BOONE COUNTY BOARD OF ADJUSTMENT

BOONE COUNTY GOVERNMENT CENTER

801 E. WALNUT ST., COLUMBIA, MO.

Thursday, April 26, 2001

 

Chairperson Tom Trabue called the meeting to order at 7:00 p.m. in the Boone County Commission Chambers having a quorum present.

Chairperson Trabue explained the function of the Board of Adjustment. He stated that all decisions are based upon the Boone County Zoning and Subdivision Regulations, which are considered to be part of the record of the proceedings.

Roll call was taken:

Present: Tom Trabue, Chairman

Linda Rootes, Vice-Chairperson

Cindy Bowne

Larry Bossaller

Kay Clementz

Absent: None.

Also present: Thad Yonke, Staff Bill Florea, Staff

Paula Evans, Secretary

Minutes of March 22, 2001 meeting were approved with no corrections.

REQUEST

 

- Request by RFL Investments for certification of occupancy for a nonconforming use at 7208 I-70 Drive SE.

Planner, Bill Florea, gave staff report stating that the current zoning is R-S. The adjacent zoning is also R-S. The property is located 1 1/4 mile east of Columbia on I-70 Drive Southeast. The legal description provided shows this as a 2.75-acre tract. Assessor’s records show it as 3.75 acres.

This is the site of the MMECO Equipment Rental. The requested variance is Certificate of Occupancy for a Nonconforming Use pursuant to the zoning regulations. Section 8.F, Certificate of Occupancy for a Nonconforming Use: Nonconforming uses existing at the effective date of this ordinance shall apply for a Certificate of Occupancy within six months from the effective date of this ordinance. Where a Certificate of Occupancy has not been obtained the existence of such use shall be a question of fact and shall be decided by the Board of Adjustment after public notice and hearing and in accordance with the rules of the Board.

Department records do indicate that a Certificate of Occupancy was ever issued for the use of this structure.

The original zoning for this tract of land is R-S. An existing land use map prepared as background for the 1973 comprehensive plan shows a notation of gas at this location. However, the zoning designation of R-S was assigned to the site.

Section 8.A. Nonconforming Use of Land and Buildings: Except as otherwise provided herein, the lawful use of open land or of a building existing at the effective date of this ordinance may be continued although such use does not conform to the provisions hereof. The nonconforming use of land shall not be extended or enlarged, either on the same or adjoining property. A nonconforming use of land or a building, if no structural alterations are made, may be changed to another nonconforming use of the same or of a more restricted nature. Whenever a nonconforming use has been changed to a more restricted use or to a conforming use, such use shall not thereafter be changed to a less restricted use. The nonconforming use of an existing building may be hereafter extended throughout those parts of the building which were lawfully and manifestly arranged or designed for such use on or before December 27, 1973.

Information provided to the Planning Department would seem to indicate that a small trucking company operated out of the building located on this property at the time zoning regulations came in to effect. This would appear to be similar to trucking companies that operate within the C-G zoning classification as a permitted use. Staff has never had cause to question the nonconforming status of this use, and in fact permitted the building to be remodeled in 1997 when a change of ownership took place.

The current owner is seeking a certificate of occupancy for a nonconforming use. However, staff wishes the record to note that a certificate of occupancy may be limited to those uses that existed at the time zoning came in to effect, and may be restricted by the Board. Further, that establishment of a nonconforming use only extends to the building and area lawfully devoted to such use at the time of zoning, and that such use or similar use cannot be extended or expanded onto land not devoted to such use at the time of adoption.

The requested variance is to establish level of activity allowed on site and issue occupancy permit for a nonconforming use if so determined.

The Board must establish the type and level of activity that took place on this site at the time zoning regulations took effect, and further determine what level of activity is permitted today in accordance with the nonconforming use. Based upon the Board’s decision, a Certificate of Occupancy will be issued that may permit or restrict the activities on this property.

The burden of proof to establish a nonconforming use is upon the applicant. The Board must decide what weight, if any, to apply to any testimony or evidence introduced into the record by the applicant or the public.

Staff notified 44 property owners of this request.

Present: Robert Wolverton, 2106 Clemens Drive, Columbia

Brenda Jacobsmeyer, 5623 Sing Drive, Columbia

Mr. Wolverton stated that he is representing Robert F. Luby, owner of RFL Investments, L.P. Mr. Luby is also the owner of a machinery company called MMECO, which currently occupies this property.

Mr. Luby purchased this property in 1997 from the Ward Family Trust; the trustees at that time were Gene and Anita Ward and Russell and Margaret Ward. Mr. Luby is attempting to sell this property to another entity out of St. Louis. Mr. Wolverton stated he is the real estate agent who has the property listed for sale. Also present is Brenda Jacobsmeyer of Remax Boone Realty, who is the real estate agent who is working with the buyer of the property. Ms. Jacobsmeyer has done a great deal of research on this property and has helped to gather a lot of information that will be presented.

Mr. Wolverton stated that he put together a time-line that has been presented to him and they’ve been able to piece it together.

Mr. Wolverton distributed this time-line to the Members.

Mr. Wolverton stated that the information he would be referencing in the timeline is a combination of information that he had been able to gather from surviving family members of the owners of Ward’s Trucking Service, and information they’ve been able to get from both State and County records, as well as utility information from Boone Electric. To show what was going on in the building in 1973, when the owners of the company have since passed away is a somewhat difficult task, but Mr. Wolverton feels that they’ve put together enough information. Both in the form of anecdotal evidence from people with written statements as well as documentation from various governmental entities.

Mr. Wolverton stated that Ward Trucking Service initially began operation at this location in 1938. The business was started by Berry Ward, the father of Gene and Russell Ward, who are the two gentlemen who eventually succeeded Berry Ward in this business. Mr. Wolverton stated that he provided in the first set of the documentation provided to the Members, a letter from Anita Ward, the surviving widow of Gene Ward. In her statement, she notated the business was started in 1938, Russell and Gene Ward became involved in the business shortly after World War Two, then operated the business until 1997.

This is the farthest back that Mr. Wolverton could get any indication as to when the business actually began at this location. This location began being used as a commercial entity in 1938.

The second piece of evidence is a letter from Hugo Wilmsmeyer, Chief Field Engineer with Boone Electric Coop. The Boone Electric records show that Wards Trucking was a trucking and implement sales business that operated and received power for a commercial operation from May 9, 1942 through November 12, 1997.

The next letter is from Carol Ward Kimberling, daughter of Gene and Anita Ward, she states in her letter that from the time she was born, as long as she can remember up through 1997, that Ward’s Trucking operated at this location. Ms. Kimberling was born in 1948.

Another letter from E. Lynn Huss, daughter of Russell Ward who passed away in 1996, Mr. Gene Ward passed away in 1999. Ms. Huss also provided a letter that as far back as she can remember, Ward’s Trucking Service operated from this location. Ms. Huss was born in 1951.

Also there are letters from other people who are long-time Boone County residents. Of these letters, one is from Larry Atterberry, an auctioneer in Boone County. And a letter from Charles F. Jackson, who owns the building now being operated as a furniture sales.

Ms. Jacobsmeyer stated that Mr. Jackson’s parents opened that business in 1972, his letter stated the Ward’s Trucking business was there at the time his parents purchased the property, Mr. Jackson still owns the building in which the business is located.

Mr. Wolverton stated that the building is next door to the subject property.

Mr. Wolverton stated the fifth piece of evidence, marked as exhibit one, is from the Secretary of State’s web site regarding the business license activity for Ward’s Truck Service. This shows that Ward’s Truck Service was registered with the State of Missouri as of October 29, 1952.

The sixth piece of evidence, marked as exhibit two, is also from October 29, 1952 and also from the Secretary of States web site, which shows the business ownership percentages of this business. This document shows that Barry Ward was a 33-percent owner, Russell Ward was a 33-percent owner and Gene Ward was a 33-percent owner. The relevance of that particular piece of information is that it does correspond with the written statement of Anita Ward and supports the time-line she produced.

The seventh piece of evidence, marked as exhibit three, is also from the Secretary of State’s web site. This shows that there was a new business entity formed at this location as of May 31, 1978.

The eighth piece of evidence, which corresponds with number seven above, shows the ownership percentages. Showing Russell Ward as being a 50-percent owner and Gene Ward being a 50-percent owner. This is the point that the sons took over the business from their father legally. The importance of this information is that it does show the continuity of the business, from the time the business was originally opened, that it has remained in that family and has remained operational as a business.

All of the documents obtained by the Secretary of State’s web site show that the business license activity is still active. Until someone goes in and cancels it, it will remain on active status until someone physically cancels it.

Mr. Wolverton continued that the ninth piece of information, marked exhibit five, is copies of the Boone County Merchants License Tax rolls from 1978 through 1984. The Boone County information shows that Ward’s Truck Service operated during that time period. Mr. Wolverton attempted to examine the books from 1973 to 1977; unfortunately, those books are currently in Kansas City being microfilmed. Ms. Jacobsmeyer added that in the file is a receipt from the Boone County Collectors office. A Clerk in that office marked on the receipt that applicants were unable to review those years due to the fact that those books were in Kansas City being micro-filmed to be put in a vault.

Mr. Wolverton stated the tenth piece of evidence, marked exhibit six, which are copies of the Boone County real estate tax receipts for this location. They show that as far back as 1986, this piece of property has been assessed and taxed at a commercial rate. The significance of this is that obviously if the business were not in operation there, it probably would not be taxed at a commercial rate.

The eleventh piece of evidence is the letters from the residents stating they have seen a continuous operation of Ward’s Truck Service at this location since before 1973.

Mr. Wolverton stated that what he has tried to put together is both anecdotal evidence from residents of Boone County and members of the family who were around when that business was being operated, this was done in the form of notarized letters. Information was gathered from the Secretary of State’s web site, which shows State records, showing that a business was in operation in the name of Ward’s Truck Service at this location as far back as 1952. Evidence was provided from the Boone Electric Coop showing that as far back as 1942, there was commercial activity at this location from 1942 through 1997. Then from the Boone County information, applicants have shown the continuity of this business by showing the information from the merchants license rules as well as, the county and real estate tax receipts. Applicants have put as many of these pieces together as they could.

Open to public hearing.

In favor of the request:

Present: John Strawn, 4741 N. Route E, Columbia.

Mr. Strawn stated that he was born and raised in Boone County. The Ward brothers hauled Mr. Strawn’s livestock to market for many years. Mr. Strawn stated that he wanted to verify that it was legit.

No on spoke in opposition of the request.

Closed to public hearing.

Chairman Trabue asked Mr. Strawn about the use of the business and the time frame he did business with Ward Trucking and what type of business it was.

Mr. Strawn stated he couldn’t be exact but Mr. Strawn was born in 1942 in Columbia and from the time he could remember, Ward has always hauled his family’s livestock. Mr. Strawn stated he could remember when they were back in Callaway County before they moved to this location, his first recollection was back in the 1950’s.

Chairman Trabue asked Mr. Strawn about the operation at this location, and whether he remembered anything about the operation besides the fact that they hauled livestock and if Mr. Strawn recalled anything about truck repair. Or whether the truck repair was incidental to the business.

Mr. Strawn stated he believed it was incidental to the business. They may have done minor repairs and the major things had to go somewhere else.

Chairman Trabue asked Mr. Strawn how many trucks he thought Ward’s Trucking ran.

Mr. Strawn stated probably eight to ten trucks. They had some over the road semis, local trucks and pickups.

Chairman Trabue stated that the area is currently is covered by the building and the gravel parking area. Chairman Trabue asked Mr. Strawn that to the best of his recollection is that what has always been there.

Mr. Strawn stated yes. It seems that it has been tidied up quite a bit in the last few years.

Member Bowne stated that there was a reference made that something was marked gas, was there a gas station there at one time.

Mr. Wolverton stated that he knew there were gas pumps there at one time. In 1997 there was a tank removal. This was done through the Missouri DNR rules and requirements. This was a major extraction and clean up of that particular property. There were gas pumps there and doesn’t know if they were selling gas on a retail basis but they were storing fuel there for their use in the business. The building itself has a large sliding doors on either side, which they were able to pull the trucks in one side, do the repair work they needed and just drive them right on out the other side. Once again, whether they were repairing trucks for other people or whether they were just repairing their own equipment, Mr. Wolverton stated he couldn’t answer that question, but does now that at a minimum, they were repairing their own equipment.

Member Bowne asked staff if they were looking at this request just to see if it is a nonconforming use as in a commercial use as opposed to a residential use, or were they looking at the specific use that is intended for the property.

Planner, Bill Florea stated they were looking at it as opposed to a category of uses as far as what zoning district would this use appear in. For example is it a General Commercial use, office use. In addition to establishing whether in fact the business was there in 1973, what was the nature of the business, what category does it fit in.

Chairman Trabue stated to further that any uses since that time which might be more restrictive to comply with the ordinance.

Chairman Trabue asked for a description of the remodel in 1997.

Mr. Wolverton stated that when the business was purchased by RFL Investments, it was predominantly a warehouse, repair shop area and a small office area. The business has been operating there since 1997 and is called MMECO. MMECO is a company that sells and leases heavy commercial machinery. They used a portion of the building to do their own repairs and maintenance on their machinery. They expanded the office space from a small office and took up some of what was previously the storage area and turned it in to more office space.

Chairman Trabue asked if the building had been enlarged.

Mr. Wolverton stated the building was approximately 4100 square feet total. At the time they bought it, of the 4100 square feet, maybe 300 square feet of that was office. Now it is more like 1000 to 1200 square feet of office. This is office space for their own use it is not leased out.

Member Bossaller stated that it was apparent that this business has been in a nonconforming status for a long time. It seems like the issue really is what is going to happen in the future, what kind of business will be there when it is sold. Will it be similar or different.

Chairman Trabue stated he wanted to make clear the task for the Board of Adjustment Members. Although he is interested in the future as well, the task is to establish the level of nonconforming use in 1973 when zoning took effect and any limiting uses that may have occurred since that time. Beyond that, it becomes another issue. However, if applicants wished to disclose the future of this location, he would be happy to listen.

Ms. Jacobsmeyer stated that the prospective buyers wish is to have lawn and garden type things, small and medium tractors for someone who might have 3 to 5 acres or maybe 10 acres. Out in that area, that wouldn’t be uncommon, considering there is Route Z. They would like to operate repairs in the back, for the people that do come in and either rent or purchase some of those things. Ms. Jacobsmeyer doesn’t believe the prospective buyers wish to have a service department as their major line of business, but believes they would like to keep that open to anyone that would like to purchase merchandise from them. That is the buyers intent at this time.

Member Bossaller stated that it appears buyer’s intent seems to be along the same line as what has been there previously.

Chairman Trabue asked how long has the current business not been in operation there.

Mr. Wolverton stated the property was put on the market right after the first of March. Their business license is still active and they are still an active business, they have moved their machinery from that location to a St. Louis location.

Member Rootes asked when a nonconforming use vacates the property, how long before the grandfather clause ceases.

Planner, Bill Florea stated a nonconforming use has to be abandoned for a period of one year. Abandoned does not necessarily mean discontinuance of a nonconforming use. For example, if the business moves out and the building stays, a building that housed the nonconforming use, is vacant for a year, that doesn’t mean they lose nonconforming rights. There has to be some overt activity by the property owner to indicate they intend to abandon that use. Simple discontinuance does not constitute abandonment.

Member Bowne stated that Mr. Strawn stated that Ward’s Trucking hauled cattle, and asked if they hauled other things in their trucking business or were they cattle haulers.

Mr. Strawn stated that livestock was the only thing he was aware of them hauling.

Member Bowne asked if the repairs Ward’s Trucking did, was only on their own equipment.

Mr. Strawn stated yes.

Member Bowne stated regarding the fuel tanks taken out, there was no reference that the fuel was sold commercially, so those were fuel tanks were for their own use.

Mr. Wolverton stated as far as he could tell, yes.

Member Bowne stated that they were talking about cattle haulers not truckers.

Mr. Wolverton stated to clarify, they did haul for other people, they were not hauling only their own livestock.

Member Bowne stated she understood that.

Member Bowne asked staff to define agricultural activity.

Planner Bill Florea defined as production of food and fiber. Mr. Florea then read the definition from the zoning ordinance. An agricultural activity shall be defined as the cultivating of the soil, producing of crops and the raising of animals for food or fiber. All agricultural activities shall be exempt from these regulations except in residentially developed areas. Concentrated animal feeding operations must conform to the Missouri Department of Natural Resource's regulations pertaining to waste water management and order control.

Member Bossaller stated that in viewing this strictly as a district on zoning, geographically, that whole area is expanding and he sees nothing but commercial development. It is already happening. Member Bossaller stated he favors this request.

Member Bowne asked if the furniture store next door was grandfathered in or did it meet the commercial zoning.

Mr. Florea stated he believed it was a nonconforming use as well and doesn’t know if they have a certificate of occupancy for a nonconforming use.

Member Rootes stated that she knew there was some kind of difference between maybe what uses would be allowed in a certain district and what uses fall in the same building code use category’s.

Mr. Florea asked if Member Rootes meant occupancy category’s under the building code.

Member Rootes stated yes and asked if the leasing and selling of the large equipment was in the same use category as trucking.

Mr. Florea stated under the zoning code, yes.

Member Rootes asked if was also under the occupancy.

Mr. Florea stated he was not sure and didn’t believe it was relevant if it was a zoning issue.

Member Rootes stated that it was a certificate of occupancy.

Chairman Trabue stated it was a certificate of occupancy for nonconforming use.

Mr. Florea stated the terminology was similar to the terminology as used in building codes, but this is solely a zoning issue.

Planner Thad Yonke stated that the Board of Adjustment doesn’t have the power to act on the building code issues.

Member Rootes asked staff for a run down of the uses in the C-G zoning.

Planner Bill Florea read the following from the zoning ordinance.

Agricultural activity

Any permitted use of the C-N District

Amusement centers and video arcades

Automobile service station

Automobile repair shop

Bar or tavern

Bowling alley or billiard parlor

Display and salesroom

Farm implements, sale and repair

Farm store or feed store

Frozen food locker

Hotel or Motel

Laboratory, research, experimental or testing, but not testing combustion engines or

explosives

Radio or television broadcasting station or studio

Rental agency

Kennel where animals are kept within a soundproofed, air-conditioned building

provided there shall be no odor that shall be perceptible at the boundary of the

premises and further provided the noise outside the building shall not exceed

that of normal daily traffic measured at the lot line

New or used cars, mobile homes, travel trailer, or boat sales or storage lot

Dyeing, cleaning, laundry, printing, painting, plumbing, tin-smithing, tire sales and

services, upholstering and other general service or repair establishment of

similar character. Not more than 10 percent of the lot or tract occupied by such

establishment shall be used for the open and unenclosed storage of materials or

equipment

Member Bowne asked which category cattle hauling fell in to.

Mr. Florea stated he did not know if the distinction of cattle hauling was clear in the zoning regulations. But there are similar types of truck businesses that have been certified by the Board of Adjustment as falling in the general commercial category. Clark Trucking on Route O, is one example. That case was brought to the Board of Adjustment on appeal and the Board determined that this use does conform to the general commercial zoning category.

Chairman Trabue stated he believed it would lend itself to the nature of activity on the property. When you look at this piece of property, it would be a trucking establishment no matter what they are hauling. The use on that property would be for large trucks.

Mr. Yonke stated that these types of questions would always come up for the Board of Adjustment. Things that are not specified in the zoning ordinance, it is up to the Board to determine which category these fall in to. That is going to be a common issue, where the Board will have to determine what falls in which category.

Chairman Trabue stated that these are important issues, anytime the Board hears this type of a case for a certificate of occupancy for nonconforming use, the Board is the last point and it is important that the Members do make the right decisions.

Chairman Trabue added that there is an additional provision for issuing this certificate of occupancy for nonconforming use, this effects the amount of property that is effected by this. The Board can limit and are obligated to limit this portion of the occupancy to that portion of the piece of property that actually have the nonconforming use. Based on what Mr. Strawn stated to the best of his recollection, the areas on the tax map were probably the same areas being used in 1973.

Mr. Wolverton stated the way the topography of the property lies, the back portion of the property is currently an open field. There is a small creek that runs through the middle of the property, without significant work, as far as putting in a good size culvert, the back part of the property would not be accessible anyway, and Mr. Wolverton assumes that it is probably not accessible at that either. There are no photos that he has seen or anything showing that this type of work had been done at any time.

Chairman Trabue stated he agreed. This issue is important, if this were a 100-acre tract and only three acres was being used for a nonconforming use, the Board doesn’t want to make a mistake.

Chairman Trabue asked the Members to look at the right side of the copy, there is a piece of property that is identified and has a 210-foot dimension, which is a pretty good frame of reference. However, it does not go far enough to actually go back to the creek. Chairman Trabue recommends that the distance to select would be 240 foot plus or minus, with the general intent being the creek that runs through the property. That should provide enough information for the record to identify and give any potential owners a very clear delineation of where the nonconforming, if approved, would be allowed.

Chairman Trabue stated it was important to note this certificate of occupancy for nonconforming use is not a clear zoning change. They would not be allowed to come in and tear the buildings down and build a new building in the general commercial district. It has to work within the buildings that are already in place with no significant structural modifications or enlargements of the structure.

Member Bossaller stated that if they did they would have to get rezoning.

Chairman Trabue stated that was correct. That is an important delineation that this is a certificate of occupancy for nonconforming use only, and not a rezoning of the property.

Member Bossaller asked applicants that if the Board restricted, does applicants understand what Chairman Trabue stated regarding the 240 feet.

Ms. Jacobsmeyer stated based on the legal description, that would be adequate. However, Ms. Jacobsmeyer asked with regards to the building, to obtain an occupancy permit for the building, should the building code require any changes to be made to keep it within code, this would be allowed, correct?

Chairman Trabue stated yes, you just couldn’t make any structural modifications to enlarge the structure, if you need to fire proof.

Planner, Bill Florea stated there was an exception, if there is damage to the building that exceeds 75-percent of it’s value, then any new building has to conform to the zoning regulations. If the damage were less than that 75 percent, then applicants could make the repairs.

Planner, Thad Yonke stated that if an occupancy permit was issued today and the building burned to the ground tomorrow, it loses the occupancy permit.

Ms. Jacobsmeyer stated she understood that.

Member Rootes asked if the internal use of the building was significant in this hearing. Within the building they could allocate however much they wanted to office and to retail and repair.

Mr. Florea stated he believed so. It states in the code that the use can be expanded in to the building. So that could probably give the applicants some room.

 

Member Bossaller made and Member Bowne seconded a motion to approve on the northern 240-foot of the subject tract certification for occupancy of a nonconforming use located at 7208 I-70 Drive SE.

Chairman Trabue Y Member Bowne Y

Member Rootes Y Member Bossaller Y

Member Clementz Y

Motion to approve request carries 5 Yes 0 No

 

 

 

 

OLD BUSINESS

NONE.

NEW BUSINESS

NONE.

 

ADJOURN

Meeting adjourned at 7:55 p.m.

Respectfully Submitted,

 

 

Paula L Evans

Secretary

Minutes approved ______ of __________, 2001.