Village of Evendale - Board of Zoning Appeals Minutes October 23, 2013

Board of Zoning Appeals Minutes October 23, 2013

Village of Evendale

Zoning Board of Appeals

Minutes for the

October 23, 2013

A public meeting of the Board of Zoning Appeals (the “BZA”) was called to order by Chairman Al Schutte at 7:30 PM on Tuesday, October 23, 2013, in the Council Chambers of the Village of Evendale Municipal Building. Attending were Chairman Al Schutte, members Dave Harwood, Lynn McCarthy and Mike Reed. Member Tom Lippert was absent. Supporting the BZA were Kathy Farro (legal advisor to BZA), Don Mercer (Building Commissioner), and Pam Morin from the Village of Evendale Building Department.

After all those present who planned on giving testimony were duly sworn in by Chairman Schutte, the following appeal was heard:

Suzette Dutch, 9871 Pondside Court

The applicant has submitted an application for an appeal of the Village of Evendale Building Commissioner’s determination that the operation of the Rooming House and/or Bed & Breakfast is not permitted, conditional or accessory use within the Residential District.

File #V-13-02

Mr. Mercer testified that he had received an e-mail informing him that Ms. Dutch was operating a Bed & Breakfast in her home. Mr. Mercer researched airbnb, the website used by Ms. Dutch to list her rooms for rent. He then issued an order addressed to Pondside LLC and Suzette Dutch to discontinue the operation of a Rooming House and/or Bed & Breakfast within 30 days. Ms. Dutch filed an appeal within the required 14 day period.

Mr. C. Francis Barrett, representing Ms. Dutch, argued the following points:

1. No food is provided for the guests;

2. The individual bedrooms cannot be locked by the guests;

3. There are no signs advertising the rental of rooms;

4. No renovations have been made to change the character of the house;

5. The house is still being used as a Single House Keeping Unit;

6. Ms. Dutch travels a large part of the year and for safety reasons, she likes to have the house occupied;

7. The house is unique in that it has a large indoor pool, making the utility bills exorbitant and the house difficult to sell;

8. Ms. Dutch is divorced and only started renting out rooms so she could afford the upkeep of the house on a single income.

Ms. Dutch explained that the house is registered as Pondside LLC and she in the sole economic member. She has tried to sell the house, but has been unsuccessful. She started using the web site, airbnb, to rent out rooms in 2011. She screens all guests. In 2012 she had guest for 131 days and is on target to have similar numbers for guest for 2013. To the best of her recollection, the largest group that rented her home was eight (8) adults and 12 kids, with possibly 4 – 5 cars. Mr. Barrett read the definition from the Village of Evendale Zoning Code for family from Section 1242.03(45)(D): “a group of not more than four (4) unrelated persons living together as a single housekeeping unit”. Ms. Dutch said that she would be willing to modify her rental policy to rent to a maximum of four guests.

Chairman Schutte read the nine (9) e-mails received by the Building Department into the record. He then opened the floor for anyone who wished to speak:

Helen Zussman, 9883 Pondside Court – Believes that in this situation, many people suffer so one person may profit.

Phil Schneider, 10171 Giverny Boulevard – Stated that both Park Hills and Carpenters Creek Subdivisions have a large number of private drives with no restriction on parking. He feels that with additional cars in the neighborhood, parking on both sides of the street may become an issue, making it difficult, if not impossible, for Police and Fire to respond quickly to an emergency.

Ken Valentine, 98963 Pondside Court – Lives next door to Ms. Dutch and feels that having the constant traffic and change of guests is an intrusion and diminishes his family’s quality of life. He feels that having so many strangers in the neighborhood puts his kids and property at greater risk. He asked when Ms. Dutch is not at home during a rental period who does the monitoring of guests and should we expect the Evendale Police Department to take on the burden of making additional runs past her house.

Shelly Tessel, 9847 Pondside Court – is concerned about the increase amount of traffic and strangers in the neighborhood. She has small children and they should be able to feel safe playing outside.

Chris Patterson, 3690 Fawnrun Drive – Not only is concerned with the increased traffic and strangers in the neighborhood, but also feels that introducing a commercial element into a Residential District impacts the entire neighborhood. He feels that Ms. Dutch should have consulted her neighbors before embarking on this type of business. Mr. Barrett asked that Mr. Patterson’s comments be stricken from the record because his comments were becoming personal. That request was denied. Kathy Farro questioned Mr. Patterson about his role in the working group to re-write the Village of Evendale Zoning Code. Mr. Patterson stated that the prime directive of the working group was to keep Evendale a Residential Community. Mr. Barrett objected to this line of questioning.

Matthew Smith, 3565 Fawnrun Drive – Testified that his family moved to Carpenters Creek Subdivision because they wanted the Residential community feeling that Evendale provides. He would hate to lose that feeling by allowing a commercial business to move. in.

Bill Posey, 3453 Fawnrun Drive – Came to the meeting to simply educate himself about the situation. He didn’t plan on speaking until his neighbor’s e-mail was read into the record supporting Ms. Dutch’s business. This caused him some concern because he realized that he wouldn’t want a similar business in the house next to his home.

Mark Tessel, 9847 Pondside Court – Does not feel that this type of commercial business should be allowed in a Residential District.

Chairman Schutte stated that he is a firm believer of the Zoning Code and read Section 1240.02(b): “To maintain the Village of Evendale as a community comprised principally of well-maintained single family residential neighborhoods and separately located commercial, industrial, office and institutional areas”.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

After hearing the sworn testimony and reviewing the documents filed and exhibits presented (the “Record”), the Evendale Ohio Board of Zoning Appeals makes the following Findings of Fact and Conclusions of Law:

1. According to Section 1240.02, the Evendale Zoning Code or "Zoning Code" was adopted for the following purposes (without indicating order of priority):

(a) To implement the goals and policies of the Village's Comprehensive Master Plan;

(b) To maintain the Village of Evendale as a community comprised principally of well-maintained single family residential neighborhoods and separately located commercial, industrial, office and institutional areas;

(d) Preserve local commercial areas to serve the residents of the Village as well as industrial employees who enter and leave the Village each day;

(e) To protect the public from harm from the loss of natural resources by encouraging and enhancing the preservation of natural resources, aesthetic amenities, and natural features;

(f) To establish a rational pattern of land uses and encourage the most appropriate use of individual parcels of land in the Village;

(g) To encourage compatibility between different land uses and to protect the scale and character of existing development from the encroachment of incompatible uses;

(h) To secure adequate natural light, clean air, privacy, a safe environment, and convenience of access to property;

(i) To promote and protect the public health, safety, morals, and the general welfare of the Village;

(j) To conserve and enhance the value of land and buildings;

(k) To help control congestion of traffic and to promote a safe, efficient traffic circulation system;

(l) To ensure that adequate off-street parking and loading facilities are provided and maintained for different types of land uses;

(m) To facilitate implementation of public utility master plans; and

(n) To facilitate the adequate and cost-effective provision of transportation, water, sewage, schools, parks, open space and other public facilities requirements.

2. Pursuant to Section 1240.03, the Zoning Code applies to all land, structures and uses within the Village of Evendale.

3. The real property and improvements commonly known as 9871 Pondside Court (the “Property”) is located within the Village of Evendale and as such, is subject to the Zoning Code. The Property is titled in the name of Pondside LLC, which according to the Ohio Secretary of State’s office, is an Ohio limited liability company.

4. Donald L. Mercer, Building Commissioner, sent the Property owner a letter (the “Cease and Desist Letter”) dated August 29, 2013, a copy of which is marked as Exhibit A, stating that the Property was being operated in violation of the Zoning Code and notifying the Property owner that it had 14 days within which it could appeal. Suzette Dutch rather than the property owner, signed and filed an Application for Variance, on September 11, 2013, a copy of which is marked as Exhibit B (the “Application”), so the Application for Variance was timely filed.

5. The Board of Zoning Appeals, upon application thereto, shall have the powers as granted to them per § 1270.04 of the Zoning Code, including, but not limited to, hearing and deciding appeals and granting variances from the provisions and requirements of this Zoning Code which will not be contrary to the public interest or the general purpose and intent of the Zoning Code, and only in those specific instances defined by Chapter 1270 of the Zoning Code and based upon the standards set forth in Chapter 1270 of the Zoning Code. A properly and timely filed Application for Variance is properly before the Board of Zoning Appeals.

6. In accordance with 1278.02 of the Zoning Code, the Village Clerk was required to give notice, a copy of which is marked as Exhibit C of a public hearing regarding this matter, a minimum of 14 days before a public hearing. We find that notice was properly given in satisfaction of the requirements of said section.

7. Section 1284.03 of the Zoning Code sets forth the appeals process and in part, states as follows:

1. The Board of Zoning Appeals shall render a decision on the appeal. Consistent with its findings, such decision may affirm, reverse, vacate, or modify the order or decision, or remand the cause to the officer or body appealed from with instructions to enter an order or decision consistent with the findings or opinion of the Board.

2. The Zoning Board of Appeals may find that the order, adjudication, or decision is illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record. Consistent with its findings, the board may affirm, reverse, vacate, or modify the order, adjudication, or decision, or remand the cause to the officer or body appealed from with instructions to enter an order, adjudication, or decision consistent with the findings or opinion of the Board.

3. The Board may direct the appellant or other person who appeared at the hearing to propose findings of fact and conclusions of law supporting its decision. The chairman of the Board has the duty to cause findings and conclusions to be entered on the record. A decision by the Board is effective as of the date of mailing of the findings and conclusions. The secretary has the duty to send written notification of the decision to the appellant.

4. The Board may direct the appellant or other person who appeared at the hearing to propose findings of fact and conclusions of law supporting its decision. The chairman of the Board has the duty to cause findings and conclusions to be entered on the record. A decision by the board is effective as of the date of mailing of the findings and conclusions. The secretary has the duty to send written notification of the decision to the appellant.

5. The failure of the Board of Zoning Appeals to act within 60 calendar days after receipt of all required information, or such further time to which the applicant may agree, shall be deemed to be a decision denying the appeal.

8. Based on the evidence adduced, the Property is located with an “R District” as defined in Section 1246.05 of the Zoning Code.

9. The questions before this body are as follows:

1. Whether the Application is properly before the Board of Zoning Appeals since it was signed by Suzette Dutch rather than by an authorized person on behalf of the actual property owner, Pondside LLC?

2. Whether the use of the Property is a permitted use in an R District, under the Zoning Code?

3. Whether the use of the Property is a conditional use permitted in an R District, under the Zoning Code?

4. Whether the use of the Property is an accessory use permitted in an R District under the Zoning Code?

5. If the use of the Property is not a permitted use, conditional use or accessory use permitted in an R District under the Zoning Code, can or should the variance be granted?

6. Whether the operation of a bed and breakfast at the Property is a home occupation which may be conducted in an R District?

With respect to the first question, Section 1284.02 of the Zoning Code states that “(a”)ny application for appeal to the Board of Zoning Appeals may be filed by any person adversely affected by an order, decision, determination, or failure to act of the Building Commissioner or the Planning Commission” (emphasis added). In the case at hand, based on the testimony of Suzette Dutch, it is determined that she is a “person adversely affected by an order, decision, determination, or failure to act of the Building Commissioner” and therefore, the Application for Variance is properly before this body.

With regard to questions, 2, 3 and 4, according to Section 1246.01of the Zoning Code, “(t)he Residential District regulations are intended to preserve the character of established residential neighborhoods and to provide for new residential development that is consistent with the established residential neighborhoods within the Village and with the most current Comprehensive Development Plan adopted by the Village.

The first step in our analysis is to look at the Zoning Code. Schedule 1246.05 below prescribes the land use regulations for the “R” Residential District. The regulations for the district are established by letter designations as follows: “P” indicates that a use is permitted. “C” indicates that a use that is permitted only after review and approval by the Village Planning Commission, pursuant to Chapter 1282, Conditional Uses. All use classifications that are either not listed in Schedule 1248.05 below, or which are indicated by an “X”, are prohibited.

All conditional and permitted uses may be subject to additional regulations as indicated within the notes of the schedule or elsewhere in this Code. Use classifications are defined in Chapter 1242, Definitions.

SCHEDULE 1246.05 Permissible Uses

USE	DISTRICT: R
RESIDENTIAL
SINGLE FAMILY RESIDENCE, DETACHED	P
ADULT FAMILY HOME¹	P
FOSTER HOME	P
GROUP HOME	P
TYPE-A FAMILY DAYCARE HOME^{2, 3}	C
TYPE-B FAMILY DAYCARE HOME²	P
INSTITUTIONAL/PUBLIC/SEMIPUBLIC USES
CEMETERY	C
EDUCATIONAL INSTITUTION	C
GREENBELT AREA OWNED OR ESTABLISHED BY THE VILLAGE⁴	C
PLACE OF WORSHIP	C
RECREATION/ENTERTAINMENT
RECREATION	P
COMMERCIAL USES
FUNERAL HOME	C

Counsel for Applicant asserts that the use as described herein is a Permitted Use as a Single Family Residence is consistent with the definition of “Family” set forth Zoning Code Section 1242.03(D), a copy of which follows:

1. FAMILY: means one of the following:

A. One (1) person;

B. Two or more persons related by blood, marriage, adoption or guardianship living

together as a single housekeeping unit in a residence;

C. Two unrelated persons and their children living together as a single housekeeping unit in

In a residence: or

D. A group of not more than four (4) unrelated persons living together as a single

Housekeeping unit.

Applicant’s testimony was that in 2012, the Property was rented, in part or in whole, for 131 nights. She further testified that in 2011, there were many fewer rentals since the Property had no or few references and that in 2013, the Property was on schedule to be rented, in part or in whole, for approximately the same number of nights as in 2012. Applicant stated that the occupants were charged a fee of 6% of their rental fee to Airbnb and that Applicant was charged a fee of 3% of rental income by Airbnb.

Applicant indicated a willingness to limit occupancy to four (4) unrelated persons living together at the Property in the future, although based on testimony presented, there have been as many as 26 persons unrelated to Applicant occupying the Property at the same time, in the past. The Applicant’s position is that in the future, if the Property is occupied by four (4) unrelated persons that they will be living together as a single housekeeping unit. We find that various unrelated people renting some or all of the Property concurrently and or consecutively, for a variety of reasons, such as attending sports camps, attending sports events, family get togethers, bachelor parties, and participating in educational opportunities, does not constitute “living together as a single housekeeping unit”. Therefore, we further find that the actual use of the Property does not fall within the definition of a Single Family Residence and as such, is not a Permitted Use

10. The next question is whether the variance can or should be granted. Section 1284.05 of the Zoning Code sets forth the situations in which a variance can be granted.

Section 1284.05 states as follows:

(a) Permitted Variances. Subject to the prohibitions set forth in this Chapter and proof by the applicant of each of the standards for variances, the Board of Zoning Appeals may vary the provisions of this Code. The variance procedures are intended to provide a means by which relief from dimensional, numerical or locational standards may be granted from a particular application of the Evendale Zoning Code that is unreasonable and creates practical difficulties (emphasis added).

In the case at hand, a variance would not provide relief from dimensional, numerical or locational standards.

In addition and perhaps more importantly, Section 1284.05 (b) (3) of the Zoning Code states in pertinent part that “Notwithstanding any other provision of this Chapter, no variance shall be granted that Constitutes a change in land use resulting in the establishment of a use not normally permitted in the applicable use district”.

Therefore, granting a variance is beyond the purview of the Zoning Board of Appeals.

11. The final question is whether the use of the Property, as established in the Record, constitutes operation of a bed and breakfast business and if so, whether that use is permitted in a Residential District. Testimony Use of the Property in the described manner is not, on its face, a permitted use, a conditional use, or an accessory use since it does not appear in the above chart. If the activity described constitutes a “business” it is one which, except for a permitted home occupation, cannot be conducted in a Residential District. Merriam-Webster Dictionary defines “business” as “the activity of making, buying, or selling goods or providing services in exchange for money”. It has been established by the testimony of the Applicant that she receives money in exchange for the activity of making, buying, or selling goods or eservices since accommodations are provided in exchange for a fee. Moreover, the Property is listed on Airbnb. A screen shot of a portion of the web page for this site is marked as Exhibit D and is attached hereto. It describes Airbnb as follows:

“About Us

Founded in August of 2008 and based in San Francisco, California, Airbnb is a trusted community marketplace for people to list, discover, and book unique accommodations around the world — online or from a mobile phone.

Whether an apartment for a night, a castle for a week, or a villa for a month, Airbnb connects people to unique travel experiences, at any price point, in more than 33,000 cities and 192 countries. And with world-class customer service and a growing community of users, Airbnb is the easiest way for people to monetize their extra space and showcase it to an audience of millions.”

Some of the relevant words from the foregoing are “list”, “book”, “unique accommodations”, “monetize their extra space” and “showcase it to an audience of millions”. Applicant acknowledges that she rents out one or more rooms in her home to unrelated third parties on a more or less regular basis. She further acknowledges that the reasons for doing so are (i) economic (to help off-set the costs of maintaining the Property) and (ii) to make sure it is occupied while she is away.

Applicant’s counsel asserts that there are many factors that distinguish the use at hand from the operation of a bed and breakfast. They include the following:

• A person seeking a rental is not automatically accepted, even if there are openings available at the Property.

• Those seeking to rent at the Property are carefully screened by the Applicant.

• No meals are provided.

• The Property is shared “family style”.

• There have been no changes or upgrades in the structure of the Property to accommodate those persons staying at the Property.

• There is no signage for the Property.

Notwithstanding the foregoing, the Applicant does rent the Property, in whole or in part, on a regular basis to various people, arising out of advertising on a commercial website, resulting in a substantial number of paying guests coming and going over the course of a year. Applicant stated that she receives an IRS Form 1099 reporting the revenue paid her and that she is able to deduct certain expenses associated with the operation of the Property as a result.

Our conclusion is that the use as described by Applicant and otherwise in the Record, is in reality, a “bed and breakfast”. “If it quacks like a duck, looks like a duck and smells like a duck, it must be a duck”. Is the operation of a business of this nature a home occupation that is permitted in an R District? A “home occupation, as defined in Zoning Code Chapter 1242, is generally permitted in an R District (See Section 1266(g)(1). However, Section 1266(g) (9) (d) of the Zoning Code specifically prohibits the operation of a bed and breakfast establishment in an R District. Consequently, operation of the Property in the manner described in the Record is prohibited.

Therefore, upon motion, made, duly seconded and adopted by a vote of 4 to 0, it was:

RESOLVED, that the Building Commissioner’s order, finding or adjudication findings as set forth in the Cease and Desist Letter is found not to be illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record;

RESOLVED FURTHER, that the Building Commissioner’s order, finding or adjudication findings as set forth in the Cease and Desist Letter is found to be lawful, reasonable and supported by the preponderance of substantial, reliable, and probative evidence on the whole record; and

RESOLVED FURTHER, that the Building Commissioner’s order, finding or adjudication findings as set forth in the Cease and Desist Letter is affirmed.

A motion made by Mike Reed and Seconded by Lynn McCarthy to approve the minutes for the October 3, 2013 meeting. The motion passed with a vote of 4 yes, 0 no.

Chairman Schutte made a motion to adjoin the meeting at 9:45 PM. The motion was seconded by Lynn McCarthy. The motion passed with a vote of 4 yes, 0 no.

Al Schutte, Chairman

Board of Zoning Appeals