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

Absent member:                                                           Gerald Werner

Zoning Administrator:                                                  John Phillippi
Zoning Data Coordinator:                                           Joni Poindexter

APPEAL #1834 – Cooper & Associates, LLP/Bryan Ashman, 1359 Market Ave. N., Canton, Ohio 44714 agent for Michael Homes/Todd Michael, property owner, 5445 Whipple Ave. NW, Canton, Ohio 44708.

Mr. Deremer stated that this appeal has been withdrawn per letter in the file from the Bryan Ashman dated April 1, 2003.

Mr. Deremer made a motion to accept the withdrawal of appeal #1834.

Mr. Dodson seconded the motion.

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

APPEAL #1845 – Salvatore & Adeline Armogida, property owner, 6088 Sailboat Circle NW, Canton, Ohio 44718 requests a variance for 9 ft. between the principal building and the accessory building where 15 ft. is required in Art. IV Sect. 401.11 of the zoning resolution.  Property located at 6088 Sailboat Circle NW, Sect. 15SE Jackson Twp.  Area zoned R-1.

Mr. Deremer read the file application signed by Salvatore Armogida with reasons being that this is the only practical place due to trees on the property and driveway location.  The file contained a tax map of the property in question and a site plan showing the location of the proposed addition.

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

Mr. Deremer swore in Salvatore Armogida, 6088 Sailboat Circle NW.

Mr. Armogida apologized for not knowing that he needed a permit when he bought the carport and stated that he put the carport in the current location because of the driveway area and being the best location.  The carport could not be put 15 ft. from the house because of a hemlock and maple tree that is on the property.  Mr. Armogida stated that the hemlock tree was planted 22 years ago and is very large.

Mr. Deremer asked if the carport already exists on the property.

Mr. Armogida stated yes and explained that the carport is made of tubes with stakes that hold it in place and has an aluminum roof.

Mr. Armogida explained where the hemlock and maple tree are located and stated that there are shrubs located between the garage and the carport.

Mr. Deremer asked Mr. Armogida if the trees would have to be removed in order to put the carport 15 ft. from the house.

Mr. Armogida stated yes.

Mr. Deremer asked if there is anywhere else on the property that the carport could potentially be put.

Mr. Armogida stated no because it has to be close to the driveway.

Mr. Deremer asked if it could be pushed back further into the lot.

Mr. Armogida stated that it could be done but it would be more visible.

Mr. Dodson asked if there is any reason why the carport couldn’t be attached to the garage.

Mr. Armogida stated that it wouldn’t look right because the carports roof is rounded and the sides are open and all the shrubs along the garage would have to be removed.

Mr. Deremer stated that it would be hard to put it against the garage because of the way it is shaped.

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

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

Mr. Deremer swore in Maureen Zahler, 4670 Amherst Rd. NW.

Ms. Zahler stated that she is speaking on behalf of an adjoining neighbor that could not attend the meeting.  Ms. Zahler presented several photos and stated that each photo represented the following:

Exhibit #1 is a photo view of the property from Sailboat Circle in which you cannot see the carport.
Exhibit #2 is a photo taken from the front yard of the neighbor across the street in which the carport can be seen.
Exhibit #3 is a photo of the adjoining property and shows how the carport impacts the curb appeal of the house directly next door.
Exhibit #4 is a photo view from standing in the homes driveway.
Exhibit #5, 6 & 7 is a view of the carport from the neighbor’s front yard.
Exhibit #8 & 9 is a view of the front of the Mr. Armogida’s property and shows how it does not impact the curb appeal of his property because it is sitting behind a large pine tree.
Exhibit #10 & 11 is a photo of the carport.

Ms. Zahler stated that the pictures tell the story of the impact on the circle and the adjoining properties.

No one else in the audience spoke in opposition to the appeal.

Mr. McDonnell stated that the carport is on Sailboat Circle and the home is addressed to Sailboat Circle.  However, upon looking at the regulations accessory buildings are permitted in the rear and side yard and are not allowed in the front yard area.

Mr. Phillippi stated that under Section 302.2 when a house is on a corner lot either street can be designated to meet the required front yard setback.  This has been done without regard to the actual address of the structure.  It may have an address on one street but they may choose to have their frontage on the other street.

Mr. McDonnell asked if this is the option of the property owner.

Mr. Phillippi stated yes.

The board had no further questions.

Mr. Deremer closed this appeal to public discussion.

Mr. Dodson stated that the board needed to see a practical difficulty that is not imposed by the property owner.  Although this may be the best place for the carport he thinks it still violates zoning and wonders what the practical difficulty is in this case.

Mr. McDonnell stated that the building can be on the property.  The only question is can it located 9 ft. from the current garage.  If the board decided to not grant the variance and Mr. Armogida decided to cut down the trees the carport could still be there but it would be moved closer to the street.  So the question is not whether the carport can be there, it’s just where it’s going to be located.

Mr. McDonnell stated that in the past the board has taken topography into account, which may include trees.  Mr. McDonnell stated that he believes the 15 ft. requirement is more of a safety issue as opposed to anything else but he does not believe this particular carport is a safety issue because it is open.  If the carport is going to be there then this is not a bad place for it to be.  Mr. McDonnell stated that he does not believe that 9 ft. is that significant and he looks at the trees as a practical difficulty so he does not have a problem with the request.

Mr. Giulitto agreed with Mr. McDonnell and stated that the carport would be more visible if the trees were cut down.

Mr. Deremer stated that it could be pushed to the back yard but then it would be exposed more to the neighbors on Sailboat Circle.  Mr. Deremer stated that it appears that it is located in the best spot that least impacts the neighbors and believes that the landscaping is a practical difficulty.

Mr. McDonnell made a motion to approve appeal #1845 as requested.

Mr. Juergensen seconded the motion.

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

Mr. Deremer explained that if anyone did not agree with the board’s decision they could appeal it to the Stark County Court of Common Pleas within 30 days of the decision.

Mr. McDonnell recused himself from appeal #1846.

APPEAL #1846 – Smith Development Corp., 6501 High Mill Ave. NW, Massillon, Ohio 44646 agent for Robert & Lynn Hamilton, property owner 3411 Dunmore Ave. NW, Canton, Ohio 44708 requests a variance for a 35 ft. front yard setback where a 40 ft. front yard setback is required in Art. IV Sect. 401.6 of the zoning resolution.  Property located at 8088 Eastlynn NW, Sect. 29 SW Jackson Twp.   Area zoned R-1.

Mr. Deremer read the file application signed by Stephen Smith with reasons being that there is a practical difficulty.  The file contained a tax map of the property in question and a site plan showing the proposed location of the home.

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

Mr. Deremer swore in Mr. Robert Hamilton, 3411 Dunmore Ave. NW.

Mr. Hamilton stated that the lot was heavily wooded when he purchased it.  When they walked the property they did not think that the slope was severe enough to be a problem and thought there was enough room for a good solid foundation without having to worry about walls and retainers.  After the lot was cleared of the trees they were astounded at the degree of drop off that was on the property.  They decided that it would make more sense and be safer to move forward on ground that was more solid.  They put everything on hold so they could ask for a 5 ft. variance, which they feel is basically unperceivable to the neighbors because of the way the street curves.

Mr. Hamilton presented photos of the property in question and explained what each represented.

Exhibit #1 is a head on view of the front of the lot after the trees have been cut down.
Exhibit #2 is a view taken from across the street and looking down into the deep end of the property where there is a creek.
Exhibit #3 is a view from the bottom of the property looking toward the curb.
Exhibit #4 & 5 is a view taken from his property looking at the neighbor’s property.

Mr. Deremer asked Mr. Hamilton if he believes that his property drops quicker then the neighbor’s property.

Mr. Hamilton stated definitely.

Mr. Deremer asked if the existing homes are setback 40 ft.

Mr. Hamilton stated that he did not measure them but they appear to be.  It is difficult to perceive because there is a little bit of a curve where the property is located.  Mr. Hamilton stated that he would refer any technical questions to Mr. Smith.

Mr. Deremer swore in Stephen Smith, 6465 High Mill Ave. NW.

Mr. Smith stated that Mr. Hamilton contracted him to build a new home.  The lot has a very steep incline and seems to horseshoe into the hill.  The lot is one of the last two to be sold on the street.  Mr. Smith stated that he is concerned about the back wall of the home.  The drop off is over 13 ft. and they have done everything they can in the design of the home to mitigate the drop off.  They will push the house down into the ground to stabilize the back wall as much as they can and the home will have a 13 course basement.

Mr. Smith stated that the house to the right seems to be a newer home with a lot of fill in the back and he is not sure they could put that much fill in the back of this lot for stabilization of the back wall.  Mr. Smith stated that the setback is from the pins which would be 35 ft. for the house and there is an additional 10 ft. of right of way so the driveway will actually end up being 45 ft. long.

Mr. Deremer asked Mr. Smith if he would agree that the setback would be unperceivable with the rest of the homes.

Mr. Smith stated that he believes so.

Mr. Deremer asked what the stakes are that are shown in the photo.

Mr. Smith stated that they tried to stake out the front of the house which is already two feet below the road and the rear stakes are 13 ft. below the road.

Mr. Deremer asked if the slope on the back side would increase if they put in additional fill.

Mr. Smith stated yes and he is afraid that it would move and shift.

Mr. Deremer asked if there is a creek that runs through the property.

Mr. Smith stated that there is a creek that is actually a county drainage ditch.

Mr. Juergensen asked what specifically concerns Mr. Smith regarding the back wall.

Mr. Smith stated that below the basement floor they will continue down with the foundation to support the back of the house.  The basement is 8 ft. deep and they are at 13 ft. just to get to the ground.  Below that they will need to go to solid ground.  He is not sure how deep that will be but wouldn’t be surprised if they are talking about going a minimum of 8 or 9 feet on the back wall.  Mr. Smith stated that anyway they can get closer to the street and get to ground that is more stable for the back wall, the better.  Mr. Smith stated that they have engineered the wall by going with a 12 inch block instead of an 8 inch block.  They have done everything that they can to mitigate the problem but it is the back wall that he is concerned with.

Mr. Juergensen asked Mr. Smith if he feels the extra 5 ft. will alleviate the concern.

Mr. Smith stated that it will not alleviate it at all; it is only going to make it a little bit better.

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

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

Mr. Deremer swore in Joel Reott, 8790 Eastlynn NW,

Mr. Reott stated that he owns the lot to the east and the applicant has made a lot of valid points.  He is a civil engineer and built his own house and he had the same issues.  The slope is identical to the slope that he had to work with.  Mr. Reott stated that the setback for his house is 60 ft. and it is a little over 50 ft. deep.  Mr. Hamilton’s house indicates a 62 ft. depth.

Mr. Reott stated that currently where the back stakes are located are actually closer to the street then the back of his house.  Mr. Reott stated that he had to go with a 13 course basement and the back wall is a 2x6 wall, which is sufficient support.

Mr. Reott presented several photos as exhibits and explained what each represented.

Exhibit OE#1 is a side view of his house in relationship to Mr. Hamilton’s stakes.
Exhibit OE#2 is the lot at the beginning of the curve and shows how the current stakes are 11 ft. deeper than his house and don’t line up with the others.
Exhibit OE#3 is a view of what he will see from his house.  Mr. Reott stated that he would see siding because his understanding is that they want to move the house so it is 35 ft. from the street.
Exhibit OE#4 is a view of what he will look at from a front view.  Mr. Reott stated that he doesn’t buy the fact that they need the extra 5 ft. to build on virgin soil.

Mr. Deremer asked Mr. Reott if he could have built his house on the lot in question at a 40 ft. setback.

Mr. Reott stated that his lot is identical to the one in question and he didn’t have any problems building his home.

Mr. Giulitto stated that Mr. Reott had stated that his house is at a 60 ft. setback and asked if all the homes east of him are 60 ft. back.

Mr. Reott stated no.  The house to the east of him is between 50 and 55 ft. back.  However, he can guarantee that all the houses from the house east of him up are at a minimum 50 ft. setback but he cannot speak for the property west of 8808 Eastlynn.
Mr. Reott stated that he does not like opposing his new neighbor but he does not want to look at 25 ft. of siding.  He has no choice to look at 20 ft. of siding because it was his choice to put his home at a 60 ft. setback but he does not think the applicant will get anything out of moving the stakes up 5 ft.

Mr. Juergensen asked Mr. Reott if he is saying that from a construction standpoint there is no advantage on this lot with the extra 5 ft.

Mr. Reott stated that he does not disagree with that but there is always an advantage as far as increasing your back yard.  As far as the points that were made structurally, there is no advantage whatsoever.

No one else in the audience spoke in opposition to the appeal.

Mr. Smith stated that he thinks Mr. Reott is misinterpreting something.  The lot is different than Mr. Reott’s lot and has more of a severe slope closer to the road.  Mr. Smith stated that when he said the setback was 40 ft. it is actually from the pins on the road.  The pins on the road are 10 ft. back from the curb.  The road is 50 ft. and there is 10 ft. of space for utilities or whatever so when it is measured back 40 ft. for a house they are actually 10 or 12 feet further back.  Mr. Smith stated that they are only moving the house up 5 ft. from the stakes that are shown.

Mr. Reott stated that he misunderstood and withdrew his objection.

Mr. Deremer closed this appeal to public discussion.

Mr. Dodson stated that if the slope is not a practical difficulty he thinks it will do until the real thing shows up and the variance is minimal.  Mr. Dodson stated that he does not have a problem with the appeal.

Mr. Giulitto stated that he agrees that the homeowner has tried to comply the best that he can and he has no problem with the appeal.

Mr. Juergensen agreed with the other board members.

Mr. Giulitto made a motion to approve appeal #1846 as requested.

Mr. Dodson seconded the motion.

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

Mr. Deremer explained that if anyone did not agree with the board’s decision they could appeal it to the Stark County Court of Common Pleas within 30 days of the decision.

APPEAL #1844 – Laurence Dykes, 8440 Foxglove Ave. NW, Clinton, Ohio 44216 agent for Gaslite Villa Convalescent Center, Inc., property owner, 7055 High Mill Ave. NW, Canal Fulton, Ohio 44614 requests a conditional use permit for additions where a conditional use permit is required in Art. IV Sect. 411.3 and a variance for 21 ft. between the new building at the south end and an existing building where 30 ft. is required between buildings in Art. IV Sect. 411.6 of the zoning resolution.  Property located at 7055 High Mill Ave. NW, Sect. 7SW Jackson Twp.  Area zoned B-1.

Mr. Deremer read the file application signed by Corita Childs with reasons as stated on exhibit “B” in the file.  The file contained a tax map of the property in question, a legal description of the property in question, a mortgage location survey plat, a full size site plan prepared by Laurence Dykes Architects and an 11x17” site plan of the same.  The file also contained a letter from Mr. Phillippi to the Board of Appeals regarding comments from the fire department dated 4/10/03.

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

Mr. Deremer swore in Laurence Dykes, 8440 Foxglove NW, Clinton, Ohio 44216.

Mr. Dykes stated that the request is for a conditional use permit because they would like to expand.  The current facility was built in the late 1950’s or early 1960’s.  Mr. Dykes stated that presently the facility has 32 beds that don’t meet the new requirements of the State of Ohio for nursing homes.  They need to expand the main coordinator from 4 ft. 6 in. to 8 ft. wide and they have to expand 16 of their rooms to have at least 160 sq. ft. to meet the semi-private status.  Mr. Dykes stated that they currently have 198 beds and they would not be adding any new beds to the facility.

Mr. Dykes stated that the reason for the variance between the two buildings is that the Ohio building code allows for buildings to be closer than 30 ft. if there is a fire wall.  Mr. Dykes stated that the building would be built to meet whatever fire code is required and he is under the impression that local municipalities cannot require something more than the Ohio building code.

Mr. Deremer asked Mr. Dykes if he had discussed the plan with the fire department.

Mr. Dykes stated that he spoke with Mr. Hogue and Mr. Shreiner several weeks ago and they thought at the time it would be favorable.  As he understands it the fire chief took over the matter and the result was the letter.  Mr. Dykes stated that he didn’t meet with the fire chief because he thought that he was meeting with the proper people.

Mr. Dykes stated that he met with Mr. Phillippi prior to submitting the site plan and nobody had any questions for the driveway and so forth at that time.

Mr. Deremer asked if any modifications were made to the driveways.

Mr. Dykes stated that the only thing they are doing is replacing the surface.

Mr. Deremer asked if it is possible to build the new addition without encroaching on the existing building.

Mr. Dykes stated that they have a lot of land but the reason for the design is because of site lines from the nurses station and down the coordinators and they wanted to have a drop off at the central main entrance in the middle of the building to get traffic in and out.

Mr. Deremer asked what is located in the building that would be 21 ft. from the new addition.

Mr. Dykes stated that it is building “B” and is a three unit independent living apartment that is sprinkled.

Mr. McDonnell stated that the plan shows how the southern end of the new building juts out and asked why it can’t be cut off to meet the 30 ft. requirement between buildings.

Mr. Dykes stated that this is a possibility but it would significantly reduce the size of two semi-private rooms at that location.  They are competing against other nursing homes in the area that have more space in all of their rooms so they want to make them as large as possible.  The two rooms in question would be the same size as the rest of the semi-private rooms in the new addition.  Mr. Dykes stated that the other projection that is shown is the activity room and would also be 21 ft. from the existing building.

Mr. McDonnell asked why they can’t chop off 9 ft.

Mr. Dykes stated that they can but he doesn’t know why the fire department wants 30 ft. between the buildings.

Mr. McDonnell stated that he assumes the fire department wants 30 ft. between the buildings for safety reasons but this is also the requirement in the regulations.  Mr. McDonnell stated that Mr. Dykes had mentioned that the Ohio building code requires less than 30 ft. but it is his understanding that a political subdivision does have the authority, while they can’t make it less stringent, they can make it more stringent as they see fit.  The box that the board is in is that they are required by law to find a practical difficulty to allow a variance and without a practical difficulty the board kind of has their hands tied and can’t grant it unless someone can demonstrate that the difficulty exists.

Mr. McDonnell asked what the impact would be by chopping off 9 ft. and if it is a business situation where they are going to be less competitive than the surrounding nursing homes.

Mr. Dykes stated that it would impact two rooms and they would have significantly less activity area.

Mr. Dykes stated that when he met with the fire department three weeks ago it sounded like they were going to be receptive so he really hasn’t had the chance to talk to the fire chief about it.  They can make it work either way but he thought by building it to the Ohio building code with fire walls and sprinklers, he didn’t see that as being a hazard.

Mr. Deremer asked if there is an access road around that portion on the south side.

Mr. Dykes stated that there is no road but there is a delivery drive to the back of the building and to the maintenance building at the rear of the property.

Mr. Dykes stated that there are two issues before the board and asked if there would be an impact on the conditional use permit if the variance were not approve.

Mr. Deremer stated because of a modification to the building the board would have to walk through the conditional use permit general standards.

Mr. McDonnell stated that the resolution requires that a site plan be submitted with the conditional use application and part of the deliberation is based on the site plan so the alteration of the building itself can materially impact the site plan which then takes it back to the conditional use again for review.

Mr. Deremer stated that the big thing is that the board understands what is being reviewed as a conditional use permit.  He does not have a problem walking through both of those even if the variance becomes an issue, which there is nothing set in stone.

Mr. Dykes stated that he would not want the request to be delayed if the variance were not approved.

Mr. Deremer asked Mr. Phillippi if the letter in the file was written based on his discussion with the fire chief.

Mr. Phillippi stated that he received a phone message from Tracy Hogue in which he relayed the comments from Chief Heck.  Chief Heck came into the office right before the hearing and the comments were discussed to clarify any concerns.  At this time there is no requirement to make the driveways 20 ft. but if there were a change in the future then the driveways would have to be 20 ft.

Mr. Deremer stated that the board would proceed with the variance request.

Mr. Dykes had no further comments and the board had no further questions.

Mr. Deremer swore in Bob Nash, 1039 Portage St. NW.

Mr. Nash stated that he received a notice but didn’t know why.  If the request is for the B-1 portion of the property and not the R-R area then he has no problem with it.

Mr. Deremer explained that all the adjoining property owners received a notice of the meeting.

Mr. Nash stated that he just wanted to make sure that they weren’t using the R-R area because of the drainage problems in the area.

Mr. Deremer stated that he doesn’t believe anything will be impacted where Mr. Nash lives because the addition is not moving toward his property.

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

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

Mr. Deremer swore in Kenneth Bly, 7191 High Mill Ave. NW.

Mr. Bly stated that he owns the property that boarders the northern portion of the B-1 property.  Gaslite Villa is a good neighbor but he has some concerns regarding the buffer zones.

Mr. Bly stated that there is not much space between the entrance way to the north and the abutting property so it doesn’t leave much room in terms of a buffer zone.  About half way down the buffer zone where the closest exit is shown is a dumpster that sits on a concrete pad with a light.  Mr. Bly stated that he does not see how they could put a buffer zone where the dumpster is because it is right on the property line.  There is some fencing on the east and west side of the dumpster but the other sides are open and trash blows onto his property.

Mr. Bly stated that anytime you add square footage to a building you also add lighting.  The lighting that they traditionally add is lighting that projects 360 degrees so he wants to make sure that a buffer zone would block the additional lighting or they would put in directional spots or something that would mitigate the additional square footage that they are adding in terms of providing a buffer to the neighbors.

Mr. Bly stated that to say that he objects would be overstating his case but he wants to make certain that the improvements meet the letter of the law so to speak in terms of protecting the neighbors.

No one else in the audience spoke in opposition to the variance portion of the appeal.

Mr. Dykes stated that the one of the issues was the lighting at the dumpster area and the other was the characteristics of the buffer zone at the northern side of the property.  Mr. Dykes stated that the new lighting post in the new parking areas will be directional and upon speaking with the director of the facility he was directed to change the light at the dumpster area so it is also more directional.

Mr. Dykes stated that the driveway exists and they will put the appropriate landscaping in as required by the zoning ordinance.  They do not have a definitive landscaping plan at this time but there are notes on the plan that state they will meet the requirements.

Mr. Deremer stated that there were comments made to the fact that the trash dumpster is on the north property line and asked if this is true or if there is a new location based on the addition.

Mr. Dykes stated that this has not been made part of the project but they are willing to negotiate.  Currently they were using the doors from the northwest wing to take out the trash but because of security reason they are going to go out the south door and through the parking lot so in order to make it closer to where they take the trash out of the building they may relocate the dumpster but he can’t guarantee it.

Mr. Deremer closed the variance portion of the appeal to public input.

Mr. McDonnell stated that the resolution requires 30 ft. between buildings and he does not believe that the applicant has demonstrated a practical difficulty other then perhaps competitiveness with other nursing homes in the area.  Although the resolution may exceed what the building code is, the township has the authority to regulate the distance between buildings.  Mr. McDonnell stated that he has a problem approving the variance due to lacking a practical difficulty.

Mr. Deremer stated that he understands based on the testimony that the applicant wants to have a profitable facility, compete with the other nursing homes in the area, and comply with the OBC code.  He is somewhat concerned that Mr. Dykes was given some prior approval on a 21 ft. distance and now that distance has been rethought.  The resolution says 30 ft. but they are dealing with facilities that are completely fire suppressed with a water source, sprinklers, and fire walls.  Mr. Deremer stated he believes the building could be built to keep the building lines within order, shaped to match the existing building, and make the project a good alternative for those residents that are going to stay there in the future.  The location where the buildings would be 21 ft. apart is not a roadway or driveway that trucks would be going through and potentially if they needed to get to the back side for one of the other buildings they would enter through the north drive and come around the facility the other way.  Mr. Deremer stated that he is of the mind that the variance could be approved with the conditions that were testified to as existing conditions of the building.  It is in compliance with the OBC and with the nursing regulations.

Mr. Giulitto stated that he agrees with Mr. Deremer not so much for the mistake or confusion that the fire department had, but he thinks the 21 ft. separation is plenty and he does not have a problem with the variance.

Mr. Dodson stated that he agrees with Mr. McDonnell that the board has an obligation to find a practical difficulty and he does not see one.

Mr. Juergensen stated that he agrees with Mr. McDonnell.  In looking at Section 803.5B and the factors that are determined for a practical difficulty, he does not see anything to support a practical difficulty.

The board had no further comments.

Mr. McDonnell made a motion to approve the variance request for 21 ft. between the new and existing building.

Mr. Giulitto seconded the motion.

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

Mr. Deremer stated that the variance portion of the appeal has been denied.  The applicant has the right to appeal the decision to the Court of Common Pleas within 30 days if they feel the decision was in error.

Mr. Deremer asked Mr. Dykes if it would be an issue to proceed with the conditional use permit since the variance was denied.

Mr. Dykes stated that it would not be an issue and he would like to proceed with the conditional use permit.  They would present a new plan without the projections and will have the 30 ft. separation as required.

Mr. McDonnell asked Mr. Phillippi if he had reviewed the site plan and if it meets all the setback and parking requirements.

Mr. Phillippi stated that all of the additions, parking spaces and isle widths meet the requirements.

Mr. McDonnell asked Mr. Phillippi if he had reviewed the current landscaping on the property.

Mr. Phillippi stated that the landscaping requirements are applicable to what is being requested under the conditional use as opposed to the existing facility.  With regard to that it was reviewed in detail in order to determine those areas where the buffering would be required.  Mr. Phillippi stated that he is confident that the buffers will be provided but they do not have a detailed landscaping plan, which is not unusual however this will have to be provided before the permit is issued.

Mr. McDonnell asked if the existing landscaping does not meet the requirements of Section 411.9 at this point and Mr. Phillippi has not seen anything documenting the proposed landscaping.

Mr. Phillippi stated that this is correct but there is documentation on the site plan for the areas that will require the buffering but have not been submitted.

Mr. McDonnell reviewed Section 431.2 and Mr. Dykes answered as follows:

Mr. McDonnell asked if it will not be detrimental to the property values in the immediate vicinity.

Mr. Dykes stated that this is correct.  All of the additions are not toward the neighbors to the south, north, or west.

Mr. McDonnell asked if it will not restrict or adversely affect the existing use of the adjacent property owners.

Mr. Dykes stated that it will not.

Mr. McDonnell asked if it will be designed and constructed so that all access drives, access points to public streets, driveways, parking and service areas shall meet the approval of the Township Trustees, or county or state agencies where applicable.

Mr. Dykes stated that nothing is being changed and they will remain the same other then being resurfaced.

Mr. McDonnell asked if it will meet the requirements of EPA for stormwater runoff, when applicable.

Mr. Dykes stated yes.

Mr. McDonnell asked if it will be properly landscaped according to Section 411.9 where applicable pursuant to Chapter 411 or when specified as a condition for approval.

Mr. Dykes stated that it will.

Mr. McDonnell asked if it is Mr. Dyke’s testimony that the landscaping requirements will be met.

Mr. Dykes stated that they will be met and there are notes on the plan regarding this.

Mr. McDonnell asked if it will be constructed and maintained in a neat, orderly and safe condition.

Mr. Dykes stated yes.

Mr. McDonnell reviewed Section 431.3 and asked if the hours of operations would be changed.

Mr. Dykes stated no.

Mr. McDonnell stated that item #2 speaks to vehicular drives and they currently meet the requirements.

Mr. McDonnell stated that in item #3 it was Mr. Dyke’s testimony that none of the drives would be altered in any way.

Mr. Dykes stated this is correct.

Mr. McDonnell stated that no lighting shall constitute a nuisance and in no way impair safe movement of traffic on any street or highway.

Mr. Dykes stated that they will provide directional lighting.

Mr. McDonnell stated that all outside lighting shall be shielded from adjacent properties and asked Mr. Dykes to define what directional lighting means in this situation.

Mr. Dykes stated that the light would be thrown forward from the pole rather than a 360 degree location so they are lighting the parking lot and not the adjacent properties.

Mr. McDonnell asked if any of the current lighting would change.

Mr. Dykes stated that there is nothing shown on the site plan except new lighting.  Mr. Dykes stated that it was just brought to his attention that there was an objection to the lamp at the dumpster area and this will be addressed.

Mr. McDonnell asked if it is Mr. Dykes testimony that the new lighting will be installed as directional to shine only into the property and down.

Mr. Dykes stated that this is correct.

Mr. Dykes stated that there would be no floodlights, searchlights, or loudspeakers.

Mr. McDonnell stated that trash receptacles shall be adequately screened.

Mr. Dykes stated yes.  At the present time he thinks they are screened and the dumpster exists so as far as he knows they are.

Mr. McDonnell stated that any new dumpsters would have to be properly screened.

Mr. Dykes stated that they would be if they are moved.

Mr. McDonnell stated that the grading and surface provision shall be prepared by a registered engineer and reviewed or approved by the Stark County Subdivision Engineer, where applicable.

Mr. Dykes stated that they are making application to Regional Planning on Thursday.

Mr. McDonnell reviewed Section 431.6G.

Mr. McDonnell stated that the use shall not be located on a residential street and this is located on High Mill.

Mr. Dykes stated yes.

Mr. McDonnell asked if the development plan indicates the parking and emergency entrances and exits and other safety precautions.

Mr. Dykes stated yes.

This concluded the criteria for the conditional use permit.

Mr. Dykes stated that they will try to work with the neighbors and address the concerns.
Mr. Deremer asked if anyone in the audience wanted to make any comments for or against the conditional use permit request.

Mr. Bly asked if it is the board’s position that the applicant has presented all the required information so that the board can make a final determination when a landscaping plan has not been presented.  Mr. Bly stated that he presented an issue that he doesn’t see being resolved with shrubs and bushes because the dumpster is on a concrete pad on the property line.  Mr. Bly stated that he would like to make sure all the information has been presented so he has leverage to be assured things would be done right.

Mr. Deremer stated that it is not uncommon to not have a complete landscaping plan but the resolution requires that the landscaping requirements be met.

Mr. Bly stated that the new parking on the northeast side extends significantly towards his property and even though they say the lighting may be directional, the lighting poles may be 30 ft. off the ground and he is not sure how this could not be a nuisance.

Mr. Deremer asked Mr. Dykes if he would like to address some of the concerns.

Mr. Dykes stated that there is one 30 ft. pole in each parking lot but he does not believe the lighting level would be detrimental to other properties.  The north plantings will be put in according to the zoning regulations and he believes the lamp at the far west end is going to be changed.

Mr. Deremer stated that there has been testimony that all the lighting will be directional and point into the property.

Mr. Deremer asked Mr. Dykes if he has the authority to address the dumpster location and if it is possible to get the dumpster moved.

Mr. Dykes stated yes, if it became a strong issue.  However they are taking the trash out of one of the western doors and not the northern door so a relocated dumpster would be to their benefit also.

Mr. McDonnell stated that Section 411.10 states that the minimum distance for a trash dumpster from the side property line is 5 ft.

Mr. Phillippi stated that it is 5 ft. from the lot line but the buffer yard requirement is 20 ft.

Mr. Giulitto stated that in order to meet the landscaping requirements they would have to move the dumpster.

Mr. Phillippi stated that this would seem logical to him.

Mr. Deremer asked Mr. Dykes if he believes this could be accomplished.

Mr. Dykes stated yes.

Mr. Deremer closed this portion of the appeal to public discussion.

Mr. McDonnell stated that he believes the conditions have been met for the conditional use permit.  He also believes that the applicant is permitted to use standard lighting for the parking lot and it would be unfair to make additional conditions.  Mr. McDonnell stated that the board is not empowered to give Mr. Bly leverage; they are required to vote on the merits and what has been presented.  Mr. McDonnell stated that he sees a potential problem due to the existing property and setbacks that may have been grandfathered and are now a non-conforming use and some of the landscaping requirements may be difficult to meet.  If the board votes on this he would like to make it a specific condition that all the landscaping requirements be met as close as possible with the understanding that some may be impossible.  Mr. McDonnell stated that overall he believes the conditions have been met.

Mr. Giulitto stated that he thinks the conditions have been met for approval and the applicant has gone out of his way to fix the lighting problem.  If he landscapes the area to the best of his ability in the 10 to 15 ft. area so it is screened to code then he does not have a problem approving the request.

Mr. Deremer stated that it is understood that the northern landscape boundary may not be 20 ft. wide in some portions of the driveway.  It is an existing driveway and it is not being moved as part of the improvements.  Mr. Deremer stated that he believes with the submittal of the landscaping plan as a condition of the permit no matter what is voted on, the review should include the consideration that this is a reduced area and a more advanced landscaping screen would be required in those reduced areas.

Mr. Deremer stated that it is part of the conditional use that the lighting will not project onto the other adjacent parcels and this can be accomplished.  He believes everything else allows the opportunity to approve the conditional use permit.

Mr. McDonnell stated that there was testimony regarding the trash receptacle and it was discussed that it must meet the requirements of Section 411.10, which is a minimum of 5 ft. off the side lot line and it must be adhered to.

The board had no further comments.

Mr. McDonnell made a motion to approve the conditional use permit for appeal #1844 with the condition that a landscaping plan be submitted and approved by the zoning administrator prior to the issuance of the conditional use permit and the trash receptacles meet the setback requirements per Section 411.10 and not be located in the buffer zone and landscaping strip.

Mr. Dodson seconded the motion.

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

Mr. Deremer explained that if anyone did not agree with the board’s decision they could appeal it to the Stark County Court of Common Pleas within 30 days of the decision.

Mr. Deremer made a motion to adjourn the meeting.

Mr. McDonnell seconded the motion.

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

Respectfully submitted,

Joni Poindexter
Zoning Data Coordinator
Clerk/Secretary