BOARD OF ZONING APPEALS Minutes February 1, 2000 The special meeting of the Board of Zoning Appeals of the City of Wichita, Kansas, was held at 1:30 p.m., on February 1, 2000, in the Planning Department Conference Room, Tenth Floor of City Hall, 455 N. Main, Wichita, Kansas. The following Board members were in attendance: BICKLEY FOSTER out at 2:30 p.m. (approximately), FLOYD PITTS, DAVE BABICH, JOHN ROGERS, JAMES SKELTON, and BRADLEY TIDEMANN present. RANDY PHILLIPS was absent. The following Planning Department staff members were present: Secretary, DALE MILLER, Assistant Secretary, LISA VERTS and Recording Secretary, ROSE SIMMERING. Also present were J.R. COX, Office of Central Inspection, and DOUG MOSHIER, Law Department. PITTS: Call this special meeting to order which is necessitated because of a lack of quorum at our previous meeting, which I think that has been reactivated perhaps for future because of the addition of a new meeting. I am going to ask the recording secretary to call the role of the members and introduce our new member. SIMMERING: (Completes task.) PITTS: We do have a quorum so we are now in session. 1. Case No. BZA 01-00, GSA, INC., c/o Gary L. Smith, pursuant to Section 2.12.590B, Code of the City of Wichita, request a variance to reduce the side yard setback from 6 feet to 2 feet on property zoned “SF-6” Single Family Residential on property legally described as follows: A complete legal description is available for public inspection at the Metropolitan Area Planning Department, 10th Floor, City Hall, 455 North Main Street, Wichita, Kansas. Generally located south of 29th Street North and west of Tyler Road. VERTS: Presents slides and staff report. This is a variance request to reduce the required side yard setback from 6 feet to 2 ¼ feet. I want to change that in your staff report. That was an error on my part it should say 2 feet 3 inches or 2 ¼ feet. BACKGROUND: The applicant is requesting a variance for a decrease in the required side yard setback from 6 feet to 2 feet three inches for a residential lot in the Bradford North Addition. Currently, the house on this lot is under construction; it is completely framed and entirely closed in. In the process of the construction of the home to the north, it was discovered that the home in question was built within the required building setback. A further survey confirmed this, as is shown on the survey submitted by the applicant. This survey shows that the rear corner of the north wall angles into the setback to a maximum of 3.75 feet at the rear of the home. The applicant states that, originally, the footprint of the home was rotated to align with the front street right-of-way and the angle of the homes to the south. This rotation put the home at an angle to the north property line, but in line with the south property line. The rotation was miscalculated, thus the protrusion of the home into the setback. The surrounding uses are essentially singe-family residential, except to the east; the rear property line of this lot is adjacent to a platted reserve that contains a lake. ADJACENT ZONING AND LAND USE: NORTH “SF-6” – Single-Family Residence under construction SOUTH “SF-6” – Single-Family Residence EAST “SF-6“ – Platted Reserve/Lake WEST “SF-6“ – Single-Family Residence UNIQUENESS: It is the opinion of staff that this property is unique inasmuch as the lot is somewhat “pie-shaped” in that it narrows to the rear of the lot. Additionally, the side yard building setback requirements, in addition to safety and access, are intended to allow light and air circulation for two adjacent structures; in this case, there are no windows on either home that face the shared property line in question. ADJACENT PROPERTY: It is the opinion of staff that the granting of the variance requested would not adversely affect the rights of adjacent property owners, inasmuch the adjacent property owner has access between the two structures, there are no windows facing the home in question, and the existing separation meets Unified Building Code and Fire Department standards. HARDSHIP: It is the opinion of staff that the strict application of the provisions of the zoning regulations may constitute an unnecessary hardship upon the applicant, inasmuch as the protruding portion of the home is one of the main exterior walls. Denial of this request would require the removal of the structure and foundation. This structure is more than one-half completed; reconstruction would be a major expense. PUBLIC INTEREST: It is the opinion of staff that the requested variance would not adversely affect the public interest, inasmuch as no public utilities or rights-of-way are being infringed upon; all public utility easements are being honored. SPIRIT AND INTENT: It is the opinion of staff that the granting of the variance requested would not be opposed to the general spirit and intent of the zoning regulations, inasmuch as the spirit of the Unified Zoning Code’s requirements for side yard setbacks are to provide air and light circulation and to maintain “curb appeal” and consistency in residential areas. All of these are being met with the existing building separation. RECOMMENDATION: Should the Board determine that all five conditions necessary to the granting of the variance can be found to exist, then it is the recommendation of the Secretary that the variance to decrease a rear yard setback be GRANTED, subject to the following conditions: 1. The site shall be developed and required to comply with all building, zoning, and landscape code requirements, except that the side yard setback shall be reduced to 2 feet three inches. This setback reduction shall apply only to the structure shown on the site plan approved by the Board of Zoning Appeals. 2. The applicant shall obtain all local permits necessary to construct the indicated structure and all construction shall be completed within one year following the BZA approval of the variance or resolution unless such time period is extended by the BZA. 3. No windows or additional structures shall be added to the north wall of the existing structure. 4. The resolution authorizing this variance may be declared null and void upon findings by the Board if the applicant has fails to comply with any of the foregoing conditions. VERTS: I would be happy to answer any questions. FOSTER: Could you show the two houses again please? VERTS: From the front or the rear? FOSTER: Looking straight on. I am sorry, the picture that you had that showed, with your arrow, the houses close to each other. The one that you were referring to windows and so forth. VERTS: Well you can see this one and I will go back to that one as well, but you can see on this one actually both structures having no windows adjacent to the property line. That would be the last picture that we are referring to and this would be looking from the rear of the property out towards the front. FOSTER: Isn’t that a window on the left there? VERTS: This is a bad angle, this is a bay window. The actual wall that we are talking about angles back towards the left. It is an odd angle to be looking at, but that is a bay window that juts out of the back of the house. FOSTER: So this is from the back and not from the front? VERTS: Correct. FOSTER: Thank you. PITTS: Any other questions for staff? BABICH: When were you notified about this discrepancy? VERTS: I was notified or I was made aware of the discrepancy, prior to the application actually being filed, by the neighbor. At that time I told the neighbor to the north that he actually needed to call OCI to verify any non-compliance in the existing building. It is my understanding that that was done. And after that point the applicant submitted his application. PITTS: Any other questions for staff? FOSTER: How much overhang, is allowed in that district? VERTS: Overhang on the eaves? I believe it is two feet but maybe Dale could check that for me. AUDIENCE: SHOWING SOMETHING. VERTS: Eaves that do not project more than 2 ½ feet into the required setback are features allowed within setbacks. FOSTER: 2 ½ feet? VERTS: Correct. FOSTER: The house that is over is the one on the right on that picture? VERTS: No. The house that is over is the one shown on the left. FOSTER: On the left. Does it have any overhand? I see something up there. VERTS: There is projection of the roofline over the exterior wall but it is not over 2 ½ feet. I do not know what the exact measurement is. Eyeballing it I would have said about 18 inches. FOSTER: We are only talking about 2 feet 3 inches for the setback and you are saying that it can be 21/2 feet overhang? VERTS: Yes. FOSTER: Is it over the setback? Is it over that 2- foot setback? VERTS: Is the projection of the eave over? FOSTER: Yes, the projection of the eaves, does that extend over the complete 2 foot 3 inches that we are talking about? VERTS: From my estimation no. I did not drop a line from there, but eyeballing from standing back here no it did not project over the property line as I am guessing where you are going with this. FOSTER: It projects into that two feet? VERTS: It projects into the two feet or the corner of the building, but it does not project over the property line. FOSTER: It is very possible that it may fill the entire 2 feet? VERTS: I do not think that it is a 24-inch overhang. FOSTER: We can ask the applicant. VERTS: Ok. PITTS: Any other questions for staff? Thank you very much. We will ask the applicant to come forward please, or his representatives. Please identify yourself for the record. JOHN REALS, ATTORNEY FOR THE APPLICANT: The applicant is here today and in beginning I would introduce who else is with me. Mr. Jim Gardner, is to my right who is a professional real estate appraiser. To his left is Gary Smith who is one of the principals in GSA, Inc. who is the applicant here. To his left is Mark Savoy who is with Savoy, Ruggles, and Bohm, P.A., Surveying and Engineering. You want me to proceed now? PITTS: Yes, please. REALS: Before I get started I would like to pass out a handout that I have already shown to Doug Moshier who is here from the City Attorneys office. I also gave this to Ms. Verts in response to your questions about the overhang issue. The section that I am going to provide to you is Section I and it deals with, in addition, without any variance, what else is allowed in these areas? PASSING OUT INFORMATION SOME CHATTERING GOING ON. REALS: What I have given to you is out of the Wichita-Sedgwick County Unified Zoning Code. These are all items, matters that are really allowed in this area. I think the first thing that we need to do in describing or discussing this is to identify really what we have here. This is not a case where GSA, or Mr. Smith’s or the house in question, 2722 N. Keith is on the adjacent property, Mr. Vu, I believe is the adjacent property owner. This is not on his property. The only problem that exist here is about running feet of the foundation sits within the setback. But, the house itself is constructed entirely within the property of the or the surveyed property of the applicant’s, where the house is being built. I know that you will examine it and I will refer to it now. In essence we believe that the secretary’s report, adequately and legally deal with the issues and the considerations necessary for granting this particular variance. I think it is very important to note that when this project was begun or at least when the house was built and I think the secretary’s report reflects this. This is rather oddly shaped piece of property, the adjacent property, the Mr. Vu’s property, did not have anything on it. It was a vacant lot. I believe that Mr. Smith, in the process of trying to figure out how to get the house positioned on it, inadvertently put or staked a small portion of it. As I said, what we are really talking about here is a piece or part of the foundation approximately 8 feet in length that is in the setback. But that piece of property, or that structure or the structure that we are talking about, is clearly on the property that Mr. Smith procured the building permit for. The situation in this case is that this particular piece of the property, as the secretary Ms. Verts has described to you, this house is essentially built. As you can see from looking at it, for the last 60 days it has sat looking basically looking as it looks now, or I am sorry the last 30 days, this piece of property has sat just as it appears now. When Mr. Smith was informed of the problem, he talked with Central Inspection and there is some, or if there is any misunderstanding about he procured permission from them to secure certain parts of the work that needed to be done. There were certain things, you just can’t leave a hole in the wall when some of the other windows are up. So, I suppose by agreement with Central Inspection he completed those necessary parts of the construction project and then stopped. We believe and I believe on behalf of Mr. Smith and GSA, Inc. that you as a Board have the authority based upon that which is contained within the Secretary’s Report to grant this variance. I know Mr. Smith has informed me as far as the recommendation goes that he does not have any disagreement with those. Just as Mr. Vu has complained, Mr. Smith has someone who is going to move into this house. I believe that from a legal point of view and as far as the equities are concerned, and others can address any other issues that may come up as it relates to other diminishing of value, or whatever effect having this 8 feet of this foundation on their property can deal with. I will be happy to answer any questions. As I said when I began that I really request at this time that the Secretary’s Report be approved and that this variance be granted so that we can conclude this project. I will be happy to answer any questions. PITTS: Any questions from the bench for Mr. Reals? FOSTER: When was this discovered? What date was this discovered, by the applicant? REALS: I beg your pardon? FOSTER: When was it discovered? On what date, by the applicant? REALS: According to Mr. Smith, it was sometime, he can answer this question himself it you want him to present his part of it. Basically it was discovered in December. I think it was discovered, I can tell you how it was discovered, as far as I know, I believe that when Mr. Vu’s foundation person began construction of his foundation, that he made reference of it to Mr. Vu. Mr. Vu then began the processes of determining if in fact it was. Mr. Smith did not know it until he was told. When he was told of course he began the processes of trying to comply with the law. FOSTER: How far along was the house at the time that this was discovered? REALS: The house was basically, and we can go back and look at the pictures, the house is at it sits now. Some of the windows were in and some were not. There was some construction material on the ground, I believe maybe some of the heating and air conditioning systems but the house was as Ms. Verts has described was essentially constructed, it was framed and it was closed in. FOSTER: The lot next door was vacant at that time? REALS: Correct. The foundation and the exterior walls were clearly completed prior to the beginning of the construction of the Vu house or the Vu property. FOSTER: It was discovered when the adjacent property owner builder was before they started their foundation? REALS: I believe the foundation construction organization or individual came out to begin the process of examining it or staking it or maybe it was already staked. I do not know. But, at that time the foundation construction person or organization noticed it and then they either got a tape measure or they went and talked to the builder. I believe Clinton Miller is the building on the Vu property and at that time I think Mr. Vu then contacted someone to look into it and then eventually Mr. Smith was notified. FOSTER: During that time did the house on the right on this case continue to be built? Knowing that there maybe a problem? REALS: As soon as it became apparent that there was a problem, Central Inspection obviously became involved in it and they ceased and desisted. But, this property other than what was allowed by agreement with Central Inspection. REALS: Correct. The Vu property continued construction. FOSTER: In your opinion did they know of this setback problem and they continued building? REALS: You mean the house next door not, Mr. Smith? FOSTER: How should we refer to the house next door? Give me a name or something else. REALS: Well we will call this the Vu property and this is the Smith property. FOSTER: But the Vu property continued to be built? PITTS: Mr. Foster, I think perhaps we may be well advised that the Vu’s are here and are represented. REALS: But, I can answer that question, yes. After, as far as I know, after this problem was discovered the Vu’s continued construction of their property. TAPE JAMMED TAPE CHANGE PITTS: Any other question for Mr. Reals? MARK SAVOY – SAVOY, RUGGLES & BOHM, P.A., ENGINEERING & SURVEYING – 9224 NORTH MAIN, WICHITA, KS 67203: There was another question asked and I made another exhibit. I guess I should have given it to Lisa at the same time. As to whether this structure would even fit on this lot at all, had the site plan been made on it, we just took this same structure and rotated it around to a position to show that the house would fit on this property if rotated slightly. < Passing out site plans to the Board.> I would be happy to answer any question that I can. PITTS: Now with the addition of this item on this Mr. Savoy? It runs right up to the property line, is that correct? SAVOY: I think that it states on the site plan it is two or three inches clear of the property and that was the question as to whether or not that it actually went over the property line or not. And it is within the bounds of the lot. FOSTER: Mr. Savoy, may I assume that, did you stake the property and put monuments or bends in? SAVOY: I believe that we set the four property corners of this property initially. FOSTER: May we assume that you did not stake the house itself. That the builder did that? SAVOY: We did not stake the house. FOSTER: Are you aware of, who laid the house out or the location? SAVOY: No, I am not. PITTS: Any other questions for Mr. Savoy? BABICH: This one that projects the house as being able to fit on this lot, was going to be my question originally, and then we have the one where it does not fit. My question is, were either one of these exhibits made as part of the presentation to the Architectural Control Committee, or to the neighborhood? SAVOY: Mr. Smith asked us to locate the structure, once he new that it was to close to the property line he wanted to know how close it was. So the exhibit of the existing conditions was for that purpose and was to be a part of his request for variance. As far as I know that was the purpose of the request. BABICH: So that was the first time that an engineering drawing was presented on this lot as the house sits on it? SAVOY: Yes, as far as I know. BABICH: After construction? SAVOY: Yes, after construction. PITTS: Thank you, are there any others present to speak for the applicant? Seeing none. Is anyone present to speak against the request? Please approach and identify yourself for the record. RANDY PARKER – 8401 E. 101ST N., VALLEY CENTER, KS 67147: I am a friend of Mr. Vu. At the meeting were there was not a quorum we had passed out and left one packet of information, has everyone on the Board had a chance to review that? Are there any questions on that? After the title page on that, the photograph identified as number one is a view from the rear of the homes with the Smith constructed home on the left hand side and the Vu’s on the right. There is seven foot four inches (plus or minus) between the closest points of the roof on that property. I know that Mr. Smith had brought up a point that cantilevered home construction could be 8 or 8 ½ feet, neither one of these homes are cantilevered construction, but I do not see how that is a relevant point. Would it help to go through these for the record? PITTS: Do you have anything specific, one that you would like to bring to our attention? PARKER: No, I think I would like to start back with more of the closing portions of it. We have tried to address each one of the five items that Mr. Smith was to state in his application for a variance. PITTS: Please, proceed. PARKER: We are concerned. Mr. Vu has seen work going on inside of the house after the house has been closed off. They weren’t just at a point where the home had to be closed off for weather proofing and for protection of neighborhood kids and things. So, I would like to just ask a question to Mr. Smith, did he have personal in the house after he had it closed in for the weather? PITTS: Let’s just address the bench, please. PARKER: I would like to drop back to the conclusions. Zoning ordinances exists to properly locate homes adjacent to property lines, that is one of the reasons. It is not rocket science to locate a home on a irregularly shaped lot. GSA, had many changes to detect a setback violation and failed to do so. I feel like right now that some of the questioning seems to be placing the burden on the Vu’s, because their house is properly located and their home did go ahead with construction after that setback violation was detected by Mr. Vu’s builder. I believe that his builder did have a surveyor locate his home on the lot to insure that the home was properly located. But the fact that his home went on to be built, to me, is not relevant to the issue here at hand. The GSA home is improperly located. It is not just a couple of inches that we are talking about, we are talking about a major piece of, 67 percent of the setback is gone. You can not take that retaining wall out because of the lay of the land, you are going to have problems with soil retention and erosion. The only person who benefits from this is GSA. The homeowner that he will sell this house to will have to live with this house being located too close to the property. The Vu’s will have to live with this house being close to the property. Granting this variance tells homeowners in general that ordinances really do not protect them and that any builder can get a variance if he makes a mistake. This is not a case where GSA came before the zoning office and said, “I would like to locate this home on here. This is a plan that my people want to build and I would like to have a variance so that I can move into the setback area by four feet, approximately.” Then he could contact the Vu’s and ask if this s an acceptable option and talk to the neighborhood association is this acceptable? Did not have that chance. This after-the-fact reactive type of situation to me is quite different, then if somebody came up before hand. This variance hurts, as I said before, the homeowner as well as the neighbors. Mr. Vu has had a conversation with the perspective homeowner and it is our understanding that there has been a financial adjustment made to the price of the home. So if there is no damage done because the home is miss located, if there has been a financial adjustment to me that is a significant item to take into account to. I think that it is important that the Board of Zoning Appeals remember that the people in the neighborhood are the City and the County. You still have to be able to get your fire, police protections, and things like that in there and you want your visibility things. But, it is the people in this neighborhood that have paid premium prices for these lots, looked for lots to build on and really want to live there. They want these zoning ordinances to be enforced so that their property values are protected. I had a question, “could the home fit on the lot,” and the surveyor provided that information. But we request that the zoning variance not be granted, because we feel that there were plenty of chances for this to be detected by GSA during the construction of the home, at points in the construction where the home plan could have been adjusted to bring the home back into compliance. We do not see that there is a reason. We could have put a string line on there and came up closer than four feet for the setback. We are requesting that the variance be denied. PITTS: Thank you very much. The Board may have some questions for you. FOSTER: Mr. Parker, do you know how far over the eaves are on the Smith property? PARKER: We do not have an eave measurement. There was a plumb bob dropped from a stick from the corners of the roof and the approximate measurement is seven foot four between the two homes. I believe from the one time I was out there that the overhangs looked to be about the same on both homes and if we have a corner to corner distance I think it was 10.7 feet. But if we were to take off subtract the 7.4 from that and divide equally, then we could come up with the approximate overhang dimensions. FOSTER: Let me see if I understand what you are saying. Are you saying that the eave at the distance between the two eaves on these two houses are 7.4? PARKER: Seven foot four. Approximately. So if you were to drop a plumb bob a the closest point where the roof lines come together, drop a plumb bob down and then measure the distance in between, we are talking approximately 7 foot 4 inches. FOSTER: Trying to equate it to the drawing. You have got a setback according to Mr. Savoy’s survey of 8.37 and we have 8.43. PARKER: Mr. Savoy would have to answer but I am assuming that the 8.37 is at the forward corner and the 8.43 feet dimension is at the rear corner of the house. The Vu house, the side wall being approximately parallel to the property line. FOSTER: Do you know how much overhang there is on the Vu house? PARKER: Well again, do you Mr. Vu? MR.VU, 9100 E. HARRY, WICHTIA, KS 67207: It is about 1 foot and 3 inches. FOSTER: 1 foot 3 inches? PITTS: He is saying approximately 15 inches. FOSTER: I am just adding all that up. Mr. Chairman I do think that we do need to ask Mr. Smith some questions in regards to the overhang here. It seems to me that their overhang is very close to the 2 foot involved here, the distance between them. It is certainly a question that needs to be determined. PITTS: You think we may be able to complete the questioning or information that the applicant may want to give us prior to the time that we bring Mr. Smith back, is that alright? Are there any other questions for Mr. Parker and Mr. Vu? SKELTON: Was there any consideration given to try to move the house over any at all? Or was that not a possibility? PARKER: Which home? The Vu home? SKELTON: Yes, the Vu home. PARKER: Well, the Vu home was located by a surveyor according to what Mr. Vu has shared with me. I do not see how the burden, he has already accepted more than a six foot burden on the variance anyway. So, the fact that he is building his home legally and in accordance with the zoning ordinances. He does not have an unlimited amount of property on the other side. We do not have a house location drawing for that lot. We could provide that to you. SKELTON: So there was no consideration given to that, is what you are saying? PARKER: I can not answer that question. But, I do not think that it is his burden to move his house to maintain the twelve-foot separation distance. I think the burden is on Mr. Smith, with the home that is improperly located, not on the Vu’s. They are already taking on more than the six-foot burden anyway with the dimensions that you have under consideration. PITTS: Any other questions? ROGERS: I would like to know when Mr. Vu became aware of this situation. And also at what point was his home at, at that time, as far as the construction. VU: I would like to answer this question. When I build my house and my builder notified me that ok that the house next to me that they are set right on the property line. Probably he said they are crossed by a little bit. At that time I come out and I see that the house next to me is still building it. I call Mr. Ray Sledge of Central Inspection, and he said he would put a red tag on it. He did. Next time I see the house next to me is still being built. I then called Mr. Ray Sledge again, and I talked to him and he said he already put a stop work order on it and he did not know why he is still building it. Then I called Ms. Lisa Verts, a couple of times and told her that I was concerned about this, why Central Inspection says stop work order but the house is still being built. I called Mr. Ray Sledge many times and he says you call me everyday, I said no sir I call you just about two times a week. I called him and he said that he already stopped him. At one time the house that he built on and worked on Saturday and I came by and asked the worker in the house that I got air conditioning system and electrical system. He built on it and he worked on it as much as he could. He believes that he can get variance. I call many times, Ms. Lisa Verts concerned about this issue and asked why this stop work order was not being complied with. ROGERS: Unless, I misunderstood you, I still do not know what the date is approximately that you discovered this problem and at what point was your house at as far as the construction? VU: When my builder let me know. At that point I do not know, Mr. Smith he get a surveyor to put a pin on his four corners but at that time I do not see anything in there. I do not know what he does with that. My surveyor, he point in four corners his pin and flag and say property Lot 1, Block 3, so ok my builder got surveyor and he look at my house with the property line and the zoning code. At that time I discovered it when he looked at my house and he told me at that time what he discovered that the house next to me was miss-located. PITTS: Any other questions for the applicant? Thank you very much, anyone else in the audience to speak in opposition or in favor of this variance? Mr. Smith would you please come back to the podium? I think Mr. Foster has some questions. FOSTER: Mr. Chairman, I do not think that we have gotten the answers that should be answered here to really to look at this question. We do not have a timeline. I would still like to know how many overhangs do you have on your house? SMITH: It is a standard 12 inch side overhang on the cable end of the house, which is pretty much standard throughout the city. FOSTER: Twelve inches into the two foot three inches that we are talking about? SMITH: That is correct. FOSTER: What was the state of the house, when this matter was brought to your attention? SMITH: The Vu house had not even been started, our house was approximately 75 to 80 percent framed, at the point we were ready to dry it in. When we found out about it, the Vu house, their basement foundation person was staking out their lot was our first notification that this had occurred. Their house had not even been started at that point. I think that addresses the two situations that had come up there. FOSTER: What kind of work was done after you were notified? SMITH: Once we were notified, Ray Sledge called me and asked if we were at a point that we could square it up and dry it up. I told him that we were in rough end stages and that we needed to complete the roof and the windows to dry it in and so we could eliminate deterioration. We have not sided the house, we have not installed the house, we have left it at that point, exactly where he allowed us to finish up. Which is approximately two, three, four weeks ago. Now, there may have been some people working out there on Saturday, I do not know. But, they were only doing the work that we were allowed to do. FOSTER: Does the inside have all the electrical connections? SMITH: The electrical roughs, tying the loose ends, the heating and air, and the plumbing which all have to do with the rough ends. FOSTER: They were put in prior to you being notified of this? SMITH: They were in stage. FOSTER: Could you explain that more? SMITH: Yes. Central Inspection told me that we could square the house up, as they call it, complete the sections that we were finishing and dry it in. Which is exactly what we did. FOSTER: You mean if you had started making connections to a heating unit you could go ahead and finish it? SMITH: Well you do not leave equipment unplumbed on a house for reason of breaking and entering and thief’s and things like that. There is thousands of dollars of equipment laying around that house with material, windows, and heating equipment and that type of thing. We were allowed to do that much, yes. PITTS: Any additional questions from the bench for the applicant? BABICH: Mr. Smith, how long have you been in the residential home building business? SMITH: We have been licensed contractors in the City of Wichita for six years now. I have been in this occupation all of my life. BABICH: Did you ever ask for a variance under these circumstances or similar circumstances before? SMITH: This is the first. I might also note one thing that was brought up about the distance between the house. We did have a licensed surveyor, Mark, come up. If you will note, the back portion of Vu’s property is 8.43 off the line ours being 2.25. That equates to 10 feet seven inches net footage apart. They were referring to something in the nature of 7- ½ foot apart. They are in fact 10 foot seven inches apart. BABICH: He was referring to the roofline at the 7 foot 4 inches I think. PITTS: Of course it should be twelve. SMITH: Correct. FOSTER: How far apart are the roofs, Mr. Smith in your opinion? SMITH: Pardon me. FOSTER: How far apart are the eaves? SMITH: If we are setting at 10.66 apart or 10 foot 8, we will round it off at that back closest point then the houses themselves should be approximately 8 foot 8 inches apart at that point. FOSTER: You have heard them say 7.4. SMITH: Impossible. Their house alone is 8 and 5/8ths off the line; 8-5/8ths less 1 foot, 7- 5/8ths. So, the figures clearly show by the licensed surveyor exactly the measurements. FOSTER: What would happen if the setback is not granted in terms of, can the house be redesigned? SMITH: No. You are talking about a main structure wall. You can’t just go in a tear out one side of it and remove it. You would in essence have to remove the entire structure. The encroaching part, which is on that back corner which comes up the line approximately 8 foot at that point we reach the full requirement. You are talking about a major financial consideration to remove the house. FOSTER: When was the stem wall built? SMITH: It was poured at the time the foundation was put in, our foundation. It also states in here that the stem wall, which can go into the side setback is clearly four and 1/8 inches off the property line. FOSTER: Who laid out the location of the house? SMITH: It is typical that we have our foundation people lay that out, which they did that day and they strung the line, is what they did is that they strung the wrong line, if you would look at the illustration, had they strung the right line that house would have fit properly. The mistake that was made, they did not notify me, Central Inspection passed off on it and nobody knew nothing about it until such time the Vu’s house was started. FOSTER: Are they sub-contractors? Or is that your company people who did it? SMITH: That was a sub-contractor that staked our house out. That is typical, most of the basement people, stake out their own basements. FOSTER: Are they experienced people? Have they done this before very often? SMITH: Nells Foundations, which is Brian Nell, which, I guess is the largest foundation company in the city. BABICH: You mentioned that the City inspection signed off on it. But isn’t it true that they are not signing off on the placement of the house? That is not their responsibility? SMITH: They are suppose to check setbacks and they clearly signed off on it. If you will look in the packet it is in there. BABICH: Well, they signed off on it, but they do not sign off its placement. They do not come out as a surveying company and survey what you have surveyed and verified your placement. SMITH: No, they do not do that. Their responsibility is basically is to check that our setbacks are within the proper lines. BABICH: How do they do that? SMITH: Suppose to do it by measurement. I can not really answer how that did that at this point. Obviously they made a mistake also. BABICH: That is my question. I do not think they have any responsibility to the placement of the house. You can not rely on City Inspection for the placement of the house. SMITH: That is exactly correct. There are cross checks, if we do make mistakes, they inspect the house all the way through, they inspect houses at footing, foundation, and setback. They also check house at electrical, plumbing, and heat and air and they also inspect house in rough frame stage and then they come back for final inspection for criteria. So at any time, any conditions are not met, we are stopped and corrective procedures have to be made. BABICH: I think all of that is true except in regards to the setback. They do not measure those is my understanding. That is not a part of Central Inspection. NOISE EVERYONE TALKING BABICH: Is there an architectural control committee in Bradford North? SMITH: Yes. BABICH: What is their role in this? SMITH: There has not been any role. I have not been contacted by architectural control of Bradford North concerning this issue. BABICH: The unfortunate thing with this Board and this petition in its present form is that we vote to accept or we vote reject this. To be honest, on a yes and no vote, I am in my own mind recognizing who is the victim here. It seems like there should be some recourse to the victim that is other than up or down. We could be moving that wing wall; you cannot buy any property, because there is none available. You can’t buy their setback and still satisfy setback. And we have not offered the victim in this any compensation for what they have been put through. All you have asked for, and correct me if I am wrong, is a variance by the Board of Zoning Appeals for the mistakes that have been made on that property. SMITH: That is correct. PITTS: Any other questions for the applicant? SKELTON: There is some concern from Mr. Vu about, if they remove the wing wall that there might be some erosion or this would lead to a irregular landscape. I believe that you would have to remove that if the whole structure was going to be removed because there would not be any way to reattach it or integrate it into a new structure would there? SMITH: That is correct. It is part of the existing foundations. Steel tied into it and everything and it is also on footings. REALS: With all due respect, I think we need to, this is not a court. As Mr. Moshier, probably knows better than I what I am talking about. I think that it is important to maintain a focus on exactly what has occurred here. This is an organization, Board was created to try to deal with the technical aspects of problems that pop up. I do not think that anybody would disagree, I do not believe that anybody believes that Mr. Smith set out to create his own appeal. Nobody would want to that, it doesn’t make any sense. Mr. Smith is not a large construction company, this is a substantial investment he has. There are guidelines that this Board utilizes in making decisions. Those guidelines I believe have been addressed in the various portions of the Secretary’s Report. With all due respect to Mr. Vu, it is not uncommon for mistakes to occur in the construction business. It just happens. I do not believe that Mr. Smith has a long history, I believe Mr. Smith that this is his only journey to this particular Board seeking this type of relief. Mr. Vu, became aware that there was a problem, and I would like to address this Mr. Babich, in response to his statements to Mr. Smith. Unfortunately in this particular matter the question on how to resolve it and the opportunity between the Vu’s and Mr. Smith was lost. I agree in some cases I have been messed up in situations where there have been surveying accidents, or the people came out and flat out built places on the wrong property, or A through Z. I know that you hear these matters all the time. The time to try to deal with that was really when the accident, and error was made. I think what I am hearing today from Mr. Vu is that there was nothing constructed on his property, it was a vacant lot. If something, we are looking back in time, we can’t now undo the fact that both of these people have built houses. Now, something else one tends to lose track of in hearings such as this, that is this space that we are talking about was never intended to necessarily to be empty space. This is not an easement, this is not common grounds and if you look at that, and that is why a passed out that portion of the Code. It deals with the utilization that can occur within this space. If you look at this fireplaces, staircases, I suppose staircases coming down from perhaps elevated patios, and that sort of thing. This was never intended necessarily to be X number of empty space separating these parties. The various utilization’s for this space are contained are set out such as (e) bay windows, (f) eaves that do not project more 2 ½ feet, I mean there is (h) chimney, flues, ventilating ducts that do not project more than 2 feet. This is not meant to be the separation between the properties. This is not God’s country. This can be used for other uses and in this case we are not talking about a house that are two houses are setting next door to each other. This is an angulation that occurs between the Smith house and Vu house. What we are talking about here is the closest point not a ongoing point. If you go back to the pictures that Ms. Verts had on for the front of these properties I think it is pretty clear that it is a angulation, they angle down. Again, no one started out to create a problem. If you want to review the pictures I am sure you certainly can. No one started out to create problem, unfortunately, it is a problem that has to be dealt with and these houses need to be completed. Thank You. FOSTER: Your point about the features allowed within a setback. What you are not saying is they are allowed within the six feet. REALS: That is correct. FOSTER: I think that point should be made. That these things are allowed 2 feet within 6 feet not within 2 ½ feet. REALS: It is within all of the space to be considered setback. I agree. My point, sir, was not to, I do not disagree with that, what I am saying is that it is important to bear in mind that if there is a six foot setback or six feet of setback, part of that 2 ½ feet of that can be used for overhangs, for roofs, or staircases. I do not disagree with what you are saying, my only point was that this was not necessarily empty ground between the properties. Fences can be constructed. FOSTER: To help clear up one of the other points that you are making, and I think we may need the City Attorney Office to help answer this. We have some new members here that have never heard a case in their life. One member this is his first day here and so forth. REALS: Sometimes you get real lucky. FOSTER: I just want to clarify the fact that we are not a court. But we are a quasi-judicial body of the State Statutes. Would you confirm that for me please, Mr. Moshier? MOSHIER: I am sorry, what was that? FOSTER: That this Board is a quasi-judicial Body. MOSHIER: Correct. FOSTER: We are not a body of equity such a court might be or a civil court, is that correct Mr. Moshier. MOSHIER: You can not do equity. You are constrained by what you can do by the Statute. FOSTER: I just wanted to make that clear. We have new members here that maybe impressed by the fact we are not a court to decide equity. REALS: I agree with Mr. Moshier, that was my point. His statement and mine are parallel to each other. What I am saying is that this Board has certain rules and regulations and conditions for determining if something, a variance should be granted, they are set out and they have been addressed in the Secretary’s Report. FOSTER: And you would agree maybe that these five items are the things that we are to direct our attention to, would you agree with that? The five questions? REALS: Yes, I believe that to be the standard. You are talking about uniqueness, adjacent properties, hardship, public interest, and spirit and intent, yes I agree. PITTS: Thank you very much. I am going to ask a question of Mr. Moshier or perhaps staff, if you can help me out a little bit on how we address a variance of consideration for approval of a variance if the defective situation is created by the applicant. MOSHIER: I think that is the first issue. The question in this case, is what does that mean? If you take it very literally, then this case would not be eligible for a variance. But if you took it literally the vast majority of cases that came here would not be eligible and so I do not think that is the way this Board has interpreted and I do not think that is what is required by the Statute. What the first consideration is: The variance requested arises from such condition which is unique to the property in question and which is not ordinarily found in the same zone or district; and is not created by an action or actions of the property owner or the applicant. In this case, it’s clearly created because the house was built the way it was built. It is my opinion that the issue here is more appropriately was it done intentionally or was it done with knowledge when it was done that it violated the zoning regulations. I believe if the Board found that it was done mistakenly, and without knowledge that it violated the zoning regulations, that you could find that that conditions did in fact exist and was satisfied by this applicant. But I think that is an issue for the Board to deliberate and decide. PITTS: Thank you. Any other person to speak? PARKER: We seem to be making GSA the victim here. That they made this mistake and they are going to suffer. When GSA sells his home, he is gone from this neighborhood, and the homeowner that he sells it to as well as the Vu’s, the neighbor on the other side, the people live across the street, the neighborhood association, they all know that this variance has been applied for. They all have to live with this for the rest of their lives. The Vu’s looked long and hard to find a lot that was by a lake, that had an open area on the side of it. It is my understanding that there is a drainage area immediately to one side of their house and then there is an open area for the future for this development a pool, a commons area. So, they had a lot of nice space on that one side. To make any assumption that it was their responsibility to not build their house because GSA had miss-located their house, I think is just wrong. There were plenty of opportunities to correct this, an irregularly shaped lot, if we could have, could you please bring the slide back up that shows the number of lots. If you look around this development, there are very few from what I can see rectangular at a right angle corner lots. The number that have non-parallel sides is significant in here. If you are going to build it on a lot I think you have to understand where the property corners are, and in a simple matter even with the slope of the land a string that you ran from one corner to another and then moved back and forth would have been enough to establish the general line. Again, if this was two, or three, inches or five inches, I do not think this would have been an issue with the Vu’s. The Vu’s have an investment; it is not just GSA’s significant investment in a home that he is under constructions. The Vu’s are building their dream home, as everybody is trying to build when they are building a new home. They plan to live there a long time, maybe the rest of their lives. It is not an insignificant thing that we should overlook the Vu’s investment in this. The Vu’s have a right to expect that their rights as far a zoning ordinances are protected. The ordinances exist; Central Inspection does have to sign-off for the setback as well as the foundation work. Now, I do not expect them to go out and survey, but GSA has a responsibility as the prime contractor there, if he hires a sub-contractor that he’s letting stake out his foundations and they do not do it correctly, ultimately he is responsible for that. He is the overseer of the work. The fact, the comment was made well the Vu’s could put up a fence, in a lot of these neighborhoods they have an neighborhood association group, portions of their fence have to be open bar fencing because they are adjoining the lake. Now, if you are trying to do a privacy fence, you certainly don’t build an open fence, maybe they do not want a fence at all. So, a solution that seems very nonchalant to GSA is not something the Vu’s really want. I would like to have consideration for them and for what is going on for the other people in the neighborhood and not just GSA as far as his investment. Because he is gone once he closes on that house. Thank you. FOSTER: Mr. Parker, I think we raised this question before but I do not know that we have answered. How much space is there on the other side of the Vu house? PARKER: I do not have an answer to that sir, we could provide that to the Board. FOSTER: The Vu’s do not know this at this point? PARKER: Not to my knowledge. VU: Let me answer this question. Ok, I signed a contract with Mr. Glen Miller. I own the lot, really I own the lot now. Why I have to pay the market place at this time, I put all my money into it. FOSTER: Let me interrupt you. I have a bit of a time problem, so I have to ask you a question. How much space is there on your other side? How many feet? VU: Probably like it is located right up the middle up the lot. So it is probably equal on the other side. This side 8.3? PITTS: I don’t think he really knows. VU: I really do not know. Because Glen Miller, he located my house, but I guess I asked him to locate it in the center of the lot. FOSTER: Did you move your house over two feet more to try to compensate for the concern you had about this? In other words, your house is 8 feet over and you could have put it 6 feet. Did you particularly move your house over because of this problem? VU: But, at this stage I can not do anything on my house. PARKER: I think he said his house is in the middle of the lot. BABICH: So, the house to the south of Mr. Vu has a window well that is built into the setback of the house to the south and that would preclude Mr. Vu from moving his whole house over any further to the south. I guess I would remind again that I see the Vu family as being the victim here and if there is any recourse here it should be on the part of the offending party. You recall that being the case there is a window well next to the property to the south of yours which is about a four feet window well? VU: Sir, I just own the lot and then I signed a contract with Glen Miller, builder and I really can not consider this situation. I know that he locate my house in the middle upper lot. FOSTER: Mr. Vu, did you have a chance to back out of building this house if you found this two foot condition here? I mean couldn’t you have selected another location if you were concerned about it. VU: I already bought this lot before I signed the contract with Mr. Glen Miller, builder. If I did not own the lot I would cancel this contract. PITTS: Any other question from the bench for the applicant? We don’t want to stifle anyone that has an opportunity to speak up there. If there is not anything else we will want to bring the discussion to the bench. SMITH: I would like Mr. Babich to restate the question about the window well? I did not quite understand what you were asking. BABICH: The property that is occupied now that is to the south of the Vu house. PITTS: 2718 N. Keith. BABICH: In fact I believe we have a letter from him here. VERTS: This property is south of the Vu house. SMITH: There are no window wells on our house. BABICH: No, I am talking about the property to the south of Smith house has a window well. Right, that is what it is? SMITH: Our house does not have window wells. BABICH: I mean the property to the south of that does. So you are limited and did not have much flexibility where to put either house. SMITH: As it shows we are still, 7.3 off the property line on that side. After we had it surveyed. So had we strung it right the first place we would have been ok. Window well on that house really does not have any effect on our house or the Vu house. PITTS: We are going to bring the discussion back to the bench. I might add here that the last house that I built when I started out early in my career, I did not last long as a homebuilder, the homeowners association had a requirement in there that the property be constructed in the approximately center of the lot. Once we were about 75 percent complete with the house it was discovered that our house did not touch the center of the lot anywhere. And we had to subsequently build an additional 25 feet onto the back of the house to meet that requirement. So, whenever we have problems or make big mistakes in these types of businesses, we are at risk. FOSTER: I apologize to everyone concerned. I came and mentioned last meeting that I was here that I have a 3:00 p.m. doctors appointment and you do not usually change those things. I would like to leave with a comment or two Mr. Chairmen. One, there are some facts that I would still like know. I would like to know the role of Central Inspection and to what extent do they check, not that they are totally responsible for the location of this, but to what extent do they check the location of a structure. Do they actually go out and measure it? We do not have that person present to ask those kind of questions. We do not have the inspector that was out there to do it to know what happened. I would also indicate that since we have some new members here that we have had some very serious problems, you are a quasi-judicial system, we have been able to call an executive session to discuss them and there maybe some advantage in your doing that kind of thing. If I were voting and I will not have time because it would be totally unfair these people without discussion and so forth with what I know now, I feel that I would vote against the variance. My basis for that is, this is the staff has mentioned, it is somewhat a pie shaped lot. Well, pie shape we think of pie as it comes to a point and comes back. It is slightly, it is not a rectangular lot but the front of it is not odd or unusual in the front. It is a very, simply not a big curve there in front to have to measure off of. This is a fairly substantial difference in building a house to be four feet off is a fair amount of distance. With what I know now, by inclination would be not to grant the variance and yet I am concerned that the Vu’s did continue to build but now I do understand that they own the land and that would present a problem to them. The question we have not had answered is does this cause a problem for drainage? How do you, is there suppose to be a swall between these two houses and if so where will it be on which house side will it be or is there suppose to be a crown of some kind to solve that problem. Usually you have an equal distance between houses in order to solve the drainage problem. We have not had that addressed. I apologize Mr. Chairman, very much and to both the applicant and the concerned property owner. I do have to leave and I am very sorry. PITTS: We thank you very much for your keen observation. FOSTER: If you carry it over I will be here next month let’s put it that way. PITTS: Any discussion from the bench? BABICH: In the staff recommendations there are conditions. The number three condition that no windows or additional structure shall be added to the north wall of the existing structure. I do not know what would come under structure. I would be concerned about a fence. If there were a fence there if either party put a fence there, it would make that situation even worse. But, I think the other point is that in the recommendations there are conditions under which the setback can be granted. I do not know if it is our place to make those conditions or not but seeing none I would be opposed to granting the variance as it stands. PITTS: Bradley, do you have any comments? TIDEMANN: The only comment that I had as far as the, I had one question that I did not probably get to at one time. On the pictures from the back of the two houses, how far it looks like the Vu’s house sets a little in front, closer to the lake then the applicants, is that correct or not correct? SAVOY: It should be on your survey drawing. TIDEMANN: So as far as I know at one point I read in here as far as visibility and the lake view it does not show that primarily the lake view I don’t think the Vu’s house will be effected due to the closeness of the setback. Correct? SAVOY: That is true. PITTS: John, do you have any words of wisdom you would like to impart? ROGERS: Unless, I missed something here, I did not hear either party mention anything about getting together and trying to possibly work this out amongst themselves, did anybody else catch onto that? BABICH: That is exactly my point, John. If they came here with conditions under which the variance would be requested I would feel much more comfortable about it. ROGERS: I agree. PITTS: Any other comments from the bench? TIDEMANN: Say the variance does not get accepted, what would be the financial cost, or what will have to happen to the house? Will the entire house have to be demolished and redone or would part of the wall be restructured to move back off that setback? PITTS: Mr. Smith, would you want to respond to that? SMITH: The fact that the house is under contract under specification to be built at that size, to try and go in and remove one side of that house would in effect, effect the master bedroom and master bathroom side. The way that house is structured and designed, you could not redesign that bathroom at all. It would enclose it down to be the alignment of equipment would not even fit. It was specifically designed the way it was. So really you are looking at a major financial consideration as far as we are concerned. We have got something in excess of $65,000 setting on the ground and part of that being an $18,000 lot. It may be more than that, that we haven’t been billed for I just haven’t seen the current. So, yes it would be a major financial catastrophe for us. I do not know how we would recover from it, to be honest. SKELTON: My comments are this. I have to view how I would feel if this happened to me. My personal view is I would do everything possible to try to work this out before I went ahead with construction. I am always on the side of neighborhood people and I think out of fairness to them that zoning codes are there to protect them. What I do not think is fair is for Mr. Smith to have to tear that house down. What I would like to see is some attempt for these two parties to make their own agreement. It may be to late for that, I do not know. But, that is what I would like to see, I sure believe there could have been more communication between the two parities to this point. PITTS: Any other comments. Mr. Gardner go ahead. GARDNER: I would share with you three basic thoughts. The first is, there is a technical situation where if the encroachment was in an utility easement or was in an area that could be addressed by the Sub-Division Committee of the Planning Commission, they have the ability to grant a vacation and do on frequent basis to accommodate this kind of an occurrence, if and when it occurs. Thankfully, the occurrences are relatively few and far between. However, there are certain aspects of the site regulations within the Zoning Ordinance that the Sub-Division Committee and the Planning Commission do not have the ability to make adjustments on. Those adjustments are recorded to the Board of Zoning Appeals and you are vested with the ability as Mr. Foster outlined, to deal with those issues. The side yard setback varies substantially one zoning category to another, in this particular single-family six zoning category the bulk regulations require a six-foot side yard setback, among other setbacks. When there is an encroachment into that setback by the exterior building line there is an encroachment that then requires that a variance be sought at this body, you are the only body that can grant that kind of exception. Until you grant that exception for whatever time length the structure sits there, there will be a cloud on the title, there will be a host of other problems that occur to the subject property itself that will be difficult. I am not here to argue one way or the other how the parties, neighbors and the owner or the builder resolve the problem. But, you are vested with the responsibility specifically of addressing the technical aspect. Within that context I would share with you that we have varied side yard setbacks for a number of years within the real estate community. We have had zero lot line homes, we have had a variety of patio homes, we have had a variety of condominiums formats, we have had a variety of single family attached, semi-attached, semi- detached properties, so that within the marketplace proper it is not that there is a specified six yard setback that sacred and can’t be violated. But it is there for a reason because it serves a positive function and purpose. The sheet that was passed out earlier by Mr. Reals, was indicative to the fact that there are provisions for various elements of construction to encroach into that side yard setback, roof overhangs, wing walls, gate walls, retaining walls, bay windows, certain cantilevered, types of construction. There are a number of construction elements that can penetrate or reside in that setback. In the subject situation, through an error on behalf of the foundation contractor that was caught, this property has a specific problem. You are the only body that is capable of granting them the ability to rectify it. If it were possible to do any other way I am sure they would. PITTS: Thank you, Mr. Gardner. We will come back to the bench. As a caveat we may want to clarify our stance here. If this goes to a vote and the granting of the variance is denied then that is on record and then there is absolutely nothing that can be done as far as I know other than the property that is in question would be in violation where it is sitting and perhaps would have to be moved. If on the other hand, as I understand it, if the parties needed some time to see if they could reach an agreement and then came back to this body we could perhaps hear this again, probably at our next meeting period. I just wondered if either of you would need such a request prior to the time that we vote. PARKER: Just to make sure of what you just said now. If the parties did get together and try to work this out that this seems to be one of the Boards desires to have the parties to work together to solve this before the vote is taken, correct? It would be another meeting then? For your actual vote? PITTS: It would have to come back and a variance would have to be granted to satisfy whatever as I understand it you were to agree on. REALS: You are addressing the question to us, what you are suggesting is to set this over to another time and see if Mr. Smith and Mr. Vu can resolve this. PITTS: See if they could reach some accommodations. REALS: Two things. Yes, we would do that and secondly, there has never been effort by anybody to do that. Mr. Vu. There has never been anyone approach Mr. Smith about this. This house was well under construction before the Vu’s ever started. We would be willing to do that, but in the literature that you got, is sort of beyond the scope of what we are suppose to be doing here. But in the Vu information they talk about irreparable damages but then they say they will settle for $17,000 dollars, that is quite a wide swath of cloth between them. We would be willing to do that, we are willing sit down and try to talk to them. BABICH: Just for clarification purposes. You said that there has not been any attempt made and immediately followed that with an attempt that was made and you put the burden on them to go to Mr. Smith, I keep getting confused as to who the victim is. As soon as Mr. Smith knew what would preclude him from going to the Vu’s? I want to support a zoning regulation, zoning variance that has the support of the effected parties. REALS: To clarify your questions, I did not say two things that were opposite. I said that unfortunately I think this became an adverse relationship early on. It is the Hatfields and the McCoys in some part. You end up here because this is the legal method sir that you have to follow to get it resolved according to the law. Now, what you are suggesting and I think Mr. Moshier would probably confirm what I am saying is really sort of a form of arbitration. I think what I am saying to you is we would be willing to enter into or to attempt to resolve it, but there has been no communication between the parties either way on it. PITTS: Thank you very much. What is the pleasure of the Board? MOSHIER: I think from a procedural standpoint I believe it is the applicant’s choice, what happens today. The applicant has filed an application and he is entitled to have a decision made if he asks or agrees to set it over, I think that is fine. But, I do not think that with the application and the status that it is today for hearing that the Board can avoid making a decision without the consent of the applicant. PITTS: We have asked for consent. BABICH: So, it would be up the applicant to use his initiative to do that. MOSHIER: That is correct and if he does not wish to, then I think the Board needs to make a decision. REALS: I suppose to be procedurally correct in light of the fact that you suggested it to us and asked us why we have not done it we would request to entertain some effort to do it that way. Perhaps if that cannot resolve it then we can come back up here and continue it. Continue or conclude it one way or the other. PITTS: If that is the wish of the applicant I am prepared to entertain a motion in effect that this variance request be postponed. ROGER moves, SKELTON seconds, that BZA 01-00 be postponed until our next regular schedule meeting. MOTION CARRIES 5-0. VERTS: The next meeting will be February 22nd. PITTS: Any other business? J.R. Cox? Mr. Miller? Ms. Verts. NO. MEETING ADJORNED 3:00 p.m. BZA MINUTES FEBRUARY 1, 2000 PAGE 25