BOONE COUNTY BOARD OF ADJUSTMENT
BOONE COUNTY GOVERNMENT CENTER
801 E. WALNUT ST., COLUMBIA, MO.
7:00 P.M. Thursday, May 27, 1999
Chairperson Trabue, called the meeting to order at 7:00 p.m. in the Boone County Chambers having a quorum present.
Present: Tom Trabue, Chairperson
Linda Rootes, Vice Chairperson
Absent: Jerry Kaufman
Also present: Stan Shawver, Director
Thad Yonke, Staff
Bill Florea, Staff
Noel Boyt, Secretary
By acclimation minutes of October 22, 1998 and January 7, 1999 were approved.
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.
Director Shawver gave staff report stating that this property is located approximately five (5) miles east of Harrisburg. It is zoned A-2 (Agriculture) as is all the surround property. This property was originally 15 acres. A family transfer was don to split the property so that a house and a mobile home could exist on each lot. This tract is part of an original 15-acre tract of land. In 1994, the applicants placed a mobile home on the property. In 1995, they took out a permit for garage, which was converted into a house, with the provision that the mobile home would be removed once the house was complete. However, once the house was complete, the applicants executed a family transfer between Mr. and Mrs. Van Arsdale, dividing the property into two (2) pieces, a 2.8 acre tract and a 12.2 acre tract. This allowed the mobile home to remain on the property. At this time, the applicants want to build a small house in a different area of the property. We cannot issue them a permit because there is already one dwelling on each parcel. They propose reconfiguring the property so that the new structure will be on the vacant land, and the mobile home will be on the same parcel as the house.
The applicants are requesting a permit to allow the mobile home to remain on the same parcel as the house until a small house can be built on the other lot.
Robert Van Arsdale and Sharon Van Arsdale, 2901 W. Hwy 124, Harrisburg approached the Board. Mr. Van Arsdale said originally when the home was built they had intended as was stated, however his father had a significant health problem that developed. His mother and father then moved to the area. His mother moved into the mobile home and his father into a nursing home. He passed away a short time later and his mother has been living with them in the mobile home most of the year. He stated his mother has a second residence in Florida where she spends the winter. Because of her handicap status they wanted her close to them. He continued that his mother had very bad arthritis. She has had multiple joint surgeries and a lot of problems with pain. She is unable to provide a lot services for herself, so she has accepted their offer to live on the property.
Mr. Van Arsdale stated they wanted to complete their original desire to remove the mobile home and make a more permanent dwelling for his mother. The problem right now is to allow the mobile home to stay. He stated they already had a contractor. It is their stated intent, that within just a few months (certainly less than one year) the mobile home will be removed from the property. This would allow them to have his mother remain with them on the property she has become accustomed to while they build a more permanent, more stable structure.
Something she will be very comfortable in for a long time.
Open to the public. No one spoke in favor of the request.
Gerald Nichols and Anna Nichols, 2851 W. Highway 124 W, Harrisburg came forward. Mr. Nichols said that when the Van Arsdale’s moved the trailer in it was only for a two (2) year time. He stated the trailer has now been there four to five (4 to 5) years. He said the trailer and the house has only one (1) septic tank, and one (1) water meter. Mrs. Nichols said they were not allowed to do that on their property, which was adjacent to this tract. She said they at one time had a trailer on their property but they had to purchase the second (2) water meter and comply with all planning and zoning rules.
Chairman Trabue asked which direction their property was. Mrs. Nichols stated their property was east.
Mr. Nichols added that the mobile home was an eye sore and should be up to standards. Mrs. Nichols stated that she thought everyone was misled. When the house built it was not ever intended to be a garage. It was a house from the beginning.
Jerry Hunter, 2801 W Highway 124 W, Harrisburg came forward. Mr. Hunter said his property was east of Gerald Nichols’ property. Mr. Hunter said he felt like Mr. Nichols. The trailer had been there five (5) years and felt what the regulations were for one person should be for everyone. He stated the mobile home was not lived in year around. Sometimes it is used for storage.
Mr. and Mrs. Van Arsdale returned. Mr. Van Arsdale stated that the gentlemen had not said anything that was untrue. They both had been their neighbors for five (5) years and they know it was intended to remove the mobile home off the property since it was placed. It was always intended to be a temporary residence until they could build a more permanent residence. Mr. Van Arsdale said it would be gone now if it had not been for significant changes in the health status of his father. The intent of this request is to eventually remove the trailer without causing undue hardship to his mother.
Closed public hearing.
Member Keil asked if the mother had two (2) homes. Mr. Van Arsdale said his mother lives most of the year in the mobile home but has a second residence in Winter Park, Florida. It is near the Orlando area. Mrs. Van Arsdale stated she had some significant arthritis and the cold winter months are very painful for her, so November, December, January and February she is down south.
Member Keil asked who cares for her when she is down there? Mr. Van Arsdale said she has been staying down there in the winter for many years and has dear friends from her previous years in Michigan. As well as many friends she has made down there. She has a very supportive church family and a really good support network while in Florida. Mr. Van Arsdale said she would like to continue to go down there for as many years as she can but they realize that will come to an end as her health deteriorates
Chairman Trabue asked about the wastewater. If there were any plans to change from the one- (1) septic tank? Mr. Van Arsdale stated that the Wastewater treatment Board had approved that septic system for two residences. And when it was originally put it in, they had anticipated that they might need to have two residences on the same system. He stated they (he and his wife) were both health care providers and are able to provide great deal of care in their own home and environment. Since they had installed the mobile home, they had intended to make it possible. They had sized the drain field and septic system appropriately and the people at the water and sewer department have been aware. They have approved it for two (2) residences since they day they broke ground. He stated it was approved and he had discussed it with them as recently as a month ago. When Chairman Trabue asked if it was the Health Department or the Regional Sewer District? Mr. Van Arsdale said it was who ever the people are down town. He could not give any name.
Chairman Trabue asked about the single water meter? Mr. Van Arsdale said it was an oversight on his part. He had discussed with the Water District and they are aware of the problem. He had been paying for two (2) meters for some time even though they are using only one (1) and the new construction will have it’s own separate meter to bring it into full compliance.
Chairman Trabue asked Director Shawver if there were any special easement requirements for sharing of two systems? Director Shawver stated that typically Health Department did require that easements be recorded because the potential is there that the land can be sold. In discussing with staff, since the present septic system was built five (5) years ago there was a possibility the Health Department looked at it as to serve the trailer and was to be temporary until it was hooked to the house. Then the house was to be permanent and the trailer would then be removed. He did not know if there was a specific approval for two (2) dwellings on one (1) waste water system. That would have to be evaluated at the time a new building permit is taken out.
Member Rootes asked if that would take place at the time the building permit is applied for. Director Shawver stated yes.
Member Rootes said she was originally from Indiana and had been in a similar situation with her parents, aunts, and uncles. They would live in Indiana in the summertime and go to Florida in the winter. She understood how they go back and forth and make other arrangements. She said she understood their situation.
Member Rootes made and Member Bossaller seconded a motion to approve request by Robert and Sharon VanArsdale for a mobile home as a temporary dwelling for a family member on 12 acres, located at 2901 W Hwy 124, Harrisburg for a period of only one (1) year.
Member Rootes said she would not be inclined to extend it for any reason.
Member Bossaller wanted to be clear about the motion. He wanted this motion to only be for a 12-month period. Director Shawver advised that it could be done but it would not prohibit the owners from reapplying in the future. Member Bossaller said it would be very difficult for him to approve it in the future. He wanted to be on record as opposed to any extensions.
Member Keil stated she had a problem with the request since there was not a hardship as far as his mother, because his mother is able to be without their help in the winter for four (4) months. The only hardship would be during the summer. She stated she had a problem with it. She would go along with the request but if she were still on the Board, she would not be willing to renew the request. Member Keil also wanted to go on the record as being opposed to any time extension.
Member Rootes stated she felt it would be a hardship for the mother to relocate even temporarily so the trailer could be removed, in order to build the house.
Chairman Trabue appreciated the comments from the members, but he advised the applicant to understand the conditions and/or reasons for the variance to be allowed. No further extensions, he continued that there was a little history regarding the tract. Chairman Trabue asked Director Shawver that a building permit would not be
issued until a family transfer was completed and addressed. Director Shawver acknowledged.
Member Rootes added that she found the applicant’s house to be very attractive and the general area would be improved by having another home there.
Called for a question
Linda Rootes yes Larry Bossaller yes
Norma Keil yes Tom Trabue yes
Motion to approve Van Arsdale request was unanimous. 4 yes
Director Shawver gave staff report stating that the subject tract is located off of Highway 63 North, 11 miles north of Columbia and seven (7) miles south of Sturgeon. It is the site of the Pinnacle Hill’s Store. The property is zoned R-S (Single Family Residential) as is all the surrounding property. 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 for a grocery store at this location. However, the zoning designation of R-S was assigned to the site.
Zoning Regulations: "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 non-conforming use of the same or of a more restricted classification. Whenever a nonconforming use has been charged 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 that building which were lawfully and manifestly arranged or designed for such use on or before December 27. 1993"
At the time zoning came into effect, the Pinnacles Hill Store was operating as a neighborhood grocery. The zoning regulations allow such use in the C-N (Neighborhood Commercial) district, which would be the equivalent zoning for the nonconforming use.
Recent change in ownership of the store has resulted in complaints that the business is operating beyond the bounds of the original nonconforming use. Staff has received complaints that there are bands on the weekends, sale of beer, and fights resulting from the consumption of alcoholic beverages on the premises. The reported use would appear to place the use in the C-G (General Commercial) category, which is an unlawful expansion of use.
Zoning Regulations: "Section 8. F. Certificate of Occupancy for a Nonconforming Use.
Non conforming uses existing at the effective date of this ordinance shall apply for a Certificate of Occupancy within six (6) 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."
The department’s records do not indicate that a Certificate of Occupancy was ever issued for the use of this structure. The applicants are requesting that the Board establish the level of activity allowed on site and issue an 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 in 1973, 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 14 property owners.
Brenton Anderton, lessor, 20950 Old Hwy 63 N, Sturgeon addressed the Board and
Scott Cason, lessee, 7201 W. Hwy 124, Harrisburg also addressed the Board.
Mr. Anderton said, "My request is to keep the store exactly the way it has been…since 1973". There have been some changes, not structural, not to enhance the size of the building. "They are using the structure as always it has been used." They have cleaned the place up tremendously. The grocery sales are still there. They do sell beer and have sold beer in the store for quite a long time. He thought the main thing was the bands. The bands went from once a month to twice a month. He said he was never notified by anybody that there was a problem being the lessor. As far as he was concerned, the issue was the noise factor. It was his intention at this time to erect an eight-foot (8’) high privacy fence from the south corner of the Pinnacle Hill’s Store to the road being Flinthill School Road. This would cut down more noise from the parking area. As far as the sell of alcohol, Scott brought records to show the percentage of alcohol to food that he has sold. It is a café and store still.
Scott Casson stated he had worked for Mr. Anderton almost a year before he bought a vested interest in the store. He is leasing with the option to buy and hopefully he will buy the store out right. He said the previous owners had had bands for the customers on Friday nights for as long as he knew the store was there. A lot of his customers had come there; it is local to the community. Most everybody who comes there are within a five (5) mile radius. It is a good meeting place for young and old alike. He said it was never brought to his attention the problem of the band noise. He had asked customers but no one told him. The problem he thought was that people may try to make them out as a bar. He did not see that they were. It was true that he only saw one (1) fight over 1 ˝ year to 2 years that he had worked there. That was a pretty good ratio. He continued and said, "most bars have fights pretty regularly". He did not know many bars that would open up at 7: o’clock in the morning for breakfast. His figures he had showed he sold 4 to 5 times more food than he did beer. He said 99.9% of his surrounding neighbors are the ones that are there on Friday nights. He was never aware that there was ever a problem. He would like to continue operating the store the way it has been for many years. He felt he had a lot of support from the community.
Open to the public. The ones in favor of the request.
Mary Hunter, 2801 W. Highway 124, Harrisburg came forward. She said she and her husband moved to that address in 1983. Pinnacle Hill’s Store was open at that time and she could remember some of her earliest visits there was a large round table that was actually made out of a telephone wire spool. People would gather there and have coffee, sandwiches, and chili and that was there in 1983. Now they practically go to the store every morning for breakfast. She continued that it was mainly because it is a gathering area and a community center for the people in that neighborhood. There are a number of older residents that gather there daily, they converse, they gossip, and check up on each other. A lot of them have health concerns and if somebody is not there, they will check up on where they are. She thought that alcohol had been sold there for a long period of time. She could not say when the first time beer was sold there. If there had been a lot of fights previously, then her husband would have heard about it prior to his retirement from the Sheriff’s Department two (2) years ago. Prior to Mike Sanford’s death, he used to eat breakfast there many Saturday mornings. This was a place that had been there and it is something the community needs and she would like to see it continued.
Chairman Trabue asked Ms. Hunter if she knew any history of the bands. Ms. Hunter said Bryan (did not know last name) had owned it, he had a lot of bluegrass bands that were very well received. She guessed Bryan had owned it five (5) years ago. So she thought the bands had been going on the five years. She said for breakfast and lunch she would like to see it stay.
Jerry Hunter said, maybe he should have come forward with his wife. He said he was still Jerry Hunter and they knew where he lived. He had been a good friend with Mike Sanford and had worked with him in law enforcement. Mr. Hunter stated he had been a deputy and never received a call for any reason during the time the store had been opened. He went in the Sheriff’s office in 1980. His district was normally north and northwest including Harrisburg. When he was not working for the Sheriff’s office he worked part time for Harrisburg and never had a call there.
Mr. Hunter said if you have not eaten there, you should go there because it is some of the best food you can get. He could not say anything about the bands because he was not familiar but breakfast and lunch is very good food and they would like to see it stay open.
Christopher Crane, 1742 S Sonora Drive, Columbia came forward and Ricky Ricciotti, 161 Sunglow Court, also came forward.
Mr. Crane said they came on behalf of some of the bands. They were two members who had played there. The fights issue was there had never been a fight when they had been there. His knowledge he only knew of one, which had been started by one individual that was taken care of immediately. He said when they had played there it has always been a packed house. Mostly by people from the surrounding area were in attendance. They had never had any trouble with the law coming out to ask them to turn it down or had any complaints of that sort. The music he had seen there had always been family oriented. People come out to dance and to have a good time.
Mr. Ricciotti said before he was in the band, he had gone out to Pinnacle’s Park across the highway. He said he had only known Mr. Cason for a couple of months and has grown to be good friends. He treats his customers like friends and like family. His main goal is to show people a good time. The only time he has bands is on Friday nights a couple times a month at most.
Chairman Trabue asked how long their band had been playing out there? Mr. Ricciotti said a couple of months.
Mr. Crane added that a couple of the customers had commented they did enjoy the bands out there. Because they were stuck between Moberly and Columbia and they did not have to drive all the way into Columbia.
Member Rootes asked what kind of music did they play? Mr. Crane said they were classical rock.
Sandy Spry, 650 E. Pinnacles Road, Sturgeon came forward with Cindy Blakemore, 16550 Ridge Road, Harrisburg to address the Board.
Ms. Spry said the Pinnacle’s Store had been part of the community for over 70 years. It is a gathering place for a lot of the old timers. Everybody checks on everybody else. If someone has not been in for a day or two, people get worried and go check on them. Milk and bread can still be bought there along with lunchmeat, cheese, sandwiches, soda and packaged beer as well as beer by the bottle. A lot of the community comes there to hear a band and just visit. It is a place for them to go and not drive all the way to Columbia or Moberly. If it would be taken away from these people, they would be lost. When it was closed a year or so ago, for a few days, these people had no where to go to visit. She would like to see it stay open mainly for the people in the community.
Chairman Trabue asked how long had they been going there? Ms. Spry said they moved out there five (5) years ago. Cindy Blackemore said she had been going there with her parents when she was a small girl over 30 yrs ago. She said they sold beer then to. People were pick’n out in the back yard with guitars. The bands do not get loud and if they do, they tell them and they turn it down. People can talk across the table with out screaming. She goes in there for breakfast on the weekends and eats dinner in there during the week. Mainly they go in there for the food. She has gone in there for the bands (not every Friday night) and had never seen a fight in there, not even once.
Ms. Spry said, maybe people had complained about the noise. The place is small. Some times people will gather out on the porch since the place is small with limited space. It is a family place to go and the food is good.
Anna Freeman, Rte NN, Harrisburg, mother of one of the lessees' came forward. She wants to address the livelihood of some of the people who run, lease or own the store. She started to work there in June of 1990 on weekends. She is employed at Boone Hospital but worked forBryan Forbis the entire time he owned the store. She worked for Brent Anderton. She thought it was an important place for the people. Not only a gathering place for people out in the country but the people who visit the park have a place to stop. Workers on the highway and yes, Mike Sanford came there, it is an important place.
Mr. and Mrs. Elgan Castleman, 15101 Old Hwy 63 N, Hallsville came forward. Ms. Castleman said they had been married 25 years and the first day they were married they went up there. She said her husband loves to dance. Every time there was a band, he was up there. If it would go out, they would be in a mess. Mr. Castleman said it beats going back to town. He said they go out of their way to wait on them. She added they go up and eat dinner almost every day and never had any trouble with anybody. They both wanted it to stay there.
Chairman Trabue said they both had a lot of history with the store. Could they tell him what the store was like 20 or 25 years ago. Mr. Castleman said it was a little grocery store about half the size it is now. The people there had gasoline, kerosene and different things to sell. She added and they had beer.
Member Bossaller ask if they sold packaged beer? Did the people actually drink beer in the store 25 yrs. ago? Mr. Castleman said yes they did, it was 3.2 % beer then. Member Bossaller asked if they actually drank beer in the store. Mr. Castleman said, yes they did. Member Bossaller asked if there ever was a time they did not sell beer? Did the people drink the beer in the store and just sold it packaged. You would come in, buy a package and leave, do you recall? Mrs. Castleman said it was before her time but they did do that. Member Bossaller stated, then it progressed to not only selling packaged beer but now also drinking. Mrs. Castleman said there is a lot more packaged liquor going out. Member Bossaller said he was just trying to get a history.
Member Keil asked that 25 yrs ago you could go in, buy a beer and drink it there? Mrs. Castleman said yes.
Mr. Castleman said the McGlasson’s were there prior to 25 yrs ago, he knew the McGlasson brothers they were contractors and he (Castleman) worked on construction. Member Keil asked if they had a band at that time to? Ms. Castleman said they did not back then but they did when Bryan Forbis was there. He was there about five (5) years ago.
Nancy Lee, 17200 Tucker School Road, came forward. She said it is a meeting place and she has been there several times for lunch. She did not know anything about the bands. She said the store is like something from the old days. They are really unique and she was in favor of it.
Archie Madden, spoke from the audience. He said there had been a store there for 70 years.
In opposition to the request were to come forward.
Director Shawver introduced a letter into the record from Virgil and Connie Fausett. Chairman Trabue read into the record a letter dated 5-20-99.
Karen Winn, 4746 W Hwy 124, Harrisburg and Mable Nichols, 15401 Old Hwy 63 N, came forward and addressed the Board.
Ms. Winn said they really did not have anything against the store with everybody coming up, congregating, and checking with everybody. The issue is when they have the bands, which started five (5) years ago. She said her mother lives alone and she would call her up and tell her things. It was when Bryan had it that people were running around her house. They were drunk and were fighting. They tore up her flower garden. They would like for the store to stay open but not the drinking and the loud music. They just live a few feet from the store. It is loud and people park in her driveway. When ever it is over she goes out and has to pick up the bottles and cans. She does not need this. People have drunk in there for years but starting five (5) years ago when they started to have the bands. Chairman Trabue asked which direction her house was? Ms. Nichols said she was south.
Ms. Winn said her mom and dad used to run the store years ago. Ms. Nichols said they ran the store 40 years ago. Ms. Winn said when Bryan Forbis had the store is when the bands started. She knew for a fact that when she was visiting at her sister’s house, people would come out and use the restroom right in the front yard.
Pat and Ernest Cook, 261 E. Flint Hill School Road, Sturgeon addressed the Board. Ms. Cook said they lived right next to the store, about 10 feet from the store. They did not object to the store, it was just the band and the bar. It was the noise that was really terrible. They can hear it over the TV when they are sitting in the living room. They do not appreciate that. The guys will come out and go to the bathroom right in front of the house. Mr. Cook added that they would urinate even when the lights were on.
Chairman Trabue asked how long had they lived there? Mr. and Mrs. Cook said 41 years. Mr. Cook said the bands just started in the last five-(5) years. Ms. Cook said they block the drive, leave trash and they don’t pick it up. Mr. Cook said as far as getting any groceries, they do not have much in the way of groceries in there. The problem they referred to was, "it is just the bar and the loud music".
Chairman Trabue said the Board was trying to establish what the use was at the time Planning & Zoning came in. Mr. and Mrs. Cook said it was a grocery store. Chairman Trabue asked if one could go into the store in the early 70’s and buy a beer and drink it there? Mr. Cook said you could buy a beer and drink it there.
Chairman Trabue asked about the history of the bands? The Cooks advised there were no bands until the last five-(5) years.
Mrs. Cook said she wanted to say something about what kind of fence they would be putting up. It would be right in front of their house and they do not want that. They would not be able to see the highway or see out. Mr. Cook said they had put up a fence in the side yard when Bryan (Forbis) was operating the store. It was to block off all the stuff-taking place in the back. He continued that they (the store) never mowed their yard nor cleaned it up. If it is ever mowed, it is the neighbor behind them that does it. Mrs. Cook said their "beef " was with the bar and the band. Mr. Cook said as far as the restaurant and the little grocery store, it was fine. In fact, Mr. Cook had eaten over there many times and it is good eating. But it is the bar and the loud music that they object to..
Mr. Cook said that when the band practices almost every night. The drums were so loud he could not hear.
Member Bossaller tried to confirm there was a store that had been there forever. He had been from Slatter and can really relate to it. It sounded that it progressed from that situation to where it is more of an entertainment type of business. It is a combination but the focus is swinging more to an entertainment/band practicing. He knows the type of crowds it attracts and is hearing about all this other behavior.
Mrs. Cook said the one’s that come to this did not live around there, they did not have to listen to it all the time. Member Bossaller said he had heard that with activity was for the locals right there, but see with the bands, swinging, they do not have the same ownership for that situation as what it was previously? Mrs. Cook said the ones that come for the bands, do not live around there.
Member Rootes asked if their place was the property with the for sale sign in the yard. The Cook’s said yes.
Bertha Baker and Robert Baker, 181 E Flint Hill School Rd., Sturgeon came forward. Ms. Baker said they were not against the store. They live behind the store and that music is so loud. They (customers) go out in the back and use the bathroom. One night she heard some screaming, she looked out and there was a girl running down the road with a man behind her with cussing going on. Mr. Baker said they did not need things like that going on. He said they had been up there for almost 30 years. Irene McGlasson owned it when they first moved out there. It was a nice little grocery store, with 5 or six stools along the counter and that is all it had. You could sit up there and have a beer or buy a 12 pack. Now they have it full of tables and everything else.
Member Keil asked how long ago did the music start, 10 yrs ago, 20 yrs ago? Mr. Baker said 3-4 yrs ago or maybe 5. Mrs. Baker said the bad part has started in the last two-(2) years.
Chairman Trabue asked when any music started? Mr. Baker said he never remembered any music when Irene or Ralph Murray had the store. Ralph Murray was another one who ran a good little store. It is like a honky-tonk up there now.
Evelyn Jenkins, 160 E Flint Hill School Road, Sturgeon, came forward. Ms. Jenkins wanted to add is that in the old days, the store always closed at 6:00 p.m. at night. Chairman Trabue asked how long ago was that? Ms. Jenkins said five years ago it started staying open later. It always before closed at 6 p.m. Member Keil asked if Ms. Jenkins had lived there for a long time. Ms. Jenkins said she had lived there 31 years.
Member Keil asked what year did the music start? Ms. Jenkins said she could not hear it down where her house is but she knew the neighbors had trouble. But the store she said always closed at 6:00 prior to that.
The applicants returned to answer or address the concerns of the comments.
Scott Cason said he had asked the local neighbors if anything bothered them and they would tell him no. He had asked Mr. Cook himself personally the next morning after a band if anything bothered them, and he would tell him no. He did not understand the people who would come in and enjoy the band, drinking ice tea and now come in and complain about it. He never heard any complaints until the house next door was put up for sale. Another neighbor in the back is Jay Riley. His property goes back further and down the hill. Mr. Riley has told him he can barely hear the base drum leaving the door open and that is only 500’ away.
Mr. Cason said he was a pretty easygoing person, which is why he has asked his neighbors if there was anything of a problem. He would have tried to take care of it the best way he could. When he books a band it is generally from 8:00 (p.m.) until 11:00 (p.m.) o’clock. Sometimes if the people want to hear a few more songs it may go until 11:15-11:30. He did not think that on Friday night that was too late of a time considering other bars stay open until 1:00 o’clock with the music playing loud. He had seen other bars in residential areas playing their music loud. He said they were not a bar and did not consider themselves a bar. He said he sells four times more food than he did beer. He just wanted to keep a good place for people to come, listen to a little bit of music, to be around their community and not have to drive on treacherous 63 highway to get to Columbia or Moberly. The bands he has are no different than anybody has. He tries to have variety - 99.9% is either bluegrass or the new Country. He does not have the heavy metal that would be real, real, real loud because he wants to respect his customers and his neighbors as much as he can. He would like to see it go on the way it has been. It would be a great loss not only to himself because it is a big part of his business and to the customers. They come faithfully on Friday nights and he would like to see it stay the way it is. The overwhelming majority of the community wants the same thing. That is his business and he would like to see it stay open.
Brenton Anderton stated that it was apparent Pinnacles Hill Store has become a landmark. It has been there a number of years. It is important to a lot of people and less important to a few people. He thought a happy medium could be made.
Closed to public hearing.
Chairman Trabue asked staff if the department had received any complaints.
Thad Yonke said he has been fielding the calls on this property for over a year. The calls started shortly after Mr. Anderton purchased the property. Letters were not sent out at that time because there were concerns it might be a temporary thing and not an intensification beyond the use that it was already being use at, at that time. There was not an active file on the property until this last six-(6) months where it has been monitored.
Calls have been received regularly. All the calls are treated anonymously. People who call in do not tell nor do we ask their names, just what has happened. A file is made and we keep track of the incident. Calls have been received for more than the last month or two. At first, we assumed that it was a "grandfathered – non conforming use". It was not until a file was opened, did we discover that a certificate of occupancy was never issued.
Mr. Yonke stated that before Mr. Anderton purchased the property, he did call our office and spoke with Mr. Yonke. One of the questions he asked was about converting the property into a bar. Mr. Yonke said he told him that would not be an allowable use. If it was a restaurant / café, it could maintain its operation. That would be allowed in a neighborhood-commercial (CN) district. If the non-conforming use rights were determined to be a neighborhood- commercial (CN), that would be legal in that case. Again, at that time we assumed it was grandfathered. We have always considered it at that neighborhood-commercial level. But a bar would not qualify, that would make it a general commercial (CG) level.
Member Rootes asked what makes it a bar? Mr. Yonke said under the Zoning Ordinance, as a neighborhood-commercial you can have a restaurant with some limitations. The difference for the County is if you have a restaurant that sells pre-dominantly food and does also sell liquor, then it would stay in a restaurant category. With the addition of bands where that is the local draw for the operation, then we have made the distinction it is a bar. We have bars that are purely bars, no music and no food. The county does not have a lot of commercial activity.
Chairman Trabue called a five-(5) minute recess – until 8:30 p.m.
Chairman Trabue called the meeting to order.
Member Bossaller asked Mr. Yonke what was allowed to this point; a store, kind of a neighborhood grocery which to him constitutes selling groceries, and the restaurant. Mr. Yonke said the 1973 land use map shows a "grocery." On the original plat of McGlasson Subdivision, which includes the location of the property and which was done in 1977, it indicates "store building" on it. Some point after that it was converted to be more of a restaurant/café. A restaurant/café would be an equivalent use allowed in a "Neighborhood-commercial district. It is allowed under the Zoning Ordinance to go laterally across the category. So if there is one use that was actually there in 1973 (which is being determined tonight but was never done previously as required by the regulations), it is okay to have similar uses of the very same zoning classification. The staff has assumed it was grocery use, which would set it at the neighborhood-commercial level. Any of the uses that are allowed in the Neighborhood-Commercial district are permitted uses.
Mr. Yonke continued that if a land use would fall into a level that would be classified as a Conditional Use, which a bar falls in the Neighborhood Commercial district, that is an intensification or expansion of the use and is not allowed under the County Ordinance. The restaurant/café would seem to be a conversion from the original land use, but is a conversion to an equivalent use within the Neighborhood Commercial district of the Zoning Ordinance.
Member Rootes asked if it was determined tonight that the existing use was that of neighborhood-commercial equivalence, then they could they apply for a Conditional Use permit for the bar. Mr. Yonke said the underlying zoning is R-S (Residential single family). What they would be establishing is the level of use we would look at for the non-conforming use right. Member Rootes asked if it were re-zoned to the Neighborhood-Commercial, then they could apply for a Conditional Use Permit. Mr. Yonke said that would be correct. If the rezoning had been approved to an actual neighborhood commercial status, then they could also ask for a conditional use permit for a bar or roadhouse or other equivalent usage.
Member Keil asked if they did that, then they could also make it larger or what ever since it would not be under the grandfathered rights. Mr. Yonke agreed, this would not be talking about a grandfathered use, it would be what ever the conditions would be placed upon it as a C-N district.
Member Bossaller said he personally had a problem with the intensity of the land use originally and where it has progressed. He did not know if there was a violation but it has gone way beyond the intensity of what it was intended for. He did not see how it could be controlled if the variance was granted. He did not know if any type of limitations or conditions could be placed upon it. Staff would have to advise. Member Bossaller said he had been out there and saw where the place is located. It is located among all the residences and is not conducive for an entertainment bar or band to start playing. He could see it as a convenience store, gathering point, and people supporting each other, that is a real positive omen for a place like that. He again stated that if the variance is granted, it would go way beyond that and the area is not conducive to that type of situation at all. The store needs to be there, it has a real purpose to serve that community to a certain limit, but beyond that, in his opinion that was not the intention. It has gone way beyond that and he is against granting the variance.
Chairman Trabue wanted to clarify that this variance was out of the ordinary. This is not a typical variance to the regulations. The Board is determining a level of occupancy for a non-conforming use. Whether that is neighborhood-commercial, or general-commercial. What they are trying to establish the type and level of activity that took place on the site at the time zoning took effect in December 1973. In consideration of all that has occurred since as well, but the key is at the time zoning took effect in 1973.
Chairman Trabue wanted to ask questions of the people who testified earlier.
He asked Mr. and Mrs. Cook that in Mrs. Jenkin’s testimony several years ago (the past 5-6 yrs ago) that the store actually closed at 6:00 p.m. He asked if they had any recollection of the store hours? Ms. Cook said it did close at 6. Mr. Cook said that when Irene McGlasson ran it, it opened at 6 a.m. and closed at 6 p.m.
He asked Mr. and Mrs. Baker the same question. Mr. Baker said when he first moved up there, "he opened at 6 and closed at 6". Ralph Murry then bought it from her and he opened at 6 and closed it at 6." Then Betty Lockwood had it and he thought it opened at 6 and closed at 6." Mr. Baker said, just this last bunch has stayed open half the night till 2 or 3 o’clock and does not open until 8 or 9 o’clock.
Chairman Trabue said that addressed the times for him.
Chairman Trabue asked Scott Cason how long he had lived in the area? Mr. Casson said he had lived in the area 3-4 yrs. He said he was originally from the Columbia area.
Chairman Trabue asked Mr. Anderton how long had he lived in the area? Mr. Anderton said 4 yrs. Chairman Trabue asked his address. Mr. Anderton advised 20950 Old Hwy 63 N, about five miles north of the area. Scott Cason advised his address is 7201 W Hwy. 124, Harrisburg, about 6-7 miles west from the area.
Member Rootes wanted to give a general comment about neighborhood stores, corner groceries. She lives in Columbia but she is very sympathetic to the need in communities for places for people to come together, meet and walk, carry out their civil community life. There also has to be a place that is economically feasible. Times have changed and the little grocery store with the gas pumps that is open from 6 in the morning until 6 at night probably would not survive as an economic enterprise. She did not think the clock could be turned back and make the Pinnacle Hill Store into what it was 30 to 40 years ago. She wanted to look for something to serve the community purpose and also be economically viable for the operator or else it will close. It will be up to the community to come to a balance of what serves the community and does not destruct the community. Tonight there are some legal constraints on the kind of occupancy permit that can be offered tonight. If the community feels that something else is needed and desirable they can support the owners/operators maybe in looking for some additional zoning. If it turns out that is what the community wants in a location.
Chairman Trabue asked Mr. Anderton about any privacy fence details. Mr. Anderton said a fence would cut down on noise from parking area. It would be on the south corner of the Pinnacle Hill building, probably 30’ to 40’ ft down to Flint Hills School Road. It is an area where there is a lot of parking. He thought it was necessary to have a fence there. Mr. Anderton said that Mr. Cook’s home is almost built into the Pinnacle Hill’s store.
Member Rootes stated she thought an 8’ ft high fence seemed excessive. She did not think an 8’ ft high fence was necessary to shield cars. Mr. Anderton spoke up and said, "six foot".
Member Bossaller asked Mr. and Mrs. Cook the reason they are selling their house? Mr. Cook said they built a new home. They have had a farm 25-30 years and finally built a house on the farm. Mrs. Cook said the fence they are talking about would be right in front of the house. They would not be able to see out, it would block their house in. Mr. Cook added that they never spoke about the cars being parked where they were. He did not want them (the vehicles) down in his yard. He said Mr. Anderton had in the past parked, "a whole bunch of junk cars there at one time".
Chairman Trabue wanted to echo Member Rootes comments about the neighborhood stores. He did not believe anyone came forward this evening and said they did not want a neighborhood store. In fact, if people in his neighborhood had come forward, they probably would say they would like to have one. He believed that neighborhood stores are important.
Chairman Trabue said the process this evening helped the Board to learn all of the details about the history of the property since Planning and Zoning took effect in December 1973. He believed that based on the testimony that he heard it has been a grocery and deli for many, many years. Based on that he is in favor of issuing a
Certificate of Occupancy for non-conforming use for a neighborhood commercial zoning district. But he wanted to echo some of the other comments. That he did not believe a bar or tavern is appropriate. If the applicants want to rezone the property so it could be an allowed use with a Conditional Use Permit, they can make such an application to the Planning and Zoning Commission. But under the limitations this evening, he did not believe it would be an appropriate action for the Board.
Member Rootes asked if Chairman Trabue was against the restaurant part or serving beer? Chairman Trabue stated no, the grocery and deli are an allowed use within in the neighborhood commercial. The restaurant and grocery being allowed, the bar is not. The zoning regulations he said do not specifically address bands. So this board makes the decision which zoning district by their actions this evening where bands and entertainment districts will fall in. He believed in his review of the ordinances that is a General Commercial use and did not believe that was the use that was in effect at this location in 1973. The comments about the hours of operation, his questions were to find out what the history was. He would not be an advocate of that store closing at 6 o’clock because times have changed. But that also established a level of activity in the past.
Member Keil said she thought the reason that was brought up was because those hours were before the music started. When it is opened until 11 o’clock there is usually something else going on and not just groceries being sold.
Member Bossaller asked was there an issue about used vehicles being sold out front or junk cars. Chairman Trabue said cars would make it a General Commercial and not part of this issue. Mr. Yonke spoke up and said the office did have a complaint about it earlier and had taken care of the matter.
Member Bossaller made and Member Keil seconded a motion to authorize issuance of Certificate of Occupancy for the Pinnacle Hill Store for a non-conforming use being a neighborhood-commercial district. And furthermore the Board has determined that live Bands fall in the General-Commercial District and therefore would not be appropriate under our motion.
Member Rootes asked about a jukebox, was it appropriate? Discussion followed. Chairman Trabue offered for clarification to the motion that contracted bookings, D J’s and/or live performances were in the General-Commercial District.
Member Rootes asked for clarification for if someone comes and picks a guitar like they used to, would that be allowed? Chairman Trabue said they could not regulate every activity that every person does. There has to be a certain degree of reasonableness and accountability.
Larry Bossaller yes Norma Keil yes
Tom Trabue yes Linda Rootes yes
Motion to authorize issuance of Certificate Of Occupancy was unanimous. 4 yes
Director Shawver gave staff report stating New Providence Baptist Church is located on Rte E, two- (2) miles northwest of Columbia. The zoning is A-2 (Agriculture) as is all the surrounding property. There is a church located on the property, which is interested in building an addition. The applicants desire to build closer to the property line that regulations will allow.
Copies of their survey have been passed out. They would like to build into the side setback on the north side of the property line. A-2 zoning has a minimum setback of 15’ ft and they want to construct into that area.
Pastor Jesse Barnhart, 605 Dogwood Court, Ashland and Jim Doyle, Trustee, 5141 N Yeager Rd. Columbia, addressed the Board.
Rev. Barnhart said the church has been there a long time. In that time, graves have been put in on two sides of the church, Rte E is on one side and the 4th side has a driveway to another house. They are very limited on what they can do. He has been the pastor there for three (3) years and the congregation has grown. When they have a dinner on the grounds, they have to pick up the pews and move them out of the way to sit down and eat. It is as hard on the pews as it is on them.
Last year they started thinking about an addition. Because of the age of the building and trying to match the roofline it may be easier to connect a modular building with a breezeway or hallway between. With a 15’ side setback it would limit them on size and the type of addition. The church contracted a surveyor. At one time the church had swapped some land which is shown in blue on the survey. The request for the variance will not be as much as they originally thought. The side of the road (drive) from the fence is approximately nine (9) feet all the way down through there. They do not intend to be any closer than four (4) feet on the other side of the fence. He realized that was not the property line but they will be away from the road. The building will be of a modular but did not want it looking like a mobile home type. Financially, they are still a small church and this would be easier for them to afford.
Rev. Barnhart asked the members of the church to stand that came to the meeting in support of the request. He said he could promise there would be no beer drinking, no loud bands and definitely no urinating outside.
Jim Doyle said, "Again, the Rev. Jesse said it all".
Open to the public. Ones in favor of the request.
Director Shawver gave a letter received from Peggy Northup, property owner to the west that uses the easement to access her property stating she was in favor of the church addition
Open to ones in opposition to the request.
John Strawn, 4741 N Rte E, Columbia addressed the Board. He said his property adjoins the church property on the NW corner. He stated he did not have a direct opposition to the addition. He did to the modular home. He thought it would take away from the character of the church that has been there for so many years. He had ancestors buried there. A conventional type structure would be more pleasing to the neighborhood and look much better.
His main problem was with the survey. He had two surveys, one he had done in 1993 and he received a copy of the recent church’s survey. He said the surveys contradicted each other.
Mr. Strawn did not see how a decision could be made on the setback not knowing exactly where the property lines are. A 5-degree variance could make as much as 25’ to 30’ feet difference in a 355’ distance being the property line. He talked with his surveyor, and he talked to Mr. Nathan Kohl Surveyor. Naturally they both think they are both right. The way Nathan’s survey and design has their stakes set, at the top of the survey – he is not showing a power pole. He has a stake set approximately 10 ft. to the west of the power pole and designates it as the NW property line of the church. This will cross the driveway or the easement drive back to Ms. Northup’s house.
He did not see how this could be; he wanted more time to look things over as an adjoining landowner. He wanted to save a land dispute down the road between the church and himself. He said he was like the church, he did not want to give up any land if he did not have to.
Chairman Trabue asked where his property was located. Mr. Strawn showed him on the map it was NW on the survey.
Bill Asbury, 4547 N Rte E, Columbia came forward, he said he was south of the cemetery and of the church. He was not against the addition but did not want to see the trailer placed. He wanted to see them have an addition.
Harry Kirby, 9752 State Road B, Auxvasse came forward. He said he would not have objection to an addition to the church but he thought it would devalue the properties around there with a modular or mobile addition. He said his property by the church is rental property. He would be opposed to something coming that close to the edge of the property.
Jesse Barnhart, Pastor re-addressed the questions. He said he did send an additional note to Planning and Zoning thinking they need more of a distance on the variance. Then original variance was to 4’ based on the property line might be the fence. Since the survey the distance to the fence will only be based on the survey.
The existing iron bar in the drive way that is to be the NE corner of the property is an existing corner base on the survey done in 1971 or 1972 when the property was switched. He thought a surveyor could identify that and use it as the basis for his survey to shoot a line 5 degrees. Five degrees over 300 ft is a difference. But what they are talking about at the church it is not that much of a difference on the property line. It is a difference of about three to four (3 to 4) feet. As far as taking away from the character of the church, it is not a mobile home or a trailer. It is a modular, prefab that is made somewhere else and brought in. There will be six (6") inch walls, with white siding that they are trying to match the church. The expense and problems tapping into a 100-year-old building (not knowing what they will find) may be a strain. Would they have to bring all of the electrical, plumbing etc. up to current code. Based on their financial status this was feasible and had nowhere else to go with it.
It is an old building and has history to it. They do not want to devalue any property. He felt they have improved the property of the church with the amount of work they have done with the cemetery, and upkeep of the grounds.
Mr. Jim Doyle stated that the additions would be placed according to the County Regulations. The house right across the street would be looking right at it. He stated that property owner sent in a letter stating that that they were in favor of the request. Mr. Doyle apologized; the letter received was not from that party.
Closed to public hearing.
Member Bossaller stated he was bothered because of the two different surveys. He would like to resolve that problem before deciding or before making the variance determination. He thought it was serious.
Chairman Trabue agreed that the issue needed to be resolved. In a review of the two surveys, they use the same distances. He felt it could be resolved. Chairman Trabue asked the church that if the issue was tabled until June’s meeting, would it put them into a bad situation? Pastor Barnhart said time was money but they had not purchased the addition. Mr. Doyle said that regardless where the property line is, they would not be close to it. They would not go beyond the fence. They were staying on this side of the fence by at least four (4’) feet if not more. He asked why it had to be tabled when the property line can be settled and the addition has nothing to do to where it is setting.
Chairman Trabue asked how far away from the existing church structure they would be? Pastor Barnhart said if they went with a 24’ wide structure, they would stay four (4’) away from the fence and four (4’) feet away from the building. Because the addition is within 10 feet from the church, it falls into an attached structure.
Mr. Doyle said he did not think it made any difference of where the line was. As long as they know they are on the inside line. This other can be settled later.
Pastor Barnhart said the issue of the variance as originally requested be four (4’) feet based on their thought that the fence was the property line. If the line is the fence, they would want to come within 4 foot, if it were the other line then it would be more like eight (8’) feet.
Mr. Doyle said they could go to a 24 x 30 and pay for it. If they do anything different they will have to borrow money on it and they did not want to do that. He called three (3) different places to get estimates. The 24 x 30 is standard size. They wanted six (6") inch walls, well insulated, white siding, and a roof to match the roof on the church.
Member Bossaller asked Director Shawver about the regulations on an existing building and then wanting to add to it. Director Shawver said they were correct about the building code. If an addition is made to the structure it would require certain upgrades to the original structure. The extent of that would be determined based on what they were doing. Since we have not had a specific proposal that has not been addressed. Purchasing a modular building and locating it on the property would not require the church to be upgraded.
Member Keil stated that the Board did not have a say if the church wanted to place a modular vs. a frame built structure on the property. Director Shawver said that was correct. He said their application was because they wanted to build closer to the property line than the Zoning Regulations would allow.
Chairman Trabue said he had changed his mind a little bit as he reviewed the surveys. He would be the first one to grant the variance to adjust the setback. He was concerned about the survey in that the survey Mr. Strawn has does show the property line crossing the fence as it goes back east to west. He was concerned that it could be two (2’) feet instead of just to the fence. The fence may not actually be the property line. He believed the surveyors could resolve the issue. He would feel more comfortable in tabling this issue. He did not want to make a mistake.
Pastor Barnhart, asked if this item was tabled, can they be first on the agenda?
Member Rootes added that the church building was a handsome building and she is impressed with its history. She thought it wold be a real disaster to rip into the building for an addition.
Member Keil made and Member Bossaller seconded motion to table the variance request by New Providence Baptist Church for a variance from the required side property setback of 15 feet on property located at 4641 N Rte E., Columbia until June 24, 1999 meeting.
By acclamation motion was approved.
Being no further business, meeting was adjourned at 9:32 p.m.
M. Noel Boyt
Minutes approved 24th, day of June, 1999.