The Louisville Metro Board of Zoning Adjustment held a meeting on March 21, 2011 to consider an appeal regarding non-conforming rights for five apartments at 224 East Oak Street. The appellant, a neighbor, claimed the rights were abandoned when the building sat vacant for over a year. Testimony was provided by the property owner's representative, the bank that foreclosed on the property, interested parties, and the appellant. The Board decided to continue the hearing to allow more time to review documents and subpoena additional records and testimony regarding ownership history and utility service.

1. MINUTES OF THE MEETING
OF THE
LOUISVILLE METRO BOARD OF ZONING ADJUSTMENT
MARCH 21, 2011
Appellant: Steve Zocklein
223 E. Oak Street
Louisville, Kentucky 40203
Subject: The Appellant, a neighbor, is requesting that the
Board find that non-conforming rights for five apartments were abandoned.
Premises affected: On property knows as 224 East Oak Street and being
in Louisville Metro.
COUNCIL DISTRICT 6—David James
Staff Case Manager: Steve Hendrix, Planning Supervisor
Appearances Opposing the Appeal:
Deborah Bilitski, Attorney, 500 W. Jefferson Street, Suite 2800, Louisville,
Kentucky 40202.
John King, King Southern Bank, 3400 Dutchmans Lane, Louisville, Kentucky
40205.
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 to
this case is available in the office of Planning & Design Services, located at 444
South 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 East
Oak Street for five apartments. The appellant, which in this case is a neighbor, is
claiming that since the structure was vacant for more than a year and that the
property owner did not pursue reinstatement of the non-conforming use by such
acts as would be pursued by a reasonable person with the intent to reinstate said

2. non-conforming use, that the non-conforming use was abandoned and the
property reverts to the Traditional Neighborhood Zoning District of single and
two-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 proposed
construction was presented to each Board member.
In accordance with the Board Bylaws, the staff report prepared for this case was
incorporated into the record. The Board members had received this report in
advance of the hearing and it was available to any interested party prior to the
public hearing. See Addendum for staff report in full.
The recording of this hearing will be found on the DVD of the March 21, 2011
proceedings.
SUMMARY OF STAFF PRESENTATION:
9:31:24 Staff case manager, Steve Hendrix gave a brief presentation of the
case to the Board, which included a PowerPoint presentation. He said a letter
was sent to King Southern Bank on December 7, 2010, stating that non-
conforming use rights had been established at the subject property for five
apartments. The appellant for this case is a neighbor, who proclaims that the
use was abandoned for over a year so the property should revert back to the
Traditional Neighborhood Zoning District of single and two-family residential. Mr.
Hendrix said there are existing single, two-family and multi-family uses
surrounding this property. He said at one point the property had some serious
structural issues, but doesn’t know if this was an intended abandonment. Chair
Jarboe asked if the building was every totally unoccupied. Mr. Hendrix said at
one point there was only one tenant according to the city directory, but could ask
the owner and others involved.
SUMMARY OF TESTIMONY OF OPPONENTS:
9:39:24 Deborah Bilitski, Attorney for the property owner, said she has been
working with the last and current owners’ of this property. She said the appeal
was not filed in the required amount of time and objects. She said since the
Board did not receive their packets with the staff reports, is submitting highlighted
information for their review. Ms. Bilitski explained some of the history of the
property and transfer of titles. She said in 2009 King Southern Bank took the
property back and initiated the process for determination of 5 units. She said on
December 7, 2010, Codes and Regulations sent a letter to Ronnie J. Harris of
King Southern Bank, which stated non-conforming rights had been established
for five apartments. She submitted affidavits from previous owners stating that it
had been used as an investment property with five apartments; in addition to
other records from the fire department showing 5 units. Ms. Bilitski said the

3. interior has never changed and always had 5 separate units. The statement of
non-conforming rights was recorded in 2010; and King Southern Properties sold
it to the current owner. The current owner has repaired and cleaned up the
property and all units are currently rented. She said the appellant filed this
appeal without giving them any information and no concrete evidence of
abandonment. The Caron’s Directory, is not 100% accurate, but illustrates that it
has 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 have
been a period of vacancy between 2008 and 2009, but unsure if it was the entire
building or just some of the units. Member Wagaman asked when the power
was turned back on. Ms. Bilitski said she doesn’t know. Member Grisanti asked
if the property was ever listed for sale or rent.
9:54:54 John King, Vice President of King Southern Bank, said the property
was foreclosed on, so they took the property back. He wanted clarification of the
non-conforming rights before selling it. He said when they got the property back
there was one tenant and she was paying her own electric. Member Grisanti
asked 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’t
going to sell the property until they knew what they could do with it. Member
Allendorf said the e-mail from Debra Richards, notes that this property has been
abandoned for 4 years. Ms. Bilitski said she doesn’t know the basis of this
statement since the Caron’s Directory states otherwise. There was more
discussion about the number of meters at various times. Mr. King said just
because some of the meters weren’t there, doesn’t mean they intended to
discontinue the non-conforming rights. Ms. Bilitski said one of the previous
owners was very sick and that they experienced financial hardship due to the
economy. She said some of the meters were pulled because they didn’t have
tenants for them, but was still never any of the owners’ intentions to abandon the
non-conforming rights. She reiterated that the inside has always had 5 separate
units 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 was
changed. She said she disagrees with Ms. Bilitski's objection to the required time
to file the appeal. Ms. Stewart submitted various letters, affidavits and other
information into the record during her presentation. She said the neighbor and
appellant, Steve Zocklein, filed the appeal when he noticed people frequenting
the property. She said he later found out about the staff determination

4. acknowledging the non-conforming rights for a five unit structure. Ms. Stewart
said this is the only Traditional Neighborhood Zoning District and historic
preservation district. She said a lot of work went into changing the zoning and is
mapped as Single Family Residential or Duplex. She said the property has been
troubled 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 Properties
List; 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 for
sale, but no signs appeared on the property. In 2008-2009 Codes and
Regulations listed this property as “Court Vacant Structure”; and per IPL records
shows the property has been abandoned for 17 months. She said she found that
no inspections were done by the fire department; and that per the electrical
permit, the service had been turned off for over a year. Solid Waste
Management did not serve this property for 33 months. Ms. Stewart said she
would have brought the electrical and water records, but the judge ruled that this
is an invasion of privacy; and that the Board would have to subpoena these
records. She said the records indicate that the property was in serious disrepair
with rotting window frames, garbage, graffiti, rodents inhabiting the inner walls,
flies, a defective water heater and 5 feet of standing water in the basement. She
said the owner plead guilty in court and received multiple fines and liens against
the property. Ms. Stewart submitted her findings of fact into the record and
asked 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 doubt
that the units were not rented for over a year. Ms. Stewart said yes, because it
was uninhabitable. Member Proffitt said who determined this. Ms. Stewart said
Reed Timberlake, with Community Housing and Urban Development.
10:45:55 Member Grisanti said he might agree with Ms. Stewart if the interior
had 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 Board
ruled that they lost non-conforming rights in 2005.
10:48:06 Michael Mawood, an area resident, said he walked through the
property in 2009, and said there were no attached commodes and no way they
could have been leased. Member Grisanti said they could have been working on
it at that point.
REBUTTAL:
10:49:57 Ms. Bilitski said granting Ms. Stewart rebuttal is against the Board’s
policies and objects to this. She said the Kentucky Constitution protects property
rights and is why non-conforming rights doctrine exists. When the property
owner has legally established non-conforming rights, should not be taken away
just because the area was down zoned. She said the Board has determined in
other cases that non-conforming rights exist for property owners’ even though
properties may not have been used accordingly for over a year. She said this
only creates a “presumption of abandonment”; and has submitted a lot of

5. evidence that there was never any intent to abandon these rights. She reiterated
that there have been no interior changes and affidavits from previous property
owners of the subject property back to 1984 that it has always been used for 5
rental units. Ms. Bilitski said the new owner has shown due diligence fixing up
the property and all units are now rented. She said she did not get copies of any
of 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 asked
how much time she needed to review the information. Ms. Bilitski said she will
address this information if the Board feels necessary
10:59:32 Theresa Senninger, the Board’s legal counsel, said the Board can
continue this case to allow time for this; and if any other information is needed
from either party to aid in their decision.
REBUTTAL MS. STEWART:
11:01:13 Ms. Stewart said two apartments would fit nicely into this
neighborhood. She said it was originally built as a single family home and then
turned into the 5 apartments. She said she has submitted a lot of evidence that
there was no service to this building to make it habitable; and that the Board
could subpoena the water and electric bills for further proof. She said the
property rights were abandoned; otherwise, they wouldn’t have let it get into such
disrepair.
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 there
might be a presumption of abandonment if the property is not used under the
non-conforming use rights. He said it is the Boards’ job to weigh the evidence to
make a determination. Member Wagaman felt an established time limit would be
more appropriate. Member Liggin said they may not be sure of the
circumstances of the previous owners, but heard that the property has been fixed
up and all the units are now rented. Member Grisanti reiterated that he might
have felt the use was abandoned if they remodeled the inside to a duplex, but
said 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 intend
to abandon the use.
11:20:03 Member Proffitt said they’ve received a lot of information today and
would like some time to go over it, including the 2005 BOZA case. He said he
doesn’t feel it’s been proven that the owner intended to give up this right and
thinks the Board should continue this case. He questioned if King Southern Bank
did anything to try to rent out the units. Member Grisanti said there’s enough
information for him to make a decision. Member Liggin concurred. Member
Fishman 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

6. continue this case to go over all the information submitted today. He said when
meters get pulled normally initiates an electrical inspection; so he would like to
subpoena the electric bills/records. Mr. Baker said he will need to know what
dates the Board wants. Member Wagaman said he would like testimony from the
previous owners and what their intent was with the property. Member Proffitt
said he would like to hear from an LG&E representative to find out what it means
when they pull a meter. Member Grisanti said he would like to see any evidence
about the reduction in units from 5 to a lesser amount.
11:42:34 Member Allendorf had to leave the hearing due to a fire
emergency.
11:51:48 Member Grisanti moved to continue this case to allow the Board
more time to review the information received today; more evidence including the
electrical bills and rental agreements during the period from March 19, 2008 thru
August 5, 2009; rental agreements; paperwork/deeds pertaining to previous
ownership; current owner to testify regarding renovations; Edward A. Bishop to
testify; maintenance records; and was seconded by Member Liggin for
discussion..
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. Member
Proffitt said if the information from LG&E can’t be attained then subpoena. He
said he would like someone from LG&E to attend the hearing to explain what it
means when they remove a meter. Member Wagaman said Mr. Bishop lives out
of town. Member Proffitt said he would like to know from Mr. Bishop if there were
leases and to know that he did not intend to abandon the 5 units.
12:03:33 Member Grisanti then WITHDREW his motion for clarification and
to include other information requested by the Board.
12:03:46 After further discussion, Member Grisanti made a motion; and was
seconded by Member Fishman and the following resolution was adopted:
RESOLVED, that the Board does hereby CONTINUE the public hearing to
APRIL 18, 2011 with the following information/records to be provided and people
present 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).

7. 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 40208
4. 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 at
11:42 due to a fire emergency.
ABSTAINING: No one.