Thank you. Jeremiah was a bullfrog Was a good friend of mine I never understood a single word he said But I helped him on drinking the wine. And he always had some mighty fine wine. Singing joy to the world. All the boys and girls now. Joy to the fishes in the deep blue sea. Joy to you and me. If I were the king of the world. Tell you what I'd do. I know where the cars and the bars and the walls makes me love to you. Say now, joy to the world, all the boys and girls. Joy to the fishes and the deep blue sea. Joy to you and me. You know I love the ladies Love to have my fun I'm a high-night flyer and a rainbow rider A straight shooter, son of a gun I said a straight shooter, son of a gun Joy to the world All the boys and girls Joy to the fishes in the deep blue sea Joy to you and me Joy to the world All the boys and girls Joy to the world Joy to you and me Joy to the world All the boys and girls Joy to the fishes in the deep blue sea Joy to you and me Joy to the world Joy to you and me You know I'm in joy Joy to the world You know I'm in joy All the boys and girls Joy to the fishes in the deep blue sea Joy to you and me Joy to the world All the boys and girls Joy to the fishes in the deep blue sea Joy to you and me Joy to the world All the boys and girls One, two, one, two, three, four. On the road again. Just can't wait to get on the road again. Life I love is making music with my friends. I can't wait to get on the road again On the road again Going places that I've never been Seeing things that I may never see again I can't wait to get on the road again On the road again Like a band of gypsies we go down the highway We're the best of friends Insisting that the world keep turning our way And our way On the road again Just can't wait to get on the road again The life I love is making music with my friends And I can't wait to get on the road again guitar solo friends and say that the world keeps turning our way and our way is on the road again just can't wait to get on the road again the life I love is making music with my friends and I can't wait to get on the road again and I can't wait to get on the road again I'm sorry. Jane, it was lovely She was the queen of my night There in the darkness With the radio Playing low end And the secrets that we shared The mountains that we moved Caught like a wildfire Out of control Till there was nothing left to burn And nothing left to prove And I remember what she said to me How she swore that it never would end I remember how she held me all so tight Wish I didn't know now what I didn't know then Against the wind We were running against the wind We were young and strong, we were running against the wind And the years rolled slowly past And I found myself alone Surrounded by strangers I thought were my friends I found myself further and further from my home And I guess I lost my way There rose so many roads I was living to run and running to live Never worried about paying or even how much I owed Moving eight miles a minute for months at a time Breaking all of the rules that we've been I began to find myself searching Searching for shelter again and again Against the wind Little something against the wind I found myself seeking shelter against the wind Thank you. Well, those drifter's days are past me now I've got so much more to think about Deadlines and commitments What's the leave in? What to leave out Against the wind I'm still running against the wind I'm older now But still running against the wind Well I'm older now And still running Against the wind Against the wind. Against the wind. Good afternoon. Welcome to the February meeting of the Lexington Fayette County Board of Adjustments. We have five members in attendance. I'd like anyone who has a cell phone to please turn it off or at least turn it to silent. and anyone that's going to be testifying today, I'd ask you to raise your right hand and swear or affirm that the testimony that you give here today will be the truth. Thank you. We have meeting minutes from the October 31, 2008 meeting for approval. Has everyone had a chance to review those, and are there any motion? Mr. Chair, I'd like to move for adoption of the minutes for the Board of Adjustments meeting on October 31, 2008. Thank you, Ms. Edwards. I'll second. All right. Thank you, Mr. Quix. All those in favor of Ms. Edwards' motion, please signify by saying aye. Aye. All those opposed? All right. The minutes are approved. Okay. We have, if I've done my math right, we have five cases on the agenda today, and I'm wondering if any of those cases are going to be postponed or withdrawn. Mr. Chair? Yes, sir. On page three, case number two, Fender Funeral Directors, that's a revocation hearing I requested. I'd like to ask for a 30-day postponement. The applicant and I and their representative are working toward resolution on that. I'm sorry, which case? Case number two on page three. Okay, Fender. Fender funeral directors. So you're in discussions to get this resolved? Okay, great. Senator Brown? Yes. I just want to mention, and Mr. Murphy might want to comment on this, but if the intent is to revise their plan and come back to the board with an amended conditional use request, then it might be advisable to postpone until April because they don't have time to meet their deadline for the March hearing. They're going to amend their conditional use request. Okay. Mr. Murphy, are you here for the offender funeral directors? Yes, sir, I am. I'm not sure we got – we haven't talked about amending our conditional use permit yet. We've talked about doing the existing one in phases. I didn't think that was going to require an amendment. I don't know what – Right. I think what happened is as part of their permit, they asked for an addition onto the existing building. But at this point, they're not able to build that addition, but they still haven't done any of their required parking. So we're willing to do it in a phase, kind of an operation where they come in, satisfy the requirements for what is existing, since the use has been granted and whatever required parking is necessary. So I'm not sure that it would be required to amend that site plan that they approved or simply just allow it to progress in phases. We could go with a month's postponement, and then if something comes up and we need to do it, we can inform you next month of that. Now, I don't know this, but I presume they've been operating since May of 2000 as a funeral home? That's correct. Well, 2005 was the case. They have probably not been operating the whole time. I think it took a year or so before they actually started performing their services there. So it's still down the road quite a bit without any. They had a permit for the interior portions. it's the exterior portions of the work that were at issue, the site work. All right. Thank you. Now, before I ask for a motion, I'll ask if there's any discussion. I realize that it's been not quite four years since we heard this case, and I'm troubled that all the conditions weren't met three years ago. So I don't know if we're in a position to revoke the conditional use, but I just wondered if anyone had wanted to comment or discuss that. If you look at the conditions that are set forth, you certainly have a reasonable reason to revoke them. There's no doubt. Well, I guess another course of action I thought besides postponing this was revoke it, and then when they got in compliance, then they could come back and come before us again. Well, I had met with Mr. Hume. I've met my client has. And what our discussion is, there is some additional paving that needs to be made for a parking lot out there. And Mr. Fender is obtaining bids for that additional paving at the present time. Asphalt plants are closed, so it can't be completed at this time. So Mr. Hume had suggested and we had agreed a postponement, so we're going to demonstrate to him that those bids are coming in and what we're doing on it. And I was up here just for the postponement and certainly hope that, obviously, you'd have to have a hearing before revoking it, but request that we do get a postponement if you do feel that that's not satisfactory. At the time of the revocation, you have the power to do that. but he's a small business providing an important service to the community. He does have – has had occasional services there at the House, which he has a permit to use the House for, so it's not a matter of life safety or anything like that. And so I would be – I'd certainly ask you not to have your revocation hearing today because we were under the understanding that we would ask you for a postponement and that he is making progress on doing the paving of the additional parking. Mr. Murphy, there's no dispute that he's had nearly four years to comply with this and has not, is there? No, I think part of the issue was that when we came in and got the plan approved, the plan showed an expansion to the house, which is used as the funeral home. He's never built the expansion. I think in his mind he was thinking that some of the additional work didn't have to be done until the additional work was done on the House. Now, obviously Mr. Hume has disabused Mr. Fender of that notion, but I think that was the notion that he had on doing it. And it did take him a while to get up and going. I think he's got a small business loan and that sort of thing that he has. and he needs to be able to keep going to make his payments under his loans and everything that he has. Okay, so you're certain that he's clear that the conditions we set forth in 2005 are not optional? Yes, yes. Mr. Chair? I will add that there was a CO issued for the building, whether inadvertently or not, but it was also noted on there that he was to meet the conditions of the Board of Adjustment case that he had. So he was notified, and that was issued 6-8-06. That's a question I had, brings up a question I had for you, Mr. Hume. I guess it was my understanding that the conditions from the Board of Adjustment would be met prior to the CO being issued. And that was my hopes. The inspector who actually issued it is no longer with us, and I don't know why he issued it so prematurely. I can't answer for him. But that's not standard practice. That is not standard practice. No, sir. All right. Thanks. Mr. Stout? My question is, can this business operate under the circumstances that we're doing? He is operating now. Am I correct? Yes, sir. He is operating. Yes. And he's been operating for the four years? Well, he's been operating since the certificate of occupancy was issued June 8, 2006, which is about two and a half years. So it's about two and a half years. I don't think, I wouldn't be in favor of any non-approval at this time, but I would be in favor of this situation being straightened out as quickly as possible and that he not have to come back before us without these conditions being met. If so, then I would most certainly be in favor of doing something to deal with this situation. But at this point in time, I think we probably would be better served since he has already gone into the expense of borrowing money and starting a business. I don't want to see him lose his business, but I also do not want to see him not – I I don't want to see him being neglectful of the conditions that he has to meet as well. And I think that that should be imperative with him. And if I were in that position where he was, I'd probably be here making a point about this if it were me. I just think that, and no disrespect to your representation, it's just that I think that if you own a business and you have some problems, he should have been here with you. That's my feeling about it. But I do not, I wouldn't vote to disband this position at this point in time until we find out exactly how quickly he's going to adhere to these conditions. All right, any other discussion? Mr. Chair, I don't know if notice was set out to an area around his property, but if there are people here for this revocation hearing to speak in support or in opposition, we ought to hear about their feelings about postponement. Okay. That's a good point, Mr. Giggs. Thank you. Is there one here that's here concerning the Fender Funeral Home case, Fender Funeral Directors? No? Okay. All right. Thank you. Any other discussion? If not, I'll entertain a motion. I move that this case be postponed until the April meeting. Well, I thought that's what we – Well, Mr. Mark suggested that, but I think Mr. Hume and Mr. Murphy are asking for the marksman. I'm sorry. April is fine with me if Mr. Murphy – It's fine with me as well. Okay. And that gives him plenty of time to – Yeah. – to work together to see why you're going to address these things. Yes, sir. Maybe the asphalt plants will be open by now. Hopefully so. Let's see, do I have a second to Mr. Stout's motion? Second. All those in favor of Mr. Stout's motion, please signify by saying aye. Aye. All those opposed? Motion passes. Thank you. Thank you. Thank you. Any other postponements or withdrawals? My name is Darrell, not only with the Broadway Christian Church, and we accept or we appreciate the recommendation of the approval of the conditional use permit, but we wish to withdraw the variance that we requested with the caveat that we can work with the Planning Commission coming up with a way that we can have some pedestrian traffic through that buffer that page because that's what our people are used to they're used to from the whole parking area not going down to sidewalk or an entrance for the vehicle traffic but just walking across so we can work with them and coming up with having the barrier the hedge or whatever with some pedestrian traffic through it would be great I'm sorry your name is mr. Nunley yes okay and who have you worked with with planning or okay I'm sorry I'm just I'm not following exactly what he's wanting to do well they're agreeing to put in the buffer along Saunier Street so they want to withdraw that variance request but they they want some assurance that they'll be able to have some pedestrian movement reasonable pedestrian movement from the parking lot through that landscape buffer for people to cross over to the church property. Okay. And in prior situations, I think the landscaping folks with building inspection recognize that need and work with people on that. Okay. Is that feasible? Pardon me? Is that feasible from your position? I think so. There's already one established pedestrian cut through where we wouldn't require the buffer to go across that blocking an existing pathway. so well mr. Nani I am I'm not opposed to what you're requesting I just trying to figure out the best way to do it and it might be that to avoid having to go through the process again you might want to we might want to postpone this just to make sure you can get work worked out to your satisfaction I don't know we work it out all right you think you can all right any comments from staff Okay, so you're asking at this point to withdraw your request for the conditional use? Just the variance. Was this idea, excuse me, was this idea brought up at the landscape board meeting? No, it was not. It was not? It was not. Do you have any thoughts on this about what he's requested? I'm tickled if he'd like to have a couple of pedestrian pass-throughs on that long side of the parking lot as long as he's willing to put in the five-foot buffer. Is that what you all planning to do sir? Say again? Is that what you're attempting to do? Yes. Well since you're up here, any other discussion? I think it's great. Okay. Well Since that's what you're doing, we already got you up here. I'll call for a motion on the CV 2009-9 Broadway Christian Church. Are you an objector, sir? No. Oh, okay. All right. Well, then I'll mark this one to be heard, and then we'll call you back. I'm sorry. I didn't realize you were here. now are there any other postponements or withdrawals so now I'm going to run through the agenda to determine which cases have objectors the first case on agenda is V 2009-10 Charles and Betty Gettings are the gettings here you miss gettings are there any objectors to this case okay next case is V 2009-11 Miller Street developments. Is the applicant here? Are there any objectors to that case? And Broadway Christian Church, we know there's an objector to that case. Funeral directors is postponed. Stephen and Kathy Snowden, are you Mr. Snowden? you the applicant okay are there any objectors to that case no objectors first case where we don't have any objectors well let's see now are there any cases I did not call there's anyone here that that's here that didn't get their case called. Okay. So our first case where there's no objectors is the B2009-11 Miller Street Developments. Want to come forward, please, sir? Good afternoon. Good afternoon. Would you state your name for the record, please? Benjamin Gallagher. Mr. Gallagher, welcome. Now, you are a licensed architect? Correct. You practice here in Lexington? I do. So you're familiar with our local ordinances? I thought I was. Okay. Let's see. I reviewed your, let's see. And you're also the owner of Miller Street Development, are you? That's correct. This is my personal residence. Okay. Now, on your statement of justification of requested variance, which is on the back of your sheet you filled out. Yes. Number five causes me some heartburn. I'll be straightforward with you. I figured you as an architect in your daily job are given, you're given, I guess you work with parcels of property with finite dimensions. And you have to design structures to go on those parcels of property. and to say that what you did here was not the result of your own actions I don't find that plausible and what I've read in the report is all the site plans you submitted had the pool in a much different location than where it was actually installed and I might be wrong but it's my opinion that that you were going about this to intentionally mislead the people that were charged with inspecting what was going on here and I know that the staff has recommended approval but I don't know that they did so without some reservation and so I'm I want you to explain exactly what happened here and give us some justification for why we should grant your variance certainly I absolutely I absolutely intend to know misrepresentation or to mislead anyone in the intention of the location of the pool. The real mistake that I made was, or my ignorance, was in the classification of the pool as an accessory structure in the zoning ordinance. It would be the same as a garage or other type of accessory structure, which makes it subject to the side yard and rear yard setbacks. and not being aware of that, when I showed the pool on my site plan with the rest of the design drawings to get the permit for the primary structure, it was reviewed by building inspection at that time, and they commented that the pool had been reviewed per KRC 2007 and that the location of the pool was acceptable to them. I didn't realize that the accessory structure was permitted separately when it was being constructed as part of the primary structure. And so when the pool was shown on the drawings with the primary structure, which was all new construction, I assumed that it had been permitted at the same time. That actually is not the case. and so I proceeded with construction under my primary structure permit, not realizing that I needed the permit separately for the pool. As soon as I realized it, I submitted the application for the pool, at which time I realized it was classified as an accessory structure and thus subject to the rear yard setback requirement, which put me at this hearing today. The process by which I started this entire project, it's taken me actually quite a few public hearings. And I guess the point I would try to make is that in no way was I trying to circumvent anything. I actually prepared a preliminary subdivision plan with the Division of Planning for just one single house so that I could consolidate two downtown lots, change their zone, further get approval from the Board of Architectural Review because this property is also historic. And all of those hearings together that I went through, I guess I was trying to be as open and forthcoming as possible. throughout the entire process and it was an honest mistake that I didn't realize the classification of a pool as an accessory structure to realize that otherwise I would have asked for the rear yard setback to be from 18 inches to zero inches for accessory structures at the time I went through the preliminary subdivision plan process and I simply didn't realize it so I didn't ask for it well okay thank you for that explanation but isn't it true that that the when you submitted your site plans to the building inspection that the pool was shown in a different location than where it was actually built? No. It was shown in the location it is built. Maybe I'm possible. I misread that. That's not what the report says. Can staff address that? Give me a minute and I'll try to get the project drawing that building inspection provided to us that was part of the permit request. Okay. That would be helpful. Was this approved by the building inspection? Yeah. The primary structure was approved by building inspection and this accessory structure is shown on the same set of documents, yes. But it was approved with the pool involved? The pool was on it, but I was applying for a primary structure, and the pool being a secondary structure does require a second permit, and I was not aware of that. I was not made aware of that either until I was already under construction with it. And as soon as I was made aware of it, I made an application to this agency to try to rectify it as quickly as possible. There might have been some confusion here about what was in building inspections file that I think Mr. Gallagher was anxious to comment on, but this is the drawing that building inspection provided to us, indicating it was what was provided at the time they got a permit for the residents construction and how's how much setback between the pool and the rear lot line it's about 24 inches in that drawing that's the preliminary subdivision plan that was filed with division of planning the pool is in a different location on the actual construction drawings filed with building inspection and that that That also was an honest mistake. I changed the design in the course of that, but again, not realizing that the primary – the rear yard setback for primary structures is 10 feet, and the primary structure is located 10 feet from the rear property line. Not realizing that the pool was an accessory structure, I didn't realize that it was in any violation of the rear yard setback. And it wasn't until I realized that that I believe what it actually states is if there is any setback, either, or excuse me, if there's any rear yard or side yard, then an accessory structure automatically has an 18-inch setback requirement. So although the primary structure is in compliance, the secondary structure needs to be 18 inches off according to the regulation, and that's what I'm asking for the variance for, and that's strictly an honest mistake on my part, not realizing that changing the location of the pool and moving it backwards between the preliminary subdivision plan stage and the actual construction document stage, not realizing that that would impact any rear yard setback requirement. So are you telling me that you changed these without the staff being aware that they were changed? Is that what you're saying? Well, no. I'm saying that as after completing the preliminary subdivision stage, I did move the location of the pool, but it was before I had the permit before I applied to building inspection. And staff, you were aware of that? I'm sorry, Mr. Gallagher, can you repeat? I'm not sure. Mr. Stout, I can try and answer. Have the inspector that signed off on this permit on the way over to answer any of your questions that you may have the guy that's handled this so if you'll just bear with us if you have anything else I have question was this just a design issue you could actually have built a pool to satisfy the requirement is that correct you didn't because you didn't know about the requirement that is to say there's enough room in the backyard that you could have moved the pool up enough to satisfy the setback requirement is that true or not it could it could be built in the location shown there, yes. I just felt it was a much better design decision to put it towards the back of the property. Mr. Stout, to answer your earlier question, there was no need for Mr. Gallagher to give any further plans to the Division of Planning after this plan. He could work strictly with building inspection and with the staff of the Historic Preservation Office. All right, so this plan was recommended for approval by you and someone in your office clarified it and approved it. Well, we're waiting for them to come over to see what plan they were presented. Yes, he's on his way right now. And it's my understanding the permit was issued off of this site plan, but I'll let Mr. Dillon answer those questions for you. Okay, all right. Thank you. Well, let's see, while we wait for any other questions for the applicant. Do you have the site plan that you actually use to do the building? I do actually. I have an 8.5. Let staff put that on the screen for us, please. I have two versions of it. One of them is more of a construction document. other one is more of a rendering that would maybe show it more clearly or let's let's look at this one first there's an 8-inch concrete 8-inch thick concrete wall at the perimeter of the side yard and the rear of the entire property that encloses it and it made more sense to me the reason I've you know design wise decided to move it I thought it would just be better if it was not against the house the whole rear yard is only 10 feet to begin with this is a downtown lot that you know was very tight to start with and it seemed to me that it would be better to have the pool up against that rear 8 inch concrete wall as opposed to right up against the house just for maintenance reasons if there was ever anything I needed to do to the pool relative to the house Any other questions? No, my concern is not whether or not it should be there or somewhere else. It's my concern is if it was approved. Which one? Which one was and not even why. I mean, if it was approved by both the staff and by engineering, then I don't have a problem with it. This is Mr. Dillon. He'll be glad to answer your questions about this. I guess the question is, is this the site plan that the poll was issued off of? Yeah. If you all have questions, you can address it. Mr. Dillon, thanks for jogging over. We appreciate it. What we're trying to figure out here is which version of the drawing you saw when you reviewed the plan and issued the permit. was the pool shown 24 inches away from the rear property line or was it shown right against the property line? Well there's not been a pool permit issued yet until we get this approval or disapproval but the plan that he submitted is the one that's on this plan showing at the zero lot line. We need to put that back on the overhead there's you're looking at one plan but there's a different one on the overhead so. There's two different drawings the one that shows it 24 inches away from the lot line and then one that shows it adjacent to the lot line yeah I just think I think that other one's an old one Okay. So now help me read this one. Is that one right adjacent to the lot line? Okay. All right. The – George Dillon is actually reviewing the accessory structure permit application, which I withdrew to do this process because he can't issue it without the variance. So he has not actually issued it. The permit that's been issued from building inspections for the primary structure, and that is the site plan that was just up there a moment ago that I brought with me. So I have been issued a permit. It's for a primary structure, not an accessory structure, which he was about to issue but said, wait, you don't have this required rear yard variance for an accessory structure. gets back to the whole issue that I was just ignorant of classifying it as an accessory structure and so he he would be about to issue it based on this pool permit application or this accessory structure application with building inspection so though let me ask let me back up mr. Dillon the the drawing that you issued that were you the one who issued the building permit for the primary structure no okay someone else we don't know whether how that but it would that drawing have showed the pool 24 inches away from the rear lot line mr. Gallagher it would have all right I'm sorry can you ask that sure I'm sure you're confused the the drawing that you presented to get your permit for the primary structure yes it would have shown it 24 inches away from the rear wall no it showed it more like this config in this configuration against the rear property line from the time i was approved with my preliminary subdivision plan with the division of planning uh six months went by while i actually designed the house um because you're just talking about gestural terms like how many stories and square footage when you're dealing with planning and then