Board of Zoning Appeals Minutes
June 6, 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 introduced included Sandra Erwin, Jack Zeigler, Doug Blackburn, and Tim McKenna. Jack DeVore was also in attendance. Mark Mulligan, County Prosecuting Attorney representing the Board of Zoning Appeals was in attendance and Marie Fresch was present to record the presentations.
Mr. Baugh stated this is a continuation of the May 16, 2016 hearing on the appeal of the zoning permit issued by the Zoning Inspector for a Dollar General store at 3147 N. East Catawba Road. The hearing will begin with the Appellant presenting a tenth point from the hearing we heard last. Once he finishes, it will then be turned over to Mr. Coppeler and Mr. Wehenkel for their rebuttal to the ten points.
Mr. Stopar stated that the trash receptacle in the rear of the property is an accessory structure that needs to be set back twenty feet from the lot lines and it is not (see attached letter from Mr. Stopar). There is also a structure surrounding the trash receptacle and that too must comply with that setback requirement. This is another basis by which the Board can revoke the permit. Mr. Stopar stated his only other comment is he has an objection to any documents from County officials or others in the BZA packet dated before March 28, 2016 which was before the submission of this site plan is not applicable to this request and should not be considered by the Board. He reserved the right to his rebuttal comments until after the zoning inspector makes his presentation.
Attorney John Coppeler objected to the Appellant introducing another objection to the appeal at this time. The initial notice of appeal did not specify the grounds and therefore did not comply with the zoning resolution and adding another objection at this time also does not comply as well. Chairman Baugh stated the objection is duly noted.
Mr. Wehenkel was sworn in by Marie Fresch. He stated he was submitting an official set of exhibit to the Board as well as his presentation and that he would be giving copies of the presentation to the others representatives involved in the case. He stated he would be reading his presentation. He explained Exhibit 1 & 2 are copies of the official zoning maps, exhibit 3 is a copy of those two maps taped together and colored showing the “C-2” zoning and the “R” zoning. Exhibit #4 is a letter from the Director of the Ottawa Regional Planning Commission concerning the size of the parking spaces, and Exhibit #5 is a copy of the disclaimer that is on the colored zoning map that the appellant has been using as evidence that the property in question is not zoned “C-2”. He distributed the documents to the Board members and others.
Mr. Wehenkel proceeded to read his presentation (see attached). At the conclusion, Mr. Wehenkel asked if the Board members had any questions. The Board had no questions. Mr. Baugh asked if Mr. Stopar had any questions. Mr. Stopar stated he did not seem to have copies of Exhibits #1 and #2. Mr. Wehenkel stated they were large zoning maps that he provided to the Board, but did not copy for the others. Mr. Stopar stated he would like to review those maps. In addition, Mr. Wehenkel had three weeks to respond to Appellant’s nine points and he asked the Board for some time to review the presentation by Mr. Wehenkel and make some notes before he is asked to offer his rebuttal. The Board agreed to provide some time for Mr. Stopar to review the exhibits and Mr. Wehenkel’s presentation.
Mr. Stopar stated he had a few questions for Mr. Wehenkel concerning the filing of the appeal. The first question was whether the appeal was mailed in or if an individual delivered it to the office. Mr. Wehenkel stated it was brought into the office by Mr. Smetzer and someone else. Mr. Stopar asked what happened when the brought it in. Mr. Wehenkel stated they handed him the appeal and a check for $250, the cost of the appeal, he wrote a receipt for the check and gave it to them and they then left. Mr. Stopar asked how long that process took. Mr. Wehenkel stated it took five to ten minutes. Mr. Stopar asked Mr. Wehenkel if they asked if the appeal was proper. Mr. Wehenkel stated no, at least not to the best of his recollection, nor would he have responded to that question as his job is only to receive the appeal. Mr. Stopar asked then you accepted it as received. Mr. Wehenkel stated that was correct. Mr. Stopar asked so when they brought it in there was a five to ten minute discussion – what did you talk about. Mr. Wehenkel stated he wrote the receipt and filled out the dates on the form. Mr. Stopar asked if they asked him any questions at all. Mr. Wehenkel stated no, not to the best of my recollection. Mr. Stopar asked if the time was spent in silence. Mr. Wehenkel said they had general conversation, but not about the appeal. Mr. Stopar asked if anyone else followed up with him about the filing of the appeal. Mr. Wehenkel stated he believed Megan Meisler sent him an email that day asking about it and Mr. Wehenkel responded to her that it had been filed. Mr. Stopar asked if Mr. Wehenkel has made the argument that the appeal was not properly filed. Mr. Wehenkel stated that his attorney has made the argument that the appeal was not properly filed. Mr. Stopar asked if Mr. Wehenkel thought of that or if his attorney did. Mr. Wehenkel stated his attorney did. Mr. Stopar stated he had no other questions of Mr. Wehenkel at this time.
Chairman Baugh asked if Mr. Mecurio was in attendance. Mr. Mecurio was recognized. He was sworn in by Marie Fresch. Mr. Blackburn asked Mr. Mecurio what his plans are for the existing buildings on the site. Mr. Mecurio stated he would like them to be removed or torn down. Mr. Mecurio stated he does not have the go ahead to do anything. If that go ahead is given, the larger of the two buildings would definitely be removed. And if there is development on the other side, the other buildings would be taken down as well. Mr. Mecurio stated they definitely do not want to leave them up. Mr. Baugh clarified the larger structure would be removed if they get their approval. Mr. Mecurio stated that was correct and if additional stores are built, the other buildings would be removed. It is all one piece of property now. Mr. Zeigler asked if Dollar General would be buying both pieces of property. There would be a drive with access. Mr. Zeigler asked if Dollar General would own the drive access. Mr. Mecurio stated Dollar General would not be buying the property. Miller Brothers would buy the property and build the building for Dollar General. They then lease it for twenty years. This is typical for pep boys, auto parts stores and others. They don’t want to own land. Sandra Erwin stated Mr. Mecurio has stated the Dollar General and other future development. She wondered what that other development might be. Mr. Mecurio stated he did not have any concrete plans at this time but if someone were to be interested, they would split the lot. Mrs. Erwin stated the road going in on the property adjacent to Dollar General. Mr. Mecurio stated the other portion would be for sale and it would depend on who showed an interest in that portion. Mr. Zeigler stated the plan would be to split the lot with the two parcels using the same road access. Mr. Mecurio stated that was correct. Really cannot split it first. Mr. Baugh stated the “C-1” is north of the “C-2”. Mr. Mecurio stated that is correct and it was clear that the “C-1” cannot be rezoned.
Mr. Ed Spitler was sworn in by Marie Fresch. Chairman Baugh requested Mr. Spitler address his question to the Board. Mr. Spitler stated if they are sending this through as one piece of property with a drive to the north of the “C-2”, then he believes they need to have a setback from the road that is being created on the north side. Mr. Spitler believes it must remain one piece of property and not be split. All items should be included such as parking etc. Chairman Baugh asked Walter Wehenkel if he could respond to the question from Mr. Spitler. Mr. Wehenkel stated he could hypothetically respond to the question as he does not have any drawings or plans. They are not creating a road, but instead they are creating an easement of access. An easement of access can be provided to multiple property owners. If they split off the “C-2” property, then the north side of the property would be required to have a side yard setback with East Catawba Road being the front yard, the subdivision to the east the rear yard, and the property to the south being a side yard. It would not be a dedicated road right-of-way. Mr. Baugh asked if Mr. Spitler’s question was answered. Mr. Spitler responded not really. Mr. Spitler asked if the buffer was put in with the subdivision he was unclear how they could put a truck area back there without removing the landscape buffer. If they remove some of it, does that not violate the zoning requirements of the subdivision. Mr. Baugh stated that is one of the questions that the Board will be researching and seeking answers on. Mr. Mecurio stated he would like to respond to that issue. Mr. Mecurio stated that he would never take that down. They might remove a portion of it and replace it with a retaining wall. That was built for separation between the commercial and residential portions.
Chairman Baugh asked John Coppeler if he had any witnesses to call. Mr. Coppeler stated he did not. Mrs. Winke stated she had a question. Mrs. Winke was sworn in by Marie Fresch. Mrs. Winke stated she had heard that the buffers were put in without permits when the subdivision was being done. She wondered if permits are needed when one is installing a buffer. Mr. Baugh says he does not know the answer. If it is part of a planned unit development it might go through that process. Mrs. Winke stated there are permits required for just about everything. She felt she has the right to ask a question like everyone else. Chairman Baugh asked Mr. Wehenkel if he had an answer. Mr. Wehenkel stated the County Engineer reviewed the subdivision plans when it was submitted and looked at the buffer as it related to the road and drainage. To the best of his knowledge there is no County or township permit required for a buffer, unless it is located in a flood plain area.
Mr. Baugh asked for closing arguments from Mr. Stopar. Mr. Stopar stated three weeks ago he used the analogy of the Cleveland Browns going for it on fourth down and not making it. You need to go by the letter of the law. If you are short, it is not a first down. Using the language in the zoning inspector’s statement on page 2, and this is important, it says parking spaces 25-33 (9 spaces) are across from “C-4” and spaces 34-38 adjoin an “R-A” district and that is an admission that those spaces are not set back fifty feet as required. On that basis alone, this is grounds to deny the permit. This is significant and in his view reversible for the permit. He disagrees with the zoning inspector that only the five parking spots are too close. He believes they all are too close. But even with the five spaces being eliminated, they are under the number they need and the site plan should be denied. The zoning inspector further states it does not make good planning or zoning sense, but Mr. Stopar stated this is not a variance case where that type of language applies. Those five spaces being eliminated makes the site plan not meet the requirements and is ground for revocation.
Mr. Stopar stated that he will try to stay in order, but he stated the zoning inspector had three weeks to prepare his response and he has had about twenty minutes. It is pretty clear on the north side of the property where the handicapped parking spots are located that they just appear narrower than the other spaces and there is nothing on the site plan as to how wide they are. They might comply with ADA requirements but he does not believe they comply with the zoning requirement of 200 square feet.
Mr. Stopar stated there is a fair amount of “R” zoned property on the east side of the property so he disagrees with point #3 of the zoning inspector’s response. Exhibit A or the unofficial zoning map shows the “R-4” zoning to the east.
Mr. Stopar referred to the bumper guards. He stated he believed what was shown is a wheel stop and not technically a bumper guard. He believes bumper guards were something else, but he would leave that to the Board. He challenges the north side sidewalk serves as a bumper guard. He stated the zoning inspector is inserting language that just isn’t in the zoning resolution.
Mr. Stopar looked at Page 105, 7, A, 4 and read it to the Board. He said the south side yard must be setback seven feet from the property line and that would eliminate parking spots 1 and 25. He admitted the language can be interpreted differently. The zoning inspector’s interpretation is not gospel here. The BZA takes the place of the zoning inspector in an appeal and the adverse effect of parking that close to the adjoining property has to be taken into consideration. The common sense interpretation is that those two parking spots must be moved back seven feet.
The existing structures on the property are not depicted on the site plan. The site plan should reflect what exists. There are two buildings there. There is no permit to tear them down. They may be non-conforming, but they exist. This would be the third building on this property.
This refers to the landscape easement that was provided in the previous presentation. Easements run with the land and they need to be complied with. There is a flaw in the site plan. If you look at the zoning application on page 2, it does not include the landscape easement. This is grounds to revoke or deny the permit.
Section 7, C, 5 in the Resolution was read by Mr. Stopar. He stated the zoning inspector referred to another section, but he believes the twenty foot setback continues to apply. The sign does not comply with the letter of the law or the zoning resolution.
Mr. Stopar stated he carefully worded Appellant’s #10. There is some type of structure around the trash receptacles and that structure must be set back twenty feet from the lot line.
Mr. Stopar stated he was going to take a little time to give a response whether the appeal was filed properly. The notice of appeal says the appellant is appealing a permit for a new commercial retail store as the plan and signage do not comply with the zoning resolution. Mr. Stopar stated he does not believe it is necessary to identify the ten specific points that the Appellant feels are not met due to the time constraints that existed. The Appellant got the appeal on record within the required timeframe. The site plan and drawing do not meet the requirements and there is no prejudice to the zoning inspector as he had three weeks to put together his response to those ten points and he did that tonight and I got twenty minutes to put together my response. When you take the matter under consideration, look at the site plan and see how it does not comply, especially in regard to the parking on the west side of the property. That is a compelling argument in my view and it really stops this development as it will never be able to meet the parking requirements. There is nothing in the black letter of the zoning resolution that allows those five spots to be closer than fifty feet to the lot line and I would ask that the decision of the zoning inspector be reversed and the zoning permit denied. Thank-you very much for your time.
Chairman Baugh called on Mr. Coppeler for his closing remarks. Mr. Coppeler stated he was not going to address the issues raised by Mr. Stopar. Mr. Wehenkel was here tonight to respond to the nine points or ten points that were raised by the Appellants concerning the issuance of the zoning permit. Mr. Wehenkel set forth his responses to the nine or ten points before you. He is not here as an advocate for the property owners. He is not here as an advocate for the appellant. He is here to simply explain the actions he took when reviewing the site plan in light of the zoning regulations. The Board had an opportunity to question him about anything he said in his presentation. He was clear in his presentation and the Board members were apparently satisfied with his explanations. Now it is in your hands to make the decision and I’ll leave it at that. Thank-you.
Megan Meisler was sworn in by Marie Fresch. She stated on April 26 she emailed Mr. Wehenkel about the submission of the appeal. She also asked about additional correspondence that Mr. Wehenkel might have had concerning the case. She stated Mr. Wehenkel responded very promptly that the appeal had been accepted, there was an issue with the hearing and their attorney he was working on and that he had forwarded his only correspondence with Mr. Mecurio and that he has never had conversation with anyone from Dollar General.
Chairman Baugh asked for any additional testimony. Ed Spitler stated there were three buildings on the property. There are two houses and a barn. He was not sure if it shows up in the site plan as they are not privy to seeing it.
Mr. Mulligan asked Marie Fresch if she kept track of all of the Exhibits. She stated she had not. Mr. Mulligan stated Mr. Stopar had exhibits and he asked for their designation. Mr. Stopar stated his previous nine point position paper (May 16th) and the latest one point position paper (June 3rd) were not identified as an exhibit and need not be. Exhibit C was the big site plan drawing. Exhibits A through G with one being Exhibit C the large site plan. John Coppeler stated Exhibits 1 through 5 were submitted by the zoning inspector and his position paper (June 6th) was not marked as an exhibit and need not be. Mr. Wehenkel explained his exhibits.
Mark Mulligan stated the Board has received all testimony and exhibits. Bryan Baugh stated the hearing was closed. The Board will deliberate in private and provide their finding in writing to all parties. The hearing was closed. The decision will be delivered by email or fax to all parties. It will unlikely not be tonight.
A point of clarification was requested by an attendee. She wanted to know why the Ohio Sunshine law does not apply to this decision. Mr. Mulligan stated the law makes an exception for a quasi-judicial meeting. The Board of Zoning Appeals meets the criteria of quasi-judicial. Therefore they may deliberate in private.
Chairman Baugh thanked everyone for their participation. The meeting was adjourned.
Bryan Baugh Sandra Erwin