Members present:                                                                 Ted Deremer
                                                                                                Edward McDonnell
                                                                                                Richard Dodson
                                                                                                Jim Giulitto
Alternate Member:                                                                John Juergensen

Absent Member:                                                                   Gerald Werner

Zoning Administrator:                                                          John Phillippi

APPEAL #1892 – Rob Myers, agent for Invisible Fence of Canton, Inc., property owner, 1939 Whipple Ave. NW requests a variance for a 14 ft. right (north) side yard setback for accessory building where a 25 ft. side yard setback is required in Art. IV Sect. 411.10 of the zoning resolution.  Property located at 1939 Whipple Ave. NW, Sect. 36SE Jackson Twp.  Area zoned B-1.

Mr. Deremer read the file application signed by Rob Myers with reasons being as stated by the applicant, “The hardship is an extremely narrow lot, 20th St. cuts back into the property, the existing office building on the property only has a 12 ft. setback on the same side, there will be no new hazard to traffic or views, upgrading looks of area and property from dilapidated existing garage in disrepair, not enough room to store machinery and vehicles to function the business, and would have to relocate entire business.”  The file contained a tax map of the property in question and a site plan showing the proposed located of the accessory building.

Mr. Deremer swore in Rob Myers, 1939 Whipple Ave. NW.

Mr. Myers stated that his business has been in Jackson Township for about eighteen years and they recently moved to the present location.  There is an old dilapidated garage that is falling down and in disrepair and he would like to build a new garage.  The problem is that the lot is very narrow in the back and there has been a rash of break-ins in the neighbor.  He would like to protect his investments by building a garage to store his equipment.

Mr. Deremer asked if the new garage would replace an existing garage.

Mr. Myers stated yes.  The existing garage is 24 x 14 ft.  He would extend the one side by 10 ft. in order to have a standard size garage which is 24 x 24 ft.

Mr. Deremer asked if the garage would be on the same line as the existing garage along the south side.

Mr. Myers stated yes.  He would need a variance if the garage were moved in any other direction because of the layout of the lot.

Mr. Giulitto asked if the garage would obstruct the view of motorist coming down the road.

Mr. Myers stated no because 20th St. cuts back quite a bit and the office building itself is out further than the garage.

Mr. McDonnell stated that it looks like the lot line in the front is about 57.5 ft. and asked what the distance is along the rear lot line.

Mr. Myers stated that he guesses it is about 25 ft., but there is no dimension on the map.
Mr. McDonnell asked why the garage couldn’t be 34 x 14 ft. as opposed to 24 x 24 ft.

Mr. Myers stated that he would have to have a side entrance and a variance would still be needed for the footage in the back.

Mr. Deremer asked if 14 ft. would be deep enough for a garage.

Mr. Myers stated that he thinks it would be deep enough but is not entirely sure because they have some extended vans that would be stored in the garage.  If the plan changed then he would have to resubmit to Stark County Regional Planning because he would have to redo the drive and blacktop and also do some excavating from the road.  Mr. Myers stated that he currently has a waiver from Regional Planning.

Mr. Deremer stated if the garage were 34 x 14 ft. it would require a variance.

Mr. Myers stated this is correct.  He would need about an 8 ft. variance.

Mr. Deremer asked if anyone else in the audience wanted to speak in favor of the appeal.

Mr. Deremer swore in Marilyn. Nagel, 1933 Whipple Ave. NW.

Ms. Nagel stated that her property is located on the south side of Mr. Myers and she does not have any objections to what he wants to do.  In fact it would be a big improvement in the neighborhood.

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. Deremer stated that the expansion from a 24 x 14 ft. building to a 24 x 24 ft. building is not totally out of line for the township and the area.  The fact that the lot is odd shaped creates a need for a variance.  Mr. Deremer stated that Mr. McDonnell’s idea about making the garage 34 x 14 ft. was a good idea, but he thinks that two variances would be needed.  Mr. Deremer stated that he is in favor of the appeal as requested.

Mr. Dodson agreed with Mr. Deremer and stated that he thinks the severe cut back of the road and the unusual shape of the lot constitutes a practical difficulty.  Mr. Dodson stated that he does not have a problem with the request.

Mr. Dodson made a motion to approve appeal #1892 as requested.

Mr. Juergensen seconded the motion.

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

APPEAL #1895 – Cliff & Renee Miller, property owner, 11083 Finefrock SW, Massillon, Ohio 44647 requests a variance for a 5 ft. front parking and landscaping setback with no landscaping where a 20 ft. front parking and landscaping setback is required in Art. IV Sect. 411.8 of the zoning resolution.  Property located at 7026 Wales Ave. NW, Sect. 10SW Jackson Twp.  Area zoned B-3.

Mr. Deremer read the file application signed by Renee Miller with reasons being to connect existing drives and the property exists.  The file contained a tax map of the property in question and a site plan showing the property.  Also in the file was memo from Joni Poindexter to Chief Heck of the Jackson Fire Department asking for any comments on the proposed site plan.

Mr. Deremer asked if any comments were submitted by Chief Heck.

Mr. Phillippi stated that nothing was received, but the fire department would have to review the specific site plan and approve it before the zoning permit is issued, if approve by the board.

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

Mr. Deremer swore in Cliff Miller, 11083 Finefrock SW Massillon, Ohio 44647.

Mr. Miller stated that the house was vacant for over two years, so it has to be converted to commercial per Jackson Township.  With the property being commercial the State of Ohio will not allow both driveways onto Wales Rd., so he has to shut off the south drive way.  The driveway to the north would be used and he has to be able to connect the driveway for the entrance to what would be a nail salon.  Mr. Miller stated that the driveways would connect where the shrubs would be located.

Mr. Deremer asked how far back the drive is from the property line.

Mr. Miller stated that it would be about 45 ft. from the edge of the pavement to connect the two drives.

Mr. Phillippi stated even though the road is currently a 66 ft. right of way the setback is 40 ft. from the centerline because Wales Rd. is an assumed 80 ft. right-of-way.

Mr. Miller stated that the only thing they are doing is connecting the two driveways and eliminating one entrance.  All the existing green space would remain.

Mr. Deremer asked if there is any indication that Wales may be widened in the near future.

Mr. Miller stated that the road was recently widened.  A center turn lane was put in and he doesn’t think it can be widened anymore because of a water line that comes from the water tower.

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. Deremer stated that there is some hardship due to the requirement by ODOT to eliminate one drive.  It seems like all the hardships are government imposed.  ODOT is telling them that they can only have one drive, but they need to connect the drives to have the proper amount of parking spaces.  The resolution has an expected width of 80 ft. for any future growth of Wales Rd., so the resolution itself has handicapped or somewhat created the variance setback.  They are connecting the drives as close to the building as they can without removing some mature trees and are actually keeping some of the landscaping in place.  Mr. Deremer stated that be believes a hardship has been proven and the variance should be approved.

Mr. Giulitto concurred with Mr. Deremer and stated that he too believes it is more of a governmental issue or hardship.  Mr. Giulitto stated that he is in favor of the variance.

Mr. Giulitto made a motion to approve appeal #1895 as requested.

Mr. Dodson seconded the motion.

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

APPEAL #1894 – Cumulus Broadcasting, Building 14, Suite1400, Atlanta, Georgia 30305 and Buddy Sanders/Reynolds Technical Associates, 12585 Old Highway, 280 East 102, Chelsea, Alabama 35043 agents for Mortenson Broadcasting, property owner, 3270 Blazer Parkway, Suite 101, Lexington, KY 40509 requests a variance for a guy wire tower 370 ft. in height where the maximum permitted height is 200 ft. per Art. III Sect. 304.6(C) of the zoning resolution.  Property location is 4.54 acres at the end of 22nd. St. NW, Sect. 36SE Jackson Twp.  Area zoned B-3.

Mr. Deremer read the file application signed by Buddy Sanders with reasons being that the subject variance is being requested to allow for the replacement of a tower that has existed at the current site since 1947.  The file contained a tax map of the property in question, a site plan prepared by Buckeye Surveying Services dated November 2003 indicating the location of the tower on the parcel, an agreement between Mortenson Broadcasting and Cumulus Broadcasting, and an ASR Registration Search consisting of two pages that indicates the registration number of the tower confirming that it was built in 1947.

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

Mr. Deremer swore in Buddy Sanders, 201 Turtle Lake Dr., Birmingham, Alabama.

Mr. Sanders gave the board a booklet of information and stated that the project has been ongoing for about one year.  Mortenson Broadcasting contacted Cumulus Broadcasting and told them that that tower was going to be removed due to its condition.  The antennas for WRQK, 106.9, are located on the tower.  In order to broadcast to the listeners and uphold their license they need a tower.  Mr. Sanders stated that he was looking for a site and found the SBA site next to the current tower.  He wanted to co-locate on the tower; however, in conversations and given the fact that they need six antenna bays and coax and existing uses on the tower the current SBA tower could not hold WRQK’s antennas.

Mr. Sanders stated that Cumulus came to Mortenson Broadcasting and began negotiations to purchase the property upon full governmental approvals.  The document that was submitted with the application identifies that and allows for Cumulus to get any necessary governmental approvals.

Mr. Sanders stated that FM technology is based on the function of the tower and height.  The FCC regulates what type and what tower stations can operate at.  Mr. Sanders stated that he knows 370 ft. seems like a tall tower, but in broadcasting that is really short because he has clients that have towers that are as high as 2,000 ft.

Mr. Sanders stated that the tower, which was built in 1947, has served its purpose and needs to be replaced, so they would like to replace it with a new tower at the same height on the same property.  Mr. Sanders stated that the replacement tower where WRQK is located will be identical as far as the visual effect and will be the same height as the WECR–AM tower.

Mr. Deremer asked if the tower would be a wire tower and what it indicates.

Mr. Sanders stated that it will be the same type of structure as the current WECR tower with guy wires to support the tower.

Mr. Deremer asked if the antennas will be replaced at the same height.

Mr. Sanders stated yes.  If the variance is granted, once his client takes over ownership of the property, constructs the tower, and the station is on the air the 1947 tower will be removed.

Mr. Phillippi stated that the tower could be replaced if in the same location because it is nonconforming.  Where the variance comes in is the fact that the tower is going to be moved to a different location when it is replaced.  By moving the tower it will meet the current required setbacks where as now the existing tower does not meet the setback requirements, so the new tower will be more in conformance with the regulations than the existing tower.
Mr. Giulitto asked if it is Mr. Sander’s testimony that the new tower will be constructed better than the existing tower.

Mr. Sanders stated yes because the new tower will have to meet EIA 2/20 standards which were put into affect in 1999.

Mr. Dodson stated that Mr. Sanders had said that the AM tower was built in about 2000 and asked if he knew how high it is.

Mr. Sanders stated the SBA tower is about 386 ft.

Mr. McDonnell asked if the current tower is what is stated on registration number 1015554 that was given to the board as one of the exhibits

Mr. Sanders stated yes.

Mr. McDonnell asked if the height above ground level AGL is 112.7 meters.

Mr. Sanders stated that is what is listed on the registration search page.

Mr. McDonnell stated that he worked 3.2808 x 112.7 meters and came up with 369 plus feet and asked if it is Mr. Sander’s testimony that the proposed tower will be the exact same height as the existing tower.

Mr. Sanders stated that is correct.

Mr. McDonnell asked where the proposed tower would be located in relation to where the current tower is located.

Mr. Sanders stated that it is between 180 and 190 ft. to the southeast.

Mr. McDonnell asked why the tower needed to be moved.

Mr. Sanders stated in order to stay on the air they have to have the antennas and equipment on a tower that is functioning.  If the tower is removed then they cannot give programming to the community.

Mr. McDonnell asked if Mr. Sanders is telling him that they have to build the new tower before removing the old tower so they can stay on the air.

Mr. Sanders stated yes.

Mr. McDonnell asked how long it would take to build the tower.

Mr. Sander stated that it depends on the weather but once the foundation is set it would take about a one week.

Mr. Deremer asked if there is a deep foundation.

Mr. Sanders stated that it depends on the soil tests but it is about 5 or 10 ft. into the ground.

Mr. Juergensen asked how long WRQK’s antennas have been on the tower.

Mr. Sanders stated that the station went on the air on March 1, 1961 and to his knowledge it has been there since that time.

Mr. Juergensen asked Mr. Sanders if he knew what was on before that.
Mr. Sanders stated that in 1947 there was pretty much only AM radio and if looking at the EMS quad sheets they had the call letters WHBC.

Mr. Deremer marked the EMS quad sheet as exhibit #2 and the booklet as exhibit #1.

Mr. McDonnell asked if the footprint of the new tower would be any larger than the footprint of the old tower.

Mr. Sanders stated no it would be substantially less.

No one else in the audience spoke in favor of the appeal and no one in the audience spoke in opposition to the appeal.

Mr. McDonnell stated that this appears to be a nonconforming use.

Mr. Phillippi stated that the use is conforming, but it is nonconforming in terms of the location, setbacks, and height.  The use itself is a permitted use in the B-3 district.

Mr. McDonnell asked Mr. Phillippi why is the proposed tower is not considered to be a continuation of a nonconforming use although though he knows Mr. Phillippi indicated just because it’s being moved.

Mr. Phillippi stated that is the same question he had and it was discussed.  When he asked Mr. Ferrell about it he felt that it was considered to be nonconforming, but in terms of the signage once the sign is moved then it has to comply with the current regulations, so this was looked at the same way.  This was relayed to the applicant and they felt, to be on the safe side, they would go for the variance rather then have any questions raised as to if it needed a variance and did not receive one.

Mr. McDonnell stated if the proposal is granted then the applicant will lose their nonconforming status and it would just be considered a variance.

Mr. Phillippi stated this is correct because it would be conforming in all respects due to the granting of the variance.

Mr. Juergensen stated that in reading the resolution it doesn’t provide for reconstruction of the nonconforming use for normal wear and tear and believes there is a reason for that.  Mr. Juergensen asked Mr. Phillippi if there was any consideration that if this was a reconstruction that it wouldn’t have been permitted anyway as a continuation of a nonconforming use.

Mr. Phillippi stated that he is not sure if this was considered or not because the resolution says that it can be replaced if damaged by fire, etc.

Mr. Juergensen stated, but not by normal wear and tear.  Mr. Juergensen asked if they would be able to build in the exact same spot.

Mr. Phillippi stated possibly not because it may need to meet the requirements at the point that it was being replaced unless it blew over or was otherwise damaged.  By going through the variance procedure it clears up any questions of that nature.

Mr. Deremer closed this appeal to public discussion.

Mr. Dodson stated that he thinks they are replacing a tower that may become a hazard at sometime with a new tower that is the same height and the construction will be more in conformance with the setbacks.  Mr. Dodson stated that he thinks the application should be granted.

Mr. McDonnell agreed with Mr. Dodson and stated he does not have a problem with the appeal.
Mr. Juergensen stated that his initial thought was that he had difficulty with the variance because of the height and couldn’t find a practical difficulty with the land, but with all the comments that were made he agrees that the spirit and intent behind the zoning resolution would be met by granting the variance.  Mr. Juergensen stated in weighing all the factors together he thinks the variance should be granted.

Mr. McDonnell made a motion to approve appeal #1894 as requested.

Mr. Dodson seconded the motion.

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

Mr. Juergensen made a motion to adjourn the meeting.

Mr. Giulitto seconded the motion.

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

Respectfully submitted,

Joni Poindexter
Zoning Data Coordinator
Clerk/Secretary