Minutes: December 13th, 2016

Board of Zoning Appeals Minutes
December 13, 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, and Tim McKenna. Todd Bickley, Zoning Inspector, was in attendance as well as Mark Mulligan, County Prosecuting Attorney representing the Board of Zoning Appeals. Also in attendance were former Catawba Island Township Zoning Inspector Walter Wehenkel and his representative John Coppeler.

Chairman Baugh commented that 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. 008447 filed by Attorney Stopar Attorney for Applicants Richard Smetzer and Trustee Norma Jean Winke. The Appeal challenges the decision of the Zoning Inspector to issue zoning permit No. 008734 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 former Zoning Inspector, Walter Wehenkel. Prosecutor Mark Mulligan is here to help the Board of Zoning Appeals and to ensure everyone gets a fair hearing. A court reporter is in attendance to record what is said.

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 identified four issues 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.

The first item is that the zoning inspector under ORC Section 519.16 and the zoning resolution does not have the authority to issue conditional zoning permits. The Board of Zoning Appeals issues conditional use permits, the zoning inspector does not.

The remaining three issues are technical arguments:

• The fence on the east side of the property does not meet the fence requirements, an eight (8) foot high fence on a six (6) foot retaining wall, making the fence fourteen (14) feet in height.
• The trash receptacle and walls around the receptacle are by definition accessory structures, thus requiring them to meet the accessory structure setbacks, which they do not.
• The parking layout does not meet the seven (7) foot side yard setback as required in Sub-Item 9 of the “C-2” General Commercial District.

As a result of the legal and technical issues, Mr. Stopar requested that the decision of the zoning inspector be reversed.

Attorney Coppeler, representing Walter Wehenkel, former zoning inspector, waived his opening statement.

Appellant’s Testimony

Mr. Stopar questioned if the application with the drawings are part of the record. Mark Mulligan indicated they were and Mr. Stopar noted that the information provided to the board members is sufficient and no need to add exhibits.

Mr. Stopar’s first argument is that under the Ohio Revised Code, the zoning inspector does not have the authority to place conditions on a zoning permit. Mr. Stopar noted that township’s authority originates from the state legislature and nowhere in ORC Section 519 has authority been given to the township zoning inspector to place conditions on zoning permits.

The second argument is that no authority has been granted to allow the fence to exceed the height requirement. A variance would be required from the Board of Zoning Appeals.

The third argument relates to the trash receptacle and surrounding walls. Item 11 of the “C-2” District requires accessory buildings to be no closer than twenty (20) feet to any lot line of an adjoining residential district. The dumpster goes up to the property line. In addition, the double walls around the dumpster would meet the definition of a structure and be considered an accessory structure, thus needing to meet the twenty (20) foot setback. The dumpster and walls do not meet the setback requirement.

Fourth argument deals with the parking on the east side, behind the store. Three (3) parking spots; 25, 26 and 27 would be block by a semi making deliveries to the store. In addition, Item 9 of the “C-2” District states nor shall the off-street parking be located within seven (7) feet of the boundary of a residential district. Mr. Stopar specifically noted that the resolution requires the off-street parking, not only the parking spaces, to be setback seven (7) feet. Consequently, the parking area is within seven (7) feet of the boundary of a residential district.

According to Mr. Stopar, each of the arguments on their own merit is sufficient to revoke the zoning permit.

There were no questions of Mr. Stopar.

Zoning Inspector’s Testimony

Walter Wehenkel was sworn in by the court reporter. Mr. Wehenkel presented to the board members Attorney Stopar Appellees Exhibit 5, which addressed the issues presented by Attorney Stopar.

Walter Wehenkel read from Appellees Exhibit 5, which is attached.

There were no questions of Mr. Wehenkel.

Closing Arguments

Mr. Stopar noted several items. First, nothing in ORC Section 519 gives the zoning inspector the power to issue zoning permits with written conditions. Section 10 A. 2. of the zoning resolution states that the zoning inspector will “issue certificates as provided by the Resolution, and keep a record of all certificates issued with a notation of any special conditions involved”. The notation of special conditions is just keeping a file of any conditions, not placing them on a zoning permit. He commented that a township is not structured this way and indicated that if not prohibited does not mean it is allowed. Second, the drawing that was submitted with the application includes walls around the dumpster that are accessory structures. And third, the zoning resolution requires proper ingress/egress for the parking spots and that three of the spots will have particular problems due to semi’s blocking them.

Mr. Coppeler noted that ORC Section 519.16 provides for a system of zoning certificates and the issuance of conditions is not regulated by Section 519.16

Chairman Baugh requested any additional comments.

Pat Green was sworn in by the court reporter. Ms. Green expressed safety issues at the corner of Schoolhouse/Twinbeach Road with Northeast Catawba Road. She noted a recent house fire on Twinbeach and that it was difficult to get to. She questioned how the emergency workers would be able to get in and out to handle a fire or whatever emergency.

Teresa Wright was sworn in by the court reporter. She noted that her parents are the Winke’s and that she is lacking the understanding as to how all the pieces and parts are missing. She is concerned if they start things and then have to make adjustments, the requirements will not be able to be met.

Allen Stryker was sworn in by the court reporter. Mr. Stryker questioned what do we get after they leave, we have to live with this. Those who started this are gone.

Quinton Smith was sworn in by the court reporter. Mr. Smith noted x number of parking spots and that three of the parking spaces would be blocked by a semi. Mr. Smith indicated that if it was his factory, he would not be able to get away with this. Mr. Wehenkel noted that he relied on an opinion from the County Engineer who did not identify a problem with the loading dock.

Mr. Stopar commented that the discussion of the previous appeal should have no bearing on this appeal. They are separate appeals and the previous appeal does not apply.

At 7:51 p.m. the Board members left the room for deliberations with Mr. Mulligan. At 8:30 p.m. the Board members returned to the meeting room. Chairman Brian Baugh stated the appeal would be continued to December 14, 2016 at 7:00 p.m. at the Township Building for the issuance of the Findings of Fact and Decision. He continued the hearing to that time, date, and place.


Tim McKenna moved to adjourn the meeting. Jack Zeigler seconded the motion. The meeting was adjourned at 8:35 p.m.

Respectfully submitted

_____________________________ _____________________________
Bryan Baugh, Chairman Sandra Erwin, Secretary