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.