Chairperson Rootes called the meeting to order at in the Boone County Commission Chambers having a quorum present.
Chairperson Rootes read the procedural statement stating that this Board is appointed by the Boone County Commission to consider specific application of the zoning and subdivision regulations. The Board is empowered to enter rulings that may give relief to a property owner from the specific application of the Zoning and Subdivision regulations. Generally, variances can only be granted in situations where by reason of shape, topography or other extraordinary or exceptional situation or condition of a specific ordinance would result in peculiar and exceptional difficulties to or exceptional and demonstrable undue hardship upon the owner of the property as an unreasonable deprivation of use as relating to the property. A variance from the strict application of this ordinance can be granted provided the relief requested will not substantially impair the intent, purpose and integrity of the zoning regulations.
Notice of this meeting has been published in accordance
with our by-laws for the proper number of days.
All decisions of the Board are based on the zoning or subdivision
This Board is comprised of five members, with three members constituting a quorum. An applicant must receive at least three votes in order to receive the relief that they have requested from the Board. Any applicant appearing before this Board has the right to be heard by all five members. At times that all five members are not present, the applicant, and only the applicant, may choose to wait until such time as all five members are present to hear their request.
Roll call was taken:
Present: Linda Rootes, Chairperson
Absent: Kay Clementz
(Note: There is presently a vacant seat.)
Also present: Thad Yonke, Staff Bill Florea, Staff
Paula Evans, Secretary
Minutes of the September 26, 2002 meeting were approved with a correction in the last paragraph of page two in which Mr. Wade stated that “he would like to sell his property to the west”. The Board asked that it be corrected to state “he would like to sell his property to the east”.
Minutes of the September 26, 2002 meeting were approved as corrected.
1. Case Number 2002-010
Request by William and Marian Brandel for variances from the required front building setback of 50’ in the A-2 district as required in Section 10 A. of the zoning regulations on 26.32 acres and to allow a 5’ utility easement on property located at 22311 Westbrook Dr., Hartsburg.
Planner Bill Florea gave the staff report stating that Section 1.9.2 of the Subdivision Regulations requires that the Director make a recommendation on requests for variance from the provisions of the regulations.
“The Board may grant a variance only if it finds after public hearing and upon competent and substantial evidence that the applicant meets the criteria for grant of a variance required by these regulations. No variance from any requirement contained within Appendix A or B of these regulations shall be granted unless the Board finds: (a) the applicant will incur unreasonable and unnecessary hardship if a variance is not granted and the variance is not sought primarily to avoid financial expense in complying with the requirements of these regulations (b) grant of a variance will not endanger the health, safety or welfare of the public, and (c ) grant of a variance will not hinder, thwart or circumvent the general intent or any specific purpose of these regulations. All applications for variances shall be filed with the Director and after review thereof the Director shall make a recommendation to the Board to grant or deny the application and state the reasons for his recommendation.”
This tract is part of a 26.32 acre parcel. The applicants have submitted an Administrative Survey dividing the tract into two parcels. During review of the survey, it was determined that the existing house and garage do not comply with the 50’ building setback required by the subdivision regulations. In addition, the existing garage encroaches into the area that should be reserved for utility easement purposes.
a) The applicant will incur unreasonable and unnecessary hardship if this variance is not granted. In order to provide the required 10’ utility easement, the garage would have to be moved.
b) Granting this variance will not endanger the health, safety or welfare of the public. This is an existing structure.
c) Granting this variance will not thwart or circumvent the general intent of the regulations. Utilities are already in place.
Present: William Brandel, 22140 Westbrook Dr., Hartsburg.
Marian Brandel, 22140 Westbrook Dr., Hartsburg.
Mr. Brandel stated that he is here tonight to ask for a variance. These buildings were in place and the house was probably built 100 years ago and the garage was built in 1984. Mr. Brandel stated that the applicants lost some land on a survey: 69 hundredths of an acre was lost on the survey. This was a mistake by the highway department during their survey.
Chairperson Rootes asked the applicant to tell about the applicant’s intention about splitting the property.
Mr. Brandel stated that he owns the property north of the property in question and have cattle; there is no house on that part. Applicants live across the road which is on the east side, on the west side is where the property is located and the barn was needed for more hay storage, the only way to keep the barn was to split the 10-acres off because the surveyors stated the County would not accept the applicants owning 30 acres; the applicants had to keep 10-acres. Applicants are going to put a driveway in off of Westbrook drive about 100-feet from the existing garage to get to the 10-acres, that is the applicant’s purpose. The applicants raise cattle.
Chairperson Rootes stated that the applicants would like to make arrangements to sell the house and 10-acres but keep the barn.
Mr. Brandel stated keep the barn and 10 plus acres and sell the 14.99 acres with the house and garage.
Open to public hearing.
Present in favor of the request:
Clifford Cornell, 22100 Westbrook Drive, Hartsburg.
Mr. Cornell stated that he lives next door to the applicants and can see the property in question from his front yard and from a few windows in his house. Mr. Cornell stated that he has no problem with the applicant’s request.
Mr. Brandel presented photographs to the Commission.
Chairperson Rootes stated that she enjoyed the drive down Westbrook Drive it was a lovely neighborhood.
Mr. Brandel stated that he has lived there for 41 years and has cut the right-of-way for 41 years and it costs the County a lot of money. Mr. Brandel stated that the applicants have picked up a lot of trash along the road.
Mr. Cornell stated that he his lived in the area for 11 years and believes that the applicants do a great job of keeping the property and the right-of-way looking nice.
No one spoke in opposition of the request.
Closed to public hearing.
Member Trabue stated that he is fine with the request; it is a very nice area. This is exactly why the Board is here to address these types of adjustments.
Chairperson Rootes stated that she appreciates seeing a 100-year old house kept in such an attractive condition.
Member Bowne made a motion to approve the request to reduce the building setback of 50-foot for the applicants.
Member Trabue seconded the motion and stated that he would specify the 28-foot that is identified on the plat; make it more specific to the structure such that at any future time if a new structure was built it would have to meet the current requirements. Member Trabue stated that the 28-foot is on the existing house; the garage is way out in there. Member Trabue stated that he would say the setback for the existing structures as shown on the plat.
Chairperson Rootes stated that to make sure the applicants understand that the variance is for the existing structures. Chairperson Rootes asked staff under what conditions would the applicants lose that.
Mr. Florea stated that the way he heard the motion being worded, any new structures would have to comply with the required setbacks, they wouldn’t lose the ability with the granting of the variance if the house or garage were damaged they would be able to build in the same locations they are in now.
Chairperson Rootes asked if the applicants would be able to build on to the structures or modify them as long as they did not encroach more in to the setback.
Mr. Florea stated if they didn’t increase the encroachment. If the addition was to the rear, away from the road they wouldn’t be able to go north or south which would be on either side of the structure.
Member Trabue stated he believed that would be appropriate if anyone wanted to do that and change the character it would be appropriate that they come back before the Board for an additional variance.
Member Bowne stated that she didn’t want to get in to it if there was damage to this existing structure and they had to repair a wall or roof and the applicant had to come back before the Board. As long as they didn’t encroach any closer to the road than what they are now.
Mr. Florea stated that with the variance they would be able to build what they have now.
Member Bowne made and Member Trabue seconded a motion to approve a request by William and Marian Brandel for variances from the required front building setback as indicated on the existing plat for property located at 22311 Westbrook Dr., Hartsburg.
Chairperson Rootes Yes Member Trabue Yes Member Bowne Yes
Motion to approve request carries unanimously. 3 Yes
Member Trabue made and Member Bowne seconded a motion to approve a request by William and Marian Brandel for variances from the requirement to provide at least a 10-foot utility easement based on the existing structures shown on the plat for property located at 22311 Westbrook Dr., Hartsburg.
Chairperson Rootes Yes Member Trabue Yes Member Bowne Yes
Motion to approve request carries unanimously. 3 Yes
* * * * * * * * * * * * * * * * * * * *
2. Case Number 2002-011
Request by Tyree Mobile Homes, Inc. to establish nonconforming use (grandfather rights) and obtain an occupancy permit for a commercial structure located at 1800 E Prathersville Rd., Columbia.
Planner, Thad Yonke gave the staff report stating that this property is located in section 19, township 49, range 12. The south half of block J, Crescent Mobile Homes Subdivision. The current zoning is R-M the adjacent zoning is also R-M. This property is located just north of the Columbia municipal limits in Crescent Meadows Mobile Home Court Subdivision. There is a large structure on this property that has served numerous functions for the mobile home subdivision. The applicant asserts that the building on this lot has been used for numerous commercial uses since it was built. The original plat for Crescent Meadows Mobile Home court subdivision was filed in 1967. The original plat shows block J as a community center. Staff knowledge of this building is that it has been used as a community center for the mobile home subdivision and as a church. The requested variance is to grant a certificate of occupancy for nonconforming commercial land use so that the building can be used for commercial purposes. Staff notified 28 property owners.
Present: Rena Weggener, representing Tyree Mobile Homes Inc., 2126 E. Business Loop 70, Columbia.
Andre Ketab, 4405 Forum Blvd, Columbia.
Mr. Ketab stated that he is trying to rent the building for his sign business. Mr. Ketab stated that he has been doing signs for 10 years in Columbia. The building has been used for commercial things for many years. It was a laundromat, a grocery store, an arcade. No one ever came to the Board with this type of application for a nonconforming use. Ms. Weggener informed Mr. Ketab that it was best to come before the Board and explain to the Board his intent.
Chairperson Rootes stated that Mr. Ketab did not own the property.
Mr. Ketab stated no, Ms. Weggener is the owner.
Ms. Weggener stated that the business is the owner; she is a representative of Tyree Mobile Homes.
Chairperson Rootes asked what Ms. Weggener’s capacity is as an agent
Ms. Weggener stated that her parents are the ones who started the business; Ms. Weggener is the General Manager of the business.
Chairperson Rootes asked Ms. Weggener the history of the property for example when the building was built and the various uses that have been there and who operated those businesses.
Ms. Weggener stated that the mobile home park and the building was constructed in the late 1960’s. It was done so by Virgil O’Connor and he along with a partner, Bill Tryst, built the subdivision and built the building to serve the area. The concept of the mobile home park was a novel concept at that time and still is as it proved not to be a marketable concept. The concept was to subdivide each lot and allow each person to own their own plot of land for their home to be located on. The building that was constructed was originally designed to serve the people in the area. At that time there wasn’t hardly anything out in the area, there were no convenience stores. The original building was designed with a grocery and laundromat. It had an office that sold the land. There was a barber shop a beauty shop and a meat shop there. Over a period of over 6 to 10 years those businesses went out of business one at a time. Mr. O’Connor sold his interest in the park to John Daly. Mr. Daly also had a rental business, he had a lot of rental homes that he ended up moving in to the park and he sold lots as well as rented homes. He had a service that Dan Husky ran for him. Mr. Husky is now in the mobile home transporting business. They were all associated together and they worked out of that building to operate those businesses there.
Ms. Weggener stated that she believes Mr. Daly ended up going bankrupt but she is not sure of his exact financial situation. The park was then held by a company out of Montana called United Industries, which is an insurance company. There may have been some owners between Mr. Daly and United Industries but she is not sure. United Industries managed the park and the Burnam's managed United Industries interests in the park and the building was used to sell and rent lots and manage their affairs. Tyree Mobile Homes Incorporated bought the building from United Industries. Since the applicants have bought it the building has been primarily been rented to religious groups and they had church services there and thrift shops were there which second hand clothing and furnishings were sold. One of the groups did food gathering and distribution out of the building. The building has got access to it from the road without having to go through the park; it has a straight service road that bypasses the homes in the park. It has a large parking area. The building itself was constructed to be commercial and the utilities were designed to subdivide the building in to different commercial interests. Applicants feel that it would be an improvement to have the building occupied by an ongoing business. The problem with the church groups, while they do serve an importance to the community, their resources are very limited and their ability to take care of the property and make improvements on the property is very limited. Someone that has a commercial interest there would have a more positive impact on the community.
Member Trabue asked when the applicants purchased the property.
Ms. Weggener stated 1988.
Chairperson Rootes asked the applicant the situation with the lots and if they are still privately owned.
Ms. Weggener stated that they are all still privately owned there are about 40 different owners that own 251 lots in the park.
Chairperson Rootes asked how many lots are owned by Tyree Mobile Homes.
Ms. Weggener stated that Tyree owns about half of the lots.
Chairperson Rootes asked who owns and maintains the roads and public areas.
Ms. Weggener stated that the park is governed by a set of covenants and a board of trustees enforces those. The roads are their responsibility and they take care of them.
Chairperson Rootes asked who the members of the board of trustees are.
Ms. Weggener stated it is pretty much Tyree Mobile Homes. Ms. Weggener stated that Wendell Tyree, her father, is the President of the board of trustees.
Mr. Ketab presented photographs of the area. Mr. Ketab stated that the area needs a lot of work.
Chairperson Rootes stated that she visited there today.
Mr. Ketab stated that the property was taxed as a business zoned as commercial since 1986.
Chairperson Rootes asked if the laundromat was still there.
Ms. Weggener stated yes. Applicants haven’t found a good use for the building.
Chairperson Rootes stated that this is a challenged area.
Chairperson Rootes asked staff if they had heard any responses from the property owners.
Mr. Yonke stated that staff heard from 2 or 3 of the owners that own lots there. Mr. Yonke stated that he personally talked to one who could not attend tonight. The owner didn’t understand what was being requested from the letter she received. Mr. Yonke stated that when he explained that the applicants were simply trying to reactivate the building to utilize it for a commercial purposes the caller stated that there used to be a beauty shop and grocery store in there, but it has been used as a church since then. The caller stated that she would like to see something back in there. Mr. Yonke stated that he counted that as a positive response. Mr. Shawver talked to a couple of other callers and he had indicated that they were positive responses as well.
Chairperson Rootes asked staff to explain the timeline and when the building became a nonconforming use.
Mr. Yonke stated that in order to establish a nonconforming use, the use has to have existed prior to December 1973 because that is when the regulations went in to effect. Then it would have to have been in continuous use without being downgraded to a lesser intensive use continuously since 1973 in order for the Board to find that there is a nonconforming use right that hasn’t been lost. Theoretically you can find that at some point it may have had a nonconforming use status but it may have lost that nonconforming use status at some point since then. That is really what the burden comes back to that in the Board’s opinion is there enough evidence to support the request that it was that way and has maintained at least enough of that status that the Board is comfortable saying that it hasn’t lot that status. The other thing that the Board will have to do is assess what level if the Board chooses to grant or find that it does have nonconforming use status; the Board will have to define what that status is in terms of is it a C-N neighborhood commercial use or is it C-O or C-G. Staff’s opinion is if you are going to grant it, it is probably a C-N neighborhood commercial which is probably the most compatible.
Member Bowne stated that if it has a nonconforming use and then has a conforming use then wants to go back to nonconforming use…
Mr. Yonke stated that it would lose the nonconforming use rights.
Member Bowne stated that it is not really the level of intensity of use. If it became a conforming use building then it has lost its nonconforming grandfather rights.
Mr. Yonke stated that is generally the way it is looked at.
Member Bowne asked Mr. Ketab if he lived at Crescent Meadows.
Mr. Ketab stated no he lives on the other side of town.
Member Bowne asked Mr. Ketab to describe what the sign business entails.
Mr. Ketab stated that he does maintenance on the billboards most of the time. Mr. Ketab stated that he brought samples of his work. Mr. Ketab presented the samples to the Board.
Member Bowne asked Mr. Ketab if he did on site maintenance or if he brought the billboards in.
Mr. Ketab stated that he goes to the job site and puts in new graphics or takes care of electrical problems. Most of the customers call and he goes and does the service for them.
Member Bowne asked Mr. Ketab if any painting was done.
Mr. Ketab stated that they are computer generated; there is no painting.
Member Bowne stated that her main hang-up is that once it went to a church it went to a conforming use.
Member Trabue stated that he concurred with that based on the discussion. Member Trabue stated that he didn’t realize that the building had that many uses. It looked like it was a commercial use for many years based on what the applicants had stated. Member Trabue stated that he thinks the Board’s hands are tied. It went to a conforming use, being the church.
Ms. Weggener stated that it wasn’t really a church; there were individuals that had a religious mission; but the building was not rented to a church, it was rented to individuals.
Member Trabue stated that the building also loses its grandfather rights if it is not a commercial business for a period of one year, obviously it has not been that. Member Trabue stated that he didn’t think that the Board, in good conscience in following the regulations, could issue a commercial type of occupancy for this property. That doesn’t mean that Member Trabue doesn’t agree that there may be an appropriate use for the property it is just that the Board at this point can't not give the occupancy and it would require a rezoning. Member Trabue stated that he would like to see something positive happen to the property, the area needs it. By the regulations, the Board can not grant this request.
Ms. Weggener stated because there was a one year lapse in commercial use.
Member Trabue stated yes. If the nonconforming use has been abandoned for a continuous period of one year then it loses its grandfather rights. It would appear that it has been for the last 10 years that it has not been a nonconforming use. It is not a gray area, it is pretty clear that it has lost its grandfather rights.
Mr. Ketab stated that how the church ran their retail business was a commercial business. They were selling food and clothes.
Member Trabue stated that he can’t speak to that because it becomes more of a zoning violation. As a church it has been pretty well accepted. Churches typically operate thrift shops and some of those ancillary type things and they probably don’t have a commercial type business license to operate those.
Ms. Weggener stated that as far as the way that a building is constructed and designed and it’s purpose dedicated to certain activities, Ms. Weggener asked if there area any regulations that address the needs of the property owner to use the building as it is designed.
Member Trabue stated how the building is built whether it is built as a commercial building with commercial type materials doesn’t necessarily make it a commercially zoned structure. Zoning and building type are two different things. When the plat was prepared the building was identified as a community center for a mobile home subdivision with 200 lots, a laundromat would be a very appropriate part of a community center, no different that it might be in an apartment complex. The laundromat in itself did not make it a commercial use; all of the other uses did but since we have lost that grandfathering because it has not been a nonconforming use for the last 10 or 12 years.
Chairperson Rootes stated that staff had indicated that the uses that had been listed, things like a grocery, arcade, barber shop, meat market or sales office that those might be identified as neighborhood commercial.
Mr. Yonke stated that would be staffs estimate for the level of services and businesses tailored to a community. Looking at the structure itself it is obvious that the structure itself was constructed as a late 1960’s commercial strip center. The rear of it indicates separate entrances for each slot with separate meters. The front indicates separate entrances. It was designed as a commercial building rather than a lodge or community room type of structure. Based on the style of it plus the uses that staff is aware of; staff felt that neighborhood commercial is probably the most appropriate if the Board were to approve the request.
Chairperson Rootes asked about the application asking for uses consulting with customers, fabrication of signs and a warehouse area for supplies, tools and equipment.
Mr. Yonke stated that might fall under the shops for custom work under C-N zoning. It is kind of hard; staff was thinking in terms of a smaller sign shop that does placards and things like that. Working on billboards, especially when you get more in to fabrication could get more in to a contractor’s use, which would be an M-L use. Staff would have to know more detail to know whether it fit in there. Initially staff looked at it as a shop for custom work. If the business is mostly computer generated and all they do is put up the surfacing that is probably a shop for custom work which would be a C-N use. If they actually go out and build the billboard itself that is a different story.
Chairperson Rootes asked the applicant had trucks to get to the site.
Mr. Ketab stated yes.
Chairperson Rootes asked the applicant where the trucks are left at night.
Mr. Ketab stated that most of the time the trucks are left at the job site.
Chairperson Rootes stated that the use that the applicants are requesting would be in the right use category.
Mr. Yonke stated theoretically.
Chairperson Rootes stated that the only question is whether the applicants have established that the building was being used in this way before December 1973 and has been in continuous use since then. There seems to be a substantial gap in use.
Ms. Weggener stated that the building was built as a commercial strip center. The reason why the building failed in that aspect is that there weren’t sufficient population there to support the businesses. Ms. Weggener stated that she didn’t believe the future use of the building is very optimistic for a neighborhood support sort of business. The best use of the building is something that would be of a custom shop or telephone sales. The applicants don’t want something that would adversely effect the environment there. The applicants would like a business that wouldn’t require sufficient road traffic and doesn’t require visibility to succeed.
Member Trabue stated that he agrees with that but what the applicants are asking the Board to do tonight is probably not something that the Board can do according to the regulations. It will require a rezoning of the parcel in order to do it.
Member Trabue made a motion to deny the request due to the fact that the applicant has not shown that there has been a continuous nonconforming use and that the current R-M zoning is appropriate.
Mr. Florea stated that if Member Trabue's motion is to not approve the certificate of occupancy for lack of evidence showing that there was a nonconforming use in continuous existence and that there has been a period of more than a year where there has been a discontinuance. That being a justification for a motion to deny the request.
Member Trabue stated that is what the Board is doing is denying a certificate of occupancy.
Member Trabue stated that he moves that the Board deny the request for a certificate of occupancy for a nonconforming use under the grandfather rights.
Member Bowne seconded the motion.
Member Trabue stated that he believed what the applicants are trying to do is probably appropriate but the Board’s hands are tied here.
Ms. Weggener asked what the next step would be to try and get approval for that.
Mr. Yonke stated that the applicants could come to the Planning Office and discuss a rezoning request and more specifics on what the applicants are looking for as to the type of business they want so staff can steer the applicants toward the right zoning district and whether or not the applicants have a good chance at a straight district depending upon what it is or a planned district.
Member Trabue made and Member Bowne seconded a motion to deny a request by Tyree Mobile Homes, Inc. to establish nonconforming use (grandfather rights) and obtain an occupancy permit for a commercial structure located at 1800 E Prathersville Rd., Columbia.
Chairperson Rootes Yes Member Trabue Yes Member Bowne Yes
Motion to deny request carries unanimously. 3 Yes
Meeting adjourned at 7:55 p.m.
Paula L Evans
Minutes approved this 5th day of December 2002.