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BZA Meeting Minutes - August 25, 2014

Chairman Fritz called the Board of Zoning Appeals meeting to order at 6:00pm.

PRESENT AT ROLL CALL: Mr. Bolek, Mrs. Cooper, Ms. Corcoran, Mr. Fritz, Mr. Stanard
ABSENT: Mayor Renda

OTHERS PRESENT: Dave Strichko, Building Inspector, Aimee Lane, Assistant Law Director, Jeff Filarski, Village Engineer, Sherri Arrietta, Clerk of Council

Mrs. Cooper made a motion seconded by Mr. Stanard to approve the minutes of the July 28, 2014 meeting.

AYES: Mrs. Cooper, Ms. Corcoran, Mr. Stanard
ABSTENTIONS: Mr. Bolek, Mr. Fritz

Chairman Fritz declared the public hearing open at 6:02pm. At this time, Mrs. Lane administered the oath to those who wanted to speak at the hearing.

Seth Uhrman
35 Farwood Drive
Use Variance – Deer Fence

Mr. Seth Uhrman, homeowner, and Ms. Heidi O’Neill, landscape architect, were present at the meeting. Mr. Uhrman stated that he is proposing to remove the white plastic fencing that is currently around the pool and instead, erecting a deer fence around the entire backyard. He stated that his main concern is safety; however, he would like to change the fencing for aesthetic reasons. Ms. O’Neill stated that the deer fencing that they are proposing to install would be 8 feet tall and is unobtrusive; it is not visible within 25 ft. since it will be in the woods. She stated that the material is very strong and could not be torn with your hands and there are no gaps at the bottom since a portion of it will be buried. Ms. O’Neill stated that she is confident that it is safe because if it can keep out 300 lb. animals, it should be able to keep out a child. The portion of the fencing that will face the street at the front of the house will be black aluminum and 4 feet in height. Ms. O’Neill pointed out that the current fence around the pool is not in compliance with Village Ordinances.

Mr. Fritz asked Ms. O’Neill about whether she feels if an animal would be able to dig a hole at the bottom portion of the fence and since the fence is not rigid could a child possibly lift that portion of the fence up and get underneath it. Ms. O’Neill stated that it is pulled very tight so they would not be able to lift it up and if so, only a little bit. Ms. Corcoran asked if the stakes would be visible at night. Ms. O’Neill stated that they will not be visible unless you are 8-10 feet away from it. Mr. Fritz asked about gates on the deer fence. Mr. Uhrman stated that there will be either one or two which will be locked; they still have to determine the locations.

Mr. Fritz asked Mr. Strichko if this proposed fence meets the requirements for a rigid fence per the Code. Mr. Strichko stated that he does not believe it meets the criteria which is why he did not recommend approval of this request in his letter.

At this time, Mr. Fritz asked if there were any residents wishing to speak. Mrs. Janet Carll, neighbor of Mr. Uhrman, stated that she would. Mrs. Lane administered the oath to Mrs. Carll. Mrs. Carll stated she is also here speaking on behalf of Mr. Uhrman’s next door neighbor who could not attend the meeting. She asked Mr. Uhrman to explain the location of the fencing, specifically regarding the front yard. Mr. Uhrman stated that there will be a 4 foot iron fence, the width of the house in the front yard and the back portion of the house will have the 8 foot deer fencing surrounding the yard. Mrs. Carll stated that she does not understand the reasoning of an 8 foot fence to keep deer out when they could possibly jump over the 4 foot portion of the fence in the front. Ms. O’Neill explained to Mrs. Carll that part of the proposed change has to do with aesthetics; the deer fence will provide safety from the pool while being aesthetically more pleasing than the existing white fence around the pool. The reason the deer fence was chosen was that it would look the most natural and blend into the woods.

Chairman Fritz declared the public hearing closed at 6:16pm.

Mr. Stanard stated that while he likes the plan, he has a problem with the fence around the pool not being rigid enough. He stated that he is hesitant to approve anything contrary to a rigid fence surrounding a pool. Society has found that a rigid fence around a pool is necessary for safety purposes. Mr. Stanard stated the Mrs. Carll had a good point about deer being able to jump over the 4 foot portion of the fence.

Mr. Bolek stated that he agrees with Mr. Stanard and also the fact that the fence will not be immediately surrounding the pool, creates a much larger area to supervise as far as safety is concerned. He stated that he has concerns that they are relying on a deer fence for safety purposes. Ms. O’Neill asked Mr. Bolek if it would make a difference if the fence were chain link. Mr. Bolek stated that he still has concerns about there being a bigger area for supervision as we have all heard stories of people drowning with family members being right outside with them. He stated that a deer fence is not the same as a pool fence.

Mr. Fritz stated that he concurs with both Mr. Bolek and Mr. Stanard. He stated that Village requirements are for a rigid fence and unfortunately, because there was a child drowning incident in the Village, he stated that he is reluctant to go against the Village ordinance based on that reason alone.

Mrs. Lane informed the board that this request is for a use variance, therefore a recommendation to Council would be needed tonight, and Council would have the final say on this request. She stated that if this board is inclined to not grant the use variance, then she does not see any need for a vote on the height variance until after Council considers the use variance request.

Mrs. Cooper pointed out that the code does not specify how close around the pool the fence is required to be, only that it is required; however it does state that access to the pool should be through a gate that is securely locked. She stated that she does agree with Mr. Bolek’s point of enclosing the pool within some reasonable space. Mr. Fritz stated that while “around the pool” is a liberal definition, the fact that it states that access must be gained by going through a gate, you can surmise that someone coming from inside the house into the backyard, would have to access the gate which speaks for the intent of having a fenced closely surrounding the pool. Mr. Bolek agreed and reiterated that there is no way to prevent access to the pool when it is not in use with a fence that is only surrounding the property.

Mrs. Lane stated that the applicant at 35 Farwood Drive is seeking a use variance to install a deer fence in lieu of an existing pool fence and therefore seeking a variance from Section 1323.04 of the Codified Ordinances. The findings of fact are as follows:

1. Does the variance requested stem from a condition that is unique to the property at issue and not ordinarily found in the same zone or district? No, there has not been a representation of uniqueness at this property that has not been found at other properties in that same zone or district.
2. Will the granting of the variance have any material adverse effects on the public health, safety, or general welfare of the adjacent property owners or residents? It appears that it may have a material adverse effect on adjacent property owners; there are property owners in the audience who are concerned about the increased visibility to the pool area.
3. Will the granting of the variance have any material adverse effects on the public health, safety, or general welfare of the Village of Moreland Hills? Granting the variance could have material adverse effect on public health, safety, and general welfare of the Village of Moreland Hills because the Code clearly requires that the fence be erected around the pool to be a barrier to the pool and be made of rigid construction. The evidence provided by the applicant does not satisfy the board that those criteria are met.
4. Will the variance be consistent with the general spirit and intent of the Code? It will not because the board’s position is that a deer fence does not meet the requirement of a rigid fence. Furthermore, enclosing a pool with a fence that encompasses a large portion of the rear yard would not in any way control access to the pool which seems contrary to the Code provision.
5. Is the variance sought the minimum that will afford relief to the applicant? It does not appear to be the minimum to afford the applicant relief; it appears that this variance is based on a preference of this applicant and the applicant has not indicated that other options, such as a conforming fence, are out of the question.

Mr. Stanard made a motion seconded by Mrs. Cooper to accept the findings of fact.

AYES: Mr. Bolek, Mrs. Cooper, Ms. Corcoran, Mr. Fritz, Mr. Stanard

At this time, Mr. Uhrman withdrew is variance request.

Mr. Stanard made a motion seconded by Mrs. Cooper to adjourn the meeting at 6:30pm.

AYES: Mr. Bolek, Mrs. Cooper, Ms. Corcoran, Mr. Fritz, Mr. Stanard

Respectfully Submitted, 
Sherri Arrietta, Clerk of Council

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