Board of Adjustment Meeting

Summary

Meeting Overview

The Lexington Fayette County Board of Adjustments met on March 27, 2009, at 1:02 p.m. in the Council Chambers at 200 East Main Street, Lexington, Kentucky, with Chairman Peter Brown presiding. The board considered nine agenda items, taking eight votes and hearing three public comments during the session.

The board's actions included four approvals, two postponements, one withdrawal, and two denials. Approved items included a variance to reduce side yard setbacks for Manuel Hernandez, a conditional use permit for a child care facility operated by Rozenna Boyd, and two administrative reviews for nonconforming use changes by Moveable Feast and Nader Iweimrin. Two items were postponed for further consideration: a conditional use permit for a drive-through pharmacy by Joy & Associates, Inc., and a conditional use permit and variance for a parking lot by Broadway Christian Church. Darrin Darnell's conditional use permit application for a horse riding facility was withdrawn. The board denied an administrative review for a drive-through liquor store requested by Ephraim Alami and denied an appeal by Michael Cavey and others regarding crematory use in an I-1 zone.

Attendance

Present: Peter Brown, Barry Stumbo, Louis Stout, Kathryn Moore, Janice Meyer, James Griggs, Jim Hume, Barry Brock, Jim Gallimore, Rochelle Boland, Jim Marx, Bill Sallee, Wanda Howard, Nick Nicholson, Darryl Nunnelley, Robert Dever, Rozenna Boyd, Blake Eames, Terry Mullins, Nader Iweimrin, Ephraim Alami, Michael Cavey, John Pappas, David Ponder, William Vareles, Bruce Simpson, Brad Hawkins, Richard Davis, and Chaz Hyde.

Absent: Carolyn Edwards

Late: None

Votes and Decisions

C-2009-14: Joy & Associates, Inc. Drive-Through Pharmacy Appeal 12:48 Motion by Louis Stout, seconded by Barry Stumbo. The appeal for a conditional use permit for a drive-through pharmacy in a B-2 zone was postponed by unanimous vote. All six members voted in favor: Peter Brown, Barry Stumbo, Louis Stout, Kathryn Moore, Janice Meyer, and James Griggs.

CV-2009-9: Broadway Christian Church Parking Lot Expansion 14:00 Motion by Janice Meyer, seconded by Kathryn Moore. The appeal for a conditional use permit and variance for church parking lot expansion was postponed by unanimous vote. All six members voted in favor: Peter Brown, Barry Stumbo, Louis Stout, Kathryn Moore, Janice Meyer, and James Griggs.

V-2009-19: Manuel Hernandez Side Yard Variance 27:40 Motion by Louis Stout, seconded by Barry Stumbo. The variance to reduce the side yard from 20 to 15 feet for a building addition in a B-1 zone was approved by unanimous vote. All six members voted in favor. The approval includes conditions requiring the proposed addition to be undertaken in accordance with a revised site plan eliminating a 9'6" wide one-way traffic aisle along the north side of the building, and requiring all necessary permits from the Division of Building Inspection prior to construction.

C-2009-12: Rozenna Boyd Child Care Facility 32:10 Motion by Barry Stumbo, seconded by Louis Stout. The conditional use permit to establish a child care facility in an I-1 zone was approved by unanimous vote. All six members voted in favor. The approval includes six conditions: limiting capacity to 65 children Monday through Friday from 6:00 AM to 6:00 PM; obtaining an occupancy permit; removing a shrub at the northeast corner to facilitate emergency egress; fencing the outdoor play area; complying with Kentucky Cabinet for Health and Family Services requirements; and parking only in designated spaces.

A-2009-15: Meal Prep and Delivery Service Use Change 45:51 Motion by Kathryn Moore, seconded by Louis Stout. The administrative review to change a nonconforming use from restaurant to meal prep and delivery service in an R-3 zone was approved by unanimous vote. All six members voted in favor. Conditions require obtaining permits from the Division of Building Inspection, undertaking the activity in accordance with the submitted application including March 12, 2009 supplemental information, and limiting use to no more than two delivery vans except for volunteers' vehicles.

A-2009-17: Retail with Restaurant to Restaurant with Retail Use Change 47:30 Motion by Janice Meyer, seconded by James Griggs. The administrative review to change a nonconforming use from retail with accessory restaurant to restaurant with accessory retail in an A-R zone was approved by unanimous vote. All six members voted in favor. Conditions require the applicant not to exceed the scope of the approved use, obtain all necessary permits from the Division of Building Inspection, and comply with all applicable zoning and health regulations.

A-2009-16: Ephraim Alami Drive-Through Liquor Store 39:28 Motion by Barry Stumbo, seconded by Kathryn Moore. The administrative review to establish a drive-through liquor store in an R-3 zone was denied by unanimous vote. All six members voted in favor of the denial.

A-2009-18: Crematory as Principal Use Appeal 39:28 Motion by James Griggs, seconded by Kathryn Moore. The appeal to allow a crematory as a principal use in an I-1 zone was denied by vote of 5-1. Members voting in favor of the denial: Peter Brown, Barry Stumbo, Louis Stout, Kathryn Moore, and Janice Meyer. Member voting against: James Griggs. The decision requires that a crematory use obtain a conditional use permit.

Public Comment

Three speakers provided public comment during the meeting.

Drive-Through Liquor Store Opposition

Janet Coleman testified at 1:13:07 in opposition to a drive-through liquor store window at 502 E 7th Street. She expressed concerns that the drive-through window creates safety hazards for pedestrians and children, obstructs visibility, and negatively impacts the neighborhood's image. Coleman emphasized that the community should not be forced to accept illegal uses.

Carla Clark spoke at 1:20:46, also opposing the drive-through liquor store. Clark stated she has lived in the neighborhood since 1977 and confirmed that the drive-through window was not in use until 2008. She criticized the lack of transparency in the petition process and questioned the legitimacy of the signatures collected in support of the operation.

Crematory Opposition

David Ponder testified at 2:23:37 regarding opposition to a proposed crematory near Newtown Pike. He stated that the crematory would severely impact his property and the planned revitalization of the area. Ponder emphasized the need for a public hearing to ensure community input on the proposal.

Contested Items

The Board addressed two contentious matters during this meeting:

Crematory Use in I-1 Zone

The Board was divided on the classification of a crematory as a permitted use in the I-1 zone. The core disagreement centered on whether a crematory should be considered a principal use or a conditional use under the zoning ordinance. Five Board members voted to deny the appeal, while one member voted to approve it. The dissenting member cited the need for a public hearing and noted ambiguity in the ordinance language regarding this use classification.

Drive-Through Liquor Store in Residential Zone

The Board considered a proposal for a drive-through liquor store window in a residential zone. Multiple residents testified in opposition, raising concerns about safety hazards and lack of visibility associated with the proposed drive-through window. Residents also expressed concerns about negative community impact. The Board ultimately denied the appeal, determining that the proposal constituted an expansion of a nonconforming use and therefore did not meet the criteria for approval.

Joy & Associates, Inc. - Conditional Use Permit for Drive-Through Pharmacy

Case Number: C-2009-14

Type: Appeal

Outcome: Postponed

This agenda item addressed an appeal for a conditional use permit to operate a drive-through pharmacy in the B-2 zone 11:08.

Key Issues

Staff identified several concerns with the proposed development:

• Encroachment into the Water Street right-of-way
• Need for an adequate landscape buffer to address urban character concerns
• Traffic safety considerations

Staff Recommendation

The staff recommended postponement of the appeal to allow the applicant time to submit an amended site plan. The revised plan was intended to address the identified traffic safety and urban character concerns, as well as resolve the right-of-way encroachment issue.

Speakers

Nick Nicholson participated in the discussion of this agenda item.

Action

The appeal was postponed to permit the applicant to revise and resubmit the site plan with modifications addressing staff concerns regarding traffic impacts, landscape buffering, and the encroachment into the Water Street right-of-way.

Broadway Christian Church - Conditional Use Permit and Variance for Parking Lot

Agenda Item: CV-2009-9

Type: Appeal

Outcome: Postponed

13:27

Broadway Christian Church requested approval for a conditional use permit and variance related to expansion of its parking lot and reduction of the landscape buffer requirement.

Staff Recommendation

Staff recommended approval of the conditional use permit but recommended disapproval of the variance request. The disapproval recommendation was based on public safety concerns associated with reducing the landscape buffer.

Discussion

Darryl Nunnelley was the key speaker on this agenda item. The discussion centered on the church's parking lot expansion plans and the associated request to reduce landscape buffer requirements.

Action

Rather than proceeding to a final decision, the board postponed consideration of this matter to allow for further planning and review. This postponement provided an opportunity for additional analysis before the conditional use permit and variance requests would be reconsidered.

Darrin Darnell - Conditional Use Permit for Horse Riding Facility

Identifier: C-2009-13

Type: Appeal

14:30

The appeal concerning a conditional use permit for a horse riding, training, and boarding facility in the A-R zone was presented to the board. Jim Marx was the key speaker on this matter.

The applicant, Darrin Darnell, withdrew the appeal during the meeting. No further discussion or action was taken on this item as a result of the withdrawal.

Outcome: Withdrawn

Manuel Hernandez - Variance to Reduce Side Yard

Case Number: V-2009-19

Overview

The Board considered a variance request to reduce the required side yard setback from 20 feet to 15 feet for a building addition in the B-1 zone. 15:05

Key Participants

The discussion involved Robert Dever and Jim Gallimore.

Decision

The variance was approved. The Board accepted the staff's recommendation and associated conditions for the project.

Conditions

As part of the approval, the Board required closure of a narrow traffic aisle.

Rozenna Boyd - Conditional Use Permit for Child Care Facility

28:12

Applicant: Rozenna Boyd

Request: Conditional use permit for a child care facility in the I-1 zone

Outcome: Approved

Conditions: The conditional use permit was approved with six conditions. These conditions include vehicle parking restrictions and safety measures that the applicant agreed to abide by.

Key Details: Rozenna Boyd presented her application for a conditional use permit to operate a child care facility in an I-1 zoned area. The permit was granted contingent upon compliance with six specific conditions designed to address parking and safety concerns associated with the facility's operation.

Moveable Feast - Administrative Review for Nonconforming Use Change

32:48

The administrative review addressed a request to change a nonconforming restaurant use to a meal prep and delivery service operating in the R-3 zone. Key speakers Blake Eames and Terry Mullins presented and discussed the proposal.

The administrative review was approved with three conditions imposed on the operation:

• Limit of two delivery vans for the service
• Requirement to submit operational details

The approval allows the existing nonconforming restaurant use to transition to a meal prep and delivery service model while maintaining compliance with zoning regulations through the specified conditions. The delivery van limitation and operational disclosure requirements were designed to address potential impacts on the residential zone where the business operates.

Nader Iweimrin - Administrative Review for Nonconforming Use Change

Identifier: A-2009-17

Overview

The administrative review addressed a request to change a nonconforming use from retail and restaurant to restaurant with accessory retail in the A-R zone. 46:23

Outcome

The administrative review was approved with three conditions requiring compliance with zoning and health regulations.

Key Participants

Nader Iweimrin presented the request for the nonconforming use change.

Ephraim Alami - Administrative Review for Drive-Through Liquor Store

1:09:16

This agenda item (A-2009-16) involved an appeal by Ephraim Alami regarding an administrative decision on a proposed drive-through liquor store.

Key Participants

The discussion included Ephraim Alami, Janet Coleman, and Carla Clark.

Issue

Alami appealed a denial of his proposal to establish a drive-through liquor store in an R-3 zoned area.

Board Ruling

The Board determined that the drive-through liquor store constitutes an expansion of a nonconforming use. According to the Board's decision, such an expansion requires a conditional use permit rather than proceeding under the existing nonconforming use classification.

Outcome

The appeal was denied. The Board upheld the original administrative decision, maintaining that the proposed drive-through liquor store cannot be approved as proposed in the R-3 zone without obtaining the required conditional use permit.

Michael Cavey et al. - Appeal on Crematory Use in I-1 Zone

2:22:31

This appeal addressed whether a crematory should be classified as a principal use or conditional use in the I-1 zone. The Board heard from key speakers including Bruce Simpson, Brad Hawkins, and Richard Davis.

The central issue was the proper interpretation of the zoning ordinance regarding crematory operations. The applicant appealed the determination that would have required a conditional use permit for the crematory facility.

The Board's decision focused on the plain language of the ordinance. The Board ruled that the ordinance explicitly lists crematory as a principal permitted use in the I-1 zone, not a conditional use. Based on this textual analysis, the Board determined that the applicant must proceed with obtaining a conditional use permit rather than having the use reclassified.

The appeal was denied.