MINUTES OF THE MEETING OF THE LOUISVILLE METRO BOARD OF ZONING ADJUSTMENT. May 16, 2011

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1 May 16, 2011 A meeting of the Louisville Metro Board of Zoning Adjustment was held at 8:35.A.M. on Monday, May 16, 2011, 514 West Liberty Street, Old Jail Building, Old Jail Court Room, Louisville, Kentucky. Members present were: Betty Jarboe, Chairperson David Proffitt, Vice Chairperson Michael Allendorf, Secretary Paul Grisanti Don Wagaman Frederick Liggin Rosalind Fishman Members absent: No one Staff members present were: Theresa Senninger, Legal Counsel Jonathan Baker, Legal Counsel Steve Hendrix, Planning Supervisor Jon Crumbie, Planner II Chris Brown, Planner I Lee Wells, Planning Technician Beth Stevenson, Management Assistant The following cases were heard: 1

2 BUSINESS SESSION: APPROVAL MINUTES HELD ON MAY 2, :39:41 On a motion by Member Wagaman, seconded by Member Allendorf, the following resolution was adopted: RESOLVED, that the Louisville Metro Board of Zoning Adjustment does hereby APPROVE the minutes of the meeting conducted on May 2, The vote was as follows: YES: Members Wagaman, Proffitt, Allendorf, Liggin, Grisanti and Jarboe. NO: No one. NOT PRESENT FOR THIS CASE AND NOT VOTING: No one. ABSTAINING: Member Fishman. 2

3 BUSINESS SESSION: CASE NO. B Applicant: Owner: Representative: Oaklawn Health & Rehabilitation Center/Senior Care Inc. Robin L. Barber, Executive Vice President/General Counsel 9510 Ormsby Station Road, Suite 101 Louisville, Kentucky Same as Applicant BTM Engineering, Inc. Phil Bills 3001 Taylor Springs Drive Louisville, Kentucky Subject: An application for the modification of an existing Conditional Use Permit to add a rehabilitation exercise room containing 6,570 square feet of floor area. The addition will be on the west side of the existing building adjacent to the large parking lot. The additional floor area will not result in additional employees. The existing exercise room is too small for the existing facility and is frequently crowded. Premises Affected: being in Louisville Metro. On property known as 300 Shelby Station Drive and COUNCIL DISTRICT 19 Jerry Miller Staff Case Manager: Jon Crumbie, Planner II On April 7, 2011, the applicant requested a modification of the approved Conditional Use Permit to allow site plan revisions to add a rehabilitation exercise room containing 6,570 square feet of floor area. Other related cases are filed under B ; B and B On May 16, 2011, at a meeting of the Board, a hearing was held on this case. A drawing showing the premises affected and the existing and/or proposed construction was presented to each Board member. 3

4 BUSINESS SESSION: CASE NO. B DISCUSSION: 8:40:48 Steve Hendrix, Planning Supervisor, explained the request to the Board members. Chair Jarboe asked if it met all the requirements. Mr. Hendrix said yes. 8:41:15 A motion was made by Member Allendorf, seconded by Member Proffitt and the following resolution was adopted: WHEREAS, the Board finds that the applicant has requested a modification of an approved Conditional Use Permit to add a rehabilitation exercise room containing 6,570 square feet of floor area; the addition will be on the west side of the existing building adjacent to the large parking lot; and the additional floor area will not result in additional employees; and the request is needed because the existing exercise room is too small for the facility and is frequently crowded; and WHEREAS, the Board finds that the addition will require removal of 13 existing and proposed parking spaces, however, the parking shown exceeds the minimum requirement of the Land Development Code; and WHEREAS, the Board finds the proposal to be in conformance with the Comprehensive Plan because it complies with all applicable guidelines, principles and objectives; and it has received preliminary approval from Transportation Review and Louisville and Jefferson County Metropolitan Sewer District; NOW, THEREFORE, BE IT RESOLVED, that the modification of the existing Conditional Use Permit is hereby APPROVED, to allow revisions to the site plan to allow the applicant to add a rehabilitation exercise room containing 6,570 square feet of floor area along the west side of the existing building adjacent to the large parking lot; and is also based on the previously approved conditions of approval. 4

5 BUSINESS SESSION: CASE NO. B The vote was as follows: YES: Members Wagaman, Proffitt, Allendorf, Liggin, Fishman Grisanti and Jarboe. NO: No one. NOT PRESENT FOR THIS CASE AND NOT VOTING: No one. ABSTAINING: No one. 5

6 CASE NO. B Applicants/Owners: Representatives: David W. & Constance L. Steffey 1905 English Station Road Louisville, Kentucky Doug White 4307 Progress Blvd. Louisville, Kentucky Nathan Grimes, PE, PLS 1012 S. 4 th Street Louisville, Kentucky Subject: An application for variances from the Land Development Code to allow a proposed addition to encroach 10 into the required 10 minimum front yard setback; and to allow a proposed cooler addition to encroach 6 into the required minimum 10 street side yard setback. Premises affected: being in Louisville Metro. On property known as 7710 Fegenbush Lane and COUNCIL DISTRICT 23 James Peden Staff Case Manager: Christopher Brown, Planner I Appearances for Applicant: Doug White, Contractor, 4307 Progress Blvd., Louisville, Kentucky Nathan Grimes, PE, PLS, 1012 S. 4 th Street, Louisville, Kentucky Appearances Interested Party: No one. Appearances Against Applicant: No one. An audio/visual recording of the Board of Zoning Adjustment hearing related to this case is available in the office of Planning and Design Services, located at 444 South Fifth Street, Suite 300, Louisville, Kentucky. 6

7 CASE NO. B On April 27, 2011, David and Constance Steffey filed an application for a variation from the requirements of the Land Development Code to allow encroachments into the required yards. On May 16, 2011, at a meeting of the Board, a hearing was held on this case. A drawing showing the premises affected and the existing and/or proposed construction was presented to each Board member. In accordance with the Board Bylaws, the staff report prepared for this case was incorporated into the record. The Board members had received this report in advance of the hearing and it was available to any interested party prior to the public hearing. See Addendum for staff report in full. The recording of this hearing will be found on the DVD of the May 16, 2011 proceedings. SUMMARY OF STAFF PRESENTATION: 8:42:44 Staff case manager, Chris Brown gave a brief presentation of the case to the Board, which included a PowerPoint presentation. He said the applicant wants to expand the retail portion to the street; and said it will allow enough room for the upcoming Fegenbush Lane right-of-way expansion. He said the applicant is also proposing a 468 square foot cooler along the Outer Loop Plaza entry drive. He said the request will not affect the residential properties and will have a buffer to the rear; and that there are also varying setbacks along Fegenbush Lane. He said the variances meet the standard of review; and that the Revised Detailed District Development Plan is still under review by staff and will need to go to the Development Review Committee for approval (possible waiver requests). Mr. Brown said Councilman Peden had concerns that the expansion would be too close to Fegenbush Lane; and said he would like a Condition of Approval added that the materials for the addition will consist of brick. 8:49:48 Chair Jarboe asked if the plan shows the right-of-way dedication. Mr. Brown said it doesn t show the exact lane expansion, but said this is the first opportunity to provide right-of-way. Member Proffitt asked if it s just one lane. Mr. Brown said yes; and said there will also be a verge with green space. Member Proffitt asked how they will conceal the cooler. Mr. Brown said the 7

8 CASE NO. B Board could add a condition of approval to landscape around it. He said there will landscaping added to the rear of the site. SUMMARY OF TESTIMONY OF PROPONENTS: 8:55:24 Nathan Grimes, the applicant s engineer, explained the proposal. He said his clients bought the building years ago; and that it had been used for a dog groomers shop. He said his clients want to move their business to this location; and said it would have been in compliance if it weren t for the mandated Fegenbush Lane expansion. He said his clients also need the cooler to store flowers. He said the building materials will consist of brick with glass windows as requested by Councilman Peden. 8:57:56 Member Grisanti asked if the cooler will be the same shape. 8:58:12 Doug White, the applicant s contractor, said it will be rectangular and that it has to be wide enough for service from the inside. He said if they have to remove trees they will put more landscaping around the cooler; and could add Evergreen trees. Member Allendorf asked if they will be providing any crash protection for the cooler. Mr. White said the trees along the edge are pretty large, but could install a bollard. SUMMARY OF TESTIMONY OF INTERESTED PARTIES: No one spoke as an interested party. SUMMARY OF TESTIMONY OF OPPONENTS: No one spoke in opposition. BUSINESS SESSION: 9:01:48 Member Proffitt said they need to add Conditions of Approval that the building materials consist of brick with glass windows and that the applicant work with staff s landscape architect to screen the cooler. Member Grisanti agreed. Chair Jarboe said the applicant also said they would try and save the existing trees. 9:03:10 After the public hearing in open business session, on a motion by Member Proffitt, seconded by Member Grisanti, the following resolution was adopted: 8

9 CASE NO. B WHEREAS, the Board finds, from the file of this case, the staff report, the PowerPoint presentation(s) and the evidence and testimony submitted at the public hearing that the applicant is requesting a variance from Chapter C, Table of the Land Development Code to allow the proposed addition to encroach 10 feet into the required 10 ft. minimum front yard setback; and a variance from Chapter C, Table of the Land Development Code to allow the proposed cooler addition to encroach 6 feet into the required minimum 10 ft. street side yard setback because of the future Phase I Fegenbush Lane Right-of-Way (ROW) Expansion; and WHEREAS, the Board finds that the requested variances will not adversely affect the public health, safety or welfare since sufficient space exists for the required ROW dedication with possible sidewalk construction and verge as well as sufficient space for any required landscaping along the Vehicular Use Area (VUA) for Outer Loop Plaza entrance drive; and WHEREAS, the Board finds the requested variances will not alter the essential character of the general vicinity since it will be in a similar location to the street as the neighboring condominium structures and several buildings to the northwest on Fegenbush Lane; and WHEREAS, the Board finds that the variances will not cause a hazard or nuisance to the public since sufficient space exists for the required ROW dedication with possible sidewalk construction and verge as well as sufficient space for any required landscaping along the VUA for Outer Loop Plaza entrance drive; and WHEREAS, the Board finds that the variances will not allow an unreasonable circumvention of the zoning regulations since the variance is the result of ROW dedication on the property and following the existing structure and asphalt layout for internal circulation and parking purposes; and WHEREAS, the Board finds that the requested variances arise from special circumstances which do not generally apply to land in the general vicinity or the same zone since the ROW dedication required for the future Fegenbush Lane expansion changed the location of the front setback in relation to the existing structure; and 9

10 CASE NO. B WHEREAS, the Board finds that the strict application of the provisions of the regulation would deprive the applicant of the reasonable use of the land or create an unnecessary hardship on the applicant by not allowing the expanded retail space for the proposed use while maintaining proper spacing for required parking and maneuvering; and WHEREAS, the Board finds that the circumstances are not the result of actions of the applicant taken subsequent to the adoption of the zoning regulation from which relief is sought since the variances arise from existing location of structures on the property intended for reuse and dedication of ROW for future Fegenbush Lane expansion; NOW, THEREFORE, BE IT RESOLVED, that the Board does hereby GRANT the variances ON CONDITION: 1. The building materials shall consist of brick and glass. 2. The applicant shall work with staff s landscape architect to screen the proposed cooler addition. The variances allow: 1. The proposed addition to be 0 feet from the front property line along Fegenbush Lane. 2. The proposed cooler addition to be 4 feet from the side property line along Outer Loop Plaza. The vote was as follows: YES: Members Wagaman, Proffitt, Allendorf, Grisanti Liggin, Fishman and Jarboe. NO: No one. NOT PRESENT FOR THIS CASE AND NOT VOTING: No one. ABSTAINING: No one. 10

11 CASE NO. B Applicant(s): Owner(s): Emmanuel Baptist Church Oliver W. Shellman, Trustee 3815 W. Broadway Louisville, Kentucky Emmanuel Baptist Church Alvin Wheeler 3815 W. Broadway Louisville, Kentucky Subject: An application for a Conditional Use Permit to allow off-street parking in an R-5 zoning district; and landscape waivers to allow the required 5-foot Landscape Buffer Area (LBA) along the south property line to be reduced; to omit the required 3-foot brick wall along the South 39 th Street frontage; and to allow the distance between the Interior Landscape Areas (ILA s) to be less than 120 feet. Premises affected: being in Louisville Metro. On property known as 685 South 39 th Street and COUNCIL DISTRICT 5 Cheri Bryant Hamilton Staff Case Manager: Jon Crumbie, Planner II Appearances for Applicant: Reverend Damian Thompson, 3815 W. Broadway, Louisville, Kentucky Appearances- Interested Parties: No one. Appearances Against Applicant: No one. An audio/visual recording of the Board of Zoning Adjustment hearing related to this case is available in the office of Planning & Design Services, located at 444 South Fifth Street, Suite 300, Louisville, Kentucky. On April 4, 2011, Emmanuel Baptist Church filed an application for a Conditional Use Permit to allow off-street parking in an R-5 zoning district; and landscape 11

12 CASE NO. B waivers to allow the required 5-foot Landscape Buffer Area (LBA) along the south property line to be reduced; to omit the required 3-foot brick wall along the South 39 th Street frontage; and to allow the distance between the Interior Landscape Areas (ILA s) to be less than 120 feet On May 16, 2011, at a meeting of the Board, a hearing was held on this case. A drawing showing the premises affected and the existing and/or proposed construction was presented to each Board member. In accordance with the Board Bylaws, the staff report prepared for this case was incorporated into the record. The Board members had received this report in advance of the hearing and it was available to any interested party prior to the public hearing. See Addendum for staff report in full. The audio/visual recording of this hearing will be found on the DVD of the May 16, 2011 proceedings available in the Planning and Design Services Office. SUMMARY OF STAFF PRESENTATION: 9:07:04 Staff case manager, Jon Crumbie, gave a brief presentation of the case to the Board, which included a PowerPoint presentation. He said the applicant wants to pave the parking lot to include 35 spaces and improve the landscaping. Currently the parking area has been used but is dirt and gravel and is hard to clear snow during the winter months. He said the proposal complies with the standard of review, except Item C on page 4 of the staff report will have to be modified because parking will be in the required side yard. Mr. Crumbie said the applicant held a neighborhood meeting; and that the conditions of approval are on page 10 of the staff report. 9:13:32 Member Proffitt asked if it has to be asphalt. Mr. Crumbie said it s required by Public Works. Member Fishman questioned not including the wall. Mr. Crumbie said there are existing trees, so inclusion of a wall might damage the root systems. Member Proffitt asked what they are doing with the fences. Mr. Crumbie said he will need to ask the applicant. Member Grisanti questioned the ILA. Mr. Crumbie pointed out on the PowerPoint slide where the parking area is and said the ILA will break it up. 12

13 CASE NO. B SUMMARY OF TESTIMONY OF PROPONENTS: 9:18:09 Reverend Damian Thompson said they want to pave their parking area; and had numerous neighborhood meetings. He said they want to meet the code requirements but maximize their parking. He said the neighbors didn t want the wall so no one could hide behind it. He said an adjacent property owner would like the parking area paved because she said kids in the area throw the gravel at the church and her property. Member Liggin asked what they will do with the fences. Revered Thompson said they will be repairing one that is in bad shape; and the north fence will remain in tact. Member Grisanti asked if the fence along 39 th Street will remain. Reverend Thompson said yes. Chair Jarboe asked about the access stating that the only access to the parking area is from the south alley. Reverend Thompson said yes. SUMMARY OF TESTIMONY OF INTERESTED PARTIES: No one spoke as an interested party. SUMMARY OF TESTIMONY OF OPPONENTS: No one spoke in opposition. BUSINESS SESSION: 9:23:58 Member Proffitt said he doesn t have any problems the request as long as they repair the fences on the east and west sides. CONDITIONAL USE PERMIT: 9:24:34 After the public hearing in open business session, on a motion by Member Grisanti, seconded by Member Allendorf, the following resolution was adopted: WHEREAS, the Board finds, from the file of this case, the staff report, the PowerPoint presentation and the evidence and testimony submitted at the public hearing that the applicant is requesting a Conditional Use Permit to allow offstreet parking in an R-5 zoning district; and WHEREAS, the Board finds that the property is within a Traditional Neighborhood Form District; and 13

14 CASE NO. B WHEREAS, the Board finds that the proposal is consistent with the applicable policies of the Comprehensive Plan because the surface lot will be asphalt and be striped; and because bumper stops will also be added to each space; no lighting will be added to the parking area, but the existing light pole in the adjoining alley will be repaired by LG&E; and because the applicant is requesting landscape waivers; and because the ingress/egress points and drive aisles will be Metro Public Works requirements; and WHEREAS, the Board finds that the proposal is compatible with the adjacent land use and is adjacent to existing parking on the west side of 39 th Street; and because the proposal will be compatible with the general character of the area and has been in use since 1993; and because lighting, intensity, traffic, noise and odor will not change, but the dust will be greatly decreased; and WHEREAS, the Board finds that the proposal complies with 5 of the 6 listed requirements listed for off-street parking, with the exception of Item C (pertaining to the minimum front, street side and side yards required in the district shall be maintained free of parking) is hereby modified to allow parking in the required side yard due to the limited amount of parking for the church and because the applicant will be improving the parking lot by paving it and adding landscaping; and WHEREAS, the Board finds the proposal to be in conformance with the Comprehensive Plan because it complies with all applicable guidelines, principles and objectives of the Comprehensive Plan, as it has received preliminary approval from Transportation Review and Louisville and Jefferson County Metropolitan Sewer District; NOW, THEREFORE, BE IT RESOLVED, that the Conditional Use Permit is hereby APPROVED ON CONDITION. The conditions are as follows: 1. The site shall be developed in strict compliance with the approved development plan (including all notes thereon). No further development shall occur on the site without prior review and approval by the Board. 14

15 CASE NO. B The Conditional Use Permit shall be exercised as described in KRS within two years of the Board s vote on this case. If the Conditional Use Permit is not so exercised, the site shall not be used for off-street parking without further review and approval by the Board. The vote was as follows: YES: Members Wagaman, Proffitt, Allendorf, Grisanti, Liggin, Fishman and Jarboe. NO: No one. NOT PRESENT FOR THIS CASE AND NOT VOTING: No one. ABSTAINING: No one. LANDSCAPE WAIVER North Property Line: 9:25:30 After the public hearing, in open business session, Member Grisanti made a motion to approve the waivers on condition that the applicant repair or remove the fences on the east and west sides of the property, and was seconded by Member Fishman for discussion. DISCUSSION: 9:27:16 Member Allendorf suggested amending the condition of approval to state that the applicant will repair or replace the fences along the east and west sides instead of remove them. Member Grisanti agreed. 9:27:30 Member Grisanti then amended his motion to reflex this and was seconded by Member Fishman, and the following resolution was adopted: WHEREAS, the Board finds from the file of this case, the staff report, the PowerPoint presentation(s) and the evidence and testimony submitted at the public hearing that the applicant is requesting a landscape waiver to allow the required 15-foot LBA along the north property line to be reduced to 5 feet; and WHEREAS, the Board finds that the waiver will not adversely affect the adjacent property owners because currently no LBA exists here, but an 8 ft. screen will be added along with a 59 X20 green area in the northeast corner of the lot and because abutting property to the north is owned by the Housing Authority of Louisville; and 15

16 CASE NO. B WHEREAS, the Board finds that the waiver will not violate specific guidelines of Cornerstone 2020 since landscape plantings and screening will be added; and because the landscape waiver is being requested to reduce the required LBA; and WHEREAS, the Board finds that the extent of the waiver is the minimum necessary to afford relief to the applicant since the applicant will lose 16 parking spaces if the request is denied; and WHEREAS, the Board finds that the strict application of the provisions of the regulation would deprive the applicant reasonable use of the land; and because the applicant would lose 16 parking spaces that are needed to help reduce parking congestion; NOW, THEREFORE, BE IT RESOLVED, that the Board does hereby GRANT the landscape waiver to reduce the required Landscape Buffer Area along the north property line to 5 feet ON CONDITION that that the applicant repairs or replaces the fences along the east and west sides of the subject property. The vote was as follows: YES: Members Wagaman, Liggin, Allendorf, Grisanti, Fishman, Proffitt and Jarboe. NO: No one. NOT PRESENT FOR THIS CASE AND NOT VOTING: No one. ABSTAINING: No one. LANDSCAPE WAIVER LBA Reduction South Property Line: 9:25:30 After the public hearing, in open business session, Member Grisanti made a motion to approve the waivers on condition that the applicant repair or remove the fences on the east and west sides of the property, and was seconded by Member Fishman for discussion. DISCUSSION: 9:27:16 Member Allendorf suggested amending the condition of approval to state that the applicant will repair or replace the fences along the east and west sides instead of remove them. Member Grisanti agreed. 16

17 CASE NO. B :27:30 Member Grisanti then amended his motion to reflex this and was seconded by Member Fishman, and the following resolution was adopted: WHEREAS, the Board finds from the file of this case, the staff report, the PowerPoint presentation(s) and the evidence and testimony submitted at the public hearing that the applicant is requesting a landscape waiver to allow the required 5-foot LBA along the south property line to be 0 feet; and WHEREAS, the Board finds that the requested landscape waiver will not adversely affect adjacent property owners because the parking will be located next to the alley which has a 20 ft. right-of-way; and because there are no residences that face the alley and the closest structures are detached garages which are located at least 25 feet from the parking lot; and because Emmanuel Baptist Church owns two of the three properties to the south of the subject property; and WHEREAS, the Board finds that the waiver will not violate the guidelines of Cornerstone 2020 because the parking area has been in use since 1993 and bumper stops will be added to prevent vehicles from driving directly into the alley; and WHEREAS, the Board finds that the extent of the waiver of the regulation is the minimum necessary to afford relief to the applicant because the applicant will lose 18 parking spaces if the request is denied; and WHEREAS, the Board finds that the strict application of the provisions of the regulation would deprive the applicant reasonable use of the land because the applicant would lose 18 parking spaces that are needed to help reduce parking congestion; NOW, THEREFORE, BE IT RESOLVED, that the Board does hereby GRANT the waiver to allow the required 5-foot LBA along the south property line to be 0 ON CONDITION that that the applicant repair or replace the fences along the east and west sides of the subject property. 17

18 CASE NO. B The vote was as follows: YES: Members Wagaman, Liggin, Allendorf, Grisanti, Fishman, Proffitt and Jarboe. NO: No one. NOT PRESENT FOR THIS CASE AND NOT VOTING: No one. ABSTAINING: No one. LANDSCAPE WAIVER Omit the required 3-foot brick wall along the South 39 th Street frontage: 9:25:30 After the public hearing, in open business session, Member Grisanti made a motion to approve the waivers on condition that the applicant repair or remove the fences on the east and west sides of the property, and was seconded by Member Fishman for discussion. DISCUSSION: 9:27:16 Member Allendorf suggested amending the condition of approval to state that the applicant will repair or replace the fences along the east and west sides instead of remove them. Member Grisanti agreed. 9:27:30 Member Grisanti then amended his motion to reflex this and was seconded by Member Fishman, and the following resolution was adopted: WHEREAS, the Board finds from the file of this case, the staff report, the PowerPoint presentation(s) and the evidence and testimony submitted at the public hearing that the applicant is requesting a landscape waiver to omit the required 3-foot brick wall along the South 39 th Street frontage; and WHEREAS, the Board finds that the requested waiver will not adversely affect adjacent property owners because there are no retaining walls along the 800 block of South 39 th Street and the required 5-foot LBA will be provided; and because the parking lot to the west does not have a 3-foot brick wall; and WHEREAS, the Board finds that the waiver will not violate specific guidelines of Cornerstone 2020 because the required 5-foot LBA and landscape plantings will be provided; and 18

19 CASE NO. B WHEREAS, the Board finds that the extent of the waiver of the regulation is the minimum necessary to afford relief to the applicant because the applicant would possibly have to remove several trees and/or root systems; and WHEREAS, the Board finds that the strict application of the provisions of the regulation would deprive the applicant of the reasonable use of the land because the required wall might cause the applicant to remove some of the existing trees or might disrupt the root systems which might cause the trees to die; NOW, THEREFORE, BE IT RESOLVED, that the Board does hereby GRANT the waiver to omit the required 3-foot brick wall along the South 39 th Street frontage ON CONDITION that that the applicant repair or replace the fences along the east and west sides of the subject property. The vote was as follows: YES: Members Wagaman, Liggin, Allendorf, Grisanti, Fishman, Proffitt and Jarboe. NO: No one. NOT PRESENT FOR THIS CASE AND NOT VOTING: No one. ABSTAINING: No one. LANDSCAPE WAIVER Distance between the ILA areas to be less than 120 feet: 9:25:30 After the public hearing, in open business session, Member Grisanti made a motion to approve the waivers on condition that the applicant repair or remove the fences on the east and west sides of the property, and was seconded by Member Fishman for discussion. DISCUSSION: 9:27:16 Member Allendorf suggested amending the condition of approval to state that the applicant will repair or replace the fences along the east and west sides instead of remove them. Member Grisanti agreed. 9:27:30 Member Grisanti then amended his motion to reflex this and was seconded by Member Fishman, and the following resolution was adopted: 19

20 CASE NO. B WHEREAS, the Board finds from the file of this case, the staff report, the PowerPoint presentation(s) and the evidence and testimony submitted at the public hearing that the applicant is requesting a landscape waiver to allow the distance between Interior Landscape Areas to be less than 120 feet; and WHEREAS, the Board finds that the requested landscape waiver will not adversely affect adjacent property owners because the area has been used for parking since 1993; and WHEREAS, the Board finds that the waiver will not violate specific guidelines of Cornerstone 2020 because the applicant is seeking to maximize the parking area; and because the addition of an ILA would reduce the number of spaces; and WHEREAS, the Board finds that the extent of the waiver is the minimum necessary to afford relief to the applicant because the applicant will lose parking spaces if the request is denied; and WHEREAS, the Board finds that the strict application of the provisions of the regulation would deprive the applicant of the reasonable use of the land or would create an unnecessary hardship on the applicant because they would need a new layout; NOW, THEREFORE, BE IT RESOLVED, that the Board does hereby GRANT the landscape waiver to allow the distance between the Interior Landscape Area to be 0 feet ON CONDITION that the applicant repair or replace the fences along the east and west sides of the subject property. The vote was as follows: YES: Members Wagaman, Liggin, Allendorf, Grisanti, Fishman, Proffitt and Jarboe. NO: No one. NOT PRESENT FOR THIS CASE AND NOT VOTING: No one. ABSTAINING: No one. 20

21 CASE NO. B Appellant: Freida VanNatta & Eduardo Sosa 4000 Taylor Blvd. Louisville, Kentucky Subject: An Appeal of a Notice of Violation issued by the Department of Codes and Regulations concerning non-conforming rights for a grocery store. Premises affected: being in Louisville Metro. On property knows as 4000 Taylor Boulevard and COUNCIL DISTRICT 15 Marianne Butler Staff Case Manager: Steve Hendrix, Planning Supervisor Administrative Official: April Robbins, Louisville Metro Department of Inspections, Codes and Regulations, 444 S. 5 th Street, Louisville, Kentucky. Appearances Opposed to the Appeal: No one. Appearances Interested Party: No one. Appearances in Support of the Appeal: Michael VanNatta, 4006 Taylor Boulevard, Louisville, Kentucky Eduardo Sosa, 4000 Taylor Boulevard, Louisville, Kentucky An audio/visual recording of the Board of Zoning Adjustment hearing related to this case is available in the office of Planning & Design Services, located at 444 South Fifth Street, Louisville, Kentucky. PREVIOUS CASES ON SITE B On September 5, 1989, the Louisville Board of Zoning Adjustment acknowledged the change from one non-conforming use, (grocery store) to another non-conforming use, (liquor store). 21

22 CASE NO. B B On July 24, 1989, the Louisville Board of Zoning Adjustment acknowledged non-conforming rights for the use of only a grocery store at this location. CASE SUMMARY/BACKGROUND: On March 11, 2011, Mr. VanNatta, whose mother owns the property, had a conversation with a representative of Alcohol Beverage Control of the Department of Codes and Regulations concerning the request to allow beer sales as part of the grocery store operation. Mr. VanNatta was informed that a permit could not be issued since beer had not been sold at 4000 Taylor Boulevard since at least 2004, (use had been abandoned). On April 5, 2011, an Appeal application was submitted to the Planning & Design office requesting beer sales as part of the grocery store operation. On April 29, 2011, it was determined that a written notice should be sent with notification that the violation was for the existence of the grocery store in an OR- 1 district and not just a refusal for the beer sales. On May 2, 2011, the Louisville Metro Department of Codes and Regulations issued a Notice of Violation concerning non-conforming rights for a grocery store which noted that the existing application could be amended. On May 2, 2011, this case was rescheduled to May 16, On May 16, 2011, at a meeting of the Board, a hearing was held on the case. A drawing showing the premises affected and the existing and/or proposed construction was presented to each Board member. In accordance with the Board Bylaws, the staff report prepared for this case was incorporated into the record. The Board members had received this report in advance of the hearing and it was available to any interested party prior to the public hearing. See Addendum for staff report in full. A video of the site and surrounding area was shown. 22

23 CASE NO. B The recording of this hearing will be found on the DVD of the May 16, 2011 proceedings. SUMMARY OF STAFF PRESENTATION: 9:33:58 Staff case manager, Steve Hendrix gave a brief presentation of the case to the Board, which included a PowerPoint presentation. Mr. Hendrix went over key issues noted above regarding this case. He said the property has been owned by the same person, but has had different business operations over the years. SUMMARY OF TESTIMONY OPPOSED TO THE APPEAL: No one spoke in opposition. SUMMARY OF TESTIMONY OF INTERESTED PARTIES: No one spoke as an interested party. SUMMARY OF TESTIMONY OF APPELLANT(S): 9:40:10 Michael VanNatta, said his mother owns the property, and his father just passed away recently. He said his father was in the marines and that his family has always been hard working. He said the deed notes that this is a commercial property and said the house was an office with a store. He said he has taken care of this property for his mother and that they have a good tenant, Mr. Sosa. He said they will post a sign that no drinking will occur on the property. 9:46:19 Chair Jarboe said it s the Board s responsibility to determine if nonconforming use rights exist. 9:46:49 Mr. VanNatta said the store has been there a long time and his tenant just wants to sell beer along with the groceries. He said other businesses have licenses to sell beer and alcohol. Member Proffitt asked him if it was a grocery store between 2001 and Mr. VanNatta said it used to be a bar; and one year it was Jack Conway s campaign office. Member Proffitt said the Board is not questioning the use now or that they want to sell beer, but said the building hasn t been continuously used as a grocery store since 1989 (the Board acknowledged non-conforming rights existed for a grocery store in 1989). 9:50:45 Member Grisanti said if there s a break in the use, the appellant could consider rezoning the property. He said respectfully, that he feels the 23

24 CASE NO. B appellant does not understand the law, and since it changed from a grocery store/liquor store to the Campaign Office, the non-conforming rights have been terminated. He said the Board is not here to shut him down, but that they need to follow the Land Development Code regulations when determining nonconforming use rights. 9:59:17 Chair Jarboe asked Mr. VanNatta if it would be useful for him to retain legal counsel for guidance. She said the Board could continue the case until then. Mr. VanNatta said yes, he would like a continuance. Mr. Hendrix suggested June 6, BUSINESS SESSION: No discussion. 10:01:58 After the public hearing in open business session, a motion was made by Member Proffitt, seconded by Member Fishman and the following resolution was adopted: WHEREAS, the Board finds that they will continue the public to allow the appellant time to consult with an attorney; NOW, THEREFORE, BE IT RESOLVED, that the Board does hereby CONTINUE this case to JUNE 6, The vote was as follows: YES: Members Wagaman, Liggin, Grisanti, Fishman, Proffitt and Jarboe. NO: Member Allendorf. NOT PRESENT FOR THIS CASE AND NOT VOTING: No one. ABSTAINING: No one. 24

25 CASE NO. B Appellant: Attorney: Check s Café John Murrow 1101 E. Burnett Avenue Louisville, Kentucky Bill Bardenwerper Bardenwerper Talbott & Roberts, PLLC 8311 Shelbyville Road Louisville, Kentucky Subject: An Appeal of a determination by the Department of Codes and Regulations concerning non-conforming rights for outdoor alcohol consumption and dining in the front and on the patio area at the side of the building and for indoor entertainment. Premises affected: being in Louisville Metro. On property knows as 1101 East Burnett Avenue and COUNCIL DISTRICT 10 Jim King Staff Case Manager: Steve Hendrix, Planning Supervisor Administrative Official: April Robbins, Code Enforcement Supervisor with the Louisville Metro Department of Codes and Regulations, 444 South 5 th Street, Louisville, Kentucky. Appearances Opposing the Appeal: No one. Appearances Interested Party: Paul Schuhmann, Legislative Assistant to Councilman Jim King, 601 W. Jefferson Street, Louisville, Kentucky Appearances in Support of the Appeal: Bill Bardenwerper, Attorney, 8311 Shelbyville Road, Louisville, Kentucky 40222, who submitted a PowerPoint presentation. 25

26 CASE NO. B Dr. Tom Murrow, M.D., 1011 Doric Circle, Louisville, Kentucky John R. Reed, 2908 Harrison Avenue, Louisville, Kentucky John Murrow, 1239 Lydia Street, Louisville, Kentucky William L. Cawthorn 3402 Breckinridge Lane, Louisville, Kentucky An audio/visual recording of the Board of Zoning Adjustment hearing related to this case is available in the office of Planning & Design Services, located at 444 South Fifth Street, Louisville, Kentucky. On December 30, 2010, a letter from the Department of Codes and Regulations stated that non-conforming use rights had not been established for the property in regards to the outdoor consumption of alcohol, dining and entertainment. On May 16, 2011, at a meeting of the Board, a hearing was held on the case. A drawing showing the premises affected and the existing and/or proposed construction was presented to each Board member. In accordance with the Board Bylaws, the staff report prepared for this case was incorporated into the record. The Board members had received this report in advance of the hearing and it was available to any interested party prior to the public hearing. See Addendum for staff report in full. The recording of this hearing will be found on the DVD of the May 16, 2011 proceedings. SUMMARY OF STAFF PRESENTATION: 10:03:51 Staff case manager, Steve Hendrix gave a brief presentation of the case to the Board, which included a PowerPoint presentation. He said according to staff s interpretation, non-conforming rights have not been established for outdoor consumption of alcohol, dining in the front and on the patio area at the side of the building; and also for indoor entertainment. He said the appellant is claiming otherwise, that outdoor drinking/dining has taken place well before June 16, 1971, or the date the city reinstated the zoning laws. The current property owner and previous owner of Check s Café state that they bought the 26

27 CASE NO. B business in 1943 and have been serving alcohol and food outside since that time. Mr. Hendrix said there are other businesses in the vicinity including a chiropractic office, dentist office and the Zeppelin Café. He pointed out the indoor entertainment area, outside patio, the front of the building and the parking area to the rear in the PowerPoint presentation. 10:09:44 Member Proffitt asked where the property line is in the front. Mr. Hendrix said he believes at the face of the building. He said they are not claiming non-conforming rights for the Hickory Street side. SUMMARY OF TESTIMONY OF APPELLANT(S): 10:13:07 Bill Bardenwerper, the appellant s attorney, said Check s is an institution; and that he has been dining there since he was in law school. He said he brings his kids there and would sit outside and eat and listen to the live entertainment. Mr. Bardenwerper said he has witnesses back from the 40 s and 50 s; and that non-conforming rights have existed prior to June 16, 1971, when there was a gap in the zoning regulations (city attorney at that time said nonconforming use rights would have to be established prior to this date). He said the Germantown/Schnitzelburg area has become very popular adding more restaurants and bars. He said outdoor patios have become more popular since the smoking ordinance passed. Mr. Bardenwerper presented a PowerPoint presentation to the Board showing numerous old photographs including one showing the current owners grandfather and a friend drinking outside in He said customers at that time would bring in fish and venison they caught to cook there. 10:24:31 Dr. Tom Murrow said his family has owned Check s since He said in the 20 s it used to be a grocery store and eventually into the neighborhood tavern. He said his father bought the business when he got out of the service and his mother used to do the cooking. He said in 1980 he and his sisters inherited the business and he eventually bought his sisters out. He said since 1943 the business has sold food and alcohol outside; and the best evidence is a letter his mother wrote before she passed away. Dr. Murrow read this into the record. He said outside dining occurred because there wasn t enough room indoors; and that sometimes there would be a line of people waiting to eat. He said he bartended and would serve drinks outside. 27

28 CASE NO. B :28:51 Member Grisanti asked if alcohol was ever served along Burnett; and if there were ever table and chairs for outside dining. Dr. Murrow said yes. Member Grisanti said he used to eat there in 1972 and 1973 and said he never saw table and chairs outside. Dr. Murrow said sometimes they would take the table and chairs indoors. He said they built the patio in the 80 s. Member Proffitt asked where the group photograph was taken. Dr. Murrow said probably in the courtyard. 10:32:48 Member Wagaman asked if their property line is in front of the building. Mr. Bardenwerper said yes, it s pretty close to the sidewalk. 10:36:54 John Reed said he s lived and worked in the neighborhood for 48 years; and works for a local funeral home. He said he has noticed people eating and drinking on the sidewalk and patio area for many years. 10:38:37 John Murrow said he currently owns Check s and said he is only 32, but has heard from older customers that eating and drinking has been going on outside since his family has owned it. He said the patio area in the back used to be grass, but they paved it in the 80 s and eventually covered the patio in :40:08 Mr. Bardenwerper said the adjacent building is owned by his client s family and zoned C-1. Member Wagaman asked Mr. Bardenwerper if he s aware there s an open container law. Mr. Bardenwerper said yes and if the non-conforming rights are acknowledged by the Board, then they can apply for a permit from the ABC. He said they also have a permit for the awning. 10:47:10 Mr. Hendrix said he had a citizen call last week regarding noise and wanted to know if there s a closing time for outdoor drinking/dining. 10:47:31 John Murrow said noise coming from their establishment would be impossible because they own the building next door; in addition to the nearby Zeppelin Café. He said they have a 4:00 a.m. liquor license, but the normally close at 1:30 a.m. depending on business. He said there are special events where they might stay open later than 1:30 a.m. 28

29 CASE NO. B :51:27 William Cawthorn said he s been going to Check s since He said if the restaurant got busy, people would eat and drink outside (the patio and along the front). He said he knew the original owner. 10:53:05 Chair Jarboe asked to call the administrative official, April Robbins, even though she didn t call in the proper order. Mr. Bardenwerper said this was fine, but thinks she may have not heard all the testimony. SUMMARY OF TESTIMONY OF ADMINISTRATIVE OFFICAL: 10:53:34 April Robbins, Code Enforcement Supervisor, Louisville Metro Codes and Regulations, said she wasn t planning on participating since this was an in house request, but that they made their determination on the information submitted. Ms. Robbins said the permit is for the table and chairs only, not the ABC license. SUMMARY OF TESTIMONY OF INTERESTED PARTIES: 10:54:51 Paul Schuhmann, legislative assistant to Councilman King, said due to the transition in their staff, this case slipped through the cracks and Councilman King could not attend. He said Check s has participated in several charitable events; and that they ve been a good neighbor. SUMMARY OF TESTIMONY OF OPPONENTS: No one spoke in opposition. DISCUSSION: 10:56:09 Member Proffitt asked Mr. Bardenwerper about their permit. Mr. Bardenwerper said they have an encroachment permit for the sidewalk and that sometimes Codes and Regulations Permit Department tells them to get one or not. He said sometimes the Kentucky Department of Transportation will not issue a permit, but they don t tell them they cannot use the sidewalk for dining and drinking. REBUTTAL: No rebuttal by anyone. 29

30 CASE NO. B BUSINESS SESSION: 10:58:47 Member Proffitt said they can t establish non-conforming rights for the sidewalk area in the front if it s not their property. Jon Baker, the Board s legal counsel, said this issue could be moot; and that Public Works would determine what s appropriate in the public right-of-way. BACK INTO PUBLIC HEARING: 11:03:23 Mr. Bardenwerper said the activity in question has been continually going on. He said there are businesses downtown where people eat and drink along the sidewalk. He said they want to avoid changing the zoning; and that the evidence they ve submitted proves this type of activity has been going on for many years. He said he will work out the permitting issues with Public Works and ABC. 11:05:24 Jon Baker said the city might create an ordinance to outlaw drinking alcoholic beverages in the public right-of-way. REBUTTAL: No rebuttal. BACK INTO BUSINESS SESSION: 11:06:40 Member Proffitt said he wouldn t have a problem with it in the front if the property extended out 10 feet; but they re drinking in the public right-of-way. Mr. Baker said they need to talk to Public Works about getting an encroachment permit. Chair Jarboe asked if they could acknowledge the non-conforming rights for everything except the sidewalk. Theresa Senninger, the Board s legal counsel, said the Board is just acknowledging that the use has gone on for several years. Member Fishman said she drives this area and hasn t seen any tables or chairs in the front. Ms. Senninger said it could be seasonal, so it doesn t mean the activity hasn t existed. Member Allendorf said he s been to Check s and heard karaoke and someone playing a guitar before; and seen people eating and drinking outside. He said other approvals take place with different agencies. 30

31 CASE NO. B :15:08 After the public hearing in open business session, on a motion by Member Proffitt, seconded by Member Liggin and the following resolution was adopted WHEREAS, the Board finds from the file of this case, the staff report, the PowerPoint presentations and the evidence and testimony submitted at the public hearing that this appeal concerns a determination by the Department of Codes and Regulations concerning non-conforming rights for outdoor alcohol consumption in the front (approximately 495 square feet, 4 tables with seating for 8); and the patio area, (approximately 756 square feet at the side of the restaurant seating for patrons; and non-conforming rights for indoor entertainment; and WHEREAS, the Board finds that the consumption of alcoholic beverages has occurred in the public right-away along East Burnett Avenue sidewalk before June16, 1971, when there was a lapse in the zoning regulations, but the Board cannot acknowledge non-conforming rights for this area since it is not owned by the appellant/owner; and WHEREAS, the Board does find that non-conforming rights exists for outdoor consumption of alcoholic beverages in the patio area, (approximately 756 square feet at the side of the restaurant seating patrons); and does also acknowledge non-conforming-use rights for indoor entertainment; and WHEREAS, the Board finds that the appellant has proven by clear and convincing evidence from testimony at the public hearing and affidavits submitted by patrons who have frequented Check s Café since the 40 s, and from old photographs submitted showing previous owners and patrons drinking alcoholic beverages outside the establishment, well before June 16, 1971, that nonconforming rights exist for the patio area (approximately 756 square feet at the side of the restaurant patrons), and also for indoor entertainment; NOW, THEREFORE, BE IT RESOLVED, that the Board does hereby ACKNOWLEDGE that non-conforming rights exist for outdoor consumption of alcohol in patio area, (approximately 756 square feet at the side of the restaurant seating for patrons); for indoor entertainment; and that the consumption of alcoholic beverages has occurred in front of the establishment along Burnett Avenue (approximately 495 square feet 4 tables seating 8 people). 31