Board of Adjustment Meeting

Summary

Meeting Overview

The Urban County Board of Adjustment met on March 28, 2014, at 1:30 p.m. at 200 East Main Street in Lexington, Kentucky, with Barry Stumbo presiding. The board considered nine agenda items, including variance requests for property setbacks and yard reductions, conditional use permits, and administrative appeals. The board took 10 votes and heard 4 public comments during the meeting.

Of the nine items presented, the board approved five requests: a variance for Barbara B. Pickett to reduce side yard requirements from 3 feet to 0 feet; a variance for Salas Enterprises Corp. to reduce setback from 25 feet to 20 feet; approval for Eighth Pole Inn, LLC to continue operating as a bed and breakfast under new ownership; an administrative appeal for Eric DeJonge (DBA Net Biz, LLC) regarding an internet cafe with sweepstakes; and an administrative appeal by Walker Properties concerning a sign permit revocation.

Four items were postponed for further consideration: Mitchell Construction Management's request to reduce side yard from 17.5 feet to 10.5 feet; Peter Tate's variances to reduce side yard from 18 inches to 6 inches and rear yard from 20 feet to 8 feet; Fotios Moraitis's conditional use permit application for a pawn shop; and Bill Mead's conditional use permit application for a botanical garden.

Attendance

Present: - Barry Stumbo - Janice Meyer - Thomas Glover - James Griggs - Casey Kaucher - Chuck Saylor - Jim Marx - Tracy Jones - Bill Sallee - Jimmy Emmons - Tammye McMullen

Absent: - Noel White - Kathryn Moore

Votes and Decisions

The Board took action on ten items during the March 28, 2014 meeting. All votes were unanimous with four members voting in favor and no opposition or abstentions.

Postponements

The Board postponed four items:

• C-2014-15: Conditional use permit for assisted living center at 2930 Spurr Road 7:50. Motion by Janice Meyer, seconded by Thomas Glover.

• V-2014-19: Variance appeal for Peter Tate to expand garage at 101 Hampton Ct. 11:02. Motion by Thomas Glover, seconded by James Griggs.

• V-2014-18: Variance appeal for Mitchell Construction Management to expand garage at 125 E. 4th St. 18:04. Motion by James Griggs, seconded by Janice Meyer.

• C-2014-12: Conditional use permit for pawn shop at 1536 N. Limestone 47:54. Motion by Thomas Glover, seconded by Janice Meyer.

• C-2014-14: Conditional use permit for botanical garden at 9086 Old Richmond Rd. 1:56:11. Motion by Thomas Glover, seconded by Janice Meyer.

Approvals

The Board approved five items:

• V-2014-16: Variance for Barbara Pickett to reduce side yard from 3 ft to 0 ft at 109 Pleasant Ridge Way 14:12. Motion by James Griggs, seconded by Thomas Glover. Conditions included compliance with submitted site plan and obtaining a fence permit within 60 days.

• V-2014-17: Variance for Salas Enterprises to reduce setback from 25 ft to 20 ft at 3501 Lansdowne Dr. 15:18. Motion by Janice Meyer, seconded by James Griggs. Conditions required development per submitted site plan, obtaining necessary permits, and referencing the Board's action on the final development plan.

• C-2014-13: Continuation of bed & breakfast operation under new ownership at 3463 Rosalie Rd. 17:57. Motion by Thomas Glover, seconded by Janice Meyer. Six conditions were imposed, including compliance with original conditional use approval, obtaining required permits, septic system review, parking maintenance, signage restrictions, and compliance with applicable codes.

• A-2014-11: Administrative appeal for internet cafe with sweepstakes at 1555 E. New Circle Rd. 2:59:16. Motion by Janice Meyer, seconded by Thomas Glover.

• A-2014-20: Administrative appeal to reinstate sign permit for Walker Properties at 3898 Haley Rd. 3:18:08. Motion by Thomas Glover, seconded by James Griggs.

All four Board members—Barry Stumbo, Janice Meyer, Thomas Glover, and James Griggs—voted in favor of each motion.

Public Comment

Four speakers addressed the board during the public comment period.

Pawn Shop Conditional Use Permit 20:44

Fotios Moraitis spoke in support of a proposed pawn shop conditional use permit. He clarified that the application is for a pawn shop only and does not include a used car lot. Moraitis noted that he has secured support from the property owner and Goodwill for parking arrangements. He acknowledged that the property has been vacant and in poor condition, but stated that the proposed use would improve the site.

Botanical Garden Conditional Use Permit 1:05:43

Bill Mead presented arguments for a proposed botanical garden conditional use permit. He characterized the use as a low-impact, environmentally sensitive recreational facility that is consistent with the Rural Land Management Plan. Mead urged the board not to delay approval pending text amendments.

Sweepstakes Internet Cafe Appeal 2:19:10

Chris Westover appealed a decision regarding a sweepstakes internet cafe. He explained that the sweepstakes component functions as a non-gambling promotional tool comparable to standard retail promotions. Westover stated that the business is not adult-oriented and that the business model has been reviewed and approved by the county attorney.

Sign Permit Revocation Appeal 3:01:48

Chad Walker appealed the revocation of a sign permit. He contested the revocation, asserting that the sign is not located in the right-of-way and that the permit should not have been voided despite having received approval from building inspection.

Contested Items

Three items generated significant disagreement during this meeting:

Pawn Shop Conditional Use Permit

The applicant and staff engaged in heated discussion over a pawn shop conditional use permit. The primary points of contention centered on parking adequacy, safety considerations, and how the proposed use aligned with the Central Sector Small Area Plan. Staff emphasized the need for streetscape improvements as part of the approval process, while the applicant argued for approval of a small, specialized use without extensive additional requirements.

Botanical Garden Conditional Use Permit

A botanical garden conditional use permit application sparked heated debate regarding the timing of a ZODA (Zoning Ordinance Development Amendment) text amendment. The applicant contended that waiting for the text amendment process could significantly delay a long-standing project. Staff, however, raised safety concerns about shuttle services that would operate across a federal highway, prioritizing these safety issues over project timeline considerations.

Sweepstakes Internet Cafe Appeal

The Board was divided on an appeal concerning a sweepstakes internet cafe, with members split on a key question: whether the use constituted an adult entertainment business. Staff argued the operation was similar to an adult arcade and should be classified accordingly. The applicant countered that the business was a non-gambling promotional retail service and should not be categorized as adult entertainment. This fundamental disagreement about the nature and classification of the business resulted in a split vote among Board members.

Barbara B. Pickett - Variance to reduce side yard from 3 ft to 0 ft

Case Number: V-2014-16

Outcome: Approved

Overview

The Board considered a variance request for Barbara B. Pickett to reduce the required side yard setback from 3 feet to 0 feet in a Planned Neighborhood Residential zone. The variance would allow the retention of an existing fence on the property.

Presentation

William Pickett presented the case on behalf of Barbara B. Pickett 13:41. The applicant sought to retain an existing fence that does not comply with the standard 3-foot side yard requirement for the zone.

Board Findings

The Board approved the variance based on the following determinations:

• The fence is not obstructive to neighboring properties or the surrounding area
• The fence does not negatively affect neighboring properties
• The variance is necessary due to the home's unique layout, which features only a side porch door
• The existing fence configuration is appropriate given the property's specific circumstances

Decision

The Board granted the variance request, allowing Barbara B. Pickett to retain the existing fence with a 0-foot side yard setback rather than the standard 3-foot requirement.

Salas Enterprises Corp. - Variance to reduce setback from 25 ft to 20 ft

Identifier: V-2014-17

The Board considered a variance request from Salas Enterprises Corp. to reduce the required setback from 25 feet to 20 feet for a project in a Planned Shopping Center zone. 15:18

John Talbot presented the variance request to the Board.

Outcome: The Board approved the variance.

Rationale: The Board found that the requested setback reduction is consistent with modern infill redevelopment trends and will not alter the neighborhood character. The variance allows Salas Enterprises to enclose a patio within the reduced setback parameters.

Mitchell Construction Management - Variance to reduce side yard from 17.5 ft to 10.5 ft

18:04

The Board considered variance application V-2014-18 regarding a request by Mitchell Construction Management to reduce the required side yard setback from 17.5 feet to 10.5 feet.

Outcome

The Board postponed this variance appeal. The postponement was based on two primary issues: incomplete application materials and lack of proper notice to relevant parties.

Key Issues

During review, the Board identified that the applicant sought to expand the garage height as part of this request. However, this garage height expansion was not included in the original variance submission materials. This discrepancy between what was originally submitted and what the applicant now sought to modify created a procedural problem that prevented the Board from proceeding with the hearing.

The incomplete application materials and the failure to provide proper notice regarding the full scope of the requested modifications—particularly the garage height expansion—meant the application did not meet the requirements for the Board to conduct a complete and fair review at this time.

Peter Tate - Variances to reduce side yard from 18 in to 6 in and rear yard from 20 ft to 8 ft

Identifier: V-2014-19

Type: Variance

Outcome: Postponed

The Board considered a variance application by Peter Tate requesting approval to reduce the side yard setback from 18 inches to 6 inches and the rear yard setback from 20 feet to 8 feet 11:02.

Key Discussion Points

Jimmy Emmons was the key speaker on this agenda item. The Board noted that staff had recommended approval of the variance, and the applicant had provided email agreement to the proposal. However, the applicant was absent from the meeting.

Concerns Raised

The Chair expressed concern about proceeding with approval of the variance in the absence of the applicant, despite the staff recommendation and the applicant's email agreement to the terms.

Action Taken

Due to the applicant's absence and the Chair's reservations about approving the variance without the applicant present, the Board voted to postpone consideration of this item.

Eighth Pole Inn, LLC - Continue operation of bed & breakfast under new ownership

Agenda Item: C-2014-13

Type: Conditional Use

Outcome: Approved

17:57

The Board considered a request to continue operation of a bed & breakfast at Eighth Pole Inn, LLC under new ownership. The property is located in an Agricultural Rural zone.

Tom Marks presented the item to the Board. The discussion focused on the continuation of a long-standing bed & breakfast operation that would remain unchanged despite the change in ownership. The Board noted that there was no adverse neighborhood impact associated with the request.

The Board approved the continuation of the bed & breakfast operation, recognizing that the change in ownership does not affect the nature or scope of the use itself. The approval allows the new ownership to maintain the existing bed & breakfast business at the location.

Fotios Moraitis - Conditional use permit for pawn shop

47:54

Fotios Moraitis applied for a conditional use permit to operate a pawn shop in a Highway Service Business zone. The application was discussed by the Board, with key speakers including Moraitis and Jimmy Emmons.

Concerns Raised

The Board identified several significant concerns with the proposed pawn shop:

• Parking inadequacy — The Board determined that parking provisions for the location were insufficient to support the proposed use.
• Safety hazards — Safety concerns were raised regarding the operation of a pawn shop at the proposed location.
• Gateway vision misalignment — The Board noted that the application failed to enhance the Central Sector Small Area Plan's gateway vision, indicating the proposal did not align with the area's planned development and aesthetic goals.

Outcome

The Board postponed the application rather than approving or denying it outright. This postponement allows for further consideration and potential modifications to address the identified concerns.

Bill Mead - Conditional use permit for botanical garden

Application: C-2014-14

Outcome: Postponed

The Board considered a conditional use permit application from Bill Mead for a botanical garden 1:56:11. Key speakers in the discussion included Chris Westover and John Carman.

Concerns Raised

The Board identified significant concerns about the proposed project's parking arrangements. A primary issue was that parking would be located at a distance from the botanical garden site, requiring visitors to cross a federal highway to access the facility. This arrangement raised questions about the practicality and safety of the parking solution.

Pending Regulatory Considerations

The Board noted that a pending ZODA (Zoning Ordinance Development Amendment) text amendment could potentially clarify how outdoor recreational uses are classified and regulated. The Board determined that waiting for this amendment to be finalized would be prudent before making a final decision on the conditional use permit.

Board Action

Rather than approving or denying the application, the Board voted to postpone consideration of the botanical garden permit. This postponement allows time for the ZODA text amendment process to conclude, which may provide clearer regulatory guidance on outdoor recreational uses and potentially address some of the Board's concerns about the project.

Eric DeJonge (DBA Net Biz, LLC) - Administrative appeal for internet cafe with sweepstakes

2:59:16

The Board considered an administrative appeal by Eric DeJonge, operating as Net Biz, LLC, regarding the classification of a sweepstakes internet cafe operation.

Key Speakers - Chris Westover - Eric DeJong

Issue The appeal addressed whether a sweepstakes internet cafe should be classified as an adult entertainment use or as a retail service with promotional sweepstakes.

Board Determination The Board approved the appeal. The Board determined that the sweepstakes internet cafe is not an adult entertainment use, but rather a retail service with promotional sweepstakes—a classification comparable to common retail promotions found in other businesses.

Outcome The appeal was approved.

Walker Properties - Administrative appeal of sign permit revocation

3:18:08

The Board considered an administrative appeal by Walker Properties regarding the revocation of a sign permit. Chad Walker presented the appeal.

The core issue involved a sign permit that had been revoked based on a determination that the sign was located in the right-of-way. Walker Properties contested this determination, arguing that state transportation data contradicted the finding that the sign encroached on the right-of-way.

The Board reviewed the evidence presented, including the state transportation data referenced in the appeal. Based on this review, the Board found that the original revocation decision was based on an incorrect determination regarding the sign's location relative to the right-of-way boundary.

Outcome: The Board approved the appeal and voted to reinstate the sign permit.