Members present:                                                            Ted Deremer – recused appeal 2042 only
                                                                                            Edward McDonnell
                                                                                            Richard Dodson
                                                                                            Jim Giulitto
                                                                                            John Juergensen – recused appeal 2036 only
Alternate member:                                                            Eric Oldroyd
 
Zoning Inspector:                                                              Joni Poindexter

APPEAL #2036 – Oster Sand & Gravel, 5947 Whipple Ave, NW, North Canton, OH 44720, property owners, request a conditional use permit for surface mining of 209 acres where a conditional use permit is required per Art. IV, Sect. 411.3 of the zoning resolution.  Property located at 1955 Riverside Ave NW, Massillon, Sect. 6NE Jackson Twp.  Area zoned I-1.

Mr. Deremer read the application signed by Scott Oster and the reason for the appeal as listed in the file.  The file contained a letter, dated 5/30, with the responses to the conditional use questions from the zoning resolution book, and an 11x17 site plan showing the proposed area highlighted.  Also in the file was an aerial view map of the parcel and adjoining parcels.

Mr. Juergensen recused himself from this appeal.

Mr. Deremer swore in Scott Oster, 9946 Boston Ave, Canton, to speak on behalf of the appeal.

Mr. Oster stated they have been doing business in Jackson Township since 1969 and over the years have had several conditional use permits.  They are requesting a renewal of their current conditional use permit of 56 acres, along with an additional 153 acres for a total of 209 acres.  It is his understanding that they can now request a conditional use permit for an unspecified number of years and not limit the permit to 5 years.  They own the total acreage they are requesting and the Department of Natural Resources currently permits what they are requesting.  This acreage is after they meet the necessary setbacks.  The total acreage does include their process plant and storage.

Mr. McDonnell read through the general criteria for all conditional use permits in Section 431.2 and Mr. Oster responded.

A. Will not be detrimental to property values in the immediate vicinity.  RESPONSE: No it will not  be.

B.  Will not restrict or adversely affect the existing use of the adjacent property owners.  RESPONSE:        No it will not be.  The south is their property and to the north are Ohio Water and Great Trail Girl  Scout Council.

C. 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 count  or state agencies where applicable.  RESPONSE:  Yes it will.

D. Will meet all requirements for EPA for storm water runoff, when applicable.  RESPONSE:   Yes.

E. Will be property landscaped according to Section 411.9 where applicable pursuant to Chapter 411    or when specified as a condition for approval.  NOT APPLICABLE.

F. Will be constructed and maintained in a neat, orderly and safe condition.  RESPONSE:   Yes.

Mr. McDonnell referred to Section 431.3 for specific standards for conditional uses and read through the criteria that pertained to their request under paragraph C., specific development standards:

1. The Board of Zoning Appeals may limit the hours of operation to ensure that the conditional use is compatible with the surrounding uses.  RESPONSE:  Hours of operation will be 6:00 a.m. to 8:00 p.m. in the summer.  In the winter the hours will be 7:00 a.m. to 5:00 p.m.  Saturday hours will be 6:00 a.m. – 4:00 p.m. depending on workload.  They do not work on Sundays.

2. For parcels of one or more acres, all points of vehicular entrance or exit shall be located no closer than 100 feet from the intersection of two arterial streets, or 50 feet from the intersection of an arterial street and a local or collector street.  RESPONSE:  In the southeast corner of the requested 209 acres where the plan states underground pipeline.  The closest street is Riverside and it is over 100 feet.

3. No lighting shall constitute a nuisance or in no way shall impair safe movement of traffic on any street or highway.  All outside lighting shall be shielded from adjacent properties.  RESPONSE:  They currently have security lights only, not operating lights, in the southeast corner of the property.  They are not planning on adding additional lighting.
 
4. Floodlights, searchlights, loudspeakers or similar structures shall not be erected or used in any manner that will cause hazards or annoyance to the public generally or to the occupants of adjacent property.  RESPONSE:  No floodlights or loudspeakers.

5. All trash receptacles shall be adequately screened.  RESPONSE:  They are located by the maintenance facility and this is actually in Perry Township.  They are not planning on moving the trash receptacles, however, if in the future this would change, they would adequately screen them.

6. Grading and surface drainage provisions shall be prepared by a registered engineer and reviewed or approved by the Stark County Subdivision Engineer.  RESPONSE:  No changes.

Mr. McDonnell referred to Section 431.6 (Y) of supplemental regulations for certain uses.  He reviewed the specific conditions, standards, and regulations for surface and strip mining.  All mining operations and related activities shall comply with the following:

1. For the purposes of these regulations, “Operations” and “Related Activities” shall include, but not limited to:  storage of equipment, extraction of minerals, storage of extracted minerals, processing of extracted minerals, loading of extracted minerals, removal of overburden (in preparation for extraction) and construction and/or utilization of any office buildings, parking areas, fuel depots, scale stations, garages, and tool sheds, associated with or used in conjunction with the operator’s mining activities.

2. Not applicable – Referring to Residential District.

3. Not applicable – Referring to Business District.

4. All mining operations and related activities shall be located a minimum of:
A. 50 ft. from any property in an industrial district not owned or controlled by the operator.  RESPONSE:  Yes.
B. Not applicable
C. Not applicable
D. Not applicable.

5. Reclamation is required within one (1) year from expiration date of a Conditional Use Certificate or the abandonment of the operation.  RESPONSE:  Yes, they post yearly bonds with ODR.

6. All other reclamation requirements for surface mining or strip mining shall be approved by the Division of Reclamation.  RESPONSE:  Yes.

7. A copy of the State applications, as approved by the Division of Reclamation, and any revisions of the application over the life of the permit, shall be submitted to the Jackson Twp Zoning Dept.  RESPONSE:  The ODR permit is a 10 year permit.  Permit expires this October, after it is renewed for the 209 acres they will file with the Zoning Department.

8. Applications or revisions submitted to the Division of Reclamation subsequent to the issuance of a Jackson Township Surface Mining or Strip Mining Certificate shall be presented to Jackson Twp Zoning Dept within 10 days of approval by the Division of Reclamation.  RESPONSE:  Yes

9. Truck routes shall be established for movement into and out of the development in such a way that it will minimize the wear on public streets and prevent hazards and damage to the properties in the community.  RESPONSE:  They will travel north or south on Riverside Road.

10. Haul roads shall be positioned to provide for safe access to State, County, and Township roads.  These roads shall be hard surfaced for dust control.  RESPONSE:  Riverside is a paved road.

11. Processing equipment shall be located at the site in such a way that will minimize adverse noise impact on surrounding dwellings.  RESPONSE:  Not aware of any other residential dwellings.

12. Existing natural or manmade barriers at the site shall be provided as protection and screening against noise, dust and visual protection for all operations.  RESPONSE:  Yes, along Riverside in the northeast corner of the acreage they put up mounds to protect privacy and security.

13. Stakes of one color shall be set and maintained along the perimeter of the area designated for mineral removal at one hundred foot intervals or less.  RESPONSE:  They submit a map to ODR showing the staking.  The staking is done by a surveyor.  They put up the stakes around the area they are currently mining at that time.

14. The storage of minerals, peat or coal from other surface mined or strip mined operations shall be permitted only on sites in Industrial Districts.  RESPONSE:  They store processed minerals from this site.

Mr. McDonnell asked Ms. Poindexter if zoning has received any complaints concerning this property.

Ms. Poindexter stated that they have not.

No one in the audience spoke in favor or opposition of the application.  The meeting was closed to public input and the board deliberated.

Mr. Dodson stated he does not see any reason not to grant the conditional use permit.

Mr. McDonnell stated he concurs with Mr. Dodson.  The criteria for the conditional use permit have been met.

Mr. Deremer asked if anyone had a comment on the length of the permit.

Mr. McDonnell stated since it is in an Industrial District he does not have a problem with the requested time frame.

Mr. Deremer stated the operation has been in effect for many years.  There have not been any complaints or violations against the owners.  He does not have a problem with the conditional use permit request.

Mr. Deremer made a motion to incorporate appeal 1714 along with appeal 2036.

Mr. McDonnell seconded the motion.

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

Mr. McDonnell made a motion to approve appeal 2036.

Mr. Giulitto seconded the motion.

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

APPEAL #2040 – Byron Schuster, 5110 EchoValley NW, North Canton, OH 44720, property owner, request a variance for a 5 ft. side yard setback where a 10 ft. side yard setback is required and a 5 ft. rear yard setback where 15 ft. is required per Art. IV, Section 401.11 of the zoning resolution.  Property located at 5110 EchoValley NW, North Canton, Section 23NE Jackson Twp.  Area zoned R-1.

Mr. Deremer read the application signed by Byron Schuster and the reason for the appeal as listed in the file.  The file contained a site plan of the property.  Also in the file was an aerial view of the parcel and adjoining parcels.

Mr. Deremer swore in Byron Schuster, 5110 EchoValley NW, North Canton, to speak on behalf of the application.

Mr. Schuster stated when he did the landscaping and the shed plan he tried to make it park like.  He submitted pictures into file showing the shed.

Mr. Deremer marked the pictures as Exhibit 1 as the front of the shed, Exhibit 2 is the side view, Exhibit 3 shows the pine trees, Exhibit 4 shows the shed and landscaping and it is park like, and Exhibit 5 is the back of the property.  Exhibit 6 shows how the shed was built in the pine trees and Exhibit 7 is the rear view showing the setbacks.

Mr. Deremer asked if the pine trees are his.

Mr. Schuster stated no.

Mr. Schuster stated he did not feel changing the size of the shed would create a problem.  He built it on limestone and has 4x6 supports and wire mesh so animals can not get under.  He has underwater irrigation through his entire yard.  There is also a gas line running in the back of his yard.  He was told he had to stay 20 ft. from the gas line.

Mr. Deremer asked if he had to stay 20 ft. from either side of the gas line.

Mr. Schuster stated yes.

Mr. Deremer asked what the shed dimensions are.

Mr. Schuster stated the shed is 10x14.  He added an extra foot on each side of the shed.  He also stated it will not harm near by properties or change the character of the properties.

Mr. McDonnell asked how long the shed has been there.

Mr. Schuster stated he built it this year, it is less than one year old.

Mr. McDonnell asked when they put in the gas line.

Mr. Schuster stated about 2 years ago.

Mr. Juergensen asked if there are any other structures on the property except the house.

Mr. Schuster stated no.

Mr. Juergensen asked how he knew he was in violation.

Mr. Schuster stated Mr. Revlock told him he received a complaint that the shed looked too big.  His permit was for a 10x12 shed.

Mr. Raymond Ryan, 5111 Echo Valley, spoke in favor of the appeal.  He lives across the street from Mr. Schuster.  He stated Mr. Schuster takes great care of his property and if Mr. Schuster lived next to him, he would not mind him having that shed in his yard.

Mr. Roy Zimmerman, 5529 Limerick, North Canton, spoke in opposition of the appeal.  He stated the back portion of his lot borders up against Mr. Schuster’s lot.  He does not feel Mr. Schuster is a good neighbor.  The ground work for his shed began about 3 years ago.  He submitted a picture into the record.

Mr. Deremer marked this picture as OE #1.

Mr. Zimmerman stated some portion of this retaining wall is on his property.  The surveyors stated some portion is located somewhere under the wall.  A few years ago Mr. Schuster informed him he was planning to build a shed inches off of the lot line.  He informed him zoning would not allow this.  His comment was zoning would not see the shed in his back yard.  He also informed him of the zoning setbacks.  After this discussion, the shed project came to a halt.  After a few years, the shed project started up again.  He stated Mr. Schuster applied for a 10 x 12 shed permit, with a 5 ft. rear and side yard setback, but he built a 10 x 14 shed.  The setbacks are different with this size of a shed.  The present distance from Mr. Schuster’s house to his shed is approx. 105 ft.  The distance from his house to the back of this shed is less than 59 feet.  He submitted a picture taken from inside his house looking toward the shed.

Mr. Deremer marked this photo as OE #2.

Mr. Zimmerman stated that Mr. Schuster’s property is 100 x 200 deep.  His lot has ample room to comply with the zoning regulations.  He has blatantly disregarded both his neighbors and the townships requirements.  He is asking the board of deny the appeal.

Mr. McDonnell clarified that it is his testimony that he informed Mr. Schuster 2-3 years ago what the zoning regulation was.

Mr. Zimmerman stated yes.  He even asked him how big the shed was going to be.  He feels the retaining wall he put in 3 years ago is 16 ft long.  He feels his intentions were at this time to build a large shed and put it on the lot line.

Mr. McDonnell clarified it is his testimony he informed Mr. Schuster at this time of the zoning regulations.  The setback for a 10x12 shed is 5 ft. from the property lines and a 10x14 shed is 15 ft. from the rear property line.

Mr. Zimmerman stated yes.  He called the zoning department and asked them the setbacks.

Mr. McDonnell asked that he informed Mr. Schuster that he wanted him to maintain that setback.

Mr. Zimmerman stated yes.

Mr. McDonnell clarified that part of this retaining wall is on his property.

Mr. Zimmerman stated according to the surveyor, they could not locate the pin.  It was either removed or under the retaining wall.  The pin was there when he bought the house.  He has not had it surveyed since then.

Mr. Juergensen asked what would make the difference if he moved if 10 feet forward.

Mr. Zimmerman stated it would not be as noticeable when he looks out his window.

Mr. Michael Figg, 5523 Limerick Avenue spoke in opposition of the appeal.  He stated his rear corner lot adjoins Mr. Schuster’s rear corner lot.  He is here to support Mr. Zimmerman to deny the appeal.  He can not actually see the shed from his property.  He also stated Mr. Schuster takes immaculate care of his property.  His concern is he works with many contractors, and zoning is one of the things a builder has to be weary of when he erects a structure.  After hearing Mr. Zimmerman’s zoning permit was issued for a 10x12 shed and a different size building was erected doesn’t seem quite right.

Mr. Roy Zimmerman, Sr., also spoke in opposition of the appeal.  He lives next door to Mr. Schuster.  He let Mr. Schuster use his driveway so he did not have to drive on his grass when building the shed.  He showed him the zoning permit and he thought he was on the up and up.  He is disappointed that he did not comply with zoning regulations.

Mr. McDonnell clarified he is on the west side of Mr. Schuster and this shed is 5 ft. closer to him then it would have been.

Mr. Zimmerman stated yes.

Mr. Schuster stated he appreciated Mr. Zimmerman using his driveway.  He also stated the retaining wall is on his property, not his neighbors.

Mr. Giulitto clarified that he applied for a 10x12 permit but built a 10x14.

Mr. Schuster stated that is correct.  He didn’t feel the setbacks would change with a larger shed.  He feels moving the shed 10 ft. forward will be seen more then where it is now.

Mr. Dodson asked what his practical difficulty is.

Mr. Schuster stated the gas line is a practical difficulty.

Mr. Juergensen asked what made him want to construct the building 10x12.

Mr. Schuster stated he has plans for a 10x12 shed.

Mr. Deremer and Mr. Juergensen both advised Mr. Schuster if he cut back on the shed to a 10x12 it would be in compliance.

Mr. Schuster stated he is aware of that, however, it is a large expense to do this.

Mr. McDonnell stated that Mr. Zimmerman testified that he advised you of the regulations.

Mr. Schuster stated he never stated what the setback was; just that it was possible to get a variance.

Mr. McDonnell clarified the setbacks is for the foundation of the building.

Ms. Poindexter stated the setback is the foundation of the building or the wall of the building, not the limestone or padding.

No one else in the audience spoke in favor or opposition of the appeal.  The meeting was closed to public input and the board deliberated.

Mr. Juergensen stated he does not see a practical difficulty that is required by the board to approve the variance, however, he also does not feel the spirit or intent of the zoning resolution would be offended by granting the variance.  He stated even if you take off the 2 feet it is still the same distance to the neighbor’s house.  He is concerned this project started out as a 10x12 and then changed to a 10x14 project.  He stated it appears it is the applicants fault.

Mr. Deremer stated this project started out at 120 square feet and the side and rear setback is 5 feet.  If this building was 2 ft. shorter it would be fine.  The fact the builder increased it by 2 ft. moved it into a different setback.  Based on testimony the original proposal was for a 10x12 and the structure is moveable so therefore could be moved.  The applicants concern is if he moves the shed to the larger setbacks, every one will see it.  The resolution states it is the neighbor’s rights to contest the variance due to the size.  The structure could be shrunk and not be moved on the property.  He feels if they want it this size, he would have to deny the application.  The gas line is not an issue on this property.  It may be the best place for  the applicant, but not for the neighborhood.

Mr. McDonnell stated the board is required to find a practical difficulty.  He does not feel the applicant has demonstrated a practical difficulty.  Many times a gas line is a practical difficulty, however, not in this case.  The predicament the applicant has found himself in is due to his own actions by not building the structure the same size as the permit he applied for.

Mr. McDonnell made a motion to approve appeal #2040 as submitted.
 
Mr. Dodson seconded the motion.

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

Mr. Deremer advised the applicant his request has been denied.  If he believes this is in error, he has the right to plea with the court of Common Pleas within 30 days of this hearing.  He could also revamp his plan and come before the Board of Zoning Appeals with a new plan.

APPEAL #2041 – Par/Joh LLC, Bill Parker, 4051 Whipple Ave NW, Canton, OH 44718, applicant, Power Resources Operating, 4051 Whipple Ave NW, Canton, OH 44718, property owners, request a conditional use permit for a planned office complex where a conditional use permit is required and to defer 9 parking spaces and allow 219 parking spaces where 228 parking spaces are required per Art. IV, Sect. 411.3 and Art. VI, Section 601.4 of the zoning resolution.  Property location is parcel 1701063 & 1700750 Whipple Ave NW, Canton, Sect. 25NE Jackson Twp.  Area zoned B-1.

Mr. Deremer read the application signed by Bill Parker and the reason for the appeal as listed in the file.  The file contained responses to the conditional use questions from the zoning resolution book, and a site plan, marked as 2.1 prepared by Harris Day Architects.  Also in the file was an aerial view map of the parcel and adjoining parcels.

Mr. Deremer swore in Bryan Ashman, Architect, Cooper & Associates, 1359 Market Ave, N. Canton, and Bill Parker, 4051 Whipple Avenue, Canton, to speak on behalf of the appeal.  Mr. Parker is a partner and developer of the project.

Mr. Ashman stated the first application for the conditional use permit was for 2 buildings.  There was a part of the property zoned R-R and they rezoned this portion to a B-1.  They are now able to add an additional building to the plan and are asking for the conditional use for all 3 buildings.  There is currently an existing building on the property, Power Resources, and they will have shared parking with this building.  He has calculated they are required to have 13.5% green space in the parking lot and 228 parking spaces.  They are 9 spaces short based on the proposed 3 units and existing building.  They are showing 219 parking spaces will be constructed and are asking to land bank 9 spaces.  If in the future it is determined these spaces are necessary, they will construct them at this time.

Mr. Deremer asked what is critical that they choose not to put in the 9 spaces now.

Mr. Ashman stated they do not feel they need them, and would prefer to maintain additional green space on the property.

Mr. McDonnell asked if the board has seen this plan before and granted a conditional use permit.

Mr. Ashman stated the board seen a plan previously with 2 buildings and yes, they granted a conditional use permit for the 2 buildings.  The only change will be on the southwest corner with the one building.

Mr. McDonnell verified where on the site plan the new building will be located.  It is south of the Power Resource Building.  Who will determine if and when the 9 spaces will be required or needed.

Mr. Ashman stated if any complaints are received by zoning or directly to the property owners.  He would also like the developer the ability to decide to construct the 9 spaces.

Mr. McDonnell asked if the use at the Power Resource building will remain the same.

Mr. Ashman stated yes.

Mr. McDonnell asked how many people use the building.

Mr. Ashman stated there are 20 employees.

Mr. McDonnell read through the general criteria for all conditional use permits in Section 431.2 and Mr. Ashman responded.

A. Will not be detrimental to property values in the immediate vicinity.  RESPONSE: Yes.

B.  Will not restrict or adversely affect the existing use of the adjacent property owners.  RESPONSE:        Yes.  The adjacent property owners are a commercial development to the northwest of this  project, Buckeye State Credit Union and property owned by WF Morgan.

C. 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 count  or state agencies where applicable.  RESPONSE:  Yes, and they have submitted to ODOT.

D. Will meet all requirements for EPA for storm water runoff, when applicable.  RESPONSE:   Yes, will meet and is currently being designed.

E. Will be property landscaped according to Section 411.9 where applicable pursuant to Chapter 411    or when specified as a condition for approval.  RESPONSE:  Will meet the regulations.

F. Will be constructed and maintained in a neat, orderly and safe condition.  RESPONSE:   Yes.

Mr. McDonnell referred to Section 431.3 for specific standards for conditional uses and read through the criteria that pertained to their request under paragraph C., specific development standards:

1. The Board of Zoning Appeals may limit the hours of operation to ensure that the conditional use is compatible with the surrounding uses.  RESPONSE:  This will be condominium offices with normal business hours.  Hours of operation will 7:00 a.m. to 6:00 p.m.  They are not anticipating any or many hours on weekends or evenings.

2. For parcels of one or more acres, all points of vehicular entrance or exit shall be located no closer than 100 feet from the intersection of two arterial streets, or 50 feet from the intersection of an arterial street and a local or collector street.  RESPONSE:  The intersection of Whipple Avenue and Munson Avenue is approximately 400-500 feet.  They have arrangements with Buckeye State Credit Union for a drive easement.

3. No lighting shall constitute a nuisance or in no way shall impair safe movement of traffic on any street or highway.  All outside lighting shall be shielded from adjacent properties.  RESPONSE:  Mr. Parker stated the lighting will be decorative pole lighting with a 250 watt light.  It will not shine out.  There will be no lights on the building.  One light will be in front of every entrance.
 
4. Floodlights, searchlights, loudspeakers or similar structures shall not be erected or used in any manner that will cause hazards or annoyance to the public generally or to the occupants of adjacent property.  RESPONSE:  No.

5. All trash receptacles shall be adequately screened.  RESPONSE:  Mr. Ashman pointed out the area where the trash receptacles will be located and stated they will be screened.

6. Grading and surface drainage provisions shall be prepared by a registered engineer and reviewed or approved by the Stark County Subdivision Engineer.  RESPONSE:  Yes.

Mr. McDonnell referred to Section 431.6 (U) of supplemental regulations for certain uses.  He reviewed the specific conditions, standards, and regulations for planned office and/or business complex and stated they shall comply with the following:

1. A planned office or business complex shall contain two (2) or more principal buildings having common vehicular parking facilities, controlled access to abutting streets, and shall be developed under a unified development plan.  The complex shall be considered as one (1) building for the purpose of determining front, side, and rear yard setback requirements.  RESPONSE:  Yes, will comply.

2. Adequate circulation shall be provided for the project:
a. Pave, off-street parking and service areas shall be required.  All parking and service areas shall be paved with concrete, asphalt, or equivalent.  RESPONSE:  Yes, everything is asphalt.
b. Vehicular approaches to the property shall so designed to not create an interference with traffic on surrounding public streets or roads. RESPONSE:  Yes.

Mr. James Dutrow, 214 Williams Place, Alliance, spoke in favor of the appeal.  Mr. Detrow stated he is asking the board to grant the request.  He stated they have 24 year old trees on the property and would prefer not to remove them unless absolutely necessary.

No one else in the audience spoke in favor or opposition of the appeal.  The board was closed to public input and the board deliberated.

Mr. Deremer stated he feels it is an acceptable conditional use permit based on the information given.

Mr. Giulitto stated he agrees with Mr. Deremer and he is also in favor of deferring the 9 parking spaces.

Mr. McDonnell stated he concurs with Mr. Deremer and Mr. Giulitto.  He stated the only regulation they did not get into is specifics on landscaping.

Mr. McDonnell made a motion to approve the appeal with the requested condition to land banking 9 parking spaces and add a condition that all landscaping regulations will be met.

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 #2042 – Lori Kumpf, 6626 Forestwood St NW, Canton, OH 44718, applicant, The New Beginning Church, 5640 Portage St NW, North Canton, OH 44720, property owner, request a conditional use permit for a child day care center where a conditional use permit is required per Art. IV, Sect. 401.3 of the zoning resolution.  Property located at 5640 Portage St, NW, North Canton, Sect. 14NW Jackson Twp.  Area zoned R-R.

Mr. Deremer read the application signed by Lori Kumpf and the reason for the appeal as listed in the file.  The file contained responses to the conditional use questions from the zoning resolution book, and floor plan indicating the fire exits, plan of the church, and layout of the classrooms.  Also in the file was an aerial map of the parcel and adjoining parcels.

Mr. Deremer recused himself for the appeal.  Mr. McDonnell will conduct the meeting.

Mr. McDonnell swore in Lori Kumpf, 6626 Forestwood St, Canton, to speak on behalf of the appeal.  She will be the director of the preschool.

Ms. Kumpf stated she would like to operate a preschool for ages 3-4 years old.  She is renting 3 classrooms from the church.  This is an existing building and she will not be changing anything on the inside or the outside of the building.  The room size allows a capacity of 47 total children for all 3 rooms and would like to do a morning and possibly an afternoon session.  She has also talked to the church for a possible after school program.

Mr. McDonnell read through the general criteria for all conditional use permits in Section 431.2 and Ms. Kumpf responded.

A. Will not be detrimental to property values in the immediate vicinity.  RESPONSE: Correct.

B.  Will not restrict or adversely affect the existing use of the adjacent property owners.  RESPONSE:        Correct.

C. 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 count  or state agencies where applicable.  RESPONSE:  Not applicable.

D. Will meet all requirements for EPA for storm water runoff, when applicable.  RESPONSE:   Not Applicable.

E. Will be property landscaped according to Section 411.9 where applicable pursuant to Chapter 411    or when specified as a condition for approval.  RESPONSE:  Applicable.

F. Will be constructed and maintained in a neat, orderly and safe condition.  RESPONSE:   Yes.

Mr. McDonnell referred to Section 431.3 for specific standards for conditional uses and read through the criteria that pertained to their request under paragraph C., specific development standards:

1. The Board of Zoning Appeals may limit the hours of operation to ensure that the conditional use is compatible with the surrounding uses.  RESPONSE:  Hours of operation will be 8:00 – 12:00, with the children arriving at 9:00 a.m.  Any afternoon session would be 12:00 – 2:30 but would request 5:30 p.m. Will be September thru May and closed on weekends.

2. For parcels of one or more acres, all points of vehicular entrance or exit shall be located no closer than 100 feet from the intersection of two arterial streets, or 50 feet from the intersection of an arterial street and a local or collector street.  RESPONSE:  Not applicable.

3. No lighting shall constitute a nuisance or in no way shall impair safe movement of traffic on any street or highway.  All outside lighting shall be shielded from adjacent properties.  RESPONSE:  Not adding any lighting.
 
4. Floodlights, searchlights, loudspeakers or similar structures shall not be erected or used in any manner that will cause hazards or annoyance to the public generally or to the occupants of adjacent property.  RESPONSE:  No.

5. All trash receptacles shall be adequately screened.  RESPONSE:  Not adding any trash receptacles.

6. Grading and surface drainage provisions shall be prepared by a registered engineer and reviewed or approved by the Stark County Subdivision Engineer.  RESPONSE:  Not applicable.

Mr. McDonnell referred to Section 431.6 (H) day care center, adult or child and family day care type A  shall comply with the following:

1. The development plan shall indicate the dimensions of the day-care home, or center, open space areas, parking and emergency entrances or exits and other safety precautions.  RESPONSE:  Yes, not changing anything interior.
2. Property shall be maintained in a neat, orderly and safe condition.  RESPONSE:  Yes.
3. All activities shall be directly related to the conditional use permit so granted, and shall be adequately and properly supervised to prevent any hazard, disturbance or nuisance.  RESPONSE:  Yes, she will comply.
4. Sixty (60) square feet of outdoor open space and thirty-five (35) feet of indoor open space per occupant shall be provided. The child day care will be on the north and addition on south side.  There will be 65 children on the north side and 42 on proposed new site.  RESPONSE:  She is not required, by the state, at this time to have outside space due to the length of the time the children will be in class.  If she changes times and they will be there 4 or more hours they will need to have outside space.
5. All outdoor activity areas shall be enclosed by a fence or wall having a height of at least five feet buy not exceeding six feet.  An entry gate shall be securely fastened.  RESPONSE:  Will comply if and when that is necessary.
6. Additional regulations for Family Day Care Type A:
a. There shall be a minimum of 600 feet between one Type A family day care home another type A family day care home.  RESPONSE:  Does not apply.
b. There shall be no more than one (1) on-premise sign that shall not exceed four square feet in area. RESPONSE:  Temporary sign at this time and will meet zoning resolution.
7. Additional regulations for day care center.  No portion of a day-care center site may be located within 600 feet of gasoline pumps, underground gasoline storage tanks, or any other storage area for explosive or hazardous materials.  RESPONSE:  Will comply.

Ms. Kumpf stated she discussed her plans for the preschool with Ms. Nussbaum and she wanted it on record that she is fine with the preschool.

Mr. Juergensen clarified she had available space for outside play area if needed.

Ms. Kumpf stated yes.

Mr. Juergensen asked how many children she is planning at the preschool.

Ms. Kumpf stated 25 children.

Mr. Juergensen stated she would need 1500 square footage of outdoor space.  He asked if she had that much space if needed and if it is fenced in.

Ms. Kumpf stated she did not measure due to her understanding was she did not need it.  The area is not fenced in.

Mr. Giulitto asked if she would have a problem if they put a condition on this request that if in the future she needed the outdoor space she came to zoning to make sure she is complying with the regulations.

Ms. Kumpf stated no, as long as the church did not.

Mr. McDonnell stated that if all the children did not go outside at the same time, they would not need that much space.

Mr. Mark Mazak, 4190 Vermont St, Canton, was sworn in to speak in favor of the appeal.  He is representing the church.  He served on a committee, as Chairman, the church put together to investigate if they wanted to take on a preschool in the church.  He stated they checked references, conducted extensive interviews and completed a public record search on Ms. Kumpf.  They are impressed with her experience and qualifications.  They also passed the fire and health department inspections.  They believe it will be an asset to Jackson Township.  As far as any hour changes with the preschool, the church would have to approve this before Ms. Kumpf would be able to change the hours.

Mr. Juergensen asked if she needed outside space would it be provided and fenced in.

Mr. Mazak stated at that point they would have to decide if they could do it and be in compliance.  There is land available that could be used, however, terms would need to be negotiated.  Not planned at this time.

Mr. Wade Branard, 5285 Sawyer Ave, North Canton, was sworn in to speak in favor of the appeal.  He is the pastor of the church.  Mr. Branard wanted to affirm what has been said so far.  He also stated the church board finds this an exciting possibility.

No one else in the audience spoke in favor or opposition of the appeal.  The meeting was closed to public input and the board deliberated.

Mr. Dodson and Mr. Juergensen both believe the 60 ft. outdoor space is required according to the zoning resolution book.

Mr. McDonnell stated the applicant does not feel it is a requirement.  The regulation is written for many situations.  If the state licensing board does not require outdoor activity for less than 4 hrs of school, must they meet the requirement.

Mr. Juergensen stated he feels that would be an issue to possibly granting a variance.  He feels there may be an issue with the regulation that reads outside space shall be required.  The applicants testimony states they will not use it, however, the regulation reads it is required.

Mr. Giulitto stated they testified they are not required by state law to provide outdoor space for the preschool.  He feels they should add a condition if in the future they are required to provide outdoor space, they need to revise the conditional use permit.  He stated the church also testified they have the space to add the outdoor space if needed in the future.

Mr. Juergensen and Mr. McDonnell are concerned the board is unable to grant the conditional use permit based on the way the resolution is written.  Mr. McDonnell suggested continuing until the September 14 meeting.

Mr. Juergensen stated he feels if the church is not abiding by the regulation it will be up to the zoning inspector to pull the conditional use permit.

Mr. Juergensen made a motion that appeal 2044 be approved as filed.

Mr. McDonnell stated he has a problem with approving the appeal as filed and not adding any conditions.  He feels since some of the board members are not comfortable with Section 431.6 (I), 4 and 5 of the zoning resolution they should add the condition the appeal is approved if they meet that criteria.

Mr. Giulitto stated again he feels that is already part of the criteria for the conditional use and based on their testimony there is no need to add any conditions.  However he does not have a problem if they add the condition.

Mr. Juergensen amended his motion to approve with amendment that 431.6 (I) 4 & 5 of the zoning resolution will be met.

Mr. Giulitto seconded the motion.

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

Mr. McDonnell asked for a motion for adjournment.

Mr. Juergensen made a motion for adjournment.  Mr. Giulitto seconded the motion.  All was in favor.

Respectfully submitted,

Lori Foutz
Zoning Coordinator