# Board of Adjustment - July 28, 2017 > Auto-transcribed civic record · July 28, 2017 - **Permalink**: https://meetings.lexingtonky.news/meeting/4301 - **Source video**: https://lfucg.granicus.com/player/clip/4301?view_id=14&redirect=true - **Date**: 2017-07-28 - **Last revised**: July 28, 2017 - **Length**: 25,392 words > ⚠️ **Auto-generated content.** The transcript on this page is the Granicus stenographer's live closed-captioning track, captured at the time of broadcast (typos and broken sentences common). Speaker labels come from the same track. Structured facts were extracted with GPT-4o; the narrative summary was written by Anthropic Claude Sonnet. Verbatim wording and speaker attribution may contain errors. See [methodology](https://meetings.lexingtonky.news/about/methodology) or [report a correction](mailto:editor@lexingtonky.news). --- ## Meeting Overview The Board of Adjustment convened on July 28, 2017, at 1:30 PM in the Council Chambers at 200 East Main Street in Lexington, Kentucky, with Branden Gross presiding as the meeting officer. The board addressed five agenda items during the session, including variance appeals, conditional use appeals, and administrative appeals from various applicants. The board took eight votes throughout the meeting and heard eight public comments from attendees. Of the five cases considered, three appeals were approved (John Samson's variance appeal, Grace Free Will Baptist Church's conditional use appeal, and Nick Williams' conditional use appeal), one administrative appeal for James Mitchell was postponed, and one administrative appeal for John & Sharon Thelin was denied. ## Attendance **Present:** • Branden Gross • Harry Clarke • Chad Needham • Thomas Glover • Joan Whitman **Absent:** • Jan Meyer **Late:** • None Five members were present for the July 28, 2017 meeting, with one member absent. ## Votes and Decisions The board took action on eight items during the July 28, 2017 meeting, with most decisions receiving unanimous approval. **Meeting Minutes Approval** [timestamp: 00:30] Joan Whitman motioned to approve the May 19, 2017 meeting minutes, seconded by Harry Clarke. The motion passed unanimously 5-0 with all members voting in favor: Branden Gross, Harry Clarke, Chad Needham, Thomas Glover, and Joan Whitman. **Meeting Minutes Approval** [timestamp: 01:00] Harry Clarke motioned to approve the June 30, 2017 meeting minutes, seconded by Joan Whitman. The motion passed unanimously 5-0 with all members voting in favor. **PLN-BOA-17-00047 Postponement** [timestamp: 05:00] Thomas Glover motioned to postpone the administrative appeal for James Mitchell, seconded by Chad Needham. The postponement was approved unanimously 5-0. **PLN-BOA-17-00048 Parking Variance** [timestamp: 10:00] Chad Needham motioned to approve the variance for CF Real Estate Services, LLC (DBA The Lex) to decrease required parking spaces by 51 spaces, seconded by Thomas Glover. The motion passed unanimously 5-0, with conditions requiring a minimum of 587 off-street parking spaces, reducible to 524 with transit and bike rack provisions. **PLN-BOA-17-00042 Church Addition** [timestamp: 20:00] Thomas Glover motioned to approve the conditional use permit for Grace Free Will Baptist Church's addition, seconded by Joan Whitman. The motion passed unanimously 5-0 with construction and permit conditions. **PLN-BOA-17-00039 Accessory Building Variance** [timestamp: 30:00] Chad Needham motioned to approve John Samson's variance to increase allowable accessory building area, seconded by Harry Clarke. The motion passed unanimously 5-0 with multiple conditions including stormwater consultation and removal of existing structures. **PLN-BOA-17-00043 Indoor Recreation Facility** [timestamp: 40:00] Harry Clarke motioned to approve Nick Williams' conditional use permit for an indoor recreational facility, seconded by Thomas Glover. The motion passed 4-1, with Branden Gross voting against and Clarke, Needham, Glover, and Whitman voting in favor. **PLN-BOA-17-00049 Administrative Appeal** [timestamp: 50:00] Joan Whitman motioned regarding John & Sharon Thelin's building permit administrative appeal, seconded by Harry Clarke. The motion failed 0-4 with one abstention, as Clarke, Needham, Glover, and Whitman voted against. ## Public Comment The meeting included public comment from eight speakers addressing two main agenda items. **John Samson's Accessory Building Variance** Five speakers commented on John Samson's proposed accessory building variance request. Flora Gutter raised concerns about water runoff from the proposed building, referencing previous drainage issues in the area [timestamp: 35:00]. Elizabeth Woodward expressed worries about the project's potential impact on property values and neighborhood character [timestamp: 36:00]. Jeff Creech requested that Samson adhere to the specific building dimensions outlined in his letter to the neighborhood [timestamp: 37:00]. Catherine Perkins, representing the Joyland Neighborhood Association, stated the organization's opposition to the variance request until all neighborhood concerns are properly addressed [timestamp: 38:00]. Amy Clark focused on stormwater management issues related to the proposed building and suggested exploring alternative solutions to address drainage concerns [timestamp: 39:00]. **Nick Williams' Recreational Facility** Three speakers opposed Nick Williams' conditional use permit application for a recreational facility. James Smith cited safety and traffic concerns as reasons for his opposition [timestamp: 45:00]. Diana Sisk expressed concerns about maintaining the industrial character of the park and opposed allowing the recreational facility [timestamp: 46:00]. Clifford Allen, identifying himself as president of the Westhampton Corners Association, opposed the recreational facility based on both safety considerations and zoning concerns about the appropriateness of the use in an industrial area [timestamp: 47:00]. The public comments revealed organized neighborhood opposition to both proposals, with speakers raising concerns about infrastructure impacts, zoning compatibility, and community safety. ## Appointments The meeting included one appointment action during the session. **Mark McCain** was appointed to the **Landscape Review Committee**. *Note: No transcript timestamps were available for this appointment action in the provided materials.* ## Contested Items Three items on the July 28, 2017 agenda generated significant discussion and opposition from community members and stakeholders. **Variance for John Samson** Several neighbors attended the meeting to voice concerns about John Samson's variance request. The primary issues raised included potential water runoff problems that could affect adjacent properties and concerns about how the proposed changes would impact the overall character of the neighborhood. Community members expressed worry that approving the variance could set a precedent for similar requests that might alter the area's residential nature. **Conditional Use for Nick Williams** Nick Williams' application for a conditional use permit to operate a recreational facility faced strong opposition from local business owners. The opponents cited safety concerns related to the proposed facility's operations and argued that the recreational use would conflict with existing zoning requirements in the area. Business owners expressed worry about potential impacts on their operations and questioned whether the proposed use was appropriate for the location under current zoning ordinances. **Administrative Appeal for John & Sharon Thelin** The administrative appeal filed by John and Sharon Thelin centered on complex interpretations of municipal zoning ordinances, specifically regarding regulations governing non-conforming structures. This case involved detailed legal and procedural questions about how existing zoning rules should be applied to structures that may not fully comply with current standards. The appeal required careful examination of zoning code language and precedent regarding non-conforming use provisions. All three contested items required extended discussion during the meeting as board members worked to address the various concerns raised by community members and stakeholders while ensuring proper application of relevant zoning ordinances and procedures. ## Variance Appeal for John Samson [timestamp: 30:00] The board considered agenda item III.C.1, a variance request from John Samson to increase the allowable area of an accessory building on his property. John Samson presented his request to the board, seeking approval to exceed the standard size limitations for an accessory structure. The specific details of the proposed building dimensions and the amount of variance requested were discussed during his presentation. Flora Gutter and Elizabeth Woodward participated in the board's deliberation of the variance application. The discussion focused on evaluating the potential impact the larger accessory building would have on the surrounding neighborhood, including considerations of visual impact, property values, and compatibility with existing structures in the area. The board examined whether the variance request met the necessary criteria for approval, including whether the applicant demonstrated a hardship that would justify granting an exception to the standard zoning requirements. They also considered what conditions, if any, should be attached to the approval to mitigate any potential negative effects on neighboring properties. Following their discussion and evaluation of the application, the board voted to approve John Samson's variance request. The approval allows him to proceed with constructing an accessory building that exceeds the standard size limitations established in the zoning code. Any specific conditions or restrictions that were attached to the approval as part of the board's decision would govern the construction and use of the proposed accessory building. ## Conditional Use Appeal for Grace Free Will Baptist Church [timestamp: 20:00] The board considered agenda item III.D.1, a conditional use appeal submitted by Grace Free Will Baptist Church for a proposed building addition to their existing facility. Emil Collins served as the key speaker during the discussion of this appeal. The church had requested a conditional use permit to construct an addition to their current structure. During the deliberations, board members examined the potential impact the proposed addition would have on the surrounding neighborhood. The discussion focused on how the expansion would affect local residents and the broader community context where the church is located. As part of their review process, the board considered establishing specific conditions that would need to be met for the project to move forward. These conditions were designed to address any concerns about the addition's impact on neighboring properties and ensure the project would be compatible with the area's character. Following their discussion and evaluation of the proposal, the board voted to approve the conditional use appeal for Grace Free Will Baptist Church. This approval allows the church to proceed with their planned addition, subject to any conditions established during the review process. The approval represents the board's determination that the proposed church addition, with appropriate conditions in place, would be suitable for the location and would not create undue negative impacts on the surrounding neighborhood. ## Conditional Use Appeal for Nick Williams [timestamp: 40:00] The board reviewed agenda item III.D.2, a conditional use appeal submitted by Nick Williams for the establishment of an indoor recreational facility. Williams presented his request to the board, seeking approval for the conditional use permit. **Key Participants:** - Nick Williams (applicant) - James Smith - Diana Sisk **Discussion Points:** The primary focus of the board's deliberation centered on traffic and safety concerns related to the proposed indoor recreational facility. Board members examined how the new facility would impact local traffic patterns and whether adequate safety measures were in place to address potential issues. Williams presented his case for the conditional use permit, though specific details of his presentation were not captured in the available materials. The discussion involved multiple board members evaluating the merits of the application and addressing the identified concerns. **Outcome:** Following the discussion of traffic and safety considerations, the board voted to approve Nick Williams' conditional use appeal. The approval allows Williams to proceed with establishing the indoor recreational facility under the terms of the conditional use permit. The approval represents the board's determination that the proposed facility meets the necessary requirements and that any traffic and safety concerns raised during the discussion were adequately addressed or could be managed through the conditional use framework. ## Administrative Appeal for James Mitchell [timestamp: 05:00] The board considered agenda item III.E.1, an administrative appeal submitted by James Mitchell. Jacob Walbourn served as the key speaker for this item. During the discussion, it was revealed that Mitchell had requested a postponement of his administrative appeal. The postponement was sought to allow Mitchell additional time to address specific concerns that had been raised by the Planning staff regarding his case. The nature of the original administrative appeal and the specific concerns raised by Planning staff were not detailed in the available meeting materials. However, the request for postponement suggests that Mitchell needed more time to prepare his response or gather additional documentation to address the staff's issues. The board ultimately granted Mitchell's request for postponement. This decision allows Mitchell the opportunity to work with Planning staff to resolve the identified concerns before his appeal is formally heard and decided upon. The postponement represents a procedural accommodation that enables appellants to strengthen their cases when staff concerns are identified. By granting this request, the board demonstrated its commitment to ensuring that administrative appeals receive thorough consideration with all relevant information properly addressed. The item concluded with the postponement being officially approved, meaning Mitchell's administrative appeal will be rescheduled for a future meeting date once he has had sufficient time to address the Planning staff's concerns. ## Administrative Appeal for John & Sharon Thelin [timestamp: 50:00] The board considered agenda item III.E.2, an administrative appeal filed by John & Sharon Thelin challenging a building permit issued for a neighboring property. The Thelins contested the permit on grounds that the proposed construction did not conform to local zoning ordinances. Key speakers during the discussion included Bruce Simpson and Darby Turner, who presented arguments regarding the interpretation of relevant zoning regulations. The appeal centered on questions of non-conformity issues related to the permitted construction project. The board engaged in discussion about how to properly interpret the applicable zoning ordinances in relation to the contested building permit. The Thelins' appeal raised concerns about whether the neighboring property's approved construction plans met the required zoning compliance standards. After reviewing the appeal materials and hearing the presentations, the board ultimately denied the administrative appeal filed by John & Sharon Thelin. This decision upheld the validity of the original building permit that had been issued for the neighboring property, indicating the board found the permit to be in compliance with applicable zoning requirements. The denial of the appeal allows the contested building project to proceed as originally permitted, resolving the zoning compliance questions that had been raised by the Thelins regarding their neighbor's construction plans. --- ## Decisions - **Motion** — passed (5-0): Approval of the minutes of the May 19, 2017 meeting - **Motion** — passed (5-0): Approval of the minutes of the June 30, 2017 meeting - **PLN-BOA-17-00047** — postponed (5-0): Postponement of administrative appeal for James Mitchell - **PLN-BOA-17-00048** — passed (5-0): Variance to decrease the required number of parking spaces by 51 spaces for CF Real Estate Services, LLC (DBA The Lex) - **PLN-BOA-17-00042** — passed (5-0): Conditional use permit for Grace Free Will Baptist Church to construct an addition - **PLN-BOA-17-00039** — passed (5-0): Variance for John Samson to increase the allowable area of an accessory building - **PLN-BOA-17-00043** — passed (4-1): Conditional use permit for Nick Williams to establish an indoor recreational facility - **PLN-BOA-17-00049** — failed (0-4): Administrative appeal for John & Sharon Thelin regarding a building permit --- ## Full transcript i'd like to call the order of the July 28, 2017 board of adjustment meeting. I will go through the agenda quickly. First would I like to note that larry forester has been promoted to planning and zoning and so he is now on the planning and zon ing commission so he will not be here today and we will hopefully within the next month or so have a new member join our are good. The first item we have on our agenda today is the approval of the minutes. Wees were sent out earlier in the week. Has everyone had an opportunity to review them? I would like to entertain a motion to approve the May 19, 2017 minutes. Do I have a motion? >> so moved. >> Miss Whittman moves and Mr. Clark seconds. All those in favor? Any opposed? No opposed. >> next item is approval of the June 30, 2017 minutes. Do I have a motion? >> so moved. >> thank you Mr. Clark. Do I have a second? >> second. >> all those in favor say aye. Any opposed? Okay. If you would please turn off your cell phones if you have them on right now. If you are going to speak today, I would like you to go ahead and have you sworn in if you could please rise. Raise your right hand. Do you solemnly swear or affirm to tell the truth, the whole truth and nothing but the truth? (Audience says I do) >> thank you very much. I would like to remind everyone how the order of the present ations will go. If the staff needs to make a presentation on an application, it will go first. We'll then have the applicant speak. We'll then have anyone in opposition have an opportunity to speak and then we'll have the applicant have a rebuttal. The opposition will not have a second opportunity to speak so will have to get all their speaking out first off. I would like to remind everybody there has been some problems in the recent of people speaking out from the gallery. Do not speak unless you have been recognized by the chair. You May come up to the podium if you want to speak and it is your opportunity to speak during the hearing, raise your hand please and the chair will recognize you if it is appropriate. Now with all that being... Last ly, we will go through the items and so what I'll do is call each case, the applicant will rise if they're here and they'll ask if anyone is here in opposition. If there is opposition we'll ask you to step outside and try to settle the opposition to the application. If not we'll have the unopposed cases heard first and then we'll have the cases with opposition heard after that. >> we might have one request for a postponement. >> do we have any requests for postponement. Put your name on the record for us. >> indeed you do. Jacob wahlburn here to speak to under administrative reviews on the second page of your agenda under call it paragraph e item 1 , pln-boa-1747 james mitchell. We received a staff report near the end of last week and would like an opportunity to discuss some of the concerns staff has raised to see if they can be al layed and therefore request a one month postponement to your August meeting. >> nip here in opposition? Do any of you oppose the postponement to next month. No one in opposition is opposed to the postponement. Anybody on the board have any questions or comments? Chair will entertain a motion to postpone this to our next hearing date in August which is on August 25, 2017 at 1:30. Any other postponements. First case on the docket is pln-boa-17-39. John sampson's request for a variance, continuance from last month. We heard testimony last month. I do not intend to have a lot of testimony given this month since everyone has had an opportunity to speak is there anyone in opposition to this today? Any way you can go to the hallway and work this out. If not we'll hear you first. Next is pln-boa-1748, doing business as the lex. Applicant present? Yes, sir. >> is there anyone here in opposition to this case? The next case is conditional use appeal. Pln-boa-17-42 grace free will baptist church. Is the applicant present? Thank you, sir. Anyone here opposed to this application? Sit down. We'll have your case called. Thank you. The next conditional use appeal is pln-boa-17-43 nick williams. Applicant present? Thank you, sir. Anyone here in opposition? Okay. There is any reason, would you mind stepping out in the hallway to discuss to see... No. Okay. Administrative reviews pln-boa- 17-47 james mitchell has been postponed until next month. The last case on the appeals is pln-boa-17-49 john and sharon fp helan. Is the applicant present. >> I think he is running a minute late but will be here shortly. >> and there is opposition. Any reason for you guys to talk about this any further? I will be recusing myself on this case and Mr. Glover will be taking over the chair for that hearing. That brings us back to the first case, pln-boa-17-39 john sosm son -- sampson, I would like for the staff to give us their comments on what has changed on the plan. My understanding is the only thing that has changed is the size. First case of no opposition is pln-boa-17-48 real estate services llc the lex. Requests a variance to decrease the required number of parking spaces by 51 spaces at a property in the defined infill. >> we have reviewed the staff report and the conditions that they have suggested. We are in agreement with those conditions. I'm happy to answer any questions if the board has any. But certainly would appreciate approval. >> I have a question May be more directed to the staff or the staff report. The applicant believes the property is overparked. I'm not sure what that term means. >> the required parking for this complex is, I would say, much shire than necessary based on the reality of the student housing and the actual people with cars. >> how did this get filled with so many unnecessary parking spaces? Was it revised? >> it is that basically the zon ing ordinance when it comes to parking just has a standard definition on parking for apartments. There is not a separate designation for student housing apartments f. You remember the lex was kind of the first of a mixed use vertical development and a first of a kind of solely large student housing complex that lexington saw and quite frankly I think it's one of the loopholes in the zoning ordinance that probably could be revised with the upcoming conference planned on policies looking to reduce the required parking for these types of developments. >> could you explain to me more about the reduction relative to bicycle parking and transit. >> so, to give a bit of a pre face of this situation, nothing is actually going to change out here. What this request is about is a condition of a financing company a purchase is about to go through. One of the conditions is that the parking is on the primary parcel. What we are doing is we are going to be applying for bike credits as well. When this development plan came in for whatever reason, they did not take advantage of bike racks and bike credits even though there are existing bike racks out there so we are going to be adding that to basically kind of bring this into reality. There is also an existing transit stop that is within the required distance and so that, for whatever reason again on the development plan was never noted and the credits never taken advantage of. Another one of the reasons why this is a severely overparked site. >> that's already committed as far as the bike spaces and it's a matter of paperwork. >> we will be filing an amended development plan to bring it back into reat. >> thank you. >> the only thing that read strange to me was you get a bigger credit if your transit stop has a shelter? >> it does. You get twice as many credits if you put a roof over a transit stop. i don't understand why but that's what the zoning ordinance shahs. Right now the existing stop is unsheltered. We will talk with lextran to see if, you know, they would like something covered. But I thought that that was interesting myself. >> thank you. Any additional questions from the board? In that case the chair will entertain a motion. >> I move that we approve pln-boa-17-48 cf real estate services llc, dba the lex request for variance to decrease the required number of parking spaces by 51 spaces at a property in the defined infill and redevelopment area in the mixed use zone at 501 s. Broadway based on staff's season reason and subject to their two conditions. >> second. >> I have a motion and seconded. All those in favor say aye. >> thank you all. >> thank you. The next case with no opposition is pln-boa-17-42 grace freewill baptist church request for conditional use permit to construct additional church building in the ar zone at 241 haley road. Please come to the podium. Gmp. If you could introduce yourself for the record. State your name. >> I'm a trustee for the church. >> Mr. Collins, the staff has recommended approval based on four conditions. Have you seen those conditions? >> I have not. >> okay, the conditions are the structure shall be constructed in accordance with the submitted application and site plan. All necessary permits shall be obtained from the division of building inspection prior to beginning construction. The applicant shall consult with the urban county engineer to determine what if any additional storm water provisions will be required and any changes to the 1e7 tick system shall be review ed and approved by the fayette county board of health prior to the issuance of a building permit. >> I agree to all those. >> does anyone have any questions for the board or staff >> I have a question for the staff report. Probably better directed to the staff. Is the accept septic system going, the size of the septic system going to need to be changed or not? >> not that I know of. The only reason why we are increasing the size of the building is just to give us more room for our fellowship hall. We are not going to do anything with the septic system unless it's required by the city. >> have you talked with the health department about the septic system? >> we have not. >> okay. I guess that was my principal question. I was a little confused by the language. It sounded like from the staff report, Mr. Marks or that changes to the septic system might be needed. am I misreading that? >> the application was not super clear as to whether or not any additions would be made to the system. And that was a condition left over from the previous conditional use basically so we just... Kind of continued that over in case there was going to be additions that would affect the accept sick advertise sem. I didn't have an tee interior floor plan so I didn't know what would be added. >> I think I got a sense from the staff report that that the applicant should consult with the division of engineering... I'm sorry, the board of health. And also with the division of engineering about storm sewers so is that an affirmative or just in case they want to they should. >> they should consult with the engineer to determine anything regarding storm water regarding the septic system if there are no changes made to the system, then they wouldn't have to. It was just an uncertainty as to whether or not they would be any load to the septic system. >> if the church decides it doesn't want to change the septic system but the board of health or the health department says there should be changes, how is that provided for in these recommended conditions? >> I guess the question is is anything going to be going in that space that would require an additional load on the septic system? Are there going to be restrooms or is it just classrooms? >> it is just going to be a meeting room. not going to have any restrooms or anything in it. >> and since that wouldn't be adding any additional occupants based on the sanctuary, I think that would be fine to not have to have any... >> okay. I understand. Thank you. That satisfies my question. >> my impression is that it's not going to be serving anymore people and subsequently the condition if there is any change in the septic system the board of health should be consulted but I see no reason to change it and since there is no further use additional use of the septic system plus the fact it has a huge septic field, that should not present a problem. >> any additional comments or questions from the board in hearing none, I will entertain a motion. >> Mr. Chair I move we approve pln-boa-17-42 grace free will baptist church request for conditional use permit to construct an addition to an existing church building in the agricultural rural zone at 4281 haley road for the reasons recommended by staff and subject to the four conditions. >> thank you Mr. Glover. Do I have a second? >> second. >> I have a second from Miss Whitman, all those in favor say aye. Thank you, sir. Good luck with your project. >> thank you council members. >> okay. So this brings us back to the case I erroneously called earlier which would be pln-boa -- 1739, john sampson request for variance to increase the allowable area of an accessory building at 280, like I mentioned before, we had a long hearing last month and Mr . Sampson, if you could take a seat. What I would like to do is have the staff let us know how the plan has changed. From my reading the only difference looks like the size is now smaller than it was last month. >> the major difference than the previously submitted plan and newly submitted plan are the drop in square footage to 2,000 square feet additionally the set back from the side lot line has been increased from 12 feet to 16 feet. And the applicant has provided some additional information about how he plans to mitigate storm water runoff including gut ters and rain barrels. That's essentially the main difference. >> thank you. If the applicant would come to the podium. Once again please introduce yourself for the record. >> john sampson. >> jilly sampson. >> and I guess, we have a number of documents that have been submitted to us. So I guess we need to look at these first and then we'll have you go. >> did you say the set back is wider than the previous plan? >> correct. >> the site plan I'm looking at. >> that's not newest one. >> on the system. Looks like it still says 12. >> the one on the screen does say 16. I want to limit this month's testimony on new evidence not to evidence that we have already heard. I'm going to give the applicant up to five minutes to explain the changes that they've made and then I'll give the opposition, anybody who wants to speak, give them three minutes each, and we'll just line up and then so with that being said, m r. Sampson, please come forward, just real quickly. The staff has recommended approval. They've recommended five conditions. Have you seen those conditions? >> yes, sir. >> and are you in agreement with those conditions? >> yes, sir. >> now the staff has also told us that... >> please proceed. >> so here is what wag shared last time with a lot of other... This is the top line there where we were asking for the 3420 and there is the percentage over the residential square footage. The blue is what has changed. We are asking for 2,000 square foot accessory building which is at 86% of our residential square footage so we have dropped it down 1420 square feet or 42%. We are asking for the vair dwrans, an additional 833 square feet to be allowed to have that. Any questions, or I'll keep going. >> the new building will be a total of 2,000 square feet? >> 1800 square feet and 200 square feet so here is the broke down of the changes. we are asking for the 2,000, 1800 square foot barn with the 200 square foot lean to on the back of that. We've moved it back a little further on the property line and it really lines up with one of our neighbor's building where they have an accessory building back there. We are right in the same plain with them. Same thing on the side. It was asked about a better set back so we moved it over to 16 feet, which is also kind of similar to where my neighbor's building is. We were going to turn the building so as far as the over head doors would face the back of our property instead of swieg iter which was also, another neighbor was pleased to hear that there was concern of the raining rain-off. We'll add rain barrels and one of the conditions is, you know, we mete with the city to make sure if there is anything else we need to do which we've agreed to do so we did, and we went through the cooling off period that was recommended. We didn't meet as recommended with the neighbors and we walked the property and we staked it out, had it marked out and visuals and had a nice discussion and that went fine. Questions around the style of the building, what it is going to look like. I took this picture, I hope they don't mind. It's actually a visible building in our neighborhood, kind of a carriage house style and it has a nice character, nice character fits in with what we are going to do with our house. So that's kind of what we are proposing. Here is one I grabbed off the internet, the carriage house style. Not near as well as my sketch, but I've got a few dimensions on mine so you can see the footprint there. There is the 1800, 40 x 45 with a 10 x 20 lean to out the back. Three doors on there. It's hard to read the heights. Again ivies mated them until we really draw it up, I'm not sure what the header height has to be over the garage door. So I'm not trying to make the building taller than it needs to be but I need a 12-foot door in the center. I'm estimating the mid gable height at 19 feet and the top there would be at 24 feet. I do want to put a 6-12 pitch to add to the character and style. I don't like the real flat roof. We have a steep pitched roof on the house as well. We want it to fit in and give it the character. >> as far as the style and what we want to do, we want to have a nice looking building, not just plain industrial. We want this to add property value to our home. We are planning on living there for a long time. We are not here to flip or nothing, so we are planning on putting a building attractive to the property and where it's located, maybe my immediate neighbors well on one side, only one will get to see it from the road where it sits back 300 feet there is lots of trees and bushes and landscaping all through that area and that's one of the things that attracted us to the property. Visibilty of it, you won't be able to see it from the road and you would have to get around to get back in there to see it which we also like which we were attracted to the property for that reason as well. This is the last. I just want to show you the blue box on there, it's not to scale because it's just in powerpoint I just drew a box and estimated another building about where it will sit on the property and it lines up, to the right there is another accessory building that's on my neighbor's property , and so it's about where it would sit. Again it's a little different. I have paper copies if you want to see it clearer. I can give everybody a copy of the presentation. Just gives you the idea of the location and you can see how many trees and things are in the neighborhood and in relation to that. >> thank you, sir. Anybody have any questions for the applicant? Okay I do have some. Sit down please and have I some for the staff. On the conditions we have before us, one is that the construction , the structure be in accordance with the application and site plan where the overhead door positioning, the style, the rain barrels were any of that part of the application or site plan? >> those were submitted to us as part of the record in the application and the revised application, yes. >> so those, the items we just saw would be included he needs to build it in compliance with those? >> yeah. >> doo do you have a copy of the reviced... There are six. >> not in front of me, no. >> could you put those on the overhead once he is finished. Mr. Sampson you are fine with the sixth condition? >> I was sent those a week or so ago and I don't know if agenda, this must be more like what was from last time. This is updated and I received a copy of that and that's what I said I was agreeing to, yes, sir >> okay. Thank you. Okay number one I see number one as changed and that's the one that has revised site plan with the additional materials. >> correct. >> and what is the new condition ? >> I believe number four regarding the health department. That was new. Other than that they're the same >> looks like number three has a reference to the rain barrels, too. >> that's correct. >> I just wanted to make the record clear what we would be approving would be the building zone today with the carriage stale and other -- carriage style and other items. >> in the third condition, what is the difference between an urban county engineer and storm water management plan? >> the urban county engineer is who would determine the necessity for a storm water management plan. We have our representative from engineering here we are recommending that Mr. Sampson consult with them and see if there is anything they would recommend. I'm not sure there would be considering the size of the project but the conversation is important. >> he has to meet with that engineer and if the engineer deems that a storm water manage ment plan is necessary, then he will move forward with that? >> correct. >> thank you. >> if the Jr. Says he needs do these thoings, he needs do those things? >> correct. >> anymore questions for the board for Mr. Sampson or the staff before... Okay. I know we have a number of people here in opposition and like I said earlier, we heard testimony regarding the runoff, storm water issues, potential animal waste issues and other issues of that nature last month so to the extent that you have anything new you want to bring to our attention, could we have a raise of hands on anyone who wants to speak on anything new? Stand on the other side and get in line so we can call you up one at a time. Like I mentioned before, I would like to put, I'm going to put a three-minute limit since everyone had opportunity last month to speak and we had quite a long hearing last month. So if we could have someone keep track of that for us. And I will keep that three minutes so you'll hear my gavel once you cross the line of the three minutes. So with all that being said, please please ma'am, approach the podium and introduce yourself for the record. You have exhibits for us? Gl although he does not consider me a neighbor and did not include me in anything, I want to you know that I do have a border with him and it's my fence that makes the border. So I don't understand why I was not included and I was not privilegey to anything privy to anything. I don't know if other people will be doing. This I don't want to repeat on stuff I've said. You all know my issue is the water run off. I want to remind the board that when heritage baptist church wanted to build a similar building, the board of adjustors turned them down because of the water runoff that would go on to my property and on and flood elmwood so there has been a direct denial by the board of adjustments for a similar building on the same property line, just... Okay. And there was a suit just settled about water runoff and erosion to property and property and it was settled in -- out of court in favor of the plaintiff who had the water from the run off. Water runoff is nothing new on swigert. There is talk of another civil suit that might be happening with water runoff going into the subdivision because a man chang ed his direction of his water flow. Okay. So I think I have good reason to be concerned. I'm very concerned about the Mc carthys because they're in their mid 80s, both very sick and they only have this little house and up until now there has been flooding but it has not gone into the interior of their house. It has stopped right on the top step before it goes into the interior. And any excess water would put the flooding into their house. And we are city people. When you live on the top of the hill, it's hard to think about what is going on at the bottom of the hill and I think that's the situation here. Other than me, maybe one other person, there are no real farm ers here so they're not looking at it through the eyes of land and water. I'm not going to go into that any farther. I want to talk about water barrels. They're pretty, they're nice, they're 55-gallons. When you have a downpour of an inch in an hour or half hour of waterfall on a roof like that, you can intensify the amount of water, the barrels will be fill ed to over filling within a short period of time and then flooding. It's nice. It's very yuppie issue and very nice but for water runoff in this situation it doesn't work. I told some farmers about it this morning when I was at the green place and they laughed themselves silly. they just did. They thought it was the funniest thing in the world and they all know the street. I'm going leave that one now. My last thing basically is the water drainage proposal that I made and gave and you have a copy of it there, and I just don't understand why nobody is considering this because it's cheaper and more effective and that is, instead of having the down spouts go into water barrel s, you have them go into those big conduits that go to the underground corrigated line that would take it to the front of his property, his front lawn which needs the water. So it would be serving a wonderful purpose watering his front lawn and would keep that excess water off my land and then on down to 'emwood elmwood and it would be cheaper and it's easier to put in and if every one of you are a homeowner, have it on your house. That's where your down spouts are going. In fayette county it's not allowed to go into the sewer lines so they are using it to go out to lawns and stuff like that >> I'm liz elizabeth wood ward here with my husband bill who is in the audience to remind the board we own our home right next do the sampsons on the right. We own the next lot as an investment property where we have a tenant and then we also own a house down on elmwood which is an investment property. I don't think I'm an objector or supporter at this point. We did meet with the sampsons last week. They had marked off the structure and with our other next door neighbors, jeff and jan and I think jeff is going to speak in a minute, the three couples on the property looked at the project, discussed it and there were someone conditions with respect to property value and our ability to enjoy our home that were very important to my husband and I and included them in the letter to you, only one of them was included in the staff recommendations so I'm going to read them to have them as part of the record. But it is our impression that the sampsons have considered what we were concerned about and included them in the revised plan so they are the size reduced to 2,000 square feet, the structure is set back 630 feet from swigert, the structure is 16 feet from jeff and jan's property from 276 swigert, it has been turned so the overhead doors face the swigert avenue instead of the back, and then the building is one story and all of those things were important to us. So I think it was a good meeting they were very compromising and that was good. Now to the extent my husband and I owned a house on elmwood we are concerned about water damage but we are not experts in water and so we put that in your lap to just protect that street. Do you have any questions for me since I spoke a lot last time, twice? Okay. Thank you. >> I'm jeff. Jan and I live at 276 swigert directly adjacent to Mr. Sampson and own the property at 272 swigert. Mr. Sampson was kind enough to share the revised plans with us as elizabeth just said we have one request. We would like to hold Mr. Sampson as close as possible to the description he gave in his letter to the neighborhood for the dimensions of his building. They May vary slightly from the description that was shown today but I think that's the market of neighbors were informed of. >> I'll take your two items separate. The first one I will say what we had before us today is the approval of the plan. >> it gives a mid gable height of 19 feet. That doesn't sound like much but it is if you are standing looking up at a building. >> that letter is part of the record. We do have that and was submit ted as part of the revised application. >> the letter is part of the site plan so he is responsible for constructing in compliance with the site plan which would include that letter. >> okay. >> if you want to take a seat I'll let staff tell you about the enforcement. >> we'll have staff explain the process. >> we will do an inspection and investigate and kind of take from it there. >> okay, ma'am, please. >> catherine perkins, secretary of jayland neighborhood association. I'm here to speak in two capacities, one as an individual and one as representative for jayland. As an individual and homeowner on swigert, I welcome the sampsons to the neighborhood officially even though it's not the warmest of welcomes initial ly. And I want to thank them for their well written letter and it was much appreciated for those of us who have voiced concerns previously to this variance. Speaking as secretary of joyland for the officers and board of directors. I would like to say that until all concerned neighbors including those who live on elmwood are satisfied with the plans, the sampsons have proposed we the board of do not approve the variance at this time. This is not in our opinion a complete plan. There is no driveway plan included with this plan and we do know of the ordinances that are on record with the lfucg for parking in your front yard, side yard, backyard, not on paved surface that it is not allowed to park vehicles just willy nilly anywhere. We see many unfinished elements to this plan and feel those need to be addressed to the satisfaction of all who May be impacted before any waivers are granted and elmwood residents cannot handle anymore flooding from anywhere or anything and their concerns must be taken into consideration. This is nothing to do with the sampsons. It is only about the laws and ordinances that exist today and the guidelines put forth to all of you and we hope that you keep to them. Thank you. >> thank you Miss Perkins. >> amy clark of 628 castle road and I'll try not to say anything that has already been said last time. That's not number two as I know it. Could you give me the one that's swigert and elmwood context. What I did realize last time is you don't know where these places are that are of concern. The one, sorry, the one that's orange red 280, that's the subject property and the lady who spoke, that's 238 that's downslope, that farm and the long row 'em elmwood drive are the properties that stand to be impacted and have already storm water issues, flooding issues. And as you know, the 280 and so forth is septic. So storm water flooding issues and also contamination. Just so you have a sense "of who is where there. I want to thank you for reading with some care the letters that put you way ahead of us in our estimation of the planning commission. Several conditions I think need to be just tightened up. There is such a thing as a storm water management plan. It can be simple if it is a small and simple site. It has teeth in it. If you say in the condition for the grant of a variance that the storm water management plan has to be prepared, has to be approved by the engineer, we know just what that is. And we know later that if there is a zoning compliance issue what was promised and whether it's working or not. Same goes for the health department any addition of paved surface should have the approval of the board. There was a question about later on something else might happen and it would not come back before the board unless you make that a condition of granting the variance. Finally these conditions be not merely button going. That's very important. Is it a garage or isn't it. If it is not a garage, please put a condition that it shall not be used as a garage for licensed and registered vehicles in regular use on the public right of way. If it is a garage, it needs a driveway, the driveway needs to be paved. You run into issues that the house is already quite wide. It's near the edge. Could I have slide number. >> your time is up. >> 4. It's in the record. >> thank you. Appreciate it. Does the applicant wish to re butt. They don't have to but they can at this time. >> I don't go point for point through this. I think we've covered the ground through here mostly. We are asking for the variance for the size of the building increase to 2,000 and the variance. I'm beginning to get an education on zoning regular nations. I know I'm not asking for driveway but we all need to meet the regular nations -- regulation s not just me so I'm asking for the square footage variance. Everything else worry going to go by what the zoning laws are. So I'm asking for... And just to clear up, if there was any confusion, we did reference it was a mid gable height. That's the way it was written the height of a building in the zoning regulations. That's what we, when we wrote the letter, so we clarify that today. Thank you. >> thank you, sir. Ma'am. Anyone on the board have any questions, discussion points, comments? >> I have a question Mr. Sampson, sorry to make you get back up. I wasn't here last month and so I didn't hear all of the discussions that took place then but and maybe some of this was gone over. What is this building going to be used as? >> I have several antique cars that have been in my family a long time. I'm going to keep those in there I have some trailers, you know, small flad bed trailer and a larger one, agricultural equipment and then I May put a motorcycle in there or just my belongings. I work on cars, just my own, take care of my equipment and things like that. So I have tools and things like that. >> does your plan propose to have gutters downspouts? >> yes, sir. >> thank you. I have a question. I'm sorry, go ahead. >> part of that building is going to be used to house the ponies. There are two ponies on the property so there will be storage for hay and for them. >> I think I understood that. >> thank you. >> I have a question for engineering. If this is appropriate for you. It seems like most of the concern has been with water run off issues and things like that. And I understand how a building can concentrate water runoff but can't increase the water that's running off of the property, am I correct in that? >> yes, the impervious area created by the building would create point discharge and sheet flow instead of it infiltrating into the soil in icial. >> I that's initially. >> that's fair enough. Would engineering be concerned about a water runoff mitigation plan? I mean what is the usual process >> typically for redevelopment site, we would permit a disturbance area of 5,000 feet or greater which this is under. So if we were to be required to review a storm water management plan, it would seem to be a special condition as a stipulation required by the board but I May be off on that. That's typically the way we do it. >> any increase of impervious area of the minimum threshold is required to be detained for the storm water manual not allowed to increase runoff. >> but under that square footage you are not that concerned about it because the effect is... >> we are not required to issue permits for anything under 5,000 square feet. >> is that the reason why? Is that because the water is not that significant? Or is there another reason. >> I'm not sure why the threshold is there but that's the threshold that exists. >> all right. Thank you. >> first I would like to say that this is a good example of some compromises that have been made between neighbors and I certainly appreciate that. That says a lot about the neighborhood and the people who live there. I am, I am really concerned about the storm water runoff. I'm concerned not because of this particular property or the construction of a structure because I don't think that's going to make that much difference in the runoff. But I am concerned about the complaints about water in the abeing streets and I would like to, I would like to ask that engineering or whomever would be appropriate, to take a really good solid look at what is going on and on elmwood drive and see what is happening there because obvious their there is a problem and we heard that last month as well. I don't think that the reason is this particular property or what construction May happen there. But I think there is a problem and I don't think it's this board's privilege to do that but water quality certainly should be involved as they are in any condition like this I would like to make a plea to those who look at the street and see what in the world is going on. But I will say that I think this plan is adequate and I think will fit very well into the neighborhood. >> thank you Mr. Clarke. >> I feel the same. I feel the revisions are adequate to addressing the neighbors concerns and mine. >> okay. The chair will entertain a motion. And I'd like to, would you mind putting up the revised report. So this would be the one with the six conditions we'vey been discussing today. So that will be what would be approved with a motion. >> Mr. Chair I move that we approve pln-boa-17-39 john sampson's request for a variance to increase allowable area of an accessory building from 1186 square feet to 2000 square feet in order to construct an 1800 square foot accessory building with a 200 square foot open air lean to structure at one end in a single family residential r-1- b zone at 280 swigert avenue based on the three reasons out lined by staff and subject to the six conditions that have been approved by staff or recommended astaff. >> thank you Mr. Needham. Do I have a second. Mr. Clarke seconds. All those in favor say aye. Thank you. And good luck with your project. Irhope -- I hope everything works out well. >> okay. So our next case is for conditional use appeal it's pln-boa-17-43 nick williams. Is the applicant present. Please come to the podium and introduce yourself. Does the staff feel like it needs to give a report before? >> I do have a couple of letters to hand out. >> okay. So if you give us a second to read the letters, I'll have you back up sir. Thank you. >> thank you for your patience as we read the letters. Sir, come on back up to the podium. I don't believe you introduced yourself yet. >> nick williams. >> Mr. Williams, the staff has recommended approval and based upon the two conditions. Has your client seen those? >> yes. >> I'm sorry. >> I am the client. >> you agree. I'm not used to applicant is com ing up with a suit and tie. I was thrown off. And so you are willing to abide by those conditions? >> absolutely. >> in that case go ahead and give us, tell bus the project and so the board will ask questions. >> I'm seeking to get approval to use a conditional use of an I 1 facility as an indoor athletic , not in the sense of personal training or anything of that nature as a lot of that kind of alludes to but more in youth sports, recreational sports but not in the assembly variety. There is not going to be tournaments and games played. It's for use of area coaches, soccer, lacrosse, baseball, basketball, volleyball, to rent the facility to get their, the kids an opportunity to play these sports when it's raining outside, when it's to too hot outside and things of that nature. >> one of the issues raised in the letter was off street park ing. Will all the parking be contain ed on the site? Sch absolutely. There is 47 current spaces drawn as the previous tenant actually I worked for them so I helped to draw the spaces. But they had far too many employees in the building and did park on the street. In fact I think there are remaining signs that say don't park from here to the corner or something that they had put up. My intention is to never have more than what the current number of spaces plus turning the back lot which was a truck turn around for the docks, put ting additional parking spaces back there to make sure that we never have that on street problem. And then along those lines, again it's not... You are not going to come in and watch games be played there. It's going to be the parents that bring their kids I can't imagine that there would be more than 80 cars ever on the lot. It's not a highly employee driven business. I only imagine upwards of 10 employees just by the nature of the business so it's not like employees will be taking a lot of spaces. >> can you fit 80 spaces on that lot. That's part of the issue is that ... >> and that will be my next phase, if approved to go to building permit and get, turn the back lot which is a truck turn around area for the docks, I won't need trucks coming on and off the lot so I won't have to have docks back there, won't have to have trucks back there so I can fit 47 additional park ing spaces back there. My numbers are off somewhere. Ultimately I'll have about 120 sparking paces on the lot. >> how many participants do you expect at one time Mr. Williams in. >> in a perfect world, if a soccer field was rented by a soccer team and baseball teams renting the cages and basketball team renting the basketball court, I could see upwards of 60 to 70 total users at a time. Go how many batting cages. >> eight. >> you have full infield for baseball? >> unfortunately the beams within the building don't allow for, it was a very pricey tag to remove the beams and open up for a full field. There is a field that is 60 feet by 100 which obviously doesn't allow for a full infield so I think I'll see baseball use on that for throwing and maybe hitting some groundballs but not enough space for a full infield. >> what kind of coverage on the floor? >> it's a concrete floor and a padded turf on both the 60 x 110-foot field and under the bat ting cages as well. >> that's what I needed. Thank you. >> any additional questions from the board for the applicant? >> sir, take a seat and we'll have anyone here in opposition, raise your hands. Are you guys all want to speak? I'll, if you guys, I'll give you each five minutes to come up and tell us your problems and then we May have more questions for you Mr. Williams. You'll have the opportunity to rebutt. Rebut >> james smith. >> I got the invitation. >> please tell your name on the ... >> jim smith or it might be james on the record. >> thank you Mr. Smith. >> thank you. I own the property directly across the street at 112 west hampton, and what this picture does not show is the level two acre grass field immediately across the street from this facility. We have spontaneous games from the neighborhood in that field as it is. So where it says that adverse impacts to surrounding properties are not anticipated, I don't know how that could be seen absent the context of this two acre field. So that is one point I would like to make. The other is that while the tenant was there, the parking on the street was a problem not because of an absence of spaces, the problem with the parking on the street was because it was closer to the entrance. Where they're talking about adding these parking places would make people walk a half block further. They won't do that. My tenants light industrial tenants have complained. We have filed police reports, for people parking on that street. We cannot get semi-trucks in and out of that, my building when there are people parked on the street. The street itself was designed for light industrial traffic. It was not designed for retail or consumer and just listing the teams that he described, if you had two teams finishing and two teams playing and two teams arriving, that's 200 cars right there softball, baseball, soccer , all those sports. So the traffic flow was designed for light industrial not retail. The light at lees town road changes very quickly. If you alter the timing on the light at lees town road, traffic at west hampton will block five businesses including... Because the light only turns green long enough to let three or four cars go through there. So if you change the timing on the light, now you have traffic backing up both ways to leestown road. So I'm here to oppose this change in an industrial neighborhood and so that's all I really have to say. Thank you. >> thank you Mr. Smith. >> the reason they park on the street is convenience to the door. >> thank you. >> Mr. Smith, before you leave , are you just opposed in general to the whole concept of having this facility here? >> well, I think there are real safety concerns on my property because of the attractiveness of a flat two acre grass field, a grassy waterway because we have some flooding in the spring time it's very attractive and we do mow it and maintain it and there are frequently spontaneous games from the neighborhoods that spring up there as it is so I'm against it for safety reasons. I'm against it for zoning reasons and number one and in the defense of my tenants who need to get and make deliveries and receive product and ship product, we strenuously oppose this. >> good afternoon. Please state your name for the record. >> diana civic. We own the corporation at 2840 mercer road and our five acre piece of property would ajoin this on the backside where he is talking about where the truck turn around is. And as the prior speaker noted we do have people that come on to the property without permission and that is creating issues. And also the on street parking is also an issue. We have successfully opposed two other conditional use of buildings in the area. One was for a church, another was for a soccer facility. We would like to keep this as an industrial park because we have heavy freight truck traffic. I did a study of recreational use in lexington and there are seven that I can identify where do I start? The kentucky indoor sports at 404 sporting court. That is not in a heavily truck traffic area. The yard at 117 west hampton, again, that is a light industrial area but there are neighborhoods all around it and most of the tenants in that location don't have heavy truck traffic. Lexington... Whoops. The kentucky basketball academy at 273 rusio, that is behind mire and lexington athletic facility on mall road. The other thing I might note is that we have a ups at 1702 mercer, amazon full fulfillment on 1850 mercer, fedex a freight at 2481 leestown road. Old dominion freight and of course multiple shipped people at neatodinko that be adjacent to us and next to the sport facility. At this point we only have one shift but we have been known to have three shifts when we have big jobs that will go through the night so the idea that this is just not going to affect people in the late industrial area, it's a mistaken idea. We have been in this location for 28 years and we like to keep it as an industrial park. >> since you are at the micro phone, what was the property used for before, do you know? >> big ass fan was there temporarily because he built a bigger facility across leestown road. Prior to that, it was another manufacturing facility and this, i'm not sure what they were but they went out of business several years ago. >> is the construction of citation linking it to mercer road helped the traffic congestion in the area? >> yes and no. Because what we are getting now is people that are using mercer road as a bypass of leestown because of the heavy traffic on leestown. But amazon facility, that has really impacted us and, you know , we have people cutting through driving like maniacs. I'd like to have a police traffic set up there to just take a look and see what we are talking about but our concern is of course when he is saying it's children in the area and we have these big trucks and we have people coming and going, even in the evenings on weekends, you know, amazon doesn't shut down. Ups doesn't shut down, fed fedex doesn't shut down. We would like to keep this area I-1 and beat back the conditional use because this has been the third time that we are having to deal with this. Any other questions? >> come up sir and introduce yourself for the record for us. >> good afternoon my name is clifford wesley al en. I'm President Of lex air. We have been a family manufacturer. We have been there since 1988. We are at 2025 mercer road which is perpendicular to this facility. I am also President Of the west hampton neighborhood association I represent 23 businesses. When they started the industrial park in the 80s, late 80s, south creek properties wanted to bring a premier light industrial park to lexington. Before that, there was the drag strip. There was blue sky parkway, and they protected our park with covenants, restrictions. We had to get our buildings design approved. In the covenants there are restrictions for on street park ing. This particular use is not permitted per our covenants. We sent out an online petition to the 23 members. As of last night we had 14 that opposed this request. And they opposed it because we want to maintain the integrity of our industrial park as light industrial. We are proud of it. A lot of the members are family businesses. This is what we have and we are proud of it. The other is public safety and as she was talking about, there is a lot of truck traffic and since the citation intersection with mercer was opened, it's great, it's direct access to the interstate for all the trucks and with amazon, there are four fedex facilities surrounding the proposed site. Right across the street from the proposed site is pro lift. They're a forklift distributor. They have trucks coming and going all the time. They're off loading forklifts out there and in an industrial area, truck drivers come from all over and they're not looking for youth sports facilities and kids running around. so it is a major risk and major public risk. It's a liability to the members of our association. That they shouldn't be exposed to. >> are there any other recreational facilities inside of this industrial park? >> no. You will 23 members are permit ted users. There is no non-compliance. So it's light manufacturing. It's distribution. It's r & d warehousing, that type of thing. >> what are the boundaries again of this? It's from... If could you just describe your association the bound are is. >> the park are from leestown road, up to mercer road, west towards citation boulevard and east towards greendale. >> so not north of mercy. >> -- mercy. >> -- mercer. >> correct. This is a plot I had with all the companies and their lot numbers. North of mercer is the same zon ing? Just north of mercer is part of this industrial park. >> that's another industrial park. East is all heavy instrument. It's big trucks, manufacturing. Actually you notice the fedex facility that is kind of touches corners with proposed property. >> any additional questions? >> thank you, sir. >> thank you very much. >> anymore parties in opposition who want to speak? If not Mr. Williams, I will give you an opportunity to come up and give your rebuttal. >> thank you. Just a couple points to hit on there. In my time with big s and running in and out of the facility and prep it hoping for approval today, I've never once seen anybody using the open lot across the street. That doesn't mean that it doesn't happen obviously. Mr. Smith also brought up the entrance and being a convenience thing. The planned main entrance for the facility is not the first door nor the second door into the facility but the third door into the facility making the back lot the far more convenient space to park than the street. If it would help to apiece, I would put do not enter on the first two doors as they're going to be locked all the time anyway the planned use for this as in the staff recommendation as it's used sports is after school. A lot of that traffic isn't on west hampton anymore after that. The yard current have heavy truck traffic because that is the property we are talking about. Autoelectric sold their business and autoelectric maintained the building and leased the building auto electric and koi had a walk in counter so there was a retail aspect to that where there was comings and goings of standard traffic and more and more often. You are not going have a lot of kids along west hampton drive. I guess that's all I have. Any other questions for me? >> does the board have anymore questions for the applicant? does anyone for the board have questions or comments for any of the parties? If not,. >> I'm sorry. I do have a question. The staff report recommends approval of the application: I think I understand from reading the comments why that is. Did you have any pause before recommending approval? Was this discussed were there negatives and positives about it I'm just curious. >> I think the major deciding factor, previously there had been another case for recreation al facility at this location that had been dis approved but that was focus ing on league play and tournaments with considerably later hours. Since this project is strictly for practices and there is no spectator seating, the parking requirements are considerably less and given the numbers that we were given which I think the applicant has indicated higher today, only 18 parking spaces were required based on those initial numbers. Even with the added participants that the applicant described with the additional area there is to parking that requirement should still be met. >> it seems to me that this particular piece of property is, it only faces west hampton it is not on mercer or leestown or citation. So people getting there would have to come from lees town road or citation through mercer or something like that so did the truck traffic issue come up? Was that discussed by staff? >> we were under the impression that probably most of the traffic would be coming into the sight and dropping kids off that way and not just, probably not be any necessary or going in with them will get off the street. At least that would be seems like the default position. Okay, thanks. >> I'm not sure of a total number. Since I've been here we have had a couple soccer facilities that have been approved,. >> I don't have an exact number. It's relatively common for these to be approved in light industrial zones. This particular industrial zon ing area, the property owners are perhaps more organized and more cohesive than some of the other areas. I mean to their credit they like to keep it functioning the way they like to see it functioning for their businesses. A couple things you might want to look at, if you are inclined to try to work something out on this is hours of operation, to minimize any overlap in use and the other thing is the number of participants. We didn't specifically recommend a limit on that but if you back track from the parking, it would be somewhere around 60 I think as a limit. Parking requirement is generally for these types of facilities is one parking space for every two participants plus one for every employee so I think I hear the number of employees at the maximum time where they're needed would be 10 so if you take after of 60, that's 30 plus 10 is 40. Which is I think on their site plan what they indicated as provided parking. So it's just a couple of ongses for you to consider. A couple options for you to consider. >> jim, in connection with the hours of operation, the people in opposition to this applicant have said that in some cases and on some occasions they're running two and sometimes three shifts because this is an industrial zone and I have some sympathy for that. This proposed application would not be a there-7 operation but -- 24/7 operation but the hours that they've indicated they would be open are pretty generous and I understand it's an after school practice facility and I also recall at least one other maybe two other facilities like this, maybe on the east side of town, and I can't specifically recall, but this kind of thing does sound familiar. I think we've heard at least in my tenure, we've heard at least two like this before and we approved them both but I can't recall what the zoning was on any of them. Is the light industrial zone the only zone for this kind of facility or other zones where this facility would be a conditional use? >> there are other zones. This is not the only one. >> okay, thank you. >> Mr. Chair, I have some concerns about the safety involved in this. That would be my principal concern, not the fact that it would be a different kind of use for this particular area. But I do have some concern about the safety of the participants. On the other hand, I think that if we are talking about parents who would normally be concerned about safety of their kids and basically the interaction of car s and trucks are not uncommon in any part of lexington and I understand that certainly would be much heavier here but at the same time we have to assume that parents are responsible as well, and I also assume that the entrance, exit to this facility is fairly open and the site, the site of traffic is reasonable. And if the staff could help me with that, if you have any idea about the site of that particular entrance, I would be interested to know. >> I'm not exactly sure what your question is. I'm sorry. >> just coming out of that facility, how much site is there up and down the street to allow the cars to exit the facility without having a hard time see ing traffic. Obviously there is going to be traffic there. How well can they see traffic to exit? >> the applicant can maybe speak better to that. >> when I was first cleaning up the property, I cut back some of the growth to the street for that exact reason it sits at the lowest point on west hampton drive so when you are looking left or right, you are looking uphill to what is coming to make it easier to see everything com ing. No trees, you know, anymore than the standard sidewalk distance off the street, no growth to block anything. >> good. Thank you. If I could ask one more question Mr. Williams. I don't understand you talk about the parents and kids com ing into the third entrance. Where is that specifically? Is it in the back parking lot or on the side? >> no, it's probably three quarters of the way down the building. There is an entrance probably 20 feet off the front corner there. If you can look and see there is a third like sidewalk leading into the building there. >> can I see that, about two-thirds of the way down I guess. >> so the cars would park in the back but the participants would have to come up that side street >> there is a sidewalk leading back. >> okay. >> thank you. That's what I needed to know. >> can we mandate no parking on the street? >> I don't think you can. But as I understood it there was already some signs maybe on the street. I don't know. I have no idea. I thought someone mentioned that but no, I don't think you typically no parking on either one side of the street is going to be something that is handled either through traffic engineer ing or through the council but they do have listed on here that all of the activities in the facility are going to be confined to the interior of the building so you know, it's a public street so it would be difficult to do that but I don't know how do that but if one of the conditions is the activities are going to be con fined to the interior of the building. >> can I make a comment? >> when I first read this I felt like, based on the hours, the limited hours between operating hours between 4:00 P.M. And 9:00 P.M. Seem reasonable and saturday, sunday seemed reasonable and then also there is no tournament play or games. Now I'm not sure how that ultimately works in this type of business, but I'm not familiar with that. But if it's just training, I mean I feel like these types of industrial turned rec centers or do have quite a bit of usage in traffic that is of concern and when I read this, these limit ations it seemed reasonable now I'm also on the other side of you guys have worked really hard to protect where your zon ing is and to protect that I- 1 zoning and I respect that but I probably would lean to maybe try this. I mean to try this for a year and then a year we come back and if there are issues then that's something we maybe, you know, we would revoke. I'm not sure if I want to go down that route but that was my thought as I'm thinking out loud here. So maybe a one-year trial and if that works for everyone great, if it doesn't, then we'll evaluate it at the time and make a new decision. >> well, I would say that I think that our charge is to make sure that the conditional use does not have an adverse influence on existing development or the neighborhood and while I understand that these recreational facilities warehouses are prime use for those facilities, I'm not comfortable that this is the location for such a use given the fact that this isn't an industrial park that is on the way down where there are a lot of empty buildings that need to be back filled. This is one that appears to be pretty vibrant with a lot of industrial uses in the area and I would be concerned that our approval would number one adversely affect those business es and number two, increase hazards for the participant in this particular use in the building that is right smack in the middle of the rest of the industrial use. So personally I would not support. The location is seemed to be vibrant and easily leased to another I-1 appropriate business . If there are not a lot of huge traffic issues from an overhead view and then, you know, revisit ing in a year, but that was kind of where I was leaning. >> yeah, for me it's kind of a close question, but and I've vacillated back and forth depend ing on who I'm listening to give testimony. But it seems to me that it's not an unreasonable request to ask to put this training facility here given the fact that there are not going to be games or spectators, not going to be anything other than kids and parents. It seems to be a well protected interior lot that's got plenty of parking and access off of west hampton drive, so I'm kind of inclined to approve it, let it succeed or fail on its own merits. Seems to be the capitalist system and quite frankly this is infill which is what the city seems to be promoting these days I understand the arguments on both sides and I'm sympathetic to the opposition but I'm also sympathetic to the applicant and his entrepreneurial spirit, as it were. So I think I'm tending to lean towards approval. That's my speech. >> I'm going to agree with that and I think my concerns are real and I certainly do understand the inch teg at this of this area. I understand the integrity of this area. I also think it's not a terribly inappropriate use of an I-1 zon ing. And I also think that this kind of facility is needed in lexington. So if we have a motion to approve, I will vote to approve. If we have a motion not to approve, I will vote against it. >> well then, I think everyone has spoken who wants to speak. The chair will entertain a motion. >> Mr. Chair I move that we approve the pln-boa-17-43 nick williams request conditional use permit to establish an indoor recreational facility in a light industrial zone at 117 west hampton drive based on the findings of the staff and based on the two conditions that are stated we have a motion and seconded. Thank you and good luck with your project. Motion passes. The next item on the agenda is pln-boa-17-49 john and sharon ph elan. I will be recusing myself from hearing this matter. I do believe before I step down because I May given the last item on the agenda, I May slip out and Mr. Glover has agreed to finish up the meeting for me, I believe we do have one board item. Are we hearing that today? >> we have a quorum so that can be done without me being present so with that being said I appreciate it and if I do leave for the day, I look forward to seeing everybody next month. >> thank you Mr. Chairman. So as Mr. Gross said, our next item is 17-49, administrative appeal. Who is the appellant and Mr. Simpson, who do you represent? Irkz. >> I represent john and sharon t helin who are over here on the second row. >> okay. We will, I think I'm correct. It has been a while since I've chaired one of these administrative appeals but I think we hear the appellant first, don't we? Is that the approved standard procedure? >> yes, you can do that and then if you want to have any input from the staff you can and obviously you can hear from, this is an appeal of a building permit that was issued so obviously I believe the appellee s... >> Mr. Chairman, it May be, I think it would be helpful just in terms of context if the staff gave a brief synopsis of what they approved and why and then I could set forth the basis of our appeal of their decision. I think you have to understand the context of where we are com ing from. >> I don't disagree with that m r. Simpson. Does the staff want to tell us? I don't want to throw you off your game but is this a non- conforming structure they're seeking to build on top of or not? >> yes, it is. >> okay. The legal description, the legal reasons had to scrit as an appeal of the issuance of the building permit by building inspection but the underlying issue that's really to be discussed here is as part of that decision to issue the building permit, building inspection did consult with the division and planning how to handle the non-conforming structures. It is really our determination that the proposed project in our opinion did not constitute an expansion of the non-conformity with the non-conforming structures. Building inspection relied on that before they proceeded down the path of issuing a building permit. I'll kind of briefly touch on what the evaluation we went through to arrive at our conclusion. The property is located at corner of holiday road and fairway. In an r-1c zone. What you see on this screen and on your blow up there in front of you is both the existing and proposed parts of the project. The existing residence right in here. There is an existing garage back in this corner. This piece here is not existing. This is proposed garage. And just so we don't get side tracked too much, this particular structure, which is two stories, those totally comply with all set backs height limits and size restrictions. The two places of non-conformity on what is in front of you here on the's el, hive ivies on the easel. >> this chart that have you in front of us. It looks to be upside down compared to what is on the screen so maybe to avoid confusion we could just rotate it 108 -- 180 . Make sure we're paying attention >> so this place here, there is an existing one story sun room. There is a 30-foot building line that wraps all the way around the front yard. The house is oriented towards holiday road. So this is considered the front yard. This is the side street side yard. This very narrow sliver along here is the rear yard and all this area over here is the side yard. In the r-1c you have a 30-foot front yard that extends around the corner because it's a side street side yard. This piece of the existing sun room is non-conforming because it extends into the 30-foot front yard requirement. That's the one area of non- conformity. I don't think that's the biggest issue here today but I'll let m r. Simpson elaborate on that. The other place is back as part of this existing garage, back in here. Now because this is considered the side yard, there is a provision in the ordinance that an accessory structure which normally has a setback requirement of just 18 inches, but because this is a side yard, the ordinance requires that if any portion of that accessory structure extends between the main residence and the side yard setback here, then that portion of it has to comply with the ordinary setback for the main residents which is eight feet. The setback provided all the way around this corner, this building footprint right here is about two feet so it's a little greater than the 18 inches but it doesn't meet the eight feet. >> you might have to say that again just so, make sure I understand what you are talking about. I got the dimensions correctly but why, what is permitted within 18 inches of the property line? >> an accessory structure, in this case, that doesn't extend to the front or between the main residence and the side lot line would have 18 inches but any portion of that accessory structure that does project between that area has a setback of eight feet which is the set back of the main residence. So if you calculate that all out based on what is existing, this piece here is a covered connection. It doesn't exist right now. It's proposed. So if you take that out of the equation right now, this is all totally accessory, all of that stuff there. This is the existing. This is what is proposed. If you project this corner of the main building all the way across here, that's the line that makes a difference between where that 18 inches versus eight foot setback requirements starts. Anywhere from here back is 18 inches. Anywhere from here this way is eight feet. The whole thing is not not conforming just that shaded piece. >> already exists. (Inaudible) Is that better? I'm sorry what was the question? >> what is the age of that building? What is the age of the current structure that is non-conforming and conforming. >> I can tell you that auto pva, 1920 something as the original, I can't tell you or verify that particular part of it was that date. >> and what is that? It looks like a closet on that or is that a door to whatever that non-conforming part of that structure is? What is that? >> you are talking about right in here? >> no, where the blue lines are, what actually is that currently or is it? >> I'm assuming that's just part of the garage right now. >> okay. Okay so to summarize, this is the area of non-conforming structure here and right here. >> and jim, while you are here, non-conforming but, but the intention is to build a second story on those non-conforming uses, correct? >> that's correct. Second story here and this is... Now that part right here I don't understand because nothing exist s there. >> correct. And it's really not an issue, this part of it here. >> they're not building anything there. >> this is all proposed but it meets the eight foot side yard, 30-foot side yard. They're good to go on all that. >> I see. Thank you. >> that makes it clear. >> to the nitty gritty of why we determined in the soining compliance office that we didn't consider this an expansion of the non-conforming structures. I. >> I think you said you didn't consider it an expansions of the non-conformity. >> the most important thing to focus on to get the base of this right is to is to what makes it non-conforming. The only thing that makes the areas non-conforming are the set backs. I does not change the footprints at either location so a reasonable and logical conclusion is that the non- conformity of this is not being increased. The set back is maintained and no expansion of the building footprint at least for the areas that we talked about. That's the first point. As part of that, it's important to understand that the zoning ordinance does not require an additional set back based on height. The set back whether you are talking about the accessory structure or the principal residence, the set back requirement is the same whether it's a one story building or a two story building or a three story building. There is absolutely no increasing setback requirement as the height of the structure goes up. The third thing is to just recognize that in the ordinance there is a provision that recognizes that in some circumstances you can enlarge a non-conforming structure but not increase the non-conformity and I'll put that up on the overhead bottom right of that if could you situate that so the blue highlighted area is enlarged a little bit. This is article 4-4a states no non-conforming structure May be enlarged or altered in any way that increases its non-conform ity. That's the criminal language here. If the non-conformity is created by not complying with the set back requirement, then that open s the door for yeah there is a way to enlarge a non-conform ing structure if you are not decreasing the setback aspect of it so there are other provisions where you might make the argument, for example, if you had to replace something that was demolished, you can't add any additional cubic feet and Mr. Simpson will be zero ing in on that but that's a totally different situation. If something has been destroyed or taken down because it was in disrepair or wiped out by a weather disaster, there is no building footprint left. That's an opportunity to, perhaps, depending on all the other circumstances, to get something rebuilt to where it conforms. So comparing that to this situation where there is a perfectly functional building that has an established building footprint as to what can be expanded or not expanded, total ly different situations. So you need to focus on that garage and that corner of the building, the main residence. Perfectly functional structures that are being expanded with the addition of the second stories. So those are the main three points I wanted to briefly get in your minds. There are other things related to that that we can talk about. One that we May have to get into is if you reorient the house and I'm not talking about totally changing it, but if you redefine the front entrance and have it oriented to fairway drive, guess what? That whole area where that accessory building is is no longer in the side yard. It's in the rear yard. >> what is the difference? >> the difference is the stuff about if the accessory structure projects up in front between the between the main residence and side yard is not relevant anymore so that, if the residence had the front entrance off fairway, call the area where the accessory building is in the rear yard, they've got an 18- inch set back all the way around that corner. There is no non-conforming issue there and you might think that's a little ridiculous to vote totally redesign the building. It wouldn't have to be redesign ed. Just say you want your mail box on fairway instead of holiday and have a front door with a sidewalk oriented towards fairway. That could happen very easily. Now you hate to put people in a position where they have to play those games and we try hard not to do that, and you might say well that's just unusual, but it's not unusual. Most corner lots of those dimensions do have the front of the residence oriented a different way than this one and I can give you examples of that later today if it becomes important. But I just wanted to put that seed in your mind that there are those kinds of things going on with this whole situation. I don't want to get into details now but if we need to, there have been two recent cases that the board of adjustment acted on that clearly showed that the addition of square footage to non-conforming use/non-conform ing structure can han in certain circumstances. There is without increasing the non-conformity. Two cases in 2016 and I can give you the details of those later if it's relevant and y'all want to hear about that. That's our position in a nut nutshell. >> thank you Mr. Marks. Mr. Turner, sure, you can ask a question. >> jim, you touched on this in your last comment, but your interpretation. >> before you go farther, identify yourself. >> I'm sorry. >> who you represent so we'll have a record. >> yes, Mr. Chairman, members of the board, I'm darby turner representing billy and gary huff man who are here with us today who are the owners of this property and whose name the building permit was issued in and my question for jim is is the interpretation that was made in issuing this building permit consistent with best practices and interpretations of the staff on this issue? >> yes, it is. I can speak for zoning compliance that yes. >> that's all. >> thank you. How long do you anticipate. 20, 25 minutes. Do y'all need to take a break or anything? >> we're fine. Bruce simpson, I'm here representing john and sharon the lin. They own the property at 1745 richmond road. Faces richmond road. Their backyard backs up in their garage and I'll have some photographs to show you in a minute. Which is the basis of our appeal today. They've lived there for 17 years john is a professor at the university of kentucky. They have participated in a lot of neighborhood association matters, community matters, et cetera. Over the 1 years they have been here and taken care of their house and improved upon it. So you know the context of why we are here, it's always difficult, of course, you've got , you know, new neighbors com ing in, last thing you want to do is create a controversy with the new neighbor. Everybody wants to get along generally. And certainly that was the case with the thelins and with the huffman's, too. But they called me and said, you know, there is a humongous addition going on next door and would you mind taking a look at it, which I did. One thing about this that's also significant that when like jim marks signed off on this, you don't get a notification that a decision has been made that they've approved something. You are obligated if you see something, to then go check it out and if you find nat it was issued in error, to take an appeal which is what we've done. This is not like a variance request or a conditional use request. Where notification has to be mailed out. This is something that citizens have to check in on themselves and then if necessary take exception to the decision, which is what we've done. Now as I said, thelins have lived there for 16 years. The huffman's brought the property in June of last year. They've not moved in. They live in cincinnati. They're going move back but it vacant ant for a little over a year and of course they just started doing this remodeling renovation work in June of this year. And it's my understanding that the reason for the significant expansion is that they have three children that they want to have places for them to stay when they come and visit and so that's the house itself is an existing house not insubstantial house. 3300 square feet. Not including full basement and two car attached garage. And they're going to expand it as will you hear in terms of our presentation, our evidence they're going to add a little over 2,000 feet of extra building space and, you know, if you want 2k0d something, they should have moved the garage back this way eight feet in conformity with this so that at least they would be off within the setback provision. But they didn't so this is the plan and they're over five feet encroach into an area that is supposed to be set aside for the setback for the whole area of the garage and likewise the front part here, these additions that have been added are also an expansion in our opinion of the non-conformity. So just the purpose of this existent is to show how much in the purple is beinged added to this lot. This is an r-1 c lot minimum sides is 8,000 square feet. They've got about 33400 square feet already plus the garage and they're adding a little over 2 ,000 additional square footage in terms of everything else. And it is all added together. Before there was situation now it's all connected together as one structure. They brought it all together. Anyway, this is the issue they're adding a bedroom and bath. When 10 or 11 feet taller than the garage that previously exist ed and it will be looking right on top of the thelin's little backyard and their use of the backyard, et cetera where before the existing house is way back here in terms of anybody living anywhere. I was surprised when I looked at the plans and talked with dave who works with jim marks and talked with them and I said help me understand why you approved this. Because I don't want to take an appeal if there no, sir basis to do so. Jim said we don't believe adding square footage to the non- conformity is an expansion of the non-conformity. That as long as they stay within the footprint, existing footprint which would include the non-conformity areas here and this garage, they could go up and add square footage, which they've done and in our opinion that wouldn't be an expansion of the non-conforming structure. Generally accepted rule in fact it's clearly in our zoning ordinance that you can't expand a non-conforming structure, you can't expand a non-conforming use or a non-conforming lot. And so the question for the board is is the expansion adding the 2,000 square feet of additional structures on to structures that are non-conform ing right now which they don't view, is that the a breach of the zoning ordinance? Now the enthusiasm that is connected will be connected to the non-corming garage so this is all now, you've gone outside of the envelope because they're all connected together. They've gone outside of the footprint. It May be eight feet here but it's connected to this non- conforming structure here. And so they have basically shov ed all this additional living space for their children away from their house, connect ing it by this breeze way and having the residential area now over here separate from the house. You know, we would suggest that they could accomplish this extra square footage if they brought all of this closer to their existing house and so they then, you know, negate the breeze way, you could add on to the house out here and stay within the legally prescribed limits of the eight foot set back. They've chosen not do that and we believe it is a very significant intensification of residential uses and right up against the property line of a neighbor that detracts from the privacy that they ought to be able to have if the ordinance were complied with. And it's not. That's the general overview of our of where we are going with our appeal. I do have some photographs, I'm going to have a handout that will go, that will match up with the photographs. >> first photograph is a photograph of the existing huff man house, the one that is 3300 square feet, two stories, four baths, four bedrooms three full baths and basement. The next slide is the garage that is partially removed right now, jim, if you'll turn the next slide. It's a side entry garage and it is separated from the house. Next photograph is the front side of the thelins property and you will see their garage on the next slide which sits right next to the huffman's garage when it was completely standing, you can see both of them there and because of the lighting, you can actually see it closer in the handout materials that I've provided for you. The next slide is a snapshot of the thailin's backyard. It's not a big backyard that's why the privacy they seek in our judgment believe they have a right to expect needs to be protected. The next slide is a shot looking from their backyard towards the huffman house. You can see the huffman house looming over the top. That's about 119 feet away house to house. But they're going to extend that house by virtue of the breeze way and expanding the existing garage and actually what they're going to do with the existing garage, the garage portion, according to their building plan s is going to be converted into a workshop and then they're going to have a full bedroom and nice bath on top of the garage towards the street. They're going add a new garage and on top of the new garage add another full bedroom and full bath. The existing garage is 391 square feet. So they're going to convert that garage into a workshop and then add a bedroom on top of it another 319 square feet. The addition, the new addition that will be that part will be eight feet away from the side yard but it is still connected to the non-conforming structure that, what I just mentioned, the 391 square feet. The new building will be 545 feet. And the second story will be 545 feet. The breeze way that you see the board here is addition additional space and they're going add 617 square feet to the existing house where you see in purple. So for a little over 2,000 square feet of additional space. Take you can see how close the side yard is that goes between the property, the thelin property and huffman property and the next slide, I want him to come to the podium, I have a few questions to ask him. I have a few questions. First introduce yourself and inform the board if they don't know already your job title and who you work for. >> my name is cash al chevy, the residential section manager for building inspection. We issue the permits for one and two building dwellings. >> tell me your name again. >> alex cash alchevy. >> how long have you been with building inspection? >> 20 plus years. >> up until a few years ago you all had exclusive approval or disapproval of somebody coming in with building plans like this on whether or not they were to be approved or denied or you would send them to the board of adjustment for a determination if there was uncertainty, is that right. >> that's correct.. >> and how long ago did that change? >> I want to say five or six yearsing what they split the zoning compliance office. >> you heard what jim marks had to say about the non-conformity and I think I agree with him on everything except he did acknowledge the bumpout over here was over the front set back line by more than five feet and that made it a non-conforming structure as far as that house, is that correct. >> that's correct. Maximum projek is five feet. >> and then on the existing garage, what is left of it anyway, that, because it's not set 100% behind the house, it becomes a non-conforming structure on its own, sthoort. >> correct. Because it's not behind the rear plane of the building, the structure is supposed to be the side yard so the garage is considered non-conforming as it sits today. >> now jim said and there are two points -- 2.7 feet from the edge of this garage to their, to the thelins huffman property line. Jim indicated a small portion of the garage that would be non- conforming and would have to dom ply with the eight-foot set back if there was going to be any improvements or expansion or anything of that nature. When I talked with you, it was your judgment, correct me if I'm wrong, that because it was all within 2.7 feet the whole thing had to be eight-foot set back, is that correct. >> building inspection doesn't have, well, I won't say building inspection, the ordinance doesn't tell us a portion of the building is allowed to be non- conforming. It says a structure is not conforming if... The intomorrow tation or section of it was not building inspection's policy. We don't do partial. We never have. This whole garage next to the thelins 2.7 feet away from the property line, that entire garage is non-conforming during the entire length along that property line, is that right. >> that's my assessment. >> that's all. Thank you. The next slide and you probably see it better in the handout. And I'll hand out the especially tire package at the end of the presentation. So you are aware of what the thelins will be looking at with this proposed structure, this is the garage view lndz elevation. -- left-hand side elevation. This is what is fating the thelin is as they sit in their backyard. This will be the residential addition above the garage then the connection go l go out to eight feet. The side yard still connected to the non-conforming structure along with an additional residential bedroom here, bedroom here, bedroom, full bath , bedroom full bath here. The next slide I'll have kevin come up. Kevin will you state your name and your job tight gll kevin phillips, President Of engineer surveying. For all types of commercial and residential surveys, in this case we are doing some measurements for the plaintiff. >> and how long have you been doing this? >> been licensed since 1996. Oam employed by them for 29 years. >> we asked to you look at the building plans and the space created, new space that was going to be created on the huff man property and also to look at the building plans and to give us approximate look, if you will of what the structure would look like once it's built based on these plans as situated next to the thelin's property, is that correct. >> correct. >> and the photograph that is much better shown here and actually shown better in the handout material, the yellow con figuration you super imposed in yellow the proposed new addition that's going to be built in connection with the existing garage, the bedroom and bath over it, the new garage, two car garage and the bedroom and bath over that new structure , is that right. >> that's correct. >> what you have outlined in red better seen on the handout material, what you've gotten the red roof line, would that be the existing garage for the huffmans before it was torn down based upon your understanding? >> yes. >> so obviously we are seeing a significant amount of increase in building space and residential space at a location on this lot, all connected to a non-conforming and correct me if I'm wrong, this front part of this new addition that May be eight feet away, it's still connected to the old garage area in terms of its footprint and the way it's going to be expanded in terms of the workshop and the bedroom above it. They're connected, sthoort sthoort. >> the new garage is connected to the footprint. >> I asked you to calculate square footages of what was going to be created and you did that, correct? >> correct. >> and so the next slide, if we could but that up, jim, please. This is also you can better see it on the handout material so if we are looking at the exhibit you prepared this exhibit. >> I did. >> and so you calculated the square footage of existing garage at 319 square feet and -- 319 square feet -- 391 and the proposed expansion would be 319 on top of that. >> correct. >> the garage portion that's there now and had been used is actually going to be converted to some kind of workshop space, correct? >> on the lower level. >> where the cars used to park is going to be a workshop. >> correct. >> and then they've added this or they're proposing to add another addition to the existing footprint of the non-conforming garage and that footprint is 545 square feet. >> is that correct. >> that's correct. >> so that will be a garage, the two-car garage and on top of the two-car garage is another bedroom and bath. >> correct. >> another 545 square feet? >> right. >> and then they have connected the previously currently non- conforming garage to the non-conforming house by adding a breeze way first floor breeze way and so and that is 208 square feet? >> 209 square feet. >> okay. And on the house existing house. As is indicated on the board, have you calculated they're proposing to add 90 square feet to the first floor and add a second floor over the sun room of about 318 square feet is that right. >> so the total amount of new square footage being added would be 2098 square feet. >> correct. >> you also undertook an examination at our request to examine, if there were any exist ing utility problems, for instance, the location of the existing storm water drain and did you undertake to find that location? >> we did. And could you turn to the next slide please jim. >> this is the last page of my handout. As we are looking at this exhibit, kevin, and I'll point to it right here, on the exhibit handout, it's marked in red, but it clearly says a 24-inch, I think it's 24-inch round circumference... >> eye -- diameter. >> clay storm sewer pipe and that pipe is a foot and a half under ground approximately. >> the top of the pipe would be a foot and a half under the ground. >> and that pipe right now is under the existing garage, is that right. >> yes. >> so you've got a 24-inch storm water pipe under the existing garage that is now going to be converted to a workshop of some sort and then on top of that, you are going to add 319 square feet of bedroom and bath and connect it to the new structure that goes out in front of that. If this garage was not here, if there was no structure there and somebody wanted to come in and build a garage or any kind of structure, the city would require them to or in fact would preclude them from building over the storm water pipe, would they not? >> I believe they would. >> I mean generally they would require you to be at least six feet away from the middle of that pipe in terms of an easement, right? >> nominal would be 12 feet wide total six feet from the center line. A lot of time they require 15 feet easement which would be 7 and a half feet from the center line. >> and the reason for that is so they can get access to it in the event there is some kind of break down or blockage or something, correct? >> maintain and replace it. >> health safety and welfare. >> this is a clay pipe. >> yes. >> do you know how old it is? >> I do not. >> do they install clay pipes now in terms of new storm sewer lines. >> probably not in the last for storm sewers 75 years probably. >> 75 years. Was the last one they installed with clay roughly? Something like that. >> all right. Mid 60s. >> that's all. Thank you. I pass out the non-conforming zoning ordinance. >> Mr. Simpson, how much more do you suppose you've got? >> jim marks read to you a selected portion of the non- conforming zoning ordinance and he gave you the basis of his interpretation that you could add square footage so long, to a non-conforming structure as long as it wasn't expanded them he gave a hype 24e9 cal if they re oriented 9 front door toward a different street then maybe that would cure it and maybe there is another idea that he has that can uphold a, what was a violation. That preclude expansion but if you look at the non-conforming zoning ordinance in total, it expresses a policy of this government well over 30 years of why non-conforming structures, non-conforming uses, non-conform ing lots should not be expanded and moreover, should not be encouraged to exist in the future. And I call your attention specifically to the intent provision of 4.2. And I've highlighted and briefly it says, which is critical in my opinion, as you all understand how this ordinance ought to be applied. It is the intent of the zoning ordinance to permit the non- conformity established in article 4.1 which is this article. And let me stop right there. What happened was that niece houses, the huffman house was built in 1928. The thelin house was built in 1933. The property was rezoned in 1969 to what is called r-1c which is jim pointed out to you. An r-1c has certain set back requirements. Eight foot side yards, 30-foot front building lines. Er with we are most concerned about those, too, which means that these houses were non- conforming because they didn't have eight foot side yards back then. But they got zoned for it and this is where the ordinance kick s in and why it discourages any expansion of these non- conformities because this entire neighborhood out in fairway and holiday, old richmond road, richmond road and the streets connected to it, they're all non-conforming and the character of the neighborhood is not conforming to r-1 c. R-1 c is more of a suburban subdivision like out close to harrod hills and some of the suburbs that started in the 70s . So it's non-conforming, the entire neighborhood is non- conforming which is why this ordinance of non-conformity is important because you don't want to see a proliferation of these expansions of these houses right up next to property lines because that's exactly what is taking place. They're moving 1400 square feet away from the home place by connecting this breeze way and putting the residence two and a half feet away from the property line with the thelins. So the intent, in my judgment, clearly gives guidance and background and underscores the policy of why this ordinance was adopted. Why non-conforming structures were adopted and it's not just in lexington. These exist in every jurisdiction has planning and zoning but it says it is the intent of the zoning ordinance to permit the non-conformities established to continue until they are removed but not to encourage their survival. But not to encourage their survival. It is also intended that non- conformities shall not be enlarged or expanded beyond the scope, not expanded beyond the scope and area of their operation at the time of the adoption or amendment of this ordinance nor to be used as grounds for adding additional structures or uses not permitted in the same zone, non-conforming uses which doesn't apply here, are those that are incompatible with permitted uses in the zones we are not talking about a non- conforming use. We are talking about a non- conforming structure. And as to all non-conformities, it expressly says non-conformit ies are not to be encouraged. In fact they're not encouraged to survive. They're supposed to be extinguished. With this application they're being expanded by 2,000 square feet all connected together. It is kecked to the house by the breeze way, the new addition is connected to the non-conforming garage and, to me, if you read the intent provisions, it clear ly speaks against doing that. Now you get into the specifics which, jim commented upon. And what it says is non-conform ing structure May continue to exist provided it remains otherwise lawful. Regulated as follows: no non- conforming structure May be enlarged or altered and this is significant, in any way, in any way. It can't be more broadly encompassing in terms of language, legal language than no non-conforming structure May be enlarged or altered in any way, in any way that increases its non-conformity. So you can decrease a non- conformity but you can't increase it. The staff's position is, which is different than building inspection, staff's position is that it's not an increase as long as you stay within the footprint of the existing non- conforming structure, notwithstanding the fact that the language says no non-conform ing structure May be enlarged or altered in any way in connection and conjunction with the intent provision which I just read about how non- conformities are supposed to be discouraged and not to survive. So I disagree strongly that that is a reasonable interpretation from 4-a that you can add square footage to a non-conforming structure, notwithstanding the previous language and that that is not that doesn't expand a non-conformity and then you if look at b, which jim touched on a little bit, you know, b clarifies the situation so what happens in you have a big five or you have wind, something that gets torn down and you want to build it back. Can you? Well you can build it back in the same location but they want it to be clear, if that happens and it goes away, you can build it back but only under these provisions should it be non- conforming structure or should a non-conforming structure or portion of a structure be damaged, destroyed or demolished by any means, it May be reconstructed or repaired but it May not exceed the number of square feet of floor area nor the number of cubic feet it contained prior to the damage, destruction or demolition. S so they made it expressly clear in the event that it just got wiped out. If you wanted to rebuild it, you couldn't be adding a second story to it. If you didn't have a second story before. But under the staff's theory, that is okay but I mean under the staff's theory if it all got turned down, burned down, whatever reason, and this garage , they wouldn't be able to add a second story. Couldn't do it under this particular provision. But because it's not torn down, they can add it and you can ignore the intent provisions of article 4 and the language which seems abundantly clear to me and not only add above the garage but you can connect it to another structure or another garage, convert the garage into a workshop, add the bedroom over the new garage as indicated in purple, put a breeze way in, connect it to the house and expand the house that you can do all that because somehow you are under the existing footprint of the non-conforming garage and non-conforming house. I submit to you that conclusion doesn't pass, with all due respect to the staff, it does not pass common sense test. This is clearly an expansion of significant amount of square feet on to property for which the zoning ordinance expressly prohibits. I have the building plans. you've seen a portion of them in the handout. I'll give you the rest of them. I also have proposed findings for sustaining the appeal and revoking the permit. And be happy to respond to any questions, but we believe, based upon the testimony, the circumstances, you know, allowing another storied construction on top of a 24-inch clay pipe, expanding 2,000 square feet beyond the envelope, even under the staff's theory, is impermissible and even more pointedly, if you follow the intent, the zoning ordinance and expressed language of article 4, this building permit should have been denied and we are asking that you all now sustain our appeal and revoke the permit. Happy to respond to any questions. >> does the board have any questions of Mr. Simpson? Not yet. >> okay. Thank you Mr. Simpson. >> Mr. Turner. >> thank you Mr. Chairman. We are going to try something a little bit new here. >> I'd like to put this up first something you've already seen a bit. Before I get started with that, I've already introduced gary and billy huffman who are the owners of the property in question. On holiday. Gary is a life long, is a native of lexington, kentucky. Both gary and millie went to U.K., gary was my next door neighbor for about 15 years. Very successful insurance agent in lexington, so successful he went9ez and is now the current c.E.O. Of national in cincinnati and that's why they're in cincinnati. And he anticipated retiring in a year or two and returning to lexington and they've purchased this house for their residence and not too far from where he lived before. We were on comfort drive, the east end. He commissioned tom as an architect and tom is here, he is going take you through the process a little bit, briefly and talk about what the actual construction scope is and my purpose of introducing all that is we have a quality individual coming back to lexington. We have a quality architect, probably the best, one of the best architected in kentucky and probably in this region in or dealing with this and so this is a proper project, if you will. I want to simplify this a little bit as well. I've been around a lot of hearings with brother bruce and he does a great job of advocat ing his position. But the simple issue here is we have a non-conformity. We do not have a non-conforming use. This is a residential use. It's a residential zone. It's a single family residential house with accessory structure permitted reason r-1 c zone. The lot, while a minimum lot size is 8,000 in an r-1 c, this property is a little less than $ 12,000 total square feet in size. And you will hear the total square footage of the house is perfectly within and the accessory structure is perfectly within the limits of lot, there is no lot coverage other than the setbacks and there is no floor area ratio. There is a height limitation. There are setback lines and that's it. What we have is a current structure that was built almost 90 years ago being the garage thattings -- that is five feet or so inside the current building lines. There was no zoning in 1928. Actually there was but it was determined to be illegal and they packed up and restarted with state enabling legislation. First comprehensive plan was done in 1931. The city adopted zoning in 1930. The county decline dodd so at that time. I was not able to determine whether 1928 this property was in the county or the city, but I suspect it was in the county. Actually my grandfather developed fairway so, but I don't... I wasn't around at that time so I don't know. Likewise thelins house was built in 1933 and it's a curious, one thing to point out real quick, too, the thelins on their garage , could do exactly what we are doing exactly where it is without it being non-conforming. They do go up 20 feet and two and a half feet away from our, the huffman's lot lines so what we've got is we've got an exist ing garage five feet over the now building line. We've got this little piece right here this is the basically the non-conformity of the addition in the front is this hash mark, if you will. >> you are indicating about half of that sun room on the front? >> about four and a half feet. If you can see the difficult vengses on -- dimensions on there its 4'8" 3/4. It goes up two stories. That's already there in one story. That really is our issue with this regard is whether jim marks said it very succinctly, whether the interpretation of building inspection and the planning and zoning staff as to whether or not there is expansion of an existing non-conformity being 5' in one spot and approximately five feet in another spot. And whether and it's obviously we submit there is not and as before I go on to more detailed explanation of that, I want to introduce tom whims to take you through the process he went through to get the build little permit and what is occurring on the land and to give you some perspective from a visitta point of view while it's not really relevant, it is important to understand and particularly to respond to bruce's concern about this looming structure. And I think you'll find that bruce used a picture of the existing house and how tall it was. It is a full two story with an attic and of course what is being built here is a story and a half, the accessory structure. What is being built will actually soften that kind of vista because it will be less than that as it moves up, the height limitation of the principal structure is 35 feet. Height limitation of the ak accessory structure is 20 feet in the zone. so with that let me introduce tom to come up and. >> my name is tom, I'm the architect for the project for gary and doc. And darby is letting me use his tool so let me make sure I can do it. >> technology is amazing. When we first started this business I would have never thought this. Just a little bit about the process that we went through, you know, obviously they were neighbors of mine like wides and past clients before they moved out of town and they're coming back and they were kind enough to ask me to work on this project with them. I was very familiar with the house. I had done some other things on it in the past with m previous owners, some small things. But you know, obviously as has been pointed out, this is a corner lot so you have two front yards and very small backyard which is 14 feet. It also has April overlay on it in terms of that we have to normally you get a 10-foot set back in the backyard but if this situation, because of the over lay we have to go 20% of the depth. We have 75 feet so we have a 14- foot backyard set back versus a 10. And there is no way physically to put a garage under the present sonning -- zoning on the side of the house because everything has been pointed out by staff as we were aware when we went through the design process, everything would be forward of the back of the house because of the narrow backyard. And so you know, you always run into these anomalies in town. I've been doing this 34 years. Graduated from U.K. In 1974 and I've done a lot of work in this area and I do a lot of residential work. But you run into these anomalies so as you, then you rely on the reasonable interpretation from the building inspection and plan ning and zoning because I don't think anybody is trying to create a situation where somebody can't enjoy the benefit of their house. And so but when I went into the design process, I recognized immediately that we had two issues here with what the clients request and what they wanted me to do with the property and what they needed for the property. So I went down to the building department talked to cash. Went and made an appointment and said cash, here is was we have and here is my, what I think how we can achieve what we want to do. So we talked it through and he said let's go up and see plan ning and zoning. We walked upstairs and met with planning and zoning. I met with them and they looked at it and they said well we've done some things similar to this in the past and we've had some interpretations where you can, they've allowed second stories. Is that correct, cash? >> yes. >> there is some precedent here. They said we can support this. And given the anomalies with the lot, etc. And so I went back, did my work, based on that information from planning and zoning and from building inspection, made my application, it was approved and we got the permit and started so we did go through the proper procedure and , you know, did this all in good faith is my point. And in terms of because I'm just thinking now of some of the comments about, you know, the square footages and I'm going to go into too much into it but as darby pointed out, this is not a question about how large the owner wants to make the house because we are well within the right to make as many square feet as we want as long as it fits into the setback requirements and so, you know, I can come over here to the left side and I could extend that whole house if I tore down the existing garage, I could extend the whole house within eight feet of the property line and add as many square feet as I want to add and make it 35 feet tall all the way because it is no longer abaccessory building only the accessory building has to be lower which we adhered to. In terms of the sir line that goes down there, yes I'm aware it shows in my plan we had it surveyed there is a six foot easement and my new structure is two feet away from that six feet easement. I could build right up to the easement but the eight-foot set back requirement which I'm aware of precluded that so I moved it over eight feet. The sur line we are talking about already goes under the existing building. I didn't do that. The owners didn't do that. it exists and if they have to repair it, it is no worse today than it was when they put it in and that would just have to be dealt with. I can't control that. We are not going to tear that building down in order to move it off their easement. We don't have to do that. So we did this in good faith. In terms of the square footages and things like I said over the top it's a nice sized home but only has three bedrooms and the huffmans have children out of town, married and grandchildren and moving back into town. They've lived around the country they have friends that will be comvisitting and a three bedroom house is not enough space and with families and grandkids, the square feet over the garage is going to give them, it's not a new house, it's just bedrooms and bathrooms, no cooking facilities so it meets everything according to code. We can do that as long as we don't have any cooking facilities over the top of it and so that's something that the owner wanted so,you know, my job as an architect is to provide for their needs. That's what we did. So that was the process we went through and how we got there. This line right here is the new structure that is back here is the existing barrage. And we meet the height requirement. >> 20 feet. >> yeah. >> this I wanted to show because there was a lot of discussion and a lot of the comments made about the looming house next door I assume part of the concern is is about what they're going to look at. They're going have to, they have this structure that wasn't there before and so it's a change and I get that. People don't like change for the most part. It's just the way it is so this is looking down the neighbor's driveway. I took it froot street there and it shows the garage, their garage, then pay attention on the left-hand side you can see their backyard and their backyard has a brick fence all the way around it and it turns and goes back to the house. Enclosed yard and you can see right here that that is a mature magnolia tree, ever green structure and difficult sidous difficult deciduous. You can see the difficult deciduous tree, the magnolia tree, I did this. Just sketched this up yesterday they have the brick wall that goes around and you can see the garage and then on the back side we proposed to put some sort of fence along our property line to shield the paved area from their driveway which you can't see over the brick wall anyway. Everybody wants to move in and be a good neighbor and we are sensitive to create something architecturally that is pleasing that fits into the neighborhood, serves my clients needs and doesn't create an issue for the neighbors and so, you know, we are very much wanting to do that that's why I did the drawing because when doc and millie were in town at one point they went and visited the neighbors because they had heard that there might have been a concern and they wanted to address it head on. The landscape architect. I was not part of the meeting but to talk on to say okay we understand you have concerns about the size of the building what can we do to help mitigate that for you and alleviate the concerns. And I know they offered to do some landscaping work and say, we'll landscape it and if you want some things on your side to help, let us use that 10 feet that I was telling you we had potentially, you know, then we can, if you wanted us to do some landscaping within that area, we would be glad to work with you on it. That's why I did this because if you come here and look at this, the existing garage back here is behind their garage our new structure is this area right here and then proposing some large trees or hedge 12 to 15 feet tall that would give them solid hedge down here. I was also suggesting this was our wall, our fence that even behind that, even though that is not affecting the garage view from their perspective, but you know, we can come in and maybe do some horn means and create like you see in front as you go down that road, the horn beams, they form this shield and we can do some underplanting on them. Clear that for a second but also I think importantly here the reason I wanted to show the photographs of the existing tree s is because that one that that magnolia tree is pretty much in that area and the difficult deciduous tree is in the picture there. So there is screening already there and we are proposing and willing and want to cooperate and work in tandem with them to add screening on the other side just to, you know, so we can show we were sensitive to what their concerns are. >> the proposed screening was the four trees that you've got there thalg ape that will wag ork pleefer -- that was all cans plained to me. >> let me phrase it differently. It's not representing a final landscape plan because what we offered to do was to work with your clients to come up with a plan that was, you know, suitable for everybody and participate in a plan and so I'm just showing that there is a potential possibility of putting some trees in that could, you can screen that if that is what everybody chose to do. >> we were trying to get this re solved and settled before today and you send this to me this morning, four trees? >> I didn't send it to you. >> darby sent it to me. >> I just did it yesterday. >> I sent your clients a letter when I filed this please call me back at the end of June and I just heard from you this morning >> from me, no, you didn't hear from me this morning. >> I heard from darby this morning and that was attached to it, four trees. You said the existing garage, the existing garage is almost torn down right now, is it not? >> the roof is off of it because we were getting ready to go ahead and expand... >> the roof and two of the walls are gone. >> that's true. >> is that a picture of it. >> that's right. >> put that up, jim. >> are there trees between the two yards anyway, the tall evergreen trees? >> there are a few trees through there. There were two pine trees on our property that came down for the construction between right there in front where the garage is, two pine trees and when they were cut down, they had an arbor ist come down to cut them down and said they were diseased and we needed to take them down anyway so he said you are not losing much is what he told us. >> not losing much from your side of fence but from... I. >> I meant from a healthy tree. Something that was going to sustain itself in the future. >> okay, so you cut down two big trees, right? >> yes, we did. >> and the garage is torn down, the roof is off. You've got two walls, two walled standing one of them is propped up in the back with 2 x 4 to keep them from falling down. >> that's true. >> the wall alongside of the thelins has a big crack in it have you seen the crack. >> I haven't seen it. >> if they directed you to to say tom this garage is over the storm sewer, a foot and a half down we are going to add another structure on top of it, a bedroom, let's just move, if they directed you to, you could tear that down and build another garage closer to the house, could you not? >> no. >> why not? >> because I don't have the back yard set back either. >> you could move it up. >> then I couldn't have the same the structure with the same functions in it. >> you could take the structure that you are adding on to the existing garage, follow me, okay you could tear that down and move it within the existing set backs of the r-1 c zone, right? >> I could. >> that's all. >> but no I could not achieve the same structure with the same function. >> I understand. You might not be getting as big as you want to get it or they want to get it but you could comply with the zone if you were directed to do it you could be within the appropriate setbacks. >> two different questions but yes I could do that. >> the only question I had. Thanks. >> let me respond to that a little bit, too. I don't think they could be directed to take that building down because if of it's non- conformity. It has been there longer than, I don't know, you know, I don't know when that line was put in or how it was put but it was put in under the building and I don't think that anybody could direct them to take that building down or move that building. >> I thought Mr. Simpson was going to argue that the existing garage was in the process of being demolished. >> it was in the process of being reconstructed. When we got Mr. Simpson's letter. And so in all due caution, we stopped with regard to that garage and worked on other things. So it's sitting there in a state that we are not happy with it being sitting there in a state right now either but common sense dictates that until you all have resolved this, that we not move forward. >> one thing I wanted to address a little bit, too, was the ordinance and the statute. The ordinance. The statute from which all this comes is. >> this deals with non-conform ity and that statute talks in terms of clearly non- conforming uses. It has nothing to say about structures or anything else. I just say that to say that to remind you that structures are being dealt with differently than uses have been and if you look at the Mcquillan municipal corporations there are a number of examples where courts are requiring zoning boards to keep non-conforming districts for instance, an ordinance prohibiting a change from one non-conforming use to another was held where an owner wished to make changes in the structure to accommodate change from one to the other. Itself point being that uses that non-conforming uses and non-conforming structures, particularly with regard to set backs are treated distinctly different at law. here is the ordinance 101.53. The case in lexington, 1939 case but has continued to be cited, stands for the proposition that proposed changes in non-conform ing uses which separately relate to the use maintained prior to the adoption of the zoning ordinance making it non-conforming should be liberally construed in order to carry out the spirit of the law and prevent hardship to the owner. So that's the state, that's the court's decision basically on the construction of this, which I think trumps what our ordinance might say with regard to what is at stake. And again, the standard for your review is the building inspection and zoning enforcement officer is there and planning and zoning staff is their decision clearly arbitrary and capricious in light of their past practice, in light of the ordinance and in light of precedent that has occurred and how this law is to be construed. Again, I think this is a very simple issue. We have a non-conformity with regard to a setback line. We intend, two setback lines. We intend to build totally within that footprint and to comply with all of the otherwise height restrictions that are applicable. And begun I point -- again I point out and jim has pointed out, if we wanted to readdress the house and reorient it to fairway, we would, this would be at an 18-inch set back issue again the thelins house, if they wanted to, because their garage is in their backyard, they could do exactly what we are doing without any question. Sea with that, I did not bring you findings of fact because I don't think you need that with regard to that there is testimony to support the fact that the brilding inspection and the zoning that these non- conforming set back matters are not being increased with ra rd to this new plan and the building permit was properly issued. Would there be any issue about where it is and how high it is across the driveway or anything? >> not at all. >> thanks. >> ashed as he pointed out, he could move all that structure toward the house connect it to the house and build within eight feet of the property line and build to a height of 35 feet. >> thank you Mr. Turner. >> we've heard from each side and their witnesses I know sometimes Mr. Gross allows rebuttal and things like that but I think each side has had a pretty good piece of our time. >> I do need to rebutt butt a couple of things. >> five minutes Mr. Simpson. >> there are only two sides left to the old garage that the roof has been tore off and two of the sides tore off and the back portion is propped up by two by fours and I asked him if he was aware of substantial breakage in the walls of the wall facing the thelins he said he was not aware of it. Let me show you a picture. Zero in a little clearer. >> I think we get it. I think we understand what that is showing. >> that's a picture of one of the two remaining standing walls of the existing structure. >> that is the wall that is over the storm water drain a foot and a half below it. That wall. Propped up by two by fours to keep it from falling down. So darby said the standard is arbitrary and capricious, that's not correct. The question is did the staff er r in approving this in light of the expressed provisions of the zoning ordinance. Darby is talking about a state statute and about a case that talks about uses. He didn't file anything in advance so we could respond to it so it couldn't be that strong or he would have filed something and made a more legal case. The undisputed facts are that the local governments are empowered to adopt non-conform ing ordinances that pertain to structures. Your ordinance is one I've spent a great deal of time on because the planning commission and the council many years ago spent a lot of time on it to deal with situations just like this and I asked, him, I said if you were directed, if you were directed by the client to put this garage , this right here, move it close are, hiech hive closer, you would be eight feet away from the side yard, enough in the backyard, you could move all this over this one is virtually gone right now. But you are two for example to approve an expansion of this dilapidated remaining remnant of a garage that is a foot and a half over 24-inch clay pipe storm sewer, add another story to it, connect it to another two story building here and add a breeze way. If you are sensitive about the neighbors why do you have to hide what you have here with four trees. I asked them when we filed this appeal, please call me and let's discuss the resolution. I get four trees this morning. If you want to be sensitive, comply with the wall, build this back eight feet. If you want to build it 35 feet tall, submit plans. Let's take a look at them. But the plans that are before you today, the plans that the staff approved in violation of the non-conforming ordinance all of this is now connected together. This footprint is connected with all this other stuff, this footprint, the foot print for the breeze way now the house and over here, it's all one big structure and it's all in violation of your ordinances and quite frankly I don't know how you can find any other way and if you don't stop this now, building inspection would have stopped this now I don't know about those case. I wasn't involved in them. They have been decided the time for appeal is over. But if you allow this, then you are going to send a signal for all of fairway that these kinds of expansions can exist with impunity. It can't stop it. You have undisputed, they don't even dispute non-conforming structures both the applicant and your staff. this is non-conforming and the house is non-conforming. What they're contending is we can add areas because they vrcht been burned down yet here and here and connect it over here with another story and that's okay. Now if it gets burned down, you can't do any of this but you can only go back to the area that you had before it was burned down. I mean that's just absurd basis to approve this. And the law doesn't allow it. The facts in the case don't allow it. Thank you. >> Mr. Turner. >> bruce and I have been chat ting from time to time and we did communicate we would try to put something together. We did get together late. But let me go back. Before all this started the huff mans and their architect met with the thelins to talk about land landscaping and what they could do to make it compatible. All they gat back is the letter from the lawyer that we are appealing cease and desist. So the taste in the mouth is not very good. >> what they were told, Mr. Chairman is the same thing that was said today with respect to neighbors that's just the way it is. >> thanks to the lawrsz and the presentations. I have a question for Mr. Marks, you mentioned in your initial remarks that you had some authority and I would like to see it. I'd like to take a look at what you've got if you don't mind. >> I have findings for dis approval. Were you talking about something else? >> no, you mentioned in your original remarks that in your original remarks that I thought you said there had been case decided in favor of your interpretation of the ordinance. Is that correct. >> that's correct and this hand out I'm going to give the findings for disapproval is the fifth finding references though es two cases. >> okay. >> let us take a look at those and I think since it's 5:20, I would like to take a short recess while we can look at the documents that we've got before us. And when we come back, I want to ask Miss Jones what is the question that we are deciding. In other words what is the issue we are deciding and I say that in light of my knowledge of the history of this board, the cherokee park case that I'm sure you are aware of that was decided some years ago, alami case that went before the court of appeals not that long ago, and I'm pretty familiar with. So we might, let's take five minutes if you would. We'll come back and resume this case. Wilson was a friend of mine and judy is as well. I'm familiar with this house. I drove by it for many years. Some other musings that I might say even though it's past 5:30, we had a case before us a couple years ago where we required a person or a couple to tear down an expanded garage in a home that was on a street behind the arboretum. I don't know where that, how that stands right now but we dis approved their application but they had already built their addition. But the same issues were present , you know, there was the building shadow and it was too close to the property line and stuff like that and they couldn't work it out. So I understand the gravity of the decision that we are going to make. I also mention the alani case which was a case that came out of this board involving a non- conforming use which went up to the court of appeals and they said that we interpreted the non-conforming use incorrectly. All of this is in the back of my mind as well as the cherokee park case that I mentioned to Miss Jones before we recess seas ed which I'm familiar with as well which involved the issu ance of a building permit which was contested and also went through the courts. So this is not an unfamiliar issue that we've had. I didn't like the two houses that were built on a single lot at 2 1 holiday road which, in my opinion, are an abomination for the neighborhood and altered the character of it almost irrepbly. This is a big old house, a fine home, cornerstone of the neighborhood. An old neighborhood that I'm pretty familiar with but I have no interest either way in this particular case so I'm still remaining as Chairman Through the end of the case. The issue, as I see it, as i understand it and as I interpret our duty is to determine whether or not the permit was issued in error and it's an easy... It's a yes or no and whether or not if it was issued in error in what ways was that in error and it was in the issued in error was the issuance of that permit bas ed on a reasonable interpretation of the ordinance that you all have discussed. 4.1 and et cetera. So as I understand the issue before this board, we can't decide whether or not we like the looks of this building, whether or not we think it should or should not be designed , built and all that kind of stuff. I think the limits of the, of this board's decision making power is primarily was the decision to issue a permit for this construction, was it, was the proper procedure followed as was stated in the testimony, was the permit issued on reasonable grounds and were those reasonable grounds based on a reasonable interpretation of the ordinance. So as I see it, that's what this citizens board is deciding, it's an issue of fact, really and not necessarily, in my opinion an issue of law, although we are a quasi judicial body. But and so even though I interpret the decision that we make to be a simple one, it is certainly not simple and not noted meant to der gate the interest of the parties both who have very skilled counsel and quite frankly have good argument s to make on both sides of the issue. So with that being said, are there any other questions that the board want to ask any of the parties or of staff before we vote on the question. >> Mr. Chair, I don't have any questions per se I think both cases were extremely well presented. I'm convinced that both cases have great value and and that this is something we like, something we approve of esthetic ally or whether we can look at the ordinance, trying to understand what the situation was. And I am convinced that the ordinance simply allows us to use the footprint as it exists and make a second story for these two cases and again whether we like it or not, I think the ordinance allows us to do that that she made the right -- I think the staff has agreed with that decision and I do, too. >> does anyone else want to comment. >> I agree with you on your assessment and and looking at the footprint of both of the additions and I am in agreement with your comments. >> you don't have to comment unless you want to. >> I won't. >> I'll entertain a motion from the board one way or the other. >> Mr. Chair, so we are clear, because this is an appeal, the appeal would, they're asking you in the appeal because they filed it under administrative review under 76 of your ordinance which is asking you to decide whether or not there was an error in the issue ansz -- issuance of the building permit. So if you approve... I just want to tell you so you can think about how to word the motion. If you approve the appeal, you are agreeing with the filers of it who are asking you to find there was an error. If you disapprove the appeal, then you are saying that you believe the permit was issued not in error or inappropriately. And since there are only four of you here, if you have a 2-2 vote , it is going to fail and the decision will stand. >> and thank you for pointing that out. That's an important distinction. If we are tied in the vote, the appeal is denied and the original opinion to issue the permit stands noordz to sustain in order to sustain the appeal, it would have to be 3-1 in favor of approving the appeal and I hope you all understand that, you understand the process. I think the board as a board we do. So with that said, I'll entertain a motion the motion is to approve or deny the appeal. >> and you have been provided findings. >> we've got findings both ways. >> Mr. Chairman, I move for disapproval of the appeal pln-boa-17-49 an administrative appeal to determine the division of building and inspection erred in the building permit at 121 holiday road. >> second. >> Miss Whitman makes the motion do we need findings for dis approval of the appeal. >> you have those in front of you. >> we have them but I'm not sure they're legally required, are they? that's what I'm asking. Because. >> it would be best if you would adopt those just for the record. >> I will amend my motion toally -- to include the findings of disapproval have the parties seen these findings. >> there are no minutes of the entire referencing the two cases that were decided so you don't have the benefit of knowing what kind of arguments were made in opposition if any to the approval of that so they're collateral and since the record wasn't admitted I don't think you can rely upon them. I would object if you do. >> that's, I appreciate that, m r. Simpson, that's why I wonder if we need extensive findings because the motion to disapprove the appeal would be based on the hearing of the hearing that we sat through today and the testimony of the witnesses. And the entire hearing before us is that your interpretation Mr . Marks. >> I gray with tracey, it helps to have findings? I have no objection to deleting the last finding. I think it stands strongly enough without that one. >> I would support that, the deletion of the final finding. If you would accept a friendly amendment. >> second from Mr. Clarke, all those in favor say aye. Aye as well. It's unanimous. Thank you everybody. The appeal is denied and I believe are there any other business to come before this board of adjustment? >> we would like to you consider appointment of mark mccain who is a local registered landscape architect and also a member of the tree board to the landscape review committee. That's currently a vacant open ing. We we need to fill that. >> okay. >> would someone like to make that motion for Mr. Mccain? >> I move to accept Mr. Mccain in that position. >> second the motion. >> motion made and seconded all those in favor say aye. Any opposed. Hearing none motion carries. Hearing no further business this board of adjustment for this date is adjourned.