Board of Adjustment

Summary

Meeting Overview

The Urban County Board of Adjustment Planning Services Section met on September 27, 2013, at 1:30 p.m. at 200 East Main Street in Lexington, Kentucky, with Chairman Barry Stumbo presiding. The board considered 12 agenda items, taking 13 motions and votes throughout the meeting while hearing 9 public comments. The board approved 11 of the 12 requests before it, including variances to reduce required setbacks and parking, conditional use permits for various commercial and residential projects, and administrative appeals. The board denied one request: a variance to increase the allowable height of an accessory structure for Brian and Angela Johnson.

Attendance

The following individuals were present at the meeting on September 27, 2013:

• Barry Stumbo
• Noel White
• Joseph Smith
• Janice Meyer
• James Griggs
• Thomas Glover
• Kathryn Moore

Joseph Smith arrived late to the meeting.

No members were absent.

Votes and Decisions

The Board approved eleven motions and denied one during this meeting.

Variance Approvals

The Board unanimously approved a variance for David and Louise Pendery to reduce the required side yard from 27 feet to 19 feet (V-2013-56), with the motion made by Noel White and seconded by Kathryn Moore 8:31. All six board members voted in favor.

A variance for Derek Nielsen and Lindsay Scott to reduce the required side yard from 3 feet to 0 feet (V-2013-58) passed unanimously on a motion by Janice Meyer, seconded by Thomas Glover 9:49.

The Board unanimously approved a variance for Harmony HB, LLC to reduce the required side yard from 3 feet to 0 feet (V-2013-59), with the motion made by James Griggs and seconded by Janice Meyer 10:54.

A variance for Johnston Charitable Trust to reduce required parking by 50% from 4 to 2 spaces (V-2013-60) was unanimously approved on a motion by Thomas Glover, seconded by Noel White 12:10.

Conditional Use Permits and Other Approvals

The Board unanimously approved a conditional use permit and variance for TLC Miller, LLC to establish a nightclub and reduce setback from 100 feet to 91 feet (CV-2013-51), with the motion made by Kathryn Moore and seconded by James Griggs 15:58.

A conditional use permit for Idle Hour Country Club to expand its pool bar canopy and service area roof (C-2013-53) passed unanimously on a motion by Janice Meyer, seconded by James Griggs 17:51.

The Board unanimously approved a conditional use permit for Jim Wilhite to modify a site plan, replacing on-site parking with townhomes (C-2013-54), with the motion made by Noel White and seconded by Thomas Glover 20:34.

An administrative review and conditional use permit for Associates in Pediatric Therapy's physical therapy use (AC-2013-52) was unanimously approved on a motion by Thomas Glover, seconded by Janice Meyer 22:14.

An administrative appeal for Solomon Lee Van Meter to change nonconforming use from retail to residential (A-2013-55) passed unanimously on a motion by James Griggs, seconded by Thomas Glover 29:41.

An administrative appeal for Clayton Farmer to review denial of a permit to expand nonconforming use (A-2013-61) was unanimously approved on a motion by Janice Meyer, seconded by Noel White 1:41:54.

Denial

The Board denied a variance for Brian and Angela Johnson to increase allowable height of an accessory structure from 20 feet to 21 feet 10 inches (V-2013-57). A motion to deny was made by James Griggs and seconded by Thomas Glover, passing with five votes in favor and one vote against from Kathryn Moore 1:51:18.

One-Year Review

The Board unanimously approved a one-year review of the conditional use permit for Ryan Conboy's animal crematory (C-2012-59), with the motion made by Thomas Glover and seconded by Janice Meyer 3:04:21.

Public Comment

The meeting included nine public comments addressing two primary topics: a variance request for a residential garage and the operation of an animal crematory.

Garage Variance Concerns

Steven Tyner Wilson [01:07:07] opposed Brian and Angela Johnson's variance request, expressing concern about the garage height and citing a 53-foot shadow at 10 a.m. He also questioned the accuracy of the site plan, noting inconsistencies in frontage measurements and encroachment into the side yard.

Melanie Tyner Wilson [01:13:36] emphasized the emotional and precedent-setting impact of the structure, stating that it affects the entire neighborhood and could lead to similar developments.

Andy Castro [01:16:02] criticized the Johnsons for building without proper knowledge of zoning rules, arguing that ignorance is not an excuse and that the structure sets a dangerous precedent.

Animal Crematory Operation

Ryan Conboy [02:07:44] spoke in support of the crematory, stating that it is a necessary service for disposing of dead animals and has operated without complaints or harm to the community.

Hank Grady [02:09:17] raised legal and operational concerns, arguing that the crematory should not be allowed in an agricultural zone and requesting operational limits on hours, days, and volume to prevent overuse.

Charlene Horn [02:23:44] expressed concerns about air and water pollution, health hazards, and property value decline due to the crematory, and supported a petition for restrictions.

Peter Kerwin [02:40:26] confirmed smelling a hair-burning odor when the wind came from the north, though he characterized it as infrequent and not a major issue.

Frank Penn [02:43:06] defended the crematory as essential for responsible disposal of dead animals, noting that traditional methods are no longer viable.

Jeremy Wiles [02:45:47] stated that the crematory has not disturbed him or his wife and expressed support for the business as a good neighbor.

Contested Items

Brian and Angela Johnson's Variance Request

The Board addressed a variance request from Brian and Angela Johnson that generated heated discussion among board members and the public. The primary point of contention involved the height of a proposed garage and questions about the accuracy of the site plan. Neighbors voiced strong opposition to the request. The disagreement resulted in a split vote among board members, ultimately leading to a denial of the variance.

Ryan Conboy's Animal Crematory

A second major contested item involved an animal crematory operation proposed by Ryan Conboy. Multiple neighbors attended the meeting to express opposition, raising concerns about health impacts, environmental effects, and the precedent such a facility would establish in the community. Despite staff findings that the operation would substantially comply with applicable regulations, neighbors demanded that operational limits be imposed on the facility. The community opposition centered on the potential risks and implications of allowing this type of business in the area.

Variance to reduce required side yard from 27 feet to 19 feet for David and Louise Pendery

Identifier: V-2013-56

The Board considered a variance request to reduce the required side yard setback from 27 feet to 19 feet for a residential addition on a 1.4-acre property owned by David and Louise Pendery 8:31.

Key Speakers

The discussion involved David Pendery, Louise Pendery, and Jimmy Emmons.

Board Decision

The Board approved the variance. In granting approval, the Board determined that the variance would have minimal impact on the surrounding area and would not result in any adverse effect on public health or neighborhood character. The approval was granted subject to three conditions.

Variance to reduce required side yard from 3 feet to 0 feet for Derek Nielsen and Lindsay Scott

Identifier: V-2013-58

The Board considered a variance request to reduce the required side yard setback from 3 feet to 0 feet for a property owned by Derek Nielsen and Lindsay Scott. 9:49

Key Speakers: - Derek Nielsen - Lindsay Scott - Jimmy Emmons

Request and Approval:

The variance was sought to retain an existing privacy fence on the property line. The Board approved the variance request.

Board Findings:

In approving the variance, the Board noted that the area has unusually wide side yards, which provided context for the request. The Board also determined that approval of the variance did not constitute a circumvention of zoning rules.

Conditions:

One condition was attached to the approval.

Outcome: Approved

Variance to reduce required side yard from 3 feet to 0 feet for Harmony HB, LLC

Case Number: V-2013-59

Outcome: Approved

The Board considered a variance request to reduce the required side yard setback from 3 feet to 0 feet for Harmony HB, LLC 10:54. The variance was sought to retain an existing window well on the property.

Key Speakers: - John Strom - Jimmy Emmons

Decision:

The Board approved the variance. The approval included two conditions:

• Amendment to the permit
• Filing of an easement plat

Rationale:

The Board cited safety and emergency access benefits as the basis for granting the variance to allow the existing window well to remain in place.

Variance to reduce required parking by 50% for Johnston Charitable Trust

Case Number: V-2013-60

Outcome: Approved

Overview

The Board approved a parking variance request for Johnston Charitable Trust that would reduce required parking by 50% for a small downtown business lot. 12:10

Key Speakers

• Sally Johnston
• Kevin Oday
• Jimmy Emmons

Discussion

The Board considered the variance application for the downtown property. The discussion noted that the property has a history of non-compliance with standard parking requirements. The Board determined that the proposed use change supports redevelopment efforts in the downtown area, which factored into their approval decision.

Conditions

The Board attached two conditions to the variance approval.

Conditional use permit for nightclub and variance to reduce setback from 100 feet to 91 feet

15:58

The Board considered a conditional use permit and setback variance for TLC Miller, LLC to operate a nightclub with a reduced setback requirement.

Application Details

The applicant requested approval for a conditional use permit to operate a nightclub and a variance to reduce the required setback from 100 feet to 91 feet.

Key Speakers

• Myke Robbins
• Jimmy Emmons

Board Action

The Board approved both the conditional use permit for the nightclub and the variance to reduce the setback requirement. The approval was based on consideration of the building's orientation and soundproofing features.

Conditions

Four conditions were attached to the approval of this application.

Outcome

Approved

Conditional use permit to expand Idle Hour Country Club's pool bar canopy and service area roof

Identifier: C-2013-53

The Board considered a conditional use permit application for Idle Hour Country Club to expand its pool bar canopy and service area roof. 17:51

Key Speakers

Bob Featherston and Jimmy Emmons presented on this matter.

Board Action

The Board approved the expansion. The approval was based on findings that the proposed expansion would have minimal impact on the neighborhood and that adequate infrastructure was in place to support the project.

Conditions

Two conditions were attached to the approval.

Outcome

The conditional use permit was approved as presented.

Conditional use permit to modify site plan, replacing on-site parking with townhomes

Identifier: C-2013-54

Applicant: Jim Wilhite

20:34

The Board considered a conditional use permit to modify an existing site plan by replacing on-site parking with townhomes. Jason Banks and Jimmy Emmons presented on this matter.

The Board approved the modification. In their decision, the Board noted that the proposed change would result in reduced use intensity at the site compared to the existing conditions. The Board found the proposal to be in compliance with applicable conditions.

The approval was granted subject to six conditions that were attached to the permit.

Outcome: Approved

Administrative review and conditional use permit for physical therapy use by Associates in Pediatric Therapy

22:14

The Board considered an administrative review and conditional use permit application for a physical therapy use by Associates in Pediatric Therapy.

Key Speakers

Angela Renee Sageser and Jimmy Emmons presented on this matter.

Board Action

The Board approved the use. In making its decision, the Board found the proposed physical therapy use to be substantially similar to an athletic club and consistent with applicable zoning requirements.

Conditions

Two conditions were attached to the approval.

Outcome

The application was approved.

Administrative appeal to change nonconforming use from retail to residential for Solomon Lee Van Meter

29:41

The Board considered an administrative appeal to change the nonconforming use of a property from retail to residential for Solomon Lee Van Meter (Agenda Item A-2013-55).

Key Speakers

Solomon Lee Van Meter and Jimmy Emmons presented on this matter.

Board Decision

The Board approved the change of nonconforming use from retail to residential. In making this determination, the Board noted that the proposed residential use involved a smaller building volume and reduced use intensity compared to the existing retail use.

Conditions

The Board attached three conditions to the approval.

Administrative appeal to review denial of permit to expand nonconforming use for Clayton Farmer

Identifier: A-2013-61

Outcome: Approved

The Board considered an administrative appeal regarding a denial of a permit to expand a nonconforming use for Clayton Farmer 1:41:54.

Key Speakers: - Clayton Farmer - Jimmy Emmons

Board Decision:

The Board approved the appeal. In making this determination, the Board found that the proposed addition would not extend the nonconforming use and would maintain neighborhood character. This finding formed the basis for overturning the previous permit denial.

Variance to increase allowable height of accessory structure from 20 feet to 21 feet 10 inches

Case Number: V-2013-57

Applicants: Brian and Angela Johnson

Request: A variance to increase the allowable height of an accessory structure from 20 feet to 21 feet 10 inches.

Key Speakers: Angela Johnson and Jimmy Emmons presented on this matter 1:41:54.

Board Decision: The Board denied the variance. A second motion to deny was passed.

Basis for Denial: The Board cited willful construction beyond height limits as a primary concern. The Board also noted potential alteration of neighborhood character as a factor in their decision to deny the request.

One-year review of conditional use permit for animal crematory for Ryan Conboy

3:04:21

The Board reviewed the one-year conditional use permit for an animal crematory operated by Ryan Conboy. Key participants in the discussion included Ryan Conboy, Jimmy Emmons, and Hank Grady.

The review examined compliance with the conditions imposed when the permit was originally granted. The Board found that the operation demonstrated substantial compliance with all required conditions, including logkeeping requirements and road paving obligations.

The Board approved the one-year review. No new conditions were added to the permit as a result of this review.