Board of Adjustment Meeting

Summary

Meeting Overview

The Urban County Board of Adjustment met on September 25, 2009, at 1:09 p.m. in the Council Chambers at 200 East Main Street, Lexington, Kentucky, with Chairman Peter Brown presiding. The board considered eight agenda items, heard four public comments, and took nine votes during the session. The board approved four requests: a variance for landscape buffer reduction for Forcht Bank, NA; variances for screening wall height and side yard for Bruce Properties, Inc.; a conditional use permit for child care expansion for Crestwood Christian Church Childcare; and a conditional use permit for an indoor shooting range for Brett Setzer/Setzer Investment No. 5, LLC. The board postponed three items: an administrative review for signage transfer for RBHV Lexington, LLC/RBHV Lexington Retail, LLC; a revocation hearing for conditional use permit for Fender Funeral Directors; and a conditional use permit for a bed and breakfast for Robert H. Douglas. The board denied one request: an administrative review for garage size increase for John Kemper.

Attendance

The following individuals were present at the meeting on September 25, 2009:

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

No members were recorded as absent or late.

Votes and Decisions

Approval of Minutes 15:02 The board unanimously approved the minutes of the March 27, 2009 meeting. The motion was made by Carolyn Edwards and seconded by Louis Stout.

A-2009-60: Signage Zone Transfer Appeal 16:38 The board unanimously postponed the appeal for administrative review to transfer 32 sq ft of signage from R-3 to B-3 zone at 2573 Richmond Road and 175 Codell Drive. The motion was made by Jan Meyer and seconded by James Griggs.

C-2005-53: Fender Funeral Directors Conditional Use Permit 17:51 The board unanimously postponed the revocation hearing for the conditional use permit for Fender Funeral Directors at 1593 Russell Cave Road. The motion was made by Louis Stout and seconded by Barry Stumbo.

V-2009-61: Forcht Bank Landscape Buffer Variance 25:04 The board unanimously approved the variance to reduce the landscape buffer from 5 ft to 1.5 ft at Forcht Bank, 140/144 Southland Drive. The motion was made by Louis Stout and seconded by Barry Stumbo. The approval included conditions requiring a 1.5' wide landscape buffer of Taxus sp. or similar genus along the north side of the property, subject to approval by the Landscape Examiner, with the buffer to be in place prior to occupancy permit issuance.

V-2009-62: Screening Wall and Side Yard Variances 59:02 The board approved variances to increase screening wall height from 6' to 9' and reduce side yard from 3' to 0' at 3401 McFarland Lane by a vote of 5-2. Voting in favor were Peter Brown, Carolyn Edwards, Kathryn Moore, Louis Stout, and Barry Stumbo. Voting against were James Griggs and Jan Meyer. The motion was made by Barry Stumbo and seconded by Carolyn Edwards. Conditions required obtaining a fence/wall permit within 30 days and specified that the side yard reduction applies only for the screening wall.

C-2009-50: Bed and Breakfast Conditional Use Permit 1:01:19 The board unanimously postponed the appeal for conditional use permit to establish a bed and breakfast at 4417 Dry Branch Road. The motion was made by Louis Stout and seconded by Jan Meyer.

C-2009-57: Child Care Capacity Increase 1:03:09 The board unanimously approved the conditional use permit to increase child care capacity from 99 to 138 at 1882 Bellefonte Drive. The motion was made by Barry Stumbo and seconded by Louis Stout. Conditions required compliance with the submitted application and site plan, obtaining an occupancy permit prior to enrollment increase, and maintaining compliance with Kentucky Cabinet for Health and Family Services requirements.

C-2009-58: Indoor Shooting Range 1:08:46 The board unanimously approved the conditional use permit for an indoor shooting range at 1105 Industry Road. The motion was made by James Griggs and seconded by Barry Stumbo. Conditions required obtaining necessary permits from the Division of Building Inspection and applicable permits from the Department of Public Safety prior to opening.

A-2009-59: Detached Garage Size Appeal 1:27:10 The board disapproved the appeal for administrative review to increase detached garage size beyond 50% of the principal residence at 816 Della Drive by a vote of 5-2. Voting in favor of disapproval were Peter Brown, Carolyn Edwards, Kathryn Moore, Louis Stout, and Barry Stumbo. Voting against disapproval were James Griggs and Jan Meyer. The motion was made by Carolyn Edwards and seconded by Barry Stumbo.

Public Comment

Four members of the public addressed the meeting with concerns regarding construction permits and property modifications.

Dick Murphy 34:41 spoke about construction of a screening wall without a permit. Mr. Murphy acknowledged the lack of a permit but emphasized that the construction was not intentional or malicious. He noted that the developer had gone above and beyond in maintaining the site and coordinating with future developments.

James Griggs 34:41 raised concerns about the wall being built at the wrong height and setback without a permit. Mr. Griggs questioned whether the Planning Commission and Council properly review such details in their oversight processes.

Jan Meyer 55:37 addressed the broader issue of unpermitted construction. Ms. Meyer expressed concern about the frequency of cases involving construction without permits and asked about enforcement mechanisms to discourage non-compliance, specifically inquiring about potential penalties such as fines or increased fees.

John Kemper 1:16:21 requested a garage size variance. Mr. Kemper explained that the garage was needed to store four vehicles and combine two households. He argued that the visual appearance would not change regardless of whether the second floor was floored.

Contested Items

Construction of Screening Wall Without Permit

The Board raised significant concerns regarding the developer's construction of a screening wall without obtaining the required permit, even though the wall appeared on the approved plans. Multiple Board members questioned the accountability for this procedural non-compliance and expressed worry about the precedent being set by approving the variance despite the applicant's failure to follow proper permitting procedures.

Garage Size Variance Request

The Board was divided on whether to approve an increase in garage size. The applicant argued that the visual appearance of the structure would not be affected by the enlargement. However, the staff recommended denial of the variance request. The motion to approve the garage size variance passed by a vote of 5-2, indicating significant disagreement among Board members on this issue.

RBHV LEXINGTON, LLC / RBHV LEXINGTON RETAIL, LLC - Administrative Review for Signage Transfer

16:38

This agenda item (A-2009-60) involved an appeal to transfer 32 square feet of unused signage from a Planned Neighborhood Residential (R-3) zone to a Highway Service Business (B-3) zone.

Presentation and Key Issues

Bruce Simpson presented the case. Staff recommended disapproval of the signage transfer request based on several concerns:

• Administrative burden associated with processing the transfer
• Lack of visual connection between the two properties involved
• Uncertainty regarding whether the transfer would comply with applicable zoning limits

Outcome

The matter was postponed to October, with no final decision rendered at this meeting.

FENDER FUNERAL DIRECTORS - Revocation Hearing for Conditional Use Permit

17:51

The Board held a revocation hearing for a conditional use permit originally granted to Fender Funeral Directors in 2005. The hearing addressed non-compliance with paving and landscaping conditions that were required as part of the permit approval.

Key Speakers and Presentations

Dick Murphy and James Fender presented on behalf of the funeral home regarding the permit conditions.

Request and Justification

The applicant requested a one-month continuance to address the outstanding compliance issues. The delay in completing required paving work was attributed to weather conditions, specifically rain that had impeded construction progress.

Outcome

The Board postponed the revocation hearing rather than proceeding with the scheduled action. This postponement allowed additional time for the applicant to work toward compliance with the original permit conditions.

FORCHT BANK, NA - Variance for Landscape Buffer Reduction

Identifier: V-2009-61

Forcht Bank, NA requested a variance to reduce a required 5-foot landscape buffer to 1.5 feet. 25:04

Presentation and Recommendation

Andrew Cattoi presented the variance request. Staff recommended approval of the variance, determining that the reduction would have minimal adverse impact on the surrounding area. The staff analysis noted that the variance was necessary to preserve proper access and alignment for the project.

Outcome

The Board approved the variance request. The approval was granted with two conditions attached to the decision.

BRUCE PROPERTIES, INC. - Variances for Screening Wall Height and Side Yard

Case Number: V-2009-62

Bruce Properties, Inc. requested variances to increase screening wall height and reduce side yard setbacks to accommodate future development and grade changes on the property. 59:02

Key Speakers and Presentation

Dick Murphy and Matt Carter presented the variance request to the Board.

Staff Recommendation

Staff recommended approval of the variances with conditions.

Board Discussion and Concerns

The Board raised concerns about procedural compliance during the discussion. Specifically, Board members noted the lack of a permit associated with the variance request, which raised questions about whether proper procedures had been followed prior to the variance application.

Outcome

The Board approved the variances by a 5-2 vote. The approval was granted despite the procedural concerns that were raised during deliberation, indicating that a majority of Board members determined the variances met the necessary criteria despite the noted compliance issues.

ROBERT H. DOUGLAS - Conditional Use Permit for Bed and Breakfast

Identifier: C-2009-50

Type: Conditional Use Permit

The application for a bed and breakfast operation by Robert H. Douglas was presented for consideration. The proposed use would be located in an Agricultural Rural (A-R) zone.

Outcome

The application was recommended for postponement. The decision to postpone was based on incomplete documentation and insufficient information provided with the application. Specifically, the site plans were incomplete, and there was a lack of information regarding the design of the proposed bed and breakfast and the owner's stated intent for the operation.

The request was postponed to October for resubmission with the necessary additional materials and clarifications.

CRESTWOOD CHRISTIAN CHURCH CHILDCARE - Conditional Use Permit for Child Care Expansion

Case Number: C-2009-57

Crestwood Christian Church requested a conditional use permit to expand its child care operations. The proposal sought to increase the facility's child care capacity from 99 children to 138 children.

Staff Recommendation

Staff recommended approval of the conditional use permit with conditions. The analysis noted that the expanded operation would not create disturbances and that adequate parking was available to support the increased capacity.

Public Input

A letter of opposition was received regarding the proposal, though specific details of the concerns raised were not documented in the record.

Board Action

Nadju Mindiodo presented the matter to the Board. 1:03:09

The Board voted unanimously to approve the conditional use permit for the child care expansion.

BRETT SETZER / SETZER INVESTMENT NO. 5, LLC - Conditional Use Permit for Indoor Shooting Range

Identifier: C-2009-58

Brett Setzer and Setzer Investment No. 5, LLC requested a conditional use permit for an indoor shooting range to be located in a Light Industrial zone. 1:08:46

Staff Recommendation

Staff recommended approval of the conditional use permit subject to nine conditions. These conditions included requirements for soundproofing and permit compliance to address potential impacts of the proposed use.

Board Action

The Board approved the conditional use permit unanimously.

Key Speaker

Tom Lambden presented information regarding this agenda item.

JOHN KEMPER - Administrative Review for Garage Size Increase

Identifier: A-2009-59

John Kemper sought an administrative review to exceed the 50% size limit for a detached garage on his property. 1:27:10

Staff Recommendation

Staff recommended disapproval of the request, citing a lack of unique circumstances that would justify an exception to the established garage size limitations.

Applicant's Position

Kemper argued for approval based on practical need for the larger garage structure. He also contended that the increased size would maintain visual consistency with the surrounding area and existing structures on his property.

Board Decision

The Board voted to deny the request by a vote of 5-2, rejecting the applicant's arguments for an exception to the garage size restrictions.