Board of Adjustment - Regular Meeting

Good evening to everyone up here on the podium. Let's call the City of Fenton Board of Adjustment meeting and workshop session for June 16th, 2026 to order. Let's start with having the Pledge of Allegiance. Please join me. Do we have an Oath of Office? Oh! He did, but I think you have to do it again. Okay. Okay.

Take first class. Do solid square and a third. And I possess the qualifications described by law. I serve as the board of the member of the adjustment. And I support the Constitution of the United States and the state of Missouri, the provisions of state statutes affecting cities of the fourth class, and the ordinances of the city of Fenton. I shall faithfully conduct myself as a member of the Board of Adjustment during the term ending May 2031 and respect the confidences and information that come within my possession.

Oh, congratulations, Chris. Another six years for you. Okay, I need a roll call, please.

Chairperson Siebert?

Here.

Member Phillips?

Here.

Member Kloss? Member Phillips-Pigg? Here. Vice Chairperson Mooney is absent. We have four for quorum.

Okay, great. All right, next thing on our agenda is, well, I probably should have interviewed Erin and Amy, but we all know everybody up here, so we're okay. Election of chairpersons and vice chairperson. Does anybody wish to fill either one of these positions, or can I have someone recommended? Fine. I would like to nominate Chris Claus for chairperson. Do I need a second or we just do a vote? I need a second for that.

Second.

I have a second. Roll call vote, please.

Chairperson Siebert?

Aye.

Member Phillips-Pigg? Aye. Member Phillips?

Aye.

Member Claus?

I get to vote for myself. You have to.

OK, aye. Motion approved.

All right, we have a new chairperson. Now, can I have a nomination for vice chairperson? George, I knew you wanted to do it last time. Vice chair? I guess I will. I would like to nominate George Phillips as vice chairman. May I have a second?

Second.

I have a second. Roll call vote, please.

Chairperson, member Siebert? Aye.

Aye.

Sorry. Member Phillips-Pigg? Aye. Chairperson Kloss? Aye. Member Phillips?

Aye.

Motion approved.

All right. So should we rotate chairs now? No?

I don't know if it's necessary to rotate chairs.

All right, then let's just, can I get approval of our minutes from January 20th, 2026?

I would make a motion if there's not any corrections or any additions that we accept them as written.

Do I have a second? I will second. Roll call vote, please.

Chairperson Kloss? Aye. Member Siebert?

Aye.

Vice Chairperson Phillips? Aye.

Aye.

Member Phillips. Aye. Sorry, I have to get used to.

Okay, as my last motion or my last duty as chairperson, we're going to bring up Ms. Erin Steele to go over some of our rules and regulations. Please.

Do you want to?

You want me to go stand up there or stay here?

Wherever you want to go. What's better for you? You really should ask Chris that question, though.

I do have the quick list.

There.

Okay. I think we're fine with that. Oh, yeah. No one, no one's disapproving. I think we're okay.

A couple asked to be able to listen to it afterwards.

Okay. Oh, gotcha. And these are very particular.

Okay, so we're going to talk about Board of Adjustment and Board of Administrator Review. As I kind of joked about, I did skip the statutory requirements that there has to be five of you, that you have to serve five terms, that there has to be officers, because we didn't know all that because we did that. So we're gonna skip right to powers of the board of adjustment. You are a very powerful board. You are an independent board of the city, and you are the one board that when the ordinance says it has to be this, and there's nothing in the ordinance that says waivers or modifications or way you can reduce that, You are the board that actually can still vary or modify the application of that regulation. If the person coming before you can show practical difficulties or unnecessary hardships, but you are still having to carry out the strict letter of the ordinance, which means to the best of your intent, you need. to kind of look and see what was the idea, what was the purpose behind that ordinance, and whether or not granting that variance can still be within the spirit of that ordinance. So for example, if you have a requirement that a fence can only be five feet tall, and that you have a property that actually has a little low dip, in their property, so they're going to put the fence right there. So from anyone looking at it, because of that dip, it looks like it is only five feet, even though it is six feet and in violation of the ordinance. But you could look and say, because of that weird dip that's only in this property, that's unique to this property, the spirit of the ordinance is still met, because it looks like it's a five foot fence. Therefore, you could say, it meets the spirit. We're going to grant that practical difficulty. So that's kind of looking at the intent and whether the intent can still be met. Another thing is land buffer setbacks. Sometimes you can still get the intent of the ordinance with certain conditions of landscaping or something like that to still get the purpose. And no matter what, you are not really allowed to grant a variance unless there is competent and substantial evidence to support that variance. And that is the applicant having to put on the competent and substantial evidence. So an applicant just coming up and saying, I want it, is not enough. They actually put on evidence to show what is unique about their property. So why our meetings are so formal and important and why a chairperson really does have to run the meeting, everything goes through the chairperson, they have to lead the discussion, is that everything has to be on the record, is a court will not take judicial notice of anything. So the chairperson always has, we always have to make sure, I think now it's the attorney's statements, but we always make sure that we say our ordinance is here, available, and made part of the record, because if you don't put the ordinance within in the record, the court is going to return your variance and make you do it all over again because the court will not take judicial note of the ordinance. So they have nothing to review to see whether or not what you even varied for it. And so we always had those statements to make sure that the notices were within the record because we also have to prove to the court that we follow the procedures and have the proper notice. We also have the roll call. So again, we can prove we have enough people for a quorum. The reason that four is really in your mind is because there is five of us and four makes quorum, but it takes four of you to do anything. So we always teach that if there is only four of you, or it's actually three, but if there's only four of you to really ask the applicant, do you want to go forward? Or would you like a continuation where you might be able to present to five of us? Because with four, you have to have a unanimous vote. If there was five of you, there can actually be one nay vote, and the variants can still be approved. So sometimes they might want that. And it is good to put on the record to give them that opportunity. Because you don't want, after the fact, for you to deny that variance, because maybe they did get one no vote, and they say, you didn't tell me that, and then you have to... So it's best to always just put on the record. I've only had, I think, one applicant ever say, yes, I want to just move forward and get it over with. And it's always helpful to also explain the court reporter's role. As we know, many residents have never been in a Board of Adjustment meeting, so they are not used to, or even in a courtroom. And a Board of Adjustment meeting is kind of like a quasi-trial, so it's similar to a courtroom. So they're not that familiar with it, that they're going to have to give their oath, that they can't talk over each other, that everything is through the chair. They can't turn and start interrogating the actual applicant. They have to ask their question to the chair, and the chair has to decide whether or not they're going to ask that question to the applicant or any other member, of course. But so it's good to kind of explain that because any court reporter gets very crappy when people talk over each other. And so that helps kind of put that... So as I said, it really is like a trial. Everything has to be on the record. So we always put exhibits into the record. We put an ordinance. We put the application. We put the denial letter. We put the site plan when it's required. We have to put all those evidence. There is sworn testimony. Even staff has to be sworn so that it can be... considered into a court of law. We do, there is such a thing as hearsay in a court of law, which means it's someone else's statement used for the truth. A lot of people You don't get many attorneys in here, but attorneys are allowed to come and present. And a lot of times they might object and say, oh, that staff report has hearsay in it. Probably does. We always recommend for administrative hearings, whether it's the administrative review board that we'll talk about that you guys also are as just being on the board of adjustment, or if it's just here that you always want to... Sorry, my computer keeps... ... ... ... So you want to make sure that you have that for the record. Stick to the facts. You also have residents that will come and they will want to also say whatever they want. You will want to say them. So as chair, you're going to want to let them come and say what they want. You're going to want to let attorneys say what they ever want. If someone objects to evidence, what you want to say is I'm going to take that into evidence and I will give it the weight it deserves. Because technically the chair is supposed to rule on whether or not evidence should be accepted. That is pretty much very difficult for sometimes even judges to do correctly. So for any of these administrative hearings, administrative board, board of adjustment, we recommend you allow anyone to kind of say what they want to say. And if someone ever objects to evidence, say, I hear your objection. We're going to take it and give it the way it deserves and be done with that. And so then you don't get any kind of argument of you shouldn't have let something in and then let the people. The reason when I say stick to the facts, and I mean, if you, then it's the chair's job to kind of, when the, if the audience, you know, for some variances that are controversial, you'll get audiences, if they come and start, you know, talking about other things, it's kind of your, the chair's responsibility to then kind of summarize, okay, well, To be clear, this request is to vary the setback. How does that actually affect your property? And kind of bring the person back to. Sometimes it's very hard to tell if the person is in favor or against the variance or how it will affect them. get a little off. So don't be scared to kind of bring back. It's also your job to ask questions. You can ask a simple question of what is your practical difficulty and see what they say. Alternatives, you know, what is there? Have you tried this? Can you do this? Those kind of things. Because again, it is their burden to prove that it is a practical difficulty and there's substantial evidence on that. So you want to, especially if you're inclined to grant the variance, you want to kind of get some of those evidence if you can on the record, not the person just saying, I want it, there's no objection. And again, remember, you are making the record. So as we'll talk about, you can go and visit the site. That's perfectly fine. A lot of times that is very helpful to do. But you cannot talk to the applicant when you're there because everything has to be on the record. And so if you have a conversation with the applicant, not only could that be considered ex parte, that could also, it's not on the record. And so it could be the reason you're actually granting that variance or denying the variance. But if you don't put it on the record, it's not something Like, it doesn't exist. It's not something you can rely on. So you'll want to say, well, I went and looked at the property, and while the plans don't show, it really actually is a really steep dip when you're down there. you know, like that of describing what you saw and why it might be a practical difficulty or, you know, I drove that neighborhood and while I know you said you have that, you know, steep tip, so does every single neighborhood within your property or within your neighborhood. So how is that unique? You can say that and put that on the record as well. Amy takes care of most of this, but we do have what kind of the suggested evidence to bring to meeting, again, because there is no judicial notice. Do you have a question? Okay. So you'll want to bring the zoning ordinance, because that is what they're usually seeking a variance from, building code if it's applicable, the application, again, the letter for denial, site plan, building or elevations plans. Photos or depictions of the area is really important if you need that to show, but a lot of times the applicant, again, because it's their burden, they should be the ones to do this, but if it's, the city can sometimes use photos to kind of show you what the variance really looks like or shows it more. Copies of the public notice to prove that you have complied with the law, yes. Well, I mean, you can take photos from the public way, obviously, which is where you should be seeing it from because you can always do that. But I mean, I obviously wouldn't go on someone's property to do that or anything like that. What? I would still be careful. I mean, I think then you can if they give you permission, but then you have to be careful of not to have the conversation and say, you know, I'm going to bring these, if it's okay, can I take pictures because I'm going to bring them to the hearing. I mean, I would, yes, I definitely would because you are using it as, I mean, it would be used as evidence. So you would definitely want to get permission before you would do that.

And that's if you're taking it on their property. If you're taking it from the street, then you, that's.

That's a public area. Yeah, yeah, that's a public area. But in a lot of this case, I mean, then I would make sure you work with Amy because having members introducing evidence is a little odd. Usually it would, because you guys aren't under oath, you are the judges. So usually with pictures like that, you would want to kind of work with staff and say, hey, you know, can we maybe get those in if we need them and kind of work with staff.

You are the judges.

And then if there is any correspondence from the applicant, we always kind of put that in because a lot of times I'll be explaining why they want the variance or something like that. So what can you actually decide? The middle is a variance. That's what we talk about most of the time is that is 99.9% of what you see. That is, we'll talk about the two differences, but that is when someone is asking to vary or modify your code and not have the regulations applied to it. Appeals is the very less common, but we've had a couple over the years where it is basically alleged that Amy made a mistake in her interpretation or application of the code. And most common this will come in if someone is looking at our very specific definitions for uses. We have very specific definitions of the uses allowed within our code. And they'll say, well, I think I fall within this definition. And Amy was like, I don't think you do because of this. And they'll say, well, I think you're wrong. Okay. So then the appeal comes before you. She's making a final decision that it's a use that does not meet our code and therefore is denying that use. So then they have the right, if they want to, to come before you and put on evidence on why they think that interpretation of the code is wrong and why they think they are right. It's still a substantial, competent evidence standard. You still need four to overturn Amy's decision, but it's not looking at practical difficulties. It more is looking at the evidence they put on and the evidence the city will put on of why they made their determination, why they didn't think it was this or why they did. And then it is your job to determine which side had more competent substantial evidence. So that one is a little more difficult, but it is very more akin to your Board of Appeals rule, which is why you guys are the Board of Appeals. And sometimes you will see someone go for both. They'll say, okay, well, I think Amy's wrong that this is offense. I don't think it meets the definition of offense, and therefore it can be whatever it wants. But if you think I'm wrong on that, then I also have a practical difficulty, so I should therefore be able to have my fence where it is. So you can see both. Sometimes an applicant will do both of those. And you get to hear both and decide. That doesn't happen too often, but they could do that. And then any other matters that the board decides to refer to you, mostly dealing with others. As of now, luckily, you don't have any others. So as I said, the appeals has the authority. Here, this is the alleged error. It still requires forward substantial competence. The rules about granting variances are that they should be exercised sparingly and only under exceptional circumstances. So when you look up exceptional, it is something that is special, unique, So it really is looking at something that is not routine, but even then it really is a heightened standard because it can only be for severe interference with a landowner's ability to use land. And in case that wasn't clear enough, they add the mere inconvenience is not enough. So if you're looking at, you know, severe is describing something that is intensely bad if you look up the definition of what severe means. And so we're looking at, you know, something that is intensely bad, something that is very rare. So it really is a high standard for someone to meet in order to get a granting of a variance because they're saying that all is still mixed and not only is it rare, but it's probably rare because you're still supposed to carry out the spirit and intent of the ordinance. And so it is supposed to be kind of a severe interference in order to go away from that spirit and intent of the author. So as I said, they have to prove either a practical difficulty or an unnecessary hardship depending which variants they're seeking. The hardship or practical difficulty does need to be different than something suffered throughout the entire neighborhood. If there is an entire neighborhood that is having the exact same thing where they really can't add on to their house because they were all subject to a builder that built right on the setback lines and now they can't add on to the house. And someone comes and starts saying they want setbacks because they can't build onto their property unless they violate their setback. But that is something that is there unique to the entire neighborhood or entire zone. So that is something that goes to the Board of Adjustment because you can't prove that it is unique to you. It's unique to an entire area, which should be a code change. not an individual property by property.

Yeah. So I believe there was an instance several years ago where they built a house and it was wrong. And the house was already built. That would be a practical difficulty? It could be, yeah. Okay. Yeah. Okay. Okay. So OK, so we have a instance where somebody wants to build a deck or a garage or something. And it's outside of our ordinance. And there are things that they could do to make it within the ordinance, but because they don't like it, Is that a practical difficulty?

Practical difficulty, we'll see in a minute, is very, very, in a way, discretion towards you guys. There is no specific definition of practical difficulty, but there's various factors that you can consider. So there are some boards in some cities that aesthetics is something that is very important. to that city. So a practical difficulty could sometimes be that's like, yeah, it could fit there, but that is just atrocious. We would never want that. It can fit there and it's a de minimis. We're going to accept it. Others, a court of law would say, if you say no, a court of law would absolutely support no. Because if you have alternatives, by definition, you don't meet the test. But because there's discretion within practical difficulties, sometimes the board feels that stress. Like there was one example where for some reason within the code, you could on big lots, you could have numerous different accessory structures. There wasn't a limit as long as you didn't violate the green space. Well, someone came and they wanted to put one bigger one in and it looked beautiful. Otherwise they could do two smaller ones that they just bought from Amazon. that didn't look as nice. And you could see the pull and the torn of, well, they can do two that equal the same size versus one, but that does violate code. And so that's why there is, I think there is some discretion in that. And I think you could be supported either way of saying, no, the code is a code. We don't want, they don't want, they still don't want one massive accessory structure, not an accessory structure then, you know. Those kind of things are actually, I mean, it seems less intrusive to the green space and to the environment and to the neighbors to have one structure that no one's going to see than the two, three that people are going to see. That kind of thing. So unfortunately with you guys, facts are really important to know, and you are allowed to consider the effect that it would have on others. And so that kind of gets right into this point. If it's unique, there is not a precedential value. They're really looking, you know, their case, you always worry about, well, if we grant this variance, do we then have to grant it to the next person that comes in? And it's like as long as that property is unique and there isn't something that the entire neighborhood has that same condition, then you don't have to worry about it. But if you grant someone a variance because they won a deck, but their property was built to the setback, so they can't build a deck, so they won a deck, and there's nothing unique about that property except they won a deck and it was built to the setback, but every single house was built to the setback, then you do create the trouble of when the next person comes in, well, my neighbor got it. and that kind of thing, and there's nothing unique about that. So that's why you always, but if you're following and there really is unique property, there is no precedential effect. So that's why relevant facts are always important, and that's why going to the site sometimes is very important, because you can say, well, actually I saw on this site this condition, this condition, and this condition, so it's not only that it's a corner lot, but it actually drops down at the back, so they really don't have developer lot, whereas the other, it kind of distinguished that so that you're making sure you're not having that precedential effect in putting on the record why this is unique from the other properties. So the city code does put a couple factors that you have to require when granting any variance. So it does have to not constitute a change in the district map. You can't impair the adequate supply of light and air to the adjacent properties. It can't increase congestion in public streets or increase the danger of fire. And it can diminish or impair the public health, safety, comfort, mores, and welfare of the city. The last one is probably the one that's relevant to all variances, some of them.

What do you consider the morals? For variances, I'm not really sure.

There would more be within the, probably within the use variance, which your factors kind of already throw out because it can't constitute a change in the distribution. But yeah, I mean, if it can, I think putting a use variance could get in the way of morals if you're allowing a use that isn't allowed in that distribution. Not so much with expenses and setbacks and such. And then, as I said, there are two types of variances. The use variances you almost never, ever see. I'm not even sure I've ever seen a case that actually grants a use variance. A use variance is allowing a use that is otherwise prohibited in the code. Easy example, allowing a commercial use within a residential zone. A use must be supported by unnecessary hardships. And what that basically means is the property cannot be used for any other permitted use within the zone. So you can imagine why no one gets a use variance, because it's almost impossible to imagine a time where you cannot use your land for any allowable use. and that's why you need another use that's not allowed. Sometimes you cannot use it because of the size of it, and then they're coming for you for the other variance. But the use variance is really saying, I wanna use it for a use that's not allowed, and no other use can be used on that property. So that's why you really don't see any use variance issues. It's really, really hard. It has to change the essential character of the area, which again, if it's a use not allowed in the district, It almost always will. So really, so we teach them, but they're there, but they're pretty much never granted. So then area variance is pretty much what every city gets all the time. This is really asking for, it's a use that it's allowed, but I'm not using it correctly. So I have a too tall of a fence, or I want to have my building that's allowed, but I want to have it too close to the property line. I don't want to do my landscape buffer. Those kinds of things within the site that I'm not meeting. So I'm allowed to do what I'm doing, I'm just not doing it quite correctly on the lot the way it's It is still, it's less vigorous than an essay hardship, which you can't really meet, but practical difficulties is still a very high standard. But as I said, there is no all-inclusive definition of what practical difficulties are. But it is less than unnecessary hardship. So if you can avoid saying hardship, that's nice. It's funny because that's what comes off of everyone's mouth naturally, hardship. That is not the correct standard for pretty much the most common variance. There was a court case that actually remanded the case because during the transcript, the Board of Adjustments said hardship a lot when it was actually a practical difficulty standard. There was a case after that that relaxed that a little bit. But since that case, we've always kind of tested, if you can, get hardship out. We draft the findings of fact and have the chair sign them based on the evidence presented, which you give that authority through your code for the chair to do. So we always cover that in there. But it's something to kind of keep in mind. So some of the things you can consider is how substantial is the variance versus the requirement. Now that doesn't actually mean that you have to grant a six inch setback. I've actually seen a board decline a variance for a six inch encroachment on a setback before just because their presentation was really no evidence whatsoever to support it besides our real estate agent told us to. Not the best set of evidence, but that is something to look at. Normally, if someone is asking for a six-inch encroachment, that's something the Board of Adjustment would kind of consider and hear them out and see why, versus a six-foot encroachment. If it's a six-inch encroachment, it is likely it is still within the spirit of the ordinance. If you have a 50-foot setback, no one is probably going to notice a six-inch setback. Encroachment. Will someone notice a six foot? Yes, possibly. That's more substantial. And so you're kind of looking at that. And I think we've seen that before. You're asking for a 60% reduction. That's a big reduction. So that's something that you can look at. effect on the available government facilities, whether or not granting this variance is going to be a substantial change in the character of the neighborhood or whether it will not. I think with the buffer and landscape areas, you guys get a lot of pressure that with a lot of the ones that are wanting variances, their neighbors have been with the city for a long time, so they don't have them. So they now want a variance because they want to be like them. So it's hard to say, well, it wouldn't really change the character because... Not other cities have it, but that by no means means you have to, because of course you still need to, they still need to put competent evidence to say why they can't meet it as well. Because when a city puts in a requirement, that's just how it works. The people who were there before don't have to comply with it. But if you don't start somewhere, they actually know we want to start seeing those landscape buffers. You'll never actually get there. But that is something that I know everyone struggles with, with those new ones, because it is hard to say it's a change because most of them don't have them yet. The big one is, are there any other alternatives? If you can do what you want to do without violating the code, I will take that denial to court every single day. Because if you can do it, you really don't have a practical difficulty. You just don't want to do it that way. Unless they can put on tons of evidence of why that alternative is horrible, as we discussed, the factors. If it results in something totally worse, well, maybe that's not an alternative we actually want, even though it's allowed by code. That's where some of the discretion and substantial change comes in. But knowing if there is an alternative, generally that can't. A couple of the other ones, whether or not it's going to affect the adjoining properties owners, that's always something to look at because whether they are at your board or not, they can sue you if you grant a variance that they later find out about within 30 days and say, that's going to be detrimental to me. I do not think that should be granted. So it's always good to think about what effect this could have on the neighbors, whether they're actually here or not. And then economic hardships. But it generally is not to the nature of the person, but it's to the nature of the property. And so that's kind of hard to understand, but it's like if, for example, if there was an alternative location, but in order to do that alternative location, they have to do tons of site work to get it up to grade and all of that. That could be an economic condition that you could consider because that's related to the property. But if it's just that, well, if I have to move it, I'm going to, I then am going to have to then make it bigger for it to actually house what I need, and it's more to them that the expense, and it's not related to the property, you're not allowed to consider it. I know it's very confusing. So a lot, I do know some boards that just say because of that, they just won't consider economic hardships at all. And because, again, with it being the discretion for you and no set factors, you are allowed to set your factors or allowed to say, you know, we're not going to consider economic hardships. Technically, your board is allowed to do that and set your rules that way. Anything that's not completely contrary to law, then that would not be. And then another one that they do like to look into is did the property owner cause the difficulty or hardship or know that they were going to need a variance coming in? So if I know I'm going to need a variance, but I buy the property anyway, and then come and ask you for a variance and say, well, you know, I bought the property... The court's like, you knew that going in. That is not a practical difficulty that the board, that really should become the city's property. Now, if it's something they didn't know about, that's different, but that is something that courts have kind of held against property owners, that you cannot go in knowing. So like that, where even though it was a six-inch variance because they said my real estate agent told me I'd get it, Not the right thing to say, because that proved they bought it just thinking they would get it and knowing no big deal. And that's a factor.

Is there any providence to should have known?

I mean, I think there is some, certainly. I think if they didn't know and they didn't cause it or anything, it's hard to hold it against them, but at the same time, that doesn't mean they meet the other factors.

So if they bought a property and it has an easement in it or a pipe or something in it that one would think should have been known, they can't come and say, well, I can't do this because...

Yeah, I mean, that should, when it's a public record and all that, yeah. So after you hear all the evidence, it is important to actually close public comment. You guys are lucky you don't have all that much public comment on Board of Adjustment, but it's always good when you do have it to actually have a specific, we're now closing public comment, it is now time for the board to discuss to kind of You do have a lot of public, sometimes when you discuss, they start wanting to talk again. Good to have a clear, this is now the board's time to discuss. And discussion is important because, again, it's for the record. So if they just put on tons of evidence and then you say, eh, denied or approved, it's hard for us to actually write the findings of fact in accordance with the hearing for the chair to sign. So it is important that if the applicant says, well, they're there is no alternative and you're on the site, it's like, well, what about the back? It's like, well, I was actually on the site and I think with the back corner and then I know he's saying about that slope, but again, pretty much every property on that side has that slope and actually kind of talk about what they say and whether or not you think that evidence meets the practical difficulty or not. Some will actually have the practical difficulty factors right there so that Okay, well, ask about how, is there a way that it doesn't have to be, I mean, I know you're asking for 10 feet, but could you actually do it five feet? And that looks at the substantial and whether there's alternatives and you can kind of do all that and have that on the record so you can show there were alternatives. It does not have to be long. I'm not saying you need to talk for five minutes at all. I'm just saying kind of to say just a little bit to give us of whether or not. And a lot of that hopefully comes to the questions as well of when you're asking the applicant, was there something else you can do? What do you think your practical difficulty is? And those kind of things that can then, you know, if they say, well, my practical difficulty is, you know, I really need this for, you know, the business and, you know, there's, you can actually say, well, you know, I heard the applicant say this is the hardship, but eh, you know, as they said, and then you're kind of We're budding that, so we have a clear record of it. If you can do that, that's wonderful. If not, again, the testimony will speak for itself. But it is nice to have that discussion if we can, because that has you guys kind of thinking of what is the effect it's going to be on the neighbor. How substantial is this? Are there any alternatives? Give you a hint. When someone is constructing a new building, almost always going to be alternatives. And what they want is almost always going to be what they want, not having to do with the property. Not always, but really look for that when it is a new building. Very much so there are alternatives and their practical difficulty is more not a practical difficulty because it's more to what they want or need, not necessarily having to do with the land. So be careful about that with new construction because that kind of is the I'm that is the hardest for someone to prove practical.

He just said that whether they want our need now need is a totally different ballgame. I know we don't know what the business, obviously a business, not a, not more, more so than residential. We don't know their business. So if someone comes in and says, I need to have a 25,000 square foot building, but the lot would only hold 20,000 square foot because of the zoning and everything. Okay, that's, do we say, okay, you can't have your 25,000 foot building or, you base it on just what the information they tell us? I mean, it's all we can go by.

You're not supposed to go based on the needs of the applicant. So if the applicant is saying, well, I'm like, because we read that, you know, one case where the, they came and they got a variance for a larger storage and their only evidence was that they needed the larger storage was because they had more cars, right? So that had nothing to do with the property. It was the applicant. The applicant had more cars. And so that is more akin to the applicant. So I mean, whether a business needs it or not, in the legal definition, is not going to meet whether they need it or want it. Neither are going to determine whether or not they have a practical difficulty on a new building if they're just saying, I want a building it has to be so it really should be more unique to the property but that is where the you know difficulty comes in and the fair enough fair enough thank you So as I said, we do have to have requirements or findings of fact, and this is where I was kind of giving that new coaching because there is this new case that said that the findings of fact were not good enough if they didn't make sure that they actually addressed factual resolutions. So in this case, there were some disputes of the facts between, I guess, the neighbors and the applicant, and the findings of fact didn't really address those and make decisions because... Or didn't. And they said, well, I mean, they really, if they have conflicting facts, we need the board to pick one. And so on that one, you know, that's if you have one side saying, well, you know, the land is actually really, it doesn't drop off. And the other side, well, no, it does drop off three feet. I've been there. Then it's like, for you, you do have to kind of resolve that conflict. And if you don't know... probably need to continue if we have two facts that are under oath and completely contrary. That does not happen very often. But in this case, it did. And they kind of just ignored it. And the court said, mm-mm, nope. You need to actually resolve those facts in order to fully make your decision. Again, it does not happen very often. So if someone is unhappy with your decision, they do have the right to appeal that decision. As I said, this is a very powerful board in that it doesn't go anywhere else but straight to circuit court if someone files suit. There is no, I guess technically there is a weird reconsideration, but it's kind of a final. They have 30 days to appeal your decision. An appeal to the circuit court will not stay your decision. So if you actually approve a variance and a neighbor sues, technically the owner can go forward with that variance if they so choose. Of course, there's risks that a court would say, no, you shouldn't have approved it, and that's their town, but technically they can move forward if it doesn't stay. If you deny, they can't move forward because there is no permit, but that would be overturned if they still won on an appeal. And the appeal is from the administrative officer to the boards. If when she denies something, it does stay. Everything pauses while you hear a decision.

So who is allowed to appeal?

Really... Anyone who comes and testifies is allowed to appeal. And then anyone who is aggrieved by the decision. So an owner could appeal even if they were not at the decision, if it affects them. So like a neighbor who is going to be affected by a variance you grant is allowed to. But other than that, it does have to be someone who has interest in it. It can't just be, and it can be the board of aldermen as well. So it can be the city, but it has to be someone who has interest in the decision. It can't just be any resident because they didn't like it.

Can they appeal after the fact? What? We give them a variance. And the fence is put up. And then the neighbors have a survey and they find out the fence is on their property. That would be after the fact, correct? At that time, or should they appeal as soon as it was done?

They only have 30 days to appeal from the time you make a decision. I will say you do not have the decision to grant a fence onto someone else's property. You would know someone else's property until somebody did a survey. Well, we would have a survey before we would grant a fence. But a fence is a bad, I use a fence because that's the easiest thing to understand. But for us, it's, yeah, it's a lot on the property line. You don't get fence variances. Well, yeah, but it's a situation I just went through. Yeah. Simple. But yeah, no. And in some ways that's nice for you guys because you do have finality to your decisions. You know that after 30 days, it is final. It's done. No one's going to challenge it.

I'm going to go back to this fence thing. So we approve a six foot fence. And they don't start the project for three months. They start the project, they put up the first panel, six foot tall, the neighbor gets upset. What happened? And they can't appeal. It's pretty much just done.

Yeah, you have very angry people and then the board angry at you because they're getting calls of why in the world did you grant this?

But go to the board of all of them and not us, right?

Yes.

Okay. Just curious, okay.

Yeah, no, yeah, they only have 38. Now, there is, I mean, there is exception if there was no, like if they can prove it was unreasonable for them to know. But that's really hard. It's generally, you were allowed to set a reasonable time and we set 38. Okay, so instead of going over real examples, I went to some old cases and we're gonna go over the facts and decide whether or not a variance should have been granted. Come on, it's fun. Okay, so this one, the petitioner owns a single family home in a corner lot. So we all know that means multiple front yards. They had a pre-existing garage of 26 by 25. And in that garage, they were more than 26 feet from the property line, he said. They now want a new garage that's a little bit bigger, 30 by 30, in a new location that's 15 feet from the property line. So this is a 10-foot variance. And they claim it's due to a sanitary sewer that is preventing them from positioning the proposed garage any closer to that property line. They're saying there is a sanitary sewer line. The public works director actually testifies under oath and says the petitioner would be able to build on it as long as he replaced the pipe with stronger pipe, or he could also move the pipe as well. On appeal, the petitioner, and then they turn around, and as I said, variance was denied. On appeal, the petitioner argued that moving a replacement of the pipe was unreasonable and the variance should not have been granted and it will not result in a substantial change to the neighborhood for that setback. And they were arguing that they had put on evidence that a sanitary sewer was there and they were not able to build on that sanitary sewer But the court held that they didn't actually put on any evidence to contradict the public works testimony that they were able to easily replace the pipe or move it. So I think this case came out a little differently than some would have thought because they were able to prove that there was a sanitary sewer line. Most of us had been taught that it's pretty dangerous to build on a sanitary sewer line, but you can build on it. And so that was the problem, and that's where the substantial evidence really came in of where the court said, we hear you, but it's your burden And you didn't actually put on substantial evidence that you weren't able to move it or that you weren't. And so since the public works director was under oath and under testimony, the board was able to rely on his testimony, and it was denied. And here, I think there was some evidence that it was going to be fairly expensive to remove a sanitary pipe. So an owner constructed a carport over a driveway, costing $8,300. Story as it always goes, they didn't get a building permit, and they built six inches from the property line rather than the required six feet. In seeking the variance, the petitioner claimed it would cost $5,000 to move the structure, and the carport was needed to scrape ice off the windshield. Further, they proved that the land behind the carport dropped six to seven feet, and an easement, again, those pesky easements, run across a level portion of the backyard. So the only viable location besides the current spot would be to use the covered patio behind the house, which also requires destruction of a bunch of walnut trees. the neighbor testified that it would block the sunlight that they needed to sustain their Rose Garden the variance was denied what do you think They actually held in this case that the neighbor's testimony that it would block the sunlight was actually a severe interference with that neighbor's property that they did not have to consider the economic considerations of the $5,000 at all. And that they lost immediately when they admitted that they could go where the covered patio was. So that's where the alternate really came in, and even though they claimed it was going to require destruction of a lot of walnut trees, which many times, I mean, it's different trees, but that is a reason that I get all the time for why variances should be granted is because it's going to require destruction of trees. If you decide that is not a reason, there is a lot of court cases that support that having to destroy trees does not make a practical difference. That does not make an alternative. In other words, that does not make an alternative location not an alternative location, just because they might have to remove some trees.

Last one, and then we'll go into the sunshine stuff.

So housing authority sought four variances. They needed a lot size from 9,000 to 7,500 and the width from 75 to 50 feet, 10 from 25 foot from setback. And they had a corner lot. So it was the exact same setback for both of the front streets. There were public hearings. There was testimony in support of the variance from city staff. actually finding that it meets all criteria for the variance. There was a lot of public testimony for and against the variance. Staff had put in their findings that they did not believe that the lot could be developed upon without a variance. The variance was denied. It was then appealed, of course, that's why we're here. And the board argued on appeal that there was no practical difficulty shown for the lot size and width or setbacks because the only evidence in the record was the staff's opinion and evidence that the lot could not be constructed upon without the variance. The court reviewed the record and the court held that the board was wrong in denying that variance because there was no evidence to contradict staff's finding that the lot could not be built on without variances and that the property itself was unique and met the requirements. And so in here, this court was able to still grab those basically factors from the staff report in the testimony. So competent and substantial evidence can come from all sides, even though it is still the petitioner's burden to meet it, it does not mean that the staff can't accidentally do that for them. But so the point of the case is that competent substantial evidence is both your staff report as Well as you know all the documentation that comes in it is not just the evidence before you so if there's documents that come in that is also something that you rely on and is within the record and So very quickly, Sunshine, you guys are all subject to Sunshine. You have to give 15 days notice. So we, of course, give 24 hours in advance without an issue. We do have to put time, place, and purpose of the meeting. The reason behind that is without good cause, you are not allowed to talk about anything that is not on the agenda. So you want to put your time, place, and the purpose and what your agenda items are so you can make sure you can inform the public of it. Again, Board of Adjustment is pretty easy. It's just the case you're considering. And then the rare instances where we're electing chairman and those kinds of things. Closed session is also generally not allowed. The exception is to have closed communications with the board's attorney. As I remind you every year, I am not your attorney. I am the city attorney. So I don't meet that exception to go into closed session. Also, again, you are a court of law. So you're not really allowed to have private conversations off the record. your conversations have to be on the record. And so that's why, again, you guys have a really hard job because not only are you the only ones that can alter a very, but you can't in the middle of a meeting say, can we go talk real quick? I'm not sure this is going well. You can always continue, however, so keep that in mind. But that is generally everything that you guys do is open and supposed to be on the record and record.

Can you continue if you feel like you need more evidence?

Absolutely. Yeah. Yeah, and you can continue and request they bring it. And then if they don't bring it, well, then they probably didn't meet your substantial and competent evidence requirement. And a lot of times they can see the writing on the wall as well, and they can ask for a continuance as well. I always recommend you give it. Technically, you don't have to. But why give someone an argument that we cut off their due process? Just continue and let it go. But yeah, you can absolutely say, you know, I have questions. Or yeah, I mean, if it's just really controversial and you want to think about it, you can continue it. It is a final kind of decision once you make it. I think that's it. we kind of already talked about excommunication communications but just be careful um what it again what it is is we're on the record and so if you have these conversations one i can't rely on it because it's not on the record but also it can throw out their right to due process because if you have these conversations and you've learned a fact then they don't have the right to hear and either contradict or explain that fact. And in these kind of, you know, where they need due process and they have right to petition you, they have the right to hear that fact that you're relying on and say and contradict it or give their opinion on it. So if you deny them of that right, it can actually throw your whole process off and make you do it. whole thing again because they're going to find that you violated their due process because you relied on something that was outside the record. Same with any kind of reports or anything. That's why I always say, again, if you do get something or if the applicant did talk to you, then you're going to say, I went by the site and the applicant did start talking to me and started saying their reasons. I stopped them and said to bring it to the board so I want to make sure that he says that on the record. just so you can clean up that you're not any ex parte, they have the right to second it.

What about anybody else?

Really should avoid it. Now, Amy, I mean, if you have questions for staff, that is different because she is kind of your technical advisor. And so she can advise you on the questions of, you know, has you had the experiences in the past, all of that stuff. But should you be talking to neighbors and property owners? And no, they need to come to the meeting and testify, unfortunately, which I know no one wants to testify. Okay. But yeah, you shouldn't be like, when I was there, I talked to the neighbor and he said blah, blah, blah, blah, blah. If it happened, then do it, but really try to avoid that. But if it happens and you're there and the neighbor just attacks you and starts saying all these concerns you have, then it would be your obligation to protect this, but then at the meeting say, you know, hey, I do want to say when I was there, the neighbor came and voiced these concerns, so I want you to hear them and I want to give you a chance to respond to them. Can you please do that? And then he has the chance to hear what you heard and contradict it and then you've cleaned up the experience. Which is why it's so much easier just to avoid it.

No, I absolutely agree.

It's not, I know.

It's like thrown upon you.

No, absolutely.

And then what do you do? Walk away from the conversation. You've already heard part of it.

Yeah, and that's why you just say, I got to stop you. This all has to be on the record, but I really encourage you to come because that sounds like something we all want to hear.

Thank you.

Oh, no, I'm here. This is a list. If anyone comes before the Board of Adjustment and they are on this list as your relative and you know it, you have to recuse yourself. So, you know, it is important. This is an individual obligation is, you know, I can't necessarily know all these relatives of yours. But so anytime an application comes in, you do want to kind of double check and make sure you are not related to the applicant. And if so, you will want to just step aside for that case. And then there's just general statute of prohibitions. This doesn't apply as much to you, except obviously it all relates to financial gain. So you cannot, if you... would somehow gain financially from a decision of the Board of Adjustment, you obviously have an obligation to sit out. I mean, I can think of this, I mean, maybe if you're a contractor and your variance would make the project be bigger and therefore you get more money, that could be a conflict. It doesn't come up too much in the Board of Adjustment because being within the neighborhood, living in the neighborhood is not a conflict. Even having, because you live in the neighborhood, you might, you'll come to the meeting with an idea of whether or not you think someone should, is gonna be able to meet the variance standard. That's okay because you're in the neighborhood. You know the city. That's why you're here. But you can't come with your mind made up. So if you already say there is no way a building that size could go on that property, no matter what, don't come because bias will taint the entire case so if someone can prove that one person was biased even if that vote wasn't needed even if it was unanimous vote the whole decision gets thrown out because the court can't be sure how that poisonous apple influenced the rest of the board so the whole thing goes out And so the main thing is you really do have to come with your mind made open. As long as you haven't made a decision, you're allowed to come with education. You're allowed to come with you're familiar with the site and those kind of things, and that does not create a conflict. or a bias. But again, you do have to make sure your mind's made up. If you have a relationship with the applicant, but it's not one of those prohibitories and you're not going to gain money from the transaction, it's still a good idea to announce that relationship because it's that appearance that there is something improper. And if it's your absolute best friend since second grade that you've never said no to, Maybe even though you think your mind's open, maybe it's not open. So those are the kinds of things that's not where the appearance can just create problems for people. So we always teach best practices of if it's an absolute appearance, if you're not needed, just skip that case.

Why do you wanna rule on your best friend's case anyway?

That kind of thing. So that's bias.

I have a question. So how, you've come to the meeting, you've listened to all the things and you're definitely against it. And you, I don't know, I don't wanna say, try to talk the rest of the board members into thinking your way. How is that different than bias?

Well, as long as you didn't make your mind up before you heard the applicant's case.

Okay.

Because as long as you hear the applicant's case and then you're saying, I don't think you have met the burden. I didn't hear any practical difficulty. I don't think... X is a practical difficulty. That's fine because you're saying based on what I heard, it didn't mean it. It's more if you come in and before the applicant even says something says, you know, I looked at the site and there's absolutely no way a variance is granted, is warranted before the applicant even says anything. Okay. That's what's not allowed.

Okay.

is you should, unfortunately with you guys, you don't have that much time. It really is, they give their presentation and then it is your time to discuss and decide whether or not there was competent evidence. So Board of Administrative Review, this is kind of the catch-all that the city has put in place that will grab, that gives the city a second chance before someone could run off to court and sue, basically. So this is when someone has been agreed by decision that isn't already in the purview of Board of Adjustment. So all the zoning goes to Board of Adjustment. But if someone is aggrieved by a decision, you know, that our code enforcement officer made, but more likely our Board of Adjustment makes and our Board of Aldermen makes, excuse me, and like granting an SUP or something like that, before someone could actually run off and go to court, they first have to file a petition with the Board of Administrator Review and tell you why they think that decision is illegal. So they have to put everything, again, on the record... of why they think that decision should be overturned. So it's under Chapter 160 from Board of Adjustment, you automatically are the Board of Reviews, and it's any final decision of a city officer, Board of Aldermen, employee, or commission. And what they do is they have to file a petition within 10 days of a final decision. If they don't do it, that is jurisdictional and is outside of time. They have to file it with the city clerk, and the city clerk with the city attorney will review and determine whether or not it actually meets the requirement. If, for example, it's a zoning decision, we'd say, no, no, that has to go to the different procedures board of adjustment. Board has the authority to stay the final decision if they ask you to. You set the time to review the decision as soon as reasonably practical, so you don't have kind of the set that you do in the Board of Adjustment. But just like the BZA, you're going to provide notice of that hearing. Your hearing is in public, just like the BZA, and it is probably even more like a court of law. Because if someone is going through this process, they are probably pretty serious and hopefully will be represented by counsel. So it would not be odd for you to have two attorneys in this room and actually, for the first time, have cross-examinations. Because technically, you can have that in Board of Adjustment. If Amy wants to testify and say that you... something with a practical difficulty, the applicant has the right to actually question her as well. That doesn't happen very often, but they have that right. With this, it does happen pretty much every review board I've been in. Usually there's an attorney and they're putting on evidence of why they think the decision was illegal. And the reason that is and the reason we do this is because then again, it's on the record. So if it goes all the way through, you are actually a recommending body on this. So that's the one difference from the Board of Adjustment. You are not the final decision making. You actually review everything and then you make a recommendation to the Board of Aldermen. And that gives the Board of Aldermen the chance to decide whether or not they think the decision they made is something that is supportive and they want to go forward with it, or whether they say, no, actually, based on this evidence, you're right, that was not, and reverse it. And then, depending on if the Board says, no, we were right, we're keeping our decision, The next step of that person is to go to circuit court. And they are stuck with the record they made before you. They don't get to now depose everyone and do tons of discovery and all of that. They had to do that in this process. So it makes the review procedure a little faster for the city. And it gives them that second to kind of slow down and really think about the decisions they're making. So that's why they ask you to do. Difficult step of being the administrative board of reviews. Which I like, it's so much better.

Why can't on some of these things, we vote on a variance and say yes, why can't they put limitations on it, like it's good for 10 years or something? Or it's only good for that particular company and if they sell the building to someone else, they hate to see the variance be carried on because a different person or a company might use it for the wrong thing. You have no control over it?

variance is generally run with the land. So there's been, I mean, sometimes when it's particular, you can put the condition, we put it's always related to the site plan. And so that's some, but it generally is supposed to be related to the land. not supposed to be based on the needs of an individual. And so it shouldn't matter if it's X business or B business because it's really the conditions of the land that is causing the variance, not the condition of the user on the land. And that's the issues, and that's, because I actually think, probably variance would be, granted a whole lot more, at least the law would support it, because it is, a lot of times you want to say yes to this one person, because they have all those things that it's not going to get out of control, but what happens in 10 years?

Are you good? Then take over and say, I need a motion for adjournment.

I second.

I need a motion to adjourn first.

I'll make a motion to adjourn.

Okay, all right. Chris and?

Second.

I have a second. Roll call vote, please.

Chairperson Claus?

Aye.

Member Phillips-Figge? Aye. Member Siebert? Aye. Member Phillips? Aye. Motion approved or adjourned.

We're adjourned.