2010, JULY 13 BZA MINUTES - McKNIGHT SM WIND ENERGY SYS & CONTINUANCE 4900 ESHELMAN

MINUTES

BOARD OF ZONING APPEALS

TUESDAY, JULY 13 – 7:00 PM

PRESENT:

Board Members: Dale Riggenbach – Chairman

Gary Brahler – Vice Chairman

Pan Aslanides - Secretary

Floyd Fernandez – Member

Bill Ehlers - Member

Ed Metzger – Alternate

Zoning Inspector: Keith Lasure

Trustees: Lisa R. Shafer and Allen E. Gress

Attorneys: Lisa Barr, Douglas Savage, Roy Battista

Purpose:

· Appeal #565 – David McKnight, 9637 Easton – requesting variance for a Conditional Zoning Certificate to install a small wind energy system in an R-1 Single Family Residential District per requirements in the Nimishillen Township Zoning Resolution.

· Appeal #563 – ‘Continuance’ from June 1, 2010 – 4900 Eshelman – requesting a variance at 4900 Eshelman for a setback violation, Sec. 702.3 Minimum Lot & Yard Requirements which is 10’ on the side yard, failure to obtain permits for a screened in porch at the rear of the house and a garage that was built in violation of side yard setbacks, which is on or very near the property line.

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

HEARING OF TONIGHT’S CASES:

APPEAL #565: (Details of the hearing were recorded to a CD and can be purchased at the

Township office for $1.00)

David McKnight of 9637 Easton, Louisville, OH 44641 stepped to the podium and stated he is requesting a variance for a Conditional Zoning Certificate to install a small wind energy system behind his house 80’ from the house, 75’ from the east side and 70’ from the property line. Mr. McKnight said the height would be 45’ to 49’ with the tower being 45’ and the blades would be above the tower. The blades will be 7’ to 8’ long.

The Board asked if he brought the drawings from the licensed engineer and/or surveyor or if the installer was in attendance. Mr. McKnight said he didn’t know he needed to bring the drawings. He said he was going to have Greg Courtney attend but Mr. Courtney said he didn’t think it was necessary as he’d been to a couple other hearings in Nimishillen Township on small wind energy systems.

When asked why he wanted to install a small wind energy system, Mr. McKnight said to conserve power because electric costs keep going up.

Chairman Riggenbach said on page 74, #7 of the Nimishillen Township Zoning Resolution, it states that a scaled drawing must be prepared by a licensed engineer and/or surveyor, no smaller than 1” =

Minutes - Board of Zoning Appeals –July 13, 2010 (Cont.)

100’. Because there were no drawings provided for tonight’s hearing, Chairman Riggenbach would like to ask for a ‘continuance’ and hear the case with drawings in hand.

Alternate board member, Ed Metzger, said the Board could give a ‘conditional variance’ with a stipulation that Mr. McKnight must produce the drawings before issuing a Conditional Zoning Certificate.

Mr. Lasure said he received no calls regarding Mr. McKnight’s request for a small wind energy system.

BOARD MEMBER FLOYD FERNANDEZ MOTIONED TO ‘CONTINUE’ THIS HEARING TO TUESDAY, AUGUST 3^RD @ 7PM SO MR. MCKNIGHT CAN BRING THE DRAWINGS PREPARED BY A LICENSED ENGINEER SECONDED BY BOARD MEMBER BILL EHLERS. MOTION FAILED.

Ballot Vote as follows: Gary Brahler - NO to continue hearing

Dale Riggenbach - NO to continue hearing

Pan Aslanides - NO to continue hearing

Floyd Fernandez - YES to continue hearing

Bill Ehlers - NO to continue hearing

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

Gina Duplain of 4854 Eshelman, a resident in the audience, said she works for AEP and Mr. McKnight’s supplier has to provide engineers drawings, at no cost to Mr. McKnight, to AEP and to the building dept. before a small wind energy system can be erected.

With no one else to speak either for or against this variance and with no further discussion, Chairman Riggenbach asked for a motion for a ballot vote.

GARY BRAHLER MOTIONED FOR A BALLOT VOTE SECONDED BY BILL EHLERS. MOTION CARRIED.

BOARD MEMBER GARY BRAHLER MOTIONED TO GRANT THE REQUEST FOR A CONDITIONAL ZONING CERTIFICATE TO INSTALL A SMALL WIND ENERGY SYSTEM IN AN R-1 SINGLE FAMILY RESIDENTIAL DISTRICT PER THE REQUIREMENTS OF THE NIMISHILLEN TOWNSHIP ZONING RESOLUTION WITH THE ‘CONDITION’ THAT MR. MCKNIGHT PROVIDES THE BOARD WITH DRAWINGS BY A LICENSED ENGINEER AND/OR SURVEYOR SECONDED BY BOARD MEMBER PAN ASLANIDES. MOTION CARRIED.

Chairman Riggenbach read the ballot votes aloud. Voting went as follows:

Dale Riggenbach - YES

Floyd Fernandez - NO – Need to enforce Zoning Code

Bill Ehlers - YES

Pan Aslanides - YES

Gary Brahler - YES

Chairman Riggenbach stated the request for a Conditional Zoning Certificate for the small wind energy system was APPROVED with the condition that Mr. McKnight provides the Board with a drawing by a licensed engineer before any permits are issued.

Minutes - Board of Zoning Appeals –July 13, 2010 (Cont.)

APPEAL #563: (Details of the hearing were recorded to a CD and can be purchased at the

Township office for $1.00)

Attorney Douglas Savage of 358 – 21^st St. NW, Canton, OH 44709, attorney of record for Mr. Shawn Fimple, stepped to the podium and firstly asked that the minutes from the June 1, 2010 hearing be amended (when it comes time to approve the minutes) as follows: Correct the spelling of Attorney Tom Hartnett’s name and to put a more detailed summary of the request for the area variance. He felt important facts were left out. This is the ‘Fimple Exhibit B’ that will be attached to the June 1^st minutes.

Attorney Savage said it’s his understanding that the principle use of Mr. Duplain’s wedge of land between the Fimple home and Swope home (both of which face Eshelman) is to raise horses and cattle. The principle concern is the obvious - if the livestock fence is from 2’ to perhaps inches from the offending garage, damage is inevitable from livestock to the garage for which Mr. Duplain should not be responsible.

Mr. Duplain of 4854 Eshelman, Louisville, OH 44641 spoke up and said he called his insurance company and was told he is liable for any damage his livestock would cause to the garage. He said there’s also a fence law that the property owner is to give him 10’. Duplain said he has the actual measurements.

Attorney Savage said the fact that until the minutes are amended (if they are) there’s nothing in the minutes that made it absolutely clear that livestock is the principle purpose for this wedge of land that abuts the Fimple property.

Savage said one final quick argument: He apologized to Mr. Duplain, Attorney Battista and Stark County Prosecutor Lisa Barr. He said he lives in the City of Canton and has city water. He said he was negligent until last week about asking his clients if they had city water or well water and found out they have well water. Savage said lawyers throughout their careers, especially litigators, are often accused of putting ‘manure’ in their legal briefs and said he’s pleased to say this is the first time he’s actually been able to write a ‘manure brief’. He said if, and only if, he’s correct, page 5 of the 1987 Zoning Resolution restates the Ohio Code that agriculture on more than five (5) acres cannot be zoned out by use only. Mr. Duplain absolutely qualifies.

There’s another Ohio Statute that residential neighbors cannot have property zoned agricultural including animal husbandry - can never be declared a public nuisance in the State of Ohio. So the agricultural use of that land for animal husbandry (horses & cattle) is fairly clear. However, one of the very few, if not the only Ohio Department that can regulate animal husbandry is the Department of Health. He said if, and only if he’s correct, the Ohio Health Statute applies here. Mr. Duplain’s fence enclosing his future horses & cattle cannot be closer than 50’ from the Fimple’s residential drinking water well. This is the ‘Manure Brief’ he handed to the Board. He said if you look at the last page, this is a mortgage survey and not a pin survey. Savage said Fimple can state the underground water system (well) is under his front porch. If you look at the diagram, you will see a very small front porch (4 x 6 feet). If you convert the scale on that 8 x 10 piece of paper with the key of distance, the area equals about 2.2’. The well is underground under the front porch - basement level. It’s a private water system under the Ohio Dept. of Health code. That private water system has to be 50’ according to Ohio Health Department regulations.

If you look at the mortgage survey the center of the front porch with one millimeter on your ruler = 2.2’ is about 38’ from the Fimple /Duplain property line. This means that any enclosure, if and only if the Ohio Department regulation applies, any fence enclosing cattle on the Duplain land by this offending garage has to be 12’ south of the front porch to make the 50’. If it weren’t 12’ south of the property line, we only need our variance going back to the code that existed in 1973 – 8’ of that. If Mr. Duplain intends to raise livestock, his fence must be

Minutes - Board of Zoning Appeals –July 13, 2010 (Cont.)

12’ from the property line – our area variance involved 6’ to 8’ and that’s all because of the Ohio Health Code, if and only if it applies.

Attorney Savage said he feels like he should ask the Ohio Supreme Court after the last weekend if they certify a specialist in the Ohio Manure Law. If the Ohio Health Department regulation applies, then we will not be depriving Mr. Duplain of the use of his property – not an easement but an 8’ area variance for the simple reason he cannot build his fence on that 8’ on the property line. If Duplain does intend to grow crops, as he just stated, then his fence can be partitioned on the property line. Otherwise, if he intends to use it for cattle, the fence must be 12’ south of the property line. For that reason, we do not restate everything heretofore with a month ago.

Board member, Pan Aslanides, asked if the Ohio Health Code is something we need to follow or is that beyond what we’re doing. Mr. Aslanides said what Savage is arguing is not something he needs to really look at because that is a civil case and this is zoning. Mr. Aslanides said the whole thing with the fence and the 50’ does not pertain to what this board is looking at. Attorney Barr said this is beyond the authority of the Board of Zoning Appeals.

Attorney Savage said the Fimple’s are simply responding to Mr. Duplain’s clear and just argument that granting the 8’ variance is going to deprive him of the unlimited enjoyment of his property. Savage said he’s answering that by saying the Ohio Department of Health is going to limit this unlimited enjoyment of his parcel by 12’ if Duplain is raising livestock. Savage feels it is relevant in that sense.

Board member, Gary Brahler, said Mr. Duplain also made it very clear he wants to keep his 50’ to get back to his property. Brahler said we don’t get involved in the health part of it. Savage said Duplain’s parcel is not landlocked.

Chairman Riggenbach asked Atty. Savage if he has approached Mr. Duplain about trying to buy some property from him. Savage said he passed a letter to the Board from Mr. Duplain’s attorney to him essentially telling him that he’s wasting their valuable time. Savage said they proposed to buy 8’ - starting negotiations at the appraisal value. We discussed easements and in his last letter to Atty. Battista, he raised the idea of trading 8 x 100 feet of land for the same 8 x 200’, or 1,600 sq. ft. of land on the back of the Fimple’s property.

For the record, Chairman Riggenbach listed Amendments presented by Atty. Savage to the Board:

· Exhibit ‘A’ – Petitioner’s Fourth Amendment Petition – The Ohio

Manure Law

· Exhibit ‘B’ – Request to correct and amend the minutes from June 1, 2010

Mr. Daniel Duplain of 4854 Eshelman, Louisville, OH 44641 gave the Board a copy of the EXACTAOHIO showing his property line. Duplain said, for the record, George Kiko told Shawn Fimple the night he looked at the house that the Duplain’s property was not for sale. Duplain said he talked to Shawn Fimple and Fimple knew his property was not for sale. He knew it was on the property line or very close. Also, it’s very obvious that the title company didn’t do their job because the offer made was from the title insurance company. Duplain finds it odd that the title insurance company’s lawyer would be pushing for a variance so there must be some liability there.

Duplain said from what he can tell from reading the papers, the offer wasn’t made by Shawn Fimple. Mr. Duplain also said Mr. Fimple’s attorney threatened him with all kinds of things like adverse possession and also taking easements. The south sat vacant for over two (2) years and was vacant when he purchased his property. Mr. Duplain said Shawn Fimple has never had possession or use of his land. The house is not on Duplain’s

Minutes - Board of Zoning Appeals –July 13, 2010 (Cont.)

property – 3” off – however, it does not meet the 8’ setback. Duplain said it was built without a building permit and without a zoning permit. It was stated on three (3) pages of the property report that to ‘remove the garage was $10,000.00’. This is what happens when zoning rules and regulations are not enforced.

Again, Mr. Duplain said Mr. Fimple never had the use of his property or his land and asked the Board to please not grant this variance as requested.

Attorney Roy Battista of 4808 Munson NW, Canton, OH 44718 attorney of record for Mr. Duplain, stepped to the podium and said regarding the ‘manure brief’, he doesn’t know if Savage misspoke; however, he said the well has to be 50’ from the animals but should have said the animals have to be 50’ from the well.

Battista said if you examine the 5^th argument of the first filing by the opponent, he threatens adverse possession; however, as pointed out in my original memorandum, there is no possession and Mr. Duplain has reinforced that. In his 6^th argument, he threatens a lawsuit against Robert B. & Jean L. Stevens, predecessors in title. Batista doesn’t know of any covenant of warranty entitled to cover zoning. In the 3^rd amendment, he threatens easement.

Attorney Battista said Attorney Savage also made personal attacks on him and also sent a letter to Stark County Prosecutor, Ross Rhodes, who is Attorney Barr’s boss, complaining about Ms. Barr’s unethical conduct.

Mr. Battista said Mr. Savage’s arguments regarding adverse possession and prescriptive easements lack merit. Here and before the BZA is not the proper forum for this. These can only be established by a court of law. Both require use by the asserting property owner. There has never been any use or any possession by Mr. Fimple or his predecessors in title of land. The final thing regarding the issue before the Board is the Fimple property line and Fimple garage. A prescriptive easement will not move the Fimple property line. Battista said this is perhaps why reading Mr. Savage’s letter was a waste of his time. He continued to read reports by Attorney Savage and said Due Diligence is the key phrase and talked about the Duncan Middlefield Analysis.

At this time, Board member Floyd Fernandez was asking Lasure questions, making comments about the tear down of the garage, a legal opinion from the prosecutor’s office as to whether or not it had been received, etc. Discussion continued between Lasure and Fernandez.

Stark County Prosecutor, Lisa Barr, responded to the conversation between Lasure and Fernandez and said the nature of this case has changed since it first came through the prosecutor’s office. It is not a simple legal opinion at this point – it’s changed from that to a situation where parties and attorneys have been involved and there were early-on discussions about whether legal action would be necessary on behalf of the township seeking an injunction for any potential violations but in lieu of that, it was her understanding that the petitioner and applicant, Mr. Fimple, in this case, was going to apply to the Board of Zoning Appeals for his area variance prior to any kind of court action being instituted in an effort to avoid that if possible. So that would maybe explain why there’s no appeal letter.

Mr. Fernandez said the only reason they applied for an area variance was because Attorney Barr forced them to apply by May 7, 2010. Ms. Barr said she did not force anything but did indicate in an effort to move things along and to keep it from dragging on because it’s been dragging on for several months, that the township, from her discussion with Lasure, would be prepared to institute legal action for the violations in the event he did not file by May 7^th. Discussion continued between Ms. Barr & Mr. Fernandez.

Chairman Riggenbach said enough time has been spent on both sides and asked for a motion for a ballot vote for Appeal #563.

Minutes - Board of Zoning Appeals –July 13, 2010 (Cont.)

Ms. Barr asked Chairman Riggenbach if she could speak and he said yes. She said she provided a format to the Board, which they are not required to use, but it does list the legal factors that are relevant to this particular application with space for the Board to write down testimony of witnesses, exhibits and findings pertaining to each of those factors. The factors regarding water & sewer – Ms. Barr said she doesn’t recall hearing any testimony to that and told the Board they could certainly say that’s not applicable if that’s what the Board finds. She said for purposes of the Board’s decision, at some point there should be a written decision that includes all of the things listed on the form.

Chairman Riggenbach said this has been one of the more difficult cases in the past couple of years since he’s been on the Board because it affects all parties and that’s why the Board was trying to see if there could be a win-win situation for both parties. That’s why the case was ‘continued’ in hopes it would work out.

Zoning Inspector, Keith Lasure, said he received no calls at the office either for or against this variance request and no correspondence was received at the office.

BOARD MEMBER PAN ASLANIDES MOTIONED FOR A BALLOT VOTE SECONDED BY BOARD MEMBER GARY BRAHLER. MOTION CARRIED.

Board Member Bill Ehlers asked if he could say something. Chairman Riggenbach said okay. Ehlers said he feels bad for the current owner that has to bear the responsibility of how this Board might vote. He said he knew of a couple that was interested in buying the 4900 Eshelman property but were made aware of the situation and backed off.

Chairman Riggenbach said there’s a motion on the floor and explained a ‘YES’ vote means it’s okay the way it stands and a ‘NO’ vote means to change it. Attorney Lisa Barr said it might be easier to speak in terms of ‘granting’ the application for an area variance or ‘denying’ the application rather than yes and no.

Chairman Riggenbach read the ballot votes aloud. Voting went as follows:

Pan Aslanides - DENY

Bill Ehlers - DENY

Dale Riggenbach - DENY

Gary Brahler - DENY

Floyd Fernandez - ABSTAINED

Following are the reasons for the ‘DENIED” votes and the one ‘ABSTAINED vote:

· Pan Aslanides: Reason #5 & Mr. Fimple knew there was a problem when he purchased the

property

· Bill Ehlers: Does not comply with current zoning laws – it is alleged the current owner knew of the situation before buying the property

· Dale Riggenbach: No to area variance in regards to setback requirements

· Gary Brahler: Reason #5 - Does not comply with current zoning laws

· Floyd Fernandez: Information provided is in question

Chairman Riggenbach said the request for an area variance was DENIED. He said it’s now up to Zoning Inspector Keith Lasure and the Trustees to work it out from here.

Minutes - Board of Zoning Appeals –July 13, 2010 (Cont.)

OLD BUSINESS:

Mr. Metzger asked what was going on with Mr. Reed on Apple Street. He had been given a year to comply and to date has done nothing. His year is up. Mr. Lasure said he is working on it and has a meeting at the prosecutor’s office in the morning to go over about 8 or 9 cases, which also includes the 4900 Eshelman case.

NEW BUSINESS:

There was no new business to discuss.

APPROVE WRITTEN MINUTES FOR JUNE 1, 2010:

Attorney Douglas Savage presented Exhibit ‘B’ – Request to Correct and Amend the June 1, 2010 minutes in the 4900 Eshelman Case. (Attached)

BOARD MEMBER BILL EHLERS MOTIONED TO AMEND THE JUNE 1, 2010 MINUTES AS REQUESTED BY ATTORNEY SAVAGE SECONDED BY BOARD MEMBER GARY BRAHELR. MOTION CARRIED.

BOARD MEMBER GARY BRAHLER MOTIONED TO APPROVE THE JUNE 1, 2010 MINUTES AS AMENDED SECONDED BY BOARD MEMBER PAN ASLANIDES. MOTION CARRIED.

MOTION TO ADJOURN:

BOARD MEMBER FLOYD FERNANDEZ MOTIONED TO ADJOURN AT 8:30 PM SECONDED BY BOARD MEMBER BILL EHLERS. MOTION CARRIED.

______________________________________

DALE RIGGENBACH, CHAIRMAN

______________________________________

PAN ASLANIDES, SECRETARY

cc: Trustees

BZA Members

Attorneys Lisa Barr, Douglas Savage & Roy Battista

Exibit 2 to July 13th ZBA minutes.pdf

Zoning Board of Appeals Minutes – 2010, July 13 BZA Minutes – McKnight Sm Wind Energy System & Continuance 4900 Eshelman.doc