Minutes of the Meeting of the Rootstown Township Zoning Board of Appeals
May 16, 2006

The regular meeting of the ROOTSTOWN ZONING BOARD OF APPEALS was held on Tuesday, May 16, 2006 at 7:00 P.M. at the Rootstown Town Hall.

Those present:
Roy Kelsey, Chairman
Eugene Mills
Alfred Friedl
Patricia Saillant

Also in attendance:
Assistant Zoning Inspector, Van Black
ZBA Secretary, Mary Ann Greer

Those absent:
Troy Cutright
Don Reckner
Deron Boring

Mr. Kelsey called the meeting order. Mr. Kelsey introduced the Board members and explained the evenings' procedures.

The first item on the agenda was an application for a Conditional Use Permit (CUP) from Section 310.03-B-6 to do riding lessons at 5368 Tallmadge Road (Hidden Creek Ranch) in an R-1 District submitted by:

Donnie & Cathy Gang
5368 Tallmadge Road
Rootstown, OH 44272

Mr. Kelsey swore in Donnie Gang, 5368 Tallmadge Road, Rootstown, Ohio 44272. Mr. Gang said he was trying to teach kids how to ride horses. He didn't realize he needed to get a permit for this. Mr. Kelsey explained how the Board worked on applications submitted to them. The Zoning Resolution controls most commercial businesses in town. Mr. Gang said the kids would get together to ride and then some of their friends wanted to come and ride for a week. Mom and dad would drop them off and the kids would say they were going to the ranch.

Mr. Friedl said there was nothing in the zoning book about that. He was involved with the zoning resolution for many years and you can not anticipate every use. If it were a small operation, no one would care. He asked if Mr. Gang had 45 plus acres. Mr. Gang said that was right. Mr. Friedl said Mr. Gang did have a "business". Mr. Friedl asked about the size of the business. Mr. Gang said that right now they have 3 people signed up that are paying. They decided in order to give something back, they would find someone to ride once a month for free (3 are paying and 3 are free).

Mrs. Saillant asked about the hours of operation. Mr. Gang said the hours were 9 to 4, Monday through Friday.

Mr. Mills asked about the driveway and if it went back to the oil tanks. Mr. Gang said that was right. Mr. Mills asked if he lived on the property all the time. Mr. Gang said he did. Mr. Mills asked if there was more work to be done on the property like fencing, etc. Mr. Gang said everything was done. Mr. Mills questioned the sign, which said, "ranch camp". Mr. Gang said the kids started calling it a ranch camp. Mr. Gang said the kids also learned how to take care of horses there. Mr. Gang said no one stays overnight. Mr. Mills asked how long they had been doing this. Mr. Gang said just one year. Mr. Mills inquired about it becoming successful next year. Mr. Gang said the most he could take at one time was 6 kids.

Mr. Kelsey said it was his opinion that what Mr. Gang was doing was agricultural related and the Ohio Revised Code gives agriculture a great deal more leeway than regular commercial businesses. If it is agricultural, it is his personal opinion that he doesn't have a problem with what Mr. Gang is doing.

Mr. Kelsey asked the audience if there were any questions, comments, or concerns.

Mr. Kelsey swore in John Fassnacht, 5396 Tallmadge Road, Rootstown, Ohio. Mr. Fassnacht said he lives in front of Mr. Gang. He did not see any problems with the oil well there with an established driveway. It is so far back from the road and he doesn't see it becoming a commercial business.

Mr. Gang said he a good 2000 feet back from the road and closest house to him was Lois Elwood and from his barn to her house is over 500 feet.

Mr. Mills said he still feels that it falls under zoning because the zoning code under Section 310.03-B-6, which specifies riding, stables. Also under D-3 is the classification for conditional use in that district is accessory agricultural buildings for limited commercial use on lots larger than 25 acres.

Mr. Kelsey reviewed the application

Resolution ZBA 2006-011. Mr. Mills made a motion to grant the Conditional Use Permit from Sections 310.03-B-6 and 310. 03-D-3. Mr. Friedl seconded it. A vote was taken as follows: Friedl - Yes Saillant - Yes Mills - Yes Kelsey - Yes. The motion carried unanimously (4/0).

Second on the agenda was an application for a variance from Section 450.02 for expansion of a nonconforming use for property located at 3307 S.R. 44 in a R-1 District submitted by:

Portage Salt & Supply
3307 S.R. 44
Rootstown, OH 44272

Mr. Kelsey swore in Jerry Spahr, 3307 SR 44, Rootstown, Ohio. Chad Murdock, Attorney, (also present was a court recorder) they were asking for a variance from Section 450.02 if necessary. Mr. Murdock did not believe a variance was needed from that Section. The applicable Section was 450.03. Section 450.03 talks about nonconforming use of building and land, which he believed that is where this situation falls. Section 450.02 talks about the building itself. The building on Portage Salt and Supply is not a nonconforming building. It is a conforming building. The only regulations in your zoning resolution residential district that apply to buildings, are the height regulations. This building is within that height regulation. Therefore, Section 450.02 and its 20% square footage doesn't apply to this building because it is not a nonconforming building. It is a nonconforming use, which is what Section 450.03 addresses. He referred to that Section. He said that was what Mr. Spahr wanted to do. They want to expand the existing area and this nonconforming use by 20% so they can build a storage building to store the inventory so they have it on hand when the demand comes.

Mr. Kelsey asked if Mr. Spahr owned the building. Mr. Spahr said he owns the building and the land around it. Mr. Kelsey asked how much land there was. Mr. Spahr said he had 3.37 acres. Mr. Kelsey said he noticed that Mr. Spahr had on the premises now some storage containers. Mr. Spahr said that was true. Mr. Kelsey asked if Mr. Spahr had come to the Zoning Inspector for a permit to get them. Mr. Spahr said no that the container company said he didn't need one. Mr. Kelsey said when Mr. Spahr had come before the Board when opening his business, Mr. Spahr was asked about outside storage. At that time Mr. Spahr asked about building rental units on the property. Mr. Kelsey said at that time, the Board told him there would be no outside storage, which would include these containers.

Mrs. Saillant had no questions.

Mr. Mills said he was little disappointed, when Mr. Spahr was before the Board and denied outside storage that he would believe an container company that he could have the units there without a permit. Mr. Spahr said the containers were only a temporary use.

Mr. Mills said he was in fully agreement with the interpretation of the book that they were talking about it being a 20% consideration. Mr. Mills asked if the buildings had been expanded since zoning. Mr. Murdock said the buildings had not been expanded. Mr. Murdock referred to the zoning resolution and Section 450.02. Mr. Murdock said the building conforms but the use doesn't.

Mr. Kelsey said when this Board does anything, it sets a precedence. The Board has dealt with these two sections repeatedly where the conclusion of the Board (99% of the time) was unanimous in comparing the use in the building to be governed by the same restrictions. Mr. Murdock said one of the distinctions between this application and at least the applications in the past that he was aware of, this is not an addition to the building, its a whole separate building some 50-75 feet away. Mr. Kelsey said this is a nonconforming use, whatever the business is the Board has interpreted that they have to meet the criteria of that district. This is an R-1 district the use has to be determined by the overall district and not the property. The buildings and use are coupled together. Mr. Murdock disagreed with that but they covered that in the application by asking for a variance for the storage building.

Mr. Mills referred to the zoning resolution and Section 450.01. Mr. Mills said that in his interpretation, it includes everything. The business, buildings, the land , everything and when zoning came in, it was recognized as a type of business and anything from there is a nonconforming, and has to have Board approval. Mr. Mills said that if the Board approves this 7,000 square feet of space, his calculation tells him they have 4736 square feet. The new building is 7, 600 square feet, which is in his opinion 6,652 square feet over the allowable that this Board should ever consider. The book clearly states one time 20% increase. Mr. Mills asked what Mr. Spahr would be using all the storage for. Mr. Spahr said to keep products (salt, water) on hand, he didn't have room for everything. Mr. Spahr said he needed the extra room because he was running out of product weekly. Mr. Mills said he asked Mr. Spahr , when he came before the Board the first time, in looking to the future, how long would this hold him.

Mr. Friedl said he has to follow the regulations as he could best interpret them. Mr. Spahr is running a business, doing a good job, and it is growing. There are limits because of the site. Mr. Friedl said that you could not separate those sections: 450.02 talked about buildings/structures and 450.03 talked about nonconforming use of the buildings. If 450.02 applies then the 20% of the building applies, but if 450.03 applies then it's the land. If you would add to the building that was there, you could add 930 square feet incompatible residential around how do you separate building and use add 930 square feet if it is attached but if you detach it, you could add 17,424 square feet. Therefore by detaching a building you could make it very large. Mr. Friedl did not think that was how zoning was set it.

Mr. Murdock stated that the language in the zoning code needed to be followed. If you look at Section 450.02, it relates to nonconforming use of buildings. Mr. Friedl said that was the heading. Mr. Friedl read Section 450.02. Mr. Murdock said Section 450.03 must mean something. It has to apply.

Mr. Kelsey read Section 450.03-B. This building was originally a lawn mower/repair shop. The building and land are together and the Board never divided them from the 20%. Mr. Murdock said he wasn't asking the Board to do that now. Mr. Murdock referred to Section 450.02. Mr. Kelsey said it was a change of use from the original non-conforming use. Mr. Murdock said it was an expansion of an existing use. Mr. Friedl said that if they attached they would be limited to 930 square feet, detached 17,424 square feet. Mr. Murdock said he wanted the Board to apply 450.03 to this application. Mr. Friedl said that was exactly what he was doing. It talks about the non-conforming use, etc. Mr. Kelsey said it also mentions the land. There are certain factors that everybody who applies has to answer. The first factor that any applicant needs to respond to - special conditions and circumstances exist that are peculiar to the land. There are peculiar conditions here that don't exist anywhere else. Mr. Murdock said if you look at various sections of the code, that particular item recognizes non-conforming use of special conditions. Mr. Friedl said he thought the citizens did not mean it to become a privilege that the neighbors cannot have. First of all they have the privilege because they were there to start with. The character of the neighborhood would be substantially altered or would property owners suffer and would justice be done to the neighbors. It would be damaging to residential areas around there.

Mr. Kelsey swore in Walter Fahrny, 3297 SR 44, Rootstown, Ohio. Mr. Fahrny said that the building was there prior to zoning. It was an agriculture business which zoning wouldn't have touched anyhow. As the business started out it sold all kinds of seeds, and then after a couple years the business took on mowers. Then there were two businesses going. Then they got rid of the seed business and kept the mower business. The building was built a year before zoning was voted in. As soon as zoning was voted in, the sign went up. Mr. Fahrny was told by a certain person in Rootstown that the 20% clause was put in because of him. Mr. Fahrny argued the rule then and again today. It is not practical. As far as this business goes, the district needs dollars pouring in from businesses like this one. Money is always tight. The bill is being paid by what little commercial in the area and not the homeowners. Commercial produces lots of tax money. Mr. Fahrny said that the storage cubes there now are temporary because Mr. Spahr is hear asking for permission to build an accessory building for storage. There was never anything stored out front of the building. Mr. Spahr has carried this out.

Mr. Kelsey said the 20% rule was not aimed at just Mr. Fahrny. Mr. Fahrny said he was on the Zoning Commission a few years and they spent quite a lot of time discussing commercial business on this corridor from here to Randolph. They came up with an overlay that would allow service business only not manufacturing or anything like that but it only went to Bower Road. The Zoning Commission recognized the fact as to where were these businesses going to be put.

Mr. Kelsey said the Board was bound by the 20%. The Board has interpreted 450.02 and 450.03 the same way. They have coupled the land and building structures together and the 20% clause has been based on that. The 20% would be determined by what was being used as nonconforming. Any addition to that would have to come under the 20% rule. The Board is bound by the 20% rule. Mr. Murdock mentioned the outside storage and that was one of the reasons for coming before the Board. They wanted to remedy that with the building that would be used for storage. Mr. Murdock said the Township sent letters to 16 property owners. One property owner showed up and was in favor of the request. Mr. Kelsey said people were only aroused when it would effect them. Mr. Murdock said this expansion doesn't effect the neighborhood that significantly for them to turn out. Mr. Mills said what wasn't known with the letters being sent out, was the number of phone calls the Board members receive at home voicing pros and cons against requests. People do not go to meetings today, they get on the phone or use email.

Resolution ZBA 2006-012. Mr. Friedl made a motion to deny the variance against Sections 450.02, 450.05. 450.02-B, 450.03-A & B and the content. Mr. Mills seconded it. A vote was taken as follows: Mills - Yes Saillant - Yes Friedl - Yes Kelsey - Yes. The motion carried unanimously (4/0).

Last on the agenda was an application for a variance from Section 310.04-F-4 to build a home on a lot that has easement access only, no frontage (applied for a variance in 1987 and was approved) for property located at 3821 Cook Road in a R-2 District submitted by:

Melvin & Vanessa Whitted
5213 New Milford Road
Ravenna, OH 44266

Mr. Kelsey said the original variance, which was approved back in 1987, and it then went to court. The court has not yet ruled and consequently the Board does not have the power to act on this application until the Board knows what has happened. It is recommended that the item be tabled until the Board can get legal counsel. If the court says that the Board has to honor that variance then Mrs. Whitted would not have to come to the Board. The interpretation of the zoning Inspector was if building did not begin within 1 year, it is voided. Once building begins than the variance goes with the property forever.

Mr. Friedl moved to the side because of a lawsuit back in 1987 that he was involved in.

Mr. Mills said it came before the Zoning Board of Appeals (ZBA) 4 times and on the fourth time a permit was issued. Following that permit as always, anybody in the audience or adjourning property has the right to appeal the Board's decision. The decision that the ZBA gave you was appealed in court. Mrs. Whitted asked Mr. Friedl where the decision was. Mr. Friedl said when the Board made a decision in 1987; they filed a notice of appeal. The court then sets the agenda. In July of the following year (1988) the court set an agenda. In September 1988, the attorneys sent their comments. At that point, Mr. Friedl said he had nothing more to do but wait.

Mr. Kelsey said because of this, the Board couldn't do anything because they do not have any bases for it. Mr. Mills said it was a legal situation and the Board's hands were tied.

Dan Lindner, attorney for Bill Kuntz who is an adjourning neighbor, questioned the variance application.

Resolution ZBA 2006-013. Mr. Mills made a motion to table the request until the Board can get legal counsel. Mrs. Saillant seconded it. A vote was taken as follows: Mills - Yes Saillant - Yes Kelsey - Yes. The motion carried unanimously (3/0).

The Board heard a matter of privilege. Jack Elrod explained to the Board that last year he had gotten variances for setbacks for his restaurant on Route 44 but for several reasons had not started work on the restaurant within the year as required by the Zoning Resolution. He was asking the Board for an extension on the variances.

Resolution ZBA 2006-014. Mrs. Saillant made a motion to extend Mr. Elrod 's variances for another year. Mr. Mills seconded it. A vote was taken as follows: Friedl - Yes Saillant - Yes Mills - Yes Kelsey - Yes. The motion carried unanimously (4/0).

Mrs. Saillant made a motion to adjourn the meeting. Mr. Kelsey adjourned the meeting.

Roy Kelsey, Chairman
ROOTSTOWN ZONING BOARD OF APPEALS

Mary Ann Greer, Secretary BZA
ROOTSTOWN ZONING BOARD OF APPEALS