Zoning Board of Appeals - Regular Meeting

Ready? Yep. Good evening. Welcome to the August meeting of the City of Bowling Green Zoning Board of Appeals. Mr. Secretary, will you please call the roll?

Gary Anderson. Here. Jeff Crawford. Here. Tim Emmer. Here. Bob McCumber. Here. Rod Noble. Here. David Flager. Here. Jay Sockman. Here.

A full compliment and a quorum. Very good. First order of the business is the approval of the minutes from the July 2026 meeting as circulated. Is there a motion for approval?

I motion to approve the minutes. I second.

Moved by Mr. Emmerich, seconded by Mr. Flieger. All those in favor, say aye.

Aye.

Minutes are approved. Okay, first of all, welcome. Let me just say off this top here, we understand that zoning can be a confusing issue, especially when the city's trying to tell you what you can or can't do with your property. And likewise, when... your neighbors are in here and not in agreement with you. So with that in mind, I encourage you to be at ease with us. We're your fellow citizens. We're generally nice people. And I expect that we will all treat each other with respect tonight. I'm certain that the board members, asking questions and making our comments. We'll be respectful of you and I hope that in return you can offer us the same so that we can fully understand what you want to do and give you due consideration for your requests. As you know, the zoning code provides for variances in situations when strict enforcement of the code would cause you a practical difficulty, and that's a phrase that I want you to keep in mind as you address us, is that practical difficulty was in your application. There's some criteria in there that we need to consider when we're looking at your request. We'll need your help in this a little bit. We need you to show credible evidence that the strict enforcement of the code, as I said, will cause you practical difficulty. That's something unique to you, the topography of your land, that sort of thing, not just that you need I won't even go into that, but just keep in mind those seven criteria as you address us. As we proceed, you'll be invited up to the podium to give us the rundown on your request. I ask that you please speak into the microphone, state your name and your address for the record, and then we'll invite you to present your evidence and others will be allowed to testify either in favor of your request or otherwise. At the proper time the public comment portion of the hearing will be closed and the board will discuss your request amongst ourselves and we may have further questions and at the end of the day we'll either approve, deny, or request more evidence or Have you come back next time if we don't get all our questions answered, but hopefully that won't be the case. Appeals of decisions made by the Zoning Board of Appeals can be made to the County Court of Common Pleas, and as such, this is a quasi-judicial proceeding, so we will ask anyone who plans to or thinks that they might testify this evening to stand up and swear an oath to tell the truth. at the appropriate time. Before you leave, if you haven't, please sign the sign-in sheet in the back of the room. We also have a court reporter here who will be making a verbatim recording of the proceedings tonight should that ever become necessary in the future. So at this time, if you plan to or think you might testify, would you please stand and raise your right hand? Do you solemnly swear that the testimony you'll give and the matters before us tonight are the truth, the whole truth, and nothing but the truth, so help you God?

I do. Okay, very good, thank you.

All right. First case this evening is, Sue, I'm going to take a guess, Yowie, is that right? Y-O-H-E, Sue Yowie, 210 West Worcester Street, has a request of variance to allow an already constructed six-foot fence to remain in place, which is approximately one foot taller than the six-foot maximum height allowed, due to the fence being built level and not following the contour of the land before mounding. Thank you. I'll ask Chase, our senior planner, to give us the rundown on this case, please.

All right, thank you very much. All right, so this one's going to be kind of similar to one that we faced some months ago at Pine Valley Drive, where the fence was constructed in such a way where it did not follow the contour of the ground. It just stayed level. Even as the ground dipped down like a hill, it remained level. But for tonight's purposes, for the zoning code section 150.79 fences, specifically section B, fence height at a given location along a fence line shall be the difference in elevation between the grade at the base of the fence and the top of the fence at that location. The grade at the base of the fence shall be the elevation of the ground surface before mounding or buildup of the ground surface, if any occurred. If a fence occurs along a terrace portion of the earth, such as a retaining wall, its height is measured from the higher ground elevation. For our terms tonight, we have a fence, so this includes all structures used as barriers or to demarcate a boundary, but shall not include ornamental structures of less than one foot in height, and then grade the ground elevation as determined by the city engineer. And I did speak to the city engineer about this topic. And just here are some images of the property. So this is the rear side of the fence. So this is the northern facing side of the fence. And here you can see these were images that were taken initially when we were first called down there. You can see quite the gap between the bottom of the fence and the bottom of the ground. And you can see dirt was placed between the bottom of the fence and the original area of the ground. Here are some measurements, because this was a gradual slope. It went from normal down to up to a foot between the ground and the bottom of the fence. Here are two side by side images. You have the east and west facing corners. This was taken more recently, where you can see more dirt was added, but you can also see some pieces of wood were put at the bottom of the fence to try and stop the dirt from falling down onto the neighbor's property. And there's a better image of the eastern facing corner. You can see something white was placed there to try and prevent dirt from falling and also try and close the gap. And here you can see where the original grade was, which was kind of here toward the bottom of the picture where these plants are. And you can see where the dirt was then mounded and you can see new grass growing. That's where dirt was filled in to fill in the slope. And here we have aerial image of the property. You can't see much detail in that one, but the slope starts more in the middle of the back of the property. And here are more aerial images of the property using pictometry. Okay. And we also, I put together a letter that I'm gonna read to you all now. So this letter is to provide additional background information on the request to allow an already constructed fence to remain, which is taller than the allowed six foot minimum height. Property owner Sue Yohi applied for a zoning certificate so that she may construct a fence on November 20th, 2025. This request was found to meet the necessary requirements and the zoning certificate was subsequently issued on November 25th, 2025, which is labeled as Exhibit A. Below is additional background information about the address and the request. Again, you have an aerial image of the property. On April 30th, 2026, a neighbor submitted a report of concern regarding the fence, specifically that the fence appeared to be too tall and that dirt was spilling from underneath the fence onto his property. On May 11th, 2026, I visited the location to take pictures and measurements where I discovered the fence was not built to follow the contour of the land. It was built five inches to one foot above. above the existing grade before mounding. While there, I spoke with the contractor who said there was more work to be done. I said that I would come back at a later point to see if they addressed the issues of the fences and height and the dirt. Between that time and the city hiring a new zoning code enforcement officer, there was no word received regarding progress. On July 2, 2026, myself and Mike Klingenpiel, Zoning Code Enforcement Officer, traveled to the location and again measured the fence and observed the dirt still coming from under the fence. I could see inside the fence and noticed the ground was substantially more level. On July 10, 2026, Mr. Klingenpiel sent a letter to the property that the fence was in violation that is labeled Exhibit B. On July 22nd, 2026, the property owner contacted the planning department and was advised that in order to keep the fence as is that she would have to seek a variance through the zoning board of appeals. She subsequently came to the planning department office that same day and filled out her request for a variance. We did receive an email from Mr. Chris Lambert. He was the one who submitted for the concern. and I'm gonna read that to you all now. All, I received the notice in the mail this week and reviewed the information provided. Unfortunately, I am unable to attend the August 12th hearing. The notice indicated that comments may be submitted by letter, email, or phone, and I would like to provide the following concerns for consideration. Number one, my understanding is that the city ordinance limits privacy fences to a maximum height of 72 inches, which is six feet, from existing grade. I believe it is important that established ordinances be applied consistently to ensure fairness and maintain the integrity of the permitting process. Number two, I have plans to install a white vinyl privacy fence that complies with the city ordinances. The neighboring fence and the height may create challenges in maintaining a consistent fence line and appearance on my property. Number three, due to the height of the fence and the resulting gap beneath portions of it, the neighboring dog is able to place its head under the fence onto our property. This creates the potential for unwanted interactions between our dogs and raises concerns for the safety of the animals. And number four, the gap beneath the fence also appears to allow topsoil from the neighboring property to migrate onto our side of the property line during rainfall and erosion events. Thank you for your consideration of these concerns. Please confirm receipt of this email and advise whether this is acceptable or whether you need me to mail in a physical letter. Kind regards, Christopher and Molly Lambert. And I did speak to the city engineer. He looked at the pictures and he did determine that the fence was built above grade from the images that he saw. but an advertisement was placed in the newspaper of general circulation as required. A site notice was placed at the site. The other notices required by the administrative code were posted in a proper time and location, and a letter was mailed first class mail to the tax mailing address of the owner and adjoining property owners. Therefore, all procedural requirements for the hearing have been met.

Thank you, Chase. Ms. Yowie, if you'd like to step up to the podium and state your name and address for the record, please.

Thank you, Mr. President. Hi, my name is Sue Yowie. I purchased 210 West Worcester in November 2025. I'm a retired school teacher. I just finished my 50th year in education, and I've invested my entire retirement savings into my home that still needs more repairs. Our neighbor to the west, Dave Malley, was kind enough to come, has asked me to tell you he's happy with all the improvements we have made. The police parking lot is to our east. The neighbor to the north could have come to us with their concerns, but did not. This fence provides security for my family and pets. We have unleashed dogs. At that property, the reason that the dogs are close to each other under the fence is because theirs aren't on a leash. Before the fence came into our yard and harassed the dogs. The fence also helps block the fumes from idling police personal vehicles that back up to my property and run for 30 minutes in the winter. This is feet from our back door. The height of the fence was not intentionally installed higher than the code allows. I put my trust in a worker to do the job right. The backyard had been a dumping ground for years, and multiple loads of garbage had to be cleared away. At this point, lowering the fence would be a financial hardship, so I'm asking to leave the fence as it is. The fence does not block anyone's view of the city, does not affect the delivery of government services. Thank you for your time and consideration.

Okay, thank you. Chase, I have a question for you. The Lamberts, they state that they received a notice in the mail, so I'm assuming that they're an adjacent property owner, so they have standing for us to consider.

Yes, their property's a butt. If you look at the picture, Mr. Lambert's driveway is the concrete and those plants at the base of the fence are owned by him, and the fence belongs to Mrs. Yohi.

There wasn't an address on here, I just wanted to make sure that they were withstanding.

Yes, yep, they are. So the concrete is the ends of their property line, the dirt begins your property line? Where the concrete driveway, that's the end of their property line, that's the dirt part is where your property line begins, is that correct?

Yes. Okay. The plants that I see there are yours or they put that in? They put that in, okay.

Would you? We had a torrential rain in July, and I went back there and looked, and nothing had come to their driveway. But we're more than willing to put anything up there we need to so that nothing goes into their driveway. That was not a problem ever. We didn't even know it was a problem at the time. Nobody told us.

So did you have your property graded prior to?

No, this man was supposed to do that.

It looks like when I drove by, I couldn't get on your side of the fence, but it looks like from the pictures, if you measured from your yard, that it would be in compliance. Is that accurate?

I took tons of pictures and I forgot them all at home.

Is that accurate, Chase? If we would have measured from her side of the fence... Would it be in compliance?

No, because the grade was the same on both sides of the fence. You can see it from the image up there. You can see just how much dirt was actually placed from the initial, where the grade initially was to the bottom of the fence.

But I don't think it's everywhere. It's in spots. Yes.

It is a gradual, not incline, but decline, where it slopes down ever so slightly. The maximum is one foot, and it goes all the way up to a compliance level. So you brought dirt in to fill the gaps?

No, he brought dirt in to level it. Is that what he told me? Who's he? His name is Kevin Hall.

The guy that you hired to put the fence in. Yeah. So, yeah, you put the dirt in to make it level.

Okay. Yeah. Chase, why does the ordinance say you're not allowed to build the area up? The mounding is not measured from the mounding. It's measured from what was there before the mounding.

Generally, that is for drainage purposes because that ground is already established, and that's why the city engineer likes to have an opinion on the matter. By adding additional dirt to the top, that changes water flow patterns, so water may go elsewhere. Also, obviously, if you have loose dirt and there's water during a torrential rainstorm like we've been having, dirt and clods can flow freely.

It'll basically wash away. Somebody will fill in a hole, and then it'll wash it away in a storm.

It could also divert water to a location it otherwise would not have been.

I personally probably wouldn't have a problem if the dirt was removed and a filler was placed in its stead, so the dogs and stuff. That's just my personal.

Don't they have to have their dogs on leashes?

Not on their property.

Well, it comes onto our property.

Well, it's different.

They don't stay on their property. Yeah, I get that.

What does code say about backfilling to the bottom of a fence to fill the contour? It does address it.

Yeah, it does not address that. Had she brought the dirt in first. Then made application, then put the fence up. Would we not be here?

I would say yes, because then the grade would have been established before the fence was installed.

Any other questions, comments? Anyone else have anything to say?

I do have a question. The neighbor wants to put in a vinyl fence like right next to your fence. Is that the idea?

I've never met him.

He says he wants to put in a vinyl fence and it looks like your fence goes right to the edge of your property. I assume he wants to put in a vinyl fence between that little space between the concrete and your fence.

Anything else from the board?

Yeah, I guess to me, I mean, we live in Bowling Green. It's almost as flat as it can be, but there is micro terrain around. And this is less than a foot. There's been mitigating work done. To me, this seems more like a neighbor quarrel than a true zoning dispute. That's just my opinion. I mean, it's all less than a foot, so to me, this is not anything substantial.

Ms. Yoy, can you point me to the practical difficulty that you're relying on here for us to get to a... Is financial considered practical?

Not really. Okay, I would have to hire someone to come and either, I don't know what they do, cut the top off? I don't know.

I can't tell you what the solution would be, I'm just trying to get. Right. I said three or four times, we need to understand how strict enforcement of the code would cause you a practical difficulty.

I'd understand if the land were. It would cost me money.

If you had a huge slope in the backyard and it was a difficulty to construct the fence because of that, that might be a practical difficulty.

Well, one of the problems was those trees have such huge roots that he said he had to go around the roots.

They're all over the yard.

Stumps and roots.

So is that what you're saying is the practical difficulty you had to keep the fence?

I don't understand what you're saying practical. Practical would you say practical what practical difficulty practical difficulty it would be hard for me to have it done.

Yes Yeah, so at this point fact that there were large roots in the way prevented them from Following the contour of the land when they installed the fence is that what you told me that yeah at one point.

Yeah, okay very good While we're at these pictures right here If it is okay put on a fence that exceeds the height based on the contour, we're taking pictures here of what? Because on one side, that dirt goes up to the bottom of the fence. On this side, it does not.

Yeah, well, this wasn't there. Now the dirt's there.

Understand. So that was... Sue, just so I'm clear on this, a couple of things. First of all, thank you for your teaching career, and I understand you're continuing to substitute.

Yes.

Thank you.

You're not suggesting – do you suggest that your fence meets code?

No. Okay. You're not disputing it doesn't meet code. I'm sympathetic also to your situation being located next to a police parking lot. It's really not on that side that – I walked it today. Okay. You saw somebody peeking around. It was – well, it was my wife. I was at a funeral. But she was with me. I was doing peeking too. Okay. And by the way, with the cost of gasoline, why are we idling cars for 30 minutes even in winter?

These are personal. These are personal cars.

When I got out and walked your fence, Leonard, it appears you tried to mitigate the openings. It looks like I see pieces of wood in there. It looks like firewood, baled firewood.

We just put that back there, yeah, so the dogs don't interact.

Okay.

That's where the dogs were interacting. He just put that back there.

Your dogs don't dig up dirt? Pardon me? Your dogs don't dig up dirt?

No.

Their neighbors don't?

They're not diggers. That's amazing. Nobody's been digging, but they get right at each other.

Here's kind of where I'm at. While I'm sympathetic totally to your plight, it seems to me you have an issue with the installer. I also feel that the practical difficulty, and I think you've admitted it, I appreciate your honesty, is simply it costs to fix the problem. I don't desire to spend other people's money. Probably why I haven't done politics. Oops. But we've had some corporate requests lately that boil down to the same thing. Well, it would cost us to build to code. That doesn't waive our code. In fact, it would financially reward people for ignoring our code. So for that reason, I want you to know I'm leaning toward denying the variance in this very, I think, unfortunate situation. Now, I was also under the impression, however, from an earlier case we had where people had one of those white vinyl fences, also had a bottom problem, and I swear we were told that they couldn't backfill to meet code. But they can. And if that case, that's all she's done. She backfilled to meet code. And that's legal, right? It's not?

Well, I think the variance request, Jerry, is the height of the fence from the initial grade, not the fact that they backfilled to meet code.

What is clearly above from the original grade. Right? Correct. I'm looking at that.

They probably did that to the dogs.

But the dirt that is there now, if you were to measure, did you raise the question? If you measure it down there, if you measure it from the inside, they're cool on six feet. I did not go on the inside of the fence. Well, I'm just looking at it here. I'm looking at 11, 12 inches on one side and then dirt up to the bottom of the fence on the other side. If they did it legally, then I'm kind of wondering why we're here.

Chase, I have a question for you. You went out to the site while the contractor was there at one point, right? Correct. Did you go over with him what the requirement was that the fence not be more than six feet from the original grade?

I did. He disagreed with me.

How did he disagree with you?

He did not feel that that was correct, that if a fence is closer to the ground, it will rot faster.

So he's telling you your interpretation of the code was wrong?

Yes. Okay.

You got a problem with him?

Oh, I've had a problem with him.

Well, you're making it our problem, is the thing. Okay, well, let's, like I said, let's be respectful of one another. Is there something to add, sir? Come to the podium and state your name and address for the record, please.

Dave Maley, 216 West Wooster. I live next door to Sue and her family. One thing that I think is complicating this to some extent is that this area, the back of my yard floods very easily because it's lower than the front. out by Wooster. In fact, when it rains the last several days, the water runs down my driveway into my backyard. Her backyard was the same grate. She raised the grate because otherwise it would have flooded. So as far as the water running under onto the neighbor's drive, I don't understand that because it floods back there. It always did. I think that this really helped the situation, if anything, as far as water flooding. I don't know if that confuses at any or helps to understand.

So before the fence was built, you're saying that the neighbor's area back there was under water also.

Well, I can't tell because it was so overgrown, which is another thing as Sue has done a lot of work to improve that. It's beautiful compared to what it was. I wish her the best in this, but I understand the zoning issue, but one thing leads to another. Thank you.

Anyone else? All right, we'll go ahead and close the public comment portion of the hearing. Any further discussion amongst the board members?

My only, I really don't have a problem with it. My only concern is I do, you know, if the neighbor does put up a fence, it won't really line up. So I'm a little concerned about that. But other than that, I don't have a problem.

Given the fact that it's, had she put the dirt in first, this would have been in compliance. And it looks like from the picture, her yard is significantly higher than the area was, even as I look through the middle of this fence. I think if other neighbors were okay with it, and the grade had to be somewhat changed, the grade is somewhat unusual I think it's a reasonable request. I intend to support it.

Anything else, Bob? It's bothersome to me that the contractor would tell Chase that he's not going to obey Chase's interpretation of the zoning code. That doesn't seem right to me, that the contractor should just go ahead and do what he feels like he wants to do rather than what a city official's telling him he needs to do. Unfortunately, Ms. Yohe, who's, I think, completely innocent in this matter, and is just trying to do the right thing, sort of gets caught up in the whole thing through no fault of her own. So I'm torn a little bit in both directions. I don't really want to approve what the contractor's behavior was in this situation, but on the other hand, I don't want to penalize Ms. Yohe, who I think has clean hands in this situation. She hasn't done anything. She didn't do anything wrong. It ended up not complying with the zoning code, but that's really the contractor's fault much more than hers.

Would the contractor be willing to come back out and fix the problem, or are they paid and gone?

Please. I don't know. I don't know. We're not on speaking terms. I mean, if you've already paid him. I've paid him the whole thing. I had $1,400 to still pay him. We kind of argued back and forth about I was going to hold it until all this was settled. He threatened lawyers. He threatened all kinds of stuff. So I paid him. I just paid him. So now after that, I don't know. At one point he said he would fix it, but that was if I paid him.

Huh? Tim, Jerry, anything? Oh, yeah, pay for it. Further?

Yeah, I have difficulty looking the other way on our zoning code because a contractor chose not to comply with it. Oh, again, I come back to then why do we have a zoning code? They can do what they want to do. I also am slow to oppose our zoning code to help people make budget. And that sounds cold and cruel when I say it. But if that, again, is our standard, then just do what you want to at whatever cost you want, and we'll look the other way. And I can't do that.

I just can't. I think that's a mischaracterization of this petition. I don't think there's any malice involved, or that contractors are going to pay attention to what we're doing and base decisions off of that. I guess I don't buy that. I mean, there's been mitigating factors. They refilled it in. We're talking about less than a foot here. I know, like, financial maybe doesn't, like, float, but, like, man, to get someone back out here and to, like, do all this stuff, probably have to regrade everything for this? Like, I don't know, guys.

It seems fairly simple to me. I agree that, to my way of thinking, practical difficulties do not arise from economic considerations. The situation with the contractor's unfortunate, and as Bob pointed out, Ms. Yowie, you're here with clean hands, you didn't do anything wrong. Given my statement about the contractor, it's not up to me to determine the veracity of Ms. Yowie's testimony when she stated that the practical difficulty that she sees is from the fact that there were large routes that were in the way that forced the installation of the fence to be done the way it is. So to me, it's pretty simple. She's come up with the practical difficulty. It's not economic, it's the fact that there were those roots there and based on the zoning code and what we need to determine, I don't have a problem with it either. Anybody else? Is there a motion for the disposition of this?

I move that the request be granted as submitted. Is there a second?

I'll second.

Moved by Mr. Crawford, seconded by Mr. Sockman, that the request be approved as submitted. Any further discussion? All right, Mr. Secretary, please call the roll. David Flayer?

Yes. Jay Sockman? Yes. Jerry Anderson? No. Jeff Crawford? Yes. Tim Emmerich? Yes. Bob McCumber? Yes.

Brad Noble? Yes. Your request has been approved. Does she need any more permit work from you, Chase? No. All right. Thank you very much.

Okay.

Number two. You're free to go, too, William. Rebecca Ferguson, 1622 Treetop Place has requested a variance to allow the construction of a driveway expansion that is 20 feet wide at the widest point, which is five feet wider than the 20 foot maximum width allowed based on the width of the garage to which it leads.

Chase. All right, so we have a similar case to the ones we've been having the last few months, but just in a different location. So a little bit of a driveway widening. But so for off-street parking, under section 150.72, number three, we're serving a one-unit or two-unit dwelling use. A driveway may not exceed the width of 20 feet or the width of the garage to which it leads, whichever is greater. Would you all like me to read the terms for this subject?

No. No?

Okay.

So, let me go to the more zoomed in image. There we go. Okay, so Ms. Ferguson came in and spoke with us about this. The driveway is already the width to the garage, so it's at 20 feet, so they want to add a little bit, it's not quite a large widening, it's more of a smaller one that we've been seeing lately, but the width would increase to 25 feet at its widest point, so it's not uniformly the same width, only at its widest point. I'll let her explain the reasons why she wants to widen it. But here we have the image of the house from the front. Here's a little bit better. The widening she wants to do kind of goes from a little bit from the corner of the garage down to a sharp point at the sidewalk. And here you'll see an aerial image of the property. and the trailer is in the way so you can't really see it there, but there is a sharp curve there. This one is better at pointing that out. You can see the sharp curve that she is going to speak about where they want the widening to take place. And there is another view of it from the air from using pictometry and from a different angle. and we received no letters regarding this matter, and an advertisement was placed in the newspaper of general circulation as required. A site notice was placed at the site. The other notices required by the administrative code were posted in a proper time and location. A letter was mailed first class mail to the tax mailing address of the owner and adjoining property owners. Therefore, all procedural requirements have been met.

Thanks, Chase.

Ms. Ferguson, state your name and address for the record. Rebecca Ferguson, 1622 Treetop Place. What's going on? Well, I'd like to take the angle out. The practical improvement for me is I will no longer hit the truck that is occasionally also parked in the driveway. I won't take a window off of my car when I accidentally hit the driveway backing in. Now, I understand if I just improve my ability to drive, that would probably be a different issue. I have multiple friends that visit that express, my God, how do you park in this driveway? And I want to do a lot. I just want to take the curve out so that when you go to drive in, you don't have to. it's really very difficult to back into this driveway. And I don't, I think I thought about finally doing it about three years ago, but couldn't find a contractor, because if you know, it's really busy out there a lot. So I finally found a construction contractor who would do the concrete for me, But then I talked to Josh, who was my person I was working with, who said, you've got to check with the Homeowners Association first. I did. They said, no, no, you have to check with the planning board. So I've done all the steps that I needed to do. I just didn't even know we had the ordinances, by the way. to take a step further to make sure all of my neighbors knew what was going on we had a treetop homeowners association meeting on monday and i took the notice that i got from the city that i've posted and took the handout to everybody so everybody in the entire neighborhood that attended we had 24 people that attended the meeting would know about what my request was Everybody laughed about it because they think it's the the craziest driveway in the whole neighborhood There are a couple other people who also have quirky driveways, so they felt my pain And nobody had any concerns to not do it people actually Encouraged me and thanked me for doing it from the standpoint of at least it'd be a step to see what happens when you have janky driveways and

practical difficulty?

Tell me about it. The practical difficulties, I believe, are actually the ability to use the driveway in a very efficient manner. That, to me, is a practical difficulty because you literally, I've You drive, if you're not careful, you drive over sprinkler heads. And I don't want to just put in pavers or something, because I'm sure that'd be another issue. But to me, the practical difficulty is the ability to park in a useful way for myself and my visitors. I don't know if that meets your definition or not.

It does. I'll probably, legal counsel should probably close their ears here, because I may be testifying for you. But it seems to me that you're on a a cul-de-sac with a pretty short radius, and they've crammed those villa homes in. Yep. Two per unit. Yep. And it makes it almost impossible. Oh, trash removal for my neighbors? You see the other ones? Let's go one at a time. I'm trying to help you. Sorry, Rod. Okay. That's what I shouldn't be doing. But it seems obvious to me, again, that you've got, and this is in this picture, one, two, three, four, five, six, seven, eight driveways that I can see trying to get onto one cul-de-sac. the geometry is just very difficult. Yes. So... Maybe I helped you, maybe I didn't. I don't know.

I believe when they built the driveway, Chris, I wasn't paying attention to it when I bought the house. I just fell in love with the house and the location and the woods behind, et cetera, et cetera. It wasn't two weeks into the thing, moving into the house, and I was having difficulty backing in. Trash removal is crazy back there. We occasionally, we've gotten that figured out, but we occasionally will have a neighbor who will ask to put out additional stuff in our driveway. because it's so crowded and the other three that you can see that go around from mine.

Okay. Any questions for Ms. Ferguson from the board?

Ms. Ferguson, I was out in your neighborhood. I see exactly what you're talking about. How do you describe the driveway? Janky? Janky. I think that's accurate. Just so I follow here. This isn't a full width of a lane of driveway up the entire... No. This is filling in that... Whoa, whoa. That curved area there. And even when you come down, though, to the sidewalk. Yes. All right. This addition will extend how much over from where your driveway is right now? 18 inches. That's it.

That's it. Thank you. We literally, the way that we designed it, it will come off of the sidewalk and go down. It was the request, no, the suggestion was that I not go right to the corner because that wouldn't be as easy to pin it into the existing sidewalk, so to speak, and the existing driveway, so to come out a little bit from it. So we measured what we thought we would need, and it looks like literally 18 inches. That will be the only addition down where the sidewalk is.

And that will satisfy your questions about parking. I wouldn't want to back into that parking lot, to be honest with you.

Oh no, it's a learning experience. Okay, anyone else?

So basically you're just saying this small variance would greatly improve the safety of you and your guests?

Absolutely. Thank you. That's a better way to put it. We both testified. Yes, thank you. I greatly appreciate the help.

Bob? I am supportive of this variance. It seems like a pretty minor variance to me. It's not a substantial variance, and there's good reason for it, so I'm comfortable with it.

Thank you. No issues with it.

Jeff? No. I think she needs to pour more concrete to keep up with the neighbors because the neighbors look like they got a lot more concrete than you do. They do, but it's only me and my partner in my driveway.

I don't have a problem with it at all.

Thank you. Anyone from the lobby? All right. Thank you. We'll close the public comment period. I think we probably already expressed our views, so is there a motion for the disposition of this request?

I would move to grant the variance.

Second. Okay, moved by Mr. Anderson, seconded by Mr. McComber that the request be approved as submitted. Any further discussion? Mr. Secretary, please call the roll. Tim Emmert.

Yes. Bob McCumber.

Yes.

Rod Noble. Yes. David Flayer. Yes. Jay Sackman.

Yes. Jerry Anderson. Yep. Jeff Crawford. Yes. Your request has been approved. Make sure you see the planning department, get your final permit working.

May I just make one? I want to thank the planning department.

Step up to the microphone.

I want to thank the planning department. These folks have been phenomenal. I had computer issues. There was just one thing after another. Didn't know about the ordinances. And to say they were polite and considerate is an understatement. Good to hear. I just want to make sure as long as the mayor is in the back of the room, he knows he hires good staff.

Thanks for that.

Thank you.

All right, number three, Dan Abdo of Joseph Development has requested a variance to allow the construction of a 22 foot eight inch tall commercial building which would not meet the minimum 25 foot structure height required in the commercial district by two feet four inches at 1187 South Main Street.

All right, so this is gonna be similar to what we heard last month, but new information has come forward, which is why we find ourselves back here, but there'll be more of that here in a little bit. But just to kind of rehash why this had to have a variance requested, initially they requested a building height of 18 feet, eight inches, which was less than the 25 feet minimum that we require for a structure height in the commercial zone. and building height for structure height. The vertical distance between the average grade plane of the structure and the highest point of any flat roof or midpoint of any pitched roof. In this case, they have a flat roof, so you would measure to the highest point of a parapet wall, pretty much. Not just the flat portion of the roof, but the parapet. If you know from Chipotle, looking at Chipotle, you would know it's a flat roof, you measure to the top of that height. And here we have, well, it's an aerial image of where the location they are proposing. This is the front view of where the building would go. Another aerial view using pictometry, similar view. Now to give some background information on this. So this letter is to provide additional background information on the request to allow the construction of a 22 feet, eight inch tall commercial building, which would not meet the minimum 25 foot structure height required in the commercial district, which is labeled C by two feet, four inches at 1187 South Main Street. Dan Abdo on behalf of BCC Bowling Green LLC applied for a zoning certificate so that they may construct a new Chipotle restaurant off of South Main Street on April 13th, 2026 that is labeled as Exhibit A. And below you'll see another aerial image of the property in your packet. And on April 13th, 2026, Dan Abdo on behalf of BCC Bowling Green applied for the zoning certificate so they may construct a new Chipotle, that's doubled for some reason, restaurant on South Main Street. On May 29th, 2026, Mr. Abdo filed a request for a variance to the Zoning Board of Appeals after it was determined upon review of the original submission that the proposed building was under the 25 foot minimum required construction height for new buildings located in the commercial district. On July 8th, 2026, the matter came before the Board of Appeals and the request was subsequently denied. That is labeled as Exhibit B. On July 10th, 2026, I received a call from Mr. Abdo letting me know that they had received information through their REA, which is a reciprocal easement and operations agreement. That document has been provided. The building by contract cannot exceed, according to that document, 23 feet tall. This information is found on page 12 of the agreement attached here as an exhibit. The full REA can be provided upon request, and I will bring a copy to the hearing, which is Exhibit C. I have a couple copies of that here if anybody wants to see it. Also, I also have plain copies of page 12. I took this information to the city attorney, Hunter Brown, and after review, it is his opinion that Chipotle should be allowed to apply for a variance for a second time due to the new information that was received after the previous ZBA meeting on July 8th, 2026. I took this information and spoke to Mr. Abdo and noted that he will apply again with new information, which he has done. On July 23rd, 2026, we received the second variance request from Mr. Abdo and the update information, the new building height of 22 feet, eight inches being two feet, four inches short of the required 25 foot minimum height requirement. And please let me know if you need any additional information on this matter here. and an advertisement was placed in the newspaper of general circulation as required. A site notice was placed at the site. The other notices required by the administrative code were posted in proper time and location, and a letter was mailed first class mail to the tax mailing address of the owner and adjoining property owners. Therefore, all procedural requirements of the hearing have been met.

Thanks, Chase. Representative from Joseph Development, gotta be you. I know everybody else here. Please come up and state your name and address for the record.

My name is Daniel Abdo. I'm with Joseph Development. My address is 341 South Lincoln Street, Hinsdale, Illinois.

Good, pretty good. Some new information. Can you explain for us? It seems a little complicated.

Yes, yes. And first, let me say, working with Chase and Heather, I echo the sentiments from the previous lady. They have been terrific. So through all this information and new information and figuring out what works and doesn't work. So when we originally came before the board, I was out of town. I had an engagement that was several months booked. I just couldn't miss it. We came before you with their prototypical elevation, which is an 18-foot, 8-inch elevation. And it's their prototype. So at the time, I said, do you think we would be able to get a variance on this? And of course, they said, You can request one. So I did I think it was the only variance we were requesting at the time So I said, okay. Well, they like to stick with their prototype So let's if you feel that the variance would be considered. Well, well, we'll submit for the variance Understanding it's not a practical hardship because your prototype is 18 feet, eight inches. And I understand why you denied it. I went back to the architect and our design team at Chipotle and I said, we cannot do a building that's 18 foot, eight inches. And because it's a prototype is not a practical hardship. So I said, we have to increase the height of the building if we want to do this project. Simple as that. And so they said, sure, we'll do that. So then the architect got back to me and said, well, I can't do 25 feet. And I said, why? And he said, well, we have the REA now because we had new information from title. These REAs and PUDs, as you know, they're on title and the architects and designers use them when they're designing. And he said, the REA that governs the site, the development as a whole, doesn't allow the outlots to be higher than 23 feet. So we're in a bit of a predicament here. What do we do? So I brought that information to Chase and Heather and they said, well, we have to talk to the village attorney. Understandable. Just to see if this would even be considered again in front of the board. So they did. We resubmitted and the architect said, how about if I get just worked with his dimensions to go to 22, eight. Otherwise he goes above the 23. If he adds everything's with modules and dimensions and brick. So I said, um, okay, uh, let's go for plus he goes, I wouldn't like to hit the variance height. Exactly. I just would like to give us a little bit of play. And I said, no, I get it. So we, I said, how high can we go? How close can we get to the, to the 23? Cause that's what we're going to have to do. And, uh, we got to the 22 foot eight inch. And I apologize for not having that information. We just didn't have it at the previous meeting. Just title reports get to us later. The architect didn't see it, didn't inform us. So my apologies. So thank you for seeing me again. Much appreciated in considering this.

Can I just clarify for me, are you a franchisee, an area developer for Chipotle?

No, I'm a developer for Chipotle. I have been for 10, 15 years. So I do develop sites for them all around the Midwest.

But you were able to go back with them and get them to vary from their prototype. Their prototype.

And I said, this is the only way we're going to get this done. So they came back with a new. At first, they were like, we haven't done a building. Like, this is us. I said, well, we're going to have to figure this out. I've done buildings 25 feet tall. I've done developments for 30 years. We can do it. If you guys want to be here, we're going to have to figure this out. And what prohibited us from getting to the 25 was the discovery of the reciprocal easement agreement that governs the site as a whole. The outlots, the structure can't be higher than 19 feet and with the parapet higher than 23 feet. So we went to 22.8, which kind of got us as close to maximum as possible.

Am I correct to assume that the deed ties the property to the REA?

Yeah, all of these documents are on title. I pull title, hyperlinks, you click and you read all the REAs and the PUD guidelines and the restrictions and all kinds of things. And that's when the architect got back to me and said, we can't do it. I would do it, but it doesn't allow it. And I said, okay, well then that's when I reached out to Chase and Heather and said, could this be considered again at a higher, we'll go to them, we'll go up to that height, can it be considered?

So you probably can't count the number of times I've used the phrase practical difficulty.

No, and I respect that.

So given everything we've talked about. Sure. Can you elaborate on that a little bit? Yeah. Crystallize that for us. Sure, sure. Outside the economic realm.

Yeah, yeah, this is not an economic thing. I mean, when it first got denied, the intention was to just go back and ask for the 25 feet. I went right back to the architects and said, if we're going to go here, we have to meet the code. It's 25 feet. He scratched his head. We haven't done one like that. Let me work it out. So then he came back to me and said, OK, I can do it. He said, but have you read the REA that's on title? We're not allowed to do a 25-foot height building. So presented a practical difficulty. How do we get to 25 feet if the REA won't allow it? So we said, well, if we're not going to get to 25 feet, let's get to the maximum allowable. I don't think the village will be comfortable with anything less. We're not quite there, we're four inches off. I think that's more just for building standards and we don't want to exceed it in some fashion based on a measurement. Or I think it was based on a module because a portion of the building is brick. He said 22.8 would work. I said, great. So that's how he came up with the 22.8. So that's the practical difficulty.

Okay, gotcha. One more clarification though. Sure. You got to 22.8. by getting the blessing of Chipotle to vary from its prototype? Yes. that had nothing to do with the developer of the original parcels in the REA? No. Okay, I did not read the REA. I didn't see the whole document. Sure. Is there any mechanism in there for an appeal from these standards?

So the REA is governed by Home Depot when they built that development. They're the ones that put the standards on the outlots as to what height they can be, where they can be placed, all that kind of stuff. So, and that... REA is to their assignees, so Home Depot would have to be okay with us exceeding the height, and all the other pads in the development would have to be okay with us exceeding the height because they had to follow the height restriction. And so all of that would have to come into play. You'd have to go back to all of them and ask them if they would be okay with it.

That's spelled out in the REA?

I don't believe it's even spelled out in the REA. It doesn't say that. It just says these are the people who this REA has governed. The outlots in the development and the development itself are governed by this REA. The only way to possibly do something about it is to go back to them, the landowner who did the home, anybody who was involved at the time and get their OK to change the height. That would be the only way to – that's the only possible way. I'm not even saying that can be done. That would be the only thing I could think of. We haven't gotten that far yet if that is the case. If we had to do that, we just haven't gotten that far yet. We just saw it as a practical – it's not an economic issue. We would have done the 25 feet. It was a more practical issue.

Was all that agreed upon with the city when it was all developed with – Home Depot and all that based on what was happening at the time with our codes? I'm assuming that's the commercial plan.

None of us are here at the time, but it's similar to a deed restriction that got recorded with the county. So the city's involvement in that process would have been the subdivision plat and approving that. So back in that time period would have been our planning commission. But again, we don't get involved in deed restrictions. We just get a copy for our records.

as part of our subdivision regulation requirement so it's not the city's not involved in the the separate issue but then when things change like our codes and that how do you enforce them when we knew we now have new codes

We don't enforce private deed restrictions. He's just saying that this is an issue for them being a developer of this property and having this agreement. So if you want to see the whole thing, we have two copies, but it was recorded.

I'm just curious how it was linked with them developing that in the city and what they're doing. playing in some of that was.

It's just like a private restriction that they have to follow. I can only make assumptions that having property in the back there, they don't want an outlot building to be so tall that they can't see the Home Depot or TJ Maxx or whatever. Again, I'm just making assumptions. It's not my profession. But that's why it's a private restriction, just like people live in Stone Ridge because they want an HOA to regulate all the properties and the design. I can't answer for, you know, our zoning code can't match every private deed restriction in the city and change over time.

Like a residential subdivision, if the developer chooses to put in, you can't have basketball hoops or your outbuilding can't be closer than 15 feet from your lot line when that's way more strict than the city. It's just two different things. I think that's a pretty good

Analogy for what what they're dealing with here Yeah, we buy a lot of parcels and out lots from Meyer and we do quite a bit of work with Meyers They all have their own set of what they call development standards and then they record them on title for all of the outlets and they say you have to follow our development standards and Typically, those development standards will coincide with the PUD that's approved by a city when the planned unit development's put together. So how this was missed or changed, maybe the code was changed after they established this. I don't know. We've never really run into a conflict between a PUD or an RDA and the code with the city, because typically they're aligned. But I'm going to guess the code changed maybe after they did this. I wouldn't know.

So this piece of real estate was owned by Home Depot at one point in time.

Yeah, or a developer who was developing the Home Depot. And so when Home Depot purchased that lot and created, so somebody owned that land as a whole. And when Home Depot purchased that and created the parcels in front or left the parcels in front for the developer, they placed these deed restrictions for height on the lots. And then they established a PUD and an REA to sort of govern cross access and easements and driveways and what have you. So we tried to get to the max just because we understood that the code is the code and I respect that.

Any other questions from Mr. Abdo? No. Anyone from the lobby? All right, we'll close the public portion of the hearing and discussion from the board.

Well, I heard what I wanted to hear, and I'm glad Mr. Abdo, nice walking in with you tonight, by the way. Welcome to Bowling Green, or back to Bowling Green, however it works out. Because he addressed, I was among those who opposed last time. And it was the very things that you stipulated. It was a prototype. It was given to us to take it or leave it. Well, it's our zoning code. So we just left it.

I respect that.

You guys, you took it on. You took back. What I heard from you, if you had your way, you'd take it to 25 feet. There's another instrument. So you're getting us as close as you can. As I told them at the time, the only... The practical difficulty I heard as presented before was, well, it would cost us some money to draw up new plans and stuff like that. From my point of view, you've addressed it. Thank you.

They asked me to ask at the time with the prototype. Like, we'd rather use our prototype. I said, I'll ask, but no guarantees. And, of course, I respected the decision and brought it back.

And thanks for your willing to respect our zoning code. Thank you. 100%. Of course.

Jake? I didn't have a problem with it the last time. I don't have a problem with it this time. All right.

Yeah, I mean, we have like, we have a lot of useful tools with our lot coverage, our setbacks, our height restrictions, and that allows us to manage development in a tidy, organized way. But, but this is a standalone building. Like, I don't understand why we want Chipotle to be really, really tall. I guess I didn't understand it last time. I didn't understand it this time. We're at least a lot closer to the, to the. You know, the restriction and based on the deed restriction, this really seems like a pretty good compromise for everybody's party. So that's that's where I'm at.

Jeff, like Tim, I supported it last time. I looked and I left confused last time. I wondered why do we want we denied a sign request because it was too big. and a building request because it wasn't big enough. And I guess we want big, small signs and big buildings. But when I looked into it, should have done it before last meeting, height minimums are typical for high density walkable development. And this is not high density walkable development. It's kind of unusual. The area in question where the building is being built directly behind it and directly to the south, those lots are zoned differently. If we moved one lot to the south, this building height requirement doesn't come into play. I will support it this time just like I did last time.

I have no issue with it. It just kind of makes sense that you did try to come as close to our zoning code as you could based on what restrictions were placed on that property when they develop it. So I have no problem with it.

The way I look at some of these issues is that the greater the variance requested, the more compelling the reason for asking for the variance needs to be. And last time, I saw at 18 feet 8 inches, they're about 25% short of the 25-foot minimum, so I considered it a sizable variance, and I didn't hear a particularly compelling reason to grant it, so I voted no. But this is certainly a different situation. You're getting as close to 25 feet as you can. I think at 2 feet 4 inches, it's not nearly as substantial a variance as was requested a month ago. So I'm much more favorably inclined to it. I do go to Chipotle a lot on the east side of the city. I will tell you as an aside that it does a good business. I've been in there many times when there's 20, 30, 40 people in there and I am literally 50 years older than anybody else that's in that store at the time. It might be nice to have something on the south side of town frequented by people my own age or somewhere close to that.

Well, if granted, we're excited to get started and our building permits have already been submitted and approved by the county. We're going to go in for a slight variance because we're going to reduce the height, but we're really ready to go, and I think our engineering has been approved. I think you were telling me that engineering is reviewed and it's good to go.

Yeah, there's a couple of things that we'll talk about, but from the standpoint of everybody reviewing, everybody has.

Okay. I was in the last time as well. There was some unanswered questions, and I don't disagree that It's a standalone building, and why should it have to be that high and all those other things? But the fact is that's the way City Council adopted the code just three years ago, and that's what I went on. The code's the code, as you said. Understandable. I greatly appreciate your efforts to mitigate this, and for me, you've done a good job. Thank you. And I don't have any problem with it at this point.

Thank you.

Is there a motion for the disposition of this? I so move. Seconded. Moved by Mr. Sockman, seconded by Mr. Flieger. Any further discussion? Jay, please call the roll.

Oh, let's go with Jerry.

Yes.

Jeff. Yes. Crawford. Sim. Yes. Bob. Yes. Rod. Yes. Hey, David? Yes. And myself, Jay?

Yes. Your request has been approved. I know you're working with the planning department, so I'm sure you'll get permits, and thank you again. Welcome to Bowling Green, and I hope it's going to be the best for you.

I look forward to getting started and being a part of the community. Very good.

Okay, lobby visitations. Anything else from any of the board members? Motion to adjourn.

So moved. Seconded. All those in favor?

Aye.