Board of Adjustment Meeting

Summary

Meeting Overview

The Urban County Board of Adjustment met on April 27, 2012, at 1:00 p.m. at 200 East Main Street in Lexington, Kentucky, with Chairman Louis Stout presiding. The board considered 11 agenda items during the meeting, which included variances, conditional use requests, administrative reviews, and a revocation hearing. The board took 11 motions and votes and heard 7 public comments throughout the session.

Of the 11 items on the agenda, the board approved 6 requests, postponed 2 items, and withdrew 2 requests. Approved items included a variance for Crown Castle PT Company's cell tower height increase, conditional use approvals for Tom Cheek's indoor athletic club, Providence Montessori School's expansion, Rood and Riddle Equine Hospital's facility expansion, Linda DeRosett's Montessori school in a church, Jersey Street LLC's change in non-conforming use, and a revocation hearing for Community Inn at 824 Winchester Road. The board postponed decisions on Ball Homes LLC's floodplain setback reduction variance and Towns Entertainment LLC's conditional use and variances for live entertainment. Two items were withdrawn: Ball and Wright Capital Holdings' administrative review for a third wall sign and Dr. Pinkesh Patel's variance for front yard setback reduction.

Attendance

The following 30 individuals were present at the meeting on April 27, 2012:

• Louis Stout
• James Griggs
• Barry Stumbo
• Kathryn Moore
• Jan Meyer
• Noel White
• Thomas Glover
• Chuck Saylor
• Jim Gallimore
• Rochelle Boland
• Jimmy Emmons
• Bill Sallee
• Jim Marx
• Wanda Howard
• Richard Murphy
• Cindy Shaffer
• Tom Cheek
• Pam Clements
• Roger Ladenberger
• Jeff Pearson
• Linda DeRosett
• John Brueger
• Mike Kovash
• Joe Mowonian
• John Long
• Kerry Cawthon
• Lee Thomas
• Josh Brown
• Doug Welch
• James McDonald

No absences or late arrivals were recorded.

Votes and Decisions

V-2012-24: Crown Castle PT Company Cell Tower Variance 14:02 Motion by Ms. Meyer, seconded by Mr. Glover. The Board unanimously approved a variance to extend a cell tower height from 160 to 185 feet in a Planned Neighborhood Residential (R-3) zone. Vote: 7-0. The monopole must be constructed in accordance with the submitted application and site plan, and all necessary permits must be obtained from the Divisions of Planning and Building Inspection prior to construction.

C-2012-14: Tom Cheek Rehabilitation/Indoor Athletic Club 15:41 Motion by Mr. Stumbo, seconded by Ms. White. The Board unanimously approved a conditional use permit for an indoor athletic club in a Wholesale and Warehouse Business (B-4) zone. Vote: 7-0. The facility shall be built and operated in accordance with the submitted application and site plan, with all necessary permits obtained prior to remodeling, construction, and occupancy.

C-2012-23: Providence Montessori School Expansion 16:45 Motion by Ms. White, seconded by Ms. Meyer. The Board unanimously approved a conditional use permit for facility expansion in a Single Family Residential and Planned Neighborhood Residential (R-1C/R-3) zone. Vote: 7-0. Conditions include conformance with the proposed site plan, required permits, storm water management plan implementation, paved and delineated parking areas with landscaping, and shoebox-style pole lighting directed downward.

C-2012-25: Rood and Riddle Equine Hospital Expansion 18:15 Motion by Mr. Glover, seconded by Mr. Griggs. The Board unanimously approved a conditional use permit for facility expansion and parking addition in an Agricultural Urban (A-U) zone. Vote: 7-0. The new building must be constructed per the submitted application and site plan, with all permits obtained and a storm water management plan implemented.

C-2012-26: Linda DeRosett Montessori School 20:03 Motion by Mr. Griggs, seconded by Mr. Glover. The Board unanimously approved a conditional use permit to establish a Montessori school in an existing church in a Two-Family Residential/Historic District Overlay (R-2/H-1) zone. Vote: 7-0. An Occupancy Permit is required, and a Certificate of Appropriateness must be issued before constructing the outdoor fenced play area.

A-2012-21: Legal Non-Conforming Use Change 24:03 Motion by Mr. Stumbo, seconded by Ms. White. The Board unanimously approved an administrative review allowing a change from warehouse storage to retail sales in a High Density Apartment/Historic District Overlay (R-4/H-1) zone. Vote: 7-0. The applicant must obtain a parking agreement for a minimum of 4 off-site parking spaces prior to receiving a Zoning Compliance Permit and Certificate of Occupancy.

V-2012-27: Ball Homes, LLC Variance Appeal 4:40 Motion by Mr. Stumbo, seconded by Ms. White. The Board unanimously postponed the floodplain setback reduction variance appeal until May 18, 2012. Vote: 7-0.

A-2011-71: Ball and Wright Capital Holdings Appeal 2:55 The appeal for a third wall sign in a Professional Office (P-1) zone was withdrawn by voice vote.

V-2012-22: Dr. Pinkesh Patel Variance Appeal 3:29 The variance appeal for front yard setback reduction in a Planned Neighborhood Residential (R-3) zone was withdrawn by voice vote.

CV-2012-11: Towns Entertainment, LLC Appeal 26:34 Motion by Mr. Stumbo, seconded by Mr. Thomas. The Board unanimously continued the conditional use and variance appeal for live entertainment and parking setback reduction. Vote: 7-0.

Community Inn Revocation Hearing 1:36:21 Motion by Mr. Marks, seconded by Mr. Chen. The Board unanimously approved scheduling a revocation hearing for Community Inn at 824 Winchester Road due to non-compliance with its conditional use permit. Vote: 7-0.

Public Comment

Seven speakers addressed the meeting with concerns and responses regarding a proposed live entertainment variance for Towns Entertainment.

Opposition and Neighborhood Concerns

Mike Kovash, representing the Historic South Hill Neighborhood Association, opposed the variance citing a history of noise disturbances from previous bars at the site and concerns about enforceability of conditions to prevent noise nuisances 38:04.

Joe Mowonian, a long-time business owner, raised parking concerns, arguing that the proposed restaurant would face parking challenges and emphasizing the need for convenient customer parking 48:15.

Enforcement Standards

John Long expressed concern about the lack of quantifiable standards for noise enforcement and suggested implementing a "three strikes and you're out" policy with decibel monitoring 50:26.

Kerry Cawthon, a close neighbor, supported the idea of a measurable decibel threshold of 72 dB and a three-strike policy for noise violations to ensure neighborhood protection 54:06.

Neighborhood Association Conditions

Lee Thomas, president of the Historic South Hill Neighborhood Association, outlined specific conditions for the live entertainment use, including soundproofing, patio restrictions, and a revocation process after three complaints 58:58.

Applicant Response

Josh Brown, representing Towns Entertainment, acknowledged the concerns and committed to working with neighbors, conducting sound tests, and implementing soundproofing measures 1:07:36.

Church Statement

James McDonald, pastor of Emanuel Apostolic Church, stated he was unaware of the conditions tied to the original permit and denied knowledge of the facility's use as a homeless shelter 1:37:25.

Contested Items

Towns Entertainment Live Entertainment Variance

A proposal for Towns Entertainment to operate live entertainment faced strong opposition from neighbors and the Historic South Hill Neighborhood Association. The primary concerns centered on noise impacts, challenges with enforcement of any conditions imposed, and the absence of measurable standards to govern the operation. Due to the significant community opposition, the Board postponed the case to allow time for further negotiation between the applicant and affected parties.

Community Inn at 824 Winchester Road

The operation of a homeless shelter at 824 Winchester Road, which was being conducted under a church conditional use permit, generated procedural and compliance concerns. Issues arose regarding whether the shelter's operation complied with the terms of the permit, the integrity of public notification processes, and questions about whether the use had been transferred without appropriate legal protections such as a null-and-void clause. These concerns prompted the Board to schedule a revocation hearing to address the permit's validity and the shelter's continued operation.

Ball and Wright Capital Holdings – Administrative Review for Third Wall Sign

Case Identifier: A-2011-71

Overview

This agenda item concerned an administrative review appeal for a third wall sign proposed by Ball and Wright Capital Holdings in a Professional Office (P-1) zoned area. 2:55

Key Speaker

Richard Murphy presented on this matter.

Outcome

The appeal was withdrawn. The appellant requested withdrawal of the application due to a change in plans.

Staff Recommendation

Prior to the withdrawal, staff had recommended disapproval of the third wall sign based on zoning restrictions applicable to the Professional Office zone and conditions previously established by the Board.

Dr. Pinkesh Patel – Variance for Front Yard Setback Reduction

Case Number: V-2012-22

Request: Dr. Pinkesh Patel sought a variance to reduce the front yard setback from 20 feet to 0 feet for a property in a Planned Neighborhood Residential (R-3) zone. 3:29

Staff Recommendation: Staff recommended disapproval of the variance request, citing a lack of special circumstances that would justify the reduction and noting that the proposed design would be out of character with the neighborhood.

Outcome: The variance request was withdrawn. After discussion, the applicant decided to redesign the driveway to comply with existing zoning requirements rather than proceed with the variance application.

Ball Homes, LLC – Variance for Floodplain Setback Reduction

Case Number: V-2012-27

Type: Appeal

Outcome: Postponed to May 18, 2012

The appeal for a floodplain setback variance was presented during this meeting 4:40. The applicant, Ball Homes, LLC, requested a postponement of the hearing, which was granted.

Staff Recommendation

Staff recommended approval of the variance based on the following factors:

• FEMA's Conditional Letter of Map Revision (CLOMR)
• Lack of adverse impact from the proposed setback reduction
• The existence of a future Letter of Map Revision (LOMR)

Next Steps

The appeal has been rescheduled for consideration at the May 18, 2012 meeting.

Crown Castle PT Company – Variance for Cell Tower Height Increase

Case Number: V-2012-24

Outcome: Approved unanimously

Crown Castle PT Company requested a variance for a cell tower height increase in a Planned Neighborhood Residential (R-3) zone. 8:19

Proposal Details

The variance sought a 25-foot setback reduction to permit construction of a 185-foot tower within the residential zone.

Staff Recommendation and Rationale

Staff recommended approval of the variance based on several factors:

• Minimal visual impact from the proposed tower height
• Co-location benefits that would consolidate cellular infrastructure
• No circumvention of existing zoning regulations

Decision

The appeal was approved unanimously by the board.

Tom Cheek – Conditional Use for Indoor Athletic Club

Case Identifier: C-2012-14

Type: Conditional Use Permit Appeal

Applicant: Tom Cheek

Project Description: A conditional use permit for a rehabilitation/indoor athletic club in a B-4 zone.

Staff Recommendation: Approval, based on the suitability of the site and availability of public services.

Outcome: The conditional use permit was approved unanimously.

14:36

Providence Montessori School – Conditional Use for School Expansion

Case Number: C-2012-23

Overview

The board considered a conditional use permit application for Providence Montessori School to expand its facilities and convert an existing garage into classroom space. 16:12

Key Presentation

Pam Clements presented information regarding the school expansion proposal.

Staff Recommendation

Staff recommended approval of the conditional use permit, citing minimal impact on the surrounding area and adequate buffering measures as supporting factors for the expansion.

Outcome

The conditional use permit was approved unanimously by the board.

Rood and Riddle Equine Hospital – Conditional Use for Facility Expansion

The board considered a conditional use permit application (C-2012-25) for Rood and Riddle Equine Hospital to expand its facility and add parking in an A-U zone 17:45.

Presenters and Discussion

Key speakers on this item included Roger Ladenberger and Jeff Pearson, who presented information regarding the proposed expansion.

Staff Recommendation

Staff recommended approval of the conditional use permit. The recommendation was based on findings that the expansion would have minimal impact on the surrounding area and that existing screening would adequately address any potential concerns related to the facility expansion and additional parking.

Outcome

The conditional use permit was approved unanimously by the board.

Linda DeRosett – Conditional Use for Montessori School in Church

Agenda Item: C-2012-26

Outcome: Approved unanimously

Overview

The board considered a conditional use permit application to establish a Montessori school within a historic church building. Staff recommended approval based on minimal operational impact and adequate availability of services to support the proposed use.

Key Presenter

Linda DeRosett presented this agenda item.

Staff Recommendation

Staff recommended approval of the conditional use permit, citing that the proposed Montessori school would have minimal impact on the surrounding area and that necessary services were available to accommodate the school's operations.

Decision

The conditional use permit was approved unanimously by the board.

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*For more details, see the meeting recording at approximately 18:45*

Jersey Street, LLC – Administrative Review for Change in Non-Conforming Use

Item Identifier: A-2012-21

Overview

This agenda item addressed an appeal by Jersey Street, LLC for administrative review to change a non-conforming use from warehouse to retail sales in a historic district.

Presentation and Recommendation

John Brueger presented the matter to the board 20:33. Staff recommended approval of the proposed change in use. The recommendation was based on the determination that retail sales represents a lower zoning intensity compared to the existing warehouse use, and that the change would not create additional burden on the neighborhood.

Outcome

The appeal was approved unanimously by the board.

Towns Entertainment, LLC – Conditional Use and Variances for Live Entertainment

Item: CV-2012-11

Type: Appeal

Outcome: Postponed

This agenda item addressed an appeal for Towns Entertainment, LLC regarding a conditional use permit and variances for a restaurant with live entertainment. The application included requests for setback and parking variances.

Key Speakers: - Josh Brown - Doug Welch - Mike Kovash - John Long - Kerry Cawthon - Lee Thomas

Discussion Summary:

Staff recommended approval of the conditional use permit and variances, subject to conditions. However, the discussion revealed significant concerns from multiple parties regarding enforcement and noise issues associated with the live entertainment use.

The applicants and neighboring property owners were unable to reach full agreement on all terms during the initial review period. Rather than proceeding to a final decision, the board determined that additional negotiation between the applicants and neighbors would be beneficial to address outstanding concerns before the matter could be resolved.

Concerns Raised:

The primary issues discussed centered on: - Enforcement mechanisms for the conditional use permit - Noise control and potential impacts on neighboring properties

Next Steps:

The item was continued to allow time for further discussions between the applicants and affected neighbors, with the expectation that a resolution addressing the identified concerns could be reached before the matter returned to the board for final consideration.

24:36

Revocation Hearing for Community Inn at 824 Winchester Road

1:36:21

Staff presented a revocation hearing recommendation for a homeless shelter operating at 824 Winchester Road. The facility was found to have violated the terms of its original conditional use permit through changes in its operations and the abandonment of parking agreements that had been part of the initial approval.

James McDonald presented the staff report on this matter.

The Board reviewed the violations and determined that a formal revocation hearing should be scheduled to address the permit violations and determine the appropriate course of action. The Board approved holding the revocation hearing on May 18.

Outcome: The Board approved the scheduling of a revocation hearing for May 18 to address the violations of the conditional use permit at the Community Inn facility.