BZA Minutes 08/22/02

To find a specific item within this document, point and click on Edit in the Toolbar. Dependent on the browser you are using, select Find (on this page) or Find in Frame. Type a keyword or words in the Find what: box then click on Find Next. JACKSON TOWNSHIP BOARD OF ZONING APPEALS Thursday August 22, 2002 MINUTES

Members present:                                                 Ted Deremer
                                                                                Edward McDonnell
                                                                                Gerald Werner
                                                                                Richard Dodson
                                                                                Jim Giulitto-absent for appeal #1791

Zoning Administrator: John Phillippi

Zoning Data Coordinator: Joni Poindexter

APPEAL #1791(B) – GBC Design, Inc., 3378 W. Market St., Akron, Ohio 44333 agent for Gordon & Betsy Woolbert, property owner, 4386 Red Fox Drive NW, Massillon, Ohio 44646 requests a variance for a 12 ft. front yard setback where a 40 ft. front yard setback is required in Art. IV Sect. 401.6 of the zoning resolution. Property located at 5400 S. Island Dr. NW, Sect. 23NW Jackson Twp. Area zoned R-1.

Mr. Deremer read the file application signed by John Walsh with reasons for the appeal being to keep the distance from the Lake in construction of the new house.

The file contained the following:
1) A site plan of the proposed home by GBC Design, Inc. dated 7/19/02.
2) A tax map of the property in question and surrounding properties.

Mr. Deremer asked who would like to speak in favor of this appeal.

Mr. Deremer swore in Tom Winkhart, Attorney, 801 S. Main St., North Canton, Ohio 44720.

Mr. Winkhart stated that he is representing Mr. & Mrs. Woolbert. Mr. Winkhart stated that they are asking for a 12-ft. setback from the road right-of-way where 40 ft. is required. Mr. Winkhart stated that the Woolbert’s own the two lots in question and they intend to tear down their existing home and build a new one over the two lots.

Mr. Winkhart presented a drawing of the proposed home and several photos, which were marked as the following exhibits:
1) A drawing of the proposed home.
2) A photo showing that the home is 7 ft. from the road right of way.
3) A photo looking south on Island Dr. and shows that the house on the right hand side is 2-1/2 ft. from the road right of way and the brown house in the background is approximately 11 ft. from the road right of way.
4) A photo showing a white garage that is part of the existing home and that it is approximately 9 ft. from the road right of way.
5) A photo looking west along Rex Dr. and that the brown brick house is actually in the road right of way.
6) A photo looking east along Rex Dr. and that the brown house on the right is approximately 9 ft. from the road right of way.

Mr. Winkhart stated that the homes in Lake Cable have existed for several years and are all what he would consider to be a modern era of construction for the Lake Cable area.

Mr. Winkhart stated that it is not the Woolbert’s intent to build a house close to the road and they would like to be further back but due to the shape of the lot the proposed plan is the best plan that they could come up with.

Mr. Winkhart stated that he thinks this is a good case for an area variance based on a practical difficulty and he believes there are special conditions and circumstances that exist and are peculiar to the land.

Mr. Winkhart stated that it is his opinion that the variance is the minimum necessary to make reasonable use of the land and it will not change the character of the neighborhood. If the variance were granted they would be one of the lesser encroaching properties in the area based on where the other homes exist. Mr. Winkhart stated that he thinks the value of the area will increase because they will be taking down a structure and putting up a home that has a higher fair market value and the property owner’s predicament cannot be obviated through any other means.

Mr. Deremer swore in Mr. Gorden Woolbert of 4386 Red Fox Dr. NW, Massillon, Ohio 44646.

Mr. Woolbert stated that he has discussed the variance with his neighbors and they have no problem with the request.

Mr. Woolbert stated that he has spent a couple of years with Mr. Fleishour trying to design a home that would fit the lot.

Mr. Deremer swore in Tim Fleishour of 2259 Whipple Ave. NW.

Mr. Fleishour stated that he has been building homes in Jackson Township for 15 years. The process for designing the home was started approximately two years ago and they went through a variety of designs trying to find something that would fit on the lot and look right. Mr. Fleishour stated that the current design is what they came up with and believes it would be a great asset to the Lake Cable area. Mr. Fleishour stated that the home is 4,700-sq. ft. with a portion of the basement being finished.

Mr. Deremer stated that he noticed that the existing garage is a front loading garage and asked if this could be modified to a side load.

Mr. Fleishour stated that they have talked about this and it could be done either way with the variance. If the house were set at 12 ft. it would be a side load garage because it is too short for the front. If the house were sent further back they could go to 17 ft. and put in a front load garage.

Mr. Deremer asked how far the home would be from the lake.

Mr. Fleishour stated that he thinks the closest point is 38 or 39 feet.

No one else in the audience spoke in favor of this appeal and no one in the audience spoke in opposition to the appeal. Mr. Deremer closed this appeal to public discussion.

Mr. Dodson stated that one of the critical things among the neighbors is that the houses do not block the view of the lake and thinks that this house is being situated to avoid doing that. The setback of 12 ft. is actually less then the existing house and other homes in the vicinity. Mr. Dodson stated that he sees no reason not to grant the variance.

Mr. Deremer stated that this is a unique shallow lot within Lake Cable and this more then any other reason heard before stands to allow them to put the property a little closer to the roadway. It appears that they have gone through several renditions to meet all the concerns.

Mr. Werner stated that he agrees with Mr. Dodson and Mr. Deremer and has no problem with this appeal.

Mr. Dodson made a motion to approve appeal #1791 as requested and Mr. Werner seconded the motion.

The vote was: Mr. Dodson-yes, Mr. Werner-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.

APPEAL #1796 – Timothy J. Jefferies, Esq. 437 Market Ave. North, Canton, Ohio 44702 agent for David & Kimberly Maier, property owner, 6282 Margate Ave. NW, Canton, Ohio 44718 requests a variance for a fence 7-1/2 ft. in height located in the rear of the property where a 6 ft. fence is permitted in Art. IV Sect. 401.12(F) of the zoning resolution. Property located at 6282 Margate Ave. NW, Sect. 15NW Jackson Twp. Area zoned R-1.

Mr. Deremer: The next appeal this evening is appeal #1796. Property owners are David & Kimberly Maier, 6282 Margate Ave. NW, Canton, Ohio 44718. The applicant is Timothy Jefferies, Esquire, 437 Market Ave. N., Canton, Ohio 44702. The decision being appealed is a request for a variance for a fence 7-1/2 ft. in height located in the rear of the property where a 6 ft. fence is permitted in Article IV Section 401.12F of the Zoning Resolution.

The property is located at 6282 Margate Ave. NW. Premises affected is 6282 Margate NW, lot thirty nine of Greenbriar Woods number two located in the northwest corner of section 15 zoned R-1 of Jackson Township. The date of the decision being appealed is July 22, 2002; date appeal filed with the zoning administrator is July 22, 2002; date appeal filed with the board is July 22, 2002; date of publication in the Canton Repository of August 8, 2002; date of notice mailed to parties in interest is August 9, 2002; date and time of public hearing is August 22, 2002 at 7:30 pm. It is now approximately 7:35.

The reason for the appeal as written by the applicant is due to the topography of the above aforementioned parcel a fence of 7-1/2 feet is required. Paragraph 401.12F presents a practical difficulty in that a 6-foot fence would not provide sufficient visual barrier. It is signed by Timothy Jefferies.

I do also have in the file a tax map of the property in question along with the adjacent parcels and the current zoning on those parcels. And I believe that is it for the file.

Who will be speaking on behalf of this appeal this evening?

Mr. Jefferies: Good evening. For the record it’s Tim Jefferies on behalf of Dave & Kimberly Maier. Tonight we are requesting a variance allowing a 7-1/2 foot fence as it has already been laid out. This fence was built- - Well the fence is already there and I assume you’ve all been out to the property and looked at the property and if not I have some photographs that I’ll be presenting in a second.

The fence was built without knowledge of the applicable zoning regulations. They put up a fence of 7-1/2 foot in height and the reason is that directly behind the lot there is a gas well and an access road for a pumping station that’s also adjacent to the lot. The fence is designed to provide basically a visual barrier from the back yard area and the - -from the back house so if you look out the back window of the home a visual barrier screening off this gas well and pumping station and access road. It’s put there for esthetic purposes as well as the fact that the couple has a young child four years old, a boy named Logan, and the fact that he plays in this yard and that there is traffic on this access road, vehicles from the gas company going back and forth. A way that the mother can look out in the back yard and see that her son is in the back yard, that he’s not playing on the access road nor is he playing on the gas well or around the pumping station. It provides- - It screens off the back yard, provides some privacy and it basically somewhat fences in the back yard to prevent the child from leaving the back yard.

Now the reason that it has to be 7-1/2 foot in height as opposed to the 6 foot requirement is because if you would look at the topography of their lot and the elevation of the house as opposed to the elevation of the back yard where the fence is placed, the house is a lot higher. If you stand on the back porch of the house, if you look out of the back window, without the 7-1/2 foot height it doesn’t adequately screen off the gas well, the access road, which there is one access road that runs directly behind the house and another one that also runs into the pumping station that is visible without the fence.

Now I’ll present some pictures now.

Mr. Deremer: Whatever you present we need to keep for the file. We’ll just mark them as you present them.

Mr. Jefferies: That’s not a problem. I can present, I can present this group first. You can - -.

Mr. Deremer: We’ll go ahead and mark them as exhibit one. We have three photos here we’ll mark them as exhibit one, two, and three and then you can refer to them in your presentation.

Mr. Jefferies: I have another one if you want to mark that as four.

Mr. Deremer: Sure can.

Ms. Poindexter: Do you want these as exhibits also?

Mr. Jefferies: Yes.

Mr. Deremer: OK. We have exhibit four, five, and six which are also photos.

Mr. Jefferies: If the board would review exhibits one through four you can see these are basically shots of the fence showing from the back yard looking back out showing, and if you would look to the right of the picture, the right edge of the fence, you’ll be able to see the access well. I’m sorry, the gas well. That’s a better, you can mark that as exhibit six, that’s a better view of the actually the gas well.

Mr. Deremer: That will be exhibit seven.

Mr. Jefferies: I’m sorry, seven, that they are seeking to screen off and this, that could be eight. Eight would show that access road that’s back there also. Then five and six would be photographs that were taken into the back yard prior to the fence being constructed and those are just there to show the access road as well as the well that’s visible there.

If you look at the first I think four exhibits. And you can see to the extreme right, you can see the green gas well and to the extreme left you can see the fencing for the pumping station there. And you can, what the pictures are designed to show is that the fence does just barely screen off this green gas well, if you can see it. And the reason the fence is of that height, somewhat higher would actually block it out completely. Any lower would leave a great deal more of that gas well visible from the back of the house and the back yard area.

If you, we have some, some of the neighbors are going to get up during the public portion of this and talk about their feelings about the fence. I think what the other pictures show is that the fence is an attractive structure. It was placed there to beautify the yard and to basically esthetically improve not only this piece of ground but also for the neighbors, the purpose of the neighbors. It also screens off some of their view of this gas well.

We’re here to show this board that this zoning ordinance presents a practically difficulty for the applicants. And in doing so I’d like to present the factors of the consideration that was given to my clients when they came to pick up the appeal. Attached to the application were the considerations of the board. The first being that the variance would comply with the statement of public purpose or intent for the zoning ordinance. I think that the residential zoning ordinance’s and the height requirement is designed to prevent people from putting up fences that would be eyesores, from putting up fences that would be un-pleasing, that would be a problem to adjoining property owners because of their shear size and if you look at the pictures you’ll see that this is a well built structure and that it’s a nice fence. Part of the added height to this is the fact that the fence has been scalloped, you know to be more esthetically pleasing. Another consideration is that it’s just a minor deviation from the zoning regulations and I think that the 1-1/2 ft. that we're requesting is a relatively minor variance. As far as the remaining, the remaining considerations deal with the harm to the properties nearby and the affect that this would have in the area. We’re dealing with a residential area. I think that this gas well and this pumping station and the access road is somewhat an admiration for this type of structures that you would see in this area. The fence is designed to screen off this unsightly, these unsightly structures from my, the applicant’s home as well as the neighbor’s properties. In that affect it not only fits in with the purpose of the zoning and the character of the nearby properties, but it actually improves it and it goes toward the goals that the zoning is trying to enforce. For those reason we’re going to ask that you grant us the variance, or grant my clients the variance. A fence of any lower in height wouldn’t go as far as, it wouldn’t screen off this, it wouldn’t screen off the pumping area and basically provide the sanctuary that my clients are seeking in their back yard. I think that, not that the fence has, not only esthetically pleasing, but would raise the property values of the house as well as the values of the adjoining parcels. For that reason and for those reasons we ask that you grant the variance.

Mr. Deremer: Thank you sir. Any question’s gentlemen?

Mr. McDonnell: Mr. Chairman.

Mr. Deremer: Yes.

Mr. McDonnell: I’m sorry. I didn’t catch your name.

Mr. Jefferies: Tim Jefferies.

Mr. Deremer: Mr. Jefferies, I don’t know if going to testify, if you can testify or if the owner’s going to testify or if someone else will. Is the rest of the back yard fenced in?

Mr. Jefferies: I can bring the owner up to testify. I also can’t, no it isn’t. If you look to the left of those pictures, the left side of those pictures you’ll see that there is a, the fencing, the chain link fencing is the fencing that goes around the pumping station. Aside from that the section of wooden fence that you see is the only fencing that is on my clients property.

Mr. McDonnell: That’s all I got Mr. Chairman.

Mr. Deremer: Thank you sir. Any other questions?

Mr. Dodson: Mr. Chairman. Mr. Jefferies, was the pumping station there when your clients bought the property?

Mr. Jefferies: Yes it was.

Mr. Dodson: Couldn’t they accomplish the same thing with landscaping?

Mr. Jefferies: The problem is, if you say they would accomplish the same thing by planting trees or by building mounds or something of that nature, that while it may be able to screen off the pumping station and the well, it wouldn’t provide the- - -. They want to place a fence there, they want to place fencing there to provide some type of boundary of their yard for the child and I don’t think that to go in and plant trees that would be of the size, if the trees were big enough to create this wall or this boundary line for the property it would be a great expense. Almost prohibited from the expense for them to bring this in. The child is four years old now. They need some type of wall to block that off now to prevent, you know, if he’s playing they don’t want him back on the access road. They don’t want him playing around in the pump area and basically out of that yard. If they went in and planted trees I’m sure the trees would grow and eventually would provide that type of visual screen that they desire at this point. But right now in order to go in there and do that, I think that you wouldn’t have the trees, the trees that would be provided wouldn’t have the width if they did have the height.

Mr. Dodson: If your containing the child wouldn’t a 6 foot fence do the same thing?

Mr. Jefferies: That’s true and we don’t dispute that. I guess what we’re saying is that in trying to accomplish these goals, this fence is the most practical means to the end.

Mr. Dodson: Thank you.

Mr. Deremer: Mr. Jefferies, could you show me on this map where the gas well and pumping station are located? On which parcel, you can just put an X on which parcel they- - .

Mr. Jefferies: OK, I’ll try to explain that.

Mr. Deremer: Go ahead and lay her down.

Mr. Jefferies: If you look this would be where the well that we’re talking about is. This right here, this line right here would be the fence, the access road. There’s also some additional piping right here. Another access road runs right here. This would be the chain link fencing and this is the pumping station, it’s located right here. The access road would run here.

Mr. Deremer: Based on that description the only thing that you’re officially screening is the gas well itself. The pumping station is not part of that.

Mr. Jefferies: That’s correct, the gas well and the access road.

Mr. Deremer: OK. I also noticed that the homeowner also has, already has some landscaping placed at the rear of the property. From the photos here exhibit one and two and three and four, it appears there seems to be some type of evergreen trees or shrubbery.

Mr. Jefferies: That’s right. Initially they did go in and mound an area and plant some evergreens. Subsequent to that they decided to go in and put up the fence to get the desired affect. Basically what we’re saying is that if you stand in the back yard, if you stand on the back porch and look out across the yard, with a 6 foot fence you would still be able to see many of the things that are blocked out by a 7-1/2 foot fence and that’s the desired affect.

Mr. Deremer: Any other questions gentlemen?

Mr. Werner: Mr. Chairman.

Mr. Deremer: Please.

Mr. Werner: On the - - Mr. Jefferies the evergreen plantings that are there now, when were they put in there?

Mr. Jefferies: Mr. Maier will address that.

Mr. Deremer: If you would Mr. Maier please raise your right hand since you’ll be testifying. Do you swear or affirm that the testimony that your about to give is the whole truth and nothing but the truth?

Mr. Maier: Yes.

Mr. Deremer: If you would please state your name and address for the record.

Mr. Maier: David Maier, 6282 Margate Ave. NW, Canton, Ohio. The evergreens were planted during the time that we put the yard in; probably I would say probably six months - - four to six months prior to putting the fence up, before putting the fence up.

Mr. Werner: So how long ago has that been? Four to six month since you put the yard in? Did the yard go in last fall?

Mr. Maier: Yes, last summer. We put the fence up this spring, essentially spring - -I’m not sure exactly what month the fence got put up.

Mr. Werner: So the pine trees have been up maybe ten months?

Mr. Maier: Yes, approximately.

Mr. Werner: And they probably have grown some this summer?

Mr. Maier: Yes.

Mr. Werner: And pine trees alone, and those look like good healthy pine trees.

Mr. Maier: Yes. We had some die on us.

Mr. Werner: They’ll grow on an average of a foot to 18 inches a season, that particular type of pine tree. That would give you a natural buffer right there.

Mr. Maier: Yes, but the reason- - - We put the pine trees in first but it was going to take quite a while even thought they are good size pine trees. We put some blue spruce and some, we actually put all blue spruce originally and then replaced them with some white pines. We found out the blue spruce wouldn’t grow as fast so we took those out and put some white pines in. We still wanted, we still wanted to get like a barrier so that, you know, we were blocking off so that Login wouldn’t go in and be able to walk through the trees and what have you. We still have on the other side of where the big tree is on the picture there’s still quite a bit of gap in between the pine trees where it’s open. And the biggest thing was because of where our house sits and that we wanted to be able to put the fence up so we didn’t have to see anything behind it. We essentially, you know when we got notified that it was too high, you know we brought up the fact that basically because of the lay of the land that, you know and we didn’t have no idea of any rules or regulations until after the fence was already put up.

Mr. Werner: What’s to prevent your, if I understood right, your only fenced across the back, not the side.

Mr. Maier: Correct.

Mr. Werner: So what’s to prevent your son from just walking around it, the sides, and still going back to the gas well?

Mr. Jefferies: As far as the side there is a chain link fence up against the fence on the one side but as far as the other side he could walk around. I guess one of the points would be that, you know if you put your child in the back yard to play in the back yard and he went and played around the trees then that would be fine and it wouldn’t be much, if you watch your child out the back window it wouldn’t be long before when you look out the back, is he’s behind the trees. The fence provides just a little sturdy barrier and is something that would allow him, or would allow the parents to be a least assured that the child will be walking right around there. If you saw the child mingling around the area on the other side of the fence you would know. If you looked out back and didn’t see him right away you would know up against the fence that he either was in the back yard or wasn’t in the back yard. I’m not saying that the fence provides a sealed back yard but I guess it’s more protection then just the pine trees.

Mr. Werner: I understand. I just, I’ve done a lot of buffer work in my business between property lines and such and I’ve always stayed within the regulations of what the zoning wanted and still put my pine trees with a 6 foot fence or whatever is required and within a matter of a few years my pine trees, and just a few that’s three or more, more then exceeded the fence and gave us a wonderful buffer. I’m just wondering why that couldn’t have been done.

Mr. Maier: One of the reasons is because it would have took about three to five years. We wanted to try to achieve our goal now on trying to screen out everything we could, not wait that long, three to five years until the pines grew up. Because we have so many trees in the back we are having a hard time with the pines trying to grow. We originally planted about 8 to 10 pines and half of them have died and we replaced them. You know we’re going to see. We’re just not sure because of all the shade back there we’re not sure how good the pines are going to grow over the season. I think if it was open more and not as shaded, you know they definitely would grow a lot quicker and we would be able to achieve that a lot faster.

Mr. Werner: OK, That’s all I have Mr. Chairman.

Mr. Deremer: Thank you sir. Any other question’s gentlemen? Anything else?

Mr. Jefferies: The public going to have a chance to speak, is that right?

Mr. Deremer: Sure, we give everybody a chance to speak here. Thank you gentlemen.

Mr. Jefferies: That will be all. Thank you.

Mr. Deremer: With that we will seek any input from those in the audience that would like to speak in favor of this application this evening. Please come forward. If you would raise your right hand. Do you swear or affirm that the testimony that your about to give is the whole truth and nothing but the truth?

Mr. Merriman: I do.

Mr. Deremer: Please state your name and address.

Mr. Merriman: It’s Mike Merriman and I live at 6268 Margate NW. I actually live in the lot that if your facing Dave’s house I’m on the right hand side from the street looking at Dave’s house.

Mr. Deremer: Very good sir.

Mr. Merriman: And we have a very, probably next to Dave’s or the neighbor on the other side of Dave’s have the best view of the fence and I just really wanted to say that we were very pleased when he put the fence in. It also blocks our view of the aforementioned pumping station, the gas well and the access road. We think it’s a very attractive fence and I just wanted to say that we very much enjoy the fence and are glad it’s there and are please with how nice a job they did in terms of putting it in. So we are very much in favor of the zoning variance. It also helps us in that it’s a little bit higher and it blocks more of our view because our house is also even probably a little more elevated then Dave’s is in terms of that so. Even though that wasn’t his originally his intention, it provided some additional benefit to our view also so we see it as increasing our property value with the fact that the fence is there.

Mr. Deremer: Thank you sir. Any question’s gentlemen? Thank you much.

Mr. Merriman: Thank you.

Mr. Deremer: Is there any one else in the audience who would like to speak in favor?

Mr. Dabbelt: I would.

Mr. Deremer: If you would raise your right hand. Do you swear or affirm that the testimony that your about to give is the whole truth and nothing but the truth?

Mr. Dabbelt: Yes.

Mr. Deremer: Please state your name and address for the record.

Mr. Dabbelt: Mike Dabbelt. I’m at 6296 Margate Ave., Canton. I’m on the opposite side of Dave. Mike and I are direct neighbors with Dave. Not through the exhibits your looking at but some of the questions you ask on the chain link fence where the pumping station is at is actually my lot, or if you look at some of those pictures where the yard is kind of new and spotty, that’s my property. I have a two-year-old son. We have another child being born on Monday so the fence really does provide a nice barrier for my son and new son or daughter to go to that access road or station behind it. Also we do like the aesthetics of the fence because again we are higher, or the house is high. Again not knowing the zoning laws, we think that it does increase our property values and we think it is a very attractive fence and our family, my wife and myself very much support the fence and variance if we could get it. So we are very much in favor of this fence and what they did we think is very good. And also, another question? I think Mr. Dodson you said something about a mound. My lot on the left side, they did put a mound to block, I guess it’s the pumping station on the left. It does the job like you talked about but it is a little unsightly but I did buy it with the mound there so that’s my problem because I agreed to that. We do think the fence with the evergreens is a little bit nicer then a mound.

Mr. Deremer: Thank you sir. Any question’s gentlemen? Thank you much. Is there any one else in the audience that would like to speak in favor of the application this evening? Please come forward. If you would raise your right hand. Do you swear or affirm that the testimony your about to give is the whole truth and nothing but the truth?

Mr. Pettit: Yes.

Mr. Deremer: Please state your name and address.

Mr. Pettit: My name is Mark Pettit. Excuse me. I live at 6160 Margate. I live down in the cul-de-sac. My property does not directly adjoin Dave’s property, however we are in close vicinity. I think what the problem is with a lot of residents or new developments, not within Jackson Township in general but a lot of new developments, is when your are marrying single family residents with industry. When that Johnson station was put there and that tank was put there, that was a farmer’s field. And then developers come in and try and put housing units in there and the best that you can your trying to shield yourself from this industry, if you will. I have to admit that Dominion does keep a very good, keeps track of the Johnson station and keeps it very nice and tidy. However, you still have to look at the tanks and you still have to look at the Johnson station. And as much as it’s nice and clean and they keep it mowed and stuff its still not that great to look at in a residents.

The fence does not benefit me in one way or the other. However, it doesn’t detract in my opinion from the property values around us. It a rather, looks or at least appears to be a rather expensive fence to put in. And if you look at the topography of his property and all the properties down hill from that, if you were to stand in his back yard it doesn’t look real tall. If you were standing at a property below, no matter what fence you were looking at it would look like your looking up at a wall. So I guess from his point of view where he was trying to shield from the tank, I think it’s pretty effective and I don’t think it really detracts from the property values. That’s all I really have to say.

Mr. Deremer: Thank you sir. Any question’s gentlemen? Thank you. Is there anyone else in the audience who wants to speak in favor of this application this evening? By your silence I shall take that as a no. Is there anyone in the audience who would like to speak in opposition to the application this evening? By your silence I shall take that as a no. With that we will close to public input and deliberate here among the board members and hopefully come to a resolution here shortly. Gentlemen what are your thoughts, concerns?

Mr. Werner: Mr. Chairman you know our regulations strictly say a 6-ft. fence. The Johnson pumping station was there prior to any allotment so they knew what they were backing up to. They knew that well was there. And taken upon them selves to go ahead and put up a 7-1/2 ft. fence, which I feel the same buffering could be done with the pine trees and stay within the regulations with a 6-ft. fence if you wanted a fence to keep your children inside of the boundary lines. So I truthfully, I’m not in favor of this appeal. That’s all I have to say.

Mr. Deremer: Thank you sir. Any other comments gentlemen?

Mr. McDonnell: Mr. Chairman.

Mr. Deremer: Please.

Mr. McDonnell: First let me say that I like the fence. I think it’s a great looking fence. And I sympathize with the applicant. I know what it’s like not to know what the rules are. I’m finding new rules every time I come to a meeting. Well not every time. Long story short there are plenty of rules that the average citizen doesn’t know what they are. The problem that I’m having is that the law specifically requires that we find a practical difficulty that is peculiar to the land or the structure involved. The fact that there's a child is not peculiar to the land, its peculiar to the occupant. And as callus as that my sound, that’s the law. And the other factor also is the fact that the child can be addressed with a 6-ft. fence, a 7-ft. fence, 7-1/2 ft. fence is not required. Will the property yield a reasonable return, I think, without it or is it required to yield a reasonable return. I don’t think it’s required. A 7-1/2 fence is not required for a reasonable return. Anyone familiar with that area knows that there is a reasonable return and I don’t think any of those houses are going to loose any property value because the fence is 6 ft. verses 7-1/2. And as Mr. Werner indicated the well was there first. All of these houses were built and all of the houses were purchased with the well being there. And that’s the other thing that I’m having a little difficulty with, because these wells abound within the township. And what it appears to me the whole thing boils down to is aesthetics. Let’s shield the house from the well. I’m afraid that with what’s been presented and what I see as just an esthetic situation only, are we going to paint ourselves in a corner, potentially a legal corner, where to shield your house from a well we’re going to allow a 7-1/2 ft. or violation or grant variances over 6 ft. That’s the problem I’m having. I’m not seeing anything really particular about this property that differentiates it from so many other properties in Jackson. And the next applicant that come in for a 7-1/2 ft. fence or a variance for a fence is going to have as much right to say that you gave it to him why not give it to me.

Mr. Deremer: Is that it.

Mr. McDonnell: That’s it.

Mr. Deremer: Thank you sir.

Mr. McDonnell: I’m sorry, I should have told you that.

Mr. Deremer: Any other comment’s gentlemen? Just as a reminder based on Mr. McDonnell’s comments, we do look at each property individually, on it’s own merits. Not in conjunction with what we did next door or what we did two streets down or on the other side of the township. So the matter of allowing a variance or disallowing a variance on a specific property should not warrant that we may have to give it to another property next week. I somewhat am not swayed by that argument. I do have photo’s here marked as exhibit 5 and 6 that show the property prior to the fence being installed and from the location of where the photo’s were taken the evergreens do a pretty good job of hiding the well at that point. The fence does completely resolve the issue - - or does not completely resolve the issue as shown in exhibit two where you can still see the top portion of the tank. So it is not a complete barrier if that’s what they’re going after. My concern when I look at this is what prevents somebody from building a twelve-foot high fence because the neighbor’s house is the wrong color and I don’t want to look at it so I build a twelve-foot fence. That would be a similar excuse for, to exceed the 6-ft. height. That’s truly aesthetics, you know truly what I’m looking at and I think we need to stay within the bounds of the 6-ft. fence so everybody’s on the same plain. If you had a parcel that dropped off substantially in the back would you be allowed to build a 12 ft. fence because from the house I still have only have roughly six foot above the back stoop of the house. There is all kinds of reasons potentially to say that I could build a bigger or taller fence but it’s all based on aesthetics, not from a practically difficulty. It’s not a safety issue because the fence doesn’t approach the entire yard. It would be easy for a child to get behind that fence and one not be able to know that he’s there. He’d be in between the fence and the well, which would concern me as a parent. So I am somewhat struggling with this variance also even though it is only a 25% variance. A foot and one half above the 6 ft. I believe the evergreens will potentially become the screen because they will cover the fence at some point in time and the fence will be more for the neighbors looking the other way from the parcel instead of the house or property owners.

Any other comments gentlemen? Do we have a motion?

Mr. Werner: Mr. Chairman, I make a motion that appeal #1796 be denied.

Mr. Deremer : We have a motion to deny appeal #1796. Do I have a second?

Mr. McDonnell: Seconded.

Mr. Deremer: Please call the role.

Ms. Poindexter: Mr. Guilitto.

Mr. Guilitto: No.

Ms. Poindexter: Mr. Dodson.

Mr. Dodson: I’m a little confused. The motion is to deny?

Mr. Deremer: Yes.

Mr. Dodson: Yes.

Ms. Poindexter: Mr. Werner.

Mr. Werner: Yes.

Ms. Poindexter: Mr. McDonnell.

Mr. McDonnell: Yes.

Ms. Poindexter: Mr. Deremer.

Mr. Deremer: Yes.

Mr. Deremer: With that sir you do have a denial of the appeal. If you think that we have made an error in our decision you do have the right to appeal that to the Stark County Court of Common Pleas as your representative will tell you. I believe you have a 30-day period to do that. We ask that you take a look at that and see what you can potentially do but you do have the right to appeal this decision if you seek further redress from this board. I appreciate your time this evening.

Mr. Jefferies: Will you be sending notification (unauditable).

Mr. Deremer: No, the notice will come in the mail. Thank you sir.

(This concludes appeal #1796.)

APPEAL #1795 – Craig Conley, Attorney, 220 Market Ave. S, Suite 604, Canton, Ohio 44702 agent for Richard Snee, property owner, 5335 Strausser St. NW, North Canton, Ohio 44720 appeals the decision of the Zoning Administrator as provided for in Art. VIII Sect. 803.1 of the zoning resolution in letter dated 7/9/02 regarding the denial for a 25% non-conforming use expansion for the property of Earth & Wood Products, 5335 Strausser St. NW, Sect. 2SE Jackson Twp. Area zoned R-R.

Mr. Deremer read the file application signed by Craig Snee with reasons being as written by the applicant, “denial of expansion requested is a violation of 701.1A of the zoning code”. The file contained a letter faxed to the zoning department, John Phillippi, from Craig Conley, dated 7/8/02, and a letter from John Phillippi to Craig Conley, dated 7/9/02 regarding Snee Property-request for expansion of nonconforming use which Mr. Deremer read into the record, a tax map of the property in question, and an 8-1/2 x 11” sheet marked as exhibit C-1.

Mr. Deremer stated that there is a letter in the file from Mr. Conley to the Board Members dated 8/12/02 requesting that appeal #1795 be continued until a future indefinite date; i.e., to a date after appeal #1793 is decided by the board. Mr. Deremer read the letter into the record.

Mr. Deremer stated that he is not sure that the board can give an indefinite date for the continuance and they would need to set a definite date for the matter.

Mr. Deremer asked Ms. Poindexter what the next potential date would be.

Ms. Poindexter stated that there is an opening on October 10th however there are already two hearings scheduled for this date. One is a PRD and the other is another appeal for the Snee property so the board may want to look at October 24th.

Mr. Deremer stated October 24th would be OK.

Ms. Poindexter stated that first hearing would be at 7:30 p.m.

Mr. Dodson stated that the board might want to set the hearing later in the evening.

Mr. Deremer stated that he would like to make a motion that appeal #1795 be continued until October 24, 2002 at 8:15 p.m.

Mr. Dodson seconded the motion.

The vote was: Mr. Guilitto-yes, Mr. Dodson-yes, Mr. Werner-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.

Mr. Deremer stated that appeal #1795 would be continued and no notices would be mailed out because it is a continued case and has already been advertised.

APPEAL #1798 - Denise Kast, property owner, 6084 Lake O’Springs Ave. NW, Canton, Ohio 44718 requests a variance for a 6 ft. in height fence in the front yard area where a 4 ft. fence is permitted in Art. IV Sect. 401.12(F) of the zoning resolution. Property located at 6084 Lake O’Springs Ave. NW, Sect. 14SW Jackson Twp. Area zoned R-1

Mr. Deremer read the file application signed by Denise Kast with reasons being as written by the applicant, “Privacy to help contain our children and their toys on our property, and for an aesthetics standpoint”. The file contained a tax map of the property in question and a site plan showing the location of the fence.

Mr. Deremer asked who would like to speak in favor of this appeal.

Mr. Deremer swore in Mark Kast of 6084 Lake O’Springs Ave. NW.

Mr. Kast presented several photos to board and a colored site plan.

Mr. Deremer marked the highlighted site plan as exhibit #1. There were two photos with stickers of #1 and #2 on them and four other photos. Mr. Deremer stated that the photos would be marked as exhibits 2 through 7.

Mr. Kast stated that the request is for a 6-ft. in height fence in front of the house for approximately a 28-ft. distance. The fence was installed two years ago per request of the neighbor in order to keep the kids and toys out of the neighbor’s yard. Mr. Kast stated that he installed the fence to respect the neighbor.

Mr. Kast stated that his home is approximately 100 ft. from the road and the back yard is at a 52-ft. setback. Mr. Kast stated that they always play wiffleball and kickball in the front yard and he thinks this is a minor request.

Mr. Kast stated that the picture labeled #1 shows that the fence does not hamper any view from anyone and does not harm anyone in any way. There are no windows blocked. Mr. Kast stated that picture #2 shows that the fence was installed on the property line and the 6-ft. in height starts at the front corner of the neighbor’s home. Mr. Kast stated that if they started the 6-ft. portion of the fence from the front corner of their home it would look funny and he thinks the fence looks more uniform the way it is.

Mr. Kast stated that they are requesting the variance to contain their children and toys and they acknowledge that they are not harming or hampering anyone with the fence.

Mr. Kast stated that on the drawing the area highlighted in blue is the distance that they are asking for. It also shows that the neighbor’s home sits much closer to the road then their house does.

Mr. Deremer asked if the actual variance is for the 28-ft. portion of the fence.

Mr. Kast stated yes; it starts at the front corner of the neighbor’s house.

Mr. Deremer asked Mr. Phillippi to explain the situation.

Mr. Phillippi stated that the violation is because the height of the fence within the front yard is 6 ft. and the maximum permitted height is 4 ft. The front yard is considered to be from the nearest point of the structure to the street and the fence extends though the front yard along the side of the property.

Mr. Dodson asked Mr. Phillippi if the house shown in the photo marked #2 is the front of the house.

Mr. Phillippi stated that this is the neighbor’s house.

Mr. McDonnell asked Mr. Phillippi if exhibit #3, which has a #2 marked on the front, is the front portion of the house.

Mr. Phillippi stated yes.

Mr. McDonnell asked what if the neighbor on the other side of the fence had put the fence up and it belonged to them as opposed to the applicant. It would seem to indicate that the entire portion at 6 ft. would be considered their side yard.

Mr. Phillippi stated this is correct and is only the front yard for the applicant’s property and not the adjacent property.

The board had no further questions and Mr. Kast had no further comments.

Mr. Deremer swore in Denise Kast of 6084 Lake O’Springs Ave. NW.

Ms. Kast stated that she has lived in her home for 17 years. The home to the north of her is a newly constructed home and sticks out in front of all the other homes. By putting up the fence they took into consideration that the neighbor would be able to put up a 6-ft. fence as questioned by Mr. McDonnell.

Ms. Kast stated that they did not want to block anyone’s view although the neighbors home completely blocks her view. Ms. Kast stated that 2 ft. makes a world of difference to a mother that has four children.

Ms. Kast stated that the fence is needed for protection for her children, so they can completely ignore their neighbors on the side of her, and so they do not do anything that will bother them in anyway.

Ms. Kast stated that she understands that there are rules in Jackson Township but there also has to be a consideration of the aesthetic view and protection. Two feet may not seem like anything to the board members but when you live in home that has been your home all your life, two feet makes a difference.
Ms. Kast stated that the fence does not hurt anyone or block anything. Ms. Kast stated that some of the photos show what’s on the other side of the fence.

Mr. Deremer swore in Greg Hamrick of 6070 Lake O’Springs Ave. NW.

Mr. Hamrick stated that his home is to the south of the Kast home and he supports their request. Mr. Hamrick stated that the fence helps both families.

Mr. Hamrick stated that if the Fries family had erected the fence then it would meet the guidelines of zoning. If there was ever a reason to approve a variance then he thinks this is a good one. If it’s good enough for one neighbor then it should be good enough for the other.

Mr. Deremer swore in Wanda McFarren of 6110 Lake O’Springs Ave. NW.

Ms. McFarren stated that she lives on the other side of the Fries property and what Ms. Kast said about fearing for her children is very legitimate. Ms. McFarren stated that Mr. Fries had told her that his wife is Mafia and has a gun and she would kill her at anytime. Ms. McFarren stated that this has been recorded with the police department and if she had children she would fear for them also.

Mr. Deremer swore in Mr. Greg Susko of 6437 Meadowsweet Ave. NW.

Mr. Susko stated that he is in favor of the variance because of all the reasons stated. Mr. Susko stated that the neighbors to the north have a grade in their yard that is about 2 ft. higher then the land to the south so if looking at the 6-ft. fence from the northern property then it would look as if it is only 4 ft. The home to the north has a 40-ft. setback and all the others have a 70 to 90 ft. setback. The fence wouldn’t be a variance if it were on the neighbor’s property.

Mr. Susko stated that the property to the north is in disarray. It has not been properly cleaned up and is an eyesore. Mr. Susko stated that he is very much is favor of the variance.

Mr. Deremer swore in Michelle Susko of 6437 Meadowsweet Ave. NW.

Ms. Susko stated that many times she has listened to Ms. Fries yelling and screaming profanity and threatening neighbors. Ms. Susko stated that she is very much in favor of the variance and the fence height is needed for safety reasons.

No one else in the audience spoke in favor of this appeal and no one in the audience spoke in opposition to the appeal. Mr. Deremer closed this appeal to public discussion.

Mr. Dodson stated that he could see that there is a technical zoning violation and if there was a citation issued he can see why. However, it does not make sense to him that if this house was that close to the road, and he presumes the setback is proper, that the neighbors to the north could built the identical fence but the neighbors to the south couldn’t. Mr. Dodson stated that he supports the variance.

Mr. McDonnell stated that he agrees with Mr. Dodson. The practical difficulty is how close to the road the property to the north is verses the other properties along Lake O’Springs. The neighbor could build the exact same fence and it would be OK. Mr. McDonnell stated that the variance makes sense due the nature of where the house to the north sits. Mr. McDonnell stated that he does not have a problem with this appeal.

Mr. McDonnell stated that the fact that the violation was issued; the zoning department would have been in error if they did not issue a citation.

Mr. Werner stated that he agrees with Mr. Dodson and Mr. McDonnell and has no problem with this appeal.
Mr. Deremer stated that he agrees with all the comments that have been made. Mr. Deremer stated that he would note that they are only concerned with a portion of the fence that is 28 ft. in length from the front of the residents. Mr. Deremer stated if approved and without an amendment to the request it would allow 6 ft. along the entire front yard area so there would need to be a modification.

Mr. McDonnell stated that there is 82 ft. for the front portion of the yard and the variance would be for a 28-ft. section of the fence so the fence would not be permitted to extend any closer then a 54-ft. setback.

Mr. McDonnell made a motion to approve appeal #1798 with the condition that the 6-ft. portion of the fence shall not extend any closer then 54 ft. to the front property line.

Mr. Werner seconded the motion.

The vote was: Mr. Guilitto-yes, Mr. Dodson-yes, Mr. Werner-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.

APPEAL #1797 – Fergis & Harding, Inc/Chris Fergis, 2121 W. University Dr., Suite 106, Tempe, AZ 85281 agent for Kong Wah Chang/Aka: Jeff Chang, property owner, 4465 Everhard Rd. NW, Canton, Ohio 44718 requests a variance for a 10 ft. 2 in. east side yard setback where 16 ft. is required in Art. IV Sect. 411.5 of the zoning resolution. Property located at 4465 Everhard Rd. NW, Sect. 24NW Jackson Twp. Area zoned B-3.

Mr. Deremer read the file application signed by Chris Fergis and the reasons for the appeal as stated in letter dated 7/31/02 from Chris Fergis, which is in the file. Mr. Deremer read the letter into the record. The file also contained a tax map of the property in question and an 11-x 17” site plan showing the proposed addition from the north, south, east and west elevation.

Mr. Deremer asked who would like to speak in favor of this appeal.

Mr. Deremer swore in Wayne McCullough, Civil Engineer.

Mr. McCullough stated that he is the civil engineer working with the architect on the development of the site plan. Basically what was addressed in the letter pretty much summarizes what the request is for.

Mr. McCullough stated that the building is already 10 ft. 2 in. from the property line and they would like to square the building up to maximize the use of the property in order to make it functional. Mr. McCullough stated that there is not a lot of room to work with on the property in order to meet the necessary parking requirements for the seating in the restaurant. Mr. McCullough stated that the request is for the east side.

Mr. Deremer asked how much of an extension Mr. McCullough is talking about.

Mr. McCullough stated approximately 40 ft. in the front and 10 ft. in the back. It would basically square off the building.

Mr. Deremer asked if the addition is one or two stories.

Mr. McCullough stated that it would be two stories.

Mr. Deremer stated based on the architectural site plan there is about 30 ft. of east wall that is 10 ft. from the property line.

Mr. McCullough stated yes. The building would be squared up. In order to obtain the necessary square footage and to make it economically feasible to do anything with the property they need to get as much square footage as they can.
Mr. Deremer asked how many parking spaces are on the property.

Mr. McCullough stated that there are 42 spaces. All the calculations have been done regarding landscaping and parking requirements. Mr. McCullough stated that the total vehicular service area is 2,050 sq. ft., the interior landscaping islands are 1,003 sq. ft., the parking requirements are 25 spaces for 75 seats, 3 spaces for every 9 employees, and 14 spaces for a 28 sq. ft. bar. Mr. McCullough stated that this was calculated based on the township’s requirements.

Mr. Phillippi stated that he provided the requirements to the architect but he has not received the information that was referred to.

Mr. McCullough stated that this was submitted to Regional Planning and he could provided copies to the board if needed.

Mr. Phillippi stated this would be reviewed independently.

Mr. McCullough asked Mr. Phillippi if he wanted a copy of the site plan indicating the seating layout submitted to him separately.

Mr. Phillippi stated that he would require this in order to respond with their comments to regional planning.

Mr. McDonnell asked if Mr. McCullough concurs and can verify that what Mr. Fergis stated in his letter is correct.

Mr. McCullough stated that he does not have a copy of the letter.

Mr. McDonnell stated that part of the testimony that came with the application was that the reason why they needed to extend the building is because it would not allow for the necessary parking.

Mr. McCullough stated yes this is true.

Mr. McDonnell asked why it couldn’t come forward, how much parking is required, and if it is a legitimate problem.

Mr. Deremer stated based on the testimony that Mr. McCullough has given, it is required.

Mr. Deremer asked if there would be two floors within the structure.

Mr. McCullough stated part of it would be open in the center and the other part would have two floor areas.

Mr. Deremer asked if the calculations are abased on 75 seats plus the bar area.

Mr. McCullough stated that Mr. Fergis provided the calculations.

No one else in the audience spoke in favor of this appeal and no one in the audience spoke in opposition to this appeal. Mr. Deremer closed this appeal to public discussion.

Mr. Guilitto asked if the fire requirements go through regional planning.

Mr. Phillippi stated that this is part of the review and approval process through the township.

Mr. Deremer asked if the zoning regulations allowed a lesser setback at one time for the B-3 district or if there was ever a variance.

Mr. Phillippi stated that he does not know but there is nothing in the file for a variance for the current structure.

Mr. Deremer stated that he is only asking because if a variance was granted before then they the board would not need to grant another one.

Mr. Dodson stated presuming that the side setback on the existing structure was proper at the time of construction of the building basically all they are doing is squaring up the building and he is not hearing a lot of opposition. Mr. Dodson stated that he believes it is maximizing the use of the property and has no problem with this appeal.

Mr. Werner stated that he agrees with Mr. Dodson and has no problem with the appeal.

Mr. Deremer stated that he also agrees with the other board members. They are not overbuilding the property and are only extending the existing wall. Mr. Deremer stated that he does not have a problem with this variance request.

Mr. Dodson made a motion to approve appeal #1797 as requested.

Mr. Guilitto seconded the motion.

The vote was: Mr. Guilitto-yes, Mr. Dodson-yes, Mr. Werner-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.

Mr. Deremer asked if the board had any comments on the minutes from July 11, 2002.

Mr. McDonnell made a motion to approve the minutes from July 11, 2002.

Mr. Guilitto seconded the motion.

The vote was: Mr. Guilitto-yes, Mr. Dodson-yes, Mr. Werner-abstain, Mr. McDonnell-yes, and Mr. Deremer-yes.

Mr. McDonnell made a motion to adjourn the meeting.

Mr. Werner seconded the motion.

The vote was: Mr. Giulitto-yes, Mr. Dodson-yes, Mr. Werner-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.

Respectfully submitted,

Joni Poindexter,
Zoning Data Coordinator
Clerk/Secretary