MINUTES OF MEETING

BOARD OF ZONING AND BUILDING APPEALS

NOVEMBER 10, 2011

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Members Present: VanAtta, Farrell, Wright, Christ, Pempus

Presence Noted: Andrew Bemer, Law Director

Kevin Beirne, Building Commissioner

Dr. James Scheida, At Large Council Member

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Mr. Pempus opened the November 10, 2011 meeting of the Board of Zoning and Building Appeals at 7:30 p.m. in Council Chambers of Rocky River City Hall.

1. MELISSA STICKNEY – 21643 Kenwood Ave. – PUBLIC HEARING – Variance to construct a 6’ board on board fence in the side yard vs. the maximum height for fences in side yards shall be 5’. (Section 1153.15(j)(2)) and a Variance to construct a 6’ board-on-board fence in the rear yard vs. any portion of a rear yard fence over 5’ in height shall be constructed of materials that are 50% transparent when viewed perpendicular to the fence (Section 1153.15(j)(3)). Mr. and Mrs. Melissa and Thomas Stickney came forward to present their variance request.

Mr. Christ began by saying he would like to identify that he is one of the neighbors notified about this fence and asked if any one has any objections to that. He said that he is able to remain fair and impartial. Mr. and Mrs. Stickney said they do not have any objection.

Mr. Wright read the meeting notice and the names of the parties who received it. The parties were sworn in. Mr. Pempus asked the applicants what they feel their practical difficulty is. Mrs. Stickney said that part of the issue is the fact that they are worried about their children running into their neighbor’s driveway and a fence would prevent them from doing that In addition, because they are both very tall people, she said they do not feel that a 5’ fence provides them a tall enough barrier between their property and their neighbor’s property. They have a window in their home that looks onto the numerous cars in the neighbor’s driveway and the fence will visually improve their property. Mr. Stickney said that when they put their addition on, the contractors back filled with materials that are not allowing plants to live in the side yard, so the evergreens they tried to plant there did not survive. He said the one evergreen that is in that location is sickly and is not going to make it. He said that their neighbor stores materials in his back yard often and it would be nice if they had a barrier so they wouldn’t have to look at those things. Mr. Stickney said they have their next door neighbor’s permission to put the fence up and they submitted a letter from him for the file.

Mrs. Stickney said that they also submitted an e-mail from Henry Fence that says the cost is significantly extra to add lattice to the top of a board-on-board fence. She said that Henry Fence’s supplier no longer provides that material. They went to several fence companies before they chose Henry Fence and they would not like to have to go through that process again.

Mr. Farrell said that his concern is that the City has gone through a lot of trouble to come up with the approved fence with the lattice on top. He said that the applicant’s hardship is that they don’t want to put the lattice on top. This is the first he has heard that it is a hardship to add 12” of lattice. Building Commissioner Beirne said that stores do not stock fencing with lattice on top, so they have to be pre-fabricated or constructed on site. Mrs. Stickney said that only a small portion of the fence will be in the side yard, and the fence would not be able to be seen when standing from the street. It is only something that they and their neighbor would see directly. Mr. Farrell said he does not have an issue with the side yard component of this request, but because there have been so many issues with fences, the City came up with a plan to require the lattice on top for the last 12” if someone wanted to go 6’ high. Mrs. Stickney said that adding the lattice on top almost doubles the price of the fence.

Mrs. Van Atta said that legally, financial considerations are not allowed to be considered as hardship by this Board. She said she agrees that there are other contractors who do this pretty routinely in the City, so it is not like it can’t be done. She said that the Practical Difficulty factors revolve around a problem unique to the property, or something about the geographic factors, layout of the property, or other structures on it that create a hardship. She said she does not see that in this case.

Mr. Pempus said that he feels the cost issue is beside the point here, and that there are issues relative to screening the visual situations between the properties. Mrs. Stickney said that their neighbor is slowly improving his property but he does not keep the same hours as they do. He is often outside grilling very late at night. Mr. Pempus said that what she is saying is that the latticework would not necessarily give the applicants the visual screening that they are looking for, regardless of the cost. Mrs. Stickney said that Mr. Pempus is correct.

The letter from the neighbor was brought up again. Mrs. Van Atta said that one of the things they have to keep in mind is the future effect of the structure. If the current neighbor moves away and new neighbors move in who would not be in agreement with it, then the current neighbor’s letter is not relevant.

Mr. Farrell said that they are requesting 24’ of length and they are not trying to enclose the entire yard, which is in the applicant’s favor because it will have less of a stockade effect. Mr. Pempus asked the applicants where the property line is. They said they are not sure where the property line is, but it is probably within about 1’.

Mr. Wright agreed with Mr. Farrell in that the length of 24’ and not more than that is in their favor. He said he is having a hard time with the hardship. Mr. Farrell asked Building Commissioner Beirne if this is considered a legal privacy fence. Mr. Beirne said that a privacy fence is 6’ tall and solid, and it must be 5’ off of the property line. Mr. Stickney said that there was a fence along the property line a few years ago.

Mrs. Van Atta made a motion to close the public hearing. Mr. Farrell seconded.

5 Ayes – 0 Nays

Passed

Mr. Farrell made a motion to grant a variance to Melissa Stickney, 21643 Kenwood Ave., to construct a 6’ board-on-board fence in the side yard vs. the maximum height for fences in side yards shall be 5’. The applicant has explained their practical difficulties regarding the neighbor’s backyard. Mrs. Van Atta seconded.

4 Ayes – 1 Nay (Van Atta)

GRANTED

Mr. Farrell made a motion to grant a variance to Melissa Stickney, 21643 Kenwood Ave., to construct a 6’ board-on-board fence in the rear yard vs. any portion of a rear yard fence over 5’ in height shall be constructed of materials that are 50% transparent when viewed perpendicular to the fence. The applicant has explained their practical difficulties regarding the neighbor’s backyard. Mrs. Van Atta seconded.

3 Ayes – 2 Nays (Van Atta, Wright)

GRANTED

2. JAMES KELLY – 18843 Inglewood Ave. – PUBLIC HEARING – Variance to retain a privacy fence located on the property line vs. privacy fences must be located 5’ from the property line (Section 1153.15(j)(7)A.) Mrs. Elena Kelly, Homeowner, Mr. Rich Malloy, Fence Contractor and John Malloy, Fence Contractor, are present to explain the variance request. Mr. James Fallon, 18824 Rocky River Oval, came forward in opposition to the variance request.

Mr. Wright read the meeting notice and the names of the parties who received it. The parties were sworn in. Mr. Rich Malloy said that the reason for the variance is because of where the applicants’ home sits relative to other homes. The fence needs to be at least as high as it is in order to create the privacy that the homeowners are looking for. He said that the applicants’ property is approximately 3-4’ lower than their neighbors’ properties in the back. The fence along the back property line blocks the lights and the back of the home behind them. The fence that runs north to south also blocks some lights and is partially covered on the neighbor’s side with an existing fence. Mrs. Kelly said that the rear yard neighbors can see right into the back of their home without the fence and her neighbors lights shine right into their home. Mr. Malloy said that the parcel is deep and was very wooded until the Kellys finished their addition. He said that the neighbors were used to having a different view than they have now. Mr. Malloy said that there are a variety of fences around the properties, which define the property lines very well. Mrs. Kelly said that privacy is the main reason they put in their fence.

Mr. James Fallon, 18824 Rocky River Oval, the rear yard neighbor said that he wishes this Board could go and take a look at the property because there is no substance to what they are saying. The applicants have a 275’ lot with many trees. One of the neighbors has a little light on the side of her house that is illuminated on extremely rare occasions. He said that he has one motion sensor light on his house that almost never goes on. Mr. Fallon referred to the pictures he gave to the Board and said that the stockade fence is right up against his fence and the fence serves no purpose, other than to ruin their view. Mr. Fallon read aloud a prepared statement, which was submitted by neighbors adjacent to the applicant’s property and forwarded to the Board in advance of the meeting. The statement gives reasons for the objection to the variance request. Mr. Fallon read that it would not be objected to if the matter was resolved with the shortening of all existing privacy fencing by just 2’ on the south side and 1.5’ on the west side by simply running a saw across the top. Mr. Fallon said that the neighbors adjacent to the applicant are in attendance at the meeting tonight. He said that the issue brought up about the lights is just a smoke screen because the applicants have so many trees and they have additional ones. He said that he thinks they are covering their tracks after putting up a fence that they shouldn’t have put up, and he is trying to find a reasonable way out of this dilemma.

Mr. Pempus asked if there is anyone else in the audience who would like to come up. Nobody from the audience came forward. Mrs. Kelly said that the lights really did show in their family room and there were times when the neighbor to the west must have been away and left her outside light on, which would shine into their family room. They were just trying to block the lights and screen their view of her neighbors as they walk through their living room at night. Mr. Pempus asked if there are other ways to alleviate the issue with the lights other than the fence. Mr. Malloy said that if the fence is changed to lattice, they will still see the light. On the north-south side, the fence is nearly invisible to the neighbor because of the woven fence that has a permanent evergreen vine on it.

Mr. Fallon said that the owner of the single light bulb is here at the meeting and she could answer questions about what she can do about it. Mr. Pempus invited Ms. Diane Kosman, 18900 Colahan Dr., to come forward. Ms. Kosman said that she was not aware that the light was from her house because she doesn’t have any lights on at night. Ms. Kosman said that she thinks that the fence near her is fine, but it is when it turns and gets so high that the other neighbors have a problem with it. She said that they would like the applicants to lower that portion of fence so that it matches her fence. Ms. Kelly said that the back of their property line is higher than the front of their property line. Ms. Kosman responded that the fence does not have to be as high as it is.

Mr. Malloy showed a picture of the view from Mr. Fallon’s backyard and said that the Kelly’s privacy fence is approximately 1’ to 1.5’ taller than Mr. Fallon’s fence. He said that Mr. Fallon only sees part of the applicant’s backyard and the other neighbor who sees a greater percentage of the taller privacy fence is not here tonight. Mr. Fallon said that it is taller than 16’ above his scalloped fence. Mr. Milloy said that it might be 2’ taller than Mr. Fallon’s fence. Mr. Fallon said that the other neighbor they are referring to who views more of the fence is a timid soul and she explained to him that she does not feel as though she projects herself well in a public setting. Mrs. Kosman said that Mrs. Yarcusko was afraid to come tonight.

Mrs. Van Atta said she has a question for the fence builder because the document in front of her says that the fence that was approved was for a 5’ board-on-board fence but that is not what was built. She asked him why he built the existing fence. Mr. Malloy said he misinterpreted the Code and thought they could build a 6’ fence in the back. Mrs. Van Atta asked what he did not understand about board-on-board style. Mr. Malloy said he didn’t know the spacing requirements and he misinterpreted it.

Mr. Fallon said that they don’t want to force the Kellys to tear down the fence. They want to work out a compromise. Mr. Wright asked if there is anyone else who would like to say something. Nobody offered anything else.

Mr. Christ made a motion to close the public hearing. Mrs. Van Atta seconded.

5 Ayes – 0 Nays

Passed

Mr. Farrell said that he had the same question that Mrs. Van Atta had. The fence they constructed is not at all what is approved by the Code. He said that he is not sure Mr. Malloy’s explanation about how that happened is reason enough to allow it to happen. Mr. Wright said he feels the same way. Mr. Pempus said he thinks the fence looks like a stockade fence and it is too overbearing for the other property owners in the neighborhood. Mr. Farrell said that he would like to say again that the City has gone to a lot of trouble to come up with a fence that is acceptable and this fence is clearly not it.

Mr. Christ said that he does not think that the intent of a privacy fence is to enclose such a large portion of a rear yard this way. He said that all of the testimony was about the height of the fence but it is really about openness, as well. Even with the nice side facing the neighbor, the fence is still solid. Mr. Farrell agreed with Mr. Christ and said that the fence on the side yard is 5’ tall but it is solid and it is not level. Mr. Christ said he feels that the fence reads way too much like a wall. Mr. Pempus said that he thinks they could vote on a motion at this point.

Mr. Bemer said that he believes the applicants can pick up the comments and body language of the Board and, although he does not speak for them, he said that Mr. Fallon has offered them a compromise that they have not responded to. He said their response to the offer to compromise may or may not have some influence on the Board. Mr. Christ said the offer was that they would be fine with a fence that was shortened by 1.5’ to 2’ all the way along. Mr. Malloy asked if it would be acceptable if he switched the rear fence pickets back and forth and added 1.’ of lattice to the top for a total of a 6’ tall fence. Mrs. Van Atta said that the fence would have to be board-on-board style and Mr. Farrell said that the top of the lattice would have to be 6’ tall for it to be within Code. Mr. Christ suggested they simply vote on the variance request as opposed to changing the style of the fence and then the applicant can come back with modifications. However, they would not have to come back if they make modifications to meet the Code. The change would also have to be substantial in order to come back or they would have to wait 1 year.

Mr. Christ made a motion to grant a variance to James Kelly, 18843 Inglewood Ave., to retain a privacy fence located on the property line vs. privacy fences must be located 5’ from the property line. The applicant has indicated their practical difficulties and the reasons for the fence being at its current height and openness. Mr. Wright seconded.

0 Ayes – 5 Nays (Farrell, Van Atta, Wright, Christ, Pempus)

Denied

3. GREGORY ELINSKY – 19440 Argyle Oval – PUBLIC HEARING – Variance to construct a new single family residence with 32.27% coverage vs. 28% maximum lot coverage permitted (Section 1153.05(b), a Variance to construct a new single family residence with a front setback of 17.3’ vs. 30’ front setback required (Buckingham Rd.) (Section 1153.07(a)), a Variance to construct a new single family residence with a front setback of 25’ vs. 50’ front setback required (Argyle Oval) (Section 1153.07(a)), a Variance to construct a detached garage with a height of 25’ -10 ½” vs. the height of detached garages shall not exceed 15’ (Section 1153.09(b)), and a Variance to construct a 993 sq. ft. detached garage vs. the maximum gross floor area of all accessory buildings on a zoning lot, including detached garages, shall not exceed 600 sq. ft. (Section 1153.15(c)). Mr. Gregory Elinsky, Homeowner, came forward to present his variance requests.

Mr. Wright read the meeting notice and the names of the parties who received it. Mr. Pempus asked all audience members who are interested in testifying tonight to please stand and be sworn in. The applicant and all parties were sworn in.

Mr. Elinsky began explaining that they are seeking 5 variances. Regarding lot coverage, Mr. Elinsky said that there has been some suggestion that porches should be part of that calculation, but only living space is counted. Regarding the Argyle Oval setback variance, they are requesting 25’ versus what is being suggested as 50’. However, Mr. Elinsky said that they have a plat map that suggests that the setback is 30’ on both Buckingham Rd. and Argyle Oval. He said that he has a copy of the original deed that reflects those setbacks. Mr. Elinsky said he has 4 children and they recently moved here from Philadelphia. He said they are looking forward to moving into Rocky River and building space for their family that is acceptable. They are planning a first floor master bedroom for their parents who are aging and who will be spending time with them during the summer months. He said they also own a home on Buckingham which is 3 houses from the subject property and they have been fixing it up because it has been in disarray for a long period of time. They are allocating their capital to not only do the right thing to help the community they are living in, but the also look forward to building something they will enjoy and they hope the neighbors will also enjoy.

Mr. Pempus asked Mr. Elinsky if he discussed all of these variances with his architect and whether he felt that this design is appropriate. Mr. Elinsky said that they really looked at all the aspects of size and the needs they have for their living space. They looked at a 2 car garage versus a 3 car garage but they have 5 cars and they will most likely have to depart with some of those. They are looking at the amount of capital they will spend to build this home and all of the important aspects related to family needs and aesthetic appeal and they believe this home will work. This property is actually 2 lots, and they feel the home fits on it.

Mr. Farrell asked for clarification on what the required setbacks are. Mr. Elinsky said that he has a copy of the original plat drawings and he has highlighted the setbacks all around the area in pink. The subject property is highlighted on the map and he said that all of the corner lots in the area have a setback of 30’. He said that the survey that Wright Engineering Services prepared for this property shows a dotted line at 30’ on both setbacks, and it is labeled “Per Recorded Plat Setback.” Mr. Elinsky said there is nothing that they have seen that suggests that the setback is anything to the contrary. In addition, Mr. Elinsky said that the old home that was on this property had a 35’ setback from the corner of the property to Argyle Oval. So, he said that if there is some suggestion that the setback is 50’, the prior home would have been in violation of that setback, as well. He said that they are not trying to encroach on the neighbors to the back in any way. They would like to have the required setback of 8’ to the north and the required 5’ setback for a detached garage to the east. They would like to move the property forward, which he said is completely consistent with what is prevalent in the neighborhood on every corner, as shown in the plat map and the photos he has provided as part of his submittal.

Mr. Pempus said that he is still confused on the setback issue. Mr. Elinsky said he did not type up the variance request that was mailed out. Building Commissioner Beirne explained that the front setback must be in compliance with the City’s Setback Map, which was distributed to the Boards in their packets, and shows setbacks of 30’ on Buckingham and 50’ on Argyle Oval. He said that obviously the development was built before our Setback Map was developed and the original subdivision that was recorded somewhere around the 1920’s maintained a 35’ setback on each side. Mr. Beirne said that they must use the setbacks that are clearly defined on the Setback Map because that is what the Code says now. The setbacks are 50’ on Argyle Oval and 30’ on Buckingham Rd.

Mr. Pempus said that this Board does not normally see this many variance requests. Mr. Elinsky said that the point is that they are here to try to figure out if they can build the space that they can live in and not encroach on anybody’s privacy. The setbacks they are looking for are on the front sides of the property and don’t encroach on anybody. He said they are not looking for setback variances on either side where there are neighbors. They want to keep the integrity of that zoning space and move the property forward, which seems to be the only way they can get the kind of structure they can live in on that property. He said that all of the cornering neighbors are at or less than 25’. He said the property line directly across the street from his property is less than 15’ from their porch. Mr. Farrell asked Mr. Elinsky if he is referring to the property that is angled. Mr. Elinsky said that it is labeled Exhibit #1 in the photos he provided to the Board. Mr. Farrell said that property sits angled on the site. Mr. Elinsky directed the Board’s attention to each of the other exhibits that show properties on corner lots in the neighborhood and said they are all set back less than 25’. They would like to build a home that is in keeping with the style of the very attractive neighborhood that they love.

Regarding the coverage variance, Mr. Elinsky said that they know there are properties that are well in excess of 50% or 60% coverage, with new additions, etc., so he hopes that is not a stumbling point for this Board.

Regarding the garage variances, Mr. Elinsky said that they want a detached garage with a covered portico. However, they can be flexible with regard to covering it. The footprint of the garage they are requesting is 933 sq. ft. versus the allowable 600 sq. ft. It has a third bay, totaling 3 doors on the front of the garage. In front of the doors, there will be space to pull 3 cars so there won’t be a need for them to park any cars in the street. He said that a 2 car garage is something they thought about at length, but it is just not practical to meet their needs and it would feel like a deal killer for them. Regarding the overall size of the garage, they would like to have space above the garage which won’t be heated, or plumbed, and it will not be living space. Mr. Elinsky said that the space is intended for storage and a game room for his kids to utilize. He said they are avid bikers and own approximately 20 bikes for different purposes. They also have canoes and other things they use on the lake and all of those aspects were considered when they thought about the design for the garage.

Mr. Farrell confirmed with Mr. Elinsky that he said there will be no plumbing or heating in the garage. Mr. Elinsky confirmed that there will be plumbing on the first floor for a bathroom because they are planning on having a pool, but on the second floor there will not be any plumbing on the second floor.

Mr. Pempus said that he will come back to Mr. Elinsky after he gives the audience members a chance to speak.

Mr. Bob and Valli Spahn, 181 Buckingham Rd., came forward and said he also has letters from Dr. and Mrs. Quilty of 19487 Frazier Dr., and Virginia Barsan, 214 Buckingham Rd., who are opposing all of the variance requests. Mr. Spahn continued by reading his prepared statement, which discusses Mr. Elinsky’s answers to the Practical Difficulties test questions contained in the Variance Application. Mr. Spahn said that Mr. Elinsky’s lot size is 13,098 sq. ft. and is not small, as Mr. Elinsky claims in his answer to question number 1. The lot sizes range from 4,500 sq. ft. to 9,400 sq. ft. on Buckingham between Argyle Oval and Frazier Dr. It is also twice as large as the properties on Argyle Oval, the largest being 6,486 sq. ft. He said the shape of Mr. Elinsky’s lot is not unusual and it was known to him at the time of purchase. He said the property Mr. Elinsky purchased was not an eyesore as Mr. Elinsky claimed. However, he said that if the variances are approved and the proposed structure is built, it will be too large and close to the sidewalks and adjacent properties and it would be an eyesore by overwhelming the neighborhood and style of it. Mr. Elinsky’s plan eliminates the open yard space which families value highly. He believes that each variance request on its own is substantial, but 5 of them on one property become excessively substantial. Mr. Spahn said the character of the neighborhood would be substantially altered because the overwhelming scale of the proposed home does not fit in to the scale of the homes in the neighborhood. He said that this home could be accommodated on a larger lot. He said this proposed construction materially harms them by destroying the openness of the intersection, the charming look, and family friendly feel of the neighborhood. Mr. and Mrs. Spahn request that the Board deny all of Mr. Elinsky’s requests.

Mr. Pempus asked Mr. Spahn which property they own. Mr. Spahn said they are on the southeast corner of Argyle and Buckingham. Mr. Elinsky said that Mr. Spahn’s house is labeled Exhibit #2 on the photos he submitted to the Board. Mr. Pempus said that it shows Mr. Spahn’s house is less than 25’ from the street. Mr. Spahn said that his house was built in 1928 and there have been no alterations to the footprint. He said all the properties around may have 1 or 2 variances but they don’t have the impact that all 5 of the variance requests have on one property. He said his home is 1900 sq. ft. and does not exceed height, square footage of garage, or lot coverage limits. He said he has not measured the setbacks on all of the exhibits Mr. Elinsky has submitted.

Mr. Elinsky said that Mr. Spahn mentioned that 1 or 2 variances will be prevalent on any of these properties, yet he is voting against all 5 of the variances. Mr. Spahn agreed that he is voting against all 5 variances.

Mr. Chris Auvil, 19437 Argyle Oval, came forward and said he e-mailed information to the Board earlier today, which the Board confirmed they received. Mr. Elinsky asked for a copy of the e-mail.

Mr. Auvil said he realizes that the Zoning Code is written as general guidelines and the BZA is charged with hearing variances from individuals because no lot is the same in Rocky River neighborhoods, in general and in their neighborhood, in particular. He referred to a drawing he did that outlines the setback variances of the neighborhood and said you can tell that there are lines held as you go along Argyle Oval and along Buckingham Rd. There are some 5’ maximum variances that are found to those lines, with the exception of the corner lot to the west of the subject property. He said that property engages the setback and the house itself transitions to the corner so they really only have the corners of a porch that are extending into the setback, which greatly reduces the mass of the house. Mr. Elinsky’s property, if examined purely at a planning level, definitely sits back and is different than the properties adjacent to it. The proposed home changes the character of that street. He said that he thinks it is appropriate to allow for moderate variances, but in this situation, the character would change radically if the variances are approved on these setbacks. He said that the Code is written in order to keep the integrity of a neighborhood and he thinks this property, if allowed to be built as proposed, would change that integrity on a fairly prominent corner.

Regarding the garage, Mr. Auvil said he lives straight across the street. He said that the Code is written to allow a garage to be a maximum of 15’ high to the peak, and 600 sq. ft. total. He said that the Code was written so that a person cannot build a 2 story garage. In this particular case, the garage is 1600 sq. ft. if the second floor is included in the square footage and there are houses that are smaller than that in the neighborhood. He said that the minute these extreme variances are allowed, then other things can happen within the structure that he does not believe the Code intended. He said that not only do they have a fairly large house, but there is a garage or carriage house that can almost be considered a secondary house on the property. Mr. Auvil said that he received a 5’ setback for his open front porch a few years ago, which was in keeping with the line of the neighborhood. They also did an addition and, including their porch area, they are under 25% if the actual area of the porch is included. At that time, the porch was included in the area calculation. He said he wonders why it was decided that a porch is included in a setback but not in the area of the building. Finally, he said that if this garage was allowed to be 5’ off of the property line, then it would be roughly 6’ from that adjacent house. He said that there may be Fire Code issues involved with that because they typically try to keep a minimum of 10’ between structures. Building Commissioner Beirne said that he would have to fire rate that wall of the garage closest to the property line. Mr. Auvil said that means there would be no windows in that garage wall that faces out toward the east.

Mr. Elinsky said that the garage on the east side will be 5’ from the property line, which makes it 5’ 8” away from the neighbor’s house to the east. His neighbor’s home is 8” off of the property line with the furthest distance from the property line being 1.5’. He said that when the neighbor bought the home that is only 8” away from the property line, had to have been cognizant that it would be an issue at some point. He said that there will be a car and one-half distance in his driveway, which is the 25’ setback. Mr. Auvil said that parking spaces are typically 20’. Mr. Auvil said that you typically would not find a 3-car garage fronting directly onto the street anywhere in their neighborhood. He said it does happen, but they are very rare. If you did find them, it would typically be on a perpendicular access to the street so there would be an auto court, however, most of them are in the rear yard. The character of this neighborhood is very pedestrian friendly and most of the driveway curb cuts are 8’ to 10’ wide. He said that with the proposed house there are no turning radiuses, so the curb cut will be about 24’ to 30’ wide, which is not in character with the neighborhood.

Mr. Elinsky said that there will be plenty of ability to turn around with a 3 car garage and he could point out 10 homes that he has seen that are more recently built in Rocky River that have garages that face one or the other street. Mr. Auvil said that he is speaking specifically about the Beachcliff area and not for Rocky River in general. Mr. Elinsky said that the height of his garage will be 25’ and not the 28’ Mr. Auvil mentioned. Mrs. Van Atta said that the plans show the garage will be 25’ – 10”. Mr. Christ pointed out that measurement is from the floor line and the ground is lower. Mr. Auvil said that the garage will probably be an addition 1’ to 1.5’ taller and apologized for his mistake.

Attorney Karla Rogers Gareau of Calfee Halter Griswald, came forward to say that she is here on behalf of Donna and Milea Greenburg, 19424 Argyle Oval. Their property is directly located to the east of the applicant’s property. Mr. Farrell asked if that it is the property that has been referred to as being 8” off of the property line. Ms. Gareau confirmed that and said that it is really 3’ from the property line. Mr. Elinsky said that is not what the engineering drawing says.

Ms. Gareau said that the Greenburgs enjoy the neighborhood, community and artistic character of the Beachcliff area. She is here to voice their strenuous concerns about the proposed variances because of how they will substantially alter the neighborhood and detrimentally impact their property values, as well as the adjoining owners’ property values. Ms. Gareau said that based on the evidence, testimony, and application before this Board, the applicant has failed to meet his burden to demonstrate a practical difficulty. She said that most of factors she would like to point out have already been highlighted by the other adjoining neighbors. Each of the individual variance requests is substantial, but when you look at the totality of the variances, they are even more substantial. She mentioned the second floor of the garage, which increases the garage size to over 1500 sq. ft. At that point, when there is indoor plumbing and a changing facility, it is no longer a garage. It is a pool house or secondary dwelling.

Regarding the substantial detriment and substantial change to the character of the neighborhood, Ms. Gareau said that this is a very pedestrian friendly community and this proposed home does not fit within the character of it. There are no other homes in the Beachcliff area that would be this large on this small of a lot. There are homes that are larger in size located closer to the lake, but this is a home size and style that would be built on a larger sized lot in Westlake or Avon. The garage would be extremely close to the Greenburg’s property line and when their home was constructed many years ago, they would not have envisioned this scope of a home or a garage being proposed next door. She said that the Zoning Code was enacted to prevent these sorts of variance requests. It was established so that everyone knows the rules to follow. The neighbors in the Beachcliff area expect and rely on the fact that the Zoning Code will be fairly and consistently applied and everyone plays by the rules because that is what a community is.

Ms. Gareau said that when Mr. Elinsky purchased this property, there was a home on it which has since been demolished. There was a lot of planning that went into this process during the pulling of the appropriate demolition permits and reviewing the Code with his Architect, so the property owner clearly knew of the Zoning Code and requirements before purchasing the property. She said that a home that requires this many substantial variances is not appropriate for this lot. Ms. Gareau said that the Applicant has not met his burden of proving that practical difficulties exist and the Greenburgs respectfully request that the Board unanimously deny all 5 variance requests before them this evening.

Mr. Pempus asked Ms. Gareau what she believes is out of character about the house. Ms. Gareau said that the plans do not give enough detail of the house, but the aerial view shows that all of the setbacks are following the line with the exception of a 3% or 5% variance. She said all of the homes were built in the 1920s and are all legal non-conforming uses, so if their homes burnt down tomorrow they would have to come in and comply with the same Zoning Codes that are in effect today. She said that the proposed configuration of this home simply does not fit on this lot or with the aesthetics of the neighborhood and this will certainly detrimentally impact the Greenburg’s property values.

Mr. Elinsky said he wants to make sure he understands that what Ms. Gareau is saying is that this house is out of character when the house immediately across the street is the same size, if not larger, than this proposed house and the setbacks are less than the setbacks being requested for this house. Ms. Gareau said that the lot size of that home is significantly larger than Mr. Elinsky’s lot size. In addition, the home is angled on the property and the original part of the home has been continuously expanded over a number of years. Mr. Elinsky asked her if she is aware that the character of the size of the home immediately across the street is consistent with the character of the size he would like to build. Ms. Gareau said that it is located on a bigger lot.

Ms. Lucy Andrews-Mann and Gordon Mann, 95 Buckingham Rd. came forward and said that they live in the home located to the north of the proposed home. Mr. Mann began by saying he would like to address a question that was raised by the Board earlier. He held up the diagram that shows portions of his house and of his neighbor’s house in the back yard, as well as the applicant’s proposed house, saying that the diagram demonstrates that the size of the garage and the house is excessive, relative to the properties immediately adjacent. Mr. Elinsky said that the size of his property is twice the size of Mr. Mann’s property. Mr. Mann said he is referring to the existing dwelling and the fact that Mr. Elinsky is extending his house out 25’ closer to the curb and interrupting the curb appeal of the whole street.

Ms. Andrews-Mann said that she would like to address the variances, as well as the issues that were written in the application. She understands that Notices go out 7 days before the meeting, but she believes that the Board should review the timing. She received Notice of this hearing on November 4^th when she arrived home at about 8:00 p.m., which was a Friday night and City Hall was closed. The soonest they could have gotten to look at the plans and to research rebuttals, would have been Monday, which gave them 3 only days. When she looked into hiring an attorney and an engineer, it was not possible. In addition, she said there is a prior history here that she will be talking about because she believes it is significant.

Ms. Andrews-Mann went through the 10 Practical Difficulty questions, reading from her prepared statement. She said that the aerial view shows that almost all of the lots within the area are identical and the homes are traditional, which is a unique quality of the Beachcliff area and the reason they are so highly sought after. She said the previous home was not an eyesore and the proposed structure does not enhance or improve the neighborhood because the neighborhood does not need improvement. She said there will be significant detriment to her property, as well as others to the north and east. The proposed structure blocks any and all curb appeal by literally becoming a wall from east to west, ending somewhere between 10’ and 17.3’ from Buckingham. There are points on the porch where the porch extends further out toward Buckingham, resulting in the potential for that structure to extend down to about 10’ from Buckingham. She said her house will cease to be seen when driving down the street. She said that the setbacks for the existing homes on Buckingham are aligned with each other, producing a smooth linear view. This proposed plan is detrimental to the public welfare because the proposed setbacks will potentially obstruct the view from the intersection for motorists and pedestrians. She said that none of the existing homes obstruct the view to or from the street for anyone.

Ms. Andrews-Mann continued by saying that the structure is overwhelming not only for the property, but for the other homes. She said the home Mr. Elinsky brings up that is directly across the street sits on three lots versus one lot, has the original footprint, and has been remodeled under previous codes. She said that the existing Codes are for family sized homes, as evidenced by the fact that past and present families have been occupying the neighborhood for the past 23 years that they have lived in their home. She is concerned because the proposed plan eliminates open green space, removes trees and the property will be consumed by the structures. She has a 100 year old oak tree next to her house and the construction will bother her tree and it most likely will die.

Ms. Andrews-Mann said that the variances are very egregious and very substantial. In addition, there is a pool house at the back of the garage, another deck with outdoor fireplace, and an in-ground pool. They are very concerned that the garage will become a second residence because it is so large. The total square footage of the house is 5,077 sq. ft. and the total square footage of the garage is 1644 sq. ft. She said her house is 1300 sq. ft. The applicant’s house will overtake her house by 4 times. Ms. Andrews-Mann said that she has yet to find a person who agrees with Mr. Elinsky’s statement that his home will be a vast improvement to the neighborhood.

Ms. Andrews-Mann said that there has been a blatant lack of consideration beginning with the demolition of the original home. Mr. Pempus asked if this relates to any of the variances. Ms. Andrews-Mann said it relates because it shows past character and this Board needs to hear it. Mr. Pempus said that Ms. Andrews-Mann is discussing demolition, which does not relate to the new plans. She said they showed up between 5:00 and 6:00 p.m. and the side of her house facing the demolition was in the process of being painted. A large portion of that side had to be repainted. She and other neighbors have had problems because the house was not demolished correctly. She had new gutters and a roof installed and her gutter people had to be called back twice because she had water around her house in places she never had water before. She realizes there was a lot of rain but she never had problems before. She said that she made repeated calls to the city about the water issues and never once did Mr. Elinsky attempt to find out about these problems.

Mr. Mann said that the burden of presenting hardships is on the applicant and he noted a changing and bathing area resembling a pool house, which now sounds more like a recreation room with recreation vehicles being stored inside and a bonus room above it. The garage is grossly oversized and there are 3 covered porch areas, 1 which wraps around approximately 70 linear feet. He said none of these things are wheelchair or handicap accessible or anything that resembles a building what would fit into a normal neighborhood, which is all they are asking for.

Mr. Paul Burstadt, 19418 Argyle Oval, came forward and said he lives next to the Greenburgs, two houses away from the proposed construction. He has reviewed all of the presentations that his neighbors have put together and he supports all of their statements. He would like to address Mr. Auvil’s overhead view to express his major concerns of the 50% increase in the size of the garage and the 25’ tall blank wall that will be facing their front porches and blocking their view to the west. In addition, regarding Mr. Elinsky’s comment that he did not feel his variance requests were imposing directly on neighboring properties, he said he has been a property owner there since 1974 and he feels that the character of the neighborhood is imposed upon substantially because of its large coverage and the fact that it extends so close to Buckingham and Argyle Oval.

Mr. Ken Taylor, 19510 Argyle Oval, came forward and said his home is referred to as “Exhibit 1” in Mr. Elinsky’s submittal. He said that regarding the notion of his home being used as a comparison to justify the setback variances, it is not a valid comparison. He said that his home is situated on the property differently than how the proposed home will be situated. The corners of the original structure are what exceed the setback. One corner is at 23.5’ and the other is at 34.5’ to the house and not to the porch. Mr. Elinsky’s structure would be situated with the whole side of the home within the setback on both streets. He said that the size and the height of what is being proposed feel more like a building being built. The height on both sides of the structure as well as the garage, makes it feel like a city block with a large structure right on the sidewalk and not set back. He said it does not feel like that is the character of the neighborhood.

Mr. Elinsky asked Mr. Taylor what the measurement of his porch to the inside of the sidewalk on either street is. Mr. Taylor said he measured the diagonal from the house to the corner of the porch and that was about 14’, and from the corner of the porch to the sidewalk is a much shorter distance. Mr. Elinsky said that he is asking for something similar to Mr. Taylor's measurement from the house to the sidewalk, which is about 25’. Mr. Taylor said that he does not think that a corner protruding into the setback can be compared to the whole side of a structure protruding into the setback, as Mr. Elinsky claims his is.

Ms. Nancy Sullivan, 180 Buckingham, came forward and said that she lives across the street. Mr. Elinsky’s major hardship argument has been that he has 4 kids and that they are avid bikers, etc. She said she thinks that is great because she has 5 kids and they are also avid bikers also. Her family has 4 cars but they are still able to enjoy life and the neighborhood with a 2-car garage. It is a wonderful neighborhood and she has been there for 20 years. Instead of moving out of the neighborhood, she moved only 2 doors down to a slightly larger house because of the trees, the character of the neighborhood, and mostly because of the people. They are extremely welcoming and would welcome Mr. Elinsky’s family, but they will not sacrifice all of the things that they love about the neighborhood, like sight lines, which are important. She echoes all of the more technical complaints her neighbors have made, as well.

Mr. Gary Snyder, 60 Buckingham Rd., came forward to say that he agrees with all of the other neighbors and suggested that Mr. Elinsky go back and redesign some things to conform to what they are talking about tonight. He said that the garage looks like it is in the front yard and he doesn’t know of any garage that is located in the front yard. He said that with 5 cars, 3 will be in the garage, and 2 of them will be parked right to the sidewalk when normally, extra cars are parked in the back of the house. He said that the beauty of the lot was the house and they hope he will consider replacing it with something very similar to it. The open space is phenomenal and they hope Mr. Elinsky doesn’t take it away from them.

Mr. Pempus said that Mr. Elinsky may have acknowledged the fact that the neighborhood community is not favorable about his project. He asked Mr. Elinsky if he wishes to go further with these variances or return to the drawing board in order to take another look at what he has proposed. Mr. Elinsky said that they are asking for what everyone here has acknowledged that they have, which is a 25’ setback. He said that all of the new homes he has seen are built to the same character and style he is suggesting.

Law Director Bemer said that Mr. Elinsky has listened to all of the neighbor’s comments and heard what Mr. Pempus has offered him, which is an opportunity to read between the lines. If they reject the variances, then Mr. Elinsky will not be able to come back with any other variance for one year, unless it is a substantial departure from this proposal. He said that Mr. Elinsky’s comment about 5% to 10% variances for coverage is not true. The only area that departs from that is in the yacht club basin, which is a very unique area with all of the houses very close together, along with many other factors. Mr. Bemer said that Mr. Elinsky is being offered an opportunity to scale his plans back to be more compatible with the neighborhood.

Mr. Elinsky said he would like some direction because they thought they had gotten that direction before they tore down the house and they have spent a considerable amount of time, energy, and money to present these plans today. He asked the Board if all of the variances he is requesting are in question. Mr. Wright said he is only speaking for himself, but they are all in question. Mrs. Van Atta agreed. Mr. Farrell said that Mr. Elinsky should have his architect consider the neighborhood a little better than he did. He said that it looks like this wasn’t designed to the lot at all because the setbacks were ignored. Building Commissioner Beirne said that he told Mr. Elinsky and his representative, Scott, who is sitting in the back of the room, exactly what the setbacks are, as well as lot coverage maximum. Mr. Farrell said that he looked at the site and immediately felt like it doesn’t fit the adjacent setbacks. In addition, he said that the house across the street that was used as a comparison is set at an angle, so it brings itself back to the line of the adjacent homes. In contrast, both of the facades on the proposed home project so far into the setbacks and don’t continue the line of the neighborhood at all. The house across the street that has been used as a comparison extends into the setbacks just at the corners.

Mr. Wright said that the biggest setback that the applicant and architect need to look at is the 50’ setback. He said that they have presented a two-story elevation that is in excess of 30’, set 5’ off of the property line, which he would never approve. He recommended that they table this to give the applicant an opportunity to work with the site and the neighbors and then come back.

Mr. Bemer encouraged Mr. Elinsky and his Architect to work with Building Commissioner Beirne to come up with a plan to scale the project back.

Mr. Elinsky said that he would like to request that this be tabled.

Mr. Wright made a motion to table a Variance to construct a new single family residence with 32.27% coverage vs. 28% maximum lot coverage permitted (Section 1153.05(b), a Variance to construct a new single family residence with a front setback of 17.3’ vs. 30’ front setback required (Buckingham Rd.) (Section 1153.07(a)), a Variance to construct a new single family residence with a front setback of 25’ vs. 50’ front setback required (Argyle Oval) (Section 1153.07(a)), a Variance to construct a detached garage with a height of 25’ -10 ½” vs. the height of detached garages shall not exceed 15’ (Section 1153.09(b)), and a Variance to construct a 993 sq. ft. detached garage vs. the maximum gross floor area of all accessory buildings on a zoning lot, including detached garages, shall not exceed 600 sq. ft. (Section 1153.15(c)) for Gregory Elinsky, 19440 Argyle Oval, for a period of up to 120 days. Mrs. Van Atta seconded.

5 Ayes – 0 Nays

Tabled

The meeting adjourned at 9:20 pm

Patrick Farrell, Vice Chairman Craig Wright, Secretary