# Board of Adjustment Meeting - March 27, 2009 > Auto-transcribed civic record · March 27, 2009 - **Permalink**: https://meetings.lexingtonky.news/meeting/882 - **Source video**: https://lfucg.granicus.com/player/clip/882?view_id=14&redirect=true - **Date**: 2009-03-27 - **Last revised**: July 17, 2026 - **Length**: 26,149 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 Lexington Fayette County Board of Adjustments met on March 27, 2009, at 1:02 p.m. in the Council Chambers at 200 East Main Street, Lexington, Kentucky, with Chairman Peter Brown presiding. The board considered nine agenda items, taking eight votes and hearing three public comments during the session. The board's actions included four approvals, two postponements, one withdrawal, and two denials. Approved items included a variance to reduce side yard setbacks for Manuel Hernandez, a conditional use permit for a child care facility operated by Rozenna Boyd, and two administrative reviews for nonconforming use changes by Moveable Feast and Nader Iweimrin. Two items were postponed for further consideration: a conditional use permit for a drive-through pharmacy by Joy & Associates, Inc., and a conditional use permit and variance for a parking lot by Broadway Christian Church. Darrin Darnell's conditional use permit application for a horse riding facility was withdrawn. The board denied an administrative review for a drive-through liquor store requested by Ephraim Alami and denied an appeal by Michael Cavey and others regarding crematory use in an I-1 zone. ## Attendance **Present:** Peter Brown, Barry Stumbo, Louis Stout, Kathryn Moore, Janice Meyer, James Griggs, Jim Hume, Barry Brock, Jim Gallimore, Rochelle Boland, Jim Marx, Bill Sallee, Wanda Howard, Nick Nicholson, Darryl Nunnelley, Robert Dever, Rozenna Boyd, Blake Eames, Terry Mullins, Nader Iweimrin, Ephraim Alami, Michael Cavey, John Pappas, David Ponder, William Vareles, Bruce Simpson, Brad Hawkins, Richard Davis, and Chaz Hyde. **Absent:** Carolyn Edwards **Late:** None ## Votes and Decisions **C-2009-14: Joy & Associates, Inc. Drive-Through Pharmacy Appeal** [timestamp: 0:12:48] Motion by Louis Stout, seconded by Barry Stumbo. The appeal for a conditional use permit for a drive-through pharmacy in a B-2 zone was postponed by unanimous vote. All six members voted in favor: Peter Brown, Barry Stumbo, Louis Stout, Kathryn Moore, Janice Meyer, and James Griggs. **CV-2009-9: Broadway Christian Church Parking Lot Expansion** [timestamp: 0:14:00] Motion by Janice Meyer, seconded by Kathryn Moore. The appeal for a conditional use permit and variance for church parking lot expansion was postponed by unanimous vote. All six members voted in favor: Peter Brown, Barry Stumbo, Louis Stout, Kathryn Moore, Janice Meyer, and James Griggs. **V-2009-19: Manuel Hernandez Side Yard Variance** [timestamp: 0:27:40] Motion by Louis Stout, seconded by Barry Stumbo. The variance to reduce the side yard from 20 to 15 feet for a building addition in a B-1 zone was approved by unanimous vote. All six members voted in favor. The approval includes conditions requiring the proposed addition to be undertaken in accordance with a revised site plan eliminating a 9'6" wide one-way traffic aisle along the north side of the building, and requiring all necessary permits from the Division of Building Inspection prior to construction. **C-2009-12: Rozenna Boyd Child Care Facility** [timestamp: 0:32:10] Motion by Barry Stumbo, seconded by Louis Stout. The conditional use permit to establish a child care facility in an I-1 zone was approved by unanimous vote. All six members voted in favor. The approval includes six conditions: limiting capacity to 65 children Monday through Friday from 6:00 AM to 6:00 PM; obtaining an occupancy permit; removing a shrub at the northeast corner to facilitate emergency egress; fencing the outdoor play area; complying with Kentucky Cabinet for Health and Family Services requirements; and parking only in designated spaces. **A-2009-15: Meal Prep and Delivery Service Use Change** [timestamp: 0:45:51] Motion by Kathryn Moore, seconded by Louis Stout. The administrative review to change a nonconforming use from restaurant to meal prep and delivery service in an R-3 zone was approved by unanimous vote. All six members voted in favor. Conditions require obtaining permits from the Division of Building Inspection, undertaking the activity in accordance with the submitted application including March 12, 2009 supplemental information, and limiting use to no more than two delivery vans except for volunteers' vehicles. **A-2009-17: Retail with Restaurant to Restaurant with Retail Use Change** [timestamp: 0:47:30] Motion by Janice Meyer, seconded by James Griggs. The administrative review to change a nonconforming use from retail with accessory restaurant to restaurant with accessory retail in an A-R zone was approved by unanimous vote. All six members voted in favor. Conditions require the applicant not to exceed the scope of the approved use, obtain all necessary permits from the Division of Building Inspection, and comply with all applicable zoning and health regulations. **A-2009-16: Ephraim Alami Drive-Through Liquor Store** [timestamp: 0:39:28] Motion by Barry Stumbo, seconded by Kathryn Moore. The administrative review to establish a drive-through liquor store in an R-3 zone was denied by unanimous vote. All six members voted in favor of the denial. **A-2009-18: Crematory as Principal Use Appeal** [timestamp: 0:39:28] Motion by James Griggs, seconded by Kathryn Moore. The appeal to allow a crematory as a principal use in an I-1 zone was denied by vote of 5-1. Members voting in favor of the denial: Peter Brown, Barry Stumbo, Louis Stout, Kathryn Moore, and Janice Meyer. Member voting against: James Griggs. The decision requires that a crematory use obtain a conditional use permit. ## Public Comment Three speakers provided public comment during the meeting. **Drive-Through Liquor Store Opposition** Janet Coleman testified at [timestamp: 1:13:07] in opposition to a drive-through liquor store window at 502 E 7th Street. She expressed concerns that the drive-through window creates safety hazards for pedestrians and children, obstructs visibility, and negatively impacts the neighborhood's image. Coleman emphasized that the community should not be forced to accept illegal uses. Carla Clark spoke at [timestamp: 1:20:46], also opposing the drive-through liquor store. Clark stated she has lived in the neighborhood since 1977 and confirmed that the drive-through window was not in use until 2008. She criticized the lack of transparency in the petition process and questioned the legitimacy of the signatures collected in support of the operation. **Crematory Opposition** David Ponder testified at [timestamp: 2:23:37] regarding opposition to a proposed crematory near Newtown Pike. He stated that the crematory would severely impact his property and the planned revitalization of the area. Ponder emphasized the need for a public hearing to ensure community input on the proposal. ## Contested Items The Board addressed two contentious matters during this meeting: **Crematory Use in I-1 Zone** The Board was divided on the classification of a crematory as a permitted use in the I-1 zone. The core disagreement centered on whether a crematory should be considered a principal use or a conditional use under the zoning ordinance. Five Board members voted to deny the appeal, while one member voted to approve it. The dissenting member cited the need for a public hearing and noted ambiguity in the ordinance language regarding this use classification. **Drive-Through Liquor Store in Residential Zone** The Board considered a proposal for a drive-through liquor store window in a residential zone. Multiple residents testified in opposition, raising concerns about safety hazards and lack of visibility associated with the proposed drive-through window. Residents also expressed concerns about negative community impact. The Board ultimately denied the appeal, determining that the proposal constituted an expansion of a nonconforming use and therefore did not meet the criteria for approval. ## Joy & Associates, Inc. - Conditional Use Permit for Drive-Through Pharmacy **Case Number:** C-2009-14 **Type:** Appeal **Outcome:** Postponed This agenda item addressed an appeal for a conditional use permit to operate a drive-through pharmacy in the B-2 zone [timestamp: 0:11:08]. **Key Issues** Staff identified several concerns with the proposed development: - Encroachment into the Water Street right-of-way - Need for an adequate landscape buffer to address urban character concerns - Traffic safety considerations **Staff Recommendation** The staff recommended postponement of the appeal to allow the applicant time to submit an amended site plan. The revised plan was intended to address the identified traffic safety and urban character concerns, as well as resolve the right-of-way encroachment issue. **Speakers** Nick Nicholson participated in the discussion of this agenda item. **Action** The appeal was postponed to permit the applicant to revise and resubmit the site plan with modifications addressing staff concerns regarding traffic impacts, landscape buffering, and the encroachment into the Water Street right-of-way. ## Broadway Christian Church - Conditional Use Permit and Variance for Parking Lot **Agenda Item:** CV-2009-9 **Type:** Appeal **Outcome:** Postponed [timestamp: 0:13:27] Broadway Christian Church requested approval for a conditional use permit and variance related to expansion of its parking lot and reduction of the landscape buffer requirement. **Staff Recommendation** Staff recommended approval of the conditional use permit but recommended disapproval of the variance request. The disapproval recommendation was based on public safety concerns associated with reducing the landscape buffer. **Discussion** Darryl Nunnelley was the key speaker on this agenda item. The discussion centered on the church's parking lot expansion plans and the associated request to reduce landscape buffer requirements. **Action** Rather than proceeding to a final decision, the board postponed consideration of this matter to allow for further planning and review. This postponement provided an opportunity for additional analysis before the conditional use permit and variance requests would be reconsidered. ## Darrin Darnell - Conditional Use Permit for Horse Riding Facility **Identifier:** C-2009-13 **Type:** Appeal [timestamp: 0:14:30] The appeal concerning a conditional use permit for a horse riding, training, and boarding facility in the A-R zone was presented to the board. Jim Marx was the key speaker on this matter. The applicant, Darrin Darnell, withdrew the appeal during the meeting. No further discussion or action was taken on this item as a result of the withdrawal. **Outcome:** Withdrawn ## Manuel Hernandez - Variance to Reduce Side Yard **Case Number:** V-2009-19 **Overview** The Board considered a variance request to reduce the required side yard setback from 20 feet to 15 feet for a building addition in the B-1 zone. [timestamp: 0:15:05] **Key Participants** The discussion involved Robert Dever and Jim Gallimore. **Decision** The variance was approved. The Board accepted the staff's recommendation and associated conditions for the project. **Conditions** As part of the approval, the Board required closure of a narrow traffic aisle. ## Rozenna Boyd - Conditional Use Permit for Child Care Facility [timestamp: 0:28:12] **Applicant:** Rozenna Boyd **Request:** Conditional use permit for a child care facility in the I-1 zone **Outcome:** Approved **Conditions:** The conditional use permit was approved with six conditions. These conditions include vehicle parking restrictions and safety measures that the applicant agreed to abide by. **Key Details:** Rozenna Boyd presented her application for a conditional use permit to operate a child care facility in an I-1 zoned area. The permit was granted contingent upon compliance with six specific conditions designed to address parking and safety concerns associated with the facility's operation. ## Moveable Feast - Administrative Review for Nonconforming Use Change [timestamp: 0:32:48] The administrative review addressed a request to change a nonconforming restaurant use to a meal prep and delivery service operating in the R-3 zone. Key speakers Blake Eames and Terry Mullins presented and discussed the proposal. The administrative review was approved with three conditions imposed on the operation: * Limit of two delivery vans for the service * Requirement to submit operational details The approval allows the existing nonconforming restaurant use to transition to a meal prep and delivery service model while maintaining compliance with zoning regulations through the specified conditions. The delivery van limitation and operational disclosure requirements were designed to address potential impacts on the residential zone where the business operates. ## Nader Iweimrin - Administrative Review for Nonconforming Use Change **Identifier:** A-2009-17 **Overview** The administrative review addressed a request to change a nonconforming use from retail and restaurant to restaurant with accessory retail in the A-R zone. [timestamp: 0:46:23] **Outcome** The administrative review was approved with three conditions requiring compliance with zoning and health regulations. **Key Participants** Nader Iweimrin presented the request for the nonconforming use change. ## Ephraim Alami - Administrative Review for Drive-Through Liquor Store [timestamp: 1:09:16] This agenda item (A-2009-16) involved an appeal by Ephraim Alami regarding an administrative decision on a proposed drive-through liquor store. **Key Participants** The discussion included Ephraim Alami, Janet Coleman, and Carla Clark. **Issue** Alami appealed a denial of his proposal to establish a drive-through liquor store in an R-3 zoned area. **Board Ruling** The Board determined that the drive-through liquor store constitutes an expansion of a nonconforming use. According to the Board's decision, such an expansion requires a conditional use permit rather than proceeding under the existing nonconforming use classification. **Outcome** The appeal was denied. The Board upheld the original administrative decision, maintaining that the proposed drive-through liquor store cannot be approved as proposed in the R-3 zone without obtaining the required conditional use permit. ## Michael Cavey et al. - Appeal on Crematory Use in I-1 Zone [timestamp: 2:22:31] This appeal addressed whether a crematory should be classified as a principal use or conditional use in the I-1 zone. The Board heard from key speakers including Bruce Simpson, Brad Hawkins, and Richard Davis. The central issue was the proper interpretation of the zoning ordinance regarding crematory operations. The applicant appealed the determination that would have required a conditional use permit for the crematory facility. The Board's decision focused on the plain language of the ordinance. The Board ruled that the ordinance explicitly lists crematory as a principal permitted use in the I-1 zone, not a conditional use. Based on this textual analysis, the Board determined that the applicant must proceed with obtaining a conditional use permit rather than having the use reclassified. The appeal was denied. --- ## Decisions - **C-2009-14** — postponed (0-0): Postponement of Joy & Associates, Inc. appeal for conditional use permit for drive-through pharmacy in B-2 zone - **CV-2009-9** — postponed (0-0): Postponement of Broadway Christian Church appeal for conditional use permit and variance for church parking lot expansion - **V-2009-19** — passed (0-0): Approval of variance for Manuel Hernandez to reduce side yard from 20 to 15 feet for building addition in B-1 zone - **C-2009-12** — passed (0-0): Approval of conditional use permit for Rozenna Boyd to establish child care facility in I-1 zone - **A-2009-15** — passed (0-0): Approval of administrative review to change nonconforming use from restaurant to meal prep and delivery service in R-3 zone - **A-2009-17** — passed (0-0): Approval of administrative review to change nonconforming use from retail with accessory restaurant to restaurant with accessory retail in A-R zone - **A-2009-16** — passed (0-0): Denial of administrative review for Ephraim Alami to establish drive-through liquor store in R-3 zone - **A-2009-18** — passed (0-0): Denial of appeal to allow crematory as principal use in I-1 zone; requires conditional use permit --- ## Full transcript Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. I'm sorry. Thank you. Thank you. Thank you. Thank you. I love you Thank you. Thank you. I love you. Thank you. Thank you. I'm sorry. Thank you. Good afternoon. Welcome to the March meeting of the Lexington Fayette County Board of Adjustments. I'd like to welcome you all here. I'd also like to ask those of you with cell phones to please either turn them off or turn them to silent mode. And I'd ask that anyone who anticipates giving testimony here today to raise the right hand and I ask you to swear or affirm that the testimony you will give today will be the truth. All right, thank you. There are no minutes to approve today, so we'll sound the agenda. Is there anyone here who's here to postpone or withdraw their item? My name is Nick Nicholson. I'm here on behalf of Joy and Associates Incorporated. It is C 2009 14 We're going to be submitting I believe an amended site plan we're working with the staff in order to resolve some of their concerns about the traffic problems with the CVS and We respectfully request a postponement Okay, and how long a postponement would you like? I believe just till the is it the April meeting that's next I would hope that we would be able to resolve issues by then. All right. Now, Mr. Nixon, when you come back, I'd like for your client to provide some three-dimensional drawings. Okay. I don't know if the proper term is rendering or perspectives, but whatever they're called, I want some three-dimensional drawings for you. And I'd like you to have that in our packet with the other information you'd submit. and if they have a model that they have built I'm not asking him to build a model but they have one if we have one if we have one like you to bring that for us to examine we certainly will convey those the salts to thank you sir any discussion concerning mr. Nicholson's request to postpone should we see if there's anyone here that came to testify in that case thank you mr. Grace keep me in line. Is there anyone here that came to testify or be heard on the in the Joy and Associates case? Okay. All right. Mr. Stout's move to postpone join Associates at their request to the April meeting. Is there a second? Second. Okay. All those in favor please signify by saying aye. All those opposed? All right. Thank you. We'll see you next month. You all have a good afternoon. Thank you. All right. Is there anyone? Oh, hello. Snuck up on me. Sir, would you state your name, please? Daryl Lunley, representing Broadway Christian Church. Okay. We also would request another month just so that we can get some more specific drawings for Mr. Gallimore and some more specificity on everything we're doing that we think we've worked out with the neighborhood and hopefully with the staff, but we'd like another 30 days No problem. Now, are there any folks here that were here to testify in the Broadway Christian Church case? Okay. Is there a motion concerning Mr. Nunley's request? I move we propose to postpone until April 24th. Okay. All right. Thank you, Ms. Meyer. Do I have a second to Ms. Meyer's motion? Thank you. All those in favor of postponing the Broadway Christian Church until our April meeting, please signify by saying aye. Aye. All those opposed? See you next month, Mr. Mayer. Thank you, sir. All right. Are there any other postponements or withdrawals? Mr. Marks? Yeah, we have a withdrawal letter for Darren Darnell. That's on page 3, C 2009-13. That was the conditional use for the horse riding training and boarding facility. And it's a withdrawal letter, so you don't have to have any action. It's for your information. Okay. Thank you. And let's see. Okay. So no other postponements or withdrawals, so I'll sound the agenda. First case is V. 2009-19, Manuel Hernandez. Is the applicant here? Okay. Are there any objectors to this case? Okay. It's my understanding that the C2005-53 offender funeral directors was docketed in error. Is that correct? It should be docketed for next month. Next case is C2009-12 Rose Zena Boyd. Is that your Miss Boyd? Yes. Okay. Are there any objectors here for this case? Next case is A 2009-15, movable feasts. The applicants. Are there any objectors here for that case? A 2009-16, Ephraim Alami. Okay. Thank you, Mr. Milner. Are there any objectors here for that case? Okay. Thank you. 16. One objector. Okay. Mr. Miller, you might want to speak with the objector, see if you can resolve her concerns. Next case is A. 2009-17 Nader Weimerin. I beg your pardon, you're here, sir? Okay. Are there any objectors here for that case? And then A2009-18, Michael Cavey, John Pavas, David Ponder, and William Vareles. You're here representing the applicant, Mr. Simpson? And are there objectors? Mr. Hawkins, welcome. Thank you. All right. Now, are there any cases I did not call or anyone that didn't hear the case they were here for? Well, in that case, we'll start out with the cases where there are no objectors and the staff has recommended approval. first one of those is v 2009-19 emmanuel hernandez please come forward to the podium yes i'm robert deaver i'm here for mr hernandez i'm his architect mr deaver thank you for being here i've also brought a letter from the property owner across street offering or saying that he could lease additional parking if required. I think that was one of the issues. All right would you give that to Mr. Marks please. Now are there any questions here for Mr. Deaver? I stopped by there over the last few days and there's a chain blocking the entrance to the back of the parking lot from the street, that's certainly going to be removed. It could be. Well, the entrance on Davenport is chained, closed now, so I guess that the rear entrance, that's been closed for some time. There's two accesses onto Alexandria that are primarily used I think that was put there to keep people from cutting around avoiding the four-way stop but according to the drawing that'll be opened if this construction is done yes it can be if that's that's something you desire it will it will be open well I guess I'd like to get traffic engineering's opinion that the entrance from Davenport would be open if this is approved? I didn't realize that it was closed because I was just going by what was on the site plan actually showing Davenport as being functional. Well would it be important to you to have that open because it's got a pole post in the middle of it and a chain swagged across it? I guess my point is if an entrance is closed and it has to be formally closed you can't just hang a chain across it and call it closed the curb and gutter and median would have to be restored if if we were to approve the closure of the entrance. Okay. We don't have a problem with the closure of the entrance as long as the other entrance allows them to fully access the property. From the site plan, it does indicate that can happen. I don't know if it's important for it to be open or closed, but I just thought it should be talked about. Great. Thank you. Well, if it was closed for a purpose keeping cars from taking shortcuts through there? That was my understanding. I believe it's used though when he backs his trucks in to unload. How would you prevent that from happening now if you opened it? Is there any explanation for that? Is it going to be more of a problem if they open it and allow the cars to take shortcuts through there or is it going to be more advantageous to them to keep it closed with the permit from city government um i guess one of the issues that i see that's always a factor is we work very closely with solid waste as far as them being able to service dumpsters i don't know if that's an inconvenience for solid waste for that entrance to be closed or not so that would be a factor it could be that this shot map does not show the proximity to the four-way stop if it is in fact close very close to the four-way stop it may be creating an accident potential and may be better off being closed i don't feel that that i would have enough information presented in this packet to make a recommendation whether or not it should be closed or not my only point is if it is deemed to be closed and we would approve that that it would have to be closed in the proper manner and that is not just by a chain not allowing vehicles ingress and egress from that property I don't have a problem with approving the request but I do think that needs to be cleared as to how that's going to work back there yes relative to it being chained or unchained it's it's been chained for for a few years I know that he opens it up periodically for trucks but we can we can do whatever you need there thank you mr. Gallimore I had a question for you mr. Gallimore yes sir I have a question for you did you consider whether it would be better to have the addition not be as wide and then have the drive be wider with that and I'm not I'm just trying to spitball here would that that make the the the the drive there on the side would that make it more user friendly if it was a little bit wider that would be fine with us nine and a half feet is definitely too narrow for a drive-through particularly when you're talking about with no clearance on the side you're talking about nine and a half feet with a building on the corner so i see a lot of a lot of vehicles raking their mirrors trying to go down something that narrow what's the minimum that you look for we generally like to see a 12-foot lane and that may be an actually a 10-foot lane with a two-foot buffer if you notice a lot of times when you go down a driveway next to a building you'll see a small curb that keeps you about a foot off the building. So I'm talking about a clearance of 12 feet and, like I said, maybe a driving lane of about 11 or so feet. So it would look like to me the applicant may either want to make his, if he wants that lane, which looks like it could be accommodating for possibly a drive-through window at some point, he could widen the lane or else he could, by making his expansion smaller, or else he could make his expansion bigger and take up more of that room. So somewhat flexible on our part. I guess my concern is somewhere along the line with Jimmy's down there is that if you open it and you don't make it wider, you create probably a problem going through there. If you don't want it open, then it would seem to me the best way to do that is to try to get it closed off legally. through you guys don't you wouldn't that be more feasible it looks like i think it's somewhat of an operational issue uh like i said uh the entrance probably should be formally closed being that close to the stopway sign the four-way stop if if you take that into consideration it looks like that maybe this this drive-through lane might would be more important to it but I don't know that that traffic engineering would would force that issue we might would be more inclined to want to close the entrance on a formal basis and looking at it looking at it right now from we're visualizing it the advantages for this for this proposal is that it'd be closed in my estimation because you open it and you just create a problem going through there Let me ask Mr. Deaver a question. The staff is recommending that the traffic aisle be closed. The side drive parallel with Devonport, we were prepared to abandon that. I'd left it, the comment came back from traffic that it was too narrow. We're in agreement with Condition 1. So you're not opposed to doing that then? No, not at all. And so you've reviewed the two conditions and you and your line are okay with those? Yes, we're okay with both of those. Okay. Any other questions or discussion? If not, I'll entertain a motion. Mr. Chairman, I move that V-2009-19 manual and in-depth appeal for aberrance to reduce the required street side yard along Davenport Drive from 20 feet to 15 feet in order to construct a building addition in the neighborhood business B1 zone on property located 1400 Alexander Drive Council District 11 be approved as recommended by the staff and subject to the two conditions. Thank you, Mr. Stout. Is there any discussion concerning the motion? Okay. None, I'll ask for a second. Second. Thank you, Mr. Stumbo. All those in favor of Mr. Stout's motion, please signify by saying aye. Aye. All those opposed? Motion passes. Good luck to you, sir. Buon sorte. Our next case will be C2009-12, Rosina Boyd. Excuse me. Stephanie, are you Ms. Boyd? Yes, I am. Ms. Boyd, the staff has recommended approval for your conditional use requests subject to five conditions. Have you reviewed those conditions? Yes, I have. Do you agree to abide by those? Absolutely. Okay. Mr. Chairman. Yes, sir. We do have a recommended sixth condition based on some more input from fire and emergency response. They'd like to have some better assurance that there won't be any parking of vehicles along the narrow drive aisle that's adjacent to the designated parking spaces. So I'll put that up on the overhead. It's pretty simple just to require that all parking of vehicles be in the designated spaces. Okay. Is that acceptable to you? Yes, it is. Mm-hmm. Now, this approval is for a total of 65 children. so you know that before you take that 66th child you have to come back before us we have some people that take a few dozen more and then come back not me okay I have the form too I don't know if you need it but somebody at the building zone and said to bring it from the fire marshal okay if I already do the initial do you need it or it's a well no it's not a copy you can make a copy of give me this one back okay if you don't need it fine are there any questions for staff for the applicant mr. chairman I would like to ask miss boy one we did get a we did get a letter from an adjoining property owner and that was concerned because it is an industrial I1 zoning there that there's a lot of there's a lot of heavy truck traffic a lot of 18 wheelers and I know that there was one one of your neighbors that was very concerned with with children small children running around with that sort of a traffic coming in and out of the the entrance there because I believe you're the the building that you talk about is the old white and associates building that you're taking over I guess I wouldn't know he would know that mr. Strickland who was in there I can only tell you that uh based upon me already running a facility now we have to abide by license regulations so it doesn't matter uh what premises you're on if you're located to whomever you got to make sure you have a fenced-in area for those children and then we have to make sure that we go beyond that for the safety of those children i can only assure you to the best of my ability what i already do now that's in place versus what i would do if we were able to go on 124 straight trade street they will be in a fenced area at times they won't be out there alone but they will not be able to just run around it's not like you end up in your own front or back your heart and that fenced area would be in the back I believe it would be on the side mr. Strickland on the side any other questions or discussion if not I'll call for a motion mr. chairman I'd like to move that C 2009 12 Rosina Boyd appeals for a conditional use permit to establish a child care facility for up to 65 children in a light industrial zone on property located at 124 Trade Street Council District 12 be approved with the six conditions as set forth by the staff second right thank you mr. Stumbo mr. stout all those in favor of mr. Stumbo's motion please signify by by saying aye aye all those opposed motion passes good luck to you Miss Boyd thank you Next case is A2009-15, Movable Feast. oh good afternoon okay uh ma'am would you state your name please blake ames ea m e s Yes. Thank you for spelling that. And your bodyguard? Terry Mullins. All right. Now the staff has recommended approval based on two conditions. Have you both reviewed the conditions? Yes. And do you agree to abide by those? Yes. Is there anyone has questions or discussion? I have some questions, so I'll jump in here. Ms. Eames, is your organization, is it a non-profit? Yes, sir. So it's a corporation? And why this property? Why this property? and we wanted to be this is the hub of the community that we serve our clients pretty much right in the center we wanted to be downtown we at this point are way out trent boulevard and we have delivery drivers that come monday through friday to run five routes to deliver all over fayette county and they are having to guzzle up gas to get all the way to past man war to start their deliveries. So this works out a lot better for us. Okay. Now the corner lot behind it looks like there could be some parking, but I don't know if that belongs to your back neighbors or if that belongs to you. It does not belong to us, no. Okay. And we have the street parking. We have one delivery vehicle that is just parked there during the day and is out, you know, picking up food and things like that. and then between you know 5 and 5 30 we have our our volunteers come load up and leave okay and there is enough street parking for that okay uh concerns i have or would be the traffic and the parking you just have one delivery van now but uh i don't want you to be a victim of your own success sure and then all of a sudden there's semis parked around the corner uh so i'm wondering if the staff is considered or would you be opposed to having some condition that limited the amount of traffic there? No, absolutely not. No. It may be addressed somewhat, Mr. Brown, in the condition number two. She did provide a lot of detailed supplemental information, which included the one delivery van. Okay. So the intent is for the general description they provided, which included the one delivery van to be part of what's approved here oh okay but was that in our materials I didn't see it well it's condition number two it might have gotten lost in the shuffle well that but what oh you mean the supplemental information right I'm not sure if you should have but maybe you didn't okay well that's that's my that's my problem then I don't have that to review do you think you have that in your materials here okay I think what I'll do is I'll would you mind if we reviewed that okay I don't know let's just give us a few minutes check to review that and then we'll come back because that might address my concerns I guess I think Thank you. I think while we're letting staff look for that additional letter, we'll move on to the next case. Oh, we got it. Okay. Okay. Okay. Okay. Okay. Okay. Pass this down here. You guys look at me. All right, Ms. Eames. Would you be opposed to us placing an additional – well, Mr. Marks, help me think through this. If they're saying they only have one cargo van now, do we need another condition that – I think it's in that information and we reference the date of that supplemental information, so we should be okay. Okay. And if they want to have additional vans and they have to come back and… That's probably something you might need to discuss. I think our intent was for it to generally fall within those guidelines. How picky you want to be about any little thing that's different than that, I guess you might need to discuss. Mr. Brown, the other point I would make, this is a non-conforming use. and there could be some question if they were to increase their vehicles, that it could be interpreted as an expansion. So I think the board may want to set a limit perhaps today just to prevent that in the future. Thank you both. I have a recommendation. Thank you. Mr. Stout. Based on where you are and where you're located, my recommendation would be that you not have any more than two vans. Okay. During this business. If you do expand, you would have to come back before this board. Okay. Or any additional. Okay. We would agree to that. And that would be anything over two would be considered an expansion of the nonconforming use. Absolutely. Ms. Boland, do we need to have a separate condition, I think, to make this enforceable? I think to make it clear I would add it to the conditions condition three no more than two delivery vans to be used in Connection with this business Miss needs are you that okay? Okay Where was this building last used? That's a good question. It's quite boarded up now. Well, yeah. Okay. It needs a lot of work. Well, let's see. I hate to be really picky, but the way it's written now, does that mean if they use some cars for deliveries, which presumably they will, there's going to be some sort of violation? Yeah, I agree with you, Ms. Moore. The truck that you, the cargo van that you have now, what is it used for? Picking up supplies? It is, yes. Okay. And then it also goes out on, it does one route a night. We have five routes Monday through Friday. Okay. And then it leaves the premises at night. The director takes it home with him. So Mr. Salee, can we put a comma after deliveries, something along the lines of accepting volunteer vehicles or vehicles driven by volunteers? Oh, that would be good. That's great. That way, the way it's drafted now, you wouldn't be able to use your volunteers. That would be bad. I know you don't want that. Rochelle had suggested no more than two delivery vans to be used in connection with his business. That sort of then doesn't, it's kind of narrower. I think if you put the part about the volunteers, is that? What we do in the evenings is we deliver, you know, so. So you want to have, be able to have the volunteers there. Okay. I have a question. There's a church across the street from you all? Yes. And would there be any ability for volunteers to park there? That would be wonderful. We could reach out and ask them. You know, at the time of day that it falls under, I would think that the staff that are there on a daily basis have probably left for the day. and it's not on the weekends. I don't know when there are church services. Can I clarify what I thought your question was? The volunteers come and pick up the food, and then they immediately leave. They're not there for very long. When you're talking about parking, I think you're referring to if they're going to be there for a while. Well, and that's true, and it's just a way to keep cars off from the street for people who are there preparing the food. We have a staff of two that prepare the food. We have generally very few volunteers during the day. On occasion we do. Except for the volunteers. Right. It's easy to read over here. No more than two. Two court will manage to be used for the business with the exception of the volunteers' delivery. Okay. All right. And. Can you read that? Yeah, I can read it. I'll be glad to try and read it for you. Okay, great. See if we've got it to everyone's satisfaction. Third condition would be no more than two delivery vans shall be used for this business except for volunteers' vehicles. That sounds good. There's more? Okay. And you'll go with that machine? Okay. So I've lost my place here. I read by motion. Okay. Thank you. Thank you. So any other discussions or questions? If not, I'll entertain a motion. Mr. Chairman, I move that A 2009-15 movable fees appeal for administrative review to allow a change from one nonconforming use restaurant to another nonconforming use meal preparation delivery service with offices in a planned neighborhood residential R3 zone on property located at 474-476 Silver Maple Way Council District 1 be approved subject to, for the reasons recommended by the staff and subject to the conditions recommended by the staff including the third condition. Thank you, Ms. Moore. Second. Second. Thank you. All those in favor of Ms. Moore's motion, please signify by saying aye. Aye. All those opposed? Motion passes. Good luck to you. Thank you so much. see okay second our next case is a 2009-17 mr. Wemerin afternoon how are you doing fine I'm sorry I'm butchering your name give me now that's the staffs recommended approval on your case and there are no objectors and the staffs base their approval recommendation on three conditions have you reviewed those because I have you do you agree to abide by those yes I do are there any questions or mister would you say it for me one more time I went around I went out any questions for mr. and there's no questions or discussions I'll call for a motion mr. chairman I move that case a dash 2009-17 Nader Nader Wimmerin appeals for an administrative review to allow a change from one non-conforming used retail sales with accessory restaurant to another non-conforming used restaurant with accessory retail sales in the agricultural rural AR zone on property located at 5569 briar hill road council district 12 be approved as recommended by the staff and subject to the three conditions okay thank you miss meyer is there a second second thank you mr priggs all those in favor of miss meyer's motion please signify by saying aye aye all All those opposed? All right. Motion passes. Good luck to you, sir. Thank you all very much. You're welcome. So there's that one. Okay. I don't have 18. There are objectives here. But I don't have any. Oh. I don't even know what it's about. It's this person's letter. Oh, that's it right here. Yeah. Okay. Looks like the next case is A. 2009-16, Ephraim Alami. Certainly. Would the regents of the East and staff be included in the record? Please. Thank you. Excuse me, could I have some of those exhibits, please? I don't know. Thank you. Thank you. That's a fence right there. Okay. Someone's living there. They'll be coming around. Back in front of it. Yeah. That's coming around from behind. Yeah. You would want those headlights at night shining into your house. So they'll come in here. Go this way. All right, Mr. Mitzelner, are you ready to proceed? If I may call her. Yes, sir. We had another witness that we spoke with him to be here today, and he's not here now. if he comes anywhere later. Yes, sir. Perhaps even once we have the hearing today, I know there's a projector here, and we're not going to ask it to be continued, but we may want to ask to present his testimony next month, perhaps. Okay. We'll see how it works out. Mr. Lyon, would you state your name, please? If I'm allowing me. Welcome. And he's been sworn earlier, Your Honor. Okay. Mr. Alami, I will ask you when you first began to operate the business of 502 E 7th Street. Yes sir. When did you start to operate that business? 2002. Okay speak up now. 2002. Okay and we have presented four exhibits. First one is exhibits 1A through I'll ask you to look at those. Tell me if those are photographs of the business that you operate there at that location. Yes, sir. And you took these photographs? Yes, sir. Okay, look at the first photograph there that you have. Tell me what that depicts, the 1A. The entrance of the building from the front view and the side. Okay. And the street that's in the front, that's E7th Street. E7th Street. Yes, sir. And tell me what that shows on the second one on B. It shows the side of the window on Shropshire with the window on the side. Okay. And that window was there when you moved into the property, is that right? Yes, sir. Okay. And that window was used to sell things out of? Yes, sir. What is 1C? This is another view of that window. Okay. And just to the right side of the picture, is that the rear of the building? Yes, sir, the rear of the building. Okay. And 1D? This is the rear of the building completely. Okay. All right. Let me ask you what the next one is on? This is the other side of the building with the drive, you know, the… Okay. Okay. And then last one, 1F, I think I said 1E was the last one, 1F. This is the window we're using now. Okay. Are you using that first window that you saw in the second photograph there? No, sir. We closed that one. We're using this one. Okay. And why did you close that up? The other window? Yes. It's the other window was causing like traffic, maybe jam, and it was a little bit unsafe for the people. It's right next to the sidewalk. It's a tub sign and it's wide walk. So this one, easier access. So that posed a problem for traffic? The first one did, but this one didn't. And the other side of the building where you have a window now, tell us what was there when you occupied the building. Was there a window there? Yes, sir. There was windows across the whole wall. And was that, that window had like a board covering, did it not? This specific window had a little bit of brick and a little bit of wooden board. Okay. I want to ask you now to look at this exhibit number two that we have. This is a drawing of the property, the building itself, and also the vicinity map. along 7th street that's the front of the building yes sir on the Shropshire Avenue side what type of black top covering this blacktop there behind the building what's what's there is a portion of concrete and the rest is blacktop okay and what's on the other side over there it's gravel gravel Okay. Were those things in place when you first occupied the building? Yes, sir. Okay. And you obtained a permit for retail sales in December of 2002, is that right? Yes, sir. And you obtained a permit for retail beer sales at the same time, is that correct? Shortly after. Okay. And you have maintained those licenses since then, is that correct? Yes, sir. I ask you to look at exhibit number three. It shows this is what is entitled Alcoholic Beverage Inspection Form. One indicates the retail beer approval and one the retail package license that's for liquor sales. Tell me if those were issued to you. Yes, sir. When was the one issued for the second one through package sales? 8905 And has that been in continuous effect since that date? Yes, sir. Okay, and when when you obtained that authority to operate there that was approved both of those by the building inspectors office is that correct? Yes, sir I ask you to look at number, exhibit number four. It looks like two legal notices that were published in the paper. Can you tell us what those were? The ABC recommend or require us to advertise 30 days to see if there's an objection for the, from anybody. And I actually had to run it twice because one of them I did not have my wife's name on it so they made me run it twice so I ran it for 60 days and still in there. Okay and and subsequent to that notice having been filed in the published in the paper were you able to obtain that retail package license? Yes sir. Okay and also on those other forms that you testified to they appear to have been approved by not only the building inspection that you mentioned but also the fire department? Fire Department, Health Department. And the Health Department. Yes. When you obtained these permits, did you rely upon these permits? Yes, sir. And what did you do in reliance upon that? Did you invest in your business? I invest my money and my wife's money in the bills. Now, I'll show you through exhibit number five. Tell us what those are. These are the ABC license from the state for subsidy market from 04, 05, 09, city and state. and then for blue blood liquor for Al-Alami, blue blood liquor for five or six or seven or eight and this is nine. Okay. And those are the licenses that have been issued by the local government and the state government for you to make these sales of beer and alcohol? Yes, sir. You mentioned that you had the one window on one side of the building and at one time you actually had the front door of the building open for people to come and go. That's right. Did that change? Yes, sir. I don't have any people come in anymore. Okay. Why is that? Because we have an incident where somebody tried to rob us. And 2 or 6, and my wife shot him, and he was killed. And I decided to do that for safety. Okay. So your wife shot him. Was she prosecuted for that? No. Did you and your wife hold a concealed weapons permit? Yes, sir. And did the police investigate that attempted robbery? Yeah, they investigate it all. And were you in any way punished as a result of that? No, actually it was in the morning, Sunday morning. We just opened up and I went inside to put some stuff in the cooler and I heard two gunshots. I went out, I found my wife shaking with a gun in her hand and she said she shot somebody trying to rob her. rather so I looked at the door I find somebody there and apparently somebody took a gun from him and his mask off because the tape showed that he had a mask and a gun mr. Miller I apologize for interrupting but I I want to try to get us back on track here does your client contend that he obtained a building permit to establish the drive-through part of his operation? No, Your Honor. Our contention is basically that there was a window when he occupied the building on the west side of the building and that's been closed and there was another window on the east side and he's just used that. So we think... But prior to recently, it's been a walk-up window, is my understanding. Is that correct? They had drive up on the west side and basically he just closed that and opened the window that was already in the building on the east side. Okay, but historically there has not been drive up on the east side, is that correct? They've been driving. They did not have a window open there to sell things out of like they had on the other side. Okay. That's correct. Okay, so they had a window there that wasn't in use as a drive-through. And now, when did you start using the window on the east side? After I got the permit to open the liquor store, and I closed the other one, and I opened that one. And I closed the... I don't know east from the... Are you talking about the original one? So when you're currently using, when did you start using that one as a drive-through? When we closed the door completely and we had permit to open liquor store with the window existing there. When they came, sir, to do the inspection, the window was there. The window was open there. Okay. And when was this? In 05, before we get the inspection? Referring Mr. Chairman to exhibit number 3, it looks like it was finally approved for the retail package license on August the 9th of 05 by the building inspections office. Okay. And then shortly thereafter, they had that shooting incident that is shown on Exhibit 6 as the police report and also a news item associated with that attempted robbery. That was in June of 06. At that time is when he decided that he didn't want to take a chance of people walking, just being able to walk into the store. Okay, so sometime after July 19th of 05 when he switched to having the drive-through on the east side, is that correct? Okay, I just want to make sure. I have a question. You've been operating this business with the drive-through window already? It's been operating for since I got the license, yeah. Like three years. permit with through the required permit what they gave me that when they gave me the inspection and the building inspection permit the vendor was there so I did not know that I was supposed to and I did what they told me to do mr. him can you help us out please all we ever signed off on was his liquor license or the retail sale of alcohol that's the only thing we ever signed and And that was that series of documents that were all stapled together there as far as ABC license. That's all that was ever signed on by us. We received a number of complaints on this issue, and we've already taken him to court twice over this without any resolution to the court system. Actually, we have a court date on the 24th of April as a pretrial hearing for this. During all this, we advised the applicant that he needed, first of all, if he wanted to do this, he would have to come to the Board of Adjustment. He actually went through three refusals before he ever applied through planning. And he kept putting this off and putting this off. So I cited him a second time. He got it continued until such time he could come here. There is no permit for the drive-through. There's no permit, and I have photographs from 2002 that show that there was nothing on that side, not the window, not the gravel, not any kind of access thoroughfare. He's basically just put us off and off and off on this. So he has no permit to operate? He has absolutely no permit for this. It's an expansion of a nonconforming use, which you cannot do. He added the liquor store after he bought the business and separated it. So he increased his hazard by putting in additional liquors for sale. So his court case is pending on what happens today. And we also think he's never supplied us with an accurate site plan. We feel like the new gravel that was put in, first of all, back to the gravel issue, can't do that. can't expand the use from the non-conforming for the drive-thru. And we feel like the gravel drive is possibly on the neighbor's property, and he refuses to give us any kind of indication that it's not. So he has continually eluded us or just failed to cooperate with us until we've pushed him into this corner. And I asked you a question over there. On this drive-thru window, will they have to go down the side and then back behind the building to come out? Yes, it goes all the way around. If you'd like, I could post these photographs on aerial photos of what existed and what exists now. Okay, that'd be helpful. Mr. Miller, I think I'd like to hear from the objector now, if you would, and you'll get a chance to respond. If I may, there's one other matter. Okay, sure. One thing that was just referred to about the neighbor's property, that's Mr. Peter Wright, who I spoke with and we anticipate would be here today to testify. If it would please the board, we could ask that he could come back next month to offer his testimony. I don't know why he's not here, frankly. But he spoke with my associate yesterday as well. As to the neighborhood, Mr. Lamek, we have presented exhibit number, it's the last one it's like number seven I think is a petition I think the board only we only have one copy and I think the chairman has that copy we've got the original here that was signed by a number of neighbors that are in favor of this request by mr. Alamo were you all going to tell us that this case was in court were you all going to advise this board that this case was in court I have a problem with you, with the way you're handling this. I think if this case is being heard right now from a legal standpoint and you're trying to get us to approve something to circumvent what the courts may do relative to your appeal, I have a problem with that. If I may tell you the agreement we have with the county attorney, and that is we told them we bring in this case and they said fine let's put this off if the board approves it then we've got no issue okay all right that's commonly done and that's true and i'll support that and that was part of the uh i guess the the deal uh even though this was the second time i've had to take him to court and the three times prior to that he refused to make application although he did come down and get a refusal this has just been a game for this okay may i say something certainly i i went to this gentleman he tells me i hire a lawyer i don't know anything about it anymore then that's what happened first lawyer i did i don't no longer have him and i hired mr millner here i don't know anything about the whole thing i call my lawyer i say everything is fine you know that's all i know What am I going to know about the procedure? We even met with his first attorney and discussed what was going on, and then for whatever reason his first attorney severed the relationship. And he specifically told you that he had Mr. Milner. And I can bring that. And we never heard from that. I'd like to hear from the objector now, please, and you'll get a chance to respond. Can I just ask a question to clarify here? You are not asking for a change from one non-conforming use to another. You're saying that I'm not quite sure what you're asking for. I think building inspection is saying this is an expansion of a non-conforming use. Is that correct? That's correct. And you're saying this is not an expansion. You're saying it's not an expansion because there was a little window on the west side and now there's a bigger window on the right side or east side, whatever, that according to you, you're not expanding it. You're not changing it. You're just moving the window from one side to another. That's your position, the applicant's position. I would like to add, I don't believe that this window is any larger particularly than the other. I think that one is smaller than the other. But basically that's correct. And because it's a non-conforming use, there was never permission granted for the use of the liquor store in the first place in a drive-through window secondarily. Is that correct? There was permission granted for the liquor store. Right, but not for the, there was permission. So why is it a non-conforming use? It's a retail, the use is retail sales, whether it's beer, wine, liquor, groceries, widgets. That's not the issue. The issue is the expansion of the non-conforming use by the installation of the drive-thru window. And that's, don't get caught up in the liquor or beer thing. It's retail sales and it's allowable retail sales. Okay. So the question is whether it's an expansion. It's an expansion of the nonconforming use because they did create a new pathway and a new area to sell. So they've expanded that. Okay. And there's the issue that's yet to be resolved about if the gravel is encroaching on the neighbor's property. Well, that's a civil issue between owners but certainly that's, you know, it had no permit and that's… And what is the case about that's going to be heard next month? The case being heard is an extension of this case. No permits, the expansion of the non-conforming uses. Basically the same things we're hearing here. But that case will be dismissed if we resolve things today. Is that correct? Not on my part, no. I'm going to prosecute from here on out. Okay. I'd like to hear from the objector, please. Hello Council, my name is Janet Coleman and I am the President of the Neighborhood Association, William Wells Brown Neighborhood Association. Unfortunately we did not catch everything as far as the liquors and all that is going on. My concern is the welfare of my neighborhood. I live in that neighborhood, a street up from where it is. We built a new school in that area. There are children that walk up and down that street. I've been around there. You cannot come in out of that liquor store. You can't see what's coming down the street. You can't see what's going up the street. And if that neighborhood is so bad that you have to lock your door, you're a neighborhood store. Everybody gets robbed. banks get robbed, but the bank does not close its doors. So then we have children that are walking to a liquor store window to buy candy. What kind of image are we giving our children that they go to the liquor store to get candy? There's not enough visual, anything going on there. And I don't see that when, if I'm going to build on my property up on Brackenridge, I have to get permission to do that. To just come in and say, okay, this is what I want to do and I just do that. And it's okay to do that. Where does it stop? Does that mean everybody in the neighborhood can be or whatever they want to and then come down here and say, this is what I want to do? If you're in our neighborhoods, then you need to apply by the same laws that we have to apply by. Not just come down and do whatever. And I'm sorry that somebody got shot or killed. But when you open up a business, that's all a part of it. You take a chance on being robbed, but you don't break the law and do what you want to do because something's happened to you. You know, I can't put a fence around my front yard because somebody broke into my house. You know, and I just don't think it's fair that we as a community, I don't know who he got to sign, but I am the president and an active president of that neighborhood association I meet every month. And that was an issue for us, that the drive-through is there was the issue to begin with. And then it really upset us to know that he put it there illegally. So can I ask you, so you've been a long-time resident? I've been there for six years. Okay, do you remember the old window? I don't remember. When I remember the old window was when they were there. Before then, there was no window. I mean, the window may have been there, but it was not in use. So is the new window being used more than the old window was? Oh, yes. I mean, it's constantly people going through there. I have actually been there myself. I've almost hit somebody because you can't get inside the store to buy anything, so you have no choice but to go through the window. So there have been people that the cars have been lined up, people have jumped in between cars. I've sat there. I watch everything that goes on in my neighborhood because, you know, we have a vague stigma. So I'm trying to do something about that. Okay. So we can't have all these other things coming in and saying it's okay to do. It's not. I've drove through there just to see how it would be. You can't see the cars coming down 7th Street because there's cars parked on 7th Street. So when you pull out of that driveway, you take a chance on getting hit. If somebody's walking across in front of the store and you're already at the, if you're coming out of the drive-thru, you can't see that person until you're right on them. And like I said, I have been in the drive-thru and people have literally just cut right in front of you. You're driving. They're breaking right in front of you to get to the drive-thru window. So then you're running a potential of somebody suing somebody that's driving their car because this illegal window is open and it should not be there. And I'm here on behalf of our community. I work on a lot of things, the steer heading committees and everything as far as the east end goes. That window is not acceptable as far as we are concerned, the ones that live in that neighborhood. We do not like the window. We don't appreciate the window. And my thing is that in order to get justice, you have to come down here. I've taken away from my day things that I need to do because my neighborhood is very important to me. I own that property. I own one that I'm going to live when I leave here. I'm going to the other. But that's my home. That's my neighborhood. And I'm concerned about my neighborhood. You know, I don't think my children should grow up to, I mean, the kids in the neighborhood go to the liquor store. I don't go to the liquor store. But you've got to go to a liquor store window to get a piece of candy. That does not make sense to me. And to me, that is not right. If it's a neighborhood grocery store, then we ought to be able to go into the grocery store. The door should not be locked to us. And if you feel that unsafe in our neighborhood, then you need to take your business somewhere else. Thank you, Ms. Coleman. Thank you. May I ask one question? Sure. Ma'am, I'd ask you to look at this label exhibit number 7 and tell me if the addresses that are shown on there are from your neighborhood. So, if you like to... These aren't even names that show up on our neighborhood. Rostro I don't know how you all got these names people sign okay I'm the president of the neighborhood association where's my name on there I live on Brackenridge Street well I live what women sir you ask me a question okay I don't know where these names came from okay Alabama it's not in my neighborhood it's Shropshire in your neighborhood Swaps is in my neighborhood 7th Street in your neighborhood oh what happens York Street is not in my neighborhood okay So if you're going to come up here and give this to me, then you give me the names that are the people within my neighborhood and within that district where he's putting that up. These names you have here, they're not all on there. They're not in my neighborhood. York Street is not in my neighborhood. Or any of those addresses in your neighborhood that are on these several pages here. What's the number on the 10th Street address? 6th Street Jefferson Street it's not in my neighborhood what is this right here looks like a whole old something those aren't names in my neighborhood there are some names on here that are in my neighborhood there are some names but how many of those names are in my neighborhood some of them yeah You know what I'm saying? But not all of them are in my neighborhood. Thank you. Thank you, Ms. Coleman. Yes, ma'am. Okay, first of all... Ma'am, would you say your name, please? Oh, my name is Carla Clark. I live at 720 Shropshire Avenue, and I have a burnout property at 713. I was mailed that letter to that property, and the mailman knows we live where we're at. I've lived there since October 1977. So that's always been a market, not a liquor store. If you look at the pictures I took just recently, it says Sub City Market. It does not say 7th Street Liquor Store. And if you're talking about names of people that objected, I've got names all around Jackson, Shelby, McGoffin Street, and 7th Street in Shropshire. There's not anybody that's not in that four-block area on my list of people. I don't have as many names as he's got, but I've got 43 actual people that live right in that area. I've got a picture of the property evaluation of the side of that building. There was no window there. None. And it's on that side he's got it, and it's illegal? Sorry. And he's not even the owner. We just printed this out today. He's not the owner of that building. He's renting that building. and like the lady was saying it says market we'd like to walk in and pick up our own purchases we don't want to be handed something out the window and said okay here this is what you get there was one lady that i talked to that's on here told me she bought ice cream out of that place and when they walked just from like five doors down across the street five doors behind that church across the street it wasn't worth eating they had to throw it away uh mrs clark i have a question for you okay now you've been living there for 30 plus years yes sir as best as you recall when did uh they start using the drive-through there on the east side it was sometime around uh end of summer first part of fall when they started using that last year Last year, yes, sir. Those doors were opened previously by the previous owners that's ever had that establishment. Okay, so sometime in 2008 is when they started using the driveway. Yes, sir. And like he said, he got that permit in 2000, opened it in 2005. No, sir. No, sir. It opened up late fall, I mean late summer, early fall in 08. And he says he's the owner and he's not. He's renting that property. we don't appreciate in our neighborhood that neon liquor sign up over the door because it's not a liquor store it's not stated anywhere on that building liquor store it says market and she's right we've had people coming from our church oh that's another thing we did have church members sign this too that have walked over there to buy bottled water and they are standing there in line waiting on his liquor purchase sales customers to move out of the way so we can purchase water or a candy bar or chewing gum or anything while we're having services over at our church and she's right you cannot the one lady stood there 15 minutes waiting on one of his customers to not only purchase their liquor but they fixed it right there in the car and was drinking it before she could purchase her bottle of water and her name is on my list all right thank you miss Clark any questions for miss Clark and if anybody wants to see the pictures I've got pictures all the way around the building myself mr. Brown I think it might be real helpful and I do have I'm sorry I do have two letters for two of the neighbors that their names are on here personal letters that they wrote me and to issue gives you all if you all want them and I've got a copy of all of this stuff for you all too if you want this. Mr. Marks? Since she's lived there for so long it might be interesting to hear if she has any knowledge of the use of the previous window that fronts on Shropshire. I was told I never went myself personally to purchase these things but I was told that they were selling crack kits out of that window on Shropshire Avenue and the police came in and had them shut it down. Did they ever sell liquor out of that window as far as you know? The only thing they had previously to this gentleman opening his liquor store was beer in that window most everything else was pop candy uh milk that's the only purchases made and all those mainly went through that front door because that door was not locked all right thank you is that helpful mr mark the only thing i'd add is whether or not that was a drive vehicles driving through to use that window or if it was people walking up to that window as far as i know it was always walk up Like he said, the area would run from here to about here. There's not room for a car to drive through. And if you can look, there's a stop sign on that corner. They'd have to almost run over that stop sign. Now, delivery trucks pull up on that concrete area when they make their deliveries to try to get out of the street a little. But no, sir, that window was never drive-through before that I can recall. The one that's currently closed? The one that's currently closed. And it's in my pictures, too. white painted wood and open sign above that one as far as I know was never used as a drive-through vehicle access all right thank you Miss Clark any other objectors here Mr. Hume is there anything Anything else you'd like to say? The first photograph being shown is the 2000. The first photograph here shows the building in 2002 and you can see the wall that's in question with the newly placed window there shows no gravel and no access to it and if there is a window big enough there for a drive through window it's hard to discern. The second window, this photograph was taken in 2007 and you can see the expansion of the gravel all the way around and into the neighbor's property along with no curb cut and a new awning and a window placed in that wall so it's a huge difference. Thank you. May I ask a question? Certainly. The first one you showed up there was a black and white photograph. It was a color photograph sir. Oh it was? Yes sir. You can see it right here. That's a color photograph. It may not show up color there but it's definitely a color right here if you'd like to look at the projector. Well, I just can't discern. Well, if you look right here at this color photograph, it's quite obvious. You can see green for grass down through there. Is that grass that grew up through gravel? I doubt it. No. I'm pretty – I would testify to that fact. And the lady that was just here, her name is Casey, she said that this window wasn't started to be used until 2008 say this photograph the second one you showed was in 2007. I'm pushing my phone if he starts coming on. That's correct. You told us earlier that you had cited Mr. Alami sometime. Yes sir prior to that. Prior to that photograph. No no not prior to this photograph this was taken in 2002. No I'm sorry the other second photograph. In 2007 yes I cited him twice prior to that. So her testimony that this thing started in 2008 is not correct. I can't testify for her. I'm not going to testify for her. I'm just asking you. I'm not going to testify for her. I didn't ask you to testify. I asked you what you know about her. What I know is what I've told you about her. Ma'am, one at a time, please. One at a time. Thank you. As far as I can remember, those doors were not closed permanently, and that drive-through window opened and no other way to get in the store until late summer, early fall. You're referring to the new window, not the old window. The new window. And you are not denying that there was a window on the other side. Yes, ma'am, I am. Not until he put that in there. Oh, the one on the Stropshire Street side? That was put in probably 2002. Okay, so you agree it was there, but you're in the position that there's much more traffic for the new side than the old side. There's vehicle traffic on the new side. There was, as far as you know, only pedestrian on the other side. Yes, ma'am. And there's some question about what was sold on the other side, but there's more traffic on the new window. It's vehicular traffic. It was grocery items, ma'am. You know, whatever's in the grocery store was what people would come up and purchase. Milk, juice, bread, cereal, candy. Okay. All right. Thank you, Ms. Clark. Mr. Hume, anything else? No, sir. All right, thank you. Mr. Milner. Mr. Chairman, we would ask that we be given the opportunity to have Mr. Wright, who is the owner of adjacent property, the property that Mr. Hume referred to, that he said that he thought there was some encroachment. We would like to present his testimony. He's not here today. We would ask that the matter be continued until next month until we can have him here. Well, sir, I don't believe that's an issue that's really before us. I think that what Mr. Hume said is correct, that that's an issue between the property owner and the two property owners. That's a matter they can take up in civil court. I think the matter that's here before us today was whether or not that your client had a permit to establish the drive-through and I think that you have agreed that he did not and that prior to his recent although there is some discrepancy is exactly when the drive-through on the east side was established that it has been recently and I don't think there's a dispute that a drive-through is an expansion of this already non-conforming use. So if I may address that. First of all, there's been a lot of discussion here today about things that are not before this board. I agree. There is no question that Mr. Alami has a legal right and has the permits to operate a liquor store there. It appears to be objectionable to the two ladies that came and testified. It does not appear to be objectionable to the number of people that have signed that petition, many of whom live right there in the neighborhood. it so that is what we call a red herring the bottom line is that there was a window there was a paved area on the west side of the building when mr alami occupied the building and by the way he's not ever maintained that he's the owner of this building that's another red herring and And because of its proximity to Shropshire Avenue and so forth, you want to close that up and move to the window on the other side. I do not believe that when you substitute one window for another window, it's an expansion. Well, I agree with you there. I think the problem here is that if the window had remained a walk-up window, I don't think we would have the problem. But changing it from a walk-up window to a drive-through window I think is where the problem occurs and that there hasn't been a motion or anything but in my opinion that's where the expansion comes comes into play if I may point out mr. Lamy testified that that people would drive up there so I don't think that I don't think we change from a walk up to a driver okay so that's that's the case thank you all right any questions for after staff anyone Mr. Long, you make one statement. Certainly. First of all, we do sell all the grocery items through the window. Second, the police department drive through the first window and the second window daily, on a daily basis. They pull up to the second window, drive through the window now, and they ask me when they following somebody, did he go this way or that way? And I was helpful to them all the time. And they drove through the first window. And you probably should check with the police department. They will tell you numerous cops that they drove through the first window and through the second window. All right. Thank you, sir. Yeah, I appreciate it. Can I ask staff one question? When did this become a nonconforming use? More than 2002. It's the drive-through that made it. The drive-thru is the nonconformity. It's the... The retail use. No, it's the drive-thru. No, it's a... Well, it's nonconformity came in with a zone change. Which was... Because it sits in a residential zone now, an R3 zone. Right. Drive-thrus are prohibited in an R3 zone. And how about retail use? It's a... Well, the retail use is a grandfathered use. It's been a market... Right, so it's a non... So it was, if they wanted to establish a retail use there right now, would they be able to? Not if it were never a market or any kind of retail use. So then the retail use in and of itself is the non-conforming use? The legal non-conforming use, yes. It predates the zone change that is now making it a residential zone. Okay, so once the window was added, whether that was added in 2003 when he started the business there or 2008 on the other side, that was actually an expansion of the non-confirming use. That's correct. Because the window was not there at the beginning of its retail use. Is that correct? Yes. Well, yes, prior to it going to an R3 zone. So sometime after it was zoned for R3, while it had been used for retail use for, let's just say, 20 years. Yes. It could maintain that use until such time it abandoned it for a period of time. So we've got a non-conforming use of a non-conforming use. Right. We've got an illegal use of a non-conforming use. Okay. Ms. Moore, also to answer your question about the zoning, according to the zoning map, the property's been zoned R3 at least since 1969. Okay, so it's been non-conforming as a retail use since at least 1969. Sometime after 1969, the window, the first window was added. Okay. No proof to the contrary. Was there a window when you purchased the property? There was, okay. I guess I'd like to know if, right here, can the applicant prove that there was a drive-up window before it went R3 and became nonconforming? Can you prove that there was a drive-up window before 1969 if that's when it became nonconforming? I cannot offer any testimony today about that, but if it's your pleasure, we'll certainly look into that. Well, I would think if you could prove that it had a drive-up window before it went nonconforming, then it would be an argument. Mr. Griggs, I'd like to not drag this out to the court systems for months and months more. Well, that's fine. Can you prove that it did not have a drive-up window before 1969? It's not my burden of proof, sir. I can. That's been a restaurant two times, two separate times in that one of them being my family-owned restaurant when I was like six years old, and I'm 52, so that was 46 years ago. That predates to 1969. Then when that one closed up, there was another restaurant. Walk in, eat, order your food, sit down and eat it, and then leave when you're finished. So no, sir, there was no drive-through window involved when it was restaurant. There was no drive-through window involved in the previous owners. Well, then I think the drive-up window is new and it's an increase in the non-conforming use and it's illegal. Can I also state something else I was thinking about? We have new stores that's been opened up in this city, Walmart and Hamburg. they have a separate entrance separate everything from their liquor store to their grocery store and even the two Meyers who are put in their liquor entrance is separate from their grocery entrance and I if they are required to do that why isn't everybody in the city required to do that a separate entrance a separate way to get in and a separate place to purchase your liquor thank you Ms. Clark. Thank you. All right. All right. There's no other discussion. I'll ask for a motion. Mr. Chairman, I did want to make a couple comments. And our decision here and the issues before us are not whether they are licensed to sell beer and alcohol. And obviously the separate entrances and those sort of things are not before this board today. Obviously the expanded nonconforming use is the issue here. And just a couple things really disturbed me, not only the expanded nonconforming use and no permit, but no cooperation with building inspection. And Mr. Hume has mentioned having to cite them twice. There seems to be a real lack of cooperation and listening to the people in the community as well. There is a safety hazard coming in off that driveway as I've inspected the property myself. I'd like to move the a 2009 16 Efren Alami appeals for an administrative review to allow a liquor store and drive-through sales window in conjunction with the non-conforming grocery store and planned neighborhood residential zone R3 and property located at 500 to 502 East 7th Street be denied How second All those in favor of mr. Stumbo's motion, please signify by saying aye aye all those opposed motion passes yes sir If I'm reading my agenda correctly, the only case that we have remaining is the A2009-18 Michael Kavey, John Pappas, David Bonder, and William Varales case. Mr. Marks, I'm looking at, I need some guidance from you. A case like this is, I don't recall a case like similar to this. Well, we don't get a lot of them, so. We don't do a staff report, so, I mean, we're available to answer questions as they come up. Is building inspection prepared to testify? Do they have any? Okay. Thank you. Mr. Simpson, welcome. Mr. Chairman, I'll be just one more second. Okay. I think things would make more sense to me if I could hear from Mr. Hume why they granted the permit and then for some reason that just makes sense to me. I hope that you'll indulge me. Thank you, sir. While he's on the phone, Mr. Brown, I might clarify that a permit hasn't been issued yet, so technically we kind of got the wording off a little on the way it was presented in the agenda. A decision was made by a building inspection that it would qualify as a principal permitted use to be permitted, but a permit hasn't been issued yet. unless that happened this morning mr. Neumann was I guess maybe trying to verify now whether or not that actually happened this morning oh thank you mr. smarts Sure. If you are, I'd just like to hear, one, if the permit's been issued, and if so, what you base that on. Okay. Yeah. Is your mic on, Mr. Yim? Hello. Thank you. And so what would be the basis on why you, if the final review is acceptable, why the permit would be issued? Because we have a, we do have a history of being, we talked about trying to be consistent. are three of these two of these facilities now existing in Fayette County. The first one was was brought about in 1998 and actually came to the board. So I looked up the old ordinance at the time and it seemed to be consistent in the way uh crematories were listed under the I-1. Crematory on its own is listed as a principal use in the I-1 zone. And it has been consistent that way ever since the ordinance which was amended through January 6th of 1997, which actually the Floyd Drive was issued. If it's principal use, then they don't have to get any approval from the Board of Judges. The second one was brought about in December of 98, and it was on Eastland Parkway. At that time, we went ahead and issued a permit and a certificate of occupancy based on the fact that crematories were of permitted use listed under the I-1 zone. When this applicant came in on 12-24-09, the gentleman who started the review process, for whatever reason, looked under conditional uses to where it is listed as a columbariums and crematories and it's also issued or listed as a principal use as crematory only. So now, you see, so we caught that mistake and the basis of that was as a crematory and in, for lack of a better term, an industrial process allowed in the I-1, it's a standalone process where a columbarium and a crematorium is not only a process but a storage venue and a visitation and a service venue which would attract traffic and other nuisances. So the paired together warranted it to be heard by the Board of Adjustment and I think fairly so. So we rescinded the refusal allowed them to issue or at least submit for a permit and go through the plan process because now we were certainly being consistent, as was the language of the ordinances for the last 12, 14 years, and we felt very firm on that stance. And we had they been more prepared or more efficient about their paperwork, we would have already issued this permit and they would have already started construction. without any problem. So it's just an oversight that... Just an oversight and easily done. Obviously, we did it the first time, and once we looked at it, we thought, well, you know, even though it was approved by the board and we've had no complaints on it since, the second time it came around, we knew it was there. We acted accordingly and issued it legally, and this time we caught it again and allowed them to submit a permit application. Go forward with the permit. And go forward through the review process, to which we are at a point now that we could probably issue this permit in the next week or could have a week ago, and they could be under construction. All right. Thank you, Mr. Hume. Any other questions for Mr. Hume? All right. Mr. Simpson? Thank you, Mr. Chairman. I'm Bruce Simpson. I'm here today, along with Brad Hawkins, attorney, represent Mike Cavey, David Ponder, Bill Varellis, John Pompas. Brad is particularly personal legal counsel for Mr. Ponder. And I'm going to try to focus in on the issue before this body in terms of our appeal. And it is, to a certain extent, legal, but I have to make it to this body. First, you all have the power as the Board of Adjustment to review interpretations by building inspection of the zoning ordinance and make a collective decision as to whether considering all of the evidence and the facts and the policies that would apply to that decision and the consequences, whether they were correct. And as you know, we were set to be heard on this case on January 31st of this year. The applicant filed, went down to building inspection in December, December 11th and tried to get a permit for a crematory. That was denied. Subsequently, Mr. Murphy on December the 16th filed an application for a conditional use permit. Why? Because it is expressly provided for in the zoning ordinance that applies in this particular zone which is the I-1 zone where it specifies that columbariums and crematories are conditional uses which only the Board of Adjustment can approve. Now I suppose we're going to get into some discussion about what does the word and mean. I will get to that. I have discussed it in the memorandum that I tendered for your review earlier today and that's part of the record in this case. But suffice it to say when the building inspection denied the application for the crematorium on December the 11th, the applicant, Mr. Davis, if he really believed that there was an error, if he really believed that he had a right to simply get a permit to operate a crematorium, typically, particularly with Mr. Murphy as counsel, he would appeal that decision within 30 days to this board to say, look, I have a permitted right to put my crematorium here. No appeal was taken. There was no disagreement of the decision of the building inspector on December the 11th and so an application for the conditional use permit was applied for. The applicant and his attorney recognized that a conditional use application for a crematorium in the I-1 zone was the appropriate mechanism to follow to get to this board to seek its approval on the merits of their case. Notices were sent out to all the surrounding property owners, to the neighborhood associations. An ad was published in the newspaper. It was put on the docket to be heard. And on January the 22nd, building inspection decided that this really was a permitted use and Mr. Murphy then on January 22nd withdrew his application for the conditional use permit. The net effect of that action is to have deprived the surrounding property owners and others who might wish to come and offer testimony against the filed for conditional use permit. So what we're talking about here in terms of the consequences of the Division of Building Inspections' decision to change the interpretation that they made on December the 11th that remained consistent for more than a month up until January the 22nd is to deny people the right to even talk about the merits of a crematorium at this particular location. Now the folks that I represent own a substantial amount of property around this particular area and if Bill will just illustrate where it is just to show the nature of why they would be concerned. Crematorium proposed crematorium is right over here, 606 and 608 West 4th Street. This is West 4th Street, this is Eastern State Hospital. All the property you see in a bordered area is all property owned by my clients. Bruce, just so I'm confused by the way this is oriented, the Flatiron section, is that where the Rallies is? The Rallies, I think, is up here. Okay. Eastern State is all over here, Future State, Bluegrass Community Technical College. Okay. Over here. And you may have heard that all of this property and through here has been the subject of a great deal of debate in terms of planners, particularly as it relates to Newtown Pike being improved for revitalization of the Newtown Pike, Georgetown Road, 4th Street area. A lot of uses there that haven't been very successful, and a lot of people have purchased property there and planning on changing the uses to make it a real gateway key to Lexington. May I ask a question? Yes, sir. Did I understand you say that the neighborhood area there, are they unaware of what's going on with this property, people who live in that area? They were given notification back in January about a hearing that this board was going to have on whether or not it was appropriate to have a crematorium located in this area. But we never got that hearing because the Division of Building Inspection changed their mind and said you don't need a conditional use permit. You get to put the crematorium in as a matter of right. And so our complaint is we want to have the opportunity to discuss the pros and cons of having a crematorium at that particular location. I think we'd be advisable. So that is our motivating reason for being here. We simply want to have a hearing. We want to be heard. And we believe that the vision of building inspection aired. Now, I have tendered to you in the green booklet a discussion of our reasons as to why we believe that the Division of Building Inspection erred as a matter of law, in failing to apply the correct principles of interpretations as set forth by the urban county government in the very ordinances that apply in this case, in terms of how you interpret them, and when there is a conflict in the ordinance, which particular ordinance controls? I have also tendered the exhibits that Mr. Murphy introduced to the Division of Building Inspection and to the Division of Planning when he requested the conditional use permit. And my point is this. Even Mr. Murphy agreed up until the 22nd of January that his client needed a conditional use permit. And that is why he applied for it. Again, we're seeking the opportunity to come before this board and offer our objections as to why crematorium is inappropriate at this particular location. The legal reasons that we believe justify overturning the Division of Building Inspection decision to maintain that this is a permitted use rather than a conditional use are set forth in my memorandum, and I will summarize them briefly for you now. I gave each of you a copy of the ordinance that we're talking about today. That is the light industrial I-1 zone ordinance. I've got some underlining there. I'm going to put it up on the screen. This is the provision of the zoning ordinance pertaining to light industrial uses. It is the light industrial zone that is involved in this case and it's clear that the intent of the ordinance as I've outlined is that the intent is intended for manufacturing industrial and related uses not involving a potential nuisance in terms of smoke, noise, odor, vibration, heat, light or industrial waste. The key language there in our judgment is that the zone is intended for manufacturing industrial and related uses. We don't believe crematorium fits within the intent of the zoning ordinance. If we drop down a little bit further, Bill, under the enumerated permitted uses, these are uses that the zone permits as a matter of right if you have an I-1 zone piece of property. Section 4 of the uses that are identified as permitted uses specifies and I've underlined what I believe to be important language, other industrial and manufacturing uses such as. Other industrial and manufacturing uses. Now you will note about three quarters of down on that page that crematory is listed. Our judgment is that other industrial and manufacturing uses such as crematoria could equally refer to the manufacturing of crematory materials, crematory units, etc. We believe that's where it would be a permitted use if you're making a unit that does cremation. If you look in the lower right hand portion of the slide in front of you and on the ordinance that I have given to you, Article 822D, conditional uses, and you will note of course, permitted only with the Board of Adjustment Approval, specifies under subparagraph 3 that conditional uses which require Board approval are columbariums, which are facilities storing urns and so forth it come from cremation facilities and crematories. And until January 22nd everybody was clearly understood that we should be here for a hearing. Now that got changed and that's why we're here today. Mr. Simpson? Yes, sir. Mr. Simpson? I'm not entirely clear of what you're asking. you asking for an opportunity to have a hearing? I am, yes sir. Okay, so you're not asking that we hear this today? No, sir. Okay. All right, just want to make sure. Thank you. The issue is that this board give all the neighborhoods, all the people in the area the opportunity to come down and speak on the merits of this case. Then of course you make the decision on the merits and not on a belated decision by the the Division of Building Inspections to change the interpretation of what we believe is clearly specified in the ordinance as a conditional use for which you all have exclusive jurisdiction to hear. Jim Hume mentioned previous decisions by the Division of Building Inspections and in fact this body under tab 5 of the green book. If you would refer to that please. This is a copy of a Board of Adjustment Staff Case Report along with the minutes of this board back in 1998, case C98148, Jewel B. DeBoer, veterinarian and Paul J. DeBoer and And they applied for a conditional use permit in the I-1 zone on Floyd Drive for a pet crematory. There's no distinction in the zoning ordinance whether it's a human crematory or a pet crematory. But in any event, they applied clearly for a conditional use permit. It came before this body. There were objectors and this body made a decision. They happened to grant that approval for a conditional use permit and this was in 1998. Now, that applicant had to come forward, be heard, address the community that wanted to speak about his conditional use application. He prevailed, but at least there was a fair hearing for everybody. A couple of three years ago there was another request for a crematory in an I-1 zone and that was granted as a permitted use. So we have inconsistent interpretations at best. And to a certain extent it may be that we could wordsmith and parch the words to say crematory ought to be a permitted use. I'm sure Mr. Murphy will argue that. response is that if you apply the language of the zoning ordinance itself, then to guide situations like this, you will look to the general provisions of the zoning ordinance set forth in Article I and I gave you a copy of those provisions as well and I'll put those up on the screen. And in particular they apply Article I-4 interpretation and Article I-5 conflict of ordinance. So, for the sake of argument, looking at crematories in the permitted use section, which we believe more logically applies to the creation of crematory machines or crematory units, to the extent that people may have a different interpretation about that, you would go to this section of the zoning ordinance in Article I and look at what kind of guidance do you have. Well, under Article I-4, there is a provision entitled interpretation. And as is underlined there, it simply reads that in the interpretation and application of this zoning ordinance, the provisions herein shall be held to the minimum or maximum requirements as appropriate, adopted for the promotion of health, safety, morals, comfort, prosperity, and general welfare. Now that's a pretty broad statement, but it simply says that when you have at least some degree of argument that people may make as to whether or not a crematory is a permitted use or a conditional use, you would look at this provision and say, well, wouldn't it be fair to promote the health, safety, morals, comfort, prosperity, and general welfare to at least have a hearing on whether or not this kind of use was permitted in the I-1 zone since in 1998 this body did in fact do that very thing in terms of a legal precedent. Likewise, Bill, if you'll go to section 1-5, another provision in the zoning ordinance to guide interpretation questions is a section entitled Conflict of Ordinance. And what that simply says, in pertinent part, as it applies to the ordinance, is whenever these regulations are in conflict with any other ordinance or regulation or laws, the more restrictive ordinance, regulation, or law shall be enforced by the appropriate local agency. So our judgment is and our argument is to this board that when you have a provision relating to crematoriums in a conditional use section, clearly, that the more restrictive interpretation of the zoning ordinance ought to apply, which means having the public, giving the public the opportunity, the simple opportunity to be heard, which is all we're seeking. We believe those ordinances apply. Now the Division of Building Inspection has contended that the word and next to colibariums and crematories somehow changes things. I have set forth in our memorandum that the word and, in terms of its conjunction, under Kentucky law, does not mean that you have to approve both a columbarium and a crematorium, that each of those terms stands by itself independently, legally, in terms of your all's decision as to whether or not a conditional use would attach or apply or be appropriate on a given piece of land in our community. Mr. Simpson? Yes. Right below your line you're concentrating on is penal or correctional institutions. But right above it, there are two ands, too. Yeah. I think that your argument is a bit of a stretch. And in the Article 4, directly to the right of that, where crematory is listed, it seems as if all the other uses, other industrial and manufacturing uses, are describing the process, which is beverage manufacturing or lacquering or felt manufacturing. So a crematory is the process. and otherwise they would just say felt or furniture instead of furniture manufacturing. I really think that you're an excellent wordsmith, but you're not coming even a little bit to convincing me that this is a logical argument. Let me respond to you, Mr. Gregg, by saying that in all the precatory language before you get to paragraph four in the zoning ordinance in terms of permitted uses, it talks about manufacturing and industrial. Now, perhaps someone might conclude that processing a human body is manufacturing and industrial. At best, at best, it is ambiguous. But what controls it is the conditional use language. Now, you want to refer to penal or correctional facilities. And somehow, either or. If you look throughout the entire zoning ordinance, and I am prepared to read to you about 25 to 50 instances where you have the word and, both in permitted uses and in conditional uses. uses. Under the theory of the Division of Building Inspection, you would have to have both of those standing together in order to be approved for something. If you had a conditional use application for a church and the language says and Sunday schools, would you have to have Sunday school in order to get a conditional use permit if you only wanted to have a church? I believe there's far too much importance placed on the word and. In particular, in the The article we're talking about in the I-1 zone, it talks about accessory uses. Accessory uses, and I've cited this in my memorandum, would include off-street parking areas and structures and loading facilities. Do you have to have all three? Can you not just have one? Why doesn't it say crematory manufacturing, crematory equipment manufacturing? the other 25 items in there it says manufacturing or at least describes the process. I can't begin to answer. I think a mistake was made when this particular provision was inserted into the I-1 zone. But it makes sense the way it's written. No, I disagree that it makes sense. And whether it makes sense or not in there, what controls it is the language and the conditional use and the fact that when you have conflicting provisions, assuming for the sake of the argument, in fact, I will concede for the purpose of this discussion between you and myself, that there is a conflict between whether crematory is a permitted use or whether it's a conditional use. Under the rules of construction set forth in the zoning ordinance, in terms of rules of interpretation and the rule that applies that you use the most restrictive interpretation, you would have to have a conditional unit to get these things. That's the most restrictive. That's our position. And if you look throughout... I'll ask you one other question. Dealing with this, when it talks about crematory, do you by any chance have any idea what kind of noise, smoke, odor, vibration, heat, lighter, industrial waste is created? Is there more created in crematoria as crematories or the manufacture of the equipment? That is, because I mean my initial reaction, I would agree with him, I would think that there's a, you'd need manufacturing there. On the other hand, if you can say that there's actually more problems created in using a crematory as a crematory than in creating the equipment to use a crematory, then that would support your manufacturing. And, you know, that kind of gets into the merits of our case. Well, not really. I mean the question is factually is there something different manufacturing process of the equipment versus using it that would clearly suggest the manufacturing process for the equipment is less, for lack of a better term, obnoxious than the crematory itself. Do you understand what I'm saying? I do. And I would tend to say that any kind of manufacturing process, when you're talking about the kinds described here, battery manufacturing and beverage manufacturing and building material, things of that nature, manufacturing, compounding, assembling, processing of bakery goods and that kind of manufacturing process is one use. The actual cremation of bodies. But how much pollution? Do you have any idea? Well, I'm not prepared to come today to talk about the merits of the pollution effects of what goes into making a cremation unit. We can tell you that in a number of widely disseminated articles about the cremation of body parts in terms of mercury and in terms of other contaminants like… Mr. Murphy, I think you make a good point. Well, I'm responding to the question. I know you are. I know you are. So, because I didn't, I don't believe getting into the merits is appropriate at this point, but certainly I'm going to respond to the Board of Adjustment questions. That's right. I'm calling her down then. So we believe, Mr. Chairman, and Brad Hawkins is going to focus on another specific part of this legal argument, but we believe that if you read the zoning ordinances with the guidelines suggested under Article 1.4 and Article 1.5, if you look at the history of this body in terms of what you've done having approved one in 1998, and really the consequence of what we're talking about is simply having a hearing. I mean, who is to lose and who is to complain? Even the applicant believed he had to have a hearing until January 22nd. And that's all that's at risk here is having a hearing. But to us, people who want to come in and address the merits of Ms. Moore's question, we're being denied that right to have that hearing, and we believe that the building inspector has erred in his interpretation of the ordinance and the guidelines that are imposed upon them by the Lexington Federal River County Council through enacting this legislation. Now, Mr. Hawkins is going to address another part of our case. Thank you, Mr. Simpson. So it looks like that if this board does agree that we need to have a hearing, we're going to be here for about three weeks. Mr. Hawkins, welcome. Thank you, Mr. Brown. Appreciate you giving me a few minutes. I'm going to focus on a few key points. I do represent Mr. Ponder. Specifically, his property is located at 330 North Newtown Pike, and it was that parcel that was the largest on the diagram that Mr. Simpson showed to you. It borders Newtown Pike as well as 4th Street and the proposed columbarium, crematorium, whatever the project ultimately is going to come up to be, borders his property, so you can see where it's at there. when mr ponder first came to me scratches his head about what was happening near his property i got out the ordinance kind of like what you've done today and i started scratching my head too it's it's ambiguous i think that's the best way to describe it i think building inspections history tells us it's ambiguous so i made an open records request to the city made one of the law department planning made one to the city council to look back historically at all the zoning and all the the ordinances and one day had been amended and how did we get where we are today? How did this happen? And it's still ambiguous. I have records going back to 1953. I have one copy for Mr. Brown. I hope you can share this with your team here. If you'd like, I can hand them to your staff here or approach. How would you like to do that? Bring them up. Bring them up? Okay. I have 1953. These are the ones that the city council clerk's office were able to find for me. I have 1965 and 1966. Excuse me, Mr. Hawkins. Mr. Murphy, have you seen these? No. Okay. Would you like an opportunity to look at them before he gives it to us? Another group from 1966. Got 1969. Yes, these are zoning ordinances. I'm sure Mr. Murphy has copies of these in his office. In 1975 and 1983. Mr. Murphy might have written some of those. He possibly could have, yeah. I think I've seen most of these before. Okay. I'll object if there's something I see that's... Okay. Thanks, sir. Those are written. Reverse orders. Okay. 1983. There. Okay. The last document I handed to you, Mr. Brown, is a, I'll call it a timeline, a spreadsheet of a summary of those zoning ordinances, what has happened since 1953. And what I found was there was no reference to crematory as a conditional use until 1969. Up until 1969, it was always a principal use within the light industrial. But something happened between 1966 and 1969 in a search of the archives. City council clerk staff down in a basement somewhere looking for these records. No one could find why or who or when columbariums and crematories was carved out to be a conditional use. If you look back historically at those ordinances starting in 1953, you'll find that crematories were always treated a little bit differently than other light industrial uses. They were restricted to within 100 feet of residences, for example. So they've always had kind of a special place in the hearts of those who are writing our zoning ordinances, restricting them, as I said, within certain distances of residential areas. Then at some point, those who ride our zoning ordinance saw it fit to carve them out further as a conditional use and only permitted in light industrial with Board of Adjustment approval. And that historically is where it's been and still remains. We still have crematory referenced within a permitted use or principal use. I think what really sheds some light on this were some e-mails that were produced by the various departments that I requested open records requests from. And I have one set of these I'll provide to Mr. Brown. Mr. Brown, Mr. Brown. Thanks. These are a series of emails that went back and forth for all the various stakeholders, not only legal but also planning. I don't know if there's one in there from Building Inspection or not, but some concerned citizens. And what I found enlightening was it seemed to be that all the stakeholders were in agreement that something happened to this ordinance to create this ambiguity, and it probably happened sometime in the 60s, and that it needs to be fixed. In fact, you'll find the last email on there is a proposed draft to correct this ambiguity and to take crematory out of a principal use and actually add that to a heavy industrial zone and maintain that a columbarium and a crematorium should only be allowed by a Board of Adjustment approval if it's in a light industrial zone. So it seems to me that those individuals who are stakeholders in this within the city and also property owners within the city are in agreement that we need to change this reference. columbariums and crematoriums it was intended back in the 60s to be only permitted in light industrial by Board of Adjustment approval. And so I join by reference all of Mr. Simpson's comments on behalf of Mr. Ponder and ask that a hearing be heard. Because it's clear to me that it's not clear about how this issue should be handled. and the residents and the property owners who are going to be severely impacted by this, not only as their properties currently exist, but all the planning that's going on for that part of the city to turn it into a real gateway for our community. And do we want to redevelop the Eastern State Hospital into a world-class community college with a crematorium and a columbarium across the street? I don't think that's what the city's intending to do. Are they asking for the columbarium? They're asking for a crematorium, sir. Yeah, I thought you said both. I meant to say crematorium. Thank you. So we would ask for a hearing. I think another point I want to make is just from a public policy perspective is it seems as our friends in building inspections struggle with this issue, and I'm not sure that's why they're being paid what they're paid or why they should be spending their time is interpreting ambiguous legislation or zoning ordinances. We need to clarify this rather than have them struggle with this issue every time it comes before them. So I think the future of this area is at stake. We need to have a hearing. Everybody needs to be heard, and it needs to be cleared up. And I think it's clear from the materials that Mr. Simpson and myself have submitted to you that what the intent is of this ordinance, this area, is that you need to get Board of Adjustment approval before you build a crematorium. Thank you. All right. Thank you, Mr. Hopkins. Mr. Murphy, you want to grab the remote mic or share the mic? You said that I think your testimony was that you feel your client's property is going to be severely impacted by this crematory, is that correct? That's my client's position, yes. That's your client. Who is your client? That's my client's position. Who is your client? Is he going to testify? I had anticipated him being here today. I haven't seen him in the chambers yet. You haven't seen your client? There he is. Where did you sit? Now which property does he own? He owns 330 North Newtown Pike. Looking at the map up there, is that the property outlined in the red? It's the largest parcel that you see there outlined. If you would like Mr. Ponder to clarify, he's here for you. Okay, if he wants to come up, that's fine. Would you state your name please? Yes, sir. It's David Ponder. Now, were you here when we had the group swear? No, sir. I was not. Okay. Would you raise your right hand, please? Do you swear or affirm the testimony you give here today to be the truth? I do. Thank you, sir. Mr. Hawkins or Mr. Murphy? Mr. Ponder, I was trying to clarify what property you own. Is it the property up there that's outlined in red? Largely. I think that there's a slight mistake, but I think if I only start here on this corner, which is the south corner, and we follow the train tracks all the way to this, well, of course, the cutout where they're speaking of, we don't own, but we own what surrounds that. And then right over here between myself and the paint store all the way back over. So we don't own these parcels, that parcel, or that parcel, but we own everything else on the block. You own your – is it in your name or is it a company? It's in a LLC. What's the name of the company? That would be the Newtown Group. When did you all buy it? Let's see. I have been a member of the – Chairman, we're talking about the field of the Division of Building Inspection and Interpretation on the zoning ordinance. What history of the owners of this property have to do with that is beyond me, and I object to it, but it has nothing to do with the nature of this appeal. Your Honor, I'm bringing this in because they've said their property is going to be severely impacted. I disagree. I want to establish what the impact is going to be. If we don't want to get into that, then Mr. Simpson shouldn't be talking about future plans on this property and all that sort of thing. Either it's got to be one way or the other. I agree with you, Mr. Murphy. We're going to get into the merits of whether or not it's appropriate to have a crematory here. And we're not here for that today. These people have standing to challenge a division of building inspection interpretation, and that is why we're here. Their historical acquisition of the property, how it's characterized or classified in terms of its legal entity, whether it's a partnership, a sub-S, or what have you, has nothing to do with the merit. I agree with you. Mr. Murphy, if I don't keep it confined, you please let me know. We're not going to have testimony on what they're doing on their property currently? Well, I don't think that's really before us today. And we won't have testimony about plans, what they're going to do in their property in the future. Is that correct? I don't think that's before us either. I think that's fair to both sides. Just note my objection for the record to that. Okay. If it goes astray, then you please jump up again. Okay. I'm sorry, I've forgotten your name, sir. It's David Ponder. Mr. Ponder. Yes, sir. All right. Any other questions for Mr. Ponder? Okay. Thank you, sir. Thank you, sir. Sure. Mr. Simpson, any other testimony you'd like to present? That's our testimony. We rely upon the record that's been introduced in connection with this case, both from myself and from Mr. Hawkins. We believe we're entitled to a hearing, and that's all we're asking for. Thank you. All right. Thanks, sir. Mr. Murphy? Well, I just asked Mr. Simpson. He said, do you have another witness or not? I'm sorry. Do you have another witness or not? No. Okay. Can I ask staff a quick question? Or whoever gave us this stack of papers, the e-mails? I think Mr. Hawkins gave us that stack. So the very last one here has crematories scratched out and crematories number 22. Where did this, what is this? This was a, that draft was attached to an e-mail. It was produced from an open records request that I made to the city. and there's an email from Mr. Bill Sally to Tracy Wade, the planning staff members. But what is it? It's proposed or revised ordinance. The 1969 proposed ordinance? This is a draft as of January, I think, or February 2009. That's a proposed draft of what the ordinance for light industrial would look like to clarify the ambiguity by removing crematory and inserting that in heavy industrial and leaving columbariums and crematoriums as additional use. So it is a proposal to change the ordinance to eliminate this ambiguity. Correct. But it's not in the history at any point in time. Okay. Thank you. Any other questions for Mr. Simpson or Mr. Hawkins? All right, Mr. Murphy. Thank you very much, Mr. Chairman. I'm Dick Murphy. I represent Richard Davis, Rick Davis, who's with me. He's the guy in the crutches on the second row there. He just had a screw removed from his leg a couple days ago, so if he winces, I hope it's not because of what I'm saying. It's because of the general level of pain he's going through right now. Chaz Hyde is with me, a planner. he's going to pass out some my exhibits to you as we're talking here the Rick Davis is a has a contract to purchase the property at 606 and 608 West 4th Street unlike the representation up there it does have frontage on 4th Street but that's neither here nor there it's located in the I1 zone. It's in a zone which is heavily industrial. And Mr. Davis grew up in a family acquainted with a funeral business. From his childhood days, he's been working in that field for ten years. And what we're proposing to put here is a crematory. It's a modern crematory. And if you want a description of it on page 1 and 2 of my handout, we have a description to you about what the crematory is, what's going to be going on there. And as it says in there, this is from Matthews International, which is the manufacturer of the equipment, which is out of state. They manufacture it out of state. But they do most of these across the country, probably the majority of the business. And interestingly enough, they note that most establishments are located in residential areas and that's because I guess in other states, the funeral business is a creature of custom sometimes and in other states, a lot of the crematories are in funeral homes which are located in residential areas. Excuse me, Mr. Murphy. Yes, sir. You're talking about the manufacturer of the equipment used in a crematory is out out of state? Yes. Are there a lot of companies that manufacture crematory equipment? I don't think there are, but when we get Rick up here, he can tell you that. He's an expert on it. Well, I was just wondering if there are not very many, maybe only two or three in the whole country, it would be odd that we would list in our zoning ordinances that it would be a principle permitted use to manufacture crematory equipment. Rick is shaking his head yes, there are only two or three in America that do this. And And just to relieve any concerns, as I've got highlighted, I think, in the fourth, fifth paragraph, the equipment operates completely without smoke or order, and each and every installation must be permitted by the environmental authorities for the city, state, or province in which it's installed. Down low, residents of the area will be unaware that the equipment is operating, and it has automatic and built-in pollution control devices. And that's just to give you an idea of what we're doing here. The – and it mentions that there's two other Matthews installed crematories here in Lexington. Interestingly enough, one of them is probably closer to the applicant's property than ours is. It's in Lexington Cemetery just across Newtown Pike near where the columbarium is back there. And that's a Matthews equipment crematory. The other one is on Eastland Drive, which has come up in your discussions before. The – we're not – our property is not visible from Newtown Pike and incidentally about talking about neighborhoods, Mr. Davis had a meeting with the Northside Neighborhood Association. This is the Neighborhood Association, which is the area that this is in. Before we applied, he went to meet with the Northside Neighborhood Association. Very cordial meeting. They were very open and accepting about the use. They thanked him for coming and talking about it, and they had a very good meeting about this. Did they form any type of voting process in favor? No, they did not take a vote in favor nor opposed. They did not take a vote, Mr. Stout, on this. This is a relatively straightforward case, and Mr. Simpson has made the case they want a hearing. Well, today, this is a hearing on a particular issue. The issue today is, is a crematory a principal use or a conditional use in the I-1 zone? That's what Mr. Simpson has appealed. He has said building inspection made a mistake when they told me and my client that, yes, a crematory is a principal use in this zone. Mr. Simpson is saying, no, your crematory is a conditional use in this zone. That's what we're here for today. We're having a full-blown hearing on that issue today. Now, if you decide today that we are a principal use, which we firmly feel we are, just like any other principal use in any other zone, it's not required to have a conditional use hearing. If you decide that we are a conditional use, we will have to come back before you for a hearing on the conditional use. But today is a full-blown hearing on the issue is, is a crematory a principal use in I1 or is it a conditional use in I1? And that's what I'm going to be addressing to you as we go through these handouts and my presentation today. Anyway, I want to say incidentally too, there's a crematory on the UK campus, which is in the UK Med Center and that hasn't seemed to harm the growth or development of the University of Kentucky as well. Let's look at the ordinance, which I think I've got on page 6 of my handout there, if you could go to page 6, and you've seen this before, but I need to bring it up to you. This is what this is all about. I took a, when I was in law school, I took an elective course called legislation, and it was about how you interpret ordinances and statutes. Paul Willis taught it, who was later the dean of libraries here at UK. And I'm finally getting the payoff for taking that elective course today here, but I'm glad I took my legislation course because it's very clear that crematory is a principle used. There's the I1 zone, the column on the left, principal uses, it says crematory. Pretty simple and straightforward, along with Bunder uses there. Conditional uses, columbariums and crematories. So, yes, we had applied for a conditional use for a crematory. I was aware of the Floyd Drive application 10 or so years ago with a pet crematory that went through you. We applied for that. and then we got into this and we were aware of another installation on Eastland Drive, which we got a conditional use permit back in 2005, which is in the packet here. We'll be getting to that in a minute. And realized that they had not gone through and did not have to get a conditional use permit. So that set off a little light bulb and we checked things out. And sure enough, crematory is a principal use that the building inspection division was absolutely correct in 2005 when they issued a permit for a crematory, which was met by the same manufacturer coincidentally, on Eastland Drive. And they have it. They're proper. That's the right thing to do. They didn't. It's not a conditional use. They're a principal use. So at that point, I first checked with building inspection. I checked with the division of planning. I checked with the law department and said, hey, look, crematory is a principal use in I-1. I know columbariums and crematories are a conditional use in I-1 as well, but we just have a crematory. Looks to me like we're principal use. Everybody said, looked into it, and it's interesting to see those emails that went around, but everybody agreed. Said, yeah, you're principal use. I was through the case. That's why we weren't heard in January because we didn't need to be because we're principal use. We didn't need to come through you. But that interpretation was correct. We were treated the same way as the property on Eastland Parkway when they were decided they were principal use back in 2005. The, let's look at the ordinance. The, as Mr. Hawkins has said, and I've got some history before you, but the, It was listed the same way in 75. That's on page 7 of my ordinance, which Mr. Hawkins has. Crematory was a principal use. Conditional was columbariums and crematories. They spelled crematory wrong as a principal use on that one. That was the only thing they did. Back in 83, there was a major rework of the ordinance. It stayed the same way, except somebody looked at crematory as a principal use. They corrected the spelling of it. C-R-E-M-A-T-O-R-Y instead of C-R-E-M-E-T-O-R-Y. They corrected spelling. Otherwise, it was the same. But the, going back to the current ordinance, there is a reason why it's different for columbariums columbariums and crematories than it is for a crematory standing alone, and that is traffic issues. A columbarium is a place, as you know, where the ashes are laid to rest, often in urns and niches, and that is subject to visitation, services, just like funeral homes or cemeteries. It creates a lot of traffic. I've been through hearings you all had. I remember one a few years ago. a church out on Leastown Industrial Park was turned down because it was putting a lot of church traffic, mixing that in with heavy truck traffic. I heard, when I sat through another hearing of cheerleading in an industrial zone, there's concerns about that. So a columbarium introduces traffic into an industrial zone that a crematory does not. A crematory is simply where it is done. Generally there's no family there. it's the remains are brought back to the funeral home. A columbarium has a lot of traffic from customers in and out. So there's a reason that when you have a columbarium with a crematory, it should be a conditional use rather than a principal use. And there's a lot of cases in the zoning ordinance where you add something on to a use and it becomes a conditional use. On page 13 I've got B1, it's restaurants and just noting that a restaurant is a principal use in B1, no live entertainment or dancing. Then you go on to the conditional uses which I've got on page 14 in B1. If your bar area is over 20% of your floor area, you become a conditional use. Or if you have live entertainment and dancing you become a conditional use. So that's an example where restaurant standing alone's principle, restaurant and something else is a conditional use. I mentioned the precedent on page 15. I have the yellow pages just to show you. There's a crematory at Care Cremation Service at 1014 Eastland Drive and just I know we're on TV. That is totally legal, totally proper there. and I have at the next page, page 16, their final certificate of occupancy, which was granted in 2005, again as a principal permitted use, did not need to come before this board because the building inspection decided that properly. The – in interpreting an ordinance, the first thing I learned in legislation class in law school, that you look at the plain meaning of the ordinance. Well, plain meaning here is we are operating a crematory. Principal use in the I-1 is a crematory. We're located in the I-1 zone. So the plain meaning says we're a principal use. Now the flaw, one of the many flaws in Mr. Simpson's argument is this. if you are the only way you can agree with him is to essentially you're deleting the word crematory from the principal uses in the I1 zone. That's the only way you can arrive at that. He's asking you to ignore the language in the principal use of I1 where it says crematory. He said it shouldn't really be there. It should really be back in the conditional uses. He's made this argument that, well, that's really where you make crematory equipment. Well, the fallacy of that is, if that's the case, well, then the listing over on the conditional use side is also only where you make crematory equipment. And if that's true, we can't have crematories anywhere in Lexington because the zoning ordinance just says crematory. And that means if his interpretation is right that's where you make equipment, we can't cremate bodies anywhere. We can just make it all these places over here. So his interpretation is going to require you to render that entry in the principal use meaningless. He's asking, in essence, to rewrite the zoning ordinance, to ignore that, and the only people who can rewrite the ordinance are the city council. Apparently, I didn't know it, I guess my inquiries prompted some discussion among the planning staff here about amending the ordinance and taking a text amendment to the planning commission and bringing it up to the city council. If there's a problem in the ordinance, that's exactly the way it needs to go. Their job is to amend the ordinance. Your job is to interpret the ordinance. So as I look at it, and you probably wish I will do this, but I'm not going to do this. I ought to sit down right now because the plain meaning says it's a crematory. I have to deal with some of these other issues and there's some other rules for interpretation of lang statutes which I'm going to give to you and please don't tune me out because these are important here too. As I said, we can't render any of it meaningless. I've got some of these in my handouts. On page 17, what I've looked at is major zoning legal authorities here. On page 17 is the legal encyclopedia Amger, which that's the one everybody refers to, Amger second. On page 17 I've got section 636 which says you give weight to the opinion of the people who administer it, which is Division of Building Inspection. It says in determining the meaning of a zoning ordinance or planning regulation, the courts give weight to the construction of the ordinance by those whose duty it is to administer it. That is building inspections interpretation and I'm just pointing that out to one of the rules as you give them weight in making those interpretations. Now the most important rule, there's a particular one for zoning in that and as you recall, back 100 years ago, anybody could do anything they wanted to with their property, zoning didn't exist and zoning was an invention of the 21st century. Now, so the courts in interpreting zoning or language, they say, first of all, on page 18, as I said before, no clause or provision of a zoning ordinance should be deemed superfluous, void, or insignificant. That's what Mr. Simpson is asking you to do. Page 20, I get Rathkoff's, this is a leading treatise on zoning law. Arden Rathkoff was an attorney in New York and professor and made this eight volume amazing compilation of zoning law and he since I don't know if he's deceased or not but he passed that on to Mr. Ziegler here but as you can see here it's a this is an important rule of zoning law which is on page 21 of my handout where there's an ambiguity in a zoning ordinance where there's an ambiguity. Strict construction doctrine, construction in favor of free use of land. And I'll just read this to you. It takes about four pages, but it's only two sentences because they have so many footnotes. These treatises cite the law from various different states. On page 22, you can see that Kentucky follows the doctrine he is setting forth here. So since a zoning law or ordinance is in derogation of the owner's common law rights and the use of his land, most state courts, now that includes Kentucky with a footnote, hold that ordinance provisions will be construed in favor of the free use of land. Where doubt exists as to the meaning of a zoning, and you have to pass two pages because these footnotes, doubt exists as to the meaning of zoning restrictions, courts hold that such restrictions will be strictly construed in favor of the landowner. Similarly, where doubt exists as to the meaning of permissive zoning provisions, courts also hold that such provisions will be liberally construed in favor of the landowner. Again, I don't think I even have to get to that because I think it's pretty clear, but Mr. Simpson feels there's doubt about it. What I'm saying is the rule nationwide and in Kentucky is when there's a doubt about a zoning ordinance or ambiguity, it has to be resolved in favor of the property owner. Now, the next one I've got is Anderson in here, which the other leading zoning case, which says the same thing, I won't go into that. It says strict construction and when they say strict construction, they mean strict construction in favor of the property owner when there's ambiguity in the meeting of a zoning ordinance in here. So I won't take your time with that one because he's saying the same thing. Now Mr. Simpson quoted to you section 1-5 of the zoning ordinance. on page 29 of my handout and I think he's misquoting that because that talks about whenever these, this is in the general section about the entire zoning ordinance, whenever these regulations, that's the zoning ordinance, whenever these regulations zoning ordinance, subdivision plants, development plants are in conflict with other local ordinances, the more restrictive apply. That's zoning versus something else and that comes up occasionally on things like zoning ordinance says you got to be 30 feet away from the intersection and there's a streets and road ordinance which is in the code of ordinance that says you got to be 50 feet away from an intersection. Well, you got to be 50 in that case. That's not a rule for interpreting the zoning ordinance itself interior inside the zoning ordinance. Now, I mentioned the case. There's a case also which says you don't consider speculative zone changes in the future. I don't think we got into that too much because of the Chairman's ruling on this. Now Mr. Simpson said a crematory is a place where equipment is made and I'm not going to get into it. I've got, but I'm going to put them into the record. I've got to put them in the record. Definitions from four different dictionaries as to what a crematory is and I'll put these into the record. It says Merriam-Webster's Collegiate Dictionary, Crematory, A Furnace for Cremating. It doesn't say Macon Cremating, it says a furnace for cremating. That's Merriam-Webster's Collegiate Dictionary. Second, I got Black's Law Dictionary, Cremation. They don't have crematory. Cremation is the act or practice of reducing a corpse to ashes by means of fire. I'm sorry we have to get into this discussion of death and that sort of thing, but that's what we're discussing today. Webster's Universal Dictionary and Thesaurus, Crematory, a place for burning to dead, a crematorium. Finally, the fourth one is Webster's New World Dictionary. Crematory is a furnace for cremating or a building with such a furnace in it. And I'll put those into the record. None of them say that it's a place for making equipment where you do cremations in that. the basically and I know this has been sort of a dry thing but it's that's what we're here about I didn't ask to come here they asked to come here so I'm pleading that I'm not the one putting you through all this here thing, but it's dry, but it's important because I've got a client here who wants to open a new business in Lexington and give a service to funeral homes here in Lexington. And there's an article in Newsweek magazine a couple weeks ago that noted that cremation is a growing trend for funeral services. It's up to about a third of all of them nationwide, a quarter in Lexington. is providing a service here and it's a needed business and the Division of Building Inspection was right and they looked it over and decided that yes, this freestranding crematory, which does not have a columbarium associated, is a principle permitted use. At that point, there was no need for a hearing because we're not a conditional use. We withdrew our case and Mr. Simpson's clients as they have the right to do. They have the right to appeal that to you if they feel there's something wrong with that interpretation. So that's how we got to you. Your decision today is, is my client's proposed facility a principal use, a crematory, or is it more like a columbariums and crematories? The only other thing I'll mention is that I don't think we'd be up here, say, if the principal use was hotel and the conditional use was convention centers and hotels. If I brought up to you a hotel with nothing but rooms, no restaurant or anything, and I said to you, well, is my client's thing more like a hotel or is it more like convention centers and hotels? I think it's pretty easy to say it's a hotel. You're a principal use. We're the same thing here. And means and. There's ors and many other things there. Are we more like a crematory or do we fit in the category of columbariums and crematories? I think it's clear we fit in the category of crematory, which is a principle permitted use, and I want. If they have an objection to this, they have a right to petition the Planning Commission. They receive citizen petitions for amending the zoning ordinance. They can ask them to take the word crematory out of the principal use list, but they can't ask you to do that. They can't ask you to rewrite the zoning ordinance and take that word crematory out of the principal use list. Thank you very much. And Rick Davis is here, who's an expert in this area. if you have any questions about anything in this area. I regret taking your time on this, and I don't think I put anybody to sleep while I was looking around. At least you had no visible signs of sleep, and I appreciate that very much, but it's a very important topic to us, and we think building inspection and the law department and your planning division were correct when they agreed that this, yes, our use is a principle-permitted use in the I-1 zone. Thank you. Thank you, Mr. Murphy. Any questions for Mr. Murphy? Mr. Simpson, do you have any response? I will take – excuse me. Just a second. Sure. I'm sorry. Go ahead, please. Okay. I'll take responsibility for having to put you all through this. Dick indicated that he didn't start all of this. So I'll take responsibility and trust that notwithstanding the sometimes esoteric discussions about what the word and means and crematories and et cetera, that it is important for Dick's case. It is very important for the people that I represent that own a substantial amount of land around here who again, up until the 22nd of January, thought that at least they had the opportunity to be heard. Dick and I do agree that this issue is whether or not a crematory is a conditional use or a principle use. I think we would both agree that at best, at the minimum, it's ambiguous. At best, there is a crematory in a permitted use and there's crematories in conditional uses. Now, the cases that Dick talked about in terms of Kentucky court cases and the various treatises relative to use of land and the least restrictive use of land are all well and good, but they don't apply to facts of this case. Because the facts of this case are talking about at least ambiguous language in the same ordinance. The ordinance is set out for the general public to follow, plain and simple, be able to read it and understand it. And here we have at least inconsistent provisions. A crematory on the one hand in a permitted use and a crematory on the one hand in a conditional use. Now Dick says that, well, the difference about crematoriums and columbariums is the reason they put that in there is because of traffic. Of course, that's an evidentiary issue, not really pertaining to the four corners of the ordinance, which you all have to look at. but I have to scratch my head to think that you would have a crematorium in the same building that you would have urn stored for your loved ones. On the one hand, you would be putting people and frying them into the urn and on another part of the building, you'd have a place where people would come and visit them. That doesn't seem very marketable to me, but it doesn't really matter because it doesn't relate to the legal issue in this case, which is no one can dispute that in the language of your ordinance there is a conditional use that says crematory. It says that right there. It says in the permitted use. So what do you do? Your staff says, I think we need to take crematory out of permitted use and make it conditional. They obviously recognize that somebody 30 years or more ago made a mistake and left these conflicting provisions in your ordinance which is why in these instances, rare instances, that you go to the language that we discussed about interpreting the zoning ordinance and looking at what happens if there's a conflict in the zoning ordinance. Now, Dick wants to say, well, zoning ordinances are treated special. It doesn't say anything in Article 1.4 or Article 1.5 that you have in front of you that zoning ordinances are treated differently than any other ordinance when you look at those provisions on how to interpret a situation like this where you have ambiguity. You have it as a permitted use and you have it as a conditional use. If you read the guidelines for these special cases, you have to conclude the only reasonable conclusion is the more restrictive prevails, which means it's a conditional use deserving of a hearing. We are not taking away Dick's client's right to come before this body in a fair hearing and obtain a conditional use permit, if you all should approve it. He will enjoy the same benefits that he's entitled to under the law. We're taking nothing away. The only thing that will change in this whole case, if you decide to grant our appeal, is we'll have a public hearing. At the end of the day, that is all that will change. We will come back next month, hopefully not three weeks, Mr. Stout, but we will have a hearing on the merits of whether or not this thing ought to be in this particular part of our community. We believe on balance, if you read the guidelines of your own ordinance, the stricter interpretation prevails, the fact that we have a crematory and it's a conditional use, you at least ought to give the public the benefit of having a public hearing because we believe that's what the law requires. Thank you. Thank you, Mr. Simpson. Mr. Hawkins, anything? The monitor has some information to shed light on the position of Northside Neighborhood Association. If you can clarify some of the evidence you've heard. Well, my several conversations with the Northside Neighborhood Association, we had two conversations. The first one was their concern of the crematory and what was to come. We started to align ourselves with the public hearing as far as the dates and times. Then there was suddenly a meeting called by Mr. Davis with the Northside Neighborhood Association and others who could attend, which largely just stated, well, we don't think that we need to any longer pursue a public hearing, and that was pretty much the end of it. I think that there was quite a few people left bewildered, didn't realize that they assumed that they would have a voice, and that that voice had been taken from them at the last minute without any real redirect other than what had come from Mr. Davis and his attorneys. So I think that at this point, the Northside Neighborhood Association is waiting, you know, to find out how to join the fray. And at this point, that's why we're here, to ensure that their voice as well as our voice can be heard in this matter. All right. Thank you, Mr. Pond. Has anybody from building had any communications from the neighborhood relative to this particular situation, please? No, sir. We've had no calls or concerns about this whatsoever that I am aware of. Certainly. Mr. Chairman, while he's making his way to the podium, can I ask Rochelle something? Certainly. I can see where it would look to be ambiguous having you know having crematories in one and then crematories and columbariums in the other but of course it says crematoriums and columbariums and now if it said and slash or I think that that would make the two I'm still not convinced that that says it's an ambiguous as you feel it is Mr. Simpson but I grant there is some but I was interested in asking legal counsel Rochelle what's your interpretation do you see the the ambiguity of it do you think that that the way that it's written it is it's clear frankly I am totally unfamiliar with the concept of a columbarium and whether or not there are situations where they're connected with the crematory I don't know I think that as the emails reflected and I want to stress those emails were extremely preliminary when we were faced with this we had not had an opportunity to consider the issue it has not been presented to Planning Commission for their feedback as to whether that is a draft they would want to propose you know so I don't want that those emails and that supposed draft to influence your interpretation but the fact of the matter is there may have been a reason for that. I think you've been presented with two scenarios with some justification for each. One, that there was a conscious intent that crematories and columbariums combined are conditional use and why that may be the case. I think that's one feasible possibility. I think another possibility could be that an error was made. I really don't know what happened back in the 1960s is where this appears to go back to and I don't think staff was sure either so you know I mean I don't want to put myself in your place and say this interpretation is the better of the two I think that there is a possibility that we don't know why there was a distinction there I think that I think that even if it is an ambiguity I think that you can approach this in terms of well number one it could be that this was an intent prematory was listed when and it's by itself separately. Alternatively, so what would be the result of that? Alternatively, if this was an ambiguity and it was listed under both classifications, what would the result be to the property owner? I mean, I think you can look at both of those scenarios, determine what the result of each would be, and then base your interpretation and your final decision on those having considered both of those possibilities. Like I said, I don't want to put myself in a position stating an opinion on the ultimate issue that's that's up to the Board of Adjustment to weigh everything that's been placed before them and make that determination okay I have a question and I don't want to open up another can of worms I'm just going to ask your question then we're going to drop it after you give me an answer please okay I don't want any comments from either one of the attorneys relative to it because I don't think it would be pertinent to for my information the two pieces of property here that are in question that were approved for the by the building inspection for the crematory what does that do with the rest of the property around that how does that affect the rest of the property around these two pieces if that crematory is placed there does it affect it in any way as far as the zoning or what does it change zoning or anything in that area no sir it does not affect them in any way it's a standalone parcel in the correct zone with the appropriate use it's no different than a yard variance in a residential zone it just affects that lot it has no there's been no testimony given that it would affect anything other than the use of that lot. It's a legal listed use in the zone itself. Thank you. All right. Mr. Davis, are you prepared to testify? First of all, I'd like to thank you all for the opportunity to speak. Would you say your name, please? I'm sorry. Rick Davis, Richard Davis, the applicant. Probably the difference between a crematory and a crematory and a columbarium. A columbarium requires by state statutes to maintain a perpetual care fund. In other words, if I were to start a columbarium, sell all my niches out, walk away with the money, it's much like a cemetery. You can't do that. So that's the primary difference between a columbarium and a crematory combined. A crematory, you could actually take the retort out of the building and move it to another location, and it's completely affordable as far as a business. Can I ask you a quick question? It seems that testimony has clearly established that there are standalone crematories. Yes. Are there standalone columbarium? Not that I'm aware of. And I've traveled everywhere east of the Mississippi in the funeral industry. So I shouldn't say that. Not the northeast. What I wanted to do was, you know, I wanted to start a business in Lexington, Kentucky. I found a parcel of I property that was zoned appropriately. You can't find that many that size, so that's where we got to today. I started this process on the initial finding by the building people. They said we had to go through the process that Dick started us into. And after further research, I'll call it their error, their mistake, whatever you want to call it, we realized that we didn't have to do that. During this process, I've reached out to a lot of different people, including the plaintiffs that are asking for this. Mr. Chairman, I know this board extends for some amount of latitude in these kinds of matters, but this really is a very narrow legal issue for the most part. and we've diverted from it to a certain extent but i don't want to get into justification and reaching out and all the meetings because it's really not relating to the core issues you all have to determine on this appeal that would be germane at a hearing well i would disagree with you because you're one of your clients brought it up mr chairman if you want to open this up i've got about four more minutes mr chairman and i'll be done and maybe we can go home Thank you Mr. Simpson. Mr. Murphy anything you'd like to address? Okay how about Mr. Pinder was responding to something Dick Murphy raised and we're We're going to get into a rebuttal, sir, a rebuttal over who said what at a neighborhood meeting, which is not relevant to what you all have to decide. I'll let you address your observations at the neighborhood meeting and limit it to that. Yes, okay. When I reached out to them, I had heard from Mr. Ponder that there was a lot of opposition from the neighborhood association. I don't want to go into a situation where it's a bad situation. I want to be a good neighbor. So I found out who the president and vice president were. The president's phone number was not listed and the vice president was, so I called Cindy Olson, told her who it was, what I was wanting to do. And she said that she would talk to the president and so we put together a meeting. They put together a meeting and sent out invitations to all the members in the association, I'm assuming. And we met on January 22nd in Transylvania in one of their meeting rooms. There we sat down and discussed what I was hoping and planning to do. There were statements that initially there was a lot of concern from their members because of what they perceived a crematory would be and what it would smell like and be in their neighborhood. One of the past, the immediate past president actually owns the building on Eastland Boulevard And he made the statement to them in their meeting that if you didn't know a crematory was there, you wouldn't know it because there's no odors, there's no smells or anything. After, I'm going to say, probably an hour and a half of discussion, just a general get to know each other, I walked away feeling very good of the meeting. There was not any opposition that was stated other than the type of building and what it was going to be looking like so that it would fit into the neighborhood. I didn't think it would be necessary or I would have called Ms. Olson or Mr. Brewer here today. I thought we were coming in here to discuss the merits of whether or not this is an approved use or not. Thank you all for your time. Thank you, Mr. Davis. Mr. Chairman, if you would indulge Mr. Pappas to just respond very briefly to what Mr. Davis had to say in connection with this testimony. Very briefly. OK, you weren't here earlier. Did you state your name for the record, please? John Pappas. Mr. Pappas, do you swear or affirm the testimony you give here today will be the truth? I do. OK. I have an interest in the property that was outlined there in red just as a co-owner and I guess you all know the Bluegrass Community Technical College of course is going to locate across the street from I've only got four lines to say okay that's all I met with the people from northern Kentucky that did the downtown master plan we've met several times on the master planning of the area certainly what they've suggested as master plan is mr. Pappas I agree with this is very pertinent because I was told that you know hotels housing and such can't be located within a certain distance of crematoria and this is what this plan shows hotels housing etc by approving such a use it certainly severely limits student housing visitor hotels etc from what I'm told I think mr. Pappas has made his point at this point the last point is is I've met with Andy Moore from eop architects eop architects are the people i believe that are at least bidding or hoping to build or maybe have the design on bluegrass community technical college it's bluegrass community technical college right across the street he's come to me showing me the pictures of what they propose he said Anything else, Mr. Babis? The Neighborhood Association would be opposed, as would the university. Well, we'll take that up if there's a hearing. Thank you. Can I ask Mr. Simpson a question? Are you aware of any columbarium that don't have crematoria attached to them? I am totally unfamiliar with columbarium and crematorium. I only go by the plain words of the ordinance in terms of the notice given to the public to react to that. Okay. Okay. I just want to note, I've put findings in my packet at the end presenting my case to you. Mr. Simpson put them in the end of his. It's a little unusual voting-wise today. If you agree with the interpretation of Mr. Simpson, you of course vote to grant his appeal. you agree with the interpretation of me and my client and building inspection you would vote to deny the appeal and I just want to make sure you all knew both of us have findings and about the voting issues here thank you all right any other discussion by the board mr. Griggs you ready for make a motion okay well Well then, Mr. Griggs, I'll entertain a motion. Mr. Chair, regarding Case A, 2009-18, Davey. Mr. Griggs, is your mic on? We're sorry. Thank you. uh eight 2009-18 baby papis ponder morellis appeal be denied meaning i'm siding with mr murphy and with the following reasons The decision follows the plain meaning of the ordinance. A crematory is listed as a principal permitted use in the I-1 zone in section 8-22B paragraph 4 of the zoning ordinance. It is uncontested that Mr. Davis wishes to operate a crematory and that the property is zoned I-1. to the interpretation advocated by the appellant would render the word crematory in section 8-22 B4 void and meaningless. It would essentially amend the zoning ordinance to remove the crematory as the principal permitted use. The board does not have the power to amend the zoning ordinance. The provision of building inspection correctly found with the conditional use in the I1 zone of columbariums and crematories section 8-22 applies when a columbarium is combined with a crematory reason four this board finds section 1-5 of the zoning ordinance applies when the zoning ordinance itself conflicts with another ordinance of the lexington payed urban county government it does not apply for interpretation issues relating only to the zoning ordinance itself kentucky follows the rule this is the sixth reason kentucky follows the rule that where doubt exists as to the meaning of the zone ordinance restrictions will be strictly construed in favor of the land owner similarly where doubt exists as to the meaning of permissive zoning provisions such provisions will be liberally construed in favor of the landfills. Okay. Is there a second to Mr. Griggs' motion? I second. Thank you, Ms. Moore. All those in favor of Mr. Griggs motion please signify by a better I think I'll do this by show of hands So all those in favor of mr. Griggs motion please raise your hand All those opposed And I would like to explain why I'm voting against it miss my audience your hand you're rolling with mr. Stout Okay, okay, so it's five to one Go ahead, Mr. Thun. Realizing that this probably was out of our hands relative to what we could and couldn't do other than to change that particular situation, and I don't think that we would put ourselves in a position to do that. My concern is, and why I voted against it, was that I think that any time a facility of this nature is placed, it's close to where this is going to be to the neighborhoods, I feel like the neighborhood ought to have a right to come forth and voice their concern and that's why I vote against it I just think that it's it's wrong for us to prematurely approve this Without allowing the neighborhood to hear it. Thank you. Thank you. Mr. Stump. All right motion passes About a five to one Now are there any board items that need to be discussed? If not are there any staff items that need to be discussed the only thing mr. Chairman certainly the training session We had this morning with the division of building inspection I thought was very worthwhile just like the thing mr. Hume and his colleagues and building inspection Helping the board members present with that session Well, I'd like to thank mr. Mr. Hume and the other folks in building inspection and thank your office for assisting us with setting that up I appreciate Thank you and our next meeting date will be April 24th And if there's no other matters to come before the board, I'll declare the meeting adjourned. Thank you. Thank you.