BOARD OF ZONING APPEALS
Minutes
February 26, 2002
The regular meeting of the Board of Zoning Appeals of the City of Wichita, Kansas, was 
held at 1:30 p.m., on February 26, 2002, 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, JAMES 
RUANE, JAMES SKELTON, JOHN ROGERS, RANDY PHILLIPS, present. The 
following Board members were absent:  BRADLEY TIDEMANN, FLOYD PITTS. 

SHARON DICKGRAFE, Law Department present

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

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

RUANE:  Calls BZA meeting to order.  We have an Agenda that has already been 
published and some advanced materials that are available to all of you, if you haven't 
already picked them up, that are there on those tables.  I ask that if you address us that 
you come up to the microphone give us your name and address for the record that is 
being made today, and in case we don't quite catch on, make it clear to us whether you 
are in "favor of" or "against" the particular proposition or question that we are 
entertaining. 

The first Item on the Agenda is approval of the "Minutes" for our meeting of the month 
of January.  They were submitted earlier in your packet.  Does anybody have any 
questions, comments, corrections, and clarifications?

SKELTON moved ROGERS seconded to approve the "Minutes" of 
January 22, 2002.

MOTION carried 5-0.

RUANE:  Moving then to Item #2, review and approve 2001 BZA Annual Report.  This 
again was in your packet.  It is a report to the City Council with regard to our activities 
results, attendance and overall functioning of this Board over the past year and it bears 
the date of February 26, 2002.  Is there any input that the Board would like to have with 
regard to this report?

FOSTER:  I don't think that it needs to be done in a form of a question, but didn't we 
used to list how much income the BZA had and approximately what it cost?  Is that 
criteria for the annual report?
 
KNEBEL:  We used to include that.  The City Manager's office recently changed the 
format and the information that they requested, and it didn't ask for that, so we didn't 
provide it.

FOSTER:  Good, save a little time.

KNEBEL:  They will probably realize they forgot and ask us to submit it later.

FOSTER:  Probably see it next year.

RUANE: We will wait to address that if and when they ask. Anything else on this report?  
Have you had the chance to look over it? 

FOSTER moved PHILLIPS seconded to approve the BZA 2001 Annual 
Report and sent to the City Manager.

MOTION carried 5-0.

RUANE:  That then takes us to Item #3 on our Agenda, BZA2002-00006.  It is a 
variance request to allow a second sign for Central Christian Church along arterial street 
frontage and to allow a sign for the church to have a red L.E.D. reader board on property 
zoned "SF-5" Single-Family Residential.  First we will hear a presentation from City 
staff, and the applicant has been furnished with the staff report and recommendation, yes?

AUDIENCE:  Yes.

SCOTT KNEBEL, BZA Assistant Secretary: As was mentioned, this is a request for a 
variance for a second sign for Central Christian Church, which is located at the southeast 
corner of 29th Street North and Rock Road as shown here on this slide.  The white part of 
this map indicates that the property is zoned for Single-Family Residential use, which 
does permit churches but also has very restrictive requirements on signage.  Essentially, it 
permits one 48 square foot sign per arterial street frontage and actually even less signage 
than that if you are on a street other then an arterial.  Currently, the Church has a sign and 
it is located here, which basically is a static sign that says Central Christian Church on it. 
Churches are allowed, when they have special events, to temporarily bring in temporary 
signage:  signage on wheels with the plastic lettering to announce their special events.  

The church feels like that is pretty unattractive and inconvenient for them and have 
pitched this proposal to install a message board.  Essentially, it doesn't show up very well 
here in the picture, but this would be a 44 square foot sign that had a digital L.E.D. read 
out that you could change, and it would put those messages on there that they are 
displaying on the temporary signage now.  That sign there would require actually two 
variances.  It would require one variance to allow a second sign on that street frontage, 
and then it would also require a variance based on the method of lighting.  The Sign Code 
says that when you are in the single-family district that signs can be lit by what they call 
indirect white light, which is a fancy way of saying shining a white light on the sign 
rather than having it backlit, so those are the two variances that are requested.  

As far as meeting the conditions necessary for granting the variance, staff has reviewed 
these and we feel like they do meet all five conditions, and I will go through them 
quickly.  I can show you the location as well, and it would probably be helpful to you.  
This is the church over here on the right hand side of the picture, and this is the Walmart 
building.  The sign would be located in this area here, basically within an area that is 
heavily landscaped with grass and trees near the corner of the intersection.  This is what 
the intersection looks like.  As you can see it is very heavily trafficked and 
commercialized with numerous signs, with both building and pole signs in this location.  
Also back down south along Rock Road there is a very large commercial sign in this 
location, and then this is the signage that the church has today, and you can see that it is 
very low and very small in scale compared to the rest of the signage.  

We find that the property is unique based on the property size and the fact that it is 
located at the intersection of two arterials, and the fact that it has very long street 
frontage.  All three of those factors are unusual for even church properties, even large 
churches in the community.  

The adjacent property we feel like will not be adversely affected.  Most of the adjacent 
property owners are commercial properties.  Those that are residential properties will be 
separated by this, and there will be significant buffers in the forms of surrounding 
buildings and trees, as well as distance.

As far as the hardship to the applicant, were they to continue to utilize the method that 
they do today, that hinders their ability to provide this information, and really limits the 
amount of information that they can provide to the public to utilize such a large facility, 
that is open to the public.

That kind of leads into the public interest.  We feel like that this signage is small in scale 
and has minimal lighting and is really more tasteful in design than using the temporary 
signage that they have now.  I was by there, I think last weekend, and I think they had 
two temporary signs out there.  I don't know if anybody else had a chance to go by, but it 
is really much more in the public interest than the method that they are using to convey 
the message today.  

As far as the spirit and intent, essentially the regulations that are in the Sign Code really 
didn't envision large churches of this size on 30-acre lots that are located at the 
intersection of two arterial streets, with over a quarter of a mile street frontage.  Really 
the intent of the Sign Code is for the smaller churches, that were more common when the 
Zoning Code was prepared and the Sign Code was prepared, that are located within 
residential neighborhoods, and are right across the street or right next door to single 
family residences, and so you would need to limit the amount of lighting and so forth and 
the square footage and the number of signs in those instances.

Staff is recommending that the two variances be granted, and we have listed a number of 
conditions.  The first one is that the sign be placed in the same location as shown on the 
approved site plan.  We have not really tied it down.  There is not really any specific 
dimensions, so we said generally, but essentially what we are looking for is signage that 
is in this location here.  If the Board thinks that we need to get more specific about it, we 
could do that and have the applicant provide the exact distance and have that approved by 
the Secretary, would probably be the best way to do it.

We are limiting the sign to size and height that is proposed and to the lighting method 
that is proposed.  We are putting in here a statement about that there is no flashing or 
moving images, and that is actually prohibited by the Sign Code, but since this is a 
variance we thought that it would be best to specifically state that it is still prohibited and 
clarify, and this is an interpretation that has been made by the Zoning Administrator, that 
means that the sign shall not change messages more than once every ten seconds.  

The fourth condition would limit the use of portable signage, so that this signage that is 
proposed would be a replacement for that, and then the standard conditions of requiring a 
permit and construction within one year.  

With that I will answer any questions that you might have.

PHILLIPS:  On Item #4, you said, "limit" where as here you are saying basically 
"eliminate" the portable signage on Rock Road.

KNEBEL:  Right, it will not be permitted.

RUANE:  I understand where the location is, but will the face of the sign be 
perpendicular to Rock Road?

KNEBEL:  Yes, it will be perpendicular to Rock Road.

RUANE:  Any other questions for Scott?  Now we will hear from the applicant.

Dave White, 1300 Sagebrush, speaking on behalf of the applicant:  I would like to 
begin by thanking the Board to hear and review our request that is here before you.  I am 
a member of the congregation and an elder of the church, who is involved in the 
leadership of the congregation. But, I also happen to be the architect who did the design 
for the most recent Worship Center Addition to the property that we are speaking of here 
today.

I am here representing the church to request that this Board would grant our appeal to 
install a 44 square foot sign, an electronic message sign on our property located at Rock 
Road frontage, as Scott has previously defined.  I would like to tell you briefly a little bit 
about Central Christian Church.  We are a congregation of approximately 5,000 
members, and we have recently built a 3,000 seat worship center on our 27 acres.  Three 
legal entities actually operate out of our property.  There is a daycare and preschool.   
There is a K-8 academy, and then of course there is the church, and these all operate 
under the umbrella of Central Christian Church.  Our property is located on the southeast 
corner of 29th and Rock Road, and it is zoned single-family, while the three adjacent 
corners of that intersection are zoned light commercial.  Our property has 755 feet of 
frontage along Rock Road and 973 of frontage along 29th Street.  

Central Christian Church has always been an active part of the Wichita community, with 
the ministries extending across the country and into the world, literally.  With the recent 
addition of our 3,000-seat auditorium, it is one of our goals to further enhance our 
function as a community resource.  Aside from the obvious Christian function and 
programs, our 200,000 square foot facility is used for a voting center, for concerts, for 
state wide conventions, for rotary and civic organizations and neighborhood meetings.  
Just for example, our facility was recently used by the City of Wichita to call a 
neighborhood meeting, with the various neighbors and businesses.  They were wanting to 
discuss the proposed widening and modifications to both 29th Street and Rock Road.  
Once again, we look at our facility as a resource to the community in that respect.  

Over the past year and a half, since building our new auditorium, we have had several 
weekend events where the attendance over the course of the weekend has been over 
8,000 and 9,000 people.  We have a lot of people come through our doors on a very 
regular basis.  We are looking for a way to get the message out.  One of the reasons for 
installing the electronic message center is here again, to aesthetically enhance our 
property and our image.  Our property is not currently a part of a C.U.P., and thus once 
again, as your staff has pointed out, our method of putting the message out is on the 
hideous-yellow portable signs.  We would love to get rid of them, and that is really one of 
our large driving forces for this request.  

Once again, I just want to take opportunity to thank you for your time and consideration 
of our application.  Again, it is Central Christian's desire to be an active, vital, 
responsible neighbor and community within the City of Wichita.  I may just quickly 
introduce those who are with me.  This is Mark Posson, the Administrative Pastor of the 
church.  This is Michael Bankston and Larry Boggs, and they are both of Trimark signs, 
and they are the ones who have been working with us on supplying and providing the 
signage.  

One clarification that I might make, on the information in the report it indicated that the 
sign was a red L.E.D. color sign.  Which it has that capability, but it also has the 
capability to be any color that we want it to be aside from only red.  I just wanted to be 
right up front and clear about that with you.  With that myself, or any of us, will be happy 
to answer any questions that you might have.
 
RUANE:  What questions does the Board have for the applicant?

PHILLIPS:  I think for the record, I would like to be able to hear maybe from the 
applicant, as far as the five items here.  To me four of them are very clear from the 
standpoint of uniqueness, adjacent property, public interest, and spirit and intent, but 
maybe a little better explanation on the hardship.  As far as the church's standpoint, if for 
some reason this weren't approved, what type of hardship would exist?

WHITE:  We would still get our message out, and it would be via the portable yellow 
signs.  We just got done spending $12.5 million in building a building.  We look to create 
a nice image on the corner.  We think that this signage would increase and enhance that 
aesthetic image, but we would also, and here again, the primary reason for the sign is that 
we just have a lot of events that happen at the church.  I couldn't even begin to tell you 
the number of things that go on in there on a weekly basis, but it could easily number in 
the hundreds.  We want an opportunity to take that message to the public, and to our 
congregation, to anyone who might be driving by frankly.  So really this is just a cleaner, 
more flexible method to get that message out.  Can I give you anything any better?

PHILLIPS:  I can appreciate all that, but I am not sure that really addresses the hardship 
issue, which is what I was hoping maybe that you could elaborate on.  I think that falls 
into several of the items. But, I think one of our responsibilities here is to make sure that 
all of these items are addressed, and to me that is the most nebulous one, at this point.  I 
think all of the rest of them, I think I would have to agree wholeheartedly with the staff 
and the applicant.  But, as these decisions are brought before committee.  I think it is nice 
to clear them all up if there is an issue.  Again, I don't think that the explanation to me 
really addressed the hardship.

RUANE:  We need, in order to grant the request, we need to find that all five of these 
conditions are met.  Perhaps as a vehicle to assist your outreach ministries could be 
relevant to the hardship issue.

SKELTON:  I think something relevant to the hardship issue would be the church's 
necessity to go and acquire temporary portable signs. I think there were some comments 
made about the inconvenience in having to go do this, and put them up there, and they are 
really not effective.

WHITE:  You are absolutely right.  They are less then effective, and as we know, half of 
the time the letters are blown down the street somewhere, and people are picking them up 
along Rock Road.  If I have to define it as a hardship, yes, the portable signs are a 
hardship, both aesthetically and functionally.  Just the fact that we have to go get them, 
we have to move them in, we have to stake them to the ground. I could call that a 
hardship.

RUANE:  Does anyone else for the applicant want to address the hardship issue?

MARK POSSON, 4921 Farmstead Court:  The hardship issue is the number of events 
that we are hosting, whether they are our events or hosted events.  Trying to convey those 
to those people who we are trying to get that message out to, so the hardship issue is that 
we are limited on what we are able to communicate out as far as the events are concerned 
with our existing signage.  As Dave has mentioned, and as mentioned by Scott, we have 
to go out, and get the temporary signage.  To really convey the message, and a perfect 
example is the case right now, we have several larger events that are coming up in the 
next month and a half, and we had to go out and get two signs, one on 29th and one on 
Rock Road.  They are not saying the same thing.  They are really talking about two 
different events that are happening in our building.  So that would just be another one of 
the explanations of the hardship that we are dealing with, as far as signage is concerned, 
and the limitations that we have currently.

FOSTER:  Was there some reason that the existing sign was not put on the corner to 
begin with?

POSSON:  David may be able to give us some more information as far as that goes.  I 
couldn't answer that because the original design took place over 20 years ago, and I think 
part of it has to do with the architectural centering of the building.
 
WHITE:  I will try to answer that. I wasn't around back when the building was 
originally built.  You can see the line right there. What you see in the gray is the latest 
addition to the building.  Basically everything that you see, and stuff that you don't see 
back in here, was part of the original project that was built over 20 years ago.  Back when 
this project was built it honestly was a wheat field out there, and Rock Road was literally 
a rock road.  The orientation and thinking of this as being a major arterial, and 29th as 
becoming an arterial also, I just don't think that was ever discussed or thought about at 
the time.  The sign as it sits right here, you can see kind of a centerline drawn there, it is 
the axis of the building, and that sign was located on that building axis, and that, frankly, 
is about all I know about that issue.

FOSTER:  Where is the entrance?

WHITE:  The entrance to the building? There is a main entrance right here.

FOSTER:  No, I meant from Rock Road.

WHITE:  The drives are right here, the main entrances.

FOSTER:  In other words, the entrances are down where you are pointing now?

WHITE:  Those are main drives into the property.

FOSTER:  There is one further up, then, from there to 29th?

WHITE:  Nothing from there to the corner, that is correct.  It is all access control.

FOSTER:  Sometimes people put signs near their driveway to identify, and this isn't at 
the driveway either.

WHITE:  That is correct.

FOSTER:  Just in front of the building.

WHITE:  Correct, we see that as a location that would serve us well, in terms of those 
from 29th and Rock Road visibility.

RUANE:  Anyone else would like to speak in favor to this application? I will bring the 
comments, therefore, up to the Board.

PHILLIPS:  Point of clarification, I thought Mr. Foster's question was well founded 
there.  Typically, when you have large projects like this, and like it was said, when there 
was nothing but a wheat field out there, you try to get people to the front drive.  So you 
put the signs near that at the time.  That's where the front drive was, that is where the 
majority of the building was, and it sat further back.  So I mean, I see why the original 
sign was placed there.  I am very familiar with the development of Rock Road and 29th 
and how it has changed over the years.  I think that very few people 20 years ago, 15 
years ago, would have guessed that 29th would have been as active of an arterial as it is 
right now, so it is easy to see why the growth has gone that way.  If I am not mistaken, 
we are probably looking at that slide probably 3 to 4 acres of what is a 30 acres site, so 
there is a considerable amount of ground behind it off the slide right there, which is a 
little hard to read at times on some of the prints and stuff.  So as far as I am concerned, 
the hardship, I thought was explained, and I am ready to make a motion any time.

KNEBEL:  The only suggestion that I would make is that in the conditions of approval, 
where we specifically reference the color red, and since the applicant has indicated that is 
not the only color that it is capable of displaying in, so it is something that we could just 
strike the word, "red" and probably leave it at that.  It is in Item #2 in the conditions of 
approval.

RUANE:  From staff's position is the use of some other color then red a greater concern?

KNEBEL:  There are probably some colors that are more obnoxious than others. I don't 
know that is really the intent of the church. I would be surprised if that became a 
problem.

FOSTER:  Not near the traffic light on 29th Street, so there would be no color on the new 
sign?  Or would there be color on the new one?

KNEBEL:  The new sign would have color, yes.

FOSTER:  That could go 16 feet high?  Is it anywhere near a traffic signal?

KNEBEL:  It is not particularly near, no, it is setback 

FOSTER:  Our firm has made a study in recent years about signs on churches, and they 
seem to be getting bigger all the time.  Mainly because people do not walk-by anymore. 
They drive-by at 30 to 40 mph.  There is sometimes a need in a residential zone to have it 
larger, and it might even be, if we get to many request for church signs, that we maybe 
look at the regulations themselves.  Sometime there is kind of a larger demand because of 
the visibility.

RUANE:  By that you mean put some specifics in the Sign Code to address church 
signs?

FOSTER:  I write Sign Codes, and we write the signs now a little bit larger for churches 
in the residential area just so we don't have to have these kinds of questions come up.  
Because of the speed of the vehicle, and people are just not walking by anymore, so it is a 
different world in that sense. I can see the logic, and as Randy indicated that there is 
some logic why they never put up there on 29th to begin with. I think if they were 
building this today, I wouldn't agree with two signs. I would put one on the corner, but I 
think they made a case for that.

RUANE:  Sounds like we are ready for a motion.

PHILLIPS moves and ROGERS seconds, that the Board accept the findings 
of fact as set forth in the secretary's report; 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 
the conditions set forth in the secretary report. With the exception of the 
amended Item #2, which would strike the word "red" and that is for both 
variances for the second bulletin board sign as well as the variance for 
permitting the additional lighting technique on the sign.

RUANE:  Again, to repeat the motion is to approve both variances as set forth in the 
staff's recommendation, however striking the word "red" from the indication of the color 
of the L.E.D. indicators.

MOTION carries 5-0.

RUANE:  Item #4, Case number DR2001-00008 BZA Bylaw Amendments. I trust you 
all received and had time to review the memo and the attached materials regarding the 
amendments to Rules and Regulations/Bylaws. Who feels ready to start this discussion or 
make a motion?  

FOSTER:  I have a lot fewer comments then I had last month, and I would like to start 
that way.  Just a few actually, and I think it is going to be very useful to have a new set of 
Rules.  I am almost embarrassed to pick out a few smaller things, but on the second page 
in the title, I think we need to drop the word Regulations, and I am sure that you didn't 
intend to leave it in, as well as, on the first line.

On page three, just to clarify this point, if you look at Article II, Letter C, it talks about 
"any member who abstains from voting as allowed by Subsection E. below, shall be 
counted as a member for determining if a quorum exists".  I agree with the wording 
except for one line in Subsection E, it talks about the persons, and I certainly agree 
"disassociate themselves from the Board".  Now it would imply to me that a person who 
"disassociates from the Board" is still being counted as a quorum, and we haven't done 
that in the past.  Is that a new thought? Or is that intended to be that way or not?

KNEBEL:  It is intended to be that way.  I don't know whether it is a new thought or not.

FOSTER:  If someone "disassociates themselves", they really are not sitting up here. 
You might say, and we have not counted them as a quorum, we went through that last 
time.

KNEBEL:  The problem with that Bickley is that if you have four people here or five 
people here since it takes four to get something granted like you do today.

BICKLEY:  It would take three now?

DICKGRAFE:  Under the revised rules you are not going to have the four votes.

KNEBEL:  It would still have the four votes requirement.

DICKGRAFE:  No, look at, 7 C, on page 9, an affirmative vote of at least a majority of 
the Board members appointed and qualified.

KNEBEL:  Which would be four, if there are seven members appointed and qualified.  If 
you don't count somebody who abstains as a member of the quorum, then that would 
allow them, if they have a conflict of interest, to, if there are not sufficient members 
present, to stop the hearing.  Which you know, if they truly have a conflict of interest, 
maybe that is what they want to do.  

MILLER:  It does two things.  Often times we only have four people here, and if 
someone were to have a conflict, then this allows that person to step down, but still for 
the purposes of voting, they are still here.  The remaining folks can continue with 
business. They still have a quorum, it is just that there is just three people.  Otherwise, as 
Scott said, if someone were purposely trying to defer or stall a case then, they could step 
down every time and it would automatically be deferred. 

DICKGRAFE:  But, if you have four and one member steps down, and you only have 
three to vote.  Under 7C you still can't have any kind of an action.  I guess that is the 
issue.  If you have fewer than four under this rule, a tie or fewer than four, assuming that 
you had all of your positions on the Board filled, with seven would be a denial.

FOSTER:  I understand if someone abstains by silence that obviously they are counted 
as part of the quorum, and I don't have any difference with what has been presented.  It is 
just that I don't know that we have discussed that concept, and I just want to make sure 
that everybody is sure that is the way it is being done, but I don't think that we discussed 
that approach.

RUANE:  The way I look at quorum is the quorum is set and established to determine 
whether or not a valid meeting is held.  We establish a number of us who show up and we 
deem that notice must have been sufficient. There are enough of us here for us as a body 
eligible to conduct the business that is on that Agenda.  Once you have a quorum for a 
meeting you have got a quorum for the entire meeting, and if somebody abstains from a 
particular Agenda Item, they can't destroy your quorum for the purposes of holding and 
finishing that meeting.

FOSTER:  I think that is a good idea. I am just saying I didn't think that we discussed 
that to know that was what we were getting, and wanted to make sure everybody 
understood it that way.

RUANE:  Trying to understand the inter relationship of Article II, C, states out of our 
seven members four constitutes a quorum, and the meeting can go on, and then under 
Article VII, C, an affirmative vote of four shall be necessary to grant and Appeal or a 
variance?

FOSTER:  Where does it say four, oh, it says a majority.

RUANE:  A majority of the Board members appointed and qualified, which would be 
four out of seven.

DICKGRAFE: If there are vacancies then that would leave you with, if there is only 5 
people on the Board, which has happened before, and five actually appointed and 
qualified, then your majority would be three.  So you could in that theory pass a variance 
with only a vote of three, but that is going to depend upon how many are actually 
appointed and qualified on the Board.  If there are vacancies, then that number could 
shift.

RUANE:  What usually happens?  My guess is the quorum establishes when you have a 
valid meeting, and that typically a majority of those voting at a valid meeting approve a 
matter, rather than a specific number of 4 out of 7 or something like that.  Is that the 
general standard?  

DICKGRAFE:  Yes, although in the zoning cases, and I think Bickley addressed this in 
the first draft of this, is whether or not you wanted this standard to be lowered to a simple 
majority of those present, or a majority of the Board membership.  I think that it was 
staff's thought, and you can correct me if I am wrong.  They were a little uncomfortable 
with allowing a majority of those present, and thought that given the standards that are 
applicable in zoning cases, that it was better to leave this super majority but a majority of 
those people who would be entitled to vote in this particular action.  Is that a fair 
statement?

KNEBEL:  Our concern is that you have four people here, and one abstains for a conflict 
of interest, and then two Board members grant a variance.

DICKGRAFE:  But, under that scenario that variance would be denied?

KNEBEL:  Unless the applicant requested that it be deferred.

RUANE:  I don't think you can expect the applicant to recognize the potential for that 
happening.

KNEBEL:  Right, and it is going to be incumbent upon the Board and staff to point that 
out to them.

PHILLIPS:  Based on a unique set of circumstances, beyond the control of an applicant, 
that by default it could be denied, when we might have everybody on the Board in favor 
of it.  Just like that last case had.  We had four people here, and one of us had been 
involved in that case where we had to abstain and declare a conflict of interest, by that 
sheer number, and that sheer accident, that thing would have been denied.  I have a 
problem with that default system there to where it just automatically reverts to a denial. 
That is the only problem that I have with it.  That is my comment on it, and I just think 
that it is unfair.

DICKGRAFE:  I think your option is to have it come back, which we have done in the 
past.

PHILLIPS:  As long as that verbiage stays in here, and the applicant's are informed of 
that, and I don't think we can expect him to be savvy enough unless, they are represented 
by an Attorney who has been here before or somebody has experience.  As long as that is 
made clear, I really don't have a problem with that, because I think it is probably safer to 
the denial part of it than the approval, because there maybe something that goes the other 
way.  Obviously you had to pick one or the other, and I understand the circumstances that 
you were in Sharon, but I think that if we are going to leave that in here, I think that it 
really makes it necessary for either us as a Board or you as staff to clarify that, and make 
sure that is clear with our applicant, so they understand.  Because if for some reason it 
happens that they have the option, and be aware of the fact that they are probably better 
off requesting a deferral.  Hopefully, that is what will happen.  It seems like that is 
penalizing them to no fault of there own.  So hopefully, our system will allow that to be 
corrected through the process.

RUANE:  Sharon how do you feel about Article VII, C?  

DICKGRAFE:  That there is no real good way to address this.  I think the concern was, 
and staff's concern is, that we have had cases in the past they we couldn't get four and, I 
think the Dick's Sporting Good's sign is the prime example, it kept coming back, and 
coming back, and coming back, coming back.  Whether that was fair to the applicants, 
whether that was fair to staff, whether the right result was reached in that case, who 
knows.  I think it is a matter of how this Board wants to determine how best to deal with 
that, whether it needs to come back and you need to have a vote of four to do something 
or whether you are going to assume that if we didn't get four then it is denied.  

SKELTON: It would be my favor that the automatic denial just because of a lack of a 
quorum is unfair to the applicant.  I think although it might serve as an inconvenience to 
have it come back over, and over, and over, it is probably to the applicant's advantage, 
and that would be more fair.  It is not their fault that three of us are here and they are 
getting penalized for that, when it does occur.
 
RUANE:  I think to avoid the appearance of impropriety, you should not have anything 
that could result in a member of this body by not showing up helping an applicant to get a 
variance.

SKELTON:  By not showing up, right.

DICKGRAFE:  By deferring that, I am not sure that you could allow that.  I mean if 
your're saying that it is going to come back if you don't get four, then I am not sure that 
you are allowing that, unless that person is going to miss two or three meetings in a row 
and then be off the Board.

RUANE:  Part of the reason I asked Sharon, is that I well remember that we cannot have 
this result where people have to keep coming back, and back, and back.

DICKGRAFE:  I think that was the goal that I was given a year ago when these started 
was to get rid of that. But when you start looking at specific scenarios of the number of 
people on the Board, and number of votes on the Board, and what ultimately could 
happen, I think we normally have four or five members here.

SKELTON:  How often is it going to happen?

DICKGRAFE:  More frequently then you think.  With four or five members and saying 
that if you don't get a vote of four, out of four, it is denied.  You are really putting the 
burden on the applicant to have an absolute majority.  

MILLER:  Just looking at that Dick's Sporting Goods sign, obviously the way that it 
was working, someone on the Board had to decide that it is more important give the 
applicant an answer, than it is to vote my conscience. Because we had people who voted 
consistently a certain way, and they always ended up without getting an answer, and so 
that then puts the burden on a Board member to say, I am going to compromise my 
principles on what I really think ought to happen here because we owe this guy an 
answer. I don't think that is fair to the Board either.

FOSTER:  I don't think that is unusual to require four votes on a Board of Zoning 
Appeals.  It is not the majority rule that people do, but there are Boards of Zoning 
Appeals that do that.  Particularly in a variance case, because the idea being that a 
variance is really letting somebody do something that everybody else has to follow the 
rules, so it is a kind of a higher standard to allow them to do it, so I have never objected 
to the concept of having four members do that.

RUANE:  Applying this as proposed, if only four of us were here today, that would 
constitute a quorum.  In order for that application to be approved four of us would have 
had to vote in favor of it, so if we only had four here today, then we would have been 
able to do our business.  I don't have any objection to this, and I am glad that it came up 
for discussion, because I think we all need to understand that there are several options 
open to us, and we just need to pick one that we think is best.

PHILLIPS:  I am really in favor of four votes. I like that because that means you are 
really going to get …

TAPE CHANGE

PHILLIPS:  …wait 30-days obviously that is little bit of a hardship in some cases but on 
the other hand a denial is a greater hardship, so as long as we can make, and I think that 
each of us here have enough conscience with or without staffs input or education, for the 
applicants that we will hopefully make them aware of it and let them make their choice.  
Because I think Bickley is right, they are asking for an exception or a variance. 
Something that is out of the norm.  Everybody else follows rules.  Let them make the 
choice when they are here to proceed, or see if they want to withdraw.  It is either 30-
days or flip the coin on a denial.  I don't have a problem as long as we can do that.  That 
was really my issue and my concern.

FOSTER:  Mr. Chairman do you read this now then, that if a person abstains that they 
are a part of the quorum?  And then too I have to tell you, I don't see where it says four 
votes, I'm sorry, I just don't see it.

KNEBEL:  It says at least the majority of the board members appointed to qualify.

FOSTER:  Where is that?

KNEBEL:  It is on page 9.

DICKGRAFE:  7 C.

KNEBEL:  And 7-C.

FOSTER:  I'm sorry I couldn't hear.

KNEBEL:  It used to say…

FOSTER:  I'm sorry, I heard several voices and I couldn't hear.  All right which one.

MILLER:  7-C, Page 9.

FOSTER:  I didn't see it on that page 7, Oh C, all okay, all right.  Is everybody happy 
with that then?  Is that the idea?

RUANE:  Sure I can live with that, but in response to what I think was your question.  If 
less than four of us are here, I think the Chairman should announce that the meeting 
cannot convene, we do not have a quorum.  Therefore we can take no action.  Sorry.

FOSTER:  Right, right.

DICKGRAFE:  That is true.  That is the only thing you can do.

RUANE:  And that is all that happens.

FOSTER:  I don't know how many other people think if this, I have a feeling they do but 
I remember when I came on that one of the reasons for the four was, it probably, I would 
hope, that it encourages good attendance.  That people would know the seriousness of not 
having enough people here to make a vote.  Maybe it does that.  The other thing I had a 
question on Mr. Chairman is on E, on Article II.  It says unless such permission shall 
have been granted, meaning for the abstention or unless there shall have been a negative 
vote, a member's silence in voting shall be recorded as an affirmative vote.  Now I'm 
under the impression that a member's silence that it becomes affirmative only if it is a tie 
vote.  I don't, and maybe I just need an explanation on what does that mean.  How does 
that work on a negative vote?  I was thinking it had to be a tie vote, and an abstention 
goes with the majority vote on a tie vote, is my understanding.

KNEBEL:  Abstention does not count as a vote at all.  If you read that sentence, it says 
unless such permission to abstain shall have been granted.  So if that permission to 
abstain shall be granted, there is not vote counted for that person at all no affirmative 
vote, no negative vote.  The only case in which an affirmative vote is recorded is if they 
are sitting up here as a voting member, they don't cast a negative vote, and then an 
affirmative vote is recorded even if they say nothing.  Chairman says, all those who favor 
say aye, and there are five of you here and four of you say aye, and one of you were not 
paying attention and didn't say anything, that would be a 5-0 vote, is what that addresses.

FOSTER:  Scott I just am a little dense on this. I'm not trying to be. I really don't 
understand.  Okay, I understand what you are saying as to you are not counting the 
affirmative.  This is a little different, so I have to adjust to that.  But you are saying an 
abstention is not a person that is silent so to speak.  You are classifying them differently.

KNEBEL:  That's right.

FOSTER:  Okay, that is not the usual way, but I am catching up here.  So a person that is 
silent, now that would be counted in the affirmative, what unless there has been a 
negative vote count.   I'm not sure I understand what that means.

RUANE:  If that person does not vote no, and they…

FOSTER:  Or vote at all.

RUANE:  If they don't vote no and they don't vote yes, it counts as a yes vote.

FOSTER:  Unless they have declared themselves to be abstained.

RUANE:  And been allowed to abstained and thereby been pulled out of the process.

DICKGRAFE:  You have to declare your abstinence, or you are considered part of the 
voting body.  You don't say anything.  It is counted affirmative.

MILLER:  Bickley all it is really doing is clarifying that you have to ask for permission 
to abstain.  If the Chair gives you that permission, then you are not counted as part of the 
total vote.  But let's say you ask for permission to abstain and he did not give you 
permission to abstain, so instead of voicing a vote one way or the other you sit there in 
silence.  This says you are going to be counted as an affirmative vote.

DICKGRAFE:  Or if you don't ask to abstain, hear the discussion, participate in the 
discussion and then get to the end and then determine that you wanted to abstain.  I think 
it is too late, and you can't just say I abstain, and if you do that then your abstaining will 
count as an affirmative vote.

PHILLIPS:  So you are also saying that you need to make that or you need to abstain 
early and excuse yourself or not participate in the proceedings and hearings.  Speak up 
early.

DICKGRAFE:  Yes.

FOSTER:  I don't understand what it has to do with a negative vote. If we had four 
members here and three people vote for it and one is silent, there are not negative votes.

KNEBEL:  That's right.

FOSTER:  So what happens then?

KNEBEL:  If there are four people here and three say yes and one says nothing, that is 4-
0 yes vote.

FOSTER:  But it says unless there shall be a negative, all right there are five people 
here, one vote is negative, and one is silent, what does that mean then.

KNEBEL:  That would be 4-1 then.

FOSTER:  You are saying that in any case, why do we have to say unless there is a 
negative vote?

KNEBEL:  Because if we don't say that and you vote negative, then this sentence would 
say that your negative vote is an affirmative vote.

FOSTER:  So you are saying that the words "unless there shall be a negative vote cast" 
is related to that person who is silent?

DICKGRAFE:  Yes.

FOSTER:  See I don't read it that way.  Where does it say that's the person.  I never had 
any idea that that is the person voting.

PHILLIPS:  You have five people here.  Instead of everybody in the affirmative you 
have four people voting the negative, and one person abstains.  Then that is different than 
being the other way around obviously.  I think that is why that's in here just specifying it.

FOSTER:  It doesn't say unless there shall be a negative vote cast by the member's 
silence.  I didn't attach it.  I'm sorry, I did not attach it to the person being silent.

KNEBEL:  You can't cast a negative vote by being silent.  All you can cast is an 
affirmative vote by being silent, and that is what this says.

MILLER:  The only way you can cast a negative vote is to actually make a negative 
vote.  If you sit there silently, then you're going to be counted as a positive vote.

FOSTER:  A default mechanism, I guess, just trying to keep it clear.

RUANE:  But Bickley the negative vote doesn't have to be cast by somebody else.

FOSTER:  See I don't understand that.  If everybody understands that but me, fine.  But 
I can tell you I do not understand it.

DICKGRAFE:  Or you could add after negative vote "cast by such member", which 
would clear up Bickley's concern that unless permission has been granted or unless there 
has been a negative vote cast by such member, a member silence and voting shall be 
recorded as an affirmative vote.

RUANE:  Then have it be "(comma) that member's silence."  See what I mean.

FOSTER:  Who is such member?  That's the point.

RUANE:  Unless there shall have been a negative vote cast by…what did you say 
Sharon?

DICKGRAFE:  By such members, that member's silence.  That's fine.

RUANE:  That resolves it Bickley.  Next question.

FOSTER:  I have one other.  On the next page on Article 8, and I'm doing this because I 
want to learn about it too.  But okay, lets talk about…

DICKGRAFE:  Article 8?

FOSTER:  Article 8 (a), we are talking about the jurisdiction on the Board of Zoning 
Appeals.  Under Appeals I assume that gives us the right to have appeals and all of that, 
and variances give the right to have a variance and the sign code now where does it give 
the right to appeal a landscape code?

KNEBEL:  You can't, you don't have the…to appeal a decision of a landscape?

FOSTER:  That is what is in here now.

MILLER:  Basically you would be appealing an interpretation of the Zoning 
Administration.

DICKGRAFE:  An interpretation.

FOSTER:  Yeah, That is what I am getting at.  Shouldn't we list it under (a) here?

KNEBEL:  What page are you on?

FOSTER:  I am on Page 4, Article 3 number (a), and I am just rising, if we can?

KNEBEL:  It is an appeal.  It is number one.  It would be an appeal for that section of 
the City Code.

FOSTER:  Okay, is that reference, see I don't know, is the Landscape Code in the 
Zoning regulations, or a separate document?

KNEBEL:  No it is not.

FOSTER:  Or a separate document?

MILLER:  It is a separate ordinance.

FOSTER:  Then that is why we mentioned the sign code right, as a separate document?

KNEBEL:  Well we mentioned it as a variance of the sign code.  You can't vary 
anything in the landscape code.  But you can appeal.

FOSTER:  Shouldn't we put the landscape code in (a) somewhere if it is an appealable 
item?

KNEBEL:  No.

FOSTER:  If it is an appealable item.

KNEBEL:  It is appealable in the way it is written.

FOSTER:  Is it covered by number one, Scott?

KNEBEL:  Yes.

MILLER:  Yes.

DICKGRAFE:  Yes.

FOSTER:  So the appealing of the landscape is in the zoning regulations, but the 
appealing for signs is not in the zoning regulation.

KNEBEL:  I don't know why are you referring to the zoning regulations?

FOSTER:  Well it says appeal, section 2.125, so and so.

KNEBEL: Right but that is not the zoning regulations.

FOSTER:  All right, that is the code of the City of Wichita.

KNEBEL:  Right, but that is not the Zoning Code.

FOSTER:  Okay.  All I am saying is, where is the right for a person to appeal the 
determination made for the Landscape Code?

KNEBEL:  Section 2.12.590.

FOSTER:  Thank you, I couldn't see it.

RUANE:  Anything else on this item?

FOSTER:  I think that is it Mr. Chairman.  Let me turn the page here and see if I have a 
note.

DICKGRAFE:  I have just two comments when Bickley is finished.  In Article 6 Section 
A, the statute that was originally sited was 4319.   At some point during the discussions at 
the last meeting, at which I was not present for, it got changed to 4318.  It is my legal 
opinion that we need to go back to the 4319, which is the expressed previsions in the state 
statues, which was my concern with citing these statues, is if the statues change our 
bylaws would be wrong, but we wanted to cite our statues that 75-4319 sets forth the 
procedures to have a closed or executive meeting.  Eighteen just really states the purpose 
that meetings will be open.  So I am not sure why it was changed to 18, but it is my 
recommendation that we go back and cite appropriate statue, which is 75-4319.

FOSTER:  But doesn't 18 say that the Board of Zoning Appeals is a quasi-judicial body 
and that it doesn't come under the Open Meeting law?

DICKGRAFE:  No, it doesn't.

RUANE:  Sharon would you be more comfortable in citing…

DICKGRAFE:  Kansas Open Records Act, would be what…

RUANE:  Or exceptions thereto.  I think that is the smarter way to do.

DICKGRAFE:  Yes, because then if they amend 4319 to then be 4319 (a), 4319 (b)…

RUANE:  There will always be open meeting requirements and there will always be 
exceptions to it.  And we will never know what the precise statutory cite will be.

DICKGRAFE:  And I think originally I had this as allowed by the Kansas Open Records 
or Open Meeting Act and any amendments thereto, which gets you away from this which 
subsections you are arguing at later, and as long as we comply with the provisions we are 
fine.

RUANE:  I am only speaking for myself, but I would prefer it to be the Kansas Open 
Meeting Act and any exceptions thereto.

FOSTER:  Mr. Chairman, what I am referring to in 4318 is, no binding action but any 
administrative body that is authorized by law to exercise quasi-judicial functions, shall 
not be required to have Open Meeting, when such body is deliberating, waiting to a 
decision, involving such quasi-judicial functions.  That is what we do isn't it.  We are an 
administrative body.

DICKGRAFE:  Yes, but I think that is the whole purpose.  What I mean is what this 
article is talking about is that all of action will be, shall be public except if we go into a 
closed session.  That particular statue doesn't talk about going into a closed session.  That 
statue talks about essentially what are, or are not, required to have Open Meetings.

RUANE:  Who falls within the scope of Open Meetings, not who falls within, not what 
the exceptions to Open Meeting is.

DICKGRAFE:  Yes, Yes.

FOSTER:  I don't have 19 here.  Do you have 19 here?

DICKGRAFE:  Yes I do.

FOSTER:  Well I just think that 4318 is important to establish this group as a quasi-
judicial body, and that is what allows it to have closed sessions, and 4319 doesn't say 
anything about that.  It doesn't identify us as being a quasi-judicial body.  Maybe it is 
both things Sharon.

DICKGRAFE:  And that is why I think that we are saying if you put recess to a closed 
session as allowed by the Kansas Open Meeting Act, cite your statue, but accept and 
amendments thereto, you have covered it.

FOSTER:  Yes, I would agree with that, but that is why I leaned towards the 18 because 
it identifies it.  But the whole thing Mr. Chairman would take care of it.

RUANE:  Does that sound like an all of the above solution?  What's next?

FOSTER:  I think that is it Mr. Chairman.

RUANE:  Sharon did you have another point?

DICKGRAFE:  Yes I had another one.  On Article 5, we have talked about giving 
notices to the property owners of the appeal.  That's not something that is currently 
required by the ordinances that govern this board.   Scott has pointed out to me that there 
are some zoning code provisions that say you can pass rules regarding your notices, and 
that is probably something that we need to clean up.  But that is certainly something that 
is not required by 2.12.580, and that maybe some ordinance clean up that staff and I need 
to do after this.

RUANE:  And this would particularly address the Steven's sign interpretation of 
Schroeder's?

DICKGRAFE:  Yes, and certainly there is not a legal problem with the board giving 
additional notice.  It is just that we probably need to be consistent and get our ordinances 
to conform.

RUANE:  I think from a fairness standpoint this is a very wise move and if there, until it 
gets into the statue, we can at least have this part for it.

DICKGRAFE:  Yeah, I think staff can go ahead and comply with the rules.

FOSTER:  I think you are going to find more appeals on more difficult cases related to 
correction facilities in Wichita, and it would be a wise idea thing to give more notice.

RUANE:  And this would provide that would it not.

DICKGRAFE:  Yes.

FOSTER:  And I think that the rules, these are our rules, and we can give, as Sharon 
says, more notice.  I don't have any further comments at this time.

RUANE:  Okay, have we collectively in our minds, guaranteed, gathered the changes we 
have seemed to agree to here by consensus and the draft we have in front of us?  Sharon 
do you feel pretty comfortable?  Did you pick up the consensus from what we seem to 
want from here?

DICKGRAFE:  Yes.

RUANE:  Well then I think we need a motion to adopt and approve these amendments to 
our rules and regulations as confirmed by Sharon's notes.

DICKGRAFE:  With the two changes, which are actually just the addition in Article 2E 
the clarification and the change in Article 6A, which reference the Kansas Open Meeting 
Act rather than a specific statue which is a portion of that Act.

FOSTER:  And to move those regulations.

DICKGRAFE:  Oh yes and the rules and regulations from the first page.

PHILLIPS moved SKELTON second, to approve amendments to the Board 
of Zoning Appeals Rules and Regulations.

Motion carries 5-0.

RUANE:  We are to # 5.  J.R. is not here.  Does that mean that we don't have a report 
from Central Inspection or do we have a standard?  No report?  Anything else to come 
before the Board?

FOSTER:  May I ask, do we have the Landscape Code in the material we received 
Scott?  I was trying to look for it

KNEBEL:  No it is not in there.

FOSTER:  We probably ought to have it.  We got the Sign Code.

RUANE:  We got this, I assume because I asked for it.

KNEBEL:  Well and that is new.  That is a recently adopted version.

FOSTER:  It seems to me, didn't we get one of the Sign Code too. I don't recall.  I think 
we did several months ago.

KNEBEL:  I think the last time it changed was in June of 1998.

DICKGRAFE:  I think when Randy Sparkman came and talked to the board he gave out 
copies, but it's has been a while ago.

FOSTER:  Why don't we say Mr. Chairman that if we have a case on either the 
landscape or on the sign again, we probably ought to have a copy at that time.  How 
would that be?

RUANE:  And in addition, lets have staff really direct us in their recommendations or 
comments as to which provision of those codes we need to zero in on.  Since we are less 
familiar with them.  Since in fact I would really rather do that than have a copy of the 
code.  That is just my preference.  Meeting adjourned see you next…

Meeting adjourned 2:39 p.m. 
BZA MINUTES                   February 26, 2002                    PAGE 23