MINUTES OF THE MEETING OF THE LOUISVILLE METRO BOARD OF ZONING ADJUSTMENT MARCH 21, 2011Appellant: Steve Zocklein 223 E. Oak Street Louisville, Kentucky 40203Subject: The Appellant, a neighbor, is requesting that theBoard find that non-conforming rights for five apartments were abandoned.Premises affected: On property knows as 224 East Oak Street and beingin Louisville Metro.COUNCIL DISTRICT 6—David JamesStaff Case Manager: Steve Hendrix, Planning SupervisorAppearances Opposing the Appeal:Deborah Bilitski, Attorney, 500 W. Jefferson Street, Suite 2800, Louisville,Kentucky 40202.John King, King Southern Bank, 3400 Dutchmans Lane, Louisville, Kentucky40205.Appearances Interested Party:No one.Appearances in Support of the Appeal:Leah Stewart, 1386 S. 6th Street, Louisville, Kentucky 40208.An audio/visual recording of the Board of Zoning Adjustment hearing related tothis case is available in the office of Planning & Design Services, located at 444South Fifth Street, Louisville, Kentucky.A letter from the Department of Codes and Regulations was sent to Ronnie J.Harris of King Southern Bank on December 7, 2010, which stated that non-conforming use rights had been established for the property known as 224 EastOak Street for five apartments. The appellant, which in this case is a neighbor, isclaiming that since the structure was vacant for more than a year and that theproperty owner did not pursue reinstatement of the non-conforming use by suchacts as would be pursued by a reasonable person with the intent to reinstate said
non-conforming use, that the non-conforming use was abandoned and theproperty reverts to the Traditional Neighborhood Zoning District of single andtwo-family residential.The appellant, Steve Zocklein, filed an appeal on February 1, 2011.On March 21, 2011, at a meeting of the Board, a hearing was held on the case.A drawing showing the premises affected and the existing and/or proposedconstruction was presented to each Board member.In accordance with the Board Bylaws, the staff report prepared for this case wasincorporated into the record. The Board members had received this report inadvance of the hearing and it was available to any interested party prior to thepublic hearing. See Addendum for staff report in full.The recording of this hearing will be found on the DVD of the March 21, 2011proceedings.SUMMARY OF STAFF PRESENTATION:9:31:24 Staff case manager, Steve Hendrix gave a brief presentation of thecase to the Board, which included a PowerPoint presentation. He said a letterwas sent to King Southern Bank on December 7, 2010, stating that non-conforming use rights had been established at the subject property for fiveapartments. The appellant for this case is a neighbor, who proclaims that theuse was abandoned for over a year so the property should revert back to theTraditional Neighborhood Zoning District of single and two-family residential. Mr.Hendrix said there are existing single, two-family and multi-family usessurrounding this property. He said at one point the property had some seriousstructural issues, but doesn’t know if this was an intended abandonment. ChairJarboe asked if the building was every totally unoccupied. Mr. Hendrix said atone point there was only one tenant according to the city directory, but could askthe owner and others involved.SUMMARY OF TESTIMONY OF OPPONENTS:9:39:24 Deborah Bilitski, Attorney for the property owner, said she has beenworking with the last and current owners’ of this property. She said the appealwas not filed in the required amount of time and objects. She said since theBoard did not receive their packets with the staff reports, is submitting highlightedinformation for their review. Ms. Bilitski explained some of the history of theproperty and transfer of titles. She said in 2009 King Southern Bank took theproperty back and initiated the process for determination of 5 units. She said onDecember 7, 2010, Codes and Regulations sent a letter to Ronnie J. Harris ofKing Southern Bank, which stated non-conforming rights had been establishedfor five apartments. She submitted affidavits from previous owners stating that ithad been used as an investment property with five apartments; in addition toother records from the fire department showing 5 units. Ms. Bilitski said the
interior has never changed and always had 5 separate units. The statement ofnon-conforming rights was recorded in 2010; and King Southern Properties soldit to the current owner. The current owner has repaired and cleaned up theproperty and all units are currently rented. She said the appellant filed thisappeal without giving them any information and no concrete evidence ofabandonment. The Caron’s Directory, is not 100% accurate, but illustrates that ithas been a multi-unit building. The owners’ never intended to abandon this right.She said there are even 5 separate meters indicating 5 separate units.9:51:20 Member Wagaman asked how long the building was vacant. Ms.Bilitski said neither she nor her clients’ know for sure. She said there may havebeen a period of vacancy between 2008 and 2009, but unsure if it was the entirebuilding or just some of the units. Member Wagaman asked when the powerwas turned back on. Ms. Bilitski said she doesn’t know. Member Grisanti askedif the property was ever listed for sale or rent.9:54:54 John King, Vice President of King Southern Bank, said the propertywas foreclosed on, so they took the property back. He wanted clarification of thenon-conforming rights before selling it. He said when they got the property backthere was one tenant and she was paying her own electric. Member Grisantiasked who brought up the issue of the non-conforming rights for the five units.Mr. King said Debra Richards with Codes and Regulations. He said they weren’tgoing to sell the property until they knew what they could do with it. MemberAllendorf said the e-mail from Debra Richards, notes that this property has beenabandoned for 4 years. Ms. Bilitski said she doesn’t know the basis of thisstatement since the Caron’s Directory states otherwise. There was morediscussion about the number of meters at various times. Mr. King said justbecause some of the meters weren’t there, doesn’t mean they intended todiscontinue the non-conforming rights. Ms. Bilitski said one of the previousowners was very sick and that they experienced financial hardship due to theeconomy. She said some of the meters were pulled because they didn’t havetenants for them, but was still never any of the owners’ intentions to abandon thenon-conforming rights. She reiterated that the inside has always had 5 separateunits and no evidence of changing the interior.SUMMARY OF TESTIMONY OF INTERESTED PARTIES:No one spoke as an interested party.SUMMARY OF TESTIMONY OF APPELLANT(S):10:07:36 Leah Stewart said she would also like rebuttal since the order waschanged. She said she disagrees with Ms. Bilitskis objection to the required timeto file the appeal. Ms. Stewart submitted various letters, affidavits and otherinformation into the record during her presentation. She said the neighbor andappellant, Steve Zocklein, filed the appeal when he noticed people frequentingthe property. She said he later found out about the staff determination
acknowledging the non-conforming rights for a five unit structure. Ms. Stewartsaid this is the only Traditional Neighborhood Zoning District and historicpreservation district. She said a lot of work went into changing the zoning and ismapped as Single Family Residential or Duplex. She said the property has beentroubled for a long time with the fire that occurred, the disrepair of the structure,and just sitting vacant. She said this property was on the Abandoned PropertiesList; and said she found information that in May of 2007, they lost their non-conforming rights. She said in 2006, the property was listed on the MLS site forsale, but no signs appeared on the property. In 2008-2009 Codes andRegulations listed this property as “Court Vacant Structure”; and per IPL recordsshows the property has been abandoned for 17 months. She said she found thatno inspections were done by the fire department; and that per the electricalpermit, the service had been turned off for over a year. Solid WasteManagement did not serve this property for 33 months. Ms. Stewart said shewould have brought the electrical and water records, but the judge ruled that thisis an invasion of privacy; and that the Board would have to subpoena theserecords. She said the records indicate that the property was in serious disrepairwith rotting window frames, garbage, graffiti, rodents inhabiting the inner walls,flies, a defective water heater and 5 feet of standing water in the basement. Shesaid the owner plead guilty in court and received multiple fines and liens againstthe property. Ms. Stewart submitted her findings of fact into the record andasked that they be adopted as part of the Board’s decision.10:44:29 Member Proffitt asked Ms. Stewart if she can prove without a doubtthat the units were not rented for over a year. Ms. Stewart said yes, because itwas uninhabitable. Member Proffitt said who determined this. Ms. Stewart saidReed Timberlake, with Community Housing and Urban Development.10:45:55 Member Grisanti said he might agree with Ms. Stewart if the interiorhad been renovated to a duplex, but since this is not the case, feels the owners’did not intend to abandon the non-conforming rights. Ms. Stewart said the Boardruled that they lost non-conforming rights in 2005.10:48:06 Michael Mawood, an area resident, said he walked through theproperty in 2009, and said there were no attached commodes and no way theycould have been leased. Member Grisanti said they could have been working onit at that point.REBUTTAL:10:49:57 Ms. Bilitski said granting Ms. Stewart rebuttal is against the Board’spolicies and objects to this. She said the Kentucky Constitution protects propertyrights and is why non-conforming rights doctrine exists. When the propertyowner has legally established non-conforming rights, should not be taken awayjust because the area was down zoned. She said the Board has determined inother cases that non-conforming rights exist for property owners’ even thoughproperties may not have been used accordingly for over a year. She said thisonly creates a “presumption of abandonment”; and has submitted a lot of
evidence that there was never any intent to abandon these rights. She reiteratedthat there have been no interior changes and affidavits from previous propertyowners of the subject property back to 1984 that it has always been used for 5rental units. Ms. Bilitski said the new owner has shown due diligence fixing upthe property and all units are now rented. She said she did not get copies of anyof the information submitted by Ms. Stewart and would need time to review it.She said all her information has been submitted into the file. Chair Jarboe askedhow much time she needed to review the information. Ms. Bilitski said she willaddress this information if the Board feels necessary10:59:32 Theresa Senninger, the Board’s legal counsel, said the Board cancontinue this case to allow time for this; and if any other information is neededfrom either party to aid in their decision.REBUTTAL MS. STEWART:11:01:13 Ms. Stewart said two apartments would fit nicely into thisneighborhood. She said it was originally built as a single family home and thenturned into the 5 apartments. She said she has submitted a lot of evidence thatthere was no service to this building to make it habitable; and that the Boardcould subpoena the water and electric bills for further proof. She said theproperty rights were abandoned; otherwise, they wouldn’t have let it get into suchdisrepair.BUSINESS SESSION:11:03:33 Member Wagaman asked if there’s a time limit to reinstate non-conforming rights. Jon Baker, the Board’s legal counsel, said no and that theremight be a presumption of abandonment if the property is not used under thenon-conforming use rights. He said it is the Boards’ job to weigh the evidence tomake a determination. Member Wagaman felt an established time limit would bemore appropriate. Member Liggin said they may not be sure of thecircumstances of the previous owners, but heard that the property has been fixedup and all the units are now rented. Member Grisanti reiterated that he mighthave felt the use was abandoned if they remodeled the inside to a duplex, butsaid this is not the case. He said there are still 5 units with 5 electrical meters.The burden of proof goes back to the owner and per the testimony, did not intendto abandon the use.11:20:03 Member Proffitt said they’ve received a lot of information today andwould like some time to go over it, including the 2005 BOZA case. He said hedoesn’t feel it’s been proven that the owner intended to give up this right andthinks the Board should continue this case. He questioned if King Southern Bankdid anything to try to rent out the units. Member Grisanti said there’s enoughinformation for him to make a decision. Member Liggin concurred. MemberFishman said the letter that said it had two units is making it confusing to her.Mr. Baker said a permit writer doesn’t have the authority to determine if non-conforming rights have been abandoned. Member Allendorf said he would like to
continue this case to go over all the information submitted today. He said whenmeters get pulled normally initiates an electrical inspection; so he would like tosubpoena the electric bills/records. Mr. Baker said he will need to know whatdates the Board wants. Member Wagaman said he would like testimony from theprevious owners and what their intent was with the property. Member Proffittsaid he would like to hear from an LG&E representative to find out what it meanswhen they pull a meter. Member Grisanti said he would like to see any evidenceabout the reduction in units from 5 to a lesser amount.11:42:34 Member Allendorf had to leave the hearing due to a fireemergency.11:51:48 Member Grisanti moved to continue this case to allow the Boardmore time to review the information received today; more evidence including theelectrical bills and rental agreements during the period from March 19, 2008 thruAugust 5, 2009; rental agreements; paperwork/deeds pertaining to previousownership; current owner to testify regarding renovations; Edward A. Bishop totestify; maintenance records; and was seconded by Member Liggin fordiscussion..DISUSSION:11:55:57 Mr. Hendrix asked if they wanted to continue to April 18, 2011. Mr.Baker asked if the Board wants him to subpoena anyone or records. MemberProffitt said if the information from LG&E can’t be attained then subpoena. Hesaid he would like someone from LG&E to attend the hearing to explain what itmeans when they remove a meter. Member Wagaman said Mr. Bishop lives outof town. Member Proffitt said he would like to know from Mr. Bishop if there wereleases and to know that he did not intend to abandon the 5 units.12:03:33 Member Grisanti then WITHDREW his motion for clarification andto include other information requested by the Board.12:03:46 After further discussion, Member Grisanti made a motion; and wasseconded by Member Fishman and the following resolution was adopted:RESOLVED, that the Board does hereby CONTINUE the public hearing toAPRIL 18, 2011 with the following information/records to be provided and peoplepresent to testify:1. Subpoena representative from LG&E that will be able to address: 1. Electric bills from March 19, 2008 thru August 5, 2009. 2. What is the meaning when a meter is removed? 3. The installation of meters, per electrical permit, (July 24, 2009).
2. Subpoena representative from Codes and Regulations and/or other government agency that will be able to address “court vacant structure” and “abandoned housing list”.3. Subpoena current owner so questions can be asked, in addition to when they purchased the structure. PVA information submitted by Deborah Bilitski shows: DF Investment Group, LLC 1473 S. 4th Street Louisville, KY 402084. Subpoena Mr. Edward A. Bishop or someone else that was part of Biscoe, LLC, that will be able to discuss leases, their intentions with the property and other pertinent information.The vote was as follows:YES: Members Wagaman, Liggin, Grisanti, Fishman, Proffitt and Jarboe.NO: No one.NOT PRESENT FOR THE VOTE: Member Allendorf left the hearing at11:42 due to a fire emergency.ABSTAINING: No one.