Members present:
Ted Deremer
Edward McDonnell
Richard Dodson
John Juergensen-Alternate
Absent Members:
Gerald Werner
Jim Giulitto
Zoning Administrator:
John Phillippi
Zoning Data Coordinator:
Joni Poindexter
Mr. Deremer stated that the first matter in front of the board is the Rules of Procedures as amended by Mr. McDonnell.
Mr. Dodson stated that he read through the proposed amendments and where they ran into a problem is where there was a notice of violation or a citation or a stop order. The parties cited would go forward first. Mr. Dodson stated that this has been address and he does not suggest any further changes.
Mr. Deremer stated that he received a call from Mr. Fitzgerald, law director for the township, and he did not have a problem with the amended Rules of Procedures.
Ms. Poindexter stated that six “A” in section seven should have the word PRD deleted due to the PRD’s being taken out of the regulations.
The board agreed.
Mr. Deremer made a motion to accept the Rules of Procedures as modified by Ms. Poindexter’s comment.
Mr. McDonnell seconded the motion.
The vote was: Mr. Juergensen-yes, Mr. Dodson-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.
APPEAL #1830 – William Pidcock,
4690 Munson St. NW, Suite “C”, Canton, Ohio 44718 agent for John Boresh
& Carol Valentine, property owner, 4410 Brunnerdale NW, Canton, Ohio
44718 appeals the decision of the Zoning Administrator as provided for
in Art. VIII Sect. 803.1 of the zoning resolution, in letter dated 12/26/02
regarding non-resident employees under a home occupation permit.
Property located at 4410 Brunnerdale NW, Sect. 26SW Jackson Twp.
Area zoned R-R.
MR. DEREMER: Our first appeal is
appeal #1830. Property owner is John Boresh and Carol Valentine,
4410 Brunnerdale NW, Canton, Ohio 44718. The applicant is William
Pidcock, 4690 Munson St. NW, Suite “C”, Canton, Ohio 44718. The decision
being appealed is the decision of the Zoning Administrator in a letter
dated 12/26/02 regarding having non-resident employees under a home occupation
permit as provided for in Article VIII Sect. 803.1 of the zoning resolution
and requests a use variance to allow part-time employees at the home office
for the home occupation where non-resident employees are not permitted
in Article IV Section 401.13 of the zoning resolution. Property is
located at 4410 Brunnerdale Avenue NW. The premises affected are
the same, located in the southwest quarter section 26, zoned R-R of Jackson
Township. The date of the decision being appealed is December 26,
2002. Date appeal filed with the zoning administrator is January
3, 2003. Date appeal filed with the board of January 3, 2003.
Date of publication in the Canton Repository of January 29, 2003.
Date of notice mailed to parties in interest is January 30, 2003.
Date and time of public hearing is February 13, 2003 at 7:20 pm.
It is now approximately 7:27.
Reason for the appeal as written by the applicant is property owner Carolyn Valentine is the sole owner and operator of Carolyn Valentine Company, CPA, which is a home occupation permitted under Jackson Township Zoning Resolution, section 401.13. And there’s an attached explanation to that which I believe I will let the applicant read into the record if they would like. It’s basically expanding on the request for the reason for the appeal and the application is signed by Carolyn Valentine.
In the file we do have a tax map of the parcel in question along with the adjacent parcels adjoining the property and the current zoning within the area. Also within the file we do have a survivorship deed recorded August 18, 1999 which we will let the applicant explain the reasoning for that. I believe it’s to prove ownership of the parcel. Also we have a site plan of the parcel in question and an 8-1/2” x 11” sheet of paper. I believe that is it for the file at this time. Who will be speaking on behalf of this appeal this evening?
MR. PIDCOCK: I will.
MR. DEREMER: Please come forward. Good evening.
MR. PIDCOCK: Yes, Hello. If it pleases this board my name is Bill Pidcock and I’m here on behalf of Carolyn Valentine and John Boresh who are the owners of the property in question.
MR. DEREMER: Are you going to be testifying or just presenting the….
MR. PIDCOCK: I’m going to be presenting it.
MR. DEREMER: So then we will not swear you in based on that assumption.
MR. PIDCOCK: Sure. Essentially we have a situation here, and we will be able to have Ms. Valentine fill in the factual basis for this, where Ms. Valentine and Mr. Boresh are a married couple who live with their child at the address in question. Directly across the street from them is her sister and her husband in Glenmoor as well as her parents who also live directly across the street. They all live out there pretty much together. Ms. Valentine’s husband built the house in question. It was built with a home office incorporated in there and they were granted a home office permit by Jackson Township. There are a couple of part-time girls who have worked there especially during the tax season. Once the tax season is over one of them will go back to working full time for a construction company and the other one will be going to Kent Stark. This is not a situation where you have a large operation going on there. It is a situation however where Ms. Valentine essentially…Oh other factors are that there are never any cars parked outside. She very rarely has clients who meet with her there. She goes out to their offices obviously because they have all the documents and records when you’re an accountant. She is the only accountant who’s there so it is not as if there are other people there who are professionals. The only people there are a couple of those folks who are administrative employees of her. She is the sole owner and operator of this business and that’s where we come to the nub on the appeal part of what’s here tonight. We’ve actually not only appealed this but we’ve also requested, in case the appeal is not granted, that a variance be granted. That’s important for the following reasons and that is number one she’s never had, any of her neighbors have never complained. In fact they are here on her behalf tonight; Mr. & Mrs. Burtin and also the folks on the other side are here and that is Mark and Lynette Gabriele. These are the only actual persons who are her neighbor’s. The other people who are contiguous are Glenmoor, which has expressed no opposition to this, and Regal Construction who has expressed no opposition to this. In other words nobody complained. What happened was a disgruntled x-employee of her husband dropped a dime and that’s why we’re here tonight. A guy who doesn’t even live in Jackson Township I might point out. So here we are in front of this, in front of this board. We have a situation where she is the sole owner of her accounting business and the sole accountant employed thereby. Her non-resident employees perform only administrative tasks under her direct supervision and control which she provides as the sole owner and operator of the business. They are certainly not owners or operators of the home occupation in question anymore then a kid who gets carts off the lot at Fishers is an operator of Fisher Foods.
Ms. Valentine received a home occupation
permit on or about July 31, 2002 and she has operated in full compliance
therewith ever since. It is conducted entirely within her dwelling
unit, she uses no accessory buildings or yard space, and it is clearly
incidental and secondary to the use of the dwelling for dwelling purposes.
She doesn’t generally receive clients there and doesn’t even have the sign
out that would be permitted by section 401.13, which permits a small exterior
sign for a home occupation. She is as unobtrusive as you could possibly
be. It doesn’t generate more then four cars at a time as limited
by the home occupation rule. They park their cars when they are there,
which isn’t that much, inside the existing garage. It generates little
or no parking requirements. It is a totally unobtrusive home occupation
and we believe under the circumstances the issuance of the stop order is
therefore uncalled for. We don’t believe…We don’t doubt that under
the Ohio Home Rule statue a township would have a right to enact a zoning
resolution that bands all employees from ever being on the site, but Jackson’s
doesn’t say that. All it says is that the business has to be solely
owned and operated by the person who lives there. It is. Carol
Valentine is the sole owner and operator of that business. The only
other people who are there are a couple of part-time girls who help her
during the season and can hardly be considered operator’s of the business
and are certainly not owners. Under those circumstances with respect
to the appeal portion of what we are doing here tonight, we believe very
strongly that the appeal should be granted because we don’t think she’s
doing anything wrong, period, under those circumstances.
Now when it comes to the variance in question,
if it gets to that point, we point out a lot of things. Number one,
what she’s doing, there’s absolutely no complaints from the neighbor’s.
Her sister lives across the street. Her sister and her husband have
invested a tremendous amount of money out in this neck of the woods, the
Pizzeria. They are there morning, noon and night. She watches
her sisters little girl who even has a room at her house. The little
girl catches the bus at her house every day and goes to school. She
stays home. She has a home occupation. This is the way it works
when you’re in that business. They are in the third, pardon me, the
second generation of restaurant ownership since 1948. When Ms. Valentine
and her sister were little kids they went to their Grandparents house or
aunt and uncles houses because their parents owned a restaurant in another
location. Now they are all out here in Jackson and Ms. Valentine’s
sister’s little girl spends a lot of time at her house because Ms. Valentine’s
sister is running the Pizzeria morning, noon and night. That’s not
possible unless she can be a stay at home mom and that’s why she has the
home office. It’s only possible if she can run it this way.
She did not in any way deliberately violate any requirement of this township.
But the township zoning resolution doesn’t ban all employees. As
it stands now they have invested a tremendous amount of money in this house
and it would be an incredible financial hardship if she is not able to
conduct her business there. They would simply have to move from a
house that is right across from their family, in a low family cluster that
is their dream house. It would not only disrupt their household but
would prove a hardship on the other households in the Valentine family
because as it is now her sister across the street depends upon her to be
there for the family and help take care of the young child as well as her
own son who is still at home. You got a situation right now where
it is so unobtrusive that you don’t have any complaints whatsoever from
the neighbor’s. In fact they are here for her. It’s so unobtrusive;
if you take a look, here’s a picture of the house. First of all it’s
a lovely house. It was built themselves.
MR. DEREMER: Can we keep this for the file.
MR. PIDCOCK: Absolutely.
MR. DEREMER: Ok, we’ll mark that as exhibit one.
MR. PIDCOCK: Now when I look at the factors for the variance there’s absolutely going to have no affect on the size or character on any of the structures or improvements on the property. There will be no ancillary structures or improvements on the property. In fact she goes above and beyond the call of duty. Above and beyond even what a home office is permitted to do because she doesn’t have a sign and the part-time girls who are there part of the year park inside. Their presence would be totally unobtrusive, the essential character of the neighborhood would not be substantially altered and the adjoining properties will not suffer substantial detriment as a result of the variance. In fact the adjoining property owners have expressed no opposition to granting this variance whatsoever. Well I can say tonight that it’s even better then that. The adjoining property owners are here on her behalf to support her. It would not adversely affect the delivery of governmental services such as water, sewer, or trash pickup as set forth in the resolution and her predicament can’t be feasibly obviated any way other then through a variance, assuming the appeal isn’t granted, for the simple reason that she has to conduct it as a home business or it doesn’t work economically for her. She has attempted to comply with the spirit and intent behind the zoning resolution and we believe that substantial justice will be done by granting the variance. In the absence of that variance they will literally be forced to sell their home and move somewhere else where she can do this because it just won’t work without it. Failure to grant this will propose a crippling hardship on her home occupation, which she has been properly authorized to engage in, and under the circumstances especially where the provision that allegedly restricts your ability to have these part-time girls is so vague to begin with we just don’t believe that it would be just if the board were not to grant just a minimal use variance to permit the presence of the employees for what is otherwise an absolutely permitted home occupation. We believe fully that under the circumstances where you have a large family that depends upon each other, and this is going to essentially upset that completely and destroy her ability to maintain as what everyone recognizes as a proper home occupation. We believe if the appeal isn’t granted, and we believe it should be, then certainly a variance for this minimal non-obtrusive behavior should be. These are the type of people you would want out here. These are the type of people who are an asset to the community, they built substantial homes, their neighbors don’t complain, they are business owners, and they are attempting to bring something here to Jackson. The last thing that I think Jackson wants to do is to essentially run her out especially under the circumstances where it is not any neighbor or Jackson resident that has complained at all. And I know we’ve attached the list of adjoining property owners and the survivorship deed as proof of ownership for the variance portion of it as well as the site plan. And if anyone has any questions I’d be happy to answer the ones I can and Ms. Valentine will speak in favor of this and fill in the board with any other facts they might need.
MR. DEREMER: Thank you sir. Any other questions gentlemen?
MR. DODSON: Mr. Chairman.
MR. DEREMER: Please.
MR. DODSON: Mr. Pidcock we know the meaning of the zoning resolution. What in your opinion is the difference between an owner and an operator?
MR. PIDCOCK: An operator would be more of kin to a manager. I mean you don’t have to be, I acknowledge you don’t have to be the owner to be an operator but an operator of a business would be a manager. We’re not talking about people who have any discretionary function whatsoever. We’re talking about some girls who help her with the files. That’s not an operator. They are not doing accounting at all whatsoever. They are helping her as support staff doing administrative tasks. They don’t have any discretion whatsoever in the duties that they do. Under those circumstances I don’t see how you could be considered a business operator. That’s it. I think under the Ohio Home Rule statue if Jackson wanted to pass a resolution that said no employees you could do it. But right now all it says is that the resident has to be the owner or operator of the business. In this case she is both.
MR. DODSON: So if you had someone who owned a business and was the operator, you could have an unlimited number of people working there as long as they were doing administrative tasks?
MR. PIDCOCK: No, because the home occupation contains its own limitation otherwise in there. It clearly has to be subsidiary to the primary use as a home. It also clearly has to be relatively unobtrusive. You can’t have more then a few cars there. You can’t have, and there are a lot of other standards all of which she meets. So this theory that we’re opening the doors up to having thirty employees, no that won’t happen because you have other safe guards in the statue to take care of that. Do I think that it could be worded better? Absolutely. But as it seems right now I don’t think by arguing this I’m leaving you open for something where somebody could have a dozen people in there. It can’t happen because your statue already takes care of that. The resolution does. It’s that simple.
MR. DODSON: Assume for a second that we found there was a violation of the ordinance and we run the question of the use variance. Would your client be willing to accept the limitation that applies to the status quote, “two part-time employees doing administrative tasks that park in the garage”?
MR. PIDCOCK: In a heart beat.
MR. MCDONNELL: Mr. Pidcock, maybe you can answer this. If not perhaps your client can. Can you define part-time as specifically as it applies to this appeal?
MS. VALENTINE: Because of the nature of the business…
MR. DEREMER: If you want to testify we’ll get you up here under oath. Raise your right hand and we’ll swear you in. We trust him. We don’t trust you. (Laughter) Do you swear or affirm to tell the whole truth and nothing but the truth?
MS. VALENTINE: I do.
MR. DEREMER: Now you notice we didn’t ask him to do that. Please proceed with Mr. McDonnell’s question.
MR. MCDONNELL: Is it Ms. Valentine?
MS. VALENTINE: Yes, Carolyn Valentine.
MR. DEREMER: Just give your name and address for the record.
MS. VALENTINE: Carolyn Valentine, 4410 Brunnerdale Ave. NW, Canton, Ohio 44718.
MR. DEREMER: Thank you madam.
MR. MCDONNELL: That’s the legal gobbley gook that we have to go through.
MS. VALENTINE: Sure. I understand.
MR. MCDONNELL: Can you define for the board specifically what you mean when you say part-time employees? How many hours? How many days? How many months or whatever? I got the impression, and I might be mistaken, that it can be more during the tax season then other times. Can you just kind of fill us in as to what that is?
MS. VALENTINE: Yes. The nature of the business is that from January to April I need more administrative help. If I’m out meeting clients I need someone there to answer the phone and take appointments for me. But when April is done, one girl is a full time student and the other girl is a full time employee for Dino Construction. So when April is done they may come in a couple days a week. They may alternate to cover for each other so someone is there to answer the phone for me when I’m out of the office. It is truly a part-time nature after April, so it is more or less a seasonal business. But the girls come in quietly, park in garage, do their office work and leave. There is never more then one, I can only see one person at a time so if during tax season there is one person there that’s parking outside, it would be rare that you would even see that. The house sits off the road and it is not in an allotment. We purposely don’t put up a sign and we don’t want it to be noticeable to anyone. We don’t want it to be apparent because this is my home. But when it’s tax season I do need help. These girls have helped me for years. They have their own lives and their own work outside the office, but they do come and help me during tax season.
MR. DEREMER: What time of the year do they normally start working for you?
MS. VALENTINE: January.
MR. DEREMER: So from January to…
MS. VALENTINE: January to the middle of April.
MR. MCDONNELL: Ms. Valentine can you define, first of all if a variance were granted it would stay with the property. Can you define part-time for me? How many hours do these girls work? What I’m saying, what your describing to the board is two specific individuals. Be it Jane and Mary. But Jane and Mary may not always be there. It may be Sue. What I’m saying is Jane and Mary may not be part-time employees of yours down the road. It may turn out to be Patty and Sue down the road. I don’t care about Jane and Mary. I can’t remember who they are anymore. But what I’m concerned about is how many hours a week are we talking about that you will have part-time employees? How many at a time? And January through April I would assume they will be there more often. Give us the maximum.
MS. VALENTINE: If it is not tax season they are there fifteen to twenty hours per week.
MR. MCDONNELL: Both, fifteen to twenty hours?
MS. VALENTINE: They cover for each other.
MR. MCDONNELL: So you’re talking about you’re going to have part-time employees there total fifteen to twenty hours a week?
MS. VALENTINE: Right.
MR. MCDONNELL: Each?
MS. VALENTINE: It depends; it goes by the volume of work. There are certain tax deadlines in the middle of the year.
MR. MCDONNELL: Give me the maximum. Fifteen to twenty hours each per week?
MS. VALENTINE: Probably.
MR. MCDONNELL: And that would be applicable during tax season?
MS. VALENTINE: That’s not tax season.
MR. MCDONNELL: That’s not tax season?
MS. VALENTINE: Right. Some days they may not come all week.
MR. MCDONNELL: Let’s talk about tax season. What happens during tax season?
MS. VALENTINE: If it’s the month of April, the month of April they may be there forty hours but it creates no additional traffic or appearance because in the morning they come, they park in the garage, and they leave. So if they are there for a five hour day or a thirty hour day depending on the time of year it is still not apparent to anyone else.
MR. MCDONNELL: Can you define administrative duties? Is that answering the phone, filing? I’m sure they add numbers for you, typing.
MS. VALENTINE: Exactly. They are not CPA’s. They don’t have college degrees. They are in their twenty’s. I’ve been doing this for twenty years and I’m only one person and I want to keep it that way. I don’t plan on hiring more people then that.
MR. JUERGENSEN: You said during tax season forty hours each for a total of eighty hours.
MS. VALENTINE: Yes, in the month of April.
MR. JUERGENSEN: Do you consider tax season January 1st to April 15th. ?
MS. VALENTINE: Yes, but the actual individual taxes aren’t until February because no one has their stuff in January. So from February to April they could have a twenty hour week and at crunch time they could have a forty hour week.
MR. DEREMER: Anything else gentlemen? Thank you sir. Thank you madam. Is there anyone else that would like to speak in favor of the application this evening?
MR. PIDCOCK: Not really a statement here but we would like to note, as noted before, that all of her neighbors that we noted are here on her behalf as well as her mother, who is also a neighbor as I noted.
MR. DEREMER: Very good. Now’s the time to put it on record if you like. You’re more then welcome to come forward but you don’t have to. Please raise your right hand. Do you swear or affirm that the testimony you’re about to give is the whole truth and nothing but the truth?
MS. GABRIELE: I do. Lynette Gabriele, 4418 Brunnerdale NW, Canton. We are right next door to Carolyn and John. In fact our driveways are almost together. There is just a stone wall that separates them. I’m a stay at home mom of three little ones. Inside, outside, there is never, if I see anybody it is a car going in the garage and that is it. I have no objections. They are quiet over there. Never any problems. As far as cars going in and out or people all around, never. They have a beautiful home which I’m glad somebody built there. Before it was just an empty lot full of trees and it has increased the property values and I have no objections.
MR. DEREMER: Thank you. Any questions gentlemen? You’re off the hook. Thanks. Is there anyone else who would like to speak in favor of the application this evening? By your silence I’ll take that as a no. Is there anyone in the audience that would like to speak in opposition to the application this evening? Please 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. BURTIN: I do. My name is Anthony Burtin. Our home address is 4359 Parkdale NW. Our property is adjacent on the south exposure of the Valentine’s home. We’re not opposed to our neighbors having a home office or home based business as long as they don’t have employees there either full-time or part-time. I have a business myself and I knew from the start that to run this business out of my home was against zoning regulations. Consequently I went out and bought a piece of property and built my professional building on a piece of property that was zoned for that sort of business. The zoning regulations in this township were designed for that reason. One is to protect residential neighborhoods and keep them separate from the business community. I believe that if you start making exceptions to your zoning rules, if you grant one individual that option then I for one would love to run my business out of my home and I would come up here to and appeal for that also because it is a tremendous advantage. Basically I feel that if the variance is granted that that whole area there should be granted a change in their zoning to allow businesses such as this to exist in that area. That’s all I have to say.
MR. DEREMER: Thank you sir. Any questions?
MR. MCDONNELL: Mr. Burtin, what type of business are you in Mr. Burtin?
MR. BURTIN: I’m a physician.
MR. MCDONNELL: So it’s common to have your clients, your patients come to your office?
MR. BURTIN: Yes.
MR. MCDONNELL: Ok. And how many people do you employ?
MR. BURTIN: I have one part-time and one full-time.
MR. MCDONNELL: I assume nurse, receptionist.
MR. BURTIN: Yes.
MR. MCDONNELL: Ok, thank you.
MR. DEREMER: Thank you sir. Is there anyone else in the audience who would like to speak in opposition to the appeal this evening? Please raise your right hand. Do you swear or affirm that the testimony you’re about to give is the whole truth and nothing but the truth?
MS. BURTIN: I do.
MR. DEREMER: Please state your name and address.
MS. BURTIN: Julie Burtin, 4359 Parkdale NW with my husband. I don’t want to be a bad neighbor. I like the Valentines but I don’t feel they should have employees. We had neighbors when we lived on Skycrest and his business burnt down. He proceeded to run the Merchant Clipper it was, out of his basement. He had employees and he was on our street and he was shut down. He was not allowed to do that. You have this law for a reason and we should protect the neighborhood from this type of thing happening. He had to move out of town and I don’t think that’s fair to him either if this is allow to happen. One thing that I kind of object to is that their entrance to the business is on our side and there is a large parking area there. Who’s to say in the future that there wouldn’t be more and more traffic there. There hasn’t been a lot right now because she just moved in. That’s my feeling and I hope they don’t have any hard feelings towards me for speaking what I believe because I don’t think it’s fair. That’s all I have to say.
MR. DEREMER: Thank you. Any questions gentlemen? Thank you madam. Is there anyone else in the audience who would like to speak in opposition to this appeal? Please 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?
MS. BUETTELL: I do. My name is Louna Buettell. I live at 4450 Brunnerdale NW, Canton, 44718. I am two doors north of the residents in question. I would like to say that I am not opposed to these people having a business and running it out of their home. I have no problem with that. However, I consider when you have people come in and you pay them to do work for you, I consider that as an employee. Home based businesses as far as zoning and as far as I know is that you are not allowed to have employees. They may say they are part time but in all honesty all summer long I saw two or three cars parked out by the entrance of the business all the time. I don’t have a problem with that and I wasn’t going to say anything, whatever. But one day when I did knock on the door a young lady that answered it, when I asked for the home owner she said “well this is a business”. I said I think you’re in a residence and there should be a homeowner. I did get to speak with the home owner and he allowed me in the house and gave me some information that I was asking him about. I think when you have a home based business it should be in perspective and the place is huge. There is like three or four offices in there and it looks like a business. I didn’t know you were allowed to do that. If they are allowed to do that fine, but I just didn’t think that was acceptable zoning in Jackson Township. I didn’t say anything but I was kind of surprised. It looks bigger then what she says part-time but there was three girls working in the office pretty much all summer. I’m not sure what her part-time consists of but they were there pretty much all day, all summer long and I don’t know what their tax season is in the summer time. That’s all.
MR. DEREMER: Any questions gentlemen? Thank you madam.
MS. BUETTELL: Ok thanks.
MR. DEREMER: Is there anyone else in the audience who would like to speak in opposition to the appeal this evening? By your silence I shall take that as a no. Mr. Pidcock would you like to address some of the concerns?
MR. PIDCOCK: Yes. In the first place any suggestion that there were two or three cars parked there all summer is I’m sure for a variety of reasons. One of which is they were still under construction during the summer. If there were two or three cars parked there they would have been contractors working on the house as it was being finished. The home occupation permit wasn’t even issued until deep into the summer. There were not two or three cars parked there during the summer and Ms. Valentine can testify to that effect. There were not three girls employed there all summer. She indicated that they were there pretty much all the time and this is simply not true. Ms. Valentine can testify to that also. More importantly you have the fact that this is completely unobtrusive, opposite of what was said. It’s been permitted. Number one, to reiterate, we don’t think that the township zoning resolution does ban all employees. It says it has to be owned and operated by the home owner and resident. More importantly we think the variance, if granted, with the limitation on two employees who would be limited to a maximum of 15 to 20 hours per week other then during tax season would be absolutely reasonable under the circumstances. This is not a situation where you have someone who is behaving in a grievous manner whatsoever. Ms. Valentine can address the business about the cars and presence of the employees over the summer. I’d just asked, I mean she indicated over two or three cars parked there all summer. Would those have been related to your business?
MS. VALENTINE: Not at all. We had artist there. We had plumbers there. Just before Christmas we finally finalized all the things we had to do. In fact we still have two fireplaces that we may need to do. But the girls park in the garage. I have two girls and they are in the garage. We’re still going to have a couple cars because we still have two fireplaces left to do. When we moved in back in August and the house was not complete and for the most part it is now except for the last project of the two fireplaces.
MR. PIDCOCK: Prior to tonight’s meeting have you spoken with any of the folks who spoke out in opposition to your application concerning this?
MS. VALENTINE: Yes.
MR. PIDCOCK: And who would that have been?
MS. VALENTINE: The Burtin's.
MR. PIDCOCK: Did they express any opposition to your application prior to this?
MS. VALENTINE: No.
MR. PIDCOCK: What did they say?
MS. VALENTINE: That they didn’t have a problem with us having a business. Truly I thought they would be here tonight to support us. This is what my understanding was. I am totally shocked because there is no traffic and it is not apparent to the public that we have a business there.
MR. PIDCOCK: If a variance would be granted, assuming that the appeal wasn’t granted and a variance was granted, would you be willing to limit the employees as we talked about earlier, to fifteen or twenty hours a week other then during tax season?
MS. VALENTINE: Yes.
MR. PIDCOCK: And limit it to two employees that would park inside at all times?
MS. VALENTINE: Yes, and no sign.
MR. PIDCOCK: And no sign.
MR. DEREMER: Ok, thank you. Any questions gentlemen?
MR. MCDONNELL: Ms. Valentine, how large is the garage? How many cars?
MS. VALENTINE: Four cars.
MR. MCDONNELL: Four cars. How many cars do you own?
MS. VALENTINE: We have two but one we’re selling, which is not on site.
MR. MCDONNELL: So you own two cars?
MS. VALENTINE: Two cars, two drivers in the household.
MR. MCDONNELL: Ok. Thank you.
MR. PIDCOCK: Would the board let Mr. Boresh speak, one of the other property owners of Ms. Valentines home.
MR. BORESH: I thought I would have a chance. You said at the end the owners could. I didn’t realize I had to speak prior. If that was the case I didn’t realize that.
MR. DEREMER: Is there anything in addition that you would add that has not been presented other then you’re in favor.
MR. BORESH: I don’t understand as far as the appeal process goes.
MR. DEREMER: Why don’t we go ahead and put you up on the stand because you are part owner. Please raise your right hand. Do you swear or affirm that the testimony you’re about to give is the whole truth and nothing but the truth?
MR. BORESH: Yes.
MR. DEREMER: Please state your name and address.
MR. BORESH: John Boresh. I live at 4410 Brunnerdale NW, Canton, Ohio 44718.
MR. DEREMER: Thank you. This stuff is real boorish but we had to get it on the record because later on the tape doesn’t have eyes so I appreciate you demeanor with us.
MR. BORESH: When I started this project I had my attorney, who is a friend look at it because I never intended to break any rules or regulations. I still don’t understand where it says no employees. I wish someone could explain that to me that everybody seems to know that you can’t have employees but it doesn’t say you are not allowed to have employees. As an owner-operator of a business, those are decision making people. There is nobody that is at our residence that makes a decision. There are no decisions made there and I would not have spent the magnitude of funds that I did to do this project. The office is possibly on a little larger scale. The house is 7,000 sq. ft. It occupies probably 1,500 sq. ft. which certainly isn’t more than a third of the home. I wish someone would clarify how everybody knows that there are no employees. I mean how do we prevent this in the future from people coming in and making a mistake and investing in this community and become a part of the community that doesn’t tell you what you can do? I mean I just don’t understand that.
MR. DEREMER: Who signed up for the home occupation permit, you or your wife?
MR. BORESH: I think my wife did.
MR. DEREMER: Was any comment made at that time about no additional employees?
MS. VALENTINE: No, they gave me the list of regulations and I gave them to my husband to look at. He showed them to his attorney friend and he didn’t think that there was a problem.
MR. DEREMER: Ok.
MR. BORESH: I think something has to be done to prevent this from happening. I don’t understand how everybody knows you are not allowed to have employees when it doesn’t say no employees. How easy is that? Two words. No employees.
MR. DEREMER: We’ll ask the mastermind here that is the zoning administrator and let him maybe tell me that issue. That would be something probably that the board is going to ask him in our discussion. With that we will close to public input. I believe we probably have a few questions to generate gentlemen. Initially I do. Mr. Phillippi you’ve heard some of the concerns. My memory is bad being as young as I am but at one time the zoning code did say no outside employees I do believe and I do not see that language here. Is that true?
MR. PHILLIPPI: I don’t believe. To my knowledge this is not true however I think I can shed some light on the history of this. The wording was essentially as you see it here. When we were going through the consideration of changes, this would have been the time before last on changes to the zoning, at that time I proposed to the zoning commission the language essentially that was spoken here tonight that this particular provision, which would be item “C”, was proposed to be changed to say “no outside employees would be permitted” so that it would be very specific as to exactly what that regulation was. For some reason there was some considerable discussion on that one point and it was determined that that change would not be made essentially because they didn’t feel that this had presented a problem in the past. I was asked if it had presented a problem. I indicated that it had not to my knowledge but that this wording change was being proposed in order to avoid any problems in the future because of the vagueness or a problem with the regulation and interpretation. The only other thing that I could add would be that it’s been to my knowledge that the past practice of the zoning in issuing the home occupation permits and interpreting that provision, that it was construed that there would be no outside employees.
MR. DEREMER: Thank you sir. Gentlemen what are your thoughts?
MR. DODSON: Mr. Chairman I would suggest that we bifurcate on this between the issue of whether in fact there is a zoning violation number one. And number two, whether we should grant a use variance under these circumstances.
MR. DEREMER: I would agree with that sir.
MR. JUERGENSEN: I would agree with that as well.
MR. DEREMER: Let’s address the appeal initially and basically separate the appeal in half which is the appeal of the decision of the zoning administrator in the letter dated 12/26/02. Do we have any comments or discussion on that portion of the appeal?
MR. DODSON: Mr. Chairman I think if you limit the definition of the term operator and owner or manager, it violates the spirit of the zoning resolution because it basically allows you an unlimited number of employees who are not managers. I just can’t believe the zoning resolution intends that in a residential district. Thank you.
MR. JUERGENSEN: Mr. Chairman I think in listening to what Mr. Phillippi said, I think the difficulty in the interpretation of employee may have been a consideration in the past and I think that’s why the particular language says “shall be owned and operated solely by the person or persons residing”. I think the use of the word solely, there is an intent there to limit it only to the people who are living in that home to be participating in the business. I think you exclude the employees, volunteers or anyone else outside so it’s all inclusive of anyone not living in the home. I agree as well that allowing employees would not be in the spirit of the zoning resolution.
MR. DEREMER: Ok, thank you sir. Any other comments or discussion? I can give you my input on it if you would. This is probably the third or forth home occupation permit that I think I’ve seen before this board. Most of them have dealt with people using outside employees, people who do not reside inside the home, as people who work for the company. We have had cases where there is a piano teacher, he gives lessons, has students come various hours throughout the day, that’s the only person, he lives in the residents and is the only person running the business. That was approved. All these cases are based on their individual merits of what has been presented in that regard. We have had other cases where the people brought in outside employees. Those appeals have been denied because the intent of the home occupation is to allow somebody to run their business, but solely their own people residing in there. If they have the kids doing the work, if they have the husband and wife working together, that is the intent for the home occupation. To have additional employees come in, say to convert the garage to a printing press or something of that like, that’s where the zoning board of appeals hears a case and we have denied those type of cases where there is outside employees brought onto the premises to basically conduct the work. Even thought the owner is the, he maybe the sole owner, maybe the person who owns the residents who lives there, by the mere fact of them bringing in an additional employee it has been the view of the board that it is a violation of the zoning resolution. So a previous history of cases where people have brought in outside employees had been deemed a violation of the resolution.
MR. MCDONNELL: I can see initially some merits in the counsel’s remarks regarding the operator. However, I think he has taken a very narrow view on that or a very narrow definition of operator. In fact by the applicant’s testimony it would appear that the business cannot be operated, cannot be run without the assistance of the part-time employees. Counsel indicated that if it is not allowed, and I’m not talking on merits of whether it would be allowed or not, but he indicated that if it is not allowed they can’t run the business. The business can’t be continued or whatever the case may be. Operated to me indicates and refers to running of a business. I’m trying to think of the right words. I wish I had my thesaurus with me but I don’t. Long story short, is there a violation? In my opinion, yes there is. Was the zoning administrator, once a violation regardless of how it came to the zoning administrator’s attention, once it was brought to his attention he had no authority to do anything but issue the citation. To do otherwise would have been improper. Long story short, as far as on the initial issue of is there a violation? It would be my opinion that there is a violation and I would uphold the zoning administrator’s citation.
MR. DEREMER: Do we have any other discussion on this matter, on the first portion of the appeal? Having heard the discussion do we have any motions to tender?
MR. MCDONNELL: Mr. Chairman, I would make a motion that with regards to the decision of the zoning administrator, I would make a motion to uphold the decision of the zoning administrator.
MR. DEREMER: We have a motion to uphold the decision of the zoning administrator. Do I have a second?
MR. DODSON: Second.
MR. DEREMER: Please call the role.
MS. POINDEXTER: Mr. McDonnell.
MR. MCDONNELL: Yes.
MS. POINDEXTER: Mr. Dodson.
MR. DODSON: Yes.
MS. POINDEXTER: Mr. Juergensen.
MR. JUERGENSEN: Yes.
MS. POINDEXTER: Mr. Deremer.
MR. DEREMER: Yes. With that we need to then address the variance which is secondary. The first portion I would call #1830(A) and the second portion would be #1830(B) so they are isolated. Is there any comments based on the variance request?
MR. MCDONNELL: I’ll start off Mr. Chairman. My initial reaction is, first of all the intent of the home occupation permit and the restrictions placed on it in my opinion is to retain the integrity of the residential neighborhood. Has this particular situation violated that intent? I’m not sure that it has. Were the board to grant a variance, I would like to see it very, very, very, specific, very detailed, and with the understanding that if it is ever violated it is immediately revoked. Reason being first of all for the detail I think that it is absolutely necessary to maintain the integrity of the neighborhood. I’m not sure that granting a variance in this situation would adversely affect the integrity of the neighborhood. I’m a little concerned about a precedence that may be established but we deal with every variance on a case by case basis so why that does create a concern it is something that we can deal with and something that we are paid to deal with. Those are my initial comments and before we even get into any limitations or specifics on a variance I think we ought to, I’d like to know whether that is something the rest of the board would even consider before going through the exercise.
MR. DEREMER: Thank you sir. Any other comments or opinions?
MR. DODSON: Mr. Chairman. For the record I agree completely with Mr. McDonnell.
MR. JUERGENSEN: Mr. Chairman I also agree completely with Mr. McDonnell.
MR. MCDONNELL: That’s probably the first and last time that’s ever happened.
MR. DEREMER: I understand your opinion Mr. McDonnell, but I’m also concerned about a precedence being set. Even though you put tight restraints on the hours a person can work and the time of year per say for a part-time employee, that is basically slipping into a gray area that people will be able to work on within the township. I only have my sister’s cousin coming here twice a week to do various things and people say well you allow part-time work here so why am I not allowed part-time here. The board’s direction in the past has been to draw basically a straight line. If you are a resident of the house and you work in the house then you are allow to have the home occupation. If you employ outside people then you are violating that home occupation standard which the township would like to maintain. It protects the residential nature of the neighborhood and it also protects people around that residential neighborhood, which is why people live here in this township. They want some knowledge that I’m not going to have a, I may have a repair shop next door to me but it’s going to be a guy in a garage fixing trucks one at a time as a second job if that was approved but I don’t know that that is. The fact to bring in outside employees whether they are school age kids, retirees or whatnot, I think goes beyond what the zoning resolution would want us to allow. Myself I am not in favor of the variance as requested even with the tight restrictions. Any other comments gentlemen or thoughts? Would somebody care to prepare a motion or present one?
MR. DODSON: Mr. Chairman I would move that we allow the use variance to allow two part-time employees, performing administrative tasks only in the field of accounting, parking their cars in the garage, work not to exceed 20 hours per person per week except February 1st to April 30th, when each person can work a maximum of 40 hours with the variance subject to revocation on proof of a violation of variance.
MR. DEREMER: We have a very detailed motion. Any comments on that motion?
MR. MCDONNELL: Mr. Chairman.
MR. DEREMER: Yes.
MR. MCDONNELL: Mr. Dodson could we expand that also that the variance applies only to the current residence performing the current work?
MR. DODSON: I have no problem with that. I would amend the motion accordingly.
MR. DEREMER: So we have the motion as amended. Any other thoughts?
MR. JUERGENSEN: My concern is that during tax season we’re no longer dealing with part-time employees. We’re dealing with full-time employees. I have a concern, I agree with the motion except for the extent of the hours. Just based upon that we’re not dealing with part-time employees anymore; we’re dealing with full-time employees. I don’t know your thoughts on lessening those hours or not.
MR. DEREMER: Those are the bases of what the home owner employs the people to do. During that tax time season they are there for full time. Even though they are part-time they are 40 hour a week people at that time of the year as it was testified. Any other thoughts or a second to the motion?
MR. MCDONNELL: I’ll second the motion as amended.
MR. DEREMER: We have a second as amended. Please call the role.
MS. POINDEXTER: Mr. McDonnell.
MR. MCDONNELL: Yes.
MS. POINDEXTER: Mr. Dodson.
MR. DODSON: Yes.
MS. POINDEXTER: Mr. Juergensen.
MR. JUERGENSEN: Yes.
MS. POINDEXTER: Mr. Deremer.
MR. DEREMER: No.
MR. DEREMER: With that the motion passes with the restrictions set upon it. If anyone in the audience does not believe that justice has been served here this evening they do have the right to appeal that to the Court of Common Pleas within 30 days of this hearing. I appreciate everyone’s input here tonight and thank you for your time. (This concludes appeal #1830).
APPEAL #1831 – Archer Sign Corp., 1917 Henry Ave. SW, Canton, Ohio 44706 agent for Westfield Mall, property owner, 4230 Belden Village Ave., NW, Canton, Ohio 44718 requests a variance for (5) 12.375 sq. ft. directional signs with a height of 3’9” where a 6 sq. ft. directional sign with a height of 3 ft. is permitted in Sect. 502.1 of the zoning resolution. Property located at 4230 Belden Village Ave., Sect. 24 Jackson Twp. Area zoned B-3.
Mr. Deremer read the file application signed by Dwight Archer with reasons being to direct people. The file contained a tax map of the property in question, a site plan showing the locations of the proposed signs and a drawing of the proposed signs.
Mr. Deremer asked who would like to speak in favor of this appeal.
Mr. Deremer swore in Victor Pildes, 5215 Old Orchard Rd., Suite 725, Skokie, IL 60077.
Mr. Pildes stated that he is the Vice President for the development of Westfield Corporation. Mr. Pildes stated that they would like to upgrade their customer service and the appearance of the mall. The reason for the variance is that it is typical in regional shopping centers for directional signs to be placed in the parking lot because unlike strip centers the parking lot and entrances to the building extend all the way around the building and from one side of the building one cannot see the other side of the building or understand the path one should take to circle the building.
Mr. Pildes stated that Belden Village is a regional mall and they hope to broaden the mall by adding additional tenants and investing in the property. People come to the mall from all over and may not be familiar with the property.
Mr. Pildes gave the board a drawing of a parking lot sign, exhibit #1, from another mall that directs motorist.
Mr. Pildes stated that he does not believe they are permitted to place the anchor stores names on the entrance monument sign to the center nor do they propose to do that. It is typical in anchor store leases and agreements in regional shopping centers where if there is a directional sign in the parking lot, which he arguing is advantageous for the customers, all of the anchor stores need to be named on that sign. The reason for the variance is that the 6 sq. ft. requirement in the ordinance would make for a sign that would be very difficult to get more then one stores name on it and there are typically multiple anchor stores in regional malls. The idea is for the sign to be visible to people behind the wheel of their car so it needs to be a certain size and height off of the ground to be safely and easily read. Mr. Pildes stated that they were in front of the board a while back with a larger sign, which was denied. Since then they have scaled the request back to 12 sq. ft. with a maximum height of 3 ft. 9 inches.
Mr. Juergensen asked Mr. Pildes if a larger sign would promote safety in the sense that people would know where they are going and to get them parked sooner.
Mr. Pildes stated absolutely. In fact at the entrance off of Everhard Rd., when you get to the top of the point where you need to turn, if you clearly and quickly can see which way you need to go rather than hesitating it is an improvement for safety.
Mr. Deremer stated that it appears on the proposed drawing that the letters are double spaced and on exhibit #1 it looks like the letters are single spaced.
Mr. Pildes stated that they could single space the letters but in the future there may be a request to add an additional name to the sign and reducing the height to 3 ft. would make it difficult to read from the height of a driver.
Mr. Deremer asked Mr. Phillippi if the
square footage of the sign would include the concrete base.
Mr. Phillippi stated no, that would be
the signage itself; the geometric area that encompasses the actual sign.
It would not include the base or frame.
Mr. Pildes had nothing further to add.
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 input.
Mr. Dodson stated that he believes historically the board has been really tuff on signs for good reasons but this one he is more tempted to go along with. Westfield Belden Village is really the only place like this in the township. It is a unique situation and there is a tremendous amount of traffic. Mr. Dodson stated that he thinks they are purely directional signs for people who drive onto the premises and he would be tempted to go along with it.
Mr. Juergensen stated that he agrees with Mr. Dodson’s comments.
Mr. McDonnell stated that the board has always been conservative on signs. One thing that he believes makes this different is that the signs are within the parking area. While he doesn’t like the idea of additional signs he can see where this would reduce some of the problems and could be a safety issue.
Mr. Deremer stated that he agrees with the other board members and thinks it is potentially a good safety issue once you get into the mall to tell you which direction to go. His only concern would be to indicate that these are Ring Road directional signs. Once you’re in the entrance you are looking at a sign that directs one around the mall. Mr. Deremer asked if it would be possible to amend the request.
Mr. Pildes stated that the locations would be as indicated on the plan.
Mr. Deremer stated that the reason he is saying this is to somewhat substantiate this from another person coming in and saying you just gave Westfield five directional signs so why can’t I have five on my half acre lot, because within the resolution a directional sign is meant to be on the entrance way of a restaurant or bank of sort. Mr. Deremer stated to him what makes this different is that it is for Ring Road to allow people to know that once they get in the mall they know where to go. Mr. Deremer stated that he would like to see that wording in the appeal, that it is directional signs for Ring Road within the mall.
Mr. Pildes stated that this is what they intend.
Mr. McDonnell stated that the plan, exhibit #2, shows five highlighted areas that are the locations for the requested signs.
The board had no further comments.
Mr. McDonnell made a motion to approve appeal #1831 for five signs as shown as 5B, 5C, 5D, 5E, & 5F on exhibit #2.
Mr. Deremer asked Mr. McDonnell to amend the motion to say directional signs.
Mr. McDonnell stated that he would amend his motion.
Mr. Dodson seconded the motion.
The vote was: Mr. Juergensen-yes, Mr. Dodson-yes,
Mr. McDonnell-yes, and Mr. Deremer –yes.
Mr. McDonnell reclused himself from appeal #1833.
APPEAL #1833 – Jason Roach, property owner, 7266 Wales Ave. NW, North Canton, Ohio 44720 requests a variance for a wall sign on the north and south side of the building where a wall sign is not permitted in Art. V Sect. 502.4 of the zoning resolution. Property located at 7266 Wales Ave. NW, Sect. 10SW Jackson Twp. Area zoned B-3.
Mr. Deremer read the file application signed by Jason Roach with reasons being that the building is too close to the road to place a sign in front due to zoning laws. The file contained a tax map of the property in question and a site plan showing the proposed sign location on the building.
Mr. Deremer asked who would like to speak in favor of this appeal.
Mr. Deremer swore in Jason Roach, 7266 Wales Ave. NW.
Mr. Roach gave the board an informational packet, exhibit #1, consisting of seven pages.
Mr. Roach stated that page three of the exhibit shows the site plan of the lot. The zoning regulations state that a sign has to be 45 ft. from the center of the road and the front of the home is only 42 ft. from the center of the road; therefore, a pole sign cannot be placed on the property. Page four shows the building on the property and pages five and six show a rough sketch of the proposed sign to be located on the building.
Mr. Roach stated that it is his understanding that a sign is permitted on the front of the building but with the speed of the traffic and the closeness of the building to the road it would not be feasible to have a sign in that location.
Mr. Roach stated that the signs would be sixty inches wide by fifty inches in height with a low wattage spot light underneath.
Mr. Deremer asked if the basic premise for the request is that Mr. Roach is looking for two signs as opposed to one.
Mr. Roach stated yes, for north and south bound traffic.
Mr. Deremer stated that basically there is no room for a pole sign due to the setback requirements. He understands the tuff situation and the reason for the appeal.
No one else in the audience spoke in favor of the appeal.
Mr. Deremer asked if anyone in the audience wanted to speak in opposition to the appeal.
Mr. Deremer swore in Mr. Pete Stambolziovski, 8211 Kellydale NW.
Mr. Stambolziovski stated that he is a neighbor and doesn’t understand about the sign.
Mr. Deremer explained that the sign would be located on the north and south side of the building.
Mr. Stambolziovski stated that there is no room for a sign on the side of the property because of the electric poles and trees.
Mr. Deremer stated that there would not be a pole sign. The sign would be attached to the north and south side of the building.
Mr. Stambolziovski stated that he has no
problem with the signs being attached to the house.
No one else in the audience spoke in opposition
to the appeal.
Mr. Deremer closed this appeal to public discussion.
Mr. Deremer asked Mr. Phillippi if the signs are within the standards of the regulations.
Mr. Phillippi stated yes, the size is not a problem.
Mr. Dodson stated that he would be tempted to grant this request with it being limited to the current business.
Mr. Juergensen stated that he agrees with Mr. Dodson.
Mr. Deremer stated that he thinks Mr. Roach has proved his hardship with the location of the building and the width of Wales so he is in favor of the request. Mr. Deremer stated that agrees with Mr. Dodson regarding it being limited to the current owner.
Mr. Dodson made a motion to approve appeal #1833 with the restriction that the variance be limited to the current occupancy and current use of the business.
Mr. Juergensen seconded the motion.
The vote was: Mr. Juergensen-yes, Mr. Dodson-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.
APPEAL #1832 – American Sand & Gravel, 8188 Wales Ave. NW, North Canton, Ohio 44720 agent for Consumers Ohio Water Company, property owner, 123-3rd. St. SE, Massillon, Ohio 44646 requests a renewal of a previously approved conditional use permit #1519, approved 3/12/98, for surface mining and a variance to mine to a zero ft. setback line where 50 ft. is required in Art. IV Sect. 431.6W of the zoning resolution. Property location is 14 acres, more or less, on the east side of Riverside Rd., Sect. 31NE Jackson Twp. Area zoned I-1.
Mr. Deremer read the file application signed by Chris Scala with reasons being to extract sand and gravel for final reclamation grading between both American Sand & Gravel and Oster Sand & Gravel operations. The file contained a tax map of the property in question , the 50 ft. consent form as agreed to between Oster Sand & Gravel and American Sand & Gravel, signed 10/29/97, a copy of the deed affidavit, and a large map dated 3/12/98.
Mr. Deremer asked who would like to speak in favor of this appeal.
Mr. Deremer swore in Chris Scala, 8188 Wales Ave. NW, North Canton, Ohio 44720.
Mr. Scala stated that they are asking to renew the conditional use permit from appeal #1519. The process is not complete in this area and they are looking to renew the permit so they can continue the operation. This is somewhat of a joint venture along with Oster Sand & Gravel, otherwise Oster would work 50 ft. from their property line and American Sand & Gravel would have worked 50 ft. from their property line and the elevation has dramatically changed in the area. Mr. Scala stated that the idea is to take the hill out of that portion of the property.
Mr. Scala stated that they are using the map from the previous appeal because basically nothing has changed on the map. However, the acreage on the application says 14 acres and the permit from appeal #1519 says 7.4 acres, which he believes is the correct acreage. Mr. Scala stated that he made the mistake on the acreage when filling out the application and believes the correct acreage for the application is 7.4 acres.
Mr. Deremer stated that the lease indicates
14 acres which is probably where the number came from.
Mr. Scala stated that if the board recalls
when they previously came in for their permit, the highlighted areas on
the map that show the orange and green had something to do with the fact
that when they drilled their first well on the property they received a
grant from a governmental agency and to do that they had to setup a separate
piece of property when the first well was drilled. That encompassed
the orange area, which was Ohio Water Development Authority. The
green area was a 50 ft. buffer between that and the original mining area.
As years went on and they paid off their first well that property rescinded
back to Ohio Water Service Company. Mr. Scala stated that at that
point and time they extended onto his lease.
Mr. Scala stated that they are only looking for a renewal and there are no changes in the perimeters as far as the drawing is concerned and where the operation is.
Mr. Deremer asked if the conditions that were originally agreed to are included with the request.
Mr. Scala stated that he would like to request that a ten year permit be applied to the property and omit the condition that states no work on Sundays or Holidays.
Mr. Deremer asked if there are any different operation perimeters on the requested portion then what they are doing on the other permitted acreage that would be a noise factor.
Mr. Scala stated no. This is mostly an extraction site but he does not want to limit that because they might move a portable plant over there to screen some material or something. Primarily this has been an extraction area and they have been removing the material and moving it to their plant which is on one of the other parcels and is permitted. Mr. Scala stated that they have had equipment over there in the past.
Mr. Deremer asked if the parcel has ten years of life left in it because it is only seven acres.
Mr. Scala stated not if he were to mine it continuously.
Mr. Scala stated that they always work with the existing neighbors and have a good relationship with them.
Mr. Deremer stated that he thinks Mr. Scala’s operation is top notch.
Mr. McDonnell stated that he is unaware of anything changing.
Mr. Phillippi stated that when changes were made to the resolution it was left up to the boards discretion as to a putting a time limit on the permit.
Mr. McDonnell reviewed the conditional use permit requirements from appeal #1519, dated March 1998.
Mr. Scala stated that they have and will comply with all the conditional use permit requirements as noted from appeal #1519; however, he would like to eliminate the portion of #4 which is “Operations on Sunday and legal holidays recognized by the State of Ohio shall be prohibited” and that the permit be allowed for a period of ten years.
Mr. Phillippi stated that the property has not had any violations.
Mr. McDonnell stated that the original conditional use permit indicates fourteen acres.
Mr. Scala stated that he has a copy of the actual zoning certificate, SM71, and it says 7.4 acres and believes the fourteen acres was taken off of the lease affidavit. The correct acreage is 7.4 acres.
Mr. McDonnell asked if Mr. Scala indicated that he is asking for the permit for a period of ten years.
Mr. Scala stated yes.
Mr. Deremer stated if granted it would be for a period of ten years for 7.4 acres as amended by the applicant and would run from March 12, 2003 until March 12, 2013.
Mr. Deremer asked if there are strict litigations for mining operations itself that do not allow the hours to be limited.
Mr. Scala stated that it is his understanding that limiting the hours may be unconstitutional.
Mr. McDonnell stated that he would like to note that the current conditions indicate that there is no restriction in an I-1 district, which is where the property is located.
Mr. Deremer asked Mr. Scala if he would like to delete item #4.
Mr. Scala stated that he believes item #4 is inapplicable at this point especially with the information that Mr. McDonnell just read in the current code.
Mr. Scala stated that the zoning code cannot be more restrictive then the previous one so if there is a regulation under the old code, even though they are preserved under those rights and something becomes less restrictive in the future, they also get that.
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 discussion.
Mr. McDonnell stated that he has no problem with this appeal or with deleting #4 on the previous conditions especially since it is not a current condition. Mr. McDonnell stated that he thinks Mr. Scala runs a class operation with no complaints.
Mr. Deremer stated that he agrees with Mr. McDonnell and asked if the board is in agreement to extend the permit for a period of ten years.
The board agreed.
Mr. McDonnell made a motion to approve appeal #1832 for a period of ten years for 7.4 acres with the condition regarding “operations on Sunday and legal Holidays recognized by the State of Ohio” is deleted. They will retain “evening hours shall be permitted provided the applicant has notified the zoning administrator in writing of its intentions and the length of time it proposes to mine in the evening” as is their current practice.
Mr. Dodson seconded the motion.
The vote was: Mr. Juergensen-yes, Mr. Dodson-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.
Mr. Deremer read the conclusion of fact for appeal #1822 and the board had no comments.
Mr. Deremer made a motion to approve the conclusion of fact for appeal #1822.
Mr. Dodson seconded the motion.
The vote was: Mr. Dodson-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.
Mr. Dodson made a motion to approve the minutes from the Board of Appeals meeting on December 19, 2002.
Mr. McDonnell seconded the motion.
The vote was: Mr. Dodson-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.
Mr. McDonnell made a motion to approve the minutes from the Board of Appeals meeting on January 9, 2003.
Mr. Dodson seconded the motion.
The vote was: Mr. Dodson-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.
Mr. McDonnell made a motion to adjourn the meeting.
Mr. Juergensen seconded the motion.
The vote was: Mr. Juergensen-yes, Mr. Dodson-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.
Respectfully submitted,
Joni Poindexter
Zoning Data Coordinator
Clerk/Secretary