Members Present:                        David Clatterbuc
                                                        Rodney Napier
                                                        Donna Conaway
                                                        James Bauder

Alternate Member:                        Aletha Magyaros

Absent Member:                          Tom Winkhart

Zoning Data Coordinator:           Joni Poindexter

Zoning Administrator:                 John Phillippi

Mr. Clatterbuck asked if the board had any comments on the minutes from May 17, 2001.

Mr. Napier stated that on Page 10 Paragraph 5, the word opponent should read proponent.

Mr. Napier made a motion to approve the minutes of May 17, 2001 as amended.

Mr. Bauder seconded the motion.

The vote was: Ms. Magyaros-yes, Mr. Bauder-yes, Ms. Conaway-yes, Mr. Napier-yes and Mr. Clatterbuck-yes.

AMENDMENT #501-01 – The Jackson Township Zoning Commission proposes text amendments to Article II, III, IV, V, VI & VIII of the zoning resolution including but not limited to Definitions, Corner Lot, Parking of Certain Vehicles, Planned Residential Developments, Conditional uses and standards, Child Day Card, Billboards & Other off-premises sign regulations.

Mr. Clatterbuck read the file application proposed by the Jackson Township Zoning Commission and RPC recommendation for approval and the facts considered in their recommendation.

Mr. Clatterbuck asked if anyone wanted to speak for or against the proposed amendment.

No one came forward because there was no one in the audience.

Mr. Clatterbuck closed this amendment to public discussion.

Mr. Clatterbuck stated that he went through the minutes and the proposed text changes from the work session to verify that everything that was discussed was in there and as far as he could tell everything is 100% there.

Mr. Clatterbuck stated that there are two additions that have been submitted. One is a clarification by adding a footnote to the Schedule of 502.3 and 502.4 of the zoning resolution.

Mr. Phillippi stated that the footnote is a statement that was taken from another part of the text and moved so it is incorporated into the schedule so there is no misunderstanding as to how to calculate the maximum area permitted for a sign. This is not changing anything; it is for clarification purposes.

Mr. Clatterbuck stated that the second item is the addition of Section 301.10. The heading is "SITE IMPROVEMENTS PERMITTED IN ANY DISTRICT" and reads as follows: Driveways, public and private water and sewerage facilities, and storm drainage facilities shall be permitted in any zoning district.

Mr. Clatterbuck asked if any of the board members had any discussion or observations on the proposal.

Mr. Bauder stated that he had an observation in section 302.9 where it states "creating a slope of more than 30 degrees," because a 30 degrees is rather steep for finer textured soils. Mr. Bauder stated that sandy soil or gravel soil is no problem but a 30-degree slope on a fine textured soil is not stable.

Mr. Clatterbuck stated that he suggests more research be done before considering changing the text.

Mr. Bauder stated yes, maybe to fine tune it. Even a 12% slope on a fine textured soil when wet will slip.

Mr. Clatterbuck asked if this had been a problem in the past because the EPA requires that barriers be put up during construction.

Mr. Phillippi stated regarding actual construction where a slope is being created; this would be covered under the erosion control plan that has to be submitted and approved by the soil conservation district.

Mr. Phillippi stated that he believes, where there is a requirement or a need for a retaining wall and where there would be a slope of 30-degrees, this is incorporated from the Stark County Building regulations.

Mr. Bauder stated that he was referring to more of a cut in to a bank however if this is not a big problem then he is not very concerned about it.

Mr. Napier asked Mr. Bauder, if it were to be changed, what would he change it to.

Mr. Bauder stated that he would make it a lesser slope depending on the site conditions.

Mr. Clatterbuck stated that if this is not a problem then he feels it should be left alone.

The board agreed not to change anything is Section 302.9.

Mr. Clatterbuck asked if the board wanted to include Section 301.10 in the proposed changes.

The board agreed.

The board had no further discussion on any of the proposed changes.

Mr. Napier made a motion to vote on amendment 501-01 as submitted, to also include the addition of the modifications to Chapter 302, Section 302.10 and the modification to Schedule 502.3 & 502.4 of the zoning resolution.

Ms. Conaway seconded the motion.

The vote was: Ms. Magyaros-yes, Mr. Bauder-yes, Ms. Conaway-yes, Mr. Napier-yes and Mr. Clatterbuck-yes.

Mr. Clatterbuck stated that the next matter on the agenda is the recommendations from Dave Ferrell for Rules of Procedures for the Zoning Commission.

Mr. Clatterbuck stated that as far as he can tell this mirrors basically what the board already does.

Mr. Ferrell stated that he tried to highlight in the cover memo a few items that he thought might merit some discussion.

Ms. Magyaros stated that she did not see where there was a term for the alternate and asked if this is a one-year term.

Mr. Ferrell stated that he believes it is a one-year term because a different board member is up for renewal every year.

Mr. Ferrell stated that he would add some wording for the alternate.

Mr. Ferrell stated that one of the issues that came up for the alternate is, should an alternate be able to be involved in the discussion when there is already a full board and the alternate would not be voting. Mr. Ferrell stated that the rules say that they cannot.

Mr. Clatterbuck stated that he feels that the alternate would not be involved in the discussion because only five members would be making a decision. Mr. Clatterbuck stated that the alternate could go into the audience and asked questions as part of the public but he does believe that the alternate should sit with the board and ask questions if they are not going to vote.

Mr. Napier stated that there might be a benefit to add the alternate in the discussions because one could rely on their expertise.

Mr. Clatterbuck stated that the difference would be as to whether or not they are on the board or an alternate. Mr. Clatterbuck stated that he thinks if they are an alternate and there is a vacant position on the board at a specific time, then the alternate would be involved in the discussion and decision. If not then they just sit there and do not get involved. Mr. Clatterbuck stated that the alternate should be a member of the public if they want to give input.

Mr. Ferrell asked if Mr. Clatterbuck is saying that the board does not mind the alternate making comments, but they have to sit in the audience.

Mr. Clatterbuck stated correct.

Mr. Ferrell stated that if done the way Mr. Clatterbuck is talking about then the alternate would not be giving up any rights because they could still give input.

Mr. Bauder stated that if this is how it is then he does not think the alternate should sit with the board.

Mr. Clatterbuck stated that the position of the alternate is for example, if the board knows that a case will be continued for a few meetings, then the alternate should be present in case someone from the board would be absent at the last hearing. At this point the alternate would be able to give input.

Mr. Clatterbuck stated that the alternate is to keep an uneven number of members. At the last hearing there was a split vote and this is not what they want to have.

Ms. Conaway stated that she thought one of the reasons for the alternate was so there would not be an even number of members.

Mr. Clatterbuck stated that an alternate is a parliamentary procedure.

Ms. Poindexter asked, if there is only three members and an alternate present for a meeting, is it best even though the alternate would make a forth member and be taking a regular members place, to not have the alternate sit in on the meeting to prevent a tie vote.

Mr. Clatterbuck stated no.

Ms. Magyaros stated that the rules address tie votes so a tie vote is a no vote.

Mr. Clatterbuck stated that he would take contention with this because his feeling is that a tie vote is a non-vote. Mr. Clatterbuck stated that he does not like the fact that a tie vote means a no vote because it actually means that the board did not come to a conclusion and this makes a difference in the procedure of the trustees.

Mr. Ferrell stated that he thinks something could be added to say that if there is an open seat on the board then the alternate sits in.

Mr. Clatterbuck stated that the newspaper had stated that the Zoning Commission voted no on the Akron General proposal and asked who gave the legal opinion of this.

Mr. Ferrell stated that Neal Fitzgerald, the Jackson Township Law Director, gave the opinion.

Mr. Phillippi stated that he thinks this was based on precedence from another incident where the same thing happened with Emerald Estates.

Mr. Clatterbuck stated that if the tie vote went as a non-vote then it would only take a majority of the trustees to vote yes or no for it. If the commissions tie vote is taken as a no and the trustees want to over turn it then it would take 100% of the vote.

Mr. Napier asked if the board had the authority to stipulate that a tie would not be a no vote.

Mr. Ferrell stated yes.

Mr. Clatterbuck stated even though they would be going against legal precedence.

Mr. Ferrell stated that there is a case law that indicates that the board can do exactly what he has proposed, which would be consistent with their precedence and if the rules say that a tie vote is a no vote then this is fine. Mr. Ferrell stated that the problem before was that the Zoning Commission did not have rules.

Mr. Ferrell stated that by statue the Zoning Commission is required to make a recommendation and if it is called a non vote the issue comes up as to what happens next.

Mr. Phillippi stated that the statue says that the zoning commission will recommend approval, denial or a modification to the board of trustees.

Mr. Clatterbuck stated that although he disagrees and would like to see it the other way, if this is what it says then the board has no other choice but to call it a no vote.

Mr. Napier stated that it could go the other way and they could call it a yes vote.

Mr. Ferrell stated that it could be put in that it is a no vote or that it needs to be reconsidered.

Mr. Napier stated that maybe reconsideration would be the way to go.

Mr. Ferrell stated if reconsidered one could be talking about kicking it over to the next month and have everybody come in and go through the whole process all over again.

Mr. Clatterbuck stated that something is wrong with that process because they do not know what the vote is going to be until the time has been spent in a meeting.

Mr. Ferrell stated the hearing could be reconsidered the next month but there is no guarantee that there would not be an even number of members.

Mr. Napier stated that he does not know that it would be fair to delay the applicant another month.

Mr. Ferrell stated that he is hoping the idea of the alternate would lessen the chance of an even number of members. Mr. Ferrell stated that the township has the authority to have two alternates.

Mr. Clatterbuck stated that they could still end up with an even number. Mr. Clatterbuck asked if the board had two alternates, would they have the ability to call on one alternate if they know that they are going to have an even number of members or both if only three members are going to attend.

Mr. Napier asked if they could call someone from the BZA to sit in the meeting.

Mr. Ferrell stated that a person could not sit on both boards.

Mr. Clatterbuck stated that the problem he sees with two alternates is who picks which alternate is going to attend the meeting.

Mr. Ferrell stated that he does not see this as a problem because there would be a first and second designated alternate.

Mr. Napier stated that there has only been a tie vote once in eight years.

Mr. Ferrell stated that it happened with Emerald Estates 1-1/2 years ago.

Ms. Conaway stated that she does not know why they can’t say that if an alternate creates a forth person then they cannot vote.

Mr. Ferrell stated they probably could but he does not recommend it.

Mr. Conaway stated, then they should go the way have been by saying it is a no vote.

Ms. Conaway stated that she thinks the bigger the case the more the trustees should have to deal with it.

Mr. Ferrell stated that the only issue would be if the trustees need a majority vote or unanimous vote. Mr. Ferrell stated that he would be inclined to say that they only would need a majority vote because there was no recommendation for them to approve or disapprove, but this would be butting up against his boss and Neal does not want to change things in mid stream.

Mr. Ferrell stated that he thinks, however he is not sure, that Robert’s Rules of Order say that if there is a tie vote then it essentially looses.

Ms. Conaway stated that she believes it takes a majority vote to make a change.

Mr. Clatterbuck stated that there is no doubt about the effect. Mr. Clatterbuck is more concerned about the technical part of the vote because the vote does not say that it is a loss by the non-participate of the fifth person that causes it to be a tie. Mr. Clatterbuck stated that he understands that it would create more problems to say that it is a non-vote then to say it is a denial.

Mr. Clatterbuck stated if this is the way it is, then he has no problem with the way it is written because it is a recommendation of no.

Ms. Conaway stated that she thinks it should be accepted as written.

The board agreed.

Mr. Phillippi stated that he received two comments from Marilyn Lyons, Township Administrator, regarding the proposed rules.

Mr. Phillippi stated on Page 2 Section 4 Ms. Lyons recommends it say, "removed by the Board of Trustees" instead of just "removed by the Board".

Mr. Ferrell stated that Section one talks about the Board of Trustees being referred to as the Board.

Mr. Clatterbuck stated that he believes this does not need changed because it is defined in the beginning of the document.

Mr. Phillippi stated at the top of Page 4, Ms. Lyons though it should say "maintain said recordings in accordance with the township records retention policy" instead of "maintain said recordings for a period of two years from the date of hearing."

Mr. Ferrell stated that he did not know that there was a records retention policy, he just picked the two-year time period.

Mr. Phillippi stated that the township has a policy for destroying records, which is the records retention policy.

Mr. Ferrell stated that he would change the wording of the sentence.

Mr. Ferrell stated that he wanted to point out that on Page 6 Section 9 there is a paragraph for reconsideration.

Mr. Napier asked if the board would have to reconvene if they wanted to change a vote prior to the trustees meeting.

Mr. Ferrell stated yes.

Mr. Clatterbuck stated that it would have to go into public notice and record.

Ms. Poindexter asked if a reconsideration would have to be advertised the same as a regular meeting.

Mr. Ferrell stated yes.

Mr. Napier asked what if the board wanted to reconsider and give their decision the next week.

Mr. Ferrell stated that only two members are needed to call a meeting.

Mr. Clatterbuck asked where it says in the rules that two members are needed to call a meeting.

Mr. Ferrell stated that this is addressed in Section 4 on Page 4.

Mr. Ferrell stated that his theory is that the Zoning Commission does not loose jurisdiction on a case until the trustees have acted on the recommendation.

Mr. Ferrell stated that once a meeting is called, the members would vote on whether to reconsider the decision or not.

Mr. Clatterbuck asked what is done about advertising because there are deadline dates.

Mr. Ferrell asked how much time a hearing is advertised before the actual hearing.

Ms. Poindexter stated hearings are advertised about 14 days in advance in case there is a misprint in the advertisement. This leaves enough time to run the corrected ad within the 10 day required time period.

Mr. Ferrell asked how many days there are from the commission meeting to the time the trustees hear a case.

Ms. Poindexter stated usually the trustees set the meeting date and time on the following Monday after the commission hearing and the ad is faxed the next day and it is advertised on that Thursday. The trustees usually hear the case at their next meeting.

Mr. Magyaros stated that maybe a motion should have to be made within so many days to reconsider a case.

Mr. Ferrell stated that there is almost 21 days between meetings so if someone wants to reconsider after 10 days there is still 11 days left and asked if this is enough time for advertisement.

Ms. Poindexter stated that the advertisement has to be published 10 days before the meeting and the ad is faxed about 16 days before the meeting to ensure a placement in the paper.

Mr. Napier asked if it is correct that a meeting would have to be called and a vote taken to reconsider the hearing.

Mr. Ferrell stated that if the commission would vote to reconsider they would also vote to withdraw their recommendation then they would no longer have anything pending before the trustees.

Mr. Napier asked the board if they like the idea that the reconsideration would have to be a certain amount of days after the commission meeting.

Mr. Clatterbuck stated yes, but he is concerned about the advertisement.

Mr. Bauder stated that he thinks it should be within 3 to 5 working days.

Mr. Napier stated that he agrees with 3 to 5 working days for a reconsideration vote.

Mr. Ferrell stated that the time period would exclude the day of the vote and also exclude any holidays or weekends.

Ms. Poindexter asked if there is a tie vote and a commission member asked to have the vote reconsidered at the hearing that night and it was announced at the hearing, would it still have to be advertised or would it be treated the same as a continuance.

Mr. Clatterbuck stated that they would have to have a reconsideration meeting to see if the board wanted to reconsider. Mr. Clatterbuck asked Mr. Ferrell if he is correct.

Mr. Ferrell stated yes.

Mr. Ferrell stated that one scenario is that if the board voted to reconsider on the same date as they made their decision, and in this case it would be the next hearing and this could be continued without re-advertising.

Mr. Ferrell stated that if there is a tie vote and a member says that they would like to move to reconsider, the board would go through the second and the discussion. If there were a majority vote to reconsider it then they are back to square one and the next hearing date would be set.

Mr. Clatterbuck stated that procedurally if Mr. Ferrell says that they don’t have to give notice then he would buy into it. Mr. Clatterbuck stated that he thinks some legal research needs to be done because he has a feeling that due process of law would say what if someone was not there that night.

Mr. Phillippi stated that he thinks that it would still need to be re-advertised.

Mr. Napier stated not if everyone is present from the advertisement.

Mr. Clatterbuck stated that someone might say that they were not present.

Mr. Ferrell stated that if the board votes to reconsider and withdrawn their recommendation then there is plenty of time so there would be no reason to not advertise.

Ms. Conaway stated that it would be handled the same as if it were tabled.

Mr. Clatterbuck stated tabled is different because a decision has not been made.

Mr. Ferrell stated that it’s almost like being tabled because the board would have voted but then they withdrew their vote.

Ms. Phillippi stated that if a hearing is tabled or continued, it is not re-advertised. This is the difference because if it were reconsidered then it would be advertised.

Mr. Clatterbuck stated that if tabled then the hearing is still going on. Once a vote is taken the hearing ends.

Mr. Bauder asked if it is to simplistic to say that if there is a tie vote that it is automatically tabled.

Mr. Ferrell stated that this is an option.

Ms. Magyaros stated, at that point the board has already voted.

Mr. Clatterbuck stated that he does not think they could go backwards.

Ms. Conaway stated, at least the board knows that if there is a tie that they can go back and reconsider the proposal.

Mr. Napier stated that maybe it could be that if there were a tie vote, then there is automatically a reconsideration.

Mr. Clatterbuck stated that the board might not want to reconsider.

Mr. Conaway stated that maybe it should automatically come up as a reconsideration that is voted on at that specific time.

Mr. Clatterbuck stated that he sees a problem with this because the same two people who voted against it may not want a reconsideration and the two people who voted for it would want it. Then they are right back to square one.

Mr. Clatterbuck stated if there is a reconsideration hearing and the fifth member shows up then there would be a different mix to vote to consider it or not. If done immediately after the hearing the same people will vote the same way and Mr. Clatterbuck is not sure that this is good due process.

Mr. Clatterbuck asked if Mr. Ferrell should take this back to the drawing board.

Mr. Ferrell stated that he would check with Neal to see what his thoughts are.

Mr. Ferrell stated the only other thing he has is whether the board wants to do anything as far as Chairman & Vice Chairman seats. Some provisions have the position rotated throughout the board and others do what the board has been doing, which is to vote each year.

Mr. Clatterbuck stated that it would not bother him a bit to rotate but at the same time he does not mind taking the Chairman position.

Mr. Napier & Ms. Conaway stated that they like not having the rotation.

The board agreed to vote each year on a Chairman & Vice Chairman.

Mr. Napier asked if Mr. Ferrell would highlight the areas that he is going to change when bringing the Rules back to the commission.

Mr. Ferrell stated yes.

The board had no further discussion.

Ms. Conaway made a motion to adjourn the meeting.

Mr. Bauder seconded the motion.

The vote was: Ms. Magyaros-yes, Mr. Bauder-yes, Ms. Conaway-yes, Mr. Napier-yes and Mr. Clatterbuck-yes.

Respectfully submitted,

Joni Poindexter
Zoning Data Coordinator
Clerk/Secretary