MINUTES OF THE MEETING OF THE LOUISVILLE METRO BOARD OF ZONING ADJUSTMENT APRIL 18, 2011 DRAFT MINUTESNEW BUSINESS:CASE NO. B-15416-11Appellant: Steve Zocklein 223 E. Oak Street Louisville, Kentucky 40203Owner: DF Investment Group, LLC 1473 S. 4th Street Louisville, Kentucky 40208Subject: An Appeal of a determination by the Department ofCodes and Regulations concerning non-conforming rights for a structure.Premises affected: On property knows as 224 East Oak Street and beingin Louisville Metro.COUNCIL DISTRICT 6—David JamesStaff Case Manager: Steve Hendrix, Planning Supervisor(CONTINUED FROM MARCH 21, 2011)Administrative Officials:Paul Nicholson, Information Systems Supervisor, Louisville Metro Department ofCodes & Regulations, 444 S. 5th Street, Louisville, Kentucky 40222.Steve Hendrix, Planning & Design Services, 444 S. 5th Street, Louisville,Kentucky 40202.April Robbins, Louisville Metro Department of Codes and Regulations, 444 South5th Street, Louisville, Kentucky.Subpoenaed Witnesses:Dale Bielefeld, Manager Field Services Operations, LG&E and KU Energy, LLC,220 West Main Street, Louisville, Kentucky 40202.Edward Alan Bottom, Team Leader Revenue Collection, LG&E and KU Energy,LLC, 220 West Main Street, Louisville, Kentucky 40202.
MINUTES OF THE MEETING OF THE LOUISVILLE METRO BOARD OF ZONING ADJUSTMENT APRIL 18, 2011 DRAFT MINUTESNEW BUSINESS:CASE NO. B-15416-11Appearances Opposing the Appeal:Deborah Bilitski, Attorney, 500 West Jefferson Street, Ste. 2800, Louisville,Kentucky 40202; who submitted information/letters into the record.Brandon Denton (current owner of 224 East Oak), DF Investment Group, LLC,1473 S. 4th Street, Louisville, Kentucky 40208.Previous owner of the property:Ted Bishop (previous owner of 224 East Oak), BISCO Properties, 1152 S. 6thStreet, Louisville, Kentucky 40203.Appearances Interested Party:No one.Appearances in Support of the Appeal:Leah Stewart, 1386 S. 6th Street, Louisville, Kentucky 40208.Christopher White, 119 W. Ormsby Avenue, Louisville, Kentucky 40203.Paul Mastrolia, Department for Housing & Family Services, 745 W. Main Street,Louisville, Kentucky 40202.Charles Cash, 500 Upland Road, Louisville, Kentucky 40206.Steve Zocklein, 223 E. Oak Street, Louisville, Kentucky 40203.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, is
MINUTES OF THE MEETING OF THE LOUISVILLE METRO BOARD OF ZONING ADJUSTMENT APRIL 18, 2011 DRAFT MINUTESNEW BUSINESS:CASE NO. B-15416-11claiming 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 would be pursed by a reasonable person with the intent to reinstate saidnon-conforming use, that the non-conforming use was abandoned and theproperty reverts to the Traditional Neighborhood Zoning District of single andtwo-family residential.On February 1, 2011, the appellant filed an appeal of this action.On March 21, 2011, this case was continued by the Board.On April 18, 2011, at a meeting of the Board, a hearing was held on the case. Adrawing 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 April 18, 2011proceedings.SUMMARY OF ADMINISTRATIVE OFFICIALS:8:46:19 Paul Nicholson, Information Systems Supervisor, Louisville MetroDepartment of Codes & Regulations, said he runs the abandoned propertyreports for the city. He said if violations are sent to the property owner and theyget no response after a year, the information is sent to the Housing Department,who then determines the property abandoned. Member Wagaman asked what a“Court Abandoned” property is. Mr. Nicholson said the property is in court forsome reason. He said if the taxes haven’t been paid in 3 years, the propertygoes on another list. He said the property can be considered vacant even if theproperty owner is maintaining the building, grass, etc.9:00:02 Deborah Bilitski, Attorney for the property owner, asked Mr.Nicholson if he knows of any specific information about the subject property. Mr.
MINUTES OF THE MEETING OF THE LOUISVILLE METRO BOARD OF ZONING ADJUSTMENT APRIL 18, 2011 DRAFT MINUTESNEW BUSINESS:CASE NO. B-15416-11Nicholson said he knows there’s a case, but has no idea what’s included in thefile.9:00:43 Leah Stewart, representing the appellant, showed Mr. Nicholson anIPL print out showing the property as a “Court Vacant Structure” and if this istypical. Mr. Nicholson said yes. Mr. Nicholson said he writes the code thatproduces these reports; and does not review them. Ms. Stewart asked him if heis a computer programmer. Mr. Nicholson said yes.SUMMARY OF TESTIMONY OF SUBPOENAED WITNESSES:9:02:06 Dale Bielefeld, Manager Field Services Operations, LG&E and KUEnergy, LLC, said he’s in charge of meter removals and installation,disconnection and reconnection of services. Member Proffitt said the onlyreason they would remove a meter is if a property owner said they are convertingfrom 5 units to a single family home. Mr. Bielefeld said generally yes, and also ifthey receive a wrecking permit or if there is theft of service. He said they alsodisconnect power if a unit is not rented, but can be easily restored. He said therecords for this property indicate that they have 5 individual meters and onehouse meter for common areas (e.g. hallways/laundry room).9:10:00 Ms. Stewart asked Mr. Bielefeld if one or more of the meters wereremoved. He said he doesn’t have that information, but believes there was nousage for awhile for units 2, 4 and 5.9:11:21 Edward Alan Bottom, Team Leader Revenue Collection, LG&E andKU Energy, said no meters were removed from this property. He said the housemeter was installed in January of 2010. He said he researched the records forthis property back to 2005 and two of the units have been active since then. Hesaid if the meters are inactive for a year or more, would have to be inspectedbefore the service is turned back on. He said all five meters are active now forthis property.9:19:10 Ms. Stewart asked if the two meters that were active were showingnormal or minimal usage. Mr. Bottom said it was minimal, just to keep the lightson.
MINUTES OF THE MEETING OF THE LOUISVILLE METRO BOARD OF ZONING ADJUSTMENT APRIL 18, 2011 DRAFT MINUTESNEW BUSINESS:CASE NO. B-15416-119:20:10 Christopher White said the electrical permit from July of 2009,where the service was reactivated said he was told by the contractor that therewere only three meters (the house meter and units 4 and 5). Mr. Bottom saidthey have meter readers that go by every month; and are getting readings on 5meters and a house meter. Mr. Bottom said if there’s no meter, it would show upas a meter route, and that this did not show up in his records.9:24:00 Ms. Stewart said that for about 14 months there was very littleusage and the bill was not being paid. Mr. Bottom said yes.PREVIOUS OWNER’S SUMMARY OF TESTIMONY—OPPOSED TO APPEAL:9:26:38 Ted Bishop said some of the units sat vacant at various times whilehe and his partners owned it, but said that he always cut the grass. He said atone point he had to evict everyone because of various issues; and didn’t put upfor rent signs because of possible theft. He said he never abandoned theproperty and tried to actively rent the apartments through ads in the CourierJournal newspaper. He said he finally sold the property because one of hispartners became seriously ill and the other lost his job.CROSS-EXAMINATION:9:40:54 Ms. Stewart asked Mr. Bishop about the amount of time thebuilding sat vacant. Mr. Bishop said he does not know the exact amount of time,but that it did sit vacant for awhile. Ms. Stewart asked him if he had any of theads from the Courier Journal she could see. Mr. Bishop said no. Ms. Stewartsaid there were several maintenance violations and that he went to court 15times. Mr. Bishop said yes, but that he corrected all the problems. Ms. Stewartsaid the water was turned off for three years. Mr. Bishop said the water was shutoff because of frozen pipes.9:45:09 Mr. White asked Mr. Bishop why he had trouble renting out theunits. Mr. Bishop said they were small units far from U of L. He said he also hadbad tenants that drove away the good tenants.9:46:21 Ms. Bilitski asked Mr. Bishop if he ever intended not to rent theunits out. Mr. Bishop said no. She asked him if he intended to keep the propertyas a 5-plex. He said yes; and tried to work with King Southern Bank to try andkeep it.
MINUTES OF THE MEETING OF THE LOUISVILLE METRO BOARD OF ZONING ADJUSTMENT APRIL 18, 2011 DRAFT MINUTESNEW BUSINESS:CASE NO. B-15416-11CURRENT OWNER’S SUMMARY OF TESTIMONY – OPPOSED TO APPEAL:9:48:12 Brandon Denton with DF Investment Group, LLC, said they boughtthe property December 29, 2010; and the 5 units were easily distinguishable. Hesaid they spent $100,000.00 to fix it up which was mostly cosmetic work; and thatall the units are currently leased. Mr. Denton said they are a propertymanagement company, so they advertised the units on their website. He saidthey do thorough background checks (criminal/credit) and have good tenants intheir building.SUMMARY OF TESTIMONY OF APPELLANTS:10:01:32 Leah Stewart presented a PowerPoint presentation to the Boardsaid there is some confusion over how the properties got on the AbandonProperties List and that Mr. White would discuss this.10:02:23 Mr. White said he understands that Codes and Regulations refersdistressed properties to Metro Housing and Community Development and that arepresentative would discuss this. He asked Mr. Mastriola with the Departmentof Housing and Family Services to testify.DEPARTMENT OF HOUSING AND FAMILY SERVICES SUMMARY OFTESTIMONY:10:05:52 Paul Mastrolia with the Department of Housing and FamilyServices, said the Abandoned Urban Properties List (AUP) is what generates atax classification. He said the property must be vacant an entire year and haverecorded violations to be on this list. Mr. White said the subject property was onthe list in 2005 and at that time was an appeals process, but no appeal was filed.Member Proffitt asked who determines a property is vacant. Mr. Mastrolia saidCodes and Regulations. Member Proffitt said the list would not indicate if theproperty owner is trying to rent the units because they’re just relying on whatCodes and Regulations tells them. Member Grisanti questioned the tax ratechange. Mr. Mastrolia said the tax rate triples on properties that are on this listbecause properties are not being maintained. Member Proffitt asked if thisproperty is still on this list. Mr. Mastrolia said he doesn’t think so.
MINUTES OF THE MEETING OF THE LOUISVILLE METRO BOARD OF ZONING ADJUSTMENT APRIL 18, 2011 DRAFT MINUTESNEW BUSINESS:CASE NO. B-15416-11CROSS EXAMINATION:10:11:38 Ms. Bilitski asked Mr. Mastrolia who asked him to be here to testifytoday. He said his supervisor. She asked him who asked his supervisor. Hesaid Mr. White. Ms. Bilitski asked if the county attorney’s office contacted him totestify. He said they did not talk to him and is unaware if they talked to hissupervisor or anyone else.10:12:24 Mr. White said at the last hearing they asked if they couldsubpoena someone from Housing and Family Services, but it didn’t make it intothe motion. Mr. White said he spoke with Maria Timberlake with Housing andFamily Services, who said the property didn’t show up on the AUP list in 2009because it shows up a year later; and that this list was suspended later by TonyLindauer for various reasons.10:14:38 Ms. Stewart said the previous owner plead guilty to severalmaintenance violations. She said she spoke with April Robbins with Codes andRegulations, asking her what a Court Vacant Structure meant. She said she wastold that the structure was vacant from March 2008 to August 2009 and goingthrough the court system and added that no order to vacate was issued. Ms.Stewart asked Ms. Robbins to verify this.10:15:30 April Robbins, Codes and Regulations, was swore in and said yes.Member Proffitt asked her if she ever felt the property was abandoned. Ms.Robbins said no; and that she and Mr. Hendrix determined that it was a 5-plex.10:19:28 Mr. White said he spoke with an LG&E employee who turned thepower back on for 3 meters, and told him there were no other meters present,except the house meter. Member Grisanti asked him if there was wiring. Mr.White said he did not ask that question.10:22:30 Ms. Stewart then discussed similar case law which supported theirbeliefs with regards to losing non-conforming rights status. She said the TNZDshould protect neighborhoods from undesirable development and preserve thehistoric character; and that the Board needs to determine this, not staff.SUMMARY- SUPPORTING APPEAL:
MINUTES OF THE MEETING OF THE LOUISVILLE METRO BOARD OF ZONING ADJUSTMENT APRIL 18, 2011 DRAFT MINUTESNEW BUSINESS:CASE NO. B-15416-1110:34:17 Charles Cash said he and his wife lived next door to the subjectproperty and had a hard time selling once potential buyers found out the propertywas abandoned. He said it took them over a year to sell it, and they had to take$10-15,000.00 less than what they wanted.10:36:17 Steve Zocklein, the appellant and adjacent neighbor, said he haslived at his home since 2002 and has watched the property deteriorate. He saidtenants were selling drugs and noticed prostitutes in the area. He said this is theonly 5-plex in the area and is lowering their property values.10:39:01 Member Proffitt left the meeting.10:40:38 Leah Stewart said her findings of fact are on the last two pages ofher booklet is a typo on the fourth finding and that the finding should read:WHEREAS, there was no assurance that any would-be purchaser wouldcontinue the non-conforming use as evidenced by . . . Ms. Stewart said they donot have a problem with the current owner, but feel the previous ownerabandoned the property and thereby loses the non-conforming rights status for a5-plex.SUMMARY OF TESTIMONY OF OPPONENTS/REBUTTAL:10:42:00 Deborah Bilitski, attorney for the owner of the subject property, saidthis property may have been vacant for over a year, but doesn’t mean the non-conforming rights have been abandoned. She said she has submitted affidavitsfrom previous owners of the property and all said they intended to keep it a5-plex; and that even staff agreed that non-conforming rights exist for 5 units.She said the previous owners tried to rent the units and kept the grass cut, butfell on very hard financial times. She said King Southern Bank asked for a staffdetermination before selling the property; and that the new owner invested$100,000.00 into the property and has all the apartments rented. She said non-conforming rights cases are fact specific and the Board must rely on thetestimony and evidence submitted to make a determination; and that thisevidence should speak for itself.SUMMARY OF TESTIMONY OF INTERESTED PARTIES:No one spoke as an interested party.
MINUTES OF THE MEETING OF THE LOUISVILLE METRO BOARD OF ZONING ADJUSTMENT APRIL 18, 2011 DRAFT MINUTESNEW BUSINESS:CASE NO. B-15416-11BUSINESS SESSION:11:05:51 Member Grisanti said it appears to him that there was never anintent to abandon the non-conforming use for 5 units because the number ofunits were never modified. Member Jarboe said she feels they should look at theactions of the owner such as not paying taxes and that the building was nothabitable. Member Grisanti said they heard testimony from the owners’ that theynever intended to change the use. Theresa Senninger, the Board’s legalcounsel, said to look at the information collectively to make a decision.NON-CONFORMIG RIGHTS:11:37:37 After the public hearing in open business session, on a motion byMember Grisanti, seconded by Member Liggin, the following resolution wasadopted:WHEREAS, the Board finds from the file of this case, the staff report, thePowerPoint presentation(s) and the evidence and testimony presented at thepublic hearing that this appeal concerns a staff determination that acknowledgesa five unit apartment structure; andWHEREAS, the Board finds that by the affidavits submitted by current andprevious owners of the property located at 224 E. Oak Street from 1984 through2010, and the statement non-conforming use issued by the Louisville MetroDepartment of Codes and Regulations in December of 2010, that the propertyhas contained five (5) apartment units since prior to November 12, 2002, whenthe property was rezoned from R-7 Multi-Family Residential to TNZD, and thatthe use of these apartments was not abandoned following the rezoning of theproperty to TNZD; andBecause the subject property that there was never any intent to abandon thenon-conforming rights for a five unit apartment building; nor was the buildingaltered to reduce the number of units at anytime; andWHEREAS, the Board further finds that the sworn affidavits were submitted bythe owners of the property from 1984 through 2010 which provide that theproperty at 224 E. Oak Street contained five (5) apartment units at all times sinceat least 2000; and
MINUTES OF THE MEETING OF THE LOUISVILLE METRO BOARD OF ZONING ADJUSTMENT APRIL 18, 2011 DRAFT MINUTESNEW BUSINESS:CASE NO. B-15416-11WHEREAS, the Board further finds that the Louisville Metro Department ofCodes and Regulations issued a statement of non-conforming use rights inDecember of 2010 confirming its position that the property has non-conformingrights for five apartment units; andWHEREAS, the Board further finds that although there was a period of time thatthe property at 224 E. Oak Street was unoccupied, such was the result ofeconomic hardship of the owner at the time, Bisco Properties; one of the ownersof Bisco Properties testified he did not intend to abandon the use of the buildingas a five-plex, and he took action to repair as he was financially able and kept theunits available for rent at all times, which demonstrates there was no intention toabandon the non-conforming use rights; also when the property was taken backby deed in lieu of foreclosure, King Southern Bank, applied for and obtainedadministrative approval of non-conforming rights for five apartment units, whichevidences a clear intent not to abandon non-conforming rights; and the currentowner, DF Investment Group, renovated and fully leased the five apartments,also evidencing a clear intent to maintain the use of the property as a five-plex;and because at all times since at least November of 2002, five separateapartment units were maintained in the building and no actions were taken by theowners to combine the units into any lesser number of units, which furtherevidences that non-conforming rights for five units were maintained and notabandoned;NOW, THEREFORE, BE IT RESOLVED, that the Board does herebyACKNOWLEDGE that non-conforming rights exist for a five unit apartmentstructure on property located at 224 East Oak Street.The vote was as follows:YES: Members Wagaman, Liggin, Grisanti and Fishman.NO: Member Jarboe.NOT PRESENT FOR THIS CASE AND NOT VOTING: Member AllendorfProffitt.ABSTAINING: No one.
MINUTES OF THE MEETING OF THE LOUISVILLE METRO BOARD OF ZONING ADJUSTMENT APRIL 18, 2011 DRAFT MINUTESNEW BUSINESS:CASE NO. B-15416-1111:43:09 Upon conclusion in open business session, on a motion by MemberGrisanti, seconded by Member Liggin, the following resolution was adopted:WHEREAS, the Board finds that the action of the administrative official wasproper;NOW, THEREFORE, BE IT RESOLVED, that the letter from the Louisville MetroDepartment of Codes and Regulations was proper.The vote was as follows:YES: Members Wagaman, Liggin, Grisanti, Fishman and Jarboe.NO: No one.NOT PRESENT FOR THIS CASE AND NOT VOTING: MembersAllendorf and Proffitt.ABSTAINING: No one.NOW, THEREFORE, BE IT FURTHER RESOLVED, that the Board does herebyDENY the Appeal.