Members present:
Ted Deremer
Edward McDonnell
Richard Dodson
John Juergensen
Alternate member:
Eric Oldroyd
Absent Member:
Jim Giulitto
Zoning Inspector:
Joni Poindexter
Zoning Date Coordinator:
Andrea Paumier
Appeal 2077 – The Irish Exchange Restaurant, 8009 Hills & Dales Rd. NW, Massillon, OH 44646, agent for Eastin Wales Co. LLC, 6946 Chippewa Ave., N. Canton, OH 44720, property owner, requesting a variance for a one (1) ft. west side yard setback where sixteen (16) ft. is required per Art. IV Sect. 411.5 of the zoning resolution. Property located at: 8009 Hills & Dales Rd. NW, Sect. 33SW. Jackson Twp., zoned B-3
Mr. Deremer read the application and contents of the file.
Mr. Deremer swore in Deborah Busby, 6946 Chippewa Ave. NW, N. Canton, OH 44720.
Ms. Busby stated that The Irish Exchanges would like to construct an awning over the existing patio. The awning would be twenty- five (25) feet wide and sixteen (16) feet in depth, which would cover a portion of the patio not the entire patio. The Irish Exchange would like to place a couple TV’s out on the patio and to also for the smokers who would be able to use the patio in the winter and wont get wet.
Ms. Busby stated that she brought a few pictures of the patio to give the Board members a better idea of where The Irish Exchange is currently at with the patio.
Mr. Deremer marked the picture of the existing patio as exhibit 1.
Mr. Deremer asked how long the area shown in exhibit 1 has been used as a patio.
Ms. Busby stated for about one (1) month. The patio has been installed over the last thirty (30) days.
Mr. Deremer asked if the awning was sixteen (16) feet wide.
Ms Busby stated that the awning is sixteen (16) feet in depth and twenty-five (25) feet wide. The depth of the awning is where the problem arises with Zoning.
Mr. Deremer stated that one sketch provided by the applicant shows a fourteen (14) foot, ten (10) inch dimension.
Ms. Busby stated that The Irish Exchange would like the awning to just go over the fence surrounding the patio, that way the rain will stay on the outside of the fence as opposed to sitting inside the fenced in area.
Mr. Juergensen asked if the patio is on the west side of the building.
Ms. Busby stated yes.
Mr. Juergensen asked what is directly to the west, beyond the fence.
Ms. Busby stated that is Friendly’s parking lot. The grass area shown in exhibit 1 is what separates The Irish Exchange patio from Friendly’s parking lot.
Ms. Busby stated that Eastlin Wales, the owner of The Irish Exchange, pays rent to Friendly’s to use a portion of their parking lot because The Irish Exchange and the other businesses in the shopping complex require more parking.
Ms. Busby stated that her application stated that the awning material is vinyl, The Irish Exchange would like a more permanent structure. She asked if the material would be able to be changed.
Ms. Poindexter stated that another permit would need to be issued. The variance request pertains to the setbacks not the material the awning would be made out of.
Mr. McDonnell asked if the awning proposed has support beams.
Ms. Busby stated that the awning would have steel supports attached to the awning and the ground in order to support the weight of snow in the winter.
Mr. McDonnell asked if he were correct in saying that the one (1) foot setback pertains to the edge of the awning.
Ms. Busby stated that was correct.
Mr. McDonnell stated that he noticed from the pictures that the fence surrounding the patio is already constructed. Mr. McDonnell asked of the patio was made of concrete.
Ms. Busby stated yes the patio is part of the parking lot.
Mr. McDonnell asked where the fence is in relations to the property lines.
Ms. Busby stated the fence is not at sixteen (16) feet. The fence is at fifteen (15) feet and some inches.
Mr. McDonnell asked if The Irish Exchange received a variance for the fence.
Ms. Busby stated that she was told she did not need a variance for the fence. Ms. Busby stated that she was told she only needs a variance for the awning when she stopped into the office of the Zoning department in February of this year.
Ms. Poindexter stated that a fence can
be constructed right up to the property line.
Mr. McDonnell asked Ms. Poindexter where
in the regulations does it state the fence may be constructed on the property
line.
Ms. Poindexter stated is section 411.10.
Mr. Juergensen asked Ms. Poindexter if The Irish Exchange would need a variance for the cement patio.
Ms. Poindexter stated that they would not need a variance for the cement. If The Irish Exchange were to place a wooden deck over the cement, then they would have to have a variance.
No one else spoke in favor for the appeal.
No one else spoke in opposition for the appeal.
Mr. Deremer closed the appeal to public input.
Mr. Juergensen stated that he does not have a problem approving the appeal. He believes that the patio is far enough from Friendly’s and the parking lot.
Mr. Oldroyd stated he does not have a problem with approving the appeal. The patio would be a positive addition to the area.
Mr. Juergensen made the motion to approve appeal no. 2077.
Mr. Dodson seconded the motion.
The vote was: Mr. Oldroyd – Yes, Mr. Juergensen – Yes, Mr. Dodson – Yes, Mr. McDonnell – Yes, and Mr. Deremer – Yes.
Appeal 2078 – Phil and Nick Agoustinos, 5468 Fulton Rd., NW, Canton, OH 44718, property owners, requests a variance for a fifteen (15) ft. front yard setback where fifty (50) ft. is required per Art. IV, Sect. 411.5 of the zoning resolution. Property located at: 5468 Fulton Rd. Sect. 23SE, Jackson Twp. Zoned B-3.
Mr. Deremer read the application and the contents of the file.
Mr. Deremer swore in Nick Agoustinos, 5522 Gross Ave. Canton, OH 44721, and Steve Kochovski 5150 Foxchase Ave. Canton, OH 44718.
Mr. Kochovski stated that Phil’s Bistro is proposing a fifteen (15) foot setback where fifty (50) feet is required. Phil’s Bistro would like to construct an awning over the existing patio to accommodate with the smokers and be able to have customers dine outside and be protected from the rain.
Mr. Deremer asked if the awning would be a permanent structure.
Mr. Kochovski stated yes, that the awning would be attached to the building with trusses and shingles.
Mr. Deremer asked if the actual right of way of the road fifteen (15) feet away now, is it that close since Fulton has been widened.
Mr. Kochovski stated that once they finish the road its much closer then what is shown in the picture.
Mr. Deremer stated that Fulton is considered an eighty (80) foot road right of way because of future widening.
Mr. McDonnell asked how long the existing patio has been there.
Mr. Agoustinos stated the patio has been there for about ten (10) years. We have just recently made updates to the patio and fence.
Mr. McDonnell asked how long the fence has been there.
Mr. Agoustinos stated for about ten (10) years.
Mr. McDonnell stated that in the site plan the patio does not appear to be as close to the road as the building is.
Mr. Agoustinos stated that is correct.
No one else spoke in favor for the appeal.
No one else spoke in opposition for the appeal.
Mr. McDonnell asked Ms. Poindexter if he was correct in saying that they did not need a variance for the fence, the awning is what needs a variance.
Ms. Poindexter stated yes.
Mr. Deremer closed the appeal to public input.
Mr. Dodson stated that this is an existing patio and fence and the dimensions are not changing, he stated that has no problem approving this request.
Mr. McDonnell stated that he concurs with Mr. Dodson, the patio and fence has been there for ten (10) years, both meet the regulations and the roof would meet the regulations except for the road widening of Fulton.
Mr. McDonnell made the motion to approve Appeal no. 2078
Mr. Juergensen seconded the motion.
The vote was: Mr. Oldroyd – Yes, Mr. Juergensen – Yes, Mr. Dodson – Yes, Mr. McDonnell – Yes, and Mr. Deremer – Yes.
Appeal 2079 – Mann Architects, 3660 Embassy Parkway, Akron, OH 44333, agent for LDV Properties, LLC, 3656 Dressler NW, Canton, OH 44718, property owner, requesting a variance for 84 parking spaces where 178 parking spaces are required per Art. IV Sect. 601.1 of the zoning resolution. Property located at: 3656 Dressler NW, Sect. 25SE, Jackson Twp. Zoned B-3.
Mr. Deremer read the application and the contents of the file.
Mr. Deremer swore in Jared Dickey – business address, 3660 Embassy Parkway, Akron, OH 44333.
Mr. Dickey stated that currently La Pizzaria is a banquet facility and restaurant. Sixty (60) percent is devoted solely to banquet seating, which usually only occurs only on the weekends, after hours of which the other full access agreement would provide an entire parking lot for the required number of spaces. The tenant would like to add on to the existing building to expand their business to embrace wedding parties and larger events on the weekends. If you notice as provided on the plan, the shaded area represents the number of tables they wish to add. These are special event which are only held on the weekends and after hours. The restaurant portion that does serve food during the day is roughly thirty (30) percent of the area and is about four to five thousand (4,000 to 5,000) square feet.
Mr. Deremer stated that because of the proposed expansion of the building which loses those parking spaces in the process.
Mr. Dickey stated yes.
Mr. Deremer asked if Mr. Dickey agrees with the calculation of the parking spaces that the Zoning Inspector has put together.
Mr. Dickey stated he disagrees with the method but does not disagree with the math.
Mr. Deremer asked how the Board should address the variances being requested as for the under required parking spaces.
Mr. Dickey stated that the requirement allows La Pizzaria only to use nine (9) spaces of the medical building. Which during the day time hours of 9AM-5PM, when the restaurant portion only is being used, parking is adequate to sustain the amount of people that are in the restaurant and bar portion of La Pizzaria. The banquet area is never used during the day time hours, and if it were, it would be used for meeting purposes only not for food. Even that, this would be something that occurs after 5PM. Parking is available between the two buildings, enough to support that function, which occurs on the weekends when the office building next door is not in use.
Mr. Deremer asked if there has always been adequate space with this cross agreement.
Mr. Dickey stated that the owner has never had a problem.
Mr. Deremer asked roughly how many seats are in the expansion.
Mr. Dickey stated 140 to 150.
Mr. McDonnell asked what the hours of operation for La Pizzaria.
Mr. Dickey stated he believes 10 or 11AM to 10PM, with the banquet available to be rented until 11PM – 12AM.
Mr. McDonnell asked what is Tri County.
Mr. Dickey stated that he believes that Tri County is a medical office building.
Mr. McDonnell asked what Tri Counties hours of operation were.
Mr. Dickey stated he believes they are a 9AM to 5PM facility.
Mr. McDonnell asked if he knew for a fact what the hours were.
Mr. Dickey stated he can not say for sure, that he has not spoken with Tri County directly.
Mr. McDonnell asked if the easement being referred to be in writing, what the term of it is and how long is it for.
Mr. Dickey stated the easement is indefinitely. The terms of the easement were as long as good standing and consideration are addresses between both parties the agreement stands.
Mr. McDonnell asked what the termination clause if the easement is.
Mr. Dickey stated he is unsure.
Mr. McDonnell asked what is to keep the owner of La Pizzaria from renting the banquet for large business meetings during office hours of Tri County.
Mr. Dickey stated that the owner would not because of the parking. There would not be enough to accommodate the party. The owner is fully aware that he can not over extend his facility beyond the amount of parking that he has. The owner does not with to hurt his business or clientele in any way.
Mr. McDonnell asked how the Board is supposed to know what the owner understands. Mr. McDonnell asked if Mr. Dickey can speak and commit for the owner.
Mr. Dickey stated that he can commit for the owner but he can not prove to the Board that the owner will continue unless the township wishes to bind the owner with some sort of contract. Mr. Dickey stated he can not say for sure the owner will not use it.
Mr. McDonnell stated that he has a problem with this variance due to the fact that the owner is not present. The Board is being asked to accept a commitment being presented by the architect. Mr. McDonnell believes the owner should be present to make the commitment; he would like the owner to be present to commit to any restrictions, if the Board chooses, and understand fully.
Mr. Juergensen stated that he concurs with Mr. McDonnell he believes the owner should be present.
Mr. Deremer asked for the previous appeal case which would have the parking easement.
Ms. Poindexter stated that she does not have that case but can retrieve it from her office.
Mr. Deremer attached the file with the original parking easement, Appeal no. 1888 which addressed a similar cross access agreement in 2003.
Mr. Deremer asked if Mr. Dickey has seen the current cross access agreement, you just did not bring documentation with you to tonight’s hearing.
Mr. Dickey stated yes he has seen the agreement, and that he provided a signed copy if the agreement upon submission of the application.
Mr. Deremer stated that the file provided
tonight does not have the easement.
Ms. Poindexter stated that she has an
agreement dated August 29, 2005 in the hard file.
Mr. Deremer stated that they have been using this agreement since the two properties were joined in 2004 based on Appeal 1888.
Mr. Juergensen asked if that was what gave La Pizzaria to the additional 9 spaces.
Mr. Dickey stated the 9 spaces during business hours of the Tri County. When Tri County closes at 5PM the parking lot is empty which opens up all the spaces to La Pizzaria.
Mr. Juergensen asked why La Pizzaria is picking 84 spaces for the variance.
Mr. Deremer stated that 84 parking spaces are based off of the Zoning Inspector’s calculation.
Ms. Poindexter stated that La Pizzaria has 75 spaces on their property plus the 9 from Tri County gives them the 84 parking spaces.
Mr. McDonnell stated his apologies to Mr. Dickey regarding the easement agreement.
No one spoke in favor of the appeal.
No one spoke in opposition of the appeal.
Mr. Deremer made a motion to combine Appeal file no. 1888 to Appeal no. 2079.
Mr. McDonnell seconded the motion.
The vote was: Mr. Oldroyd – Yes, Mr. Juergensen – Yes, Mr. Dodson – Yes, Mr. McDonnell – Yes, and Mr. Deremer – Yes.
Mr. Deremer closed appeal no. 2079 to public input.
Mr. Deremer stated that the requested variance for 84 parking spaces, 178 parking spaces is needed for the size of the facility, existing and addition. They have an agreement to us the adjacent property which becomes available to them at 5PM. There are 276 spaces available between both properties, which are more then enough for the size of the building that is being built. Despite the parking they will be loosing do to the addition, they still have adequate parking from the adjacent property. Based on that information Mr. Deremer votes to approve with the continuance of the parking agreement.
Mr. Juergensen stated that he disagrees. Only twenty (20) percent of the required parking is being met. Mr. Juergensen understands that the nature of the business is the banquets and receptions being mostly on weekends or in the evenings, but there is nothing stopping the owner of La Pizzaria of having a large reception in the middle of the day. With the owner not being present to ask and get some assurance on the matter he has a problem approving this appeal at this time.
Mr. McDonnell stated he agrees with both statements from Mr. Deremer and Mr. Juergensen. The parking agreement appears like it is a covenant that runs with the land as opposed to the property owners, but the Board can not enforce a covenant. This is a local business owner who is trying to expand his business but does not have enough parking spaces. There was not evidence present to the Board of Tri Counties hours of operation. We do not have a commitment from the owner of La Pizzaria that he is going to adhere to those hours of operation. Without further commitments from the property owner or someone who can represent the property owner, he has a problem approving this appeal at this time.
Mr. Deremer stated that within the easement the Township has on file, it does state in paragraph six that it is a covenant with the land.
Mr. McDonnell stated that the questions being raised about Appeal 2079 is not just about the easement but also the hours of operation of Tri County. We do not have documentation of those hours. If the owner of La Pizzaria were present, these questions could be answered.
Mr. Deremer asked Mr. Dickey if he would like to Board members to vote on this Appeal based on the testimony heard this evening or rather schedule a continuance in order for the property owner to be present.
Mr. Dickey stated he would like a continuance.
Ms. Poindexter stated that the next available meeting date is August 9th at 7:45PM.
Mr. Deremer made the motion to continue Appeal 2079 until August 9th, 2007 at 7:45PM.
Mr. McDonnell seconded the motion.
The vote was: Mr. Oldroyd – Yes, Mr. Juergensen – No, Mr. Dodson – No, Mr. McDonnell – Yes, and Mr. Deremer – Yes
Appeal 2080 – David L. Patton, 4605 18th St. NW, Canton, OH 44708, property owner, is requesting a variance for a 3 ft. setback from the west property line where 50 ft. is required per Art. III, Sect. 302.6 (A) of the zoning resolution, for an animal shelter. Property located at 4605 18th St. NW, Sect. 36SE, Jackson Twp., zoned R-1A.
Mr. Deremer read the application and the contents of the file.
Mr. Deremer swore in David L. Patton, 4605 18th St., NW, Canton, OH 44708
Mr. Patton stated that during routine zoning inspection, the Zoning Investigator Ron Revlock had noticed the goats within the shelter on my property, then soon after received a letter on the mail regarding the zoning violation. Prior to getting the goats and building the shelter, Ms. Patton had called the Zoning office to find out regulations on having goats in a residential area. The person Ms. Patton spoke with had mentioned something about a fifty (50) foot setback for free grazing animals. Ms. Patton explained that the goats were going to be pets. Ms. Patton stated to the Zoning office that they were not to be breed either. Ms. Patton was then told that there are not any limitations regarding pets. After the conversation with the Zoning office the Mr. Patton then built a small shelter, which is approximately eighty (80) sq.ft. The shelter is currently located three (3) feet from the property line. These goats are not agricultural. The Zoning department classifies the goats as agricultural animals but just as dogs have different breeds, these are Pygmy goats. Pygmy goats were brought to this country for zoos and research. Pygmy goats are not used for agricultural purposes. If someone were to milk goats, they would not get a Pygmy and if someone were to use the meat from a goat they would not get a Pygmy goat. It states in the Zoning Resolution that anything other than a common household pet, which is listed as a dog or cat. Any animal which is good natured should be considered a pet. A pet is something you get for your enjoyment not for economic purpose.
Mr. Deremer asked if there was another position on this property that would not be in violation of zoning.
Mr. Patton stated no, not to meet the fifty (50) foot setback. That would place the shelter in the middle of the property and directly over the septic lines.
Mr. Deremer asked if he was correct in saying that if the septic lines were not there, the shelter could meet the setback.
Mr. Patton stated that is correct.
Mr. Juergensen asked Ms. Poindexter where in the Zoning Resolution book it states the definition of agricultural animals.
Ms. Poindexter stated on page thirty (30) section 302.6 (D).
Mr. McDonnell asked what the floor dimensions of the shelter are.
Mr. Patton stated that he did not know the exact dimensions, but one section is 4’ X 8’, with an attached section which is roughly 3 ½ feet high and 3 X 8. Roughly 32’ X 24’ combined.
Mr. McDonnell asked if the shelter could be placed in the middle of the property using the smaller dimensions of the existing shelter.
Mr. Patton stated that was correct except the shelter would be directly on top of the septic lines. The zoning investigator noticed a neighbor had their dog and dog house located directly over their septic lines and was told it must be moved.
Mr. Deremer asked if there is a place the shelter could be located on the property without being over the septic lines.
Mr. Patton stated that the shelter may be able to be moved over a couple of feet from the current position.
Mr. Deremer asked if anyone in the audience would like to speak in favor of the Appeal.
Mr. Deremer swore in Glen Anderson, 1806 Manor Ave. NW, Canton, OH 44708.
Mr. Anderson stated that the goats are in fact pets. Mr. Patton has six children who walk the goats as you would a dog. The shelter and fenced in area is kept clean as well as the goats. There are no smells from the goats. We live in a valley, so noise carries. Other neighbors have dogs and I would rather the goats around any day. Mr. Patton would not be able to move the shelter over to the east side of the property due to a twenty-five (25) foot easement for an adjacent drive way which is for Mr. Anderson and two other home owners.
Mr. Deremer swore in Ms. Patton, 4605 18th St. NW, Canton, OH 44708.
Ms. Patton stated that the shelter is in good condition and well built. Mr. Patton and the six children built the shelter together and it would be heart breaking to see taken down. Ms. Patton stated that she measured for the fifty foot setback upon receiving the zoning violation letter and unless the goats only had a five foot area to run, moving the shelter and fencing would not be feasible. The children do walk to goats, but they need an area to run and exercise as well.
Mr. Juergensen asked if a business is located on the property.
Mr. Patton stated no, it is their home. Her husband does park his work truck on the property.
Mr. Deremer asked if anyone in the audience wanted to speak in opposition of the Appeal.
No one else spoke.
Mr. Deremer closed the Appeal to public input.
Mr. Dodson stated that the last sentence of the definition of Agriculture on page nine on the Zoning Resolution states, a use shall be classified as agriculture only if agriculture is the principal or main use of the land. I do not see an agricultural use on this property.
Mr. Juergensen stated he concurs with Mr. Dodson.
Mr. McDonnell stated he as well concurs with Mr. Dodson. The applicant has demonstrated practical difficulties as far as meeting the fifty foot setback requirement. With a lack of complaint from the adjoining property owners, he has no problem approving this Appeal.
Mr. Juergensen made the motion to approve Appeal 2080.
Mr. Dodson seconded the motion.
The vote was: Mr. Oldroyd – Yes, Mr. Juergensen – Yes, Mr. Dodson – Yes, Mr. McDonnell – Yes, and Mr. Deremer – Yes.
Minutes to be approved: April 26th, 2007; May 24th, 2007; June 14th, 2007
Mr. McDonnell made the motion to approve meeting minutes from April, 26th, 2007
Mr. Juergensen seconded the motion.
The vote was: Mr. Juergensen – Yes, Mr. Dodson – Yes, and Mr. McDonnell – Yes.
Mr. Dodson made the motion to approve meeting minutes from May 24th, 2007.
Mr. Oldroyd seconded the motion.
The vote was: Mr. Oldroyd – Yes, Mr. Dodson – Yes, and Mr. Deremer – Yes.
Mr. Juergensen made motion to approve meeting minutes from June 14th, 2007.
Mr. McDonnell seconded the motion.
All were in favor.
Mr. Juergensen made the motion to adjourn the meeting.
Mr. McDonnell seconded the motion.
All were in favor.
Respectfully Submitted,
Andrea Paumier
Zoning Data Coordinator