12 JUNE 2001

7:00 p.m.



  2. The meeting was called to order at 7:03 p.m. by Chairman William G. Syfert.

  4. Members Present: Donald Darby, Councilman Steve Galster, David

    Okum, Councilman Tom Vanover, Dave Whitaker

    And Chairman Syfert

    Members Absent: Richard Huddleston (arrived at 7:10 p.m.)

    Others Present: Doyle H. Webster, Mayor

    Cecil W. Osborn, City Administrator

    Ken Schneider, Law Director

    Bill McErlane, Building Official

    Don Shvegzda, Asst. City Engineer

    Anne McBride, City Planner

  6. Mr. Vanover moved to adopt and Mr. Darby seconded the motion. By voice vote all voted aye, and the Minutes were adopted with seven affirmative votes.

    1. Report on Council Ė no report
    2. 5/9/01 Letter to Hamilton County Regional Planning Commission appointing David Okum to Steering Committee
    3. 5/16/01 Letter from David Okum to Bill Syfert re Review of Zoning Code
    4. Planning Commissioners Journal Ė Spring 2001
    5. Board of Zoning Appeals Minutes Ė March 20, 2001
    6. Board of Zoning Appeals Minutes Ė April 17, 2001
    7. Zoning Bulletin Ė May 10, 2001
    8. Zoning Bulletin Ė May 25, 2001
    9. Special Report Ė Whatís Happening in Legislative Sessions



    1. Public Hearing to Reconsider Conditional Use Permit to Allow a Day Care Center at 11285 Springfield Pike

Mr. Syfert said this is a public hearing and all testimony given in cases pending before the commission are to be made part of the public record. As such each citizen testifying before the commission is directed to sign in, take his place at the podium and state his name address and the nature of his concern. Be advised that all testimony and discussion relative to said issue is recorded. It is from this recording that our minutes are taken.





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Mr. Syfert opened the public hearing, asking anyone who wished to speak to come forward. He asked Mr. Sharkey if he wished to speak, and Mr. Sharkey indicated that he did not at the present time.

Harlan Barnett, 10193 Fallstone Drive said I am one of the owners of Creative Kids World. I spoke with Ms. McBride and Mr. McErlane today about getting the shadowbox fence installed with our fence man present. We came to an agreement as to where it should be placed and he will put the fence up Sunday. The only question I have is will this affect the hours that the kids can be outside on the playground. The fence will be put up to limit the noise that is a problem with the people on Naylor Court. Can we go back out on the playground any time we want once the fence and shrubs are in place?

Mr. Syfert said that will come into the meat of this meeting. This part of the meeting is for people to speak for or against the day care center. Weíll get to you in a little bit.

Mr. Syfert asked again for people to speak for or against the conditional use permit. No one came forward, and he closed the public hearing.

Mr. McErlane reported that at Planning Commissionís December meeting there were a number of conditions attached to the conditional use permit. Some of them included limitations on outdoor play times as well as the planting of additional landscaping, replacement of one tree that had died on the property, and installation of a shadowbox type fence. With the exception of the play hours, none of this has been complied with. There have been five occasions where we have observed violations to the outdoor playtime restrictions.

We did meet with Mr. and Mrs. Barnett and the fence installer this evening at 5:30 to fulfill one of the requirements with respect to where the tree and landscaping should be located. We have come up with a resolution as to where the fence should be located, and then we will look further at where the plantings should be located relative to the fence.

Addressing the applicant, Mr. Syfert commented we dealt with these items way back in December and I am a little puzzled as to why nothing has been done. I wish you could answer that for the members if you would please.

Mr. Barnett answered we were a little puzzled also. It is GRCís property, and they feel that we should take care of it. We didnít realize that until nothing was being done. We all thought that they were waiting for the weather to break or the ground soften up to do the planting and digging. Once we got another letter from Mr. McErlane, my wife and I decided to go ahead and do everything ourselves, which we have done.




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Mr. Barnett added that today we worked it out that the fence can be done this coming Sunday, as well as the plantings. There is no real excuse other than we thought they were gong to do it and they are not, so we are going to do it.

Mr. Syfert responded your wife was here at the December meeting, and it seemed to me that an inordinate amount of time had gone by and nothing was done. As critical and crucial an issue as it was, I would have thought there would have been some communication somewhere along the line.

Ms. McBride reported that what is missing of your summary is that last Thursday afternoon Mr. Barnett contacted me and I called him back on Friday morning. He did have an installer ready to come out on Sunday and asked if I could come out that night or Saturday. I wasnít available to do that Friday night or Saturday and suggested Tuesday afternoon. Mr. McErlane and I met both the Barnetts and the fence installer out there at 5:30 this afternoon. We agreed on a location where we think that the fence will be most effective in terms of sound attenuation and the length and location for that. We will do some further investigation in terms of what would be the most effective planting scheme. If youíll recall, there is a chain link fence that encloses the childrenís play area and 10 feet separates that from where the shadowbox fence would be installed. We will look into what the best plant material would be for year round protection in that area, and work with his landscape architect to get that material identified.

Mr. McErlane said concerning the question that has been raised with respect to GRC Properties and their reluctance to install the improvements, we did receive a faxed letter today from Robert Hacker, the Chief Financial Officer for GRC who had indicated that because of rent arrearage they didnít find it economically feasible to consider incurring more expenses relative to this project at this point. That answers where they stand relative to the project.

Mr. Syfert asked Ms. McBride if there had been any discussion at all regarding the pines? Ms. McBride answered we did talk about additional landscaping that was to be planted and quite frankly I suggested that now we have the location of the fence identified, I wanted to go back and talk to our landscape architect and find out exactly what the best mixture of plant material would be.

Mr. Galster said in reference to Mr. McErlaneís December 21st letter listing the items that were conditioned upon the Conditional Use Permit, has Item #1, the replacement of the dead evergreen has not happened. Is that correct? Mr. McErlane reported that there were five shown on the plan; one died and one currently is dying. Mr. Galster said so Item 1 is still an outstanding issue. Item 2 is something that will happen this Sunday.

Item 3, the additional plant material will be after Ms. McBride talks to her landscape architect to determine the best material and location. How long do you anticipate that will take?


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Ms. McBride responded we will have that information to them if not tomorrow by Thursday morning. Mr. Galster said so if you have that information by Thursday, would the schedule to complete that be? Mr. Barnett answered I would have to talk to the landscape person; it would depend on his schedule.

Mr. Galster said in December we said it would happen right away and it has been six months. Mr. Barnett answered and he is waiting to hear. Mr. Galster asked a reasonable period of time that he anticipated, and Mr. Barnett answered I anticipate within a week. Mr. Galster said so are you saying that one week from Sunday, the following Sunday it should be taken care of. Mr. Barnett confirmed that.

Mr. Galster continued item #4 is the same issue with Ms. McBride. Item #5, the hours of operation. The facility was going to be used from 6:30 a.m. to 6:00 p.m. Monday through Friday; is that still an accurate statement? There are no Saturday or Sunday hours? Mr. Barnett responded Sunday we do have a church that rents from us. Mr. Galster said Sunday hours were to be limited to from 8:30 to 2 p.m. with no outside times. Is that still correct? Mr. Barnett indicated that it was. Mr. Galster continued as far as outside activities, it was 9:30 to noon and 2:00 to 4:30 Monday through Friday and no outside activity on Sunday. Are those still accurate statements? Mr. Barnett answered yes. Mr. Galster commented earlier you wondered if once that shadowbox fence goes up does that mean that you could use the play area more times. Which days and times were you talking about?

Mr. Barnett answered we are talking about Monday through Friday from 12 to 2 p.m. During the school year, we donít use it anyway because we have kids taking naps. But now we have summer camp for six to 12 year olds who donít take naps and we would like to go out there during that time, when they are not on field trips.

Mr. Galster said so you are asking that the Monday through Friday times be extended from 9:30 to 4:30 and have that a continuous outside time? Mr. Barnett answered they donít need to go out that early; say from 11 to 4:30 p.m. Mr. Galster said and there still would be no Sunday activity outside? Mr. Barnett confirmed that. They would like to go out, but I am trying to make peace.

Mr. Galster said according to the faxed letter from the owner of the property, he has not given his approval for work to be done on the property. Is that an issue? Do we need to have owner approval for any of the work that the tenant will take care of?

Mr. Schneider responded I would have to see the lease and whether it permits him to make leasehold improvements of this nature or not. If it does not allow him to do it, he canít do it without permission of the owner.

Mr. Galster asked Mr. Barnett if his lease allowed him to make these improvements. Mr. Barnett answered that he did not know, but I can get approval from them.



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Mr. Galster said when the original work was done at the facility, was it done at your expense or the ownerís expense? Mr. Barnett answered or a combination really, but mostly the ownerís expense. Mr. Galster said so he handled the contracting and paying of those contractors. Has the chain link fence been fixed since the tree landed on it? Mr. Barnett answered no; that is something that will happen this Sunday as well. Mr. Galster said but you are continuing to use that enclosure even though it is in disrepair.

Mr. Okum commented that it seems that you understand that no outdoor Sunday playtime is a part of the conditional use. Has there been outdoor play in the period since December?

Mr. Barnett responded about two months ago, someone took the children out on a Sunday. She was not a regular Sunday School teacher and didnít know the rules. The Mayor came over and all kind of stuff happened, but since then there has been no Sunday activity.

Mr. Okum asked Mr. McErlane if there had been other instances when Sunday hours had not been conformed to? Mr. McErlane responded the only one we are aware of is April 29th. There are four other occasions where there were weekday afternoon violations.

Mr. Okum asked who was responsible for the maintenance and upkeep of the play area, and Mr. Barnett answered my wife and I. Mr. Okum said when you were given instructions by a motion to allow you to continue in December, were you aware that was your responsibility as the operator of the business to adhere to the conditions of the Conditional Use Permit? Mr. Barnett indicated that he was.

Mr. Okum continued but you were not sure who was responsible for taking care of replacing the tree or erecting the fence. Mr. Barnett commented that was still up in the air. Mr. Okum said and you made no effort to correct that. Mr. Barnett responded my wife did make some calls and GRC said they would get to it. It was back and forth and went for so long that we ended up taking the responsibility for it. Mr. Okum said I think there was a hearing scheduled before anything happened. Mr. Barnett answered yes, Mr. McErlane told me I had to meet with Ms. McBride first before we put the fence in.

Mr. Okum said you understood that you were responsible for a portion of the conditions of the Conditional Use Permit, but between December and now, and until you had notice of this public hearing, you did not understand that you were responsible for the tree replacement or the landscaping or the fences repair or the fence. Mr. Barnett said right, because it is not our property. Mr. Okum asked if he had any evidence that reflects your conversations with the GRC administrators in regard to the issues of the conditional use? Mr. Barnett answered no.




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Mr. Huddleston commented I donít see that the letter issued by the GRC people today was a reluctance or a negative response to the improvements being made. What they said was that there is apparently a default on the lease and they were not willing themselves to make those improvements. Is that the way you read that Mr. Schneider?

Mr. Schneider responded I am reading it right now. Indicating that they are not willing to spend the money does not say that they are not giving permission or that they are giving permission.

Mr. Huddleston commented my point is that I believe GRC as well as Mrs. Barnett at that time were aware of the conditions placed on them. I am not aware of the legal or financial responsibilities between the two parties other than the fact that I donít believe that GRC is withholding it. Is there a representative of GRC here this evening? (No one from GRC was present).

Mr. Huddleston said I would comment that Mr. Barnett is a good neighbor and I think their facility provides a valid needed service. On the other hand, I think there has been a significant lack of response to the concerns of the neighbors and to the requirements laid down by the commission, and I have to add over the objection of the neighbors at the original time, which is always a concern.

The Commission wants to serve all citizens and depending on the action we take tonight, I think it has to be very clear that additional violations, especially the outdoor play time, which were laid down and agreed to originally, should be very closely observed. I donít know how you communicate that to your staff or if you rent it on Sundays, but the Commission is not responsible for the operation of your facility. What we are responsible for is enforcing the conditions we have laid down and trying to cooperate with you and the GRC people.

From my perspective, I am very concerned about the lack of response, not only to the physical conditions laid down, but to the operation of the facility in regards of how we have tried to accommodate your operation and to some extent at the expense of those neighbors. We have tried to be amicable to all parties in this, and I donít think that has necessarily been the case either on the part of either the operation or the GRC folks.

Mr. Darby asked Mr. Barnett asked if he had conversation with Mr. Hacker (GRC) recently. Were you aware of this letter that was faxed today? Mr. Barnett answered that he was not aware that Mr. Hacker was faxing the letter. The last time I talked to him was yesterday or day before yesterday. Mr. Darby wondered if they had talked about his status and the lease? Mr. Barnett indicated that they had, adding that they had an arrangement where we are making payments. I guess they are saying that because of this arrangement, they wonít do anything else on the property even though it was not the original arrangement that we had in paying them. He didnít say anything about not coming to this meeting.



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Mr. Darby commented it was Mr. Hacker who appeared before us several months ago, and he was in agreement to performing these improvements through his company. Did you have any discussion with him as to the jeopardy he was putting your operation in by not doing this? Mr. Barnett answered I have not had any conversation on this, and I donít think my wife has either. This is all of a sudden. Mr. Darby commented I donít think all of a sudden will fly because it has been six months. Mr. Barnett responded I am talking about him not wanting to do anything. Mr. Darby asked if Mr. Hacker had addressed the issue of your continuing to be there, and Mr. Barnett answered he said as long as we continue making the payments. He said he couldnít see any more money going out anywhere else but to us.

Mr. Whitaker asked how many kids are there during the school year? Mr. Barnett answered it averages 120 to 130. Mr. Whitaker said you said you have six to 12 year olds in the summer camp; how many? Mr. Barnett answered that is an additional 40 kids. Most days of summer camp they are gone; today they went to the zoo for example. Mr. Whitaker asked the average number of kids when they go out into the play area? Mr. Barnett answered 15 to 20.

Mr. Huddleston said I donít recall what the center is certified for in terms of a student population. Mr. Barnett answered we are certified by the State of Ohio, and it is 161. Mr. McErlane commented I donít think that number was discussed in Planning Commission; I think it was closer to 120.

Mr. Huddleston said I know there are physical plant requirements that go along with that certification, so I assume that it is being reviewed and is being addressed by them so it is not overpopulated.. Mr. McErlane stated the Department of Health and Human Services does an annual inspection as part of their licensing. Mr. Barnett added that they do popup inspections as well.

Mr. Syfert wondered why Mrs. Barnett wasnít here tonight, and Mr. Barnett indicated that she was not feeling well. Mr. Syfert commented it seems to me that the people who did all the agreeing here in December should have been here tonight. I am pretty disappointed in that.

Mr. Vanover agreed. As I recall we queried Mr. Hacker and Mrs. Barnett very specifically as to the full understanding of what the requirements were and what the understanding was and the conditions that had been forth. We were promised that given a reasonable amount of time, they would be corrected. As we are pushing nearly seven months, and at the 12-Ĺ hour we now have activity. The landlord has chosen not to be here and I find him just as accountable in many of these instances as the tenant. I have a big problem with the situation and what has gone on. In April we had four violations and we had one in May. We made it very clear and we are very understanding and gracious in allowing the time window that has occurred; it doesnít set with me.


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Mr. Okum said we have had the city planner and the building official involved in this for a lot of hours. Is the City incurring these costs and are we being reimbursed for these costs. Mr. McErlane responded that issue came up earlier and we havenít passed those costs on. General Revenue is aware of our concern. Actually they were cited for a violation of the Zoning Code in April or May.

Mr. Okum said the citation went to the landowner. Did that go through our magistrate, a court hearing? Mr. McErlane responded zoning code violations are minor misdemeanors and it was a payout by General Revenue.

Mr. Darby said since we are in uncharted waters, what are our options? Mr. Schneider responded I see this as a hearing in the nature of an appeal by the operator of the business in view of having been given notice of termination of his use right for not meeting conditions that were given at the time the conditional use permit was issued. To me that is in the nature of an appeal by the operators of the decision of the building official. Therefore this board is setting in a judicial proceeding to make a decision to uphold the building officialís position of termination of use for violation of the conditional uses. That is one alternative.

The board also has in its discretion to allow additional time for correction if it chooses to do that. It is not in the nature of one to serve as an eviction agent for a property owner. It is in the nature of trying to meet the requirements to have good neighbors and good operation of the business in conjunction with our residential neighbors who have difficulties because some of the requirements arenít being met. You have the right to have some discretion as a board.

Mr. Darby asked if our decision would be appealable. Mr. Schneider answered yes, the property owner has the right to appeal to the Court of Common Pleas.

Mr. Huddleston asked the staff if they felt that if the attenuation conditions were met that it would satisfy the requirements set down by the Conditional Use Permit?

Ms. McBride responded it is our hope that the proposed measures and whatever plantings we recommend will provide relief for the neighbors in terms of the noise. If you will recall, there also was a provision made by Planning Commission that we would go out on two separate occasions and take readings at three different places to make sure that the sound attenuation has been achieved. If not, additional measures may be requested or required.

Mr. Huddleston said if this commission were to elect to extend the conditional use permit based on the outlined conditions being met, does that weaken our position in terms of revocation of that permit if those conditions arenít met by that time, or can we post that deadline this evening?


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Mr. Schneider responded I would suggest that you not extend anything. There is an existing conditional use permit, and the issue is if it is properly being held or not? If the board wishes to consider giving additional time, I would like to suggest you continue the matter until a date certain and give additional consideration of that.

Addressing the applicant, Mr. Huddleston said since neither Mrs. Barnett nor GRC are here, are you willing to assume the responsibility by your statements here this evening that should a motion that I would make to extend the deadline for 30 or 60 days, are you prepared to do that, and then on an ongoing basis meet the operating hour requirements? Mr. Barnett indicated that he was.

Mr. Okum commented I agree that we have not had any action taken by the applicant and we are very disappointed. But on the other hand, we do not know what the results of the sound attenuation process would be unless these improvements are made. I would not want to give 60 days. I think that until the next planning meeting would be adequate. If the applicant has not completed those changes by then, it would be a simple public hearing, but we should give the applicant the opportunity to complete the changes and I would suggest that if the commission goes that way, the applicant make the changes pretty quick. If they arenít made very quick, there wonít be any reading on the results of your efforts. That reading is very critical.

I think the city has been more than patient, and I think we have invested way too much into this. We do not want to see any business fail, but we do not want to put our residents in the position they have been. I would like to continue this to the next meeting.

Mr. Galster said I even have a problem with 30 days. . We have waited seven months. I heard that Sunday the fences would be up and by the next Sunday the plantings would be in. Unfortunately because of previous inactivity, they are in a situation where they need to make more things happen. My recommendation would be that two weeks from now we have a meeting with this item only on the agenda. We have spent plenty of hours on this.

Mr. Syfert commented the only flaw I see in that is I donít believe a one-day reading on the part of our planner would be satisfactory. Mr. Galster responded the applicant can get the fence done, can get the landscaping done and all the things that need to be done prior to us going out and make the measurements. Letís get the improvements done, so at least two weeks from now we would have the opportunity to go out and see what exists out there.

Mr. Syfert responded I think what Mr. Okum is saying is that in 30 days the fence is up, everything is planted and the readings are taken. When we visit this issue next month, it will all be done.

Mr. Galster said possibly so, but I can also envision the day before our July meeting Ms. McBride getting a call saying the fence and plantings are done; come out and take your readings. I would like to put a time frame on the items that the tenant and/or the owner are responsible for. Mr. Syfert said that could be covered in the motion.


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Mr. Barnett said Ms. McBride met with the fence guy and she knows that he is definitely coming Sunday.

Ms. McBride said I was going to ask the commission if you could provide the applicant with a time frame because after that we would need to schedule the readings. We will not be advising the applicant as to when we are going to be taking those but we need a little window of opportunity to get those in.

Mr. Huddleston said there are two issues here. One is the improvements to the physical facility, and the other is the ongoing operating characteristics, i.e. the outside play hours. Iíll assume that all the physical improvements will be done and if there are ongoing violations of the outside hours, how do we enforce that; what happens then if we continue this?

Mr. Schneider answered that the enforcement procedure is twofold. If there is a violation of the code at any time, they would be cited to Mayorís Court as a criminal violation. If the action is repeated, they can be cited repeatedly and if they are in violation and in essence ignoring things, our procedure will be to enforce your decision if you so make it that the conditional use should be rejected by seeking an injunction against them continuing to operate. That would be the enforcement mechanism for the boardís action.

Mr. Vanover asked if the commission would have to advertise the continuation of the public hearing. Mr. Schneider answered that the commission should reopen the public hearing and then continue it in progress if that is your inclination. That is considered adequate notice. If some of the members have indicated that the property owner ought to be here, so I would suggest that he be encouraged (we do not have subpoena power to order him here), to attend.

Mr. Okum moved to reopen the public hearing and Mr. Huddleston seconded the motion. All voted aye, and the public hearing was reopened.

Mr. Darby said earlier when we discussed this I raised the question as to whether or not it was your belief that this fencing improvement would take care of the noise problem and there was no guarantee. I think we should let Mr. Barnett know that if in fact this is continued for 30 days and if it was determined that the fence did not improve the problem, we would not be in a position to extend the time for a bigger fence.

Mr. Barnett responded we are doing what the city planner figures would be the best and we have to go from there.

Mr. Darby responded you were not at that meeting; your wife was, and we had quite a bit of discussion about the fence, the trees and the shrubs and if it would take care of the problem. It was determined that even with all this done we would have to go out with a noise meter and take some measurements. That should be kept in mind that there is always an outside chance that this would not take care of the noise problem.



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Mr. Barnett responded I am assuming that would call for another meeting. Mr. Darby responded I donít think it would warrant another meeting. I think we would be in a position at that time to say you are out of compliance. Mr. Barnett said even if what is said we need to do is done, we would still be considered out of compliance? Is it up to us to determine what would fix the problem? Mr. Darby responded there were things that should have been done, and this fence was seen as something that could take care of the problem.

Mr. Schneider stated the property owner does have some right to rely on the position taken by the City. If the City feels that this would probably meet the obligations and he is making every effort to do that, I would think a court of law would have great difficulty not allowing him additional time if needed.

Mr. Darby said I understand that, but I am asking Ms. McBride and Mr. McErlane for their professional judgment. Ms. McBride responded the proposal that we put forward in December when the Planning Commission acted on this matter is in our opinion a reasonable solution to resolving some of the noise issues that are being experienced by the neighbors. What was decided by this commission, and it was somewhat at the urging of staff, was that within a 90 day period of these improvements being installed, we would go out and take additional readings. If we find at that point of time that they exceed the levels established by the Planning Commission as a part of this approval, we as a staff can make additional suggestions that the applicant will have to install or construct to further address that problem. That was part of the original approval as I understood it, and I believe that the applicant understood it as well at that December. We feel this will resolve the problem, and we are going to go out and take additional readings on two separate occasions. If those readings are not satisfactory, we will make further suggestions, and whether it is additional landscaping or additional fencing or something else, it is the applicantís responsibility to do it.

Mr. Osborn said I would like to point out that this issue was covered at the December meeting and was outlined specifically in the letter of December 21st to Mr. Hacker with a copy to Mrs. Barnett. The threshold is not necessarily that a fence be put up and that the landscaping be put in place, but that the noise level be reduced and that it not exceed 65 decibels.

Mr. Osborn said that this was the standard set at this last meeting and as Ms. McBride has indicated, it didnít necessarily mean that must by putting up the fence that they were going to be satisfying those standards. We were going out and test, and if they didnít reach that 65 decibel threshold, they would have to make other improvements that would accomplish it. The burden is not on the City to tell them how to do it.





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Mr. Osborn added that all we are saying is this is what you said you were going to do; go do it, and if that doesnít work, you will have to do more. The City should not have to design a sound barrier for the applicant. The applicant has an obligation to get the sound to the level permitted by Planning Commission at their December meting. I would not want to put the burden on the City to tell the applicant what he has to do to meet that decibel requirement. I donít think they can rely on our saying you have to put the fence in as being a solution to that, because we have never said that. What we have been saying is that there are certain minimum things that they indicated that they would do which have not been done. Secondly, if that is not good enough to hit the 65 decibel level, then they have to do more.

Addressing the applicant, Mr. Huddleston said you have to recognize that your business is at risk here and as Mr. Osborn just pointed out, it is not the Cityís responsibility. We tried to cooperate and work with you. My point is that you may need to get your own expert or consultant to mitigate that, and that is not the Cityís responsibility. We have tried every way to accommodate you and it hasnít been done.

Addressing Mr. Schneider, Mr. Huddleston said If the period of time for the improvements to be made has not been met and we take readings which are not satisfactory, either upon completion of those improvements or before completion of those improvements, does that give us the right to assume that those conditions have not been met and we can issue a citation?

Mr. Schneider responded any time conditions have not been met the Building Official has the right to cite them into Mayorís Court. If he makes a reasonable attempt to make the improvements and our best estimation by our expert is that 65 decibels will be met and for some reason it is not met, my response to Mr. Darby was that we probably owe him adequate time to put in an additional barrier or whatever. At the same time, he should make every effort to make those corrections. Mr. Huddleston made a very good suggestion that Mr. Barnett get someone else in there to check it so that 30 days from now when you are up against the firing line again that you have made reasonable progress in making the improvements that are necessary.

Mr. Schneider said if that means you need two additional feet and that is what is decided two weeks from now after you have spent the week putting the fence up and have made some readings, it would seem that the owner of the business ought to determine what is needed and get about doing it and hopefully have it all done before the next hearing date 30 days from now.

Mr. Syfert said I did reopen the public hearing, and I will ask again if there is anyone who wishes to speak for or against this issue.

Mr. Barnett asked where the readings would be taken from. Ms. McBride said we can supply you with a copy of that information. It would be at different locations along the property line.



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Mr. Syfert said I did reopen the public hearing. Would anyone care to speak for or against this item?

Doyle Webster said I have a real dilemma. We have an outstanding order against the owner of the property to comply with the Planning Commissionís wishes of December. We have cited the owner and he paid his fine out. We cited the operators and went to court, they got a continuance and before the next court date they paid that out. If your vote is to give them 30 days, is this Commission telling us that we should interpret that as giving Mr. Hacker 30 days? My intent is to tell Mr. McErlane tomorrow to cite Mr. Hacker back into court next week. He has not complied with the wishes; he has not done what he said he was going to do on December 20th. He got a Conditional Use Permit out of this Commission by saying he would do certain things and he has not done them. He is not here and he has no representative here. He sent you a letter saying he is not going to do it because he doesnít have the money. So, where does that leave the City on enforcing the order against Mr. Hacker?

Mr. Schneider said certainly the City has the right to cite the owner and operator for any time that they are not in compliance with our code.

Mr. Webster said with the order of December 20th? Mr. Schneider responded that is correct, the order of the conditions of the building permit. We have the right to cite into court the owner of the property for failure to comply with the conditions that were present at the time of the permit.

Mr. Webster said and we have someone here this evening, Mr. Barnett, who says he will step in and take over Mr. Hackerís responsibilities. Mr. Schneider said that is what it appears to be. I donít know what the lease says and I can Ďt determine that until I read the lease. Mr. Webster asked where that leaves the City on enforcing the order against Mr. Hacker? If someone says they will take over his responsibilities should we just say okay and turn our head and do nothing?

Mr., Schneider reported that the options are to cite him into Mayorís Court if we choose to for any time in which he continues not to meet the requirements of the conditions of the permit.

Mr. Webster said at this time we have no evidence that Mr. Barnett has the legal authority to step in and do these improvements for Mr. Hacker. Mr. Schneider said conceivably and based on what the lease says, he may not be allowed to. It is the ownerís property and he is the tenant. It would depend on what his lease allows him to do as to whether or not he can build that fence there. I wouldnít know that unless I saw the lease.






12 JUNE 2001



Mr. Huddleston said if the lease stipulates that he can operate with the landlord, does that give him the same rights as the property owner? Mr. Schneider responded not necessarily; there may be a limitation on the right to make improvements or not make improvements and all those other elements.

Mr. Syfert commented I doubt that the lease would cover the situation that we have here, where they both stood out there in December and said they were going to do this, and it hasnít been done.

Mr. Vanover said in December they assured us that it would be taken care of. On March 30th a certified letter was sent to Mr. Hacker and Mrs. Barnett was copied, that the requirements of that December meeting were to be installed no later than April 30th. It is June 12th. It was a certified letter and you can assume with that there are some legal matters involved. We made our statement clearly and we are past that time. Ill think we have been fair and reasonable in giving them time to solve the situation. They chose not to and I think it is time to handle this.

Mr. Okum said the Conditional Use Permit is issued to both the landowner and the operator of the conditional use, is that correct? Mr. Schneider answered I believe it was issued to the landowner. Mr. Okum said and the landowner conveys that right to the operator by virtue of a lease or an agreement to use the property for that purpose. So the gentleman who is here this evening is the end of that chain, and I agree that Mr. Hacker is not here and has not complied with the Conditional Use Permit that was issued, nor with the conditions that were given in December. I have the same feeling as you do Mr. Webster that Mr. Hacker and General Revenue Corporation are in violation of those conditions and therefore are subject to citation as many times as is necessary until such repairs are made. It is the duty of the administration and the City to make those citations.

On the basis of getting this thing resolved, I will move that we continue the public hearing until July 10, 2001. Mr. Huddleston seconded the motion.

Mr. Galster asked Mr. Schneider if it would be appropriate to make a motion to revoke the Conditional Use Permit unless the owner and/or applicant is able to get the noise level at the facility below the 65 decibel level before July 10, 2001?

Mr. Schneider responded the issue would be when his rights take effect and when his appeal time would be. Is it now, because you have made the decision to reject and therefore he has to file in court in essence on the day of the next meeting. I think that would unduly complicate matters from a legal standpoint. Whereas if it were continued for 30 days and 30 days from now you gave notice that that is the decision, you must act within 30 days of the decision to give him the appeal time rights. To me the clean way is to continue the public hearing.



12 JUNE 2001



Mr. Schneider said if that is your pleasure, make your decision and terminate the conditional use now. If he is in violation now, which I understand from the facts he is, you have the right to terminate it now. If you are inclined to give him 30 days to try to make the corrections he has indicated he is going to do, vote that way. I think that trying to combine those two would not be wise.

Addressing the applicant, Mr. Syfert said we have gone one hour and 10 minutes and there has been a lot discussed. Depending on how the vote goes, it needs action on your part.

On the motion to continue the hearing until July 10th, voting aye were Mr. Okum, Mr. Huddleston, Mr. Darby, and Mr. Syfert. Mr. Galster, Mr. Vanover and Mr. Whitaker voted no and the motion was passed with four affirmative votes.

    1. Tri-County Mall requests approval of proposed Farmerís Market to be held in Mall Parking Lot
    2. Paul Sauer, General Manager of Tri-County Mall said with me is Yvette Chrichton our Marketing Director. The owners of the shopping center have come to us for new and creative ways to bring on good uses and generate income and meet the standards of the shopping center. The Farmerís Market use is one that is growing in different parts of the country. Customers seem to enjoy it this time of the year and we also would use the area in a much smaller dimension for the sale of Christmas trees during the holiday season.

      Ms. Crichton added the concept would be an ongoing seasonal concept. We are trying to launch June 22nd for the first summer season and then the second season, the fall season would be for pumpkins and things of that nature and finally in November we would selling Christmas trees and possibly poinsettias.

      Ms. McBride reported the applicant provided specific hours of operation and specific dates for all the times except the sales from November 30th to December 25th. The commission would want some kind of guarantee as to the hours of operation during that period as well.

      Ms. McBride added that on the location, it would take out seven rows of parking with 19 spaces in each row, for a total loss of 133 parking spaces. That does not take into account any additional spaces that might be lost in order to assure adequate circulation for the parking field that is to remain.

      By our code it would require an additional 232 parking spaces for the retail sales area that they would be blocking off. So, we would need to provide parking for the 232 spaces as well as the 133+ spaces that would be lost as a result of the proposed development.




      12 JUNE 2001



      We had requested the applicant provide us documentation that those excess parking spaces in effect do exist, and we did not receive any response.

      We also had serious concerns that the market seasons that they are proposing are the two busiest times, the Christmas season and back to school shopping season. This area would be taking up a pretty big chunk of Penneyís parking area.

      We didnít get any indication of signage for the market, either free standing signage or signage that might be on the tent, so no signage would be approved as part of the request.

      The applicant is right that there are a number of these type operations across the country and the Planning Commissioners Journal that you received this month had an article called "To Market To Market" on this exact type land use.

      The concern becomes do you want this to be a flea market. A lot of the markets have put into the restrictions what is sold in the market area has to be grown by those who are selling it. That preempts it becoming another Traders World. We would want that restriction to be placed on the vendors Ė whatever they sell, they have to grow.

      There was mention of a proposed tent, but we didnít see any details. We did send this information to the applicant but we d id not receive any response to our inquiries.

      Ms. Crichton said regarding specific holiday hours, the only thing we didnít disclose was the actual November period and that will be in alignment with the mall holiday hours. We typically donít put that out until October, but we can get you a copy. The regular hours of operation are 10 to 9 p.m. and during the holiday they are extended to 10 p.m. We have not secured the tenant for the Christmas trees at this time, but we would not do anything that would deviate from the holiday hours.

      We would have three tents for the summer and fall seasons of 214 x 162, and one 20 x 120 tent for the holiday season. That particular parking lot and that particular corner are never utilized to its full maximum potential, even during the holiday time. The three tents would accommodate the full-maximized layout of 44 vendors. Initially we will have only 24 vendors, so I would say we would have three 20 x 120 tents for now.

      Ms. McBride said so some of the vendors during the summer and fall will be outside of the tent area. Ms. Crichton answered no, during the summer everybody will be under a tent. We will have three tents maximum. Ms. McBride commented the dimensions you gave us were 214 x 162 and three 20 x 120 tents is 60 x 120. Ms. Crichton responded Iíd have to get you the information on the tents from Aileen Rental. We can adjust the tents plus or minus 20 feet. Ms. McBride said the information you submitted to us was that the market area would contain 34,668 square feet. Is that what you are requesting?


      12 JUNE 2001



      Ms. Crichton responded that is the maximum space we would need to do this, but whatever that maximum space is, we can scale back the three tent sizes to accommodate that space. I would say the 214 x 162 would be the maximum; we would not go over that. If the 20 x 120 does exceed that, then we will scale back the 20 x 120 tent.

      Mr. Sauer said I would like to speak to the issue of parking ratios. It is an important issue and I keep on top of it. I am working on another project, and Baxter Hodell has run parking ratios for potential new building areas and all of them are larger and would take more spaces than what we are proposing. I can provide to you those parking ratios to make you more comfortable that we are not in any way violating either the covenants of the department stores or the requirements of the building codes.

      Ms. McBride responded that really is what staff was looking for when we sent out this initial report to the applicant.

      Mr. Sauer said you brought up the idea of this becoming a flea market, and we will have leases that restrict the uses, the products they can sell, and in keeping with the standards that are established at that facility. It is my job to see that doesnít slip and that is not our intention. It is a first class operation and the same standards that are applied to the rest of the shopping center will be applied to the operation of this proposed market.

      Ms. Crichton said potential vendors would come from the Ohio Agricultural web site and also those who are currently at Findlay Market. One of the prerequisites that we have in our exhibitor agreement is that they grow their own products.

      Mr. Syfert asked if that would apply to pumpkins and Christmas trees also and Ms. Crichton confirmed that it would. Mr. Syfert commented I thought there were certain species of trees not growing this area and brought in from Canada. Ms. Crichton responded the two we are looking at are from Wisconsin.

      Ms. Crichton said I did not indicate additional signage on the original proposal. We do have plans for some exterior signage if it meets the committeeís approval. I have a photograph and we are proposing flags indicating "Farmers Market" on the exterior lighting fixtures. The rest of the signage would be in the mall.

      Mr. Okum said then you are talking about three 20 x 120 tents for summer and fall. What types of tents are they? Ms. Crichton responded they are white tents that will be placed in concrete holes. Mr. Okum asked if they were skirted on the side, and Ms. Crichton answered that they have an option to skirt or not to skirt. The issue is are the farmers going to skirt and close up shop when they are done and I canít answer that right now. We can guarantee that they will after 1 p.m. be closed. Would the committee like to have them skirted?



      12 JUNE 2001



      Mr. Okum responded I have seen the Farmers Market behind Lunken Airport and when it is closed down it looks pretty trashy. I donít have a problem with it as far as outdoor display or little rolling carts, but I really have a problem with three white tents setting out there at Kemper and 747. We limit tent sales in this community to two weeks and I think we really are pushing the envelope with these tents. I donít think that is the environment we would like to see, skirted or unskirted. If buildings or heavy landscaping surrounded it, it might have the feeling of a farmers market.

      Ms. Crichton said we have an option. This is the worst case scenario; we havenít even advised the vendors that we are going to be using the tents. It was a consideration for the spoiling of the vegetables and fruits or we could have the vendors provide their own tents.

      Mr. Okum said within the mall you have kiosks; there is symmetry between all of them. Couldnít that be the same type of thing for a project like this?

      Mr. Sauer responded if that is the desire of the committee, we would look at it. We want to do this and want to address the concerns that you have.

      Mr. Darby asked about the time to close, 1 p.m. Ms. Crichton said Findlay Market stays open until 6 p.m. and since it is just a seasonal thing, the highest traffic times is early in the morning and it is dead after 11 or 12 p.m. We wanted to keep it in alignment with what other farmers markets were doing. The difference between our concept and what Findlay Market is doing is we will try to operate ours on Sundays and Findlay Market is not.

      Mr. Darby asked if the farmers close at 1 p.m. and police the area themselves or do you have people responsible for that? Ms. Crichton said it would be the farmersí responsibility. Mr. Darby commented my experiences has been that at Findlay Market almost constantly there are people out there cleaning and dumping. Because of the high visibility of this corner if that werenít done, it would really be an eyesore. Ms. Crichton agreed adding that it was something to look into in terms of trash containers. Mr. Sauer added it is an important point; the center standards would be met. My staff and I would make sure that the standards were kept.

      Mr. Galster said I think what you are dealing with is a destination shopper, and my question is why does it have to go at 747 and Kemper Road? What about your Safety Town in the back, where you could put up smaller tents and have those type things in the back of the parking lot where they would not be intrusive to the main parking area and people do not have to fight all the mall traffic. Then it is not in the middle of the busiest intersection in the City with three big white tents.






      12 JUNE 2001



      Mr. Sauer responded any time we bring in a new use to the center, we want to optimize its opportunity for success. For an unusual use like this, we want to utilize the visibility of that intersection. Mr. Galster said I understand that, but I donít agree that is the best way to do it. While the concept may be a good one, I donít know about putting it there. The people going in the mall will be aggravated that you have taken over a big part of the parking lot. The people going to the market will have a problem fighting the traffic to get to it. That is one of the hardest parking areas to get into. I like the idea and probably would go there, but I canít see putting it out at that corner.

      Mr. Sauer stated one of the reasons that guided us to that particular area was that a majority of the time that parking field is left vacant. Mr. Galster responded that is probably an accurate statement, but I can envision farmers with big trucks loading and unloading, and I donít see that activity on that corner.

      Mr. McErlane reported that there are four sections of the Zoning Code that apply to outdoor sales, and this application doesnít fit into any of them from the standpoint that it is an expansion of an existing tenant use within the building. This is a different operator that doesnít have space within the building. The first section in our code applies to garden centers with stock in an enclosure directly adjacent to the building. The second one would be seasonal sales which typically are an extension of an existing use for materials that are not stored inside such as mulch (Christmas trees are one of those). The third one would be tent sales and are limited to a two-week period and those are for commodities that are sold in a store in an existing building. The last section would be a sidewalk sale, which canít exceed two weeks and is in connection with a tenant in the building.

      We talked about the parking spaces that it occupies and it appears to be about 15% of the parking spaces that are immediately adjacent to J. C. Penney. Our biggest concern is the holiday season. This is a photograph taken by the Cincinnati Enquirer in December of 1994 on a Saturday. Youíd be hard pressed to find an excess of parking spaces anywhere other than down by the CG&E substation. I think it really will tax Penneyís parking lot during the Christmas season. Have you discussed it with Penneyís to determine their acceptability? Ms. Crichton answered no. That is our next step. Mr. Sauer added we were going to go with your approval. I think in all fairness there is a large portion of the parking area not shown in that picture, which are the parking decks. There are three levels of parking that are not shown on it.

      Mr. Sauer said I have only spent one Christmas as the general manager, but at that time of the day, my task would be to be out in the parking lot to see what traffic is like. I can tell you that the parking deck is not used as frequently as we would like. So I agree with you that the photograph shows surface area, but the availability of parking in that area is not properly shown.




      12 JUNE 2001



      Mr. McErlane responded possibly for the lower decks. The upper decks are full. Mr. Sauer said they are more popular because they have the sky bridges that enter the mall at two places. Mr. McErlane added that there are even remote areas being parked in this picture that are further away.

      Mr. Vanover said my biggest problem with this is the holiday season. I have seen in going traffic backed up to 747 and backed up to Kemper with people trying to navigate through the mall. Itís going to take a whole lot more to convince me that we can sacrifice those parking spaces out there. My other question is do we need another Christmas tree lot? I donít think we have a lack of opportunity to find a Christmas tree, and to sacrifice those parking spaces for that. I canít in all good conscience be in favor of it.

      Mr. Sauer responded I understand your point about parking. It remains paramount in the operation of the shopping center. As far as your point about another Christmas tree lot, the thinking was it is consistent with a farmers market use. In terms of having another use like that, I would argue do we need another dress store in the area. Mr. Vanover said that may be the case, but that dress store will not sacrifice those parking spaces. If that dress store is going in, it is an additional development and we would consider the need for additional parking space.

      Mr. Okum asked if they are pat on the holiday season, because I canít imagine selling enough Christmas trees to make it worth the cost of this improvement. I think you have to understand if you are going to continue in this direction, the restrictions on that area will be so intense that it may not be a cost effective solution, but that is your decision. I think Mr. Galster has a good point in that there are other areas that could be used that would not be as visible and restricted. If you continue to pursue this corner as the exposure, it will be a very exposed area that will require a lot of conformity, like similar kiosks, color pallet on umbrellas, etc. We have the problem of dumpsters and where they would go. Then we have the box trucks, and where they should go, along 747 or Kemper Road. Or should we restrict them and say that all box trucks and panel trucks should be kept by the power station. These trucks have signage all over them. Those are some of my concerns. In no way would I be ready to make any motion whatsoever this evening. I would be very uncomfortable with all the conditions that would have to apply to it. I hope you are coming in on a concept basis tonight and you can finalize from the membersí comments a decision which way you are going to go and what you will finally present, because there is no way I could make a final approval on this.

      Mr. Shvegzda reported that the concern on parking has already been addressed. The question on how this facility would be utilized regarding if it would capture additional traffic that isnít entering into the mall or utilize traffic that is currently in the mall parking lot. Mr. Galster had indicated his belief that it would be capturing additional traffic. In that light the questions would be how it would affect the current access points into the mall and how it would affect the internal circulation? Those need to be addressed.


      12 JUNE 2001



      Ms. Crichton answered the proposed hours work like a dream, because the mall doesnít open until 10 a.m. and we are looking at a starting time of 7 a.m. So, I really donít think that is an issue as far as accessibility and usage of the center is concerned until we get into the holiday, and those hours have not been completely determined but we can manipulate them. That is why we chose 7 a.m. This is destinational. It is an added value for the center.

      Mr. Huddleston moved to reject approval based on the fact that this is not a designed pedestrian or boutique shopping area. The operating conditions and mall design standards aside, I believe it is a significant public safety issue, especially for the pedestrian traffic intermingling with vehicular traffic. Also, the traffic pattern in the parking field would be restricted from that originally intended in the design parameters. Finally, this would set a precedent to encourage outdoor sales at other congested areas zoned retail or PUD, and this commission has tried to limit this over the years, especially from a public safety standpoint. Mr. Galster seconded the motion.

      Voting aye were Mr. Huddleston, Mr. Galster, Mr. Okum, Mr. Vanover and Mr. Whitaker. Mr. Derby and Mr. Syfert voted no, and the request was denied 5 to 2.

      Planning Commission recessed at 8:50 p.m. and reconvened at 9:01 p.m.

    3. Shipps-Yamaha, 11530 Springfield Pike requests approval of backlit awning

No one was present to represent Farmers Market and Mr. Galster moved to change that to the end of the agenda, adding that the individual has left the meeting and might possibly return. Mr. Vanover seconded the motion and by voice vote, the item was moved to the end of the agenda..

C. Tijpton Interests requests approval of rough grading plan for Pictoria Tower II

Bill Woodward of Tipton Interests distributed a marketing brochure. What we propose is to start grading for Tower II. Even though we donít know exactly when we will start Tower II, it will depend on the marketing of Tower I and whether or not we can land a major tenant for Tower II, we want to do it now because Tower I will be finished November 1st (including the garage and the extension of Pictoria Drive and that plaza).

Mr. Woodward stated that there are about 40,000 yards of dirt that we need to move from the 15-acre site along North Commerce Way to get our building pad ready. We donít want to run the scrapers and pans over our new plaza, so we want to get it started now before the plaza is put in. We need to put the plaza in the next couple of months so that it will be completed by November 1st.




12 JUNE 2001



Mr. Woodward said we also have the site plans. The buildings are reoriented from the preliminary plat approval. The office building is about 9,0900 s.f. bigger and the garage is a little bit smaller than the original proposal on the preliminary plan. If that is a big issue, we can adjust it before we come in for a final plat approval. Dave has a meeting Friday with a tenant who possibly would take a 200,000 s.f. building, so we could come in and ask for a little bit bigger building than 189,000.

The only real objection you might have to turning the buildings and putting the garage to the east instead of to the north would be the visibility from traffic approaching from the east on 275. That was a comment that was made, and we have some slides that attempt to answer that question. He showed the site plan, adding that you have one in your packet that shows it better than this.

The next slide shows the site as you are west on 275, and you can see our tower frames. If you look close, you can barely see the top of our first tower, which is over 100 feet tall. You can see how those trees would block the visibility of any garage as you approach the site from the east. The garage will be 40 feet tall, and those trees range from 40 feet up to one that is 88 feet tall. While we will be taking down some of the trees on the west side for the building, pad, there are a lot more that will be staying and blocking the view of the garage.

We have asked the architect to superimpose the building on an actual photograph as you approach even closer. The garage is superimposed on that photograph, and you can see the building as you approach, but you will not be able to see the garage. When you get perpendicular to it and look to the right, you will be able to see the garage but we will do additional plantings to soften that edge.

The architect feels very strongly that we need to keep the orientation that we are currently planting because of the relationships with the plaza.

We are planning a fairly elaborate plaza with a fountain here and another feature like a fountain here. The entrance to Tower I is lined up with that fountain, and the entrance to Tower II is lined up there, so there is a lot of symmetry. Also when you are approaching the building along Pictoria Drive and turning here, you have a much better sense of arrival having this office building visible, as opposed to a garage being the first thing you see. So we feel strongly that is the best drawing.

Mr. Woodward added the other thing this allows us to do is that this first tower has the entrance lobby on the end of the building, and we think it will be a nice complement to that to have a central entrance and a center core on the second building. I have a rendering of what the second building will look like, with a lot of the same elements but arranged a little differently and very attractively.





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Mr. Galster said we saw this conceptually with the orientation as shown here, but I thought one of the biggest problems was circulation. Did you figure out what you would do; will that be one way in and one way out for the garage? Mr. Woodward answered no. That needs to happen as we present the final plan for that site. We currently are showing an entrance only into the garage on the south side and an exit on the north side.

Mr. McErlane said you had indicated you wanted to do that prior to putting in the plaza so that you didnít damage it. How do you propose getting your construction traffic into the site beyond that point? Mr. Woodward answered that is a good question. We want

to talk to Avon about a construction easement across their property. That would be our preferred method.

Mr. McErlane reported there are 88 trees that are a protected size or larger that are being removed and they include 18 24 inch trees, four 30 inch, three 36 inch, one 42 and one 48 inch tree. The total caliper inches of trees being removed is 1522 inches. Most of them are exempt from replanting because they fall within the footprint or within a 10-foot perimeter of the footprint of the buildings. The total non-exempt trees that require replanting are 360 caliper inches, which requires 180 inches of replacement.

There are a couple of trees shown on the east side of the site, an 18-inch and a 24-inch that are fairly close to the exterior wall of the parking garage. Itís going to take an awful lot of care to try to keep those in place. Twelve feet of the drip line on the 24-inch diameter tree will be removed because of where the parking garage is located relative to the tree. My guess is weíll lose a couple of more.

We had asked for a project schedule and really only got an indication of what the rough grading schedule would be. Because they are removing a substantial amount of trees and doing an amount of grading on the site, the concern would be that this all may occur and then set for a period of time, whereas if it were left until the date it was developed, we could still maintain the considerable number of trees on it and not disturb the soil and create a potential for erosion.

At this time we really donít have a schedule for Pictoria Office Tower II and I donít know if you have a rough idea when that would be. Mr. Woodward answered a guess would be only that, a guess. With the market right now, office buildings arenít doing that great, and there is a lot of new product on the market. It could easily be a year or two years.

Mr. Woodward added we have 272,000 square feet of space to lease adjacent to this lot so we have a vested interest to make it look as good as possible as well.






12 JUNE 2001



Mr. Shvegzda said to recap what is being proposed for the rough grading area, that area is 3 Ĺ acres. There is a maximum fill area of about eight feet and this would comprise the building pad for the two structures noted. The maximum slope on either end is 3 to 1 and approximately 5-foot height along the southern perimeter. That particular top of that slope will be approximately two feet away from the existing I-275 right of way fence.

On the sediment control, there will be diversion ditches and different silt fence type arrangements to be constructed which will carry any of the sediment runoff into the current detention basin to act as a siltation basin and settle out the sediment in that area. There are temporary and permanent grass seed mixtures noted in the plans.

The one issue that will have to be clarified, and noting that there is not a specific time frame for the building construction that some type of permanent ground cover needs to be established upon completion of this phase of the rough grading. It really needs to be established to prevent any additional erosion from the site. The rest of the issues are issues of consideration for final site development, and I think some of them have been discussed, regarding the circulation to the garage. The City will own the lot that the garage will set on. As it will be a separate lot, the one issue that may be discussed is what will be the frontage on the public right of way and how it will have permission of access to the public right of way.

Mr. Okum said we are going to take about 20 feet out of there, is that correct? Are we taking any of that hill? Mr. Woodward said no, in fact we are adding onto it. The existing topo is about 593 and we will go up to about 597 or 598. Mr. Okum said so you are filling the area, but you will need to bring construction equipment in to build the garage and the building. Mr. Woodward said we are going to bring up the existing grade with 40,000 yards of material and the fill will be between four and eight feet maximum.

Mr. Okum commented the only problem I have is if we donít know when the new building is going in, we are going to be taking out a good number of trees. I donít see the advantage of doing it. I understand the plaza area and that portion of it, but I also see trees by the plaza area currently.

Mr. Woodward responded we have wrestled with this question. Mr. Okum added if I were in Tower I, I would rather see the trees than a flat graded out area. Mr. Woodward said the trees arenít going to be there; there will be a building there. Mr. Okum said I am having a problem with stripping that site out until we have some type of benchmark for when we are going. Within 100-150 feet of the plaza area, I donít have a problem because you are going to be grading and finishing that out. To go all the way back in that site and do all that work; I know you want to get rid of that pile.





12 JUNE 2001



Mr. Woodward answered getting rid of the pile is not the main reason to do it. It is to save the plaza and get a building pad ready to be built on. If a tenant wanted to start the building in November or December, we wouldnít be able to start the building until all the dirt gets moved over. Another advantage to us would be to have the flexibility of being ready to dig footings when the building is ready to start.

Ms. McBride said I typically donít get involved with rough grading plans, but there is one comment I would make. Staff doesnít have a problem with the reorientation or the revisions in square footage, but I am a little stuck on one section of our Zoning Code. That is Section 153.448, our Planned Unit Development District. It defines a major departure from an approved preliminary development plan as among other items "an increase in or relocation of areas planned for a particular use.." I take that to mean an increase in areas; anywhere else that you work would mean an increase in density or an increase in square footage. There is also the issue of relocation or reorientation. That I am not so hung up on, but the increase in square footage is a little bit of a problem in terms of whether or not this has to go back before Council. Obviously that is up to our two council representatives to determine.

Mr. Syfert asked how much of an increase this would be, and Ms. McBride answered it is an increase of a little over 9,000 square feet. Mr. Syfert commented roughly 5%.

Mr. Galster stated that he had no problem with the change and did not feel that it needed to go back to Council. Mr. Vanover agreed.

Mr. McErlane said relative to the superimposed image of the building on the screen right now, to get a feel for where the parking garage is located relative to that view, the east wall of the parking garage lines up almost even with the overhead sign shown on the interstate. So some of the lower growing growth that is on the hillside is gone already; there is a fence that runs to that extent. I still donít think it will leave that much of the parking garage visible.

Mr. Okum said you have indicated that the parking spaces in the garage are reduced down to 808. Is that based on the new code? Mr. Woodward answered it is based on market need. Mr. Okum said you increased your building square footage and reduced your parking in garage two. Mr. Woodward said it is close to what it was and is simply of drawing the bays and getting the building lengthened.

Mr. Okum commented 9,000 square feet typically dictates more parking spaces. Mr. Woodward responded the first building we have is about 4.3 per thousand and that is a good number for marketing an office building. This one would have been something like 5.5, which is far in excess of what is needed. The ratio of this building, 808 is actually a little bigger than the ratio for the firsts building. We are comfortable in leasing it with that type of parking garage.




12 JUNE 2001



Mr. Okum asked if they had any other way of doing it without taking all those trees before you have something going on that site? Mr. Woodward answered I feel we need to have the site ready for the two reasons, for the plaza and having the pad ready to put the building on.

Mr. Okum commented I think you could build your plaza without the grading. Mr. Woodward answered that they could; we just want to get this dirt hauled across it before we build it.

Mr. Okum said there was supposed to be something done in the middle of that dry basin in the front. Did you put trees in that area? Lanie Wess answered there are trees in the pond.

Mr. Okum asked if the dry basin got water in it during the storm and Mr. Tipton answered that it did. It probably had at least one foot of water. I was there for about one hour and it was still there when I left.

Mr. Okum said the treescape along 275 is attractive and I think the city engineer must have been involved with the type of stones used in that overflow area. That takes away from the look. Mr. Tipton agreed, adding that they were going to try to do something. We are getting bids to do that right now.

Mr. Okum moved to approve the rough grading plan of Pictoria Tower II dated June 12, 2001 with the conditions and items set forth by the city staff. Mr. Whitaker seconded the motion. All voted aye and the approval was granted unanimously.

D. Tires Plus, 11700 Princeton Pike requests approval of changed roof color

Craig Malis said I am Regional Vice President of Tires Plus. He passed around photographs showing the corporate logo. We are a chain of 600 stores emerging across the nation. We gain most of our locations through acquisition. One of the more recent acquisitions was Michael Tire and you will see a transformation of those buildings to our Tires Plus colors as well as ID. I think you will agree that the site we took over is 1,000 % improved; it was an eyesore.

Not knowing about the PUD in place, we submitted plans to our landlord and went along with our look as we do. Consequently we found out that we had violated the code.

I assure you that no one tried to slip anything by. We wouldnít want to incur the double cost of painting or coating an expensive roof treatment like that, so we would appreciate consideration to leave the colors as they are. It is a look that we are after. We believe it is an attractive clean look and personally, I donít find it offensive.






12 JUNE 2001



Mr. McErlane said the property is zoned PUD, Planned Unit Development, and the original preliminary plan and rezoning of the property to PUD was approved by City Council on June 17, 1987. In looking through the records with respect to approved mall colors, we looked at attachments to the preliminary plan and there was no color pallet attached. However there were discussions both at the preliminary plan stage and in final plan stage that talked about building material colors, and was specific to the mall building itself and expansion of the mall building. The discussion was about beiges at the preliminary plan stage, and at the final plan stage they talked about neutral pastels. With respect to the existing anchor stores and outlot buildings they were to remain as they were existing at the time.

The only color I could find in the file for the Tri-County Mall expansion was a piece of the silver metallic lukabond that is used as column covers as well as for the sloped façade at the top. The majority of the other materials are drivitt or split face block which are painted either beige or gray.

The only other building elevation drawings that we saw during the time of expansion was in August of 1990 when Ruby Tuesdays went in on the south side and Planning approved additional storefront material as well as some awnings on the outside of the building which were represented as beige and terra cotta (a brick red type color).

At the time that the building in question was being prepared for the new tenant, there was a reroofing permit issued which included replacing what was either a shake or artificial slate type material on the roof with a standing seam metal roof. The original standing seam metal roof went up as a brown roof and then was painted red.

Ms. McBride said our Planned Unit Development ordinances does provide for modifications to a PUD. However those do have to come back before the Planning Commission and this was done without Planning Commission approval and they are seeking that approval now. We need to weigh carefully what originally was approved and the intent of that approval regarding the neutral color schemes. If one user does comes in with accent colors, there is the ability for other users to come in and make a similar request to Planing, and it would b very difficult for us to deny those requests.

Mr. Okum said I was here when we reviewed the original plans for Tri-County Mall and I do recall the mall presentation for the PUD called for subtle beige gray colors. That sample I recall vividly as a presentation before Planning Commission and Council. There was never any discussion of red roofed buildings in the mall. As a matter of fact Planning and Council at that time was very concerned about the quality look, the high end look of a mall with a finish that they promoted for the entire site. Quite frankly I think it is a departure from the PUD and adverse to all of the planning that went into that site. The roof system in particular is a giant billboard. It may be an identity feature for you but it is not an identity feature for the mall.



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Mr. Okum said I couldnít support a departure from the PUD as presented. I can have some flexibility when it comes to window spandrels being a different accent color, and we also allowed accent awnings (Ruby Tuesdays) . This is not an accent color; this is an identity. This can be identified from 275 nearly to Route 4 and quite frankly it doesnít conform and I cannot support this to continue to be in contradiction to the approved PUD.

Mr. Huddleston asked the applicant if there were brown panels in place? Did the standing seam panel which you applied to the building have a factory finish color on it, and was it red? Mr. Malis answered when I viewed the property originally it was cedar shake roofing. Part of the arrangement of our lease was to have a new roof system put on. I am not 100% familiar with the actual application or the color of the metal roof that was applied to that awning. We have a look that we seek and we got the approval from our landlord. We made the investment and put the coating on it and now we are here.

Mr. Huddleston asked if the Building Department knew the color that was on the original factory panels and Mr. McErlane said it was either brown or the dark bronze finish. The first time I saw the red appear, it was on one spot and I thought there might have been a mistakep, that a piece came in red and they were painting it brown.

Mr. Huddleston said so you destroyed a factory finish for a field applied finish.

Mr. Okum said I believe the mechanical units were replaced on the building as well and those are not screened as per PUD requirements. That would certainly have to be complied with.

Mr. Huddleston said it is not unusual as you go into PUD type areas where there is architectural control on the buildings in various communities where they do not permit a red siding or some other type material. Does your company have alternative solutions to that problem in other areas, and what have those been?

Mr. Malis answered I am not familiar with them. This is the first time I have encountered a situation like this. I donít personally contract the work; we have a department that handles all this.

Mr. Huddleston wondered if there had been any discussion in the company as to how you might address this apparent concern for the red? Mr. Malis answered we thought with the approval of our landlord and their taking the steps necessary, we wouldnít get to this point and hoped that you might consider the improvement on the building and grace us with the allowance of the color. In addition, Mr. Okumís points are pretty strong, but I believe I read Ms. McBrideís statements that there was concern for other tenants raising the question. Before we invest in a new coating that could cost a great deal of money, if it becomes an issue with other tenants, maybe we propose to change our colors at that point. Iím going to make a sizeable investment in the whole Greater Cincinnati area. The company is after a look and we plan to be 2,000 stores within the next two years.




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Mr. Huddleston responded IL appreciate your business concern for your image, but it is an apparent violation intentional or otherwise, to what the PUD was. That is why I was interested in knowing if your company had addressed this in other areas and if you had other alternatives to propose to mitigate this circumstance.

Mr. Malis answered I do not, but I would be more than happy to provide them.

Mr. Whitaker said when they applied for the reroof permit was a color sample given? Mr. McErlane said that it was not. Mr. Whitaker asked the applicant if he had a signed lease at the time that the brown roof was applied. Mr. Malis indicated that they did. Mr. Whitaker added the reason I ask is because I know that you can get prefinished in red, and I am trying to understand whether or not it was a remodel prior to the lease or after.

Mr. Sauer said I can address that. The plans that they submitted several months prior to the work being performed consistently had the red paint. It wasnít changed after it went up. Mr. Whitaker commented I am curious that a brown panel would be applied when a red panel is available. Mr. Sauer responded the intention from the start was to paint it red.

Mr. Okum said I donít want it to be believed that I think that red accents and red is a nasty color. Red can be used very tastefully and it can be done appropriately. Frankly I donít have a lot of objection to the extrusions around the windows being painted red as an accent for an identity. I would even be flexible with the fact that it has a red band or red cap around the square box portion of the building. We have enough trouble with overhead doors facing main right of ways. I think the overhead doors need to go back to neutral again. The red roof is a billboard setting there, and it is certainly not in the context of the approved PUD.

Addressing the applicant, Mr. Huddleston said I think you have witnessed the tone that says that the red is not acceptable. Does it make sense in light of your companyís policy to go back to your marketing and architectural design people and try to come up with an alternative scheme that we might act on for you? Or would you prefer that we take some action on this tonight?

Mr. Malis responded I donít think it would be prudent to challenge anything tonight. I will get a proposal and bring it back to you if that is acceptable.

Mr. Huddleston said I certainly have to say that if you are going nationwide, this will occur in other areas. Springdale is not unique in that, and believe me we are not trying to penalize you for this action. I think it is rather onerous to the surrounding areas. Much of the care that this commission has taken to try to address this kind of conditions.




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Mr. Huddleston added I would be willing to offer to table this to next month if you are willing to come back with two suggestions. One would be how you mitigate the mansard façade. Is that a roof or is that a façade? Mr. McErlane said it is a mansard; it is not a part of the roof system. Addressing the applicant, Mr. Huddleston said I would suggest that you come back with some alternative for us, and staff can give you some pretty good guidelines historically on what we might work with there, some mitigation plan for that and for screening the rooftop units. Other than that we could dictate something tonight that may or may not be acceptable to you.

Mr. Malis said so if I understand it right, the accent window is okay, but the bay doors are a problem too?

Mr. Okum said I believe the overhead doors are a problem. I consider the extrusions around the window openings an accent. I would be flexible about the red trim around the top. I am speaking for myself.

Mr. Huddleston said I would suggest that you come back with some screening method for the mechanical equipment on the roof, as well as some tie in with your marketing but also something that meets with the muted earthtone colors that were originally approved. That will give you an opportunity to act rather than have to react to something that we would do tonight. If you were willing to do that, at least in a proposal form, I would be willing to personally make a motion to give you that opportunity. I will move to table this matter to next monthís commission meeting at such time when the applicant will come back with a revised development plan for the colors and the screening. Mr. Okum seconded the motion.

Mr. Vanover said the red is too much for that location and I agree on the bay doors Ė they are the focus, and itís almost like a red wall with windows. Personally I agree wholeheartedly that this is unacceptable.

Mr. McErlane said it was my understanding that the rooftop units that were placed were just replacement units for what was there already. It is not our typical procedure to require somebody to screen something that is a replacement unit for something already on the roof. It is an additional expense that is typically not imposed on them, because you are talking about new roof penetrations to support some kind of screening material or something of that nature.

Mr. Huddleston said for purposes of discussion, if we need to address that I guess that the motion to table doesnít need conditions imposed with it. I would want the applicant to have some marching orders that are reasonable to respond to. If the commission has some other pleasure, I could amend my motion. If not, we can take a vote.






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On the motion to table, all voted aye and the item was tabled to the July 10th meeting.

Mr. Syfert said the representative of Shipps-Yamaha has not returned. Mr. Galster moved to table this until July 10th and Mr. Vanover seconded the motion. All voted aye, except Mr. Okum and the item was tabled to July 10th. Mr. Okum said in reference to that, could I ask for comments in regards to the Corridor Review District and how this changed this building elevation. Ms. McBride stated there are considerations from the Corridor Review District, and the proposal brings the building more into compliance with the requirements of the Corridor Review District. Staff has made additional suggestions that would bring it even further into compliance. Mr. Okum said maybe the applicant could take staffís comments and make some updates before the next meeting. Ms. McBride responded they have those comments and that would be an option for them. Addressing Mr. McErlane, Mr. Syfert suggested that he make surer that he knows we tabled it.


    1. Modification to the Tree Preservation Ordinance Ė tabled 5/8/01

Mr. McErlane stated that the first section of suggested amendments deal with definitions. We are defining the difference between a new development site and a redevelopment site. WE struggled with it a little bit. What we are trying to capture in terms of redevelopment sites is if a property comes in, redevelops and wants to cut down what was previously approved for landscaping on a previous development plan, we would only consider them putting in half the caliper inches for the previous requirement. In order to accomplish that, we are saying that if Planning Commission in the past approved the development, it is considered a redevelopment. What that excludes is single family lots because they had been previously developed, but Planning Commission doesnít consider those things, and we consider those to be new development sites. It doesnít exclude multi-family sites; we wanted to include those as redevelopment.

Landmark trees are any one of the following items:

    1. If the tree species is rare;
    2. If the tree is more than 100 years old;
    3. If it is connected with some significant or historical event;
    4. If it has an outstanding trunk diameter;
    5. If the quality of the tree foliage is outstanding for its species.

One of the things that is a consideration for number 5 is if we find a site that has pretty heavy foliage on it, you can have a sizeable tree that looks terrible when you clear the rest of the trees out. Erosion control, aesthetic features and scenic enhancement of such trees are of special importance to the City. Every one of these is subjective, but they can always appeal it to this body.


12 JUNE 2001



Mr. McErlane said Section 156.08 is a statement that the developer is to attempt to try to make every effort to save any designated landmark tree.

Under the tree survey plan there is an indication that landmark trees have to be identified and that they are to provide a schedule for planting of new trees.

We struggled a little bit with larger trees and considered larger trees to be more than 24 inches. The specific requirement is that the replanting has to be a little larger than what our typical replanting is, which is two inches and 10 feet in height. This would require 3 Ĺ inch caliper trees at 12 feet in height. I talked with the Public Works Superintendent about the trees they plant, and they say 3 Ĺ is the maximum you can plant without having a lot of trouble planting it. It doesnít specifically require additional caliper inches for a 24-inch tree, but it does require larger plantings.

There is a statement now in the code that says that if you physically canít plant all the trees on the site, you have to contribute to the cityís tree program.

Redevelopment sites now will require a one to one caliper inch replacement. It also will require three-inch caliper trees for category 1 and two-inch caliper trees for category 3. The typical replacement for new development sites is two inches for category 1 and one inch for category 3.

On the last page we talked about tree removal without permission, which requires a one to one replacement. Replacement is similar to redevelopment sites. One to one replacement, three-inch caliper for category 1 and two-inch caliper for category 3. In addition, the last paragraph requires a penalty..It still says contribution and I thought we were going to strike that. For us to force somebody to pay $200, contribution doesn't sound appropriate. What about payment? Mr. Vanover suggested penalty payment. Mr. Okum suggested a fine levied. Mr. Huddleston suggested mandatory contribution. Mr. Okum said if he was citing, they would come to the magistrate and that would be a misdemeanor because it is a violation of the Zoning Code. Ms. McBride said the law director has to look at this and he can make that determination.

Mr. Galster said what about giving them a benefit for saving a landmark tree. Mr. Okum said I thought we were going to do that. Ms. McBride reported that there are some communities that are using this landmark tree designation now. The closest one is Coldspring Kentucky, and they actually have a map with landmark trees designated on it. What we have said is that it will be up to Billís discretion. We donít want them taken down. To say that they canít be taken down or to give them a bonus; I havenít seen a community that gives you a bonus for saving them. It is strongly discouraged to take them down. I didnít find anywhere that provided for a bonus system on any type of saving.

Mr. Okum commented it would be nice to see some type of a bonus.


12 JUNE 2001



Mr. Galster said I want to make sure that we entice the people to go above and beyond. Mr. Huddleston said maybe the wording could be as ambiguous as consider a variance based on the developerís effort shown to save specimen trees. That would give you some latitude. Mr. Okum added that variance could fall under the payment to the tree fund section, or under landmark trees. Mr. Syfert said that is what it is appropriate to.

Ms. McBride said I think any language about relief should go under 156.15(A) and (B) because that is where we set forth the specific standards for replanting and so forth.

Mr. Okum wondered if we had to give them 10 feet on each side of the front and rear side structure for replacement of plantings. Why do we have to calculate 10 feet?

Mr. McErlane responded they were giving them relief for the particular structure, and they knew that it would take at least 10 feet to construct it. I donít know of any other reasons. Mr. Okum suggested that it would be simpler to review. If you went strictly by the building footprint, you wouldnít have to deal with measuring 10 feet on each side. Mr. McErlane said it is not that difficult to do. Itís up to you. I think we borrowed it from Forest Parkís.

Mr. Galster said I have no problem with using the footprint. Mr. Okum said I think parking garages should be excluded as part of the parking field. What about canopies, porches and porticos?

Mr. McErlane said I think you have a legitimate argument relatives to parking garages versus surface parking. If it were surface parking you would have to replace. I donít know how you draw the line on canopies and those types of things. I think they are still part of the main structure.

Mr. McErlane said this has to be voted on by this body and then referred to Council for adoption. As part of that process, the law director has to put it in ordinance form and he will have to review it. Mr. Okum said wouldnít it be better to have the law directorís office review it and run it up to Rules and Laws. Mr. McErlane said you can send it to Council and if they need to send it to Rules and Laws they will. Mr. Syfert said so we will see it next month in the final form.

B. Proposed Zoning Code Changes Ė tabled 6/12/01

Ms. McBride said we have been collecting a number of amendments that need to be made to the Zoning Code. The first one is the definition of corporate identity flags and we are saying that it is a flag whose design includes a trademark insignia logo or emblem of a corporation business or development located on the same property. The question came up as to what if you fly a Pepsi flag and you are a restaurant; is that offsite advertising? So, we have added the verbiage with regards to on the same property




12 JUNE 2001



Ms. McBride said that the second suggested amendment has to do with the corridor district and that pertains specifically to the parking lot lighting. That would be referred back to our new light standards. Mr. McErlane added that the current wording says 28 feet and our current lighting standards have a maximum of 22 feet.

Ms. McBride stated that the next revision has to do with stacking spaces for drive through businesses. Our code right now says where you have to begin the stacking spaces, is it for fast food restaurants, and is it the pickup window. We have seen that a lot of the stacking occurs at the order point back, because they are slow with the orders and are processing others. We have changed that from fast food pickup windows to order location.

The next one has to do with determination of required parking spaces. Right now our definition of how those are calculated says Gross, and it should say Net Leasable because there is no definition for Gross. Mr. Huddleston wondered how the Net Leasable was determined, and Ms. McBride answered it is what we have been using, striking it from the exterior walls. Mr. Huddleston commented that you have common areas in buildings; typically it is a 10-12% factor. Ms. McBride answered we have excluded storage space and areas that are not typically occupied by people, which I would consider to be restrooms, mechanical rooms, lobby areas and that kind of thing. Mr. Huddleston responded as long as that is sufficient for you, that is fine.

Mr. Okum asked about Bahama Breeze with their porches. Ms. McBride answered those are all habitable spaces. Mr. Okum asked about the lobby area, and Ms. McBride indicated that if the lobby area were going to be used as a waiting area, it would be counted. Mr. Okum said so you would exclude kitchens. Ms. McBride responded in a restaurant you would exclude the kitchen, their coolers.

Mr. McErlane stated that we do have a definition for net floor area in the code, and it says "total floor area of the building excluding stairwells, elevator and all floors below the first or ground floor except when used or intended to be used for human habitation or service to the public." Typically if we were looking at a restaurant, we would apply the net floor area for the public against one standard, and the service areas against another to determine parking spaces. Obviously the densities are different as far as occupants go. So both of those are net; it is just that you have to apply different areas of the building to different parking ratios.

Mr. Huddleston wondered if that should read net leasable or net usable. In a multi- tenant office building you are leasing space. Ms. McBride responded let us do a little more looking at that. It may require both not only a revision to this standard, but also to the definition of net. It is pretty clear with an office building or shopping center, but when you get into restaurants it is a little different. Maybe there is a separate standard held for restaurants, and one is based on employees and one is based on patrons and square footage.



12 JUNE 2001



Mr. Huddleston commented I kind of like the usable term or some variantion thereof because we have the same problem with retail when they come in with an eight foot wide sidewalk and suddenly it is usable floor area so we need to address that.

Ms. McBride said weíll take a look at that. On the waste container screening requirements, we have added a sentence, "All service to and for the waste containers shall be done from private property and shall not extend to a public right of way." The Steak n Shake wasnít a public right of way, but the concern was what if it had been, we felt at the very least we should have language to keep the service out of the public right of way.

Mr. Okum commented that there is no mention of the gates. Mr. McErlane responded when we first adopted the ordinances relative to dumpster enclosures, there was a lot of discussion on gates, because they were left open half the time or they were banged into by the truck and torn up. The initial application that was placing it in the Zoning Code didnít require gates. I canít recall if we revisited that on the new Zoning Code or not.

Ms. McBride added that we have been requiring applicants to have gates, and I would suggest we amend that to include gates and that they remain closed when not in service. Mr. Okum said it should be a sturdy gate approved by the City Planner with a finish of compatible material, so we donít have a chain link gate. Mr. Huddleston added and it shall be maintained in a closed position.

Ms. McBride reported that the next amendment goes back to the corporate identity flags and specifically provides that "one corporate identity flag shall be permitted on a zoning lot and in any multi-household public facilities commercial or industrial district, such flags shall be limited to those of reasonable size and color and shall be permitted to portray the emblem, insignia, logo or trademark of a corporation business or development located on the same property. Such flags may only be displayed in conjunction with those of a governmental agency or political subdivision. In all cases proper flag etiquette shall be observed."

Mr. Huddleston commented the Supreme Court canít enforce that one; I donít know how we can. Mr. McErlane said if you mean with respect to flag etiquette, we are talking about the way they fly it. We saw in the last week that Sofa Express had a problem trying to figure that out. They had their Sofa Express flag on top of the U.S. flag and they switched that, but one day I went by and the US flag was gone and Sofa Express flag was up there, but more recently it has been correct.

Mr. McErlane reported that the initial draft of this didnít say that you had to fly your corporate flag with a governmental agency flag. The concern was that you could have Perkins pull the US flag down and put a Perkins flag up of the same size. At least if you say it has to fly with a governmental agency flag it limits the size of what that flag can be, and if they do follow flag etiquette, it will be smaller than the governmental agency flag.


12 JUNE 2001



Ms. McBride reported that under the GB, General Business District, we have eliminated tent sales as a conditional use but we have added outdoor consumption of food and beverages. Also we added that as a conditional permitted use within the Motor Service District. Recently a lot of the restaurants have been doing the outdoor consumption of food and beverages.

Under exempt signs, signs not requiring a permit would now be seasonal flags.

Under RSH-L District, the minimum rear yard setbacks references side yard and that needs to be changed to rear yard. (a typo) Under buffer yard materials and standards (this comes from the landscape architect with specific reference to the Steak n Shake) it goes to the bedding surface. "Any landscape area shall not contain bare soil, aggregated stone or decorative rock. Any ground area shall be covered with hardwood mulch, grass or other vegetative ground cover. No turf shall be allowed in landscaped peninsula or island areas within the vehicular parking areas. All plant material will be mulched with shredded hardwood mulch or approved equal. Plant material massing will be incorporated in the mulch beds."

Mr. Huddleston commented I would just caution that I think there are now some other synthetic mulches coming out. Ms. McBride responded not that I am aware of, and I got that standard from the landscape architect, but I can double-check it.

Ms. McBride said on the mounds, the topsoil shall be placed over all the earth mounds at a depth of 4 inches to facilitate vegetation growth on the mound.

On the ground cover, we have added verbiage at the end of that that states that in no circumstance shall plantings be more than 12 inches on center. To present a finished appearance rock pebbles sand and similar materials are not approved ground cover.

Mr. Okum commented that groundcover should be identified as a living material. Ms. McBride said not necessarily; Iím sure the gentleman from Steak n Shake would argue that his marble chips were a ground cover- they cover the ground and keep the weeds out.

Ms. McBride stated that the sign requirements in the commercial districts is a section revision. A permit is always required for the special events signs, and applications for special events signs, balloons and searchlights shall be in writing on forms provided by the Building Official.

Mr. McErlane stated those two paragraphs go together. As it reads right now, in the first paragraph it says you need permits except for special event signs which are authorized in the next section, but there is nothing in there about getting a permit. So, as its stands today, you donít need a permit for a special event sign. What we are doing is adding a word for requiring a permit under special events sign.


12 JUNE 2001



Mr. Vanover asked the ruling governing the Nails van that sets out there. Mr. McErlane answered we put some provisions in the new Zoning Code, but they limit it based on size. If you have a delivery truck that exceeds a parking space, it needs to be parked in the loading area. It doesnít speak to what you have written on the truck. If the nails van was advertising a special, we would call it a sign, and at one time they did that and we told them they couldnít. Mr. Okum commented if you designate signage as anything that is placed on a siteÖMr. McErlane responded we visited this in the past. Then you talk about trying to regulate the lettering on every vehicle in the city. Ms. McBride added and what if my truck said McBride Dale Clarion on the side? Mr. Vanover responded I donít have a problem with that if it leaves the site and comes back. My work truck is the same, but when it is parked there and is not moved. Ms. McBride wondered who would regulate it. Mr. Okum commented we spent hours on this in the Zoning Code review.

Ms. McBride continued that oh the off street parking and design standards, we suggest to add access drives. Right now our standards only address parking facilities and not the access drives, and that became apparent when we started looking at the proposed church expansion on West Kemper Road.

On signs in a residential district, this was intended to deal with more of the special event signs, the festivals and those kinds of things. It should read "one sign for each street abutting the premises may be placed to advertise special events involving a non profit organization in the community. Such signs may not exceed 6 square feet in area or 4 feet in height and shall be set back 3 feet minimum from the street right of way. Such signs may not be placed on the property earlier than 45 days prior to the event and must be removed no later than five days after the event. The placement of such signs may not occur more than once every three months."

Ms. McBride added the one that is not on here but that I would suggest tonight as it became evident this evening, is in the PUD where we have the major departure from an approved plan. I think the way that is worded didnít allow you a lot of latitude. I would suggest that in that verbiage you change "shall" to "may". Then it is up to the commissionís interpretation.

Mr. McErlane added that the intent was to talk about changes in intensity of the development and not minor changes in square footage. Ms. McBride responded I donít disagree with that, particularly with regards to that development. My concern was the strict letter of how that code reads, so I would suggest we change that while we have all these coming through. Ms. McBride asked if there were any other suggestions for changes.

Mr. Vanover asked how the people standing in the right of way at Kemper Road for Home Place with signs should be handled. Mr. McErlane responded that there is some provision in our general regulations under the auspices of the Police Department about signs and people out in the right of way, which we can take a closer look at.


12 JUNE 2001



Mr. Syfert said there were three signs for Home Place as you approach 275. Mr. Vanover said there were five or six people holding signs as well. Frankís had a young lady holding a sign on the sidewalk this evening.

Mr. Syfert said we had the letter from Mr. Okum to me regarding the 120 s.f. utility buildings. Mr. Okum reported that on the larger lots we have these designer outbuildings. Consistently storage sheds arenít 10í x 12í any more. They are quite frequently 10í x 16í. Ms. McBrideís card says that if you continue to pass variances that would create legislation, you are creating legislation in itself, and you shouldnít be doing that. To eliminate that, we would like to refer this to Planning Commission and our City Planner, that maybe it should be granted on a graduated scale, smaller parcels, smaller sheds, larger parcels, larger sheds. I donít think the Board of Zoning Appeals was looking at anything bigger than 160 s.f. The 120 s.f. limitation hits us every BZA meeting. We can deal with one or two sheds very simply, but when it comes to size it gets very difficult to deal with because of todayís styles.

Mr. Okum asked Ms. McBride if this came up in other areas? Ms. McBride answered we really havenít, but I can do a quick call around and see. The other thing I would be curious about is to ask some of my clients who are in that business what the average size of a shed that they sell. That might be a good indication as well.

Mr. Vanover agreed, although there was an issue before BZA that involved a neighbor. I understand some of the concerns, but the problem is the numbers, one shed per lot. Heritage Hill has terrible storage; I have a big shed in the back and it is at overflow capacity. The 10í x 12í shed does nothing. Maybe we should limit one shed and then go to a total square footage. Because of the configuration of the lot and the age of the neighborhood, this has become a necessity.

Mr. Syfert commented I personally would not like to see them get any larger than what is allowed right now, 10í x 12í. You have a small house with generally a small back yard, and you are just putting that much more in there. Mr. Okum responded I donít think that was the Board of Zoning Appealís consideration. They are looking at lot density as well.

Ms. McBride said so is it the direction of the Commission for us to look at changing this or not?

Mr. Huddleston responded other than Anneís point about creating legislation by variances, maybe we should leave it as is and let somebody challenge it 10 years from now if that becomes a necessity.

Mr. McErlane said variances are typically granted based on hardship or practical difficulty. What kind of legitimate excuses have you heard relative to those issues?





12 JUNE 2001



Mr. Okum responded too much stuff. Frankly we get a lot of presentations for these little out buildings with porches, very decorative with little windows and double doors. It is like a little fancy shed. Mr. McErlane asked the hardship or practical difficulty. Mr. Okum answered there is no hardship, but it makes a nice pretty little building out there.

Mr. McErlane responded then you really need to refocus what you are doing on the Board of Zoning Appeals. You are not supposed to be issuing variances because you like the way it looks. Otherwise you might as well throw out the Zoning Code. Mr. Okum responded we donít, but if you have a choice of a steel 10í x 12í shed or a 160 s.f. wood sided outbuilding, and they show the hardship that it is very difficult for them to get their lawnmower their tractor and all those devices in the 10í x 12í.

Mr. McErlane continued secondly I have received at least one complaint from a lady who lives in the Harter area about the oversize size of the 10í x 12í sheds in their neighborhood because the lots are small.

Mr. Okum responded I am not disagreeing with that, and BZA said that the larger lots should have larger sheds. Mr. Syfert said whatís a larger lot? Mr. Okum responded the back yards in Beacon Hill. Mr. Vanover added some of the lots on West Kemper Road, but what about my situation, where I am on a pie but I have the creek and the hillside behind me that nobody will ever occupy. So my lot really isnít large, but from appearance it would be.

Ms. McBride said should I look into it or not? Mr. Vanover answered I think so. The problem there is are we dictating peopleís quality of life. Ms. McBride suggested that she look at a couple of other communities that have similar age and size housing as Springdale. Letís look at some of those codes and also make some telephone inquiries to find out the average size shed that is being sold. Mr. Galster said due to the fact that it is a request from the BZA, I think we should at least look at it. Ms. McBride added we wonít draft language, but we will bring those findings back to you. Mr. Syfert said Blue Ash has a lot of areas like we do; I think you should look at Blue Ash also.

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12 JUNE 2001


Mr. Vanover asked about the Cheap Beds & Furniture. Mr. McErlane reported that a permit has been issued for panel changes, but they are in court because it took them so long to get them.



Mr. Galster moved to adjourn and Mr. Vanover seconded the motion. By voice vote all voted aye, and the Planning Commission was adjourned at 10:50 p.m.

Respectfully submitted,



___________________,2001 ______________________

William G. Syfert, Chairman



___________________,2001 _______________________

David Whitaker, Secretary