MINUTES
BOARD OF ZONING APPEALS
TUESDAY, JUNE 1, 2010 – 7:00 PM
Board Members Present: Dale
Riggenbach, Chairman
Gary Brahler, Vice Chairman
Pan Aslanides, Secretary
Floyd Fernandez
Bill Ehlers
Ed Metzger (Alternate)
Trustee(s) Present: Lisa Shafer
Allen
Gress
Stark
Zoning Inspector: Keith Lasure
Township Secretary: Sharon Shaub
Purpose:
·
Appeal #563 – Shawn
Fimple is applying for a variance on his property located at 4900 Eshelman NE,
Louisville, Ohio 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 setback which is on or very near the property line.
NOTE: For complete details regarding the above case,
the four (4) CD’s from
tonight’s hearing can be purchased from the
township office at $1.00 per CD.
All documents discussed in the minutes are in
the 4900 Eshelman file at the
township office.
Minutes were approved at the July 13, 2010
‘continuance’ of this hearing with
the attached
corrections to the minutes at the end as requested by
Attorney Savage, Exhibit B.
Chairman
Riggenbach opened the meeting at 7:00 P.M. and introduced the Board of Zoning
Appeals, Zoning Inspector Keith Lasure, Township Secretary Sharon Shaub, Trustees
Lisa Shafer and Allen Gress and Stark County Prosecutor, Lisa Barr. Mr. Riggenbach swore in everyone in
attendance by asking them to swear that the information they were about to
present, either in oral or written form, is true and accurate to the best of
their knowledge. The people responded by
stating, “I do”.
June 1, 2010 BZA Minutes – 4900
Eshelman Variance for Zoning Violations (Cont.)
Case: Appeal
#563:
Attorney Douglas Savage,
attorney of record for Mr. Shawn Fimple, stepped to the podium and discussed the three (3) documents he sent. The documents refer to the history and facts
of the property in question. Attorney
Savage said Mr. Fimple is not requesting a ‘use’ variance but is requesting an
‘area’ variance on setbacks stating
that although a ‘use variance’ requires evidence of
‘unnecessary hardship’, the standard for an ‘area’ variance is only ‘practical
difficulties’ in correcting the zoning violations. Attorney Savage stated he received a letter
from Nimishillen Township Zoning Inspector, Keith Lasure, and said all the
facts in the letter are true. Attorney Savage
also submitted two (2) amendments. The
garage at most is 2’ from Mr. Duplain’s driveway and slants towards Mr.
Duplain’s property line. By the time it
reaches Mr. Duplain, its inches from Mr. Duplain’s property line. Therefore, they are asking for an ‘area’
variance stating Parcel #33-01826 is owned by Mr. Fimple and Parcel #33-09114
is owned by Mr. Duplain. The missing 8’
setback is along the 50’ x 200’ strip of land owned by Mr. Duplain. Attorney Savage said there is nothing on file
regarding the first complaint from Mr. Duplain.
The Board and Attorney Savage discussed the
following:
o
Original &
two amendments served to Mr. Duplain
o
Survey done
2/16/09
o
Mortgage-type
survey
o
Appraisal of
property dated 7/12/09
o
Atty. Savage
believes Mr. Duplain assumed the garage crossed the property line and said Mr.
Kiko (realtor) is in attendance to testify this is not the case
o
Attorney Savage
stated the Township Zoning Inspector and Stark County Prosecutor gave a
deadline of May 7, 2010 to file for a variance
Chairman Riggenbach asked Attorney Savage if he was
asking for an area variance to leave the property as it sits. Mr. Savage said if a pin survey confirms that
anything between the berm of Eshelman and Mr. Duplain’s fence and his parcel
#33-09114 is encroached upon by the garage, the driveway or whatever, it must
be removed. Chairman Riggenbach said he
visited the site today and Mr. Duplain’s property has pins on it. He said it looks like, at one time, there was
shrubbery down through there and some of it looks to be partially removed.
It was noted that no one in zoning, including
Lasure, said anything about zoning violations until Mr. Duplain started talking
about ‘encroachment’ after he purchased the property. Mr. Lasure said Attorney Savage agrees there
are zoning violations.
June 1, 2010 BZA Minutes – 4900 Eshelman
Variance for Zoning Violations (Cont.)
Vice Chairman Brahler said he knows someone who was
interested in buying the 4900 Eshelman property but was told there was a
problem with it and HUD was offering $10,000 so they decided not to purchase
the property.
After much discussion, Chairman Riggenbach asked the
Board if they had any more questions for Attorney Savage. They had none.
Mr. Lasure stated the garage was built in two phases
and the violations were discussed with Mr. Fimple before he purchased the
property in question. Attorney Savage
said Mr. Fimple would testify he did not discuss zoning violations prior to
buying the property in question – only talked about ‘encroachments’. Attorney Savage said we are in agreement with
the zoning violations and said Ohio law is clear that even if you purchase
property knowing of zoning violations, it does not preclude asking for a
variance. However, in this case,
Attorney Savage said his witnesses will make clear that they did not know about
the zoning violations prior to closing.
Chairman Riggenbach asked if there was anyone in
attendance in favor of the area variance.
o
Shawn Fimple
of 9105 Georgetown Street, Louisville
stepped to the podium and said he does not live at the Eshelman property but
uses it as rental property. Attorney
Savage talked about the first Brief and an email exchange dated March 4, 2010
with Attorney Webster with HUD. Also
looking at the 1960 survey in the ‘larger’ document, Mr. Metzger explained
where to find the pins.
o
Thomas E.
Harntnett, Attorney with First American Title Insurance Company has the mortgage survey and mentioned about the
‘practical difficulties standard’. He
said it’s been this way over thirty (30) years and should be granted stating
it’s simply a zoning encroachment. He
said there have been five (5) property owners since then and this has gone on
year after year stating this does not affect the use of Mr. Duplain’s property
and no harm is being done. He said title
insurance does NOT cover zoning violations.
Mr. Lasure said from the township’s point of view,
or at least from his point of view as zoning inspector, the garage is not 8’
from the property line. In fact, part of
it is over the property line and Mr. Fimple needs to remove 8’ of the garage to
make it a legal building and that’s being lenient on our part. Lasure said basically removing 8’ and the
screened in porch permit is all we’re asking for.
June 1, 2010 BZA Minutes – 4900
Eshelman Variance for Zoning Violations (Cont.)
o
Joseph
Farver of 4930 Eshelman stated the
sun porch was put on thirty (30) years ago.
The garage was done at the same time.
He wanted to know why it’s taken so long for someone to complain about
something that’s been 30-35 years ago.
Chairman Riggenbach asked if there was anyone
opposed to this variance.
o
Attorney Roy
Battista of 4808 Munson NW, Canton, Ohio stepped to the podium and said he filed a memorandum with the
township. There was a question and
answer session between Attorney Battista and Mr. Duplain. Mr. Duplain stated for the record he resides
at 4854 Eshelman NE, Louisville, Ohio.
Questions and answers consisted of:
1.
Purchasing the
property from Dr. Pugh & talked about the Milman pins
2.
Conversation
with realtor, Mr. Kiko
3.
Conversation
with Mr. Lasure
4.
Telephone
record August 6th
5.
Detailed report
showing offer accepted on 8/11/09
6.
Mr. Duplain’s
conversation with Mr. Fimple on 8/7/09
7.
Property
Condition Report
8.
Exhibits 1
through 4
Board member, Floyd Fernandez, asked Mr. Duplain
what it would take to solve this situation.
Mr. Duplain said he wants to use the property for the reason he
purchased it. He wants to raise cattle and does not want to
sell any of his land and said liability is in question regardless. Mr. Duplain said he wants to use his property
without destroying Mr. Fimple’s property, which is a little impossible due to
the closeness. Mr. Fimple cannot
maintain his side of the property without trespassing onto his property. Mr. Duplain said this problem did not just
start – it started way back when the Bank of Oklahoma had this property and it
then ended up being a HUD home.
After discussion, Mr. Fernandez asked Chairman
Riggenbach if he would consider ‘continuing’ this hearing to July 13th
to let the attorneys get together to see if they can come up with a reasonable
solution now that we know what Mr. Duplain wants.
Mr. Lasure said the Board can’t grant Mr. Fimple a
variance on someone else’s property. He
said he still has zoning violations that need to be dealt with.
Dale asked if it was safe to say that the Milman
pins are actually correct. Discussion
followed.
June 1, 2010 BZA Minutes – 4900
Eshelman Variance for Zoning Violations (Cont.)
Stark County
Prosecutor, Lisa Barr, said the reason she’s here is because this case relates
to zoning violations and for the application for the variance. She said we can all see how contentious this
is and wants to make sure the record is preserved in terms of the specific
legal factors when the Board makes its decision and that the
record reflects that the Board
considered the proper legal factors so in the event there’s further court
action, the court would be able to see that and uphold any decision made by the
Nimishillen Township Board of Zoning Appeals.
Mr. Lasure said the zoning
violations need to be dealt with and the setbacks need to be dealt with and
settled before continuing on to a ‘civil’ matter. Mr. Lasure said the reason for this variance
is due to zoning problems and violations and not to deal with a ‘civil’ matter.
Board member Bill Ehlers said there
is not an ‘encroachment’ problem from the survey pictures. He said we have a zoning problem – the garage
needs to be torn down because it’s too darn close to the property line.
Discussion was held regarding the
fence and the fact that it would have to be rebuilt, the fact that they knew
about the problems before they bought the place and zoning violations vs.
encroachment.
Stark County Prosecutor, Lisa Barr,
said the case can be ‘continued’ on
the zoning violations. There are
three choices:
1.
Continue
the case to the next scheduled hearing
2.
Call
for a vote now
3.
Adjourn
this hearing and deliberate in private because this is a ‘hearing’ and not a
public meeting so the attorney and his client can go in a room and talk privately
and then render a decision
Parties involved discussed in
private what they want and then returned to the hearing. Mr. Duplain does not want to sell any of his
property and would like a thirty (30) day ‘continuance’.
Chairman Riggenbach asked for a
motion to continue this hearing.
MR. FERNANDEZ MOTIONED TO ‘CONTINUE’
THIS HEARING ON THE AREA VARIANCE AND ZONING VIOLATIONS TO JULY 13, 2010 AT
7:00 PM AT THE TOWNSHIP HALL LOCATED AT 4422 MAPLEGROVE NE, LOUISVILLLE, SECONDED
BY MR. BRAHLER. MOTION CARRIED.
Roll call voting for ‘continuing’ the hearing
on July 13, 2010:
Bill
Ehlers - YES
Floyd
Fernandez - YES
Dale
Riggenbach - YES
Gary
Brahler - YES
Pan
Aslanides - YES
June 1, 2010 BZA Minutes – 4900
Eshelman Variance for Zoning Violations (Cont.)
__________________________________
Dale
Riggenbach, Chairman
__________________________________
Pan
Aslanides, Secretary
Zoning Board of Appeals Minutes Folder: 2010, June 1 BZA Minutes-4900 Eshelman
Zoning violationa.doc