Members Present:                                                                      Aletha Magyaros
                                                                                                      Donna Conaway
                                                                                                      Stephen Bergman

Absent Members:                                                                       James Bauder and David Benner
Absent Alternate Member:                                                         Richard Russell

Zoning Administrator:                                                                John Phillippi
Zoning Data Coordinator:                                                         Joni Poindexter

AMENDMENT #535-04 – Rosebud of Stark County, LLC, 7694 Strausser St. NW, North Canton, Ohio 44720 agent for Rose Lane Health Center, property owner, 5425 High Mill Ave. NW, Massillon, Ohio 44646 proposes to rezone R-R (Rural Residential District) to R-3 (Residential Planned Unit Development District) 20.185 acres located on the north side of Lafayette, 826 ft., more or less, east of Crystal Lake Rd., Sect. 19NW/NE/SW Jackson Twp.

Ms. Magyaros read the file application signed by Shawn O’Brien and Stark County Regional Planning’s recommendation for approval and the facts considered in their recommendation.

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

Mr. O’Brien, 1460 Hill Brook Ave NW stated that there are two developers that are partners in this development that is called Rosebud of Stark County.  The current site plan that went in front of Regional Planning was for 39 units.  He has an amended plan that was shown to the neighbors at a meeting that was held on February 12th at the Jackson Township library.

Mr. O’Brien stated that the amended plan has 43 units as opposed to 39 units.  One of the things they did was eliminate one of the cul-de-sac’s and also increased the green space from 25% to 37%.  They are planning to connect a path between the cul-de-sac and the parking area of Rose Lane.  That path or lane will not be a public lane.  It will be asphalt that is about six feet wide in order to accommodate a golf cart, a person’s car, or something like that for the nurses to be able to come on call from the nurse’s station to the development.

Mr. O’Brien stated that they were in front of the board before for Forest Trail, which is located off of Revere and Erie Ave.  They marketed that particular development to the active adult.  By active adult they are talking about somebody that’s probably 55 or older that is extremely active.  This is actually for the older clients and they envision mom being here.  People that are still very proud and don’t want to give up the home idea but at the same time doesn’t want to be in a condo because they don’t want to be eight feet from their neighbor and they still want the independent living.

Mr. O’Brien stated that the units will be ranch style with two bedrooms and two baths.  A family could still buy this, but the architecture and style of the home will dictate what kind of client is going to move in.  He believes not too many families are going to want to be in a two bedroom two bathroom home with a lot that is approximately 60 ft. wide by 135 ft. deep.  The people who live in the units will have piece of mind because the homes will be wired to the nurse’s station so if someone falls down then someone can come right away and tend to their needs.  This is probably the ultimate in independent living and the people who buy the homes will have the ability to have nurses on call and to walk down the path to Rose Lane and get dinner at the cafeteria.

Mr. O’Brien stated that the lots are smaller because the market is for people who don’t want the larger lots.  The reason they went from 39 lots to 43 lots is because they have done marketing and what they have heard is people do not want large lots.  There is a sewer and water line that goes along Rose Lane so the entire development will have sewer, water, gas and electric.  The development comes out onto Lafayette which serves 2,200 cars a day.  In comparison where they are with Forest Trail coming out onto Revere it has 4,800 cars a day and they were permitted to go onto that road.  They did not have to do any traffic studies or anything like that.  A very strong case could be made on the aspect that this particular client is not going to be traveling our roads very much.  They may go one or two times a day as compared to if we did an R-R allotment, which I believe those numbers are close to ten times a day of people going in and out of there.  The traffic of this development is going to be significantly less than if it were to remain R-R.

Mr. O’Brien stated that Brian Ashman from Cooper & Associates is in attendance and will talk a little about drainage.  Drainage is a big issue especially after this past year.  The developers took a real pounding when it came to drainage.  On this particular one we will be able to show that the land is going to be better off with this development storm water wise than if it were to remain the way it is now.

Mr. Fred Tobin, 7694 Strausser St. NW stated that he has been a resident in the township since 1972.  Mr. Tobin gave the board a copy of the sign in sheet showing the people who attended the library meeting.

Ms. Magyaros stated that it would be marked as an exhibit and put in the file.

Mr. Tobin stated that he has been building custom homes in the township for about 26 years and has been involved in a lot of different developments.  About three years ago he moved out of the custom home market and into the senior housing market.  He’s talking about the 55 and over group.  He has a project in Massillon right now where they are building condominiums.  It is a 56 unit project and is over half way completed.  They also have a project in a PRD at Aberdeen.  Aberdeen Glenn has 12 villa lots that are basically like the lots that he is talking about here.  It was finished that last fall, there are four homes under construction, and the activity in there is pretty good.  They are getting the age of people like Mr. O’Brien talked about.  They’re not getting 25 or 30 year olds with children.  They’re getting the empty nester older adults.  They also have a condominium project that was stated in the fall.  Forest Trail is another project that he’s involved in and they are going to have the Building Industry Association Parade of Homes there in June.  There will be six homes done in June that will have two and three bedrooms with 1,500 to 1,800 sq. ft.  The villa concept is for people who own their own lot and are responsible for their own maintenance on the building, but someone else will take care of everything outside.  This is a step that people can go from these units to right down the hill as their health indicates that they may have to.  Mr. Tobin stated that he thinks it also gives people a piece of mind.  People are living longer and the 55 and over group is one of the strongest growing groups in the country.   This is a good project and has almost 13% more open space than is required.  They meet the requirements of 2.2 units per acre and it makes a lot of sense being right next to Rose Lane.

Mr. O’Brien showed the board where the building would be located and stated that the squiggly lines are indications of mines.  They have done some testing and the one corner indicates that there aren’t any mines or they could not find them.  He wanted to let the commission know that this one development is not going to proliferate the development of this particular section of the township.  The reason being is because any developer who would look at this particular property knowing that they have mines on it can’t get financing for development.

Ms. Magyaros asked if Mr. O’Brien knew how much area the mines cover.

Mr. O’Brien stated that it is acres.

Mr. Bergman stated that it looks like almost 100 acres.

Mr. O’Brien stated that it is huge.  They have also been informed that there is a possibility of mines on the other side of Lafayette, so he doesn’t want the commission to think for one second that this is going to accelerate the development of this section of the township.  This section of the township has some problems with it as far as mines are concerned.  From that standpoint he thinks that is a very important issue to be brought up.  It’s not like once they open this up and there’s sewer and water on Lafayette it’s going to be able to explode with development in the area because he doesn’t see that happening.
Mr. Bergman stated that he would like to hear about the drainage.

Mr. Brian Ashman, 1359 Market Ave. NW stated that when the project is in this particular phase they have not completed all the of the detailed drainage analysis.  What they have done is projected what they anticipate to be concerns or problems with the property and tried to accommodate for solutions or remedies to prevent these from being cataclysmic situations down the road for adjacent neighbors.  This piece of property pretty much is part of Rose Lane.  It sits up on a hill pretty high and the property is divided with its drainage patterns.  Most of the property consisting of the northeast side of it kind of drains off to the north and comes down to the east.  There is a portion of the property down near Lafayette that drains to the south down towards Lafayette.  On the road front property the portion that drains down towards Lafayette is approximately five acres of property.  There is a hilly area that comes down towards Rose Lane.  The intention of the proposed development plan will be to create a development plan that intercepts some of the drainage that would normally come down toward Lafayette.  Because of the means of providing a more controlled outlet structure for the storm drainage they are going to intercept some of the drainage that comes down towards Lafayette, bring it into their storm improvement being it’s a public roadway, and will then discharge it down to the eastern far edge of their property.  To the west of the Rose Lane parking lot they will be putting in substantial storm water management, detention or retention, but he’s anticipating that it will be a detention basin which means it won’t be a pond.  They are going to be putting in a large basin at the lower portion that will basically collect almost all of the drainage from the development.  He expects approximately one acre of drainage to discharge toward Lafayette.  Mr. Ashman stated the he feels the drainage at the southwest corner will be reduced.  They will increase the amount of drainage that goes to the east because they are putting in pavement and roofs.  The process of storm water management is to take it, store it, and release it slowly over a period of time so it won’t cause detrimental problems down stream.  The drainage that comes down to the east comes into a swale along the west side of the roadway parking lot, goes south down around the parking lot and then heads east.  As it heads east it goes over into two large lakes that are out in front of the Rose Lane development.  They will contain their water on their property and release it slowly down into the existing ditch which then goes over into the lakes in front of Rose Lane.  Mr. Ashman stated that he feels that this will provide very suitable storm water control and they should not be causing any detrimental impact onto any adjacent neighbors.

Mr. Ashman stated that the roadways will all be public roadways, so they will become township roads once they are approved.  This will be an actual subdivision type of setup, so the improvement plans will be submitted through Stark County Regional Planning and be reviewed by the Stark County Subdivision Engineer.

Mr. Bergman asked with all the mines at the northwest corner of the property, and Mr. Ashman indicated in the beginning that the water runs off now a little to the north and swings around, if they are going to reduce the flow of water going to the north and to the west as drainage or are they going to increase it.

Mr. Ashman stated that the intention is to reduce it and take almost all of their drainage from the proposed development over to the east into their storm water management, so they will be reducing what would discharged both off to the north and to the west.

Mr. Bergman stated that his concern would be if the water increased towards the area of the mines and with the poorness of the soil they would start getting some collapsing of the land.

Mr. Ashman stated that he understands Mr. Bergman’s concern.  The only thing that will really be going off their site either to the north or to the west would be the rear yard drainage behind the lots along the perimeter.  All of the other drainage from the roofs, front yards and roadway drainage will all be collected by the internal storm system.

Mr. O’Brien stated if this was developed as a regular R-R development there would actually be more water going to the north and west as compared to this particular development where it is heading more to the east.

Ms. Magyaros asked if anyone else in the audience wanted to speak in favor of the amendment.
Mr. Dennis Potts, 1260 Taggart NW stated that he is speaking on behalf of Rose Lane where he is the administrator and has been there for 17 years.  He is in favor of the project.  They have, through their parent company, completed the transaction to sell the 20 acres plus to Mr. O’Brien and Mr. Tobin.  Their local management favors approval of the proposed use of the project.  Over the last decade they’ve commissioned several studies to study the projected needs in Jackson Township for independent assisted living and nursing homes.  These have consistently shown a need in the area for independent living and some assisted living.  They have not been able to get approval or funding to move ahead.  They have acquired the land with the intent of setting up a retirement community.  They came pretty close a couple of times, but then their parent company changed hands and other priorities superseded them and they have been frustrated and unable to move ahead.  Now the land is being sold.  They had a preliminary master plan which would have put 80 plus units on the land that would have consisted of duplexes, quadplexes and a community center, which they would have had to request zoning for.  The independent living homes are most desired for independent living.  They would provide some services such as the emergency call system and have the residents at the top of the waiting list if they ever needed short term or longer placement in the nursing home.  The sale of the property is not contingent on the action this board.  If the zoning is not approved the sale is still going through and the property will still be developed in some manner.  Mr. Potts stated that they would like it see it developed this way rather than some alternate way.

No one else spoke in favor of the amendment.

Ms. Magyaros asked if anyone in the audience wanted to speak in opposition to the amendment.

Mr. Steve Rohr, 5721 High Mill NW stated that he is speaking not only for himself but also for his father, Dale Rohr, who owns the property to the north.  He has known Fred for a few years and it looks like a nice idea compared to what was going to happen at the nursing home with 80 plus units.  Mr. Rohr stated that he is opposed to it because it seems like spot zoning next to non-conforming.  Drainage is the biggest issue.  He’s heard talk about the drainage and it sounds like maybe the drainage issue will be handled, but he’s an old farm boy and would like to see it stay open space, but he’s also realistic.  He’s concerned about the road that dead ends but believes a guardrail or something like that would be put up to keep people from going onto other people’s property.  Mr. Rohr stated that it doesn’t make sense to him with it being spot zoning and there are holes everywhere regarding the mine issue.  It may hurt them down the road if it becomes anything but farmland.

Mr. Donald Frank, 9670 Lafayette NW stated that his first concern is water.  His home is right across the street from the new road and he will have a light show.  Mr. Frank stated that he wishes they could move the roadway to the edge of the property.

Ms. Magyaros stated that she believes she saw Mr. Frank’s name on the list of people who attended the library meeting and asked Mr. Frank if he pointed out to them that we would like the driveway moved.

Mr. Frank stated no because he was more concerned about the water and figured this would be the place to do it.  Mr. Frank stated that somebody could move in there with children and the two don’t mix.  Usually people want a quiet neighborhood and then all of the sudden a home is sold to people with children.

Ms. Magyaros stated that there is no way that they can market these and tell a family that they can’t buy one, but there is some truth in what they are saying as far as the way it is designed drives to who will end up purchasing it.  Ms. Magyaros stated that she thinks for the most part there wouldn’t be a lot of families that would be interested in a two bedroom home.

Mr. Frank stated that the other gentleman said three bedrooms.

Ms. Magyaros stated that she thinks he was talking about a different development that he is working on and believes this one is going to be limited to two bedrooms.

Mr. Tobin stated that sometimes they get requests for a den or something like that that could be used as a bedroom and this is counted in the square footage.

Mr. Frank stated that he is very concerned about the water and where the entrance is.  If they could move the entrance it would help because it is also a safety concern.  He would also like to see 1/3 less units.

Ms. Magyaros stated that Regional Planning in their comments said that pretty much the same number of units that are going in is the same that they could build as R-R.

Mr. Bergman stated that they could put in 40 plus units on that property right now without asking for rezoning, which is about the same as they are proposing.  He is concerned about the problem of the water and drainage going directly across the street.

Mr. Ashman explained the drainage plan.

Mr. Ashman: stated that he can’t promise that they can move the driveway, but he will certainly take a look at the situation.  He can look to see if they can make a slight modification to the plan, but doesn’t know if they can revise it and come up with a plan that still meets the developer’s intentions for the 43 units with moving the driveway.

Mr. Frank stated that he thinks the State would approve it for site distance because it would be down further from the hill.

Ms. Norma Clever, 5650 Akron Ave NW asked if they have any assurance that this number of homes is the number that will be built.

Mr. Ashman stated that this is a PUD and if approved this is what has to be built.  They can’t do a different plan without going back through the zoning commission again.

Ms. Magyaros stated that a PUD offers more security because what is proposed and what the board approves is what they have to do and if they want to make any changes they have to come back to the commission and start over.

Mr. Frank stated that he would really like the driveway changed because of the headlights shining on his house.

Ms. Magyaros stated that there is a home for sale that sits at the end of Island Dr. and thinks no one has purchased it because every headlight that stops at that stop sign shines through the house, so she understands Mr. Frank’s concern.  Ms. Magyaros asked Mr. O’Brien what the chances are of moving the driveway.

Mr. O’Brien stated that they try to make every neighbor happy and they have been talking about the possibility of moving the driveway.  The reason it was there initially was because of the site distance regulations.  We are talking about coming over a little bit.  There is a limited amount that we can do as far as the curvature is concerned.  We would still like to have the same number of lots but as long as we can do it by design that would meet the subdivision regulations as far as moving that street to the west, yes they would be amendable to move the street over.

Ms. Dianna Rohr Gravo, 10015 Lafayette NW stated that the Rohr property can’t take any more water.  There are portions of the property that cannot be farmed because it’s all swamp so drainage is a big concern.  A while back Crystal Lake flooded and the roads had to be closed and homes got damaged.

Mr. Ashman stated that the development consists of just over 20 acres and is a very small part of the drainage.  It will not add a considerable amount of water to the lakes because they are going to be doing their storm water management on their own site.  It will be controlled and let out at a slow rate.  Flooding will still probably occur at Crystal Lake because this is such a small portion of the drainage basin that goes into the other water shed.  Even if none of the drainage came off of this site there would still be flooding down there under severe rain falls, so he can’t tell them that this will reduce the flooding, but he can say that they are containing their storm water so they don’t aggravate it.

Ms. Rohr stated that more than likely it will increase some because there is going to be 20 acres redirected.

Mr. Ashman stated that they would be picking up some of the drainage from Lafayette and bringing it in but because of the storm water management they will be able to restrict it down more so than what is typically required and their intention is that they will substantially restrict it so it doesn’t cause a problem.

Mr. Glenn Winkler, 9537 Lafayette NW stated that he is concerned about traffic.  Right now it is like playing Russian roulette when pulling out of his driveway and during construction there will be more traffic.

Ms. Magyaros stated that she agrees with the developers that if they are successful in marketing the property toward the senior population there will be less traffic on the road as opposed to having R-R with children.

Mr. Winkler stated that there will be an increase regardless.

Ms. Magyaros agreed.

Mr. Winkler stated that traffic is his concern because his home sits at the top of the hill and it is hard to pull out.  If the development goes through he will probably have to put in another driveway down below where he would have a better view.

No one else spoke in opposition to the amendment.

Ms. Magyaros stated that she is inclined to let Mr. O’Brien work on the plan to address moving the driveway.

Ms. Conaway stated that she thinks this is a valid concern and wouldn’t want the headlights.

Mr. Bergman stated that he thinks the driveway needs to be moved and is concerned about the drainage but he really can’t say that he sees a problem where it would cause increased drainage because of the development.  He likes the plan but they have to take care of their neighbors, so he will withhold his vote until the driveway issue is taken care of.

Ms. Conaway made a motion to continue amendment #535-04 until March 18, 2004 at 7:45 pm contingent on moving the entry way of the development.

Mr. Bergman seconded the motion.

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

AMENDMENT #537-04 – The Jackson Township Trustees, 5735 Wales Ave. NW, Massillon, Ohio 44646 proposes text amendments to the zoning resolution Art. IV Sect. 411.6 Sexually Oriented Business, Art. VIII Sect. 801.4 Approval of Zoning Certificates, Sect. 803.3 Notices of Hearings, & Sect. 803.4 Decisions.

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

Mr. Phillippi: There is an inaccuracy in their review.  The regulations were previously changed last December to eliminate the Sexually Oriented Business from the B-3.  So the reference to the industrial district has already been accomplished.

Ms. Magyaros:  We do have one member joining us in the audience.  Would you like to speak in favor?
Mr. McDonnell: No.  My name is Ed McDonnell.  I live at 6265 Sandava NW, Canton, Ohio 44718.  When I said no, I didn’t want to speak in favor nor am I speaking in opposition.  I am just speaking regarding the proposed resolution or amendment thereto.  I’d like to make sure the board or commissioners know that the remarks I make this evening are those of a private citizen of Jackson Township.  When I reviewed the amendment there were two criteria I used.  Number one does the proposed amendment correctly state the intention of first of all the commissioners and ultimately the trustees, and number two is it user friendly.  I have my remarks in that regard.  There are a number of things I noticed.  First of all, definitions within the proposed amendment do differ from the definitions currently in section 201.  Specifically the Adult Arcade definition.

Ms. Maygaros:  I had that one marked.

Mr. McDonnell: Adult Bookstore, Adult Cabaret, and Adult Motion Picture Theater.  Those were the only ones that I saw.

Ms. Magyaros:  I think the definition may differ as far as nudity or state of nudity and I also had the definition of sexually oriented business marked as being different from what we currently have.

Mr. McDonnell:  Correct.  Again I would assume that the commission will standardize the definitions.  We have two definitions in the book that could make these confusing.  A couple of other things I noted.  I’m in section 401.6(B)(2), definition of bookstore, and you may have already caught this.  This appears to be a typographical error where next to the last line it refers to specified sexual activities or specified anatomical …eas.

Ms. Magyaros:  Yes we said that is probably supposed to be “areas”.

Mr. McDonnell:  The other thing I note, and this is again for the commission to determine what their intent is.  When I read through the definition of adult bookstore it talks about specified sexual activities and specified anatomical areas, but it does not speak to nudity or semi nudity.  Now sexual activities or anatomical areas I think covers the semi nude definition but specified sexual activities or anatomical areas does not exclude nudity, at least the way I read it.  If it is the commission’s intent, and I’m talking about paragraph one and paragraph two both refer to specified sexual activities and specified anatomical areas but not nudity, and if it is the commission’s intent to include that then I would suggest that it is specifically stated as opposed to it may be inferred, because we could get into trouble inferring things as opposed to specifically stated.

The same applies to adult, the definition again this is item (B)(4) the same section, adult motion picture theater.  Again it talks about specified sexual activities or specified anatomical areas but does not state or address nudity.  And again, depending on the commission’s intention with this will determine whether it would be included or not.

Ms. Magyaros:  I also had a concern on that section.  If you look at the old resolution, and that was section 201.2(B)(5), the definition when they define it in our current resolution I should say, it talks about for any form of consideration and then there is x-rated films, motion pictures, and video cassettes.  I started thinking that I’ve probably been out to Tinsletown and seen some movies that were rated R that could almost fall under some of these categories so I had some concerns that we didn’t have that x-rated in front of that.  This is just an observation that I made.

Mr. McDonnell:  With regards to section 401.16(B)(8) where it speaks about the nude models studio, again, the same comment.  It talks about persons who appear semi-nude or display specified anatomical areas.  It does not address persons who appear nude.  And again, depending on the commission’s intent if that should be included or not.  Section 411.16(D)(16) sub paragraph (a) speaks of the fondling, etc, etc, and then it goes to item (b).  I would suggest making it a little more inclusive and should be changed to, or so it would appear that sexual activities are a combination of (a) and (b) as opposed to one or the other.  Again, it depends on the commission’s intent.
The same comment regarding nudity with regards to section 411.16(13)(b) sexual encounter center.  It talks about activities between males and females, persons, etc. when one or more of the person(s) is semi-nude.  It does not address nude and again depending on the commission’s intent whether that should be included or not.

There is a small typo in section D(3)(c) as opposed to (c) it is the copy right symbol.

Ms. Magyaros:  That is the same as at the top of the page.  I noticed this a couple of times.

Mr. McDonnell:  I’m talking now about section (D)(4), a sexually oriented business may not be established within 1,000 feet of the property line of a lot devoted to a residential use.  Does that include non-conforming residential uses?

Mr. Magyaros:  We don’t have a definition of residential area and I think that’s something that needs to be defined in the code so I had that same comment.

Mr. McDonnell:  Section 411.16(D)(8), it does appear that there is a typo next to the last sentence where it says “fro the closest exterior wall” it should read from.  The last item that I had and a question also with regard to section 803.2, 803.3, and 803.4 are specifically those sections that deal with first amendment rights or free speech or freedom of expression.  Who determines if it is a First Amendment issue of free speech or expression?  If the law director so directs it is pretty obvious or pretty straight forward that it’s going to be that way.  But again, in those areas how is that determined and who is going to make that determination?  That is all I have.

Mr. Magyaros:  Mr. Bergman when you looked at this did you have any comments or concerns that you wanted addressed.

Mr. Bergman:  No, this is the first time I been involved in writing the regulations.

Mr. Conaway:  I agree because these are concerns and I think there are some loopholes now and we need to be specific.  I would personally like to see it be more specific in that it would include nudity in some of these.  I think we’re finding out if there are any loopholes at all these people that are in this kind of business know exactly what to look for.  I think like in the case of the Gold Club, they have one attorney that is used throughout the country and he is there and knows exactly what he’s doing.

Mr. Bergman:  The concern that I have is that if we make these too restrictive to some degree are we going to create a problem with the general movie theater business with the R-rated movies.

Mr. Phillippi:  One of the things with the adult motion picture theater is it does say that they are regularly shown.

Ms. Magyaros:  That was another concern that I have.  You see throughout some of these definitions, and I have some underlined like adult cabaret where it says establishments that regularly features.  I also think we need to have some kind of a definition or standard as to what regularly features means.  Are we going to say a certain number of times a year or weekly or monthly.

Ms. Conaway:  Maybe it could say adult cabaret that is established for the purpose.

Mr. Bergman:  In the definition I felt the same thing.  It says 40 % of the businesses profits generated from adult type entertainment and that defined it as being substantially an adult oriented business.  Would that not cover all the regular features?  It’s in number eleven, principal business purpose.  Now if that doesn’t cover that then we have to define regular use.

Ms. Magyaros:  Maybe we could word it so that it says commercial establishments with its principal business purpose of… you know something like that.  I did have a concern about regularly features and how we would address this or define it.  I already raised the fact about the adult motion picture theaters and I noticed that x-rated in not included in that definition where it was in the old one.  I had a concern about the nude model studio definition.  In subsection (c) we say enroll at least three days in advance of the class.  That seems so arbitrary to me.  How are we ever going to enforce that to put three days in?

I also noted that there is no definition for residential use.  So those are some of my concerns and I did make an attempt to call Mr. Beck, the attorney that drafted these for us to talk to him and raise some of the issues we talked about but he wasn’t able to get back to me until late and I was already out of the office.  But I had spoken to John earlier in the week and asked him if Greg Beck would be here because I think it would be helpful to us to work through the definitions having somebody who has some expertise in the First Amendment area.  I don’t want to push these things through and then have a mess on our hands where we don’t have every area covered.  So I would like to see Mr. Beck or some one from his firm here maybe next month and sit down and really go over these with him and raise our concerns and he can say yes legally we can do that or no we can’t do that.

Mr. Bergman:  Joni could you let Mr. Beck know the concerns we have raised?

Mr. Phillippi:  I’m just wondering if they want to bring those before the trustees at their next meeting to actually take action on because of the time.  I think they may feel there is a very…

Ms. Conaway:  Should we come back next week?

Mr. Phillippi:  Well it’s not going to be Thursday because I’m going to be with Mr. Snee and Mr. Conley.  I know that the trustees very much want to get these taken care of.  We’re not really involved in this as the zoning department.  We can transmit the concerns to Mr. Beck and if they want to address those at the time they are presented to the trustees or if they want to take action to deny it but this was developed very quickly because of everything that we’ve been through over the last year.

Ms. Magyaros: We all have a lot of concerns with it.

Mr. Bergman:  The concerns are from a legal standpoint. If the board is saying to him that nudity is a problem, if we don’t specifically identify nudity as an area then yeah it is a problem if it is a legal issue that it’s not in there.  If the fact that x-rated movies is not included, is this a legal issue from a definition standpoint.  I don’t think the determination of free speech, while I’m concerned about it I don’t think we’re going to solve that with anything that we put in the regulations.  I’m not even sure why it’s there other than from a standpoint of what we are trying to do and not infringe on free speech.  Why can’t we refer to the code for a residential use as defined in the regulations or do we have to have to have a definition in this regulation itself.

Ms. Magyaros:  I think it would be helpful to have some sort of definition of residential use.

Mr. Bergman:  My concern is if these are all legal issues I don’t have the background to say to put these things in.  Somebody has to tell us.

Ms. Magyaros:  I don’t want to pass these and create more law suits and more problems than what we are already having, so I would feel more comfortable voting on these tonight but with the submission of a list of our concerns and we would like to see these addressed when this goes to the trustees.

Mr. McDonnell: I think the reason why the freedom of speech, freedom of expression aspect is in there is because there is a section of law, and I’m not sure where, where it does say it has to be done in an expeditious fashion.

Mr. Phillippi:  That’s the reason why we’re in court right now.  It’s because we can’t provide prompt judicial review.
Mr. McDonnell:  I heard some comments about defining what is regularly and I heard some comments about 40 %.  One day a week to have amateur strip night is 14%.  Two nights a week is 28%.  So you could have it 2-1/2 nights a week and be under the 40% and I’m wondering if defining regularly can put the township in a box and say a little bits okay but don’t go over this.

Ms. Magyaros reviewed each item and noted suggested changes which are as follows:
411.16 (B) Definitions
1) Adult Arcade-This definition is currently in section 201.2(B)(2) of the resolution so it needs to be consistent.
2) Adult Bookstore, Adult Novelty Store or Adult Video Store-We had a spelling change in the second to the last line “specified anatomical areas” and also Mr. McDonnell’s comment on it that it doesn’t include the language of nudity.  Legal counsel needs to decide if nudity should be in there.
3) Adult Cabaret-There currently is a definition of adult cabaret in 201.2(B)(3) of the zoning resolution.  If legal counsel would agree maybe we need to define the term “regularly features” as used in the definition or re-word the definition.
4) Adult Motion Picture Theater-This is currently defined in the zoning resolution under section 201.2(B)(5) and it does not speak to the definition of nudity so I don’t know if we should be including that in the definition of adult motion picture theater and I would also note that under the current definition it refers to x-rated films, motion pictures, video cassettes, etc, and this proposed definition does not have that x-rated language in it.  I don’t know if that was an oversite or done intentionally.
5) Adult Theater- Again, I am seeing the term “regularly features” used in adult theater and I don’t know if we want to further define that.
6) Covering- I don’t have any recommendations for that.  The commission agreed.
7) Establishment-Only problem is the copy right symbol should be a (c).
8) Nude Model Studio-Only problem is the copy right symbol should be a (c) and also it does not use the language nude or define nudity.  I have a concern about the student must be enrolled at least three days in advance of the class.  I think that may be arbitrary and difficult to enforce.  So counsel can take a look at that.
9) Nudity or a State of Nudity or Nude- That is currently defined in section 201.2(B)(99) and needs to be consistent.
10) Person-No problem with this.
11) Principal Business Purpose-No problem with this.
12) Semi-Nudity or Semi-Nude Condition or Semi-Nude-No problem with this.
13) Sexual Encounter Center-The term nude in item (b) needs to be addressed and whether it should be included in subsection (b).
14) Sexually Oriented Business-This is currently defined in section 201.2(B)(128) and needs to be consistent.
15) Specified Anatomical Areas-No problem with this.
16) Specified Sexual Activities-Subsection (a) should have the last word “and” changed to the word “or”.  Subsection (c) should be corrected from the copy right symbol.
17) Substantial Enlargement-No problem with this.
(C) Sexually Oriented Business-No problem with this
(D) Location of Sexually Oriented Business-Copyright symbol should be changed to (c).
(D)(4)-I’m concerned with the lack of the definition of “residential use” and it is proposed that a definition of “residential use” be included in the resolution.
Mr. Phillippi stated that he doesn’t think it has to do with the district.  It is the actual use as a residence and needs to be spelled out because there could be a non-conforming residence in an industrial area.
(D)(8)-There is a typo.  The wording “fro the closest exterior wall of the structure in which each business is located” should read “from the closest exterior wall of the structure in which each business is located”.
Section 801.4B-The First Amendment issue-There are some concerns as to the definition of the First Amendment issue and I don’t know if they can recommend that legal counsel take a look at that, if they even want to attempt to define that, if they believe it will be clear or it will be made clear to them that it is a first amendment issue.  Mr. Bergman stated this is also in 803.3(B), 803.4(A).
Section 803.3(3) and 803.4(A) -The word “restrain” should be changed to “restraint”.  The term “regularly features” needs to be defined where ever it is referred to.

Ms. Conaway made a motion to vote on amendment 535-04 as proposed with the suggestions listed.

Mr. Bergman seconded the motion.

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

The board agreed to continue the discussion of future proposed changes for initiation until the next meeting of March 18, 2004 at 8:00 pm.

Mr. Bergman made a motion to adjourn the meeting.

Ms. Conaway seconded the motion.

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

Respectfully submitted,

Joni Poindexter
Zoning Data Coordinator
Clerk/Secretary