Members present:
Ted Deremer
Edward McDonnell
Gerald Werner
Richard Dodson
Jim Giulitto
John Juergensen-Alternate
Zoning Administrator:
John Phillippi
Zoning Data Coordinator:
Joni Poindexter
APPEAL #1869 – Wesley Meinerding, 4863 Fulton Rd. NW, Canton, Ohio 44718 agent for Raymond Rogers, property owner, 4915 Fulton Rd. NW, Canton, Ohio 44718 requests a use variance to allow Shredit Mower Blades machine shop in a B-3 district where a machine shop is permitted in an I-1 district. Property located at 4863 Fulton Rd. NW, Sect. 25NW Jackson Twp. Area zoned B-3.
Mr. Deremer read the file application signed by Wesley Meinerding with reason being as stated by the applicant, “Been at this location for 20 years, we have four employees and to expensive to move.” The file contained a tax map of the property in question, a sketch showing the location of Shredit Mower Blades, a property record card printout regarding the property in question showing when the business was built, a notice of zoning violation, and copy of checks that were written in 1992 showing that the machine shop was at the location in question.
Mr. Deremer asked who would like to speak in favor of this appeal.
Mr. Deremer swore in Wesley Meinerding, 4863 Fulton Rd. NW.
Mr. Meinerding stated that he and his father started the company in the 1980’s as a bike light business. His father then patented a mower blade, Shredit Mower Blade, which is mostly sold to the golf course industry. It cuts grass as a normal blade but also shreds it. Mr. Meinerding stated although the business has been at this location since the 1980’s, he could only provide checks written as far back as 1992.
Mr. Meinerding stated that the making of the mower blades entails using a mill to put the front edge on and drilling out the hole, sawing the blade, and then welding the vertical blades on.
Mr. Meinerding stated that they also have an office on the property and the business has a total of four employees. One person works in the office and three are in the shop. Mr. Meinerding stated if they aren’t permitted to stay at their present location then they would probably have to close because it would be very expensive to move.
Mr. Deremer asked if the mower blade business started in 1992.
Mr. Meinerding stated that before 1992 they were making bike lights that didn’t entail a mill but it did entail welding, drilling, and assembly.
Mr. Deremer asked how long the bike light operation was in effect.
Mr. Meinerding stated that it was started about 1985 and they are still doing it. They mostly sell the bike lights to the Amish.
Mr. Deremer asked if it was initially a one or two person shop and now they are at four.
Mr. Meinerding stated that it started out with his father and another man and now they have four employees.
Mr. Deremer asked if the business is strictly manufacturing.
Mr. Meinerding stated that normally no one comes to the store. The mostly sell through a web site to the golf course industry. The lawn care people don’t want to pay the price for the blades but the golf course industry has large mowers with many blades. The people who maintain the golf courses have a requirement to keep them in tip top shape and the blades shred the grass very fine. Mr. Meinerding stated that their blades are sold world wide and the cost is $49.95.
Mr. Deremer asked if Mr. Meinerding’s business is the only type of manufacturing business on the property.
Mr. Meinerding stated that he believes so but doesn’t really know.
Mr. McDonnell asked Mr. Meinerding if he had said that the business has been at the location since 1985.
Mr. Meinerding stated yes, give or take a year or two, but he’s not sure of the exact date. They weren’t doing the mower blades at that time and they didn’t have the type of machinery that they do now.
Mr. McDonnell asked if there is a drilling machine, a milling machine, a sewing machine, and a grinder.
Mr. Meinerding stated that there is one milling machine, one welder, two drill presses, a grinder, and three presses.
Mr. McDonnell asked if there are only four employees.
Mr. Meinerding stated yes. There is one in the office and three in the shop. One is a welder and runs the mill and the other two straighten the blades.
Mr. McDonnell asked how long they could keep going at the current location before they would have to start adding employees and equipment if the business continued to grow.
Mr. Meinerding stated that he is working to get the capacity up to 200 blades per week but he does not have to add any employees. He found a company in Toledo that also makes blades and the steel that he has coming in will only last about three months and then he has to reorder 3,000 more lbs. at eighty eight cents per pound or he can order blades from the other company as needed at 250 pieces and thirty eight cents a pound and it would already be milled.
Mr. Meinerding stated if he orders the blades it will cut down on his milling time and the welder can weld full time and his capacity will go up. He doesn’t expect to add any employees within the next year or so but possibly one or two within the next five years.
Mr. McDonnell asked if the request were granted, would there be any problem with the board putting a condition on the approval that they not add anymore employees or equipment except to replace the existing equipment if there were a problem.
Mr. Meinerding stated that he doesn’t think adding more equipment would be a constraint but he is not sure about not adding another employee. He is trying to downsize on equipment but may need an extra employee to do the shipping.
Mr. Meinerding stated that it would be very difficult and expensive to move his business and if he can’t stay at the present location then he may have to close.
Mr. Werner asked if the fire prevention bureau had ever made a visit to the business.
Mr. Meinerding stated that the fire prevention people visited the business last month and any violations or requests have been taken care of.
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. McDonnell asked Mr. Phillippi how long the property has been zoned B-3.
Mr. Phillippi stated that he did not know.
Mr. McDonnell asked Mr. Phillippi if the business could potentially be a non-conforming use.
Mr. Phillippi stated that he didn’t believe so.
Mr. McDonnell asked if there was a complaint that sent Mr. Revlock to the property.
Mr. Phillippi stated that it was a routine inspection that was generated due to a number of different businesses at the location. The zoning office was updating their records and there were several businesses that didn’t have a certificate of compliance permit. The fire department gave the zoning department some information regarding some businesses that the township was not aware of and Mr. Revlock went to the property to check to see what businesses were on the property. The zoning department contacted Mr. Roger’s who owns the property and he gave them information about the businesses and then the zoning department contacted Mr. Meinerding. A complaint was not received regarding the business.
Mr. McDonnell asked if there are any other situations that the township many have stumbled across that don’t conform or are in violation of zoning.
Mr. Phillippi stated that there were a couple businesses that were questioned but it was determined that everything was in compliance.
Mr. Deremer closed this appeal to public input.
Mr. Deremer stated that one of the things that come to his mind is the length of time the business has operated. It probably appeared as a small machine shop and now it has expanded a little bit to increase sales but it is still small. The fact that they manufacture something, per the resolution it needs to be in an industrial zoned area but when he looks at what is allowed in a B-3 he sees vehicle services is permitted with a conditional use permit that includes welding and pounding on things. The manufacturing process that is going on is not much different from a use that would be allowed in a B-3 district. Mr. Deremer stated that he is not opposed to the business staying at the location and continuing the business as is. The concern that he has is that with any variance it is a permanent variance that stays with the land so he believes a condition would need to placed on the use that if the facility changed operations then the variance would be dropped.
Mr. Dodson agreed with Mr. Deremer and thinks if granted it should be limited to the current use and five employees.
Mr. McDonnell agreed with Mr. Deremer and Mr. Dodson and stated that he thinks if the board granted the variance that it needs to be conditioned upon the current business and current owners. Mr. McDonnell stated that he is not sure about limiting the number of employees although he is willing to go along with it and thinks there should be no increase in floor space area and no additional equipment except to replace current manufacturing equipment due to normal wear & tear. Mr. McDonnell stated that he would have no problem in granting the appeal with conditions.
Mr. McDonnell made a motion that the variance only apply to the current operation and owners and that there will be no increase in the floor space and no additional production and/or manufacturing equipment except to replace current equipment due to wear and tear.
Mr. Giulitto stated that the testimony was that Mr. Meinerding had to change the process over the last ten years and it has made it more efficient to change it this way. He may have to put more equipment in there to go with the times. Mr. Giulitto stated that he is concerned with the third condition because with that limitation they may be limiting them.
Mr. Dodson asked if there is any reason, if the variance is passed as suggested, that the applicant can’t come back in and say that he has to replace a machine with the current technology.
Mr. Deremer stated that it would be no different than a conditional permit. If the conditions change then the applicant can come back to the board. Mr. Deremer asked if there is modification to the motion or better wording.
Mr. McDonnell asked if the limitation of floor space takes care of the concern of them growing to large.
Mr. Deremer stated that he thinks this would take care of most of it.
Mr. McDonnell asked in order not to hamstring the applicant but at the same time control the situation, what if the first condition regarding current operations and owners and the second condition being that there will be no increase in floor space continue to apply and they eliminate the third condition which is to limit the replacement of production equipment.
The board members agreed.
Mr. McDonnell modified the motion to approve appeal #1869 with the condition that the variance only applies to the current operation and owners and there will be no increase in floor space.
Mr. Giulitto seconded the motion.
The vote was: Mr. Giulitto-yes, Mr. Dodson-yes, Mr. Werner-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.
APPEAL 1867 – Nick Kantzos, agent for Zenallis-Kantzos Limited Partnership, property owner, 714 Deerfield Dr., North Canton, Ohio 44720 requests a conditional use permit for a self serve car wash facility where a conditional use permit is required in Art. IV Sect. 411.3 of the zoning resolution. Property located at 5501 Whipple Ave. NW, Sect.13SE & 24NE Jackson Twp. Area zoned B-3.
Mr. Deremer read the file application signed by Nick Kantzos. The file contained a tax map of the property in question, a site plan for the self serve car wash done by William McCullough dated March 14, 2003 and the answers to the criteria for the conditional use permit.
Mr. Deremer asked who wanted to speak in favor of this appeal.
Mr. Deremer swore in Nick Kantzos and William McCullough.
Mr. Kantzos stated that they are asking for a conditional use permit for a car wash.
Mr. McCullough stated that they have conditional approval from Regional Planning. In that condition there are some things that have to be addressed regarding storm water runoff and the gas easements.
Mr. McCullough stated that Mr. Kantzos did not want to do a detailed plan until he received a conditional use permit. All the conditions from regional planning will be met if the conditional use permit is approved.
Mr. Kantzos stated that the car wash will have six bays and be self served. There will not be an automatic car wash.
Mr. McCullough stated that the car wash will be housed inside the building except for the vacuuming and drying area.
Mr. Deremer asked how the building would be constructed.
Mr. McCullough stated that the building would be masonry with asphalt shingles.
Mr. McDonnell asked how many bays the car wash would have.
Mr. Kantzos stated that there would be six bays.
Mr. McDonnell stated that he sees nine bays on the plan.
Mr. McCullough stated that the original plan had six but they will have nine.
Mr. McDonnell asked if the plan that is presented is the plan that they are willing to go with.
Mr. Kantzos stated yes.
Mr. McDonnell asked Mr. Phillippi if he reviewed the plan.
Mr. Phillippi stated that the plan meets all the requirements for setbacks, etc.
Mr. McDonnell asked if the plan meets the landscaping requirements.
Mr. Phillippi stated that a detailed landscaping plan would need to be submitted that meets all the conditions and requirements. Generally this comes in before the issuance of the permit and they have conditional approval for the plan from regional planning.
Mr. McDonnell asked why the approval is conditional.
Mr. Phillippi stated that generally it is the standard conditions that have to do with the detailed drainage plan being submitted to the subdivision engineer.
Mr. McDonnell reviewed the criteria for the conditional use permit.
Section 431.2
Mr. McDonnell asked if it would be detrimental to the property values in the immediate vicinity.
Mr. McCullough stated no.
Mr. McDonnell asked if it would restrict or adversely affect the existing use of the adjacent property owners.
Mr. McCullough stated no.
Mr. McDonnell asked if the access drives and points of access would be designed and constructed to meet the approval of the township trustees.
Mr. McCullough stated yes.
Mr. McDonnell asked if it would meet the requirements of EPA for stormwater runoff.
Mr. McCullough stated yes. There is a question as to whether it is required but if they disturb enough area then it will be submitted.
Mr. Deremer asked if the site is over one acre.
Mr. McCullough stated yes. The total site is over one acre but they may not be disturbing an acre because of the gas restrictions.
Mr. McDonnell asked if it would be property landscaped per section 411.9.
Mr. McCullough stated yes. This would be submitted with a detailed plan.
Mr. McDonnell asked if it would be constructed in a neat, orderly, and safe condition.
Mr. McCullough stated yes.
Section 431.3(C)
Mr. McDonnell asked what the hours of operation would be.
Mr. Kantzo stated that it would be available 24 hours a day seven days a week.
Mr. McDonnell asked how close the exit and entrance would be to Everhard and Whipple Ave.
Mr. McCullough stated probably about 750 to 1,000 ft.
Mr. McDonnell asked what type of lighting they would have.
Mr. McCullough stated that there would be lighting on and in the building.
Mr. McDonnell asked if there would be any floodlights, searchlights, or loudspeakers.
Mr. McCullough stated no.
Mr. McDonnell asked if the trash receptacle would be screened and where it would be located.
Mr. McCullough stated that it would be located at the back of the property and would be enclosed.
Mr. McDonnell stated that it has to be screened.
Mr. McDonnell asked if the grading and surface drainage provisions would be prepared by a registered engineer.
Mr. McCullough stated yes.
Section 431.6A
Mr. McDonnell asked if there would be any
work performed on vehicles.
Mr. McCullough stated no.
Mr. McDonnell asked what type of work might be carried on outside the car wash.
Mr. McCullough stated drying and vacuuming.
This concluded the criteria for the conditional use permit.
Mr. McCullough had nothing further to add and the board had no further questions.
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 input.
Mr. McDonnell stated that it appears all the criteria for the conditional use permit has been met and he does not believe that it would be detrimental to the adjoining properties. Mr. McDonnell stated that he does not have a problem with the request but would like to make sure that conditions, i.e. the trash receptacles will be properly screened and the detailed landscaping plan will be submitted and approved by the township prior to the issuance of the conditional use permit, are met.
Mr. Dodson and Mr. Werner stated that they agree with Mr. McDonnell.
Mr. McDonnell made a motion to approve appeal #1867 with the condition that the trash receptacles will be properly screened and approved by the township prior to the issuance of the conditional use permit and a detailed landscaping plan be submitted and approved by the township prior to the issuance of the conditional use permit.
Mr. Dodson seconded the motion.
The vote was: Mr. Giulitto-yes, Mr. Dodson-yes, Mr. Werner-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.
APPEAL #1868 – Mark Steiner, 12000 Arnold Rd., Orrville, Ohio 44667 agent for Dayspring Christian Fellowship Inc., property owner, 733 W. Maple St., North Canton, Ohio 44720 requests revisions to a previously approved conditional use permit for a church, appeal #1787 approved 6/13/02. Property location is 3.83 acres on the east side of Wales Rd., approximately 840 ft. south of Portage St., Sect. 15NW Jackson Twp. Area zoned R-R.
Mr. Deremer read the file application signed by Mark Steiner with reasons being as stated by the applicant, “Stark County recently requested the purchase of additional road frontage property for the expansion and improvement of the intersection of Wales & Portage and this interferes with a proposed future building. As of December 2002, parking is permitted in the front of the building and parking in the front will improve access to the lower level of the building.”
The file contained a tax map of the property in question, a small copy of the original approved site plan and the new proposed site plan, a full size copy of the proposed site plan stamped received July 22, 2003, and the answers to the criteria for the conditional use permit.
Mr. Deremer asked who would like to speak in favor of this appeal.
Mr. Deremer swore in Mark Steiner, 12000 Arnold Rd., Orrville, Ohio.
Mr. Steiner stated that they have had the land since 1996 and are anticipating on building very shortly. The last time they were in front of the board parking was not permitted in the front yard area. Around July 1, 2003 they received a letter from ME Companies requesting part of their land. Upon speaking to Mr. Phillippi they found out that the zoning regulations had changed and parking was now permitted in the front yard area. They decided to revise the plan and put the building more toward the center of the property and some parking in the front until the future phase can be built, which is a dream toward the future.
Mr. Steiner stated that they are proposing a two story facility with the upstairs being the sanctuary and fellowship hall and classrooms on the lower level. The dream down the road would be to put a future expansion toward the front.
Mr. Steiner stated that he has the letter from ME Companies and drawings of what they are requesting, which is 20 ft. of their property. They are also asking for an additional 20 ft. of right of way to put in a storm sewer to help with the situation in Briarwood and getting the runoff down to the lower creek. Mr. Steiner stated that it makes sense to move the building 65 ft. back.
Mr. Deremer asked if the big difference between the original plan and revised plan is moving the building back 65 ft.
Mr. Steiner stated yes. They would be moving the building back 65 ft. and putting parking in the front towards Wales Rd.
Mr. McDonnell asked if it is correct that the only change from the original plan is moving the building back 65 ft. and putting the parking in the front.
Mr. Steiner stated yes.
Mr. McDonnell asked if they would have enough area for sufficient parking if they built the expansion, phase two, because they would lose the parking in the front.
Mr. Steiner stated yes. This is a dream down the road and he understands that they would have to go back to the board for any expansion.
Mr. McDonnell asked if it is Mr. Steiner’s testimony that nothing else has changed except moving the building back 65 ft. and swinging the parking to the front of the building.
Mr. Steiner stated that nothing else has changed.
Mr. McDonnell stated that he is not sure the board needs to go through all the criteria for the conditional use permit if the applicant is willing to commit himself to all the responses from the previous hearing and previous permit. It has been Mr. Steiner’s testimony that the only thing that has changed is moving the building back 65 ft. and swinging the parking around.
Mr. Deremer asked Mr. Steiner if his responses are the same as the previous hearing.
Mr. Steiner stated yes.
Mr. Deremer asked Mr. Steiner if it is his testimony that there is no change in the responses.
Mr. Steiner stated that it is the same paper with the responses from the last hearing.
Mr. McDonnell asked Mr. Phillippi if he reviewed the plan.
Mr. Phillippi stated that he reviewed the plan and looked at the changes. The only changes are as mentioned which is moving the building back and the parking to the front.
Mr. McDonnell asked if the plan meets all the setback and parking requirements.
Mr. Phillippi stated yes.
Mr. McDonnell stated that landscaping is not applicable because it is in a residential area.
Mr. Phillippi stated that this is correct.
No one else in the audience spoke in favor of this appeal.
Mr. Deremer asked if anyone in the audience wanted to speak in opposition to the appeal.
Mr. Deremer swore in Frankie Baker, 595 S. Van Buren Ave., Barberton, Ohio 44203.
Ms. Baker stated that she owns the property at 6554 Wales Rd. and her only concern is the property that the church owns directly behind her. She understands that this will be used for parking and wanted to know if that is going to be included in the 117 parking spaces.
Mr. Deremer stated that the plan lists 83 parking spaces. The future plan is for 117 spaces.
Ms. Baker asked if this would be in front of the church.
Mr. Deremer stated that there would be additional parking in front of the church.
Ms. Baker asked if there is any parking behind 6554 Wales.
Mr. Deremer stated not that was testified to. The plan that they have is what would be approved.
Ms. Baker stated that she is not opposed to the church. She just wanted to know about the parking directly behind her.
Mr. Deremer stated that it appears that there would not be any.
No one else in the audience spoke in opposition to the appeal.
Mr. Deremer closed this appeal to public input.
Mr. Werner stated that he thinks the plan is a legitimate one and the county is going to expand by taking some of the property so he does not have a problem with the appeal.
Mr. Deremer stated that it is basically the same plan that was previously approved by the board with the only change being the building is moved back 65 ft. and there is parking in the front. Mr. Deremer stated that he does not have a problem with the request.
Mr. McDonnell made a motion to approve appeal #1868 as requested.
Mr. Werner seconded the motion.
The vote was: Mr. Giulitto-yes, Mr. Dodson-yes, Mr. Werner-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.
Mr. Phillippi stated that the board previously received information regarding the issuance of a subpoena relative to the appeal hearing scheduled September 11, 2003 at 8:00 p.m., which is an appeal of the issuance of the construction permit for Christie’s Cabaret. The appeal has been filed by Developers Diversified Realty Corporation whose attorney is Brouse McDowell of Akron, Christopher Swing. Mr. Swing has prepared the subpoena that the board received at Neal Fitzgerald’s request. This was reviewed by Mr. Fitzgerald. Attached is supplemental information that Mr. Fitzgerald provided that is relative to the issuance of a subpoena and the procedures. Mr. Phillippi stated that Mr. Fitzgerald indicated that the subpoena needed to be issued by an action and motion of the board of appeals.
Mr. Deremer stated that the letter reads as follows:
“Dear Mr. Deremer. This covers delivery of Developers Diversified Realty Corporation’s appeal from Mr. Phillippi’s decision of July 30, 2003 to approve Chang, Inc.’s request for a zoning permit for new construction of a Christie’s Cabaret at 4465 Everhard Road NW, Canton, Ohio 44718. This further serves as DDRC’s request for Jackson Township to issue a subpoena for (or otherwise compel) the appearance of Jeff Chang and a representative from Christie’s Cabaret, with personal knowledge of the intended use of the property, before the Board of Zoning Appeals at the hearing, pursuant to Section 702.6 of the Jackson Township Zoning Resolution. Thank you for your anticipated cooperation concerning the matter. In the meantime please do not hesitate to contact me should you have any questions. Sincerely yours, Christopher F. Swing.”
Mr. Deremer stated that the appeal application is attached to the letter that consists of two pages and was received on August 14, 2003 at the township hall.
Mr. Deremer asked if the board members had a copy of the subpoena.
The board members stated yes.
Mr. Deremer read the subpoena into the record as follows:
“Subpoena to Chang, Inc., Jeff Chang, 6424 Oakbridge Avenue, NW, North Canton, Ohio 44720. Where in the State of Ohio, Stark County, In accordance with Section 519.15 of the Ohio Revised Code, Jeff Chang hereby is commanded to appear and give testimony before the Jackson Township Board of Zoning Appeals, 5735 Wales Avenue, NW, Massillon, Ohio 44646, on September 11, 2003, at 8:00 p.m., then and there to give evidence and the truth to say in re of Christie’s Cabaret, 4465 Everhard Road NW., as if on cross-examination. In accordance with Section 519.15 of the Ohio Revised Code and Rules 45 and 30(B)(5) of the Ohio Rules of Civil Procedures, Chang, Inc. further is directed to designate one or more of its proper employees, officers, agents, or other persons duly authorized to testify on Chang, Inc.’s behalf, including but not limited to a representative of Christie’s Cabaret, regarding the intended use of the property, known as 4465 Everhard Road, NW, as a Christie’s Cabaret. This you in no wise omit, under penalty of the law. Given under my hand and official seal this 28th day of August, 2003. Jackson Township, and who will sign this, me.”
Mr. Deremer stated that the rest of the subpoena is the formal procedure consisting of two additional pages for serving of the subpoena.
Mr. Deremer stated that Developers Diversified Corporation is the client, which is also known as DDRC.
Mr. Phillippi stated that DDRC is the property owners of Belden Crossings East and Belden Crossings West, which is the shopping center behind the property in question.
Mr. Dodson asked if there is an application pending.
Mr. Phillippi stated that he had originally denied their application for the new construction permit. At the direction of the township’s legal department he was advised that he had to issue the permit based on information that was supplied by Chang’s attorney. The permit was issued under the direction of the legal department and at that point an appeal was filed by Developers Diversified in issuing the permit.
Mr. Juergensen asked Mr. Phillippi if he said that Mr. Fitzgerald asked Christopher Swing to prepare the subpoena.
Mr. Phillippi stated yes. Mr. Fitzgerald telephoned Mr. Swing and requested that he prepare the subpoena for submission to the BZA. Neal basically indicated that he didn’t have a form available or something of that nature.
Mr. Deremer asked if it was Mr. Fitzgerald’s opinion that this is the proper procedure and the board should issue it.
Mr. Phillippi stated that Mr. Fitzgerald reviewed the subpoena and was satisfied with the form.
Mr. Deremer asked if the reason for the subpoena is because the applicant believes the township was given false information.
Mr. Phillippi stated that the representation that has been made for the restaurant, bar, and nightclub that he initially rejected as opposed to that it will be a sexually oriented business, that representation has simply been in the form that they will meet the township zoning regulations. It has been very scanty and it has never been made by anyone other than Mr. Jeff Chang and their attorney. Yes the intent of Mr. Swing is to get someone with some standing with Christie’s Cabaret in a public meeting under oath that he can cross examine so he can get something on the record as to exactly what they are going to be doing there. They have been very reticent in saying anything other than, “they won’t be anymore nude then they were before.” Since nobody knows how nude they were before, not to be facetious, but those are the kind of answers that we have gotten to our questions, and that was the reason that the permit was denied. The permit was only issued at the direction of the legal department.
Mr. Deremer asked if everything else was in compliance with what was approved by the board.
Mr. Phillippi stated yes. Even though it was a new building, everything complied with the site plan as initially submitted, but they did have to obtain a new permit for new construction and basically start the process over as far as the site plan approval because they removed the building as opposed to adding an addition. It went back through Regional Planning and the whole review process again.
Mr. Giulitto asked if anything like this has happened in Jackson Township, as far as coming in front of the zoning board of appeals, like this just to clarify what their intent is and if there is any other avenue for them to go so they wouldn’t have to come before the board.
Mr. Phillippi stated as far as the current appellant he thinks there isn’t any other avenue and at this point they would need to come to the board to appeal the decision. He can say that once his determination was made and the permit was denied Christie’s deliberately let the time period for appeal run out and chose not to appeal it to the board. Mr. Phillippi stated that it is kind of a unique situation and thinks, although he doesn’t want to speak for Developers Diversified, they want to get something on the record under oath as to what the intended use is and what they are going to be doing there and they feel the permit should be ordered withdrawn because it’s going to be a sexually oriented business.
Mr. Dodson stated that it seems to him that the board has a couple of choices. He doesn’t think that they have to issue a subpoena but the issue may come up and at some point if they don’t issue the subpoena and say, hypothetically, the business opens and there is a complaint that they are violating zoning, then they will have to deal with it.
Mr. Deremer stated this is correct.
Mr. Giulitto stated that they can either deal with it now or deal with it later.
Mr. Juergensen stated that it seems to him that it could hurt DDRC as much as it could help them and as a board they may want to find out the same things that DDRC wants to find out.
Mr. Deremer stated that the appeal has been filed in a timely manner so it will come before the board to be heard. He has no problem in issuing the subpoena to make sure both sides show up.
Mr. Juergensen stated that the reference of 30(B)(5) is not accurate. That’s speaking in terms of depositions and not for something like an administrative law hearing. Mr. Juergensen stated that they may want to clarify it. They can do that on their own but Chang needs to identify someone that is knowledgeable with respect to what goes on at the business.
Mr. Deremer asked if Mr. Juergensen believes only rule forty five is applicable.
Mr. Juergensen stated yes. 30(B)(5) is if he wanted to take a deposition of a corporation like IBM then IBM has to designate someone according to the conditions that are put forth in the subpoena. Mr. Juergensen stated that he thinks they can do that by stating that Chang, Inc. is to identify and produce someone that is knowledgeable of the business operations and can speak to the activities that go on there.
Mr. Deremer stated that Mr. Fitzgerald has looked at the subpoena and approved it the way it is.
Mr. McDonnell asked if section 519.15 regards zoning.
Mr. Juergensen stated that it is in the rules, organizations, and meetings of zoning appeals boards.
Mr. McDonnell asked if the business was considered to be a sexually oriented business under the approval of the zoning certificate.
Mr. Phillippi stated that a sexually oriented business is not permitted in the B-3 district, which is what the property is zoned. They represent that it will be a restaurant, bar, and nightclub and based on everything that he could determine relative to Christie’s Cabarets that are operating throughout the country, they are all the same and they are all strip clubs and are all listed on national strip club directories, etc. On that basis he denied the permit that it was, in fact, a sexually oriented business and not permitted. They are claiming that it is a restaurant, bar, and nightclub, period, and they aren’t very forthright or forthcoming in giving any other information other than they will be in compliance with the regulations that we may have.
Mr. McDonnell stated, so he understands, they came in and requested a permit and it was turned down but somewhere down the road the permit was issued based on their representation.
Mr. Phillippi stated that he issued the permit based on the advice of the legal department.
Mr. McDonnell stated that the board did not want to get into the merits of the issuance.
Mr. Deremer stated that he does not see a problem with issuing the subpoena.
Mr. Deremer made a motion to issue the subpoena as requested.
Mr. Dodson seconded the motion.
The vote was: Mr. Giulitto-yes, Mr. Dodson-yes, Mr. Werner-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.
Mr. McDonnell stated that he would like to know what is going on with the Snee case that has been remanded back to the board.
Mr. Phillippi stated that the judge’s decision has been appealed to the court of appeals.
Mr. McDonnell asked if there is someway the board could be officially notified of that so that the board and also to find out from the law department, if that then stays the judge’s order that says send it back and Conley’s request to act quickly so that they don’t wind up being in contempt of court and end up in the slammer.
Mr. Phillippi stated that Jim Matthews is the latest attorney that is involved in this.
Mr. Deremer stated that the township has the right to appeal it.
Mr. Phillippi stated that it is a good question as to whether it stays any further action on the board’s part because that could be a lengthy process and one of the points that Mr. Conley is making is the damage to Mr. Snee’s business because of all the delays.
Mr. McDonnell stated that his question was that the judge didn’t send it back to the township, they sent it back to the board of appeals and what is the board of appeals responsibility and has the action of the township by appealing it absolved the board of appeals of having to do anything until that appeal has been decided.
Mr. Dodson agreed with Mr. McDonnell and suggested that they ask the townships legal counsel if an appeal has been filed in a timely manner and is the decision of the court of common pleas stayed depending the pendency of the appeal.
Mr. Dodson made a motion to request from legal counsel an opinion as to whether or not the appeal has been filed or will be filed by the township and whether the appeal of the decision of the Court of Common Pleas of Stark County is stayed depending on the pendency of the appeal.
Mr. Giulitto seconded the motion.
The vote was: Mr. Giulitto-yes, Mr. Dodson-yes, Mr. Werner-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.
Mr. Deremer made a motion to adjourn the meeting.
Mr. McDonnell 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