October 5, 2017

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MINUTES BOARD OF ADJUSTMENT OCTOBER 5, 2017

ROLL CALL: Mel Disney

Anna Krane, Planner Nicki Herrington

Kevin O’Keefe, City Attorney Rick Bliss Liza Streett Chairman Gary Soule

Chairman Soule called the meeting to order at 5:00 p.m. He noted that there is one item for consideration this evening and that there was a full complement of the Board (5 members) in attendance. All Board members and city staff introduced themselves.

The minutes of the September 7, 2017 meeting were presented for approval. There were a few minor corrections to be made; the recording secretary noted that she would make the corrections. The minutes were approved, as corrected.

APPEAL FROM TYLER STEPHENS, ARCHITECT ON BEHALF OF CENTRAL PRESBYTERIAN CHURCH – 7700 DAVIS DRIVE

Those in attendance representing the church were: Tyler Stephens-architect, Tim Page-Central Presbyterian Church’s Executive Administrator, Clay Smith-Church’s Senior Pastor and Tom Avery, Church’s legal counsel.

Those wishing to speak were sworn in by Kathy Scott, Planning Technician/Recording Secretary.

Chairman Soule asked if the City had any exhibits to present with regard to this appeal.

City Attorney O’Keefe presented the following exhibits:

A. City of Clayton Code of Ordinances B. Written request for extension C. Files and records of the City pertaining to this request D. Letter dated today from Robert Kuehn and Jennifer Jeffrey (City Attorney O’Keefe noted that they are not here/not under oath).

Chairman Soule asked the applicant if he had any objections to these exhibits being made part of the record.

Mr. Stephens replied “no”.

Chairman Soule noted that these exhibits will be entered into the record.

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Mr. Stephens noted that there are some new members on this Board since their last appearance; he asked if the Board wanted to hear/see the presentation.

Mr. Stephens began a PowerPoint presentation. The first slide depicted an aerial view of the subject property. Mr. Stephens noted that the site used to be smaller but they have combined lots. He explained that the church agreed to retain the single family residences along Biltmore Drive versus demolishing them and as a result, the church is more oriented toward Hanley Road; additionally, they built a parking garage to keep cars from parking on the neighborhood streets.

A slide depicting a site plan of the property was shown. Mr. Stephens noted that a lot of their (the Church’s) funds were used to pay for the garage.

Rick Bliss asked when the variances were originally granted.

City Attorney O’Keefe indicated that the variances that are the subject of tonight’s request for extension were originally approved in March, 2013.

Mr. Stephens stated that they’ve received positive comments about the work that has been done and that they’ve eliminated parking in the neighborhood. He noted that Phase II (church addition) is an important piece of the puzzle and that extensions have been sought as the church was in the process of seeking a Senior Pastor and the need to begin fundraising which is difficult to do without leadership.

Slides depicting various renderings were shown. Mr. Stephens noted that the addition to the church will connect the garage to the church. He indicated that their current deadline to file for building permit is March of next year.

Nicki Herrington asked if the addition is 2-stories.

Mr. Stephens stated that the front is only 1-story; the back consists of a basement and 2 floors above.

Nicki Herrington asked about materials.

Mr. Stephens stated it will be constructed of limestone. He noted that the plan has not been altered.

Nicki Herrington asked if the church anticipates an increase in membership especially because parking is no longer an issue.

Mr. Stephens stated that City’s parking regulations are based on the size of the sanctuary which makes sense; he added that the sanctuary is not increasing in size.

Mr. Page thanked the Board for getting them to this point and noted that the project has improved their relationship with Davis Place residents which were regrettably tense. He reiterated that the size of the sanctuary is not being increased. He noted that 2 years ago when

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they were last here, they did not have a senior pastor, but that they do now and his name is Clay Smith. He stated that leadership is needed to fundraise an 8 to 10 million dollar project such as this and that they need a bit more time.

Nicki Herrington questioned why Davis Place is unhappy with this Phase; she asked if it will interfere with the Davis Place neighborhood.

Mr. Stephens replied “no”, adding that the project [church addition] is entirely on the east side of the property.

Liza Streett asked if the letter from Mr. Kuehn and Ms. Jeffrey was accurate.

Mr. Page informed the members that he had not read their letter in its entirety, but he does not believe it is.

Mr. Avery addressed the Board by stating that they missed no deadlines as indicated in the subject letter and at no time had they run out of time; they have simply asked for extensions.

Chairman Soule went over the time-line; it was noted that the original variance was approved in 2013 and that this is the 4th extension request (the previous three having been granted).

Mr. Avery agreed.

Chairman Soule asked if they are again seeking a 2-year extension.

Mr. Avery replied “yes”.

Liza Streett commented that Mr. Stephens mentioned earlier the high cost of the garage, which she believes was a wonderful project. She asked if the garage had an impact on Phase II.

Mr. Stephens stated that originally, the church did not ask for a garage and that garages cost more than surface parking.

Liza Streett asked where the church is with the fundraising for this project.

Mr. Page informed the members that they have not yet begun their fundraising campaign, but that they have had conversations with key donors.

Liza Streett asked if there is a general agreement with the congregation the desire for this Phase II.

Mr. Page replied “yes”.

Liza Streett asked if the congregation is aware of this plan.

Mr. Page replied “correct”.

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Rick Bliss asked if they raised enough money to pay for Phase I.

Mr. Page replied “yes”; Phase I is paid in full.

Chairman Soule referred to an earlier mention of 8 to 10 million dollars; noting that according to a letter written in February, 2013, church representatives told Davis Place neighbors that the project would cost 7 to 8 million and take 3 to 5 years to raise the necessary funds.

Mr. Page did not disagree and stated that it is highly possible that statement was made in 2013.

Chairman Soule commented that it would not be surprising that the cost of the project would increase over time.

Mr. Page stated that is correct.

Chairman Soule asked what good a 2-year extension will do if it will likely take 3 to 5 years to raise the money.

Mr. Page stated that they will start campaigning and pledges will be made over time; there will be major donors and lesser donors. He informed the members that for Phase I, they had some money and they took out a line of credit with the committed pledges.

Chairman Soule asked how much Phase I cost.

Mr. Page replied “6 million”.

Pastor Smith introduced himself. He stated that he is excited about the project.

Nicki Herrington asked how the church foresees getting the money.

Pastor Smith indicated that they don’t believe it will be difficult to generate donations.

Chairman Soule asked for clarification that they do not have confirmed pledges at this point.

Pastor Smith replied “correct”.

Chairman Soule asked when they will begin their efforts.

Pastor Smith replied “the end of April”.

Nicki Herrington stated that the letter (from Mr. Kuehn & Ms. Jeffrey) cites missed extension deadlines; it does not refer to noise or construction.

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A discussion regarding the topic of Section 405.700 (time limit on approval) as contained in the City’s Code of Ordinances ensued. Chairman Soule asked the City Attorney’s legal opinion regarding this Section of the Code.

City Attorney O’Keefe informed the Board that it’s within their scope of authority to consider a request for an extension of a variance approval provided the facts under which the original variance/variances was/were granted remain the same, which in this case they do. He noted that 1 year is a tight time frame.

Chairman Soule asked Mr. Page if the money needed for the addition is not raised, the addition will not be built.

Mr. Page stated that is correct.

Mr. Avery stated that if nothing has changed in the underlying basis then this Board should grant the extension; referring to a legal term which is a collection of laws where a specific one does not apply (“Am Jur” - the abbreviation for “American Jurisprudence”).

Chairman Soule stated that’s a reference that lawyers use.

Rick Bliss asked what hardship this would cause if the extension is not granted.

Mr. Avery responded that they would have to go through the entire process again consuming time and expense.

City Attorney O’Keefe reiterated that the hardship related to the parking and coverage variances that were granted previously.

Rick Bliss stated that this is a beautiful project and that his take of the objection letter is the frustration or maybe even retribution. He stated that the City has rules and expects the rules to be followed and he questions why the church is the only applicant who keeps coming back for continuances; adding that they probably need a 5 year variance. He stated that he is troubled with coming back in 2 years.

City Attorney O’Keefe stated that it is his opinion that a 2-year variance can’t be granted and that it is more appropriate to do annual progress checks; with that he recommended a 1 year extension versus a 2 year extension. He added that once a government grants permission it becomes a vested right and questions the basis for which to take away that right.

Chairman Soule stated that the church had the opportunity to apply for building permits.

City Attorney O’Keefe stated that he does not disagree with that statement; however, he sees no grounds to take away a variance that was already granted given the circumstances under which the variances were granted have not changed.

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Chairman Soule indicated that he does not believe there is the likelihood that the church will raise enough money by the requested time period (of March, 2020). He stated he agrees that what the church has done so far is an improvement and his concern that when the church first appeared here, he was under the impression that both phases were to be constructed. He suggested that the church raise enough money necessary to begin the remaining portion of the project [church addition] and then come back when they are ready. He stated that he believes it would be a disservice to this Board’s duty to grant another extension and added that he is offended by the statement made to the contrary contained in the letter authored by Mr. Kuehn and Ms. Jeffrey, which he will deal with on his own. He added that this Board takes their responsibilities very seriously.

Mr. Page stated that he understands Chairman Soule’s perspective regarding the fundraising; however, he is confident that they can break ground in 2 years. He noted that the former Senior Pastor conceived this project and when he left [to be a professor], they lost church members.

Chairman Soule commented that Mr. Page’s statements further support his observations and that it is his recollection that the former pastor’s wife became ill and could not meet the demands of the position.

Mr. Page indicated that it was the interim pastor whose wife fell ill.

Mel Disney asked if the additional parking was completed.

Mr. Stephens replied “yes”.

Mel Disney stated that the coverage needs to be re-calculated.

Mr. Stephens indicated that the calculations included Phase II and the parking.

Planner Krane stated that the City’s zoning regulations that pertain to this project don’t allow for phasing and that the entire project was considered as one plan/project.

Mel Disney asked if the church would be able to come back and ask for only a coverage variance if this Board denies the extension request.

Planner Krane explained that if the extension expires {noting the current expiration of March, 2018}, the church would have to begin the process over.

Chairman Soule asked if future requests would entail the two variances as currently stated.

Planner Krane replied “yes, unless the project changes”.

Chairman Soule asked for clarification that if the project remains as the original plan, the variances needed would be the same.

City Attorney O’Keefe replied that he believed so.

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Mr. Stephens indicated that the time frame believed for the commencement of the project is not entirely accurate; key donors commit funds and then he prepares construction documents for submission to the City. He added that pledges come in over time while construction is underway.

Rick Bliss stated that there is a long history of unfulfilled pledges for many projects though not necessarily for this one.

Chairman Soule reiterated that there is no money pledged for this project at this time.

Mr. Stephens stated that there is no money pledged yet because they have not begun the campaign.

Chairman Soule commented that it would be prudent to have money in the bank or at least close to it.

Mr. Page informed the Board that the church has zero debt and strong assets; he added that it is his experience that 10% of pledges fall through.

Chairman Soule again suggested the church come back when they are ready.

City Attorney O’Keefe stated that we do not require applicants to have money available or ready; that’s not this Board’s realm. It is up to the applicant to take advantage of a variance that’s been granted and whether or not a member believes the applicant has the money or can get the money needed for the project is not relevant to this body; ample reasoning of an applicant’s ability to raise funds is not criteria for granting a variance.

Nicki Herrington asked about a 1 year versus a 2 year.

City Attorney O’Keefe stated that he believes 1 year is more appropriate.

Chairman Soule told the applicants that they have lost credibility with him.

Liza Streett asked what risk there is to this Board if they approve the extension.

Chairman Soule spoke to his concern about setting a precedent.

Liza Streett stated she agrees with City Attorney O’Keefe regarding taking away something that has already been granted and that it seems to her that there is no harm reviewing this each year; she stated she would rather see an annual review than taking away the former approval.

Chairman Soule stated that he respects her opinion.

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Nicki Herrington stated she agrees with Liza; she sees no harm extending the approvals and sees no reason to shut down a much needed expansion. She added that money is not this Board’s jurisdiction and feels this Board doesn’t have the right to shut them down.

Chairman Soule announced that the October 5, 2017 letter addressed to him and the rest of the Board members will be received into the record. He asked the applicant if there was an objection entering the letter into the record.

Mr. Avery replied “no”.

Mr. Stephens, referring to the Chairman’s earlier suggestion to come back when ready, the church agreed to give up parking in the neighborhood and in essence that created a hardship for them; there is not enough property/space to hold all the required parking.

Nicki Herrington asked how much the garage alone cost.

Mr. Stephens replied “3 million”.

Peggy Morgan, Davis Place resident (former resident of 8033 Rosiline; currently lives at 750 South Hanley Road), spoke in favor of the church and in support of the request.

City Attorney O’Keefe asked Mr. Stephens, for the record, if he is familiar with the church and the neighborhood.

Mr. Stephens replied “yes”.

City Attorney O’Keefe asked Mr. Stephens if he is aware of any change to the surface water or drainage system since 2013.

Mr. Stephens replied “no”.

City Attorney O’Keefe asked about parking demand in the neighborhood.

Mr. Stephens stated that the only additional parking demand in the neighborhood he is aware of is due to the nail salon.

Hearing no further questions or comments, Chairman Soule called for a motion.

Liza Streett made a motion to grant a one year extension of the two variance approvals. The motion was seconded by Nicki Herrington.

Rick Bliss asked if the church would have to do anything if the extension is denied tonight.

Chairman Soule stated that the church would go on as-is.

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City Attorney O’Keefe stated that the church would be considered a lawful non-conformity and nothing would have to be torn down.

Having heard a motion and a second; the following roll call votes were taken: Ayes: Nicki Herrington and Liza Street; Nays: Rick Bliss, Mel Disney & Chairman Soule. Motion fails.

No other motions were made.

The request for extension is denied. {Note: the current deadline remains March 7, 2018}.

Being no further business for this Board of Adjustment this evening, the meeting adjourned at 6:47 p.m.

_________________________ Recording Secretary