MINUTES

BOARD OF ZONING APPEALS

TUESDAY, JULY 7, 2009 – 7:00 PM

Board Members Present: Dale Riggenbach – Chairman

Nicholas Reynolds – V. Chairman - Absent

Pan Aslanides - Secretary

Floyd Fernandez – Member

Gary Brahler – Member

Ed Metzger – Alternate

Zoning Inspector: Keith Lasure

Trustees Present: Lisa R. Shafer and Allen E. Gress

Purpose:

· Appeal #533 - Gus Cespedes, 7931 N. Nickelplate – requesting variance for a Conditional Zoning Certificate to install a small wind energy system in a R-1 Single Family Residential District with a height of 100 feet instead of the allowed 80 feet per Article XI Conditional Zoning Certificate Section 1102, #149(e) as permitted in the Nimishillen Township Zoning Resolution.

· Conditional Zoning Certificate #700 from 2005 - Gary Reed, 6271 Apple NE – Board of Zoning Appeals requested Mr. Reed to appear before the Board to consider revocation of Conditional Zoning Certificate #700. This authority shall be in addition to the authority contained in Sec. 519.14(d) of the Ohio Revised Code.

Chairman Dale Riggenbach called the meeting to order at 7:00 PM and introduced the Board, Zoning Inspector, Township Secretary and Trustee Shafer & Gress and did a mass swearing in of everyone in attendance of tonight’s hearings.

HEARING OF TONIGHT’S CASES:

APPEAL #553:

Gus Cespedes of 7931 N. Nickelplate stepped to the podium stating he is requesting a variance Conditional Zoning Certificate to install a Bergy 10KW Wind Turbine on a 100 foot free standing tower to generate power to his home. In order to get a grant from the State of Ohio, there has to be so much wind and to get that, height is needed. The standard height is 100 feet.

Mr. Cespedes said he was approved to receive a grant from the Ohio Department of Development for $25,000.00 to help offset the cost. The AWEA (American Wind Expert Association) was founded in the 1970’s and is based in D.C. They promote wind energy for commercial and residential in the U.S. Mr. Cespedes said a tall tower is the most significant factor in the economic viability from a small wind energy system. A taller towers means more and cheaper energy.

Mr. Cespedes said this is an expensive project ($60,000.00) and said he doesn’t plan on decommission as far as restoration and will maintain it as long as he’s there. The Stark County Health Department has approved the wind system. Wind Turbines of Ohio based out of Alliance will be installing the system.

Minutes - Board of Zoning Appeals –July 7, 2009 (Cont.)

The radius of the blades is 121 feet, which will be above the 100 feet. The tower will be a total of approximately 115 feet. Mr. Riggenbach said instead of a 20-foot variance, the Board should consider a variance of another 35 feet.

Mr. Cespedes said considering the size of his property and the location, he feels he will not infringe upon any of his neighbors.

Residents in attendance to speak in favor of this variance:

· Ernest Simmons of 8016 N. Nickelplate – no problem with wind energy system

· Dan Stanley of 7880 N. Nickelplate – no problem – keeps his property neat

· Frank Galletta of 8062 N. Nickelplate – no problem with the small wind energy system

There was no one in attendance opposed to the variance and no calls or letters were received at the township office.

With no one else to speak and no further discussion, Chairman Riggenbach asked for a motion for a ballot vote.

GARY BRAHLER MOTIONED FOR A BALLOT VOTE FOR APPEAL #553 FOR A CONDITIONAL ZONING CERTIFICATE FOR A SMALL WIND ENERGY SYSTEM IN A R-1 SINGLE FAMILY RESIDENTIAL DISTRICT AND FOR A VARIANCE TO ALLOW 35 FEET AS STATED ABOVE AND FOR A CONDITIONAL ZONING CERTIFICATE SECONDED BY PAN ASLANIDES. MOTION CARRIED. APPROVED. Voting went as follows:

Dale Riggenbach - YES

Gary Brahler - YES

Pan Aslanides - YES

Ed Metzger - YES

Floyd Fernandez - YES

CONDITIONAL ZONING CERTIFICATE #700 FROM 2005:

Gary Reed of 6271 Apple Street stepped to the podium and said he really didn’t know why he’s been brought before the Board of Zoning Appeals. He said he knows what the complaint is but the complaint has nothing to do with zoning or the township. He said it’s a neighbor dispute over two big rocks that he uses to decorate his home. The complainant wanted them but Mr. Reed said he’s using them.

Mr. Reed said he has a signed petition from all of his neighbors stating they have no problem with him. He said he has 1.5 acres with ½ of the acre next to him.

Chairman Riggenbach said it’s his understanding one of Mr. Reed’s neighbors is complaining about fumes from one of the pieces of equipment (bulldozer). Mr. Reed said if he’s not using the bulldozer, he starts it up maybe three times a year. It has a diesel engine and said it will smoke if you push hard but he said he’s never pushed hard.

Minutes - Board of Zoning Appeals –July 7, 2009 (Cont.)

Mr. Reed stated he has all of his equipment for sale. Due to the economy, he has no work and has no money.

Chairman Riggenbach asked Mr. Reed if he could load his vehicles in the afternoon since the complainant and his wife like to sit outside in the evening. Mr. Reed stated he does not let his truck run. He said he usually loads his equipment the night before and then pulls it back behind the trees.

Floyd Fernandez asked about the pole building and the one-year stipulation. Mr. Reed said he would like to have finished the pole building to be built on the ½ acre lot next to him within one year (said the variance was not passed on the basis of the building and said he threw that in voluntarily) but due to the economy, he has not been able to do so. Mr. Fernandez said he doesn’t know how the Conditional Zoning Certificate passed back in 2005 because a home business is something that is run out of a home and the excavating business is in a residential area and is against zoning laws. Mr. Reed explained that his excavating business is away from his house, he only parks his vehicles there and makes phone calls from his house.

At this time, Mr. Reed’s daughter showed a video of Mr. Reed starting up his equipment showing there’s no smoke and not much noise. Mr. Reed said he’s had his business for five or six years and has never had a complaint before. He said again, it’s not a neighborhood problem – it’s a neighbor (one neighbor) dispute.

Residents in attendance to speak in favor of Mr. Reed’s excavating business:

· Rebecca Folk of 6276 Apple Street- Mr. Reed is not a nuisance

· Todd Bosley of 8855 Sate Street – Mr. Reed asked him to be here and said Mr. Reed is not causing his neighbors any problems

· Darnell Miller of 6249 Apple Street – has no problem with Mr. Reed

Residents in attendance opposed to Mr. Reed’s excavating business:

· Kendrick Holbrook of 4721 Fruitland said fumes come straight toward his house (he’s west of Mr. Reed) and said he and his wife cannot sit outside. Mr. Holbrook brought up the issues of the 1-½ acres stating you cannot build a building on a lot without an address. Keith Lasure said the lot line should be vacated to make it one lot – doesn’t have to be but should be.

Chairman Riggenbach stated this variance is to consider revocation of Conditional Zoning Certificate #700. He said Mr. Reed has lived at this address for nine years and asked Mr. Reed how long he plans to stay in business. Mr. Reed said maximum five years. Mr. Reed said what he really wants to do is keep the track hoe, one truck and the trailer to haul it on. He said if he can sell everything except for those three pieces of equipment, he would be able to pay what he owes on the equipment. The hardship is the fact that he’s still paying on everything.

Pan Aslanides asked Mr. Reed if he requested a variance to run a business from his house. Mr. Reed said yes. Pan said the variance had nothing to do with the building. Mr. Lasure said the building was included in the variance. Originally the issue wasn’t the building so the building really isn’t an issue. Keith said the variance was approved on the condition that a building would be put up (see attached) but said Mr. Reed has always gone over and above to do whatever has been asked of him. Mr. Lasure said it’s his opinion the issue tonight is over a neighbor dispute and not the fumes from equipment.

Minutes - Board of Zoning Appeals –July 7, 2009 (Cont.)

With no one else to speak either for or against Mr. Reed’s business, the Board agreed to enter into Executive Session.

After the other board members were already in the other room, there was discussion between Chairman Riggenbach and Mr. Bosley as to the reasons why they were going into Executive Session and the procedure to do so according to the Ohio Sunshine Law Book. Township Secretary, Sharon Shaub, said at one time Reva Butera from R.P.C. said zoning boards could enter into Executive Session at any time to discuss a case and Mrs. Shaub said she didn’t realize the Sunshine Law Book was for all boards. Discussion followed.

Upon returning from Executive Session, CHAIRMAN RIGGENBACH EXPLAINED THE BOARD ENTERED INTO EXECUTIVE SESSION AT 7:50 PM TO REVIEW THE NIMISHILLEN TOWNSHIP ZONING RESOLUTION REGARDING THIS CASE.

Chairman Riggenbach then asked for a motion to return from Executive Session.

FLOYD FERNANDEZ MOTIONED TO RETURN FROM EXECUTIVE SESSION AT 8:21 PM AND RESUME THE REGULAR MEETING SECONDED BY PAN ASLANIDES. MOTION CARRIED. Voting went as follows:

Dale Riggenbach - YES

Gary Brahler - YES

Pan Aslanides - YES

Ed Metzger - YES

Floyd Fernandez - YES

ED METZGER MOTIONED TO GIVE MR. REED ONE YEAR TO EITHER GET A ZONE CHANGE ON HIS RESIDENCE AT 6271 APPLE STREET FROM R-1 TO I-1 SO HE CAN HAVE A LEGAL INDUSTRIAL USE OF HIS PROPERTY TO ENABLE HIM TO BUILD A BUILDING TO HOUSE HIS EQUIPMENT AND TO ALSO RUN AN EXCAVATING COMPANY AT HIS RESIDENCE. IF MR. REED CANNOT DO THIS IN ONE YEAR, ALL EQUIPMENT MUST BE REMOVED AND MR. REED MUST CEASE AND DESIST FROM RUNNING HIS EXCAVATING BUSINESS FROM HIS RESIDENCE SECONDED BY FLOYD FERNANDEZ. MOTION CARRIED. Voting went as follows:

Pan Aslanides - YES

Gary Brahler - YES

Floyd Fernandez - YES

Ed Metzger - YES

Dale Riggenbach - YES

Upon roll call voting, all Board members continued discussion stating they were in favor of a one-year continuation of variance #700 with regards to Mr. Holbrook and with the stated conditions in the resolution.

Minutes - Board of Zoning Appeals –July 7, 2009 (Cont.)

Chairman Riggenbach said the above stated resolution meets the zoning requirements as stated in the Nimishillen Township Zoning Resolution. Mr. Riggenbach said Mr. Reed could run his business from his house but the storing of all of his equipment may or may not have been the correct thing to do at that time even though the Board of Zoning Appeals passed the variance request in 2005.

Chairman Riggenbach said the BZA is giving Mr. Reed one year to sell some of his equipment or to move the equipment to another location, which will work for everyone. Mr. Riggenbach said Mr. Holbrook said 9 AM would work for him (before he and his wife go out in their yard) for Mr. Reed to start up and load his equipment. Mr. Reed agreed and said if he knows ahead of time that he has a job, he’ll load up the night before.

Chairman Riggenbach said the Board is trying to give Mr. Reed a break by giving him time to move forward and not putting a hardship on him.

OLD BUSINESS / NEW BUSINESS: There was no old business or new business to discuss.

APPROVE WRITTEN MINUTES FOR JUNE 2, 2009:

GARY BRAHLER MOTIONED TO APPROVE THE WRITTEN MINUTES FOR JUNE 2, 2009 SECONDED BY PAN ASLANIDES. MOTION CARRIED.

MOTION TO ADJOURN:

ED METZGER MOTIONED TO ADJOURN AT 8:27 PM SECONDED BY GARY BRAHLER. MOTION CARRIED.

Signature on File

______________________________________

Dale Riggenbach, Chairman

Signature on File

______________________________________

Pan Aslanides, Secretary

Zoning Board of Appeals Minutes – 2009, July 7 BZA Minutes – Reed & Cespedes.doc