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Board of zoning appeals approves variances for Kingfisher Steakhouse & Lounge years ago

Staff reporter

More than 40 people packed into the Marion County Commission room Thursday evening to hear arguments for and against an outdoor seating area at Kingfisher Steakhouse & Lounge at Marion County Lake.

When discussions ended and nearly three hours had passed, Marion County Board of Zoning Appeals approved variances to allow the development with two conditions: an engineer, hired by the county, determines the need for a guard rail and the engineer determines a five-foot high wrought iron fence will not obstruct the view of the lake by property owners.

The decision of the appeals board is final but can be appealed through district court.

Before discussions began, appeals board member Bob Maxwell excused himself from discussion and voting on the issue because of past contact with owner Jim Novak.

Board member Mary Avery read a prepared statement that said she had received notification of the hearing because she owns property within 1,000 feet. She said whether this development occurred or not, it would not affect her enjoyment of her property; therefore, she could make an informed and unbiased decision.

The variances requested were a one-foot front setback instead of a required 50-foot, and a three-foot back setback instead of 20 feet. The variances were required for a building permit for the outdoor patio.

Owners Jim and Tina Novak said they had planned outdoor seating with a view of the lake since they purchased the property in 2005.

"We want to build an outdoor patio so diners are able to sit outside and enjoy the view of the lake," said Jim Novak. The Novaks had consulted with Hett Construction and devised a development plan that would compliment the current restaurant building.

A five-foot high black wrought iron fence with eight-foot posts would be erected.

"Customers will enter the outdoor area through the restaurant," said Novak. Customers can leave the fenced area through a one-way gate but cannot enter.

Low lighting and music also were part of the plan.

"Our goal is to have a casual ambiance for diners," he said.

Novak said county residents and other customers support the idea, and showed the board 290 signatures.

"This is a 'plus' not a negative," he said.

Board chairman Eileen Sieger said the board looks at five conditions to allow variances but economic development is not one of those conditions.

An existing privacy fence that separates the restaurant from a residence would be extended to provide continued privacy for the homeowner.

Novak explained that there would be 18 feet from the edge of the asphalt road to the patio.

Most concerns expressed by county lake property owners in attendance at the meeting was the hours of operation.

Currently the restaurant is licensed to stay open until 2 a.m. Tina Novak said they don't always stay open that late but if there are customers, they do.

The Novaks said they do not plan to have live music or cause any other noise issue for neighbors.

"We want people to use the patio as an area to talk by escaping the noise inside," said Jim Novak.

Board member Marquetta Eilerts asked if the proposed patio would cause a "blind" corner at the intersection of Upland Road and Lakeshore Drive. Novak said the fence rods would be five to six inches apart which would allow visibility. Also it would be difficult to see the fence from the stop sign at the intersection.

Previously the Novaks were advised by former county zoning administrator David Brazil that a guard rail was needed along the fence.

"We were told that a drunk driver could hit the fence but I've noticed some porches are exposed and just as close to the road," said Novak.

Sieger asked if law enforcement had been contacted regarding the location of the patio and safety issues. Novak said he talked with the sheriff's department and was told there wasn't an issue.

Novak said the curve of Lakeshore Drive would make a vehicle veer toward the water, not the restaurant, if an inattentive or intoxicated driver were to miss the curve by the restaurant.

When the meeting was opened for public comment, Lavonne Hannaford, who owns property just west of the restaurant, said she had a concern about the fence blocking her view of the lake.

Her husband Roger "Bud" Hannaford said he was in support of the Novaks and the restaurant but had concerns about people drinking alcohol outdoors until 2 a.m.

Sandy Winslow, 17 Random Road, said she was "all for a beer garden" but had a problem with the hours.

"Has anybody been around alcohol and it has been quiet?" she asked. She said she liked the Novaks and understood their dream but she had a dream, too, and that is to live at the lake.

Winslow also commented on the amount of trash she's had to pick up since the restaurant reopened in December. Overflow parking from the business has resulted in a "no parking" sign being erected by Winslow.

McPherson attorney John Klenda said he represented Alan Coxen who lived just north of the restaurant. He said their concerns were lighting, live entertainment, loud music, hours of operation, and occupancy of the patio area.

Klenda requested, on behalf of his client, the lighting be shaded, music be on a conversational level with speakers away from the neighbors, and cease outdoor activities at 11 p.m.

"We're not opposed to the variances with these conditions," he said.

Jim Novak said the capacity of the patio seating would be 24. The restaurant has an occupancy limit of 108.

Gordon Pendergraft, 2 Random Road, said he was glad the restaurant reopened but moved to the lake for peace and quiet. His concerns were traffic, trash, and future owners.

"What's going to happen when the restaurant sells?" he asked. He also said the overflow parking on the south side of Lakeshore Drive was established when the previous restaurant closed at 9 p.m.

Charles Kannady of Kannady and Associates of Marion said prior to the Novaks' signing a contract to purchase the property, Brazil had been contacted. Sketches were reviewed of the proposed outdoor patio. County commission Dan Holub also was contacted to assure Kannady and the Novaks that there would be no issues with the development.

Kannady said the county allowed the former owners of the restaurant to use county property for overflow parking with no designated time frame. Kannady said that Jim Herzet, county road and bridge superintendent, had told Kannady there was no need for a guard rail.

"This is commercial property," said Kannady, "and was there prior to most of the houses in the area."

Dan Crumrine, 20 Lakeshore Drive, said he has had neighbors and has seen campers who hosted parties until the "wee hours in the morning."

"I don't see the difference," he said. "If you shut down the restaurant you have to shut down everybody else (at 11 p.m.)."

Jim Novak said he understood that the 11 p.m. noise curfew was for visitors camping on county-owned property, not those on private property.

Sandy Uhrig, 5 Random Road, said she was concerned about the safety of her grandchildren when customers leave the restaurant.

"Customers tend to exit west instead of using the entrance (Upland Road)," she said, which causes additional traffic on Random Road. "It's not anything the Novaks can control but it is an issue."

Random Road and other lake roads located off Lakeshore Drive are not owned and maintained by the county.

Board member David Mueller asked if the Novaks would consider closing the outdoor patio at 11 p.m. Tina Novak said the patio would be part of the restaurant and should have the same hours.

Jim Novak said not all of their customers are loud. When customers become loud and obnoxious, they are removed from the premises and sometimes banned from the restaurant.

"Alcohol does not leave our restaurant," he said. "I have picked up cans from my property and they have been brands of beer that we don't sell. If I can't have people on my patio, why should other people be allowed to? Let's not make an assumption that everyone drinks and are noisy."

Verlyn Uhrig, 5 Random Road, said currently they can hear noise from the restaurant at their house. He added that two customers who got citations for driving while intoxicated after drinking at the restaurant could cause the restaurant to be closed.

Margie Schwartz, 4 Hill Road, said drunk drivers, litter, noise, and speeding vehicles have been issues at the lake prior to the reopening of the restaurant.

The board briefly discussed the issues and said staff member Brazil had made a recommendation which was not divulged.

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