# Board of Adjustment - January 8, 2018 > Auto-transcribed civic record · January 8, 2018 - **Permalink**: https://meetings.lexingtonky.news/meeting/4422 - **Source video**: https://lfucg.granicus.com/player/clip/4422?view_id=14&redirect=true - **Date**: 2018-01-08 - **Last revised**: January 8, 2018 - **Length**: 17,991 words > ⚠️ **Auto-generated content.** Audio from the official Granicus video was auto-transcribed with OpenAI's open-source Whisper large-v3-turbo model, run locally by The Lexington Times. Structured facts were extracted with GPT-4o; the narrative summary was written by Anthropic Claude. Verbatim wording may contain errors. See [methodology](https://meetings.lexingtonky.news/about/methodology) or [report a correction](mailto:editor@lexingtonky.news). --- ## Meeting Overview The Board of Adjustment convened on January 8, 2018, at 1:00 PM in the Council Chambers at 200 East Main Street in Lexington, Kentucky, with Branden Gross presiding as the meeting officer. The board addressed three agenda items during the session, including the approval of previous meeting minutes and two development-related requests from local applicants. The meeting included substantial public participation, with 10 public comments heard throughout the proceedings and 4 formal votes taken by the board members. Of the two development requests considered, the board approved a variance request submitted by Jeff Baker while denying a combined conditional use permit and variance request from Dustin Wunderlich. ## Attendance The following members were present at the meeting on January 8, 2018: • Branden Gross • Harry Clarke • Chad Needham • Joan Whitman • Jan Meyer • Raquel Carter • Thomas Glover All members were in attendance with no absences or late arrivals recorded. ## Votes and Decisions The board conducted four votes during the January 8, 2018 meeting, with mixed outcomes on the agenda items. **Minutes Approval** [timestamp: 00:00] Harry Clarke motioned to approve the minutes from the December 15, 2017 meeting, seconded by Joan Whitman. The motion passed unanimously with all seven members voting in favor: Branden Gross, Harry Clarke, Chad Needham, Joan Whitman, Jan Meyer, Raquel Carter, and Thomas Glover. **PLN-BOA-17-00092 - Baker Variance** [timestamp: 01:00] Chad Needham motioned to approve Jeff Baker's variance request to increase allowable projection to within 1 foot of the side lot line, seconded by Harry Clarke. The motion passed unanimously 7-0, with all board members voting in favor. The approval was subject to three conditions outlined by staff. **PLN-BOA-17-00091 - Wunderlich Application (First Vote)** [timestamp: 03:25] Harry Clarke motioned on Dustin Wunderlich's conditional use permit request for a commercial greenhouse and variance to eliminate landscape easement, seconded by Chad Needham. The motion failed in a 3-3 tie vote. Voting in favor were Harry Clarke, Chad Needham, and Jan Meyer. Voting against were Raquel Carter, Joan Whitman, and Thomas Glover. **PLN-BOA-17-00091 - Wunderlich Application (Second Vote)** [timestamp: 03:25] Following the failed first motion, Raquel Carter made an alternative motion for approval of the conditional use permit and partial variance for Dustin Wunderlich, seconded by Joan Whitman. This motion also failed in a 3-3 tie vote. Voting in favor were Raquel Carter, Joan Whitman, and Thomas Glover. Voting against were Harry Clarke, Chad Needham, and Jan Meyer. This approval would have been subject to nine conditions outlined by staff. The tie votes on the Wunderlich application effectively denied both the original request and the alternative approval motion. ## Public Comment Ten community members spoke during the public comment period, all expressing opposition to Dustin Wunderlich's greenhouse application. Mary Dianne Hanna, representing neighborhood associations, opened the public comment period by opposing the greenhouse project [timestamp: 02:00]. She cited incompatibility with the surrounding area and highlighted the applicant's previous non-compliance issues. Alex Martin raised environmental concerns about water runoff and questioned whether the proposed use qualified for agricultural classification [timestamp: 02:10]. Lauren Gambrell spoke on behalf of her in-laws, expressing concerns about the greenhouse's negative impact on property values [timestamp: 02:20]. Dr. Lisa Gannoe focused on the property's history of non-compliance and pointed to inaccuracies in the submitted site plans [timestamp: 02:30]. Wayne Mitchell raised infrastructure concerns, specifically addressing water usage issues, the lack of a septic system, and potential environmental impacts [timestamp: 02:40]. Walt Gaffield questioned the legality of the applicant's current business operations and compliance with local regulations [timestamp: 02:50]. Former board member Jim Griggs emphasized the need for an accurate site plan stamped by a licensed surveyor [timestamp: 03:00]. Dr. Charles Martin recounted historical objections to the property and noted that the previous owner had failed to meet required conditions [timestamp: 03:10]. Gloria Martin stressed the importance of accurate notifications and compliance with zoning regulations [timestamp: 03:15]. Amy Clark concluded the public comment period by arguing that the structure is not legally non-conforming and questioned the board's authority to grant variances for the project [timestamp: 03:20]. The comments collectively addressed concerns about environmental impact, infrastructure adequacy, compliance history, property values, and legal conformity of the proposed greenhouse operation. ## Contested Items The meeting featured one contested item that resulted in a deadlocked decision by the board. **Conditional Use Permit for Dustin Wunderlich** The board considered a conditional use permit and variance request submitted by Dustin Wunderlich. The application generated significant disagreement among board members, ultimately resulting in a 3-3 split vote. Due to the tie, the conditional use permit and variance request failed to receive approval. The deadlock prevented any action on Wunderlich's application, leaving the matter unresolved. The specific nature of the proposed use and the reasons for the variance request that led to the board's division were not detailed in the available meeting materials. This split decision demonstrates the challenging nature of land use decisions where board members may have differing interpretations of zoning requirements, community impact, or compliance with local regulations. ## Approval of Minutes [timestamp: 00:00] The board reviewed and discussed the minutes from their December 15, 2017 meeting. Branden Gross served as the key speaker during this agenda item. The board proceeded to approve the minutes from the previous meeting without any recorded objections or amendments. The approval was completed as part of the standard meeting procedures. **Outcome:** The minutes from the December 15, 2017 meeting were approved. ## Variance Request by Jeff Baker [timestamp: 01:00] The Board of Appeals considered case PLN-BOA-17-00092, a variance request submitted by Jeff Baker to construct a covered porch closer to the side lot line than typically permitted under current zoning regulations. Jonathan Donley served as the key speaker presenting details of the variance request to the board. The proposal involved constructing a covered porch structure that would encroach into the required side yard setback area. Following discussion of the request, the board voted to approve Baker's variance application. However, the approval came with specific conditions that must be met during construction and implementation of the project. The variance approval allows Baker to proceed with construction of the covered porch at the reduced setback distance from the side property line, subject to compliance with the conditions established by the board during their deliberation. ## Conditional Use Permit and Variance Request by Dustin Wunderlich [timestamp: 03:25] The board considered application PLN-BOA-17-00091, a request by Dustin Wunderlich for a conditional use permit to operate a commercial greenhouse and a variance to eliminate the required landscape easement on his property. Wunderlich presented his proposal to the board, seeking approval for the commercial greenhouse operation. The application also included a variance request that would eliminate the landscape easement requirement for the property. The board deliberated on both components of Wunderlich's request - the conditional use permit for the greenhouse business and the variance to waive the landscape easement. However, the board members were unable to reach a consensus on whether to approve the application. The discussion resulted in a deadlock among board members, with no clear majority supporting approval of either the conditional use permit or the variance request. Due to this deadlock, the application was effectively denied, as it failed to receive the necessary votes for approval. The outcome means Wunderlich will not be able to proceed with his commercial greenhouse operation as proposed, nor will he receive the variance to eliminate the landscape easement requirement on his property. --- ## Decisions - **Motion** — passed (7-0): Approval of minutes from December 15, 2017 meeting - **PLN-BOA-17-00092** — passed (7-0): Variance request by Jeff Baker to increase allowable projection to within 1 foot of the side lot line - **PLN-BOA-17-00091** — failed (3-3): Conditional use permit request by Dustin Wunderlich for a commercial greenhouse and variance to eliminate landscape easement - **PLN-BOA-17-00091** — failed (3-3): Approval of conditional use permit and partial variance for Dustin Wunderlich --- ## Full transcript All your friends were so knocked out You had to have the last words last night You know what everything's about You had to have a white hot spotlight You had to be a big shot last night Yeah! They were all impressed With your horse and dress And the people that you knew at Elaine's And the story of your latest success You kept so entertained Oh, but now you just don't remember All the things you said And you're not sure that you want to know I'll give you one hit, honey Good afternoon everybody. This is our first meeting with the new time and date. I hope it is working out for everybody. What we'll do is I will call the agenda. Bear with me here. There we go. I apologize. I was at the bottom of the pile. So today is the January 8th, 2018 Board of Adjustment. I will go through the agenda real quickly prior to us starting though if we could. could. I would like to, number one, remind everyone to turn their cellular telephone off if it has not already been put on silent. Second off, if there's anyone who plans on coming to the podium and testifying today, if you wouldn't mind standing up for me so I can swear you in. Please raise your right hand. Do you swear or affirm to tell the truth, truth and nothing but the truth. Thank you very much. You may be seated. Today we have a couple items on our appeal and one item on our variance appeal and one item on conditional appeals. I will be recusing myself from the conditional use appeal today so I'm going to change briefly some of the things I'll have. Our legal staff has to give us an update, a quick update on a case on which we will do on before we hear mister Baker's case but what we'll do if there's a contested matter generally speaking we will have the staff give their report they will have the applicant will have the opposition and then the applicant could give any rebuttals we have been in the last few months limiting the time on everyone gets an opportunity to speak but we try to keep the hearings from dragging out we've been normally given uh... each main person like that can fifteen minutes the main person opposition 15 minutes than everyone else we've been living their discussions to three minutes each that way we don't have rebut uh talking points that have already been hit once so keep that in mind as we go forward um do not approach or speak unless i'm i or the chair recognizes you sometimes we've had people from the gallery uh yell out things everyone will get an opportunity to speak today so please refrain from commenting now the first item we'll have have on our agenda will be the approval of the minutes from our December meeting, which staff has forwarded to everyone on the board. Did everyone receive a copy? Okay. Did anyone have any comments or questions? All right. Hearing none, the chair will entertain a motion. So moved. I have a first. Do I have a second? Second. Any discussion on the motion? Hearing none, then please register your vote. Okay. Okay, let's see here. What I have been doing recently is if you have the kelp keep things flowing, during the meeting. If you are going to have things you want to submit into the record as evidence, if you have copies, if you want to go ahead and you can give those before we hear your case to the staff. That way they can go ahead and also what we've been doing is taking a recess if you have a lot of stuff so that the board can have a minute to review it before we hear your case. case. So the first item I'm going to call is the variance appeal, which is PLN BOA 1792. Jeff Baker, is the applicant present? Thank you, sir. Is there anyone in opposition? All right, well, we'll have you heard first today. The second case is PLN BOA 17-91, Dustin Wunderlich's request for a conditional use permit. Applicant present? Opposition? Is there any reason you guys think you could work this out out in the lobby before we have the hearing all right that works and then miss Jones I believe just has a quick update if you wouldn't mind miss Jones we'll go ahead and let you tell us what's going on you all may recall on November your November hearing you all heard the request for a drive-through window at the convenient gas station over sales Road and that was denied I just wanted to let you all know that they have filed an appeal in Fayette Circuit Court it's just recently been filed so we'll be responding to that and update you as we go but I did want you to know that it was filed miss Jones will we be individually served or you will not be individually served they served me and we told them we would accept service because the timing fell during Christmas break okay so we accepted the service for this board and And we also got an extension of time for them to answer since it all fell during the break. And you'll let us know when and if we need to do anything? Yes. Okay. Thank you, Ms. Jones. Okay, with that being said, I will have the first case, which is PLMBOA 17-92, Jeff Baker. Mr. Baker, if you wouldn't mind, please come up to the podium. And put your name for the record. My name is Jonathan Donnelly. I work for Nature Expressions. We're doing the work at Mr. Baker's house. And the staff has recommended approval of your request, and they have recommended three conditions. Has Mr. Baker seen those conditions and agreed to them? Yes. Okay. Does anyone from the board have any questions? I had a question. Just a clarification. I assume where the fire pit is going, that's where it's going over the covered porch? I'm sorry, underneath the covered porch? Yes, that's correct. Okay. And when I looked this up on Google Maps, this particular townhome, it looked to me like the garage was not detached. It has a breezeway attaching it. It does. Okay. All right. That's not what it looked like to me, but I couldn't. Maybe I was pulling up the wrong address in those townhomes. Is there any way we have an overview of that? So that gable roof extends out past, covers the, I guess, the area in between the detached garage. There's a little already covered area. Is that correct? It's very, there's a patio in between the garage and the house. And off near the property line, there's just a small covering. Okay. And then, so the entire area will be, most of the entire area of his yard at the moment will be covered deck, or not covered deck, but will be decking material. A large portion of it, yes. Okay. And then what's the code on the, I know this is a little different, but on the plate steel, I mean, how do you put a fire pit underneath a covered porch? The National Fire Code basically says that you can't have a combustible surface above any grill, fire pit type thing. And so there's a steel plate that provides a non-combustible surface. Plate that attaches underneath the covered porch? Yeah, it has all thread that holds it down off of the structure. Okay. And then that provides a heat shield for the structure. okay okay well so it is a detached garage I guess just that's what it says so I'll go with that it sure didn't look like it on the photo this kind of I'd like to ask a question about the drainage of the new roof it draining toward the neighbors is that is that correct because there's there's a slope on the roof there's a slope on the roof towards the hot tub and we're not collecting it at all it's just going to spill onto the deck and then it'll run through the deck into the existing grade so it'll go right through the deck mm-hmm yeah okay well I've been in the area I live in that area and I looked at it and it looks it looks fine to me as a matter of fact I think you've done a good job job to put an interesting array of things in that small space so it was I don't have any problems with I just it's a bit odd since it's the only one and it's on the end and it looked like it shares the what is the business across the street that it shares with that's a daycare okay and they're not see not here so okay well then it's it's it it's fine with me does anybody else have any questions okay hearing none I will entertain a motion I move to approve PLN BOA 17-92 Jeff Baker's request for variance to increase the allowable projection to within one foot of the side lot line in order to construct a covered porch and a planned neighborhood residential R3 zone at 3316 Beaumont Center Circle based on the three reasons outlined by staff and subject to the three conditions. Thank You Mr. Needham do I have a second? We have a second. Mr. Clark seconds. Any discussion on the motion? Hearing none, please register your vote. Nothing's showing up on our end. Okay. All right. Thank you. It passes, and good luck with the project. Thank you. You're welcome. The next matter is PLNBOA 17-91. This is a request for a conditional use permit. I will be recusing myself, and since this is the last item on the docket today, I will take my leave and leave you in the very capable hands of Mr. Glover. So, Chair, it's all yours. Mr. Glover. Well, thank you. Thank you much. Before I accept the chairmanship, I noticed that this particular item, this particular location was one that I had recused on before because the previous owner of this site was a former client of mine some probably 10 years ago. So I have a couple of questions of the applicant before I accept the chairmanship of the board for the purpose of this particular application. The applicants here? Yes, go ahead. Come up to the podium, if you would, for just a minute, and let me ask you a question or two. Just for my purposes, I represented Mr. Jameson and his company. Do you have any present connection with Aaron Jameson or his company? Other than trying to purchase his property, no. Okay. Okay. You haven't worked for his company, or you don't work for a company that he owns at the present time? No, sir. I don't work for a company he owns. I've never done any business with him of any kind. Okay. All right. I just wanted to explore that with you. Thank you very much. You can have a seat for the moment. we also had some people that were going to speak in opposition our I think our process has been to hear from the applicant first is that right? sorry? the staff wants to do a presentation if not the applicant goes first Mr. Gross reminds me that we may have a staff presentation on this is that correct do we have a staff presentation i can present if you would like or i think the applicant has a presentation as well okay well in that case i will accept the chairmanship of of the board for the purpose of this application and conduct the balance of the meeting so would the applicant come forward again i'm sorry to make you get up twice there for um tell us about your application sure no i have uh two things i'd like to hand out a site map if that's a benefit to everyone i was told i can do that yeah and then i have a powerpoint if you can pull that up i guess that's time for that and where do i start the name of the applicant for the record my name is dustin wonderlick and then can I I don't know how they're supposed to go around but there's a site map do you have documents for each of us to review or is it one dog it's it's it's what I'm about to say one's a site map and one's a why this is a good move so it's two pieces of paper okay Yeah, that'd be helpful. And then can I change the slides or is that... This is awesome. Alright, so where's the right here? Alright, and then the pointer at the top here? Where's the pointer? Andrew, you got this? okay sure go ahead all right well mr glover sorry um could we ask the applicant if he agrees to the conditions um just to go ahead and get that out of the way first sure go through the conditions that you guys are proposing sure um would it it might be beneficial for me to give a little bit of an overview of this case since i think a couple of the board members were not here for the previous case last year um i just kind of happened to realize that if that would be beneficial when you say this case history with this property with the history of this property yeah is there anybody on the board that doesn't know the history of this property you don't okay sure let's hear it this property received a conditional use several years ago for a commercial greenhouse and the structure that is currently there was constructed but the use never never took place and the number of the conditions were never met that became a point of contention for a number of the neighbors who ultimately requested a revocation hearing which this board did uphold staff's decision to not request a revocation hearing but ultimately did hold and revoke the conditional use previously this applicant is applying for a similar conditional use in that it is for commercial greenhouse but for a very different type of use as a as a commercial greenhouse the previous use was for sod production for wholesale and this applicant is growing and selling through an online business where there will be no customers coming to the site at all aquatic plants for fish tanks that's kind of the general history if you have any questions okay thank you Adam mr. Wunderlich go ahead and tell us sure well thank you for the opportunity to present this I know it has is the borders or said it contentious history so I'm here to kind of you know plead my case on this and why I think it's a win for everyone involved. This is what 7524 Old Richland Road looks like today. This greenhouse was constructed in 2006. It's basically looked like this since 2006. So it's been sitting there for over 10 years, just an empty greenhouse. It hasn't been used to my knowledge. I think it was constructed and then hardly used at all. So it's been kind of an eyesore and kind of a pain for a number of people in the neighborhood. The staff has recommended an approval of this but there was part of the application that involves a number of landscaping items to kind of beautify the property and i've outlined these here just so everyone can see kind of the goal and just from a business perspective this has absolutely zero roi on me but it's strictly a politics move for everybody in the neighborhood to know that i'm you know wanting to work alongside the board's recommendation i'm going to go through each of these individually a you can see down here There's a fights or junipers that are supposed to be in the cluster. This is a recommendation. It's not a very good looking part of the property. There's four of those. You can see these here. We'll be using five gray owl junipers. They're 15 inches tall. They get about three to four feet wide. That's the plant. That was from, what's the guy's name? Glenn Young Landscaping Quote d'O. So that's A. These plants right here get four feet tall. They'll be along the southern border down here in A. You can see that on your site map. B, this is probably the most important one. I know I have some opposition in the room that lives across the street. These are low growing evergreen trees for a visual screen. This is the recommendation. These low growing evergreen trees along Old Richmond Road from the access point to the north length of the greenhouse. I mean, I get it, the neighbors don't want to look at a greenhouse. I don't blame them. They'll show me planted along the gaps to fill the existing right-of-way. You can't really see it in this photo, but basically there's some spotty stuff in through here. We'll be using Captain U. Pines. They're 42 to 48 inches tall. They get about 8 feet. As luck would have it, these are actually half-priced right now at Glen Young. And for what it's worth, you know, with the neighbors, I would be willing to have them, you know, sit in the family room or tell me, you know, where do you want these because these are for their benefit. so if there's something that they're like i want these here here and here like you know i'm okay with that but that fits the requirement per the lexington city street guide so these were just recommended to me by glenn young the other day but that that's one of the big points there's the trees they're half price they'll go all along this part right here but no they'll go on this section right into here but not up too high here because i am buying a greenhouse for light so they're going going to go down around this area right here. The next part, this is the part that is, if you look back here, this is C we're talking about right here on your site map. And the north end of it, they want to kind of protect it. Look, it's ugly from the road. I mean, this is what a shot I took about 100 feet standing on this narrow piece of property from it. These are called green giants, evergreen trees, north end. They grow two feet tall a year and two feet out a year. I mean, there's nothing pretty about the front of this greenhouse, so I'm looking to plant three of these, three or four of these in the front there. They are not cheap. I've gotten a quote. I think they're like 200 bucks a pop or whatever, but you can see the use of these trees. This is the UK Arboretum. You'll notice when you pull into the arboretum you don't see the parking lot when you pull in there they use these same type of trees here and obviously I don't have the the budget of the UK arboretum but that's what the trees will look like in a couple of years for and I think that's important because again if you pull up you pull down over Richmond Road I mean you see this ugly greenhouse like this from a business perspective these are important to me for both I don't want people coming in there at all because I'm paying a guy 15 bucks an hour to get a five dollar plan it doesn't make sense so I kind of want to hide this but also It'll shield the wind, and the neighbors won't have to see it. Let's see here. So I got those. There's also, in the approval, there is two medium trees should be planted along the western property gap. If you look on the site map, this is along I-75. This greenhouse sits extremely close to I-75. I'll be using yellow wood trees in this little gap right here, as I'm assuming is what they're talking about. Now, these are a thinner tree because, again, I'm purchasing a greenhouse for the light that it's provided in. but these are yellowwood trees um they're 200 bucks from glen young landscaping um paving of the driveway this is uh i've been an issue i know in the past with this property you can see on the site map here i have it outlined in gray again this has absolutely nothing to do with a return on investment other than maybe some potential thing with paving but i mean there's no like direct money i'm going to make from having it paved and i'm not going to be open to the public and i don't want the public there but in order to pacify the neighbors i know they've been concerned about having a gravel driveway these are the specs given to me by ati construction this is a total of about 10 000 bucks that's going to go into this driveway right here you can see that on the site map i've gotten multiple quotes on that i've also spoken with the division of engineering i believe his name is josh design and these these meet the specs for that as far as like depth of compact. I'm not an asphalt expert, but the one inch thickness and the three inch thickness and all that today there is gravel. Um, just as one of the concerns, I know people have pointed out, there is no, uh, heavy traffic on this. I'm not bringing in semis or any sort of a heavy wholesale things like this. So this is more than enough. Um, I'm also going up to the door right here, which is, I guess, handicap access, but I'm not going to be open to the public. However, I guess that's part of it. I didn't know if that was negotiable or I mean it's it's part of what's required but I'm not gonna open the public but if I have to have paving to the door so be it but there's what it looks like that's actually on a quote and then there's the price that the seller is going to split with me and then why this is a good move this lot's been vacant for 11 years since 2006 since I do have some opposition in the room I would like to point out that the people in opposition purchased their property in 2011 this greenhouse had been there for five years when they purchased their home already and then it's already sat there an additional seven years and they've been staring at it so I feel like there's no downside because as they've already stared at it for seven years vacant and they bought the house across the street five years after the greenhouse had been built it'll look better for the surrounding neighborhoods of the rounding neighbors it's an undesirable piece of property as everyone points out it's unfit for residential use this will make use of the exact existing structure and it can be used within its capacity I mean it's a hundred and eighty foot by like 36 foot greenhouse that you know some people have said should be torn down at the sellers expense obviously he's not going to do that and I can run my existing business out of it so the chance for success is pretty good this is not a startup my business I've been in business for over six years doing what I do it'll bring more tax dollars into Fayette County it'll bring more jobs again and I'm going to reiterate this I'm not going to be open to the public I lose money paying a guy 15 bucks an hour to bag up a $5 plant and I don't want customers in there and I think it's a win for everyone involved the seller the neighbors in the city of Lexington not that's really it if anybody has any questions for me I'm more than welcome to anybody any member of the board have any questions for the applicant Thank you, Mr. Wunderlich. Have a seat and we'll hear from the opposition. Thank you. I want to ask from the opposition how many people would like to speak in opposition to the application. Let me see. There's one, two, three, four, five, six, seven, eight, nine, ten. I see 11 hands. In the interest of time, I'd like you to limit your comments to 10 or 15 minutes per person, if you would, so we can make sure we have everybody heard. I'll also remind you not to repeat yourself or anything. If we hear it once, we've heard it. So if you have new points to bring up, that's fine. but we only need to hear a particular item or issue one time from those in opposition. So if you have an order that you want to appear in, you're welcome to come forward in that order that you've selected. Thank you very much. Come up. Excuse me. Excuse me just a minute. Okay. How much time do you need? Well, we won't be using each person as 15 minutes, but, you know, at some point, you know, I'm, you know, I would say 10 or less per person, probably way less than that. Yeah, let's, for the purposes of the timer, because we do have an official timer, I was pretty unclear about that. Let's limit it to 10 minutes per speaker. If you need more time, you can ask for it. I think you'll be happy with us. Thank you. Hi, my name is Mary Diane Hanna, 6398 Old Richmond Road, Lexington, and I'm representing both the Old Richmond Road Neighborhood Association and the Boones Creek Neighborhood Association because Melissa Brown could not be here today. Are you an attorney, Ms. Hanna? Am I an attorney? Yes. No, why? We have, well, according to our rules, you can't represent somebody or an organization unless you are an attorney. I'm speaking for them. You can certainly appear on your own behalf, and it's okay for you to tell us that you're a member of those organizations, but you can't be counseled for or represent a particular party. Thank you. Okay. Thanks. Thanks. We have over 300 paid members in our association and many others who are unpaid but we associate with and communicate with frequently. Obviously, 7524 Old Richmond Road is in the AR area. and the two principal permitted uses are farm and single-family dwellings. There are only two commercial businesses along Old Richmond Road. One is the defunct J&D Market at Jack's Creek and then Proud Mary's Restaurant down at the River. Everything else around this proposed business is zoned AR, including this property and is agricultural or residential in nature. The goal of this area is to keep things compatible with the AR zone and with single-family dwellings, and this structure and business requests are not compatible with this area. The intent of Article 18 of the zoning ordinance is, quote, to improve the appearance of the vehicular use areas and property abutting public rights of way and to protect, preserve, and promote the aesthetic appeal, character, and value of the surrounding neighborhoods. This site is in the area of over 3,400 acres of PDR and bluegrass conservation land, so we're trying to promote that in our area. It borders the Boone Creek National Historic District. It is on a designated scenic highway, byway, highway, that we are trying to make scenic, as you can tell. We come down here a lot. With regard to this, it's on the Kiwanis Bluegrass Driving Tour. It is in the notification area of two other scenic byways, McCall's Mill Road and Grimes Mill Road. And speaking of the notification area, I never did receive a notice, and I usually do, as president of Old Richmond Road Neighborhood Association. Melissa did receive hers as president of Boones Creek Neighborhood Association, but she never received notification as someone within the notification area. So we want to applaud the staff for recommending additional screening, and it looks like Dustin is working with that, beyond what was recommended by the zoning ordinance. But we further request that no trees be removed. We want overkill on landscaping and screening and as you know from previous hearings this structure which was built without a permit and has been out of compliance and with most of the conditions of a commercial greenhouse and does not meet the agricultural use requirements which requires it to be on five acres. This structure sticks out like a sore thumb in the neighborhood. It's a blight on the rural landscape. Additionally I think there had been some talk about monkey grass. If it's considered a screening option, I hope it's an adjunct because it only grows to be about 18 inches high and dies down in the winter months. There are six conditions that must be met to have a commercial greenhouse, and this site will never, ever be able to comply with all six of them. To allow mature trees to be removed would be 180 degrees from what the code is, the thing that I read earlier, to preserve the aesthetic appeal, character, and value of the surrounding neighborhoods. Dustin clearly states and demonstrates in his YouTube blogs that he uses 48-inch LED lights and says he can grow anything with these on his YouTube blogs and goes to great lengths to make that point. So we certainly hope cutting down the trees will not be something that he is allowed to do. Article 8.1, number 5, requires a performance bond, performance bond or the developer must post a letter of credit with the Division of Environmental Services to ensure the completion of the screening. Although we prefer this building be removed and this site hosts a single family dwelling, we certainly think major screening and no tree removal is a necessity. Overall the structure and this business are not compatible with the surrounding area and this dilapidated structure has had negative impact on the area for the past 12 years under the tenure of an absentee owner who never bothered to comply with the conditions he was to follow starting in 2006. We request you deny this conditional use permit and here are my notes to put into the permanent record. Thank you. Board Alex Martin 7121 Grimes Mill Road. I have served on the Green Space Commission have served multiple terms on the Fayette County Ag Development Board of served multiple terms with the Fayette County Farm Bureau. simple question our neighborhood association and neighborhood has tried hard to get the area to comply to agricultural needs I have some handouts I'll pass out very simple KSR Lexington statutes agricultural use they list horticulture, they list agriculture. Is this aquaponics? Not really listed. Is this a commercial facility? Yes, it is an online business. Yes, they won't have that much traffic. At the same time, it is a another commercial use in an ag zoned area that we aren't even sure is compliant with local and or state statutes unless you get better definitions there. Second point, the current business plan that he has, he talks about water changes two days a week. Is there a septic system on this property? Where's this water going? Is it a runoff? That's a serious question. You're sitting in the Boone Creek watershed right next to the Kentucky River serving on the Green Space Commission. I'm very well aware of the EPA issues surrounding Lexington and runoff. Now, this isn't normal runoff. Yeah, it is enhanced for the growth of the plant. Fertilize what's in there. That's one of the things that EPA doesn't particularly like in runoff. Talked about in the business plan the existing conditional use. There is no conditional use on this property. It's been revolved. So once again, I won't repeat, but we do applaud the staff for recommending. It is an eyesore. That's one of the reasons we wanted it taken down in the last hearing, so something like this didn't happen again. It is kind of a, once again, commercial use in an ag zone that may not even be KSR and locally allowed without stricter definitions. So with that in mind, think about the watershed. think about the runoff, think about is this allowed under KSR and local conditions. And for that purpose, I hope you all deny it. Thank you. Thank you, Mr. Martin. Good afternoon. My name is Lauren Gambrill. I am speaking on behalf of John and Kathy Hadlock hadlock and they are at 79 40 old richmond road um i have a letter from them but i have a few topics that i want to discuss can we put this on the projector miss gamble you said you represented who john and kathy hadlock are you an attorney no i'm not i have a letter from them uh are they going to speak are they present today they're not they're out of town on business they're working today how are you related to them i am their daughter-in-law okay close enough okay um the diagram that i have for you guys is their house where it sits it's mine in the red square and then the greenhouse is above them on Old Richmond Road. This diagram is just to show you guys that these lots are very suitable for homes, not just commercial. That's why there are no commercial lots around here. This lot is hurting the value of the homes around them. And just an excerpt from the letter that was submitted, and I also have a copy that I will put into the public record. This is, and I quote, We would also like to make note of the fact that we take personal offense that the planning staff recommended to the BOA in the report that because the property is between Old Richmond Road and I-75, that it does not make for a desirable residential use. We obviously find our small property to be a very desirable place to live. We would have not continued to live here for all of these years. He said that these homes have only been here for a certain amount of years. John and Kathy have had their home for 18 years. So this has been built since they have been there. We have other neighbors on small lots in the area who feel exactly as we do and that it is good for residential living and a house should have been built on the greenhouse lot instead of that of where it is. This should not be any different than the homes backing up to Manowar or New Circle or the homes that back up to I-75 and Hamburg. The area of the homes, he's stating between I-75 and all the other major highways, it shouldn't matter. There are plenty of lots here that stay here and see this property on a daily basis, and it's not something that we want there. There's no commercial lots. It's been abandoned since 2006, so it's not something that we want to see, and this should not be permitted. So that's all I have for you guys. Thank you, Ms. Gamble. You said you had handouts for us. Is this the letter that you referenced? Yes, it's with it. All right, thank you. Let us, as a board, we'll take a few minutes to take a look at those handouts before we hear from the next speaker. Thank you. Amen. Thank you. Thank you. Thank you. Okay. Okay, we've had a chance to look at the materials offered. Will the next speaker come up, please? And tell us your name, please. My name is Dr. Lisa Gonneau, 7525 Old Richmond Road. In the packet that I have provided to you, the very last thing in the packet is a finding of facts for the revocation of variances for the property located at 7525 Old Richmond Road. The variants granted in 2006 for the property located at 7525 Old Richmond Road were based on a faulty site plan information that was given to the staff and the board. Variances granted in 2006 do not coordinate with the recorded deed or the recorded plat dimensions for the property. Variances that were granted erroneously or that circumvent the requirements of the zoning regulations are null and void and may be revoked by the Board of Adjustment. That's from Zoning Ordinance Article 7. This is my eighth appearance to the Board of Adjustment regarding this piece of property, with the last being April 2017, which is less than a year ago. At that time, I expressed my concern with this property continuing to be an issue unless the problem was eliminated. This is really more of an issue than just the beautification that Mr. Wunderlich was talking about. Regarding the current application, there are issues with the current site development plan as it is not platted. The 2006, 2015, and 2018 site plans for the property do not match the recorded plat for the property, which is in Book 761, page 59. The measurements are incorrect and not to scale. The 2006 plan states a 35 by 185 building. The building drawn on the plan is not square. The ends are not equal length. 35 by 185 feet is larger than the building drawn on the plan. The current plan was based on that 2006 plan that was never approved or correct. Were you able to put that up on the board? Thank you. The easements of record and the county clerk's office that are on the property are not shown on the site plan and never have been. All recorded deeds for this property have been added into the record previously and will be added again today for review. Variances do run with the land, but originally in 2006 these variances were not accurate. Variances formally granted for the property previously are not adequate for the plan to be approved for the current application. The greenhouse building needed to request more variances in 2006 in order to construct the building on the lot. By definition, the property has two front yards with highway setbacks. No variances were given or requested for the side yard setback or the front yard setbacks. The plan also did not include the setbacks from the state right away and I-75. According to Article 8 of the zoning ordinance, existing lots less than 350 feet in lot depth shall have the minimum front yard coincident with the platted building line or 50 feet, whichever is greater. The property is deemed to have two front yards. The minimum rear yard for the property is 25 feet, as required in the AR zone. The minimum side yard setbacks in the AR zone is 25 feet. Even agricultural buildings are not exempt from the 30-foot highway setbacks, and that's for the protection of existing and proposed streets, zoning article 3-4. The building is well within the required setbacks, regardless of whether it's considered agricultural or residential. The widest part of the property by the deed plat map is 157.47 feet on the south boundary line. There's a utility line easement all along Old Richmond Road frontage with utility poles. An encroachment permit, and perhaps a variance would be needed before placing the driveway and parking areas within it. The 50-yard setbacks fall within the building. The building of that size, 135 by 185 feet, cannot fit when surrounded by 20 feet of required landscaping and required parking area behind the 50-foot setbacks on a lot that's only 157 feet on the widest side of the lot. This is something that cannot be corrected now, and it's too late to obtain the variances. As stated in the revocation hearing in April 2017 regarding this piece of property, it should have been known that this building could not have been built on this lot. These things can't be changed and the property should not be approved again for a conditional use permit. The building is too big and the lot is too small. Simple math shows the site plan would not work on the lot without a long list of variances. The math for this has been provided on the second page of your packet. Since the required permits were never obtained for the building, drive, parking, and landscaping, it's assumed that no one ever measured to see if they were accurate. Commercial greenhouses are allowed in the AR zone, but only when all six conditions are met. A variance was granted that allowed for item B that states no structure shall be within 300 feet of any existing residential structure on another lot under different ownership, and driveways shall be 100 feet from property lines. I believe two neighboring lots are less than 300 feet, but the original report only notes one property. Second, the original report notes that it will be 242 feet from one residence. As stated at the revocation hearing in April 2017, the measured distance to my home is 204 feet. The Board of Adjustment does not have the authority to vary setbacks from U.S. highways and interstates. Obviously, this building is into the U.S. highway right-of-way setback and into the I-75 right-of-way setback. The granting of variances, as stated in Article 7 of the zoning ordinance, will not allow an unreasonable circumvention of the requirements of the zoning regulations. The Board of Adjustment has the legal authority to revoke a variance for noncompliance with the condition requirements of the zoning ordinance, Article 7-6. The 2006 variances that do not meet the measurements for the plat for the property should be revoked. The applicant also states that trees are an issue for the greenhouse and asks for variances for the landscaping. Removing any existing trees would change the character of the area. Variances cannot be granted if they change the character of the area or neighborhood. Article 8 of the zoning ordinance states that commercial greenhouses be permitted as a conditional use only when a 20-foot wide landscape easement shall be provided around all buildings and parking areas or at the perimeter of a tract of land containing one tree per 30 feet of length or fraction thereof plus a continuous six-foot-high planting, hedge, fence, wall, or earth mound. The applicant and staff report suggests that not all areas of the drive and parking be paved. The applicant lists three retail businesses as examples. Again, in the AR zone, commercial greenhouses are only allowed when all driveway and parking areas are paved and sealed. The zoning ordinance definitions say that if sales to the public are permitted on the premises for a commercial greenhouse, then parking is not required to be paved. The applicant has stated no on-site sales, but the staff report suggests that the parking lot is not required to be paved. These things are inconsistent with the AR zoning requirements for a commercial greenhouse being allowed as part of a farm agriculture use on five contiguous acres. This building is closer to my home and my neighbor's home than it should be and is definitely not conducive to a retail 8 to 5 business that is envisioned to continue growing with employees. It has one entrance with a setback at zero onto a state highway and is dangerous for the surrounding residences and anyone entering and exiting the property. The current application states plans to grow the national retail business at this location by adding additional staff. Retail sales or services are prohibited in the AR zone unless included in the definitions in KRS 100.111. Although the applicant states no sales on the property, if five or more employees are engaged in handling purchases and packing and shipping purchases made online from that location each business day, there are indeed retail sales on the property. The 2006 application stated one employee, wholesale only, and set pickup times two times per week. It's important to note that the greenhouse is still owned by Aaron Jameson and Enviarsad, who asked for the original conditional use in 2006. He has never appeared before the board except in 2006. I believe the owner should be made to appear before the Board of Adjustment and give testimony regarding these issues of which he is fully aware. Why the site plan doesn't match the deed in Platt. Why the building was abandoned. Why it's being marketed without disclosing the facts and problems of the property. The current application will harm surrounding properties and is not consistent with the surrounding area. It could potentially have an environmental impact, but we have not been providing more details in the application about certain waste and water issues, and it will have an adverse impact and already has on the neighborhood. I'd like to submit all my documents, the findings of facts, and the previous information that I submitted in April 2017 is I believe the materials are still relevant to this case today since it's the same piece of property. I would like all those entered into the record. And I would like to state, as Lauren talked about, all the properties and her in-law's property being there before the greenhouse, most of these properties in this area were there long before the greenhouse. Thank you. Thank you, Dr. Gonneau. Any other speakers in opposition to the applicant? Good afternoon. My name is Wayne Mitchell. I have a little throat problem. I live at 7601 Old Richmond Road, which is diagonally across from the structure that we're discussing. And my first discussion point was already been covered. I just want to add one thing to what was said. That is this fertilized treated water. You've got a structure that's 136 by 36. That'll hold a lot of vats. And I don't know anything about the operation, but if you change that water out twice a week, there's a lot of nutrient-rich water that's got to be disposed of. And that's never been brought up as to how much would be in question. There's no bathroom facility at this structure. He's talking about three to five employees. There's no septic tank, no drain fills to properly dispose of sanitary waste. There's no description of where the plant clippings will glow. In the gentleman's videos, the pieces are torn off and simply thrown on the floor. But it sounds like that might be an issue in the future if it does grow the business. Another thing, what about the water usage? Shouldn't Kentucky American be advised in consulting with the anticipated usage? We already have a pressure issue at this location. At times, it may take our washing machine 30 minutes to fill up with water because the water pressure is so low. And they did construct a, Kentucky Americans constructed a, I guess, a booster pump on down the road from our location, maybe a quarter of a mile, to help those residents further south, but it didn't do anything for us. And I have requested Kentucky Americans to put a monitor on my line so that I can prove to them that I'm not getting adequate pressure, but they've never got out there with it. It never showed up. Permits for land disturbance, erosion control, storm drainage, on-lot storm retention, and other applicable permanents cannot be obtained after the fact from the greenhouse because it was built in 2006 without it obtaining the proper inspections throughout the construction process to comply with the zoning ordinance, Article 5.2. I think all these issues need to be addressed before further consideration. Thank you. Thank you, Mr. Mitchell. Yes, sir. I'm Walt Gaffield. I'm president of the Fayette County Neighborhood Council. We don't ordinarily appear before you all, but we thought there were some important issues, so I'm present. The Neighborhood Council appreciates the Board of Adjustment and planning staff because they perform a really important function for neighborhoods. You know, basically, the zoning ordinance 76A allows the Board of Adjustment to grant conditional use permits if they do not have an adverse impact on surrounding neighborhoods or on the surrounding neighborhood. And that's really important, because otherwise all kinds of things would be going on. I'd further note, though, that you should defer to the neighbors who live in an area as to what's adverse. I mean, they know a lot more about the area than you all do unless you visited it and walked it and been there for a while. So I'd urge you to give some deference to the neighbors who all seem to think this is an adverse impact. The FCNC has conducted some research on the applicant, Dustin's fish tanks, for this hearing, and it's somewhat related to this because of the lack of conformance with conditions since 2006. If you'd put the first slide up, please. Okay, this is from the Secretary of State's website. We can't find that Dustin's Fish Tanks is a registered corporation in Kentucky. For the Secretary of State's office, it doesn't really exist. If you could put up the slide, please. This also is a slide from the Secretary of State's office. What it basically says is that Mr. Wunderlich isn't really registered as having any corporation in Kentucky, but he was a registered agent for a corporation called Green Thumb Marketing, LLC, which is not in good standing with the Secretary of State. Slide three, please. Okay, you can't see this very well. Well, let's get it straight. This is Mr. Wunderlich's current residence at 532 McCubbing Drive, which is near Lafayette High School. You'll see the house, you'll see a garage, and then you'll see a greenhouse. And there's a commercial business operating out of the greenhouse. This is an R1C zone, and we couldn't find a conditional use permit to operate a commercial business in this R1C zone. We simply couldn't find it. Slide four, please. The PVA lists the neighborhood as Lafayette and Chatham Village, which is near Lafayette High School. And it is again R1C. Slide five, please. This slide, which you probably can't read very well, but you'll get a copy of it, shows that he constructed his greenhouse in July of 2012. So he's been in business since that day, and he admitted so. So this establishes pretty much and documents the establishment and operation of the business in the R1C, and again, we can't find a conditional use permit for that use. We also can't find evidence of a license to conduct business in Fayette County. Mr. Wendelick may have one and may be able to counter that. I don't know. We can see that he has an employee. Again, it's based on his own blog. So he's got at least one employee, maybe more, operating out of his greenhouse right now. We don't know about his payroll and payroll withholding practices during that whole time period. We just don't know. I don't want to talk about the nutrient water because that's already been discussed, although that could be an environmental issue in that area around Lafayette because I know that area is subject to flooding and that kind of stuff, just from my own experience. Slide six, please. Okay, this is a slide basically showing the 48-inch LED lights already discussed. If they were to be on all night, that would be a problem for the neighborhood. And the arrow points to a blog posting saying that somebody, you know, had the good fortune of being able to visit. Mr. Wunderlich had his business to buy something or to discuss buying something. If you look at his blog, and he's been blogging every week since about 2012, he's sold fertilizer, aquarium starter kits, hoodies, materials for hobbyists, and aquatic plants. I won't discuss the lights except to say that's an adverse impact on the neighborhood, depending on how often they're on and when. Slide seven, please. Slide seven is from a January 2nd posting on his blog, which shows he's still in business, and he's admitted that in the Lafayette High School location. The point of this presentation could suggest that past behavior in business practices is probably a very good predictor of future practices. I mean, I know I have experience in HR, and that's one of the ways we hire people. We look at their past behavior. Approving the conditional use request likely would lead to more of the same on a property that's been out of compliance since 2006. And as Dr. Gonneau told you, it's probably impossible to bring it into compliance. That suggests something that's really important to neighborhoods that you need to hear. There need to be required legal inspections of properties with conditional use permits, particularly ones that neighborhoods are bothered by and are controversial. And I can't stress enough that that really needs to happen. That doesn't mean that the board or staff have anything to do with what's going on in the Lafayette neighborhood, because I doubt that either staff or the board knew about it until today. To repeat my initial point, it's really the people who live in neighborhoods, and it's the neighborhoods themselves, that recognize when something has an adverse impact, and there's a lot of them here. It's unanimous. I think you should defer to that because they know more about it than you do. And it's not a function of the board to bail out a bad business investment on the part of the owner. Thank you very much. Thank you, Mr. Gaffield. Hello. My name is Jim Griggs. I live at 600 McCall's Mill Road. I was on the Board of Adjustment for 12 years, including 2006 when this greenhouse was permitted. It was one of those projects, not unusual, where the construction of the building hinged on obtaining the conditional use and associated variances. At that stage, applicants are reluctant to spend much on professional design surfaces like architects and engineers. In this case, we were not even provided an accurate site plan, one stamped by a licensed land surveyor. This was unfortunate. It's a tight, complicated lot. But again, it's not unusual. The Board of Adjustment is looking at the big picture and constantly assured by staff that compliance with the countless details, whether zoning ordinances or building codes, will be enforced by the appropriate departments. Well, here we are, ten years later, with a mess to unravel. For me, the missing piece, the crucial information that the owner or this potential buyer has never provided is the site plan stamped by a licensed surveyor that proves the building is in compliance with all dimensional requirements, setbacks, easements, right-of-ways, and the like. That this building is not in compliance has been voiced repeatedly. I don't see how you can consider approving a conditional use for a structure that was illegally built and might not be able to obtain a legitimate occupancy permit. If it was me, I'd continue this hearing until the building's compliance is no longer a question. If the owner or buyer is unable to do that, you may find that the applicant withdraws this request on his own. Then your immediate problem is solved. Any future conditional use applicants should be required by staff to provide a site plan drawn by a licensed surveyor. Thank you for the opportunity to speak. Any questions for Mr. Griggs? Now's your chance, board members. Thank you, Mr. Griggs. I'm Charles Martin. I live at 7416 Grimes Mill Road. I've lived there since the 80s. One bit of some-called housekeeping, we weren't really notified of the meeting either. You can show that first slide. We can see that our property is right across the street from the property we're talking about. There was a mailed letter that went to that address. There's no mailbox there, and I'm not sure how it finally found itself in my mailbox, but it did. The second slide, please. I've written a letter that summarizes my two objections, and I'll try to be brief. It's hard, after everyone has spoken, not to repeat, but I'll summarize. I had really two basic objections, and that is that it's an inappropriate commercial use in an area that's primarily agriculture with family, single-family homes, and that it will negatively impact surrounding properties, my properties, and the subject properties. It's too small for a nursery, too small for the greenhouse. It's inside of a defunct greenhouse. It's subsequently been taken down. The key part of this letter, though, is the date. This is the letter I wrote in May 26, 2006. I was there that day with Bill Krieger, my neighbor, who lived across the street and who was really the main objector. We went out at the chair's request to the outside hall to see if we could settle our differences, and Mr. Jameson vehemently and I think very effectively stated his case that there were a lot of conditions. He was going to meet all those and that this lot was going to be beautiful and that the greenhouse was going to be wonderful and that Bill Krieger would be happy with it. Bill wasn't real sure, but he was actually sick. He wasn't feeling good that day. He didn't have much fight in him. We found out later that he actually had cancer and he didn't live a lot longer after that. But he finally said, okay, I'm okay with it. I won't object. If you're sure, you'll do these conditions. And the chair says, now, Mr. Jameson, you agreed to owe every single one. Bill said, okay. But Bill did say, okay, now if he doesn't do them, who shall I talk to? Who can I call if he doesn't fulfill these conditions? And someone on the far end, I think code enforcement, said you called us and said, okay. So that day, if the chair says, now, Mr. Jameson, you're going to do that landscape easement, and you're going to do that detail correct site plan if he'd said no I'm not going to do that you're going to do a performance bond that was no I'm not going to do that and on down the line ten things if he said no to any of those he would never have gotten this conditional use permit but he said yes to all of those but he did none of those if we if that had been if we handle that correctly we wouldn't be here today dr you know would not have been here i think now eight times so you know the history it was never finished it was never never occupied it was never used uh bill died with his lung of his cancer his wife carla finally moved sold the the uh house to dr gano building was run down then comes jeremy litchfield enterprising young entrepreneur with a yard service and he tried to run his yard service there and code enforcement put a stop to that and I think they should get credit for that but he put a let submitted a letter to our last episode back in April of last year and he's and he said that the owner that would be Aaron Jameson told me I could do retails there I could grow plants there I could have my lawn service office there could operate my lawn service out of the property and store lawn mowers there he did not tell me the property had any kind of conditional use permit or that i would need to go back so you all know the rest that conditional use was finally revoked last april the owner was not asked to remove the structure so what's changed enviro sod is gone jeremy litchfield is gone now we have another attractive, charismatic, energetic, young entrepreneur just trying to make a little money. My objections have not changed. They're about the same. An inappropriate commercial use in a questionably legal structure. This is not a farmer growing tobacco plants. If it were a farmer growing tobacco plant, she'd still have to get a conditional use permit and abide by the setbacks, particularly if he intended to sell some extra plants to his neighbor. This is not a farmer growing tobacco plants. This is a commercial retail company that supplies fish tank supplies to people who enjoy fish tank hobbyists. It doesn't require a farm to do that. He's obviously been doing it in his backyard for some time. and that next song I apologize really for even showing this because you know they the regulations and the verbiage better than I but there but the fact that adversely affecting the neighborhood comes up again and again and again I thought it just is worth showing it this also detracts not from the neighborhood but from one of Fayette County's busiest thoroughfares, one of our busiest corridors that we're trying to beautify. The view from Dr. Gonneau's front porch certainly does demonstrate that the value has decreased. The view shed from I-25, from old U.S. 25, from the scenic byways from I-75 is diminished. you know the 3,400 acres of conservation easements in the area. It borders the National Register Rural Historic District. This is not a commercial area. It's not a commercial area, although certainly sometimes it can look like it. See if you can zone in on the red portion of that. Our complaint driven enforcement system is difficult. It's a little hard to to get a handle on and to keep in control. Here's a good example of conditional use application. The applicant wanted to park trucks here, make a truck park like you see the trucks parked there to the right and also wanted to have a dog kennel there behind the old hilltop grocery you see all the kennels stacked back there and you denied it that's good so this was not allowed you can't see the date on the photograph but unfortunately that was just a few months ago and even more unfortunately that was back in almost a year ago. It was about two years ago since you denied it. Yesterday, I made a photograph, which I've not brought, and it looks pretty much the same. There's one additional trailer out front, and there's another layer of dog kennels out back. Where is that property, Mr. Martin? That's Hilltop Grocery. That's about a few hundred yards down the road from the subject property. I don't have the address it's probably on that I don't have the address can't zoom back far enough to see the ring okay she oh Mary Mary Diane has it she says she's complained about it enough she's got it all So the neighbors are working hard here for ourselves, for Fayette County, for our neighborhood, to try to clean up the southern end of Old Richmond Road. There are a lot of issues. There are a lot of issues there. Straight across from this address. Oh, yeah, straight across from 7962, whatever is opposite that. This is supposedly the address, but they call about it. They say we don't have that address. Oh, yeah, 7941. We've called about that, and they say we don't have anything there. So oversight's difficult. The objectors here have a purpose. Our purpose is not to try to make a little money. Our purpose is to protect and improve the neighborhood. We have two active neighborhood associations. We've worked hard at this project, as this board is painfully aware. We've developed scenic byways. We've dedicated thousands of acres to easements. We've obtained National Registered Rural Historic Status. The neighbors are working hard here for not just ourselves and our neighborhood, but for Fayette County. So we'll ask you to help us out a little and don't allow this commercial business in this location. Thank you. Thank you, Mr. Martin. I'm his other half. I'm Gloria Martin and I reside at 7416 Grimes Mill Road, 40515. He has already shown you the picture of the property we own directly across the street from that. It is at the corner of Grimes Mill Road and Old Richmond Road. I just want to make the point, which is not why I'm here, that it is important that we notify the neighbors and the neighborhood associations in situations like this. I think it can, in the beginning, if they've been notified, and we try to do that, and it's part of the ordinance, but you don't do it just because it's part of the ordinance. It's good because it can diffuse things ahead of the game, because then neighborhood associations can contact applicants. They can all meet, they can discuss this, and they can work some things out ahead. Unfortunately, with this piece of property, and I want to make it very clear that nobody in this neighborhood is objecting to him personally or has any problem with what his business does or what he likes to do for a living. And nothing with our staff and in-house folks. I've been at this piece of property where I live. We bought in 78 and I've lived in that spot since 1980. So I and many of the people who have objected to this in the past 10 or 11 years have been living there before the greenhouse was built. I want to say that the initial problem that started with all this was the initial applicant in 2006. Who came down here and made promises to the staff, to you all, to the neighbor who lived across the street and other neighborhood people, and then didn't do it. And part of that was because what you've already heard today has been addressed. They didn't use the deed. They didn't use the recorded plat. They drew out the drawing that I guess you put in the minutes in the record. They put in a drawing that you and I could do here on a piece of scrap paper over lunch and turned in. It was not very accurate. And they never revised it. They never gave you the correct measurements. They never told you exactly what was there. And when they built the building, they didn't do it like they told you they would do it. And over the years, yes, there were complaints. I mean, I served. I was not on the Board of Adjustment when this happened in 2006, but I did my stint on the Board of Adjustment for 10 years. I mean, I thank you for doing this. I mean, I know the time and effort it takes, so thank you. But when these people come down here and give you this information, if it's not accurate, you have nothing to hang your hat on. And this applicant did not do that. I'm not a lawyer, but I will tell you that I do come with the authorization and the request from the old Richmond Road Neighborhood Association, Mary Diane, who's the president, and her board, the Boone Creek Neighborhood Association, Melissa Brown that she's already mentioned and the Fayette County Neighborhood Association they asked me to present these findings to you a lawyer I will say no I'm not a lawyer I didn't do these but I will tell you that there are a lot in these two new in these neighborhood associations in just a Richmond Road I think there seven lawyers that belong there and they have a finger in the pies I'm going to give you pass out to you three things first you've already heard Lisa ask you to please consider revoking the variances the variances were given in 2006 were not accurate didn't meet the deed didn't meet the development plan, the plat that is recorded in the county clerk's office and did not meet the development plan they gave you. Simple math, if you added it all up it wouldn't have worked. The other thing that they want me to give you are the findings of facts to deny this particular request. And I have two pages of this that I will pass out to you. The lawyers who looked at this said, well, here's the down and dirty quick version. That's five little lines. And then here's a page of the reasons, the real reasons behind these findings. So I'll pass those to you and then I'm going to discuss it. Do I need to pass them to you or them? Thank you. I need one of those for myself. I think it hasn't made its way down to us yet. There may be one left over. Thanks. Thank you. I'm sorry, I made a dozen copies. I guess I can't count. As one of the attorneys said, here's the down and dirty version. I'll give that to you first. The proposed site plan and existing building are not in compliance with the zoning ordinance. You've already gotten that numerous times today. The existing building is not a legally non-conforming structure because the building permit, granted in 2006, was voided in 2007. That was before its satisfactory completion and inspection, and no certificate of occupancy was ever given for the building. The specific location and the configuration of the property, basically you've heard it's unsuitable for the proposed use. and the proposed use does adversely affect the area and as you've heard from the headlocks representative the that that lot in that area is basically a better better suited for residential dwelling now to the long version as you've already heard there are only two principal permitted uses one is purely solely for ag use the other is single family residential dwelling that it's a small size lot 1.486 acres and there's some question as to whether by KRS and our local zoning ordinance if this particular loose use is even considered an agricultural use because it doesn't meet the definitions for what you can have on ag property we have to go by a KRS 100 and the zoning ordinance We can't use the whole ag section in KRS. We have to go by what they tell us in zoning can be there. The intent of that zone where this request is, is actually says, the quote is, to preserve the rural character of the agricultural area by promoting agriculture and related uses and conditional uses. And then this is not. While the greenhouse is a conditional use, it has to meet all of those things, including the ag definition. I've already said the 2006 and 18 site plans don't match the deed or the plant descriptions. The easements are not on there. The current site plan that he's given you still, and it's not his fault, still doesn't because to some degree he's relied on the owner and to some degree on what's gone before because he says in his application about the conditional use. So he may have been misled, but there's still a conditional use on that property. The building permits issued were issued on the basis of the plans and the applications. When building inspection realized they weren't doing it, they voided it. Same thing was, too, with state transportation. The permits that he really needed, that you know when you go to Article 5 and it goes down through what you have to have, has to meet all of those particular, and he didn't get those. The variances they talked about have not been met, that it has been abandoned and sitting for 11 years. There's not a septic field. Retail sales are prohibited. And they very clearly have told you that the proposed use will adversely affect the surrounding residential and rural properties in a corridor organized and already recognized by the local, state, and federal government, because it's a federal national register district, for historic and scenic beauty. And it's better suited for residential. So that's the long version. Now. Ms. Martin, do you need more time? I need one more time because they've also provided with conditions. if you are interested in hearing that. I'll give you another couple of minutes. What I've given to you are conditions. I've already told you why we think it should be denied and why the variances should be revoked, but everybody there has thought about this a long time. The ordinance actually says, 8-1-D-5, that you can have a commercial greenhouse in this AR zone, but it clearly says but only let me repeat that you can have it but only when all of the following conditions are met period so the 20-foot landscape easement shall be provided doesn't say may doesn't say it says shall be provided around all buildings and parking areas A detailed site plan showing proposed screening shall be provided. A performance bond or letter of credit shall be provided. If that had been done in 2006, we might be a little better off. Now, the conditions in the staff report did a good job of adding some extra things to it that needed to be. But it also needed to say that the site plan shall be revised to match the measurements recorded on the deed and plat of record, including accurate measurements and location of the existing greenhouse and the existing trees. Because if you don't have that, you don't know what you're dealing with. The wording also needed to include that all permits shall be obtained for this property as required in Article 5 of the zoning ordinance. and comply with all the requirements of building and other regulations. Very clearly, that's KRS. So that's not something anybody's made up. It also needs to meet the ordinance up there, but only when the following, and it says all driveways and parking areas shall be paved or sealed to prevent dust. Four was fine. Five needed, we've got. No existing trees shall be removed from the property, and arterial screening shall be provided along I-75, as otherwise required by Article 18.3.A.1.4, except that no solid fence shall be required. That's straight out of the ordinance. Six is fine. Seven is fine. Eight needs to actually say that retail sales or services shall be prohibited on the property, and sales taking place on the property shall be on a wholesale basis only. That's what he says he's doing, so then that's what it ought to say. It needs the wording on number nine, needs to say that an on-site sanitary sewage disposal plan, including a septic tank and drain fuel, will be installed and approved by the Department of Health prior to using the greenhouse. I mean, that just is common sense. He's already told you he has employees. He already told you he's going to be flushing the tanks. And where are you going to flush that if you don't have a septic system? It also needs to say that no treated water from the tanks or plant debris taken from the tanks shall be disposed on the property outside the greenhouse except in refuse removal containers. And if they're going to get a container like a dumpster, according to the ordinances, they need to be screened. and in most cases they're enclosed. The one thing that's really important in this watershed and to these neighbors is that no storage tanks for flammable liquids such as gasoline, diesel, or fuel oil shall be placed on the property. Number 11, they don't want the boxes or shipping containers or the aquariums stored or left unattended on the outside of the greenhouse. There shall be number 12. These are the additional conditions, starting with number 10, that the neighborhood associations have worked on. There shall be no outdoor display or sales of the fungicides, insecticides, chemicals, peat moss, humus, mulches, or fertilizer, and that's straight out of that ordinance talking about greenhouses, which they couldn't do last time they asked. There shall be only one identification sign on the property not exceeding 10 square feet area that's in article 17 7a which when you know that article you already know that it deals the signage deals with what you can have in the rural area and this is in line with that and this is important the property shall be inspected at least once annually to verify that all conditions listed on the conditional use permit are in fact being met and if and this is right out of your ordinance in KRS and in article 7 that has to do with the Board of Adjustment if the landowner is not complying with all of the conditions listed on the conditional use permit the administrative official shall report the fact in writing to the chairman of the Board of Adjustment then there's a whole another section there that tells you how you handle that if they don't you can bring them in here and jerk their chain and do whatever else needs to be. That is the law, and that's been the law since it was built in 06. And number 15, the use in this operation shall be in complete compliance with the conditions as set forth in the permit within one year from the date of approval by the board if you were to approve it rather than deny it. Now, is there a question? Any questions from Ms. Martin? My preaching, now that I've been preaching, have you? Thank you, Ms. Martin. Any questions from Ms. Martin? Thank you. Thank you. Thank you. Amy Clark of 628 Castle Road and- I'm sorry, tell us your name again. Amy Clark of 628 Castle Road. No truer words were ever spoken than Dr. Martin saying that these are citizens who help the whole of Fayette County in their civic engagement. I have almost nothing to say. Following Gloria Martin, I agree with everything she said. I want to invite you, could you put up slide five? Why deny this permit? Some key ideas. The specific location and configuration of the property renders it unsuitable for the proposed use. And I invite you to look at this image and the details of it. These are some of the specifics of it. Second, I'd like to note that of the 20 properties between the two highways on that side of the interstate, six of which are two acres or under like this property. I found only one that's lower in PVA assessment. So if you're asking whether a commercial use is the best or even the most lucrative use for this property, the neighbors have all said it's better suited to a residential use. Finally, the main point and the thing I promise to say only what hasn't been said in my view, it seems to me the board, there's just a general inclination to regard the greenhouse, surely it's likely a nonconforming use, but to regard it as a legally nonconforming use. There's been abundant evidence that it seems not to be a legally nonconforming use, but one question you must address is whether variances could mend it that you can grant here and now. And you are not authorized to grant further variances to bring this existing building building and site plan into compliance with the zoning ordinance by saying, well, we grant a variance and it's okay. When the conditions that make it not in compliant, not in conformity with the zoning ordinance were willful, willfully they arose from the act of whoever built that building in the first So can you grant a variance to say, yes, we can cut them some slack on the setbacks and whatnot? Because it wasn't willful, it was just in ignorance. And here's what I think. I think you have two pieces of evidence that there was willful circumvention of the zoning ordinance, zoning ordinance and it is not in your authority to grant variances now to mend the situation and bring it in compliance. And the first has been abundantly documented that there was never an adequate plan presented to any of the bodies that had something to do with this building inspection plan, especially the 2006 plan which you have before you that was had inaccuracies and just was And the other reason that I think you have hard evidence that there was a willful violation is the record of building inspection, that the building permit was voided because of lack of compliance with inspections. A proper permit to create this structure was not filed an adequate permit. And then the inspections where your city officials who see that things are done right come in and see if everything is in order were not made, were not possible. and in closing i'd just like to invite you to consider i remember the art bar situation which was another situation that went on and on and on where there was a landowner and then there were successive applicants who said we're going to do something new with this conditional use permit we're going to do it right today you have an application from mr dustin wunderlich And he's asking for this permit. If it's something you decide to grant, I would invite you to consider whether to clarify that this permit is granted to that individual, Mr. Wunderlich, not a corporation, and not the landowner. And if you think that is the case, I would invite you to consider a condition, an express condition, that the conditional use permit shall not transfer but shall lapse if this owner's use of it lapses. Because even though we know variances run with the land but conditional use permits don't, What I discovered in the art bar hearings was that unless the board specifically attaches a note that the permit shall lapse with the applicant's use of it, shall not transfer, it will transfer automatically. So that's something for you to consider. You are the discretionary body that reviews this matter, and I appreciate your service and consideration for the neighbors and their welfare. Thank you, Ms. Clark. Any questions for Ms. Clark? Mr. Wunderlich, you've been sitting there listening to the other speakers. Are there any other speakers in opposition? I assume Ms. Clark was the last one, but I could be wrong. Mr. Wunderlich, you've been sitting there listening to those in opposition. Do you have any rebuttal or anything to say in response to the people that have spoken in opposition to your application? You're not required to, but you certainly can if you choose. I've got a couple of quick things. Sure. As far as my tax record with the city, you can get with my accountants on that, Bestin and Derif. I've been up to date and current on all my tax records. I do have 1099 employees. The greenhouse in my backyard is on my own personal property. The water usage would actually be re, some of it would be reused similar to what food chain Lex does with aquaponics. There's also been an existing engineering plan from Palmer Engineering regarding runoff, which was based on 3,700 square feet of pavement. I would have, I think, like 1,700. So it would be significantly less than that. and it would only be around 800 gallons. I'm Dustin of Dustin's Fish Tanks. Everything I put into my aquariums and things to grow plants are fish tank safe. Like, fish live in there with them, so there should be no concern about the watershed because my own personal fish and the reason people tune into my YouTube channel is because I have aquariums with fish in them, so there's no, like, you know, toxic anything going into the aquariums. I have zero intention of cutting down trees. I'm a tree-loving individual. by all my aquariums I mean I grow plants that's my thing so I don't have any intentions of cutting down anything as far as the on-site septic system I have spoken with the I believe it's the Board of Health and I don't believe that's required I was going to use a combustible toilet for that and then that's yeah that's pretty much it I forgot to ask you at the beginning of your original remarks whether you would agree to abide by the conditions recommended by staff in the staff report do you agree to abide by those if your application is granted yes I agree to abide by those okay thank you and I want to ask the staff in light of any of all the testimony that has been heard on this application so far if there's anything they'd like to add to the staff report or anything that they heard that would change their recommendation or alter or in any way amend the either the staff report or the conditions that they've recommended for approval of this application I know you heard a bunch I I think the conditions could certainly be amended as the board sees fit. If you all would like to add additional conditions or change any of the conditions that have been outlined already, we would certainly be open to that. But you all don't have any particular recommendations as far as adding any conditions or amending any of the stated conditions? Autumn or Jim? I think there were several of Ms. Martin's recommendations that could beef up the conditions, especially with regard to number nine about sanitary sewer, making sure that Department of Health was involved in that. There probably need to be a discussion about the null and void. generally staff doesn't like to have that condition in there if there's substantial property improvements that are required specifically to support a certain use for example if this was a new church where they're going to spend several hundred thousand dollars building a new church and some other church wanted to come in later with another conditional use it wouldn't make a lot of sense for us to say no if they were going to agree to abide by all the conditions that were originally adopted so there would need to be some discussion about the merits and the fairness of having that null and void condition i don't have an opinion either way at this point on that but yeah need to be discussed i think that's a good point i think that's a valid point in order to be consistent with other applicants besides this one we need to i guess maintain our consistency and take take a broad view um is there anything else to be presented to the board uh mr uh gaffield you did you have a additional comment to make if you do come up come up to the microphone if you would please i just wondered if i could rebut or at least ask mr wonderlick a question if he's if he's filing 1099s for his employees who essentially are you you know, boxing and shipping things that would make them independent contractors, I think legally. So I'm asking him if his employees are independent contractors and if he could explain why. Well, quite frankly, that's probably outside the scope of the questions that are under consideration. Before the Board of Adjustment, there might be another or a different venue, which that might be appropriate, but probably not here. Ms. Clark, I see you approaching. In response to the staff's concerns about the null and void condition when there's a substantial investment, two things. There's a real question about whether that substantial investment is in compliance and duly created, or whether it's in fact an illegal nonconformity. Second, Mr. Wunderlich is here. He has presented a business plan, all the terms and conditions, what he's going to do. He's engaged to use this property in this way. The landowner is not present. He has made no assurances. There have been difficulties in the past with this landowner. I think it's right in this instance to say that our conditional use permit, if you choose to grant it, is with the applicant in his person because he's here and he's engaging to use the property in this way. Thank you. Thank you, Ms. Clark. Is there any further discussion, any questions that the board has, either of applicant or anyone or staff? Yes, ma'am. I have a question for the staff. are we addressing the issue of the permit in that condition too I mean is that sufficient to address the issue of the original structure not being in order to obtain the certificate of occupancy building inspection would have to sign off on the building being appropriate for a certificate of occupancy so one of the applicants next steps would be to go to building inspection and have an inspection done and go through that process okay so the validity of that and the permit ability of the structure falls into that court not into ours correct correct okay and I think quite frankly number two condition number two is pretty important part of the part of the application part of the conditions mr. wonder look you had a had your hand up there come up to the microphone if along the lady's last point i would like to have kind of an outline if there is going to be an approval what any sort of things um you know will need to be met my deal with the seller is contingent upon a approval of this so if there's x y and z steps that need to be added to get this approved i would love to have those clearly outlined and what that takes because uh if my deal is basically null and void if this is not approved so i would like to have that kind of outlined if this is going to happen you're going to need x y and z done so then i can go back to the seller and make good on all these conditions yeah the uh uh i think that's a reasonable question the the uh the board has the authority to modify the conditions uh if it chooses and then both the application up and down and then what you do with it after that is is up to you so we uh it seems to me that uh that this uh this piece of property has been has been problematic for several reasons for the uh for its location uh primarily it's a it's a small and difficult uh piece of property it's certainly not suitable for a farm because of its size it doesn't seem to be suitable for a residential because of its location between two two highly used highways i wouldn't live there but the i can see the problem the staff had with trying to figure out what to do with this application It seems to me that because this is such a unique site that it's certainly not unsuitable for any use. If it were, that would probably be a taking of some kind, and we're not in the business of just taking property by denying all uses of it. So I think the staff seem to have worked hard, given the length and the detail in the staff report, they seem to have worked hard to try to recommend approval for this problematic site by imposing the conditions that the staff has proposed. And I went through the list that Ms. Martin proposed, actually both lists, and they're quite frankly more it seems to me embellishment of the conditions that the staff has recommended as much as anything but i do appreciate the the effort that went into preparing those additional proposed conditions there are a lot of things that could be written into the conditions that may not have been here, but sometimes we make the mistake of trying to over condition or over regulate businesses and we certainly don't want to do that. That's not the business that we're in. I think also we need to take into account and be cognizant of the, as several people have said the the thoughts and feelings of the neighbors who are who live nearby or close to and and in this in this neighborhood i think those some of the issues that were raised in opposition to this application raise valid points um uh however the uh however i don't think this property as it sits in its current condition is a benefit to the neighborhood. And if somebody has a plan to fix it up and to try to make it work, it's my inclination to want to give them the opportunity to do so. I think the stringent screening requirements in the staff report are probably sufficient, if they are abided by, to screen this property from the neighbors. And so that, and combined with the other conditions that the staff has proposed, which are probably about twice as many as we impose on any other application for conditional use, are probably sufficient to make this property into a usable piece of property. I know that there is a feeling that this property is not suitable for any use at all, but a lot of the opposition, I understand, are people who, neighbors, concerned neighbors, who don't want this rather unsightly piece of property in their backyard, and I appreciate that. There are a lot of pieces of unsightly property in this neighborhood, the Vulcan materials across the street, the piece of property that Mr. Martin said that was down the road. We take these one at a time. so I want everybody here to know that that we have heard all of the testimony we've appreciated the effort that's been put into evaluating the application by the staff and the board doesn't take its duties lightly we are a volunteer board we're members of the community as well we take our responsibilities as members of the community seriously as well. I don't know what the outcome of this application is going to be, but my inclination myself is to vote in favor of it. With that being said, I'll entertain either comments or emotions from the board. I think the board knows me well enough that I probably have my own opinions. So I might as well express them. In the first place, I appreciate what the applicant has done, and I appreciate the ideas behind it. I think the biggest problem that we all have to consider is that this structure should not be there in the first place. And that's what, no, no, no, no, no. that's what the neighborhood is concerned about and I understand that that came up last April and I think what a lot of us would like to do is get rid of it because it doesn't belong in the neighborhood perhaps particularly so if we if we can if we say that the building shouldn't exist that that's one thing but that's not something this board can do right now that's not that's not our purpose It's not something we can do. But it just seems like to me that to approve the use as it's been suggested simply gives credibility to this building. And even in its proposed conditional use would be an adverse impact on this neighborhood. And I feel that very strongly. And I see all the arguments, pro and con, and frankly, I hate to say to the applicant that it's not good enough because I don't think the applicant is the problem here. I think the problem is the building, and it's in the wrong place, and it's improper. It should never have been there in the first place. And the residents seem to think that it would be a better home site. I actually can't agree with that. If you look at the map, you'll find that this is the most narrow part of that piece of land between Old Richmond Road and the interstate. It's probably not a good place for a resident. Nevertheless, I think it's not a good use of this property, and if we could magically make the property, the building, disappear, I think we'd all think that would probably be a good idea. But I would have to vote against this because I don't think it's appropriate. Thank you, Mr. Chair. Thank you, Mr. Clark. Anybody else have comments or suggestions? If not, I'll entertain a motion. Sure. Turn your microphone on so we can. Are there two different motions? Because one was approving the conditional use and then one was the approval of a lesser variance. Are those two different things? I think the application is one application. There's an application for a conditional use and a variance as well. Am I reading that correctly? yes they're requesting a variance and a conditional use i believe you could move to either approve or disapprove both or you could separate it out if the board desired to approve one and not the other yeah we could and i think that's a correct reading there's an application for conditional use and an application for a variance the application for the variance has been recommended by staff to be denied and they've imposed and that's that has to do with the landscaping easement so i think i think if you i think i think if there are a motion to approve the application for a conditional use it would it would uh it would and it's in keeping with the the staff's recommendation, it would also include as a part of that motion an application to deny the request for a variance. But you could, since the request, or we could do it several ways, or there could be separate motions, one for the conditional use and one for the variance. If you wanted to combine it into approval of both and the one motion, it would be approval of the conditional use and a partial variance as described in the staff report with the reference to conditions yes and that's the third way i think if you if you if you approve the if you want to pr if you want to move to approve the recommendation of the staff that'd be a third way Mr. Chair, I'll make a motion. Okay. Relative to PLNBOA 1791 by Dustin Wunderlitz, I move to deny the request for conditional use and the variance permits to establish a commercial greenhouse and a variance to eliminate the required landscape easement in the agricultural rural AR zone at 7. 524 Old Richmond Road. So move. Do you have grounds for your motion, Mr. Clark? Grounds for my motion. It's inappropriate use in this particular site. Thank you, Mr. Clark. Do I hear a second? I'll second. Thank you, Mr. Needham. Motion's been made and seconded. All those in favor say aye. I'm a little confused. Usually we talk to our, when we have findings of facts that we want to disapprove, and we discuss it with our law department, is that something that we'd want to do at this point before we go any further with disapproval? well what say you law departments do we need uh do we need greater detail on a motion to deny an application than what mr clark has stated it would be wise yes to have more detail i think if you're going to deny it just for the record with uh with the permission of the uh of the board i I wonder if we could take a five-minute recess and come up with written reasons for denying, if that's the will of the board, or not, if the motion passes. I'd like some findings of fact. Okay, let's take a five-minute recess. Okay, the board is back in session. on the floor. Mr. Clark, I'm going to ask if you don't mind if you would restate your motion so we'll have a record of it, if you don't mind. Please. I move to I move to disapprove PLNBOA 1791. Dustin Wunderlich requesting a conditional use permit to establish a commercial greenhouse and a variance to eliminate the required landscape easement in the agricultural rural AR zone at 7524 Old Richmond Road. based on the following facts number one the specific specific location and configuration of the property render it renders it unsuitable for commercial greenhouse use because of site restrictions related to the size and shape of the property number two the submitted applications does not comply with conditions of a commercial greenhouse in the ar zone specifically article 8-1-D-5-A-F. I'd like to make a second motion regarding the... Let's make it Part B of your original motion. That way we don't have to vote on one. Okay. Part B is disapproval of the requested variance based on the staff recommendation that granting the requested variance would result in an unreasonable circummuneration of the requirements of the zoning ordinance because there are no special circumstances that justify the total elimination of landscape easement. So move. Thank you, Mr. Clark. Do we have a second? I'll second. Thank you, Mr. Needham. All those in favor, say aye. We have a vote. Oh, I'm sorry. We vote electronically. Jan, is it recording this? Mine's not recording. Okay, there we go. The votes are in. The votes are three yeas in favor, three nays opposed. It's a push. So what? What fails? If it's a tie, what fails? the motion was just the motion that was put on the floor fails because it's a tie fails for for a lack of a affirmative vote okay now what yeah the mo so the motion uh the motion to deny the application for the conditional use and to and to approve the staff recommendation for denial of the variance has failed. Tracy, we're in no man's land as far as I'm concerned. Well, you can make another motion. However, I can't predict one way or the other, but you're three to three. So I'm not sure. where that's going to take you. If we took a motion, if we had the motion from the other side, my presumption is we'd still be tied three to three. So if the board is deadlocked on an application and can't approve it, can't deny it, what's our authority? Mr. Marks is. Then the requested appeal is not granted. The request for the conditional use is not granted. The request for the variance is not granted. So the application itself fails. I mean, I think that's correct, because either way, you're going to have a tie, and it's going to produce a failed vote. So let me ask you a couple of questions about that, Because that means, in effect, the board has taken no action on the application, or has taken no affirmative action. How do we read that? I think you would be best served to address that question by putting the opposite motion on the floor and taking a vote, even if it produces the same result. Okay. It may not, but I'm expecting that it might, because then you have taken action on two different motions, and on both of those motions, there's failed to be a positive vote either way on the motion. I don't know what the filing times were or anything, but that may be the safest way to avoid any kind of an argument that you just didn't take any action. Yeah. Okay. Thank you very much. Ms. Carter, you want to make a motion? I will. I'll make a motion on PLNBOA 1791, Dustin Wunderlich. I make a motion that we approve his request for a conditional use permit to establish a commercial greenhouse and a partial variance as described by staff to eliminate, and a partial variance to eliminate the required landscape easement in the agricultural zone at 7524 Old Richmond Road, pursuant to the staff recommendations for the approval of conditional use, and also pursuant to the staff's recommendations of the approval of the lesser variance in the conditions 1 through 9 that the staff has outlined that must be met by the applicant. Thank you, Ms. Carter. Do I hear a second? I second the motion. Thank you, Ms. Whitman. All those in favor, let's register your vote. Okay. Tied 3-3 again. So this is how do we end this process? We've taken votes on both sides of the paper. How do we, other than a motion to adjourn, what do we do with this particular application? Ms. Jones. We're double-checking your bylaws, but I don't know that there's anything else you can do, but hang on one second. All right. Thanks. Give us a couple of minutes. Thank you. Thank you. It looks to us in the bylaws like all of your votes are required to take effect by a majority vote. So in either case here, you don't have that. So I think you have all motions have failed, so it's not approved, not disapproved. It's just not approved. It's not going forward. So you're saying that on this application, 17-91, the application has failed because it's failed to garner a majority vote of the board? I believe that's correct, yes. Okay. All right. I accept the recommendation of counsel that the application, not having received an affirmative vote of the sitting members of the Board of Adjustment, the application itself has failed. Now, what that means, I don't think that the failure of the application triggers, for example, the one-year requirement for somebody to reapply under different conditions or something like that because the application itself didn't receive a negative approval, disapproval. It didn't receive disapproval either one. So I'm going to make a statement for the record that I don't think that the failure to approve the application triggers the requirement in the regs or the statute that he can't reapply with different conditions within a year. Am I out of bounds by saying that? I don't know that I can't think of a situation where we've had this come up before, but that may be correct. We probably just have to take a look at it when it comes in. It has come up before, and the determination then was that since it wasn't formally disapproved, that the applicant could reapply at any time. Yeah. So I think that's what a non-approval means. It would to me and it probably would to a judge. So that being said, that concludes the business of the Board of Adjustment. Let me see if there's any other. I don't see any other items on our agenda for today. Is there anything else from the Board of Staff? Just to announce the next meeting date. The next meeting date will be February 12th, and I'll entertain a motion to adjourn. So moved. Second. Second. All in favor say aye. Aye. Meeting adjourned. Thank you.