Members present:
Ted Deremer-Absent for appeal #1899 & 1795
Edward McDonnell
Richard Dodson
Jim Giulitto
John Juergensen-Recused from appeal #1795
Zoning Administrator:
John Phillippi
Zoning Data Coordinator:
Joni Poindexter
Mr. McDonnell served as chairman in the absence of Mr. Deremer for appeal #1899 & 1795.
APPEAL #1899 – Richard LaRowe, WD Partners, 1201 Dublin Rd., Columbus, OH 43215 agent for Westfield America, LLC, property owner, 4230 Belden Village Mall, Canton, Ohio 44718 requests a variance for 1) A zero (0 ft.) rear (south) parking & landscaping setback where 5 ft. is required, 2) A 20 ft. front (north) building setback where 50 ft. is required, 3) A zero (0 ft.) front (north) parking setback where 20 ft. is required, & 4) A zero (0 ft.) rear (south) building setback where 16 ft. is required in Art. IV Sect. 411.5, 411.8 & 411.9 of the zoning resolution. Property located at 4230 Everhard Rd. NW, Sect. 24 Jackson Twp. Area zoned B-3.
Mr. McDonnell read the file application signed by Richard LaRowe and the reasons for the request. (See attachment in file). The file contained a tax map of the property in question, a site plan showing the proposed location of the building and parking, and a letter that was addressed to John Phillippi regarding the variance requests and the reasons for the requests.
Mr. McDonnell asked who would like to speak in favor of this appeal.
Mr. McDonnell swore in Phillip Drake, 7862 Harriett Rd. Dublin, Ohio and Richard LaRowe, 1201 Dublin Rd., Columbus, Ohio.
Mr. LaRowe stated that he would not review the entire plan because it was in front of the board approximately one month ago. Since that time they have proceeded with the project and have received Stark County Regional Planning’s approval contingent on the zoning. They have their sanitary permit, water permit, building approval and all utility approvals.
Mr. LaRowe stated that they have minimized the impact of the front setback. They pulled the building back as far as they could and are asking for a rear setback variance.
Mr. LaRowe stated that there are two amendments to their request which is a reduction of what they are requesting. In item #2 rather than a 20 ft. front setback they can provide a 25 ft. setback and in item #4 rather than a zero (0 ft.) rear building setback they would like to request a 1.5 ft. setback.
Mr. LaRowe explained the location of the
building and the landscaping that would be added and stated they are not
changing the parking lot or increasing any parking which just so happens
to be zero (0 ft.) from the property line as it is now. The boundary
is a leased boundary and is not recorded. Mr. LaRowe stated that
they cannot use the existing building as it is so they will be replacing
it with a new building which will not be any larger, but because it is
a different shape and changes in the resolution they are requesting several
variances.
Mr. McDonnell asked Mr. LaRowe what the
square footage of the current building is verses the square footage of
the proposed building.
Mr. LaRowe stated that they did not calculate it, but it is shown on the site plan. Mr. LaRowe explained that the dotted line is the existing building and the solid line is the proposed building.
Mr. McDonnell asked if Mr. LaRowe is indicating that on the left side of the building there is a significant difference between the existing building and the proposed building with the proposed building being further in, and a slight difference on the right side with the proposed building being slightly extended beyond the current building.
Mr. LaRowe stated yes.
Mr. Giulitto asked if he is correct in saying that Mr. LaRowe had mentioned before that the trees on the east side currently exist.
Mr. LaRowe stated that there are some existing trees, but the parking islands will be new with trees and there will be other new trees along the building frontage.
Mr. Giulitto asked if they are trying to enclose the area.
Mr. LaRowe stated 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. McDonnell asked Mr. Phillippi if the plan meets all the zoning requirements except for the requested variances.
Mr. Phillippi stated that the plan has been reviewed and meets all the requirements except for the requested variances.
Mr. McDonnell closed this appeal to public input.
Mr. Dodson stated that he sees a practical difficulty in the configuration of the existing building and thinks the revised plan and the landscaping that is proposed to be added is more conforming to the zoning resolution so he does not have a problem with the appeal and it will be a major improvement.
Mr. Giulitto concurred with Mr. Dodson and stated that it looks like they tried to conform to the zoning the best they can and he likes what they have done with the landscaping.
Mr. Dodson made a motion to approve appeal #1899 as modified with item #2 being a 25 ft. front building setback as opposed to a 20 ft. setback and item #4 being a 1.5 ft. rear building setback as opposed to a zero (0 ft.) setback.
Mr. Juergensen seconded the motion.
The vote was: Mr. Juergensen-yes, Mr. Giulitto-yes,
Mr. Dodson-yes, and Mr. McDonnell-yes.
Mr. Juergensen recused himself from appeal #1795.
APPEAL #1795 – Craig Conley, 220 Market Ave. S., Suite 604, Canton, Ohio 44702 agent for Richard Snee, property owner, 5335 Strausser NW, Canton, Ohio 44720 appeals the decision of the zoning administrator as provided for in Art. VIII Sect. 803.1, regulations effective 8/8/01 through 12/11/02, in letter dated 7/9/02 regarding the denial of a 25% expansion of a non-conforming use of the property for Earth & Wood Products, 5335 Strausser St. NW, Sect. 2SE Jackson Twp. Area zoned R-R.
Mr. McDonnell made a motion that the zoning inspectors ruling of July 9, 2002 with regards to the expansion of the non-conforming use on the Snee property on the basis that it exceeds 25% expansion is overturned.
Mr. Dodson seconded the motion.
The vote was: Mr. Giulitto-yes, Mr. Dodson-yes, and Mr. McDonnell-yes.
SEE OFFICIAL TRANSCRIPT IN FILE FOR APPEAL #1795.
Mr. Deremer joined the meeting and served as chairman for appeal #1898.
APPEAL #1898 – American Sand & Gravel, 8188 Wales Ave. NW, North Canton, Ohio 44720 agent for Akron Canton Regional Airport, property owner, 5400 Lauby Rd., North Canton, Ohio 44720 requests renewal of a previously approved conditional use permit, appeal #1578 approved 2/25/99, for 10 years for surface mining for 14.28 acre located north of Strausser and east of Wales Ave. per Art IV & VIII Sec. 401.2(B)(1), 801, 802 and pertinent subsections per regulations prior to October 13, 1988. Located in Sect. 3SE/SW Jackson Twp. Area zoned R-R.
Mr. Deremer read the file application signed by Chris Scala with reasons being that the work is not complete at this time. The file contained a tax map of the property in question, two sets of conditions for the conditional use permit, and a site plan showing the locations of the mining operation.
Mr. Deremer asked who would like to speak in favor of the appeal.
Mr. Deremer swore in Christopher Scala, 5561 Foxdale Circle NW.
Mr. Scala stated that they have requested a renewal of their application. The mining operation is not complete at this time and they would like to renew their permit for another 10 years. There is a section of a non-conforming use on the property and they are not asking for any additional land or acreage. The mining is at the center of their operation and a large portion of the red area as shown on the map is currently a lake which is being expanded as the area around it is mined.
Mr. Scala stated that there are two different sets of conditions for the permit. Prior to appeal #1578 from 1999 the two parcels, 8.11 acres and 6.17 acres as shown on the map in green, had their own appeal number. When they came before the board for appeal #1578 the two were consolidated into one appeal and one permit; however, the conditions were carried over with each acreage keeping its own conditions.
Mr. Deremer stated that item #2 and #11
are different in the set of conditions and asked Mr. Scala if the fence
in #11 between the original dairy property and the proposed lake is still
there.
Mr. Scala stated yes; however, the dairy
has been gone for over 20 years.
Mr. Deremer stated that item #2 states, “The applicant will notify the Board of Appeals of any change of ownership of any and all property affected by the Conditional Use Certificate within 30 days of recorded transfer”, but he does not know why it isn’t in the other set of conditions.
Mr. Deremer asked Mr. Scala if he had any problem with the current conditions as stated.
Mr. Scala stated that he does not have a problem with any of the conditions except one item which would be the hours of operation because as he’s expressed in previous appeals he doesn’t believe and it is his understanding that there is case law in Ohio that says that the townships do not have the authority to regulate hours of operation of non-conforming uses. For the record the Board of Trustees of Bainbridge Township vs. Funtime Inc., which was Geauga Lake Park Ohio Supreme Court Case #89-1228, townships are not able to restrict the hours of operation for non-conforming uses. The Ohio Revised Code does not give them the authority to do that, so the only reason he feels he would not be able to agree to the hours of operation is because he’s not sure that it is legally applicable to this permit. He would agree to the terms and restrictions as they are to the extent that they are enforceable under the law.
Mr. Deremer asked Mr. Scala if he operates more than the hours that are stated.
Mr. Scala stated that has not been an issue recently, but if they don’t have to have limited hours of operation they would prefer not to. They try to be a good neighbor to everyone and he feels that they have done an excellent job over the years.
Mr. Deremer asked Mr. Scala if he thinks they will still be functioning in ten years or if the project will be complete.
Mr. Scala stated that he could not predict this.
Mr. Deremer asked if there is a limit to the bottom of the pit verses other pits.
Mr. Scala stated that he doesn’t believe the deposit is as deep as the deposit on Forty Corners Rd.
Mr. McDonnell asked if it is Mr. Scala’s testimony that he has no problem with the conditions as related to each parcel other than the times of operation.
Mr. Scala stated yes.
Mr. Deremer stated in looking at the conditions the board would basically be modifying item #3 where it would be a ten year period as opposed to a five year period for 6.17 acres and item #2 it would be a ten year period as opposed to a five year period for 8.11 acres.
No one else in the audience spoke in favor of this appeal.
Mr. Deremer asked if anyone in the audience wanted to speak in opposition to the appeal.
Mr. Deremer swore in David Benner, 6379 Kilkenny Cir. NW.
Mr. Benner stated that the parcel in question has houses on both the south and east side of where the mining is taking place. The property has been mined for a couple of decades and during that period of time people have been living in the developments. Mr. Benner stated that it seems to him like a couple of decades are a long enough period of time to having mining in your backyard. If he understands correctly there are five years remaining on the permit that has been granted and planning in the township is done with a five year comprehensive plan, which is a pretty long stretch of time, so to grant a conditional use permit for a period of ten years seems like an excessive period of time. Mr. Benner stated although this has been a good operation for the company, he is not in favor of seeing things extended for ten years in the middle of an R-R district.
Mr. McDonnell asked Mr. Benner how long he has lived at his residence.
Mr. Benner stated he has lived at his current residence for about three years but has lived in the township for seventeen years.
Mr. McDonnell stated that the resolution use to indicate that the maximum time for a conditional use permit was five years. The last time the resolution was written the trustees removed the five year limitation which allows the board to grant a conditional use permit for this type of operation forever. It is the board’s decision to limit that to a certain number of years so anything that the board does is much more stringent than the trustees have said the board can do.
Mr. Deremer stated, for Mr. Benner’s information, the permit expired and they are asking to renew it.
No one else in the audience spoke in opposition to the appeal.
Mr. Deremer asked Mr. Scala if he would like to respond to Mr. Benner’s comments.
Mr. Scala stated that having been on the site since 1978 or 1979 there is not a file with overwhelming complaints, so he thinks the operation speaks for itself.
Mr. Deremer closed this appeal to public input.
Mr. McDonnell stated that some of the conditions have changed over time. Regarding the hours of operation he thinks that they should keep them as they are and the resolution indicates that the board can enforce what is legal to enforce. If what is in the code varies from what is in the Ohio Revised Code or is illegal then it is now illegal in the code. So if Mr. Scala can prove its illegal okay, but he assumes if the board passes the appeal the hours will remain in effect. Mr. McDonnell stated that he does not have a problem granting the conditional use permit.
Mr. Deremer agreed with Mr. McDonnell’s comments and stated that the operator knows what to do and keeps the noise and dust down to a minimum. Mr. Deremer stated that he does not have a problem granting the conditional use permit for ten years as requested.
Mr. McDonnell made a motion to approve appeal #1898 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.
Mr. Giulitto made a motion to approve the
minutes from the meeting held December 18, 2003.
Mr. Dodson seconded the motion.
The vote was: Mr. Juergensen-yes, Mr. Giulitto-yes, Mr. Dodson-yes, Mr. McDonnell-yes, and Mr. Deremer-yes.
Mr. McDonnell made a motion to approve the minutes from the meeting held January 22, 2004.
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. 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 Data Coordinator
Clerk/Secretary