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Board Member Brauer stated that from the time the Board first heard about this, through the time that he missed and tonight's meeting the topography issue has shifted from in front of the garage to the rear of the garage, the topography between the garage and the metal shed. He continued it seems we have two sights we are looking at. The one close to the house is not an alternative, might be if you go out the front. The second sight north into where the garden area is located is the location that the Board needs to hear the undue hardship from the applicant. He understands that the hardship is the distance between the sight and the metal building in back of it. Mr. Hogue stated that he agreed that is the hardship as well as the high peak would make gutters necessary. In Mr. Hogue's location the water would split at the peak and water his trees on one side and the garden on the other side. Planning Manager Miller stated that the City Engineer stated at the last meeting that the low spot is in the rear of the yard and if you put gutters on the building and drain tile you could direct the drainage from the building and it would naturally drain to the corner and around to the rear. Discussion ensued regarding the slope and drainage. Board Member Brauer stated that the Board unfortunately has to go by the law. Ms. Hogue stated this is the third time they had been before the board, and wondered why the Supreme Court decision hadn't come up before. Planning Manager Miller stated that Staff was not aware of it at that time. Board Member Levine stated the City didn't understand an interpretation until last month. He told the applicant if the vote does not go their way, there is the appeal process and they certainly have the right to appeal and would encourage that. Chairperson Van Scoy stated the Board looks for flexibility within the ordinances; however, they are obligated to operate within those ordinances. Board Members discussed Finding of Fact numbers 24 and 25. Motion by Chairperson Van Scoy, seconded by Board Member Levine that the Board adopt Resolution #10 -09 -xxx adopting findings of fact not favorable to the applicant with number 24 to read "The City finds there is an acceptable alternative site to the north of the primary structure no nearer the front property line ". Motion failed. Voting Yes: Chairperson Van Scoy, Board Member Rogers. Voting No: Board Members Dunaway and Levine. Abstain: Board Member Brauer. Absent: Board Member Cleveland. Motion by Board Member Brauer, seconded by Chairperson Van Scoy to adopt Resolution #10- 09 -xxx adopting findings of fact not favorable to the applicant with number 24 to read "The City finds that there is an acceptable location to the north of the structure and located no nearer the Board of Adjustment /September 2, 2010 Page 4 of 5