Members present:                                                                Ted Deremer
                                                                                                Edward McDonnell
                                                                                                Gerald Werner
                                                                                                Jim Giulitto
                                                                                                John Juergensen-Alternate

Absent Member:                                                                    Richard Dodson

Zoning Administrator:                                                           John Phillippi
Zoning Data Coordinator:                                                    Joni Poindexter

APPEAL #1857 – Edward Barth, 5046 East Blvd. NW, Canton, Ohio 44718 agent for Michael Mahaffey, property owner, 5414 Frank Rd. NW, North Canton, Ohio 44720 requests a variance to add an additional 480 sq. ft. to an existing accessory building where 120 sq. ft. is permitted for a total of 1,560 sq. ft. where the maximum square footage for accessory buildings on one acre or less is 1,200 sq. ft. in Art. IV Sect. 401.12 of the zoning resolution.  Property located at 5414 Frank Rd. NW, Sect. 24NW Jackson Twp.  Area zoned R-R.

Mr. Deremer read the file application signed by Michael Mahaffey with reasons being as stated by the applicant, “Mr. Mahaffey owns a 32 ft. pleasure boat.  When on trailer (including prop) it is approximately 42 ft. in length.  Owner has been paying off site storage and wishes to be able to store at his residence”.  The file contained a tax map of the property in question and a site plan showing the location and size of the proposed addition.

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

Mr. Deremer swore in Edward Barth, 5046 East Blvd. NW, Canton, Ohio 44718.

Mr. Barth stated that there is an existing 10 x 12 ft. storage shed on the property that will be removed.  The existing garage is 1,080 sq. ft. and they are asking to add an additional 480 sq. ft. for a total of 1,560 sq. ft.

Mr. Barth presented a photo of the boat that Mr. Mahaffey would like to store in the garage.  This was marked as exhibit #1.

Mr. Barth stated that Mr. Mahaffey is in his early 60’s and is getting ready to retire and it would be a real inconvenience to keep the boat stored off the property.  Mr. Barth stated that the addition would meet all the required setbacks and the only thing that they are asking for is the accessory building to be 360 ft. over the permitted 1,200 square footage.

Mr. Deremer asked what type of construction the current garage is.

Mr. Barth stated that the outside of the garage is made of wood with vinyl siding.  The inside is finished with dry wall, has a concrete floor, and is heated and air conditioned.  Mr. Barth stated that if the variance were granted the esthetics of the building would not look any different than it does now.

Mr. McDonnell stated that the board is required to find a practical difficulty that is caused by the land and it appears that the only reason for the addition is to house a boat.  Mr. McDonnell asked if there is any other reason or practical difficulty for the variance.

Mr. Barth stated that Mr. Mahaffey is going to retire and is paying over $100.00 a month to store the boat off site.  He also has several classic cars that he would like to store in the building.

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 discussion.

Mr. McDonnell stated that section 803.5(B)(1) lists the factors that shall be considered and weighed by the Board in determining a practical difficulty and it does not appear that there is a practical difficulty with the land itself to allow the variance.  Mr. McDonnell stated that although the property owner wants to house his boat, this may be a difficulty for the property owner but is not a difficulty with the land itself that would authorize the board to grant a variance.

Mr. McDonnell stated that there was a variance in front of the board a while back where someone wanted to go closer to the side yard setback because they owned an oversized pickup.  This was a difficulty that was particular to the individual and not to the property or land and the request was denied.  Mr. McDonnell stated that under these circumstances he would have difficulty passing the variance.

Mr. Werner agreed with Mr. McDonnell and stated that he does not see a practical difficulty that follows the property.  If it was 48 square feet it would be one thing but they are talking about 480 square feet so he would not vote for the appeal.

Mr. Deremer stated that the variance is only for 360 square feet because the total building would be 1,560 square feet where 1,200 is permitted, which is only a 20 % variance.

Mr. Giulitto stated as a boat owner he also pays storage fees and can understand a gentleman who is going to retire wanting to stop paying storage fees.  The zoning code is being followed regarding the setback requirements but the problem is that he has a large boat and wants to keep it inside so the area will be maintained in an orderly way.  Mr. Giulitto stated that he is leaning toward the property owner because he is going to keep the property up by keeping the boat inside.  Mr. Giulitto stated that you have to look at what the practical difficulty is but thinks in this case he is trying to do what is right for him and there is no opposition from the neighbors.  Mr. Giulitto stated that he is leaning toward the other way.

Mr. Deremer stated he is leaning toward Mr. Giulitto’s comments.  The variance request is due to the equipment that the person owns which normally the board cannot take into account but he is also looking at the fact that the variance is only 20% and is not encroaching on the setback requirements.  The lot is almost ½ an acre and there is plenty of room for the addition.  Mr. Deremer stated that he is leaning toward the variance as requested.

Mr. Juergensen stated based on the criteria in section 803.5(B)(1) and also (B)(2 & 3) he would be against the variance request; in particular whether the property would yield a reasonable return or whether there can be beneficial use of the property without the variance and he thinks that it will.  Mr. Juergensen stated that he thinks the variance is substantial and would vote against it.

Mr. McDonnell stated that whether the neighbors are in opposition to the variance request or not, he does not believe that this is part of the board’s deliberations.  The board’s job is not to do what is necessarily popular but to follow the regulations and administer the regulations as the trustees have set it out.

Mr. Giulitto stated that as a body the board needs to look at this as a subjective matter and not so much by what’s written on the books.  Sometimes you have to look between the lines and see what is practical.

The board had no further comments.

Mr. Giulitto made a motion to approve appeal #1857 as requested.
Mr. Juergensen seconded the motion.

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

Mr. Deremer stated that appeal #1857 has been denied.  If the applicant doesn’t agree with the decision they can appeal it to the Stark County Court of Common Pleas within 30 days.

APPEAL #1860 – Michael & Becky McElfresh, 1023 Oakhill Dr. NE, Massillon, Ohio 44646 agent for Larry Long, property owner, 5329 S. Island Dr. NW, Canton, Ohio 44718 requests a variance for a 13 ft. front yard setback where a 40 ft. front yard setback is required in Art. IV Sect. 401.6 of the zoning resolution.  Property located at 5329 S. Island Dr., Sect. 23NW Jackson Twp.  Area zoned R-1.

Mr. Deremer read the file application signed by Rebecca McElfresh with reasons being that the variance is requested in order to construct a 24 x 24 ft. attached 2-car garage.  The file contained a tax map of the property in question, a site plan showing the location of the proposed addition and a sheet labeled subject property address for variance request.

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

Mr. Deremer swore in Michael & Becky McElfresh, 1023 Oakhill Dr. NE, Massillon, Ohio 44646.

Ms. McElfresh stated that they have taken ownership of the property in question since the appeal was filed so they also have the address of 5329 S. Island Dr.

Mr. McElfresh stated that they are planning on moving soon and need an attached garage because they need a place to house their vehicles.  Due to accessibility there is no other location on the property to construct the garage.

Ms. McElfresh stated that the addition would physically fit in the rear of property and meet all the required setbacks however it would not be practical because they would not have any access to it.  The home was built in 1941 and sits almost on the east property line.  They would like to remove the existing garage to get it off the property line so the house would fall within the required 5 ft. setback.

Mr. McElfresh stated that the current garage is shown on the right hand side of the site plan, which is 11 x 15 square feet.

Mr. Deremer asked if the existing garage would be removed or turned into something else.

Mr. McElfresh stated that it would be removed.

Mr. Deremer stated that the sketch shows the measurement to the roadway.

Ms. McElfresh stated that they were generous and the addition is actually a little further back.

Mr. McElfresh stated that the property next to them was staked out and the pin is actually in the asphalt of the road.  Mr. McElfresh stated that they are actually about 14 ft. back.

Mr. Deremer asked if a portion of the house would be 5 ft. off the property line.

Ms. McElfresh stated yes because the house sits catty cornered at the northeast portion and is probably 2 to 3 ft. from the property line.

Mr. McDonnell asked if Ms. McElfresh indicated that the proposed garage would fit in the rear yard without violating zoning but it is not practical.

Ms. McElfresh stated yes.

Mr. McElfresh stated that the proposed location is the only physical location that the addition could fit where they could get vehicles in and out of the 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 discussion.

Mr. Werner stated that this is a typical Lake Cable lot and the proposed addition, 24 x 24 ft., is not extra ordinary in size.  Mr. Werner stated that he does not have a problem with the request.

Mr. Giulitto stated that practically the addition could not be put in the rear yard and by keeping the vehicles in the garage instead of in front of the house or on the street is better.  Mr. Giulitto stated that he does not have a problem with this appeal.

Mr. McDonnell stated that the garage would physically fit on the lot without violating zoning as testified to and the practical difficulty is the fact that the lot frontage is only 41 ft.   Mr. McDonnell stated that it would be difficult for him to vote against the request.

The board had no further comments.

Mr. Werner made a motion to approve appeal #1860 as requested.

Mr. Juergensen seconded the motion.

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

APPEAL #1858 – Thomas Winkhart, Attorney, 801 S. Main St., North Canton, Ohio 44720 agent for Campbell Oil Co., property owner, 611 Erie St. S., Massillon, Ohio 44646 requests a variance for an 18 ft. rear yard setback for principal building where a 75 ft. rear yard setback is required and a 5 ft. parking setback with no landscaping where a 20 ft. parking setback with landscaping is required in Art. IV Sect. 411.5 & 411.8 of the zoning resolution.  Property located at 3917 Wales Rd. NW, Sect. 29SE Jackson Twp.  Area zoned R-R.

Mr. Deremer read the file application signed by Thomas Winkhart with reasons being to include a car wash which is a permitted ancillary use for the subject property.  The file contained a tax map of the property in question and a proposed plot plan dated June 4, 2003.

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

Mr. Deremer swore in Thomas Winkhart, 7008 Victoria Ct., Canton, Ohio 44718.

Mr. Winkhart stated that they are asking to be less burdensome then they have been in the past.  He has spent a fair amount of time working through the request with Mr. Phillippi and believes they have come to an appropriate conclusion with respect to what the variance application should include.

Mr. Winkhart stated that they are requesting a variance for an 18 ft. rear yard setback and a 5 ft. bufferyard is necessary for building a reconfiguration to include a car wash which is a permitted ancillary use for the subject property.  The practical difficulty associated with the variance request deals with the fact that this property is a historical non-conforming use.  Mr. Winkhart stated that the facility was a service station many years ago and has gone through many changes over the past years but is still the same non-conforming use that it was prior to the time the zoning resolution was passed in the township.

Mr. Winkhart stated that the request is very fair in that the existing building has been in violation of what he believes to be the best zoning overlay for that property.  The rear yard landscaping buffer, which should be a 20 ft. rear yard buffer, has been a 5 ft. buffer for as long as he can remember.  There is an existing retaining wall that has been there for many years.  The building itself is in violation of the 75 ft. rear yard setback by about ½ of that as it sits today.

Mr. Winkhart presented a revised site plan dated June 19, 2003 that included landscaping within the 5 ft. rear parking & landscaping setback.  This was marked as exhibit #1.

Mr. Winkhart stated that several years ago they were in front of the board for a change in use to include a Burger King drive thru which was approved.  Mr. Winkhart stated that this is no longer the best use for the property and the Burger King operation no longer exists.

Mr. Winkhart stated that the proposed addition encloses the drive thru operation of the Burger King.  At the rear of the building they are looking to build an unattended car wash facility ancillary to the convenience store and gas station that is presently constructed there.

Mr. Winkhart stated that the same drive thru flow of traffic would exist with the car wash operation that existed with the Burger King.  The applicant is requesting that there be an additional 10 ft. of paving to push the flow to the north to create a better turning radius and to make the parking spaces to the left of the stacking isle a little more user friendly.

Mr. Winkhart stated that the overall coverage after the completion of the car wash will actually be less than it is today.  The canopy will be reduced significantly and the reduction more than compensates for the additional coverage for the car wash building.  The real significant change on this site plan verses the previous site plan is that they have included the addition of plantings along the boundary line between the car wash and the Cornerstone Baptist Church.

Mr. Winkhart stated that the board conditioned the previous approval of the Burger King operation on planting pine trees along the north side.  One of the neighbors on the north side was concerned about noise and lights and was very happy to have pine trees planted to serve as a buffer.  That same accommodation is being made again on the west side of the property.

Mr. Winkhart presented a letter from the Pastor of the church that stated he is in support of the request.

Mr. Deremer asked if the Pastor is in attendance for the hearing.

Mr. Winkhart stated no but in paraphrasing Pastor Fryman’s letter, he is generally supportive of the project and as a result of several conversations and a meeting with the Pastor Fryman they have come up with a landscaping plan that they believe provides a good back drop for the convenience store and serves as a visual and sound buffer between the church use and the convenience store gas station use.  Based upon mutually agreed plantings they think it will enhance the view for the church property and they have also relocated the dumpster from the southwest corner to the northwest corner of the property.

Mr. Winkhart presented photos to the board and stated what is shown in the photos are consistent with the Citgo gas station car wash facilities that are currently in operation in Stark County.  They are constructed to integrate esthetically and functionally into the existing buildings, which he believes creates a clean appearance to the building.

Mr. Deremer asked Mr. Winkhart to go through the photos so they could be marked as exhibits.

Mr. Winkhart stated that exhibit #2 shows the proposed car wash entrance on the north side of the existing building.  Exhibit #3 is the same view as #2 except at a different angle.  Exhibit #4 shows the exit of the proposed car wash on the south side of the existing building and exhibit #5 is the same as exhibit #4 except from a different angle.

Mr. Deremer asked if the photos are from a car wash that is located in Stark County.

Mr. Winkhart stated yes, they are from a south Massillon property located on Navarre Rd.

Mr. Winkhart stated that in light of the fact that this is a non-conforming use located in a rural residential zoning district it is a real struggle to try to come up with what the appropriate setbacks would be.  They assumed that this would be constructed in a zoning district where zoning allows it.  This is how they came up with a 75 ft. rear yard setback for the building and a 20 ft. setback for the parking.

Mr. Winkhart stated that what they are proposing to change as related to the retaining wall and existing landscaping is absolutely nothing other than perhaps making it a little bit better by planting the pine trees along the property line.  While they are asking for a variance, one doesn’t exist for what is going to continue to exist from today’s date whether this is approved or not approved.  Mr. Winkhart stated that he believes the request for the 5 ft. rear yard landscaping area is no harm no foul because it is already there and it isn’t going to change other than adding the pine trees.

Mr. Winkhart stated that the existing building does not comply with the 75 ft. rear yard setback requirement and it shouldn’t have to because it is a permitted non-conforming use but in fairness he thinks it is appropriate to look at that standard when looking at what the appropriate variance should be.

Mr. Phillippi stated that when looking at the applicable standards to apply for this particular requests when looking at the variance, the last time the regulations were amended a clarification was added in section 303.3A to say that such alteration or enlargement shall be constructed in compliance with the current regulations of the district in which the nonconforming building, structure, or use is permitted.  Mr. Phillippi stated that the appropriate district would be the B-3 where the car wash is permitted.

Mr. Deremer asked how large the addition would be.

Mr. Winkhart stated that it would be 26 ft. in depth by 56 ft. in length.

Mr. Deremer stated that the plan shows that there is going to be a modification to the gas dispenser.

Mr. Winkhart stated that the canopy is going to be extended and there would be an additional dispenser but it is a permitted activity without coming before the board.  Mr. Winkhart stated that he thinks it is very important, even with a nonconforming use, that variances be stingily approved.  Good land planning favors neighborhood convenience stores.  If looking at Jackson Township’s long range plan and some of the things that the township has attempted to do with respect to zoning it has been to look toward neighborhood areas and provide services in those neighborhoods where their services are needed.  This takes traffic away from major arteries.

Mr. Winkhart stated that the board has historically been very favorable toward this particular operation.  The facility has operated as a nonconforming use for a lot of years and this is something that is a good thing for the township.  Mr. Winkhart stated that the industry in this area has changed dramatically and thinks in order for the facility to succeed it needs to compete with other similar type of uses in the market place and one of the things that the convenience stores have added on are car washes, which is a good ancillary use.

Mr. Winkhart stated that they have spent a good deal of time being a good neighbor to the church, who will be most affect, as evidence by the letter from Pastor Fryman that states they are supportive in the request.  Mr. Winkhart stated that the variance will not harm nearby properties or change the character of the neighborhood and is the minimum necessary to permit the reasonable use of the property.

Mr. Winkhart stated that he does not think it is appropriate to conditionally permit the use as a nonconforming use in a rural residential area but if the board were so inclined to impose the conditional requirement on the car wash in this district then his client would certainly be willing to accept those requirements.

Mr. Deremer swore in Bob Engel, 611 S. Erie St.

Mr. Werner asked Mr. Engel what the hours of operation would be.

Mr. Engel stated that currently the operation is 24 hours; however, they close the doors at midnight and work through a security window.

Mr. Werner asked if the car wash would be open 24 hours a day.

Mr. Engle stated that there aren’t any doors on the car wash so there is no way keep people out.  Typically most people do not wash their cars between 11:00 p.m. and 7:00 a.m. but the capability would be there.

Mr. Werner asked if there would be any additional lighting.

Mr. Engel stated that he did not think there were any plans for additional lighting on the outside of the car wash but there would be some on the inside of the car wash.

Mr. Werner asked if the car wash would produce additional noise.

Mr. Winkhart stated this is something that was worked through with Pastor Fryman because he was concerned about the noise during worshiping hours on Wednesday evenings and Sunday’s.  They invited the Pastor to go to the facility at the top of the viaduct in Massillon that is very near a church.  This did not appear to be a problem because the Pastor thought that the pine trees would be a good buffer for noise.  Pastor Fryman did comment that the speaker for the drive up window for the Burger King did seem to be a bit loud so he was glad to have the change in use.

Mr. Winkhart stated that the pictures that were presented show that there are no exterior lights on the rear of the building.

Mr. Juergensen asked how far the existing building is from the rear lot line.

Mr. Winkhart stated that it is about 45 ft.

Mr. Juergensen asked if the addition would be 27 x 56 sq. ft.

Mr. Winkhart stated yes.  This is less than what is being removed at the front end of the building.

Mr. McDonnell asked where the 5 ft. parking setback with no landscaping is being requested.

Mr. Winkhart stated that it currently exists along the west side where the site plan shows the existing retaining wall.  This is currently in place and has been for years so if you look at the distance from the retaining wall to the property line the measurement is 5 ft.

Mr. McDonnell asked if there is an additional 15 ft. buffer yard there.

Mr. Winkhart stated no.  Nothing is going to change.  If the car wash gets built there will not be any difference between it as it is today or when it is built except for putting in the pine trees.

Mr. McDonnell stated, so he understands, that the building will be moved 27 ft. closer to the rear property line, they will be adding another gas pump and replacing the existing 30 x 80 sq. ft. canopy over the pumps with a 28 x 96 sq. ft. canopy and eliminating the 40 x 48 ft. 9 in. canopy that runs from the existing pumps to the store entrance.
Mr. Winkhart stated that this is correct.

Mr. McDonnell stated that there are four properties that are contiguous to the property in question and asked what is located on the adjoining properties.

Mr. Winkhart stated that the Cornerstone Baptist Church owns three of the parcels that “L” on the west and north side; parcel #16-80268, 1680265 & 1680257 are owned by the church.

Mr. Deremer asked if anyone else wanted to speak in favor of this appeal.

Mr. Deremer swore in Mr. Hamilton, 3954 Wales Rd. NW.

Mr. Hamilton stated that he is not really concerned about the car wash other than the noise factor.  There are blowers and in the summer people have their windows open.  They are adding an island to the north and he is concerned about the lighting.  Mr. Hamilton stated that if the lights are recessed into the canopy then it won’t throw it into the neighborhood so much.  Mr. Hamilton stated that he believes the car wash would be an improvement over the Burger King because there was a lot of noise and trash when the Burger King was located on the property and he is happy that Campbell Oil is the property owner.

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

Mr. Deremer asked Mr. Winkhart if he wanted to address any of the comments.

Mr. Winkhart answered no.

Mr. Deremer stated one thing that concerns him is that the file is about three inches thick and asked if the previous files were available.

Mr. Phillippi stated that he has all the files with him and they are available if the board would like to see them.

Mr. Deremer stated that previously when the Burger King was put in the board looked at a building expansion over the permitted 25%.

Mr. Phillippi stated that the files were reviewed and the expansion would not be over what was approved by the board in the past.  The calculations have been figured and the total coverage is actually less than what has been permitted per the board.  A copy of the calculations for what is permitted is in the file.

Mr. Deremer closed this appeal to public discussion.

Mr. Deremer stated that there are two variances attached to the request.  This is a nonconforming use and has gone through many modifications.  The landscaping setback as requested to be at 5 ft. verse the 20 ft. is a valid request.  There is a 5 to 6 ft. retaining wall that keeps lights from bouncing into the neighbor’s property.  The fact that it was testified to that they would add landscaping to the west property line takes away the request for no landscaping within the 5 ft. setback.

Mr. Deremer stated that the issue is the addition of the car wash on the back side & some removal of the canopy but they are staying within the square footage that they are allowed.  The fact that they are proposing a car wash that is open 24 hours a day with internal lighting and no doors on the car wash would tend to be noisy on the dryer end but this will be closer to Traphagen than it will be to the residential area.  Mr. Deremer stated that the equipment will be in an equipment room so he does not believe this would be a factor but believes the blower may be an issue.

Mr. Deremer stated that the 75 ft. rear setback is for the use that is located on the property because it is in a residential area.  Mr. Deremer stated other than the noise issue with the blowers he does not see a whole lot wrong with the variance as requested.  A modification has been made to take care of the landscaping issue and he thinks this will enhance the property.

Mr. Werner agreed with Mr. Deremer and the only thing that concerns him is the blower because it is in a position where the noise could be echoed.  Mr. Werner suggested that if the variance were approved the noise issue may have to be revisited if it became a problem.

Mr. Juergensen stated in looking at 803.4(B), he does not see a practical difficulty with the land.  The lot is 5,200 sq. ft. and already has a nonconforming use on it that is within the 75 ft. required setback.  The building is already 30 ft. closer to the back line than would normally be allowed in this district and they are asking for an additional 27 ft. closer which brings it to 74% of the allowable 75 ft.   Mr. Juergensen stated that he does not see anything peculiar to the land that makes it a practical difficulty and believes the property will yield a reasonable return if the variance is not granted.  Mr. Juergensen stated that he has a problem in granting the variance.

Mr. McDonnell stated that the applicant is proposing to remove “X” amount of canopy and wants to encroach further into the rear yard and as Mr. Juergensen said, they want to move 60% closer to the rear yard than they are now when they are already 30 ft. too close than where they should be allowed to be in this district.  Mr. McDonnell stated that something doesn’t seem correct to him.  Mr. McDonnell stated that he is in favor of nonconforming uses expanding 25% but not if they start requiring additional variance over and above what they already have.

Mr. McDonnell stated when looking at the section for permitted uses, section 411.3, a car wash is a conditionally permitted use in a B-2 & B-3 district and a permitted use in an I-1 district.  In looking at the I-1 requirements the required setback is 100 ft. from a residential district, which makes the previous calculation worse and makes the advertisement incorrect.

Mr. Phillippi stated that this was reviewed with great consideration based on a memo from Dave Ferrell, Assistant Law Director for the Township.  It went back to the fact that the board already allowed a drive thru in conjunction with a fast food restaurant which again is a similar use.  Therefore in Mr. Ferrell’s opinion it would be ancillary to a gas station and would not necessary constitute a change in use from the current nonconforming use.  Mr. Phillippi stated that he has a copy of the memo if the board would like to see it.

Mr. Deremer asked if Mr. Ferrell is in agreement that it would be considered under the B-3 requirements.

Mr. Phillippi stated that he is basically saying that it would not be considered a change in use to go from what the current use is now to adding the car wash to the gas station and fast food.  Mr. Phillippi stated that a determination was made that the setbacks for the B-3 district would be the correct setbacks to be applied in this situation.

Mr. Giulitto stated that Mr. Winkhart testified and said that it would not be a problem going for this as a conditional use permit but through discussions with the zoning department the way they are going is the route to go.

Mr. Phillippi stated that it goes back to the board as to what is applicable and appropriate in this situation.

Mr. McDonnell stated that he disagrees with Mr. Ferrell.  In going to section 411.3 where it says restaurants and drive thru’s are permitted in a B-3, we are taking a permitted use in a B-3 which has a 75 ft. setback and applying that to a car wash which is permitted in an I-1 district, which has a 100 ft. setback so he does not agree with Mr. Ferrell.

Mr. McDonnell stated that he does not think that a practical difficulty has been shown to allow a proposed car wash to encroach any closer to a residential district than the building currently does.  Mr. McDonnell stated that the only question he has is if the board has the authority to act on the request if the variance should be requested as 18 ft. where 100 ft. is required.

Mr. Deremer stated that he thinks they are ok with what was advertised.

Mr. Juergensen made a motion to deny appeal #1858 as amended to the 5 ft. parking setback to include landscaping.

Mr. McDonnell seconded the motion.

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

Mr. Deremer stated that the appeal has been denied.  If the applicant feels the decision is not correct they can appeal it to the Court of Common Plea within 30 days of the decision.

APPEAL #1859 – Koehlinger Engineering, 10848-A State Route 212, Bolivar, Ohio 44612 agent for Robert Coen, property owner, 4502 Sherman Church Rd. SW, Canton, Ohio 44706 requests variances for a 21’6” (west) left side yard setback where 25 ft. is required, a 33’6” (north) rear yard setback where a 75 ft. setback is required and a 5 ft. (north) rear parking setback where 20 ft. is required in Art. IV Sect. 411.5 & 411.8 of the zoning resolution.  Also requests approval for expansion of 2,580 sq. ft. where 435.75 sq. ft. of the non-conforming use expansion is permitted for a total of 2,144.25 sq. ft. over the 25% non-conforming use expansion in Art. III Sect. 303.3 of the zoning resolution.  Property located at 4505 Hills & Dales Rd. NW, Sect. 25SE Jackson Twp.  Area zoned B-3.

Mr. Deremer read the file application signed by Stan Koehlinger with reasons being as stated by the applicant, “for the purposes of property improvements and expansion of existing services at existing business”.  The file contained a tax map of the property in question, a memo from the zoning department dated May 21, 2003 showing the calculations of the buildings on the property, a full size site plan dated 5/23/03 by Koehlinger Engineering and comments from the fire department, Ted R. Heck, Fire Chief, to Joni Poindexter, Zoning Data Coordinator, dated June 5, 2003.  The comments from Chief Heck stated as follows: “We currently have a fire citation issued against this property owner to remove fuel tanks still buried on this site.  Failure to comply will result in the owner being cited into court for compliance.  It is also my belief that EPA will have issues with the parcel due to the buried fuel tanks.  It is my recommendation no permits be issued until the tanks have been removed and the site brought into code compliance.  I will make no further comments on the plat until compliance has taken place”.  The file also contained a sworn affidavit by Notary dated 6/25/03 from Ernest Blood, Blood Family Realty, Ltd. and notarized by Kelly Flanagan whose commission will expire on Marcy 13, 2006.

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

Mr. Deremer swore in Stan Koehlinger, 10848-A State Route 212, Bolivar, Ohio.

Mr. Koehlinger stated that he is the engineer for the project and the reason for the expansion is that the business is very profitable and they need more space.  They are planning on removing the tanks in question before the construction process begins.  Mr. Koehlinger stated that a lot of the cars that are being serviced are parked on the side and in front of the building and it is not very attractive.  With the expansion of the parking lot the cars would be parked in the rear and the property would be cleaned up.

Mr. Koehlinger presented a revised site plan and stated that the revisions did not affect the appeal.  Mr. Koehlinger stated that there are currently three bays for service and they would like to add four more bays and a customer waiting area.

Mr. Koehlinger stated that the addition to the west would be at a 21 ft. setback where 25 ft. is required.  In the rear the current building is closer than the existing 75 ft. required setback.  The required parking setback is 20 ft. and they would like to have a 5 ft. parking setback.  Mr. Koehlinger stated that the gentleman that owns the property in the rear could not be present for the hearing due to health issue but he does not have a problem with the request.

Mr. Koehlinger stated that an 8 ft. fence would be installed to block the view of the residence in the rear.

Mr. Deremer stated that the fence was not indicated on the plan.

Mr. Deremer swore in Charles Kovach, 8356 Ladonna Circle NW, Canton, Ohio.

Mr. Kovach stated that currently there is a fence in the rear of the property.  After moving to the property he found out that there were tanks that needed to be removed.  Mr. Kovach stated that the tanks would be removed before any construction is done on the property.  Mr. Kovach stated that there is also an oil tank on the property that would be removed.

Mr. Kovach stated that the dumpster would be moved and enclosed with a fence so it is not an eyesore and the property would be greatly improved with landscaping and some lighting.

Mr. Deremer asked if there is anything special about the width of the building that forces them to go three feet beyond the required 25 ft. setback.

Mr. Koelhinger stated that Mr. Kovach wanted to add more bays.

Mr. Deremer asked if the building could be shrunk a little in order to keep it within the 25 ft. setback requirement.

Mr. Kovach stated that the reason he would like it to be a little larger is because his waiting area is small and he would like it to be more customer friendly with vending machines.

Mr. McDonnell stated that the existing building does not meet the 75 ft. required setback and asked why the proposed expansion needed to be closer to the lot line than the existing building.

Mr. Kovach stated that he wanted to have a glass front on the building and it would be entered from the rear.  The extra room is needed because there will be a walkway in the rear.

Mr. McDonnell asked Mr. Kovach if he is leasing the property.

Mr. Kovach stated yes.

Mr. McDonnell stated that this is a non-conforming use and 25% expansion is permitted but the request is nearly six times what is allowed and asked Mr. Kovach if he thinks that he is trying to over build the property.

Mr. Kovach stated that he doesn’t think he is over building by that much.  The reason is because he doesn’t want to have to get a second shop and can keep focused on one building and stay at the present location.

Mr. McDonnell asked how long Mr. Kovach has been working at the present location.

Mr. Kovach stated that he has been there about 14 months.

Mr. Deremer asked if Mr. Kovach outgrew his last location.

Mr. Kovach stated that the building was torn down.

Mr. Kovach stated that he would like to stay in Jackson because it is a nice community and his business does well but he can’t hire anymore people with the building that he has.

Mr. Kovach stated that he would like a bigger building so he can keep most of the cars inside and he wants to have a lot of windows so he doesn’t have to put signs outside of the building.

Mr. Deremer asked if there would be enough parking with the proposed building addition.

Mr. Kovach 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. Phillippi stated that he wanted to point out that this is similar to the previous case regarding the setback requirements because the use is permitted as a conditionally permitted use in the B-3 district and is a permitted use in the I-1 district.  Mr. Phillippi stated that the variances are based on the B-3 requirements, which is conditionally permitted even though it’s a non-conforming use.

Mr. Deremer closed this appeal to public discussion.

Mr. McDonnell stated that he has the same concerns as the previous case.  This is a non-conforming use but the expansion is five times what is allowed.  The west side variance is minimal and only 3-1/2 ft. but the parking is a 75% variance.  The rear building setback request is for 33-1/2 ft. where 75 ft. is required and is over a 50% variance.  Mr. McDonnell stated that it seems like the applicant is attempting to put too much on the property and he would have a problem voting for it.

Mr. Juergensen stated that he is sympathic to the applicant and it sounds like he is committed to his business but he agrees with Mr. McDonnell that it seems like too much for the property.  Mr. Juergensen stated that he could consider something down the road for a smaller variance but as it is now he would have a hard time voting for it.

Mr. Deremer stated that he likes the mind set that the applicant has.  He wants to take a run down property and make it into a good property but he may be overshooting the limits a little bit.  Mr. Deremer stated that he thinks this is a good property to improve but also thinks that the requested proposals are over stepping the bounds a little bit.

Mr. Werner agreed with the other board members and stated that it’s too much for too little space.

Mr. McDonnell made a motion to deny appeal #1859 as requested.

Mr. Juergensen seconded the motion.

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

Mr. Deremer stated that appeal #1859 has been denied.  If the applicant feels the decision is wrong they can appeal it to the Stark County Court of Common Pleas within 30 days of the decision.

Mr. McDonnell stated that there is a typo with in the spelling of the word “Kosher” on page 14 in the minutes from May 22, 2003.

Mr. Werner made a motion to approve the minutes from May 22, 2003 with the corrected spelling.

Mr. McDonnell seconded the motion.

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

Mr. Juergensen made a motion to approve the minutes from June 12, 2003.

Mr. Giulitto seconded the motion.

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

Mr. McDonnell made a motion to adjourn the meeting.

Mr. Giulitto seconded the motion.

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

Respectfully submitted,

Joni Poindexter
Zoning Data Coordinator
Clerk/Secretary