Phyllis McKean opened the meeting at 7:00 p

MINUTES

ZONING BOARD OF APPEALS

APRIL 4, 2005

7:00 P.M.

Board Members Present: Dennis Haas, Chairman

Nicholas Reynolds, Vice Chairman

Louise Vance, Secretary

Phyllis McKean

Dale Riggenbach

Trustee(s) Present: Todd D. Bosley, Vice President

Zoning Inspector: Keith Lasure

Purpose:

Robert P. King, 6339 Columbus Road – Conditional Zoning Certificate for Home Occupation for excavating business

Mark Burns, 1830 Steiner St., NW, N. Canton – Conditional Zoning Certificate to do business as Burns Nursery located at 6832 State Street

Chairman Dennis Haas opened the meeting at 7:00 P.M. and introduced the Zoning Board of Appeals, Zoning Inspector Keith Lasure and Trustee Vice President Todd D. Bosley. Mr. Haas swore in everyone in attendance by asking them to swear that the information they were about to present, either in oral or written form, was true and accurate to the best of their knowledge. The people responded by stating, “I do”.

The first case that was heard was Robert P. King of 6339 Columbus Road, NE, Louisville, Ohio. Mr. King is requesting a zoning certificate for a home occupation for an excavating business. Mr. King stated he is self-employed and has been in business for more than 30 years. Mr. King said they don’t actually operate a business there but he and his father do keep their equipment on the premises, which they park in the back.

Mr. King said Keith stopped by about a month ago and advised him he should apply for a variance in order to be in compliance with zoning. He said he has one commercial truck and two commercial trailers 350’ to 400’ off Columbus Road.

Dennis Haas asked if this was used just for storage of equipment and asked if he had an office. Mr. King said he does store equipment but does not have an office. He stated all of his work is done off-site. There isn’t any advertising and the public does not come on the premises.

Mr. Haas asked the Board if they had any questions and asked Mr. King the actual size of the property. Mr. King said less than three acres.

Nic Reynolds asked if the equipment is kept inside the pole building. Mr. King said it is not stored in the pole building but sometimes the equipment is in the building.

Phyllis McKean asked how many years the equipment has been there. Mr. King said 30 years but the equipment is on the job site most of the time. Mrs. McKean then asked how many pieces of equipment he has. Mr. King said he has one commercial truck, two commercial trailers, one backhoe and one bobcat.

Dennis Haas explained if the Conditional Zoning Certificate would be granted, it would be renewable yearly.

Mr. Haas asked if there was anyone present who would like to speak in support of this variance. There was no one.

Mr. Haas asked if there was anyone present who would like to speak in opposition of this variance.

Mr. Ernest Chekan of 6369 Columbus Road stepped to the podium. He stated Mr. King lives on the right side of his property. Mr. Chekan built his house in 1962 at about the same time Mr. King’s dad bought the house next to him. After Mr. King’s wife passed, his son, Bob King, bought the house and started his business. Mr. Chekan said he has nothing against this business but what he objects to is the trash Mr. King has brought in and said he told Mr. King that he was not going to put up with this because it has gotten out of hand.

Mr. Chekan said there is a gulley and it’s a waterway between the two properties. He said Mr. King has a lot to clean up and about a week or so ago, Mr. King hauled away a large truck and trailer load of junk. He said Mr. King is trying but it will take time. He also stated he has no objection if Mr. King would bring in dirt and cover the trash.

Dennis Haas asked if the Board had any questions for Mr. Chekan. Dale Riggenbach asked if Mr. King still had tires as was shown in the pictures the Board had received. Mr. Chekan said Mr. King just took those recently. At this time, Mr. Chekan stepped up in front of the Board and discussion was held regarding the pictures of trash on Mr. King’s property.

With no further questions for Mr. Chekan, Zoning Inspector Keith Lasure said Mr. King has been working on cleaning up the property and has been very cooperative up to this point. Mr. Lasure stated Conditional Zoning Certificates are renewable yearly and if the property were not kept up, it would go before the prosecutor and the permit would not be renewed.

Dale Riggenbach asked Keith if he felt Mr. King would continue to clean up the property and dispose of the trash. Mr. Lasure felt he would if he continues as he has.

Mr. King stepped to the podium again and stated he does have a lot of used tires that are unusable that have accumulated over a long period of time. He said he does have tires for his equipment but the majority of them are not.

Dennis Haas asked Mr. King how long he has been attempting to clean up the rubbish. Mr. King said for as long as he’s been there (30 years). He stated they are constantly making a mess. Mr. Haas then asked how long the piles have been getting smaller instead of bigger and Louise Vance asked how long it would take him to clean up the property so everyone would be happy. Mr. King said those were really good questions.

Mr. Haas said having a mess like that (referring to the pictures) would be reason for a permit to be withdrawn and stated if a Conditional Use Permit were to be granted it would be on the condition that by next year it would be 90% cleaned up. Mr. King said he had no problem with that.

Phyllis McKean asked Mr. King if he could give a time frame as to when this would be cleaned up - 6 months, 8 months, 1 year? Mr. King told the Board to give him a time and explained he in the construction business and primarily he does residential swimming pools and said when he gets busy, its 12 hours a day, seven days a week. He said he does an entire years work in seven or eight months and the time he has for maintenance is very limited. He did state that he sees no problem getting rid of the trash within a year and hopefully it would be sooner.

Mr. Lasure said if the Board would grant this permit and the property isn’t cleaned up by next year, he would not reissue the permit and explained if this would happen, Mr. King would have to pay another $200.00, go before the Board again and start over. Mr. Lasure asked when payments are due for Conditional Use Permits. Secretary Sharon Shaub said the letters go out January 31^st and payment is due by March 1^st. Mr. King said he has no problem with that.

Dennis Haas said if this variance is permitted, the following comment should be put on the permit - Renewal subject to inspection and that it is predominately cleaned up.

At this time, Sharon told Mr. King he could take tires to Perry Township Recycling and they allow so many tires per year. She told him to call the office and the information would be given to him.

Dennis Haas asked the Board for a motion consistent with Mr. Lasure’s recommendation. Phyllis McKean motioned to accept what Mr. Lasure said regarding stipulations seconded by Louise Vance. Dennis Haas said they will vote on a Conditional Use Permit for a home occupation to be issued concurrently but renewal for next year would be contingent on the successful inspection by the zoning inspector. The variance for the Conditional Zoning Certificate was APPROVED. The voting went as follows:

Phyllis McKean - Yes

Louise Vance - Yes

Nic Reynolds - Yes

Dale Riggenbach - Yes

Dennis Haas Yes

Dennis Haas stated the Conditional Zoning Certificate would be issued with the stated contingency and informed Mr. King to meet with Mr. Lasure during his office hours.

The second case heard was Mr. Mark Burns of 1830 Steiner Street NW, N. Canton, Ohio requesting a Conditional Zoning Certificate to do business as Burns Nursery to be located at 6832 State Street NE, Louisville, Ohio specializing in trees, shrubs and bulk mulch.

Chairman Dennis Haas did another swearing in for those who arrived late by asking them to swear that the information they were about to present, either in oral or written form, was true and accurate to the best of their knowledge. Those who arrived late responded by stating, “I do”.

Mr. Burns stated he plans on doing a nursery of mulch at 6832 State Street. He said there are three pieces of property that would not be involved from State Street approximately 1,000 feet back from the center of State Street. He would do a nursery with trees, mulch and topsoil. He presented a drawing to the Board of what it would look like.

Mr. Haas asked Mr. Burns to explain more about the nature of the proposed nursery. Mr. Burns said it would be shade trees, pine trees, mulch (he would mix wood chips and grind bark, which would be maybe a day to 20 hours to two days). He said there would not be any machinery there except for a bobcat and a loader. He stated on the backside of the lake, he intends to build a house, which he hopes to start this year.

Mr. Haas asked if this would be a retail business or a wholesale business. Mr. Burns said it would pretty much just be retail. He explained he is semi retired and runs an excavating business now and wanted something to keep him busy. Mr. Burns said he wants to clean up the property and stated he has already cleaned it up a lot. He said there are 160 some acres and he will plant at least 3,000 to 5,000 trees such as Blue Spruce, pine and shade trees.

Dennis Haas asked if he would be bringing trees in and planting them. Mr. Burns said yes. Mr. Haas asked if he would be buying plant matter, keep it there and then resell it. Mr. Burns said yes and said he would be harvesting them in five to seven to ten years. Phyllis McKean asked if he owns the whole 167 acres and Mr. Burns said he does.

Dale Riggenbach asked Mr. Burns if he had ever been involved in running a nursery. Mr. Burns said his father is in the business and stated he does know a little bit about it but not a lot. Mr. Riggenbach then asked if he would go into a Christmas tree business. Mr. Burns stated he would not sell Christmas trees – he would just sell trees to homeowners.

Phyllis McKean asked if he would transport the mulch or would people come and pick it up. Mr. Burns said people would come and pick it up.

Louise Vance asked Mr. Burns if he would be bringing in trees to cut up. Mr. Burns stated there would not be any logs – just wood chips and then the wood chips would be ground on the premises. He stated the grinding would only be a two-day event – early spring and late winter (January & February).

Dennis Haas asked if all 36 acres would be involved? Mr. Burns stepped in front of the Board to talk to Mr. Haas and discussion was held looking at a drawing that Mr. Burns had provided.

Mr. Haas then asked Mr. Burns if regular hours would be open to the public to buy trees, mulch and shrubs. Mr. Burns said yes but only three, maybe four days a week.

Dennis Haas asked the Board if they had any other questions for Mr. Burns. Louise Vance wanted to know if he had talked to the neighbors and if they were happy about this business. Mr. Burns said he had only talked to Mr. Jeff Anderson and he didn’t seem to have any problems with it.

Keith Lasure asked Mr. Burns if he had contacted the EPA for a permit. Keith explained to Mr. Burns since he would be grinding chips and there would be noise and dust, he would need a filter system that would cost upwards of $17,000.00. Mr. Burns stated he had not contacted the EPA and was not aware of this.

At this time, there were no more questions from the Board, but Mr. Haas said they might have more questions a little later.

Dennis Haas asked if there was anyone present who wished to speak in support of this Conditional Zoning Permit. There was no one.

Dennis Haas asked if there was anyone to speak in opposition of this Conditional Zoning Permit.

1. Mr. Jeff Anderson of 6900 State St., NE stepped to the podium. He stated he has no problem with the nursery but he does have a problem with the mulch. Mr. Anderson said his property is to the east of the proposed business. He is opposed to the odor of mulch and the noise from grinding of mulch.

2. Bill & Kay Malloy of 700 Magnolia Circle SE stepped to the podium. Mr. Malloy stated he owns property to the west of Mr. Burns. He is concerned with the mulch operation that would cause dust and noise and stated he is also concerned allowing a retail business in a Rural Residential District. He also mentioned a Mr. Russ not too far away running a retail business. Mr. Malloy said once this type of business is permitted, it could very easily get out of hand. Another concern is the permitted uses in a Rural Residential District. He said he couldn’t find anything in the Nimishillen Township Zoning Resolution that would allow a retail operation and does not know how the Board could approve it. Mr. Haas agreed.

3. George Mountcastle of 7388 State Street stepped to the podium. He feels there is enough noise and problems as it is now and feels this would be quite a nuisance. He stated this is a Rural Residential District. He lives west of Rt. 44 and east of the proposed area. He said to grow trees is one thing but he is very much opposed to a mulch business stating there would be piles of wood waiting to be ground up twice a year. He feels the emphasis of this is mulch – not trees.

4. Greg and Jane Linville of 7010 State Street stepped to the podium. Mr. Linville said he would love to see trees but not mulch. He said mulch is another issue. He stated a business in their community is another concern, i.e. dust, noise and odor. He would like to address the noise problem in the area due to pumping stations but that would be another issue at a later time. Mrs. Linville said this is a residential area – not a business area.

5. Doris Gauthier of 8708 Ravenna stepped to the podium. She stated she houses horses and animals on Mr. Linville’s property and is concerned with the dust and smell if a mulch business would be allowed. She said it would not kill the animals but feels it certainly would not be healthy.

At this time, Keith Lasure said he contacted Regional Planning to go out and look at this but as of this date, he has not gotten an answer. Mr. Lasure said when he wrote this variance and with the acreage Mr. Burns has (stating he is not for or against this variance) he is not at all sure that Mr. Burns doesn’t quality under agricultural.

Dennis Haas said he contacted the prosecutor’s office today about the same issue. Mr. Haas said he was told that agricultural is when you derive over 50% of your income from the planting of seed. Mr. Lasure said that’s for an acre or less and stated that Mr. Burns has over five acres.

Mr. Haas said the prosecutor told him that a nursery, which buys plant matter and puts it in the ground and stores it for years and resells it – that’s not agriculture – that’s reselling of plant matter.

At this time, Mr. Lasure showed Mr. Haas the definition of agricultural in the Nimishillen Township Zoning Resolution. Mr. Haas read aloud the definition. (See attached) Mr. Haas said the opinion from the prosecutor was: If it’s from the planting of seed, its agriculture. If you are buying plant matter and storing it, whether in the ground or wherever else for resale, that is not agriculture. Mr. Haas said he thinks the key thing is that 50% of the income has to come from the ‘planting of seeds’ so you can’t plant two things and say its an agricultural business.

Mr. Haas said when reading through our Zoning Resolution for uses under R-R (Rural Residential) the permitted uses (other than residential) you have to have a home on the premises for a home occupation. (See attached R-R Rural Residential and Subsection 115)

Mr. Haas feels there is nothing that would allow for a nursery in a residential area.

Mr. Haas asked the Board if there were any comments or questions.

Nic Reynolds asked Mr. Lasure if he knew anything about the letter regarding a deed restriction. Keith stated he never saw a letter about a deed restriction. At this time, Trustee Todd Bosley said a gentleman dropped off the letter to him prior to tonight’s meeting.

Mr. Haas said he couldn’t speak for the other Board members, but his interpretation of rules is it would be either agriculture in which case it is allowed in R-R or it’s not agricultural and it would have to called a home occupation and said he has a hard time fitting this into a home occupation definition stating that the real question is whether or not this would fall under agriculture. Again, Mr. Haas stated the definition given to him by the prosecutor was ‘the growing of plant matter from seed’.

Mr. Burns asked Mr. Haas if he had something in writing from the prosecutor. Mr. Haas said he had called and gotten legal advice over the phone. Mr. Burns asked where the prosecutor got the information and Mr. Haas said it was from another case that went to court.

Phyllis McKean asked Mr. Burns if he was aware of any deed restriction when he purchased the property. Mr. Burns said he was not. Phyllis asked Mr. Burns if he purchased the property from Kiko Auction and he said he did.

Dennis Haas said in order to plant tree matter, it would have to be a home occupation and everything would have to be done inside the dwelling.

Nimishillen Township Trustee, Todd Bosley, of 5694 Eastview said this is nothing against Mr. Burns, but he thinks what we you have to keep in mind is that Nimishillen Township is not an industrial community. He said the people of Nim. Twp. do not want industry in, around or beside their homes. He said he heard this over and over when he went door to door campaigning. He further said if we have this much resentment now, and the Zoning Board of Appeals does approve this variance, it would only create a bigger problem down the road and said it would not get any better. Mr. Bosley said whether or not this business should be allowed is a neighborhood decision and a lot of the neighborhood showed up at tonight’s meeting. Mr. Bosley asked the Board to take this into consideration.

Again, Mr. Haas stated that when you read R-R in the Township Zoning Resolution, it gives reasons for a Conditional Use Permit subject to certain subsections. Again, it either has to be agricultural or a home occupation and to approve this variance as a home occupation does not fit into the definition of a home occupation. According to the opinion from the prosecutor, it does not fit into agricultural either.

Mr. Lasure said he feels the trees would justify agricultural but said when Mr. Burns talked to him about this variance, he was aware of the mulch but that it would already be ground.

Mr. Lasure said he’s not sure that either one of these things is as important as the deed restriction and feels the deed restriction might have to be settled civilly.

Mr. Reynolds stated that, at this time, we don’t even know if the deed restriction is valid. Mr. Haas said if there is a deed restriction, the Board could not override it.

Mr. Lasure said he isn’t siding with anyone, but if Mr. Burns is going to plant that many trees, he has a hard time believing this would not fall under agricultural. But if he starts grinding mulch on the premises, he does have a problem with that and said he is not sure that would fit under a Conditional Use Permit.

Mr. Haas said if it’s truly agricultural, Mr. Burns doesn’t need a permit. At this time, discussion was held on agricultural uses. Mr. Haas said we cannot stop agricultural use on less than five acres but we can regulate building structure and size.

It was decided that the zoning inspector would write a letter to the prosecutor for a legal opinion on agricultural and to have them research the validity of the deed restriction.

Trustee Todd Bosley said to bring this all together – does the neighborhood want this and if they do, they should all get together and rezone their property. Bosley asked that the Board listen to their concerns and act on the people’s behalf.

Phyllis McKean asked Mr. Burns if he went to the EPA and was told that it would cost $25,000.00 to $30,000.00 to get the proper equipment for a mulch business, would he be willing to do it. Mr. Burns stated he would. Mr. Lasure said Mr. Burns would have no choice because he would contact the EPA (if this variance goes through) regarding Mr. Burns starting this type of business and he would ask that the EPA follow it to make sure he complies.

Phyllis McKean said it seems the neighbors are not against the trees – just the mulch.

George Mountcastle stepped to the podium again. He said if the emphasis is growing trees, no one has a problem with that but it seems the emphasis is on the mulch business, collecting dead wood from construction sites and piling it up to grind two to three times a year. He said he is very much against that. Mr. Mountcastle asked Mr. Burns how many trees he plans on planting. Mr. Burns said 3,000 to 5,000 the first year and then every year another 3,000 to 5,000. Mr. Burns stated this would not be like Earth-N-Wood and would not be like the one at Easton & Columbus. He said it would be a nice, neat operation, there would be trees and no one would see the operation.

Louise Vance asked Mr. Burns how much wood there would be at one time. Mr. Burns said he would expect his pile of wood to be 200’ to 300’ and it would be mounded up and kept clean and neat. He stated he would have a grinder come to the premises. He said he would not purchase a grinder, would only grind mulch once a year and it would not be noisy.

Mr. Burns asked what would happen if he would just make it five acres. Mr. Haas told him it would be better to have more than five acres because there are fewer restrictions and that only applies to agricultural use, which is the question.

Mr. Burns stated this would be a 50/50 mulch business and nursery business.

At this time, Mr. Reynolds motioned to defer to the prosecutor and also find out whether or not the deed restriction is legitimate and ‘continue’ this hearing to next month, which would be May 2^nd, 2005 seconded by Phyllis McKean. All were in favor. Motion carried.

Mr. Burns asked for the name of the prosecutor to give to his attorney but then stated that his attorney could get the information.

Greg Linville asked if this variance is granted, what would happen when the business is sold or Mr. Burns dies or whatever. Mr. Haas said there are only two provisions the Board could approve: 1) Agricultural -- If it’s agricultural there is nothing the Board can do, and 2) Home Occupation -- If it would be approved as a home occupation, it would be renewable each year which would be at the Board’s disgression.

Old Business/New Business: There was no old business or new business.

Approval of Minutes: Phyllis McKean motioned to approve the Minutes, as written, from March 7, 2005 seconded by Louise Vance. All voted yes. Motion carried.

Adjournment: Phyllis McKean motioned to adjourn seconded by Louise Vance. All voted yes. Motion carried. The meeting adjourned at 8:25 p.m.

__________________________________

Dennis Haas, Chairman

__________________________________

Louise Vance, Secretary