Members present:
Edward McDonnell
Gerald Werner
Richard Dodson
Jim Giulitto
John Juergensen-Alternate
Absent Member: Ted Deremer
Zoning Administrator:
John Phillippi
Zoning Data Coordinator:
Joni Poindexter
APPEAL #1851 – Kelle Allard, property owner, 5460 Peninsula Dr. NW, Canton, Ohio 44718 requests a variance for a 30 ft. front yard setback where a 40 ft. setback is required in Art. IV Sect. 401.6 of the zoning resolution. Property located at 5460 Peninsula Dr., Sect. 14SW Jackson Twp. Area zoned R-1.
Mr. McDonnell read the file application signed by Kelle Allard with reasons being as stated by the applicant, “Adding on an addition for increased living space and a usable two car garage. Also to improve the looks of the property”. The file contained a tax map of the property in question and a site plan showing the location of the proposed addition.
Mr. McDonnell asked who would like to speak in favor of this appeal.
Mr. McDonnell swore in Kelle Allard, 5460 Peninsula Dr. NW.
Ms. Allard presented exhibit #1 which consisted of a colored drawing showing the proposed location of the addition and a black & white photo of the home. Ms. Allard stated that the existing garage would be removed and the addition would be added.
Mr. McDonnell asked if the garage is currently at the rear of the house.
Ms. Allard stated yes.
Mr. McDonnell asked if the house runs along the line that is marked 27.5 feet on the drawing.
Ms. Allard stated yes, the current garage sets back in and is located next to the deck area.
Mr. McDonnell asked if the garage area would become living space.
Ms. Allard stated yes.
Mr. McDonnell asked why the extra footage is needed.
Ms. Allard stated that her property is located on a curve and the structure can only come out 9 ft. which wouldn’t even be enough room for a two car garage. The problem is the curve in the road.
Ms. Allard stated that Mr. Revlock from the zoning department met with her and staked out the property line, which he measured from the road right of way.
Mr. Phillippi stated that Peninsula Dr. is only a 30 ft. right of way.
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. McDonnell closed this appeal to public discussion.
Mr. Werner stated that this is a typical Lake Cable area and the lots are limited. He thinks this is a logical plan and has no problem with the request.
Mr. Dodson concurred with Mr. Werner.
Mr. Werner made a motion to approve appeal #1851 as requested.
Mr. Dodson seconded the motion.
The vote was: Mr. Juergensen-yes, Mr. Giulitto-yes, Mr. Dodson-yes, Mr. Werner-yes, and Mr. McDonnell-yes.
APPEAL #1852 – Alfred & Kathryn Cartechine, property owner, 5875 Vantage Hill NW, Massillon, Ohio 44646 requests a variance for a 5’6” right (north) side yard setback where a 10 ft. side yard setback is required in Art. IV Sect. 401.6 of the zoning resolution. Property located at 5875 Vantage Hill NW, Sect. 16SW Jackson Twp. Area zoned R-R.
Mr. McDonnell read the file application signed by Alfred & Kathryn Cartechine with reasons being as stated by the applicant, “A 10 ft. setback is required on north side of lot. With addition of garage the setback will be 5’6” from north side yard. A variance needed due to limited access if garage built elsewhere on lot. Location of garage restricted by septic and large trees and space is needed for storage of vehicle”. The file contained a tax map of the property in question and a site plan showing the proposed location of the addition.
Mr. McDonnell asked who would like to speak in favor of this appeal.
Mr. McDonnell swore in Alfred Cartechine, 5875 Vantage Hill NW, Massillon, Ohio 44646.
Mr. Cartechine stated that he would like to add a third stall onto the existing garage to store another vehicle. The proposed location is the most practical place to put it because there is already a gravel pad and they wouldn’t have to tear up any more lawn area. Mr. Cartechine stated that he would not want to cut down the 50 year old red oak tree that is on the property in order to make room for a garage.
Mr. McDonnell asked if the current garage is 18 ft. wide and the proposed addition would be 14 ft. wide.
Mr. Cartechine state yes.
Mr. McDonnell stated that it appears the front portion of the garage is 8 ft. 3 inches from the property line.
Mr. Cartechine stated that the house is not square with the lot. The garage couldn’t be put in the rear yard because the septic system is located in the back directly where the middle of the house is shown on plan.
Mr. McDonnell marked the sketch of the property as exhibit #1 and Mr. Cartechine drew in where the septic system is located.
Mr. McDonnell asked why the addition couldn’t be placed somewhere else on the property.
Mr. Cartechine stated that the proposed location is the most logical place with the driveway already being there and he wouldn’t be tearing up any more green space. With the addition at the proposed location he would only have to put up three walls as opposed to four.
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. McDonnell closed this appeal to public discussion.
Mr. Giulitto stated that the request seems to be straight forward. The proposed location is the most logical place and he does not have a problem with the request.
Mr. Werner agreed with Mr. Giulitto and stated that the addition cannot be put in the front yard and if put on the other side of the house it would create the same problem. It can’t be put in the back due to the septic system so he has no problem with the request.
Mr. Giulitto made a motion to approve appeal #1852 as requested.
Mr. Werner seconded the motion.
The vote was: Mr. Juergensen-yes, Mr. Giulitto-yes, Mr. Dodson-yes, Mr. Werner-yes, and Mr. McDonnell-yes.
APPEAL #1853 – Hammontree & Associates, Limited, 5233 Stoneham Rd., North Canton, Ohio 44720 agent for Mike Kochovski, property owner, 5150 Foxchase Ave. NW, Canton, Ohio 44718 requests a conditional use permit for a group dwelling development with a modification of the minimum lot area to 1.806 acres where a conditional use permit is required and a variance for a 15 ft. east side yard setback and a 31 ft. west side yard setback where 35 ft. is required in Art. IV Sect. 401.6 & 431.4 of the zoning resolution. Property location is 1.806 acres on the south side of Portage St. approximately 242 ft. west of Frank Ave., Sect. 11SE Jackson Twp. Area zoned R-2.
MR. MCDONNELL: The next appeal is appeal #1853. The property owner is Mike, is that Kochovski?
MR. KOCHOVSKI: That’s close enough.
MR. MCDONNELL: If you tell me what it is I’ll try and do it right.
MR. KOCHOVSKI: Kochovski.
MR. MCDONNELL: Kochovski. I don’t guarantee I’ll get it right again though to be honest with you. Ok Mike Kochovski. Address is 5150 Foxchase Ave. NW, Canton, Ohio 44718. The applicant is Hammontree & Associates Limited. The address is 5233 Stoneham Rd., North Canton, Ohio 44720. The decision being appealed, request number one, a conditional use permit for group dwelling development with a modification of the minimum lot area to 1.806 acres where a conditional use permit is required, and, number two, a variance for a 15 ft. east side yard setback and a 31 ft. west side yard setback where 35 ft. is required in Art. IV Sect. 401.6 and 431.4 of the zoning resolution.
The property location is 1.806 acres on the south side of Portage approximately 242 ft. west of Frank Avenue. The premises affected are 1.806 acres on the south side of Portage St. NW, approximately 242 ft. west of Frank Avenue NW, quarter section 11SE Jackson Twp. Area zoned R-2.
Date of decision being appealed is May 2, 2003. Date appeal filed with the zoning administrator May 2, 2003. Date appeal filed with the board May 2, 2003. Date of publication in the Repository is May 8, 2003. Date of notice mailed to parties in interest May 9, 2003. Date and time of public hearing is May 22, 2003 at 8:00 p.m. it is now 8:03 p.m. And for the following reasons, the requests is being made for the following reasons, it says see exhibit “A” in the file. Exhibit “A” reads, Kochovski cup, excuse me Kochovski C-U-P & Variances requested for the following reasons. And item one and I see only item one. “Through the recent rezoning process at the end of 2001, an R-4 zoning designation for this tract was requested. It was the intent of the developer to construct a group dwelling with multiple buildings. The zoning commission discussed an R-2 zoning designation and acknowledged a variance for a group dwelling for the acreage would be needed. The zoning commission then approved the R-4 request. The trustees were also aware the developer intended to construct a group dwelling complex. The trustees however, voted to downsize the zoning request to an R-2 to minimize the density and use a step down zoning to nearby R-R tracts. The minutes of the trustees’ meeting does not indicate the trustees recognized a variance for a group dwelling complex was needed for the acreage for this tract with an R-2 zoning. The conditional use permit for a group dwelling however was discussed at the trustees meeting as reflected in the minutes and was acceptable to the trustees. All parties involved in the rezoning process were aware the group dwelling complex would be revised. The majority of properties along the east property line which have frontage along the west side of Frank are zoned and used as businesses. However, two properties are currently zoned and used as residences, which requires a 35’ setback instead of a 10’ setback for adjoining business uses. It is logical to assume the adjoining residences will not remain as residential zoning in the future. We are asking for a 15’ setback along these two residential properties. Part of one proposed duplex encroaches over the westerly setback line by four feet. The adjoining tract is encumbered by a gas well and easement. It is most unlikely any type of structure would be constructed on the adjoining tract”.
We have a copy of a letter here received July 11, 2002, on the letter head of Hammontree & Associates Limited, addressed to the Jackson Township Board of Zoning Appeals and it’s regarding application for conditional use for Mike Kochovski group dwelling development 2.011 acres on the south side of Portage St., 400 ft. more or less west of Frank. I will let the applicant’s tell us about that. We also have a copy of the county tax map showing the location of the property. Also in the file we got a print from Hammontree & Associates. It is a site plan for a 2.01 acre tract and it is titled Kochovski, I told you I wouldn’t get it right, a 2.01 acre tract. It is dated June 20, 2002 and we will let the applicant tell us about that. And that is everything in the file. And who will be speaking on behalf of appeal 1853 this evening. Do you need an easel?
MS. BENNETT: I thought about it but I think I can just hold it up.
MR. MCDONNELL: If you do need it just let us know.
MS. BENNETT: Thank you.
MR. MCDONNELL: If you would raise your right hand. Do you swear or affirm that the testimony you’re about to give is the whole truth and nothing but the truth?
MS. BENNETT: I do.
MR. MCDONNELL: Ok, if you would for the record state your name and address.
MS. BENNETT: My name is Barbara Bennett.
I’m with Hammontree Engineers and Surveyors at 5233 Stoneham Rd. in North
Canton, Ohio. I’m a registered engineer and surveyor with Hammontree
& Associates. I’m a partner and also the manger of our land development
engineering department. I’m here this evening representing Mike Kochovski
on this project and if you recall we were here a little less than a year
ago with a similar request. There are some conditions that have changed
which is why we are here again presenting this case. Some of the
conditions that I think should be considered and have changed our request
is some of the adjoining uses. Catty cornered at the northeast corner
of, or the northwest corner of Frank & Portage a bank has started construction.
This time last year I think there was still some residences on those properties.
So the business use in that area and the intersection has expanded.
Another condition that has changed has
been the map review committee. They have come full circle and have
provided their recommendations for overall Jackson Township Zoning.
The recommendations from the map review committee on properties along Frank
Rd. adjacent to this property that we’re submitting, the recommendations
were that those properties should be zoned business. As stated in
my letter currently there are two properties that are residential at this
point in time. That means that the township could initiate rezoning.
I don’t think that’s a priority at this point in time but it is a very
real possibility that the adjoining properties would be zoned business.
The third condition that’s changed in our proposal here is that the zoning code has been revised. Last year if you recall we asked for a variance for the acreage for a group dwelling. The minimum acreage as listed in the zoning code is three acres and we were required to get a variance. That was denied at the time. The zoning code was amended to allow this board, the board of zoning appeals, to modify acreage for group dwellings if you deem it to be appropriate and consistent with the intent of the zoning regulations. So we don’t need a variance for the acreage, but we do need a modification and approval from this board. I guess that means that we don’t have to show a hardship in respect to the acreage but my job is to make sure that you see that it is consistent, our proposal is consistent, with the intent in the zoning regulations.
With that I do have a few displays here as always. This is a zoning map. This is our property that we are submitting which is zoned R-2. The property to the west is R-2 and another property owned by Mr. Danner to the west is zoned R-1. The property to the south and to the east are business. The orange is business over here and these are the two properties in question that butt up and currently are zoned residential.
MR. MCDONNELL: Will you be leaving those with us Ms. Bennett?
MS. BENNETT: Sure I can do that.
MR. MCDONNELL: Well if you testify…. Now if you want to take them back to the office and make copies that’s fine.
MS. BENNETT: No you can have them.
MR. MCDONNELL: You want to just put a number one somewhere on that. We’ll call that exhibit one. Thank you.
MS. BENNETT: I’d like to address our variance request here.
MR. MCDONNELL: Ok we’ll call this exhibit two. Thank you.
MS. BENNETT: I’ve taken our proposed site plan and highlighted some of the elements that I think are pertinent to our request. This big orange blob, sunshine, is a gas well easement. It’s basically a no build zone, no development zone, and no utility zone according to the East Ohio Gas Company.
As you can see here on our proposal we have one, two, three, four, five, six buildings. This building on the south end is a one unit building so we have a total of eleven units. Although this survey is of a 2.01 acre tract, the 2.01 acres goes to the center line of Portage Ave. For zoning purposes we must exclude the right of way, so for zoning purposes this is a 1.806 acre tract. For a group dwelling in an R-2 district we are allowed six units per acre. Six times 1.8 equals 10.8 units. You round it up so that’s why we show eleven units.
On the west side of the property we’re asking for a variance for this unit here. We have 31 ft. to the side yard line where 35 ft. is required. It only covers about half of the building. Again this is a no build zone and it is very unlikely that there would be anything that would be constructed in this area. This is the tract line. It is zoned R-2 and this is zoned R-1 through here. So the likely hood that anything would be constructed back in this area is very improbable. This property is owned by Mr. Danner. Mr. Danner did sell this property to Mr. Kochovski and I believe Mr. Danner may have a few things to say in regards to how it affects his property or not affects his property. The 31 ft. is the minimum that we’re requiring to be able to build this structure and be able to have 20 ft. driveways in the front so I believe the shape of the property is somewhat of irregularity that we’ve inherited. It is a long narrow property. We do have adjoining zoning that is not consistent along the property so therefore the setback requirements jog along the west property line.
On the east side these are the two properties that are zoned residential. Again we have a long narrow property, the zoning jogs along our property line, and that makes that somewhat of a hardship in trying to develop this property. If this was any zoning, R-2, business, or commercial, then the setback would be 10 ft. Because it is R-R right now we are required to have 35 feet. We have a 15 ft. setback as shown on these two buildings which leaves a 20 ft. driveway for room for cars to park in the driveway if needed and the zoning code does provide or demand that we have a 10 ft. wide buffer strip and screen between residential properties. That would be the case on both the west and the east side in these areas where we’re asking for variances. Again this is an exceptional condition, a long narrow strip of property and the adjoining zoning is not consistent over our property line. Again this is the minimum that we’re requiring to over come this hardship.
The modification for the acreage in the 1.8 acres, as I said it’s my job to make you understand or help you to understand that this is consistent with the zoning code and the regulations. R-2 does permit group dwellings. We’re not trying to jam as many units as we can on it; we’re trying to abide by the density figures. The step down zoning was discussed at the zoning, at both the zoning commission and at the board of trustees so this makes sense. You have business zoned along Frank Rd., you have an R-2 step down zone, and then as you go further to the east, or to the west, I’m sorry, it continues to be residential properties so this is a good fit for step down zone from business into the residential.
I believe this is close to if not exactly what the board of trustees and the map committee had in mind. The zoning code does acknowledge the situation. We have group dwellings next to the residential developments for properties and again the zoning code does demand that we have a 10 ft. buffer screening between residential properties.
If the modification for the acreage is not granted and Mr. Kochovski is left with one duplex on 1.806 acres, this property cannot be split, it would not conform to zoning and it would not conform to regional planning’s requirements. We’ve taken a look at it and verified that with John so we would be left with just one duplex on this 1.806 acres.
I guess that leads us into the conditional use permit. With what we’re proposing we can assure that the gas, water, drainage, the access, sanitary sewer, regional planning, all those different agencies, soil conservation service, all those different agencies and utility regulators can provide those necessary services for those projects. The fire department has sent correspondence to Mr. Phillippi in regards to this project that they do have adequate access and ingress turnaround capabilities for this project. With this project we are able to meet the special requirements in the zoning code under section 431.2 and that is the letter that I have addressed last year in June, or revised in July 2002 Mr. Chairman. If it is the board’s desire I can go through each of these elements or I can answer the special conditions on section 431.2, however you would prefer.
MR. MCDONNELL: Well if you want to, it might make it easier if you want to go through because we do need to get this on the record so if you just want to go through. Obviously you have a copy of your letter?
MS. BENNETT: Yes.
MR. MCDONNELL: Ok why don’t you go through that Ms. Bennett.
MS. BENNETT: The special sections
in 431.2 general criteria for all conditional uses. The proposed
use, a group dwelling development consisting of five duplexes and one single
family dwelling, will not be detrimental to properties in the immediate
vicinity or the community as a whole.
The proposed use will not restrict or
adversely affect the existing use of the adjacent property owners.
The access drive on Portage St.
will conform to Township and County criteria.
Erosion and sediment control requirements
of Stark County Soil & Water Conservation District will be followed.
The site will be properly landscaped.
The proposed residences will be
constructed and maintained in a neat, orderly and safe condition.
In addition section 431.3C, we have
specific development standards that we must adhere to. I guess number
one in the special development standards does not apply. The use
will be residential and there will be no specific hours of operation.
The vehicular entrance will be located
more than 100-feet from the intersection of, that’s High Mill and Portage
but I think that should to be Frank and Portage.
The outside lighting will be designed
so as not to constitute a nuisance or impair safe movement of traffic on
adjacent streets and will be shielded from adjacent properties.
There will be no floodlights, searchlights,
loudspeakers or similar structures.
The trash receptacles will be adequately
screened with wood fencing or landscaping.
The grading and drainage design for this
site will be prepared by Hammontree Engineers and submitted for review
and approval to the Stark County Subdivision Engineer.
Let’s see, we have additional conditions
that we have to comply with following section 431.6J. By the plan
that we have proposed we have a minimum of 30 ft. of open space between
each dwelling.
The access road and driveways will be
paved with concrete, asphalt or the equivalent. The vehicular approach
will be designed to not create an interference with traffic on surrounding
public streets. The dead end street will have a turnaround with a
44 foot paved radius for adequate movement of safety vehicles.
Trash dumpsters will not be placed between buildings.
There will be no parking areas, service acres or active recreation areas within the development.
The proposed development is residential. However, a 10 foot buffer yard will be provided along the east and west property lines adjoining the R-R and R-2 districts and will comply with section 411.9D.
We do not have any parking areas of fifty spaces or more.
The use, placement and dimensions of all buildings, driveways and curb cuts shall conform to and be substantially constructed in accordance with the approved development plan.
We trust this information is adequate to meet the requirements of the zoning resolution and we will be pleased to respond fully to any questions or concerns the board may have. I guess there are four issues; the variance on the west, the variance on the east, the modification of the acreage and the conditional use permit.
MR. MCDONNELL: Ms. Bennett you indicated and I remember this coming before the board last summer sometime thereabouts. What has changed with this request verses what was requested back in June or July of last year?
MS. BENNETT: The plan has not changed. What we are proposing has not changed. There is external circumstances that have changed and again those external circumstances are the change in the zoning code to allow a modification of the acreage, adjoining uses catty cornered across the street where we do have a bank or a business use that is currently under construction and the map review committee did come out with recommendations that eventually their recommendation is that the property along Frank Ave. that abuts the east property line should be zoned business. I call those external type conditions.
MR. MCDONNELL: Is there any way you can see Ms. Bennett to construct this in this plan and meet zoning? Let’s forget about, let me rephrase that. Let’s forget about the acreage. Is there anyway that this plan can be situated on the actual acreage that you have available without requiring any variances?
MS. BENNETT: No. It would push these units into the driveway and this unit would be gone, this unit would be gone and this unit would be gone. We looked at about five different layouts and we just kept coming to the same conclusion over and over again when we were coming through the planning process in our office. The very narrow long piece of property, which I view as an exceptional condition with the encroachment of this no build zone with the gas well. We do have one, two, three, four, five, six parcels adjoining ours with six structures. That’s all were asking for is six structures. The closest residence is more than 100 ft. away. Those structures are located 500 ft. to the east and it serves almost as a natural buffer. This property sits a lot higher than the residential structures over here.
MR. MCDONNELL: Any questions from the board?
MR. GIULITTO: Mr. Chairman.
MR. MCDONNELL: Mr. Giulitto.
MR. GIULITTO: I just have one question off the top of my head here. You had mentioned that you are going to have the ten foot buffer yard. Are you going to provide landscaping and screen that some how or is it just going to be the yard?
MS. BENNETT: The zoning code requires fencing or mounding and trees so we would have to do one of those options.
MR. GIULITTO: So you are going to try to screen it?
MS. BENNETT: Absolutely. Yes.
MR. MCDONNELL: Anything else?
MR. GIULITTO: Not yet.
MR. MCDONNELL: Mr. Juergensen. Any questions John or do you want to keep looking?
MR. JUERGENSEN: No.
MR. MCDONNELL: Ok, any thing else Ms. Bennett?
MS. BENNETT: Not at this time but if it’s alright with the board I’d like the opportunity to perhaps respond to some of the concerns the residence may bring up.
MR. MCDONNELL: That will be fine. Typically it’s, in a case like this we will give the applicant the last bite at the apple.
MS. BENNETT: Thank you.
MR. MCDONNELL: Thank you. Who else, is there anyone else who wishes to speak in favor of this appeal? Come on down. If you would raise your right hand, do you swear or affirm that the testimony you’re about to give is the whole truth and nothing but the truth?
MR. DANNER: I do.
MR. MCDONNELL: And for the record state your name and address please.
MR. DANNER: Charles Danner, I live at 5220 Portage St. NW, Jackson. My property and my daughters are immediately to the west of the property that is looked at here. I’d like to state first that I have not spoken with Mr. Kochovski since a year ago since before I sold him the property. I’m unaware of the exact details of his plans. I have not seen any of this. I wanted to make that known in advance. I have no interest in the buildings or whatever. My reason for supporting it is in terms of what I see as fairness to the person who bought the property from me, Mr. Kochovski, and for two main reasons. One is what I see as fair use of the property and best use of the property. All you would need to do is come and stand in the middle of that property or on my property and in every direction you look other than west, you would see development. Either commercial and retail to the west, excuse me, to the east on the east side of Frank Rd. to businesses or office on the west side of Frank Rd., with I understand two exceptions, to the south office spaces, to the north office and other developments including a duplex and a church. I think if you did that, maybe some of you have, it would be very clear to you that this property is not suitable for other use than what is proposed. I tried for many years to sell this, to what was then three acres, as rural residential for I think it was two point something acres for about $15,000 unsuccessfully for many years. When Mr. Kochovski approached me and we discussed what use it might be, at the point I urged a rezoning which was approved.
My two main reasons for the best use of the property, I think it would be obvious if you look at it and see what is happening all around it. Secondly, the issue of buffering, my understanding is from the beginning the zoning in Jackson was intended to provide for a safe buffering for residential especially in mind with residential owners, which I am and my daughter is. I see that as certainly following the proposal that is here because we have commercial east of Frank Rd., office space west, and then what would be as I understand buffering either duplex or multi-family before rural residential, it is in effect which is my situation. I’m trying to think what other points I wanted to make about it. I guess I would just emphasize again what I see as certainly a fair use, best use of the property. The other thing I was going to mention was I believe strongly we’re the homeowners to the west who are certainly most affected by this proposal. We’re the ones who will look at the buildings as we do now look to the west, to the south, and see the office spaces, two story in one case. I have no complaint about it because of the idea of buffering. We look to the north and see the development as well as the commercial businesses lit up at night to the east of us and so I strongly believe we’re the ones who will certainly be affected by it and we do not object to the use of it from the standpoint of fairness. I thank you.
MR. MCDONNELL: Sir if you would just for a minute. Mr. Danner, Mr. Danner.
MR. DANNER: Yes, I’m sorry.
MR. MCDONNELL: Let’s see if the board’s, that’s alright stay right there. Let’s see if anyone from the board has any questions for you before you leave if you don’t mind. Gentleman any questions? I have one question Mr. Danner. When did you sell this property to…?
MR. DANNER: It was finalized; I’m not real sure on this, in the summer. I think it was maybe May or June through Putnam Properties.
MR. MCDONNELL: We’re talking about last summer.
MR. DANNER: Yes, in 2002.
MR. MCDONNELL: Ok, thank you. Is there anyone else in the audience wishing to speak in favor of this appeal? By your silence I’ll gather there is no one. Anyone in the audience wishing to speak in opposition to this appeal? If you would, raise your right hand please. Do you swear or affirm that the testimony you’re about to give is the whole truth and nothing but the truth.
MR. RUCKMAN: Yes I do.
MR. MCDONNELL: And for the record state your name and address please.
MR. RUCKMAN: My name is Gary Ruckman and I live at 5173 Sherlin Ave. and I’m here on behalf of my father who lives at 6665 Frank Ave. I guess I’m not sure why we’re here tonight. The proposal is the same. We went through this. I’m not sure what piece of property he’s particular talking about here because, Mr. Danner, because if I were to stand in the middle of that property I see the back of my father’s house, I see the back of the power cleaning company next door. I believe we corrected the people here before that there is one business on Frank Rd. right now out of those six properties. There is Mr. Locke’s house, there’s Mr. Kugel’s house, there’s Mr. Clark’s house and I don’t know who’s living on the corner at this time but that still is a residence at this time as far as I know and I’m not sure why we’re here. I guess, you know, if I were looking for a piece of property to buy, it was one thing if maybe I was looking at one or two setback but we’re talking about a complete change here. If I were to buy a piece of property and want to put these kind of buildings on it that required three acres I think I would have looked for three acres; not less than two acres of building property. So again I ask, why are we here? My father asked I think last year when we were here for this meeting that he thought there was a two year time limit of bringing something like this back to the board. I don’t believe that question was answered and at one time my father was on the board of zoning appeals here for several years and as far he remembered there was a two year statue unless that’s changed. That was never answered. I’d like to know what the township regulations are on the setback of gas wells. We had a person from hazard material come in and speak to our students and they say the state says that if there is an explosion of the gas well that shrapnel can go up to 200 ft. Is this person going to take responsibility if there is an accident? If that gas well happen to go and their house is within 200 ft? Again I’m using statistics coming from someone from the State of Ohio that is very knowledgeable. Also the traffic is horrendous. You would be dumping traffic from eleven more, five duplexes and a house right on the corner of Frank and Portage. When was the last time you guys drove by there? Before you vote on this I would ask you to drive by there and see what one driveway dumping eleven to twenty-two vehicles out at any time during the day, I don’t’ care except for maybe midnight to six o’clock anymore, would do to that corner. I just don’t understand it. When was the last time somebody bought a piece of property from what I understand for $80,000 in Jackson Township in the last year and was able to built five duplexes and one house? He mentioned last time when we were here that he couldn’t maximize his income off of that property if he could only build one duplex. Well I’m sorry, you bought a piece of property that was a certain condition, long and narrow, that’s not our fault that you can’t build five duplexes and one house on it according to the current zoning as far as it is at this time. Why not build two duplexes? Why not scale it back? You guy asked the same question, what has changed? Nothing has changed; we’re back here again and it’s like you know, the kid that keeps going to his parents and keeps asking for the same thing over and over until he gets what he wants. Again why are we here? I don’t understand it. Thank you.
MR. MCDONNELL: Sir, if you would Mr. Ruckman let’s see if the board’s got any questions for you. Gentleman any questions?
MR. RUCKMAN: I guess I’ll just repeat I don’t understand why they keep saying that the property along Frank Rd. is all business. Right now there are six properties. One is a business and five are residences. If you stand in the middle of that piece of property you would look at the back of my parent’s house. If you look to the one side, Mr. Danner’s house does not but up to that property; his land curves around and touches it but Charlie Rohr, his nephew’s property, is the one that would be looking at the back of those properties; not Mr. Danner's. If you look across the street there’s a duplex and a house I believe still across the street and if you turn back in the other direction you see the back of one business property on the DeHoff property and then there is a couple of large two stories over there so you know, if you were to stand in the middle of that property and turn around and look, I don’t know where you see all the businesses. Yes, you know the strip mall is on the other side and you got Wal-Mart and all the Sam’s club but if you were to stand on that property you’re going to see other houses and duplexes that still exist in just about any direction you look, not businesses. Thank you.
MR. MCDONNELL: Is there anyone else in the audience who wishes to speak in opposition to this appeal? If you would, raise your right hand. Do you swear or affirm that the testimony you’re about to give is the truth the whole truth and nothing but the truth.
MS. RUCKMAN: I do.
MR. MCDONNELL: For the record state your name and address please.
MS. RUCKMAN: My name is Donna Ruckman, 5173 Sherlin Ave. NW, Massillon, Ohio. I’m speaking on behalf of Bob Cazzoilli, the owner of Power Cleaning and Maintenance Incorporated at 6677 Frank Ave. And if I could I would like to read his statement that I have.
MR. MCDONNELL: I don’t think we can do that. Testimony, testimony before the board is required to be under oath or at least sworn and attested to before a notary. We cannot accept testimony that is not under oath and you reading while you are under oath does not mean, does not put his testimony under oath. So we just can’t let you do that.
MS. RUCKMAN: Ok. Thank you.
MR. MCDONNELL: Is there anyone else in the audience wishing to speak in opposition to this appeal? Do you want to raise your right hand? Do you swear or affirm that the testimony you’re about to give is the whole truth and nothing but the truth?
MR. BOB LOCKE: I do.
MR. MCDONNELL: And again for the record state your name and address please.
MR. LOCKE: Bob Locke, 6699 Frank.
MR. MCDONNELL: Mr. Locke, is that correct?
MR. LOCKE: Mr. Locke, L-O-C-K-E.
MR. MCDONNELL: Ok. Go ahead Mr. Locke.
MR. LOCKE: Same question, I don’t know what we’re here for? They are still assuming that my property is going to be sold for business and it’s not. It’s not zoned business and it won’t be as long as I live and I can’t see why we’re going through this again.
MR. MCDONNELL: And you’re at 6699 Frank?
MR. LOCKE: Yes.
MR. MCDONNELL: Anything else?
MR. LOCKE: No, I think Mr. Ruckman said about everything.
MR. MCDONNELL: Any questions from the board? Thank you, Mr. Locke. Anyone else in the audience wishing to speak in opposition to this appeal? By your silence I will gather that there is no one. Mr. Phillippi, a couple of questions for you. Have you had a chance to review this site plan and this request?
MR. PHILLIPPI: Yes.
MR. MCDONNELL: Other than the variances requested and the size of the lot, does it meet other setbacks? Does it meet the other or any landscaping requirements of the zoning resolution or all other requirements of the zoning resolution with the exception of the lot size and requested variances?
MR. PHILLIPPI: Yes, it meets all the zoning requirements. We don’t have a detailed landscaping plan submitted at this point that shows the exact construction of the buffering but that would be a hard and fast requirement of the zoning that it be constructed within those buffered areas that are shown on the plan.
MR. MCDONNELL: Are you aware, and I’ve been looking for it and I didn’t see it, are you aware of any restriction placed on the board or any restriction with regard to hearing the same matter within a certain time frame?
MR. PHILLIPPI: There is no restriction like that and to my knowledge there never has been a restriction on the board of zoning appeals. There is a requirement that a plan that has once been considered that on a variance if there is no change in that, and we’ve had that before, that the board can’t re-hear the exact same request that they’ve already turned down. In this case it’s really not the same because this is a conditionally permitted use and as I recall at the last hearing, once the board denied the variance at that time under those regulations for that size of the parcel, the question of the conditional use was never brought up. It never went further because the board couldn’t have granted it once the variance was turned down. The appeal was never considered on its own merits at that time.
MR. MCDONNELL: Any other questions from the board for Mr. Phillippi? Ms. Bennett we promised you the last bite at the apple so here’s your opportunity.
MR. BENNETT: Just a short response. With regards to some of the traffic concerns, according to that map up there, the Stark County Transportation Map, there are 18,000 cars that travel on Portage Ave. in that corridor everyday. If we have eleven units on our tract, two cars per unit, let’s say to be conservative there’s ten trips per day, that’s a drop in the bucket on the traffic that’s already generated out there. That’s less than one-half percent increase of traffic.
Again as Mr. Phillippi had stated just to make sure the board is clear on this, the conditional use permit was never acted on last year. Once the variance for the acreage was denied then this conditional use permit was never fully submitted or considered before the board.
As Mr. Danner had stated, we are in full agreement with him and we think this is a fair and good use. It is a good step down use. There is buffering requirements that are inherent in the zoning code which protects the adjoining existing residential properties. I do believe whole heartily that eventually the properties along Frank Ave. will be zoned business. Maybe not in the next two years, five years, but at sometime in the future that map review committee that took a year, two years, to assemble their opinions will probably be followed.
Again the exceptional hardship we have with the gas well and the long narrow property, the inconsistent zoning along our property lines, these are all issues that I trust that the board will consider and hopefully we can get favorable consideration on our request. Thank you.
MR. MCDONNELL: Any questions from the board? Ms. Bennett a question. When you came before the board the last time, or when this request came before the board, I know here it said, and you alluded to it or mentioned that this was 2.011 acres is what this shows and now it’s 1.806 or there abouts.
MS. BENNETT: Correct.
MR. MCDONNELL: But the actual lot size has not changed, is that correct?
MS. BENNETT: That is correct.
MR. MCDONNELL: The piece of property has not changed?
MS. BENNETT: That is correct.
MR. MCDONNELL: It is just the measurement from the right of way. Is that correct?
MS. BENNETT: That is correct. For zoning purposes we exclude the right of way; that’s correct.
MR. MCDONNELL: And so that right of way was included in this 2.011 acres back in the summer?
MS. BENNETT: Yea I think we amended the zoning request that night.
MR. MCDONNELL: i.e. the right of way has not changed and the right of way has remained consistent since last summer?
MS. BENNETT: The right of way has not been finalized; it has not been transferred yet but with the road improvements it is pending.
MR. MCDONNELL: So for all intensive purposes what we’re looking at is exactly what we saw last summer?
MS. BENNETT: Yes.
MR. MCDONNELL: Any other questions gentleman? Thank you. Mr. Phillippi before the board closes to public hearing another question for you. To your knowledge has any zoning in this area changed since this appeal was heard that last time? Let’s say last summer.
MR. PHILLIPPI: There have been no zone changes in that area since the last time. That’s correct.
MR. MCDONNELL: So the properties along Frank have been, those that are R-1 and R-R or residential zoned were residential zoned then and the ones that are zoned B-1 were zoned B-1 at that time also?
MR. PHILLIPPI: That’s correct.
MR. MCDONNELL: The lots which would be the south, southwest corner of Frank and Portage where they are building a bank at this point, has that zoning been changed since last summer?
MR. PHILLIPPI: On the northwest corner?
MR. MCDONNELL: I’m sorry, the northwest corner?
MR. PHILLIPPI: No that zoning was in place for both of those properties that the bank will be utilizing. The property on the corner and the property immediately to the west are both zoned B-1 and will be utilized for the bank.
MR. MCDONNELL: And had been at the time we heard the last hearing?
MR. PHILLIPPI: That’s correct.
MR. MCDONNELL: Ok, any other questions for Mr. Phillippi? Ok, thank you. With that the board will close to public hearing, or to the public, and we will discuss this, this evening and hopefully come to some resolution. Gentleman your thoughts. Gentleman let me ask you a question. We have a number of requests here. We do have request one which is the conditional use permit with a modification of 1.0, 1.806 acres and then the variance for the actual setbacks. Do you think its worth wild to separate those two? I think request two becomes a moot point if request one is not granted. So just to make sure we’re Kosher, do we have a motion to separate those two. I think we can just do it.
MR. WERNER: I so move.
MR. DODSON: Seconded
MR. MCDONNELL: Please call the role call on that Joni.
MS. POINDEXTER: Mr. Juergensen.
MR. JUERGENSEN: Yes.
MS. POINDEXTER: Mr. Giulitto.
MR. GIULITTO: Yes.
MS. POINDEXTER: Mr. Dodson.
MR. DODSON: Yes.
MS. POINDEXTER: Mr. Werner
MR. WERNER: Yes.
MS. POINDEXTER: Mr. McDonnell.
MR. MCDONNELL: Yes. And so now what we are considering is request number one which is a conditional use permit with a modification to 1.806 acres. Any thoughts gentleman?
MR. JUERGENSEN: Mr. Chairman I’ll start it. With respect to 431.4 the addition to the regulations letter “B”, apparently gives us the ability to modify the minimum lot requirements if we feel it is appropriate and consistent with the intent and purpose of the zoning resolution. The applicant is asking for approximate 40% reduction in the required lot size from three acres to 1.8. My concern is that part of the purpose and intent behind the zoning resolution is to control the density of the population in a given district. What concerns me about this is that they are asking for the reduction of a lot size and the variances along with it. It just seems that they are trying to crunch maybe more people into that space than the intent and the purpose of the zoning resolution would permit. So to that extent I would have a problem with granting the conditional use permit with that modification.
MR. MCDONNELL: Any other comments gentleman? Gentleman let me put my two cents in. I share Mr. Juergensen’s concerns first of all with the request for the 40% reduction in the allotted size. Now the fact that somewhere the trustees added item “B”, and I don’t know when that was, let’s assume it’s been since this became effective. I think we’ve always had the authority to reduce that three acres to 2.9, 2.8, I think we had that authority. This just spells it out further. Well regardless of that a 40%, reduction of 40% is substantial. And as John indicated to when you start taking a look at 40% reduction plus to be able to do it there is the requirement for the variances, for additional setback variances. It just seems to me it’s attempting to put five pounds of sardines in a two pound can. It’s just not going to fit. I do, you know I feel for the applicant and I see his dilemma. By the same token one of the criteria we have to take a look at in the Duncan case and everywhere else is if it is self created. The applicant bought the property as it was currently zoned, and all other areas, and there has been no change in the zoning. There is a statement that there is a gas station going in catty cornered to it. That could have gone in anytime. The zoning has not changed. Potentially that was always there. I really do not see any change from this request verses the last one the board had. And I’m going to refer to our two attorney’s, res judicata I don’t know if that applies to this board or if it does how it would. But again, I see nothing has change here that would, and even if there was a change, let me say that, I would have difficulty with 40% plus the area variances.
MR. DODSON: Mr. Chairman with regards to res judicata, that is generally applied when a specific request has been turned down for zoning and the same request is made for basically the same thing. So I don’t think that’s a problem but just for the record I agree with your comments on the size of what’s being requested as far as the variance or conditional use. Thank you.
MR. MCDONNELL: Any other comments gentleman? Do we have a motion?
MR. JUERGENSEN: Mr. Chairman I would move that appeal #1853 be denied such as a yes would be a denial of the motion.
MR. MCDONNELL: And you’re talking specifically about requests number one in 1853 and your motion is to deny where a yes is denying the motion, denying the appeal?
MR. JUERGENSEN: Correct.
MR. MCDONNELL: Ok. Do we have a seconded? Well I seconded that.
MS. POINDEXTER: Mr. Juergensen.
MR. JUERGENSEN: Yes.
MS. POINDEXTER: Mr. Giulitto.
MR. GIULITTO: Yes.
MS. POINDEXTER: Mr. Dodson.
MR. DODSON: Yes.
MS. POINDEXTER: Mr. Werner.
MR. WERNER: Yes
MS. POINDEXTER: Mr. McDonnell.
MR. MCDONNELL: Yes. Gentleman with the denial of request number one it would appear that request number two is a moot point. I don’t see any reason to vote on it. Do you?
MR. GIULITTO: No.
MR. MCDONNELL: So with that Ms.
Bennett your request has been denied.
MS. BENNETT: I heard.
MR. MCDONNELL: I know you heard. Ok, now you do have thirty days from the date of the decision, which is tonight, to appeal to the Court of Common Pleas. Ok and thank you for your presentation.
(This concludes appeal #1853)
Mr. McDonnell asked if there were any comments or a motion on the minutes from the May 8, 2003 board of appeals meeting.
Mr. Giulitto made a motion to approve the minutes from May 8, 2003.
Mr. Dodson seconded the motion.
The vote was: Mr. Juergensen-yes, Mr. Giulitto-yes, Mr. Dodson-yes, Mr. Werner-Abstain, and Mr. McDonnell-yes.
Mr. Giulitto made a motion to adjourn the meeting.
Mr. Juergensen seconded the motion.
The vote was: Mr. Juergensen-yes, Mr. Giulitto-yes, Mr. Dodson-yes, Mr. Werner-yes, and Mr. McDonnell-yes.
Respectfully submitted,
Joni Poindexter
Zoning Data Coordinator
Clerk/Secretary