BOARD OF ZONING APPEALS
Minutes
October 29, 2001

The regular meeting of the Board of Zoning Appeals of the City of Wichita, 
Kansas, was held at 1:30 p.m., on October 29, 2001, in the Planning Department 
Conference Room, Tenth Floor of City Hall, 455 N. Main, Wichita, Kansas.
	
The following Board members were in attendance: JOHN ROGERS, BICKLEY 
FOSTER, BRADLEY TIDEMANN, JAMES RUANE, FLOYD PITTS, and 
JAMES SKELTON.   RANDY PHILLIPS, arrived at 1:40 p.m.

The following Planning Department staff members were present: 
DALE MILLER, Secretary, SCOTT KNEBEL Assistant Secretary, 
ROSE M. SIMMERING, Recording Secretary.

Also present: DOUG MOSHIER – Assistant City Attorney. 

Also present:  J. R. COX – Commercial Plan Review/Commercial Zoning -- 
Office of Central Inspection. 

TAPE BEGINS A LITTLE LATE

FOSTER:  Have we received any information as to why they want to have this 
reheard. Unless you have something I don't.

RUANE:  I don't have it, and that is the reason why I think that we need to first 
look at the…

FOSTER:  I would presume the applicant would be here to present that.

RUANE:  I am sure they are here, but we need to determine whether or not there 
is reason to let them make a presentation.

FOSTER:  In the past, I might point out, that we have had executive session. In 
fact, we have had two or three of them over the years to discuss and deliberate on 
a matter such as this.  After you hear it, after you have received the information, if 
you feel it needs to be deliberated, we have done that two or three times in the 
past.  But we need to receive the information as to why they are requesting that it 
be heard.

RUANE:  Is that City Law Department opinion?

MOSHIER:  What part of that?  This is a quasi-judicial body, and it is my legal 
opinion that the Board can, at the close of all of the evidence of the record, it can 
deliberate in closed session if it chooses to do so.

RUANE:  But that wasn't what we were talking about.  Did you know the 
questions?  Were you listening?

MOSHIER:  I am sorry.  I thought that was what Bickley was talking about.

FOSTER:  My point was that it seems to me that we need to hear something first 
that tells us what they want done.

RUANE:  What distinguishes this from the early request…

FOSTER:  Then we can decide whether to debate it then or to go into closed 
session.

MOSHIER:  Absolutely.  I don't think you can make a determination whether 
any facts have changed without knowing from the applicant what those are.  That 
is exactly correct.

RUANE:  Thank you.  Then I will back track, and we will be at Item #1: the 
approval of the BZA minutes for the month of September.  Rose has just handed 
out a very quickly prepared revised draft of the minutes.  The comments are mine. 
I would ask in the interest of time and speed that we go through those. Dale 
Miller, in particular, I want your input on this because I think that Dale, as our 
Secretary, you need to have some input on these draft minutes before they get to 
us.  

Now, again, this is Agenda Item #1 with regard to the minutes, and I will try to 
make this quick.  You see there is a combination of suggestions for some process 
improvements that I don't wish these to be changed in these minutes.  There are 
some things  which simply are modifications to the minutes that I request.

On page one, after my name where it says "Let me interrupt" does everybody 
follow the corrections that I have made there having to do with the fax?  Last 
month I faxed in a similar set of these changes but it never made its way to you so 
we went through a long process by which I had to read all the changes. I am 
trying to avoid that this month by insisting that these be passed out.  

I want a decision to be made as to someone from staff who will be responsible for 
giving this a little higher order or a higher level of review before they are 
circulated to us further. In particular the section that involves the audience and the 
accommodations made with regard to the PA system.  That needs to be greatly 
abbreviated. I think the end result was that we had a gentlemen who couldn't hear, 
and we told him to move and he moved and he could hear.

On page 5, I am not really sure what I want other than some clean up and some 
abbreviation.  

On page 15, the second to the last paragraph…

FOSTER:  What was the problem with page five?

RUANE:  I do not see a problem.  That is not even an editorial comment.  It is 
just a suggestion for a process improvement.  So make that note that it is not a 
correction.  Frankly, on page 15, I understand that the comment attributed to me, 
"Is the differential the logical key?" I probably said that but I don't think that 
makes any sense at all.

MILLER:  I guess that is what I would raise the issue.  These are verbatim 
minutes.  Now if we go through and fix these, then they are not verbatim minutes.

RUANE:  I do not require verbatim minutes.

MILLER:  But, I think that has been our practice since these are the minutes that 
go to court.

RUANE:  Well then the word "too" something more than spell check is going to 
be necessary.

MILLER:  On the word "too" I understand that.  But in terms about the 
discussion, about the PA, and that sort of thing, that all occurred, so I think that is 
pretty dangerous to change.

RUANE:  That could be material to a challenge? We have some editorial 
privilege surely.

MILLER:  My concern is guessing what is to be editorialized and deleted and 
what is not can get us into trouble.  I personally have done minutes for Planning 
Commission, and I know how difficult it can be because it is amazing how often 
people mis-speak.  

RUANE:  I know that I am far from perfect.  

MILLER:  But we will certainly try and review them closer.

RUANE:  If you take these into account, in particular I see no need for verbatim 
minutes when we have I don't know if you remember the exchange, we had an 
elderly gentlemen, he couldn't hear, he couldn't see, he had chosen a place to seat 
himself where there was no way he was going to hear or see anything and the 
meeting was going to go at a snails pace unless we moved him up here where he 
could see and hear what was going on and so that is what we did.  So in that 
instance because it had nothing to do with the merits of the matter that we were 
discussing, I just fail to see the need for verbatim minutes.  

RUANE moves FOSTER seconds to approve the September 25, 2001, 
meeting minutes with those changes.

FOSTER:  I don't know whether, Randy, you don't have a copy do you?

RUANE:  Rose, would you provide Randy with a copy of what we are 
discussing?  

FOSTER:  Randy you weren't here anyway.

MILLER:  He will have to abstain.

RUANE:  He may want to abstain, anyway. But I am suggesting some processing 
improvements for how we could expedite the process of the minute approval for 
further meeting minutes down the road.  We have on the table a motion to 
approve the minutes as amended via my comments in the margins etc. Make 
particular note of those things that are not amendments but are merely process 
improvements which I think that Dale, Bickley, and I have already discussed.  If 
there is any further discussion with the regard to the minutes I would ask that be 
had now.

MOTION CARRIES 6-0-1.

RUANE:  We are now onto Agenda Item #2, BZA2001-00050.  It is a Variance 
request to increase the maximum height of a building sign for Dick's Sporting 
Goods from 30' to 38'6" on property zoned "LC" Limited Commercial.  

We first, as I understand it and Doug tell me if I am wrong, Doug Moshier tell me 
if I am wrong, I believe that we first need to hear from the applicant on the subject 
of what is the difference between this application and the one heard last time this 
matter was before us, is that correct?

MOSHIER:  I think that is correct.

RUANE:  So limit your presentation to the subject of the difference between the 
last request and this.

PHILLIPS:  Mr. Chairman, at this point, I do need to declare a conflict of 
interest, so I will abstain and step down until we are done with this case and then I 
will return to the Board for the next case.

RUANE:  Ok, does that mean that you will sit in the audience as well?

PHILLIPS:  Yes, that is fine.  I will step back from the table.  We have provided 
some architectural services, not for Mr. Ablah, but for Bundy and Associates.

RUANE:  So that has to do with Items #2 and #3?

PHILLIPS:  No just Item #2 anything related to this particular case.

CHRISTIAN ABLAH, CLASSIC REAL ESTATE, 8200 E 32ND STREET N., 
WICHITA KS 67226:  The specific difference between the last time that we 
were here, I think it was August 28th, we were talking about 43'6" in height on the 
building and now we are simply talking about a reduction of that to 38' as 
opposed to the 43'6".  

The other change that the applicant has made, that Dick's Sporting Goods has 
made, is a concession and an adjustment to the height of their letters.  Their letters 
were 9', and now they intend for those to be 8' as a concession.  So those are the 
two changes that Dick's Sporting Goods feels are a substantial or material change.  
I would be open for discussion. In their minds, that is quite a bit different than 
what was presented before and would like to be heard and get into this in more 
detail, but quite frankly those are the differences.

RUANE:  Is there someone here from Dick's to present as well?  

ABLAH:  No. They are out of Pennsylvania.  There is an attorney out of 
Pennsylvania that I work with, and they have been here in town three times.  But 
there is no one here today.

RUANE:  What makes this quite a bit different, as Dick's representative?  

ABLAH:  In the staff's mind, and I don't want to speak for staff, but every foot 
seems to be monumental.  I would like the case to be heard by everyone on the 
BZA because I feel that it does warrant being heard and I think that one could 
argue it is not black and white.  Is this material? Is this substantial? This is 5'. 
This is a foot in letters. We could start talking out percentages, but the bottom 
line, in the applicant's mind, it is a substantial change from 43' to the 38'6".

RUANE:  If anyone would have any questions of Christian now would be the 
time that I would suggest that you ask.

FOSTER:  Christian had mentioned new plans or new facts.  Are there any new 
facts in the presentation of the sign other than the size that you mentioned that are 
different in any of the plans or the rationale and so forth for it?

ABLAH:  Yes, I think in the study if we get into the case itself, if you allow that, 
we can get into that with detail as far as when we talked last time.  I think there 
were questions about the visibility and were that is from.  There has been a new 
sight line study that is provided for you that specifically looks at about eight 
different angles from Rock Road and the visibility and that height difference 
between 38' and 43'. I think if we can get into that, and again I would welcome 
that, and we are all here and I would sure like the opportunity at least to at least 
have heard and be heard in that.  A lot of time and effort has gone into this. I have 
worked very hard, and in the event that you chose not to hear the case, which I 
hope that is not the case.  

I just might as well mention this. I did take this, and the first thing that I did was 
talk to the Commissioner for this District, City Council Member Joe Pisciotte. I 
did take this to the DAB about three weeks ago.

RUANE:  Was that after we had ruled on it?

ABLAH:  Yes.  That is what I did after it was ruled.  I went and saw Mr. 
Pisciotte, and then I talked with Marvin.  I spoke with both Dale and Scott, and 
we took this to DAB and it did pass.  I understand that the governing body that 
has the authority is the one that is here today, the BZA.

FOSTER:  May I interrupt?

ABLAH:  Sure.  

FOSTER:  I am not sure we should hear what the DAB did.  As you recall…

RUANE:  I am going to allow that interruption, because, and I will defer to you 
Doug Moshier, could anything that happened, I mean could this DAB meeting 
that happened after the last time we heard this be relevant on the topic of what is 
different now?  If it was the same proposal?

MOSHIER:  No, not only that but, I don't think anything from the DAB can be 
relevant to this Board's deliberations.  

ABLAH:  Clearly understood, Gentlemen.  I just want it to be known that it is not 
that we didn't do anything, and that there was nothing that we did.  We try to 
understand how different Boards work in our organization and in our City to try 
and get something passed or try to get something.  I understand that there was 
nothing there, but I just wanted to make to note that we haven't been just not 
doing anything.

FOSTER:  May I ask, did the DAB tell you that they had no jurisdiction over the 
BZA Board?

ABLAH:  Absolutely. I clearly understood that the entire time and went through 
the effort to meet with each and every one of the DAB members that was willing 
to meet.  I also did do that.  I also, in case I am not able, and I hope that I get the 
opportunity to speak to you on this matter, also to let you know when I talked 
with Mr. Ruane, he made it clear that he thought discussion and the opportunity to 
discuss this is at this meeting here today if you all chose to do so.  I understand 
the process.

FOSTER:  Who said that did you say?

ABLAH:  James Ruane to your right.

FOSTER:  I don't understand.

ABLAH:  Previously, I believe I talked to you on the telephone maybe about 
August 25th or so or maybe a few days before the August 28th meeting. I think you 
specifically shared some concerns, if I remember correctly, shared some concerns 
that you did not particularly like to talk about these things except at these 
meetings.

FOSTER:  I don't talk about them outside of this room.

ABLAH:  That is what my point is.  This time, this go around, I made no phone 
calls to anybody on the BZA Board.

FOSTER:  I was just talking about the DAB.  In other words, you talked to all 
the DAB members also?

ABLAH:  I made an effort to talk to each one.  I talked to about 6 out of the 11.

FOSTER:  None of them told you that they had no jurisdiction over this?

ABLAH:  Everyone understood that.  I told them, and I clearly understood that 
sir.

FOSTER:  But you talked to them anyway.  

RUANE:  Let's stick to the relevance, any other questions for Christian?  
Because Scott or somebody from staff is going to comment on this aspect of the 
matter as well as I understand.  Is that correct?

MILLER:  In terms of staff's opinion on whether you should hear it?

RUANE:  Yes, with regard, should this matter be reheard?

SKELTON:  If my understanding is correct, last time I think Mr. Miller wrote or 
read out of the regulations what constituted a roof sign. I think on his prior 
application, I think it amounted to that it was a roof sign by definition.  Now, my 
question is, is this revised plan, can it be considered a roof sign? If not, I don't 
think we have our justification to hear this case.

PITTS:  I agree with Mr. Skelton's comments.

KNEBEL:  Actually, the point that I think that we made in the comments the last 
time was that it had the visual appearance of a roof sign.  However, and it does if 
you read on its face the definition of a roof sign, it does appear to meet that 
description.  However, technically, and maybe J.R. can answer this a little better 
than I can, anything that is attached as a parapet wall is considered a wall sign 
even though it may extend above the top line of the wall.  The sign itself may be 
the only thing that extends above the top line of the wall, as long as it is at the 
face of the wall and structurally a part of the wall, then it is considered a wall 
sign.

SKELTON:  He read some regulation or definitions regarding what constitutes a 
roof sign, and I don't think that applies here to this revised drawing, and I can't 
remember it verbatim what Dale said.

RUANE:  Please respect me as just trying to be a good Chair.  But, here is the 
way the Chair is going to insist that this is handled.  Rose, look at and everybody 
look at the Department of Law Interoffice Memorandum that we got from Sharon.  

The third paragraph says, "Prior to determining if the current Variance request 
should be granted, the Board according to its bylaws, must determine if there has 
been a sufficient change in conditions or circumstances which materially alter the 
aspects of the case to warrant the Board rehearing the Variance request."

That is the stage that we are at right now, where Christian is being provided an 
opportunity to speak and to answer questions and I am having a hard time seeing 
whether or not the sub-issue of roof sign or not relates to or is germane to that 
issue.

PITTS:  Mr. Chairman, if we are discussing this yet, I should think that would be. 
If we can determine while we are hearing the circumstances surrounding this that 
reducing the height of this sign from the requested 43' to 38'6" would not only 
constitute it a roof sign but the appearance of a roof sign, which is one of the 
things that our decision was based on denying this was the appearance of being a 
roof sign.

RUANE:  So the reduction in height would make it more of a roof sign?

PITTS:  If it should make it less of a roof sign, then I should think that this would 
be a significant change.  

RUANE:  I think we are going to hear from staff on that particular point, are we 
not?

MILLER:  I guess the point that I was trying to make, last time there was 
discussion about whether it was a roof sign or whether it wasn't.  We read the 
definition so that everyone understood what a roof sign is by the current code.  
Then there was discussion on whether this had the appearance in terms of 
maintaining the spirit and intent of the sign code and complying with the spirit 
and intent of the rules and regulations.  That was the discussion in my mind 
whether it was a roof sign or not a roof sign.

RUANE:  Wasn't the conclusion of that discussion that even if we decided it was 
a roof sign and we wanted to do it there was no way that we could accommodate 
it via a Variance under the code?

MILLER:  Because roof signs are not permitted.  But this is not a roof sign by 
definition, but that was the discussion last time, was it or isn't it a roof sign.

RUANE:  Right, I guess at risk of being more blunt, I don't see the point of 
discussing that any further because we cannot give them a Variance to erect a roof 
sign on top of this building.  So why should we try?

ABLAH:  This is not a roof sign.  It is clearly not a roof sign, and then you get 
into the definition and the argument back and forth.

RUANE: Any other questions for Christian at this juncture?  Okay, let's hear 
from Scott, again, this is on the issue of has there been a sufficient change?  Or 
hear from staff has there been a sufficient change in conditions or circumstances 
that materially alters the aspects of the case toward the Board rehearing it?

KNEBEL:  As the memo states, the first issue that the Board needs to decide, and 
really, we are going to leave it up to the Board to decide whether or not there is 
that.  But we do welcome the opportunity to provide you our opinion to whether 
or not it does.  Essentially the request is still a variance to increase the height of a 
sign.  Now, does that meet the definition of being a sufficient change?  We don't 
really see that it does.  Essentially the applicant is asking for a Variance to build 
the exact same sign that they were going to build.  It just has different dimensions 
than what it did before.  You could have previously, when the Variance for a 43 
foot sign was requested, you could have granted a Variance for 38'6" had the 
applicant asked for that or made that concession at the last hearing and you had 
agreed to it.  So to that extent we don't feel that this is any significant alteration 
other than the fact that the applicant is making another attempt to get approval of 
the sign.

RUANE:  What questions does the Board have for Scott, staff, or legal staff?

KNEBEL:  The only other point that I would have to add is that if 38'6" is 
significantly different then 43', then you deny 38'6" then the applicant may come 
back with 33' and is that significantly different than 38'6" and so on and so on 
and you can see where that would lead for future cases.

FOSTER:  Scott, this is on the same building and has the same wording as before 
correct?

KNEBEL:  That is correct.

FOSTER:  Other than reducing the height by 4'6" and if the letters are reduced 
by 1-foot right?

KNEBEL:  That is correct.

FOSTER:  Does that lower the letters or do you know that?

KNEBEL:  As far as…

FOSTER:  Does that lower them in any way and make the sign look any 
different?

KNEBEL:  I, and it is just a matter of my opinion, but I don't have the two here 
in front of me, but if you compare the two sign drawings that were submitted with 
the two separate applications, if there were no scale on either one of them telling 
you the letters and the sign height were smaller, it would be very difficult if not 
impossible to tell the difference between which one was which.

RUANE:  Scott, do you have any slides that you would like to show us?

KNEBEL:  I can show you slides, I think most of them deal with whether or not 
the Variance should be granted.

RUANE:  Christian, I did not afford you the same opportunity, but I will.  It was 
my mistake.

KNEBEL:  I do not have any slides that deal with whether or not this is of 
significant change or not.

RUANE:  Any other questions for Scott?  Christian, if you have a slide that you 
would like to show, now would be when I request you to do so.

ABLAH:  I don't have a slide, but I want to be careful too and to not try and go 
through the application.  But again, I know that this Board hears a lot of cases, 
and I know that there are a lot of things that are important, we could argue about 
or discuss.

RUANE:  If we decide to hear it then you will have an opportunity to present it 
on merits.

ABLAH:  I have a wonderful presentation and would really like the opportunity 
for this 125 store chain from Pennsylvania, privately held, that would like to talk 
about entering into this market.  I would very much like the opportunity to do 
that.

RUANE:  Let's go back and get that because if we are both talking I am sure that 
there is no way that Rose can get that in the minutes.  Rose did you get that.

SIMMERING:  Yes, it is fine.

RUANE:  Christian, go ahead.

ABLAH:  I would just like the opportunity to be heard, and it is funny that I have 
been through different zoning cases and this is a BZA and this a little bit different. 
But again, I reiterate that when one talks to staff and tries to work with them 1', 
2', 3', 4', 4 ½', those are substantial things in the eyes of the City when one is 
trying to get that.  So we have reduced that and made the concession on the 
lettered sign.  But I would like the opportunity to at least be heard and at least 
have that opportunity and without going into great detail I just sure hope we get 
that chance.

RUANE:  So, we have to decide before we go further has there been a significant 
change in conditions or circumstances to warrant rehearing it?  That is the 
question, is there a motion?

BICKLEY:  Discussion?

SKELTON:  Mr. Chairman…

RUANE:  However you would like to proceed.

SKELTON:  If my memory serves me correctly, the big issue was that the 
appearance of the sign on its first request, the bottom of the sign was directly 
adjacent to the top of the roof; the whole sign appeared to be on top of the roof.  
Now, the way that it appears, the bottom of the sign is indeed below the roofline.  
I think the argument of a roof sign would not find its way into this argument this 
current application so easily.  Therefore, it is my opinion that we should hear this 
case. I also do agree that any change in height, or size, or letters, or the size of the 
sign, it is a whole new application, and I think he should have the right to be 
heard.

RUANE:  Any other discussion?

FOSTER:  I think we have to look to the future.  Does that mean that people can 
come back if they lower the sign 1', 2', 3', or move it over a ½' whatever?  The 
wording is the same; the location is the same.  Basically, I think it sets a very poor 
principal. 

Now, I don't see the same audience that we had before.  We had a gentleman here 
the last time, a businessmen that took time off from his work, came down, the 
gentleman from the movie theater.  If you recall people were notified in the area.  
It just happens that there weren't very many people.  There is nobody here today, 
but all of these people are notified within 200 feet of this site, and this one just 
doesn't happen to have that.

The point is that if anybody can come back and just want to change instead of a 3' 
side yard, they want a 10' side yard are we going to hear it again?

RUANE:  We have not yet given some members of the audience the opportunity 
to speak.  Are you here to address this issue?

MOSHIER:  You probably ought to open it up.

AUDIENCE:  Yes.

RUANE:  So, if we are going to hear the case, they will have their opportunity.

FOSTER:  They are not on this part of the case then, I guess.

RUANE:  We need to decide if we are going to hear the case before it is really 
appropriate to let them speak.

SKELTON:  I don't think that we can whitewash all zoning cases into this 
example.  Each one has to be evaluated independently.  We can say, "yes, well if 
a guy is going to come back, again, and again, and again, that sets a poor 
precedent", that is fine.  However each case is unique to itself.  A sign Variance is 
different from a yard setback.  Clearly I think this gentleman has paid the fee, and 
he believes strongly in his argument, and he is here to be heard.  I think we should 
hear this case.  I feel strongly that we should hear this case.

FOSTER:  Mr. Chairman that is not the issue to hear the case.

SKELTON:  Yes it is.

RUANE: I understand.  What is the issue?

FOSTER:  The issue is not whether to hear the case.  The question is as, our 
attorney has given us the information showing changed conditions or 
circumstances, which in the opinion of the Board materially alter the aspects of 
the case.  That is the issue not whether he paid a fee.  Anybody can pay the fee.

SKELTON:  Material facts, in my opinion, I think the appearance of a roof sign 
is significantly diminished here.  I don't think that you could bring the argument 
of a roof sign into this particular Variance the same way as you did last time.   
Materially speaking, the sign is smaller.  The letters are smaller.  The sign is 
shorter.

RUANE:  What other discussion of new information or new points of view with 
regard to this motion would any of you have?  Otherwise we should call the 
question.

FOSTER:  There has been no motion Mr. Chairman.

RUANE:  There was a motion made by Mr. Skelton.

SKELTON:  I don't think I made a motion.

FOSTER:  I didn't hear a motion.

RUANE:  Mr. Skelton, you spoke in favor of rehearing this case.

SKELTON:  I am in favor of hearing this case, and I will vote in favor of a 
motion to hear this case.

RUANE:  The Chair requests a motion from Mr. Skelton, against if you would 
like or for if you would like.

	SKELTON moves that we would hear the said case.

RUANE:  Because…

SKELTON moves TIDEMANN seconds, that we rehear the said case 
because of the material facts dictate as in the argument of a roof sign 
is irrelevant here the sign is shorter and sign has smaller letters.

FOSTER:  Mr. Chairman, I am going to vote against this because I don't think 
that we have all of the facts.  How does the motion maker know that the letters are 
smaller?  Nothing has been presented to us on that basis.

SKELTON:  We just heard it from the applicant.

RUANE:  You know what? I did not wear this striped shirt because I need a 
whistle for this meeting.  Please let each other finish your comments.

SKELTON:  I apologize Mr. Chairman.

FOSTER:  I think it sets a very poor precedent.

RUANE:  No.  My point was that you need to be allowed to finish your 
comments without anyone interrupting you.

FOSTER:  He is basing his point about that this is less of a roof sign.  How much 
lower is it as a roof sign?  We don't know.

RUANE:  All discussed now. I was fully prepared to vote against each and every 
aspect of this because I think this is a terrible waste of our time.  I felt so sorry for 
Christian to have had to put together what was I think the lamest Variance 
application I have ever seen before us a month ago.  But he had a job that he had 
to do, and he has the guts to come back none the less.  

So we have had to spend this much time on it already.  It is already 10 minutes 
after 2 p.m. The efforts to be efficient have failed.  So I will yield. I will hear the 
case, but beware that the Chair expects this to move along quickly.  So I will vote 
in favor of the motion.

PITTS:  Was there a formal motion Chair?

RUANE:  Yes, there is already a motion.  That was just a comment in favor of 
the motion.  We have Mr. Skelton's motion which was seconded by Mr. 
Tidemann.  Unless there is further discussion, we should vote on that motion.  We 
will call the question.

SKELTON moves TIDEMANN seconds, that we rehear the said case 
because of the material facts dictate as in the argument of a roof sign 
is irrelevant here the sign is shorter and sign has smaller letters.

Motion carries to rehear the case 4-2-1.  TIDEMANN, PITTS, SKELTON, 
RUANE approve to rehear the case.  ROGERS, and FOSTER deny 
rehearing the case.  PHILLIPS abstention.

RUANE:  The clock is ticking who goes first?  Scott, not a pause...

KNEBEL:  This particular Variance request I think most of you are pretty 
familiar with since we have heard a similar one previously.  The property is 
located at 32nd Street North and Rock Road. The property is zoned Limited 
Commercial and is within the Mediterranean Plaza Commercial Community Unit 
Plan.  That particular CUP states that signage is permitted in accordance with the 
Sign Code.  The Sign Code limits wall signs to 30' in height, and the applicant 
has requested a variance for a wall sign that 38'6" in height.

The property, as you can see, is currently developed with a theater.  The proposal 
is to demolish the existing theater and replace it with a retail center that includes 
the Dick's Sporting Goods.  This is a drawing…

RUANE:  Scott, let me interrupt you for just a moment.  Were all of us here last 
time this matter was considered?  Continue with this level of detail then.

KNEBEL:  This is a drawing that was submitted with the application, and I have 
also seen other drawings that were submitted to Board members but not submitted 
to staff that show the Dick's Sporting Goods in the middle of the retail center 
rather than on the southern end.  I guess the applicant can clarify exactly where 
the sporting goods store is proposed to be.  But they have submitted other 
materials that indicate that actually the store would be in this location with retail 
north and south of it rather than in this location with other retail exclusively north 
of it.  But this is presented to the Board because that was the site plan that was 
submitted with the application.  

This is the elevation drawing of the sign.  You can see that there appears to be 
another retail business on the south here with its own signage and that is what 
leads me to believe that perhaps the site plan that was submitted is not the 
accurate one.  This shows, as you can see, Dick's Sporting Goods with the 
majority of the sign in fact all of the 8' letters above the remainder of the wall 
basically functioning as a very large billboard type sign above the wall of the 
shopping center itself.

This is the site.  As I mentioned, it is developed with a theater looking at it to the 
east.  This is the neighboring development.  To the south and to the east, a theater 
and a bowling alley.

RUANE:  Scott, can you go back two slides.  Is there anything in City Ordinance 
that prevents the maintenance or pruning of landscape required in parking?

KNEBEL:  That prevents it?

RUANE:  That prevents it. Like, if for visibility towards that front door was 
wished to be improved, could you trim those trees and still be in keeping with the 
landscaping ordinance?

KNEBEL:  Yes, you could trim the trees.  The bowling alley and the theater to 
the south, and to the north and northeast is additional retail and office type uses, 
and to the north again are office uses, and then to the west and north are restaurant 
and retail uses across the street.  To the northwest are gas stations and some other 
restaurant and retail uses as well as to the west, and to the southwest is restaurant 
and retail.  

This is the sign that is out on the Rock Road frontage that the applicant has 
indicated that they will be using a portion of to indicate their location.  This is the 
permitted ground mounted signage, which is referred to in the staff report.  These 
are some pictures.  At the last hearing the applicant indicated that they were 
attempting to have visibility from Rock Road and there was some mention of a ½ 
mile distance.  I think they later retracted that statement but this is a picture 
looking down K-96 towards the exit of Rock Road.  The proposed Dick's 
Sporting Goods would be located behind these apartment buildings and would not 
be visible from this location.

RUANE:  So whether 8' tall or 9' tall Dick's is not visible from K-96?

KNEBEL:  Not from that particular location, at this location which is a zoom out 
view from the…

RUANE:  What kind of angle?

KNEBEL:  Wide-angle, zoomed out to the maximum that the camera will do. 
From the Rock Road exit the Dick's Sporting Goods would be located 
approximately in this location here.  It is not very clear on these pictures.  But I 
think there is a handout that the applicant has given to you that points to the fact 
that at 30' you can see the sign at least a portion of it from this particular location. 
As you take it at a normal view, what you would see if you were standing there 
with a naked eye this is the top of the theater now, which is 30' high.  Were they 
to put a 30' high sign on that you would be able to see it, I think it is pretty clear, 
from the Rock Road exit.  

Then as you zoom in it is even a little a bit more clear as to just how much above 
the intermediate buildings that theater building, which is 30' tall, how much taller 
it is than the buildings in front of it.  Also to show some of the gaps that are 
between the out buildings along Rock Road.  This is the gap between the 
barbeque restaurant and the strip center that is to the south of it, which is all 
located north of 32nd Street from the subject property.  This is the gap at the 32nd 
Street intersection where you can see the entire building that exist today including 
their signage which is mounted at approximately no higher than 20 feet.  This is 
again the gap at the entrance to the building where you would be able to see the 
building once again if you drove along Rock Road and this is north of the …

TAPE CHANGE

But there is one other gap where you would be able to see a building located at 
this site.  This is the materials that the applicant submitted.  They are 
reproductions. I am not exactly sure how they prepared them.  You have copies of 
these pictures in your packet.

RUANE:  Let's wrap it up.

KNEBEL:  Okay, do you not want me to discuss this?

RUANE:  Let's bring it to a close.

FOSTER:  It is all new information.

KNEBEL:  These pictures show in this location here a 30' sign that says Dick's.  
It is not very clear in any of the material, but you can sort of see it there.  These 
don't reproduce very well on slides, but you have them in your packet.  In this 
particular location is a 30' tall sign that says Dick's, which you can see from Rock 
Road.  In this picture some of the trees and DQ block it.  In this picture again it is 
clear as you look to the east and then here it is blocked by the DQ partially.  Here 
it is clear as you look between the DQ and the strip center that is located to the 
south of it, and then the strip center as you look directly onto it blocks the sign in 
the next several pictures.  

This particular diagram here indicates the height in which the sign would need to 
be mounted were it to be visible over the out parcels.  The base of the sign would 
need to be over 70 feet high in order to see the sign at all.

RUANE:  Over 70 feet high?

KNEBEL: Yes, over 70 feet high at the base.

RUANE:  And this application is for….

KNEBEL:  Is for 38'6" that is correct.  I can go into as much detail as you want 
on the staff report here.

RUANE:  Would it be new information because as we thought about it we were 
all here last time this matter was discussed.  Randy Phillips was not here but since 
he is abstaining there is no reason to have a remedial group approach us.

KNEBEL:  Okay, it is up to you.  I assume you have all read the report.

RUANE:  How do the rest of you feel?

KNEBEL:  There is additional information that was provided by the applicant 
and….

RUANE:  I am sure the applicant will be quick to point out additional 
information.

KNEBEL:  Sure, and it is referenced in the staff report and is responded to as 
well in there.

FOSTER:  Scott, on the drawing that you have there, in other words, are you 
saying that motorist passing on Rock Road would be unable to see the sign 
whether it is 38 ½' or 43' wherever any of these buildings are.  In other words the 
only place that you would see it would be an opening in between.

KNEBEL:  That is right.

FOSTER:  The only height to satisfy this would be 73'?

KNEBEL:  That's right.  The only place you would be able to see it would be at 
the gaps, and it is way back there.  But as I showed previously the NorthRock VI 
theater has signage about 20' which is even visible in those gaps at that height.

RUANE:  Thank you Scott. Christian you are up again.

ABLAH:  Thanks, and thanks for the opportunity to be heard again.  Scott, did 
you have some of the other information that I had sent on the slides that we had 
sent you, as far as it showing the 38'?

KNEBEL:  This is all I received.  All the slides that you gave me showed 30'.

ABLAH:  You didn't receive the 38'?

KNEBEL:  All the ones that you gave me had said 30'.  I guess there is one slide 
here that says 38' you might pass that around, I think that is the only one that you 
provided.  The rest of them showed 30'.

ABLAH:  Are you sure?

KNEBEL:  Yes.

RUANE:  Just as a point of order.  What are you guys talking about?

KNEBEL:  That particular picture that he is passing around to you.

ABLAH:  I feel I provided more information.

RUANE:  It is the difference between 30' and 38' feet is what this picture shows 
us?

ABLAH:  There was about six others that should have been presented maybe 
they weren't but I think that were hand delivered.

KNEBEL:  There were additional pictures that you provided but they all said 30' 
on them.

ABLAH:  The 70' or 73' that is just something I wanted to point out, that is 
something that staff…

RUANE:  Keep it going don't let them distract you.

ABLAH:  I am sorry I appreciate that.  The 70' or 73' that is something that staff 
had put together that was not something we put together.

RUANE:  I understand.  Just make your presentation.

ABLAH:  How much time do I have, is there a limited time?  Because if I know 
what I have to work with I would be happy to cooperate.  Three or four minutes 
maybe?

RUANE:  Five minutes per bylaws.

SKELTON:  Is that right, isn't ten minutes, Dale?

RUANE:  I let staff run over, so if you need to I will let you run over as well.

MILLER:  Applicant's usually get 10 minutes.  He has that much time left unless 
you want me to start it over due to the confusion.

ABLAH:  I am fine with that unless something runs over.

RUANE:  Let's start with that.

ABLAH:  Happy to do so. You know when we talked and when I visited with 
staff one of the things they said they really wanted me to look at and you know I 
tried as hard as I could to get their support unfortunately we were not able to.  I 
think maybe I challenged them a little bit, but obviously we didn't get to where 
we wanted to go.  But, what they wanted me to do was to really take a hard look 
at the five conditions of uniqueness, etc…

So as far as uniqueness if you look in the handout that I provided on Letter (A)  
This is a single use or special purpose building.  Currently this is obviously a 6 
screen theater which would be replaced by a more of a traditional type use.  The 
change in use would be more of a "walk up retail" as opposed to a "destination 
point."  

This is a new market that Dicks Sporting Goods again, that I would like to repeat, 
about 125 store chain that want to enter into this market.  The brand name and I 
am sorry that there is not more than I think what Mr. Foster has in front of him 
now.  The difference between 38' and 30' is tremendous in the eyes of the tenant.  
From different angles from what George Lay and ICON signs put together 
showed that, and it is not in here as it should be.

KNEBEL:  Just for your information, I did pass around everything else that you 
gave me and the Board members if you can tell me it does, all except for the one, 
does say 30' at the bottom.  Is that not accurate?

RUANE:  Yes.  So do we believe that the 30' at the bottom is a mistake and it is 
really 38' or what?

KNEBEL:  I don't know.

ABLAH:  There was suppose to be a comparison between 30' and 38' is what 
they were supposed to have.

RUANE:  They are not, but we have to go based upon the record submitted 
today.

ABLAH:  Understood.  The letter "B" as far as whether this is to adjacent 
property owners.  I did have one call of somebody who objected but I will tell you 
that from talking with staff and talking with the neighbors from Wal-Mart 
Supercenter, Petco, Hollywood Video, Barnes & Noble that whole area, the 
synergy of what a retailer like Dick's Sporting Goods brings to this area, if it 
effects adjacent property owners, it would not.  I think it would be positive even 
for similar type of sporting goods.  There is that, I think you mention Jim you 
have a child, you would like to see this.  You would like to be able to go and have 
options.  I don't want to try and put words in your mouth, but I think you made a 
comment about how one would like to have choices so as far as adjacent property 
owners. I don't think there is anything toward where it negatively affects them I 
think.  It is more of a positive role.  

I am just going to read a little bit about what we had on letter "C".  Through 
extensive efforts to market and develop its brand name, Dicks Sporting Goods has 
become a successful, privately held, 125 store chain based in Pennsylvania.  The 
increased height request is imperative to operate a successful business.  Dicks has 
recently opened 5 stores in Kansas City and one in Topeka. In Topeka, the 
signage height on the building is 43'.  

Again, I think I will just kind of touch back on that as far as what they bring and 
what they typically like.  The like to have their pro-typical size, height, and they 
like to develop their brand name when they are in a market.  Again, I would like 
to talk about the concession where they do plan on the letters being smaller.

I also wanted to point this out and show you and I hope it is not a "lame" or 
makes it more of a "lame" presentation.  I think it is obviously extremely simple. 

RUANE:  My foot is still in my mouth.

ABLAH:  Well I think it is a very simple thing we are talking about height.  What 
is the height of this ceiling?  Can everybody give me an answer right now what it 
is?  That is just an rhetorical statement.  My point is that I would like to have 
some healthy discussion at the appropriate time just quickly when we are talking 
about roofline and that type of thing.  All we are talking about is that this is the 
building height.  This is the sign.  This is the letters of the sign, and what we are 
talking about is simply the height that this is on the building.  This is the building. 
This is the sign height.  Where does this lie?  What we are talking about now is 
this being down a little bit and this going into the appropriate height that we have 
talked about.

I would like to have just some healthy discussion with all of you all about it, and I 
can just tell you after the September 11th attacks and in between when we first 
started this and now.  I think it was August 28th when we did the first BZA case 
that was denied.  They came back and said we are not doing any stores so send a 
letter to the landlord.  We are not going to do anything.  They came back and said 
that was just kind of a hold off.  They are going to do 12 stores for this year and 
that is it.  They have 125 in the country, and they want to come to Wichita and 
they want to look at the eastside.  They want to do stores in this market, east and 
west, but they want to pin down the eastside.  

One of the questions that Marvin had, and I might like him to discuss this, was 
when I was talking to him and trying to get his support and was not able to do so I 
asked about, he asked me the question about whether Dick's was going to go out 
to the west if there was a denial for them going out to Slawson's development at 
21st and Maize if that had anything to do with height?  He had a call into the 
landlord out there.  So I think that perhaps, and again I am not putting words into 
Marvin's mouth by any chance and I am not alluding too, but perhaps there was at 
least a thought process of is this something that we would like to see in this 
community?  I would like to remind you.

RUANE:  Let's address that?  Is there going to be a Dick's store in NewMarket 
Square?

ABLAH:  No.  They want to do the east location first, and then they will do the 
west location.  They want to enter this market with two stores.

RUANE:  Do they understand what their sign limitations would be at that 
location west?

ABLAH:  Yes they do.  

RUANE:  And they would still be willing to do that store?

ABLAH:  They turned that site down, so signage never came up on that site.  We 
have not been able to focus on a west side site until this happens.  That is right 
where they are at.  

I remind you and remind you all that as citizens of this city and when I went to the 
DAB and when I went to Pisciotte, and when I went to people all that I am trying 
to do is get something passed that I believe in that is simply something that I 
never thought would come to a second meeting or getting into all of these 
different things.  We are talking about something that is very significant to that 
retailer in penetrating the market, and until they can penetrate the market the way 
they want to, that is the way they are going to be.  

I am going to be with them tomorrow in Chicago at a convention, and I don't 
know what steps they are going to take.  I have had different members of staff 
say, probably if they don't get this they are still going to come back and do this 
deal anyway.  If they don't get the height, they are still going to do the deal.  I 
think you made the comment Jim "I want to be able to shop at Dick's".  My point 
to you is if you want to talk to Dick's, and I am sorry for the lame presentation 
and I am sorry for the mistake and I mean it we don't have slides that show the 
height difference.  All we are talking about is height.  What is the huge deal when 
the building can be 45 feet anyway.  We want this to be a 38' high sign.  
Everybody can argue under the sun and tell what that means. I can tell you that 
from the retailer's perspective it is imperative that they get what they want from 
what they have lead us to believe.  I would be happy to have more discussion with 
the Board.

RUANE:  Let me say something right here.  I did use the word "lame".  You have 
my apology.  My observation is that 2 months from now when you were here the 
Dick's people were not here.  You did have your engineering consultants here 
trying to support you and helping you and you did a valued job.  You have done a 
zealous job here today all on your own with visual aides that are not prepared to 
represent what you thought they would prepare for you, and "lame" has nothing to 
do with your abilities or your commitment to the job.  It is just my personal 
feelings that we have spent as many hours as we have already spent and staff has 
spent as many hours as they have already spent over the difference between an 8' 
tall "D" and a 9' tall "D".

ABLAH:  I think that is the whole point.  To the tenant it is extremely important, 
especially when coming into a market to get that brand name.  That is all they talk 
about.  Their apologies are they're not to be here, and I encourage and I knew that 
had come up before.

RUANE:  So "lame" communicate to Dick's and communicate to Austin Miller 
but don't take it personally.

ABLAH:  I am thick skinned and I could care less.  I am just giving you a hard 
time at the same time.

RUANE:  I deserve it.  We have some members from the audience that wish to 
speak?

FOSTER:  I have a question for Mr. Ablah.

RUANE:  Yes, if you have a question, you may ask it now.

FOSTER:  Mr. Ablah, If a person is viewing this sign between buildings on Rock 
Road, what difference does it make between 30' and 38'?

ABLAH:  That is a great question.  I wish I had the other drawings that illustrated 
that, because I promise you we are not all doing this to waste everyone's time, if it 
appears that way.  We are doing this because it is something that is adamantly 
important to the tenant and there is a difference sir, between not at all points but at 
different angles, where at some points 38' is a big difference as far as the 
visibility goes compared to 30'.  I would argue that I am sure that at some point 
that 73' is the drawing indicated that may be correct at that particular point, but 
there are other points along there probably about 8 of the 38' where they were 
more visible at that point then at the 30 feet.  Does that answer your question?

RUANE:  Any other question for Mr. Ablah?  Does that answer your question?

ABLAH:  If that answers your question sir, I encourage you not to just say no just 
because you want to say no.

FOSTER:  All I am saying, what is the difference between 30' and 38' when you 
are looking through 2 stores looking down a corridor to look at this?  Are we 
talking trees being in the way?

RUANE:  As a quasi-judicial body if you know and have the answer to that 
question you may offer it yourself Bickley.

FOSTER:  I don't know the answer.  I am just trying to see what his point is.  
Are you coming back because people can't see it at 30' between two buildings?

ABLAH:  That is part of the reason.  Yes, at certain points they cannot be seen at 
30'.  The other thing that I didn't mention that was touched upon, that Scott 
touched upon, the existing theater sign that is there now has a Northrock 14 and 
Northrock 6, and the Northrock 14, as we stated before, would stay right where it 
is.  The Northrock 6 a portion of that sign would be shared by Dick's Sporting 
Goods and some others, so their signage on the monument sign has also reduced 
quite a bit.

RUANE:  That came through on some of the materials.  I don't know which one.

FOSTER:  Thank you.

RUANE:  The Spanish inquisition is now over.  You need to come up introduce 
yourself.  Give your address for the record.

TIM GRUBE, GOLF DISCOUNT, 3300 N. Rock Road, Wichita, KS:  Our 
main objection to this sign is that it is bigger than the law allows.  We think it 
also, from certain views, would detract from our sign, and if they are allowed to 
put up a sign bigger than what is allowed by law then we would come back and 
address the fact that we would be allowed to put up a bigger sign as well.

Also, speaking with Mr. Ablah, he had the understanding that everybody, all the 
other retailers and so on and so forth around there were in or behind this, and we 
certainly were not just simply because of the sign issue.  So that too kind of 
bothers us a little bit that he was under the understanding that we are behind it, 
and we certainly are not just simply because it is bigger then the law allows, and 
if we are going to comply with our sign being within what the law regulates, why 
should they not?

RUANE:  Questions?  Do we have anyone else for comment?  We will bring it up 
for discussion here on the bench.  I would rather not begin this discussion.  

FOSTER:  Mr. Chairman, I would first like to apologize to Mr. Skelton.  The 
material presented in my opinion does not show that the letters would be smaller, 
but by comparing what they gave us the last time and this time the letters are 
smaller.  We would not know it from what material he had given us today.  It 
merely spoke of the height of the letter, not the size of the letters.

SKELTON:  That is fine Bickley.  I thought I heard Christian state that.

FOSTER:  Mr. Chairman, I think that the staff has done even a better job in 
terms of presenting their arguments about this.  A study by the City in terms of 
the intensity of operation of Rock Road, this is getting to be a problem the cost of 
that road improvements and so forth, is tremendous, and now we are talking about 
we need more and more retailer on this site.  

Secondly, I would say that you could see this sign from 30' or 38' or 43'.  You 
can see it at 30' between these buildings.  I went out and looked at it, and I 
suppose you might have a few tree lines, but you can still see that there is a sign 
there and an idea that Dick's is there. I don't think that the idea that we need to 
have signs that we see from the interstate.  I think even last time they determined 
that they did not need a sign from the interstate road itself except they wanted on 
the off ramp.  I have been on that ramp many, many times, and you are lucky to 
get off that ramp and glad to do it.  The idea of looking around for signs, I don't 
think people would do that very much there.  I have been there many times for 
eating on that side of town.  

I think the point that it sets a very bad precedent that people can go out, and that is 
what bothers me the most, is that people can go out buy a building or rent a 
building whatever the case may be here and put up signs that make-up the 
difference between buying an area to the back or the front.  I think when you buy 
it to the back, Wal-Mart didn't go out front the others did. Wal-Mart is the largest 
retailer in the world and they don't mind being back there with a sign that is less 
than 30'.  

I don't see any need to do this Mr. Chairman. I don't see anything new, and in 
fact, I think that the point of the staff that the 73' illustration is a very good thing 
to show that no matter how high they went you could never see it.  That was one 
of the arguments last time that at 43', my impression was that they were talking 
about seeing it, so 43' wouldn't even see it from Rock Road.  I see no advantage 
to the public and public policy by doing that.

RUANE:  Are you comfortable in putting that in a motion?

FOSTER:  I don't know that we have it in front of us here.  I don't have the 
standard forms.  Is it in the book here?

SIMMERING:  Yes, in the back of the book in front of you.

FOSTER moves ROGERS seconds, that the Board accept the findings 
of fact as set forth in the Secretary's Report and that five conditions 
set out in the section 2.12.590 (b) of the City Code as necessary for the 
granting of a variance have been found not to exist and that the 
BZA2001-00050 variance be denied.  

RUANE:  Discussion or has all of the discussion already taken place?

SKELTON:  Discussion of the motion?  I have none on this motion. 

RUANE:  Discussion of this motion is all that is appropriate at this time.  Call the 
question.  All in favor of Bickley's motion to deny the applicant request please 
indicate by voting.

VOTE 3- 3 (1).

Motion fails, vote 3 to approve denying request, ROGERS, FOSTER, 
RUANE.  Vote 3 against motion to deny the case SKELTON, PITTS, 
TIDEMANN.

RUANE:  The beat goes on.  I am not sure exactly what happens from here.

FOSTER:  The vote fails now.  You have to have 4 votes to pass.

MILLER:  You have to have 4 affirmative votes to take an action.

RUANE:  Thank you for your patience.

ABLAH:  So what does that mean then?

KNEBEL:  No variance granted.

ABLAH:  It is dead right?

RUANE:  It is dead, but your efforts were valiant, and please have anybody who 
you want call me and I will vouch for that.  The next item is #3 Case number 
BZA2001-00051 Variance to allow reduction of the side yard setback from 6' to 
3' for a garage workshop.  The applicant is Donald R. Govan.

PITTS:  I am not too sure we did the right thing on the last case.

MOSHIER:  The gentlemen has already left, but I think to close the record have 
somebody from the winning side that was opposed to Bickley's motion make a 
motion to accept it and have that vote taken because there is not affirmative tie 
vote which fails.

MILLER:  It takes 4 votes to accomplish an action.

MOSHIER:  I know that. I think we are probably all correct, but that 3-3 vote but 
I don't think you can assume that I think you need to make…

RUANE: That makes perfect sense to me, but I thought I was advised otherwise.  
Tell me what to do, and I will do it.

MOSHIER:  Somebody who voted in opposition to Bickely's motion I suggest 
maybe make the motion to grant the variance.

RUANE:  And we vote that down.

MOSHIER:  I don't know how that is going to go but if it goes 3-3 then what 
everybody said to Mr. Ablah is correct.  It's failed, and he is done.

FOSTER:  Mr. Chairman, I am not absolutely sure of this because I haven't been 
on for a year and half.  My recollection is that you have to have 4 to pass this 
motion to do it and it is...

RUANE:  But out of an abundance of caution I am deciding we are doing what 
Doug has asked, because it will take us less time to do it any other way.  

MOSHIER:  Let's assume that they would like to appeal something, what do 
they have to appeal?  They have a moot vote on a denial.  They don't have any 
action on their application.

RUANE:  You do not need to persuade me.

MOSHIER:  Somebody needs to make a motion.

RUANE:  Tell someone that voted against what to do, and have them do it.

MOSHIER:  Make a motion that they have met all five and that you move to 
grant the variance for 38'

SKELTON:  So this would be a motion to approve the variance with the findings 
other then those stated in the secretary's report. 

SKELTON moves, TIDEMANN seconds, that the Board accept the 
findings of fact as follows; and that all five conditions set out in 
section 2.12.590 (b) of the City Code as necessary for the granting of a 
variance have been found to exist and that the variance be granted 
subject to normal conditions set by the secretary. 

1.)  I will move that the property is unique because it is a single-use 
multi-purpose building and it will have a total change in use.

2.) The adjacent property will not be affected because other 
properties that are adjacent to Rock Road do not suffer the same 
setback off of the main right-of-way as this business does.

3.) Strict application of the provision of the zoning regulations may 
constitute unnecessary hardship because of the location and setback 
from Rock Road and other nearby streets.  

4.) Granting of the variance will not adversely effect the public 
interest because providing this variance will give Dick's a greater 
incentive to locate at this area.  

5.) Granting of the variance would not be opposed to the spirit and 
intent of the ordinance because it does not detract from the character 
of the this retailer area whatsoever.

MOTION TO ALLOW VARIANCE 3-3 (1), moot vote.

Motion fails, vote 3 to deny allowing request, ROGERS, FOSTER, RUANE.  
Vote 3 to approve allowing the request, SKELTON, PITTS, TIDEMANN.

DONALD R. GOVAN, Property Owner and Applicant, 2101 N. Madison:  
After reading and re-reading the Secretary's Report…

RUANE:  You are going to have to speak more into the microphone, so we can 
all hear you.

GOVAN:    Excuse me. I said after reading and re-reading the Secretary's Report 
I believe that there were some misunderstanding and inaccuracy and since this is 
all new to me maybe I didn't adequately express myself to him.  To the best of my 
knowledge and ability, all of the proposed site plan, which you have in front of 
you, and the information are consistent and true.  I am here now because of the 
importance of this to me.  

After spending a great deal of effort and money to comply and correct an issue 
which I never knew existed before, he stated before that, I built. I did not build 
this.  All I simply did in this was replace the rotted siding.  When I bought this 
building, the home, and when I moved into it, I have been using the garage that 
was existing at that time. It had siding on it and it had windows in it.  I was not 
aware of any problem about it.  When I recently replaced the siding on it, no 
sooner then the very day after the siding was put on was when I was contacted by 
Central Inspection.  At that time I became aware about the issues with the 
structure.  I had no knowledge previously about this.

RUANE:  Let me interrupt you with a question. Did you pay cash for your house 
or was there a loan involved?

GOVAN:  I paid cash.

RUANE:  So there was not any title inspection or survey or anything like that 
done prior to the acquisition of your house?

GOVAN:  No sir, I personally paid for a survey when the fence was installed.

RUANE:  That did not suggest to you any of the setback or other problems that 
we are talking to you here about today?  

GOVAN:  I was not made aware about anything like that.

RUANE:  How did the survey show these improvements relative to the location 
of the property line?

GOVAN:  The survey that I asked for was just for fencing.  So basically I was 
informed that where the property line would be and that I should be at least about 
3 inches my side of it or more.  That was basically all of the information I was 
given in relation to the fencing.

RUANE:  Is that lattice type work fence that is in the foreground of this slide the 
fence that you were talking about?

GOVAN:  Yes sir.  That and on the other side of the property.

RUANE:  So you understand that fencing to be your property line per the survey?

GOVAN:  Yes sir.

RUANE:  Thank you very much.  Continue on please.

GOVAN:  In reference to the Secretary's Report about the background, I did not 
construct the north side addition.  It was already there.  I did not know of anything 
wrong with it.  I purchased this property back in 1979. I moved into it, I believe 
mid-80. I have been using the structure there for a garage and for storage for some 
time.  Again, like I mentioned, the siding on it had been rotted because of the age 
of it, and I replaced this.  Then, once I was contacted by Central Inspection, I 
went down there on many, many occasions so I could comply with what they had 
made me aware of at that time.  Central Inspection had referred me to this 
Department before they would issue a permit, because I tried to get a permit at 
that time.  

It is not my desire to keep the structure as is but instead to reconstruct a finished 
legal building as proposed before you.  Again it was suggested to me by Central 
Inspection not to do anything more until I was finished with this Variance request.  
The proposed site plan shows the actual intended finished structure as per Code as 
I understand it with the requested 3-foot setback only.  The existing structure will 
not remain.  As I indicated in the attachment this and other financial burdens have 
resulted in my phone being cut off and my deteriorating condition.  

In reference to the adjacent property, I have visited with all of my neighbors and 
they know me well.  I am very neighborly in my community.  I visited with all of 
them and they visited with me. None of the affected adjacent residences on the 
north side or any of the surrounding homeowners has had any complaints or 
problems with what I have done to my knowledge.  The people to the north is Mr. 
Sullivan and Mrs. Schooler.  They have indicated with me that they like the 
improvements that I have been making continually in the neighborhood.  

I am willing, in what he mentions as the extra firewall requirements, I am willing 
to upgrade my property to whatever these requirements may be.  My obvious 
physical handicap is registered hardship, and it necessitates minimizing the 
distances walked to and from any part of my structure with good ingress and 
egress.  Once again, the finished structure will accommodate this handicap and 
hardship and will be accessible.  A detached structure will add top great an 
additional distance and cost.  

Judging from all of my surrounding neighbors and their comments and my 
experience, I am not aware of any adverse effect to the public intent of the 
regulations.  What I have proposed before you, I believe and I pray, that the 
conditions are present to allow the requested Variance.

RUANE:  Thank you very much Sir.  Are there any questions for the applicant?

TIDEMANN:  On the site plan showing the garage workshop, I think there is 
some confusion here.  That was not built by yourself, the addition?

GOVAN:  No sir.  The only thing that I did to that was just replace the siding that 
was already rotted.  I did not build it.  It was already there.

TIDEMANN:  That was there when you bought the property back in the 80's?

GOVAN:  Yes, what you have before you, that is how it will be.  

TIDEMANN:  So you are going to remove that structure, that existing off-set 
structure, and build a new one per this?  You are not going to do that, obviously, 
until you get the Variance of the 3-foot setback versus the 6-feet, correct?

GOVAN:  That is correct.  That is why I am here.

RUANE:  So you are requesting to back it 3-feet away, back from the property 
line?

GOVAN:  Yes sir. I am sorry if I did not explain that clearly before, but this is all 
new to me. I had no knowledge of any of this.  I have never been through 
anything like this before.

PITTS:  Mr. Govan, was that all enclosed in when you purchased the property?

GOVAN:  When I purchased the property, it had windows and it had a door on 
the front.  The door was also very rotted, and it was a custom door.  It is not one 
that you can just go buy anywhere.

PITTS:  It had windows where?

GOVAN:  It had windows all the way around it.  It had windows in the door, in 
the front. It had windows on the side.  It actually had more windows than present 
now.  I actually reduced the window area.  

RUANE:  Maybe I am asking this question to staff.  What am I missing here 
folks? 

MILLER:  Based on the new information?

RUANE:  When you had to pull a building permit to put the siding on, did that 
convert it from a porch to an attached garage, or how did we get to where we are 
here?

MILLER:  I don't know how we got from where the siding or whatever to here. 
But I guess I can say in an effort to try and save time for the Board is that based 
on this new information that we are getting, we can support the request as shown 
on the site plan.  We can find that it is in compliance with the standards that you 
need to find in order to make it work, but a lot of this is new information to us.  
Two of us have talked to the applicant before, and apparently we are talking past 
each other about what the situation was, because neither Scott nor myself 
understood exactly what was going on until today.

RUANE:  It sounds like something I can get behind, now that I understand that 
the staff report had some bad information that went in.  In particular, the drawing 
at the end on the last page is hardly relevant to what the applicant really is seeking 
to do, right?

KNEBEL:  No, I think the site plan is what the applicant wants to do.  It is just 
not what is constructed.

RUANE:  After these improvements are made, because he is going to shave 3-
feet off of that building leaving a full 6-feet between he and his neighbor.

KNEBEL:  Nine-feet, actually.

RUANE:  Nine-feet and that is the reason why his neighbor is in favor of it.  
Therefore, I am in favor of it, and I make a motion to that effect.

FOSTER:  Can we go through the procedures though?  We have not closed the 
hearing yet. 

RUANE:  I am running out of patience if that is not clear.

FOSTER:  I am glad to see that Mr. Govan is patience with us.  I am sure that 
there has been a misunderstanding here, and I hope he understands that.

GOVAN:  Yes sir, and I apologize.

FOSTER:  Well, I think it just happened.  I am just wondering, is there anything 
in this backyard other than the handicap that prevents putting a detached garage 
back there? Are there trees there?  I see a tree there.  Is that on your property or 
the neighbors property?

GOVAN:  The trees are primarily on my neighbor's property, and they need 
trimming real bad.  In years past, these trees have caused me roof damage, which 
is one of the reasons why I was reluctant to use the backyard.  The backyard also 
has a grading problem. It is not severe, but from time to time with a hard rain 
there are water problems.

FOSTER:  Is there a foundation? What kind of foundation is in this building 
already? Do you want to reuse it? Is that the idea here?

GOVAN:  Yes sir.  Actually this structure here is way over built according to the 
Code, and from all of the information that I have received, it is way overbuilt.  It 
has a footing as well as a foundation, and it is on a slab as well.

FOSTER:  I think you said the magic word for me, Mr. Govan, and I appreciate 
your patience in this, and it looks good to me Mr. Chairman.  

PHILLIPS:  What was the magic word Mr. Foster? Just out of curiosity. 

FOSTER:  Well, he has a foundation there, and so forth. He would have to 
remove a foundation to put it in the backyard.

PHILLIPS:  And what assures you that foundation is there?  Just speaking 
technically?  

GOVAN:  Your pictures show it Scott?

KNEBEL:  I don't know that I would have any pictures that show it, no.

PHILLIPS:  I just remember some of the discussion from the last case when 
things were presented and things were obviously contested.  But, here we have a 
photograph, and you are accepting the fact that there is a foundation simply 
because someone says that? Without knowing that for sure? I guess I am just 
wondering what convinced you so easily on that?

RUANE:  Now, without splitting hairs.

PHILLIPS:  I am not contesting that.

RUANE:  But as an architect could a driveway constitute a foundation?

PHILLIPS:  No.

FOSTER:  No.

RUANE:  No, wrong answer.

LAUGHTER

RUANE:  Scratch that question and answer.

PHILLIPS:  Believe me, my point is not to contest Mr. Govan, but to say that 
there is a foundation there wholly on the fact that we have already heard that he 
did not build this.  He has no evidence that there is a foundation there looking at 
the photographs, and looking at the pictures it is hard for me to figure out what 
the word "overbuilt" means.  I think what he is doing is the right approach, so I 
think it would be hard for me to say that there is a foundation or is not a 
foundation until someone went down there and actually dug a little bit down in 
the ground to see if it actually goes beyond 6 or 8 inches in the ground with some 
concrete there.  

GOVAN:  If I am respond?

PHILLIPS:  Sure.

RUANE:  Please.

GOVAN:  The concrete is newer then the structure.  It is not resting on the 
concrete itself.  It has its own separate pylons and footing.  The footing is 18 
inches deep, and had I known, I would have brought pictures of that.

PHILLIPS:  Well, I think the best bet for this case is for us to hear the merit of 
what the application is.  Obviously those kind of issues will be dealt with by 
Central Inspection before a permit is issued, because, if you were going to provide 
a new structure there in compliance with the Variance request here, then there will 
be construction standards and Codes to be met.  But 18 inches does not comply, 
just for what it is worth. I don't want to argue the technical issues of the 
construction of that. I just want everybody aware of the fact that if there is a 
foundation there, we don't know and we can't say and we shouldn't accept that 
can be used one way or the other.

RUANE:  That is a very good point.  Thank you.

PITTS:  At this juncture, I am not to sure what relevance it would be for us 
granting or denying the Variance, if whatever he does is going to do it per plans 
and get the approval of Central Inspection.

PHILLIPS:  Exactly, that is my point. The technical aspects of it have nothing to 
do with the case, so I just didn't want somebody to take that as wrong 
information.

RUANE:  Those are very good points.  What is staff's input?  What is the most 
efficient means to see that this goes forward because it does not sound to me as if 
it needs to come back to us, period, unless we somehow request it come back to 
us.

MILLER:  Correct, if there is a motion on the floor, we can work on findings that 
would be consistent with your recommendation. If you were to recommend 
approval, our current findings are not for that, but we would have to work on 
those and present those to you or else do it here on the spot, whichever one you 
want to do.  But we could work on those.  Present those to you at the next 
meeting.

RUANE:  What is your preference as to the most efficient means to proceed?  
Because I think that we have a motion that has not been seconded.

KNEBEL:  I think the most efficient way would be for the Board to make 
findings of fact that support the approval.

PHILLIPS:  I am willing to make the motion on that.  Do we have a motion on 
the floor?

RUANE:  We have a motion on the floor, which could die for the lack of a 
second or could be withdrawn.

FOSTER:  I just said it looked good I did not make a motion.

PHILLIPS:  I would be happy to make a motion.

RUANE:  I thought I got the signal from Rose that we did have a motion.

SIMMERING:  I thought Ruane made the motion but I did not get a second.

RUANE:  So did I. I withdraw it.  Now there is not a motion on the table, and we 
need findings of fact motion from the Board.

SKELTON:  John has a question.

ROGERS:  Mr. Govan, in your letter that you signed you addressed the issue of 
this being a garage?

GOVAN:  Yes sir, the finished product, that is what it will be.

ROGERS:  Do you feel like the 9-foot garage works as far as getting in and out 
of a vehicle?

GOVAN:  I would prefer more, but the way that it exists and the way that I have 
been using it for the last 20 years, it was tough getting in and out without all the 
space provided.

ROGERS:  That is my point.

GOVAN:  So, yes, it will be difficult, but it will be manageable.

ROGERS:  That would have a garage door there?

GOVAN:  Yes.

SKELTON:  Not according to the site plan.

RUANE:  How do you get a car in there?  How can you get an automobile in that 
structure now?  

GOVAN:  I can't right now, but when it is finished, it will have a door on it.  
What happened is, I left for a time when the workers were present, and they didn't 
have a door to put on it. I told them it had to be secure, so the face on there is just 
a temporary face just to keep it secure.  The neighborhood I live in, I have been 
broken into several times, so I need it secured.

RUANE:  So you want a garage door, frankly?

GOVAN:  Yes sir.

PHILLIPS:  As a point, a standard residential garage doors typically are 8 to 9 
feet wide, a standard car stall according to city standards is 9 feet wide and you 
will find situations where they are allowed to go 8 ½ and even 8 feet wide, so his 
situation is very feasible.  Obviously if he could have the 12 feet it would 
probably work better for his situation, but obviously Mr. Govan here is willing to 
comply.

RUANE:  In terms of accommodating your disability, saving steps is what does 
you that best?

GOVAN:  Yes sir.

RUANE:  Are you following your Doctors orders?

GOVAN:  I have had surgeries on my left knee, my left calf, my right thigh, my 
right heel, my back, and it is very painful for me just standing here right now.

RUANE:  You are welcome to sit down if, you would like right now.  You are 
welcome to take a chair if you would like.  So we need a motion for findings of 
fact so that we can at a one stop deal with this fully.

PHILLIPS moves PITTS seconds THAT THE BOARD FIND THE 
FOLLOWING FACTS TO EXIST: 

1.	THE PROPERTY IS UNIQUE BECAUSE MR. GOVAN 
BOUGHT THE PROPERTY AND HE INHERITED THE PRE-
EXISTING SITUATION THAT IS NOT COMPLIANT.

2.	ADJACENT PROPERTY OWNERS RIGHTS WILL NOT BE 
ADVERSELY AFFECTED BECAUSE HE HAS DISCUSSUED 
WITH THE ADJACENT PROPERTY OWNERS THE 
SITUATION AND THE MERITS OF THIS AND HE IS GOING 
TO IMPROVE THE EXISTING SEPERATION FROM 6 FEET 
TO 9 FEET.

3.	STRICT APPLICATION OF THE PROVISIONS OF THE 
ZONING REGULATIONS WOULD CONSTITUTE AN 
UNNECESSARY HARDSHIP GIVEN HIS PARTICULAR 
SITUATION WITH HIS PHYSICAL DISABILITIES AND THE 
MERITS OF THIS CASE.

4.	THE GRANTING OF THE VARIANCE WILL NOT 
ADVERSELY AFFECT THE PUBLIC INTEREST BECAUSE 
HERE WE ARE GOING FROM ONE SITUATION INTO AN 
IMPROVED SITUATION WITH THE PLAN THAT HE 
WANTS TO PROVIDE WHICH WILL ALLOW BETTER FIRE 
DEPARTMENT ACCESS.

5.	THE GRANTING OF THE VARIANCE WOULD NOT BE 
OPPOSED TO THE GENERAL SPIRIT AND INTENT OF THE 
ZONING ORDINANCE BECAUSE HE IS IMPROVING ALL 
THE SITUATION FOR NOT ONLY HIMSELF BUT FOR THE 
NEIGHBORS.

RUANE:  Any further discussion on the motion?

COX:  If I may. I normally don't butt in too much; however, some Board 
members know that have been here a while know, that occasionally I do. Over the 
years we have occasionally put on certain conditions.  In a case like this it is very 
common that we would add possibly a condition, if Mr. Phillips wishes to require, 
that all necessary permits be obtained prior to construction and possibly a sunset 
date of one or two years, unless that causes the applicant a problem.

PHILLIPS:  No, not a problem at all.  In fact, one of the conditions that I thought 
about applying here but I think your issue with permits would be as long as all 
local Codes are complied with and that any permit is pulled on this within a 
certain amount of time in regards to construction.

RUANE:  Who made the second on this?

PITTS:  I did.

RUANE:  Would you consider that a friendly amendment?

PITTS:  Yes, I would accept those amendments.

RUANE:  Any further discussion?

FOSTER:  I wouldn't even bother to change the motion, but it would be 
somewhat difficult to put this in the backyard. I know what it is like to have a tree 
back there and try to do this, and so that is part of my thinking as well it is not just 
the handicap situation.

RUANE:  So try and give me a feel for where you want to go with that.

FOSTER:  I just want to make a point. I don't want to amend the motion.  But, if 
I were doing it I would just point out that there is some difficulty in putting a 
detached garage in the rear portion.

RUANE:  So let's consider that discussion on the motion rather than a change to 
the motion.

KNEBEL:  Did the motion include a time limit? Is that what I am picking up?

RUANE:  Yes, a time limit of 1-2 years, you guys need to pick.

COX:  Only if Mr. Phillips thinks it is appropriate.

PHILLIPS:  Do you have a time frame for this project Mr. Govan?

GOVAN:  Recommend 1-2 years that is fine.

PHILLIPS:  I think we need to pick one.  We can go with 2 years or 24 months 
from the date of the approval or the permit or the Variance?

KNEBEL:  The Variance.

RUANE:  So, I am not going to ask you to read back the motion Rose.  The first 
nice thing that I have done in the last hour and 20 minutes, I guess.  Let's please 
call the question.

MOTION CARRIES 7-0.

RUANE:  Thank you for your patience and sorry for keeping you standing at the 
microphone for so long.  J.R. Cox you are up, report from Central Inspection.

COX:  I have no report for this meeting.

KNEBEL:  We do have some housekeeping items to bring up.  As you can see, 
there are some changes in the room here.  They are modifying the City Council 
Chambers, and the City Council will be meeting in this room and they meet on 
Tuesday mornings.  We are suggesting that you move your meeting time from 
1:30 p.m. to 3:00 p.m. to accommodate that, if that is acceptable to the Board.

RUANE:  On Tuesday still?

KNEBEL:  Yes, it would still be on the fourth Tuesday assuming that the 
Wichita Eagle publishes the next ad.

RUANE:  I will have a conflict ever month.

KNEBEL:  Actually it will be just the month of December because there are no 
applications for November.

RUANE:  What is the date in December?

KNEBEL:  The 18th I think.  Does anybody have a calendar?  It is not the fourth 
Tuesday in December because that is Christmas.

RUANE:  So it is the third Tuesday?  I can't do it on that day.  However the good 
thing is that just because I am not here does not mean that you all can't have a 
very good meeting without me.

FOSTER:  Do we have an item for December?

KNEBEL:  The applications are not due for another three weeks so we don't 
know at this point.

FOSTER:  What date in December?

KNEBEL:  December 18th.

PITTS:  We will not be having a meeting in November?  

KNEBEL:  That is correct.  There are no applications.  We could have a special 
meeting just for the Bylaws, but I didn't figure anybody would want to do that.

SKELTON:  Is the meeting closed?

RUANE:  I would entertain a motion to adjourn.

	SKELTON moves PHILLIPS seconds to adjourn meeting.

MOTION CARRIES 7-0.

MEETING ADJOURNED at 3:30 p.m.

RUANE:  We will see you on the 3rd Tuesday in December at 3 p.m. I will likely 
not be here.
BZA MINUTES                   OCTOBER 29, 2001                    PAGE 40