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BY MR. FISHER: Mayor, I'd like to read some -- we have talked about
accessory buildings and usage. We've talked about structures. We
have talked about conditional uses. I'd like to take a second to read
from the 1976 ordinance, if I could, which was in effect at the time this
was going on and which applied. Some of these definitions perhaps many
of you or all of you have heard. Some of you may not have heard, and I
just want to go over them all, if I could, real quick. (Examines
document.) An accessory building or use; any building or use which is
subordinate or incidental to the main building or dominant use of the
lot. That was the definition in 1976, and that's the definition in
1997. There was an addition in 1977. It says dominant use of the
lot or premises, excluding driveway, sidewalks and fences. A structure
-- and I believe this is almost word for word also -- anything constructed
or erected, the use of which requires a fixed location on the ground or
attached to something having a fixed location on the ground. Among
other things, structures include buildings, mobile homes, wall fences and
billboards but shall not include transient trailers. Now, there's been a lot
of questions or a lot of people have posed to me, well, this was legal in 19
-- pre April 1997, and now the new ordinance makes it illegal. I just
-- the ordinance doesn't say that. It says the same thing in 1976 to
1997 as it says from 1997 to today, what it describes, what a structure is,
what an accessory building is, what an accessory use is. We don't -- and I
don't know of any ordinance that is all-inclusive of everything that 23,000
people could possibly come up with and put in their yard. It would be
impossible to put a document like that together. Jehu had mentioned a
few structures, accessory buildings that were not mentioned. He
mentioned the store house. He mentioned a shed. He mentioned
some other things. It also doesn't mention smokehouses. It
doesn't mention straw huts. It doesn't mention outhouses. It
doesn't mention bamboo huts. It speaks in generalities about accessory
buildings or accessory uses and it defines it. It speaks about
structures and it defines it. But going back farther than 1976, and I refer
now to the Green Acres subdivision's protective covenants which was signed
on July 15th, 1960. In the minutes from the public hearing from the
zoning commission, there was a question wanting to know why there wasn't a
subdivision covenant or something that would have affected it in the front
yard. The response, by the attorney, Mr. Smith -- I assume that to be
the attorney -- said, Checked that and it didn't prohibit it. It's an
older subdivision where Kitchings is. It's an older subdivision.
I think there were like two and a half pages of covenants. I've got
two pages of covenants here signed July 15th, 1960, by Mr. Hannah, W. E.
Hannah. And in No. 7, it said that the covenants will run for 25 years
from 1960 and renew itself every ten years, automatically. So it's
still under effect. Point 3 in there says no building shall be located on
any lot nearer than -- originally, it said 30 and then it was crossed out
and initialed by Mr. Hannah to say 40 feet from the front lot line. It
goes back to 1960. Approximate measurement of the treehouse from the lot
line is in the area, I believe, of 20 feet. Conditional use -- and I
understand Mr. Smith is an advocate for the other position, but it also
talks about a permit in 1976. Everything that he read, and then it says, a
permit, building permit or change of use permit granted by the mayor and
board of aldermen for the initiation of a conditional use. The
necessary restrictions included will not change the zoning of the property
involved and will allow such use to continue only during the occupancy or
ownership of the person to whom such permit is granted. Clearly calls
for a permit. And this was in the 1976 ordinance. Everything that we
go to, everything that I go to always brings me back to the same wording,
and that is, we needed a permit in 1976 to April of 1997, and it continues
at the initiation, the beginning, from 1997 forward. It is my
understanding of zoning -- and I think the general term people use is
grandfathering in or special exemptions or conditional uses. You can't
-- you cannot grandfather something in that is illegal. You can't just
make it so. To do so brings us, the board members, into the area of
arbitrary and capricious, and you have serious problems in zoning when you
become arbitrary and capricious. These are the types of things that we
have to watch out for. These are the types of things that we have to
address as we look citywide and we attempt to fairly and equally spread our
zoning ordinances across the city and do what is in the right -- the right
thing for the best interests of the majority of the city. Like Jehu, like
everybody else on the board, I have spent a great deal of time looking over
all this information, trying to come up with a way to make it work, a way
that's legal, a way that's ethical and a way that's moral, and I haven't
been able to do that, not by what's been presented and not by what I can
find here. And that's why I'm going to have to agree with the motion tonight
asking for the removal of the treehouse. Thank you, Mayor.
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