# Board of Adjustment - February 10, 2020 > Auto-transcribed civic record · February 10, 2020 - **Permalink**: https://meetings.lexingtonky.news/meeting/4942 - **Source video**: https://lfucg.granicus.com/player/clip/4942?view_id=14&redirect=true - **Date**: 2020-02-10 - **Last revised**: February 10, 2020 - **Length**: 18,456 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 Division of Planning Zoning Compliance Section Board of Adjustment convened on February 10, 2020, at 1:30 PM in the Council Chambers at 200 East Main Street in Lexington, Kentucky, with Branden Gross presiding as the meeting officer. The board addressed three agenda items during the session, all involving land use matters requiring board review and decision. The meeting focused on two conditional use requests and one neighborhood association appeal. The board considered PLN-BOA-20-00001, a conditional use request from PVO LLC, which was ultimately denied. They also reviewed PLN-BOA-20-00002, a conditional use request from Diamond Ponds, which received board approval. Additionally, the board heard PLN-BOA-20-00006, an appeal brought by the Pensacola Park Neighborhood Association, which was denied. Throughout the proceedings, the board conducted four formal votes on various motions related to these agenda items. Two members of the public provided comments during the meeting's public comment periods, offering input on the matters under consideration. The session demonstrated the board's role in reviewing land use applications and appeals, with mixed outcomes reflecting the board's careful consideration of each case's merits and compliance with zoning regulations. ## Attendance **Present:** • Branden Gross • Raquel Carter • Joan Whitman • Harry Clarke • Chad Needham **Absent:** • Janice Meyers • Thomas Glover **Late:** None Five members were present for the February 10, 2020 meeting, with two members absent and no late arrivals recorded. ## Votes and Decisions The board conducted four votes during the February 10, 2020 meeting [timestamp: 00:00]. **Meeting Minutes Approval** Harry Clarke motioned to approve the minutes of the January 13, 2020 meeting, seconded by Joan Whitman. The motion passed unanimously with all five members voting in favor: Branden Gross, Raquel Carter, Joan Whitman, Harry Clarke, and Chad Needham. **PLN-BOA-20-00002: Diamond Ponds Nursery Expansion** Harry Clarke motioned to approve Diamond Ponds' request for a conditional use to expand an existing plant nursery, seconded by Joan Whitman. The motion passed unanimously (5-0) with all members voting in favor. The approval was subject to three conditions regarding construction and permits. **PLN-BOA-20-00001: PVO LLC Home-Based Business** Raquel Carter motioned to approve PVO LLC's request for a conditional use for a home-based business, seconded by Chad Needham. The motion failed unanimously with all five members voting against: Branden Gross, Raquel Carter, Joan Whitman, Harry Clarke, and Chad Needham (0-5). **PLN-BOA-20-00006: Pensacola Park Neighborhood Association Appeal** Raquel Carter motioned regarding the Pensacola Park Neighborhood Association administrative appeal, seconded by Joan Whitman. The motion failed on a 3-2 roll call vote. Members voting in favor were Branden Gross, Raquel Carter, and Joan Whitman. Members voting against were Harry Clarke and Chad Needham. The motion required four votes to pass. ## Public Comment Two speakers addressed the meeting during the public comment period. **Amy Clark** [timestamp: 00:00] expressed concerns about the accuracy and completeness of records and the process followed for citizen participation. Clark raised questions about whether proper procedures were being followed to ensure public input was adequately documented and considered. **Mark Streety** [timestamp: 00:00] spoke on behalf of the Lexington Urban Neighborhoods Alliance in support of the Pensacola Park Neighborhood Association. Streety advocated for the appeal under consideration and specifically requested that the city adhere to the established H-1 overlay process. His comments focused on ensuring proper compliance with zoning procedures and supporting neighborhood association concerns. Both speakers addressed procedural matters, with Clark focusing on record-keeping and participation processes, while Streety emphasized adherence to specific zoning overlay requirements and neighborhood advocacy. ## Contested Items The meeting featured one contested item that resulted in a split vote among board members. **Pensacola Park Neighborhood Association Appeal** The primary point of contention involved an appeal by the Pensacola Park Neighborhood Association that centered on complex legal interpretations regarding the effective date of the H-1 overlay. The disagreement among board members stemmed from differing views on how to interpret the timing and application of this zoning overlay designation. The appeal required the board to navigate intricate legal questions about when the H-1 overlay provisions would take effect and how they should be applied to the specific circumstances of the case. Board members were divided on the proper interpretation of these regulations, leading to extended discussion and debate. The split vote among board members reflected the complexity of the legal issues at hand, with members taking different positions on the appropriate interpretation of the H-1 overlay effective date requirements. The contested nature of this item demonstrated the challenging balance between regulatory compliance and practical application that the board must navigate in such appeals. The outcome resulted in a divided decision, highlighting the nuanced legal considerations that can arise in zoning and overlay district matters, particularly when timing and effective dates of regulations are central to the dispute. ## PLN-BOA-20-00001: PVO LLC Conditional Use Request [timestamp: 00:00] The Board of Adjustment considered a conditional use request from PVO LLC for a home-based business offering lash extensions and microblading services. Olga Parshenkova served as the key speaker for this agenda item. Staff recommended disapproval of the conditional use request due to restrictions outlined in the zoning ordinance. The proposed home-based business would provide cosmetic services including lash extensions and microblading, which raised concerns about compliance with current zoning regulations for residential areas. The application faced challenges related to the nature of the proposed business operations and their compatibility with existing zoning requirements for home-based enterprises. Staff analysis determined that the requested use did not meet the necessary criteria for approval under the current ordinance provisions. Following discussion of the staff recommendation and consideration of the zoning ordinance restrictions, the Board of Adjustment denied the conditional use request from PVO LLC. The denial was based on the business's failure to comply with established zoning standards for home-based operations in the applicable district. ## PLN-BOA-20-00002: Diamond Ponds Conditional Use Request [timestamp: 00:00] The Board of Adjustment reviewed application PLN-BOA-20-00002, a conditional use request from Diamond Ponds to expand an existing plant nursery operation. Matt Hill served as the key speaker presenting information on this agenda item. The request involved expanding the current nursery facilities at the Diamond Ponds location. Staff conducted a review of the proposed expansion and determined it met the necessary criteria for conditional use approval under the applicable zoning regulations. Following their analysis, planning staff recommended approval of the conditional use request, subject to specific conditions designed to ensure the expanded operation would remain compatible with the surrounding area and comply with relevant development standards. The Board of Adjustment approved the Diamond Ponds conditional use request as presented by staff, accepting the recommended conditions for the nursery expansion project. ## PLN-BOA-20-00006: Pensacola Park Neighborhood Association Appeal [timestamp: 00:00] The Board of Adjustment considered an appeal filed by the Pensacola Park Neighborhood Association regarding case PLN-BOA-20-00006. The association challenged the Division of Planning's approval of a development plan and issuance of construction permits for a project within their neighborhood. The central issue in the appeal centered on whether the H-1 overlay district regulations were in effect at the time the permits were issued. The neighborhood association argued that the H-1 overlay should have applied to the development, which would have imposed additional restrictions or requirements on the proposed construction. Key speakers during the discussion included Jessica Winters and Bruce Simpson, who presented arguments regarding the application of the overlay district and the timing of the permit approval process. The appeal represented the neighborhood association's effort to challenge what they viewed as an improper approval by the planning division. The association contended that the development permits should not have been issued without proper consideration of the H-1 overlay requirements that they believed were applicable to the property in question. After hearing the presentations and considering the arguments from both sides, the Board of Adjustment denied the appeal. This decision upheld the Division of Planning's original approval of the development plan and construction permits, allowing the project to proceed as initially permitted. The denial of the appeal means the development can move forward under the terms of the permits as originally issued by the planning division, without the additional restrictions that would have been imposed under the H-1 overlay district that the neighborhood association sought to have applied. --- ## Decisions - **Motion** — passed (5-0): Approval of the minutes of the January 13, 2020 meeting - **PLN-BOA-20-00002** — passed (5-0): Diamond Ponds request for a conditional use to expand an existing plant nursery - **PLN-BOA-20-00001** — failed (0-5): PVO LLC request for a conditional use for a home-based business - **PLN-BOA-20-00006** — failed (3-2): Pensacola Park Neighborhood Association administrative appeal --- ## Full transcript You had to have the last word last night So much fun to be around You had to have the front page full tight You had to be a big shot last night Oh, oh, oh, oh, oh, oh Oh, oh, oh, oh, oh, oh Oh, oh, oh, oh, oh, oh, oh Oh, oh, oh, oh, oh That's no big sense Just make it two cents and if you know when to leave it alone. But you went over the line, you couldn't see it, it was time to go home. No, no, no, no, no, no, you had to be a big shot, did you? You had to open up your mouth. You had to be a big shot, did you? All your friends were so knocked out. You had to have the last word last night. So much fun to be around. You had to have the white hot spot light. You had to be a big shot last night. Oh, oh, oh, oh, oh. Oh, oh, oh, oh. Oh, big shot. Big shot. Big shot. Big shot Big shot Our love is unconditional We knew it from the start I see it in your eyes You can feel it from my heart From here on after Let's stay the way ¶¶ Thank you. Thank you. The End Thank you. ¶¶ Thank you. Good afternoon, everybody. Today we are going to have the Board of Adjustments meeting for February 10, 2020. Some items to keep in mind before we start. number one if you want to speak today please make sure you go ahead and sign in for us there's a sign in sheet underneath mayor pettit's portrait if you have a cell phone please turn it on silent or off I will swear you in if you plan on speaking today so we'll take care of that in a minute generally if the staff has recommended approval which we have one disapproval one approval for For approvals, the applicant will speak first, and then for disapprovals, we'll have the staff speak. I do know we have an administrative appeal. I'll have the staff talk to us first to give us some of the facts on that appeal before we start it. I do reserve the right to put time limits. I know a lot of people, we appreciate the fact that you come down, you want to testify, but you're going to be testifying to the same thing your other neighbors did. We try to keep the redundancy down. but everyone here is welcome since the public forum to come up to the podium and testify. But do not approach. Don't talk from the crowd. Don't raise your hands. If I recognize you, I'll invite you up, but otherwise, just please stay put. Do we have letters today either way on these cases? We have one letter for the first case, PVO, LLC. In opposition? Opposition. Okay. so mark that as a letter okay all right so what we'll do is I'll start calling going through the agenda the first item on the agenda is approval of the minutes from our January 13th 2020 hearing those were disseminated by staff has everyone had a chance of an opportunity to review those on the board and if no one has any revisions I'll entertain a motion to approve. Move approval. I second the motion. If there's no discussion I will call the vote. All right, that passes. Here we go, Ms. Whitman. Keep the sign there. Okay, the second item I'm going to do is, is there anyone who would like to withdraw or postpone their application today? All right. Hearing none, what I'll do is I'll call the first case. Actually, no, I'll do the swearing in of witnesses. If you plan on speaking today, please stand and raise your right hand for me, and I'll swear you in. All right. Do you swear to tell the truth, the whole truth, and nothing but the truth? Thank you very much. Okay. So, unfortunately, nobody has decided to postpone or withdraw, so I will now call the agenda. and the first case is a conditional use permit and it's PLN BOA 20-1 PBO LLC related to 218 Jesland Drive. Applicant present? Thank you, ma'am. Is there anyone here who wants to speak on this matter? All right. So what we'll do is I'll call you back up when it's officially time to start your case. The next item is PLM BOA 20-2 Diamond Ponds, 4440 Athens Boonesboro Road. Is applicant present? Thank you, sir. Is there anyone here who wants to be heard on this case? All right. You'll be the first one I call then since there is no opposition. Okay. The next item is administrative appeal. That's BLM BOA 20-6 Pensacola Park Neighborhood Association regarding 86, 90, 94, and 98 Penn Moken Park. Is the applicant present, appellant present? Yes, ma'am. And the appellee, which would be the owner, Mr. Jones is here. Okay, is there anyone else here that wants to speak on this matter today? All right. I'm assuming people are going to watch and listen to it. I will say on this one, staff has presented us with a fact sheet. Have you given that by chance, copies of the party to Mr. Jones and Ms. Winters? Yes, I believe they've both received copies of that. Okay, perfect. So what I'm going to do on that case, two things. Number one, I want to mention that I was called by somebody from the Neighborhood Association before the H-1 overlay was in place. They asked me if I would represent them. I gave them a price. They never called me back. So I just wanted to disclose that to anyone. I don't think, I do not feel that I need to recuse myself from this case, but I'll let you guys think about it. You can, if you want to come up and make an argument that I should before the hearing, that's fine. I just wanted to disclose that to everybody. So what I'd like to do is if you receive the staff's fact sheet, I'm going to have the staff present that prior to the arguments. So I would like to at least get to the point where we're all on the same page on what the facts are. So if there are ones you disagree with, you guys agree with, it'd be great if you guys would just say, yes, I'm fine with A, B, and C, but we dispute D. That would kind of move the hearing along a little bit. All right, so that one needs to be heard. Okay, so the first case I'm going to call up is PLNBOA 20-2 Diamond Ponds regarding 4440 Athens Boonesboro Road. Come up, sir. How are you doing today? Good. The staff has, well, first off, please state your name for the record. Matt Hill. Mr. Hill, do you own or are you affiliated with PVOLC? Nope. Sorry. with Diamond Ponds. I work for them. Okay. Are you authorized to bind them as their authorized representative? Yes. Okay. The staff has recommended approval today. That approval is based on you and your principal agreeing to three conditions. Have you seen those? I have not. Okay. If we could show those to him, please. There are three items, and essentially you and the owner need to agree to abide by these three with the staff's recommendation of approval. If you don't want to agree with them, then we'll have a discussion on that. Yes, we agree. Thank you, sir. That always makes my life easier. The board, does anyone have any questions for the applicant regarding this application today? And if there are none, then I would, of course, always entertain a motion to approve or disapprove the application. Mr. Chair, I'll make a motion to approve PLNBOA 20-2 Diamond Ponds, requesting conditional use to expand an existing plant nursery in an agricultural rural zone on property located at 4440 Athens-Boonesboro Road, based on the staff recommendation and subject to the three conditions as listed. So move. Thank you, sir. I second the motion. Thank you. First and second. Any discussion on this motion? Well, hearing none, then I would bring it to a vote. Bear with me here. I've got to pull that screen back up. Okay, the application was approved. Good luck with the project. Thank you. You're welcome. And this brings us to our next case, which would be PLNBOA 20-1 PBO LLC regarding 218 Jessalyn Drive. Please, ma'am, come on up. You can just state your name for the record for me. Yes, it's Olga Parsenkova. Thank you, ma'am. And so the staff has recommended this approval today, and we've got one letter. So if you want to have a seat in this first row, I'll have the staff come up and give us a presentation, and then we'll give you an opportunity to speak. And Autumn, if you could give us a couple minutes, we'll get this letter a little further down the line. Thank you. Thank you. This application is a conditional use for a home-based business for lash extensions and microblading and other esthetician services to be provided by a licensed esthetician. in a single-family residential zone at 218 Jessalyn Drive here you'll see an aerial and a photo of the residents the applicant does not plan to alter the property in any way to accommodate the use but will use existing rooms in the house for their consultations the two rooms are in the back of the house and the clients would utilize the back door the applicant states that there's plenty of room to park in her driveway. She plans to see two to five clients per day, Monday through Friday, and will not have any employees. Appointments will be between 9 a.m. and 5 p.m., with scheduled gaps in between, so that there's not any clients waiting. So with this application, the biggest issue that we saw was that in our ordinance, beauty parlors parlors and barber shops are specifically prohibited as home-based businesses so the question here is whether or not esthetician services are substantially similar to those types of uses the frequency of abuse two to five customers from nine to five is perhaps a little bit more intense than some of the other home-based businesses we've seen but is not an outstanding number but the bigger issue is the particular use. So I've included this slide here showing some of the general services that estheticians provide. Under KRS as regulated by the state there are differences between beauty salons and aesthetic salons based on the services provided. However our ordinance does not define beauty parlor or salon so we went with some more standard definitions pulling from Merriam-Webster and dictionary.com and ultimately our assessment was that the services that are being provided are services that are substantially similar to those of a beauty parlor and could could take place in a beauty parlor so we have recommended disapproval based on the language in the ordinance that specifically prohibits that use. Do you have any questions? I'm here to answer. Do we have any questions for Autumn? This board's never seen an esthetician application before. Correct. The most similar application was a couple of years ago before the home-based business changing the ordinance was passed for a lash extension in the home. and that application was withdrawn before the board actually heard it because the applicants HOA did not approve of that business operating from the residents. So we actually didn't hear that. Our staff did recommend disapproval for the same reason that we're recommending disapproval today. And just to clarify, we use the term beauty parlors in our ordinance. we don't define it but then the state uses the term beauty salon correct the state uses beauty salon and esthetician salon and they are they're different listed uses under both of those beauty salon being more along the lines of cosmetology which is more makeup and hair related esthetician work is as my understanding more related to skin care and are do we defined in our ordinance anything cosmetology anything like that so I guess would the staff's position be that the term beauty parlors is broad enough to capture both beauty salons and that's I'm not gonna say the other words I'll mispronounce right that's that's the assumption that that we've made and what we're basing are but that would be up to your all's purview to determine whether or not you agree with that assessment and then what about if someone came in that they wanted just a nail nail would that fall any beauty parlors also okay I think that makes sense right I appreciate any other questions for autumn or the staff this legal wanna mention thing before we have the applicant in okay ma'am if you want to come up hello again and I want to apologize in advance I don't have a PowerPoint slides a lot of people don't so don't worry about it all right but I I'll try to be clear and if you have questions just ask me. So my house was presented it's in Glendover's neighborhood and just a little note I don't have a esthetician license just yet but I should have them in about six weeks. I'm going to school here here in town to get my esthetician license and you know there's there's certain services we practice in the school so my primarily focus has been less extensions and it's a very popular service here lately last few years. So I've been practicing on friends and family and my classmates and they loved it and now when I'm going to be out of school in about four weeks you know they're all asking me so where do we come Olga? Where can we get our LESH extensions done? And I started looking at my options you know either to rent a place or go work for somebody. Well I'm limited with my schedule because I have a four and a half year old and you know we go all kinds of activities after school and his school was only part-time. So if I go and get a job somewhere as a statistician I'm going to be really limited because my son's activities. So I met somebody in school she lives in London Kentucky though she's got her esthetician services provided at her house and it actually has been approved through local zoning and planning that made me think. I did call to cosmetology board of Kentucky and you know and I asked them what needs to be done well they were the ones told me to go for you guys first and if I get approved here but then I call them and I organized an inspection with them I believe and the health department here in town so this is my first step I do understand you know how some of my neighbors might don't like the idea of having, I wouldn't call it salon, of having a business other than, you know, residential in our neighborhood. But at the same time, I would argue that the same things a business would create in a neighborhood, you know, it's not going to happen with what I'm trying to do here. So I would try to compare a salon I go to. I go to two salons. One is for cosmetics and one is for my hair. They both ironically called Privé, Privé Salon and Med Spa. To my potential lash bar, I would call it Auger's Lash Bar. Well, none of them offer lash extension services, neither cosmetics place, neither the hair place. They also have multiple amount of employees. Well, I'm not going to have any employees. Also, the level of customers they accept every day is not comparable to what I'm going to have. Therefore, you know, my place is not going to increase the amount of traffic in the neighborhood. Well, their businesses definitely have special parking, you know, and a lot more food traffic in and out. First noise, I can see this being a huge concern. I can't imagine how services I'm planning to provide going to create lots of noise. In fact, during two-hour lash service, I try not to talk as much because I like to focus. So there's not going to be any noise. As far as smell and chemicals, the only chemical really I can picture is a cream during facial and a cleanser so there's not going to be any harsh chemicals I can imagine would provide you know that smell in my house or for my neighbors especially as first equipment the biggest piece of equipment I could think of is the one for service called microdermabrasion it's about a size of large textbook I guess if I can pair it's about this size I can carry my hands and take it to next So it's not large and it's not noisy. It's basically a vacuuming top layer of the skin from clients. Last for one hour. What else? I talked about parking. Things like even advertising. I'm not planning to advertise just because I'm mostly gonna be oriented on my friends and friends of my friends. And I'm not trying to have lots of customers so I don't see necessarily to advertise. So also this part is not gonna be there. Alright, just one more thing, kind of concluding. There is no requirement by cosmetic state board that lash extensions has to be performed at the licensed salon. So that's more about how I'm not going to be a salon. I think that's all I have comparing what I'm trying to do with a salon, and therefore, I don't think what I'm trying to create at my house, in one room in the back of my house, is going to be almost anything like salon, with all of the concerns regular salon would bring in the neighborhood. I think that's all for me. Thank you very much. Anyone have any questions for the applicant? All right. Do you want to have a seat? Thank you. I guess we'll close on the public portion. Is there anyone who wants to make any comments, or are we ready to make a vote? On a motion, I mean. Thank you. Question from the board. There is no one else here to speak on this application? Okay. My notes are right. Okay. Okay. I move that PLNBOA-20-1 PVO LLC request for conditional use for a home-based business, lash extensions, and microblading in a single-family R1C zone on property located at 218 Jessalyn Drive be disapproved for the reasons asserted by staff. Is there a second on the motion? I second. Is there any discussion on the motion before I call a vote? Hearing none, then I'll call a vote. So, ma'am, your application was denied by the board, which means you cannot have the home occupancy business that you proposed. Good luck if you have any more questions the staff can help you in the future Okay, so this takes us to PLN BOA 20-6 Pensacola neighborhood association I did note that I believe mr. Simpson's representing the homeowner Okay So I saw mr. Simpson has come in so what I will do since I I see everyone's represented by council I'll go ahead and have the staff come forward and give us their portion and then we'll let everyone else start. I would like to keep the attorneys to 20 minutes each and then there'll be an opportunity for the appellant to do a response at the end and of course if we have neighbors want to come up we'll limit their comments to three minutes apiece. Thank you. All right I'm going to present our timeline and fact sheet for this application and then I think that law will have something to say after that. This is a third party administrative appeal to contest the division of planning's issuance of a final development plan, a final record subdividing 1847 Nicholasville Road, as well as the division of building inspections issuance of construction permits for the four properties that were subdivided. so this application there are several moving parts here so about a year ago a zone change was approved from a single-family residential zone to a planned neighborhood residential zone for property at the corner of penmoken park and nicholasville road formerly 1847 nicholasville road at that time a final development plan was filed with the zone change and approved for a townhouse development. Subsequently, the applicant filed an application to subdivide the property into four single-family lots and change the plans from townhouses to four single-family homes. That application was initially filed in May. Concurrently with this, the neighborhood began going through the process to get a historic overlay zone placed on the area. You'll see here the purple area is the now past Pensacola Park historic overlay zone which does include the subject property seen by the green star here this historic district overlay was approved on December 3rd 2019 however the ordinance placing that into effect was not made available to LFUCG divisions and departments until December 26 2019 so there this time period is is what's causing us a problem here basically to to get at what the historic district overlay does whenever this is in place any new construction has to go before the Board of Architectural Review to meet certain standards for design to make sure that it's in keeping with the historic character of the neighborhood so what happened was that the final record plot was certified on December 6 2019 creating the four lots it's important to note here that while the applicant has asserted that the final development plan and final record plat were issued in error those are two actions which do not require historic preservation approval they would not go to the Board of Architectural Review regardless so that's really a separate issue and there's there's no reason for those who have not continued on. Could you rewind one more? Repeat that for me. I was taking a note. I'm sorry. The record plat was certified on December 6th. The applicant or the appellant in their letter of appeal did assert that the final record plat should not have been finalized. However, that is not something that is subject to historic preservation review as part of the H1 overlay, so that is not correct. However, building permits were issued for the four lots between December 12th and 16th. Real quick. Record plant and the development plan? The development plan was approved initially with the zone change, and then there were some changes that were applied for to that, but those were ultimately withdrawn when the final record plant went through, so the changes from the development plan were withdrawn, and then the record plant was approved. All right, so we're still dealing with the record plant. Right. So the record plat was finalized on the 6th, creating the four lots, 86, 90, 94, and 98 Penn Moken Park. The property owner then applied for building permits, and then December 12th through the 16th, those permits were approved by the Division of Building Inspection. Building Inspection did not refer the owner to the Division of Historic Preservation or the Board of Architectural Review Process because they had not yet received notice of the H-1's passage. um the next thing that happened is that the pensacola park neighborhood became aware of the building permits and were confused as to why they had not gone through the h1 process for the board of architectural review so they filed the appeal that we have before us today i think that is pretty much the the timeline that we have If you have any questions, I'm happy to answer them. And like I said, I think that Tracy will have some things to say as well. But just as far as getting oriented, do you have any questions? Anyone have any questions for Autumn at this time? Yes, let me ask. It's my understanding that on December the 6th, three days after the H-1 window effect, the final record plat was submitted, certified, approved, and recorded and Mr. Jones applied for new residential construction permits. The record plot was initially filed months before that yes but it was a certified on December 6th and then the applicant or I'm sorry the property owner applied for building permits as soon as that process had been complete. I understand thank you. Thank you honor. Ms. Jones do you have anything to add? Yeah just a couple of things that might help understand provide a clear understanding First, the reason that the final record plat is really not an issue here is because when the H-1 overlay was put into place, it did not address any kind of lotting patterns. So the lotting is really, that's really not an issue. The issue here is the building permits to allow the houses to be constructed on those lots without going through the BOA-R process. And what happened there was a little bit unusual, and it goes back to a couple of, there's several moving parts that were going on at the same time. On December 3rd, which was a Tuesday night, the council had altered their schedule because they were getting ready to go on their Christmas break. So they had double meetings that week. And so this matter of enacting the H1 or taking action on the H1 overlay for this Pensacola Park area was put on their December 3rd docket. Well, actually, I think it got second reading that night. It had already been put on, but it was put on, and as you may have heard in the past sometimes, when they vote to put those things on their docket, they have two options. They can put it on with or without a hearing. in front of the council. In this case, there was no hearing in front of the council because it was put on without a motion to put one on since there had been a hearing at the Planning Commission, and statutorily only one hearing is required. So when things get recommended from the Planning Commission that always has a hearing, the council makes a decision as to each specific zone change or historic overlay or neighborhood character overlay, whether or not they're going to just put it on their docket for a vote or whether or not they're going to have a hearing. In this case, no hearing. So when it came up for second reading on that night, it was a little out of their normal process that everybody's used to in terms of it wasn't a Thursday night meeting, it was a Tuesday night meeting. At that meeting, for whatever reason, and I was not present at the meeting, so I can only tell you what I've gone back and looked at and learned from the people that were there. The council made, you know, they had docketed it. They had put it on for first and second reading, and they were voting on it that night. They were not able to, they made several motions. They had discussion. They took comments from the public about it, but they were not able to garner in any of their motions an eight votes in favor of, against, or anything else they did. Two things come into play in that situation. First, if they were going to override what the Planning Commission had recommended, which was to put this historic district overlay in place in this area as it was defined in the ordinance, which with all properties fronting on Nicholasville Road from Suburban Court to Goodrich, accepting the El Toro location and three properties that are residential houses but operated businesses across from Central Baptist Hospital. Those were removed from the overlay at the Planning Commission. That's how the recommendation came forward. If they were going to overturn that recommendation, they have to have a majority of the entire legislative body do that, which is eight votes because there's 15 of them. That's no matter how many of them are there. They still have to have eight votes. If they were going to adopt an ordinance of any kind, zoning or otherwise, they're required to have eight votes. they could not get eight votes apparently they had multiple motions with seven to one votes i'm not sure how many others but at the end of the night the question became um well what happens here it wasn't a tie vote it wasn't a you know and did they take action um the attorney who was present on that night for the law department advised that the law department was going to take this under advisement and look at it a little bit more closely. They did that and in looking at it they were concerned about the way the statutory requirement in KRS 100 reads is that if the legislative body doesn't take any action, fails to take action, then in 90 days, whatever the Planning Commission recommended becomes effective. But in this instance, there was a great amount of pause on the part of the law department as to the fact that there was action. It had been docketed. It had been spoken to. It had received its second reading. It received public comment that night. And apparently it received quite a bit of council discussion and several motions. So they mulled that around for at least a couple of weeks is my understanding. And again, I was out at that time, but when I came back, the determination was made that they thought that they did take action on the matter. They just did not garner the eight votes needed to accomplish one conclusion or the other. So they determined in the law department that December 3rd, which was the night all this happened, that that was the night that this matter became effective by operation of law. At that point, there was then some discussion with the council clerk's office, who is the body that publishes what the council does in terms of resolutions, ordinances, and otherwise. They had some consternation over it because it, again, was not typical. Usually there's either an up or down vote either way, or they just don't address it. In some instances, by operation of law, over a period of time, it becomes effective. After some discussion with the council clerk's office, they reached a conclusion on how best to publish that ordinance, and make it public that adopted the H-1 overlay. That was actually officially published on December the 26th. So as Autumn pointed out, there was some problem in there because during that time period, that ordinance wasn't published out to the public. It wasn't distributed to divisions and departments in the government. so during that time that was when the building permits were requested and the building permits were issued. So that's where we are. Basically the crux of this appeal is whether or not it was an error for those building permits to be issued without directing the property owner of these four addresses, which originally were one lot that fronted on Nicholasville Road. So the original address before subdivision was a dress on Nicholasville Road that was included in the H-1 overlay. So really, that doesn't make any, I mean, we determined from a legal perspective. changing the lots from one to four and changing the numbers on them really doesn't make any difference because the property and the bounds of that property were included in the H-1 overlay. But the question has become since this was somewhat of an atypical circumstance and over the time of getting everything in order to handle that circumstance and what occurred and the delay in making publishing it and the permits being issued during the course of that time were those permits issued in error or not and that's really the question before you uh tracy i have two questions number one is is there any law that says that it has to be published before it's effective the the and then number two is what's the law department's position it where was this h1 effective as of 12-3 or at the date of publication the law department's positions it was effective as of 12-3 um and there the ordinance says this is effective on the date of its passage so that that's part of the problem was addressing how that happened on that night. So that's basically, you know, the law department said it was effective on that day, and then there was this delay in the publishing of it to make everyone aware that it had been put in place and effective, and that resulted in building permits being issued. So, you know, on one side they were, you know, they were issued. on the other side they're saying well they shouldn't have been issued and so that's kind of why the appeal is in front of you guys today and then another issue the law department's taking the position um that the final recordation plat the action certification no matter what does not go the h1 overlay does not affect it because of the parameters of the overlay yeah and i i think the law department thinks that and i i think there um i think historic preservation would tell you the same thing i mean there are very few instances very few um where an h1 overlay because of maybe kaden town is an example yes where they did address that lotting you know certain lotting patterns and lots and things had to be of a certain size in the in that overlay that was not done here so that's really not an issue i know kate in town that's not favored because it's hard to do other things possibly in the future on lot on lot patterning a lot patterning is not a typical thing we you'll see in an h1 overlay okay so if we were to find that the applicant the building permit was not appropriately issued the steps would be for the owner to go through the board of architectural review and historic review is that uh yes i think that would be correct okay any more comments for the legal department and for staff all right we appreciate you guys very much putting it all together for us okay so i believe miss winters is here on behalf of the appellant we'll let her come up put her her name on the record officially for us and if we could i'd like to try to limit the attorneys to 20 minutes because i think realistically this is a pretty narrow legal issue for us if you can put that up on the screen to give them an opportunity and if for some reason they show slides as long as i can see it i can give them kind of a hand gesture yeah okay i don't think i'll take that long good afternoon board members and chair my name is jessica winters and i'm here today on behalf of my client the pensacola park neighborhood association to present their appeal of the issuance of the building of permits approval of the final development plan and the final record plot for buildings currently under construction at 86 90 94 and 98 pen moken which is formerly known as 1847 nicholasville road and we are looking at properties right there that little blue rectangle on the slide which is quite clearly within the h1 overlay for pensacola park the building permits were issued without requiring the property owner to apply for a certificate of approval from the boar as required in h1 overlay zones pensacola park neighborhood association brings this appeal pursuant to section 7-6 e of the lfucg zoning ordinance as an entity aggrieved by the decision. Pensacola Park was notified of the decision on January 17, 2020, and the appeal is therefore timely. The Pensacola Park neighborhood is bounded by Suburban Court on the north, Goodrich Avenue on the south, Nicholasville Road on the east, and the Norfolk Southern Railway on the west. It was one of the first suburbs in Lexington, with Rosemont Garden first platted in 1919. A century later it contains 400 intact period examples of historic homes. The streetscapes and layout of the neighborhood remain unchanged. In late 2018, motivated by proposed development that was significantly out of scope and character for the neighborhood, the neighbors came together to understand how Lexington's urban infill and redevelopment plan and imagine Lexington would affect the neighborhood feeling that the historic character of the neighborhood was in jeopardy neighbors organized and developed support for an h1 overlay designation the h1 overlay application was filed in early 2019 with requisite notice to all people in the neighborhood the BOAR unanimously voted in favor of the h1 overlay and for it forded it to the Planning Commission with recommendation for approval the Planning Commission voted to remove four properties from the proposed overlay which would be on the edges on this flat like here and here those properties are rooming houses at the far northern edge of the proposed district and it also removed 1915 Nicholasville Road which is a commercial building on the far south end of the proposed district the Planning Commission then voted unanimously to recommend approval to the City Council. On December 3rd, 2019, the Pensacola Park H1 overlay went into effect. It included in part 1847 Nicholasville Road and 100 to 176 Penn Moken Park. On this same date, Keith Horn of the Division of Law confirmed to Betty Kerr and Jake Gibbs, the district's council person, that the overlay was in fact in effect. On December 4th, 2019, the Herald leader published an article publicly announcing that the historic overlay was in effect. It is important to note here that the H1 overlay does not prevent development or changes to structures in the neighborhood, but it does require that those changes fit with the character of the neighborhood. For property owners, this means that new construction and most exterior changes must be approved by Lexington's Historic preservation office or the Board of Architectural Review, BOAR. The development for 1847 Nicholasville Road underwent several revisions after the final development plan was approved in March 2019 by the Planning Commission. As you can see from this slide, although not quite clearly, the original plan included division into eight lots reflected there. On December 6, 2019, three days after the Pensacola Park H1 overlay went into effect, an updated final record plat was officially submitted. Now however, the final record plat included subdivisions with four quote new addresses, 86, 90, 94, and 98 Penn Moken Park. And that's shown here on this slide. This final record plat was certified by the director of planning and recorded by the Fayette County Clerk at 3.49 PM on December 6. Also on December 6, Mr. Jones, developer for 1847 Nicholasville Road, filed for four new residential construction permits for the new Penn Moken Park addresses. Those addresses were not in fact recorded by the PDA until December 13, 2019. The permits were issued on December 12 and December 16. Because the final record plat subdividing 1847 Nicholasville Road was received after the H1 overlay was in effect, it should have been heard and decided by the Board of Architects control review prior to the address changes taking effect. In addition, Article 15 of the Zoning Ordinance requires that H1 requirements be applied to the final record plat which should have been subject to BOAR approval. See Article 15-7C. Section 13-7A of the Zoning Ordinance requires a property owner to obtain a COA or certificate of approval for new construction in an H1 zone. The certificate of approval is defined as a document which certifies the findings of the Board of Architectural Review or the Historic Preservation Officer that the work proposed by the applicant is appropriate in a zone protected by an H1 overlay. The certificate shall also delineate any conditions imposed by the Board or Historic Preservation Officer in approving the request. In order to grant a certificate, the Board of the Historic Preservation Officer shall consider all circumstances related to the proposal and may grant the certificate if it finds that the proposed changes are consistent with the guidelines adopted by the historic preservation planning Commission COA applications are heard by the BOAR at public hearings which allow for public input the 1847 Nicholasville Road parcel is and always has been part of Pensacola Park H1 overlay and is subject to the same H1 overlay requirements as the rest of the neighborhood. The H1 overlay went into effect on December 3rd with the property addresses as they existed at the time. Converting 1847 Nicholasville Road into 86, 90, 94, and 98 Penroken Park did not remove these parcels from the H1 overlay requirements. There is no question that Mr. Jones was aware that the H1 overlay was in effect as of December 3rd. The H1 application for Pensacola Park had been pending at that time for at least 10 months. In October 2019 the entire neighborhood was notified of the rezone hearing for the Pensacola Park H1 overlay. The timeline you have been presented with by staff indicates that law did not officially publish the overlay until the end of December but this does not mean that the government offices were unaware. There is no requirement in the law that I am aware of and then that's been cited to you today that states that an H1 overlay is is not enforced until divisional offices are officially informed or the ordinance is published. At the time, and it is indisputable, that on December 3rd, the Historic Preservation Office, the District's Council member, and planning staff who actually filed the H-1 application for Pensacola Park and then also changed the addresses for 1847 Nicholasville Road, knew that the property in question was in an overlay and that the overlay went into effect on December 3rd. The building department and planning department failed to follow the requirements of the H1 overlay and improperly approved the issuance of building permits for the four new subdivided lots without BOAR approval. Importantly, on the same day, December 6th, that the permits were accepted for processing for the property in question, another neighbor at 127 Penn Moken Park, let's go back, the little green rectangle that you see within the H1 overlay zone, that's 127 Penn Moken Park. On the same day the building permits were issued without BOAR approval for the property at 1847 Nicholas Hill Road, another neighbor in the same neighborhood at 127 Pinboken Park was required to obtain a certificate of appropriateness for a building permit. Margaret Somsoll, who owns the property at 127 Pensacola Park, is in the process of doing an addition on her home. On December 6th, she visited the Historic Preservation Office to inquire as to the process for obtaining a construction permit. She was directed by staff that she needed to go in front of the BOAR for approval of any new construction. Ms. Somsol filled out the papers the same day so she could be on the docket for the January 15th BOAR hearing. On January 15th she qualified for the certificate of appropriateness. She received the COA and on Tuesday, January 24th she applied for her construction permit which was approved and issued by building inspection because she had obtained approval from the BOAR. After the H1 overlay went into effect in January, Candace Wallace of the Pensacola Park neighborhood association called the division of planning to determine whether Mr. Jones had applied for a construction permit for his properties. She was told by planning staff that no such permits had been sought or issued. It was therefore not until January 17, 2020 when area residents noticed that construction was taking place at these properties, that additional inquiries were made and it was determined that building permits had in fact been issued. It was later explained to Pensacola Park that the reason planning staff inaccurately told them no permits had been obtained was because the search for such permits was performed utilizing the old Nicholasville Road address. Since the Pensacola Park H1 overlay went into effect, Ms. Somsol and other residents in Pensacola Park have been required to comply with H1 regulations. It is the position of Pensacola Park that all property owners within the Pensacola Park H1 overlay must be treated the same and deserve equal protection under the governing laws and regulations. The improper issuance of building permits and final approval of the final record after the passage of the H-1 overlay, without the required BOAR process, which vets plans for materials and other items essential to maintaining the integrity of historic neighborhoods, will damage the integrity of the Pensacola Park historic neighborhood. It appears to me that the building permits in question were issued accidentally, due to some confusion either related to the address change or perhaps because building inspection was not aware of the H1 overlay going into effect days prior. Be that as it may, the decision was erroneous and is not supported by any law. The properties are within an H1 overlay that went into effect on December 3rd. The permits were applied for on December 6th and were subject to BOAR approval. Pensacola Park Neighborhood Association respectfully requests that the building permit for the subject properties be revoked and that a stop work order be issued until a necessary BOAR review has taken place. Thank you. Thank you, Ms. Winters. I've got a few questions for you. So we can take the timer off now. Okay, so you agree with the law department that the H-1 overlay designation became effective on December 3, 2019? Yes, sir. but you contend that the final record plat should not have been certified because I'm not sure where – I'm trying to get to where your basis is for that fact. Right. I think that is definitely a gray area, and the neighborhood's position is that any subdivision of the lots which affect lot sizing should have been presented to the BOAR. I think that law is correct that the main focus of this appeal is the issuance of the building permits because the materials used and the construction of the buildings, the look, that all affects directly the fabric of the neighborhood and the historic integrity of H-1. I think that's all I have for you. Anyone else from the board have any questions? All right. Thank you. We want to have a seat in the first row. Mr. Simpson, I'll go ahead have the public comment on the pro side go first and then that way you can hear everything before you do your presentation I don't know that he was gonna weigh in but he is here if you have questions okay well it looks like He's going to be on the hot seat at some point, possibly. In the meantime, the citizens who are here to speak in favor of Ms. Winter's position, raise your hand if you want to speak. Okay. Let me ask you this. Are you going to be speaking to legal issues or just talking about how you don't like the development? Because that's not really pertinent to today's hearing. So raise your hand if you have actual legal positions or other things you want to talk about because whether or not you think it should have four lots or two lots or townhouse or that's not what's before us today today is should the permit been issued is what we're looking at today so still speak all right we have two um then i would say come on up one at a time let's put three minutes on the clock and uh good afternoon good afternoon my name is Amy Clark and I live at 628 Castle Road I also prepared a timeline but probably you have all you need with miss Winters I am here a big yes yes and I have one copy of material I'm putting into the record regarding the processing I'm here really because I'm concerned that our records be accurate and complete and usable for citizens and if if we find that things aren't following a process or that the records don't accurately reflect the process followed that's that's a concern for citizen participation um i really have very little to add you can see from the timeline that most of this has been covered i would point out that the planning Planning Commission recommended approval of the Pensacola Park Historic District by unanimous vote. That would mean that the council in making an affirmative vote took final action and adopted the overlay. They affirmed the recommendation of the Planning Commission. What I want to add that may not yet be before you is, I went through the applications in the file and you can see the processing notes. Various staff members saying who did what when. And I noticed that all four applications bear the file note marked as a waiting client reply on 12-9 with the further remark. The plan review fee is required to be paid before the plans will be reviewed. I would suggest that since that's the plan review fee, They can't even be reviewed for completeness. The application is not even necessarily complete, certainly not until the payment has been made. There's also a note, please provide the following. I need a copy of your recorded plat in order to review these plans. You can't really decide whether a building permit is in good order if you don't know what or where the lot is and its boundaries and easements and so forth. And I would mention that the payment was received somewhat later on December 9th, the payment to review the application for each of the four lots. And then later on, on the 16th, further payment for the actual fees of the building permit. I want to simply add, I don't do this very often, but I think the staff worked rather quickly and rather diligently. Once they got subdivision plat in the planning office to review it as diligently and rapidly as possible. It looks as though the plat with all the things the staff needed to see was actually the substantially complete plat was handed in Wednesday before Thanksgiving. So if it looks like it took several days for them to take care of that plat, in fact, it was Thanksgiving vacation, and they worked very expeditiously to discover whether it was in good order or not. Thank you. Thank you, Ms. Clark. Sir? Chairman Gross, board members, my name is Mark Streety. I live at 1020 Fincastle Road. I currently serve as president of the Ashland Park Neighborhood Association, but I'm here today as president of a recently formed alliance of neighborhood associations known as Lexington Urban Neighborhoods Alliance. We're recently formed, we're rapidly growing, we represent neighborhood associations currently involving 15,000 Lexington citizens. Thank you for a moment of your time. We echo and concur with Pensacola Park's comments to this body and to their council's statements of fact. We ask you to protect the Neighborhood Association, Pensacola Park's only safeguard step, by requiring the owner to follow the proper H1 overlay process and send them back to board for that process. Thank you for your time. Thank you, Mr. Scruti. Anyone else want to speak on behalf of the proponents of the Neighborhood Association before I move on to the landowner? Okay, Mr. Simpson, if you want to proceed. Sorry, Mr. Chairman, I do it the old-fashioned way with overhead projectors. I understand. And let me say from the outset, my name is Bruce Simpson and I'm representing David Jones and David is the principal in connection with Southern and Jones, the applicant in connection with this case. Can you kind of close in on that a little bit more? I think your paragraph you want. Yeah, why don't we just focus in on like five, six at a time, and we'll go through there. Did you by chance make copies for us? Just one copy for the record. Yeah, I was going to go through. I didn't want to make this overly more complicated than it needs to be, Mr. Chairman. So just to give you a little bit of background about this particular development, which I think is important because the staff has left out two critical components of the timeline that I'm going to discuss. and I'm also going to share with the Commission that the actual historic zoning did not take effect on December the 3rd as Tracy pointed out in order to adopt an ordinance and this is this is not in dispute in order to adopt any ordinance whether it's a zone change or any other ordinance it takes eight votes and there's no dispute in this case that there were not eight votes voted on December 3rd I'll get into more detail in that that is a question of law which in my judgment has been missed by the law department in connection with this appeal now mr. Jones actually started the development of this site at the corner of Penn Moken Park and Nicholasville Road in 2018. He had purchased many years earlier a boarding house which provided week to week, month to month, whatever the residents could afford. It was 10 rooms, 10 men for many years. The previous owners that had operated that particular business there the same way dating back before zoning was ever approved in Lexington and so it got grandfathered in as a non-conforming use. It was zoned for single-family in 1969 but continued to operate as an apartment or multi-family business thereafter up until the rezoning of this property. Before the application for the rezoning was filed Mr. Jones, through me, wanted to meet with the neighbors and share their proposal, which he did. We met with the neighbors on September 24th, 2018 to explain the zone change application what we were going to be doing and also to explain the process and when the hearings were going to be held and all that sort of thing this is a just for the record I'm introducing a September 18th letter that was sent to all the neighbors within 500 feet of the development which is the legal notification area for zone change this was before the application was even filed we sent this out we wanted to meet with them and so we did so I'll make that part of the record and then on November the 5th the zone change was filed about you know five or six weeks after we met with the neighbors the zone change was filed on November the 5th it was then next reviewed in terms of its development plan on November the 29th before the technical review committee tech review committee of the government is all the engineers, the planning staff, and everybody else, solid waste, sewers, stormwater, etc., police and fire, weigh in on the development plan. And that was approved, recommended for approval on November the 29th. Then on December the 6th of 2018, the subdivision committee of the Planning Commission reviewed the development plan, which at that time was for eight townhouses. he was going to remove that 10 room boarding house and build eight brick townhouses at a price of about $250,000 or more on that property that same day on November the excuse me December the 6th it went before the zoning committee of the Planning Commission for review about the rezoning application and it It was approved by the Zoning Committee as it was approved by the Subdivision Committee without a dissenting vote. It then goes before the full Planning Commission on December 13th for the rezoning and approval of the Preliminary Development Plan. The neighbors didn't like the project. They wanted to keep the boarding house as it was. We had a lengthy hearing and the Planning Commission voted unanimously to approve the zoning and the preliminary development plan and this is a copy of the record of those proceedings on December 13th 2018 after that we knew we're going to have to come back for approval of what's called a final development plan which actually allows construction to start thereafter and so even before that meeting we mr. Jones still wanted to try to work some things out with the neighbors and he did meet with a leadership group of the neighborhood on January the 8th to discuss excuse me the design of the buildings and and his upgrades and his amenities then we can move that slide up just a little bit Right. So the impact, the net effect of what Mr. Jones filed to seek replacement of the boarding house and build the town homes is that the neighborhood, the neighbors got very upset and they went to their council member, which is certainly appropriate. And Mr. Gibbs wanted to put a moratorium on any future zone changes or building permits or anything associated with development, which it went before the council on March 7th. And the council approved a moratorium for all of the Pensacola neighborhood, all of the projects, except it specifically excluded this property that's before you today. 1847 Nicholasville Road was specifically excluded from this moratorium. It was a six-month moratorium to give time to study the neighborhood and for the study to take place. But it certainly allowed Mr. Jones to go forward with a zone change. i also need to point out that the council actually approved the rezoning of this property in february of 2018 before the moratorium was adopted so by the time the moratorium had been adopted mr jones had already obtained his own change that would allow him to remove the boarding home and replace it with the eight townhouses so the moratorium goes into effect about two weeks later but it excluded him this is a copy of the moratorium it's dated March 7 2019 thereafter continuing with the development plan endeavors mr. Jones filed a final development plan which came back before the technical review committee for consideration they unanimously recommended approval next week it goes before the subdivision committee of the Planning Commission it was again recommended for unanimous approval and when it came back before the full Planning Commission on April the 11th it again was recommended unanimously mr. mr. Jones did commit at that point in time to make sure that that we're all brick homes or brick townhouses that were going to be well he didn't anticipate that he was going to have to spend as much money on engineering fees and sorry to say lawyer fees in connection with this particular project and it got so expensive that he decided to rather than build eight townhomes that he would build four single-family houses and he filed a proposed subdivision plan to do that on May the 31st 2019 so if you move the slide up just a little bit more for the timeline. Next page. So now he's the neighbors that always said they wanted single-family homes and so Mr. Jones decided to actually, circumstances required him to build the four single-family houses. On June the 6th he met with traffic engineering to see if resolve the issues about access. Also on June the 6th, he applied for, with the urban county government, four addresses. Four addresses, 86 Penn Moken Park, 90 Penn Moken Park, 94 Penn Moken Park, and 98 Penn Moken Park. I've got confirmation from Robert Pogue, who is in charge of giving out addresses, that these were approved by the urban county government on june the 6th of 2019 this wasn't anything that he filed late this was in june 6 of 2019 i'm going to introduce that for the record after the june activities on july 2nd he obtained a demolition permit and two weeks later the boarding house was down. Next activity, after the development plan had been approved, he started starting construction of the site, developing the property, put in temporary electric. But the moratorium was running out. And so, historic zoning hadn't taken place, so they wanted to stop any further permits being issued, any zoning taking place for this whole area that was going to be zoned historic. And again, Mr. Jones' property was specifically excluded. And the Urban County Council adopted this moratorium, extension of it, on August the 29th, 2019. And what it provided was that this moratorium shall be extended until March the 7th, 2020. March the 7th, 2020. So they extended it six more months, but they gave every sign to Mr. Jones, you can continue on with your project. You're not part of this moratorium. We're not going to stop you. And so he continued on spending money, which I'll get to in a moment, how much you spent to date. But I want to introduce the moratorium of August the 29th also into the record. So from there on, he continues with the construction, puts in the sewer, the excavation, goes forward. At that point in time, he's probably spent about $150,000 on this project, relying upon being left out of the moratorium up to now. October 24th, the Planning Commission recommends historic zoning, but this time Mr. Jones' property is included in the historic overlay. It then goes to the Urban County Council for action. And as we've had some discussion already, this is where the error was made, and let me tell you why. On December the 3rd, there's no dispute, there are no eight votes required. The code of ordinances for the urban county government, section 4.502, clearly states all ordinances or resolutions except as otherwise provided in the urban county charter shall be passed only by a vote of a majority of all the council members, which is eight. So on December the 3rd, there weren't eight votes. There weren't eight votes to approve, and there weren't eight votes to disapprove. Now, through some means that I can't understand how they came up with the decision, after the December the 3rd meeting and not getting eight votes, they published an ordinance which wasn't signed by the mayor says no signature required but they didn't have eight votes this proposed action at an ordinance doesn't comply with the code of ordinances that governs how the council is supposed to make a decision And there's no dispute about that, factually or legally. So I'm going to introduce Section 4.502, which is the most recent version of the Code of Ordinances. And you're not speaking to the zoning ordinance. You're talking about the overall Code of Ordinances. I am speaking to the historic overlay that the government contends became effective on December 3rd. without eight votes. I'm contending they never have had eight votes and they've never had the authority to adopt an ordinance because they haven't had those eight votes. I'm asking if you're referring, you say, that section four, right? Is that the zoning ordinance? This is the code of ordinances. This is the code of ordinances. Just want a clarification. That governs the procedure on how decisions are going to be made by the council on zoning and any other ordinance that they want to adopt into law they have to have the eight votes and there's no dispute they didn't get eight votes either to approve or disapprove so but somehow or another December the 26th they adopt what they say is an ordinance but it doesn't have the mayor's signature and it doesn't have eight votes to back it up I'm introduce that into the record. So what did happen on December the 3rd? You've got a recommendation from the Planning Commission for approval of his historic overlay. You have at the same time pending a moratorium that covers Mr. Jones's property until March 7th of 2020. Well what the in these situations the Kentucky revised statutes certainly have to be looked at and what the law provides and there's no dispute about this is that if the Planning Commission makes a recommendation and the urban County Council doesn't have eight votes to revoke it or to supersede it or change it if they don't have those eight votes then after 90 days that recommendation of the Planning Commission becomes becomes final by operation of law. Now there's no dispute, there weren't eight votes ever, for or against. So that Planning Commission recommendation took place on October the 24th for approval. That's not in dispute. Because there weren't eight votes to change that, that Planning Commission recommendation became final 90 days thereafter, which is January 22nd, 2020. So our contention is two things. Number one, we don't believe the building's permits were issued in error. There was clearly a mix-up within the law department about what to do. But I will tell you, Dewey Crowe believes he followed the law. Yes, sir. Oh, okay. Dewey Crow believes those were issued appropriately based on his understanding and then thereafter to add to all of this is that David after he got those permits has spent $126,000 in constructing the houses to date in terms of working on the houses, putting in the footers, getting started. So in reliance upon those permits being issued, which the zoning didn't take effect until January 22nd, he spent money and he has a vested right to complete his project. And he'd been led along all the way with being left out on these moratoriums. Go forward. Go forward and finish your project. You're not included. So our contention is, zoning didn't become effective until the 22nd of January. He filed the applications in time to be considered. They were approved. He built in reliance upon those. And I have a document that I'm going to introduce. It documents that he spent up to date $250,000 on this project and $126,000 since the permits were issued. Mr. Jones is here to respond to any questions that you may have. As I say, I will tell you that Dewey Crow, the chairman or the head of the Division of Building Inspection, I talked with him, he will tell you he believes they were issued appropriately and when a question about it, the law department told him we can't issue a stop permit when this issue was, they got the complaint filed, we can't issue a stop permit and he's never issued, been issued a stop permit on his project as we stand here today. So if you look at all of the undisputed facts in this case, as they apply to the undisputed law in this case, the permits would issue lawfully and he's entitled to complete his project. We haven't done anything deceptive or untoward. These are going to be nice homes, these four houses. They're going to start at about 340,000. They're going to be all brick. there'll be a compliment to what was there before this 10 room dilapidated boarding house that got so expensive that there was no way that he could charge the rent he'd been charging these 10 single men to stay in there and he believed he was making a positive contribution now we can digger on design I understand all that but in terms of the facts and the law we believe that it's been followed he followed it and we believe that building inspection about it we'd ask that you deny the appeal thank you sir before mr. Simpson sits down there are there any questions for him the question now which date is the date that the process of developing the historic overlay began when did they start that process when they filed it I think the application was filed sometime in 2019 it was I mean it was heard by the Planning Commission on the 24th of October okay okay so it was hurt he was he was he was accepted out yes of that but that was still that was almost a year after the beginning of his development process yes Any additional comments? Yes, Mr. Simpson, when was Mr. Jones aware of the Planning Commission's approval of H-1? David? Do you know that? I don't know, but I'll have him. Come up to the microphone. said your name for the record David Jones and I swore you in earlier yes you did okay I would have been within a day or two of the decision back in October 24th 25th whatever day it was where was your project at that point mr. Jones we construction had already started we started in September or actually October we put temporary electric on the site we put silk fencing up anybody that drove by that project within a 300 yards would have seen construction we tore up sidewalks we tore up the street we were putting in infrastructure electric lines it was well it was well underway let me follow up by asking this question when when would have been when would it have been obvious that there was going to be construction there August August 2019 okay yes okay and then mr. Simpson one question for you. When the Planning Commission approved this, I think unanimously if I'm not mistaken with a couple of exceptions, and the Council did not negatively vote to overcome that, overrule that, wasn't that then automatically it seemed like that would be with the h1 would be going through without question regardless of when when it was approved or announced or whatever and wasn't wasn't it not obvious on December 3rd that h1 would be approved it was approved it was clear to me on you know based upon what took place on December the third that they didn't have the eight votes that unless they wanted to meet again to vote on it, that the historic overlay would take effect on January 22nd. So your opinion then is, and I don't mean to be argumentative, but I'm trying to get some clarity here, particularly with a vote or non-vote, I guess would be more appropriate, that your contention is that since there was not a positive vote, then the Planning Commission's approval was not in effect. That's correct. It would not be in effect for 90 days. And so until that took place, there was no historic zoning overlay and people that were in the midst of completing their projects could continue, you know, and finish it out. Okay. But the fact that it wasn't, it was evident. then it would be approved in 90 days. I don't know if it was imminent or not. I mean, that was a pretty goofy situation that took place on the 7th or the 3rd of December. And the urban county government's chief zoning council wasn't present. And I think if she had been there, she would have told them they took no action because they didn't get aid votes either way. There was certainly nothing obvious about anything at that point based on December the 3rd. But even if there were, Mr. Clark, I mean, the law provides that until that zoning ordinance is in effect, you're not violating anything by finishing out your project. And keep in mind, Mr. Jones had already been granted a year moratorium exception to finish. Every signal he got is like, you're not, you can go, you're not a part of this. You're not a part of this. So he wasn't doing anything surreptitious or finessing anything. He was proceeding as the law allows. Thank you. Mr. Jones, I think it's important for me to understand the quality, the size, and the price of what your plans are. Maybe that's irrelevant, but at the same time, it's kind of important to me. Absolutely. When we first started this project, when we were on the townhouses, we did make the promise that they were going to be all brick, and the sales price was around $250,000, and that's what I thought the market was. Ultimately, it got to be so expensive that I didn't feel we could sell them for that. So we switched to four single-family houses. These were approved, and that's on the record in the building inspection. They're all brick homes. These are not vinyl homes. They're approximately 2,000 square feet, 2,100. I had four appraisals under six months old in September before we finalized everything, and they appraised at between $340,000 and $350,000. They're four-bedroom, two-and-a-half or three-and-a-half bath, all hard surface flooring, granite countertops high-end cabinets tile showers tile bathtubs these aren't this is not cheap student housing this is this is one of this is a very high-end project garages basement two car garages um these are on slabs and two of the two of the middle lots are on crawl spaces so there's no basements i don't think the elevation is there um but but they're that's 2,000 square feet plus a 400-some for a two-car garage. They don't have steel front doors. They have high-end fiberglass front doors. These are already ordered. They have architectural dimensional shingles. There's nothing cheap here. There's nothing that's been taken off. If you go down that neighborhood, you're going to see these are going to be equal to anything there or better than. But, you know, this is just not a vinyl box for student housing. That's not what we're doing. Mr. Jones, I have one quick question. Yes. While you're on this, what's the difference between what you're building and what historic, having this in the historic district would require differently? You know that, obviously. I can't answer that, and the reason I can is we were never, it was never anticipated that we would go through historic. and I know there's a lot of builders out there that deal with historic. We don't. This is a project. I have owned this project for over 15 or right at 15 years now and it was never historic. When we started this project, it was just never anticipated. So if the H-1 had gone into effect five years ago and then we came along, I could have answered your question, but I just don't deal with historic enough to give you an answer as to what they may require or what they may not. I can tell you that with the exterior finishes we're using, I can't see how they would want more than dimensional shingles or all brick or things like that. But again, historic is not my bailiwick, so I really don't know. I can't speculate what they may require. Okay. Mr. Chairman, since the building inspection issued these permits, I would ask the Chair's indulgence to have Dewey Crow address the body with respect to what they did and why they did it and his understanding and the fact that there was never any stop work order issued in connection with the permits they issued to Mr. Jones. yep miss Jones or any of our bylaws parties are allowed to call witnesses and redirect does the city have any position on you're entitled to do that if you would like to you can ask him questions if you want to it's up to you all oh yes please mr. Crow come on up and swear have you been that's where you in earlier? Okay, then I'll swear you in and let Mr. Simpsons take some questions, put testimony in the record. Do you swear to tell the truth? Do you swear or affirm to tell the truth, the whole truth, and nothing of the truth? I do. Thank you, sir. And Dewey, state your name and your occupation for the record. Dewey Crowe, Director of Building Inspection. Dewey, how long have you been the Director of the Division of Building Inspection? Oh, let's see, I've been Director since 2004. And in connection with that capacity, I take part of your office responsibilities or part of your division's responsibilities is to review application for construction permit for houses of the type that were issued in connection with David Jones' application that's subject to the discussion today, is that right? Yes. And did your office, in fact, review the four building construction requests for permits in connection with Mr. Jones' application? Yes, we did. And do you find that those applications were deficient in any way prior to issuing them? No. and sometime in January I believe it came to your attention through someone and you'll have to eliminate for the board how you found out about it but sometime in January after the permits have been issued for you know how long when it came to your attention that there was some question about these permits being issued about when in January this took place or if it was in January when it took place whenever you became aware there's a problem you know on january 17th i received an email that morning from my commissioner commissioner albright and she had received what she termed an inquiry from the neighbor the penmoken neighborhood as to whether uh construction permits have been issued for what they were i believe referred to as 1847 nickesville road i then looked uh talked about discussed it with my residential section and found out well it hadn't been issued for 1847 but it had been there had been four permits issued for um the four addresses that that lot was broken into and that we had it and when we issued them under what uh how they got issued so that's when i became aware it was on january 17th that there was some issue with those uh permits so that would have been the permits were issued on the 12th and the 16th i believe is that correct three of them were issued on the 12th The fourth one was issued on the 16th. The reason it was not issued on the 12th, there was a question. Traffic engineering was looking at an issue because it is the corner lot. It would front both Nicholasville and Penn Moken, and there was some issue of setback requirements by traffic engineering. So it was held. That was cleared then on the morning of the 16th, and it was issued then. And when you got the information from the commissioner that there was a citizen that had a concern about the building permits. Did sometime thereafter, either you or somebody from your staff actually go on the site where these permits were being, where the construction was taking place? Well, the inspector in charge of the project was back out to take a look to see where these were, what the status of them, if they were under what construction and how far along we were. we've kind of held that we talked to i talked to planning to find out the exact status of these lots at that point as to whether they were actually definitely within the historic area they were basically said yes they were they were included the addresses changed the dresses didn't match the list that was part of penmoke and drive because those stopped at that point those were new addresses. They weren't even originally part of it, but the lot itself was within that as 1847 Nicholasville Road. Uh, I sought, uh, input from them. I said, well, we probably got an issue. Do we need to just go ahead and stop construction? Uh, was told basically we're gonna ask the law department to take a look at the issue and see what what they recommend at this point. Uh, so and that's what was done. And were you ever given direction by a law department or anybody to cease and desist issue a cease and desist letter to Mr. Jones or stop work? No, we were not told to do that. Law come back with the opinion that their construction should be allowed to continue. No stop work orders were to be issued and the projects would should be allowed to complete that any further changes or additions or work done on those lots would be subject to the normal processes, which would include review by the historic office. And you mentioned the addresses. You know Robert Pogue? Yes. He's with our GIS department. What does he do as regard addresses? He assigns addresses to properties. I'm looking at an email. He's actually sent it to me today. But it says this letter will confirm the addresses for the following residents located in Lexington, Kentucky, or assigned to plan blah, blah, blah on June 6, 2019. by this department any list is the pin Moken addresses where the those permits were issued for those addresses yes and this was issued back in these were approved back in June so in terms of your all's judgment within the division of building inspection in connection with your review of everything do you believe you issued these permits in compliance with the law as you understood it at the time at the time we reviewed the permit the applications and at the time we issued the permit we believe they were in compliance with the law we were not aware that the ordinance had changed and that the historic overlay was now in effect and as we as we stand here today you and I and discussing this with the board no division or department within the urban county government has issued a stop work order to mr. Jones in connection with getting an improper permit is that true not to my knowledge they have not okay thank you that's all I thank you mr. chairman before you sit down mr. Simpson any more questions to mr. Simpson or Jones okay I am gonna give miss winters opportunity if she wants to to speak to Dewey Crow if you want to ask questions okay and so what I'm gonna do Bruce sit here. So after she asks questions, I'll let you do a quick summary, because then we'll move on to allow Ms. Winters to proceed with her rebuttal. Mr. Crow, I just have a couple questions. So if you have been aware that the H-1 overlay went into effect on December 3rd when you got the applications for these building permits, would you have issued them? They would have been put into our normal process. In other words, they were referred over to the historic office to start the BOAR process for approval. That's the normal operating procedure for historic overlay properties. Okay. And so the only reason that normal procedure was not followed is just because you were simply unaware that the H-1 had gone into effect, correct? That's correct. We were not aware. Thank you. Thank you. Real fast. Real fast, dude. It was a couple of things. this winter as you hypothetical if if the historic overlay went into effect on December the third and you were aware of it you wouldn't issue a permit correct that's correct but if in fact the historic overlay didn't go into effect until January 22nd and you issue permits on December 12th and 16th you would issue permits in compliance with the law is that correct that's correct yes That's all I have. All right. One more question, and then I'm going to move on to the next portion. My apologies. Isn't it true that on January 7th, Mr. Jones was instructed by your office that he had to obtain BOAR approval for a fence permit for the same property? I believe that is correct. I wasn't the one that conveyed that to him. Okay. Someone in your office on January 7th conveyed to him that he had to undergo BOAR approval to obtain a fence permit for the same property that we're discussing. Yes. Thank you. Thank you. Is it also true, Dewey, and his response to your staff member that he said it was his understanding the 90 days didn't run, the 90 days had yet to run from the Planning Commission's recommendation for that historic overlay to become final? I believe that's what he conveyed to staff members, yes. Thank you. Are we done with Mr. Crow? All right, appreciate it. Okay, before I let Mr. Simpson do a very short summary of any points he wants to make up, I do have a couple questions for the Law Department. And I am curious about the final action provision, if you could give us a little bit of explanation on, with that in mind, and Mr. Simpson's argument, whether you still feel comfortable that we should rely upon the December 3rd as the effective date. Well, let me preface this by saying that I was not at the hearing on December 3rd. I was out of the office for a few weeks at that time. So, therefore, I wasn't party to the discussion that night or anything else. So I'm relating to you what my understanding of the Law Department's decision was at that time. They were relying in large part on KRS 100, which is the Zoning Chapter 211, which talks about the 90-day provision that Mr. Simpson mentioned. And what that specifically says is the legislative body shall take final action upon a proposed zoning map amendment within 90 days of the date upon which the Planning Commission takes its final action on the proposal. And it's my understanding that the idea of whether or not there was an action by the council on December 3rd was what was being looked at and discussed. And there was some level of uncomfortableness with saying there was no action because there was action. They just didn't accomplish the eight votes either way. So that, I believe, was the basis for why they determined that if you failed to adopt the Planning Commission's recommendation and you failed to override it and you had people talking about it and you accepted and entertained motions, that then that was action, and because of that action, and because you couldn't override what the Planning Commission did, it was going to be deemed final. But that's the question, and that's all I can tell you about that. So that's really the crux of the whole question, I think, for you all, in part is that decision and whether or not basing the issuance of the permits on that decision, where you fall on that. But that's what I can tell you. I can't give you my own personal knowledge about what happened because I wasn't there. But that is my best understanding of how they came to that conclusion. They were uncomfortable. Many times the 90-day provision comes into play if they're on a break and they can't get it in front of them in 90 days, if they for some reason don't have a quorum at a meeting so they can't even meet, or things like that. there was some level of uncomfortableness with saying this had no action this particular issue had no action and therefore we had they had to wait the 90 days they believed there was action because of what happened that night although it's very atypical i will admit what happened that night it's 90 days from what date 90 days from i believe let's see october the 24th was the day of the Planning Commission approved it so once the Planning Commission makes an approval recommendation or any kind of recommendation to the urban County Council then the council has 90 days to take final action on that because contrary to what a lot of people think the Planning Commission does have to hold a hearing and they do but what they determine it doesn't become the legislative body has to enact zone changes and text amendments to the zoning ordinance or the zoning map so anything that they act on then gets sent forward to the legislative body or the urban county council as a recommendation and the day that they have their hearing take their vote that 90-day period starts running at that point for the urban county council to take an action on whatever's being recommended to them so i believe to get to 90 days of january the 22nd it would have been october the 24th now you keep making reference to the no action and in the statute doesn't it say final action i mean is there a distinction between i mean that there's no action or that there is a action of finality there the the way the statute reads is that the legislative body shall take final action upon a proposed zoning map amendment and um so that's it and that's the best explanation i understand and and my i guess my question is is that and of course people can always be wrong in their interpretation but generally the interpretation to my knowledge in the community has been it takes an eight-person vote to approve zoning ordinance amendments. A majority of the council, not a majority of those in at the meeting, because if we were to go to the next and say, well, that's a final action, if it's a 6-3 vote, for example, well, technically it's a majority, but the zoning ordinance and the statute appear to lean me towards it should be you have to have eight if not just sits around until it gets to that 90 days and then it's automatic if they haven't overrode it there's there's a couple of there's two things going on there um the statute can care us 100 specifically states that in order for the legislative body which in our case is urban county council to override a recommendation of the planning commission in other words to to not adopt their recommendation that it has to be a majority of the entire council and or the entire legislative body and our entire legislative body is numbers in is 15. so eight is the majority and And that eight applies no matter what number is present. What Mr. Simpson read to you is an appendix to the code of ordinances, which is the council rules that talks about what they require to adopt any ordinance or resolution that they pass about anything. And they also say you have to have eight votes. So they also don't limit their actions of voting on ordinances or resolutions to a majority. They limit it to eight. So there's two different things going on there in two different places, but it comes up to be the same number, basically, if that makes sense. And I guess that's the reason I'm trying to figure out why it would be an action if it was only seven. They couldn't get the eight. And I guess my best thought on that is that they believed that they were trying to take action, and they didn't take up anything any further because they didn't have eight votes. And my understanding is they took more than one vote, and that no vote accomplished eight votes. And so at that point, whatever action they were going to do on that night was done. And so they determined that that constituted a final action. But I think there's certainly room for the other argument. And because this circumstance is somewhat unusual and doesn't happen very often, hardly ever, then there's not a whole lot of guidance on it to be honest with you. Let me ask you this. If the vote had been, I don't know, 5-4 to approve the H-1, would that have been an action? It wouldn't have, I mean it would not have adopted that because. Well, that's what I'm asking. So I don't see how 7 can be a final if 5 can't be a final. that's the question I know you weren't there I'm sure this is the same discussion that was taking place for those couple of weeks you know yeah as to what that what they're what they did what that meant yeah you know what the fact that none of the votes resulted in an eight count vote and there was no indication there was going to be it was going to be brought back up at any further time so it was neither approved or disapproved it was neither yeah I'm saying okay and and to be honest with you just totally in a practical sense legal this is really not legal but as of that Thursday evening that was on Tuesday December 1st as of that Thursday evening I believe they were going to be gone on break so everyone knew that anything that didn't get voted on wasn't going to come back up until they came back from break in January and mid-January I believe so I do think they came they did come back before January 22nd but their ability there was no as I understand there was nothing addressed at that meeting that night as to this coming back up at any future date on their docket so from the point of view of the law what's the status of the H1 one action right now right now based on the opinion that was given by the Department of Law they believe they said it was effective December 3rd when the when the it was discussed on their docket and had you know and they took motions on it voted on those motions and they believe and there they came down on the side of because they could not come up even though they took action because they could not come up with the eight votes that they couldn't override what planning commission did and so that was effective that's where they came down that's what the law department's opinion is currently thank you miss jones okay i'm going to have mr simpson if you could do under a minute summary i will allow miss winters to come up and do a three-minute rebuttal then i'm going to close it to the public testimony at that point we're going to take a recess for a couple minutes and then um we'll reconvene for any questions or comments that the board may still have Mr. Chairman members of the board I don't want to put Tracy Jones in the middle she finds herself in the middle she's having to defend a law department decision that I personally don't believe she would agree with but I'm not going to interrogate her about that but but the undisputed facts and law are compellingly clear and if you listen to carefully what she said She agrees with my position in that the council adopted rules governing their decision, and they said unequivocally eight votes, either to approve or to disapprove. There's no dispute about that. There's no dispute they didn't get eight votes to approve or disapprove. Now, the law department, without zoning council, because she was out all December, surgery and recovering from it, they did the best they could, but they did it wrong. in saying that a decision was made on December the 3rd because there weren't eight votes. I mean, there's no question about that, and there's no question what the ordinance provides. You have to have eight. And so by operation of law, 90 days after the 24th is when it goes into effect on January the 22nd. Now, that to me is crystal clear in terms of how decisions have to be arrived at in this based upon the undisputed history of this case. The other thing is this. David Jones has never tried to come in and finesse anything. He was accepted out of two moratoriums for a year. The second one doesn't expire until next month on March 7th. He'd get every indication you can complete, you can complete, you can complete. Now at some point he finds out, well, I may be in, but they didn't get eight votes, so I can still finish my project based on the building permits that Dewey Crow still believes were issued validly because the historic overlay hadn't gone into effect until January 26. These are the simple facts. And the equity says this man spent $250,000 on these projects to build very expensive, nice, contributory homes. Now, people may differ in their design, but I think at the end of the day, you're going to have four upscale homes that are equal to or greater, in many cases, value of the homes around there. So we're not doing anything that's going to be damaging to this neighborhood. They may not like the design, but they're going to be expensive, nice interior and exterior with the granite tops and all that. But beyond all that, this body has to follow the law. And if you listen to what Tracy said, you have to have eight votes to get approval or disapproval. That didn't happen. Zoning didn't take place until January 22nd, 90 days after the Planning Commission made recommendation and i would respectfully ask you to follow the law as it clearly states in this case thank you thank you mr simpson miss winters it might take me just a little bit more than three minutes i was saying unfortunately i i uh i need to get mr simpson a watch i'm just teasing him but no i think you do five minutes yes sir all right let's do five minutes and then let's and And it might be shorter than that. There's just an awful lot to address there, and I wanted to be sure I had everything. First of all, I wanted to say that I know earlier you took a show of hands on the folks that were here in support of this appeal, and there were quite a few people who raised their hands. I know that they didn't want to necessarily speak to the legal issues at issue here today, but I just want it to be made known for the record that there are quite a few people here in support of the appeal and that they're allowing counsel to speak on their behalf that they would be considered aggrieved persons under the statute. The process, I just touch on it a little bit for the zone change because I don't think it really matters how nice Mr. Jones is or whether he's trying to get one in on the neighbors or anything like that in this situation. What matters is whether the H-1 was in effect at the time that he applied for the building permits. And it's been the position of the Department of Law and it's our position here today that the H-1 overlay was in effect and that the BOAR requirements should have been followed. But I do want to note just a couple things about the zone change process for this property. It was originally intended to be eight lots with townhomes. Now, what was there before was a 100-year-old historic home that was being used as a boarding house. And I think it could house anywhere between 16 and 20 people. And so when he came before the planning commission for the zone change, he said that this zone change is in accordance with the comp plan because I'm going to build eight townhomes. and this is in line with the comp plan's call for increased density. And so this was a big push when he got the zone change, was that he was going to have eight townhomes, big increase in density, and they approved in part based on that. Also at the time with the neighborhood meetings, he promised to the neighbors that he would not be using vinyl siding and made various promises about the design of the properties. Well, after that, all that changed. He's now placing vinyl siding on the properties. He's building four single-family homes rather than eight townhomes. So a lot has changed. Mr. Simpson is correct that at the time the H-1 application was pending, there was a moratorium that did not include this property. However, when the October 24th Planning Commission meeting came up that determined whether the H-1 should be forwarded to the council, attorneys for various property owners came to the Planning Commission and argued that their various properties should be excluded from the H-1 zone. Mr. Jones did not do that. And the planning commission meeting was public. People had an opportunity to argue for the exclusion of their properties from the H1 zone. He did not do that. And his property was not excluded from the H1 zone, which was then forwarded with the recommendation for approval to the city council. So even though he was not covered by the moratorium, he is covered by the H1 zone. And I don't think anyone's disputing that here today. Mr. Crow, when he testified, said that he simply was not aware that the H1 zone was in effect on December 3rd. And he also acknowledged that on January 7th, the Office of Building Inspection informed Mr. Jones that he in fact had to comply with the BOAR to get approval for a fence permit. So the Office of Building Inspection is, at least of January 7th, aware and is requiring this property owner to comply. at the time mr. Crowe was not informed to issue a stop work order because this appeal you know you guys are now in charge of the decision about whether the decision of building inspection should be revoked and whether the building permits should have not been issued and a stop work order can issue the division of law has taken the position that it was in effect on December 3rd newspaper article was published on December 4th saying that was in effect conversations between the district's council person and the division of law on December 3rd confirmed that the H1 was in effect. On December 6th, the exact same day that Mr. Jones applied for his building permit, another member of the Pensacola Park neighborhood went down and was required to go before the BOAR, before she could get a construction permit. So everyone in city government is complying with the H1 as of December 3rd. other neighbors are being required to comply with the BOAR process as of December 3rd, but Mr. Jones is not. This is an equal protection issue that the entire neighborhood is entitled to be treated the same under this law, and they have not been. Now, speaking to the question of, well, what about this project might not comply with H-1? okay under in an H1 the BOAR is the person is the body that determines that okay the BOAR is the expert regarding guidelines and they would review the building materials the design and everything and then based on their expert guidance would make a decision about whether it was appropriate for the H1 district when an H1 overlay is in place that decision is to be left to the BOAR I can tell you for instance with these plans they call for a double wide garage on the front facing portion of the property. I don't know if Betty Kerr is here, but I would like to call her. I don't think that a double garage on the front of a property is okay in an H1 overlay. In addition, I'm not sure a BOAR would approve vinyl siding for properties within an H1 overlay. So we are dealing with a situation here where buildings are being constructed that could be detrimental to the historic fabric of this neighborhood. Now, I want to point out that when a planning commission forwards and decision to the City Council with a recommendation for approval, Section 4.502 of the Council Rules Control, and I'd like to read that into the record. It says, all ordinances or resolutions, except as otherwise provided in the Urban County Charter, shall be passed only by a majority vote of all council members. However, when the Planning Commission recommends that an amendment be made to the map of the zoning ordinance, as in an H1 zone overlay, at least eight council members must vote against the measure to disapprove it. Okay? The City Council took action. They did not get eight votes to disapprove it. It went into effect on December 3rd. This is the position that's been taken by every division of the LFUCG that's considered the matter since then, the law was just not applied to Mr. Jones due to an error. And we are here today to take the position that the decision of Dewey Crow to issue the building permits without BOAR approval and an H-1 overlay that was already in effect was erroneous as a matter of law and should be reversed. Thank you. Thank you. Okay, at this point I'm going to close the public portion. We're going to take a 10-minute recess. Thank you. Thank you and welcome back. I apologize for the late start. I'm always very overly optimistic on how long it's going to take to have a recess with this group. But we are now back on camera and we're ready to proceed. At this point, the public portion is closed. I'm going to open it up to any board members who may want to have comments, discussions, if you want to have further questions of anybody at this point. if not we can move towards a vote it's I'll leave it up to the board's discretion so proceed as you guys may want and I don't know that there's any further discussion so I was gonna make a motion but before I make the motion I will say you know it does seem like a very complicated issue I think both sides had very valid points so for me I just felt like sticking with the letter of the law, which I guess is what's in question here. But in any case, I move to disapprove PLNBOA 20-06, Pensacola Park Neighborhood Association's administrative appeal, based on the following. 1. KRS 100-2117 requires that a legislative body shall take final action upon a proposed zoning map amendment within 90 days of the date of its final action. 2. The Planning Commission on this matter took final action on October 24, 2019, so the 90 days from that date was January 22, 2020. Thirdly, on December 3, 2019, the Urban County Council could not accomplish eight votes on any action related to the H-1, and therefore that was not final action, so the H-1 overlay was not in effect until January 22, 2020, and the building permits were not issued in error. Is there a second? I second the motion. At this time, does anyone want to discuss the motion? I would like to simply say that I think there's a lot of discussion here that needs to be had, but this is not the time or place. I think that it seems like to me that Mr. Jones did a lot of what he needed to do to make this project happen. initially not knowing that the H1 was going to be in play. On the other hand, the Neighborhood Association saw it happening and wanted to prevent this kind of development. And so they did what they needed to do to make this happen. So I think it's important that we realize that a neighborhood like this has the right and the, just not only the right, but the momentum to make something like this happen. And I'm disappointed that it's happened like this. It's really not anybody's fault. And Mr. Simpson made a good presentation. Ms. Winters did as well. I'm going to vote against the motion, but at the same time I understand the emotion and the idea of that. I do disagree that the H-1 was not in place until January. I think it was in place as soon as the council failed to disapprove it. And so I would think that would be the case. On the other hand, at that point, Mr. Jones had done a lot of work already anticipating this. So I'll vote against it, but I understand both sides. Thank you, Mr. Chair. Any additional comments or discussion? Hearing none, then we'll call a vote. The motion is approved to disapprove the appeal. And so, of course, you guys are all, the losing party is welcome to appeal this to the circuit court at this point. But that finishes this case. And I can say, not the vote is over. I am very sympathetic to the neighbors. I think that the process for them, I've kept up with it. It's been difficult. And I will say for me, for one, this was a difficult case for me to decide. But having looked at the land use and what I would expect on majority rules and voting in the city council, if this had been a 5-4 decision, I still think it would not have been approved because I think you need eight votes in the city council to make that happen. So with that being said, good luck with your hope, not hope, but pending appeals. Thank you. Okay, so that takes us, that finishes the business portion. Does the staff have anything at this time that they wish to present to us? The next meeting will be on March 9th, 2020, at 1 30 p.m my understanding is we will have a full docket 12 cases so we will have 12 cases next month so bring dinner um and i'm going to uh adjourn since there's no further business thank you you