Members present:                                                        Ted Deremer
                                                                                        Edward McDonnell
                                                                                        Richard Dodson
                                                                                        John Juergensen
                                                                                        Jim Giulitto
Alternate Member:                                                        Eric Oldroyd

Zoning Inspector:                                                          Joni Poindexter

APPEAL #1981 – Teresa Smith, property owner, 5335 Fulton Dr. NW, Canton, Ohio 44718 requests a variance for an accessory building to be 3 ft. from the principal building where 15 ft. is required per Art. IV Sect. 401.11 of the zoning resolution.  Property located at 5335 Fulton Dr. NW, Sect.23SE Jackson Twp.  Area zoned R-1.

Mr. Deremer read the file application signed by Teresa Smith with reasons being as stated by the applicant, “The property is undulating.”  The file contained a tax map of the property in question, a rendering of the accessory building, a site plan showing the proposed location of the accessory building, and exhibits one through eight which consisted of eight photos.

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

Mr. Deremer swore in Jack Thompson and Teresa Smith, 5335 Fulton Dr. NW.

Mr. Thompson stated that the back yard is very hilly.  In order to put a shed within the setback requirement they would have to do a lot of excavating, but by putting it next to the house they would only have minimal excavating.  Mr. Thompson stated that the shed would be decorated like the house with the same type of roofing material.

Mr. Deremer asked if there is a wooden fence that surrounds the property.

Mr. Thompson stated that there is a four foot chain link fence surrounding the property.

Mr. Giulitto asked if it is Mr. Thompson’s testimony that basically he can’t put the shed anywhere else except in the front yard area and he doesn’t want to put it there.

Mr. Thompson stated yes.  The shed would be for lawn equipment and bikes.

Ms. Smith stated that the house only has a one car garage so they have limited storage.

Mr. Dodson asked if they received approval from Lake Cable.

Mr. Thompson stated that they spoke with Lake Cable and they said they would go with whatever the board decided.

Mr. McDonnell asked what the practical difficulty is.

Mr. Thompson stated that the property is very hilly and explained the photo’s that were in the file.

Mr. McDonnell stated that he wanted to make sure that the applicant was aware that the 15 ft. requirement is for safety purposes and to prevent fire from spreading to other buildings if there were one.

Mr. Thompson and Mrs. Smith stated that they are aware of that.  Mr. Smith stated that the items that would be stored in the shed are currently stored in an attached garage.

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

Mr. Dodson stated that he believes the topography of the land is a practical difficulty.

Mr. McDonnell concurred with Mr. Dodson and stated that he believes a practical difficulty had been demonstrated.

Mr. Dodson made a motion to approve appeal #1981 as requested.

Mr. McDonnell seconded the motion.

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

APPEAL #1982 – Lombardi Development Inc., agent for Laura Lombardi, property owner, 7280 Wren Ave. NW, North Canton, Ohio 44720 requests a variance for a lot frontage of 46.41 ft. where 50 ft. is require to split off lot per Art. IV Sect. 401.5 of the zoning resolution.  Property location is 4.65 acres on Wren Ave., Sect. 11NE Jackson Twp.  Area zoned R-R.

Mr. Deremer read the file application signed by Dominick Lombardi with reasons being as stated by the applicant, “To split the lot from 4.65 acres which will be 100 ft. by 200 ft.  However, the lot will only have 46.41 ft. of street frontage until the road is extended in the future for development, which at such time it will have 100 ft. of road frontage.”  The file contained a tax map of the property in question and two maps showing the proposed lot and how the road would be extended.

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

Mr. Deremer swore in Dominick Lombardi, 7280 Wren Ave. NW.

Mr. Lombardi stated that he is in the process of trying to add two lots on the west side and they are having some problems with the neighbor Dick Kempthorn because of the drainage.  They are having trouble getting Mr. Kempthorn to sign an easement because some of the water drains on his land where there is a lake and Mr. Kempthorn doesn’t want any dirty water going into the lake.

Mr. Lombardi stated that the main purpose of the split is to generate some cash so they can finish the road.  The lot in questions is only 4 ft. short from the minimum street frontage requirement; however, the lot itself will be a 100 x 200 ft. lot.  Once the street is extended the lot would meet the minimum frontage requirement.

Mr. Deremer asked how far the road would be extended.

Mr. Lombardi stated that the circle for the road would be just short of the end of the property.

Mr. McDonnell asked if the new lot would be split from parcel #1626709.

Mr. Lombardi 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. Deremer closed this appeal to public input.

Mr. Dodson stated that he believes the variance is a minimal, but he has trouble finding a practical difficulty.

Mr. Deremer stated that he looks at the variance as being temporary.  There may only be 46.41 ft. of road frontage but the lot is of adequate size being 100 x 200 ft.  Eventually the property will have 100 ft. of frontage once the road is extended so he sees a practical difficulty in that Mr. Lombardi is trying to generate cash so he can finish developing the road.

Mr. Juergensen asked if the board could put a condition on the variance like a time frame for the road to be completed.

Mr. Deremer stated that they can put conditions on a variance.

Mr. McDonnell stated that the applicant is kind of caught in a catch twenty-two.  In order to create the lot they need to extend the road, but in order to extend the road he needs to generate cash, but to generate cash he needs to develop the lot, so they are right back at square one again.  Mr. McDonnell stated that the variance will be a temporary situation and once the road is extended the variance will go away.  Mr. McDonnell stated that he understands Mr. Juergensen’s question, but if they put a time limit on the road being done such as two years and it’s not done in two years what will they do.  The lots already there and maybe a house built.  Mr. McDonnell stated that he considers there to be a practical difficult that in order to do what needs to be done to extend the road the lot needs to be developed.  He also looks at this as a temporary situation and the variance is not substantial.

Mr. Juergensen made a motion to approve appeal #1982 as requested.

Mr. Deremer modified the motion to approve as requested with the understanding that the variance would be eliminated with the extension of the road.

Mr. Juergensen amended the motion to reflect the modification.

Mr. Giulitto seconded the motion.

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

APPEAL #1983 – Guy Snyder, property owner, 7860 Parkford NW, Massillon, Ohio 44646 requests a variance for a 240 sq. ft. roof addition to cover a patio on a 1,200 sq. ft. accessory building for a total of 1,440 sq. ft. where the maximum permitted square footage of an accessory building is 1,200 sq. ft. per Art. IV Sect. 401.12 of the zoning resolution.  Property located at 7860 Parkford NW, Sect. 28SW Jackson Twp.  Area zoned R-1A.

Mr. Deremer read the file application signed by Guy Snyder with reasons being as stated by the applicant, “Cover over patio.”  The file contained a tax map of the property in question and a site plan showing the location of the patio and the accessory building.

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

Mr. Deremer swore in Guy Snyder, 7860 Parkford NW.

Mr. Snyder stated that he cannot have a patio attached to his home because of the way the back of his house is designed, so he would like to have a covered patio attached to his accessory building with the same roof pitch and shingles as the building.  Mr. Snyder stated that he believes the patio would comply with the elements taken into consideration by the board as listed in the information that was given to him with the appeal application.

Mr. Snyder explained what the photos in the file represented.

Mr. McDonnell asked how many post or partitions would be on the patio.

Mr. Snyder stated that there would be three or four.

Mr. McDonnell asked if the patio would be enclosed.

Mr. Snyder stated no.

Mr. Juergensen asked why the building couldn’t be 240 sq. ft. smaller to meet the 1,200 sq. ft. requirement.

Mr. Snyder stated that he would be in the same situation that he is now with not having enough room to store items.

Mr. Juergensen asked how big the property is.

Mr. Snyder stated that it is 135 x 155 ft.

Mr. Deremer asked how far the back of the house is to the rear property line.

Mr. Snyder stated that it is 40 ft. from the proposed walkway to the patio so it is about 85 ft.

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

Mr. McDonnell asked Ms. Poindexter, in reading through section 401.12 as he understands it, if this was a patio without footers and a roof it would not be considered as part of the total square footage for the accessory building.

Ms. Poindexter stated that it would not be considered in the square footage calculations.

Mr. McDonnell asked if the reason the patio is considered part of the building is because it is covered because as he reads it the installation of patios without footers does not require a permit.

Ms. Poindexter stated that a permit is needed because there is a roof attached and the roof is part of the structure.

Mr. Giulitto asked if an awning was added to the building that pops out if it would be considered part of the structure.

Ms. Poindexter stated that a pop out awning, like on a camper, would not be considered as a structure.

Mr. Deremer stated that the roof is a permanent structure.

Mr. Juergensen asked if the fact that it is attached to the house makes it a structure.

Ms. Deremer stated that the roof is attached to the accessory building and is permanent so it makes it part of the structure.

Mr. Deremer asked when the new accessory building was approved.

Ms. Poindexter stated that the permit was issued about one month ago.

Mr. Juergensen asked if the accessory building conforms.

Mr. Deremer stated yes.

Mr. Juergensen asked if the patio would be considered a structure if it didn’t have a roof.

Mr. Deremer stated no.

Mr. Juergensen asked if by simply putting a roof on it makes it a structure.

Mr. Deremer stated that the roof would be permanent and become part of the structure.

Mr. Juergensen asked why the patio isn’t considered a structure.

Mr. Deremer stated because it is a slab of concrete.

Mr. Juergensen stated that the resolution states the definition of a structure is “anything constructed or erected, the use of which requires permanent or temporary location on the ground or attached to something having a permanent or temporary location on the ground” and asked why the patio wouldn’t be considered a structure.

Mr. Dodson stated that Mr. Juergensen is saying if you attach a picnic table to a slab of concrete then it is a structure.

Mr. Deremer stated that the covered part is what the issue is.

Mr. Juergensen asked if the patio is attached to the accessory building.

Mr. Deremer stated yes.

Ms. Poindexter stated a concrete patio can go up to the property line.

Mr. Deremer stated a driveway also can go up to the property line.

Mr. Juergensen stated if it’s attached to a building then it can’t go to the property line.

Mr. Giulitto stated yes it can as long as it doesn’t have a roof on it.

Mr. Juergensen stated what he has a problem with is the patio is attached to the accessory building.  If the patio is not considered a structure then he thinks by simply putting a roof on it then it shouldn’t be considered as part of the structure.

Mr. Giulitto stated that the roof is what makes it part of the structure.

Mr. McDonnell stated that in looking at section 401.12(C)3 it states the installation of patios without footers does not require a permit, which exempts patios from the permit which the permit is for a structure.  Mr. McDonnell stated to him it seems like patios have been specifically excluded from a structure requirement.

Mr. Juergensen asked if the patio had footers would it be considered a structure.

Ms. Poindexter stated yes.

Mr. Deremer stated that a building is any structure or use having a roof or ceiling supported by columns or by walls.
Mr. Juergensen asked what the patio is considered if it doesn’t have a roof or footers.

Mr. Deremer stated that it is a slab of concrete.

Mr. Juergensen stated that meets the definition of an accessory structure.

Mr. Deremer stated no because it is not covered.

Mr. Juergensen stated that it doesn’t say that it has to be covered.  Accessory building says “a subordinate building, structure or use customarily incidental to, and located upon the same lot occupied by the principal building.”  Mr. Juergensen stated that makes the resolution inconsistent and in which case we have to vote in favor of the applicant.

Ms. Poindexter stated that if it has a roof on it then he could enclose it at any time.

Mr. Dodson stated that there would be footers if the patio had a roof or it was enclosed.

Mr. Deremer agreed.

Ms. Poindexter stated that the permit would be issued for the roof as opposed to the patio.

Mr. Deremer stated that is what violates the resolution and why the applicant is before the board.

Mr. Juergensen stated that he understands what the board is saying.  If looking at section 401.12(A)4, where it says the total of all unattached accessory building shall not exceed 1,200 sq. ft., and then if you go to the definition of accessory it is for all three, buildings, structures, or use.  Mr. Juergensen stated that he thinks Mr. Deremer’s point is if you look at the definition of buildings it says any structure or use having a roof.  The patio in and of itself would be an accessory use of the structure but the fact that once the roof is on there it is put under the accessory building.

Mr. Deremer stated that is correct.  If the patio with the roof was attached to the house then there would be no hearing, but the fact that it is attached to the accessory building it is considered a structure because of the roof and exceeding the 1,200 sq. ft.

Mr. Giulitto made a motion to approve appeal #1983 as requested.

Mr. Dodson seconded the motion.

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

APPEAL #1979 – Westfield Corporation Inc., 70 Orchard Center, Suite F70A, Skokie, IL 60077 agent for WEA Belden LLC, A Delaware LLC, property owner, 4230 Belden Village Mall, Canton, Ohio 44718 requests a variance for a rear building setback of 5 ft. where 16 ft. is required, a front parking setback of 6 ft. with 5 shade trees where a parking setback of 20 ft. with 15 shade trees are required and a west side parking setback of 4.3 ft. where 5 ft. is required per Art. IV Sect. 411.5 & 411.8 of the zoning resolution.  Property located at 4224 Everhard Rd. NW, Sect. 24NE Jackson Twp.  Area zoned B-3.

Mr. Deremer read the file application signed by Hidetaro Kashima with reasons being as listed in the file.  The file contained a tax map of the property in question, an email from T. Heck to J. Poindexter regarding the fire department requirements, an email regarding comments from resident Steve Bergman, a small version of the site plan showing the layout of the proposed property improvements and a full size version of the site plan.

Mr. Deremer asked who would like to speak in favor of this appeal.
Mr. Deremer swore in Hidetaro Kashima of Westfield Corporation.

Mr. Kashima stated that they are looking to demolish the current Eat-N-Park restaurant which is about 6,300 sq. ft. and replace it with a new Bravo restaurant that is approximately 8,700 sq. ft.  The layout is similar to what is currently on the property; however, some variances are being requested.  Mr. Kashima stated that the first variance is a rear yard building setback of 5 ft. where 16 ft. is required.  By allowing the variance he believes a better building layout can be achieved.  The variance would allow the proposed building’s northern facade to be parallel with Everhard Rd., in keeping with the adjacent Max & Erma’s Restaurant, and keeping the current configuration of the Ring Rd. located immediately south of the building.  Mr. Kashima stated that this has no adverse impact to the community or the neighbors since the adjoining parcel is also owned by Westfield and is a part of the shopping center.

Mr. Kashima stated that second variance is the front yard parking setback where 20 ft. is required.  They are proposing to maintain the existing non-conforming condition of the parking layout.  The proposed front setback of 6 ft. is consistent with the adjacent Max & Erma’s restaurant.

Mr. Kashima stated that they are proposing to maintain the existing 4.3 ft. parking setback along the western border of the lot which would maintain the entrance drive to the mall.  The next variance is for the landscaping area in the front parking setback which maintains the existing non-conforming condition and is consistent with the adjacent landscaping along the perimeter of the shopping center.

Mr. McDonnell asked if all the variance except the rear building setback is maintaining what is currently on the property.

Mr. Kashima stated yes.

Mr. McDonnell asked if the rear building variance is because the structure is too close to the rear lot line.

Mr. Kashima stated yes.

Mr. McDonnell asked why they don’t reduce the building size or move it to meet the setback.

Mr. Kashima stated that they want to maintain the front setback from Everhard Rd. and the restaurant has a specific layout.

Mr. McDonnell asked if it is a marketing issue as opposed to a practical difficulty.

Mr. Kashima stated that he supposed so.

Mr. Juergensen asked why they couldn’t move Ring Rd. back.

Mr. Kashima stated that it would interfere with the parking spaces for the mall area.

Mr. Deremer asked what the practical difficulty is for the rear setback besides the size of the building.

Mr. Kashima stated that this is the best layout for the building and property.

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

Mr. McDonnell stated that he believes this is the same situation as Max & Erma’s.  If they were using the current building then they wouldn’t need any variances, so he doesn’t have a problem with the existing conditions but is not sure about the rear building setback.

Mr. Juergensen stated that he doesn’t think the spirit and intent of the zoning resolution would be violated by allowing the variances.

Mr. Dodson stated that he agreed with Mr. Juergensen.

Mr. Deremer stated that he believes the first three items aren’t an issue and sees a practical difficulty with the slope of the lot regarding the rear setback variance.

Mr. Juergensen made a motion to approve the variances for a front parking setback of 6 ft. with 5 shade trees where 20 ft. with 15 shade trees is required and a west side parking setback of 4.3 ft. where 5 ft. is required.

Mr. McDonnell seconded the motion.

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

Mr. Juergensen made a motion to approve the variance for a 5 ft. rear building setback where 16 ft. is required.

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. Deremer asked if there were any comment or a motion on the minutes from the meeting of March 10, 2005.

Mr. Giulitto made motion to approve the minutes from March 10, 2005.

Mr. Juergensen seconded the motion.

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

Mr. Deremer asked if there were any comments or a motion on the minutes from the meeting of April 14, 2005.

Mr. McDonnell made a motion to approve the minutes from April 14, 2005.

Mr. Juergensen seconded the motion.

The vote was: Mr. Juergensen-yes, Mr. Giulitto-yes, Mr. Dodson-yes, Mr. McDonnell-yes-except for appeal #1972 in which he recused himself, and Mr. Deremer-yes.

Mr. Deremer asked if there were any comments or a motion on the minutes from the meeting of April 28, 2005.

Mr. Dodson made a motion to approve the minutes from April 28, 2005.

Mr. Giulitto seconded the motion.

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

Mr. Deremer asked if there were any comments or a motion on the minutes from the meeting of May 12, 2005.

Mr. Juergensen made a motion to approve the minutes from May 12, 2005.

Mr. McDonnell seconded the motion.

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

Mr. Juergensen made a motion to adjourn the meeting.

Mr. Giulitto seconded the motion.

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

Respectfully submitted,

Joni Poindexter
Zoning Inspector