MINUTES OF THE CATAWBA ISLAND BOARD OF ZONING APPEALS
DECEMBER 14, 2016
Richard H. Smetzer
Chairman Bryan Baugh called the meeting to order at 7:03 p.m. The Pledge of Allegiance was recited. Board members were introduced by Chairman Bryan Baugh and included: Sandy Erwin, Jack Zeigler, Doug Blackburn, and Tim McKenna, Alternate. Also introduced was Jack DeVore who is resigning from the Board. Mr. Baugh read through the procedure to be followed for the meeting. He asked if there were any questions regarding the procedure by those in attendance. There were none. Mr. Baugh requested that Doug Blackburn remove himself from the Board for the first case (Case #008447)
Case # 008447 – Richard Smetzer and Norma Jean Winke, Trustee
Mr. Baugh indicated that Case #00847 is a continuation from the previous night. In the Matter of 3147 North East Catawba Rd., Mr. Baugh read the FINDINGS OF FACT AND DECISION for Appeal #008447.
Appellants, through counsel, filed a challenge to an approval of an Application for Zoning Certificate number 008734. Their Notice of Appeal alleged the approval should not have been issued because the application did not meet the provisions of the Catawba Island Township Zoning Resolution. Five arguments were advanced by Appellants. They are included as part of the record. The Zoning Inspector’s response to the arguments is also a part of the record herein.
These five points are discussed in the following Findings of Fact:
FINDINGS OF FACT
1. Appellants’ first assignment of error contends that a fence or fences shown in the Applicant’s drawings does not comply with Township Zoning. The Zoning Inspector, Appellee, provided Exhibit 1, the Application for Zoning Certificate. He notes that a fence was not part of the Application. Since no approval was given for a fence, Appellants’ first assignment of error is moot.
2. Like the first assignment of error, Appellant claims an accessory building is shown on the drawings and should not have been approved. Appellee’s argument is the same. An accessory building zoning permit was not part of the Application (Appellee Exhibit 1); therefore, there has been no approval for an accessory building. Thus, Appellants’ second assignment of error is also moot.
3. Appellants’ third assignment of error contends that section “C-2” item 9 (page 65 of the Catawba Island Township Zoning Resolution April 11, 2014 hereinafter “Resolution”) requires parking spaces be located more than seven (7) feet from an “R” district. The argument is that the ingress and egress areas are part of the parking spaces and are closer than seven (7) feet. We find that ingress and egress areas are not designed to be “parking spaces” or “off-street parking” as these terms are used in the Resolution pages 65-66 at #9 and page 95 at Section 5(A)(1). The actual areas designated for parking vehicles are more than seven (7) feet from the boundary and comply with zoning requirements.
4. Appellants’ fourth assignment of error again relates to issues involving an accessory building. Much of this argument is controlled by our findings in item number 2 above. Furthermore, this board has previously determined that a trash receptacle or dumpster is not an accessory building (see Appellants’ previous appeal #008660 referenced in this record at Appellees’ Exhibit 5, Item 4 and Appellee’s Exhibit 3, Item 3). With regard to other items argued to be an accessory building, the findings in Item 2 control.
5. Finally, Appellants argue in their fifth assignment of error that various provisions of the Zoning Resolution and Section 519.16 of the Ohio Revised Code prohibit the issuance of permits subject to conditions. A review of these provisions leads us to the opposite conclusion. For instance, Section 10(A)(2) (Resolution page 138) specifically mentions the issuance of zoning certificates “with a notation of any special conditions involved.” Similarly, Section 10(B)(3)(Resolution page 139) states that the zoning certificate “shall state . . . the proposed
use . . . of land.” Again, zoning anticipates that changes or conditions will be imposed to ensure compliance.
Based upon the foregoing Findings of Fact, we hold that the zoning inspector appropriately issued his approval of Application #008734. We affirm his decision.
Tim McKenna made a motion to accept the Findings of Fact as read by Brian Baugh, place the Findings of Fact into the record and find in favor of former Zoning Inspector Walter Wehenkel. The motion was seconded by Sandy Erwin. The motion was unanimously approved.
Doug Blackburn returned to the Board.
Case # 008737 – George & Sharon Phebus
Doug Blackburn moved to remove from the table Case #008737. The motion was seconded by Jack Ziegler.
Chairman Baugh requested Sandra Erwin read the case information. Mrs. Erwin stated that the request is an area variance being requested by George and Sharon Phebus for property at 2717 E. Sand Road and also known as sub lot 19 of Crescent Beach Subdivision in Catawba Island Township. The property is zoned “R-3” Residential. The variance request would allow an addition onto the existing dwelling on its north side. The addition has already been constructed. The area variance would allow the deck/porch addition to be within 1½ feet from the side lot line on the east side of the lot. The required setback is 5 feet. A rear yard setback of 25 feet is required. From the deck to the steel wall is 21 feet. The owner may own beyond the steel wall. Otherwise a rear yard setback would also be required. All fees were paid and all notifications made.
Mr. Baugh noted that a property line dispute exists between the applicants and his neighbor and since the property line cannot be determined, there is no need to hear the case. George Phebus disagreed and after a brief discussion, Mr. Phebus was sworn in. Mr. Phebus indicated that he is the owner of 2717 and 2715 E. Sand Road. He presented the Board with a drawing that showed the lot line versus an occupational line. He noted that both of his lots have been legally surveyed and that a 4 foot discrepancy exists between the legal lot line and the occupational lot line. Mr. Phebus commented that his neighbor, Doug Armstrong, has a site survey, not a legal survey. Using the legal survey, his deck is 2.1’ from the legal lot line versus Mr. Armstrong’s contention that the deck is 2½’ onto Mr. Armstrong’s property. Mr. Phebus briefly reviewed a BEC survey, which is for his lot at 2715 Sand Road, the BEC survey adjoins Mr. Yeager’s survey perfectly. Consequently, Mr. Phebus believes that the boundary line has been established and certified by Mr. Yeager and that the variance request be approved. Phebus also noted that he has obtained a building permit for the deck and a zoning permit for the fence, which is about four (4) inches off the lot line. Mr. Phebus’s lot is forty (40) feet wide.
Jack Ziegler questioned an occupational line. Mr. Phebus indicated that an occupational line is a lot line agreed upon by 2 property owners but it does not necessarily represent the deeded lot line. Mr. Phebus noted that an agreement does not exist with Mr. Armstrong.
Attorney Michael Sandwisch was sworn in. Mr. Sandwisch questioned if he had a written agreement over a property line with Mr. Armstrong. Mr. Phebus did not. Mr. Sandwisch questioned if a court order existed. Mr. Phebus indicated that one did not. Mr. Sandwisch questioned if any other surveys existed. Mr. Phebus noted that a survey dated 11/10/2014 and prepared by BEC Associates was in existence and submitted to the Board at last months meeting. Mr. Sandwisch questioned if he was aware that Mr. Yeager was suppose to meet with Mr. Frederick, who is Mr. Armstrong’s surveyor. Mr. Phebus was aware that a meeting was scheduled. Mr. Sandwisch questioned if he was aware that Mr. Yeager did not attend the meeting. Mr. Phebus was not aware of that. Mr. Sandwisch questioned Mr. Phebus as to what was a definition of a legal survey. Mr. Phebus explained that a legal survey is when a surveyor comes out to the property and measures and sets pins, something that Mr. Armstrong’s surveyor has not done. Mr. Sandwisch noted that in a court, two (2) surveyors submit separate surveys over the same parcel. Mr. Phebus indicated that he is not a lawyer.
Doug Armstrong was sworn in. Mr. Armstrong questioned the BEC survey. Mr. Phebus indicated the survey was for the adjacent lot, which he acquired after the survey was completed. Brief discussion concerning the surveys followed. Mr. Armstrong reviewed the drawings and noted the lot lines and it was his belief that Mr. Phebus’ deck was located on his property. Discussion followed and the discrepancy between the lot line and occupational line was noted. Mr. Armstrong indicated that there is a four (4) foot difference between the surveys. Mr. Sandwisch noted that any discrepancy would be resolved by the Court of Common Pleas and as a result, the testimony taken tonight should be limited. Mr. Phebus commented that he has a measured survey and that nothing appears to be wrong.
Mr. Armstrong addressed the Finding of Fact as presented by Mr. Phebus and noted the following:
• Mr. Phebus applied for a deck 22½ feet wide when it is actually 30½ feet wide.
• Mr. Phebus indicated that his deck was 352 square feet while it is now 560 square feet.
• The neighbor across the street, William Rofkar, was not notified.
• Fact Sheet #1 and #6 – the deck replaces the existing patio, but the deck is wider, longer and higher.
• Fact Sheet #2 – only one deck exists in the area, there are no other decks.
• Fact Sheet # 3 and #7 – N/A, the fence can be removed quickly.
• Fact Sheet #5 and #6 – the deck was modified to 8’ on the other side and the deck was not destroyed.
Mr. Phebus agreed that he did remove a portion of the deck on the opposite side of Mr. Armstrong’s property. Mr. Phebus removed it so that it lined up with his house. Mr. Phebus also noted that the deck built without a permit was 38’ x 16’.
Chairperson Baugh indicated that no additional testimony will be taken.
The Finding of Fact was read into the record by Secretary Sandra Erwin. The Board considered each of the items individually.
Fact #1 – Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance. The Board determined that there can be a beneficial use of the property without a variance by a vote of 5 – 0.
Fact #2 – Whether the variance is substantial. The Board, by a vote of 4 -1, agreed that the variance was substantial. Mr. Baugh voted no.
Fact #3 – Whether the essential character of the neighborhood would be substantially altered and whether adjoining properties would suffer a substantial detriment as a result of the variance. By a 5 – 0 vote, the Board determined that there would be no substantial detriment.
Fact #4 – Whether the variance would adversely affect the delivery of governmental services. The Board determined that there would be no adverse effect. 5 – 0.
Fact #5 – Whether the property owner purchased the property with knowledge of the zoning resolution. The Board, by a vote of 3 – 2, disagreed that the owner purchased the property with knowledge of zoning.
Fact #6 – Whether the property owner’s predicament feasibly can be prevented through some method other than a variance. The Board agreed 5 – 0 that the owner’s predicament can be prevented through some method other than a variance.
Fact # 7 – Whether the spirit and intent behind the zoning requirements would be observed and substantial justice done by granting the variance. The Board disagreed by a vote of 5 – 0.
The Board went into deliberations at 7:58 p.m. and reentered at 8:06 p.m.
Concerning Case #008737, Tim McKenna made a motion to accept the rear yard variance from 25’ to 21’ and to deny the amended side yard setback request to 2.1 feet and require that the 5 foot side yard setback be met. Doug Blackburn seconded the motion. The motion was unanimously approved.
At the request of the Board, Mr. Phebus will provide Mr. Bickley within five (5) days with the drawings and material that was presented to the Board at this evenings meeting. Upon understanding the decision of the Board, Mr. Phebus indicated that he will take it to court.
Case #008739 – Don McVey and Renee Griffin
Mr. Bickley informed the Board that Walter Wehenkel had submitted Mr. McVey information on a similar size home and how it would on the lot. Mr. McVey emailed and indicated that a decision on the home has not been made and therefore he was not attending the meeting.
Jim Vacha, representing the Harbor Park Marina Association noted that Mr. McVey has not obtained approval from the association and that a meeting was held at the site. He suggested that the case be thrown out.
The Board disagreed and the case will be continued to January 11, 2017. However, the applicant must have a proposal for the Board’s consideration.
Approval of Minutes – November 9, 2016
The meeting minutes from the November 9th meeting were mailed to each member. Mr. Baugh asked if there were any questions. There were none. Tim McKenna moved to approve the minutes. Jack Zeigler seconded the motion. The motion was passed. Doug Blackburn and Sandra Erwin abstained.
Jack DeVore, who is resigning, thanked the Board members.
Tim McKenna moved to adjourn the meeting. Jack Ziegler seconded the motion. The meeting was adjourned at 8:15 p.m.
Bryan Baugh, Chairman Sandra Erwin, Secretary