VILLAGE OF EVENDALE
BOARD OF ZONING APPEALS
MINUTES FOR THE
JUNE 3, 2014
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, June 3, 2014, in the Council Chambers of the Village of Evendale Municipal Building. Attending were Chairman Al Schutte, members Dave Harwood, Lynn McCarthy and Mike Reed. Supporting the BZA was Pam Morin from the Evendale Building Department.
After all those present who planned on giving testimony were duly sworn in by Chairman Schutte, the following appeal was heard:
Wayne Mosley
9872 Winnebago Trail
The applicant has submitted an application for a variance to construct a privacy fence in the Residential District “R” that has an open face area of 0%
File #V-14-02
Wayne Mosley explained that they have a retaining wall along the north side of their concrete patio. The top of wall is six and half feet above their patio. A line of viburnum bushes runs along the top of the wall. They have requested a variance to deter their neighbor’s grandchildren from peeking through the bushes and falling onto the patio. The fence would be in the rear yard along the north side of their house. It will be white and sit nine feet from the property line. The viburnum bushes would be removed.
Notifications were sent out to all property owners within 300 feet. Debbie Kluesener attended the meeting. Her only concern was that the fence is not in the front yard and was satisfied when she learned the placement of the fence is in the rear yard.
The BZA required criteria and Mr. Mosley’s responses were read into the record.
Lynn McCarthy stated that a fence with similar height, but not a privacy fence could provide the safety that Mr. Mosley is looking for without asking for a variance. Mike Reed stated that he feels that the variance request is substantial and the privacy fence would impede the police if there was ever a need for them to search the rear of their house.
Findings of Facts:
Section 1270.04 of the Village of Evendale Ohio Planning and Zoning code (the “Code”) states that the Board of Zoning Appeals (the “BZA”) has the jurisdiction and authority to (i) review order, decisions, or determinations made by the Building Commissioner and (ii) to hear and decide upon applications for variances from the requirements of the Code pursuant to the provisions of Chapter 1284.
On or about May 12, 2014, a permit application (the “Application”) was filed with the Village of Evendale, Ohio seeking permission to erect a “Privacy Fence for Safety” at the real property and improvements commonly known as 9872 Winnebago Trail, Evendale, Ohio (the “Property”). A copy of said Application is marked as Exhibit A and is attached hereto.
On or about May 13, 2014, Donald R. Mercer, the Village of Evendale Building Commissioner, denied the Application on the grounds that Chapter 1266 of the Code required that fences not associated with a pool, have an open face of at least 70% and the proposed fence did not satisfy this requirement. A copy of the denial is marked as Exhibit B and is attached hereto.
An Application for Variance was filed by Wayne R. Mosley, owner of the Property, on May 12, 2014. A copy of the Application for Variance is marked as Exhibit C and is attached hereto (the “Variance Request”). It is this action that is pending and being considered by the BZA this date.
Section 1284.05 of the Code sets for the standards for consideration of Applications for Variances.
Section (a) states in part that “no 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”.
Section (b) states in part that “no variance shall be granted that is greater than the minimum variance necessary to relieve the particular hardship or practical difficulty demonstrated by the applicant”.
Section (c) sets for the criteria to be considered when evaluating whether to grant a potential variance. These same criteria are set forth in Exhibit C.
The Application states that the Property owner desires to build a “Privacy Fence for Safety”. The Variance Request states that “the beneficial use of the fence is to provide safety from a fall or falls. It will protect the back of the home to keep someone from falling off the brick wall onto the concrete patio”’ It further states that “the variance is substantial as the privacy fence shields us from car traffic in the neighbor’s driveway and provides protection from falls off the wall”.
The question before the BZA is whether the numerical standard of an open face of at least 70% create an unreasonable or practical difficulty. Per Section (c), the BZA is not allowed to grant a variance unless it is determined that there are practical difficulties encountered by the applicant in complying with the Code, using the criteria set forth in Section (c) 1 – 7 to make that determination.
Criteria –
#1 – there can be a beneficial use of the property without the variance and the property will yield a return without the variance.
#2 – The variance sought is substantial, by the applicant’s own admission.
#3 – essential nature of the community would likely not be altered but his adjoining neighbors would suffer a substantial detriment as a result.
#4 – the variance if granted would adversely affect the delivery of government services. Part of the rationale for having open fencing requirements is to allow police the opportunity to more easily view an area that would otherwise be hidden from view.
#5 – Applicant states that he was not aware of this restriction on the type of fencing when he purchased the Property.
#6 – The owner’s predicament can be feasibly obviated through a method other than a variance. A more open fence face combined with the existing and possible additional shrubbery would resolve this issue.
#7 – The spirit and intent behind the zoning code would not be met by granting this variance.
Mike Reed made a motion to approve the variance with the condition that Mr. Mosley landscapes the entire length of the fence with bushes and trees that are six feet in height along the north side of the proposed fence. Dave Harwood seconded the motion. There was a discussion about the required height of the landscaping. Dave felt that four (4) foot landscaping may be more practical. This height would allow the landscaping to grow and ease in the maintenance of the fence. The motion failed with of vote of 0 yes, 3 no, 1 abstain.
Lynn McCarthy made a second motion to deny the variance because the safety issue could be remedied
with a six foot high fence but still provide an open face area of at least 70 percent (%). The motion was seconded by Mike Reed. The motion failed with a vote of 1 yes, 2 no, 1 abstain.
Dave Harwood amended the first motion with the condition to reduce the required height of the landscaping to four (4) feet. This motion passed with a 3 yes, 1 no.
Al Schutte made and Lynn McCarthy seconded the motion to approve the minutes with four changes. The motion passed with a vote of 4 yes, 0 no.
The meeting was adjourned at 8:15.
Al Schutte, Chairman
Board of Zoning Appeals
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