Members Present:                                                          Aletha Magyaros
                                                                                          Donna Conaway
                                                                                          James Bauder
                                                                                          David Benner
                                                                                          Stephen Bergman

Zoning Administrator:                                                    John Phillippi

Ms. Magyaros made a motion to approve the minutes from the meeting held September 18, 2003 and Mr. Bergman seconded the motion.

The vote was: Mr. Bergman-yes, Mr. Benner-yes, Mr. Bauder-yes, Ms. Conaway-yes, and Ms. Magyaros-yes.

Ms. Magyaros made a motion to approve the minutes from the meeting held November 13, 2003 and Mr. Bauder seconded the motion.

The vote was: Mr. Bergman-yes, Mr. Benner-yes, Mr. Bauder-yes, Ms. Conaway-yes, and Ms. Magyaros-yes.

AMENDMENT #533-03 – James McKinney, 4699 Everhard Rd. NW, Canton, Ohio 44718 agent for SCI Management Corp. Properties, property owner, TAX-8th FLR, PO Box 130548, Houston, Texas 77219 proposes to rezone R-R (Rural Residential District) to B-3 (Commercial Business District) 1.47 acres on the west side of Everhard Rd., 470 ft., more or less, south of Belden Village Ave., Sect. 24SW Jackson Twp.  (Legal description on file)

Ms. Magyaros read Stark County Regional Planning Commissions recommendation for approval of a modification to rezone only approximately .50 acres of the northern portion of the tract in question to B-3 and the facts that were considered in their recommendation.

Ms. Magyaros asked who would like to speak in favor of this amendment.

Mr. James McKinney, 4699 Everhard Rd. NW stated that the reason they asked to rezone the entire parcel is because it is one parcel and asked what portion of the property Regional Planning did not want rezoned.

Mr. Bauder stated that exhibit B shows that Mr. McKinney is only going to purchase a portion of the property, so Regional Planning is suggesting they only rezone the portion that is going to be purchased.

Mr. McKinney stated that the property was going to be re-surveyed because the portion he is purchasing has changed.  He has been in negotiations with Mr. Werner, who is the manager of Sunset Hills, and with SCI, being the owner of the tract in question, and they agreed to sell him a portion of the property.  He would like to have the entire property rezoned because, with the property being used for maintenance, it would be more in compliance with what is permitted in the B-3 district as opposed to the R-R.  He sees no reason not to rezone the whole parcel.  Mr. McKinney stated that exhibit B shows the portion that he would like to purchase which is next to the property that he currently owns.

Mr. McKinney stated that the cemetery’s maintenance building currently sits on the property that he will be purchasing, but it will be moved over to the other side of the line once the purchase is completed.  Mr. McKinney stated that the property is going to be resurveyed because he will be purchasing a little less than what is shown.  Mr. McKinney stated that it makes sense to rezone the entire property because it will not affect anyone and the use will not change except for the area that he is purchasing.

Mr. Bergman asked if Mr. McKinney is only purchasing one-half an acre.

Mr. McKinney stated yes.

Mr. Benner asked what Mr. McKinney plans to do with the portion he is purchasing.

Mr. McKinney stated that for the past two years he has been trying to build a building on his property that would house an Ethan Allen store on the first floor and offices on the second floor.

Ms. Conaway asked what effect there would be if the whole property is not rezoned.

Mr. McKinney stated that it would affect his setbacks because a commercial building has a 75 ft. setback if next to the R-R district and only a 16 ft. setback if it is next to the B-3 district.

Mr. Phillippi stated that it is his understanding that with the purchase of one-half acre it would permit the development that Mr. McKinney anticipates on the parcel and the purchased portion would be utilized for the setback.

Mr. McKinney stated that this is true to a large extent.  It depends on where they set the building, but he doesn’t think any portion of the purchased property would be utilized for the building.

Mr. Phillippi stated that the problem he sees with RPC’s recommendation is the fact that in order to come up with a firm zoning recommendation the area would have to be identified specifically and an exact line would have to be established which could be done by identifying a certain depth of the property.

Mr. McKinney stated that this wouldn’t be a problem because the lines for his purchased portion are going to change a little bit and the property is going to be re-surveyed.

Ms. Magyaros asked if it would hinder Mr. McKinney’s ability to use the one-half acre that he is going to purchase if the whole property is not rezoned.

Mr. McKinney stated he could use the acreage for parking or setbacks.  The only drawback that he sees depends on how far back the building would be set because of the far corner of the area.

Mr. Phillippi stated that he thinks the way Regional Planning is looking at it is once it is rezoned anything could be put on the parcel.

Mr. McKinney stated that it would be advantageous to rezone the whole parcel in order to give him more flexibility.

Mr. Benner asked why the parcel couldn’t be rezoned to B-2 as opposed to B-3.  B-3 makes him nervous being next to a cemetery because people are buried there and he wouldn’t want to have someone buried next to a gas station which is permitted in the B-3 district.

Mr. Phillippi stated that B-2 and B-3 have the same setbacks.

No one else in the audience spoke in favor of or in opposition to the amendment.

Ms. Magyaros stated that she would rather follow what Regional Planning recommended because once the zoning is changed they are stuck with it.

Mr. Benner stated that he could go along with the recommendation of Regional Planning.
Ms. Conaway stated by rezoning only the portion that Mr. McKinney is purchasing it would protect the area if Mr. McKinney does not follow through on what he wants to do.

Ms. Magyaros asked Mr. McKinney if he would accept the modification of Regional Planning’s recommendation.

Mr. McKinney stated that he would accept it because it is better than nothing.

Ms. Benner made a motion to adopt a modification to the request and accept Regional Planning’s recommendation.

Mr. Bauder seconded the motion.

The vote was: Mr. Bergman-yes, Mr. Benner-yes, Mr. Bauder-yes, Ms. Conaway-yes, and Ms. Magyaros-yes.

Ms. Magyaros stated that the recommendation would go to the trustees as an approval of a modification to .50 acres to be rezoned from R-R to B-3.

AMENDMENT #534-03 – McDonald Development Corp. 4901 Spruce Hill Dr. NW, #800, Canton, Ohio 44718 agent for Stark Community Foundation, property owner, 220 Market Ave. S., Canton, Ohio 44702 proposes to rezone R-4 (Multi-Family Residential District) to B-3 (Commercial Business District) 0.200 acres of a 4.6 acre tract located on the north side of Hills & Dales, 446 ft., more or less, east of Dressler Rd., Sect. 25SE Jackson Twp.  (Legal description on file)

Ms. Magyaros read the file application and Stark County Regional Planning Commission’s recommendation for approval and the facts considered in their recommendation.

Ms. Magyaros asked who would like to speak in favor of this amendment.

Mr. Charles McDonnell, 4901 Spruce Hill Dr. NW, Canton, Ohio stated that the small piece of property that they would like rezone to B-3 was originally zoned B-3.  They would like to rezone a portion 35 ft. deep back to B-3 so it will give them their parking buffer between the B-3 and the R-4 districts and they will be able to set the building back further from the road incase Hills & Dales is ever widened.

The board had no questions or comments.

Ms. Conaway made a motion to approve amendment #534-03 as requested.

Mr. Bergman seconded the motion.

The vote was: Mr. Bergman-yes, Mr. Benner-yes, Mr. Bauder-yes, Ms. Conaway-yes, and Ms. Magyaros-yes.

Ms. Magyaros stated that the recommendation would go to the trustees as an approval.

AMENDMENT #532-03 – The Jackson Township Trustees propose text amendments to Schedule 504.2(4)(B)-Change “N/A to 1” and Section 803.5(E)-Delete existing text and add “The BZA shall have no authority to permit a use where such use is not permitted by this resolution”. (Description of changes on file) (Continued from 11/13/03).

Ms. Magyaros stated that amendment #532-03 was table from November 13, 2003 so they could get Mr. Phillippi’s thoughts on why there is a recommendation to delete a use variance.  Ms. Magyaros stated that the board agreed at the last hearing to change Section 504.2(4)(B) from N/A to 1.

Mr. Phillippi stated that the reason the deletion of the use variance was proposed is primarily to close what may be used as a loop hole or serve as a rezoning by allowing the use variance within an area that is not permitted.  This was not included in the resolution until the entire zoning resolution was revamped in 1999.  Mr. Phillippi stated that the Township Administrator has mentioned on numerous occasions that she would like to get this initiated by the trustees.  Mr. Phillippi stated that there has been two times that he knows of where the use variance has been used.  One was on Portage where Dan Geiger had built a building in a commercial district and used it as a residence for over 15 years.  When he was citied he came in and asked for a use variance which was approved.  The other situation was an area on Fulton that is zoned B-3 and was used as a machine shop that makes mower blades.  There was no certificate of compliance permit for the business, which was found during a routine investigation, and it was clear that a manufacturing operation was being operated in the building.  They came in and asked for a use variance which was granted by the board of appeals.  Mr. Phillippi stated that it is being looked at as a rezoning and this is why it was thought that it would be better to tighten up the regulations and not allow the use variance.  There may be a hardship, but basically it is a rezoning type of a situation because of the use variance.  Although the conditions that are cited in the regulations are very stringent, if the board actually went by the conditions and made a finding if each one of the conditions were met then it would be very difficult for any use variance to be granted because they would basically have to find that there is no other economic use for the land without the use variance.

Mr. Benner stated if looking at the conditions that are required and the examples that were given by Mr. Phillippi, both of the instances were caused by the applicant and only came to light after they were caught.  So it is not as though it is something that just happened.  Mr. Benner stated if they would have come to the commission he would not have allowed industrial activity in a business district because there is an area of the township designated for that.

Ms. Conaway stated with the example given by Mr. Phillippi she now has a better understanding of the use variance.

Ms. Magyaros stated that she realizes that the Ohio Revised Code doesn’t provide that the Board of Zoning Appeals has to have that power and there is no case law that has ever interpreted it that way, but it is something that is out there and recognized by the Ohio Supreme Court as a valid collar by the Board of Zoning Appeals.  Ms. Magyaros stated that there are very stringent requirements and thinks it is good and can actually be used by the Board of Appeals.  If the Board approves a use variance and if there were surrounding property owners that weren’t happy with it then it could be addressed.

Mr. Phillippi explained what the circumstances were regarding the use variance for the machine shop and the conditions that were put upon the approval.

Ms. Magyaros asked if the board had any more comments or if they are ready to vote on the amendment and stated that it is her understanding that the amendment has to be voted on as one amendment.

Mr. Phillippi stated that the board could vote on the amendment as one or it could be split into two votes.

Ms. Magyaros made a motion to approve the change for Section 504.2(B) -change “N/A to 1”, and to deny the portion of the amendment to delete Section 803.5(E)-Delete existing text and add “The BZA shall have no authority to permit a use where such use is not permitted by this resolution”.
Mr. Bauder seconded the motion.

Mr. Benner asked to separate the two motions because he wants to vote to approve both changes and the way the motion is made he would have to vote against the entire amendment.

Ms. Magyaros withdrew her original motion and Mr. Bauder withdrew his second.

Ms. Magyaros made a motion to approve the change for Section 504.2(B) -change “N/A to 1”.

Ms. Conaway seconded the motion.

The vote was: Mr. Bergman-yes, Mr. Benner-yes, Mr. Bauder-yes, Ms. Conaway-yes, and Ms. Magyaros-yes.

Ms. Magyaros made a motion to deny the change for Section 803.5(E)-Delete existing text and add “The BZA shall have no authority to permit a use where such use is not permitted by this resolution”.

Mr. Bauder seconded the motion.

The vote was: Mr. Bergman-yes, Mr. Benner-no, Mr. Bauder-no, Ms. Conaway-yes, and Ms. Magyaros-yes.

The board voted in favor of changing Section 504.2(B) as requested and to deny and not delete Section 803.5(E).

(The board discussed reviewing future proposed amendments for consideration and possible initiation.)

Ms. Magyaros stated that the board has a list of future proposed changes for discussion.  They cannot vote on any of the items but they can discuss the items and decide if they want to initiate any of the changes.  Ms. Magyaros stated if any of the changes are initiated the board would schedule a public hearing to discuss and vote on the proposed changes.

Ms. Magyaros stated that she was confused with the first proposed change which states, “review a use that was permitted and the regulations changed to make it a conditionally permitted use-a conditional use certificate should be issued, not a non-conforming certificate because the use is actually permitted in the district and a non-conforming use is something that is not permitted.”

Mr. Phillippi stated that the way the current regulations are written, if you have a permitted use and then there is a change to the resolution and the use that was permitted becomes a conditionally permitted use then that use becomes non-conforming.  The whole idea behind a non-conforming use is that at some point in time they would like the use to be discontinued.  When a permitted use is changed to a conditionally permitted use it is still permitted but with certain conditions.  Therefore, the use should be issued a conditional use certificate and not a non-conforming use certificate.  Mr. Phillippi stated that currently it is given a non-conforming use status where they can expand up to 25% administratively and if given a conditional use, if there is any change or they are expanding, then it would need to go before the board of zoning appeals.

Ms. Magyaros asked if a conditional use would give the township more control.

Mr. Phillippi stated yes.

Ms. Magyaros asked if the board had any comments on adding the definition of a menu board.

Mr. Phillippi stated that the definition of a menu board should be located in Section 501.7 instead of Section 201.2 because sign definitions are found in Section 501.7.  The reason for the addition of a menu board definition is because there is none in the book.

Mr. Benner stated if there is anything that the board could do as a group over the next five or ten years he would like to redo the signage in the township completely.  He thinks the way they have allowed the signage to develop in the township is unforgivable and would like to get the signage under control.

Mr. Bergman stated that he read through the proposed changes but did not make any notes or comparisons and wonders if a better route to take would be to table the discussion until everyone has a chance to look at the proposal along with what is currently in the zoning book and come back with notes.
Ms. Magyaros asked Mr. Bergman if he is talking about the whole list.

Mr. Bergman stated yes.

Ms. Magyaros stated that there is no big rush on making changes.

Mr. Phillippi agreed.

Ms. Conaway stated that she looked through the proposal but didn’t really have a chance to do anything with it.

Mr. Benner stated that he didn’t have a chance to review it either.

Mr. Phillippi stated that the board can propose other changes that they may see why reviewing the zoning book.

Mr. Benner stated that he knows that at least one of the trustees is looking into the signage issue.

The board agreed to table reviewing any proposed changes for initiation until the next scheduled meeting that will be held on January 15, 2004 at 7:30 pm.

Ms. Conaway stated that she has a problem with homes and buildings being built too close to the street.  She is appalled that Target was permitted to use Everhard Rd. as their frontage because if they ever wanted to expand Dressler Road she doesn’t know how they would do it because the building is so close to Dressler.

Mr. Benner stated that he thinks if a use variance is going to be kept then the board needs to say, for example, if they are going to grant this to Bob the machinist guy when he sells it to someone else they don’t get to do the same thing, and he doesn’t see this with what is going on with the BZA.

Ms. Magyaros stated that she thinks there is case law on that area about use variances and subsequent purchasers of that property.

Mr. Benner asked if the use variance would go with the land.

Ms. Magyaros stated that she is not sure, but she does know that there is case law on it.

Mr. Phillippi stated that the board restricted the use variance for the machine shop to the current owner.

Ms. Conaway stated that she knows they just passed an amendment, but maybe the board needs to make sure the variances are for the current owners.

Mr. Benner stated that they could add this to the paragraph that is in the book to say if they are going to grant the use variance there should be a restriction.

Ms. Magyaros stated that she knows there is case law out there that states the BZA cannot make more stringent requirements in granting a use variance than what is already provided for in the revised code, so the board couldn’t make their requirements stricter as a township than what the revised code provides for as far as the requirements that have to be followed.

Ms. Conaway stated if they can’t be any stricter that’s one thing, but if someone else moves in that’s another because it’s kind of like non-conforming.  If they are in there and granted a use variance and then say a son comes in there and wants to run the business, is he ok because they let his dad do it?

Ms. Magyaros stated yes if his dad had gotten a use variance and passed away and the son took over.
Mr. Phillippi stated that some can become difficult once they get their foot in the door.

Mr. Benner stated that he understands why Mr. Phillippi wanted to take some things out of the book, but if someone is going to put in a 300,000 sq. ft. building you shouldn’t be able to face it toward the street where there are three buildings in between and call it your frontage.

Ms. Magyaros stated that maybe a motion should be made to table the discussion of the changes.

Ms. Conaway stated, regarding the use variance, she thinks if it is not taken off the books then maybe they need to make sure there is some kind of protection so it cannot continue on.  Who’s to say that Dan can’t sell his business and then someone else moves in the house.

Ms. Magyaros stated that the use variance will be going to the trustees.  The board can always make a change down the road.

Mr. Phillippi stated he believes that Dan could sell his place and someone else could move in because the variance stays with the property and not the property owner.

Mr. Benner stated that twice the use variance has been used, but has not been used wisely according to the way the rules are written because it says in the criteria, “Did the applicant cause it” and yes they did.

Ms. Magyaros stated that Mr. Benner is probably right but no property owners complained about it.

Mr. Phillippi stated that there was a case that went to court for a use variance where there was a home occupation permit that was granted however, they hired outside employees so they were issued a zoning violation.  It went to the board of appeals and the applicant stated that they would be forced out of business if they couldn’t have employees during the tax season, etc.  The board of appeals upheld the decision of the zoning administrator and said they were in violation but then granted them a variance to continue the business with conditions.  Some of the conditions were that they couldn’t have anymore than two or three employees and those employees were limited to the number of hours that they could work during certain periods of the year and during tax season they could work full time, which is absolutely impossible for any one to enforce.  The neighbors took it to court and appealed the board’s decision to grant the variance.  The court found in favor of the BZA and said that it is within their discretion to grant the variance.  This is a case that if the use variance was not in the book then they would not have been able to continue their business.

Mr. Benner stated that he understands Ms. Magyaros point of view, particular in the legal industry, but he thinks what the board is for is to keep people from having to go to court and it is incumbent upon them to say where something fits and where it doesn’t.

Ms. Conaway stated that she is starting to feel uneasy about her vote on the use variance.

Ms. Magyaros stated that she thinks it has to go to the trustees now, but they can review it again later.

Ms. Conaway stated that she doesn’t think it has to go to the trustees now because she could move to reconsider and if seconded and voted on then it wouldn’t have to go to the trustees.

Mr. Benner stated if Ms. Conaway wanted to move then he would second it just so she can have it.

Ms. Conaway made a motion to resend the motion and vote on amendment 532-03 for further consideration until they have more information regarding the use variance.

Mr. Benner seconded the motion.

The vote was: Mr. Bergman-no, Mr. Benner-yes, Mr. Bauder-yes, Ms. Conaway-yes, and Ms. Magyaros-yes.

(Under Rules and Procedures-Reconsideration states, “Upon the commission registering a tie vote on any amendment, a motion may be made by any member to withdraw the previous vote and table the matter for further rehearing.  Such a motion for reconsideration must receive a concurring vote of a majority of the members present in order for the matter to be tabled.  The matter shall be considered tabled, a new hearing date and time shall be determined and no further public notice shall be required.  At the hearing on reconsideration, the matter shall be reconsidered by the members then sitting on the Commission, including alternates, regardless of their involvement at the original hearing”.  Therefore, the motion and second is disregarded because it cannot be reconsidered because it was not a tie vote.)

Mr. Benner asked that the township attorney research the use variance and look for case law.

Ms. Magyaros stated that they received a memo from Mr. Ferrell prior to the hearing.

Mr. Benner stated that if the board thinks that they want to have it on the books then they should know if there is anything else they can do to restrict the use variance.  Mr. Benner stated that each time the use variance was used, he wonders if the criteria in the book was looked at.

Mr. Phillippi stated that he could provide the board with the minutes from the use variance cases if the board would like.

Mr. Benner stated that he probably had them but threw them away.

Mr. Bergman stated that the board of appeals has heard the cases and made decisions.  The commission may not like the decision but it was not theirs to make.

Mr. Benner stated if they see that the rules that are there are not being followed to the interpretation of the legislative body then he thinks it is incumbent upon them to either change the legislation to the point where it is being followed uniformly.  Mr. Benner stated that he doesn’t think it is being followed from what he has heard about the cases that were approved.

Mr. Bergman stated as a legislative body it is their job to make sure the rules are clear.  They are not a governing body so it is not on them to issue a judgment.  Mr. Bergman stated that he thinks the rules are clear.  One thing he did hear tonight that he thinks is outstanding is that everyone, and it should be universal with the board of appeals, everyone of the conditional uses and non-conforming uses should have some kind of requirement of termination regardless of what it is.

Ms. Magyaros asked for a motion to adjourn the meeting.

Mr. Benner made a motion to adjourn the meeting.

Ms. Conaway seconded the motion.

The vote was: Mr. Bergman-yes, Mr. Benner-yes, Mr. Bauder-yes, Ms. Conaway-yes, and Ms. Magyaros-yes.

Respectfully submitted,

Joni Poindexter
Zoning Data Coordinator
Clerk/Secretary