Members present:                                                                    Ted Deremer
                                                                                                    Edward McDonnell
                                                                                                    Richard Dodson
                                                                                                    Jim Giulitto
                                                                                                    John Juergensen
 
Zoning Inspector:                                                                      Joni Poindexter

APPEAL #1960 – Owen Koen Construction, 22004, Mountz Road, Minerva, Ohio 44657 agent for Anthony Barcich, property owner, 5363 Island Dr. NW, Canton, Ohio 44718 requests approval to build a home on a 3,800 sq. ft. lot where 7,500 sq. ft. is required and a variance for a 20 ft. front yard setback where the average depth of two adjoining lots is 26 ft. per Art. IV Sect. 303.5 & 401.7 of the zoning resolution.  Property located at 5357 Island Dr. NW, Sect. 23NW Jackson Twp.  Area zoned R-1.

Mr. Deremer read the file application signed by Owen Koen with reasons being to build a single family home.  The file contained a tax map of the property in question, a site plan showing how the home would be located on the lot, and the calculations of the front setback for the adjacent properties.

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

Mr. Deremer swore in Anthony Barcich, 5363 Island Dr. NW.

Mr. Barcich stated that he would like to sell his existing home, which is located next to the lot in question, and build a 40 x 28 sq. ft. two story home on the vacant lot.

Mr. McDonnell asked if the lot is narrower than the other lots in the area.

Mr. Barcich stated that most of the lots in the area are 40 ft. in width.

Mr. McDonnell asked why a 20 ft. setback is needed for the front.

Mr. Barcich stated that he didn’t know.

Mr. Deremer asked what the normal setback requirement is.

Ms. Poindexter stated that the front setback is normally 40 ft., but there is a provision in the zoning resolution that allows an average setback.  With the adjoining lots Mr. Barcich could set the house at a 26 ft. setback without coming before the board because this is the average of the two adjoining lots.

Mr. Deremer asked what the reason was for the requested 20 ft. setback and if it was cast in stone.

Mr. Barcich stated that it is not cast in stone, but there are homes that are across the street that are at a 17 ft. front yard setback.

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. Deremer closed this appeal to public input.

Mr. Dodson stated that the square footage of the property is about the same as the other properties in the area so he sees no reason to deny the square footage variance, but he doesn’t see a practical difficulty to allow the variance for the 20 ft. front setback.
Mr. Juergensen stated that he agreed with Mr. Dodson on both points and Section 401.7 of the resolution states, “The depth of the front yard on any lot shall not be less than 25 ft.”

Mr. Deremer stated that the 3,800 sq. ft. lot is standard for Lake Cable and the lots were platted well before zoning was in place.  Mr. Deremer stated that he doesn’t think the 20 ft. setback has been shown to be a true requirement and the resolution requires at least a 25 ft. setback.

The board agreed to separate the two issues.

Mr. Dodson made a motion to approve the variance for a 3,800 sq. ft. lot size where 7,500 sq. ft. is required.

Mr. Juergensen seconded the motion.

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

Mr. Dodson made a motion to deny the variance for the 20 ft. front yard setback.

Mr. Giulitto seconded the motion.

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

APPEAL #1959 – Wilson Architectural Group/Jack Hawk, 151 Wilbur Dr. NE, North Canton, Ohio 44720 agent for Fisher Foods Marketing, Inc., property owner, 4855 Frank Ave. NW, North Canton, Ohio 44720 requests a variance for a 5 ft. front parking setback with no landscaping where 20 ft. is required with landscaping per Art. IV Sect. 411.8 & 411.9 of the zoning resolution.  Property location is 3.39 acres, parcel #1612194, on Frank Ave. NW, Sect. 23SE Jackson Twp.  Area zoned B-3.

Mr. Deremer read the file application signed by Jack Hawk with reasons being as stated by the applicant, “The 20 ft. setback to front parking would misalign what is currently on the adjoining Fisher’s property and what is presently provided on the current property.  This alignment issue will cause on-site traffic to have an offset intersection where heavy vendor and truck traffic occur.  The second request is of the practicality to plant to the required 17 trees and 66 shrubs in a green space without encroaching into the right of way.”  The file contained an aerial view of the property in question and a site plan with an original date of 11/4/04.

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

Mr. Deremer swore in Jack Hawk, Wilson Architectural Group, 151 Wilbur Dr. NE, North Canton, Ohio 44720.

Mr. Hawk stated that they have conditional approval from Stark County Regional Planning.  Some of the features for the new building are going to be in conjunction with the grocery store so there will be some traffic going back and forth in the drive.  If the parking were pushed back to meet the setback it would cause a jog for traffic, so they would like to keep the parking where it is currently located.

Mr. Hawk stated that the dotted line on the drawing represents the existing parking lot so most of the cars that are currently parking along Frank Ave., which represents about 18 cars and then there is about seven more that belong to the green strip, so of the 24 that are along Frank Ave. 17 currently exist.  Mr. Hawk stated that they lost about 80 cars with the building and if it were set back further they would lose a lot more parking in the rear.  Mr. Hawk stated, as shown, they have enough parking to meet the overall needs for both buildings.
Mr. Hawk stated that the second variance request is to not plant trees and shrubs in the 5 ft. parking setback area; however, there are some green islands within the parking lot area.  Mr. Hawk stated that the building would be about 1,400 sq. ft. and basically for retail.

Mr. Juergensen asked if the issue was the alignment of the parking isles.

Mr. Hawk stated yes.

Mr. McDonnell asked if the proposed retail is complementary to the grocery store.

Mr. Hawk stated yes.

Mr. McDonnell stated that the plan states 69 new cars and asked if that represents the new parking spaces and what type of plantings would be in the islands.

Mr. Hawk stated that the 69 cars relates to the requirement of the structure.  He is not sure what type of plantings would be done, but they would meet the zoning requirements.  They would be planted in some kind of clumps because they don’t want the lollipop affect going down the street.

Mr. Deremer swore in Frank Ranalli, 4855 Frank Rd. NW.

Mr. Ranalli stated that he is the Vice President of Fisher Foods.  The store has been at the present location since 1979 and an addition was added in 1992.  Mr. Ranalli stated that he isn’t sure if the zoning had changed since then or if a variance was granted along Frank Rd. in 1992.  Mr. Ranalli stated that they are asking to continue with what exists along Frank Rd.  On behalf of Fisher Foods, their biggest concern is safety and the practical hardship that they see is if they are setback 20 ft. instead of 5 ft. it will be difficult for people backing out.  By allowing the variance there will be a consistency of what is currently along Frank Rd.  Mr. Ranalli stated that they will accommodate what they need to regarding shrubbery, but they not only want it to be conducive, but also safe.  Mr. Ranalli stated that he spoke to the Jackson Township Administrative offices and as of yesterday there was no opposition to the request.

Mr. Deremer stated, just for Mr. Ranalli’s information, the zoning requirements have changed since 1992.

No one else in the audience spoke in favor of or in opposition to the appeal.  Mr. Deremer closed this appeal to public input.

Mr. Dodson stated that he is in Fisher’s almost every night after work and the 5 ft. strip apparently complied with zoning at one time.  He doesn’t see any reason why it would make sense to require a 20 ft. setback because it would definitely have an impact on people driving through and would cause an accident, so he supports the variance.

Mr. Giulitto stated with there being a safety issue he does not have a problem with the request.

Mr. McDonnell stated that the 5 ft. setback is consistent with some of the other actions of the board but thinks the overriding factor is the safety issue, so he does not have a problem with the request.  With regards to the landscaping, it makes sense not to obstruct the entrance.

Mr. Dodson made a motion to approve appeal #1959 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 #1958 – Daggone Purrfect Boarding & Grooming LLC/Elizabeth Seevers, 2865 Whipple Ave. NW, Canton, Ohio 44708 agent for JND Properties, LLC, property owner, One South Main St., 2nd Floor, Chagrin Falls, Ohio 44022 requests a conditional use permit for overnight boarding kennel where a conditional use permit is required in Art. IV Sect. 411.2 of the zoning resolution.  Property located at 2865 Whipple Ave. NW, Sect. 36NE Jackson Twp.  Area zoned B-3.

Mr. Deremer read the file application signed by Jerry Hark with reasons being a conditional use permit is required.  The file contained an aerial view of the property in question, a site layout of HillsDale Shopping Center marked as exhibit “A”, and a site plan showing the proposed location.

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

Mr. Deremer swore in Jerry Hart, 3922-21st. NW.

Ms. Hart stated that she is a co-owner of the business.  They have a dog grooming facility and would like to have overnight boarding for dogs and cats.

Mr. Deremer asked if the owner of the property is okay with the overnight boarding.

Ms. Hart stated yes.  Ms. Hart present two photos to the board.  Exhibit “B” is a photo of the back of the property looking toward the condominium complex and exhibit “C” is a photo looking toward London Square.  Mr. Hart stated that there would not be any outdoor kennels.

Mr. Deremer asked how many kennels would be inside the property.

Ms. Hart stated that they plan on having ten for dogs and five or six for the cats, which would be kept separate from the dogs.

Mr. McDonnell asked how they planned on keeping the dogs from barking.

Ms. Hart stated that they will keep the dogs active, but if any of the dogs became a problem then they wouldn’t board them.

Mr. McDonnell asked Ms. Hart if she knew how far the sound would travel in the building.

Ms. Hart stated if a dog is barking it may be heard from the parking lot, but no homes in the area would be able to hear the dogs.  Ms. Hart stated that she worked at a different unit and it was located below a business complex and right up against homes and she never had any complaints.

Mr. McDonnell asked if there are special steps that could be taken to keep the sound down and make sure it doesn’t carry.

Ms. Hart stated that there are cement walls between the units.

Mr. Giulitto asked what is located beside the unit in question.

Ms. Hart stated that Hallmark is to the north and the Village Discount store is to the south.

Mr. Giulitto asked if licensing is needed.

Ms. Hart stated no.

Mr. McDonnell reviewed the criteria for the conditional use permit.

Section 431.2
Mr. McDonnell asked if it is Ms. Hart’s testimony that it would not be detrimental to property values in the immediate vicinity.

Ms. Hart stated yes.

Mr. McDonnell asked if it is Ms. Hart’s testimony that it would not restrict or adversely affect the existing use of the adjacent property owner.

Ms. Hart stated yes.

Mr. McDonnell asked if there would be any changes to the shopping center as a result of the business.

Ms. Hart stated no.

Mr. McDonnell stated that he doesn’t believe item C, D, or E is applicable because there would be no changes to the property.

Mr. McDonnell asked if it would be constructed and maintained in a neat, orderly and safe condition.

Ms. Hart stated yes.

Section 431.3(C)
Mr. McDonnell asked what the hours of operation would be.

Ms. Hart stated the hours would be Monday through Friday 8:00 am to 5:00 pm, Saturday 9:00 am to 3:00 pm and Sunday would be appointment only.

Mr. McDonnell stated that actually the dogs would be there 24 hours a day.

Ms. Hart stated yes.

Mr. McDonnell stated that the next item refers to vehicular entrances and exist and asked if it is Ms. Hart’s testimony that this would not change.

Ms. Hart stated yes.

Mr. McDonnell asked if any outside lighting would be added.

Ms. Hart stated no.

Mr. McDonnell asked if there would be any floodlights, searchlights, or loudspeakers.

Ms. Hart stated no.

Mr. McDonnell asked if there would be any additional trash receptacles as a result of the kennel.

Ms. Hart stated that there is currently a dumpster in the back.

Mr. McDonnell stated that item #6 is non applicable.

Section 431.6(O)
Mr. McDonnell stated that outdoor acres devoted to kennel operations shall be located in the rear yard and shall comply with the building setback requirement set forth in Schedule 431.5.

Ms. Hart stated that all activities would be conducted indoors except walking the dogs in the back yard.

Mr. McDonnell stated that odor and noise shall be adequately controlled to ensure that the animals do not create a nuisance and asked Mr. Hart how they planned to control the odor and noise.

Ms. Hart stated that they have chemical cleaners that are safe to use with animals and they will do their best to keep the noise down at all times.

Mr. McDonnell asked how they would control the solid waste.

Ms. Hart stated that the solid waste would be bagged up, tied, and put into the dumpster on a daily basis.  Liquid waste would be moped on a regular basis.

This concluded the criteria for the conditional use permit.

Mr. Deremer asked if there is any special type of trash container that would be used because there will be a lot of dog waste.

Ms. Hart stated that the dumpster will have a lid on it.

Mr. Deremer asked Ms. Hart if she thought they would need a special container.

Ms. Hart stated no because it is a small facility.

No one else in the audience spoke in favor of this appeal or in opposition to the appeal.  Mr. Deremer closed this appeal to public input.

Mr. McDonnell that the typically the board grants the conditional use permit if the requirements have been met.  His only concern is has the requirement to control the noise been adequately addressed.  Mr. McDonnell stated that he hears dogs at night generally that are outside, but he can’t say he’s actually heard dogs inside a house barking.

Mr. Deremer stated that the business would be permitted if it was only a grooming center and those dogs would normally bark when being held in a cage.  Because this is a commercial use the doors and walls are fire rated so this gives some additional sound proofing.  His concern is the odor within the trash dumpster.  If this became an issue a condition could be made that extra steps would need to be taken to control the odor.

Mr. McDonnell made a motion to approve appeal #1958 with the condition that there be no outside boarding and if needed, additional steps will be taken to control odor.

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 #1961 – American Sand & Gravel, 8188 Wales Ave. NW, North Canton, Ohio 44720 agent for Dale & Clara Rohr & ClaraDale LLC, 12403 Strausser St. NW, Canal Fulton, Ohio 44614 requests a conditional use permit for surface mining, sand, gravel, & soil with a setback variance of zero (0 ft.) along the adjoining property lines for 200.9 acres with 23.8 acres being on the east side and 177.1 acres being on the west side of High Mill Ave.  Property located at 6300 High Mill Ave. NW, Sect. 18SE & 19NE Jackson Twp.  Area zoned R-R.

Mr. Deremer read the file application signed by Chris Scala with reasons being surface and strip mining, sand, gravel and soils to enhance the safety and ease of farming as well as future site development.  The file contained a tax map of the property in question, an aerial view of the property in question 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 Chris Scala, 8188 Wales Ave. NW.

Mr. Scala stated that they would like to renew an existing permit that Mr. Rohr received about 5 years ago.  The original permit was for 15 acres, however; the state permit is for 23.8 acres on the east side of the road so they are asking that the east side be expanded to the 23.8 acres.

Mr. Scala stated that the main business on the property is farming but there are very steep hills that will be taken down and leveled.  They anticipate the east side will be done in 2006 or 2007.  They are looking to obtain a permit also for the west side of the road which is 177.1 acres.  The idea is to take down the hills and level the property to the High Mill elevation and then having it slope at the back property line.

Mr. Scala stated that he has contacted the adjoining property owners in the area and has obtained signed consents to mine to the property line.  He does not have a signed consent form from for Mr. Smith because they did not ask to mine to his property line.  There is a creek that runs along Mr. Bogar’s property so they would not mine up to his property line.  Mr. Scala stated that Mr. Bogar signed a consent that says they can mine up to 100 ft. from his property because the creek is 200 ft. from his property and he doesn’t see them going across the creek.

Mr. McDonnell asked if the west side is currently operational.

Mr. Scala stated no.  The west side is in addition to the east side.

Mr. Deremer asked if there would be any high walls with the zero ft. setbacks.

Mr. Scala stated that the State of Ohio requires a 3 to 1 slope for any hill.

Mr. Dodson asked Mr. Scala if he stated that he didn’t have a signed form from Mr. Smith.

Mr. Scala stated that he did not ask Mr. Smith to sign a form because the majority of the operation is going to be to the south of Mr. Smith’s property.  They will only go to the north if a lake is built but at this time they will not do any work near Mr. Smith’s home.

Mr. McDonnell reviewed the criteria for the conditional use permit.

Section 431.2
Mr. McDonnell asked if it is Mr. Scala’s testimony that it would not be detrimental to property values in the immediate vicinity.

Mr. Scala stated yes.

Mr. McDonnell asked if it is Mr. Scala’s testimony that it would not restrict or adversely affect the existing use of the adjacent property owners.

Mr. Scala stated yes.

Mr. McDonnell asked if it would be designed and constructed so that all access drives, access points to public streets, driveways, parking and service areas shall meet the approval of the Township Trustees, or county or state agencies where applicable.

Mr. Scala stated yes.
Mr. McDonnell asked if it would meet the requirements of EPA for stormwater, runoff, when applicable.

Mr. Scala stated yes.

Mr. McDonnell stated that he didn’t believe that item “E” was applicable because this is a residential area.

Mr. McDonnell asked if it would be maintained in a neat, orderly and safe condition.

Mr. Scala stated yes.

Section 431.3(C)
Mr. McDonnell asked what the hours of operation would be.

Mr. Scala stated that his business is a seasonal business and at this time of year there is very little demand for their product.  They would like to be able to operate as needed to meet the demand of the industry which would also facilitate the completion of the project and put the farmer back into his crops as soon as possible.

Mr. McDonnell stated that this is more than one acre so all points of vehicular entrance or exit shall be located no closer than one hundred feet from the intersection of two arterial streets; however, he thinks Mudbrook is a collector street.

Mr. Scala stated that he estimates that the entrance to the east side is probably 500 ft. from Mudbrook and the new west side entrance would probably be 600 to 700 ft., or maybe even 800 ft. to Mudbrook.

Mr. Deremer asked if there would be any trucks going from one side to the other.

Mr. Scala stated that he didn’t anticipate trucks traveling back and forth but there may be a loader occasionally.

Mr. McDonnell stated that lighting shall not constitute a nuisance and in no way shall impair safe movement of traffic on any street or highway.  All outside lighting shall be shielded from adjacent properties.

Mr. Scala stated he would comply.

Mr. McDonnell stated that any floodlights, searchlights, loudspeakers or similar structures shall not be erected or used in any manner that would cause hazards or annoyance to the public generally or to the occupants of adjacent property.

Mr. Scala stated that the floodlights would be part of the temporary lighting but there wouldn’t be any searchlights or loudspeakers.  The floodlights would be directed at the plant.

Mr. McDonnell asked if all trash receptacles would be adequately screened.

Mr. Scala stated yes.

Mr. McDonnell stated that any grading and surface drainage provisions shall be prepared by a registered engineer and reviewed or approved by the Stark County Subdivision Engineer, where applicable.

Mr. Scala stated yes, if necessary.

Section 431.6(W)
Mr. McDonnell stated that for purposes of the regulations, Operations and Related Activities shall include, but not limited to: storage of equipment, extraction of minerals, storage of extracted mineral, processing of extracted minerals, loading of extracted minerals, removal of overburden in preparation for extraction, and construction and/or utilization of any office, buildings, parking area, fuel depots, scale stations, garages, and tool sheds, associated with or used in conjunction with the operator’s mining activities.  Mr. McDonnell stated specifically in this case, item two.

Mr. McDonnell stated that in an R-R district, surface mining or strip mining operations and related activities shall be limited according to the following: Operations on Sundays and recognized Federal Holidays shall be prohibited and operations, including the start-up and/or warm-up of any extraction, processing, or related equipment, shall not commence before 7:00 a.m. local time, and shall terminate no later than 5:30 p.m. local time.

Mr. Scala that he is requesting extended days and hours due to the nature of the industry.

Mr. McDonnell suggested going through the rest of the criteria for the conditional use and then discussing the extended days and hours.

Mr. McDonnell stated that item four, C & D, states that all mining operations and related activities shall be located a minimum of 200 yards from any property in an R-R district not owned or controlled by the operator.  A lesser distance may be approved when the operator has obtained the written consent of the adjacent property owner(s).

Mr. McDonnell stated that reclamation is required within one year from expiration date of a conditional use certificate or the abandonment of the operation.  Mr. McDonnell asked Mr. Scala if he agreed.

Mr. Scala stated yes.

Mr. McDonnell stated that all reclamation requirements for surface mining or strip mining shall be approved by the Division of Reclamation.

Mr. Scala stated yes.

Mr. McDonnell stated that a copy of the State application, as approved by the Division of Reclamation, and any revisions of the application over the life of the permit, shall be submitted to the Jackson Township Zoning Department.  Mr. McDonnell asked Mr. Scala if he agreed.

Mr. Scala stated yes.  If he could interject at this point in time, there is an amendment in process right now with the State and when that amendment is complete it will be turned over to the township.

Mr. McDonnell asked if it is Mr. Scala's testimony that any applications or revisions submitted to the Division of Reclamation, subsequent to the issuance of a Jackson Township Surface Mining and Strip Mining Certificate shall be presented to the Jackson Township Zoning Department within ten (10) days of approval by the Division of Reclamation.

Mr. Scala stated that he agreed but ten days can be tuff because sometimes when DNR approves it they don’t send it until three months later.  Mr. Scala stated when he gets it he date stamps it and sends it on.

Mr. McDonnell asked if the truck routes have been established.

Mr. Scala stated that it would be High Mill Ave.

Mr. McDonnell stated that haul roads shall be positioned to provide for safe access to State, County and Township roads.  These roads shall be hard surfaced for dust control.
Mr. Scala stated that the main haul road will have direct access onto High Mill and they plan to hard surface the vicinity near the road way.

Mr. McDonnell asked, generally, what is the vicinity near the entrance and exit.

Mr. Scala stated that it is not practical to hard surface all the roads on 177 acres so they basically would do an area right before the roadway.

Mr. McDonnell stated that the processing of equipment shall be located at the site in such a way that will minimize adverse noise impact on surrounding dwellings.

Mr. Scala stated when possible they will do so.

Mr. McDonnell stated that the existing natural manmade barriers at the site shall be provided as protection and screening against noise, dust, and visual protection for all operations.

Mr. Scala stated that the surrounding areas are all farm land.

Mr. McDonnell stated that stakes of one color shall be set and maintained along the perimeter of the area designated for mineral removal at one hundred foot intervals or less.

Mr. Scala stated that he agreed.

Mr. McDonnell stated that the storage of minerals, peat, or coal from other surface mined or strip mined operations shall not be permitted because this is not an industrial district.  Mr. McDonnell asked Mr. Scala if he agreed.

Mr. Scala stated yes.

This concluded the criteria for the conditional use permit.

Mr. Deremer stated that the board has written consent from the adjoining property owners to mine closer than 200 ft. to the property line except to the north, which wasn’t requested.

Mr. Deremer asked with the neighborhood being an R-R area, if there would be a concern extending beyond the day light hours.

Mr. Scala stated that he didn’t anticipate that because there are some new homes to the north but the immediate area is farms.  Mr. Scala stated that they never implied that they were a clean or noise free environment.

Mr. Deremer stated that is understandable during the day, but he thinks that’s why the restriction is there because they may disturb the folks trying to get to sleep.

Mr. Deremer asked if Mr. Scala could get agreements from the neighbors because with the new restriction it restricts the board to allow them to get anymore that is allowed per the resolution because it says “shall”.

Mr. Scala stated that they are working with an eight month window period.

Mr. Deremer asked if they could increase the crew size.

Mr. Scala stated that the plant can only crush so many tons per hour regardless of how many people are working.  Mr. Scala stated that they try to stock pile as much as they can but summer is their busiest months.
Mr. Giulitto stated that currently they are working on the east side and asked what the hours are.

Mr. Scala stated that they are working within the hour range per the restriction.  When Mr. Rohr came to the board for the original permit he didn’t know who was going to take the material out and did not ask for any additional time.  Mr. Scala stated that if would have been present he would have asked for the additional time back then.

Mr. Scala stated that he doesn’t see them working around the clock but there is a time period in the season when they need to work longer hours and the flexibility is very valuable to them.

Mr. McDonnell stated that Mr. Scala indicated that the one he doesn’t have a signed consent form to mine within 200 yard is to the north.  The resolution says shall be 200 yard from the adjacent property lines unless you have an agreement.  Mr. McDonnell asked what the consequences would be if the board decided, because they don’t have the agreement on the north side, to require the 200 yard setback.

Mr. Scala stated the he would accept that because as he said, he spoke with Mr. Smith and they did not request the setback variance from him and they do not anticipate working in that area.  If they decide to mine to the north then they will speak to Mr. Smith at that time.

Mr. McDonnell asked if the request for the zero ft. setbacks along the adjoining properties excludes the north side.

Mr. Scala stated at this time yes.

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. Deremer stated that he believes the applicant has addressed most of the conditional use permit items with a few minor variances, which the 200 yard variance should not be a problem for anybody.  Mr. Deremer stated that if he were running a farming operation there would be times during the year that he would work beyond those hours.  There would be equipment out there making the same sounds and noises as a mining loader would make, but it is a limited nature of maybe only two or three times a week until the crops are done.  Mr. Deremer stated that he understands the applicants need for a short period of time to work more than the limited hours and can also see an exemption for those short periods of time, unless a complaint was received.  Mr. Deremer stated that he thinks a modified limitation of the hours may be in order knowing the type of operation that Mr. Scala has run.  Mr. Deremer stated that he doesn’t believe this would be a detriment to the neighborhood.

Mr. McDonnell stated that he agreed with the majority of Mr. Deremer’s comments and thinks the applicant has met the majority of the requirements.  The only two areas that he thinks may require some additional discussion is with regards to the actual setbacks.  The applicant has agreements, except to the north to mine closer, and the regulation does indicate a lesser distance may be approved when the applicant has obtained written consent from the adjacent property owners.

Mr. McDonnell stated if the board is inclined to grant the conditional use permit and the variance then he thinks they should make it that the variance applies to all sides except the north side.

Mr. McDonnell stated, regarding the hours of operation, when reading the words for interpretation the word “shall” indicates a mandatory requirement, the word “may” is permissive, and the word “should” is preferred.  When reading section 431.6(W)(2), it says “surface mining or strip mining operations and related activities shall be limited according to the following”.  Mr. McDonnell stated that he is not sure the board has the authority to change a mandatory requirement.

Mr. McDonnell stated that the other operations were in an industrial area and this is residential.  The board has the authority to put a time limit on the permit.  The last one was for five years.  Mr. McDonnell asked if this needed to be discussed for this requested conditional use permit.

Mr. Deremer stated that the time period has been relaxed in the industrial zoned area.

Mr. McDonnell stated the board did not set a time limit on the last permit that was considered, but he thinks this was because it was in an industrial district.

Mr. Deremer asked Mr. McDonnell what was his opinion.

Mr. McDonnell stated that the was thinking five or ten years.

Mr. Deremer stated that he thought ten years would be okay.

Mr. McDonnell made a motion to approve the conditional use permit for a period of 10 years and approve the variance for a zero setback along all adjoining property lines except the north property line on the west side of High Mill, which will meet the 200 yard setback.

Mr. Juergensen seconded the motion.

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

Mr. Giulitto made a motion to approve the minutes from the December 2, 2004 meeting.

Mr. Juergensen seconded the motion.

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

Mr. Giulitto made a motion to approve the minutes from the January 13, 2005 meeting.

Mr. Juergensen seconded the motion.

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

Mr. McDonnell made a motion to adjourn the meeting.

Mr. Juergensen 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 Inspector