Minutes of the Meeting of the Rootstown Township Zoning Board of Appeals
April 17, 2007

The regular meeting of the ROOTSTOWN ZONING BOARD OF APPEALS was held on Tuesday, April 17, 2007 at 7:00 P.M. at the Rootstown Town Hall.

Those present:
Troy Cutright, Chairman
Eugene Mills
Alfred Friedl
Patricia Saillant
Deron Boring
Michael Finan
Darrell Wayt

Those absent:

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

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

The first item on the agenda was a tabled application for a variance from Section 310.04-F-3 for property (vacant land) located on Biltz Road (parcel no. 32-038-00-00-020-001) in order to make the lot buildable based on additional information not heard submitted by:

Jeffrey J. & Dawn L. Blake
4604 Cobblestone Trail
Ravenna, OH 44266

Mr. Cutright swore in Dawn Blake, 4604 Cobblestone Trail and Jeffrey Windon, 1631 Carriage House Drive, Mogadore.

Mr. Windon said the original application was under Section 450.06-B-1, single non-conforming lot but the lot might come under Section 450.06-C, dual ownership. These two lots, the frontage being the same for years, were created in 2002 and at that time they were under several ownerships but not joint ownership of the same two properties. It would still revert to the first Section. Ed Crouse owned the smaller parcel and Darrell Stephens owned the larger one.

Mr. Mills asked if Mr. Windon was representing or speaking for Mrs. Blake. Mr. Windon said he was an attorney. Mr. Mills said his problem with this was the original application was against Section 310.04-F-3 but in looking at the map and doing his own research on it, it told him that these lots were split in 2005 or 2002 if you look at another map. In case, 2002 or 2005 dates do not meet the standards at that time. A variance was requested for frontage, which there is not enough. The problem is where is the hardship that is not financially related.

Mr. Mahood said it was not frontage but the building width. Mr. Blake said he was speaking on ownership of 2 lots side by side.

Mr. Friedl asked if the split in 2002 was the front section being split off or was it the back section. Mr. Windon said they were two side-by-side lots. Mr. Windon said the rear of one was joined to the other. Mr. Friedl said these two lots were side by side of equal area. Regulations are fairly clear, if a person divides his lot and to make them non-conforming, it doesn't comply with Zoning. Mr. Windon asked why the Zoning Inspector approved them as buildable. Mr. Friedl said if those two lots existed side by side prior to Zoning, then they are grandfathered in. Mr. Windon said the original lot width goes back quite a ways.

Mr. Mills said he asked last month for them to show him proof that the two were split prior to zoning (1971). They were split after zoning went into effect.

Mr. Friedl said along the line in the early years, the frontage was 100 feet and nothing was done to change it, then there might be a case. Mr. Mahood said in not knowing what Matt did but if you have 2 side-by-side lots, the interpretation back then was at building line 150 feet (to accomplish that, that was way the back part was split off). Building line (70 feet off the right-of-way) is where the house is being built. Mr. Friedl said if the 2 side by side lots that didn't exist in 1971, if at that time those lots if the requirement was 100 foot frontage, they would comply. The fact that the back was shifted over to the other lot, it doesn't affect the frontage.

Mr. Boring asked if there were any flag lots nearby. Mrs. Blake said there were 2 lots over to the south.

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

Mr. Cutright swore in James Bullock, 4192 Sandy Lake. Mr. Bullock said that there was non-conforming use certificates issued by Zoning Inspector. Mr. Mills said the list he had that was dated 1992; the lot does not appear as non-conforming use.

Mr. Windon said if a certificate could be issued requiring that the house be built in the back. Mr. Mills said that would be asking for a conditional variance and conditions on variances have been ruled in and out by courts. Mr. Mahood said the prosecutor said that the Board could put conditions on variances.

Mr. Friedl asked if The Township had copies of the zoning codes over the years. Mr. Mahood said he didn't know. There are some but maybe not for every year. Mr. Friedl said he wondered if it could be determined when the frontage went from 100 to 150 feet. Mr. Friedl said the lot was 6 acres in 1971. If when the lots were split, if the frontage was 100 feet, then the lots would comply and there would be no need to come before the Board.

Mr. Boring made the comment that the Board was between a rock and a hard place. If you look at the Ohio Supreme Court requirements for the Zoning Board, to grant a variance under Duncan vs. Middlefield, we're stuck. He thought they would have to grant it. If you look under Duncan, they meet three or four of those requirements.

Mr. Mills said you must find a hardship (other than financial) that is not manmade to grant a variance. This was divided after 1971 and was manmade.

Mr. Friedl said if there were 2 different owners, it could be grandfathered in.

Mr. Windon said the Board could write the ticket and require the building in the rear. Mr. Mills said for years the Board had put conditions on variances and there is a write up in the Ohio Revised Code there is a case against Rootstown ZBA in which the courts had ruled against the ZBA for putting conditions on a variance. Mr. Windon said the Blake's could restrict the sale under the guidance of the Board.

Mr. Cutright said that was a gray area for the Board. Mrs. Saillant put the issue on hold until Mr. Mahood could get back to the Board with past copies of the Zoning Code.

The second item on the agenda was a variance from Section 310.05-1-B for property located at 4773 Melverta Drive for an addition of a single car garage submitted by:

Joseph & Linda Geopfert
4773 Melverta Drive
Ravenna, OH 44266

Mr. Cutright swore in Joseph Geopfert, 4773 Melverta Drive. Mr. Geopfert said three of four years ago his wife was diagnosed with MS and all her storage is in a crawl space. It is hard for them to get down in the crawl space; therefore they would like to move the storage up. The garage could be used for storage and there would also be storage above the garage. Mr. Cutright said Mr. Navarette's signature was on the plans.

Mr. Boring had no questions.

Mr. Mills said Mr. Geopfert was not going any closer to the road but just putting a third garage on.

Mrs. Saillant had no questions.

Mr. Friedl had no questions.

Mr. Cutright asked the audience if there were any questions, comments, or concerns. There were none.

Mr. Cutright reviewed the application

Resolution ZBA 2007-029. Mr. Mills made a motion to grant the variance request recognizing the fact that that is a substandard lot by the Association and approved by the Association. Mrs. Saillant seconded it. A vote was taken as follows: Saillant - Yes Friedl - Yes Mills - Yes Boring - Yes Cutright - Yes. The motion carried unanimously (5/0).

Mr. Cutright asked Mr. Mahood if he had gotten any more information for the Blake's'. Mr. Mahood said he went back and the earliest he saw was one 1970 and the frontage was listed as 150 feet.

Resolution ZBA 2007-030. Mr. Boring made a motion to grant the variance request based upon the factors set forth by the Ohio Supreme Court and Duncan vs. Middlefield. Mr. Friedl seconded it. A vote was taken as follows: Friedl - No Boring - Yes Saillant - No Mills - No Cutright - No. The motion was denied by a vote of 1/4.

Last on the agenda was a request for a Conditional Use Permit (CUP) from Section 350.03-G-4 for a Skill Recreation Arcade located at 4935 S. Prospect St., Unit D (not occupied) in a C-2 District submitted by:

Richard A. Bowling
291 Mohawk Dr.
Malvern, OH 44644

Mr. Cutright swore in Chad Bowling, 291 W. Mohawk. Mr. Bowling said they were planning on putting in a skill recreation arcade at the Prospect address. They had presented the parking, hours of operation, where the trash would go, loading and an estimate on how many people would be there and what times they would be there.

Mr. Friedl inquired as to what was going on in the arcade and what kind of skill games would be there. Mr. Bowling said there would be video skill games. Mr. Friedl asked if money or slugs would be used. Mr. Bowling said there were bill acceptors in the machines. Mr. Friedl asked if a person had a very good skill, would they get any money back. Mr. Bowling said they would and there would also be prizes/gift cards/money orders. Mr. Friedl said the concern he had was whether or not it was gambling. Mr. Bowling said that right now it was not ruled as gambling. It is ruled as a game of skill. Mr. Friedl read the Zoning Code on indoor recreation. Mr. Friedl inquired if it was adult entertainment/sex oriented. Mr. Bowling said you would be required to be 18 or over and it was not sex oriented.

Mrs. Saillant said the expected peak number of users was 13 and between 1 and 6. Mr. Bowling said that that was just an estimate. He didn't know what kind of traffic there would be. That was just a general number and that was a pretty good estimate. Mrs. Saillant inquired as to there being maybe a hundred in there between 6 P.M. and midnight. Mr. Bowling said he didn't think that would happen.

Mr. Mahood asked how many machines would be in there. Mr. Bowling said there would be between 20 and 30 machines.

Mr. Boring asked Mr. Bowling if he ran any of these operations anywhere else. Mr. Bowling said he didn't, this would be the first one.

Mr. Mahood said when people came to the office; he had to group it into something when it is not in the book. This was the closest thing he could find. Mr. Cutright asked Mr. Friedl if he was looking at Section 390.06 and the first paragraph when he was referring to adult entertainment. Mr. Friedl said it was.

Mr. Mills asked which unit in the strip mall would Mr. Bowling be in. Mr. Bowling said it was unit D. Mr. Mills asked what was next door to Mr. Bowling. Mr. Bowling said it was the carpet place. Mr. Cutright explained the building.

Mr. Mills referred to the statement given by Mr. Bowling and how would it work. This business will have a positive economic effect because it will bring revenue into the area. Mr. Bowling said he thought if some one came in and needed carpet or something out of the plaza. A customer comes in and spends x amount of $ each month, they want him to vote where they should donate x amount of $ to a charity/church.

Mr. Mills said if he had 13 customers coming in, would that be 13 vehicles coming into the plaza and parking. You can't walk in. There are only 24 parking spaces there to run 5 businesses out of. Mr. Bowling said he talked to the owner of the property, he said they only use 3 - 5 spots. Mr. Bowling said he thought he was required 1 spot for every 4 chairs. Mr. Mills said the number of parking spaces needed for this type of business would be a judgement call since it was not listed anywhere.

Mr. Mills said some cities make money off this type of business because the operator pays a healthy fee to operate there; this is not so in the Township. There is a lot of gray area for the Board to consider.

Mr. Mahood said when the application is brought to him; he has to classify it. He classified it as a public assembly, which requires 1 space for every 4 seats. Mr. Mills said when an applicant comes to the Zoning Inspector for anything. He has to go to his book and find where it is listed. If it doesn't meet the permitted use, the Inspector has only one choice, deny it and a denial comes before the ZBA. The Board is then making judgement without guidelines.

Mr. Mahood said he tried to group it and he was looking at indoor recreation use such as not specific etc. Mr. Mills remarked how could the Board grant a CUP when there is no definition for it. Mr. Mahood said the Zoning Commission doesn't have the insight for what is to be covered. The Zoning Commission is working on it but it will be a few months coming.

Mr. Boring asked about the hours of the other businesses in the plaza. Mr. Bowling said he doesn't know.

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

Mr. Cutright swore in Vincent Pelose, 3162 Sandy Lake Road. Mr. Pelose said he was here as a resident and also representing ATI Access to Independence, which was within 500 feet of the property. His biggest concern was the Attorney General's office was still looking at this type of business and has not ruled on whether they are legal or not. This business is being opened to make money for Mr. Bowling and is not for charity.

Mr. Bullock said Ohio Supreme Court declared this type of business illegal. He read/referred to the Zoning Code.

Mr. Cutright swore in Rob Swauger, 5479 Camp Road. Mr. Swauger said he would be concerned with how many people would be there and the overflow, which could be on the street. There might be a lot of foot traffic across SR44. There has been increased crime associated with these businesses. It is hard to tell if it is gambling or not. It would diminish the quality of Rootstown.

Mr. Cutright swore in Ron Snyder, 4399 Apple Orchard. Mr. Snyder said he was a citizen and as president of Water Board. He was concerned about the building that they would be putting up in that area. This facility would have 2 -4 employees and lot of high quality equipment in it. Their parking would be a short distance across the lot to the plaza. The persons attracted to this kind of business become addicted to this kind of thing.

Mr. Mahood asked Mr. Swauger how big the unit would be. Mr. Swauger said it would be about 1000 feet.

Mr. Cutright swore in Dave Reis, 3969 SR 44. Mr. Reis said that other communities where these types of businesses are have local law that can enforce the rules. We don't have the resources that other communities have where these games are operating. He likes the atmosphere here.

Mr. Friedl said if you look at the regulations it does require (CUP) a separate building and 1 acre. There are many problems. Mr. Friedl said he had to follow the regulations in the Zoning book and the area is not clear-cut, then the strictest regulations will apply.

Mr. Cutright reviewed the application

Resolution ZBA 2007-031. Mr. Mills made a motion to deny the CUP request based on the fact that the Board is caught in an unprecedented situation and is not listed as conditional or permitted use in our zoning code and would be in violation of our zoning code which plainly states we are prohibited from setting standards. Mr. Boring seconded it. A vote was taken as follows: Boring - Yes Friedl - Yes Saillant - Yes Mills - Yes Cutright - Yes. The motion carried unanimously (5/0).

Resolution ZBA 2007-032. Mr. Friedl made a motion to accept the minutes of the March 20, 2007. Mrs. Saillant seconded it. The motion carried unanimously (5/0).

Mr. Cutright adjourned the meeting.

Troy Cutright, Chairman
ROOTSTOWN ZONING BOARD OF APPEALS

Mary Ann Greer, Secretary BZA
ROOTSTOWN ZONING BOARD OF APPEALS