Zoning Board of Adjustment - Regular Meeting

All right. Good evening everyone. So if you want to start the meeting, if you want to go ahead and start the meeting, we'll take roll call and then a couple of announcements. Larry, turn on your microphone though. Yeah. Thank you. All right. We're calling the zoning board of a meeting of adjustments meeting to order. Right. But behind the agenda, it's got the the roster. I'll go ahead and call the roll calls. Uh, board member Weintock here, board member Hansen here, board member Waldman here, board member Cicero here, and board member Garstein present.

Okay. Uh, Mr. Hartman, uh, who's one of our alternate board members, had a presentation going on today, so he couldn't make, uh, and he's having problems with Thursdays right now. Uh, and then Mr. Zobo had a project due uh, so he called this morning saying he wasn't going to be able to make it. I didn't hear from Mr. Luna uh, as of yet. He was supposed to be in uh, in there, but uh, we got a couple of new board members. Miss Hansen uh, introduce you to to the the board. Mr. Weintock's been here for several years. Mr. Cester and Mr. Gerstein for a couple of years. And then Miss Waldman is a one of our new members but knows the process and there. And then our council leazison is Miss Pashan, council member Pashan Helman. Um and there who represents or reports back to the council uh on the board activities. Then I'm Carlos Trejo, the planning director uh for the city of Alvette. Got my staff uh Don Dodie. She's our senior planner and Jack Carwell uh is our planning and zoning administrator. And then Miss Stephanie Carr who is our city attorney. So, [snorts] so chairman, I'm gonna share a presentation. I actually found this something that Paul had put together for us a couple of years. So,

being recorded or we don't

It is on the recording. Yes. So, I'm just going to kind of give a quick overview of of the board uh role and procedures and then the goal is to to have a conversation with Miss Carr about variances and all that or ask questions uh regarding that process um in there once you kind of get a brief overview. If there's any comments, I know a couple of members are new. I mean, please chime in and and if there's something you want to meet. Uh, one of the things I'll note that the way we've always set it up is uh the second Thursday of the month has been reserved for zoning board of adjustment meetings. Uh, we only meet on a request basis. So, unless I get an application, will I send a meeting? And we've gotten one year that we only had one one request and we've gotten one year where we met just about every month in there. So, it varies. It's been slow uh in there which is good which means people are following the the rules and regulations and the ordinances uh and things are working like they should be. Uh if we're meeting a lot that means especially on the same thing means that there's an issue uh that needs to be reviewed or discussed uh and all that. Um, in order to have a meeting, somebody has to submit uh an application or a request and it and it gets reviewed and it has to get denied. You can't just say, "I'm going to go to the board. You have to apply for something, have it reviewed by staff and then they make a determination uh of something being denied and then they have the option. We'll give them things to consider. Do it this way. Look at it this way." And last case scenario, you could apply for an appeal. Uh and there is no uh uh you know, it may or may not happen. We don't know, you know, but we're there, our staff is there to represent the city and its ordinances and we make them aware of that. Uh then they apply if

they do apply for the variance. Um I have to post it in a uh a paper of record that's recognized by the city, usually called the the county in St. Louis uh uh in there. And in order to meet their deadline, I need to submit like what we call posting a week in advance. And so I have to work backwards. I have to look at well when's the next second Thursday of the month. And usually I need about 30 days. One is to send out an email saying, "Hey, it looks like we're going to have somebody apply." Two, draft what we call the posting and get that to the paper. And then the paper has to publish it 15 days prior to the meeting. So it is very difficult to like you know well first is the 15 days of notice that has to be provided and then from there the the um the deadline to get it into the newspapers a week prior so I'm already 3 weeks out and then for us to review what they submit and and and get that it's usually going to be about 30 days. So people can't just come in and say, "Well, I want to go to the board. There's it, you know, and tomorrow is the the second Thursday of the month, you know, so why can't I go?" Well, there's a whole process uh in there, and we have to provide that notice in the paper. We also have to notify uh property owners within 300 ft, and that's to give them time to they have their own schedules and things going on to give them adequate time to determine they want to attend or not. So, just a little heads up on that. And there. So, I'm going to go through a presentation that was prepared a couple of years back that just kind of goes over what is the board of adjustment, how do we get there, what do you guys do, what do you review, uh, and then other just general things you need to be aware of. So, uh, typically you hear appeals and variances. U, now the board is established by state statute. So, every just about every community in the state of Missouri has a board of

adjustment. If you have a zoning code means you're going to have a board of adjustment and they're there to hear when when there there are issues in the application of the code. Could be different types of things, but there has to be a process to be able to review these type of things or when there's conflicts with the code, whether it's something on I how I interpret how something somebody applies it to a project or some other things that we'll go over in there. So what the city of ette did is we adopted what we call article uh Roman numeral 17 which is part of our zoning code that you know establishes the ette zoning board of appeals. Uh there are five permanent members or I'm going to use the term permanent members and this is how state statutes is written. You have to have five permanent members and three alternate members. And because we don't meet routinely, you know, that I usually do need the three because it's hard to get five people to show uh show uh you know, at a given notice, even if it's a month in in advance. Uh they all have to be residents and the code doesn't say that you have to have specific backgrounds or specialties. We usually like people with legal background, people that have some construction knowledge. Uh but it's also good to have general residents uh uh in that process. And what you kind of serve as is what we call a quasi judicial body. So you're kind of a like a a court. I call it more like a a a jury. Uh you'll hear a staff presentation, you'll hear an applicant's presentation, you'll hear public comments, and then amongst yourselves, you'll talk about it and then make a recommendation. Recommendations are always going to be like if you're going to grant what the request is. Uh and then you'll vote. And I'll talk about how that vote process works in a second because it is different. It's not just a simple majority. It because you are making an exception to the code. It requires like a super majority uh in

there. I have to have the five members or only five voting members during one appeal. So even if I had all eight of you here, it's going to be the five primary members that that serve first and then after that counting the alternates. Okay. Uh procedures. All our meetings are open to the public. We do record them all. Uh anytime somebody speaks before your you as a board, again, you're kind of a court or a jury. Uh you that individual has to be sworn in. They're giving public testimony uh that is recorded and can be used in in a court of law, I guess, to describe it if uh if there was ever an appeal of an appeal uh in there. And I'll go over that uh later on. We keep minutes for each of the uh uh meetings and those minutes have to reflect what motions were made, who made those motions or what the vote were was and then we add additional comments and discussions uh in those minutes. And in case there was ever an appeal of an appeal, uh we have to produce a transcript. So we actually, you know, if if when need be, we'll make a request to get like a whole book of transcribed uh discussions that this is beyond meeting minutes uh that that would be made available for uh a circuit court. uh people that present to you as a board whether it's staff or individual applicants or even a pro uh you know somebody from the public if they submit something they should submit it as an exhibit and that in essence makes it as part of the it formally makes it part of the discussions and if there was ever an appeal to an appeal you know in the court the judge is going to look at the exhibits that were submitted they're not going to look at something well I you know I noted this well you know I provided this but if I didn't provide this as an exhibit or note it as an exhibit it doesn't exist it was you know

uh in there so everything we we kind of say your applications we make sure like all our reports are submitted as exhibits and then we make sure on behalf of the applicant because they're not they may or may not be attorneys they can have attorneys represent them but that their application is submitted as an exhibit their plans are submitted as an exhibit and if they provide anything else we also make sure that it it's noted as an exhibit. So they have all their information uh in place uh and those ultimately are the documents that a court would use to review an appeal of an appeal.

Can I just add one thing with respect to that? So um one of the most important exhibits that you're going to have is going to be presented by the city or by the city staff and that is the code of ordinances for all of that. And you're probably thinking, well, you know, um, all of our variance appeals or all of our administrative appeals, um, you know, come to us because of some interpretation of the code or because of some requirement of the code. But if this were to go up on appeal, um, it goes down to the circuit court down in Clayton. And, um, the law is that a judge cannot take what they call judicial notice of the code of ordinances for any city. And so they have to be in the record. Um just like a judge down in Clayton, he can say, "I'm going to take judicial notice of the statute." Which means that he can consider any of the statutes of the state of Missouri without them actually being into evidence. But the law doesn't allow the judge to do that for any um ordinances of a city. So any ordinance that you're going to have or that you're going to consider or that dictate let's say the setbacks on a variance request they have to be put into the record so that the judge can consider them. If the ordinances are not in exhibit that means that the judge does not have any setback requirements that he has to go by. So it's the whole case would be tossed and then um put back into your lap to properly then consider all the exhibits.

All right. Any questions on those on that process or or so and there? All right. So what does the board oversee? And this is what we call your jurisdiction. So these are things that the board has um by by code the ability to make decisions. Uh an alleged error. So, if somebody disagreed with one of my staff members, whether it was on a building issue, on a zoning issue, or on an interpretation, uh they we can come before the board. They can petition to go before the board and you would hear, you know, what our interpretation is as a city and then the the interpretation by the staff. It was okay. Yeah.

You want to go check uh in there. So, somebody again if if they disagreed with the staff interpretation uh regarding um let's say it was a a laundry facility and they're saying, "Well, no, it the code says dry cleaner. We're coin operated laundry, so we we're not a dry cleaner." Well, that's dry cleaner is the closest thing I have. It's like, well, I disagree. And they they wanted to to challenge that decision. They can do so before the board. Hello, Mr. Luna.

All right. And this is Ronaldo Luna. He he's our our regular board member. So all right. So again, so the board has jurisdiction if there's a challenge or or an interpretation or an error. The other thing that the board does is interpret to uh like when the the zoning map isn't clear. So, if we didn't know where specifically a boundary or what what a specific parcel and what boundary it should be, we would we could petition to go to the board uh uh to get that clarified. Uh the other one rarely seen is a public uh service commission or utility building. So, if they were going to there's an existing home and Amaran wanted to use it for whatever purposes, the board has jurisdiction over allowing that type of use in the residential district uh in there. Um the other uh important one that we see every once in a while is reconstruction. So, if a building that is too close to the street catches on fire, um, and it's not totally, you know, uh, before we could issue a permit for repair because it was too close to the street, they could petition to the board to get waiverss on if it doesn't comply, uh, on its placement or location uh, in there. And then the the m the one that you probably see 98% of the time are what we call variances. And that's where somebody can't comply with a code, especi especially a spatial component of the code. So they they can't be they they they don't have enough room to or they need to be closer to the street or closer to a sideyard or or rear yard. Uh that that would be petitioned and come before the board. Uh so again you have errors uh where uh where somebody believes that we you know staff has uh misinterpreted something interpretations

to the zoning map public service commission reconstruction and variances. Now who can who can appeal to the board? Somebody has to get denied in something. It could be anyone uh in here. They're usually representing a resident or a resident uh so they could do it on their behalf, but they got denied either because they we they feel like we didn't interpret something uh correctly. Uh we denied a a building permit or plan review permit because of a setback issue or or some a use type of issue. It could be a neighborhood organization. Uh it could be even staff that we disagreed with uh uh a determination of um it it would be rare like the parks department appealed a zoning code aspect of how we were applying the setback for a building. It's possible. Uh so they can appeal you know decisions by what we call the building official. That's kind of us. Uh, all appeal stay all appeal stays all proceedings until review. Meaning like if you were applying for a house and I denied you, everything kind of stops until you go through the appeal process. You you're not under any specific deadline or condition as long as you're following through in the appeal process. So, if you received a notice from us that said you have to demo demo your house in 5 days and you appealed that, you know, then that puts it in pause as long as you're following the process until you get a decision before the board. Uh, that's kind of like an extreme type of example. Uh again, we have to set up a reasonable date and time for the appeal to be reviewed and we have to provide public notice. And that's where I'm telling you it takes about 30 days before a meeting is scheduled and then the board may reverse or firm affirm or wholly or partly a decision. The board may modify

a a decision or a request and the board can put requirements on on a decision or a request uh in there. You have that that authority uh in there. One of the things I always note to to applicants when they apply and things that you see, the board's not an architectural review board. Uh the board is not a zoning board uh to to an extent uh in there. You're generally looking at specific criteria of the regulations and why they they don't apply. You're not necessarily looking at the brick. You're not necessarily looking if it's a one or twotory home. uh you're not necessarily looking at, you know, whether, you know, the the pool's the right size or not the right size uh in there, but sometimes you can't help it. You know, you you kind of do, but again, you're not there for the aesthetics of it uh in there. And so when petitioners do apply, you know, we we make sure like they have, you know, you know, you may be knowledgeable in all the codes and ordinances and see, well, where is your storm water? Well, they're not applying or appealing the decision about the storm water. it's just not shown because they're they're it's a question about where their driveways place placed at. So, you'll just see the not the information pertinent to you, but we'll make sure you have enough information to make an assessment and not look at other, you know, aspects of it. Uh, and there are some times where oops, yeah, that probably was important and we mess up and we, you know, we'll, you know, we'll try to get that clarified or or clear. Uh, we do take a look at those things. All right. So on said about 95 98% of appeals or things that come before the board are about variances uh in there. So that means that somebody can't comply with the code or is looking to get some relief from the code for whatever reason. There are generally two types that we're going to talk about. Area variances and use variances. Area variances are when it's like a dimensional aspect of the code again. And then use variances is like I want to

put something in this district that's not necessarily cow out for uh in there. I've been here 22 years and I haven't seen a use variance uh before before us yet. And they're very rare, but it it's always possible that can happen. As a planner, I think there are other remedies before it could even be appealed that should be exhausted uh before something like that comes before here. Uh other things to understand as I talk about that the board isn't here to write code. The code is already um adopted and provided by the council. Uh you're just here to determine when aspects of the code should be should warrant relief to a specific property own property uh in there and we'll go over that in just a second. So again two type of variances area variances and use variances. So when you see a area variance in order to to be for it to be considered is that there has to be something unique about the property. Um that applying the code standard would make it extremely difficult uh to do as opposed to an inconvenience. That the variance would not necessarily affect adjacent properties. that the variance would observe the spirit of the zoning ordinance and the variance would satisfy these additional criteria that I'm going to go through in the next section. But of those five, it's the first two that are really important. A property owner or a neighbor is going to tell you about the effects of like if if you approve this garage that's 2 feet from my property line, it's going to impact me, you know, in in there. So you that that one's easy to identify, but the first two are are the ones that you you know the we prepare the petitioners or applicants to really focus on you know like what's what is so different about your property that everybody else

in all of that has to comply but you don't you why should you why do you why does your property warrant some type of relief that we we wouldn't apply to anybody else uh in there and it could be because you know we do have properties that are unique uh in there. Sometimes there are old platted properties, sometimes they're newly created properties, but they're just like no other. And then there are what we call those practical difficulties uh that would just make it impossible to try to do something in there that those first two are kind of the same. Uh but the one thing I would emphasize is the way the code is written. Each of these u five principles is. So it has to be unique and it has to be a practical difficulty and it would not affect adjacent properties and it would be compliant with the spirit of the code and it it'll meet these other criteria. That other criteria is that it doesn't impair uh light and air on adjacent properties. It doesn't increase congestion in public streets. It doesn't increase the public danger or fire safety. It doesn't diminish or impair property value and it doesn't impair uh public health, safety, comfort, morals and welfare. But the key ones are always these two here. And really that's what you want to challenge the the the property owner of of justifying what's the unique in there. The one thing that's always different is um it's about property. It's not about the individual. It's not about the occupant. uh is not about the character of the neighborhood or or things. It's about what is unique about this specific property, its boundaries, topography, it's uh natural uh aspects and all that.

Christina, what is the zoning district? Is that all of that or do we have districts within all of that? We have multiple districts within all of that. So, we'll have like 65% of all of that is own zone single family residential. Then we have commercial districts. We have industrial district, we have an industrial district, we have a parks district, and then we have a

some multif family districts. So, and each of those have their own like uh list of uses that are called out. And again, it's it's rare that we have I haven't seen a use request for a variance, but all of them have area requirements that are called out. 40 feet back from the road, 10 feet from the neighbor, you know, from the side property, 10 feet from the rear property or require a buffer. There's heights, height, height requirements and all that. [snorts] Thank you. The zoning map is available. The zoning map is available on our website. Um, and so you can access it anytime.

So, And then there are the use variances somewhat similar what what is required but I highlighted in in red the the differences because again there has to be a unique property but if somebody wants to put a a daycare and a single family district you know there has to be a unique condition about that property that that a daycare can't be located anywhere else. two, you know, they they have to prove that nothing else could be done on that property that in in essence that zoning that property single family made it completely useless in there. Two, they have to demonstrate that they really looked at other options uh or considered options beyond like just trying to do what they were coming for. and then the impact to the adjacent properties. And then it goes back to the same criteria about light and air, congestion, fire safety, uh property value, and then public health and safety. So Carlos, can I ask a question here? And it really is just based upon the fact that we used to have an attorney on this board, Mr. Hickert, where I always heard, what is the hardship?

Mhm. And I've heard tonight uh practical difficulties and unique conditions. And here under the use variance is the first where uh the word hardship is bringing my historical memory back. Um what is the difference between practical difficulties, unique conditions and hardship?

Good question. So I do think that sometimes um practical difficulties and hardship I think that those terms are used interchangeably. So there are sometimes when people will come up and say my hardship is when really they mean my practical difficulties or they only have to satisfy the standard for practical difficulties. So because an area variance, it's not so um intrusive or it's not such a a variation from the zoning district. Um it doesn't um give rise to a lot of the adverse effects that maybe a use variance will. That standard for practical difficulties is a little lower than a hardship. So, practical difficulties it is. Well, you know what? I really can't build over here because I've got this swale or I've got a creek or the topography is causing me some problems or the shape of the lot is causing me some problems and and my house really needs to face the street. So, um those are just practical difficulties. a hardship when you're talking about a use variance, um that's going to be very intrusive because what they're talking about is allowing a use on that parcel that doesn't fit in the zoning district. And so there's a lot more adverse effects. And so you've got to show and what a hardship is is that you're pretty much denied any beneficial use of the land without this use variance. So whatever it's zoned for, um, you really can't use it for anything else. And so practical difficulties for a use v for an area variance, it's it that's a little bit lower than what it takes your burden of proof for a hardship. But like I said, a lot of people use those terms interchangeably. It's just really the standard. So when I look like in in terms of a and we do again I haven't seen a use variance but I can't say that it's out of the question but the first one is that the property has that unique

condition that's usually about the property whether it's the boundaries of the property the shape of the property the topography of the property the natural features of the property it's something about the property something you could physically see when I think of the practical difficulties I think of kind kind of like easements. MSD has an easement that runs right through the middle of the property that that you know you know there that's well it could be you know unique condition of the property but it's it's something that you know we you know if a if we if the city created a parcel that had an easement that ran right through the middle of it. We created a parcel that ultimately is going to have practical difficulties being developed uh in there. And that does happen in some of the old properties will find these things. When we create new properties, we try to make sure that those those issues don't happen. But those are the type of things that that uh that that can coordin fall under that practical difficulties uh uh thing then some flexibilities and that's where you know your backgrounds kind of play play a role. But it could be that the existing house has such a unique roof format that trying to realter or change that roof could lead to other difficulties and into the you know improvement of the property. Not to say that it's warranted, but that's something somebody can use uh in there. Um so those are the two that you're well the the one you're really going to see more of these area variances than anything else. Uh I also will note that we you know in the in the component of interpretations uh you're to interpret when somebody is uh uh contesting a decision based on the zoning code or sign code or subdivision code. Uh in there there's another board called the board of building appeals. So

if somebody was challenging a a condition to a building permit, there's another board that oversees that aspect of it. So you'll never get into the technicalities of insulation or you know u trust specifications or you know yours are generally going to be more of you know visual aspects of of what they want to do not how they're going to do it uh in there. So just be cognizant of that. We would never bring something like that before you and not that we wouldn't want to it's just we can't you know there's another group that does it. So conditions in granting a variance, the board may uh impose additional conditions. You don't necessarily have to give people the variance that they've requested. So if somebody asks for 10 ft, you could say 5T, you could say one foot or you can say zero. Um and there and you can also put conditions in in in your uh in your but in those requirements, but you got to be careful because again it can't be tied to the individual. uh it can't be tied to well I I don't know in the use of operation they could do like the hours of operation uh in there uh but you you can impose additional conditions in there that in in part of providing the the relief to a setback that they also grant an easement in there to avoid any further you know uh things and a lot of times staff will do any of the general work or provide you recommendations or things for the board to consider because you don't necessar have to agree with us all the time uh in there that we will note uh those

and um remember that if you do want to impose some conditions on a variance, if you're going to grant a variance, but you want to condition um you want to place conditions on the variance, then those need to be designed to mitigate the adverse effects of the variance itself. So, in the example that um Carlos gave up here, yes, you can construct a garage closer to the side yard um the side property boundary um than is allowed by the zoning district, but because you're going to have this kind of imposing face upon very close to the neighboring property, we want you to put in additional landscaping or something like that so that you know the next door neighbor while they while your garage is closer to that property line, the next door neighbor isn't isn't just looking at this wall. There's something there to break it up or to soften it just a little bit. So just remember when you are looking at placing a condition on a variance, it's got to relate somehow to mitigating those, you know, those those adverse effects from the variance itself

and then consider variances are an exception to the zoning choices made by the council. I mean these are are rules and regulations that you know identify the community's character vision uh and such and they should be granted sparingly because you're actually granting something that would be contrary to what the overall vision or goal uh goal is or at least our codes are supposed to reflect. So uh again uh if variances were granted here and there this there's really no need to have zoning uh in place. Uh the other thing, while your decisions don't set precedent, you're be viewing items case by case, everyone that comes in is going to do their homework and they're going to point out, well, they got a larger pool and we're here for that larger pool, too, or or something like that. So, you'll be surprised. Uh so you know when you make your decisions or have your discussions you know our our reports really try to narrow down the specific you know conditions of a property or or why something was unique or or so uh in there. Uh but just keep that in mind. Larry, you had a question.

Well don't you we do set precedents. I mean kind of you know I don't think that you're beholden to that pres precedent uh because every property is different. they are but I think it's something you got to take into consideration

and then at that point from a planning perspective would be if and then there's something wrong with the code you know if if it is something that like every triangular piece of property uh got a relief from a a setback and then you know it behooves that we take a look at the code and look at these type of specific properties and make necessary changes in there and we've done that before when I started. Yeah. Uh you know, we we Yeah. Mhm.

So if a house was built under the previous codes and it's in violation of of current uh codes and they want to add on to that that existing building, what apply? So the we would call the the conditions of the property legal non-conforming, meaning that it was built in accordance with whatever rules and regulations were in place. And we make that assumption right now that every property that's built pulled a permit and it complied with whatever conditions were in place at that time. So all of a sudden we change the setbacks and we do every once in a while uh in there and now we actually we by the changing the setbacks the property is now closer to the road than it was before and the new owners purchase a property. They didn't look in there. You got to be knowledgeable in the codes to figure out oh wow uh you know in there. So, it does happen a lot especially in older h housing stock and you want to put an addition and you'll come in talk to Jack, Don or myself uh in there and we go over the setbacks and that will note well you know 10 ft of the front of your house is over the property line. Uh so when you consider your addition here's the areas that you can add on to. So they could be a simple addition in the back of the house to the side of the house and all that. Those are the simple ones. You know, it's like, yeah, you can expand your kitchen, but you got to expand it this way. I can't let you go forward. And then the [clears throat] complex one is, okay, we bought this house and now 10 ft of the house is, you know, too close to the road and we want to add a second story. Now, we get into discussions with them. Okay, so if you if you set back the, you know, the edge of the second story behind the 10 feet, can you do that? Is it possible? Sometimes it's not given and sometimes it it it you know it could make the cost exponentially high too. But we we talked to them about that. The

other complications like they may be able to do that but to do that they're going to have to put a new roof on the part that's over the 10 ft uh to make those adjustments and sometimes those appeals have to come before the board because we don't have the authority just to say no you can go ahead and change that or don't worry about that uh in there. So there's a couple of things again. one, it's okay to have a non-conforming structure. You can continue to use it. You can go inside and gut it uh in there, but you can't move the shell. Uh when you want to do an addition again, as long as you don't touch the area that's not in compliance, you can go all the way up to the new line, but you can't get any closer. And then there are the situations where, you know, I want to widen that nonconforming area or I want to go up in that non-conforming area. We'll talk to them about did you consider other things and and and in the worst case they may consider saying no yes we did uh but we would like to pursue an appeal. It just makes the most financial or logical sense just to go upward uh in there and that's where something would come before you and you have that authority. So when people come up to you for a needs a variance and you we we they come in front of the board, do you have an opinion on given the facts, do you have an opinion on whether that should pass or not? Yeah, we'll and we'll provide you a staff report to kind of note uh in there and then we always go through these you know and typically what you'll see uh you know in every 10 appeals nine of those will have modifications from staff recommendations like the only way it's going to work is you're going to have to do it this way and minimize this and all that. A lot of times you won't see what we originally saw. you'll see an adjusted version then and you'll note and sometimes you'll see that one

that says I don't care. I'm just going to do it and you know we we note it you know uh in in our reports and you know the final decision is yours. We're not here to challenge your decisions unless we think that there is a legitimate interest in doing so. But uh yeah, you'll see those every once in a while and I think most of the time you'll you'll pick it up. Who is I don't care the person that's the the applicant. Okay. Yeah. Not the staff, it's the person has probably one that that that that that Hey, you know.

Yeah. Okay. Now, in order for a variance to to be approved or authorized or granted, again, there are always going to be well to have a quorum of the board, I need four people. uh and that is in order for a variance to get approved you have to have four four yeses uh in there the board is primarily made up the five principal members so a majority of the board is really three so I can have a meeting of the board with three but you can't take a vote on a variance unless there's a fourth person in there and then in order to get a variance approved uh you need four votes so if if only four members showed up, it would have to be a unanimous decision. So, we always try to get that fifth person because that gives that, you know, that resident that's petitioning before you, whether they're a developer or homeowner or whatever, that ability to, you know, you know, to to lose one vote or not get one vote. And it does happen uh in there. And uh but what I can't have is like seven members of the vote of the board and then that gives them the four you know that gives them you know the potential to get four out of three of the votes. So it's always only five members can vote and of those five voting members four of them have to concur or to grant the the the appeal. Um and again I can have a meeting with only four people. So every time when we hold a meeting and I'm short a person we inform the applicant and give them that opportunity. do you want to defer and wait till next month or do you want to pursue and see, you know, see if you can get everybody to to agree? Uh so they they're always aware of that. Uh again, I have three alternates. I've been very fortunate uh in there and now I think I have a full board uh uh with with that.

So, it's rare, but it's always hard to, you know, I wish I could tell you on the Thursday of February, we're going to have a meeting because I can't. And it's odds are I got to find out 30 days before, send you guys an email, hope everybody gets it promptly and responds, but sometimes you're out of town or you don't see it and all that. And then I'm trying to find out, can I do it before I put it in the paper and before I send out notices and, you know, get everybody excited. you know, we're trying to confirm, do I have enough people? And then when I get to that meeting, again, I need five of you, no more than five of you to vote. So, if you're the sixth, seventh, or eighth person, you're like, well, you know, the Blues game is on that night. And, you know, there are other things I could do, you know, so it's always hard and we'll we do our best to work in there. And because we're not very consistent in terms of meeting, we recognize that that that happens um in there. And we sometimes I I have, you know, uh the five primary members. Sometimes I I have a split between the primary and alternates. And sometimes I only can get four. And sometimes we're sitting here at the DAS, you know, at the meeting just waiting for one more person to show up. And and that happens, you know, and we're we're all human uh in there. But in order for a variance be to to be authorized, it has to have four votes. So even

and I just want to elaborate on one thing that Carlos did say. So he said that let's say that we only get four members for a particular meeting. Um and he said earlier that we inform the applicant of that. So what I usually suggest to boards of adjustment, there's no legal requirement that you table the if the applicant isn't comfortable going forward knowing that they have to have a unanimous four votes from the four people who are there. um if they aren't comfortable with moving forward, there's no legal requirement that you table it to another meeting date where you can have five. But I suggest to them that I think it's important just looking at um you know due process considerations that kind of thing people do have the right to petition their government. Um and I feel that if the applicant is not comfortable in moving forward with just four members that we would give them the courtesy of um continuing it to a meeting where we might have the full five

and we would not have to republish or do any of the processes that you originally had to do or do we have to do that over again? Well, if you have a regular meeting date and it's always on the second Thursday and you table it to the next regular meeting date and um you make that clear in the meeting for anybody who was here or anybody logging in online then you should not have to republish. I hear

I hear a however in the end of that though. Well, sometimes people might say, "I'm not going to be here on the second Thursday of next month, so let's set up a special meeting given that we do want to provide a timely answer to this particular applicant." If that happens and you do want to set a special meeting, in an abundance of caution, I would send out your notices and republish again.

Question. Um can please use your microphone.

We disen the recording.

Oh recording. Okay. Thank you for the mic. How does an alternate get activated? So the the first thing I do or generally just out of just experience, I'll send out an email out there to see who who would be available for the that date of a meeting and then look at my responses and typically if the primary members respond uh in there, then I'll set them. But if I don't hear from one of the primary members, I'm going to look now to my alternates and see who's available that that at that point. So there's nothing special you have to do. Um and there um in there. So let's say uh Christine and is a is an alterate alternate member and I hear from four members, four regular members and Christine had also uh submitted that that she had she was available that day. I'm going to go ahead and just kind of schedule her because once I confirm five, then I'll keep posted with those five. uh unless one of them all of a sudden had a a late minute conflict uh in there. Um and to me it's like whichever you know we try to do a rotation but it's whoever's available. A lot of the times I'm I'm trying just to get five uh in there because you know the schools people got a lot of things going on they're out of town work

uh and all that. So so then all all seven board members seven is the number right? There's total of eight eight. So they are always involved in all the previous discussions. There would be in one like this. But if this was a meeting tonight where we were reviewing a petition or an application, there would probably be five of you here only five members uh present. Yeah. Five full time. There's five full-time, right? five full-time and three alternates.

But what I'm what I'm trying to get clear is that an alternate is a perfectly able and informed person to come and exit. So that person needs to be involved in the case all throughout. Yes. So if uh if we had an appeal where you know that it's presented that one night and for whatever reason uh it it's postponed the a decision is postponed to the next meeting date or or set to another date and then the expectation would be that those same people participate in the next appeal. When you when you send notices out do you send it to all the regular members and the alternates?

Yes. Mhm. So, so yeah, the way I look at it in the end of the day, I'm just looking for five members to be available, whether they're alternates when there's a vote. Yes. Mhm. There's a vote. So, what I wanted to just get clear is that you mentioned that there's reports that are prepared by the staff that we read ahead of time. Yes. So, you know, that the voting member needs to come prepared. So, if it's an alternative, that alternative needs to be prepared as well. Yes. Yes. Good point. So this is done months ahead in advance or weeks.

Yes. Yes. So and typically the way it was set up uh in there. So our meetings are generally always held that second Thursday of the month uh in there when there is a a request. Uh typically the the past five years I think we meet like two or three times out of the year. So it's not very consistent in there. But uh and the reason we do the second meeting of the month or second Thursday of the month is that like council meets just about every other Tuesday. Uh PCDC meets every other Thursday. The the uh parks department has their own commission meeting. So there's and then court is held here every other Wednesday. So there's activity going on. So the zoning board the the date that was reserved for the zoning board is the second Thursday of each month. Okay. So, if somebody wants a petition to go before the zoning board, in order for them to do that, I have to publish a uh a hearing notice 15 days prior. So, I'm already two weeks out. So, you you're going to know with at least two weeks prior that I'm going to have a meeting. Well, to do the the uh the posting for the newspaper, they want their the posting submitted before their deadline, like a couple of days prior. So, now I'm 3 weeks out. and then to review what somebody submitted, I need a week to kind of comfortably to take a look at it. So, typically within a month in advance, I know if I'm going to have a meeting and I'm going to send out notifications to see who's available at that time.

Thank you. All right. And again, after the the board generally makes a decision that night, it's up to the board group to to determine. So after you hear all the public comments, staff, the petitioner, you do what? We kind of you close your meeting and then you guys have a discussion. Uh well, when Carlos says close the meeting, it doesn't mean that you go into the back room and you have discussions. Your discussions occur still in public. It's just that there's no chance for public comment or for any further testimony at that time.

Yeah. Do you have a discussion for yourself? Uh generally the chairman goes person by person and what do you think? What do you think? What do you think? What do you think? Then they they talk a little bit about it and then then you the chairman will ask okay is there anybody ready to make a motion. The making the motion is simple because again your motion is always going to be positive. That means to grant the appeal and we're going to have that written out for you uh in advance. So you're going to read that and then you're going to vote. So if you're not for the appeal, you're going to vote no. If you're for the appeal, you're going to vote yes. And again, I need four yeses for something to get four yeses out of the five or four that are there to get something passed. All right. Uh in there now

and that's where we're going to go in. Yes. So after that that So let's say you had a I'll use it as an extreme example. you have an appeal that came before you and the the board granted it and you shouldn't have and I'm at I'm going to talk to the city and the city attorney saying we really need to appeal this and there's some specific reason uh we can then petition the county circuit court

uh to to reconsider what your decision was in there and it works vice versa. So somebody comes before you ask for a variance and you guys don't grant it and again I'm going to say like but you've granted everybody else's before what you know I'm now going to go to the county court and appeal your decision and again the judge is going to look at what evidence was submitted. We're very thorough with ours and it depends on what they submitted about that. So the hearsay about well you granted everybody else you know unless it's submitted as evidence it's just hearsaying.

Do you recall any time of denying a variance? I'm just curious. Denying of course. Oh yeah. A lot. Yeah. Yeah. Okay. It's my first time up here. Yeah. A lot. Uh appeals. It should be noted that uh nobody online or any recordings cannot uh hear what you're saying unless your microphone is on. Just putting that out there. No, I don't recall there there's ever been an appeal of an appeal and there might have been before my time.

Yeah, there was one that I remember that was Yeah. And Carlos, um, just a question kind of, um, especially for the newer folks, just because something is phrased, the the motion is phrased in the affirmative doesn't reflect that staff or the people who created the motion believe that it should be approved. it's that the mo motions are always stated in the affirmative.

Um and then a kind of followup to that is just because something is before the board doesn't mean that staff think it should be approved. Correct. Good point. Um it's their right.

That's right. It's the individual's right to come before the board. Um, another question that that I have, um, is when looking at things and you know, I've only I'm very new as well. Um, looking at just the most recent ones that came before, one of the questions I was having in my head, uh, as the petitioners were presenting their case, um, was how much of what is presented is how does how does this board consider what is presented as a want versus a need? um when trying to decide when a variance is acceptable. So, this is I'll just make up something that was not in the most recent one so that we're not like tied to a specific case, but let's say that somebody wants to build an extra addition to their house and it they want it to be a certain size and in making it that size, it's going over the setback by 3 feet or whatever. Um but they have the option to not make it that size. Let's say they want a twocar garage, but they have the option to do a a car and a half, but they don't want a car and a half. How does how do things like that factor into the decision making for the board and determining this practical difficulty when it's like it's not necessary, but it's desired.

There there's two and I I'll call it I'm going to give a planner version and then I'll let Stephanie give a legal version. So when we take a look at them uh in there there could be some things that yeah you there that there are other options a lot of the times let's say on uh pieshaped lots or lots that are in a culde-sac there you we'll that's uh majority of the the variances you'll see usually involve a pies-shaped lot and there are different alternatives that they could have done. Let's say they used the garage example, you know. So, in a in a pie shape, if you move further back, then your setback gets wider, you know, and you get more space. And you move further back, the more space you get. The further back, the more space you get. But if you're trying to align it with the front of the house or extend what's already there, you're going to have that conflict. So we take a look at it in terms of we we know what the code is and what the intent is and that we have to follow to but then we also take a look at it from a design perspective and also to what extent is the request uh somebody's lot requires a 20ft sideyard setback and to do this garage because they're in a codac you know they need a three-foot variance but it's only for a corner part because as the property goes back the variance becomes it the the the this the non-conformity kind of goes away. So it could have been it's like well you could design it by having your existing garage here but the second door here and everything fits perfect. It can be done. A good architect, a good engineer can design it and make it look like perfect. But, you know, the typical homeowner isn't going to see that or really want to to invest all all the work into that. So, we do that review and we take a look at it and we look at, okay, what is the the degree of the the the uh the

variance request? How much are they asking? You know, 3 feet reasonable. Five feet, you're getting like really out there. 10 feet, no way. You know, there's other look at other options. So we we're we're going to go to the board and saying, you know, hey, we we've we looked at the other options, the other alternatives in there. We tried to minimize how much it was going to happen uh in there and what was going to be the mer what's the benefit back to the city by doing this. So like having three feet and making the house look consistent or saying no and making them push something further back and what impact that has with the rest of the structural components of the home and all that. And again, they tie that, we try to work with them to tie that to to the uniqueness of the property or or so. It doesn't always work in there, but we we do look at it from from that end to see, you know, what what is, you know, what would be in the best interest of the city. let's say it's like nope no if if because if there's not that flexibility uh the worst case scenario is then there's no more investment into that home or so or it becomes another tear down and we we looked at we we look at that we take those into consideration not ideal uh but I I think we can't avoid having those looked at from a planner's perspective to see what is be what would be in the best interest of the city and this is not trying to go against the council's goals and envisions in terms of how the code was set. Uh but there are those times that it does happen uh in there. Uh does it have to be granted? No. You know, the the board can make that decision. The other thing is sometimes the board won't agree with us and that's okay. We don't take that personally. Uh it just depends on you know like the the other person can have a um you know uh uh you know legal

representation and they could be like way up you know up in front and and and and combative with all that. Then we kind of rely on on on ours but they they uh they can be intimidating uh to the board or or so. uh but it's ultimately it's their their decision in the end. uh in there we provide them as much guidance as we can more from the perspective of you know what would in the long run what you know what is the degree of non-conformity or variances that we would re be making and what how how far is compliance or the other option you know make it viable

and I don't know that really answers like what you're saying but I think there there's always going to be that flexibility we're just kind of human and we're looking at it on a casebyase basis on what that structure structure is uh in there. I think in the end they're just more from a planning aspect of it. I think legally it it's more black and white.

Well, it's supposed to be, but it's really not. Um and and um it doesn't come down to be to be black and white in most cases. So, I think the first thing you look at is um okay, so what are they trying to do? And um let's face it, today's standards for let's just take single family residential. Today's standards are a lot different than they were a few decades ago. It was perfectly fine a few decades ago to have two bedrooms and only one bathroom in the house. And a lot of houses uh uh you know um built a few decades ago just have one bathroom. That's it. Today's standards is a little bit different. So let's say that um somebody is wanting to um add in a a bathroom or add in a bedroom. um is what they're trying to do reasonable given today's standards? And if you answer that question that yes, what what they're wanting to do is reasonable given today's standards and they're not going beyond that. Let's say that they're not asking for 4,000 square foot house or they're not asking for five bathrooms, they're only asking for maybe two or three and a setback in order to do a room addition, then I think that that's that that's fine. If you find that that's reasonable, um your next um inquiry is going to be um um if they're I if what they're asking to do is reasonable given today's standards for construction um you know and for housing. Um have they considered other alternatives that would not result in a variance? So, for instance, um if they're wanting to if they're wanting to add on a bathroom, um is there a way for them to add it on maybe to the rear where they don't have to intrude into the sideyard? And that's where, um staff, I think, is going to inquire when they first come in to make the application. They're going to say, "Okay, well, um what else have you considered? You know, have you

considered this alternative? Have you considered this alternative?" And um and that's very important. If they come in and they say, "No, this is the way that we want it." And believe me, I've had those applications before. Um and um then, you know, if they haven't considered others and they can't provide a good explanation about why they haven't considered them, then at that point, I think it goes into more of a want than a need. And I'm going to give you a couple of examples. um in um Creekore. I had an application one time to their board of adjustment and they had a house and you know it was a reasonably sized house and with reasonable amenities. The only thing and this was new construction. The only thing is that they wanted it um uh laid out on the lot a certain way because um the uh one of the owners was a firm believer in funue and she believed that this particular layout on the lot which would intrude into the setback a little bit um was the best for her and she couldn't and and she had many other alternatives. there were other ways to lay out this exact house on the lot without intruding into the setback, but no, this is the way that she wanted it and that variance was was denied. So, I think if the overall project is reasonable, they're not asking for too much given today's standards for housing um and that they've considered other alternatives and they're and they're able to pro provide a legitimate explanation. And I'll give you an example of that, too. Um, recently I had an application before the Brentwood Board of Adjustment and this was for um an industrial and um property and it was their mechanical equipment. And so they wanted to put the mechanical equipment on the ground in in a setback. And so we went through and they were able to articulate an explanation as to why the

roof wouldn't work, why putting it inside wouldn't work, why putting it on the opposite side wouldn't work. And they had very legitimate explanations about why all these alternatives wouldn't work, and why this one location was um was really the only location for this mechanical equipment. And so they were able to articulate that and that variance was was granted. So I hope that that that is very helpful. Yeah. Thank you. Your question is a good one though and probably in the discussions we have that's the biggest issue we would normally have is what's a want versus a need. And that's always it could be a little dicey sometimes. Yeah. Versus hardship. So let me let me follow up on your example where you said move it to the back.

Mhm.

Okay. Let's say there's no plumbing in the back. Okay. you know, the plumbing's up, you know, the kitchen, basement, and all that. And they're saying, "Well, no, you can move it here, but there's no plumbing." And the person says, "Well, that, as you said, that's not a good example because it would cost me this, this, this, and I would have to do this, this, this for plumbing to get the plumbing back there." Now, I'm going to be brutally honest. Some people here have known in the past, I've said, "Don't come to me about money lows." Okay? But but this one is one where there's no plumbing and I would have to do all this. Is that what we would consider as part of that hardship?

Not of the hardship itself, but I think that and I'll get to that in just a moment, but that it is I think that you should consider it when you're weighing um have you considered other alternatives? And I think that that is a legitimate reason why that alternative in the back is not available to them or is not reasonably available to them. Now remember hardship or um practical difficulties, you're really looking at the property itself. So you know is there is there some, you know, practical difficulty. Is the lot width just too small to do this bathroom addition? And then if it's just too small or if the if if it doesn't provide a lot of space and they've shown you why um you know why the back won't work then I think the size of the lot is your hardship or your practical difficulties because maybe it was platted 30 years ago. Who knows? Um and then so you're saying okay so you really do need a second bathroom given today's standards. Um, and you've considered the back, which would not intrude into the setback, and you've given a legitimate explanation about why that wouldn't work. There's no plumbing. Um, you would have to run plumbing, which would be very difficult and costly, and you've considered all these other alternatives. And so, you're really left with this is the most reasonable alternative for you. Yep. All right, I'll go. I think that kind of covers it in terms of for the slide presentation. There's one that was called about standards and was the board's decision based on competent and substantial evidence. These are the standards if somebody was appealing this to the circuit court. Did the board make a decision that was competent? It had substantial evidence. Was the board's

decision arbitrary, capriccious, or unreasonable? and was the board's decision unlawful or in excess of the board's jurisdiction. And again, staff is here to make sure that those uh don't happen in in that process or we point them out to you if they were.

There is one additional um topic that I would like to address and that is witnesses. So, you're going to have people come in and speak in favor of the variance and then you're going to have some people maybe come in and speak in opposition to the variance. Um, and you are not legally required to consider all of the testimony on the same level. So, you can take into account and you could say, well, the next door neighbor's testimony is a lot more important than, let's say, somebody who lived, you know, two blocks over and who wasn't going to be seeing, let's say, the garage coming into the sideyard setback. So you can consider the the neighbor's testimony is more important. You can weigh that more heavily than somebody else. And I've got a board of adjustment and we meet almost every single month. And there is somebody who loves to attend government meetings and he comes in and he comments on every single variance application there is even if he lives a mile away from it and he's always in opposition. Um, should his his testimony be considered in the same way that the neighboring property owner's testimony is considered? No. He lives a mile away. He's not going to be affected. So, you are not required to um to give the same level of consideration to all the testimony. You consider where they're located, how they're going to be affected, how they're going to be griefed, and all of that.

I want to back up again for a second. I'm sorry about the bathroom thing. Okay. I just You have a house they want to they have to have a second bathroom. They want to build out back which they're able to but it's costly because plumbing. They need to go on the side where there is plumbing but it's going to encroach uh they're going to need a variance. Money shouldn't be a hard I mean it's not a hardship. And if that's without a variance, if the the bathroom has to be put in back and that costs more money, sorry, that's where it has to be. Correct.

That's how it's supposed to be. That money is not a consideration. Um I but I also think that um at least boards of adjustment that I work with, I mean, they look at things practically too. And now if let's say that it is a difference uh uh putting it out back is maybe a cost of a cost difference of only maybe $5,000 or something like that. Um uh then you will probably say well it's completely reasonable then to add in the plumbing and put it out back because your c your the cost difference is minimal. But when you start talking about just for normal families something maybe like 20 a cost difference of something like 25,000 something like that um you know I I I do think that it can be considered when you're looking at whether alternatives are reasonable that remember that's not really the hardship. The hardship is you've got an old platted lot that maybe is smaller than um you know what is normally found in the zoning district. And so that's you know and we're trying to work around all these practical difficulties. If someone came in and said um I uh my my lot is huge but and I don't have any problems and I don't have any creeks. I don't have it's not a a pie-shaped lot. It's perfectly square and it's huge, but I want to put it here because it's going to be cheaper for me or I want this exterior facade because it's going to be cheaper for me. No, I don't think that that flies. But when you're looking at whether alternatives are reasonable, I think that you can consider if it's going to be an exorbitant cost difference.

Thanks. Another question. I have some questions. Is that okay now? Yeah. So, um you mentioned witnesses and uh some are just, you know, regular citizens, but uh I guess it's perfectly admissible for someone that really wants their appeal to bring some type of expertise and speak on the behalf before the board. Um, and let's say the board really wants to deny this or or or the staff is saying this is really but they come really load it.

Can the board request experts to on their behalf to explain expertise on their behalf like architects and engineers?

Yeah. So, and actually I think that staff will probably notice that um um in the beginning when the application is done. Um but um the statute does allow the board um you know or or probably what's going to happen is is that staff because it's the city that presents the city's case and that's why they give a staff report. Um remember you are like a judge and um and so the city is going to present its evidence and its case and then the applicant is going to present its evidence. Um I am sure that the staff is going to recognize if an independent expert is necessary for the city's case and that they will bring in that person um and to testify in order to make sure that the city puts on competent and substantial evidence to support let's say the denial of a variance. Um, and so normally that's how it would be done because remember you're neutral. Um, and um, um, it does allow you, let's say that um, you want just to consult with somebody, the statute does allow, you know, for that. Um, but if there was some type of evidence, specialty evidence needed, I'm sure that staff then would arrange for that and then bring that person in. Um, as far as um, witnesses, if you have a couple of people who come in and you think, "Oh, you know what? Their testimony is really not relevant to this, but if they do want to testify, then I would go ahead and allow them to testify."

Okay. So, um, you mentioned the word independent

expert and that we're neutral. So, how about those staff? And that's my question. My original question was can we bring in the city engineer or do we have a city architect? I'm just asking do we have those? Those are obviously not independent. But do we have a city engineer that can participate in proceedings or a city architect or is it a consultant? if an application indicated that there was I'll use an example a structural complexity uh that was part of their their their variance request or their use for the hardship or practical difficulty uh in there. Um I guess beyond like my my expertise I could have an inspector or I could have uh you know public works director uh that note if there was a question regarding that. Uh let's say that the applicant decides to hire somebody to come in to speak in their behalf that's versed or knowledgeable beyond what we could, you know, we, you know, staff would be able to to question or or rebuttal on behalf of the city or even the board. Uh we could hire our own expert to come in and and ask questions or uh or engage in in into is that right, is that correct? you know.

Mhm. Okay. So, so does the city have a staff engineer, a licensed staff engineer? No. So, no. What about an architect? No. Okay. Thank you.

Um when let's say that a petitioner is coming forward and is going to use a financial piece as as some of their proof for their practical difficulties. is the expectation that they will present um actual documentation that shows and proves the difference in cost um or does the board just take them at their word?

I would look at it that there's two that it's possible two scenarios in that. I think it would be the the board should question that. How did you get to that amount? And the the more proper way is like to see an invoice

in there. If you're going to use that as as an excuse, you should submit evidence. Again, it goes to some, you know, an appeal of an appeal. They're going to be looking at the evidence that was submitted and it was because uh a neighbor sued the the the the decision of the appeal and that appeal the basis of the appeal was because of the cost but yet no cost estimate outside of a number that was thrown out during back and forth. you know what was the you know we would be I don't want to say liable but I mean judge where was the evidence regarding how did they get to that number I think is is a reasonable question that the judge is going to ask

I would I I think I would be asking for more evidence of that it's got to be competent and substantial and if somebody um now if you have a property owner who has been in construction for 20 years and he says based on my experience it's going to be this. He's got a he's bringing a special expertise to his testimony. Um, but if somebody just comes in and says, "Well, I haven't really checked around, but I Googled it and I think it's going to be, you know, $50,000 more if I did this, and therefore this alternative is not available to me." Um, I, you know, I I don't think that that carries much weight, but that's just that's my opinion. And so, I would I would ask for more evidence of that. And then my final question um is does the board have to make a decision that night?

No. So if they feel that there you know questions arise and they don't feel that they have evidence to to clearly decide one way or the other, they have the option to table. Mhm. Okay. And I would assume it could be that I mean after all the testimony, we're three hours in and okay, we need time to think it over or look over her information. So, we're going to

Yeah, it it has happened several times. Um, but I think this board does a good job of knowing that as far as asking the right questions, finding out if there are alternatives, and for everything we do, I think we we'll ask, have you looked at this? We don't just we try not to grant any variance truthfully. Uh sometimes they're pretty easy to decide. I mean, once the the we get all the information, we're we're not talking any, you know, it's it's pretty obvious that it's Carlos that they're supporting this decision that, but we h it has to come in front of us. But we pretty much we drill them as far as other options not to create a variance

all the time. And I think I think in in practical terms having been on the board for quite some time if the case were as you came up will just accept the word for it. If it was reasonable maybe but I think if it was outrageous we we would probably say we you must document that before we go any further. Can we ask questions to anyone presenting ahead in front of us, whether it be staff or any witnesses or the petitioner as long as they're sworn in? Yeah. All right.

Wish on that note, I'm hold one second because I think it's important for the board members to know this. So you you know our agenda is going to get posted the Friday before the meeting and you you know you're probably going to get an email from me saying I have an appeal and a lot of the times because we are a small community I get asked like where and whom uh in there because they may be you know uh associates in the PTO or something like that. I was like I really don't want to get involved in that and that's okay. That's why I have the the total of the eight members uh in there cuz that that does happen. So that means you're going to know where the variance is and possibly who the variance requesttor is. Okay? You as a board member can't go to that property or can't go walk through that property. Can't make contact to that property owner uh in there. Nor can that applicant call you and say, "Hey, I'm going to be going to the board because we are doing this and all that." All you can consider is what is submitted and brought to you on that night or you know any subsequent night after that meeting that is presented to you. So if I'm saying that my hardship is I'm just going to use a you know a historic tree on on on the grounds in there and that's what you know you're going to see the the the the application a week before the meeting and what their hardship is and they're using that you know yeah you can go kind of drive by and just turn around and see what the tree looks like but you shouldn't go out there to go look and touch the tree or talk to the owner about the tree or you know engage in your own aspect of the tree you're gonna wait to that meeting and if I'm saying it's a historic tree you know if I'm going to tell you that my assumption is your expectation is you're going to ask me prove how do I

know that did you you know prove it show me the Missouri way you know of why why that has you know how I got to the age or why it has some historic significance or something I should be you know, providing you proof of what I'm telling you is is specific in there. Um, if by chance, and again, we're a small community that they they do talk to you and you you happen to be the fifth the fifth person that I get a hold of because I I can't, you know, you have to disclose that information at the meeting that, hey, I did get a call from them. You know, I I they they inquired about the appeal process, but I didn't answer any questions. I just want to put it out for the record or they're associate of mine, you know, and and something uh and and you know, we we you know, we talked but we didn't talk about the you know the the appeal process. Make sure you make that uh make us aware of that. And again, you should not have to go to a property. you'll get information of what they're saying is is the appeal like the cost and your your response should be know well where where is the invoice you know where where are the the numbers broken down in there and if they're not in the packet and they didn't provide it they just do like hey it's going to be costly uh you should grill them at that meeting because odds are we already did and told them that they need more information I can't force them to get it get it in um in there but I can make them aware that that that they're taking that risk.

What if they bring it that night, Carlos? I mean, you know, we've all seen this before, but what if they bring it that night? It's not part of the packet. It's new evidence and it's accepted. Okay. Yep. Anything presented to you at the hearing, um, even if it hadn't been presented to staff beforehand, um, can still be considered because that's evidence presented to you during your deliberative process. The one thing I will note and unlike that aspect of it is like I can't come with I have a whole new design you know and that that that would be different

a couple of just some some some uh notes in in here real quick actually have a meeting at 8:30 I know you I mean So you're you're good. Uh we do have to do election of officers. I am short two people uh in there. Uh but eventually I do have to get that done. So I might look at another meeting in December unless you guys want to uh you're you're it's 8:30. So yeah. So uh that'll be we'll have to do it on another night. But uh if we can continue the discussion. Thanks Brian for for stopping in.

I have a question. Maybe you discussed it before I came. Apologies for being late. Um, but uh, who evaluates conflict of interest? Is it a selfhonors system? I think did you talk about that already? Conflict of interest, I would assume, is like if you have a financial interest

in in that that deal. If they're a neighbor, I probably wouldn't participate. If they're down the culde-sac, I think you're you're okay as long as you disclose it. Um, and there if your kids go to, you know, the same school or the same boy scout, girl scout or or or church club, you know, that's not a financial interest. You know, the person, but you don't have a financial interest in that person. So, because sometimes I mean we're we're 8,700 and you can you can't imagine how small that is when I'm trying to get a meeting because everybody pretty much knows everybody.

Yeah. And I kind of understand. I just wondering if there is an actual cycle process that you have to say I have no conflict on this case. I will serve as a no. There's no process unless you tell me when again that's where a lot of people like when I send out that email saying I got a variance. Yeah. Uh several members will ask, "Well, where is it and whom?" Yeah. Well, in the neighborhood here, there incredible amount of families. I start talking to them and they're all sort of community that it happens.

Family relationship, it is a conflict, but uh but it's mute if it's not discussed or part of the process. And I would think of all the boards and commissions that the city has, I mean, because of the size of the community, how close-knit it is, this one is the most difficult because odds are you're like one person away from knowing that that applicant. Can I ask my staff question? Oh, yeah.

Okay. So I from I just have a few questions um just how the board of adjustments works um in terms of the meetings that um uh chair Gerstein said that um like you've had those meetings that have not been or action hasn't been taken on the time that it's been prevented. So is there a timeline that kicks in to say that this there's a certain amount of days that this has to appear again at the board of adjustment or is it just automatically the next month we plan on bringing them back? Because I know like with PCDC you have 60 days you know to take action on this petition. So if it comes for the board here is there some sort of you know shot clock.

Yeah. Or does it kind of just carry over to the next month for us for when we would have our next meeting?

Yeah. So um um there is no time deadline to entertain a petition. However, just under um just very broad due process principles. It's important to do it on a timely basis. don't drag them out. Um so if um if a petition comes to you and you don't act on it on the the first meeting, um you can table it and consider it later. There's no time deadline for you to take final action. I just wouldn't let it go on for for too long. That's um uh that's just not fair to the applicant. Now, um like planning decisions and things like that, um if they do get dragged out and it was clear that it's an administr and you guys will never do administrative actions, but on certain administrative actions like plan commission, if you do delay it too long, that can actually incur some damages to the applicant. And if you should have approved it in the first place, let's say for um a site plan and it complied with all aspects of your ordinance and staff is saying it complies with all aspects of your ordinance and the plane commission though does just doesn't like it and they um delay it and delay it and then let's say that it goes up to the city council and then it's delayed a little bit more. There have been cases actually where the applicant has brought a lawsuit against the city and has obtained damages for that. Now you guys are quai judicial. you guys don't fall under under that. But I think just under general due process considerations, I think it's important that you um consider it and make final action on a timely basis. Just don't drag it out for too long.

And then are there any um timelines on how long a witness can present for? Um, you can definitely set them and I don't know if you have rules of procedure that you've done for the board of adjustment here, but some of my boards of adjustments have set rules of procedure. So, um it's usually either staff or the applicant that goes first and if it's the applicant then they have um a certain period of time and then staff gives their report and then you take the um any um testimony from people in the audience and um so um I know a lot of boards of adjustment that have set time limitations so that it doesn't go on for too long.

Yeah.

But you need to apply those equally across the board. um except usually they offer the applicant um additional minutes because and the rationale is because they are the ones with the petition and um and any questioning by the board does not count against that person's time. So, let's say that the next door neighbor comes up and says and gives um let's say that the limit is five minutes and they give 45 seconds and then all of a sudden people start asking the next door neighbor questions then that doesn't count against their five minutes usually. And then I had one more thing about um so in my time here I've been here a little over a little over two years now and I've been to a couple board of adjustment meetings and in terms of board of adjustment I've never been in the situation where the board has uh put conditions onto a certain petition coming here and I know that when it goes to the board then it has to go to the planning commission. So my question is I know that I mean obviously the conditions will carry weight but at what time you know obvious thei the PCDC board also applies their own conditions as well. So I was curious on like are we from planning staff held to enforce the zoning board of adjustments commissions prior to even that petition going to the planning and community design commission

because what they're doing is they are approving a variance subject to these conditions and if those conditions are not met then the variance is null and void.

Okay. So, if you take, let's say that they get a variance um you know, for a fence and they say we're going to put a condition on it that yes, you can have a privacy fence at six feet when it would normally be 4 feet, but the slats have to be 30% open. So, it has to be some openness, you know, for light and air considerations. So if it goes to plan commission, plan commission can't say, okay, we're going to allow something at 20% open because then that would negate the condition and then that would mean that the variance is null and void.

So like for instance, when you gave an example earlier about um talking about the the board pushing for like screening of you know if you're going to get go over this sideyard setback then you have they can imply the condition of screening. But then I'm I'm curious like also in terms of like with our zoning now with with with the whole new tree ordinance that we've adopted and I know that we're you know obviously putting trees in is different than putting in shrubs or you know arborite or whatever but um I'm just curious like since they're not really or would that then zoning code and that ordinance then apply to those conditions that they would be applying to their board of adjustment petition?

Yes. So um let's say that they um that they apply a condition and um they're only their their conditions are only relating to any bad effects that are caused by the variance variance. Okay. So let's say that they say we just want um some small landscaping bushes along this garage wall and and that's the only thing that they say. But when you go back to plan commission, there might be other requirements that are above and beyond that and that plan is subject to those.

Okay, understood. Sweet. Thank you. Okay, a couple of just other points just to to note out uh in there to within our zoning code like uh I I'll use the ideal lot is typically 100 ft and the setbacks for that lot are based on a percentage. It's 12% of the lot width. So on a ideal lot you'll have 100 foot width and you'll have sideyard setbacks that are 12 12 feet and 12 feet on each side. That's the ideal lot. We have lots in our zoning district that are 300 ft wide and we have to apply the same percentage. 12% of 300, 12% of 300. So all of a sudden this lot is being imposed a 36 foot sideyard setbacks and that comes before the board every once in a while. Is that a practical difficulty? You know, did the ordinance was set based on proportions. you know, the house was not centered. It was built on one side and all of a sudden because we're we're in proportions, you know, because you have a wider lot, you're now I don't want to use well, lack of a better word, you're being penalized for having a wider lot. And it's that fair uh in there because I that probably wasn't the spirit and intent of the code. It's always easy to to say or make that assumption. Uh but it is solely an assumption and that might be a practical difficulty or unnecessary hardship that due to those percentages. Uh is that really reasonably fair to that property owner where the neighbor can be 12t from their property line but they got to be 36 ft from the neighbor's property line. the character comes into play, the neighborhood comes into the play. But sometimes those happen and sometimes it's a uniqueness that a street does a curvature and so it's not really a corner lot, but it's got, you know, instead of it being a pie shape, it's

the reverse pie shape and therefore it has a lot of frontage and that 12 ft, you know, um gets tight as you you start getting in into the back. Uh there are other cases in terms of this setback where in the way it was drafted and presented to the council. Council has adopted these but they didn't write these. I I'll note that. So there you know like each lot has to provide a setback of 12% of the lot width. But in no case shall any lot uh any setback be less than 5T. So, anybody that comes to petition to me where their house is six feet from the property line and they want to add on to the garage and they're going to be within within five feet or they need to go over. It's like no. I mean, the council has made a determination or based off what was adopted by the council. Uh, and in no case anywhere in all of it should a structure be less than 5t from another from the property line. and that that's a that's an that's there there's no other ifands or or buts in there. Now there may be some some occasion where that might happen but then you know you know you're you know it's it's it's note noted that applicable everywhere that that that no it should never be less than 5T. The other thing in the rear yard rear yard setback for the buildable area it should never be less than 20T. So, no, you should as a property owner, a residential property owner, you should never have a structure that is less than, you know, a home structure less than 20 ft from your rear yard in there. And again, there are some times where we have lots that are really deep. Uh so where one one yard next to it could be uh you know they only have a 20ft setback but the yard behind it or in the side of it was too too deep and

they had to provide 40 or 60 ft um in there. But those are the things that you kind of take take into consideration when we're dealing with proportions. But we always point out to you that there's an absolute minimum like in no case should it ever be this much or it should ever be that much. Um, also understand that when you grant the variance, the way it's kind of set up, if you if you grant somebody a sideyard setback variance, like they're required to have a a 12oot variance and you grant the 10-ft variance, we we'll craft the motion carefully because that variance would then apply to the full length of the property line uh in there. So it's not like you're granting a variance just for this segment. You're granting a variance for the whole sideyard or rear yard the full length and extent of it. So when we craft your motion, we're going to say it's specifically to this set of plans that appeared before the board on this date um in there because the goal here is like, okay, so now you you know they did a garage addition. It was going to be 20 ft deep and that's all that was going to be, you know, and and 10 feet from the property or from the setback, but all of a sudden they want to add another 20 ft behind that. Well, I I've gotten my sideyard setback so I can continue on in there. We try to craft the the the motion to avoid that. But once you grant the variance and it runs with the property uh and for the structure for life, I would assume when they tear down that property, it's we're back to the regular code uh in there. Um so there the the thing the other thing it it runs for prep perpetuity means it runs for the life uh of the property or the structure that was granted the variance. Uh the other thing I'll caution we talked about landscaping or or things like that be cognizant from a staff perspective. So, if you granted a variance and um a condition was placed,

well, you're going to have to plant, you know, evergreen uh uh plants uh along the side of of that 5 years, 10 years, 20 years from now, whoever the staff is. and and if people recall or the the the trees die or or something like that, you know, you put us in a position where we're following up on an individual property for uh things that, you know, conditions that are are hard to follow up. You know, somebody's got to look up the record or somebody finds, you know, in there. So, just be cognizant about it. And then the there is another thing that we call variations when the council adopted the way the council's adopted the code and again this is written for the council and there uh and there there there are certain things that they excluded they they provided a a variance process but excluded it from the zoning board of appeals and by doing so it doesn't have to meet that that high bar threshold that you have to. So one one is like fences uh fences uh if somebody wants a variance for a fence it goes to the plan commission by going to the plan commission it just becomes an aesthetic decision uh in there where it's not a hardship type of decision uh in there and that's why you generally won't see fences uh in there because the way the code is crafted is that it becomes more of you know that you know what character and value does it bring to the to the neighborhood as opposed to uh whether there's a hardship involved or or Now the council can always change it and bring it back to the commission or to the board and all of a sudden it becomes a hardship issue and it would be difficult to get a hardship on a fence in there or what to justify that you couldn't comply uh to it. So those were just a couple of things I wanted to note in terms of the discussions. Anything else? Done. anything.

That's all I have. I think Thank you. And we haven't been here for a lot. There's not a lot of meetings because it shows how great of a job you guys do. Seriously, because before we were here, I mean, every month. And it's it's it's obvious that you guys are on top of it because we're not here. Zoning changes, you know, right? It's Yeah. So, it's it's you guys are doing an unbelievable job. Will you be sending us the presentation, the PowerPoint?

Sure, we'll get that out. No problem. And then we do have a written procedures. I'll send those out. I I should have printed those out today uh for you. So, every time when we have the meeting, we have the step-by-step instructions. So regardless of who is operating or running that meeting that night, they have like all the steps and then all the the attachments and and things of those. We'll get that out uh along with the list of the members. Now the one thing I note now on the website we do have to like identify who the board members are. Uh outside of that we I don't give them any other information of where location numbers emails and that if somebody wants to get something to TED you know they have to go through through staff to get that to to Ted. We just can't go and approach them or call them or email them or you know in there. So

all right had a question again I miss the introductions. So was the full board attendant today? No, short. Uh, two two gentlemen, uh, uh, David and, uh, and Brian didn't come in. I thought he was Brian. Oh, Adrien. Adrien didn't come in. Adrian Brian. Brian was here. Yeah. Okay. And Christina. Okay.

Right now, we don't have any appeals uh, anticipated. We were in discussions with somebody in there and I I think they finally got it in their head that it it's not going to work and they're they're not going to submit for their request. You need to vote on do that. We need to do that today or should we do it would be sorry or that Sorry about that. I thought I did I just hear my voice in my head. Or should we uh do that the next meeting? I'm I'm meeting of of the five principal members, no offense on the alternatives, but I got four of them present. I'm just missing uh uh Mr. Zobel. Yeah.

And so I think you guys are are pretty well set. So we should put vote for a chairman. You can go ahead and consider. All right. All right. You guys want me out of here? Yes. [laughter] I don't care. I move for Larry to continue his chair. I'll second that. I will vote for uh Mr. Ted Cicero to be the vice chair of the zoning board of adjustments. A second. Okay. Secretary wish I think secretary

miss. Yeah, you'd be great. You're a second. I'm not All right. Who motion for Can you say what what does the secretary do?

We don't we don't know. You don't know. In the way back when um they actually put it put the minutes together and then the city got staff. We still kept the secretary because before we were recording or doing it the way we do now. Uh we would verify like motions like did you get the same did your emotions match my motions when I wrote down my notes. Okay. Read the read the role read the role and and call the meeting. Yeah. Okay. Yeah. Okay. And it's always unique for a five member board to have that. And I think I had the same thing with the EDC. So like you know the majority of the of them have officiary titles.

I get from all these other boards but this is a semiquas board and we are required to to to record and have notes on this is my understanding. Absolutely. Because if there's the need to go to court you have to have a transcript if you go to Yeah. Didn't we used to have a lady that came here and sat in here and transcribed hearing somebody or something? Yeah. I know. I see. Yeah. A second.

Okay. So, I I have Well, here's where it gets complex. So, anytime we have a motion and a second, there should be a vote. And all our votes have to be uh roll call votes. So, on the first motion, uh Mr. Luna, uh motion to um for Mr. Gerstein to continue as chairman. That was seconded by Miss Waldman. So on that motion, I'm going to call call out um whether Miss Hansen. Yes. Okay. Miss Waldman. Yes. Mr. Luna. Yes. Mr. Cicero. Yes.

All right. That motion passes. Uh unanimously. One, two, three, four. Okay. On the Oh, I thought he had to Mr. Gerstein. Sorry. Oh, but if I say no. No. Yeah. I Yes. All right. On the vice chairman. So, uh, Miss Waldman made a motion for Mr. Cicero to serve as vice chairman. It was seconded by Mr. Luna. So, on that motion, uh, Miss Hansen, yes. Miss Waldman, yes. Mr. Luna, yes. Mr. Cicero, yes. Mr. Gerstein, yes.

That motion passes five to zero. Now, um, Mr. Cisero made a motion to have Missy Waldman serve as secretary. That was seconded by Mr. Gerstein. So, on this motion, Miss Hansen, yes. Miss Waldman, sure. Mr. Luna, yes. Mr. Cicero, yes. Mr. Gerstein, yes. And that motion passes 5-0. So, thank you guys for serving as officers in there. We'll get that updated. And then again, any other questions? and and all that.

I have another question, not necessarily very formal, but I have been looking at the zoning on my iPad and which is very nice. Uh but is there an actual published paper one that I can borrow or No, no. If you want to print it, I don't want it. I just thought maybe they have them available here, but if they're not, that's okay. No, no, I don't need a printed one. I can I got a participant sustainability actions which is burn my eyes on the screens. [laughter]

So in your email saying we have an appeal, you will not give us the address. We have to ask you for it. Most of the time it's asked. So now I go ahead and put where it is, who's making the appeal, and what the appeal is. Okay? I won't give you my opinion or anything like that in advance, you know, but and then as the paperwork comes in, then we'll get those out to you. So meeting a journ is that all right. All right. Beautiful. I'm just curious. See how I got in there

that we do [laughter] notifications to every address within 300 ft. But is it smart like is should we just send them to our board of adjustment too with the public notice? Like should we send it to their the board members house too so that they know that? That's a good point. I'm just curious. I mean and then I mean I guess when we get a petition we have to answer. Yeah.