Members present:                                                                    Ted Deremer
                                                                                                    Edward McDonnell
                                                                                                    Richard Dodson
                                                                                                   Jim Giulitto
                                                                                                   John Juergensen

Zoning Inspector:                                                                     Joni Poindexter

APPEAL #1944 – Richard Altman, 6108 Bergess Road NW, Canton, Ohio 44718 agent for Belpar Square Associates, property owner, 6976 Promway St. NW, North Canton, Ohio 44720 requests a variance for a 12 ft. front parking setback where 20 ft. is required, a zero (0 ft.) east (left) and south (rear) parking setback where 5 ft. is required and a 3 ft. west (right) parking setback where 5 ft. is required in Art. IV Sect. 411.8 of the zoning resolution.  Property location is 0.489 acres on Belpar St., Sect. 24SW Jackson Twp.  Area zoned B-3.

Mr. Deremer read the file application signed by Richard Altman.  The file contained a tax map of the property in question, notice of subdivision action for conditional approval from Stark County Regional Planning, a full size site plan and an 11 x 17” site plan showing the proposed improvements.

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

Mr. Deremer swore in Richard Altman, 6108 Bergess Road NW, Canton, Ohio 44718.

Mr. Altman stated that the property is currently a parking lot.  They would like to put a building on the property and would not be changing any of the existing conditions including the ingress and egress.  There are existing parking spaces and there is currently no green space.  Mr. Altman stated in lure of the green space they are going to try to put some interior green space on the property.

Mr. Altman stated that the front setback would be exactly as it is now.  In the rear there currently is nothing but a parking lot, and they will have a little bit more landscaping than currently exists.  The 3 ft. setback request on the west side is at the minimum point and get wider as it goes toward the back.  Mr. Altman stated that he thinks overall this could be a win-win situation.

Mr. Deremer asked what is current on the property.

Mr. Altman stated that currently there is nothing on the lot except a parking lot.

Mr. Deremer asked if the parcel is new.

Mr. Altman stated that the parcel has been there for years but was included as part of the Ashton Park parcel.

Mr. Deremer asked if the proposed improvements would take away from the parking that should be for the office building behind it.

Mr. Altman stated according the engineers the current parking that fits within the 0.49 acres is enough for their building and the balance that is left throughout the rest of the center covers all the other buildings.  Mr. Altman stated that he has a copy of the agreed upon easement for ingress and egress cross parking; however, it has not been signed yet because the Belpar Associates people are in Florida.

Mr. Altman showed the board an elevation view of the proposed building, which was marked as exhibit #1, and stated that the building would be a two story brick structure.  Basically when they talk about a 12 ft. setback that is what is there now.  When they talk about the zero ft. setbacks on the south and east that is what is there now, and when they talk about the 3 ft., which narrows down to basically zero, they are starting at 3 ft. and making it wider.

Mr. Deremer asked if both floors for the building would be used for offices.

Mr. Altman stated yes.

Mr. McDonnell asked if he is correct in stating that the parcel exists and if it is Mr. Altman’s testimony that the parking requirements for the proposed building are fully met by the parking on the parcel and the parking requirements for the existing building are fully met by the parking that will remain after the parcel is developed.

Mr. Altman stated that is correct.

Mr. McDonnell stated that the building is 3,800 sq. ft. per floor and if they were going to meet the regulations for the sides and rear the building would have to be smaller.  Mr. McDonnell asked why they couldn’t make the building smaller to fit on the lot and still meet the zoning requirements.

Mr. Altman stated that they laid the building out so the existing traffic flow would work.  They could make it a little smaller and maybe come up with a little more green space, but they played with it all different ways and this is kind of how they ended up to have the best traffic flow.  Mr. Altman asked Mr. McDonnell which way he is talking about when saying make the building smaller and if he is talking about getting the building down to a point that it is so small that they get the parking but it wouldn’t make sense to build the building.

Mr. McDonnell stated that the reason he asked the question is because the board is required to find a practical difficulty to justify a variance and that is what he is looking for.  If the building went from 76 x 50 ft. to 69 x 45 ft., which is a difference of about 700 sq. ft. per floor, it would fit the building on the lot exactly where it is and still meet the zoning requirements.

Mr. Altman stated that he would be happy to do that, but it is his understanding that when they shrink the building it is not going to change a whole bunch.  If shrunk and the grass strip is put in then the parking on the side would be unusable.

Mr. McDonnell stated that there could be a legal problem because there is no variance to eliminate the grass strip and what they are asking for is a zero ft. variance on the east side, which is where the parking lots connect.

Mr. Altman stated that the application was also to eliminate the grass strip.

Ms. Poindexter stated that if there is a zero parking setback there could be no landscaping because there is nothing there.

Mr. Deremer stated that is correct.

Mr. McDonnell asked if it is the zoning department’s interpretation that by going to a zero ft. parking setback the elimination of the grass strip isn’t required to advertised, which makes sense.

Ms. Poindexter stated that is correct.

Mr. McDonnell stated that he is looking for a practical difficulty as to why the building can’t be reduced in size to meet the requirement.
Mr. Altman stated that his point is if he shrinks the building to get the 5 ft. setback all the way around, it still doesn’t work.  He would still be in front of the board for variances for grass strips and other things and it would really screw up the traffic flow that currently exists.  Once again, if the building is shrunk 5 ft. to get the 5 ft. grass strip he would still need a variance for the parking setback, he would hinder everything, and the spaces become useless because there would be no drive to get to them.

Mr. McDonnell stated that he is not talking about the grass strip.  What Mr. Altman is trying to do is make the grass strip the reason why the building has to be 76 ft. wide.

Mr. Altman asked if Mr. McDonnell is saying shrink the building and forget the grass strip.

Mr. McDonnell stated this is exactly what he is saying.  Forget the grass strip.  Mr. McDonnell asked why the building needed to be the size it is and sitting in the position that it is, and what the practical difficulty is to not meet the zoning regulations.

Mr. Altman stated that it is very simple.  It is their opinion and their engineer’s opinion, after adjusting the building all around, this is the best practical use of the ground and also the best use for fire and public safety in using the existing conditions that are there.  Mr. Altman stated that he doesn’t think they would gain anything by shrinking the building and all it would do is put more hardship on him because it is a very small building to begin with and if it is shrunk too much it doesn’t make sense to use the parcel.  Then it comes back to why the parcel was even made if it is unusable.

Mr. Altman stated that he thinks what they are asking for is something that they have seen in other spots of the township and it would be a win-win situation for everybody.  They are using everything that exists.  They are keeping the traffic flow and not loosing something that they don’t already have.  It currently is not there, so why not get the maximum building you can get on the site and have a win-win-win.

Mr. Deremer asked if the property has to have a driveway on Belpar St.

Ms. Poindexter stated that the plan was reviewed by the fire and highway department and they had no problem with the way the property was laid out.

Mr. Altman stated that they have the ingress and egress per the access agreement that they will always be guaranteed.  It was their thought that it was better to have less driveways then more driveways onto the main street and live with what exists.

Mr. Deremer stated that his only concern is if the neighbor moves and it gets sold to someone that is not as friendly as they have now.

Mr. Altman stated that is the reason for the easement.  It runs with the land and will be recorded.

Mr. Giulitto asked if it is basically Mr. Altman’s testimony that in order the make the building exist on the parcel they need the square footage and if it is made smaller it is really not feasible for them.

Mr. Altman stated that it is very difficult to do the building at this size.  The smaller they go the more difficult it is to use the parcel.  There is some point where they would have to say if the building is shrunk too much then they would have to find another parcel and then the parcel would remain a parking lot.

Mr. Juergensen asked if part of the problem is the shape of the lot because it is not a perfect square.

Mr. Altman stated that there are very few parcels that are perfectly square.  The building was designed to fit on the parcel the best way it could.

No one else in the audience spoke in favor of the appeal or in opposition to the appeal.  Mr. Deremer closed this appeal to public input.
Mr. McDonnell stated that he does not have any heart burn regarding the front setback because it is consistent with what is there and they have had the same situation at other properties in that area.  Mr. McDonnell stated that when he asked about the practical difficulty that the board is required to find, as far as the east setback, he really doesn’t have a whole lot of heart burn about that either and it makes sense.  He has not seen a practical difficulty demonstrated for the west and the south setbacks.  Just because it is the applicant’s opinion that that is the minimum size building that can be put on the lot, that itself does not create a practical difficulty.  Mr. McDonnell stated that he is willing to listen to other interpretations or comments, but at this point he doesn’t have a problem with the front or the east side but doesn’t see that a practical difficulty has been demonstrated for the other two.

Mr. Deremer stated that he understands Mr. McDonnell’s concerns but the building is within the setback requirements and they aren’t looking at variances for the building, so it could sit where it is.  The only issue that the applicant has is the parking area.  In reading the resolution, section 411.8 where you get into items B, C, & D, they allow what the board is looking at.  It allows the granting of a variance for the side and rear parking setback when it is determined that the waiver enhances traffic flow.  That is what the applicant has testified to.  If a 5 ft. grass strip was put in the rear it would be right in the middle of the driveway for the adjacent building and would not enhance the traffic flow.  Mr. Deremer stated based on what he is reading in the resolution, heard in the testimony, and seen on the site plan that is before them, he believes the setbacks as requested are acceptable and allowed per the resolution.

Mr. Deremer stated that they are making use of a small parcel and trying to maximize the amount of business that they can generate from that parcel.  Mr. Deremer stated if the adjacent parcel owner had a problem with the structure he doesn’t believe they would have agreed to grant an easement for them to use their property.

Mr. McDonnell stated that he would like to suggest that any vote or action by the board to approve is contingent upon the successful completion of the easement agreement.

Mr. Deremer stated that the condition is possible.

Mr. McDonnell made a motion to approve appeal #1944 with the condition that approval is contingent upon the successful completion of the easement agreement.

Mr. Dodson seconded the motion.

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

Mr. Juergensen recused himself from appeal #1945.

APPEAL #1945 – Hammontree & Associates, LTD, 5233 Stoneham Road, North Canton, Ohio 44720 agent for Hoover Company ILP, property owner, 101 East Maple St., North Canton, Ohio 44720 requests a variance to eliminate the 5% interior landscaped islands within the parking lot where interior landscaped islands are required for parking lots designed to accommodate 20 or more vehicles per Art. IV Sect. 411.9(B) of the zoning resolution.  Property located at 4211 Shuffel Dr. NW, Sect. 1SE Jackson Twp.  Area zoned I-1.

Mr. Deremer read the file application signed by Barb Bennett with reasons being as stated by the applicant, “This is a truck trailer parking storage area.  This is an addition to the existing gravel parking storage lot.  Islands will not provide any visual relief because the truck trailers will be parked on both sides of the islands.  The islands will also cause problems for the drivers trying to squeeze as many trailers as they can into this area without damaging the landscaping.  There is also abundant green space to the south of the lot and the parking lot is isolated from the public right of way view.”  The file contained a tax map of the property in question, an aerial view of the property, notice of subdivision action for conditional approval from Stark County Regional Planning, a full size site plan showing the proposed improvements, and an 11 x 17” site plan of the same.

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

Mr. Deremer swore in Barb Bennett, 5233 Stoneham Road, North Canton, Ohio 44720.

Ms. Bennett stated that the Hoover Company’s storage and distribution facility is off of Pittsburg Ave. and Shuffel Rd.  There is 25 acres of land on the tract and they would like to expand their truck storage facility.  There is a long private gated driveway and there would be no passenger vehicle parking in the area that they are looking to expand.

Ms. Bennett stated that in talking with John Phillippi, regarding the project, he stated that in his memory he has never encountered a parking lot where it was dedicated solely to the purpose of trucks and storage.  If looking at the zoning code, in talking about landscaping and interior requirements in the I-1 district, 5% of interior landscaping is required.  It goes on to say such islands shall be developed and distributed throughout the parking lot to provide visual climatic relief from broad expanses of pavement.  In this case if they put the landscaped islands in it will not provide any visual or climatic relief because there would be trucks parked on either side of the islands.  It also proves a practical difficulty when placing any kind of impediment within the truck storage facility.  Truck drivers typically aim for types of impediments within a truck storage parking area such as light poles, gas meters, other cars, landscaping etc.  These items typically get run over by the trucks because of their wide turning movements.  Ms. Bennett stated that in this particular case she would call that a practical difficulty that they would not be able to meet the spirit and intent of the zoning code and it would be a moot point to put landscaping islands within the facility.  The trucks are 55 ft. long and 5% of the area would be approximately 50 ft. in length by 30 ft. wide.

Ms. Bennett stated that the southern edge of the parking facility is over 200 ft. from the public road and Shuffel Rd.  The adjoining building to the east is approximately 10 ft. higher than the parking lot, so people can’t see the parking lot from the adjoining property.

Mr. Deremer asked if there is a reason for the size of the parking lot.

Ms. Bennett stated that they were directed to make it about 200 ft. x 200 ft. and thinks they are targeting about 30 parking spaces for the trucks.

Mr. Deremer asked if the trucks are not storage trucks and would be in a constant state of coming in and out.

Ms. Bennett stated that is her understanding.

No one else in the audience spoke in favor of the 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 thinks it is difficult to argue with common sense and he had difficulty keeping a straight face when Ms. Bennett was talking about putting targets in the middle of the parking lot because he knows that is exactly what they are going to end up being.  Mr. McDonnell stated that he thinks about what would happen with the trees, which if the shade trees have a clear truck of at least 6 ft. and a minimum caliper of 2 inches, there going to end up being fire wood after the first week.  Mr. McDonnell stated that he thinks it would be detrimental to enforce the requirement in this particular situation.

Mr. Dodson agreed with Mr. McDonnell that it is common sense and stated that subsection (B) indicates that the purpose of the islands is to provide visual and climatic relief from broad expanses of pavement and he doesn’t see a reason for the requirement because the trees wouldn’t be seen with the trucks parked on the property, so they would really serve no purpose.

Mr. McDonnell made a motion to approve appeal #1945 as requested.

Mr. Giulitto seconded the motion.

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

APPEAL #1946 – Don Shultz, 571 E. Turkeyfoot Lake Rd., Akron, Ohio 44319 agent for Charles W. Reinier, property owner, 7968 Lutz Ave. NW, Massillon, Ohio 44646 requests a variance to allow an accessory building on a lot without a principal building due to lot split where an accessory building is permitted in association with and subordinate to a principal building per Art. IV Sect. 401.2 of the zoning resolution.  Property located at 7968 Lutz NW, (Parcel #1621741 & 1621742) Sect. 5SW Jackson Twp.  Area zoned R-R.

Mr. Deremer read the file application signed by Don Shultz with reason being as stated by the applicant, “The parcels will be split and when split they will be 2.7967 acres and 8.7060 acres.  The 8.7060 acre tract will have an existing accessory building without a principal building; however, in the near future a conditional use permit for a church will be applied for and the accessory building will be removed upon construction of the new church.”  The file contained a tax map of the property in question, and two plats of survey showing how the property would be split, one of which was an aerial view.  Mr. Deremer stated that the file also contained an e-mail from David Thompson with a response from Mr. Phillippi, which was read into the record.  Mr. Deremer stated that normally this would not have been read into the record but he didn’t realize where it was going until after it was read.

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

Mr. Deremer swore in Don Shultz, 571 E. Turkeyfoot Lake Road, Akron, Ohio 44319.

Mr. Shultz stated that he is the builder and developer that’s working with the First Baptist Church of Jackson.  This request stems from a purchase agreement.  The church and he will be trying to purchase the property from Charles Rainier, who is the current property owner.  As you heard there is currently a stable with a residence inside of it.  It is kind of a combination of a building currently on the property that would be on the portion of the property that they are trying to get in the lot split.  If granted approval for the variance they intend to go forward with the lot split and remove the building, but they don’t want to remove the building before they actually purchase the property.  They are, contrary to Mr. Thompson’s comments about trying to hide anything, they actually submitted their plans and they have a full design in front of the Start County Regional Planning Commission for their meeting on Monday and Tuesday.

Mr. Deremer asked if the existing parcels are two separate parcels at this time.

Mr. Shultz stated as he understands they are two separate parcels at this time.  They are being combined and split.  Mr. Rainier will retain 2.7 acres with his current home.  The whole property is 11 acres total.  The split would be for 8.7 acres.  Mr. Shultz stated that the stable would be 17 ft. from the property line and the utilities would be cut off to the building.

Mr. Shultz gave the board a copy of the layout for the future church, which was marked as exhibit #1 and explained what the plan represented.  Mr. Shultz stated that the plan for the church would be reviewed by Regional Planning at their meeting on Monday.

Mr. Deremer asked if the church plan is for the parcel in question.

Mr. Shultz stated subsequent to the lot split, the 8.7 acres would be subdivided off into four parcels.  The church would own 6 acres and there would be three residential lots facing Lutz and one facing Strausser.
Mr. Deremer stated that it doesn’t look like there would be room for the barn to sit on the property.

Mr. Shultz stated it would infringe on the church plan so it would have to come down.

Mr. McDonnell stated that it is his understanding that the predicament is that they need to split the lot and once the lot is split the church intends to buy the property which is 8.7 acres.  Mr. McDonnell asked why the lot split and the purchase of the 8.7 acres couldn’t happen simultaneously.

Mr. Shultz stated that the county won’t approve a plat to be recorded because of the zoning restriction of having the building on the lot, so they need the variance so the plat can be approved and they can do the split.  The current owner doesn’t want to tear down the barn before he has his money and the new owners can’t put up the money until they have the approval of the split.

Mr. McDonnell asked if Mr. Shultz is saying that the practical difficulty is they can’t get the lot split platted and recorded unless they have the variance and the church can’t buy the 8.7 acres until the plat is recorded and the lot is split.

Mr. Shultz stated that is correct.  Mr. Shultz stated that they would definitely entertain an approval with the contingency that within a certain period of time the building would come down.

Mr. McDonnell asked what if the variance is granted and then the deal falls through but the lot split occurs.

Mr. Shultz stated that he believes there could be zoning permits that would be withheld for anything to happen on the property.

Mr. McDonnell asked how long Mr. Shultz thought it would take between the time the lot split would occur until the church purchased the property.

Mr. Shultz stated that it is simultaneous.  Once the plat is approved it can go to the title company and the transfer would take place.  Mr. Shultz stated that they are anticipating that the building would be gone within three to four months from the time they have the split done and the purchase is completed.

Mr. McDonnell stated that his concern is more of a timing issue.

Mr. Deremer asked if it is Mr. Shultz testimony that if there is a time limit placed and there is a motion made for four months that would be adequate.

Mr. Shultz stated he would actually say that they could make a condition that they would not give them the actual zoning permit to start construction of the church until the building is down.

No one else in the audience spoke in favor of the appeal.

Mr. Deremer asked if anyone in the audience wanted to speak in opposition to the appeal.

Mr. Deremer swore in Skip Rea, 8230 Lutz Ave. NW.

Mr. Rea stated that he has a contract that has a restriction on the property for not dividing the property more than one time.  He sold the property and developed the original farm, which was 98 acres and was cut into approximately 5 acre tracts.  The property was sold with the intention that everybody had a minimum of 5 acres.  Mr. Rainier and his wife bought two 5 acre tracts and agreed that the property could not be used for anything other than residential and split only one time.

Mr. Rea stated that Lutz and Strausser is a very busy intersection and with the school down the street and putting a church on the property traffic would be tuff.  Mr. Rea stated that he thinks a church would be a determent to the neighborhood.

Mr. Deremer asked if Regional Planning would listen to the deed restriction.

Mr. Rea stated that he thought they would.

Mr. McDonnell stated, just so Mr. Rea understands, the board does not have any authority to enforce a contract or restriction.

Mr. Rea stated that he understood.  He is just saying that the original intent was so the property would not be cut up into small pieces.

Mr. Shultz stated that the agreement is a civil thing and is not part of the zoning.  He did an extensive title search for the property and there are no restrictions on the property per the title.  Mr. Shultz stated that he has went through with Jackson Townships Administrators and Stark County Regional Planning about the whole process of step one and step two and nowhere did they find out that there were any restrictions to the process or that they were doing anything out of the ordinary.

Mr. Shultz stated he believes the zoning laws have exemptions for churches to be in places and they are addressing the storm water through the regional county, there is sanitary sewer and water for the property, and there is good site distance from the entrance ways.  Mr. Shultz stated that it is already public record that the intersection is being improved by Stark County and he feels it is a good area for a residential church.

Mr. Deremer asked Mr. Shultz if he had seen the purchase agreement.

Mr. Shultz stated that he had not.

Mr. Deremer stated that it is signed by Mr. Rea and Mr. Rainier.

Mr. Shultz stated that technically there are two parcels there now and they are making two parcels and there is nothing in the title work that precludes that.

Mr. Deremer swore in Thomas Gang, 6531 Youngdale NW.

Mr. Gang stated that he wants to be a good neighbor.  They have considered all the issues and would not just poke the church into a neighborhood without considering some things.  One of the things that they liked about the location was that is wasn’t on the corner.  It is actually off the corner.  Mr. Gang stated with the future changes at the light and the changes with the road he believes that will help, but one of the key things is that there is a little rise there on the hill and they were going to lop that rise off between where their new property would be and the school so the visibility will be increased.  Mr. Gang stated with all the extra traffic from the school they feel that they are not encroaching upon anything unusual that the neighborhood isn’t already experiencing.  Mr. Gang stated they are talking about Sunday morning meetings and probably 30% of the congregation being present on a Wednesday night, so most of the traffic that Mr. Rea is concerned about would take place on Sunday mornings where the traffic level is down.

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

Mr. Deremer stated that the variance before the board is to allow an accessory building on a lot without a principal building due to a lot split.  The board has been aware of some issues down the road but they need to focus on the variance being requested and if it is a viable request before the board.

Mr. McDonnell stated that the board has been made aware of the contract that Mr. Rea has and he is sympathetic to that, but it is not the board’s job to enforce it.  Mr. McDonnell stated that when looking at the variance there are four steps.  First of all they issue a variance, then there is a lot split which has to be recorded, then the property is purchased, and then the accessory building is torn down.  Mr. McDonnell stated that there are some wholes that concern him.  If they issue the variance and the lot isn’t split then the variance is immaterial and isn’t going to happen.  But, if they get the variance and then the lot is split and then the purchase doesn’t happen, the variance still exists and the lot split still exists.  Then, they could have the variance and the lot split and the property is purchased, but maybe by someone else and not the church then the variance and the lot split would still exist and the accessory building would still exist.  Then, the forth items is the building is torn down.  If the church buys the property they still may not tear the building down, or if someone else buys the property they may not tear it down.  Mr. McDonnell stated that the whole process could take an extended period of time and he doesn’t like being put in a box where it kind of looks like they are buying a pig in a poke.  Mr. McDonnell stated that once the variance is issued they lose control of the situation and that’s the biggest problem he has with the request.  Mr. McDonnell stated that he is opposed and is not sure they have the authority to allow an accessory building on a lot just by pure definition of an accessory building where an accessory building is secondary to a principal building and there is not principal building, but he assumes since it is before them that they do.

Mr. McDonnell asked how they protect themselves or is there another scenario and do they have to give the variance before the lot split occurs.

Mr. Dodson stated that the split actually occurs when the deed is recorded.

Mr. Juergensen agreed and stated when a second deed is recorded there are two lots.

Mr. McDonnell asked if the recording of the deed and the sale happen at the same time.

Mr. Dodson stated yes.

Mr. Deremer asked Mr. Shultz to explain the process.

Mr. Shultz stated that Stark County Regional Planning will not approve the split because there is an outstanding zoning issue in Jackson with the accessory building.  Once the variance is obtained and they go back to Regional Planning the plat will be approved, but the plat filing, new deed recording, and the purchase all can be simultaneous.  A condition for the variance can be made that the church buy the property, that the building is removed within four months, or that the church is the only purchaser of the property or any other condition.

Mr. Juergensen asked if the approving of the plat would happen at the same time as the closing.

Mr. Shultz stated that the approval of the plat is saying okay this document is ready to go.  Then it is taken to the title company and there is a closing.

Mr. Juergensen stated that he thinks Mr. McDonnell’s concern is if the split is made and the closing doesn’t go through.

Mr. Shultz stated that a condition could be made.

Mr. Juergensen asked if he is correct is stating that the split could occur without the closing going through.

Mr. Shultz stated no because they wouldn’t record it unless there was some reason to transfer it.

Mr. Juergensen asked if the only thing Regional Planning is doing is giving them permission to split the property.

Mr. Shultz stated yes.

Mr. McDonnell stated that the church is going to require a conditional use permit to build on the property, and if by granting the variance with the condition that the church purchase the property, it would need to be understood that they are not in any way granting pre-approval for a conditional use permit because there are conditions with a conditional use permit as to it will not be detrimental to the surrounding area, which is perhaps subjective and cannot be measured as opposed to square feet, setbacks, access, etc.  Mr. McDonnell stated that they don’t want to get into a box where they make this contingent on the church buying the property and then they don’t grant a conditional use permit for the church.

Mr. Deremer stated that the appeal before the board is for the current property owner and needs to be handled without any implication of the future use of the property.

Mr. Juergensen asked Mr. McDonnell if he just wanted to make sure the applicant understood that they would not be getting pre-approval for the conditional use permit.

Mr. McDonnell stated yes.  If they make a condition that the church buy the property then they have to take into consideration the future use.

Mr. Deremer stated that is this is a very serious deal and if the barn were not on the property then the board would not be hearing the appeal.  The barn could burn down tomorrow and the lot split could be approved.  Mr. Deremer stated that he thinks there are other avenues that could be done and without going through the board.

Mr. McDonnell asked what if there was a purchase agreement contingent upon whatever.

Mr. Deremer stated that they know nothing about that now.  They are only here for the current parcel and the proposed lot split with what exists on that current parcel.

Mr. McDonnell asked Mr. Deremer if he is saying that there may be other options available to the applicant as opposed to needing a variance.

Mr. Deremer stated that is correct.  If the barn was gone then the lot split could happen tomorrow and the board would not hear an appeal.  The board has seen cases where if the property is one or two feet too close to the property line the bank would want a variance before allowing the sale of the parcel and that’s is what the bank is looking at now, a clear title to the property with all the necessary variances and approvals.  The applicant has the full intention of building a church as has been testified to, but the board cannot let that interfere with what they are hearing and what is being requested of the board.

Mr. McDonnell stated that he understands Mr. Deremer’s point regarding getting hung up on details as opposed to the basic question.

Mr. Juergensen asked if Mr. Deremer is against the variance.

Mr. Deremer state that he would be against the variance.

Mr. Dodson stated if he understands what Mr. Deremer is suggesting, he is saying that there could be a purchase agreement that requires the current owner to tear the building down and then the zoning ordinance would be out of it and they could go ahead with the split.

Mr. Deremer stated yes, because there wouldn’t be anything in the way of the lot split.

Mr. McDonnell stated that he thinks there are other remedies other than the board and those need to be exhausted as opposed to coming to the board for a solution, which is basically a problem out side the board’s venue.

Mr. Juergensen asked if the zoning department is telling them that if the lot is split the building becomes an accessory use.

Ms. Poindexter stated that it would be an accessory building without a principal building.  If someone owns two parcels in conjunction with each other they can build an accessory building on one parcel where the principal building is on the other parcel; however if there is a parcel that is not being used in conjunction with another parcel an accessory building cannot be put on it without a principal building.

Mr. Juergensen asked if the building is a barn, because he thought someone said it’s a barn, would be a principal use once the lot is split.

Ms. Poindexter stated that a usually the principal use is something like a single family home.

Mr. Juergensen asked what if the barn is for agricultural use.

Ms. Poindexter stated she spoke with Mr. Phillippi regarding this because agricultural uses are exempt.

Mr. McDonnell stated that there was no testimony that the building is an agricultural use.

Mr. Juergensen stated that it’s a barn.

Mr. McDonnell stated that the testimony has been that there is a residence within an accessory building.

Ms. Poindexter stated upon looking at the entire file there is a signed agricultural affidavit in the file for the building as being used as a horse barn.

Mr. Deremer stated that was for the original use for the entire parcel.  Mr. Deremer stated that the affidavit is signed for any accessory use so it cannot be rented for an apartment.

Ms. Poindexter stated that is a different affidavit.  There is a residential affidavit that says the accessory building will not be used for commercial purposes and an agricultural affidavit that says it will be used for agricultural purposes.

Mr. Juergensen asked if this is what they signed; that the accessory building would be used for agricultural purposes.

Ms. Poindexter stated yes.  This was in 1995 when an addition was added to the existing agricultural barn.

Mr. Juergensen stated that is a principal use in an R-R district.

Mr. McDonnell stated that is one of the other avenues that may be available to the applicant to pursue if the board declines the variance and if they want to restore the agricultural use this may be another avenue available to them.  Mr. McDonnell stated that he does not think it is up to the board to determine if it is an agricultural use.

Mr. Giulitto stated that he thinks it would be cleaner to side step it and deny the variance and let the parties involved decide how to handle it.

Mr. Juergensen stated that the board could table it.

Mr. Deremer stated that the board has all the information they need.
Mr. Giulitto asked Mr. Juergensen why he would want to table it.

Mr. Juergensen stated because they may not need a variance.

Mr. McDonnell stated that is for them to decide.

Mr. Deremer stated that the advertisement is for an accessory building.

The board had no further discussion.

Mr. McDonnell made a motion to approve appeal #1946.

Mr. Juergensen seconded the motion.

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

APPEAL #1947 – John P. Mollric, property owner, 6929 Hillway Ave. NW, North Canton, Ohio 44720 requests a variance for a lot split for an 18,799.88 sq. ft. lot where 20,000 sq. ft. is required in Art. IV Sect. 401.5 of the zoning resolution and a variance for a 9 ft. rear setback for an accessory building on the remaining 20,849.32 sq. ft. lot where 15 ft. is required in Art. IV Sect. 401.11 of the zoning resolution.  Property located at 6929 Hillway NW, Sect. 10 SW Jackson Twp.  Area zoned R-R.

Mr. Deremer read the file application signed by John Mollric with reasons being as stated by the applicant, “The existing parcel is extremely large and cumbersome.  Due to the existing building I am unable to split at the 20,000 sq. ft. requirement, because the existing principal building would not meet the rear yard setback requirement of 25 ft.”  The file contained a tax map of the property in question, an aerial view of the property in question, and a preliminary survey plat dated October 2004.

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

Mr. Deremer swore in John Mollric, 6929 Hillway Ave. NW.

Mr. Mollric stated he would like to split the parcel and make one half of it a buildable lot.  The reason for the variance is because he would like to sell the property as a buildable piece of land because he does not need almost an acre of land for himself.

Mr. Deremer asked if the property could be split at 20,000 sq. ft. without a variance.

Mr. Mollric stated yes.

Mr. Deremer swore in Jennifer Bobkoskie 6380 Portage NW.

Ms. Bobkoskie stated that when the survey was done, in order to split it exactly down the middle the portion where the principal building is not sitting just falls down shy of the 20,000 sq. ft. because the outbuilding on the portion of the property where the principal building is sitting does not allow for the split to be 20,000 sq. ft.

Mr. Deremer asked if the outbuilding is a permanent structure.

Ms. Bobkoskie stated that it could be removed if the variance was allowed for the lot split and it was made a condition.

Mr. Deremer asked if the lot split could be moved to meet the requirement if the outbuilding were removed.
Ms. Bobkoskie stated that the drawing is preliminary and when the drawing was done the building was left because it exists and a variance is being requested.  If split at 20,000 sq. ft. the house would not meet the 25 ft. setback because of the way it sits on the lot.

Mr. Deremer asked if where the rear of the house sits prohibits the lot from being split at 20,000 sq. ft.

Ms. Bobkoskie stated that the rear of the house meets the setback per the proposed split but would not meet the rear setback if split at 20,000 sq. ft.

Ms. Bobkoskie stated that they are asking for a 9 ft. rear setback for the outbuilding along with the lot size variance.

Mr. Dodson asked if the lot is less than 40,000 sq. ft.

Ms. Bobkoskie stated that the existing lot is actually 40,000 sq. ft.  The split is for 20,849.32 and 18,799.88.

Mr. Dodson stated that when the two are added together it totals 39,649.20 not 40,000.

Ms. Bobkoskie stated that it is a little under 40,000, so an equal split could not be done.

Mr. McDonnell stated that the property is 400 by 100, but it looks like the corner radius may take some of that off.  Mr. McDonnell asked if the outbuilding could be moved.

Ms. Bobkoskie stated that it could be removed as a condition if the variance for the lot split is allowed, but it is part of the request.

Ms. Bobkoskie stated that the actual information lists the property as 40,000 sq. ft., so she is not sure what happened as far as the numbers that are on the preliminary plat.

Mr. Deremer stated that it looks like there is a radius on Hillway that kicks out some of the square footage.

Ms. Bobkoskie stated that the neighborhood would be enhanced if a house were put on the lot and the property values would go higher.

Mr. Juergensen asked if they thought about moving the proposed split line to the west so there would be a 15 ft. rear setback for the outbuilding and then making an “L” shape toward the north side of the property.

Ms. Bobkoskie stated she hasn’t thought about it.  She could have the surveyor do it, but it would cut into the driveway.

Mr. Juergensen stated that the property is 400 by 100, so it should be 40,000 sq. ft.

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

Mr. Deremer swore in Joe Mollric, 7817 Autumnwood NW.

Mr. Mollric stated that he thinks by putting a house on the property it would add to the value in a middle class neighborhood with a price range that people could afford, which is a very good thing for Jackson Township.  Mr. Mollric stated that there is a triplex across the street and some building activity going on right around the corner.  The variance would have no practical affect on the lot and the house would only fit one way, which would be facing north, and the variance would be on the far end of the east side of the property, so it would not affect the well or septic.

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

Mr. Dodson stated that one of the things the board needs to find is a practical difficulty with the land and he doesn’t know that he sees one.

Mr. Juergensen stated that he also doesn’t see a practical difficulty.  The area is zoned R-R and the requirement is 20,000 sq. ft.  Mr. McDonnell stated that the board needs to find something associated with the land to warrant the variance and he doesn’t think anything has been demonstrated, especially, since the applicant testified that there may be alternatives to accomplish the same thing, so he has a problem with the request.

Mr. Deremer stated in looking at the tax parcel it shows the property as 40,000 sq. ft.  Based on that, and the surveyor may be taking into account the curvature of the road, but the property owner may own into the road as indicated on a lot of areas in the township.  Based on the 40,000 sq. ft. the parcel could be split in half evenly thereby not creating a substandard lot.

Mr. Giulitto stated that the tax map states it is 400 ft. by 100 ft. which is 40,000 sq. ft., so if they want to divide that by two they don’t need to come to the board.

Mr. Deremer stated that is correct.

Mr. McDonnell stated that they would still need to come to the board for a variance for the principal building setback of approximately 13 ft.

Mr. Juergensen stated that he doesn’t see where the 18,799.88 sq. ft. comes from because the survey plat shows the property as 100 ft. by 188 ft., which equals 18,800 sq. ft.

Mr. Deremer stated although the tax map shows that it is 100 ft. by 400 ft., it also shows the sharp radius on the tax map so they may not have the 40,000 that they believe is there.

Mr. Juergensen asked why it isn’t an even number if it’s a perfect number on the proposed split.

Mr. Deremer stated because they are squeezing every foot out of it that they can.

Mr. Dodson stated probably when the survey was done they found that there was less property when they located the pins.

Mr. Deremer stated that he would consider it to be 18,800 sq. ft.  What the board needs to consider is if this is an acceptable size for a lot based on the existing conditions of the existing residence.  They could tear down the outbuilding to eliminate the 9 ft. variance and make the lot closer to 20,000 sq. ft. but then they would need a variance for the house in the rear unless a jagged line was made.

Mr. McDonnell stated that he would like to divide the votes into two separate motions because the applicant indicated that if the lot split is approved the building could be torn down.

The board agreed.

Mr. McDonnell made a motion to approve the variance for the 18,799.88 sq. ft. lot size.

Mr. Juergensen seconded the motion.

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

Mr. Deremer stated that the denial of the variance for the lot split makes the variance for the accessory building a moot point.

Mr. Giulitto made a motion to approve the minutes from the meeting held on October 7, 2004.

Mr. Juergensen seconded the motion.

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

Respectfully submitted,

Joni Poindexter,
Zoning Inspector