Board of Adjustment Meeting

Summary

Meeting Overview

The Board of Adjustment met on August 28, 2009, at 1:00 p.m. in the Council Chambers at 200 East Main Street in Lexington, Kentucky. Chairman Peter Brown presided over the meeting, which included 10 agenda items addressing various zoning requests and administrative reviews. The board took 11 votes and heard 4 public comments during the session.

Of the 10 cases presented, the board approved five requests: Michael Hudson's variance to reduce side yard, Showprop Lexington, LLC's height variance for a theater building, Dennis Anderson/Trailside at McConnell's, LLC's hedge variance, Lisa Barrett's side yard variance for a carport, and Ray and Kelly Van Metre/Monkey Joe's conditional use permit. Two additional cases were postponed: Sandra Schryver's administrative review of a fence permit and Robert H. Douglas's conditional use permit for a bed and breakfast. The board denied two requests: Karen Payne's administrative review of a second story and Coffee Times, Inc.'s administrative review of a patio. The board also denied the conditional use permit request from Baha Rathya Temple and Cultural Center.

Attendance

Present: - Peter Brown - Louis Stout - James Griggs - Carolyn Edwards - Barry Stumbo - Kathryn Moore - Jim Hume - Jim Gallimore - Capt. Charles Bowen - Rochelle Boland - Bill Sallee - Jim Marx - Wanda Howard

Absent: - Jan Meyer

Votes and Decisions

Approval of Minutes 6:31 The board unanimously approved the minutes from September 28, 2008, on a motion by Louis Stout, seconded by Barry Stumbo.

A-2009-47: Sandra Schryver Fence Permit Appeal The board unanimously postponed indefinitely Sandra Schryver's appeal for administrative review of a fence permit in an R-1T zone 9:13. James Griggs moved for postponement, seconded by Kathryn Moore.

C-2009-50: Robert H. Douglas Bed and Breakfast Appeal The board unanimously postponed Robert H. Douglas's appeal for a conditional use permit for a bed and breakfast in an A-R zone 13:01. Barry Stumbo moved for postponement, seconded by Carolyn Edwards.

V-2009-53: Michael Hudson Variance The board unanimously approved Michael Hudson's variance to reduce the side street side yard from 30 to 17 feet for a room addition over a garage in an R-1C zone 17:28. Louis Stout moved for approval, seconded by Barry Stumbo. The approval includes conditions that the addition comply with the submitted application and site plan, all necessary permits be obtained from the Division of Building Inspection, and the side yard reduction apply only to the proposed room addition.

V-2009-54: Showprop Lexington Theater Height Variance The board approved Showprop Lexington, LLC's variance to increase theater building height from 48 to 80 feet in an I-2 zone by a vote of 5-1 38:06. Barry Stumbo moved for approval, seconded by Carolyn Edwards. Voting in favor were Carolyn Edwards, James Griggs, Kathryn Moore, Louis Stout, and Barry Stumbo. Peter Brown voted against. The approval permits up to 50% of the theater building footprint to reach 80 feet height.

V-2009-55: Dennis Anderson Hedge Variance The board approved Dennis Anderson / Trailside at McConnell's, LLC's variance to eliminate a hedge for a vehicular use area adjacent to a greenway in an R-1T zone by a vote of 5-1 1:01:17. Carolyn Edwards moved for approval, seconded by Louis Stout. Voting in favor were Peter Brown, Carolyn Edwards, Kathryn Moore, Louis Stout, and Barry Stumbo. James Griggs voted against. The approval requires a landscape buffer with additional trees at specified spacing, subject to Landscape Examiner review.

V-2009-56: Lisa Barrett Carport Variance The board unanimously approved Lisa Barrett's variance to reduce side yard from 8 to 4 feet for an attached carport in an R-1C zone 1:03:59. James Griggs moved for approval, seconded by Louis Stout.

C-2009-49: Monkey Joe's Conditional Use Permit The board approved Ray and Kelly Van Metre / Monkey Joe's conditional use permit for a children's entertainment center in an I-1 zone by a vote of 5-0 1:06:50. Barry Stumbo moved for approval, seconded by Carolyn Edwards. All board members voted in favor. The facility is limited to a maximum occupancy of 250 persons and shall be reviewed one year after occupancy permit issuance.

A-2009-52: Karen Payne Second Story Garage The board rejected Karen Payne's administrative review to allow a second story on a detached garage in an R1B zone by a vote of 3-3 1:16:11. Louis Stout moved for approval, seconded by James Griggs. Voting in favor were Peter Brown, Louis Stout, and Barry Stumbo. Voting against were James Griggs, Carolyn Edwards, and Kathryn Moore.

C-2009-48: Baha Rathya Temple Pavilion The board disapproved Baha Rathya Temple and Cultural Center's conditional use permit for an outdoor covered pavilion in an AR zone by a vote of 5-0 1:34:37. James Griggs moved for disapproval, seconded by Carolyn Edwards. All board members voted in favor of disapproval.

A-2009-51: Coffee Times Outdoor Patio The board disapproved Coffee Times, Inc.'s administrative review to allow an outdoor patio in an I-1 zone by a vote of 5-0 2:01:27. Carolyn Edwards moved for disapproval, seconded by James Griggs. All board members voted in favor of disapproval.

Public Comment

Four speakers provided public comment during the meeting.

Support for Showprop Lexington, LLC Project

Steve Robinson, a property owner across the street from the project site, expressed support for the Showprop Lexington, LLC project 36:57. Robinson noted that the existing 80–90 foot tower on the property represents a positive sign and stated he was thankful for efforts to reuse existing land.

Opposition to Baha Rathya Temple Pavilion

Knox Van Aughel, representing the Fayette Alliance, opposed the pavilion request 1:28:26. Van Aughel argued that approving the pavilion would set a dangerous precedent by undermining the 10,000 square foot limit in the AR zone and contradicting the comprehensive plan.

David Royce, representing Soil, also opposed the pavilion request 1:30:41. Royce echoed the staff's disapproval, emphasizing that the Board lacks authority to grant numeric use variances. He stressed that the 10,000 square foot limit is critical to preserving the AR zone and protecting the horse industry.

Request for Outdoor Patio at Coffee Times

Terry Wood addressed a request for an outdoor patio at Coffee Times 1:35:43. Wood explained that Coffee Times has operated for 26 years without a permit and was treated as a restaurant by health officials. Wood requested approval for a patio to help the business remain competitive, despite the property being located in an I-1 zone.

Contested Items

The August 28, 2009 meeting included four items that generated significant disagreement among board members or staff.

Showprop Lexington, LLC Height Variance

A height variance for Showprop Lexington, LLC passed by a 5-1 vote. Chairman Brown dissented, citing concerns about the lack of detailed design plans and questions about the project's visibility and stated intent. [timestamp: unavailable]

Dennis Anderson Hedge Variance

A hedge variance for Dennis Anderson also passed 5-1. James Griggs opposed the variance, expressing concerns that insufficient visual evidence had been presented and that the project's design lacked clarity. [timestamp: unavailable]

Karen Payne Second Story Appeal

The motion regarding Karen Payne's second story appeal resulted in a 3-3 tie vote, causing the motion to fail. Board members could not reach consensus on whether the structure should be permitted to remain. [timestamp: unavailable]

Coffee Times Patio Request

The Coffee Times patio request generated heated discussion among board members and staff. The central disagreement concerned whether the business qualified as a nonconforming use and whether the Board possessed the legal authority to approve an expansion of the business. Staff and board members were divided on the proper legal interpretation of these issues. [timestamp: unavailable]

Sandra Schryver - Administrative Review of Fence Permit

7:05

Sandra Schryver requested an indefinite postponement of her appeal regarding whether a fence permit was issued in error in an R-1T zone.

Key speakers on this matter included Sandra Schryver, Peter Brown, and Louis Stout.

The Board unanimously approved the postponement request with no objections raised.

Outcome: The appeal was postponed indefinitely.

Robert H. Douglas - Conditional Use Permit for Bed and Breakfast

11:55

Robert H. Douglas requested a conditional use permit for a bed and breakfast operation in an A-R (Agricultural-Residential) zone. The application was presented as an appeal.

The Board identified significant issues preventing consideration of the application at this meeting. The site plans submitted were incomplete, lacking necessary details required for proper review and evaluation of the proposed bed and breakfast use. Additionally, the applicant was not present at the meeting to address questions or provide clarification regarding the proposal.

Key participants in the discussion included Robert H. Douglas, Jim Marx, and Barry Stumbo.

Given these deficiencies, the Board determined that proceeding with the hearing would be premature. Rather than deny the application or table it indefinitely, the Board voted to postpone consideration of the conditional use permit appeal to the September meeting. This postponement would allow time for the applicant to submit complete site plans and prepare to present the application in person.

The Board unanimously approved the postponement.

Michael Hudson - Variance to Reduce Side Yard

Case Number: V-2009-53

Michael Hudson requested a variance to reduce the required side yard setback from 30 feet to 17 feet for a room addition over an existing garage 14:43.

Key Participants: - Michael Hudson (applicant) - Peter Brown - Louis Stout

Proposal: The variance sought to allow a room addition to be constructed over an existing garage with a reduced side yard requirement. The applicant proposed a 17-foot setback instead of the standard 30-foot requirement.

Board Decision: The Board of Appeals unanimously approved the variance. In their decision, Board members cited precedent for similar variances and noted safety concerns that supported the approval of the reduced setback.

Outcome: Approved

Showprop Lexington, LLC - Height Variance for Theater Building

Showprop Lexington, LLC requested a height variance (V-2009-54) to permit a portion of a theater building to reach 80 feet in an I-2 zone. 18:36

Key Participants

The discussion involved Christine Westover, Peter Brown, and James Griggs.

Request and Outcome

The Board approved the variance by a 5-1 vote. The approval allows the theater building to exceed standard height restrictions for the I-2 zoning district.

Issues Addressed

During the discussion, concerns were raised regarding visibility and design clarity. These concerns were addressed during the Board's deliberation before the final vote.

Dennis Anderson / Trailside at McConnell's, LLC - Hedge Variance

Identifier: V-2009-55

The Board considered a variance request from Dennis Anderson of Trailside at McConnell's, LLC to eliminate a required hedge along a greenway. 39:31

Request and Rationale

The applicant sought approval to remove the mandated hedge to improve visibility and safety conditions at the location.

Key Speakers

The discussion involved Tony Barrett, Mark Barnard, and Peter Brown.

Board Decision

The Board approved the variance by a vote of 5-1. The approval was based on considerations related to the Safe by Design program and the public safety benefits that would result from improved visibility along the greenway.

Lisa Barrett - Side Yard Variance for Carport

Case Number: V-2009-56

Lisa Barrett requested a variance to reduce the required side yard setback from 8 feet to 4 feet for an attached carport. 1:03:24

Key Speakers: - Mark Stell - Peter Brown

Outcome: The Board approved the variance unanimously.

Discussion: The Board noted the practicality of the requested variance and acknowledged that a similar setback reduction had precedent elsewhere in the neighborhood. This established context supported the approval of Barrett's request to construct the carport with the reduced side yard requirement.

Ray and Kelly Van Metre / Monkey Joe's - Conditional Use Permit

Identifier: C-2009-49

Overview

The Board considered a conditional use permit application for Monkey Joe's, a children's entertainment center proposed by Ray and Kelly Van Metre. The facility was planned for an I-1 (Light Industrial) zone. 1:05:11

Key Speakers

• Sean Collette
• Ray Van Metre
• Barry Stumbo

Outcome

The Board approved the conditional use permit with conditions imposed on occupancy, parking, and sewer capacity.

Conditions

The approval included the following requirements:

• Occupancy limitations
• Parking specifications
• Sewer capacity provisions

Karen Payne - Administrative Review of Second Story

1:16:11

Karen Payne requested approval to retain a second story on a detached garage that had been constructed without a permit.

The Board considered this administrative review with key speakers including Karen Payne, Louis Stout, and Peter Brown. The discussion centered on whether the structure could be permitted retroactively or whether it would need to be removed.

The Board voted on a motion regarding the second story. The vote resulted in a 3-3 deadlock, meaning the motion failed to achieve the necessary approval.

Following the deadlocked vote, the Board ordered that the structure be removed.

Baha Rathya Temple and Cultural Center - Conditional Use Permit

Identifier: C-2009-48

Request: The applicant sought a conditional use permit for an outdoor pavilion at the Baha Rathya Temple and Cultural Center.

Key Speakers: John DeHart, Knox Van Aughel, and David Royce participated in the discussion. 1:20:11

Board Decision: The Board disapproved the request.

Rationale for Denial: The Board cited two primary concerns in denying the permit:

• Lack of Authority — The Board stated it lacked the authority to grant numeric use variances that would be required for the proposed outdoor pavilion.

• Zoning and Precedent Concerns — The Board expressed concerns about the precedent that approving this request would set and about the appropriateness of the proposed use within the AR (Agricultural Residential) zone.

Outcome: Denied

Coffee Times, Inc. - Administrative Review of Patio

The Board reviewed Coffee Times, Inc.'s request for an outdoor patio during this administrative review 1:35:43.

Key Speakers

Terry Wood, Peter Brown, and James Griggs participated in the discussion of this agenda item.

Decision

The Board disapproved Coffee Times' request for an outdoor patio. The Board determined that the proposed patio would constitute an expansion of a nonconforming use within an I-1 zone.

Alternative Options Provided

Rather than approving the patio as requested, the Board advised Coffee Times of alternative paths forward, including:

• Pursuing a rezoning of the property
• Seeking a text amendment to applicable zoning regulations

These alternatives would allow the business to proceed with its patio expansion through different regulatory channels if it chose to do so.