Members present:                                                            Edward McDonnell
                                                                                           Richard Dodson
                                                                                           Jim Giulitto
                                                                                           John Juergensen
                                                                                           Eric Oldroyd-Alternate

Absent Member:                                                              Ted Deremer

Zoning Inspector:                                                            Joni Poindexter

Mr. McDonnell served as Chairman due to the absence of Mr. Deremer and welcomed Mr. Oldroyd to the board as an alternate.

Mr. McDonnell suggested that the board postpone voting for a Chairman and Vice Chairman for 2005 until the next scheduled hearing due to the absence of Mr. Deremer.

Mr. Dodson made a motion to postpone the election for Chairman and Vice Chairman.

Mr. Juergensen seconded the motion.

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

APPEAL #1950 – Ed Reynolds, property owner, 3049 Perry Dr. NW, Canton, Ohio 44708 requests a variance to allow a second single family dwelling on a 5.87 acre tract of land where no more than one principal building shall be permitted on any lot in any residential district per Art. III Sect. 302.3(B) of the zoning resolution.  Property located at 3049 Perry Dr. NW, Sect. 34SW Jackson Twp.  Area zoned R-R.

Mr. McDonnell stated that this appeal was continued from December 2, 2004.  There is a letter in the file from the applicant requesting the hearing be continued until March 10, 2005.

Mr. McDonnell made a motion to continue appeal #1950 until March 10, 2005 at 7:30 pm.

Mr. Dodson seconded the motion.

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

APPEAL #1953 – Brad Hund, property owner, 94 Cherry Dr. NW, North Canton, Ohio 44720 requests a conditional use permit for landscaping vehicle & equipment storage where a conditional use permit is required and a variance for a 65 ft. rear building setback where 75 ft. is required when abutting a residential property per Art. IV Sect. 411.5 of the zoning resolution.  Property located at 8475 Wales Ave. NW, Sect. 3NE Jackson Twp.  Area zoned B-3.

Mr. McDonnell  read the file application signed by Brad Hund.  The file contained a tax map of the property in question, a site plan dated 12/15/04, and the RPC Subdivision action for approval subject to compliance with zoning.

Mr. McDonnell swore in Brad Hund, 94 Cherry Dr. NW, North Canton, Ohio 44720.

Mr. Hund stated that the zoning requirements have changed since the site plan was approved in 1999.  At the time he was unable to build the second building that is shown of the site plan because he didn’t have the money.  He is now able to build the second building, but when he came in for an application he found out the setbacks were different so he is asking for a variance.  Mr. Hund stated that the building would be used to store his personal trailers, bobcats, and construction equipment and isn’t really for landscaping.

Mr. Hund stated that he couldn’t move the building any closer to the existing building because he needs room to pull his trailer in and out of the building as well as other equipment.  Mr. Hund stated that the building would be for his personal use and he is willing to put in a 30 ft. landscaped area as opposed to 20 ft., which is required.

Mr. McDonnell asked what the current building on the property is used for.

Mr. Hund stated that it is a rental storage building.

Mr. McDonnell asked what the site plan was approved for in 1999.

Mr. Hund stated that it was approved as shown for two buildings, but because of financial reasons he was only able to build the larger building at that time.

Mr. McDonnell asked if anything on the site plan had changed since it was approved in 1999.

Mr. Hund stated no.

Mr. McDonnell asked Ms. Poindexter if a conditional use permit was issued in 1999 or a variance.

Ms. Poindexter stated no.  What is shown on the plan was a permitted use in 1999 and was within the required setbacks.

Mr. McDonnell asked why the building needed to be 10 ft. closer to the property line than what is permitted.

Mr. Hund stated if the building met the setback requirements then he wouldn’t be able to make the turn to pull his trailers and equipment in and out.

Mr. McDonnell asked if there is a practical difficulty with the land that precludes the building from meeting the required setback.

Mr. Hund stated that the setback requirement is 75 ft. which would put it 38 or 40 ft. from the other building, and with a truck and a trailer it’s virtually impossible to pull them in and out of the building.

Mr. McDonnell asked Ms. Poindexter if the setbacks have changed since 1999.

Ms. Poindexter stated yes.  In 1999 the rear setback requirement when abutting a residential property was 50 ft. and it is now 75 ft.

Mr. Juergensen asked what is located to the rear of the property and how far the closest home is located from the rear of the property.

Mr. Hund stated that there is a cornfield behind the property and the nearest home is at least 2000 to 3000 ft. away from the rear property line.

Mr. Dodson stated that he is familiar with the property and agrees that the nearest home is far away from the property line.

Mr. Dodson reviewed the requirements for the conditional use permit.

Section 431.2
Mr. Dodson asked if it would not be detrimental to property values in the immediate vicinity.

Mr. Hund stated no, it will not.

Mr. Dodson asked if it would not be restrict or adversely affect the existing use of the adjacent property owners.

Mr. Hund stated no, it will not.

Mr. Dodson 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. Hund stated yes.

Mr. Dodson asked if it would have any affect on stormwater runoff.

Mr. Hund stated no.

Mr. Dodson asked if it would be properly landscaped according to section 411.9, where applicable pursuant to Chapter 411 or when specified as a condition for approval.

Mr. Hund stated yes, if not more.

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

Mr. Hund stated yes.

Section 431.3
Mr. Dodson asked what would be the hours of operation.

Mr. Hund stated there are no hours of operation because it is strictly for storage.

Mr. Dodson asked if the parcel is one or more acres.

Mr. Hund stated that the entire property is 6.33 acres.

Mr. Dodson stated that the point of vehicle entrance shall be no closer than 100 ft. from the intersection of two arterial streets or 50 ft. from the intersection of an arterial street and a local and collector street.

Mr. Hund stated that he would comply.

Mr. Dodson stated that no lighting shall constitute a nuisance and in no way shall impair safe movement of traffic on any street or highway and all outside lighting shall be shielded from adjacent properties.

Mr. Hund stated that there would be just enough lighting to light the immediate perimeter.

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

Mr. Hund stated that none would be used.
Mr. Dodson asked if there would be any trash receptacles.

Mr. Hund stated no.

Mr. Dodson asked if the proposed construction is subject to any grading and surface drainage provisions.

Mr. Hund stated no.

Mr. Dodson stated that any dismantled or inoperable vehicles or equipment shall not be maintained or stored on the property.

Mr. Hund stated they would not be.

Mr. Dodson asked if there would be an outdoor storage area.

Mr. Hund stated no.

Mr. Dodson stated that materials such as mulch or topsoil, may be stockpiled on the site provided the materials are maintained in compliance with all Stark County Health Department regulations, such materials shall not be processed on the site, such materials shall not emit any odor that is discernible on adjoining property and outdoor retail sales shall comply with section 411.12A and shall not be conducted in required parking or landscaped areas.

Mr. Hund stated there would not be anything like that.

Mr. Dodson stated that the items regarding materials such as mulch, etc. is non applicable.

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

Mr. McDonnell stated that the board could first discuss the conditional use permit and then the setback variance.

Mr. Dodson stated that when the criteria’s met for a conditional use permit it is usually the board’s policy to grant the application.

Mr. Juergensen and Mr. Giulitto agreed with Mr. Dodson.

Mr. McDonnell stated that the application was presented for the storage of vehicles inside the building.  The conditions for the conditional use permit include mulch and retail sales, but the applicant has testified that this is not the intent.  Mr. McDonnell stated if the conditional use is granted he would like to put a condition on it that it is strictly for the storage of vehicles and does not include any retail sales or storage of mulch.

Mr. McDonnell suggested that the board first vote on the conditional use permit because if it isn’t approved then the variance would become a moot point.

The board agreed.

Mr. McDonnell made a motion to approve appeal #1953 for a conditional use permit with the condition that the permit is only for vehicle & landscaping equipment storage and no retail sales, or storage of mulch or landscaping products.

Mr. Juergensen seconded the motion.

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

Mr. McDonnell asked if there were any comments on the variance portion of the appeal.

Mr. Oldroyd stated that the only question that comes to his mind is the regulations were change and asked what the need was for the change from 50 to 75 ft.

Mr. McDonnell stated that he cannot answer when the change took place but obviously it was since 1999.  When looking at the request the board looks at whether the spirit and intent of the zoning resolution would be violated and has the applicant created the problem himself.  Mr. McDonnell stated that he doesn’t see where anything in the area has changed other than the regulations since the site plan was approved in 1999.  Mr. McDonnell stated that he does not have a problem with 10 ft. variance, because it is a minor request.

Mr. Juergensen agreed with Mr. Donnell that 10 ft. is a minor request and stated that he thinks the reason for the change in the setback from 50 ft. to 75 ft. from a residential property is to be further away from residential homes.  But, in this case there is a cornfield behind the property and the property is a few thousand feet from any homes so he doesn’t think the spirit and intend of the zoning resolution would be violated.

Mr. Juergensen made a motion to approve the portion of appeal #1953 for a 65 ft. rear yard setback where 75 ft. is required.

Mr. Dodson seconded the motion.

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

APPEAL #1954 – Joe Clark, 422 Harter NW, Canton, Ohio 44708 agent for Frank J. Thomas Builders LLC, property owner, 1346 Stuart NW, Massillon, Ohio 44646 requests a variance for a 22 ft. north (right) side yard setback for principal building where 25 ft. is required in Art. IV Sect. 401.6 of the zoning resolution.  Property located at 7489 Champaign NW, Sect. 7NE Jackson Twp.  Area zoned R-R.

Mr. McDonnell read the file application signed by Joe Clark with reasons being to add a roof over an existing patio.  The file contained a tax map of the property in question and a site plan showing the proposed location of the addition.

Mr. McDonnell swore in Joe Clark, 422 Harter NW, Canton, Ohio 44708.

Mr. Clark showed the board the site plan and stated that they would like to add a roof over a side entrance door that faces Emerald Isle.  The purpose is to add safety and security for the future owners.  Mr. Clark stated that this would make the roof overhang infringe into the setback line by approximately 3 ft.

Mr. Clark stated that the dimensions are based on the requirements for ADA use, which requires 5 ft. of clear space to allow a potential person who may be in a wheelchair to have enough room under the roof to go to either side.

Mr. McDonnell asked if it is Mr. Clark’s testimony that there is already an entrance that currently exists.

Mr. Clark stated yes.  The roof would be to cover the patio and the entrance to the finished basement.  Mr. Clark stated that he doesn’t think there would be any infringement on the adjacent properties and the property in question is located at the end of the allotment.

Mr. McDonnell asked if it is Mr. Clark’s testimony that 5 ft. is required for ADA.
Mr. Clark stated yes.

Mr. McDonnell asked how far the actual post would protrude into the setback.

Mr. Clark stated about 10 inches.  It’s the overhang that is actually infringing on the setback line.

No one else in the audience spoke in favor of this appeal.

Mr. McDonnell asked if anyone in the audience wanted to speak in opposition to the appeal.

Mr. McDonnell swore in Doug Knox, 5405 Cherokee NW.

Mr. Knox stated that he isn’t really in opposition to the appeal, but he wanted to see what the plan looked like.

Mr. Knox asked if the variance were granted, what would prevent someone else from getting the same thing.

Mr. McDonnell stated that every appeal before the board is looked at on its own merits, so just because one persons appeal may be granted doesn’t mean another will be granted.

Mr. McDonnell asked Mr. Clark to explain to Mr. Knox what they are requesting and how the addition would be added.

Mr. Knox asked if the plan needed to go to a review board for the development before coming before the BZA.

Mr. McDonnell stated that is a total separate issue and isn’t something that the board considers.

Mr. Clark stated that the architect had him give the drawings to development a few weeks ago and they had no negative comments.

Mr. Knox asked when they decided to add the roof.

Mr. Clark stated about two months ago.

Mr. Knox had no further comments.

No one else in the audience spoke in opposition to the appeal.

Mr. McDonnell closed this appeal to public input.

Mr. McDonnell asked Ms. Poindexter what section constitutes a structure.

Ms. Poindexter stated that it is the foundation area and a 24 inch overhang into the setback area is permitted.

Mr. McDonnell asked if the column would be considered as the foundation because it was the applicant’s testimony that the column would only extend about 10 inches into the setback area so the variance that is actually required is 10 inches as opposed to 3 ft.

Mr. Clark stated yes.  He was under the impression, because of the way it is in most townships, that the overhang itself would be the setback point.

Mr. Poindexter stated that section 302.4 of the zoning resolution refers to projections into yard areas.
Mr. McDonnell stated that it is his opinion that the overhang is considered the eave and asked Mr. Clark if the board determined that the portion of the roofline beyond the column constituted an eave, what would be the required variance.

Mr. Clark stated that he would need about 1-1/2 ft. for the column.

Mr. McDonnell asked Mr. Clark if he would be comfortable with 18 inches.

Mr. Clark stated that he could make it work as long as they understand that the approved overhand is not considered an infringement on the setback and wanted to make sure they would have a 5 ft. clearance for ADA.

Mr. McDonnell stated this is understood.  The potential is for the variance to be 23.5 ft. where 25 ft. is required.

Mr. Giulitto stated that he does not have a problem with the request.  It sounds like Mr. Clark has tried to do everything he can to fit the code and to what his neighbors liking is.

Mr. Juergensen concurred with Mr. Giulitto and stated that he doesn’t think the spirit and intent of the zoning code would be violated with only 1-1/2 ft.

Mr. Dodson stated that the variance is minor but he doesn’t see a practical difficulty related to the land, so he has a problem with it because of that unless someone can educate him.

Mr. McDonnell stated that he agrees that a practical difficulty is normally something that they look for.  If this were new construction, if the construction had not begun, his first impression would be to move the house over by 3 ft. because there is room to do it, but he looks at this as someone coming in with their house already built and they want to add an overhang.  Mr. McDonnell stated that he finds the variance to be minimal and does not violate the spirit and intent of the law.  As reading through the practical difficulty items it indicates what is peculiar to the land or structures involved, so he guesses the practical difficulty is that the structure is there and they’ve got no where else to put it and there are ADA requirements.

Mr. Giulitto made a motion to approve appeal #1954 as amended to 23.5 ft. where 25 ft. is required.

Mr. Juergensen seconded the motion.

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

APPEAL #1952 – American Sand & Gravel, 8188 Wales Ave. NW, North Canton, Ohio 44720 agent for Aqua Ohio Inc., property owner, 870-3rd. St. NW, Massillon, Ohio 44647 requests a renewal of a conditional use permit (Appeal #1633, CUP#303, SM#74) for surface mining, sand, gravel & soil where a conditional use permit is required in Art. IV Sect. 411.3 of the zoning resolution.  Property location is 46.5 acres east of Riverside Rd. & south of Forty Corners, Sect. 31NE Jackson Twp.  Area zoned I-1.

Mr. McDonnell read the file application signed by Chris Scala with reasons being a continuation of existing operations under permits currently on file under Appeal #1633, CUP#303 & SM#74.  The file contained a tax map of the property in question, a site plan dated January 13, 2005, and the conditions from appeal #1633.  The file also contained a letter from Marlene Black, CEO of Great Trail Girl Scouts and Aqua Ohio Water.  Mr. McDonnell did not read the letters in the record; however, they remained in the file.

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

Mr. McDonnell swore in Chris Scala, 8188 Wales Ave. NW, North Canton, Ohio 44720.

Mr. Scala stated that he is requesting a renewal of appeal #1633 which was a renewal of appeal #1368, and he believes there may even be one more prior to that in the early 1990’s.  Mr. Scala stated that the property has been under mining operations for at least ten plus years.  They are currently ongoing with the operation and it is not completed at this time so they are looking to renew the application.

Mr. Scala read the letter that is in the file from Aqua Ohio Inc. which stated they are in favor of the application.  Mr. Scala stated not only are they surrounded by another large gravel operation to the south, but to the west the only residential area is Camp Lackapodia, which is part of the Girl Scout Counsel Camp.  Mr. Scala read a letter from Marlene Black of the Girl Scouts and stated that they work very well with them.

Mr. Scala stated that the property is zoned Industrial and gave the board a revised drawing of the property dated 1/13/05.  Mr. Scala explained where the property is located and stated the total acreage owned is about 250 acres and the site has three or four different permits throughout the years.

Mr. McDonnell asked if there are any changes in this request from the conditional use permit that was granted in 2000.

Mr. Scala stated if the board approves the renewal he would like to discuss some of the items in the conditions.  Other than that the intent of the application is the same as it has been the two previous times.

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

Section 431.2
Mr. Dodson asked if it would not be detrimental to property values in the immediate vicinity.

Mr. Scala stated no, it would not.

Mr. Dodson asked if it would not restrict or adversely affect the existing use of the adjacent property owners.

Mr. Scala stated no.

Mr. Dodson 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. Dodson asked if it would meet the requirements of EPA for stormwater runoff, when applicable.

Mr. Scala stated yes.

Mr. Dodson asked if it would be properly landscaped according to Section 411.9 where applicable pursuant to Chapter 411 or when specified as a condition for approval.

Mr. Scala stated this is non applicable.

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

Mr. Scala stated yes.

Section 431.3
Mr. Dodson asked what the current hours of operation are.

Mr. Scala stated that it is 24 hours a day six days a week.  They are not operating on Sunday’s at this time.

Mr. Dodson stated that for parcels of one or more acres, all points of vehicular entrance or exit shall be located no closer than one hundred feet from the intersection of two arterial streets, or fifty feet from the intersection of an arterial street and a local or collector street.

Mr. Scala stated there main access is on Forty Corners road at the interchange.

Mr. Dodson asked how far the property is from that.

Mr. Scala stated about 3000 feet.

Mr. Dodson stated that no lighting shall 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 yes.

Mr. Dodson asked if they are using any flood or searchlights, loudspeakers or similar structures.

Mr. Scala stated that they do use lighting.

Mr. Dodson asked if it will cause hazard or annoyance to the public generally or to the occupants of the adjacent property.

Mr. Scala stated no.

Mr. Dodson asked if they have trash receptacles.

Mr. Scala stated yes, and they are screened.

Mr. Dodson stated that the 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 there is no off site runoff.

Section 431.6W.
Mr. Dodson stated that section one is basically a definition of what they are doing, section two refers to residential areas, and section three applies to business areas.  Section four refers to all mining operation and related activities shall be located a minimum of 50 ft. from any property in an industrial district no owned or controlled by the operator.

Mr. Scala state yes.

Mr. Dodson stated that it shall be 100 yards from any property in a B-1, B-2, B-3, C-P, or PBRD district not owned or controlled by the operator.

Mr. Scala stated that all the adjoining property is industrial.

Mr. Dodson stated the item 4C & D doesn’t apply.

Mr. Dodson stated that reclamation is required within one year from expiration date of a conditional use certificate or the abandonment of the operation.

Mr. Scala stated that the operation is ongoing.

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

Mr. Scala stated this is an ongoing operation and they supply the township with evidence of the permit.

Mr. Dodson stated that a copy of the State application, as approved by the Division of Reclamation subsequent to the issuance of a Jackson Township Surface Mining or Strip Mining Certificate shall be presented to the Jackson Township Zoning Department within ten days of approval by the Division of Reclamation.  Mr. Dodson stated that he thinks if they aren’t actually reclaiming it he doesn’t think they need the certificate.

Mr. Scala stated that they do submit evidence on an annual basis with their permit renewal.

Mr. Dodson stated that truck routes shall be established for movement into and out of the development in such a way that it will minimize the wear on public streets and prevent hazards and damage to other properties in the community.

Mr. Scala stated yes.

Mr. Dodson 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 access road is hard surfaced.

Mr. Dodson 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 yes.

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

Mr. Scala stated yes.

Mr. Dodson 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 yes.

Mr. Dodson stated that the storage of minerals, peat, or coal from other surface mined or strip mined operations shall be permitted only on sites in industrial district.

Mr. Scala stated yes.

Mr. Dodson stated that this concluded the criteria for the conditional use permit.

Mr. Scala stated that he doesn’t believe the zoning book Mr. Dodson is reading out of is applicable to this permit.  They would need to go back to the zoning book effective at the time the original application, 1992, was permitted.  Some of them may be the same but he doesn’t believe the current book applies to the application.  Once an application is filed it is always protected by the existing rights of the book in place at the time of the application.

Mr. McDonnell stated that Mr. Scala may be right.

Ms. Poindexter stated that the conditions that are in the file are the conditions that apply.

Mr. McDonnell stated that the board reviews the conditions for the record so everyone knows the board is aware of the conditions.

Mr. McDonnell stated that Mr. Scala had mentioned that there were a couple of things that he wanted to the board to be aware of regarding the conditions.

Mr. Scala stated that there is a set of ten conditions with the permit from appeal #1633.  He wanted to point out that one of the items refer to haul roads.  In item three where it says haul roads shall be hard surfaced, they have hundreds of miles of haul roads on the property and the main haul road that is the access in and out of the property is hard surfaced and is washed and then the water trucks are used on an ongoing basis as needed for dust control.  Mr. Scala stated that he didn’t want anyone to presume that every road within the 300 acres is asphalt.  It is just not feasible.

Mr. Scala stated that the other thing in the conditions as discussed before with some of the other permit renewals is regarding the hours of operation; not really the hours but the days of operation, specifically legal holidays.  Mr. Scala stated that if they look back at the last couple of permits, they have taken that out because it is really not permissible to deny them use of any of those days.

Mr. Scala stated that he would request that the permit, and he believes the last three permits on this site have had a ten year limit.  Mr. Scala stated with the changes in the zoning code an open ended permit may be issued, but he believes the board, Mr. McDonnell, chose to go to ten years.  Mr. Scala stated that it has always been his intention, and it is very hard for any business person to make the type of millions of dollars in investments that they have to make for these types of operations, it is very difficult and he doesn’t believe a developer would build a building if he was told that he only had a permit for four or five years.

Mr. Scala stated that he is currently bidding State of Ohio projects for ODOT that has a three year life time extensions.  If he has a permit renewal up in two years he doesn’t know how to bid that project and compete for that project.  Mr. Scala stated that it has always been his opinion that if the board chooses to layout ten restrictions or twenty seven recommendations, if in fact they are reviewed annually by the township and found to be in compliance with those then why would the permit ever expire.  If there is a violation and they don’t correct it the board would have full authority to call someone back in and have a revocation of the permit.  Mr. Scala asked how do they continue to have an operation that has a possible ending.  He thinks this is where the trustees were heading when they took out the five year term limitation.

Mr. McDonnell asked if Mr. Scala wanted to remove item four.

Mr. Scala stated it says evening hours shall be permitted provided the applicant has notified the zoning inspector in writing of its intentions and length of time it proposes to mine in the evening.  Annually he sends a letter to the township saying from now until the end of the construction seasons they are going to run 24 hours a day six days a week as needed.  Mr. Scala stated that legal holidays is where his problem is.  There are a lot of legal holidays that some of the limited operations such as his that have a limited construction season, and it is very hard for them to take off all the legal holidays.  That’s why he brings up the point that he is not sure the board even has the authority to limit those days of operation.

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

Mr. McDonnell stated with regards to the hours of operation, he doesn’t remember what happened with the last couple of permits.  As reading through section 431.6W(2) he notes that when talking about the hours of operation on Sundays and Holidays it indicates the R-R, R-1, R-1A, R-2, R-3, residential PUD, R-4, R-5, and R-6PUD but does not list industrial.  When getting into subsection three, it lists B-1, B-2, B-3, PBRD, and C-P as where the hours of operation on Sundays and Holidays are prohibited and working hours are subject to the board of appeals.  Those are the only sections he sees that deal with the hours of operation.  Mr. McDonnell stated that it appears to him that the board may not have the authority to regulate the hours of operation at least in an I-1 area.

Mr. Juergensen asked if this is the same provision as the previous appeal.

Mr. McDonnell stated that he did not know.  It is his thought that typically if someone has met the conditions they give them the benefit that if there is a less restrictive condition then they can take advantage of that condition, so there may be a rational to remove item four in the conditions because no one else would have to meet the condition if coming in with a new request.

Mr. Scala stated that he believes when they get involved with grandfathering, as in this case, if they are grandfathered in on previous regulations and a lesser regulation comes along they automatically get the lesser of the two.  If something more restrictive comes along they are preserved by grandfathering, but the lesser regulation is always applied to the previous grandfather cases.

Ms. Poindexter stated that Mr. Scala is correct.

Mr. McDonnell stated that another situation Mr. Scala talked about, he knows in 1995 that that longest period of time a conditional use permit could be granted was five years.  Somewhere between 1995 and 2000 the trustees removed that restriction and gave the board the authority to grant the CUP for an indefinite amount of time or any time in between.  Mr. McDonnell stated that he thinks the board could not grant it for less than five years, but it didn’t have to go forever.

Mr. Juergensen asked if the restriction is totally removed.

Mr. McDonnell stated that the original restriction used to speak specifically to the fact that the board could grant a conditional use permit for a period no greater than five years, but now the board has the authority to grant the conditional use permit for whenever.

Mr. Juergensen stated so if the CUP is just granted, then it is in perpetuity.

Mr. McDonnell stated yes, unless the board puts a condition on it which they have the authority to do.

Mr. Giulitto stated regarding limiting the hours of operation, they have done that before on certain cases where they may have said that they wanted someone to be closed at a certain time commercially but not in the gravel business.  He doesn’t have a problem with saying “X” number of years.  This is fine with him because he thinks they are busy enough as it is with the different requests that they have.  If the applicant does something wrong there are inspector that are going to out and tell them that they are not complying with certain rules and they will have to come back to the board.  He thinks otherwise it is a waste of time to keep having them come back to the board.

Mr. Oldroyd stated if they are going to put a year limit on the permit then he thinks they would need a valid reason to do so.

Mr. Juergensen stated that he thinks Mr. Scala made a compelling argument.  This is the type of industry that has a very high barrier of entry and he thinks they would like the security of knowing that they are going to stay in business for a while.  If the business does something wrong there is the ability to shut it down, so he wouldn’t be in favor of putting a restriction on it.

Mr. Juergensen stated regarding the hours of operation, he would feel more comfortable in getting a definitive answer as far as what the resolution said back then.  If they are comfortable with the fact that this is less restrictive then what they had back then, then he would be okay with it.

Mr. Dodson stated that he has never heard of a complaint regarding American Sand & Gravel.  He’s going to refer the board as white hats and if the property is sold to guys in black hats and there was a violation of some sort, then if the use is granted unlimited and it isn’t up for review then the burden is put on Jackson Township to establish a violation of the conditional use permit.  If it gets reviewed periodically, even if it’s ten years, he thinks it’s a good thing.  Regarding the hours of operation, he doesn’t think they should be restricted as far as days, hours, and holidays.

Mr. Juergensen asked if a restriction could be put on the CUP if the property is sold.

Mr. Dodson stated that he didn’t think so because it runs with the land.

Mr. McDonnell stated that he is not sure.  They can put conditions on almost anything they want and they did put a restriction on a guy parking his truck in a residential area.  They put a restriction on it that it was good for 10 years or as long as the individual lived there.  It did not go with the property.

Mr. Juergensen asked if they could give them a permit for 10 years or as long as they own the property, which ever is longer.

Mr. McDonnell stated that he didn’t see a reason why they couldn’t put in a condition that the permit is in effect while it is owned by American Sand & Gravel.

Mr. Juergensen stated that is why he said if you word it for ten years or as long as American Sand & Gravel owns it.  If they sell it before the ten years then it is subject to review.

Mr. Dodson stated that they don’t own it, they are leasing the property.

Mr. Scala stated that he appreciates the comments of the board.  They do a lot of landscaping at their entrance ways and have nice flagpoles and signs.  They have spent a great deal of effort in building earth and mounds around the site and you can’t see in from Forty Corners and Riverside Rd.  The only place you can see in is along Oster Sand & Gravels line where they cut the new road in and removed their mounds and didn’t put them back up.  Mr. Scala stated that his record speaks for itself as far as the size and volume of their operation and the lack of complaints.  Whether he is there today or “XYZ” buys it tomorrow morning the point still goes back to the conditions.  Mr. Scala stated that the board has the authority to call them in at anytime to either correct any problems or being a renovation hearing.

Mr. Juergensen stated that he thinks Mr. Dodson’s point was that right now Mr. Scala has to come back before the board and has the burden of meeting the criteria.  If there is no process of review then the township has to meet the burden of showing there is a violation.

Mr. Juergensen asked how long the lease is for.

Mr. Scala stated that he believes it was 25 years and there were some extensions with that.

Mr. Juergensen asked if they have at least 15 years left.

Mr. Scala stated that he is not positive because there are two different lease agreements.

Mr. Juergensen stated that the board could grant it for 15 years.

Mr. Oldroyd asked how much longer Mr. Scala thought he would be able to pull gravel out of the location.
Mr. Scala stated that depended on the owner of the property.

There were no further comments and the board closed to public input.
Mr. McDonnell stated that he doesn’t think the question is if they are going to allow the CUP.  The question is are they going to include the conditions that currently exist for the conditional use permit, which do include the hours of operation clause or are they going to eliminate that requirement.  Mr. McDonnell stated that he is under the opinion that they don’t have the authority to mandate a requirement that is no longer a requirement of anyone else in a similar and same situation.

Mr. McDonnell asked Ms. Poindexter if she had an opinion on that.

Ms. Poindexter stated that she agrees if a less restrictive condition is adopted the applicant gets the lesser restriction.

Mr. McDonnell asked if it is correct that the applicant automatically gets that benefit.

Ms. Poindexter stated yes.

Mr. McDonnell stated that the second item is the length of the permit.  If approved with no limit then the permit is in perpetuity.

Mr. Oldroyd stated he thinks this is a proven business and he doesn’t see any reason to put any restrictions on it.

Mr. Juergensen stated that he doesn’t think they have anything to fear from American Sand & Gravel, it’s somebody else.

Mr. McDonnell stated that the permit goes with the property, not the operator.

Mr. McDonnell asked for a motion on the floor and if someone wanted to amend it then they could vote to amend the motion.

Mr. Juergensen made a motion to approve appeal #1952.

Mr. McDonnell seconded the motion to amend it to delete item #4 from the requirements of the conditional use, specifically deleting “Operations on Sundays and legal Holidays recognized by the State of Ohio shall be prohibited.  Evening hours shall be permitted provided the applicant has notified the zoning inspector in writing of its intentions and the length of time it proposes to mine”.

Mr. Dodson seconded the motion.

Mr. McDonnell asked if there was any discussion.

Mr. Dodson stated that he would like to amend the motion that the conditional use permit be for a period of ten years.

Mr. McDonnell asked that the board vote on the first amendment and then they could talk about the second amendment.  Now there is an amendment on the table that has been offered and seconded.  Mr. McDonnell asked for role call on the amendment to delete requirement #4.

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

Mr. McDonnell stated now the motion is to approve the renewal of the conditional use permit eliminating the requirement number four, which is the hours of operation.  Mr. McDonnell asked if there was any discussion on the motion.

Mr. Dodson made a motion that they renew the conditional use permit for a period of ten years.

Mr. Juergensen seconded the motion for discussion.

Mr. Juergensen stated that he thinks ten is too few years.  He is satisfied that they are going to be there at least another 15 years.  He would be more inclined to grant something for 10 years or as long as American Sand & Gravel continues to lease the property, whichever is longer.  That way if they renew their lease for another 50 years they don’t have to come back to the board.

Mr. McDonnell asked what if someone bought American Sand & Gravel.

Mr. Giulitto stated that a good point was brought up about Jackson Township in general.  If you look at a map 20 years ago and a map now, homes are diverting on that property and it’s only a matter of time before the community says they are tired on that.  If there is a time limit Mr. Scala will face heat and this is where it will be when being reviewed and it isn’t American Sand & Gravel’s faulty the community grew around him.

Mr. Juergensen stated this is why he was saying as long as American Sand & Gravel leases it or ten years, whichever is longer.

Mr. Oldroyd stated that there is no way the board can plan for everything.

Mr. McDonnell stated that if they start putting all these different conditions upon conditions they are going to be in a world of hurt because someone is going to find a way to get around it.  Mr. McDonnell stated if they are going to put a time limit on it then they should do it straight up.  If they just pass it then they should do that.

Mr. McDonnell stated an interesting point was brought up about people coming in and saying they don’t want it anymore.  That may happen and the board at that time may not be nearly as wise as they are.  Mr. McDonnell stated that there are several items that are permitted in the I-1 district without going before the board, which included factories.  Mr. McDonnell stated that he is inclined to approve the appeal, but they have an amendment on the floor for ten years so he would like to vote on the amendment to restrict the CUP for ten years.

Mr. Giulitto asked if they vote on it and hypothetically it goes down then what.

Mr. McDonnell stated then the motion before the board is to approve the CUP with deleting item #4.

The vote was: Mr. Dodson-yes, Mr. Giulitto-no, Mr. Juergensen-no, Mr. Oldroyd-no, and Mr. McDonnell-no.

Mr. McDonnell stated that the motion is now to approve the conditional use permit and eliminate condition #4 from the original conditions.

Mr. Giulitto seconded the motion.

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

Mr. McDonnell stated that he conditional use permit has been approved for an indefinite amount of time and the restriction on hours of operation no longer apply.
Mr. Juergensen made a motion to adjourn the meeting.

Mr. Giulitto seconded the motion.

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

Respectfully submitted,

Joni Poindexter
Zoning Inspector