Members Present:                                                          Aletha Magyaros
                                                                                          Donna Conaway
                                                                                          James Bauder
                                                                                          David Benner
                                                                                          Stephen Bergman
                                                                                          Richard Russell-Alternate

Zoning Data Coordinator:                                             Joni Poindexter

AMENDMENT #531-03 – John Hamilton, property owner, 6871 Hillway Ave. NW, North Canton, Ohio 44720 proposes to rezone R-R (Rural Residential District) to B-3 (Commercial Business District) .42 acres, more or less, on the east side of Wales Rd., approximately 690 ft. south of Waywood, also known as 8166 Wales Rd. NW, Sect. 3SW Jackson Twp.  (Legal description on file)

Ms. Magyaros read the file application signed by John Hamilton 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 this amendment.

Mr. John Hamilton, 6871 Hillway Ave. NW, stated that he owns Spaceage Electrictronics and would like to add an addition to his building.  In order to do this he needs the zoning changed to B-3.

Ms. Conaway asked if the business is already on the property.

Mr. Hamilton stated yes.  It’s on the commercial portion of his property but he owns two lots and would like to rezone the residential portion to commercial.

Mr. Bauder asked if there is a gas line easement between the proposed property and the other property that is owned by Mr. Hamilton.

Mr. Hamilton stated that he does not believe so, but he is not sure.

Mr. Bauder stated that Mr. Hamilton should check into this because the soils in the back of the existing building are not good for septic.  Mr. Bauder stated that he did some work for the previous occupant of the property and it was suggested that they go to the south but it was his understanding that there was a gas easement there.

Mr. Hamilton stated that he does not know if there is a gas easement, but obviously he would check into it before he builds.

Mr. Bergman asked Mr. Hamilton if he owns the other property that is zoned rural residential.

Mr. Hamilton stated no.

Mr. Benner asked Mr. Hamilton if he spoke to the people who live in the house just south of his property because it seems like they don’t have a lot of concern because they are not in attendance for the meeting.

Mr. Hamilton stated no.  The property next to him is pretty wet so he doesn’t think anything will be going in there.
Mr. Hamilton stated that the property behind him is where American Sand & Gravel is located and beside him is a fence with a sign that says in case of an emergency contact American Sand and Gravel, but then he hears that the person who lives in the red brick house owns the property so he is not sure about the property owner.

Mr. Bauder stated that he thinks the property is owned by the Airport.

Ms. Magyaros stated that the property is probably leased by American Sand & Gravel.

Mr. Benner stated that the B-3 zoning is pretty wide open and asked Mr. Hamilton if he anticipates a lot of traffic coming to the business.

Mr. Hamilton stated that most of their business is out of state through the internet so they have very little traffic.

Ms. Conaway asked how many employees are at the business.

Mr. Hamilton stated that he has six employees.

There were no further comments.

Mr. Bauder made a motion to vote on amendment #531-03.

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 no one else was present in the audience to speak in favor of or in opposition to the amendment.

Ms. Magyaros stated that the amendment would go to the trustees as a recommendation for approval.

Ms. Poindexter stated that the trustees will probably set the meeting date and time at their November 24th meeting and the amendment will probably be heard by them on December 8th.  However, Mr. Hamilton will receive a notice just as he did for this hearing regarding the exact date and time it will be heard by the trustees.

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 replace with “The Board of Appeals shall have no authority to permit a use where such use is not permitted by this resolution.”  (Description on file).

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

Ms. Magyaros stated that the first item is the change in Schedule 504.2(4)(B).

Mr. Bergman asked if this means right now if they wanted to have a hundred signs they could, or does it mean zero by having “N/A” in there.

Ms. Conaway stated that it means non-applicable.

Ms. Poindexter stated that this may have been an oversight when put in the book.  It was the zoning departments thought that because it says per street frontage and “N/A” that someone could come in and interpret it as they could have a banner, balloon, portable sign, or one of each per street frontage.

Ms. Magyaros stated that it seems there is some controversy about the number of days a temporary sign is permitted in section 504.2(4)(D).  It was 45 days, then 60 days, and now it is 30 days, but the issue of the number of days is not before the board.

Mr. Benner stated that in theory one could argue that a sign could be displayed for 29 days and then taken down for a day and put up again for 29 days because it is not 30 consecutive days.

Ms. Poindexter stated that the wording is “for a period not to exceed 30 consecutive days”.

Mr. Benner stated if it is up for 29 days, taken down, and then put up again for 29 days then they don’t have it up for 30 consecutive days within six months.  This is not worded correctly.

Ms. Magyaros stated that it could be worded to say “not to exceed 30 days within a six month period.”

Ms. Poindexter stated then someone could put it up for 14 days, take it down, and then put it back up again for 16 days.  The intent is if they get a permit in January then they cannot have another permit until six months from that date because they are only permitted one temporary sign or one permit within six months.

Ms. Conaway stated that maybe it should say “not to exceed 30 days which must be consecutive.”

Mr. Benner stated that it should include the words “for one period” so it would say “for one period not to exceed 30 days which must be consecutive”.

The board agreed that the wording should be “Per street frontage: For one period not to exceed 30 days which must be consecutive within a six month period of time.”

Mr. Benner asked about the civic and government signs because it has the same wording.

Ms. Magyaros stated that she doesn’t know if the board can change the wording because this was not brought before the board.

Ms. Magyaros stated if this is something that should be addressed in the future then the board could do this, but she doesn’t feel the board can address this at this time.

Ms. Magyaros noted that Mr. Bill Day, a resident of Jackson Township, arrived at the meeting.  Ms. Magyaros asked Mr. Day if he had any comments on the temporary sign issue.

Mr. Day stated no.

Ms. Magyaros stated that the next issue is the deletion of a use variance.

Mr. Bauder suggested that the board vote on the first matter.

Ms. Magyaros stated that it is one amendment and believes it needs to be voted on as a whole; however, an amendment could be made to the amendment.

Ms. Magyaros asked Mr. Day if he had any comments on the use variance issue before the zoning commission discussed the issue.

Mr. Day, 4821 Nobles Pond, stated that he is not really against the change, but he wanted to know what the purpose for the change is and if it is an existing problem for the Board of Appeals.  Mr. Day stated that he ran into Mr. McDonnell, who is on the Board of Appeals, and he said that he didn’t know anything about this.  His only question is he recently requested what he believes is a use variance, which was approved, and if the use variance is removed then what he went in for he could no longer apply for.

Ms. Magyaros stated if the section regarding a use variance is deleted then it would no longer be available and there would only be area variances.  Ms. Magyaros asked Mr. Day what his situation was when he applied for a variance.

Mr. Day stated that there are some gray areas where this might come up.  Originally the previous code allowed for sales informational trailers on a construction site.  This was taken out of the new book but construction trailers are still permitted.  There is nothing in the book that addressed what he wanted to do so he asked for what he refers to as a use variance.  Mr. Day stated that his request was approved with a vote of three to two.  An opinion of one of the board members was that it was incidental to construction, which in that case it wouldn’t be a use variance.  Mr. Day stated that he addressed it as a use that he thought was not addressed in the book, so to him it is kind of a legal thing because he doesn’t really understand a use variance.

Mr. Magyaros stated that she thinks under the law a use variance allows a person to use their property for a purpose that it is not technically zoned for.  There was a situation in the township where a gentleman had a business in a commercial area and had a garage that he turned into a house so he applied for a use variance to allow him to continue to live in the commercial area.  If the variance wouldn’t have been granted then he would have had to move from the property.

Mr. Day stated that he is not against it, but he doesn’t understand the reason for taking it out.  It may be robbing the public of something.  If it’s a problem for the township then he can see it because they want to avoid conflict.

Ms. Conaway stated that the BZA can approve or disapprove if somebody approaches them and wants a use variance and thinks it should be their right to do that.  Ms. Conaway stated that taking it out does not sitt right with her and she wonders if it would be a problem for the township, like the example about the person turning his garage into a home and living in it for 15 years, if it could be a problem for the township saying they have to move out because they wouldn’t have an option.  Ms. Conaway stated that she thinks it would always be open for some kind of legal problem no matter what.  It would be just as open by saying you have no choice.

Ms. Magyaros stated what prompted her concern was, and she spoke with Mr. Ferrell about this, was under the Ohio Revised Code, section 519.14, the general assembly has specifically granted the BZA and townships the right to grant use variances.  It states that the board of zoning appeals may do the following.  It does not state shall do the following.  To her, if the general assembly has recognized the right and variances are constitutional she is hesitant to step on the general assembly’s toes and take that right away from the BZA.  Ms. Magyaros stated that she can see a lawsuit in the future under the right situation where someone would say they requested a variance to have the right to use their property in a particular manner, and the way the resolution is worded, they don’t even have a right to request that because there is no such thing in the resolution.  Ms. Magyaros stated that she has not found any case law, nor has Mr. Ferrell, that has specifically addressed that issue, but she can see it as a potential concern in the future.  Ms. Magyaros stated that by taking the use variance away they are taking away the right to at least request to use their property a certain way.

Mr. Day stated that he is not against it, but wants to understand it and it seems like it may be taking someone’s right’s away.

Ms. Magyaros stated that it is almost a denial of due process.
Ms. Conaway stated that she thinks it is a disservice to the people to take it away and it is up to the BZA to say that they can or can’t have a use variance.

Mr. Day stated that the board may want to table it and confer with the BZA.

Mr. Bergman asked where the amendment came from initially.

Ms. Poindexter stated that Mr. Phillippi seemed to think that it was kind of like rezoning a piece of property because although a use is not permitted in a certain district, one could come in and ask for that use under a use variance.  If looking at the conditions under a use variance it states that such hardship has been demonstrated by clear and convincing evidence as to all of the following criteria.  Then it lists several things such as the property cannot be put to any economically viable use under any of the permitted or conditional uses in the zoning district.

Mr. Benner stated with the example that was given it did not meet the criteria and it was caused by the applicant himself, so the criteria are not being followed even though it is there.  What bothers him is if this is followed the way it is read then they would not have granted a use variance and it probably shouldn’t have been granted according to the way it is written.  Mr. Benner stated that he thinks this is what the regulations were written for and that’s probably why Mr. Phillippi thinks it should be removed, because they are basically ignoring what the regulations say.

Ms. Magyaros stated when Mr. Benner was saying that when the BZA granted the variance for the gentleman to live above his garage he felt they didn’t follow the standards under the zoning code.  That may be the case, but if it all plays out and say a property owner complained about that, that matter could eventually proceed through the court system and a court would look at this and say you know the standards are clear and convincing evidence and they would go through the record to see.  So at some point it is something that could eventually be addressed if they don’t follow the proper standards and if the surrounding property owners don’t agree with it then they can appeal the matter.

Mr. Benner stated that in reality to allow someone to live in a building you basically have done the same thing you would have done if rezoned to rural residential, which clearly was not the intent of the Ohio Revised Code.  What it comes down to is what the commission thinks the code should say and what the recommendation of the zoning administrator is.

Mr. Bauder stated that he thinks it should include the aspect of reasonable and fair use of one’s land or property that doesn’t infringe on the neighbor and that’s where the variance comes in.  Mr. Bauder stated that the example given where the person is living in a commercial district, there is a person living next door to the south of him in a two story home and then there is a commercial building by the southwestern portion of the property and it is not a good place for a house, but he is next to his business which gives him security.

Mr. Bergman stated that he cannot see limiting the BZA because this is a narrow alternative that they have which prevents the complete rezoning of an entire area.  Mr. Bergman stated that he sees nothing wrong with leaving the language the way it is.

Ms. Conaway stated unless there is something in the wording that could be changed she thinks the BZA should be able to address a use variance.

Mr. Benner asked if there are any issues where variances have been granted and then there were complaints subsequent to the variance.

Ms. Poindexter stated that usually if there is a variance and someone is against it they come to the meeting.  If they don’t care then they usually don’t come.  If a variance is granted and someone doesn’t agree with the decision then they always have the option of filing an appeal with the Court of Common Pleas within 30 days.

Ms. Magyaros stated that she thinks a use variance is used in very limited situations and it is not a common practice.

Ms. Conaway stated that she doesn’t see where there is a need for the change because if there is a problem with the request then the BZA can deny it.

Ms. Magyaros stated that she is reluctant to take that power away from the BZA.

Ms. Conaway agreed and stated that she trusts the judgment of the BZA.

Ms. Poindexter stated that the board is pretty good about asking questions and taking into consideration if a variance is going to affect the adjoining property owners.

Ms. Conaway asked if she could make a motion to approve the sign issue and deny the other issue.

Mr. Benner stated that they could do that, but he would like to know why Mr. Phillippi thinks the use variance should be removed so maybe they should table the use variance issue.

Ms. Poindexter stated that she thinks Mr. Phillippi was looking at a use variance as more of a rezone because it’s allowing a use that would not normally be permitted in a district.

Mr. Benner stated that he would like to make a motion to separate the issue into two pieces and table the second part of it until they get more information.

Ms. Poindexter stated that the board can vote on the issues separately, but when something is voted on it has to be scheduled with the trustees within a certain amount of time.  Ms. Poindexter stated that the trustees cannot hold a hearing on only a portion of the application, so they would have to table the whole amendment because it is under one amendment application.

Mr. Bergman asked if the trustees created the amendment.

Ms. Poindexter stated that Mr. Phillippi presented a memo to the trustees who in turn initiated the amendment.

Mr. Benner asked if there is a rush on the sign issue.

Mr. Poindexter stated that it hasn’t been a problem.

Mr. Bergman stated that he would like to turn down the amendment and have it come back to them in two amendments so they can vote on them separately because he has a feeling the board is in favor of the sign issue and they may be split on the variance issue and he doesn’t want to go through this again because the board is split.

Mr. Benner stated that they can approve the first part and deny the second part if they don’t like it.

Mr. Bergman stated that Ms. Poindexter said they couldn’t do that.

Mr. Benner stated that’s not what she said.  What she said was they can approve the first part and turn down the second part, but it has to be presented to the trustees together because they can’t table half of an amendment.

Ms. Conaway stated that their options are to table the amendment as a whole or move to approve the first part regarding signs and also make a second motion for the variance portion.  Ms. Conaway stated that she thinks the board should table the amendment in its entirety so they can discuss Mr. Phillippi’s reasoning.

Mr. Bergman stated that he would like to request that Mr. Phillippi present his reasoning for the amendment.

Mr. Benner stated that he thinks there is something more than what they are seeing.

Ms. Magyaros made a motion to table amendment #532-03 until they get input from Mr. Phillippi and also revise section 504.2 regarding civic or governmental organization on or off-premises signage.

Ms. Conaway seconded the motion.

Mr. Benner asked if they need to put in what they want it to say.

Ms. Conaway stated no.  They can discuss it.

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

Ms. Conaway made a motion to adjourn the meeting.

Mr. Bergman seconded the motion.

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

Respectfully submitted,

Joni Poindexter
Zoning Data Coordinator
Clerk/Secretary