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

Zoning Administrator:                                                              John Phillippi
Zoning Data Coordinator:                                                       Joni Poindexter

APPEAL #1838 - Richard Altman agent for Whipple-Dressler, LLC, property owner, both of 2555-34th St. NE, Canton, Ohio 44705 requests a variance for a zero (0) ft. parking and landscaping setback along the south and west boundary of proposed Tract I, the north and west boundary of proposed Tract II, and the east boundary of proposed Tract III where a 5 ft. parking and landscaping setback is required in Art. IV Sect. 411.8 of the zoning resolution.  Property located at the southwest corner of Dressler Rd. and Whipple Ave. NW, Sect. 13NE Jackson Twp.  Area zoned I-1.

Mr. Deremer read the file application signed by Richard Altman with reasons being in order to obtain separate real estate tax bills for each building and the three parcels will have common ownership with shared parking & ingress/egress locations.  The file contained a tax map of the property in question, a plat of survey by Hoover & Associates dated January 2003 and a declaration of deeds and restrictions, easements and covenants for the Whipple-Dressler LLC Company.

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

Mr. Deremer swore in Richard Altman, 6108 Burgess Rd. NW, Canton, Ohio.

Mr. Altman stated that the site is fully developed.  He would like to establish interior lot lines so a separate tax bill can be issued for financing purposes.  The reason being if he was to default on the loan and there was a foreclosure on the property, the lender would then have the separate parcel to sell off.  Mr. Altman stated that nothing will change on the property and it will look exactly like it does at this time.  Mr. Altman stated that he currently gets one tax bill for the entire property.  He would like to have the lot spilt so he could receive a separate tax bill for each parcel.

Mr. Altman stated that the declaration of deeds, restrictions, easements and covenants that is in the file refers to the cross parking easements and each parcel has enough parking to stand on its own.

Mr. McDonnell stated if he understands correctly, Mr. Altman would like to split the property so he can receive a separate tax bill for each one of the buildings.

Mr. Altman stated this is correct.

Mr. McDonnell asked what has been done up until this point regarding the tax bill.

Mr. Altman stated that there was one financing company for the whole piece of property.  The only way he can get new financing is to separate the parcel because no one wants to finance the theater portion of the property.

Mr. Deremer asked if the only change that would occur is if something down the line would change and the buildings were torn down and rebuilt.
Mr. Altman stated that if this would happen then he would have to come to the zoning office and apply for new permits and everything would have to comply with zoning.

Mr. Deremer stated if a variance were granted it would run with the land forever.

Mr. Altman stated that he has no intention of selling off any of the parcels.

Mr. Dodson stated that Mr. Altman indicated that if he defaulted on the loan then the lender would have to have a split take place before they could foreclose and asked why they wouldn’t just foreclose on the whole property.

Mr. Altman stated that if they had a mortgage on the whole property they could do that but they would not be taking a mortgage on the whole property; they’re only taking it out on one building.  Mr. Altman stated that he could not find a lender that would finance all three parcels.

Mr. McDonnell asked if it is Mr. Altman’s intent to create three parcels.

Mr. Altman stated yes.  The reason being that the new lender will be making a loan on one building and if he were to default on the loan the lender would have the right to take only the parcel in which the loan is on and not the others.

Mr. McDonnell stated that the Trustees and the Ohio Revised Code indicate that for an area variance there needs to be a demonstrable practical difficulty.  Those practical difficulties are normally the narrowness of a lot, topography, or a factor of the land itself as opposed to financing or construction.  The second thing is that in some of the court rulings, specifically the Duncan case which was kind of a landmark case regarding practical difficulties, one of the criteria or things that the board must consider is whether the difficulty or predicament is self imposed.  In this case it appears that it is self imposed.  The lot was developed without allowances to be able to subdivide.

Mr. Altman stated that this was done prior to Whipple-Dressler LLC owning the property.  He recently purchased the buildings from a partnership and in the process incurred some debt.  Today the financing situation is proper to do some refinancing but unfortunately he can’t find a lender who would give a loan on a single building without taking a mortgage on the entire parcel.  Mr. Altman stated that this is a hardship because he cannot function without financing.

Mr. McDonnell asked Mr. Altman when he purchased the property.

Mr. Altman stated October 2002.

Mr. McDonnell asked when the parcel was developed.

Mr. Altman stated that he believes in was in 1988 or 1989.  Mr. Altman stated that if he cannot finance real estate then it is truly a hardship.

Mr. McDonnell stated that he agrees.

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. Werner stated that this is an unusual situation and understands Mr. Altman’s motive.  Nothing will change on the existing parcel and Whipple-Dressler LLC did not develop the parcel to being with.  Mr. Werner stated that the situation puts Mr. Altman in a bind for borrowing money and he does not have a problem with the request.
Mr. Dodson stated that he somewhat disagrees and doesn’t think there is any reason that the property couldn’t be split and still observe the 5 ft. parking and landscaping requirement if Mr. Altman truly wanted to make it three separate parcels.  Mr. Dodson stated that he doesn’t see a practical difficulty that has to do with the land itself other then the fact that the private owner, if left as one parcel, made all the parking lots contiguous.  Mr. Dodson stated that if they allow this to be split and it’s sold off in the future, which it probably will be eventually, there will be three parcels without the setbacks that are required by zoning so he has a problem with the request.

Mr. Deremer stated that when he first looked at the request without hearing the testimony he would have probably said no because of the standards that the resolution is trying to set regarding landscaping and parking areas.  But the fact that this is an existing development and the split is for financial reasons yes, but the variances being requested are only for the landscaping and parking.  Mr. Deremer stated that to him this is a minimal issue and it’s not like they are trying to put the building at a zero lot line.  All the buildings meet the setback requirements so he is somewhat in favor of the application.  Mr. Deremer stated that in order for the landscaping requirements to be met they would have to remove parking spaces that are needed.  Mr. Deremer stated that he believes this is similar to the development at the strip between Wal-Mart and the Cinema and is in favor of the variance.

The board had no further comments.

Mr. Werner made a motion to approve appeal #1838 as requested.

Mr. Giulitto seconded the motion.

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

APPEAL #1839 - George Shaheen, property owner, 111-23rd. St. NW, Canton, Ohio 44709 requests a variance for a 5 ft. right (north) side yard setback for a freestanding sign where a 10 ft. side yard setback is required in Art. V Sect. 501.5G of the zoning resolution.  Property located at 6725 Promway NW, Sect. 12SE Jackson Twp.  Area zoned I-1.

Mr. Deremer read the file application signed by George Shaheen with reasons being that the sign would be in the parking area if moved to a 10 ft. setback and there is a steep gully.  The file contained a tax map of the property in question, a computerized aerial photo of the property in question, a hand drawn site plan showing the location of the sign, and a drawing showing what the sign looks like.

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

Mr. Deremer swore in George Shaheen, 111-23rd St. NW, Canton, Ohio 44709.

Mr. Shaheen stated that the sign lists the names of all the tenants in the building.  There is very limited parking for the building and if the sign were moved to a 10 ft. side yard setback it would take away from the entrance and he would lose three parking spaces, which is very valuable to the building and would create a hardship.

Mr. Deremer asked what businesses are adjacent to the property.

Mr. Shaheen stated that there is a landscaping business to the north, across the street is a sand & gravel company, to the south is a car repair shop, and there is a truck stop located behind him.

Mr. Deremer asked if there is anywhere in the middle of the parcel to place the sign.

Mr. Shaheen stated no because there is a ditch that runs along the property.  Mr. Shaheen gave the board a photo, exhibit #1, showing the property and the front parking area and explained where the sign is located.

Mr. Deremer asked Mr. Shaheen if he had discussed the sign location with the neighboring business.

Mr. Shaheen stated yes; they have no problem with the sign location.

Mr. Giulitto asked how many parking spots are in front of the property.

Mr. Shaheen stated that there are 16 spots in front of the building which has 23 units.

Mr. McDonnell asked if he is correct in stating that the sign exists.

Mr. Shaheen stated yes.  He was aware of the 10 ft. setback when the sign was put in and measured from the retaining wall, which he thought was the property line, when the sign was installed.  It was later on that he found out that the retaining wall was 5 ft. away from the property line.

Mr. Giulitto asked when the sign was installed.

Mr. Shaheen stated that it was installed in June or July.

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 drove by the property and it was obvious if the sign were moved back 5 ft. it would take away from the parking area.  The lot is small and the parking is restricted.  It doesn’t create a safety hazard for anyone by the sign being 5 ft. from the property line.  Mr. McDonnell stated that he found it difficult to delineate where the property line is and there is no question if moved the sign would end up in the parking lot.  Mr. McDonnell stated that he does not have a significant problem with the request.

Mr. Werner agreed with Mr. McDonnell.

Mr. Dodson made a motion to approve appeal #1839 as requested.

Mr. McDonnell seconded the motion.

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

Mr. Deremer stated that an issue came up at the last hearing where Mr. Phillippi had some comments that he wanted to throw into the procedure but the board did not let him talk because they already closed to public input.  Mr. Deremer asked if the board had any thoughts as to if they should ask Mr. Phillippi each and every time if he has any comments before closing or if they think he should know when to speak up and say something.  Mr. Deremer stated that the only thing that he would worry about is if Mr. Phillippi would get into throwing in his own opinion or beliefs based on what he has heard verses what decision he had originally made with the case.

Mr. Dodson stated that he thinks if the board closes to public input then it is closed, period.

Mr. Deremer stated that he agrees.

Mr. McDonnell stated that he also agrees.  Mr. Phillippi is not in favor of or opposed to a request so he does not know where to put in his two cents.  Mr. McDonnell stated that he doesn’t think that it would be a bad idea to ask if there is any input from the Zoning Department before closing to the public.  The only exception might be for a clarification.  For example asking if something is legal in accordance with the resolution, which is a yes or no type answer, but any opinions would be out of line.  Mr. McDonnell stated that he doesn’t see a problem in giving the Zoning Department an opportunity to speak before closing to public.

Mr. McDonnell stated in a case where there has been a citation issued by the Zoning Department they may want to be careful with this because historically the applicant has had the last bite of the apple.

Mr. Deremer stated that for a case where a citation has been issued the Zoning Department would have already given information.

Mr. Giulitto stated that he thinks during the hearing there is ample time for the Zoning Administrator to address the board if he doesn’t think the board is addressing something the right way.

Mr. McDonnell stated that the Zoning Administrator has been put in a difficult position because he is neither in favor of or opposed and the normal course is to ask those who are in favor or opposed if they want to speak so he is kind of in no man’s land.

Mr. Deremer stated that the Zoning Administrator is a good resource for information; however the time to give any information is before closing to public input.

The board agreed.

Mr. McDonnell made a motion to adjourn the meeting.

Mr. Giulitto seconded the motion.

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

Respectfully submitted,

Joni Poindexter
Zoning Data Coordinator
Clerk/Secretary