadn't done anything and it went out of use and they made him take the cars away and he is supposed to be out of business and so the puppy mill but it's still going, I think and so to me, this conditional use is over. Anybody that bought it would have to ask for another conditional use. It doesn't transfer from this conditional use for a greenhouse to that conditional use to a greenhouse or a restaurant or anything else. It's like once it's over and done it's done. It's defunct and then you start from ground zero again. You know that better than I do but that's what I've been told. Thank you. >> anymore comments from the board or anyone else? >> Mr. Chairman, I would just like to say, I totally understand your frustration. I went out there to look and it is way out there. That building is a mess. It really is a mess and I understand it is in the wrong place. It's dilapidated, the driveway is almost non-existent. I understand that, I really do and I wish there were something specific that could be done that follows the law as has been as it has been written. I just see how what we are talking about here will work and I sure wish there was something that just a sure fire thing to get this going even if we revoke the conditional use, I don't see anything happening to that building and that's, isn't that the point? Isn't that what we were trying to do is get rid of that building. And so I'm frustrated, too, because it seems like gosh, we ought to be able to do something about this, you deserve that. I just don't see how this is the way to make that happen. >> to me this seems like a code enforcement issue. If you want the building down. But obviously... >> that's where we started. >> how it ends up on our plate. I think you guys have been in here and been extremely persistent and I'm almost at the point where we don't have the owner of the property representing themselves. I mean the building is going to stay. I don't want to... I do think revoking I think it's odd to revoke or have a revocation hearing on a conditional use when it's not being used; however, I do like the thought of since it's not being used we have a revocation hearing just to get that off of there and the next owners can do what they want with the building. And then come in and talk with the neighbors about that. I see both sides of this, but that's kind of where I'm leaning now. >> we've been hearing I mean this is the sixth time and I don't know what our basis will be for holding a revocation hearing, what, you know, we have to have some sort of basis but I'm also with chad in that you know, it seems like it would be a cleaner thing to do to take the conditional use permit off from this property and start, you know, and it have a new owner and start from the beginning. I just think, I think that there has to be some resolution here and having a revocation hearing will that bring about some resolution? It might, and so I'm leaning that way just to have some sort of resolution to get to bring out all the facts and let's get the facts out there and have the hearing and then have the facts before us and them make a decision. All the facts. Including, you know, having the owner here representing or a representative of the owner. We can have some resolution. >> I'm torn between whether to do another hearing when it doesn't seem like we really have to. We can't really take the building down unless the owner would agree to it. And I moon we basically are looking at it as the conditional use is already dead basically unless somebody comes along and buys it and decides they want to have a greenhouse. If they buy it and they don't want to have a greenhouse, then there is the conditional use is automatically gone. I'm not sure what good a hearing would do other than you all could have a party and push the building down. I didn't say that. But I don't know whether talking to the owner again would give any, would cause him to understand what needs to be done. I'm just very torn. I don't know what a hearing would do. >> well not having a hear is getting us back to this spot. >> let me interject and see if this would be helpful. I think that based on the information even though you didn't get a formal written report from Mr. Marks that if you all, as a board voted to have a revocation hearing based on some non compliance or abandonment of the use that you could do that. What that would do in regard to what you are saying is it would require notice to the property owner. We can't make them show up here but we would give them notice that this is smeg go to happen on their piece of property so one would think they would appear. Then but I want to be clear that in the ordinance, what the words say are that will the board has a right of action to compel. The right of action means you have, you will have legal remedy are available to you to compel that to come down. That doesn't mean that, you know, you just get to go okay, so we would have to go through some steps to make that happen and I don't know at this juncture that we can make that happen. You could, based on what you've heard, have revocation hearing if you voted to choose to do that. You could set it at your next hearing and set a time but. >> I think if we decide to do that then we do need a letter from Mr. Marks saying that the property is in violation of its conditional use. I think... >> I don't this I so because Mr.... Essentially we are saying Mr. Marks was wrong if we deny if we approve today's appeal to are Mr. Marks decision we are saying more or less he was wrong in making that decision we are going to overturn that decision and we will have a revocation hearing is that correct? I'm not even sure have you to do that. This is not what I would normally recommend but under the circumstance I think you could choose to not take any action on the appeal of the letter and vote to schedule the revocation hearing if that's what you want to do and then that in and of itself would take care of that situation. Because you would be basing your decision on the revocation hearing based on the information you have been given by Miss Gannoe and what you've heard in the course of these different hearings. >> I would say that as, for the board, I believe we do have a right to revoke unused conditions and I would not want a resident. I don't think this necessarily warrants us going through the exercise of revoking an unused condition. I think he had substantial information before him to not recommend. I think ultimately this is a building that offends the sensibilities of the neighbors neighbors has nothing to do with the use. The conditional use isn't being used and if someone showed up to start fixing it to use it for that use if they're not compliance then we could then, I would feel comfortable doing it. I'm leaning toward denying the appeal and upholding militia marks' decision not to have a revocation and I would consider this matter completed if' were to decided that. I think the directions were when you get the information that the conditions are not met, you he got a conditional use permit with a bunch of conditions. He didn't do any of it me didn't grade it, plant the stuff, he didn't use it. Didn't do anything. Is it within my purview to make the decision? I think it says the Chairman Shall do it if he gets the information. >> let me get exactly the reference. >> take your time. >> at the end of the little list of stuff. We go through how to give a conditional use permit a lot but we don't ever do the other end of it, you know we don't go through the other part. >> seems like there are two different questions floating around. One is the question of today's appeal does a vote need to be taken and tracey jones? >> we didn't come today for the appeal. We would have had legal representation. >> section section.6 d says the board has the power to decide cases where it is alleged by an applicant that there is an error in any order requirement decision grant refusal by the division of planning or division of building inspection in the enforcement of the zoning ordinance. The appeal under the section should be taken within 30 days. You are appealing Mr. Marks' decision not to follow through. >> that was the first question whether a vote needs to be taken . You could vote to disapprove this appeal that at the same time based on the unusual circumstance or whatever, you could go ahead and decide one way or the other perhaps, traceley have to chime in on whether or not that next decision requires a vote or whether the Chairman Can just say it but the next question is whether to, regardless of the decision made today go ahead and schedule a revocation hearing. I think we can be succinct and I doubt that he would come home from south carolina or he might let someone from the group here in town represent him at this point I'm going to round up discussions and let Miss Jones know the question before you is whether or not I have the authority to say we are not going to schedule a revocation hearing. >> I am looking at 7.6 a subsection 1 and it talks about zoning ordinance. It says the board shall have the power to revoke conditional use permit for non-cliens with the conditions. and then if you look at subsection 6, it talks about division of planning shall review conditional uses and have the power to inspect lands and structures in order to ascertain whether or not the conditions are being complied with as shown on the conditional use permit. If the land owner is not complying, the division can report that fact in writing to the Chairman Of the board of adjustment. The board shall hold a hearing on the report within a reasonable time but the difficult part of this one is you didn't get a report from Mr. Marks smght so I think that you have to and I'm not, I don't say that to say one way or the other. But so I would prefer to have a vote on Mr. Marks' decision which is the appeal before us. If Mr. Marks' decision is upheld we would have upheld the not giving us the report f. We overrule his decision then I would like to have a second vote on whether to set a revocation hearing. >> I think you need to vote on whether or not you agree or disagree with the letter and what he determined about not making the report. I don't think your decision on that. I think you could even if you voted to disapprove the appeal and say his letter was okay, if you so chose by majority of your members, you could schedule the revocation hearing if you wanted to. >> if we have the first vote then I would like to have the second vote and just have there issue... So can I please have a motion set in the proper format using the lingo in our agenda. Because we still have any other items on the agenda. So on the floor the question is will someone move either to to uphold the appeal or deny the appeal on page 5. Pln-boa-17-18 correct? >> if you disapprove of the appeal Mr. Marks gave you his finding force that, you are agreeing with the fact of the letter he wrote and that he didn't want to provide you a report. If you vote to approve the appeal, you are saying he should have given you a written report if that makes sense. Okay. >> I'll correct any wayward members. >> I want a revocation hearing. And so how, so if I make an appeal, if I... >> you want to make that motion first. >> we have a motion on the floor for a revocation hearing. Do I have a second? I have a second. All those in favor say aye. Opposed nay. One opposes. So we'll have a revocation hearing. (Inaudible) >> well, you need to set a date for it. Normally you hold them at your normal meetings and there is a provision for notice of at least one week to the land owner. >> some people's mics are off if they could turn them on. We are not recording. >> so we have four in favor. Everyone except for myself. i voted against. We are now discussing, so that the notice is only a one week so we could have a revocation hearing in April is that what you are telling me for our April hearing? >> yes. You could. The minimum is one week of notice. So yeah, you could have it. >> well I see no reason to postpone unless there are any objections by the board members we'll set the revocation hearing in our April meeting. If the staff and Miss Jones can make sure the notices go out accordingly. I would still like to have to clean up the business for the day. We still need a motion the appeal once again. A motion to approve the appeal would be to recovery ride Mr. Marks' decision, a motion to deny the appeal would be which we sustain Mr. Marks decision. The chair will entertain a motion. The chair will make a motion to move this along. I move that we deny pln-boa-17-18, list a.Gamnoe in determining the division of planning for not recommending a revocation hearing in the ag rural zone at 7524 old richmond road and I would say if I don't get a second then I would expect someone to move the other direction. Do I have a second. >> are there any findings you want to reference for the motion? >> apologies. i would adopt the findings that have been entered to the reporter record. Do I have to read them out loud? >> they're in the record, right? So you can just. >> I would like, based upon the findings that have been reported by the staff and entered into the record today I believe there are three on this sheet. Do I have a second? >> second. >> all those in favor aye. Opposed. One opposed from Miss Mire. So the motion carries. So we will see you guys next month. So apologize this being my first meeting officially as chair has been the longest meeting we've had since I've been on the board and I deeply apologize to the board for not moving things a little more quickly. We've just happened to have the perfect storm Mr. Clark for your first meeting so does any board member have items that it would like to present in hearing none I would ask the the same? Okay. Then the next meeting shall be on April 28, 2017 1:30 in the chambers and we are adjourned. Thank you.