an appeal of a staff determination regarding 224 continued
DESCRIPTION
Presentation to BOZA continuance on 4.18.2010TRANSCRIPT
An Appeal of a Staff Determination regarding224 East Oak St Case B-15416-11
Continued
Review 2002 BISCO purchased 224 East Oak
7/28/03 – 10/11/10 Property failed 39 separate inspections by C&R
7/31/03 – 5/16/06 5 separate fines imposed, later filed as liens
2005 Address appears on Abandoned Urban Properties list
Review 2002 BISCO purchased 224 East Oak
7/28/03 – 10/11/10 Property failed 39 separate inspections by C&R
7/31/03 – 5/16/06 5 separate fines imposed, later filed as liens
2005 Address appears on Abandoned Urban Properties list
8/9/06 SWMS discontinues service and notes on work order that house is vacant. Service restored on 7/10/09
3/19/08 – 5/12/09 C&R lists as “Court Vacant Structure”
7/24/09 Electrical contractor restores service to house meter and 2 other meters, noting on permit that “service has been off for over a year”
10/5/08 Bench warrant issued
5/12/09 Owner pled guilty to violations of Property Maintenance code
Questions from last hearing
Per April Robbins, “This structure is vacant and it is in the court system somewhere.”
No Order To Vacate (OTV) was issued. March 19, 2008 through August 5, 2009, a
period of 17 months.
“Court Vacant Structure”
Questions from last hearing
1023 S. 3rd Originally built as a single family structure Later divided into 5 units R7 prior to TNZD Owner occupied After 1993 only the owner lived in the
property, using the other apartments for storage. Apartments were intact with numbers on the doors.
No building permits issued to create apartments
Water usage indicated single family volume
Staff Determination to deny nonconforming use
Appealed to BOZA Denied nonconforming use as multi-family
224 East Oak Originally built as a single
family structure Later divided into 5 units R7 prior to TNZD Rental After 2002 rented sporadically
and/or vacant
No building permits issued to create apartments
Water turned off per Louisville Water Company
Staff Determination to affirm nonconforming use
Appealed to BOZA ?
Comparison of 1023 S. Third and 224 E. Oak
Questions from last hearing
On Permit “Power has been off for over a year”
On July 24, 2009 power was not restored to the entire house
Only three meters existed - the house meter for the common areas and meters marked “4” and “5”
Electrical Contractor and Electrical Permit clarification
Questions from last hearing
2003 Complaints began to be called in to IPL resulting in inspections
12/7/10 Staff Determination issued, but neighborhood has no way of knowing this
12/29/10 ZALU initiates ORR 1/3/11 Lou Metro PDS replies to ORR and grants
access to the files. 1/31/11 Steve Zocklein, with ZALU support files an
appeal of the Metro PDS Staff Determination of nonconforming use for 224 East Oak
2/1/11 Metro Hansen system shows receipt and processing of Zocklein appeal
Timeline of events
Report from Louisville Water Company ZALU was able to get the following
information through an ORR Water service had been turned off prior to
3/31/08 and remained off through at least 5/1/09 – 13 months
Prior occupancy
Caron’s/Polk’s
1980 – 2010 1 to 6 units
Criss Cross
1980 – 2010 vacant to 3 units
Conflicting Staff OpinionsThere is a lot of information in the staff file indicating a difference of opinion on nonconforming use for 224 East Oak
1/21/10 communication between CEO Bishop and John King regarding single-family v. 5 plex. King “wants to know how to make 3 plex.”
9/8/10 emails between George Pate and Debra Richards where Richards declares the property “single family or duplex; it has lost non-conforming rights by virtue of being vacant past 4 years.”
10/20/10 April Robbins suggests that King Bank take this case to BOZA “because we did not have enough info to
make a decision”
Dwelling units per acre R7 Maximum Density: ………….34.8 dwellings per acre
Therefore the 5th apartment is not a legal use
Calculation43,560 square feet per acre
43,560/34.8 (maximum density) =1,251.72 (minimum lot area per dwelling unit)
Lot dimensions are 32.5 X 179.2 = 5,824 square feet
5,824/1,251.72 = 4.65 units allowed or 4 allowable units.
LDC Chapter 2, Part 1, Section E.2 reads in part, When this calculation yields a fraction of a dwelling unit, the fractional part may not be considered unless it is equal to or greater than 80% (.8) of a unit.
Intent
Intent v desire
Intent
Intent v desire Martin v Beehan
Intent
Intent v desire Martin v Beehan
There is no rationale as to the long period of disuse of the property
Intent
Intent v desire Martin v Beehan
There is no rationale as to the long period of disuse of the property
No inference of financial inability or governmental impediment
Intent
Intent v desire Martin v Beehan
There is no rationale as to the long period of disuse of the property
No inference of financial inability or governmental impediment
Wiser to sell the property rather than continue the use
Intent
Intent v desire Martin v Beehan
There is no rationale as to the long period of disuse of the property
No inference of financial inability or governmental impediment
Wiser to sell the property rather than continue the use
No assurance that any would-be purchaser would continue the nonconforming use
Intent
Intent v desire Martin v Beehan
There is no rationale as to the long period of disuse of the property
No inference of financial inability or governmental impediment
Wiser to sell the property rather than continue the use
No assurance that any would-be purchaser would continue the nonconforming use
That intent must be born out by a showing of facts and not merely a plan in mind
More than a “plan in mind”
“Mere contemplation of use of the property for a specific purpose is not sufficient to place it in a nonconforming-use status. Nor is the purchase of the property accompanied by an intent to use it for a specific purpose sufficient.” - Legrand v. Ewbank, 284 SW 3d 142 – 2008
Either an overt act or a failure to act indicates the owner no longer claims a right to the nonconforming use. In the case of 224 East Oak, the owner repeatedly failed to act as a reasonable person would who was attempting to rent the property.
Why 224 East Oak matters
TNZD protects Old Louisville/Limerick from unwanted and undesirable development and preserves the historic character of the
neighborhood. The future wellbeing of the whole area is at
stake if the enforcement of the zoning laws is in question. Neighbors perspective
Two units permitted
Appellant's Proposed Findings of Fact
WHEREAS, the Board finds, from the evidence and testimony submitted at the public hearing that this appeal involves the use of an existing structure in a Traditional Neighborhood Zoning District (TNZD), and
WHEREAS, the Board finds the staff researched the zoning on the site since 1971, and
WHEREAS, there was no governmental impediment that restricted the owner from freely exercising nonconforming use is he had so desired, and
WHEREAS, there was no assurance that any would-be purchaser would continue the nonconforming use, and
WHEREAS the owner(s) evidenced by his actions nothing more than a “plan in mind”, and that there was not a showing of facts indicating the actions of a reasonable person actively attempting to maintain and rent the property,
NOW, THEREFORE, BE IT RESOLVED, that the Board finds that non-conforming rights do not exist for the structure at 224 East Oak Street for 5 dwelling units.