Minutes: May 16th, 2016

Board of Zoning Appeals Minutes
May 16, 2016

See Attached Sign In Sheets

Chairman Baugh called the meeting to order at 7:00 p.m. The pledge of allegiance was recited. A request was made to turn off electronic devices and sign in on the attendance sheet. Board members present included Sandra Erwin, Jack Zeigler, Doug Blackburn, Jack DeVore and Tim McKenna. Chairman Baugh asked Mr. McKenna to take a seat on the Board as a voting member for the evening in the place of Jack DeVore who was bothered by a hearing problem. Walter Wehenkel, Zoning Inspector, was also in attendance as well as Mark Mulligan, County Prosecuting Attorney representing the Board of Zoning Appeals.

Chairman Baugh suggested the following procedure would be used for the Appeal hearing on the issuance of a zoning certificate for a Dollar General store at 3147 N. East Catawba Road. He read the following statement.

The Board of Zoning Appeals is hearing an Appeal No. 008660 filed by Attorney Stopar on behalf of Richard Smetzer and Trustee Norma Jean Winke. The Appeal challenges the decision of the Zoning Inspector to issue zoning permit No. 008651 for a retail store which most of us know as a Dollar General Store. Attorney Stopar is here on behalf of the Appellants. Attorney Coppeler is here on behalf of the Zoning Inspector, Walter Wehenkel. Prosecutor Mark Mulligan is here to help the Board of Zoning Appeals and to ensure everyone gets a fair hearing. We also have Marie Fresch, a court reporter, to take down everything that is said.

Chairman Baugh stated the procedure that would be used includes the following. The audience requested Mr. Baugh use the microphone as some individuals were having difficulty hearing him. Chairman Baugh stated the procedure would be as follows:

A.) Opening Statements
B.) Appellant: testimony & exhibits. Each witness will be subject to questioning by the parties.
C.) Zoning Inspector: Testimony & Exhibits. Each witness will be subject to questioning by the parties.
D.) Closing Arguments
He stated the Board of Zoning Appeals must reach their decision within 30 days after the public hearing is concluded as provided by Section 9(D)(3) of the Catawba Island Zoning Resolution. He stated the Board would deliberate after the testimony is completed. He asked for any questions on the procedure. There were none.

Opening Statements

Chairman Baugh requested opening comments from Attorney Stopar. Mr. Stopar stated he would be brief and provide a position statement containing nine items that would address why the zoning inspector should not have issued a zoning certificate for the proposed commercial use. He stated these items should provide sufficient evidence for the Board to revoke the zoning certificate that had been issued. He passed out copies of the position statement. (see attached)

Mr. Stopar stated his opening statement would summarize the position. The zoning inspector issued a permit and that decision is being appealed. The appeal is heard by the Board. It is very technical and the site plan does not comply with the zoning rules. Many technical components that matter in approving the site plan. A fifty foot setback is required and a forty foot setback is shown. This permit should be revoked. Several parking spaces are undersized which also is a reason to revoke the permit. The sign is not five foot from the right-of-way and that is also grounds for revocation. Item #9 using the zoning map on the website shows the site as all being zoned “C-1” which is not consistent with the store being proposed. He stated he would provide my details in a few minutes on each of these items. The site plan does not meet the requirements of the Resolution.

Attorney Coppeler, representing the zoning inspector, waived his opening statement. Mr. Coppeler stated the appeal that was filed did not comply with the requirement for an appeal as stated in the Catawba Island Zoning Resolution. An Appeal must specify the grounds of the appeal. There were no grounds specified on the appeal filed in this case and none of the nine items stated by Mr. Stopar are included in the appeal filed.

Appellant’s Testimony

Mr. Stopar was sworn in by Marie Fresch. Mr. Stopar discussed was the fifty foot setback requirement from any “A” or “R” zoning district for parking. He referred to the colored zoning map exhibit. He stated the Winke property is zoned “R-A” and that required a fifty foot setback and not forty feet as shown. The spaces would need to be moved back those ten feet. Site plan does not comply and permit should be revoked. All those parking spaces along State Route 53 do not comply.

The second argument is the size of the parking spaces. The two handicapped spots do not meet the size standards. They are narrower than 10 feet and do not contain 200 square feet. Deficiency and basis to deny the site plan.

The third argument is when parking adjoins an “A” or “R” zoning district, it must be protected by a screen, planting, or fence approved by the Zoning Commission. There is no evidence that the Zoning Commission has authorized or approved such a structure. Technical requirement but must be enforced.

Fourth argument deals with bumper guards being required to prevent damage. No bumper guards are shown on the north parking area. Technical point, but still requires enforcement.

Argument five deals with side yard parking setbacks. Section 7, A. 4. a. required the side setback for parking to be seven feet. The site plan shows it to be significantly less on the south side of the site plan. Two parking spots would be eliminated. Thirty-eight spots are provided and if you subtract these two spots, the number falls below the required number of thirty seven parking spaces.
Point six deals with Section 2, subitem 7 of the zoning resolution that allows only one main building per lot. There are two buildings already on the lot and the dollar general store would be the third building. There is no indication that these buildings will be removed. Their presence is another basis for the revocation of the zoning permit.

Argument seven deals with the landscape easement. The site plan does not address the screen required for the loading berth. The site plan shows no screen in the southeast corner of the property. It is a technical requirement that is not met by the site plan.

Argument eight deals with the sign. The setback requirement is 20 feet from the edge of the pavement and five feet of the edge of the right-of-way. The site plan shows the sign is not five feet from the right-of-way. Once again, a technical requirement not met by the site plan.

The final argument is that the property is not zoned “C-2”, but “C-1”. The Dollar General store would not be a permitted use in the “C-1” District. This is another reason to deny the zoning permit.

Mr. Stopar labeled his exhibits. The colored zoning map is exhibit A, the five page landscape easement exhibit is exhibit B, and the site plan map is exhibit C. Exhibit D is going to be the deed and plat for the subject property (four pages in length). Exhibit E is the deed of the property owned by Norma Jean Winke, Trustee. Exhibit F is the letter from the Ottawa County Building Inspection office concerning demolition. Exhibit G is the deed of the property to Mr. Smetzer.

Mr. Stopar referred back to Exhibit B and delineates a landscape easement. The mounded area could be removed based upon the site plan. The area in red on the exhibit is the primary area of concern.

The notice of appeal was submitted based upon the timeframe established by the zoning resolution and accepted by the zoning inspector. This is really not a valid argument if the zoning inspector accepted the appeal and now is claiming it is not a valid appeal. Each of my arguments on their own merit is sufficient to revoke the permit.

Zoning Inspector’s Testimony

Attorney John Coppeler was sworn in by Marie Fresch. Mr. Coppeler stated that as Mr. Stopar stated, there are a number of technical reasons being challenged. Section 9, 2 requires appeals to specify the grounds. He stated that it is grossly unfair to specify no grounds on the application and then address nine technical points this evening and expect the zoning inspector to be ready to address those items. It would not be appropriate to revoke the zoning permit based upon these items unless the zoning inspector had the opportunity to review them and respond to them. The mere fact that the zoning inspector accepted the application is nothing more than a ministerial action. His does not review an appeal for completeness. He merely accepts the appeal as required and passes it onto the Board. Being this is the first time the zoning inspector has heard any of these objections. He should be provided ten days or two weeks to review these arguments and be able to address them in an appropriate way.

The second part is that if the Board agrees to provide Mr. Wehenkel adequate time to review the objections, the Board should not review the arguments until they have heard the zoning inspector’s responses to the objections so that the Board has both sides of the arguments.

Other Testimony – New Evidence

Chairman Baugh asked for other new and relevant evidence. Dale Van Lerberghe was sworn in by Marie Fresch. Mr. Van Lerberghe stated he had lived in the township for 30 years and served on the Board of Zoning Appeals for many years. This is a seasoned and knowledgeable Board. He understood the difficulty in reviewing applications for variances. Often the action of the second person impacts the development of the first person. He suggested the Dollar General is to the east and the west and that this store is a want and not an need. He suggested the Board carefully consider the evidence and reach the correct conclusions based upon the facts that they heard.

Closing Arguments

Chairman Baugh suggested closing arguments be presented. Attorney Coppeler stated he felt his request for a continuance needed to be decided before getting to closing arguments. Mr. Stopasr stated the zoning inspector has a role here. Once the appeal is filed, he is best qualified to address these issues. The zoning inspector issued a permit, the permit has been appealed and it is now the Board’s responsibility to decide the situation. Usually the developer is represented and addresses the issues, but they are not involved and Mr. Stopar stated he did not know what to read into that. Mr. Stopar concluded that the appellants have filed their reasoning and it is now the Board’s turn to render its decision.

The Board members left the room for discussion on the continuation request with Mr. Mulligan. They subsequently called Mr. Stopar and Mr. Coppeler to join them. Upon returning to the meeting room, Attorney Mulligan stated the appeal would be continued to June 6, 2016 at 7:00 p.m. and then the Board of Zoning Appeals would reconvene in the Community Hall for the zoning inspector’s testimony and closing arguments. He continued the hearing to that time, date, and place.


Tim McKenna moved to adjourn the meeting. Doug Blackburn seconded the motion. The Meeting was adjourned.

Respectfully submitted

_____________________________ _______________________________
Bryan Baugh, Chairman Sandra Erwin, Secretary