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BZA 05-15-07 Meeting MinutesMEETING MINUTES OF THE FREDERICK COUNTY BOARD OF ZONING APPEALS Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street, Winchester, Virginia, on, May 15, 2007. PRESENT Theresa Catlett, Chairman, Opequon District; Robert Perry, Vice Chairman, Stonewall District; Kevin Scott, Shawnee District; Dwight Shenk, Gainesboro District; Eric Lowman. Red Bud District; Jay Givens, Back Creek District; and, Robert W. Wells, Member -At- Large. ABSENT: STAFF PRESENT Mark R. Cheran, Zoning and Subdivision Administrator; Lauren Krempa, Planning Technician; and Bev Dellinger, BZA Secretary. CALL TO ORDER The meeting was called to order by Chairman Catlett at 3:25 p.m. On a motion by Mr. Perry and seconded by Mr. Wells, the minutes for the March 20, 2007 meeting were unanimously approved as presented. The cut -off date for the June meeting is May 18, 2007, and at this time, there are no items to be heard. PUBLIC HEARING Appeal Application 904 -07 of Joyce E. Myers, to appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance pursuant to Article V - RA Rural Areas District, Section 165 -50 - Permitted Uses, pertaining to animal shelters. The subject property is located at 625 Town Run Lane, and is identified with Property Identification Number 85 -A -137 in the Opequon Magisterial District. ACTION — APPEAL GRANTED Mr. Cheran gave the staff report. This is an appeal of the determination of the Zoning Administrator in the interpretation of the Frederick County Zoning Ordinance, Section 165 -50, Permitted Uses, as to animal shelters as a permitted use in the RA (Rural Areas) zoning district. Frederick County cited the applicant on June 6, 2006, for operating a kennel. The applicant was adjudicated by the General District Court as to this violation. The applicant's Motion to Dismiss, recorded in the General District Court, identifies the use on this property to be an animal shelter, not a kennel, and the General District Court agreed with the applicant that the use on this property was not a kennel but an animal shelter. Minute Book Page 1439 Frederick County Board of Zoning Appeals Minutes of May 15, 2007 Mr. Cheran further stated that on February 27, 2007, the applicant was cited by Frederick County for operating an animal shelter in the RA (Rural Areas) Zoning District. Section 165 -50 of the Frederick County Zoning Ordinance does not allow for animal shelters in the RA Zoning District. In accordance with the Frederick County Zoning Ordinance, animal shelters are classified by Standard Industrial Classification (SIC) 0752 as ... "Animal specialty services, except veterinary, with all activities and animals kept within a fully enclosed primary structure ". SIC -0752 is a permitted use only in the B2 Business General) and B3 (Industrial Transition) Zoning Districts. Animal shelters are treated as public buildings in the M1 (Light Industrial) and M2 (General Industrial) Zoning Districts. Frederick County zoning does not delineate between private, public or rescue animal shelters. Therefore, the animal shelter located on this property is not a permitted use in regards to Section 165 -50 of the Frederick County Zoning Ordinance and is not permitted in the RA zoning district. Staff is requesting to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Section 165 -50, that animal shelters are not an allowed use in the RA zoning district. Mr. Cheran directed Board members to their agenda packet. The applicant's Motion to Dismiss states... "The Shelter is dedicated to removing dogs and cats from shelters where they would otherwise. be euthanized and adopting them out to suitable homes ". A copy of the zoning ordinance pertaining to animal shelters is also in the agenda packet. Rezoning ordinances use the SIC Code. The SIC Code is used as a guide. As an example, Mr. Cheran stated if someone came into the Planning Department who wanted to open a boarding kennel, staff would look under the SIC Code. Kennels are allowed in the RA zoning district with a conditional use permit and there are design standards for that. If it is a shelter like the Esther Boyd Shelter, it is treated as a public building. Mr. Cheran also included photographs, over a period of time, showing the applicant's setup in her yard. Mr. Cheran stated that the applicant is represented by Mr. Ty Lawson, who is present. Mr. Lawson identified himself and stated for the record that Dr. Myers is not present today. Before the meeting started, Mr. Lawson gave the BZA Secretary copies of a letter and exhibits which she then placed at each member's seat. Mr. Lawson stated this is a case that has been going on for a little while and has actually been through one version of charges. Kevin Henry worked on both of them and, unfortunately, he's no longer with the County. To be clear, Mr. Lawson stated they are talking about RA zoned property. It is the home of Dr. Joyce Myers and on that facility she does have structures for the keeping of dogs and cats. Last year she was charged under the same fact pattern which is, " inspection of the site reveals the presence of several dogs and multiple structures used for containment of animals ", and she was charged as operating a kennel. That progressed forward and ended up in Court and the Judge, they believe, correctly ruled that she didn't violate any County ordinances because the definition in the ordinance for a kennel requires certain things, and one of which is that you keep dogs for compensation. Mr. Lawson pointed out to the Judge that she is in the RA district, where you can have animals. Mr. Lawson said he also pointed out that in the ordinance, there is no restriction on keeping dogs and cats at one's home. The Judge agreed. The day of the Court hearing, as Mr. Lawson left the Courthouse, Kevin handed him Minute Book Page 1440 Frederick County Board of Zoning Appeals Minutes of May 15, 2007 another violation letter. What they've been charged with this time is an animal shelter and as Mr. Cheran pointed out, that's not defined in the ordinance. What is being talked about is violating an ordinance and the burden is on the County to show where she violated the ordinance. Simply put, it doesn't exist in the ordinance. The term animal shelter says an animal shelter is defined as an establishment, especially one supported by charitable contributions that provide a temporary home for dogs, cats and other animals that are offered for adoption. Those words don't exist in the ordinance. There is no restriction in the ordinance for that. Mr. Lawson further stated there is no limit in the ordinance as to the number of dogs and cats that one can have. There is no restriction against having a structure for penning of dogs and cats. Dr. Myers' activities are not restricted by the ordinance. The County, for the second time, has created a definition and to say that she violates it just isn't supported by the ordinance. They submit that the interpretation is wrong, that it ought to be overturned, and to go further in that her activities are being almost of a harassing nature in terms of the follow -up. Mr. Lawson can't emphasize enough that Kevin actually delivered the letter to him as he was walking out of the Courthouse. Mr. Lawson thinks that Kevin knew what the Judge was going to do. If the County wants to adopt an ordinance, wants to limit the number of dogs and cats that we can keep at our homes in the RA district, that's fine, pass an ordinance and go through the process. At this point, you don't have that and so, therefore, she can't be charged with violating an ordinance. Mr. Shenk asked Mr. Lawson how many years she's been set up like she is now. Mr. Lawson stated he wishes she was here. He believes she's been here many years; she pre -dates the development right next door to her. Mr. Perry asked Mr. Lawson how many animals transition through this facility in a week, month, year. Mr. Lawson stated that it varies. She's been designated as a charity by the IRS and commended by the White House for her actions. When Katrina hit, there were a number of animals that needed to be rescued and she took those in, but it is a back and forth type process. Her goal is not to just build on a number; she moves them out fairly quickly and tries to find homes for them. Mr. Perry asked Mr. Lawson did he not think this transition process is just a little bit beyond the average homeowner that has a dog or a cat. Mr. Lawson responded that when he first started this process, he thought he knew what a kennel was, before he looked at the County's ordinance. The answer is, per the ordinance, no, because the County does not limit the number of dogs and cats that someone can have in their backyard. Mr. Lawson stated that he believes there are ordinances in other jurisdictions that limit the number of pets that one can have. He's not aware of one that would do it in an RA or Ag district. If this County wants to create an ordinance, then we may be in a different boat, but we can't change the rules; the ordinance says what it is. There is no restriction on the number of animals you can have and that's especially true in the RA. In the RP, there's not a limitation on the number of dogs and cats you can have. Chairman Catlett told Mr. Lawson that some of his comments have been a little contradictory. When you talk about a homeowner has the right to keep dogs, cats or whatever in their yard, but you've Minute Book Page Frederick County Board of Zoning Appeals 1441 Minutes of May 15, 2007 also acknowledged that Dr. Myers is a charity, that she has volunteers, that she brings dogs in and out. So we're not talking about a homeowner having a dog that's going to live for five or ten years. This is something that is different than a homeowner just having a pet. Mr. Lawson said he will expand his comments to include property owner — she's in the RA. If you're in the RA and you want to keep cattle, that's not going to preclude you from leasing your field or your barn or whatever. What we're talking about here are uses, things that you can do and enjoy on your property and then there are those things called reasonable restrictions that the State and County impose upon us. What Mr. Lawson is saying is there are no restrictions in the ordinance that says that what she does on her property, her home, is improper or violates any ordinance. Mr. Lawson doesn't think that's inconsistent with other activities; in fact he thinks it's entirely consistent with other activities that occur in the RA district. Assume for a moment that it's RP property. There are still not restrictions on the activities that she is doing. Chairman Catlett asked Mr. Lawson to acknowledge that it's not simply a family owning pets, that it is an operation in which she is bringing animals in and moving them out and she has people helping her, and it is a different situation than a homeowner owning a pet. Mr. Lawson stated not according to the ordinance because neither activity is restricted, so if you want to create a distinction, you're creating an ordinance that doesn't exist. Also, we're talking about uses here. He's not sure that there's a whole lot of difference. If he's a homeowner and he keeps dogs or cats in a pen or a dog house or in his basement, it's the same use. Chairman Catlett asked if Mr. Lawson believes a homeowner owning a pet is the same use as someone operating a type of a shelter. Mr. Lawson said he doesn't know what a type of a shelter is and the ordinance doesn't define that. Chairman Catlett stated that it's up to this Board to determine if it falls under that, but what she is asking is for Mr. Lawson to acknowledge that there is a difference between a homeowner owning a dog in their backyard than somebody having people help her bring animals in and find homes for them. Mr. Lawson said no, he doesn't think it is because the use is keeping these animals on your property. Mr. Perry asked if she purchases tags for the dogs she gets. Mr. Lawson said he has no idea. Mr. Perry stated he is trying to establish the relationship that Madame Chairman has just gone through that being a typical homeowner and somebody that's providing shelter, facilities, food, for distressed animals. Mr. Lawson stated it could apply and you may have a neighbor that has a dog and a cat that may or may not be registered. Could that arise to a charge by Frederick County? Mr. Perry stated he is not trying to imply that, he's just trying to establish a relationship that a typical homeowner having an animal, they would buy a tag for the dog. If they're only going to keep it for a week or two, probably they wouldn't purchase a tag. Mr. Perry further stated that he's trying to establish this is not a homeowner that's simply dealing Minute Book Page Frederick County Board of Zoning Appeals 1442 Minutes of May 15, 2007 with a number of "pets" as opposed to a boarding facility, a shelter facility, an adoption facility. Do they get all their shots, vet care? Mr. Perry stated that he can see that there's a relationship in his mind that if these things aren't done for each and every dog and cat that comes into this facility, then it's a given that it's not a homeowner with a pet. It's a staging area. Mr. Lawson stated what we have here is a lady who owns a home who has animals on her property. What Mr. Perry is describing is a fact pattern that says if you're a homeowner and if you're in a sub -set, do you have to get tags and so on. The answer is the ordinance prescribes certain activities that can occur in certain zones, and the keeping of animals in the RA is allowed. End of story. So that activity is allowed. The ordinance does not say if you're a homeowner then you go to a separate category or if you're a tenant or if you lease property from somebody else and have animals, it just says what you can do in certain zones. There is no distinguishing as you're describing here between what a homeowner does in the RA or what a tenant does in the RA; all it simply says is there are no restrictions in the Frederick County ordinances in RA, RP, any of them, for keeping animals on your property. So your follow -up is should some tag be purchased and so on, my answer is if the County has a separate ordinance that prescribes that certain animals, no matter where they are or what their condition is, certain types of animals need to have certain tags or vaccines or what have you, then his guess is that ordinance applies to any animal regardless of their living condition or situation. That's a whole separate body of law. Mr. Perry stated to Mr. Lawson he's missing the point he's trying to make. It appears to Mr. Perry that if all of those things aren't adhered to then it's kind of a pre - conclusion that this is not a home pet, it's really a facility, like a kennel or a boarding house or a rescue mission. You're kind of establishing what it is without doing these other things, regardless of what the ordinance says. Mr. Lawson stated the answer is what it is, there are certain things in the ordinance that says if you meet those definitions, then you have to do certain things, that was the first charge. You're a kennel and you need to get a conditional use permit and what the Judge said is, no County, what she does, she is not a kennel. Chairman Catlett thinks that has been established. Mr. Lawson said that where you are in interpreting the ordinances, you've got to find that there's something in the ordinance that restricts or prohibits her activity and simply put, the first go- round, the kennel, that didn't work. The claiming that it's a shelter is interesting, although you're using the same fact pattern when you do it. Mr. Perry stated that he could conclude that what she is doing, the manner that she's doing it in, it's an animal shelter. If it walks like a duck and quacks like a duck, it's a duck. Mr. Lawson said he understands but animal shelters, unlike kennels, are not in the ordinance. They're not defined, so to make that definition as you coin it apply to her, it doesn't matter. It's not a prohibited thing. Mr. Lawson isn't sure it's an animal shelter. Mr. Perry stated it's also saying it's not an allowed thing. Mr. Lawson stated that if one has dogs and cats and they have enclosures for them, then they are, as the County would like us to believe, an animal shelter. What that means is that all of us that have backyards with dogs and cats and dog houses, we've got ourselves animal shelters. That's not a correct interpretation. Minute Book Page 1443 Frederick County Board of Zoning Appeals Minutes of May 15, 2007 Chairman Catlett stated what this Board does need to interpret is what they believe is happening on that property, whether or not that violates the zoning ordinance, but what a number of us were trying to establish is the difference between what she is doing on her property and what Chairman Catlett is doing on her property. That brings it to a conclusion as to what we're looking at. Mr. Lawson stated the evidence in front of you is from the letter from Mr. Henry which says... "My inspection of the site revealed the presence of several dogs and multiple structures used for containment of animals ". Mr. Lawson stated that's the record you have. Chairman Catlett said we also have in the record a Motion to Dismiss your original charge which does say that... "the shelter is dedicated to removing dogs and cats from shelters where they would otherwise be euthanized and adopting them out to suitable homes ". That's the difference between me owning an animal for however many years that it's going to live. Mr. Lawson said when they say shelter, it's a defined term in the pleading. What he was going for there, and what the Judge agreed with was, the County ordinance that she was attempting to be labeled as was a kennel required a finding that she operates for compensation. What the Judge held based on the IRS determination was no, you don't meet the definition of that ordinance. When he used the term "the shelter ", that's what he's referring to, which is her not - for -profit handling of dogs and cats. Mr. Scott told Mr. Lawson that other people are here and may want to speak. Mr. Scott feels that we should give them a chance to speak if they would like to. Chairman Catlett asked if anyone in favor of Dr. Myers' appeal would like to speak. Mr. Salvatore Cangiano, Ms. Cheryl Anderson, and Mr. Jerry Cangiano spoke in favor of the appeal. Chairman Catlett left at 4:15 and turned the meeting over to Vice Chairman Perry. Mr. Lawson took the podium again. The County has a definition of what a kennel is. If the County wants to have a definition of what a shelter is or whatever this activity is, they can do that and they can restrict that use. That's the issue here - is there a reasonable restriction in the ordinance and is there a proper interpretation that there is a violation of it. Mr. Lowman asked Mr. Cheran if there have been any County- documented complaints against this property. Mr. Cheran responded that the only complaint we got was cited. Mr. Lowman asked cited by whom. Mr. Cheran stated by Frederick County through a complaint basis. Mr. Cheran further stated that the complaint that originally came in was she was running a kennel. Vice Chairman Perry asked if there was anything to substantiate this and Mr. Cheran stated he has a copy of Ms. Myers website, called Paws & Whiskas Animal Rescue, Inc. It states it is non - profit and that is not in question. It states in her website that an adoption fee is collected and any medical records are released to that person. An article in The Winchester Star dated August, 2006, points out that inmates who work there are from Clarke County through a program called Pet Therapy, not Minute Book Page 1444 Frederick County Board of Zoning Appeals Minutes of May 15, 2007 Frederick County as someone stated earlier. The article calls it a "no -kill shelter" and states that a $75- 150 adoption fee at the "shelter" is used in part to pay for spaying and neutering of animals at a discount clinic in Harrisonburg. Mr. Cheran further clarified that someone can look in the Valley Trader or the Saturday paper and see dogs and cats for sale all the time. If our department got a complaint that someone was selling animals for a profit and they're a private residence, we would take care of that on a complaint basis. Rural areas do have restrictions. Mr. Cheran stated it's a great thing that Dr. Myers is doing, but getting back to the SIC Code, it calls out where animal shelters are allowed to operate. Under permitted uses, it's not listed in the RA zoning district, it's not under conditional use in that zoning district. Just because you're in the Rural Areas doesn't mean that the gate's open and you can do anything you want. There's no such thing as no zoning in the RA. We established the facts by going on her website, we showed that is what's happening. We haven't sent the Animal Control Officer there to see if the dogs are registered - it's a different ordinance. Mr. Givens stated he's heard throughout the discussion that this is a single family residence. If we define it as something else, and Mr. Givens feels there's a lot of evidence to say it's a shelter, shelters are not permitted because they're not listed — they're not prohibited but they're not permitted. So is it a single family dwelling or is it a shelter? That's the question we have to determine. Mr. Givens further stated that by their own Motion, they called it the "shelter ". The SIC Code is recognized by Frederick County and its ordinance, if it wasn't it wouldn't be referenced. Because it says it's allowed in the B2 or B3 zoning district, if they bad intended it to be a use in the RA zoning district, they would have said that. Mr. Givens reiterated, is it a shelter or is it a single family residence? Mr. Cheran said he believes Mr. Givens is correct and that the interpretation made by the Zoning Administrator is that they're operating as a non -profit shelter and that is not permitted. Vice Chairman Perry asked if there's anyplace, anywhere that it says that it has to be for profit, or non - profit, to be a shelter and Mr. Cheran responded no. Mr. Cheran pointed this out in the staff report. Mr. Cheran stated that Mr. Lawson is correct about Ms. Myers being there before the rezoned development. When someone moves next to Ms. Mvers, if this appeal is upheld, that's that. There will be nothing that can be done. Mr. Lowman asked Mr. Cheran what the zoning district was at the previous location for the Esther Boyd Shelter at the landfill. Mr. Cheran stated it was considered a public building. It was zoned RA, but it was in the Landfill Protection Area. Mr. Shenk asked if she could apply for a conditional use permit. Mr. Cheran responded she cannot apply as a shelter, only as a kennel. Mr. Scott asked why wasn't there an attempt to move it that way to avoid all this to get a conditional use on it. Didn't they want to be a kennel? Minute Book Page 1445 Frederick County Board of Zoning Appeals Minutes of May 15, 2007 Mr. Cheran left that question to Mr. Lawson. Mr. Lawson stated that the ordinance says a kennel is for compensation and she doesn't do that. When you make a payment to her, they are charitable contributions that are treated as such. Vice Chairman Perry asked if the adoption fee is a charitable contribution and Mr. Lawson replied yes. Mr. Lawson brought up one comment that Mr. Lowman made which is a wonderful one and that is the County operated this thing, let's not use bad words like kennels and shelters, at the Landfill for goodness knows how many years and yet, that's not an issue. It was zoned RA and that's accurate. The comment about puppies and what happens if my neighbor sells puppies and so on, and they're keeping them in an enclosure, are they in violation of this. Mr. Lawson would submit they are. Mr. Lawson stated you've heard evidence of a newspaper article, he's not even sure if that's two or three times hearsay about what this operation is or is not, but the evidence in front of you... "as my inspection of this site revealed the presence of several dogs and multiple structures used for containment of animals ". That describes a lot of homes in Frederick County and people doing activities that are for compensation when they sell puppies. They're not getting sanctioned, they shouldn't get sanctioned, they shouldn't be charged with violations. Vice Chairman Perry asked does that also not describe a shelter. Mr. Lawson said no, that's the irony. The ordinance does not.....there is no definition or restriction or prescription against a shelter, it's not defined in the ordinance. The ordinance defines kennel, but not shelter, but yet we're using this thing that's not in the ordinance to say you can't do it in Frederick County. From a legal perspective, that's an amazing exercise. Vice Chairman Perry asked doesn't the ordinance say you can't have a shelter. Mr. Lawson responded no, it does not say that. They cannot show you an ordinance that says thou shall not have a..... Vice Chairman Perry stated, according to Mr. Givens, it doesn't show up on the list of an allowable entity within that zone. Mr. Lawson stated that what you're doing is trying to create a definition that doesn't exist in the Code and then taking activity that exists in everybody's backyard, namely the keeping of dogs and cats, and say at this particular home, at this particular location, that's a shelter. Vice Chairman Perry said she's already admitted it's a shelter on the website and in the 4 newspaper. Mr. Lawson stated that if that's the standard, and if he's selling his puppies for example, and I use the word that I did it for compensation and I do have a structure where I keep them, then he's in trouble, too. Heaven forbid it gets picked up in the Winchester Star because that evidence could be presented and he's zapped. That is not the standard. The County has a burden here and they've not met it. Minute Book Page 1446 Frederick County Board of Zoning Appeals Minutes of May 15, 2007 Vice Chairman Perry asked if anyone else would like to speak in favor of the appeal. Mr. Jerry Cangiano and Mr. Salvatore Cangiano spoke again. Vice Chairman Perry asked if anyone is here who would like to speak in opposition to the appeal and no one responded. The public hearing portion was closed. Discussion Mr. Shenk stated that looking at the pictures in the agenda packet, it appears to be a residence, it Looks to be someone's home. We know we have someone living there. Mr. Shenk doesn't like to limit the number of animals that can be at a residence in Frederick County in the RA. Concerning Mr. Lawson's letter dated May 15, 2007, Mr. Givens asked the purpose, on the last page, where he stated that this second opinion was contrary to the Code of Virginia. Mr. Givens is trying to find the basis for putting that paragraph in the letter. Mr. Lawson responded what that says is we're entitled to rely on the decisions of the government and the Zoning Administrator in particular. It's unusual, because we always hear that government is not subject to waiver and they can one day charge somebody with something and another day do something different. But in this case, the legislature has seen fit to say that decisions by the Zoning Administrator are not subject to change, modification, reversal after 60 days have elapsed from the date of the written decision. Mr. Lawson thinks it's yet another way of looking at this thing, it's another way to support our position. Simply put, using this very same fact pattern, this very same property, very same activity, the County took the position that this was a kennel and they were wrong. The Court told them they were wrong. Now what they're doing, contrary to this Virginia Code Section, very same fact pattern, very same house, etc., we're going to come up with another decision. We're going to write another letter that says what this thing is. What Mr. Lawson is saying is you can't do that. The Virginia Code says that you've got to stick with things, and more importantly, Mr. Lawson thinks this was written more for our benefit. As citizens, we're entitled to rely on those decisions. Mr. Cheran stated that by the Code of Virginia, the first letter concerning the kennel was adjudicated. Once the Zoning Administrator or his staff issues another letter they're in violation, whether it's the same property, to protect their rights, they have the right to appeal. Given the information we had, we looked at it as a shelter and sent another violation letter and gave them a chance to appeal and we're here today. Mr. Lowman asked Mr. Cheran under Frederick County Code in the RA, is a shelter prohibited under Frederick County Code. Mr. Cheran stated that is correct, it is. Mr. Scott asked if it's because it's not explicitly allowed and Mr. Cheran responded that is correct, and the Zoning Administrator makes that determination under 165 -4. The SIC Code provides areas for that type of operation and we would direct that person to the B2 or B3 zoning district. Mr. Scott stated that he's very conflicted by this. Mr. Scott stated that he learned today from a lunch discussion that in Virginia if your goats or farm animals are killed by a dog, you can actually still retain compensation from the local municipality. There are things that don't make sense and don't add Minute Book Page 1447 Frederick County Board of Zoning Appeals Minutes of May 15, 2007 up and this is one of those times where he thinks Mr. Cheran acted according to his limitations within the ordinance and yet at the same time, Mr. Scott thinks they have a decision to make that looks at the facts of the matter and maybe does the right thing for a change that isn't necessarily the right regulatory or right legislative thing. Mr. Shenk made a motion to overturn the decision of the Zoning Administrator. Mr. Scott seconded the motion and it passed by majority rule. OTHER As there were no other items to be discussed, the meeting adjourned at 4:45 p.m. by unanimous vote. Respectfully submitted, Theresa B. Catl t, Chairman Bev Dellinger, S retary Minute Book Page Frederick County Board of Zoning Appeals 1448 Minutes of May 15, 2007